EPA-HQ-OW-2010-0257-0945.Pdf

Draft Pre-Decisional Document for Agency Review Purposes Only: Do Not Distribute

DRAFT Endangered Species Act Section 7 Consultation Biological Opinion on the

U.S. Environmental Protection Agency’s Proposed Pesticides General Permit

National Marine Fisheries Service

Office of Protected Resources

Silver Spring, MD 20910

Consultation History ...... 8

DESCRIPTION OF THE PROPOSED ACTION ...... 10 Pesticides General Permit ...... 12

Obtaining Authorization under the PGP ...... 12

Protective Measures ...... 16

Limitations on Coverage ...... 24

Overview of NMFS’ Assessment Framework ...... 25

Application of this Approach to this Consultation ...... 25

Evidence Available for the Consultation ...... 29

ACTION AREA ...... 30 STATUS OF THE SPECIES AND CRITICAL HABITAT AND ENVIRONMENTAL BASELINE ...... 31 Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action ...... 34

Endangered and Threatened Marine Mammals ...... 34

Endangered and Threatened Sea Turtles ...... 35

Endangered and Threatened Marine Fish ...... 36

Endangered and Threatened Marine Invertebrates ...... 37

Johnson’s Seagrass ...... 38

Climate Change...... 38

Species and Critical Habitat Likely to be Adversely Affected by the Proposed Action ...... 42

Anadromous Fish Species ...... 42

Southern Pacific Eulachon Southern ...... 42

Sturgeon ...... 44

Salmonid Anadromous Fish Species ...... 50

Chum Salmon ...... 64

Coho Salmon ...... 68

Sockeye Salmon ...... 74

Steelhead ...... 78

Marine Mammals ...... 97

Cook Inlet Beluga Whale ...... 97

Killer Whale Southern Resident Species...... 101

ENVIRONMENTAL BASELINE ...... 103 The Changing Landscapes of the United States ...... 104

Status and Trends of Waters of the United States ...... 106

Integration and Synthesis of the Environmental Baseline ...... 110

EFFECTS OF THE PROPOSED ACTION ...... 112 Potential Stressors ...... 113

Use Patterns to be Authorized by the Proposed Permit ...... 114

Pesticide Occurrence in Rivers and Streams ...... 117

Degradate Occurrence ...... 118

Environmental Mixtures ...... 118

Consequences of Exposing Listed Species and Designated Critical Habitat ...... 119

Components of the Proposed PGP Designed to Minimize or Prevent Exposure ...... 130

Evaluation of Those Components of the Proposed PGP Designed to Minimize or Prevent Exposure ...... 140

Cumulative Effects ...... 151

INTEGRATION AND SYNTHESIS OF EFFECTS ...... 151 CONCLUSION ...... 153 Listed Species and Critical Habitat ...... 153

REASONABLE AND PRUDENT ALTERNATIVE ...... 154 RPA Element 1 ...... 155

Rationale ...... 156

RPA Element 2 ...... 158

Rationale ...... 158

RPA Element 3 ...... 159

Rationale ...... 159

iii

INCIDENTAL TAKE STATEMENT ...... 160 Amount or Extent of Take ...... 160

Reasonable and Prudent Measures ...... 161

Terms and Conditions ...... 162

CONSERVATION RECOMMENDATIONS ...... 162 REINITIATION NOTICE ...... 163 LITERATURE CITED ...... 164

LIST of TABLES

Table 1. Proposed Annual Area Thresholds Required for Decision makers to File NOIs ...... 14 Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat...... 31 Table 3. Phenomena associated with projections of global climate change including levels of confidence associated with projections (adapted from IPCC 2001 and Campbell-Lendrum Woodruff 2007) ...... 40 Table 4. Persistence of Some Commonly Used Pesticides in Surface Water and Aquatic Sediments (After Mackay et al., 1997) ...... 114 Table 5. Percentage of Operators to be Authorized by the Permit per Location and Type ...... 116 Table 6. Summary of detections of chlorpyrifos, diazinon and malathion in filtered stream samples collected in California, Idaho, Oregon and Washington streams (Gilliom et al., 2006) ...... 118 Table 7. Example of listed ingredients on labels of some products containing chlorpyrifos, diazinon and malathion (after NMFS 2008a) ...... 121 Table 8. Classification of the 171 active ingredients by class of pesticide. Ingredients that are listed in bold type are discussed in greater detail in the document ...... 123 Table 9. Mixture concentrations resulting in 100% mortality of juvenile coho following 96h exposures (after NMFS 2008a) ...... 128 Table 10. State Designated Uses that Explicitly Address Listed Species ...... 134 Table 11. EPA’s FIFRA Standard Test Endpoints...... 136 Table 12. EPA Estimated Number of Operators to be Affected by the PGP1 ...... 141 Table 13. Types and Current Number of NPDES General Permits ...... 145 Table 14. Number and Relative Proportion of Inspected Permittees According to Permit Type ...... 145 Table 15. Frequency and Relative Rate of Permit Violations for Minor Dischargers with and without Inspections ...... 146 Table 16. Frequency and Relative Rate of Permit Effluent Limit Violations with and without Inspections 146 Table 17. Relative Distribution of Enforcement Actions among Different Permit Types ...... 147 Table 18. Relative Distribution of Enforcement Actions Among Permits with Effluent Violations ...... 147

1 APPENDICES 2 3 4 APPENDIX A: List of Pesticides Pollutants Authorized by the PGP

5 APPENDIX B: Definition of Adverse Incidents from the Proposed PGP

7 8

9 National Marine Fisheries Service 10 Endangered Species Act Section 7 Consultation 11 Biological Opinion

13 Agency: U.S. Environmental Protection Agency 14 15 Activities Considered: EPA’s Issuance of the Office of Water’s National Pollution Discharge 16 Elimination System, Pesticides General Permit under the Clean Water 17 Act for the District of Columbia, Idaho, Massachusetts and New 18 Hampshire, all Indian lands and Federal lands in Delaware, Vermont 19 and Washington State 20 21 Consultation Conducted by: Endangered Species Division of the Office of Protected Resources, 22 National Marine Fisheries Service 23 24 Approved by: ______25 26 Date: ______27

28 Section 7(a)(2) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1536(a)(2)) requires each 29 Federal agency to insure that any action they authorize, fund or carry out is not likely to jeopardize the continued 30 existence of any endangered or threatened species or result in the destruction or adverse modification of critical 31 habitat of such species. When a Federal agency’s action “may affect” a protected species, that agency is required to 32 consult formally with the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (FWS; 33 together, “the Services”), depending upon the endangered species, threatened species, or designated critical habitat 34 that may be affected by the action (50 CFR 402.14(a)). Federal agencies are exempt from this general requirement if 35 they have concluded that an action “may affect, but is not likely to adversely affect” endangered species, threatened

36 species, or designated critical habitat and NMFS or the FWS concur with that conclusion (50 CFR 402.14(b)).

37 This document represents NMFS’ Biological Opinion (Opinion) on the U.S. Environmental Protection Agency’s 38 (EPA’s) issuance of its Pesticides General Permit and its effects on threatened and endangered species and their 39 designated critical habitat. This Opinion is based on our review of the EPA’s Biological Evaluation for the 40 Environmental Protection Agency’s (EPA) Pesticides General Permit (PGP), reviews of the effectiveness of the 41 National Pollution Discharge Elimination System (NPDES) program and compliance for existing general permits, 42 pesticide risk assessments and Section 7 consultations on pesticide uses, species status reviews, listing documents, 43 recovery plans, reports on the status and trends of water quality, past and current research and population dynamics 44 modeling, published and unpublished scientific information and other sources of information as discussed in greater 45 detail in the Approach to the Assessment section of this Opinion. This Opinion has been prepared in accordance with 46 Section 7 of the ESA and associated implementing regulations.

49 Consultation History

50 On January 9, 2009, the Sixth Circuit U.S. Court of Appeals (Sixth Circuit) vacated EPA’s 2006 NPDES Pesticides 51 Rule (National Cotton Council, et al., v. EPA, 553 F.3d 927). That rule stated that a National Pollution Discharge 52 Elimination System (NPDES) Permit, as authorized by the Clean Water Act (CWA), is not required for: 1) the 53 application of pesticides directly to waters of the U.S. to control pests; and 2) the application of pesticides to control 54 pests that are present over –including near– waters where a portion of the pesticides will unavoidably be deposited 55 to the waters of the U.S. to target the pests provided that those applications are consistent with existing Federal 56 Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements.

57 On June 8, 2009, the Sixth Circuit granted EPA a two-year stay of the order to provide the Agency time to develop a 58 general permit in order to guide States with delegated authority to develop their own NPDES permits and to provide 59 outreach and education to regulated entities.

60 On February 22, 2010, the Supreme Court declined an industry group's request to review the Sixth Circuit decision. 61 Therefore all point-source discharges of pesticides into waters of the U.S. were to require an NPDES permit by 62 April 9, 2011.

63 On November 3, 2009, EPA initiated informal consultation with NMFS on EPA’s development of its NPDES 64 Pesticides General Permit (PGP) pursuant to the Sixth Circuit’s decision.

65 On February 3, 2010, EPA held a meeting with the Services. At that meeting the Services and EPA agreed that EPA 66 could use a list of representative pesticides and their uses in the representative states of MA and ID for their 67 Biological Evaluation (BE).

68 Between April 6, and June 7, 2010, NMFS reviewed and commented on portions of EPA’s draft permit and draft 69 BE. On June 10, 2010, NMFS sent EPA comments and concerns on the draft permit. These included: 1) Concerns 70 over why chlorine and bromine were not evaluated in the BE; 2) A request for information on the four pesticide use 71 patterns within the case study states; 3) Concerns that data from the EPA’s ECOTOX database indicated that species 72 evaluated in the BE were much more sensitive to pesticides than the draft BE analyses suggested.

73 On July 30, 2010, EPA requested formal Section 7 consultation and sent a final BE and set of responses to NMFS’ 74 concerns.

75 On August 30, 2010, NMFS notified EPA that it could not initiate formal consultation because NMFS had not 76 received all of the information necessary to initiate formal consultation on the proposed action as outlined in the

77 regulations governing interagency consultations (50 CFR §402.14). Specifically NMFS stated that in order to 78 complete the initiation package, EPA must provide: 1) A complete description of the action being considered; 2) A 79 complete description of the specific area that may be affected by the action; 3) A complete description of the manner 80 in which the action may affect any endangered or threatened species under NMFS’ jurisdiction or critical habitat, 81 and an analysis of any cumulative effects; 4) Any other relevant studies or other information available on the action, 82 the affected listed species, or critical habitat.

83 On September 15, 2010, NMFS participated in a conference call at EPA’s request. NMFS reiterated its information 84 needs required to initiate formal consultation to EPA.

85 On October 20, 2010, NMFS notified EPA that as of October 14, 2010, either EPA had provided all information 86 required for initiating consultation or this information was otherwise accessible for NMFS’ consideration and

87 reference. Therefore, NMFS was confirming the initiation of formal consultation on this action and that NMFS 88 expected to provide EPA with a final Biological Opinion no later than February 25, 2011.

89 On November 10, 2010 and December 8, 2010, EPA informed NMFS that EPA intended to change some permit 90 provisions.

91 On December 16, 2010, NMFS and EPA met to discuss EPA’s planned changes to the proposed general permit .

92 On January 10, 2011, NMFS notified EPA via a conference call that NMFS was likely to reach a jeopardy 93 determination for listed species, and destruction or adverse modification to designated critical habitat determinations 94 on the proposed action.

95 On January 19, 2011, NMFS gave the EPA a draft list of potential Reasonable and Prudent Alternatives (RPAs) that 96 NMFS believes would allow EPA’s action to proceed in compliance with ESA Section 7 (a)(2).

97 On March 1, 2011 NMFS sent a draft Biological Opinion to EPA.

98 On March 2, 2011, EPA filed a motion with the Sixth Circuit seeking an extension until October 31 for the purpose 99 of, among other things, to complete consultation. As part of that motion, EPA and NMFS filed declarations 100 committing to meet or confer by telephone at least once weekly through April 15 to attempt to reach consensus on 101 reasonable and prudent alternatives.

102 From March 4 through April 29, these meetings and conference calls occurred at least once weekly, and additional 103 informal discussion occurred frequently through this time period. Additional discussion continued after April 29 104 when needed.

105 On March 9, 2011 NMFS sent EPA detailed species location information so that EPA could identify overlap with its 106 proposed general permit and the range of ESA listed species under NMFS’ jurisdiction.

107 On March 28, 2011, the U.S. Court of Appeals for the Sixth Circuit granted EPA's request for an extension of the 108 deadline for when permits will be required for pesticide pollutant discharges into U.S. waters from April 9, 2011 to 109 October 31, 2011.

110 On April 1, 2011, EPA posted a pre-publication version of its draft final pesticide general permit for discharges of 111 pesticide applications to U.S. waters on its website.

112 On June 17, 2011 at EPA’s request, NMFS provided a draft Opinion to EPA in order for EPA to solicit public 113 comments.

114 A complete record of this consultation history is on file with NMFS.

115

116 BIOLOGICAL OPINION

117 Description of the Proposed Action

118 The U.S. Environmental Protection Agency’s Office of Water proposes to authorize point source discharges of 119 pesticide pollutants on, over or near waters of the United States by issuing a Pesticides General Permit (PGP) for 120 four use patterns:

121 1. Mosquito (larvicides and adulticides) and other flying insect pest control;

122 2. Aquatic weed, algae and pathogen control;

123 3. Aquatic nuisance animal and pathogen control; and

124 4. Forest canopy pest and pathogen control.

125 The proposed PGP will authorize discharges of point source pesticide pollutants on, over, or near waters of the 126 United States from these four use patterns in those States and Territories where the EPA is the permitting authority: 127 Alaska, American Samoa, District of Columbia, Guam, Idaho, Johnston Atoll, Massachusetts, Midway Island, New 128 Hampshire, New Mexico, Northern Mariana Islands, Oklahoma1, Puerto Rico, and Wake Island. However, NMFS’ 129 Opinion is limited to discharges that occur in the District of Columbia, Idaho, Massachusetts and New Hampshire, 130 all Indian lands and Federal lands in Delaware, Vermont and Washington State.

131 The EPA also proposes to use the PGP to authorize discharges of pesticide pollutants on, over or near waters of the 132 United States resulting from pesticide applications on Federal lands located in Colorado, Delaware, Vermont and 133 Washington, as well as Indian lands nationwide. The statutory authority for the proposed action is the National 134 Pollution Discharge Elimination System (NPDES) of the Clean Water Act (33 U.S.C. 1342 et seq.; CWA). The 135 purpose of the proposed general permit is to satisfy the goals and policies of the CWA (33 U.S.C. 1251). The EPA 136 proposes to use the PGP to authorize discharges of pesticide pollutants on, over, or near waters of the United States 137 for five years (at the end of that five-year period, the EPA can choose to extend, suspend, revoke, or modify the 138 proposed PGP).

139 The sixth Circuit Court of Appeals defined “pesticide pollutants” as all biological pesticides and those chemical 140 pesticides that leave a residue (National Cotton Council, et al., v. EPA, 553 F.3d 927). A “pesticide residue” 141 includes any discarded, superfluous, refuse or excess chemical pesticide2. The EPAs Biological Evaluation states 142 that the EPA defines pollutants requiring a CWA permit with respect to pesticides as all biological pesticides, the 143 excess of a chemical pesticide that is applied to control pests over water and then falls into the water, and the 144 residuals of chemical pesticides applied directly to the water [40 CFR 122.2]. A pesticide residue includes any 145 discarded, superfluous, refuse or excess chemical pesticide that no longer serves a pesticide function. This definition 146 is based on the Sixth Circuit Court’s vacating of the EPA's 2006 NPDES final pesticide rule. In that rule, EPA

1 Both Alaska and Oklahoma have partial NPDES programs but are not authorized to issue NPDES permits for these applications. The State of Alaska has been authorized to administer the NPDES program but is not obligated to assume permitting responsibilities for discharges from pesticide applications until November, 2011. 2 See Appendix A for a list of pesticides covered by the proposed general permit.

147 defined pesticide residues to "include excess amounts of pesticide that do not reach a target organism and materials 148 that remain after the application has completed its intended task" [71 FR 227]. The Court agreed with EPAs 149 definition of pesticide residue as pollutants but extended this to include all biological pesticides because the CWA 150 specifies pollutants to include chemical "wastes" and biological "materials." The distinction between the use of the 151 terms "wastes" and "materials" was recognized as Congress' intent to treat biological and chemical pesticides 152 differently. However, the EPA argued that pesticide residues are not subject to the NPDES permitting program 153 because “at the time of discharge to a water of the United States, the material in the discharge must be both a 154 pollutant, and from a point source" [71 FR 227]. The court disagreed, concluding that requiring a temporal 155 connection to a pollutant discharge to a point source "does not follow the plain language of the Clean Water Act" 156 and "is also contrary to the purpose of the permitting program, which is “to prevent harmful discharges into the 157 Nation’s waters.”

158 The pits BE for the PGP the EPA states that it assumes that "all chemical pesticides will leave a residue once the 159 product has performed its intended purpose.” Because of this, we define all chemical pesticides –including 160 degradates, adjuvants, surfactants and other additives in the formulations of those pesticides– as pesticide pollutants, 161 regardless of the time frame over which the pesticide performs its intended task.

162 NMFS must also consider the effects of interrelated and interdependent actions of the proposed action. 163 Interdependent actions are actions having no independent utility apart from the proposed action [50 CFR §402-02]. 164 They are typically a consequence of the proposed action. For example, if our consultation were evaluating the 165 effects of building a road, an interdependent action would be the planned construction of homes and other structures 166 that would not be accessible without the presence of that road. Interrelated actions are actions that are part of a larger 167 action and depend on the larger action for their justification [50 CFR §402-02]. They are actions that are typically 168 associated with the proposed action. In the case of the PGP, NMFS has identified the discharges of pesticide on, 169 over or near waters of the U.S as interrelated actions because the general permit authorizes the discharge of pesticide 170 residues which result from the application of pesticide to control pest species.

171 Although the proposed general permit would authorize discharges of pesticide pollutants on, over or near waters of 172 the United States under the CWA, these pesticide application uses were originally evaluated and registered and are 173 regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended by the Food Quality 174 Protection Act (FQPA) of 1996 and the Pesticide Registration Improvement Act (PRIA) of 2003. The EPA 175 administers the CWA and FIFRA through the Office of Water and the Office of Pesticide Programs, respectively. 176 The EPA proposes to require such discharges to be authorized under the CWA and be subject to the terms of the 177 proposed general permit but is not proposing to make any significant changes to pesticide uses currently authorized 178 and labeled under FIFRA.

179 Requiring a CWA permit for these discharges provides EPA with the authority to enforce CWA requirements that 180 may not have been addressed under FIFRA, including the ability of citizens to sue for permit violations. Therefore, 181 in addition to understanding the proposed PGP it is also important to understand the CWA and FIFRA and the way 182 that EPA administers each act in order to evaluate the EPA’s decision making process and determine whether the 183 EPA has insured that endangered or threatened species under NMFS’ jurisdiction are not likely to be jeopardized or 184 designated critical habitat for those species is not likely to be destroyed or adversely modified by activities 185 authorized by the issuance of the proposed general permit. The following pages describe the proposed PGP and 186 pertinent aspects of the CWA and FIFRA.

187 Pesticides General Permit

188 The proposed PGP would authorize point-source discharges of pesticide pollutants into a wide variety of aquatic 189 habitats from the application of pesticides on, over, or near waters of the United States for the four use patterns 190 described in the preceding subsection: (1) Mosquito (larvicides and adulticides) and other flying insect pest control; 191 (2) aquatic weed, algae and pathogen control; (3) aquatic nuisance animal and pathogen control; and (4) forest 192 canopy pest and pathogen control. In this Opinion we use these terms interchangeably.

193 The proposed permit would cover all “operators,” who are defined as: (1) any entity associated with the application 194 of pesticides, or who has day-to-day control of the application; or (2) any entity with control over the decision to 195 perform pesticide applications including the ability to modify those decisions. For the purposes of the proposed 196 permit, EPA defines “applicators” as those entities who perform the application of a pesticide or who has day-to-day 197 control of the application. “Decision makers” are defined as those entities with control over the decision to perform 198 pesticide applications including the ability to modify those decisions that result in a discharge to waters of the U.S.

199 This proposed permit would not affect the existing CWA exemptions for irrigation agriculture return flows or 200 agricultural stormwater runoff. These discharges are excluded from the definition of a point source under Section 201 502 (14) of the CWA. Agricultural stormwater runoff and irrigation agriculture return flows do not require NPDES 202 permits. Therefore, runoff from irrigation agriculture return flows and agricultural stormwater are not considered in 203 this Opinion.

204 Obtaining Authorization under the PGP 205 As proposed, this proposed permit covers all “operators,” For the purposes of the proposed general permit, the EPA 206 defines “applicators” as those entities who perform the application of a pesticide or who has day-to-day control of 207 the application. “Decision makers” are defined as those entities with control over the decision to perform pesticide 208 applications including the ability to modify those decisions that result in a discharge on, over or near waters of the 209 United States.

210 The PGP eligibility requirements apply to any “operator” who discharges pesticides on, over, or near waters of the 211 United States. for the four use patterns described in the previous section. If a decision maker: (1) Is a State or 212 Federal facility; (2) is a mosquito, irrigation and aquatic weed control or other pest control district; (3) intends to 213 discharge into designated outstanding national resource (Tier 3) waters, or; (4) has reason to believe that it will 214 exceed the annual treatment thresholds3 established by the EPA as described in the permit, that decision maker is 215 required to submit a Notice of Intent (NOI) to obtain coverage.

216 As proposed, the NOIs will contain a section that directs the decision maker to self-certify whether pesticide 217 application activities will overlap with the distribution of endangered or threatened species or designated critical 218 habitat, and if so:

219 1. Whether their pesticide applications have undergone ESA Section 7 consultations or if the operator has 220 received an ESA Section 10(a)(1)(b) permit and;

3 According to the EPA in their BE for the PGP, “To determine the appropriate thresholds that would trigger the NOI requirement, EPA’s Office of Water; Office of Pesticides, Pollution, and Toxic Substances; and Regional Offices, engaged in discussions with USDA, and representatives from industries including pesticide registrants, applicators, and land managers. Based on these discussions and EPA’s best professional judgment, EPA developed annual treatment area thresholds that differentiate between applications to small areas and those treatments to larger areas which are believed to have a greater potential for impact on Waters of the US.“

221 2. To provide a list of those endangered or threatened species, or designated critical habitat whose 222 distributions overlap with treatment areas. 223 In addition to these two criteria, NOIs would contain information from the decision makers that identify: 1) The 224 name, address, type and contact information of the operator expected to discharge pollutants, and the; 2) The 225 pesticide use patterns and planned locations of these applications. The decision maker would be authorized to 226 discharge pesticide pollutants by the proposed general permit no earlier than 10 days after EPA posts a receipt of a 227 complete and accurate NOI. EPA has not yet explained how it will evaluate these NOIs for accuracy.

228 Other decision makers who do not expect to exceed the annual treatment thresholds, but otherwise meet the 229 eligibility requirements, would be automatically authorized to discharge pesticides on, over or near waters of the 230 United States without being required to submit an NOI. However, they would still be subject to the terms of the 231 proposed permit. If a decision maker that was previously not required to submit an NOI discovers that they will 232 exceed a treatment threshold, that decision maker must submit an NOI at least 10 days prior to exceeding the 233 threshold in order to be authorized by the proposed permit. The proposed annual treatment area thresholds for the 234 four use patterns under this permit are listed in Table 1.

235 Calculations of total treatment areas are to include the area of the applications made to waters of the United States 236 and conveyances at the time of pesticide application. Individual applications for mosquito and other flying insect 237 pest control or forest canopy pest control are cumulative on an annual basis. That is, if the total cumulative annual 238 treatment area for all application is to exceed any treatment threshold, a decision maker must file an NOI.

239 This is not the case for aquatic weed and algae control or aquatic nuisance animal control. For these use patterns, the 240 application areas are not considered cumulative. That is, a decision maker may make multiple pesticide applications 241 onto an aquatic habitat, but as long as no single application exceeds a treatment threshold, that decision maker 242 would not be required to file an NOI.

243 Timing 244 Any decision maker that meets an NOI requirement threshold must submit an NOI by January 9, 2012. However, 245 any discharges to waters of the United States made by that decision maker before that date would be eligible for 246 coverage under the permit. Decision makers requesting first-time coverage under the PGP must wait 30 days before 247 discharging pesticides. If a decision maker expects to treat an area not identified in the previous NOI, that decision 248 maker must submit an NOI at least 10 days before discharging. That operator would be authorized by the PGP no 249 earlier than 10 days after EPA posts receipt of the complete and accurate NOI. Unless there is a change in location 250 or use pattern, one NOI suffices for the five year duration of the permit. The NOI does not contain any requirement 251 for notification of which pesticide product may be used or the exact location or timing of each individual discharge.

252

253

254

255

256

257

Table 1. Proposed Annual Area Thresholds Required for Decision makers to File NOIs

Mosquitoes and Other Flying Insect Pests1 6,400 acres of treatment area (adulticides) 640 acres (larvicides)

Aquatic Weed and Algae Control2

In Water 80 acres of treatment area

At Water's Edge 20 linear miles of treatment area

Aquatic Nuisance Animal Control3

In Water 80 acres of treatment area

At Water's Edge 20 linear miles of treatment area

Forest Canopy Pest Control4 6,400 acres of treatment area All Federal and State Agencies with a responsibility to control mosquitoes for public health, nuisance control or animal welfare, as well as Mosquito Control Districts (or similar Pest Control Districts), are required to file NOIs regardless of treatment area. All Federal and State Agencies with a responsibility to control aquatic nuisance vegetation, as well as Weed Control Districts (or similar Pest control Districts), are required to file NOIs regardless of treatment area. The control of nuisance aquatic animals usually requires that their treatment covers entire or large portions of water bodies. All Federal and State Agencies with a responsibility to control aquatic nuisance animals are required to file NOIs regardless of treatment area. Forest canopy pest suppression programs are designed to aerially blanket large tracts of terrain, throughout which operators may not be able to see waters of the United States beneath the canopy. All Federal and State Agencies with a responsibility to control forest canopy pests are required to file NOIs regardless of treatment area.

258 Emergencies 259 The PGP allows for immediate pesticide pollutant discharges for declared pest emergency situations4. There are four 260 types of exemptions of Federal and State Agencies for use of pesticides under emergency conditions: specific, 261 quarantine, public health and crisis exemptions. This exemption is based on a rule under Section 18 of FIFRA.

262 1. Specific exemption. A specific exemption may be authorized in an emergency condition to avert: 263 a. A significant economic loss, or;

264 b. A significant risk to: 265 i. Endangered species, 266 ii. Threatened species,

267 iii. Beneficial organisms, or 268 iv. The environment. 269 2. Quarantine exemption. A quarantine exemption may be authorized in an emergency condition to control 270 the introduction or spread of any pest that is an invasive species, or is otherwise new to or not theretofore 271 known to be widely prevalent or distributed within and throughout the United States and its territories.

4 51 FR 1902, Jan. 15, 1986, as amended at 71 FR 4495, Jan. 27, 2006 http://frwebgate.access.gpo.gov/cgi bin/getpage.cgi?position=all&page=4495&dbname=2006_register

272 3. Public health exemption. A public health exemption may be authorized in an emergency condition to 273 control a pest that will cause a significant risk to human health. 274 4. Crisis exemption. A crisis exemption may be utilized in an emergency condition when the time from 275 discovery of the emergency to the time when the pesticide use is needed is insufficient to allow for the 276 authorization of a specific, quarantine or public health exemption. 277 In these cases all decision makers must file an NOI no later than 30 days after beginning a discharge in response to a 278 declared pest emergency.

279 Outstanding National Resource Waters (Tier 3) 280 The PGP authorizes pesticide pollutant discharges into designated Tier 3 waters. States, Territories or Tribes 281 designate outstanding national resource waters “Tier 3” and they generally include the highest quality waters of the 282 United States The current version of the proposed general permit requires that any discharges to these waters require 283 an NOI along with an explanation of why such discharges are necessary. The proposed general permit states:

284 “Except for pesticide applications that do not degrade water quality or only degrade water quality 285 on a short-term or temporary basis, you are not eligible for coverage under this permit for 286 discharges from a pesticide application to waters designated by a state, territory, or tribe as Tier 3 287 (Outstanding National Resource Waters) for antidegradation purposes under Title 40 of the Code 288 of Federal Regulations (CFR) 131.12(a)(3) (a list of Tier 3 waters in geographic areas covered 289 under this permit is on EPA’s website at www.epa.gov/npdes/pesticides).”

290 The EPA has not defined what is meant by pesticides applications that “do not degrade water quality or only degrade 291 water quality on a short-term or temporary basis,” nor is there a list of designated Tier 3 waters on the website listed 292 in the proposed general permit as of the date of this Opinion.

293 The EPA’s rationale is as follows:

294 “In some cases, in order to protect Tier 3 water quality (e.g., from invasive species) or to protect 295 public health (e.g., from mosquito-borne illness outbreaks), pesticide application may be necessary 296 to Tier 3 waters. The CWA says that WQS’ [Water Quality Standards] shall be such as to protect 297 the public health and welfare, enhance the quality of the water and serve the purposes of the act.’ 298 The national interpretation with respect to the Outstanding National Resource Water (ONRW) 299 provision of the antidegradation policy is that it means no new or increased discharges. The only 300 exception to this is discussed in the preamble to the water quality standards regulation to indicate 301 that States may allow some limited activities which result in temporary and short-term changes in 302 water quality. The preamble further discusses the rationale for why we revised the wording in the 303 ONRW paragraph of the regulation. It clearly indicates that the change was made to allow for 304 these temporary activities to occur and did not extend the notion of ‘significant’ changes to 305 ONRW waters.” 306 When a decision maker expects to discharge pesticide pollutants into any Tier 3 water, that decision maker must 307 submit an NOI at least 10 days before discharging unless these discharges are in response to a designated pest 308 emergency. In such a case, the decision maker must submit an NOI no later than 30 days after discharging, but no 309 earlier than January 9, 2012. For discharges made into Tier 3 waters not in response to declared pest emergencies, 310 the operator would be authorized under the proposed general permit 10 days after EPA posts receipt of the complete 311 and accurate NOI. Operators discharging into Tier 3 waters in response to a designated pest emergency would be 312 authorized immediately.

313 Any decision maker that expects to discharge into any Tier 3 water not specifically identified in their most recently 314 submitted NOI must submit an NOI at least 10 days before discharging into the newly identified Tier 3 water. That 315 operator would be authorized under the proposed general permit no earlier than 10 days after EPA posts receipt of 316 the new complete and accurate NOI. These requirements do not apply if such Tier 3 discharges are in response to a 317 declared pest emergency, in which case the emergency discharge NOI requirements mentioned previously would 318 apply.

319 Protective Measures

320 The EPA proposes several measures intended to minimize any environmental effects resulting from these 321 discharges, including: the identification of overlap of endangered or threatened species, or designated critical habitat 322 and pesticide applications in the NOI process, technology based effluent limitations, compliance with existing water 323 quality standards, decision maker self-reporting of adverse incidents and annual reporting.

324 The NOI Process 325 As mentioned before, decision makers who are to exceed one or more of the annual treatment area thresholds must 326 file an NOI. Also, irrigation and aquatic weed control or other pest control districts, Federal agencies, State facilities 327 and those intending to discharge into designated Tier 3 waters must file NOIs. The NOIs are to contain a section 328 where the decision maker is to self-certify whether its pesticide application activities will overlap with the 329 distribution of listed species or designated critical habitat, and if so, must state: 1) if these applications have 330 undergone ESA Section 7 consultations or received an ESA Section 10 permit and, 2) which of these endangered or 331 threatened species, or designated critical habitat overlap with treatment areas. In addition to ESA listed species 332 concerns, NOIs contain information from the decision makers that identify: 1) The name, address, type and contact 333 information of the operator expected to discharge pollutants, and; 2) Pesticide use patterns and planned locations of 334 these applications. The proposed general permit would cover the decision maker no earlier than 10 days after EPA 335 posts a receipt of a complete and accurate NOI. Decision makers requesting first-time coverage under the PGP must 336 wait 30 days before discharging pesticides.

337 Technology Based Effluent Limitations 338 Operators would be required to implement control measures to minimize the discharge of pesticide pollutants to 339 waters of the United States through the use of technology based effluent limitations to the extent technologically 340 available and economically achievable and practicable. All operators must:

341 1. To the extent determined by the decision maker, use only the amount of pesticide and frequency of pesticide 342 applications necessary to control the target pest, using equipment and application procedures appropriate for 343 this task. 344 2. Maintain pesticide application equipment in proper operating condition, including requirements to calibrate, 345 clean and repair such equipment and prevent leaks, spills or other unintended discharges. 346 3. Assess weather conditions in the treatment area to insure application is consistent with all applicable Federal 347 requirements.

348 Pesticide Management Measures 349 Decision makers must minimize the discharge of pesticides through the use of pesticide management measures. 350 Pesticide management measures are defined as: “any practice used to meet the effluent limitations that comply with 351 manufacturer specifications, industry standards and recommended industry practices related to the application of

352 pesticides, relevant legal requirements and other provisions that a prudent operator would implement to reduce or 353 eliminate pesticide pollutant discharges to waters of the United States To the extent any decision maker determines 354 the amount of pesticide or frequency of pesticide application, the decision maker must use only the amount of 355 pesticide and frequency of pesticide application necessary to control the target pest. Any operator must review or 356 modify pest management measures if:

357 1. An unauthorized discharge occurs 358 2. Operators become aware that the measures are not sufficient to meet applicable water quality standards 359 3. Monitoring activities indicate a failure to: 360 a. Use the amount of pesticide and frequency of pesticide application necessary to control the target 361 pest, using equipment and application procedures appropriate for this task 362 b. Maintain pesticide application equipment in proper operating condition by calibrating, cleaning 363 and repairing such equipment and preventing leaks, spills or other unintended discharges 364 c. Assess weather conditions 365 4. An inspection by EPA, State, Tribal or local entities reveal modifications are necessary to meet applicable 366 water quality standards

367 5. An operator is made aware of an adverse incident 368 An operator must make such changes before or –if not practicable– as soon as possible before discharging again.

369 Additional Pesticide Management Measures for Decision Makers Required to Submit NOIs 370 In addition to these pesticide management measures, all decision makers who are required to submit NOIs must also 371 implement the following pesticide management measures.

372 Mosquito and Other Flying Insect Pest Control

373 1. Identify the Problem

374 Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 375 application for that calendar year, for each pest management area5, decision makers must do the following:

376  Establish densities for larval and adult mosquito or flying insect pest populations or identify environmental 377 condition(s), either current or based on historical data, to serve as action threshold(s) 6 for implementing 378 pest management measures;

5 In its draft permit, the EPA defines Pest Management Area as “The area of land, including any water, for which an operator has responsibility for and is authorized to conduct pest management activities as covered by this permit (e.g., for an operator that is a mosquito control district, the pest management area is the total area of the district).”

6 Action Threshold – the point at which pest populations or environmental conditions cannot be tolerated necessitating that pest control action be taken based on economic, human health, aesthetic, or other effects. An action threshold may be based on current and/or past environmental factors that are or have been demonstrated to be conducive to pest emergence and/or growth, as well as past and/or current pest presence. Action thresholds are those conditions that indicate both the need for control actions and the proper timing of such actions.

379  Identify target pest(s) to develop pest management measures based on developmental and behavioral 380 considerations for each pest; 381  Identify known breeding sites for source reduction, larval control program, and habitat management; 382  Analyze existing surveillance data to identify new or unidentified sources of mosquito or flying insect pest 383 problems as well as sites that have recurring pest problems, and; 384  In the event there are no data for the pest management area in the past calendar year, use other available 385 data as appropriate to meet the permit conditions. 386 2. Pest Management Options

387 The decision maker must evaluate the following management options, considering impact to water quality, impact to 388 non-target organisms, feasibility and cost effectiveness:

389  No action 390  Prevention 391  Mechanical or physical methods 392  Cultural methods 393  Biological control agents 394  Pesticides

395 3. Pesticide Use

396 Decision makers must:

397  Conduct larval and/or adult surveillance in an area that is representative of the pest problem or evaluate 398 existing larval surveillance data, environmental conditions, or data from adjacent area prior to each 399 pesticide application to assess the pest management area and to determine when the action threshold(s) is 400 met; 401  Reduce the impact on the environment and on non-target organisms by applying the pesticide only when 402 the action threshold(s) has been met; 403  In situations or locations where practicable and feasible for efficacious control, use larvicides as a preferred 404 pesticide for mosquito or flying insect pest control when the larval action threshold(s) has been met, and; 405  In situations or locations where larvicide use is not practicable or feasible for efficacious control, use 406 adulticides for mosquito or flying insect pest control when the adult action threshold(s) has been met.

407 Aquatic Weed, Algae and Pathogen Pest Control

408 1. Identify the Problem

409 Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 410 application for that calendar year, for each pest management area decision makers must:

411  Identify areas with pest problems and characterize the extent of the problems, including, for example, water 412 use goals not attained (e.g. wildlife habitat, fisheries, vegetation and recreation); 413  Identify target pest(s); 414  Identify possible factors causing or contributing to the pest problem (e.g., nutrients, invasive species, etc); 415  Establish any pest-and site-specific action threshold, and;

416  In the event there are no data for the pest management area in the past calendar year, use other available 417 data as appropriate to meet the permit conditions.

418 2. Pest Management Options

419 The decision maker must evaluate the following management options, considering impact to water quality, impact to 420 non-target organisms, feasibility and cost effectiveness:

421  No action 422  Prevention 423  Mechanical or physical methods 424  Cultural methods 425  Biological control agents 426  Pesticides

427 3. Pesticide Use

428 Decision makers must:

429  Conduct surveillance in an area that is representative of the pest problem prior to each pesticide application 430 to assess the pest management area and to determine when the action threshold(s) is met, and; 431  Reduce the impact on the environment and non-target organisms by applying the pesticide only when the 432 action threshold has been met.

433 Animal Pest and Pathogen Control

434 This part applies to discharges from the application of pesticides for control of animal pests as defined in Part 1.1.1.

435 1. Identify the Problem

436 Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 437 application for that calendar year, for each pest management area decision makers must:

438  Identify areas with pest problems and characterize the extent of the problems, including, for example, water 439 use goals not attained (e.g. wildlife habitat, fisheries, vegetation and recreation); 440  Identify target pest(s); 441  Identify possible factors causing or contributing to the problem (e.g., nutrients, invasive species); 442  Establish any pest-and site-specific action threshold, and; 443  In the event there are no data for the pest management area in the past calendar year, use other available 444 data as appropriate to meet the permit conditions.

445 2. Pest Management Options

446 The decision maker must evaluate the following management options, considering impact to water quality, impact to 447 non-target organisms, feasibility and cost effectiveness:

448  No action 449  Prevention 450  Mechanical or physical methods

451  Cultural methods 452  Biological control agents 453  Pesticides

454 3. Pesticide Use

455 Decision makers must:

456  Conduct surveillance in an area that is representative of the pest problem prior to each application to assess 457 the pest management area and to determine when the action threshold(s) is met, and; 458  Reduce the impact on the environment and non-target organisms by evaluating site restrictions, application 459 timing and application method in addition to applying the pesticide only when the action threshold(s) has 460 been met.

461 Forest Canopy Pest and Pathogen Control

462 1. Identify the Problem

463 Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 464 application for that calendar year, for each pest management area decision makers must:

465  Establish any pest-and site-specific action threshold; 466  Identify target pest(s) to develop pest management measures based on developmental and behavioral 467 considerations for each pest; 468  Identify current distribution of the target pest and assess potential distribution in the absence of pest 469 management measures, and; 470  In the event there are no data for the pest management area in the past calendar year, use other available 471 data as appropriate to meet the permit conditions.

472 2. Pest Management Options

473 The decision maker must evaluate the following management options, considering impact to water quality, impact to 474 non-target organisms, feasibility and cost effectiveness:

475  No action 476  Prevention 477  Mechanical or physical methods 478  Cultural methods 479  Biological control agents 480  Pesticides

481 3. Pesticide Use

482 The decision maker must:

483  Conduct surveillance in an area that is representative of the pest problem prior to each application to assess 484 the pest management area and to determine when the pest action threshold is met;

485  Reduce the impact on the environment and non-target organisms by evaluating the restrictions, application 486 timing, and application methods in addition to applying the pesticide only when the action threshold(s) has 487 been met, and; 488  Evaluate using pesticides against the most susceptible developmental stage.

489 Water Quality Based Effluent Limitations 490 All operators would be required to control discharges to meet applicable numeric and narrative State, Territory, or 491 Tribal water quality standards. If at any time the permittee becomes aware, or the EPA determines, that the 492 discharge causes or contributes to an excursion of applicable water quality standards, the permittee must take 493 corrective action.

494 Pesticide Discharge Management Plan (PDMP) 495 Decision makers that exceed NOI thresholds (except for those made in response to a declared pest emergency) and 496 are “large entities” must prepare a PDMP to document the selection and implementation of the control measures 497 employed to comply with the effluent limitations described above. The permit defines “large entities” as: (1) Any 498 public entity that serves a population greater than 10,000, or; (2) A private enterprise that exceeds the Small 499 Business Administration size standard as identified at: http://www.sba.gov/content/table-small-business-size- 500 standards. Decision makers are required to retain a copy of the current PDMP, along with all supporting documents. 501 These materials must be readily available upon request. The following information must be provided in the PDMP:

502 1. Pesticide discharge management team information 503 2. Problem identification

504 3. Pest management options evaluation 505 4. Spill and adverse incident response procedures 506 5. Documentation to support eligibility considerations under other Federal laws

507 6. Signature requirements.

508 Record Keeping and Annual Reports 509 All operators must keep records of: 510 1. Adverse incident reports 511 2. Any rationale for not reporting incidents as adverse 512 3. A copy of corrective action determinations 513 4. A copy of any spill or other non-permitted discharges 514 In addition to the record keeping requirements for all operators, any decision maker that is not a “large entity” and is 515 required to submit an NOI must also keep records of: 516 1. A copy of the NOI and any correspondence with EPA about the NOI 517 2. Documentation of equipment calibration (only if the decision maker is the applicator) 518 3. Information on each treatment area 519 Any decision maker that is a “large entity” and is required to submit an NOI must also keep records of:

520 1. A copy of the NOI and any correspondence with EPA about the NOI 521 2. A copy of the PDMP 522 3. A copy of annual reports submitted to EPA 523 4. Documentation of equipment calibration (only if the decision maker is the applicator) 524 5. Information on each treatment area 525 Any decision maker that is a “large entity” and is required to submit an NOI must also submit an annual report to 526 EPA. The annual report must contain: 527 1. Operator contact information 528 2. NPDES permit tracking number 529 3. For each treatment area: 530 a. Description of the treatment area 531 b. Identification of any waters receiving discharged pesticides

532 c. Pesticide use patterns 533 d. Total amount by application method of each pesticide product 534 e. Whether this pest control activity was addressed in the operator’s PDMP prior to pesticide 535 application 536 f. Any adverse incidents and a description of any corrective actions

537 Permit Inspections and Oversight 538 The operator would be required to allow EPA or an authorized representative to:

539 1. “Enter the premises where a regulated facility or activity is located or conducted, or where records must be 540 kept under the conditions of the permit” 541 2. “Have access to and copy, at reasonable times, any records that must be kept under the conditions of the 542 permit” 543 3. “Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), 544 practices, or operations regulated or required under the permit” 545 4. “Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise 546 authorized by the Clean Water Act, any substances or parameters at any location”

547 Monitoring 548 All operators would be required to monitor: 549 1. The amount of pesticide and frequency of pesticide applications necessary to control the target pest, using 550 equipment and application procedures appropriate for this task 551 2. Pesticide application activities to insure pesticide application equipment is maintained in proper operating 552 conditions by calibrating, cleaning and repairing such equipment and preventing leaks, spills or other 553 unintended discharges

554 3. Weather conditions in the treatment area to insure application is consistent with all applicable Federal 555 requirements

556 If a reportable spill occurs7, the operator must contact the National Response Center immediately. The operator must 557 document and retain information on the spill within 30 days.

558 The permit would also require visual monitoring assessments for adverse incidents. These visual assessments of the 559 application site must be performed during any operator post-application surveillance or efficacy check or during any 560 pesticide application when safety and feasibility allows. Adverse incidents are defined in the permit as follows 561 (emphasis is EPA’s):

562 An unusual or unexpected incident that an operator has observed upon inspection or of which the operator 563 otherwise becomes aware, in which: 564 1. There is evidence that a person or non-target organism has been exposed to a pesticide residue, and 565 2. The person or non-target organism suffered a toxic or adverse effect. 566 The phrase toxic adverse effects includes effects that occur within waters of the United States on non-target 567 plants, fish or wildlife that are unusual or unexpected as a result of exposure to a pesticide residue, and may 568 include:

569 a. Distressed or dead juvenile and small fishes 570 b. Washed up or floating fish 571 c. Fish swimming abnormally or erratically

572 d. Fish lying lethargically at water surface or in shallow water 573 e. Fish that are listless or nonresponsive to disturbance 574 f. Stunting, wilting or desiccation of non-target submerged or emergent aquatic plants

575 g. Other dead or visibly distressed non-target aquatic organisms 576 Any operator that has observed or been made aware of any adverse incident must notify EPA within 24 hours of that 577 operator becoming aware of such an incident. If an operator is unable to notify EPA within 24 hours that operator 578 must do so as soon as possible and provide a rationale as to why the incident could not be reported earlier. The 579 operator must then provide a written report to EPA within 30 days.

580 If an operator observes or is otherwise made aware of an adverse incident involving a listed resource, that operator 581 must immediately contact either USFWS or NMFS depending on whose jurisdiction the listed resource is under.

582 Corrective Actions

583 Situations Requiring Revision of Control Measures 584 If any of the following situations occur, operators must review and revise the evaluation and selection of their 585 control measures as necessary to insure that the situation is eliminated and will not be repeated in the future:

586 1. An unauthorized discharge associated with the application occurs

7 See; 40 CFR 110, 40 CFR 117, 40 CFR 302

587 2. The operator becomes aware that its control measures are not sufficient to meet applicable water quality 588 standards; 589 3. Monitoring activities indicate that: 590 a. The operator failed to use the lowest amount of pesticide product per application and optimum 591 frequency of pesticide applications necessary to control the target pest 592 b. The operator failed to perform regular maintenance activities to reduce unintended discharges of 593 pesticides 594 c. The operator failed to maintain pesticide application equipment in proper operating condition 595 d. An inspection or evaluation by an EPA official, or local, State, Territorial or Tribal entity 596 determines that modifications to the control measures are necessary to meet the non-numeric 597 effluent limits 598 e. The operator observes or are otherwise made aware of an adverse incident 599 If an operator determines that changes to its control measures are necessary, such changes must be made before the 600 next pesticide application if practicable, or if not, as soon as possible thereafter.

601 Effect of Corrective Action 602 The occurrence of a situations requiring revision of control measures (as defined above) may constitute a violation 603 of the permit. Correcting the situation does not necessarily absolve the operator of liability. The EPA will consider 604 the appropriateness and promptness of corrective action in determining enforcement responses to permit violations. 605 The EPA or a court may impose additional requirements and schedules of compliance.

606 Limitations on Coverage

607 Impaired Waters 608 States, Territories and Tribes are required to develop lists of impaired waters under section 303(d) of the CWA. 609 These impaired waters do not meet water quality standards that the States, Territories and Tribes have set for them. 610 The proposed PGP would not authorize the discharge of a pesticide pollutant to any impaired Water of the U.S. that 611 is impaired by the specific pesticide, or degradates of the pesticide, to be permitted to be discharged. In this case, the 612 operator would have to obtain coverage under an individual permit for such a discharge or chose some other means 613 of pest management.

614 Discharges Covered under other Permits 615 If a proposed discharge is already authorized under another permit, the operator is ineligible for coverage by the 616 PGP permit. If the intended discharge was included in a permit that has been or is in the process of being denied, 617 terminated or revoked by EPA in the past five years, the proposed discharge is ineligible for coverage under this 618 permit.

619

620

621 Approach to the Assessment

622 Section 7(a)(2) of the Endangered Species Act, as amended (16 U.S.C. 1536(a)(2)) requires Federal agencies, in 623 consultation with NMFS and U.S. Fish and Wildlife Service (the Services), to insure that any action they authorize, 624 fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species or 625 result in the destruction or adverse modification of critical habitat of endangered or threatened species. Section 626 7(a)(2) of the ESA also requires the Services and Federal action agencies to use the best scientific and commercial 627 data available during those consultations.

628 Overview of NMFS’ Assessment Framework

629 NMFS uses a series of sequential analyses to determine whether Federal agencies have insured that actions they 630 authorize, fund, or carry out are not likely to jeopardize the continued existence of endangered or threatened species 631 under its jurisdiction, or to critical habitat that has been designated for those species. The first analysis identifies 632 those physical, chemical or biotic aspects of proposed actions that are likely to have individual, interactive, or 633 cumulative direct and indirect effect on the environment (we use the term “potential stressors” for these aspects of 634 an action). As part of these analyses, we identify the spatial extent of any potential stressors and recognize that the 635 spatial extent of those stressors may change with time (the spatial extent of these stressors is the “action area” for a 636 consultation). During the consultation, we examine any measures an action agency proposes to use to reduce or 637 eliminate the number stressors or their intensity.

638 The second analysis determines whether endangered species, threatened species, or designated critical habitat are 639 likely to occur in the same space and at the same time as these potential stressors. If we conclude that such co- 640 occurrence is likely, we then try to estimate the nature of that co-occurrence (these represent our exposure analyses). 641 In this step of our analyses, we try to identify the number, age (or life stage), and gender of the individuals that are 642 likely to be exposed to an Action’s effects and the populations or subpopulations those individuals represent. During 643 the consultation, we examine any measures an action agency proposes to use to insure that endangered or threatened 644 species or designated critical habitat are not likely to be exposed to particular stressors or to reduce the intensity, 645 duration, frequency, or geographic extent of any exposure.

646 Once we identify which listed resources (endangered and threatened species and designated critical habitat) are 647 likely to be exposed to potential stressors associated with an action and the nature of that exposure, in the third step 648 of our analyses we examine the scientific and commercial data available8 to determine whether and how those listed 649 resources are likely to respond given their exposure (these represent our response analyses). In the final steps of our 650 analyses we establish the risks those responses pose to ESA listed species and designated critical habitat (these 651 represent our risk analyses).

652 Application of this Approach to this Consultation

653 In this case, we have consulted with, and provided assistance to, the EPA so that they can insure that discharges of 654 pesticides pollutants that would be authorized by their proposed PGP is not likely to jeopardize the continued 655 existence of endangered or threatened species under NMFS’ jurisdiction, or to destroy or adversely modify critical

8 Although Section 7(a)(2) of the Endangered Species Act of 1973, as amended, requires us to use the best scientific and commercial data available, at this stage of our analyses, we consider all lines of evidence, including the best scientific and commercial data as well as traditional ecological knowledge from Native American tribes and Pacific Islanders..

656 habitat that has been designated for those species. However, because of the spatial and temporal scope of the 657 proposed PGP, we were faced with substantial uncertainty about the number, location, timing, frequency and 658 intensity of the discharges that would be authorized by the permit, the formulations associated with the discharges 659 and the methods operators or applicators would employ during those discharges. The magnitude of this uncertainty 660 made it impossible for us to assess whether or to what degree EPA had insured that specific discharges complied 661 with the requirements of Section 7(a)(2) of the ESA.

662 Instead, we treated EPA’s proposed permit as a “program” that would authorize a wide array of activities 663 (discharges of pesticide pollutants) and asked whether and to what degree the EPA structured this “program” so that 664 it could insure that individual discharges and the collection of discharges were not likely to jeopardize the continued 665 existence of endangered and threatened species under NMFS’ jurisdiction or result in the destruction or adverse 666 modification of critical habitat that has been designated for those species. Here, “program structure” refers to the 667 decision-making processes, applications of standards and criteria (including standards of information and treatment 668 of uncertainty), feedback loops (through monitoring and enforcement), and controls (including permit conditions) 669 that agencies employ to ensure that agency decisions to authorize fund, or carry out specific actions or a class of 670 actions are likely to fulfill the mandates of the program before the agency authorizes, funds, or carries out those 671 actions. Generally, an agency’s decision-making process involves formal procedures (such as, regulatory procedures 672 and public noticing requirements), information standards (that is, agency “guidelines,” and the judgments agency 673 personnel make when they confront conflicting information and make judgments in the face of uncertainty).

674 When we conduct programmatic examinations of proposals such as the PGP, we ask whether or to what degree the 675 Federal action agency (in this case, the EPA) has constructed a decision-making process that would consider the 676 information, standards and criteria that NMFS would normally consider during consultations on specific actions. We 677 also ask whether that decision-making process is likely to produce outcomes that would reliably prevent or minimize 678 endangered or threatened species under NMFS’ jurisdiction and those species’ designated critical habitat from being 679 exposed to physical, chemical, or biotic stressors that would directly or indirectly reduce the reproductive success of 680 endangered or threatened individuals increase the extinction risks of the population(s) those individual might 681 represent, or increase the extinction risks of the species those populations comprise. Specifically, we ask:

682 1. Has the EPA structured the proposed PGP so that the EPA will know or be able to reliably estimate the 683 probable individual and cumulative effects of the discharges of pesticide pollutants on, over or near waters 684 of the U.S.? For example, has the EPA structured the PGP so that the EPA will know or be able to reliably 685 estimate the probable number of discharges that would be authorized by the program? Has the EPA 686 structured the proposed PGP so that the EPA will know or be able to reliably estimate the probable location 687 and timing of the discharges of pesticide pollutants that would be authorized by the program?

688 2. Has the EPA structured the proposed PGP so that the EPA will know or be able to reliably estimate the 689 physical, chemical, or biotic stressors that are likely to be produced as a direct or indirect result of the 690 discharges of pesticide pollutants that would be authorized by the PGP (that is, the stressors produced by 691 the actual discharges of pesticide pollutants on, over, or near waters of the U.S.)?

692 Alternatively, has the EPA structured the PGP so that the EPA will know or be able to determine reliably 693 whether or to what degree physical, chemical, or biotic stressors that are not authorized by the PGP have 694 been produced as a direct or indirect result of the discharges of pesticide pollutants that would be 695 authorized by the permit; or, has the EPA’s Office of Water structured the PGP so that the EPA will know 696 or be able to reliably estimate that discharges of pesticide pollutants that would be authorized by the

697 proposed general permit have not occurred in concentrations, frequencies, or for durations that exceed the 698 authorization of the proposed permit?

699 3. Has the EPA structured the PGP so that the EPA will know or be able to determine reliably whether or to 700 what degree operators, applicators, or decision makers have complied with the conditions, restrictions or 701 mitigation measures the proposed general permit requires when they discharge pesticide pollutants on, over 702 or near waters of the U.S.?

703 4. Has the EPA structured the PGP so that the EPA will know or be able to reliably estimate whether or what 704 degree specific endangered or threatened species or designated critical habitat are likely to be exposed to 705 (a) potentially harmful concentrations of the pesticide pollutants the proposed general permit would 706 authorize to be discharged on, over, or near waters of the U.S.; (b) Potentially harmful mixtures of the 707 pesticide pollutants the proposed general permit would authorize to be discharged on, over, or near waters 708 of the U.S., or; (c) to the ecological consequences of discharging pesticide pollutants on, over, or near 709 waters of the U.S.?

710 5. Has the EPA structured the PGP so that the EPA will continuously identify, collect, and analyze any 711 information that suggests that the discharges of pesticide pollutants on, over, or near waters of the United 712 States may have exposed endangered or threatened species or designated critical habitat to pesticide 713 pollutants at concentrations, intensities, durations, or frequencies that are known or suspected to produce 714 physical, physiological, behavioral, or ecological responses that have potential individual or cumulative 715 adverse consequences for individual organisms or constituent elements of critical habitat?

716 6. Has the EPA structured the PGP so that the EPA will employ an analytical methodology that considers (a) 717 the status and trends of endangered or threatened species or designated critical habitat; (b) the demographic 718 and ecological status of populations and individuals of those species given their exposure to pre-existing 719 stressors in different drainages and watersheds; (c) the direct and indirect pathways by which endangered or 720 threatened species or designated critical habitat might be exposed to the discharges of pesticide pollutants 721 on, over, or near waters of the U.S.; and (d) the physical, physiological, behavior, sociobiological, and 722 ecological consequences of exposing endangered or threatened species or designated critical habitat to 723 pesticide pollutants at concentrations, durations, or frequencies that are known or suspected to produce 724 physical, physiological, behavioral, or ecological responses, given their pre-existing demographic and 725 ecological condition?

726 7. Has the EPA structured the PGP so that the EPA will be able to minimize or prevent endangered or 727 threatened species or designated critical habitat from being exposed to discharges of pesticide pollutants (a) 728 at concentrations, durations, or frequencies that are potentially harmful to individual listed organisms, 729 populations, or the species; (b) in mixtures that are potentially harmful to individual listed organisms, 730 populations, or the species; or (c) to ecological consequences that are potentially harmful to individual 731 listed organisms, populations, the species or Primary Constituent Elements of designated critical habitat? 732 How quickly would the EPA be able to implement preventive measures?

733 Our assessment focused on whether and to what degree the EPA structured the PGP in ways that would prevent 734 endangered or threatened species or critical habitat that has been designated for those species from being exposed to 735 pesticide pollutants because exposures commonly trigger a cascade of events with ultimate consequences difficult to 736 prevent. For example, once individual plants and animals are exposed to a pesticide pollutant, their responses to the 737 exposure is controlled by the concentration, duration and frequency associated with the exposure, their sensitivity to

738 the pesticide pollutant, other physical, chemical, or biotic stressors that they are exposed to in the same time interval, 739 their pre-existing physiological State and their constitutional endowment. Because it is so difficult to prevent free- 740 ranging organisms from responding to anthropogenic stressors once they have been exposed, the most effective 741 management measures are designed to influence the exposure itself. For that reason, our assessment focuses on 742 whether and to what degree the PGP prevents endangered and threatened species and designated critical habitat from 743 being exposed to pesticide pollutants that would be authorized by the proposed Pesticide General Permit.

744 A Federal agency’s failure to insure that their actions comply with the requirements of Section 7(a)(2) of the ESA 745 may not be sufficient such that endangered or threatened species or designated critical habitat would necessarily be 746 adversely affected as a result of that failure. To address this possibility, we supplement our assessment by assessing 747 the probable consequences of the actions that would be authorized, funded or carried out by the Federal agency’s 748 program for endangered and threatened species and critical habitat that has been designated for those species. 749 Specifically, we:

750 1. Examine the four use patterns that would be authorized by the proposed PGP: 1) Mosquito (larvicides and 751 adulticides) and other flying insect pest control; (2) Aquatic weed, algae and pathogen control; (3) Aquatic 752 nuisance animal and pathogen control; and (4) Forest canopy pest and pathogen control.

753 These analyses summarize (a) Each use pattern; (b) The geographic distribution of use patterns (including 754 geographic differences in pesticides — as formulated — used); (c) Seasonal patterns associated with the 755 different use patterns in the different geographic areas; (d) The pesticides (formulations) typically used 756 with each pattern (particularly “pesticide pollutants”); (e) Any information on application rates with the 757 different use patterns (and with different formulations); and (f) Identify those components of the 758 formulations that would constitute “pollutants.”

759 2. We determine the degree of spatial overlap between use patterns, listed species and designated critical 760 habitat.

761 These analyses describe spatial overlap and any specific evidence (reports or studies) that particular 762 endangered or threatened species or designated critical habitat have been or are likely to be exposed to 763 those use patterns. However, this does not represent a detailed exposure analysis: we are merely 764 establishing whether or to what degree endangered or threatened species or designated critical habitat 765 overlap, in space and time (some pesticides may be used when migratory species are not in an area, for 766 example). Given spatial and temporal overlap, we then have reason to ask whether or to what degree EPA’s 767 proposed PGP can insure that these species or critical habitat are not likely to be exposed.

768 3. We conducted a detailed review of the literature available on the physical, physiological, behavioral, social, 769 and ecological responses of endangered or threatened species or constituent elements of critical habitat 770 given exposure to ingredients of pesticide formulations (active or otherwise), degradates or metabolites of 771 those formulations, or to the ecological effects (that is, effects resulting from changes in populations of 772 prey, predators, competitors, symbionts, etc.) of those formulations. Rather than discuss the literature for 773 each species, it would be equally effective to organize the data using species groups (for example, Pacific 774 Salmon; Sturgeon; Sea Turtles; etc.).

775 4. We summarize the probable consequences of the responses identified in the preceding section for 776 endangered and threatened species and designated critical habitat. Rather than discuss the literature for each

777 species, it would be only be necessary to discuss the risks of exposing species groups (for example, Pacific 778 Salmon; Sturgeon; Sea Turtles; etc.).

779 In this Opinion, we will present the results of these analyses before we present the results of our review and evaluate 780 EPA’s proposed PGP using the sequence of seven questions we identified at the beginning of this section. We use 781 the results of these combined analyses to determine whether and to what degree the EPA structured the PGP in ways 782 that would prevent jeopardy to endangered or threatened species or destruction or adverse modification of critical 783 habitat that has been designated for those species.

784 Evidence Available for the Consultation

785 We relied on two bodies of evidence for this consultation. We used the first body of evidence to determine whether 786 or to what degree the EPA structured the PGP so that EPA could insure that discharges of pesticide pollutants on, 787 over, or near waters of the United States were not likely to jeopardize the continued existence of endangered or 788 threatened species or result in the destruction or adverse modification of critical habitat that has been designated for 789 those species. After examining the proposed action for elements that insure against jeopardy, we used a second body 790 of evidence to assess the probable consequences of PGP-authorized discharges of pesticide pollutants on, over, or 791 near waters of the United States on endangered or threatened species or critical habitat that has been designated for 792 those species.

793 To build this first body of evidence, we searched for, gathered, and analyzed published and unpublished sources that 794 examine the effectiveness of EPA’s NPDES program and whether or to what degree the program has had (1) 795 adverse consequences for natural flora and fauna that have some dependency on the quality of waters of the United 796 States or (2) adverse consequences for species that have been listed as endangered or threatened. In particular, we 797 considered information contained in EPA’s Biological Evaluation for the Environmental Protection Agency’s (EPA) 798 Pesticides General Permit (PGP) and reviews of the effectiveness of the NPDES program and of existing general 799 permits. We also considered previous ESA Section 7 consultations on pesticide uses, species status reviews, listing 800 documents, recovery plans, reports on the status and trends of water quality, past and current research and 801 population dynamics modeling.

802 We supplemented this information by searching for NPDES compliance data in the Permit Compliance System 803 (PCS) and Integrated Compliance Information System - National Pollutant Discharge Elimination System (ICIS- 804 NPDES) databases9 of EPA’s Online Tracking Information System. These databases track the number of inspections 805 and enforcement actions over five years along with the number of quarters in non compliance and the frequency of 806 effluent exceedances over three years. We collected the data on January 5, 2011, which contained data that were 807 current as of October 21, 2010.

808 Our search targeted general and individual permits for entities where EPA was the permitting authority as identified 809 in the Description of the Proposed Action section of this Biological Opinion. The ICIS-NPDES query was run with 810 Compliance Status set to “on” since facilities with compliance status set to “off “ may have violations that have not 811 yet been entered into the database. The search also selected only active permits, which are those designated as 812 “effective” or under “administrative continuation.” Data were analyzed to evaluate the compliance and enforcement 813 patterns of EPA’s existing general and individual permits. To avoid bias from permits with multiple inspections due

9 The PCS was the original tracking mechanism for NPDES permits and currently includes data for 21 states. State by state, the data in PCS is being migrated into the newer ICIS-NPDES. The ICIS-NPDES currently tracks data for the remaining states not represented in PCS, U.S. territories, the Navajo Nation, and the St. Regis Tribe.

814 to compliance and enforcement actions, the frequency data were converted into presence/absence of inspection, 815 compliance and enforcement events.

816 We used a second body of evidence to assess the probable consequences of authorizing discharges of pesticide 817 pollutants on, over, or near waters of the United States on endangered or threatened species or critical habitat that 818 has been designated for those species. To assemble this body of information, we searched peer-reviewed scientific 819 literature, master’s theses and doctoral dissertations, government reports and studies and reports from commercial 820 vendors. Specifically, we searched the National Library of Medicine’s Hazardous Substance Data Bank, TOXNET, 821 Toxline, EXTOXNET pesticide information profiles and EPA’s National Information System for the Regional 822 Integrated Pest Management Centers (http://www.ipmcenters.org/Ecotox/DataAccess.cfm) for papers on the toxicity 823 of representatives of the 171 active ingredients whose discharges would be authorized by the proposed PGP.

824 We supplemented those searches with searches of web-sites maintained by the Departments of Agriculture and 825 mosquito control authorities of the six States, territories and Indian lands that would be included in the proposed 826 PGP. We specifically focused on data in the States of Idaho, Massachusetts, and New Hampshire because those 827 States overlap greatly with the distributions of clusters of endangered and threatened species under NMFS’ 828 jurisdiction (listed species of Pacific salmon in the case of Idaho and listed sturgeon in the case of Massachusetts 829 and New Hampshire). We searched those sites for information on the active ingredients or formulations those States, 830 Territories, and Tribal governments employ for the four use patterns included in the PGP, data on concentrations of 831 active ingredients, degradates, and mixtures on surface waters within the jurisdictional boundaries of those areas 832 where the EPA is the permitting authority, and data on the consequences of exposing endemic fish and wildlife to 833 those concentrations. These searches focused on identifying recent information on the biology, ecology, distribution, 834 status and trends of the threatened and endangered species considered in this Opinion. We considered the results of 835 these searches based on the quality of their study design, sample sizes and study results.

836 Action Area

837 EPA has defined the action area for the PGP consultation as all waters of the United States (as defined in 40 CFR 838 122.2) in States and Territories where the EPA is the permitting authority: Alaska, American Samoa, District of 839 Columbia, Guam, Idaho, Johnston Atoll, Massachusetts, Midway Island, New Hampshire, New Mexico, Northern 840 Mariana Islands, Oklahoma, Puerto Rico and Wake Island. In addition, the action area also includes all waters of the 841 United States receiving discharges from pesticide applications on Federal lands in Colorado, Delaware, Vermont 842 and Washington, as well as Indian lands nationwide. This area includes waters from the line of ordinary low water 843 along the coast extending seaward to a distance of three miles.

844 Because endangered or threatened species that are under the jurisdiction of NMFS do not occur in all of these 845 geographic areas (for example, New Mexico, Oklahoma, Colorado, and many Indian lands), the Action Area for this 846 consultation encompasses the areas where the geographic areas where EPA is the permitting authority overlaps with 847 the distribution of endangered or threatened species under NMFS’ jurisdiction. As a result, we do not include New 848 Mexico, Oklahoma, Colorado or Indian lands that do not overlap with the distribution of endangered or threatened 849 species under NMFS’ jurisdiction in the Action Area for this Opinion.

850 Although degradates and metabolites of some of the pesticide pollutants considered in this Opinion might be 851 transported more than three miles from our coastline at some concentration, the data we would need to follow a

852 pesticide as it is transported from a particular application site to reservoirs in coastal waters and the open ocean are 853 not available to us. Similarly, the data we would need to trace pesticides found in the tissues of marine and coastal 854 animals back to particular terrestrial applications are not available. Without some data or other information, we can 855 only acknowledge the probability of this kind of transport in our Opinion; we do not extend the action area more 856 than three miles from the coast of the coastal states, territories, and possessions included in the proposed PGP.

857 Status of the Species and Critical Habitat and Environmental Baseline

858 In this section of this Opinion we describe the threatened and endangered species10 and their designated critical 859 habitat that occur in the action area and may be exposed to the direct or indirect effects of discharges of pesticide 860 pollutants authorized by the proposed PGP. All listed species within NMFS’ jurisdiction are “aquatic” or “aquatic 861 dependent” and may occur within portions of the action area. NMFS has determined that the following species and 862 critical habitat “may be affected” by EPA’s proposed PGP (Table 2).

Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat.

Common Name Scientific Name Status

Cetaceans

Beluga whale* (Cook Inlet) Delphinapterus leucas Endangered

Blue whale Balaenoptera musculus Endangered Bowhead whale Balaena mysticetus Endangered Fin whale Balaenoptera physalus Endangered Humpback whale Megaptera novaeangliae Endangered

Killer Whale (Southern Resident*) Orcinus orca Endangered North Atlantic right whale* Eubalaena glacialis Endangered

North Pacific right whale* Eubalaena japonica Endangered

Sei whale Balaenoptera borealis Endangered Endangered Sperm whale Physeter macrocephalus

Pinnipeds Hawaiian monk seal*† Monachus schauinslandi Endangered Steller sea lion (Eastern population*) Eumetopias jubatus Threatened

10 We use the word “species” as it has been defined in section 3 of the ESA, which include “species, subspecies, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1533)”. Pacific salmon that have been listed as endangered or threatened were listed as “evolutionarily significant units (ESU)” which NMFS uses to identify distinct population segments (DPS) of Pacific salmon. Any ESU or DPS is a “species” for the purposes of the ESA.

Common Name Scientific Name Status

Steller sea lion (Western population*) Endangered Guadalupe fur seal Arctocephalus townsendi Threatened

Spotted seal (southern population) Phoca largha Threatened

Marine Turtles

Green sea turtle (Florida & Mexico’s Pacific coast colonies)* Chelonia mydas Endangered Green sea turtle (All other areas)* Threatened

Hawksbill sea turtle* Eretmochelys imbricate Endangered

Kemp’s ridley sea turtle Lepidochelys kempii Endangered

Leatherback sea turtle* (also **) Dermochelys coriacea Endangered

Loggerhead sea turtle Caretta caretta Threatened Olive ridley sea turtle (Mexico’s Pacific coast breeding colonies) Lepidochelys olivacea Endangered

Olive ridley sea turtle (All other areas) Threatened

Marine and Anadromous Fish Atlantic salmon (Gulf of Maine)* Salmo salar Endangered

Bocaccio Sebastes paucispinis Endangered

Canary rockfish Sebastes pinniger Threatened

Pacific eulachon/smelt (Southern**) Thaleichthys Pacificus Threatened

Yelloweye rockfish Sebastes ruberrimus Threatened

Chinook salmon (California coastal *) Oncorhynchus tshawytscha Threatened

Chinook salmon (Central Valley spring-run*) Threatened

Chinook salmon (Lower Columbia River*) Threatened

Chinook salmon (Upper Columbia River spring-run*) Threatened

Chinook salmon (Puget Sound*) Threatened

Chinook salmon (Sacramento River winter-run*) Endangered

Chinook salmon (Snake River fall-run*) Threatened

Chinook salmon (Snake River spring/summer-run*) Threatened

Chinook salmon (Upper Willamette River*) Threatened

Chum salmon (Columbia River*) Oncorhynchus keta Threatened

Common Name Scientific Name Status

Chum salmon (Hood Canal summer-run*) Threatened

Coho salmon (Central California coast*) Oncorhynchus kisutch Endangered

Coho salmon (Lower Columbia River) Threatened

Coho salmon (Southern Oregon & Northern California coast*) Threatened

Coho salmon (Oregon coast*) Threatened

Green sturgeon (Southern*) Acipenser medirostris Threatened

Gulf sturgeon* Acipenser oxyrinchus desotoi Threatened

Shortnose sturgeon Acipenser brevirostrum Endangered

Smalltooth sawfish* Pristis pectinata Endangered

Sockeye salmon (Ozette Lake*) Oncorhynchus nerka Threatened

Sockeye salmon (Snake River*) Endangered

Steelhead (Central California coast*) Oncorhynchus mykiss Threatened

Steelhead (California Central Valley*) Threatened

Steelhead (Lower Columbia River*) Threatened

Steelhead (Middle Columbia River*) Threatened

Steelhead (Northern California*) Threatened

Steelhead (Puget Sound) Threatened

Steelhead (Snake River*) Threatened

Steelhead (South-Central California Coast*) Threatened

Steelhead (Southern California*) Endangered

Steelhead (Upper Columbia River*) Threatened

Steelhead (Upper Willamette River*) Threatened

Marine Invertebrates

Black abalone** Haliotis cracherodii Endangered

White abalone Haliotis sorenseni Endangered Elkhorn coral* Acropora palmata Threatened

Staghorn coral* Acropora cervicornis Threatened

Marine Plant

Common Name Scientific Name Status

Johnson’s seagrass* Halophila johnsonii Threatened

863 † Proposed for revision (74 FR 27988). 864 NMFS and the U.S. Fish and Wildlife Service have joint jurisdiction over sea turtles, gulf sturgeon and Atlantic 865 salmon. To avoid redundancy, the U.S. Fish and Wildlife Service is generally responsible for endangered and 866 threatened sea turtles above mean higher high water (when they are on their nesting beaches as opposed to when 867 they are in or beyond the surf zone) and for Gulf sturgeon and Atlantic salmon when they are in fresh water (as 868 opposed to when they are in estuarine or marine water). Because the FWS is responsible for assessing the effects of 869 Federal actions on gulf sturgeon and Atlantic salmon while they are in fresh water and the proposed action 870 constitutes such a Federal action, the FWS is responsible for assessing the effects of EPA’s proposal on gulf 871 sturgeon, Atlantic salmon, and critical habitat that has been designated for gulf sturgeon pursuant to Section 7 (a)(2) 872 of the Act. We do not consider these species further in this Opinion.

873 Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action

874 As described in the Approach to the Assessment, NMFS uses two criteria to identify those endangered or threatened 875 species or critical habitat that are not likely to be adversely affected by discharges of pesticide pollutants that would 876 be authorized by the proposed PGP. The first criterion is exposure or some reasonable expectation of a co- 877 occurrence between one or more discharges of the pesticide pollutants that would be authorized by the proposed 878 PGP and a particular listed species or designated critical habitat. If we conclude that a listed species or designated 879 critical habitat is not likely to be exposed to those discharges through direct or indirect exposure pathways, we must 880 conclude that the critical habitat is not likely to be adversely affected by those activities. The second criterion is the 881 probability of a response given exposure, which considers susceptibility: species that may be exposed to the 882 discharges of pesticide pollutants that would be authorized by the proposed PGP, but that exposure is not likely to 883 have adverse physical, physiological, behavioral or ecological consequences for individuals that are likely to be 884 exposed. We applied these criteria to the species listed at the beginning of this section; the subsections that 885 immediately following this introductory paragraph summarize the results of those evaluations.

886 Based upon our analyses, we concluded that many of the endangered or threatened species listed in Table 2 are 887 either not likely to be exposed to discharges of pesticide pollutants that would be authorized by the proposed PGP or 888 are not likely to respond upon being exposed to those pesticide pollutants. Specifically, we would not expect the 889 following threatened or endangered species to respond physically, physiologically, behaviorally, or ecologically 890 given exposure to discharges associated with the proposed PGP:

891 Endangered and Threatened Marine Mammals 892 Blue whales, bowhead whales, fin whales, humpback whales, North Atlantic right whales, North Pacific right 893 whales, sei whales, sperm whales, Guadalupe fur seals, Hawaiian monk seals, spotted seal, western population of 894 Steller sea lion, and eastern population of Steller sea lion all occur or have been reported to occur within three miles 895 of the coast of one or more of the states, territories, or possessions that are included in the proposed PGP. As a 896 result, they occur within the Action Area for this consultation. Nevertheless, these species are either not likely to be 897 exposed to the direct or indirect effects of the discharges that would be authorized by the proposed PGP or they are

898 not likely to respond given exposure.

899 In North America, bowhead whales occur in the Beaufort, Bering and Chukchi Seas. Discharges associated with the 900 four use patterns authorized by the proposed PGP have not traditionally occurred in coastal areas of the U.S. 901 portions of the Beaufort and Chukchi Seas or the freshwater rivers that drain into the U.S. portions of the Beaufort 902 and Chukchi Seas, so bowhead whales are not likely to be exposed to pesticide residues in those geographic areas. 903 Similarly, discharges of pesticide pollutants are not likely to occur in coastal areas of the Bering Sea, although they 904 might occur in rivers that drain into the Bering Sea from the U.S. (for example, discharges associated with forest 905 treatments in the upper Yukon or Kuskokwim River basins). However, because wintering bowhead whales do not 906 appear to feed while wintering (like other large whales), they are not likely to be exposed to pesticide pollutants 907 through their diets or because of changes in the distribution or abundance of their forage base while in the Bering 908 Sea. As a result, we conclude that bowhead whales are not likely to be exposed to the direct or indirect effects of the 909 proposed action and we will not discuss this species further in this Opinion.

910 Because they breathe air (rather than respire through gills or similar anatomical structures), blue whales, fin whales, 911 humpback whales, North Atlantic right whales, North Pacific right whales, sei whales, sperm whales, Guadalupe fur 912 seals, Hawaiian monk seals, members of the western population of Steller sea lions, members of the eastern 913 population of Steller sea lions and spotted seals would only be exposed to pesticide pollutants through their diets or 914 because of changes in the distribution or abundance of their prey (tropic exposure). Because the distances that would 915 separate the foraging areas of these species from discharges of pesticide pollutants are substantial and any pesticide 916 pollutants would be degraded by exposure to sunlight, microbial action, and chemical processes in the freshwater 917 ecosystems,, estuaries, and coastal areas before they would enter the diets or affect the prey base of these species, 918 residual concentrations of those pesticide pollutants would probably be below concentrations that would have no 919 observed adverse effect on the marine mammals or their prey. As a result, we conclude that these species might be 920 exposed to residual concentrations of pesticide pollutants associated with the proposed PGP, but they are not likely 921 to be exposed at concentrations that are likely produce adverse physical, chemical, physiological, behavioral or 922 ecological responses in those species. As a result, these species are not likely to be adversely affected by the 923 proposed action and we will not discuss them further in this Opinion.

924 Endangered and Threatened Sea Turtles 925 Green sea turtles, hawksbill sea turtles, Kemp’s ridley sea turtles, leatherback sea turtles, loggerhead sea turtles, 926 olive ridley sea turtles all occur or have been reported to occur within three miles of the coast of one or more of the 927 states, territories, or possessions that are included in the proposed PGP. As a result, they occur within the Action 928 Area for this consultation. Nevertheless, these species are either not likely to be exposed to the direct or indirect 929 effects of the discharges that would be authorized by the proposed PGP or they are not likely to respond given 930 exposure.

931 Because, like marine mammals, sea turtles breathe air they could only be exposed to pesticide pollutants through 932 their diets or because of changes in the distribution or abundance of their prey (tropic exposure). Because the 933 distances that would separate the foraging areas of these species from discharges of pesticide pollutants are 934 substantial and any pesticide pollutants would be degraded by exposure to sunlight, microbial action, and chemical 935 processes in the freshwater ecosystems, estuaries, and coastal areas before they would enter the diets or affect the 936 prey base of these species, concentrations of those pesticide pollutants would probably be below concentrations that 937 would have no observed adverse effect on the sea turtles or their prey. As a result, we conclude that these species 938 might be exposed to concentrations of pesticide pollutants associated with the proposed PGP, but they are not likely 939 to be exposed at concentrations that are likely produce adverse physical, chemical, physiological, behavioral or

940 ecological responses in those species. As a result, these species are not likely to be adversely affected by the 941 proposed action and we will not discuss them further in this Opinion.

942 Endangered and Threatened Marine Fish 943 Bocaccio, canary rockfish, yelloweye rockfish, and smalltooth sawfish all occur or have been reported to occur in 944 coastal waters of the Action Area for this consultation. Nevertheless, these species are either not likely to be exposed 945 to the direct or indirect effects of the discharges that would be authorized by the proposed PGP or they are not likely 946 to respond given exposure.

947 Adult Georgia Basin bocaccio are most common at depths between 50 and 250 meters (160 and 820 feet); Georgia 948 Basin yelloweye rockfish are most common at depths between 91 and 180 meters (300 to 580 feet), although they 949 may occur in waters 50 to 475 meters (160 and 1,400 feet) deep; and canary rockfish are most common at depths 950 between 50 and 250 meters (160 and 820 feet) and may occur at depths of 425 meters (1,400 feet). The larvae of 951 these rockfish occur over areas that extend several hundred miles offshore where they are passively dispersed by 952 ocean currents and remain in larval form and as small juveniles for several months (Moser and Boehlert, 1991; Auth 953 and Brodeur, 2006). They appear to concentrate over the continental shelf and slope, but have been captured more 954 than 250 nautical miles offshore of the Oregon coast (Richardson et al., 1980; Moser and Boehlert, 1991). Larval 955 rockfish have been reported to be uniformly distributed at depths of 13, 37 and 117 meters below surface, so they 956 occur at depths that would bring them into sound fields produced by mid-frequency active sonar (Lenarz et al., 957 1991). Larval bocaccio had highest abundance at depths of 13 meters, but were also captured in the 117-meter 958 samples. Larval canary rockfish were captured at all three depths, but their densities were highest at the 37- and 177- 959 meter depths (Lenarz et al., 1991).

960 Because of the small size of the adult, breeding population of endangered and threatened rockfish, the large area 961 over which those larvae are likely to disperse, and their low relative frequency (that is, their density as a percent of 962 the density of the larvae of the more abundance species of rockfish), the density of larvae of endangered or 963 threatened rockfish will be very small offshore. Of the three species, Georgia Basin bocaccio are likely to have the 964 smallest densities because the size of the adult, breeding population in this species is very small and they have the 965 lowest fecundities of the three species. Nevertheless, the density of Georgia Basin canary rockfish and Georgia 966 Basin yelloweye rockfish are also very small relative to the densities of other, non-listed rockfish that have much 967 larger adult population sizes and fecundities that overlap with those of yelloweye rockfish (which are the most 968 fecund of the endangered or threatened rockfish).

969 Because of their geographic distribution and distance from source of pesticide applications, these species are not 970 likely to be exposed to the direct or indirect effects of the discharges that would be authorized by the proposed PGP 971 or they are not likely to be exposed at concentrations that would elicit adverse physical, chemical, physiological, 972 behavioral or ecological responses. As a result, these species are not likely to be adversely affected by the proposed 973 action and we will not discuss them further in this Opinion.

974 Smalltooth sawfish are tropical, marine and estuarine fish that inhabit shallow waters of inshore bars, mangrove 975 edges and seagrass beds, although they are occasionally found in deeper coastal waters (NMFS, 2000). Historically, 976 this species was common in the shallow waters of the Gulf of Mexico and along the eastern seaboard of the United 977 States to North Carolina (rare sightings of this sawfish occurred as far north as New York). Their current range is 978 limited to peninsular Florida, where they are only found with any regularity off the extreme southern portion of the 979 peninsula (off Everglades National Park and Florida Bay).

980 The proposed PGP would not apply to any of the states within the geographic distribution of smalltooth sawfish, but

981 it would apply to Indian lands within southern Florida (for example, Miccosukee Tribal lands and Seminole Tribal 982 lands). Any discharges of pesticide pollutants on those Tribal lands would have to be transported through Everglades 983 National Park or Big Cypress National Park where they would be degraded by exposure to sunlight, microbial action 984 and chemical processes in the wetlands that form those parks before they would enter the diets or affect smalltooth 985 sawfish or their prey base. Because of those processes, concentrations of these pesticide pollutants would probably 986 be below concentrations that would have no observed adverse effect on smalltooth sawfish or their prey. As a result, 987 we conclude that smalltooth sawfish might be exposed to concentrations of pesticide pollutants associated with the 988 proposed PGP, but they are not likely to be exposed at concentrations that are likely produce adverse physical, 989 chemical, physiological, behavioral or ecological responses in this species. As a result, smalltooth sawfish are not 990 likely to be adversely affected by the proposed action and we will not discuss them further in this Opinion.

991 Endangered and Threatened Marine Invertebrates 992 Elkhorn coral, staghorn coral, black abalone, and white abalone all occur or have been reported to occur in coastal 993 waters of the Action Area for this consultation. Nevertheless, these species are either not likely to be exposed to the 994 direct or indirect effects of the discharges that would be authorized by the proposed PGP or they are not likely to 995 respond given exposure.

996 Elkhorn and staghorn coral are found on coral reefs in southern Florida (particularly the Florida Keys), the Bahamas, 997 and throughout the Caribbean (Puerto Rico, St. John, St. Thomas, and St. Croix). The northern limit for elkhorn 998 coral is Biscayne National Park, Florida, and it extends south to Venezuela; it is not found in Bermuda. The northern 999 limit for staghorn coral is around Boca Raton, Florida.

1000 The proposed PGP would not apply to Florida, but it would apply to Indian lands within southern Florida (for 1001 example, Miccosukee Tribal lands and Seminole Tribal lands). In Florida, any discharges of pesticide pollutants on 1002 those Tribal lands would have to be transported through Everglades National Park or Big Cypress National Park 1003 where they would be degraded by exposure to sunlight, microbial action and chemical processes in the wetlands that 1004 form those parks before they would enter Florida Bay where they might interact with the Florida Keys. Because of 1005 those processes, concentrations of these pesticide pollutants would probably be below concentrations that would 1006 have no observed adverse effect on these coral. In Puerto Rico, the location of the elkhorn and staghorn corals are 1007 far enough from the location of potential discharge sites, the pesticide residues would be degraded by exposure to 1008 sunlight, microbial action, and chemical processes before they would enter the coastal waters in which the coral are 1009 located. As a result, we conclude that elkhorn and staghorn coral might be exposed to concentrations of pesticide 1010 pollutants associated with the proposed PGP, but they are not likely to be exposed at concentrations that are likely 1011 produce adverse physical, chemical, physiological, behavioral or ecological responses in this species. As a result, 1012 elkhorn and staghorn coral are not likely to be adversely affected by the proposed action and we will not discuss 1013 them further in this Opinion.

1014 Historically, black abalone occurred from about Point Arena in northern California to Bahia Tortugas and Isla 1015 Guadalupe, Mexico. Black abalone are rare north of San Francisco and south of Punta Eugenia, and unconfirmed 1016 sightings have been reported as far north as Coos Bay, Oregon. The northernmost documented record of black 1017 abalone (based on museum specimens) is from Crescent City (Geiger, 2004). Most experts agree that the current 1018 range of black abalone extends from Point Arena (Mendocino County, California, USA) south to Northern Baja 1019 California, Mexico. Black abalone may exist, but are considered extremely rare, north of San Francisco to Crescent 1020 City, California, USA and south of Punta Eugenia to Cabo San Lucas, Baja California, Mexico (P. Raimondi, 1021 personal communication).

1022 Historically, white abalone occurred from Point Conception, California to Punta Abreojos, Baja California, Mexico.

1023 They are the deepest-living of the west coast abalone species (Hobday and Tegner, 2000): they had been caught at 1024 depths of 20-60 m (66-197 ft) but had been reported as having had the highest abundance at depths of 25-30 m (80- 1025 100 ft (Cox, 1960). At these depths, white abalone are found in open low relief rock or boulder habitat surrounded 1026 by sand (Tutschulte, 1976). Over the past 30 years, the white abalone populations have declined precipitously in 1027 abundance primarily as a result of exploitation. Surveys conducted at Tanner and Cortez Banks have yielded 1028 numbers of white abalone in the low hundreds (Butler et al., 2006).

1029 Because of their geographic distribution and distance from source of pesticide applications, these species are not 1030 likely to be exposed to the direct or indirect effects of the discharges that would be authorized by the proposed PGP 1031 or they are not likely to be exposed at concentrations that would elicit adverse physical, chemical, physiological, 1032 behavioral or ecological responses. As a result, these species are not likely to be adversely affected by the proposed 1033 action and we will not discuss them further in this Opinion.

1034 Johnson’s Seagrass 1035 Johnson’s seagrass and the critical habitat for this species occur in Indian River lagoon along the Atlantic coast of 1036 southern Florida. The proposed PGP would not apply to Florida, but it would apply to Indian lands within southern 1037 Florida (for example, Miccosukee Tribal lands and Seminole Tribal lands). Any discharges of pesticide pollutants on 1038 those Tribal lands would have to be transported through Everglades National Park or Big Cypress National Park, not 1039 east to Indian River lagoon. As a result, Johnson’s seagrass are not likely to be exposed to the proposed action and, 1040 therefore, is not likely to be adversely affected by the proposal. We will not discuss this species further in this 1041 Opinion.

1042 Climate Change11

1043 There is now widespread consensus within the scientific community that atmospheric temperatures on earth are 1044 increasing (warming) and that these increases will continue for at least the next several decades (IPCC, 2001). The 1045 Intergovernmental Panel on Climate Change (IPCC) estimated that average global land and sea surface temperature 1046 has increased by 0.6°C (± 0.2) since the mid-1800s, with most of the change occurring since 1976. This temperature 1047 increase is greater than what would be expected given the range of natural climatic variability recorded over the past 1048 1,000 years (Crowley and Berner, 2001). The IPCC reviewed computer simulations of the effect of greenhouse gas 1049 emissions on observed climate variations that have been recorded in the past and evaluated the influence of natural 1050 phenomena such as solar and volcanic activity. Based on their review, the IPCC concluded that natural phenomena 1051 are insufficient to explain the increasing trend in land and sea surface temperature, and that atmospheric warming 1052 observed over the last 50 years is probably attributable to human activities (IPCC, 2001). Climatic models estimate 1053 that global temperatures would increase between 1.4 to 5.8°C from 1990 to 2100 if humans do nothing to reduce 1054 greenhouse gas emissions from current levels (IPCC, 2001).

1055 In the Northeast, annual average temperatures have increased by 2°F since 1970, with winter temperatures 1056 increasing by up to 4°F (Karl et al., 2009). Over the same time interval, the Northeast has experienced more days 1057 with temperatures greater than 90°F, a longer growing season, increased heavy precipitation, more winter 1058 precipitation falling as rain than as snow, reduced snowpack, earlier breakup of winter ice on lakes and rivers, earlier 1059 spring snowmelt resulting in earlier peak river flows, rising sea surface temperatures and sea level.

11 The threats posed by the direct and indirect effects of global climatic change are or will be common to all of the species we discuss in this Opinion. Because of this commonality, we present this single narrative rather than in each of the species-specific narratives that appear later in this section of our Opinion.

1060 Over the next several decades, the Northeast is expected to experience temperatures increases of another 2.5 to 4°F 1061 during the winter season and 1.5 to 3.5°F during the summer season as a result of carbon emissions that have already 1062 occurred (Burakowski et al., 2008; Karl et al., 2009). Forecasts beyond the middle of this century are sensitive to the 1063 level of carbon emissions produced today. If carbon emissions are not reduced, the length of the winter snow season 1064 would be cut in half across northern New York, Vermont, New Hampshire, and Maine, and reduced to a week or 1065 two in southern parts of the region; the Northeast would have fewer cold days during the winter and experience 1066 more precipitation (Hayhoe et al., 2007; Karl et al., 2009).

1067 Cities in the Northeast that currently experience temperatures greater than 100°F for a few days each summer would 1068 experience an average of 20 days of such temperatures each summer; some cities in the Northeast -- Hartford, 1069 Connecticut, and Philadelphia, Pennsylvania, for example -- would experience an average of 30 days of such 1070 temperatures each summer (Karl et al., 2009). Hot summer conditions would arrive three weeks earlier and last three 1071 weeks longer into the fall. Droughts lasting from one- to three-months are projected to occur as frequently as once 1072 each summer in the Catskill and Adirondack Mountains, and across the New England states. Finally, sea levels in 1073 this region are projected to rise more than the global average, which would increase coastal flooding and coastal 1074 erosion (Kirshen et al., 2008; Karl et al., 2009).

1075 In the Pacific Northwest, annual average temperatures have increased by about 1.5°F over the past century with 1076 some areas experiencing increases of up to 4°F (Karl et al., 2009; Littell et al., 2009; Elsner and Hamlet, 2010). 1077 Higher temperatures during the cool season (October through March) have caused more precipitation to fall as rain 1078 rather than snow and contribute to earlier snowmelt. The amount of snowpack remaining on April 1, which is a key 1079 indicator of natural water storage available for the warm season, has declined substantially throughout the Northwest 1080 region. In the Cascade Mountains, for example, the snowpack remaining on April 1 declined by an average of 25 1081 percent over the past 40 to 70 years; most of this decline is attributed to the 2.5°F increase in temperatures during 1082 the winter season over the time interval (Payne et al., 2004; Christensen et al., 2007).

1083 Over the next century, average temperatures in the Northwest Region are projected to increase by another 3 to 10°F, 1084 with higher emissions scenarios resulting in warming in the upper end of this range (Christensen et al., 2007; Karl et 1085 al., 2009). Increases in winter precipitation and decreases in summer precipitation are projected by many climate 1086 models, though these projections are less certain than those for temperature.

1087 There is consensus within the scientific community that warming trends will continue to alter current weather 1088 pattern and patterns of natural phenomena that are influenced by climate, including the timing and intensity of 1089 extreme events such as heat-waves, floods, storms, and wet-dry cycles. Oceanographic models project a weakening 1090 of the thermohaline circulation resulting in a reduction of heat transport into high latitudes of Europe, an increase in 1091 the mass of the Antarctic ice sheet, and a decrease in the Greenland ice sheet, although the magnitude of these 1092 changes remain unknown (Schmittner et al., 2005; Levermann et al., 2007). As ice melts in the Earth’s polar regions 1093 in response to increases in temperature, increases in the distribution and abundance of cold water are projected to 1094 influence oceanic currents, which would further alter weather patterns. In addition to influencing atmospheric 1095 temperatures and weather patterns, increases in greenhouse gases in the Earth’s atmosphere have begun to increase 1096 rates of carbon capture and storage in the oceans: as carbon dioxide levels in the oceans increase, the waters will 1097 become more acidic, which would affect the physiology of large marine animals and cause structures made of 1098 calcium carbonate (for example, corals) to dissolve (IPCC, 2001; Royal Society of London, 2005).

1099 Climate change is projected to have substantial direct and indirect effects on individuals, populations, species, and 1100 the structure and function of marine, coastal, and terrestrial ecosystems in the foreseeable future (McCarthy et al., 1101 2001; Parry et al., 2007) (see Table 3). Climate-mediated changes in the global distribution and abundance are

1102 expected to reduce the productivity of the oceans by affecting keystone prey species in marine ecosystems such as 1103 phytoplankton, krill, cephalopods.

1104 Increasing atmospheric temperatures have already contributed to changes in the quality of the freshwater, coastal 1105 and marine ecosystems that are essential to the survival and recovery of salmon populations and have contributed to 1106 the decline of populations of endangered and threatened species (Mantua et al., 1997; Karl et al., 2009; Littell et al., 1107 2009). Since the late 1970s, sea surface temperatures have increased and coastal upwelling -which is recognized as 1108 an important mechanism governing the production of both phytoplankton and zooplankton- has decreased resulting 1109 in reduced prey availability and poorer marine survival of Pacific salmon. Changes in the number of Chinook 1110 salmon escaping into the Klamath River between 1978 and 2005 corresponded with changes in coastal upwelling 1111 and marine productivity and the survival of Snake River spring/summer Chinook salmon and Oregon coho salmon 1112 has been predicted using indices of coastal ocean upwelling (Karl et al., 2009; Littell et al., 2009; Elsner and 1113 Hamlet, 2010). The majority (90%) of year-to-year variability in marine survival of hatchery reared coho salmon 1114 between 1985 and 1996 can be explained by coastal oceanographic conditions.

Table 3. Phenomena associated with projections of global climate change including levels of confidence associated with projections (adapted from IPCC 2001 and Campbell-Lendrum Woodruff 2007)

Confidence in Observed Changes Confidence in Projected Phenomenon (observed in the latter 20th Changes (during the 21st Century) Century) Higher maximum temperatures and a greater number Likely Very likely of hot days over almost all land areas Higher minimum temperatures with fewer cold days Very likely Very likely and frost days over almost all land areas Reduced diurnal temperature range over most land Very likely Very likely areas Increased heat index over most land areas Likely over many areas Very likely over most areas Likely over many mid- to high- More intense precipitation events latitude areas in Northern Very likely over many areas Hemisphere Likely over most mid-latitude Increased summer continental drying and associated continental interiors (projections Likely in a few areas are inconsistent for other areas) probability of drought

Increase in peak wind intensities in tropical cyclones Not observed Likely over some areas Increase in mean and peak precipitation intensities in Insufficient data Likely over some areas tropical cyclones 1115 1116 Changes in temperature and precipitation projected over the next few decades are projected to decrease snow pack, 1117 affect stream flow and water quality throughout the Pacific Northwest region (Stewart et al., 2004; Knowles et al., 1118 2006; Mote et al., 2008; Rauscher et al., 2008). Warmer temperatures are expected to reduce snow accumulation 1119 and increase stream flows during the winter, cause spring snowmelt to occur earlier in the year causing spring 1120 stream flows to peak earlier in the year, and reduced summer stream flows in rivers that depend on snow melt (most 1121 rivers in the Pacific Northwest depend on snow melt). As a result, seasonal stream flow timing will likely shift 1122 significantly in sensitive watersheds (Littell et al., 2009).

1123 The States of Idaho, Oregon, and Washington, are likely to experience increased forest growth over the next few

1124 decades followed by decreased forest growth as temperature increases overwhelm the ability of trees to make use of 1125 higher winter precipitation and higher carbon dioxide. In coastal areas, climate change is forecast to increase coastal 1126 erosion and beach loss (caused by rising sea levels), increase the number of landslides caused by higher winter 1127 rainfall, inundate areas in southern Puget Sound around the city of Olympia, Washington (Littell et al., 2009).

1128 Rising stream temperatures will likely reduce the quality and extent of freshwater salmon habitat. The duration of 1129 periods that cause thermal stress and migration barriers to salmon is projected to at least double by the 2080s for 1130 most analyzed streams and lakes (Littell et al., 2009). The greatest increases in thermal stress (including diseases 1131 and parasites which thrive in warmer waters) would occur in the Interior Columbia River Basin and the Lake 1132 Washington Ship Canal. The combined effects of warming stream temperatures and altered stream flows will very 1133 likely reduce the reproductive success of many salmon populations in Washington watersheds, but impacts will vary 1134 according to different life-history types and watershed-types. As more winter precipitation falls as rain rather than 1135 snow, higher winter stream flows scour streambeds, damaging spawning nests and washing away incubating eggs 1136 for Pacific Northwest salmon. Earlier peak stream flows flush young salmon from rivers to estuaries before they are 1137 physically mature enough for transition, increasing a variety of stressors including the risk of being eaten by 1138 predators.

1139 As a result of these changes, about one third of the current habitat for either the endangered or threatened Northwest 1140 salmon species will no longer be suitable for them by the end of this century as key temperature thresholds are 1141 exceeded (Littell et al., 2009). As summer temperatures increase, juvenile salmon are expected to experience 1142 reduced growth rates, impaired smoltification and greater vulnerability to predators.

1143 Ocean acidification caused by increasing amounts of carbon dioxide (CO2) in the Earth’s atmosphere poses a more 1144 wide-spread threat because virtually every major biological function has been shown to respond to acidification 1145 changes in seawater, including photosynthesis, respiration rate, growth rates, calcification rates, reproduction, and 1146 recruitment (London, 2005; Smith, 2008).

1147 At the same time as these changes in regional weather patterns and ocean productivity are expected to occur, the 1148 oceans are expected to being increasingly acidic. Over the past 200 years, the oceans have absorbed about half of the

1149 CO2 produced by fossil fuel burning and other human activities. This increase n carbon dioxide has led to a 1150 reduction of the pH of surface seawater of 0.1 units, equivalent to a 30 percent increase in the concentration of 1151 hydrogen ions in the ocean. If global emissions of carbon dioxide from human activities continue to increase, the 1152 average pH of the oceans is projected to fall by 0.5 units by the year 2100 (Royal Society of London, 2005).

1153 Although the scale of these changes would vary regionally, this resulting pH would be lower than the oceans have 1154 experienced over at least the past 420,000 years and the rate of change is probably one hundred times greater than 1155 the oceans have experienced at any time over that time interval. More importantly, it will take tens of thousands of 1156 years for ocean chemistry to return to a condition similar to that occurring at pre-industrial times (Royal Society of 1157 London, 2005).

1158 Marine species such as fish, larger invertebrates, and some zooplankton take up oxygen and lose respired carbon 1159 dioxide through their gills. Increased carbon dioxide levels and decreased pH would have a major effect on this 1160 respiratory gas exchange system because oxygen is much harder to obtain from surface seawater than it is from air 1161 (primarily because concentrations of oxygen are lower in water). The processes involved in supplying oxygen to the 1162 gills means that more carbon dioxide is removed from these aquatic animals than is removed from air breathing 1163 animals of a similar size. This more ready removal of carbon dioxide from body fluids means that the level and

1164 range of CO2 concentration in the bodies of water-breathing animals are much lower than is the case for air-

1165 breathing animals. As a result, large water breathing marine animals are more sensitive to changes in the carbon 1166 dioxide concentration in the surrounding seawater than are large air-breathing animals.

1167 This has important implications because higher ambient levels of carbon dioxide would acidify the body tissues and 1168 fluids of these species and affect the ability of their blood to carry oxygen. Experimental studies have demonstrated 1169 that acidosis of tissues decrease cellular energy use, lower respiratory activity, and lower rates of protein synthesis 1170 (Pörtner et al., 2000; Pörtner et al., 2004)(Pörtner et al 2000, 2004). These changes would reduce the performance 1171 of almost every physiological process of larger animals including their growth and reproduction (Langenbuch and 1172 Pörtner, 2002, 2003). By itself, this effect of climate change poses severe risks for endangered and threatened 1173 anadromous and marine species. In combination with changes in seasonal temperatures, formation of snow pack in 1174 terrestrial ecosystems, upwelling phenomena, and ocean productivity, ocean acidification would lead us to expect 1175 the status of endangered and threatened anadromous, coastal, and marine species to trend toward increasing decline 1176 over the next three or four decades.

1177 1178 Species and Critical Habitat Likely to be Adversely Affected by the Proposed Action

1179 The species’ narratives that follow focus on attributes of a species’ life history and distribution that influence the 1180 manner and likelihood that a particular species may be exposed to the proposed action, as well as the species 1181 potential response and risk when exposure occurs. Subsequent narratives summarize a larger body of information on 1182 worldwide distribution, as well as localized movements within fresh water, estuarine, intertidal, and ocean waters, 1183 population structure, feeding, diving and social behaviors.

1184 Each species’ narrative is followed by a description of its critical habitat (if applicable) with particular emphasis on 1185 any essential features of the habitat that may be exposed to the proposed action and may warrant special attention.

1186 Anadromous Fish Species

1187 Southern Pacific Eulachon Southern 1188 Eulachon are small smelt native to eastern North Pacific waters from the Bering Sea to Monterey Bay, California, or 1189 from 61º N to 31º N (1944; Eschmeyer et al., 1983; Minckley et al., 1986; Hay and McCarter, 2000). Eulachon that 1190 spawn in rivers south of the Nass River of British Columbia to the Mad River of California comprise the southern 1191 population of Pacific eulachon. This species is designated based upon timing of runs and genetic distinctions (Hart 1192 and McHugh, 1944; McLean et al., 1999; Hay and McCarter, 2000; McLean and Taylor, 2001; Beacham et al., 1193 2005).

1194 Adult eulachon are found in coastal and offshore marine habitats (Allen and Smith, 1988; Hay and McCarter, 2000; 1195 Willson et al., 2006). Larval and post larval eulachon prey upon phytoplankton, copepods, copepod eggs, mysids, 1196 barnacle larvae, worm larvae, and other eulachon larvae until they reach adult size (WDFW and ODFW, 2001). The 1197 primary prey of adult eulachon are copepods and euphausiids, malacostracans and cumaceans (Smith and Saalfeld, 1198 1955; Barraclough, 1964; Drake and Wilson, 1991; Sturdevant et al., 1999; Hay and McCarter, 2000)

1199 Although primarily marine, eulachon return to freshwater to spawn. Adult eulachon have been observed in several 1200 rivers along the west coast (Odemar, 1964; Moyle, 1976b; Minckley et al., 1986; Emmett et al., 1991; Jennings, 1201 1996; Wright, 1999; Larson and Belchik, 2000; Musick et al., 2000; WDFW and ODFW, 2001). For the southern 1202 population of Pacific eulachon, most spawning is believed to occur in the Columbia River and its tributaries as well 1203 as in other Oregonian and Washingtonian rivers (Emmett et al., 1991; Musick et al., 2000; WDFW and ODFW, 1204 2001). Southern species fish likely take less time to mature than do fish from more northerly rivers and generally

1205 spawn earlier in southern portions of their range than in northern rivers (Clarke et al., 2007).

1206 Spawning takes place at differential time and temperatures, depending upon the river system involved (Willson et 1207 al., 2006). In the Columbia River and further south, spawning occurs from late January to March, although river 1208 entry occurs as early as December (Hay and McCarter, 2000). The peak of eulachon runs in Washington State is 1209 from February through March. Alaskan runs occur in May and river entry may extend into June (Hay and McCarter, 1210 2000). Females lay eggs over sand, course gravel or detritial substrate. Eggs attach to gravel or sand and incubate for 1211 30 to 40 days after which larvae drift to estuaries and coastal marine waters (Wydoski and Whitney, 1979).

1212 Eulachon generally die following spawning (Scott and Crossman, 1973). The maximum known lifespan is 9 years of 1213 age, but 20 to 30% of individuals live to 4 years and most individuals survive to 3 years of age, although spawning 1214 has been noted as early as 2 years of age (Barraclough, 1964; Parente and Snyder, 1970; Langer et al., 1977; 1215 Wydoski and Whitney, 1979a; Barrett et al., 1984; Hugg, 1996; Hay and McCarter, 2000; WDFW and ODFW, 1216 2001). The age distribution of spawners varies between river and from year-to-year (Willson et al., 2006).

1217 Status and Trends 1218 The southern population of Pacific eulachon was listed as threatened on March 18, 2010 (75 FR 13012). It is 1219 considered to be at moderate risk of extinction throughout its range because of a variety of factors, including 1220 predation, commercial and recreational fishing pressure (directed and bycatch), and loss of habitat. Further 1221 population decline is anticipated to continue as a result of climate change and bycatch in commercial fisheries. 1222 However, because of their fecundity, eulachon are assumed to have the ability to recover quickly if given the 1223 opportunity (Bailey and Houde, 1989).

1224 Eulachon formerly experienced widespread, abundant runs and have been a staple of Native American diets for 1225 centuries along the northwest coast. However, such runs that were formerly present in several California rivers as 1226 late as the 1960s and 1970s (i.e., Klamath River, Mad River and Redwood Creek) no longer occur (Larson and 1227 Belchik, 2000). This decline likely began in the 1970s and continued until, in 1988 and 1989, the last reported 1228 sizeable run occurred in the Klamath River and no fish were found in 1996, although a moderate run was noted in 1229 1999 (Larson and Belchik, 2000; Moyle, 2002). Eulachon have not been identified in the Mad River and Redwood 1230 Creek since the mid-1990s (Moyle, 2002).

1231 Critical Habitat 1232 Critical habitat has been proposed for the southern population of Pacific eulachon (76 FR 515).

1233 Threats 1234 Natural threats. Numerous predatory fishes, marine mammals, birds and terrestrial mammals prey on eulachon 1235 (Clemens et al., 1936; Hart, 1973; Scott and Crossman, 1973; Jeffries, 1984; Drake and Wilson, 1991; Yang and 1236 Nelson, 1999; Willson et al., 2006). The high fat content of eulachon make them a valuable prey for white sturgeon 1237 in the Columbia and Fraser rivers during winter (Willson et al., 2006).

1238 Anthropogenic threats. Fisheries harvests are likely a major contributor to eulachon decline. The best available 1239 information for catches comes from the Columbia River, where catches have been as high as 5.7 million pounds per 1240 year, but averaged near 2 million pounds from 1938 to 1993 (Wydoski and Whitney, 1979). Since 1993, catches 1241 have not exceeded 1 million pounds annually and the median catch has been 43,000 pounds (97.7% reduction in 1242 catch), even when effort is accounted for (WDFW and ODFW, 2001). Bycatch from fishing along U.S. and 1243 Canadian coasts has also been high, composing up to 28% of the total catch by weight (Hay and McCarter, 2000; 1244 DFO, 2008).

1245 Construction projects have also had a negative impact on eulachon stocks. Dams, such as the Bonneville Dam on the 1246 Hood River, have blocked eulachon from moving into former spawning habitat (Smith and Saalfeld, 1955). Such 1247 damming projects also alter sedimentation and flow dynamics that eulachon have developed around in their 1248 evolution. River substrate composition, likely critical to successful spawning, is also altered by dams. The 1249 impoundment of water tends to raise water temperatures; a factor that spawning eulachon are particularly sensitive 1250 to (NMFS, 2008c). Eulachon ecotoxicological studies show high contaminant burdens, particularly of arsenic and 1251 lead (Futer and Nassichuk, 1983; Rogers et al., 1990; EPA, 2002).

1252 Sturgeon

1253 Sturgeon (Acipenseridae) are one of the oldest Osteichthyes (bony fish) families in existence. They are native to 1254 rivers and coastal areas of North America. The two listed sturgeon, discussed below, are part of the genus Acipenser 1255 and share some common characteristics. Members of the genus have a characteristic external morphology 1256 distinguished by the inferior mouth typical of bottom-feeders. Most species are anadromous, although a few species 1257 are entirely fresh water and many species can survive if they become land-locked. Both listed species (discussed 1258 below) are anadromous and tend to remain in coastal waters. As an anadromous fish, sturgeon spawn in fresh water 1259 and feed and rear in marine or estuarine waters. Sturgeon are capable of many reproductive cycles and tend to be 1260 very long-lived.

1261 Threats 1262 Natural Threats. Birds and larger freshwater fish feed on eggs and larvae, while sharks, pinnipeds and other large 1263 predators prey on marine adult and subadult fish.

1264 Anthropogenic Threats. In general sturgeon have declined from the combined effects from the construction of dam 1265 and water diversion projects, dredging and blasting, water pollution and fisheries. As a result of their longevity, slow 1266 rate of growth and delayed maturation, and bottom-feeding habits, in general sturgeon have a life history that makes 1267 them susceptible to over-harvest and exposure to (and the accumulation of) contaminants. Many sturgeon also do 1268 not spawn on an annual basis, but may spawn every other year or even more infrequently. Thus even small increases 1269 in mortality can affect population productivity (Heppell, 2007). The body form and feeding habits of sturgeon may 1270 expose them to a different suite of contaminants than pelagic fish due to their affinity with bottom sediments. 1271 Exposure pathways would include a dissolved or water borne exposure, but for sediment-associated contaminants 1272 the sediment exposure pathway may be more significant. Benthic dwelling fish may be exposed through the direct 1273 contact with sediment, exposed to the boundary layer over the sediment, and commonly have a higher rate of 1274 incidental ingestion and exposure through direct consumption of sediments.

1275 Southern Green Sturgeon

1276 Distribution and Description of the Listed Species 1277 Green sturgeon occur along the west coast of North America from Mexico to the Bering Sea (Adams et al., 2002; 1278 Colway and Stevenson, 2007). Distinguished primarily according to genetic differences and spawning locations, 1279 NMFS recognizes two species of green sturgeon: a northern species whose populations are relatively healthy, and a 1280 Southern species that has undergone significant decline (Adams et al., 2007). NMFS listed the Southern species of 1281 green sturgeon as threatened in 2006 (71 FR 17757).

1282 Green sturgeon are considered one of the most marine-oriented sturgeon species, spending much of their lives in 1283 coastal marine waters, estuaries and bays. Early life stages rear in fresh water, and adults return to fresh water when 1284 they are 15 years old or older to spawn. Across the species’ range only three rivers contain documented spawning

1285 (Moyle et al., 1992; CDFG, 2002). Outside of natal rivers, the distribution of southern green sturgeon and northern 1286 green sturgeon overlap. Both the northern species and southern species of green sturgeon occupy coastal estuaries 1287 and coastal marine waters from southern California to Alaska, including Humbolt Bay, the lower Columbia River 1288 estuary, Willapa Bay, Grays Harbor and southeast Alaska. In general, green sturgeon are more common north of 1289 Point Conception, California.

1290 Green sturgeon are spring spawners and initiate spawning migrations as early as March. Fish in the Klamath River 1291 have been observed initiating migrations between April and June, Rogue River fish between May and July, whereas 1292 Heubein et al., (2009) observed Sacramento River fish making their upstream migrations between March and April. 1293 Spawning generally occurs in deep pools of large rivers or off-channel coves (Moyle et al., 1992; Moyle et al., 1294 1995; Rien et al., 2001; Heublein et al., 2009). Fish then tend to aggregate in deep pools, where they will over- 1295 summer before outmigrating in the fall, although some fish have been observed outmigrating relatively soon after 1296 presumed spawning events (Heublein et al., 2009). In the Sacramento River adult green sturgeon spawn in late 1297 spring and early summer (Heublein et al., 2009). It appears that specific habitat for spawning includes large 1298 cobblestones (where eggs can settle between), although spawning is known to occur over clean sand or bedrock.

1299 Green sturgeon are a long-lived fish and likely live for 60 to 70 years (Moyle, 2002). Age at first maturation for 1300 green sturgeon is at least 15 years old, after which adults likely return every 2 to 5 years to spawn (Adams et al., 1301 2002; Van Eenennaam et al., 2006). Most male spawners are young (17 to 18 years) while females on the spawning 1302 grounds are often older (27 to 28 years).

1303 Green sturgeon spend their first 1 to 4 years in their natal streams and rivers (Nakamoto et al., 1995; Beamesderfer 1304 and Webb, 2002), although they are believed to be physiologically adapted to sea water survival at 6 months of age 1305 (Allen and Cech, 2007; Allen and J.J. Cech, 2007; Allen et al., 2009). Larvae are active at night, a behavior that 1306 likely reduces predation and avoids being moved downstream more than necessary (Cech Jr. et al., 2000). Green 1307 sturgeon larvae grow very rapidly, reaching about 300 mm by age one (Deng, 2000). While in fresh water, juveniles 1308 feed on a variety of fishes and invertebrates (Moyle et al., 1992). One juvenile from the Sacramento-San Joaquin 1309 estuary was found to have preyed most commonly upon opisthobranch mollusks (Philline sp.), with bay shrimp 1310 (Crangon sp.) and overbite clams (Potamocorbula amurensis) as secondary prey. Other juveniles in the Sacramento 1311 River delta feed on opossum shrimp (Neomysis mercedis) and Corophium amphipods (Radtke, 1966).

1312 Upon outmigration from fresh water, subadult green sturgeon disperse widely along through continental shelf waters 1313 of the west coast within the 110 meter contour (Moyle et al., 1992; Erickson and Hightower, 2007). It appears that 1314 green sturgeon generally distribute north of the river mouth from whence they emerge as juveniles during fall and 1315 move into bays and estuaries during summer and fall (Moser and Lindley, 2007; Israel et al., 2009). The limited 1316 feeding data available for subadult and adult green sturgeon show that they consume benthic invertebrates including 1317 shrimp, clams, chironomids, copepods, mollusks, amphipods and small fish ((Houston, 1988; Moyle et al., 1992). 1318 Sturgeon use electroreception to locate prey. Olfaction and taste may also be important to foraging, while vision is 1319 thought to play a minor role in prey capture (Miller, 2004).

1320 Status and Trends 1321 NMFS listed the southern population of the North American green sturgeon as threatened on April 7, 2006 (71 FR 1322 17757). Trend data for green sturgeon is severely limited. Available information comes from two predominant 1323 sources, fisheries and tagging. Only three data sets were considered useful for the population time series analyses by 1324 NMFS’ biological review team: the Klamath Yurok Tribal fishery catch, San Pablo sport fishery tag returns and 1325 Columbia River commercial landings (NMFS, 2005c). Using San Pablo sport fishery tag recovery data, the 1326 California Department of Fish and Game produced a population time series estimate for the southern species. San

1327 Pablo data suggest that green sturgeon abundance may be increasing, but the data showed no significant trend. The 1328 data set is not particularly convincing, however, as it suffers from inconsistent effort and since it is unclear whether 1329 summer concentrations of green sturgeon provide a strong indicator of population performance (NMFS, 2005c). 1330 Although there is not sufficient information available to estimate the current population size of southern green 1331 sturgeon, catch of juveniles during State and Federal salvage operations in the Sacramento delta are low in 1332 comparison to catch levels before the mid-1980s.

1333 Critical Habitat 1334 On October 9, 2009, NMFS designated critical habitat for southern green sturgeon (74 FR 52300). The geographical 1335 area identified as critical habitat is based upon the overlapping distribution of the southern and northern species, and 1336 encompasses all areas where the presence of southern green sturgeon have been confirmed or where their presence is 1337 likely. Therefore the geographical area defined as critical habitat is the entire range of the biological species, green 1338 sturgeon, from the Bering Sea, AK, to Ensenada, Mexico. Specific fresh water areas include the Sacramento River, 1339 Feather River, Yuba River and the Sacramento-San Joaquin Delta. Specific coastal bays and estuaries include 1340 estuaries from Elkhorn Slough, California, to Puget Sound, Washington. Coastal marine areas include waters along 1341 the entire biological species’ range within a depth of 60 fathoms. The principal biological or physical constituent 1342 elements essential for the conservation of southern green sturgeon in fresh water include: food resources; substrate 1343 of sufficient type and size to support viable egg and larval development; water flow, water quality such that the 1344 chemical characteristics support normal behavior, growth and viability; migratory corridors; water depth; and 1345 sediment quality. Primary constituent elements of estuarine habitat include food resources, water flow, water 1346 quality, migratory corridors, water depth and sediment quality. The specific primary constituent elements of marine 1347 habitat include food resources, water quality and migratory corridors.

1348 Critical habitat of the Southern species of green sturgeon is threatened by several anthropogenic factors. Four dams 1349 and several other structures currently are impassible for green sturgeon to pass on the Sacramento, Feather and San 1350 Joaquin rivers, preventing movement into spawning habitat. Threats to these riverine habitats also include increasing 1351 temperature, insufficient flow that may impair recruitment, the introduction of striped bass that may eat young 1352 sturgeon and compete for prey, and the presence of heavy metals and contaminants in the river.

1353 Final Protective Regulations 1354 The final 4(d) rule for southern green sturgeon was issued June 2, 2010, and became effective July 2, 2010 (75 FR 1355 30714). Under this rule, the prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G) are applied for the 1356 Southern species, including all the ESA section 9(a)(1)(B) and 9(a)(1)(C) prohibitions except for: 1) Certain Federal, 1357 State or private-sponsored research or monitoring activities; 2) Emergency fish rescue and salvage activities; 3) 1358 Habitat restoration activities; 4) Commercial and recreational fisheries activities, if conducted under approved 1359 Fisheries Management and Evaluation Plans, and; 5) Certain Tribal fishery management activities.

1360 Threats 1361 Natural Threats. Green sturgeon eggs and larvae are likely preyed upon by a variety of larger fish and animals, 1362 while sub-adult and adult sturgeon may occasionally be preyed upon by shark sea lions, or other large body 1363 predators (NMFS, 2005c).

1364 Anthropogenic Threats. The principle threat to southern green sturgeon comes from a drastic reduction in available 1365 spawning area from impassible barriers (e.g., Oroville, Shasta and Keswick dams). Other threats include potentially 1366 lethal temperature limits, harvest, entrainment by water projects and toxins and invasive species (Adams et al., 1367 2007; Erickson and Webb, 2007; Lackey, 2009). Since this species is composed of a single spawning population 1368 within the Sacramento River, stochastic variation in environmental conditions and significant fluctuations in

1369 demographic rates increases the risk of extinction for this species.

1370 Studies from other sturgeon species indicate that sturgeon readily bioaccumulate contaminants. White sturgeon from 1371 the Kootenai River have been found to contain aluminum, arsenic, cadmium, chromium, cobalt, copper, iron, lead, 1372 manganese, mercury, nickel, selenium, zinc, DDE, DDT, PCBs and other organochlorines (Kruse and Scarnecchia, 1373 2001). Mercury has also been identified from white sturgeon of the lower Columbia River (Webb et al., 2006). 1374 Numerous organochlorines, including DDT, DDD, DDE, chlordane and dieldrin have also been identified in these 1375 fish (Foster et al., 2001). Observed concentrations are likely sufficient to influence reproductive physiology.

1376 Shortnose Sturgeon

1377 Distribution and Description of the Listed Species 1378 Shortnose sturgeon occur along the Atlantic Coast of North America, from the St. John River in Canada, south to the 1379 St. Johns River in Florida. NMFS’ recovery plan (1998c) recognized 19 wild populations based on their strong 1380 fidelity to their natal streams and several captive populations (from a Savannah River broodstock) that are 1381 maintained for educational and research purposes (NMFS, 1998c).

1382 Shortnose sturgeon are generally anadromous, but may migrate between fresh and salt water for reasons other than 1383 spawning. They can also maintain freshwater resident populations. In general, shortnose sturgeon are benthic fish 1384 that occupy the deep channel sections of large rivers or estuarine waters of their natal rivers and will migrate 1385 considerable distances. Dadswell (1979 in Dadswell et al. 1984) observed shortnose sturgeon traveling up 160 km 1386 between tagging and recapture in the St. John estuary and it is not uncommon for adults to migrate 200 km or more 1387 to reach spawning areas (Kynard, 1997). After spawning in the spring, adults tend to migrate rapidly downstream to 1388 feeding areas in the estuary or to tidally influenced fresh water (see Dadswell et al., 1984a).

1389 Young-of-the year shortnose sturgeon move downstream after hatching, remaining in fresh water for about 1 year 1390 (Kynard, 1997). Initially, young shortnose sturgeon will reside short distances from spawning areas and as they 1391 grow will tend to move further downstream (see Dadswell et al., 1984a). By age 3 or older juvenile sturgeon will 1392 spend a large portion of their year at the salt- and fresh water interface of coastal rivers (NMFS, 1998b).

1393 Habitat use in fresh water during summer and winter months overlaps between adult and age-1 shortnose sturgeon 1394 (O'Herron II et al., 1993; Kynard et al., 2000; Moser et al., 2000). Kynard et al., (2000) found that both age classes 1395 preferred deep-water curves with sand and cobble to higher velocity runs, particularly during winter months and 1396 shifted to channel habitat as water temperatures rose in summer months. In the Connecticut River and the 1397 Merrimack, Kynard et al., (2000) found shortnose generally used water about 3 meters deep, ranging from less than 1398 a meter to about 15 meters deep.

1399 Female shortnose sturgeon spawn every three to five years. Males spawn every other year, although some may 1400 spawn in consecutive years (Dovel et al., 1992; Collins and Smith, 1993; Kieffer and Kynard, 1993; NMFS, 1998a). 1401 Spawning typically occurs during the spring, between mid-March and late May. Spawning areas are often located 1402 just below the fall line at the farthest accessible upstream reach of the river (NMFS, 1998a).

1403 Male shortnose sturgeon in southern rivers will first spawn between ages 2 and 5, while fish as far north as the St. 1404 John River, Canada first spawn at about 10 to 11 years of age (Dadswell et al., 1984a; NMFS, 1998a). Age at first 1405 spawning for female shortnose sturgeon varies from about age 6 to 18 years, like males, varying on a latitudinal 1406 cline (Dadswell et al., 1984a; NMFS, 1998a). In general, fish in the northern portion of the species’ range live 1407 longer than individuals in the southern portion of the species’ range (Gilbert, 1989). The maximum age reported for

1408 a shortnose sturgeon in the St. John River in New Brunswick is 67 years (for a female), 40 years for the Kennebec 1409 River, 37 years for the Hudson River, 34 years in the Connecticut River, 20 years in the Pee Dee River and 10 years 1410 in the Altamaha River (Gilbert, 1989). Male shortnose sturgeon appear to have shorter life spans than females 1411 (Gilbert, 1989).

1412 Like all sturgeon, shortnose have ventrally located, sucker-like mouths, structured for feeding on benthos. Foraging 1413 generally occurs in areas with abundant macrophytes, where juvenile and adult shortnose sturgeon feed on 1414 amphipods, polychaetes and gasteropods (Dadswell et al., 1984b; Moser and Ross, 1995; NMFS, 1998a). Sturgeon 1415 use electroreception to identify prey. Olfaction and taste are also likely important to foraging, while vision is thought 1416 to play a minor role (Miller, 2004). As adults, a significant portion of a shortnose sturgeon’s diet may consist of 1417 freshwater mollusks (Dadswell et al., 1984b). Based on observations by Kynard et al., (2000), shortnose sturgeon 1418 will consume the entire mollusk, excreting the shell after ingestion.

1419 Status and Trends 1420 Shortnose sturgeon were listed as endangered on March 11, 1967, under the Endangered Species Preservation Act 1421 (32 FR 4001) and remained on the endangered species list with enactment of the ESA of 1973, as amended. 1422 Pollution and overfishing, including bycatch in the shad fishery, were listed as principal reasons for the species' 1423 decline. Shortnose sturgeon are listed as an endangered species throughout all of its range

1424 Northern shortnose sturgeon population abundances are generally larger than southern populations (Kynard, 1997). 1425 Updated population estimates also suggest that three of the largest populations (Kennebec, Hudson and Delaware 1426 River) may be increasing or stable, although data is limited. The New York (Hudson River) shortnose sturgeon 1427 population is the largest extant population of this species and, based on available data, appears to have increased 1428 (Bain et al., 2000). The most recent population estimate indicates this population consists of about 61,000-shortnose 1429 sturgeon (95% confidence interval [CI] was between 52,898 and 72,191 fish (Bain et al., 2000). A comparison of the 1430 Bain estimate to the 1979/1980 population estimate of spawning adults by Dovel et al., (1992); about 13,000 fish) 1431 led Bain et al., (2000) to conclude that the population had made a dramatic increase (about 400% increase) between 1432 1979 and 1997. While still evidence of an increasing population, a comparison of total population estimates 1433 (30,000:60,000) would suggest the population has only doubled in size during the study years. Similarly, the 1434 Kennebec River population appears to be increasing. The most recent estimate for this population is about 9,500 fish 1435 (Squiers, 2003), suggesting the population has increased by about 30% in about a twenty year period.

1436 Data from the Delaware River suggest that the population may be stable. Brundage and O’Herron (2006) estimate 1437 that the current population for the Delaware River is 12,047 adult fish (1999-2003; 95% CI: 10,757-13,589), which 1438 is similar to the 1981/84 estimate by Hastings et al., (1987) of 12,796 fish (95% CI: 10,288-16367). The recent 1439 capture of several fish that were tagged as adults by Hastings et al., (1987) suggests that older fish may comprise a 1440 substantial portion of the Delaware River population. Based on studies from other sturgeon species we know of no 1441 evidence of senescence in sturgeon and we would expect that these fish are reproductively active (Paragamian et al., 1442 2005). Despite their longevity, the viability of sturgeon populations is sensitive to variability in juvenile recruitment 1443 and survival (Anders et al., 2002; Gross et al., 2002; Secor et al., 2002). Although interannual variation in juvenile 1444 recruitment would be expected as a result of stochastic factors that influence spawning and egg/larval survival, if the 1445 mean population size does not change over the long-term it then it would appear there is sufficient juvenile survival 1446 to provide at least periodic recruitment into the adult age classes. Data on juvenile recruitment or age-1+ survival 1447 would, however, establish whether this population is at a stable equilibrium.

1448 South of Chesapeake Bay, populations are relatively small compared to their northern counterparts. The largest of 1449 the southern populations of shortnose sturgeon is the Altamaha River population. Population estimates have been

1450 calculated several times for sturgeon in the Altamaha since 1993. Total population estimates shown pretty sizeable 1451 interannual variation is occurring; estimates have ranged from as low as 468 fish in 1993 to over 6,300 fish in 2006 1452 (NMFS, 1998a; DeVries, 2006). The Ogeechee River is the next most studied river south of Chesapeake Bay and 1453 abundance estimates indicate that the shortnose sturgeon population in this river is considerably smaller than that in 1454 the Altamaha River. The highest point estimate in 1993 using a modified Schnabel technique resulted in a total 1455 population estimate of 361 shortnose sturgeon (95% CI: 326-400). In contrast the most recent survey resulted in an 1456 estimate of 147 shortnose sturgeon (95% CI: 104-249), suggesting that the population may be declining.

1457 Throughout the species range there are other extant populations, or at least evidence that several other basins are 1458 used periodically. That is, shortnose sturgeon have been documented in the St. Johns River (FL), the St. Mary’s 1459 River, Chesapeake Bay, Potomac River, Piscataqua River, the Housatonic River and others. Some basins probably 1460 previously contained shortnose populations, but recent sampling has been largely unsuccessful. Despite the 1461 occasional observations of shortnose sturgeon, populations may be extinct in several basins (e.g., St. John’s (FL), St. 1462 Mary’s, Potomac, Housatonic and Neuse rivers). Those few fish that have been observed in these basins are 1463 generally presumed to be immigrants from neighboring basins. In some cases, (e.g. Chesapeake Bay) migratory 1464 information collected from tagged fish and genetic evidence confirms that fish captured in Chesapeake Bay were 1465 part of the Delaware River population (Grunwald et al., 2002; Wirgin et al., 2005).

1466 Threats 1467 Natural Threats. Yellow perch, sharks and seals are predators of shortnose sturgeon juveniles (NMFS, 1998a). The 1468 effects of disease and parasites are generally unknown.

1469 Anthropogenic Threats. Historic fishery harvests, as well as the incidental harvest in current fisheries, have had 1470 lasting effects on shortnose sturgeon. In the late nineteenth and early twentieth centuries shortnose sturgeon 1471 commonly were harvested incidental to Atlantic sturgeon, the larger and more commercially valuable of these two 1472 sympatric sturgeon species (NMFS, 1998a). The effects of these harvests may have latent and long-lasting impacts 1473 on some populations. At present there is no legal directed fishing effort for shortnose sturgeon in the U.S., although 1474 some illegal poaching is suspected. Additionally, shortnose sturgeon are often caught incidental to other fisheries. 1475 For instance, shortnose are caught incidentally by bass anglers, and incidentally to alewife/gaspereau and shad 1476 fisheries in the St. John River in Canada, shad fisheries in the Altamaha River, Hudson River, and others 1477 (COSEWIC, 2005).

1478 Habitat alterations from discharges, dredging or disposal of material into waterways and other developmental 1479 activities along riverine and estuarine systems threaten shortnose sturgeon habitat. Periodic maintenance of harbors 1480 and rivers likely results in the direct take of some sturgeon, but perhaps of greater impact is the manner in which 1481 dredging alters benthic topography and community structure and water quality (increase in suspended sediments). 1482 Shoreline development may increase the potential of ship strikes. In the Bay of Fundy, a tidal turbine killed at least 1483 three Atlantic salmon in the 1980s and may be a threat to shortnose sturgeon as well (Dadswell and Rulifson, 1994). 1484 Although currently the only example of this type of turbine in North America, increasing interests in finding 1485 alternative energy sources is expected to result in an increase in the number of marine turbines along the coast.

1486 Shortnose sturgeon and other benthic organisms are regularly in direct contact with legacy pollutants, as well as a 1487 suite of common contaminants added from more current industrial and agricultural practices. Studies demonstrate 1488 that shortnose sturgeon carry a wide number of potentially hazardous contaminants. Individuals from the Delaware 1489 River contain numerous metals (mercury, aluminum, antimony, barium, cadmium, calcium, chromium, copper, iron, 1490 magnesium, manganese, nickel, potassium, sodium, vanadium and zinc), PCDDs, PCDFs, PCBs, DDE, DDD, bis 1491 (2-ethylhexyl) phthalate, di-n-butylphthalate and chlordane (ERC, 2002). Most of these metals, PCDDs, PCDFs and

1492 PCBs were also found in shortnose sturgeon in the Kennebec River (ERC, 2003).

1493 Critical Habitat 1494 NMFS has not designated critical habitat for shortnose sturgeon.

1495 Salmonid Anadromous Fish Species

1496 Protective Regulations for Threatened Salmonid Species

1497 Since 1997 NMFS promulgated a total of 29 limits to the ESA section 9(a) take prohibitions for 21 threatened 1498 Pacific salmon and steelhead species (62 FR 38479, July 18, 1997; 65 FR 42422, July 10, 2000; 65 FR 42485, July 1499 10, 2000; 67 FR 1116, January 9, 2002; 73 FR 7816, February 11, 2008). On June 28, 2005, as part of the final 1500 listing determinations for 16 species of West Coast salmon, NMFS amended and streamlined the 4(d) protective 1501 regulations for threatened salmon and steelhead (70 FR 37160). NMFS took this action to provide appropriate 1502 flexibility to ensure that fisheries and artificial propagation programs are managed consistently with the 1503 conservation needs of threatened salmon and steelhead. Under this change, the section 4(d) protections apply to 1504 natural and hatchery fish with an intact adipose fin, but not to ESA listed hatchery fish that have had their adipose 1505 fin removed prior to release into the wild.

1506 Additionally, NMFS made several simplifying and clarifying changes to the 4(d) protective regulations including 1507 updating an expired limit (§ 223.203(b)(2)), providing a temporary exemption for ongoing research and 1508 enhancement activities, and applying the same set of 14 limits to all threatened Pacific salmon and steelhead species. 1509 These limits are:

1510 1. Activities conducted in accordance with ESA section 10 incidental take authorization (50 CFR § 1511 223.203(b)(1))

1512 2. Ongoing scientific and conservation activities for which a permit application has been timely submitted, 1513 and treaty and non-treaty fisheries for which a comanager’s management plan has been timely submitted (§ 1514 223.203(b)(2))

1515 3. Emergency actions related to injured, stranded, or dead salmonids (§ 223.203(b)(3))

1516 4. Fishery management activities (§ 223.203(b)(4))

1517 5. Hatchery and genetic management programs (§ 223.203(b)(5))

1518 6. Activities in compliance with joint Tribal/State plans (§ 223.203(b)(6))

1519 7. Scientific research activities conducted or permitted by the States (§ 223.203(b)(7))

1520 8. State, local and private habitat restoration activities (§ 223.203(b)(8))

1521 9. Properly screened water diversion devices (§ 223.203(b)(9))

1522 10. Routine road maintenance activities (§ 223.203(b)(10))

1523 11. Certain park pest management activities (§ 223.203(b)(11))

1524 12. Certain municipal, residential, commercial and industrial development and redevelopment activities (§ 1525 223.203(b)(12))

1526 13. Forest management activities on State and private lands within the State of Washington (§ 223.203(b)(13))

1527 14. Activities undertaken consistent with an approved Tribal resource management plan (§ 223.204).

1528 Chinook Salmon

1529 Description of the Species 1530 Chinook salmon are the largest of the Pacific salmon and historically ranged from the Ventura River in California to 1531 Point Hope, Alaska in North America, and in northeastern Asia from Hokkaido, Japan to the Anadyr River in Russia 1532 (Healey, 1991). In this section, we discuss the distribution, status and critical habitats of the nine species of 1533 endangered and threatened Chinook salmon separately, and summarize their common dependence on waters of the 1534 United States. However, because Chinook salmon species share many characteristics, we begin this section 1535 describing those common characteristics.

1536 Chinook salmon exhibit one of the most varied and complex life history strategies. The “stream-type” of Chinook 1537 salmon resides in freshwater for a year or more following emergence and the “ocean-type” migrates to the ocean 1538 within their first year. The ocean-type typifies populations north of 56ºN (Healey, 1991). The Chinook salmon life 1539 cycle spans fresh and marine waters. Chinook salmon are semelparous (i.e. they die after spawning). Spawning 1540 migrations generally occur in the spring and fall, and temperature and stream flow can significantly influence the 1541 timing of migrations and spawning and the selection of spawning habitat (Geist et al., 2009; Hatten and Tiffan., 1542 2009). Spawning typically occurring earlier in the spring/summer at northern latitudes and later in southern latitudes 1543 (Healey, 1991).

1544 While in fresh water, juvenile Chinook salmon are often found in the lower reaches of a river near its estuary in 1545 areas of low water velocity. As they grow, they tend to move to deeper waters where the velocity is higher (Healey, 1546 1991). Generally, Chinook salmon outmigrants (smolts) are about 2 to 5 inches long when they enter saline (often 1547 brackish) waters. The process of smoltification enables salmon to adapt to the ocean environment (Wedemeyer et 1548 al., 1980). Several factors can affect smoltification process, not only at the interface between fresh water and salt 1549 water, but higher in the watershed the process of transformation begins long before fish enter salt waters including: 1550 exposure to chemicals such as heavy metals and elevated water temperatures (Wedemeyer et al., 1980).

1551 Chinook salmon feed on a variety of prey organisms depending upon life stage. Adult oceanic Chinook salmon eat 1552 small fish, amphipods and crab megalops (Healey, 1991). Fish, in particular herring, make up the largest portion of 1553 an adult Chinook salmon’s diet. In estuaries, Chinook salmon smolts tend to feed on chironomid larvae and pupae, 1554 Daphnia, Eogammarus, Corphium and Neomysis, as well as juvenile herring, sticklebacks and other small fish. In 1555 fresh water, Chinook salmon juveniles feed on adult and larval insects including terrestrial and aquatic insects such 1556 as dipterans, beetles, stoneflies, chironomids and plecopterans (Healey, 1991).

1557 Threats

1558 Natural Threats. Chinook salmon are prey for pelagic fishes, birds and marine mammals, including harbor seals, sea 1559 lions and killer whales. There have been recent concerns that the increasing size of tern, seal and sea lion 1560 populations in the Pacific Northwest may have reduced the survival of some salmon species.

1561 Anthropogenic Threats. Salmon survive only in aquatic ecosystems and, therefore, depend on the quantity and 1562 quality of those ecosystems. Chinook salmon have declined under the combined effects of multiple anthropogenic 1563 stressors. Examples of these include fishery over-harvest, competition from hatchery fish and non-native species, the 1564 effects of dams, water diversions, destruction or degradation of riparian habitat and land use practices that destroy or 1565 degrade wetland and riparian ecosystems (Buhle et al., 2009).

1566 Salmon along the west coast of the U.S. share many of the same threats. Therefore, anthropogenic threats for all 1567 species and populations are summarized here. Population declines have resulted from several human-mediated 1568 causes, but the greatest negative influence has likely been the establishment of waterway obstructions such as dams, 1569 power plants and sluiceways for hydropower, agriculture, flood control and water storage. These structures have 1570 blocked salmon migration to spawning habitat or resulted in direct mortality and have eliminated entire salmon runs 1571 as a result. While some of these barriers remain, others have been reengineered, renovated or removed to allow for 1572 surviving runs to access former habitat, but success has been limited. These types of barriers alter the natural 1573 hydrograph of basins, both upstream and downstream of the structure and significantly reduce the availability and 1574 quality of spawning and rearing habitat (Hatten and Tiffan., 2009). Many streams and rivers, particularly in urban or 1575 suburban areas, suffer from streamside development, which contributes sediment, chemical pollutants from pesticide 1576 applications and automobile or industrial activities, altered stream flows, loss of streamside vegetation and 1577 allochthonous materials to name a few. These factors can directly cause mortality, reduce reproductive success or 1578 affect the health and fitness of all salmon life stages.

1579 Fishing pressure has also negatively affected salmon populations. Fishing reduces the number of individuals within 1580 a population and can lead to uneven exploitation of certain populations and size classes (Reisenbichler, 1997). 1581 Targeted fishing of larger individuals results in excluding the most fecund individuals from spawning 1582 (Reisenbichler, 1997). Genetic changes that promote smaller body sizes have occurred in heavily exploited 1583 populations in response to size-selective harvest pressures (Reisenbichler, 1997). Fishing pressure can reduce age at 1584 maturity in fished populations as the fished populations compensate for the reductions in the numbers of spawning 1585 adults (Reisenbichler, 1997).

1586 Pacific salmon species are exposed to a number of contaminants throughout their range and life history cycle. 1587 Exposure to pollution is also of significant concern for all life stages, but is likely particularly significant for 1588 freshwater life stages. Organic pollutants, particularly PCBs, DDT and its congeners, pesticides and endocrine 1589 disruptors are of particular concern. These chemicals can inhibit smell, disrupt reproductive behavior and 1590 physiology, impair immune function and lead to mortality through impairment of water balance when traveling 1591 between fresh and salt water systems (Varanasi et al., 1993). Diffuse and extensive population centers contribute 1592 increased contaminant volumes and variety from such sources as wastewater treatment plants and sprawling 1593 development. Urban runoff from impervious surfaces and roadways often contains oil, copper, pesticides, PAHs and 1594 other chemical pollutants and flow into surface waters. Point and nonpoint pollution sources entering rivers and their 1595 tributaries affect water quality in available spawning and rearing habitat for salmon. Juvenile salmonids that inhabit 1596 urban watersheds often carry high contaminant burdens, which is partly attributable to the biological transfer of 1597 contaminants through the food web (Varanasi et al., 1993).

1598 Changes in hydrological regimes are closely linked to salmon abundance (Hicks et al., 1991). From studies that have 1599 examined the effects of changes in land use patterns, we know that changes in hydrology can profoundly affect 1600 salmon abundance and the amount and availability of quality habitat. Hydrology is strongly correlated to early 1601 survival and can lead to the displacement of young fish as well as altering immigration and emigration timing which 1602 impacts the relative abundance of salmon within a watershed, as well as the relative abundance of age-classes (Hicks

1603 et al., 1991; Gregory and Bisson, 1997). Such ecosystem changes are also likely to alter macroinvertebrate 1604 communities and habitats, affecting important forage for salmon and trout (McCarthy et al., 2009; Williams et al., 1605 2009).

1606 California Coastal Chinook Salmon

1607 Distribution and Description of the Listed Species 1608 The California Coastal Chinook salmon species includes all naturally spawned populations of Chinook salmon from 1609 rivers and streams south of the Klamath River to the Russian River, California. Seven artificial propagation 1610 programs are part of this species. California Coastal Chinook salmon are a fall-run, ocean-type fish. A spring-run 1611 (river-type) component existed historically, but is now considered extinct (Bjorkstedt et al., 2005).

1612 Status and Trends 1613 NMFS listed California Coastal Chinook salmon as threatened on September 16, 1999 (64 FR 50393) and they 1614 retained their threatened status on June 28, 2005 (70 FR 37160). California Coastal Chinook salmon were listed due 1615 to the combined effect of dams that prevent them from reaching spawning habitat, logging, agricultural activities, 1616 urbanization and water withdrawals in the river drainages that support them. Historical estimates of escapement, 1617 based on professional opinion and evaluation of habitat conditions, suggest abundance was roughly 73,000 in the 1618 early 1960s with the majority of fish spawning in the Eel River (Good et al., 2005). Since its original listing and 1619 status review, little new data are available or suitable for analyzing trends or estimating changes in this population’s 1620 growth rate (Good et al., 2005).

1621 Long-term trends in Sprowl and Tomki creeks (tributaries of the Eel River), however, are negative. Good et al., 1622 (2005) caution against making inferences on the basin-wide status of these populations as they may be weak because 1623 the data likely include unquantified variability due to flow-related changes in spawners’ use of mainstem and 1624 tributary habitats.

1625 Critical Habitat 1626 NMFS designated critical habitat for California Coastal Chinook salmon on September 2, 2005 (70 FR 52488). 1627 Specific geographic areas designated include the following CALWATER hydrological units: Redwood Creek, 1628 Trinidad, Mad River, Eureka Plain, Eel River, Cape Mendocino, Mendocino Coast and the Russian River. These 1629 areas are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The 1630 critical habitat designation for this species identifies primary constituent elements that include sites necessary to 1631 support one or more Chinook salmon life stages. Specific sites include freshwater spawning sites, freshwater rearing 1632 sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 1633 features that characterize these sites include water quality and quantity, natural cover, forage, adequate passage 1634 conditions and floodplain connectivity. The critical habitat designation (70 FR 52488) contains additional details on 1635 the sub-areas that are included as part of this designation and the areas that were excluded from designation.

1636 In total, California Coastal Chinook salmon occupy 45 watersheds (freshwater and estuarine). The total area of 1637 habitat designated as critical includes about 1,500 miles of stream habitat and about 25 square miles of estuarine 1638 habitat, mostly within Humboldt Bay. This designation includes the stream channels within the designated stream 1639 reaches and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high- 1640 water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is 1641 defined by the extreme high water because extreme high tide areas encompass those areas typically inundated by 1642 water and regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the

1643 nearshore zone and relying on cover and refuge qualities provided by these habitats and while they are foraging. Of 1644 the 45 watershed reviewed in NMFS' assessment of critical habitat for California Coastal Chinook salmon, eight 1645 watersheds received a low rating of conservation value, 10 received a medium rating and 27 received a high rating 1646 of conservation value for the species.

1647 Critical habitat in this species consists of limited quantity and quality summer and winter rearing habitat, as well as 1648 marginal spawning habitat. Compared to historical conditions, there are fewer pools, limited cover and reduced 1649 habitat complexity. The limited instream cover that does exist is provided mainly by large cobble and overhanging 1650 vegetation. Instream large woody debris, needed for foraging sites, cover and velocity refuges is especially lacking 1651 in most of the streams throughout the basin. NMFS has determined that these degraded habitat conditions are, in 1652 part, the result of many human-induced factors affecting critical habitat including dam construction, agricultural and 1653 mining activities, urbanization, stream channelization, water diversion and logging, among others.

1654 Central Valley Spring-Run Chinook Salmon

1655 Distribution and Description of the Listed Species 1656 The Central Valley spring-run Chinook salmon species includes all naturally spawned populations of spring-run 1657 Chinook salmon in the Sacramento River and its tributaries in California. This species includes one artificial 1658 propagation program. Central Valley spring-run Chinook salmon species includes Chinook salmon entering the 1659 Sacramento River from March to July and spawning from late August through early October, with a peak in 1660 September. Spring-run fish in the Sacramento River exhibit an ocean-type life history, emigrating as fry, sub- 1661 yearlings and yearlings. Central Valley spring-run Chinook salmon require cool freshwater while they mature over 1662 the summer.

1663 Status and Trends 1664 NMFS originally listed Central Valley spring-run Chinook salmon as threatened on September 16, 1999 (64 FR 1665 50393), a classification this species retained on June 28, 2005 (70 FR 37160). This species was listed because dams 1666 isolate them from most of their historic spawning habitat and the habitat remaining to them is degraded. Historically, 1667 spring-run Chinook salmon were predominant throughout the Central Valley occupying the upper and middle 1668 reaches (1,000 to 6,000 feet) of the San Joaquin, American, Yuba, Feather, Sacramento, McCloud and Pit Rivers, 1669 with smaller populations in most tributaries with sufficient habitat for over-summering adults (Stone, 1874; Rutter, 1670 1904; Clark, 1929).

1671 The Central Valley drainage as a whole is estimated to have supported spring-run Chinook salmon runs as large as 1672 700,000 fish between the late 1880s and the 1940s (Fisher, 1994), although these estimates may reflect an already 1673 declining population, in part from the commercial gillnet fishery that occurred in this species (Good et al., 2005). 1674 Before construction of Friant Dam, nearly 50,000 adults were counted in the San Joaquin River alone (Fry, 1961). 1675 Following the completion of Friant Dam, the native population from the San Joaquin River and its tributaries (i.e., 1676 the Stanislaus and Mokelumne Rivers) was extirpated. Spring-run Chinook salmon no longer exist in the American 1677 River due to the operation of Folsom Dam. Naturally spawning populations of Central Valley spring-run Chinook 1678 salmon currently are restricted to accessible reaches of the upper Sacramento River, Antelope Creek, Battle Creek, 1679 Beegum Creek, Big Chico Creek, Butte Creek, Clear Creek, Deer Creek, Feather River, Mill Creek and Yuba River 1680 (CDFG, 1998). Since 1969, the Central Valley spring-run Chinook salmon species (excluding Feather River fish) 1681 has displayed broad fluctuations in abundance ranging from 25,890 in 1982 to 1,403 in 1993 (Good et al., 2005).

1682 As noted by Good et al., (2005), the average abundance for the species was 12,499 for the period of 1969 to 1979,

1683 12,981 for the period of 1980 to 1990 and 6,542 for the period of 1991 to 2001. In 2003 and 2004, total run size for 1684 the species was 8,775 and 9,872 adults respectively, well above the 1991 to 2001 average. Evaluating the species as 1685 a whole, however, masks significant changes that are occurring among populations that comprise the species 1686 (metapopulation). For example, the mainstem Sacramento River population has undergone a significant decline 1687 while the abundance of many tributary populations increased. Average abundance of Sacramento River mainstem 1688 spring-run Chinook salmon recently declined from a high of 12,107 for the period 1980 to 1990, to a low of 609 for 1689 the period 1991 to 2001, while the average abundance of Sacramento River tributary populations increased from a 1690 low of 1,227 to a high of 5,925 over the same periods.

1691 Abundance time series data for Mill, Deer, Butte and Big Chico creeks spring-run Chinook salmon confirm that 1692 population increases seen in the 1990s have continued through 2001(Good et al., 2005). Habitat improvements, 1693 including the removal of several small dams and increases in summer flows in the watersheds, reduced ocean 1694 fisheries, and a favorable terrestrial and marine climate, have likely contributed to this. All three spring-run Chinook 1695 salmon populations in the Central Valley have long-and short-term positive population growth.

1696 Critical Habitat 1697 NMFS designated critical habitat for Central Valley spring-run Chinook salmon on September 2, 2005 (70 FR 1698 52488). Specific geographic areas designated include the following CALWATER hydrological units: Tehama, 1699 Whitmore, Redding, Eastern Tehama, Sacramento Delta, Valley-Putah-Cache, Marysville, Yuba, Valley-American, 1700 Colusa Basin, Butte Creek and Shasta Bally hydrological units. These areas are important for the species’ overall 1701 conservation by protecting quality growth, reproduction and feeding. The critical habitat designation for this species 1702 identifies primary constituent elements that include sites necessary to support one or more Chinook salmon life 1703 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, 1704 nearshore marine habitat and estuarine areas. The physical or biological features that characterize these sites include 1705 water quality and quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The 1706 critical habitat designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this 1707 designation and the areas that were excluded from designation.

1708 In total, Central Valley spring-run Chinook salmon occupy 37 watersheds (freshwater and estuarine). The total area

1709 of habitat designated as critical includes about 1,100 miles of stream habitat and about 250 square miles of estuarine 1710 habitat in the San Francisco-San Pablo-Suisun Bay complex. This designation includes the stream channels within 1711 the designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas where 1712 the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas 1713 the lateral extent is defined by the extreme high water because extreme high tide areas encompass those areas 1714 typically inundated by water and regularly occupied by juvenile salmon during the spring and summer, when they 1715 are migrating in the nearshore zone and relying on cover and refuge qualities provided by these habitats and while 1716 they are foraging. Of the 37 watersheds reviewed in NMFS' assessment of critical habitat for Central Valley spring- 1717 run Chinook salmon, seven watersheds received a low rating of conservation value, three received a medium rating 1718 and 27 received a high rating of conservation value for the species.

1719 Factors contributing to the downward trends in this species include: reduced access to spawning/rearing habitat 1720 behind impassable dams, climatic variation, water management activities, hybridization with fall-run Chinook 1721 salmon, predation and harvest (CDFG, 1998). Several actions have been taken to improve and increase the primary 1722 constituent elements of critical habitat for spring-run Chinook salmon. These include improved management of 1723 Central Valley water, implementing new and improved screen and ladder designs at major water diversions along 1724 the mainstem Sacramento River and tributaries, removal of several small dams on important spring-run Chinook

1725 salmon spawning streams and changes in ocean and inland fishing regulations to minimize harvest. Although 1726 protective measures and critical habitat restoration likely have contributed to recent increases in spring-run Chinook 1727 salmon abundance, the species is still below levels observed from the 1960s through 1990. Many threats still exist.

1728 Lower Columbia River Chinook Salmon

1729 The Lower Columbia River Chinook salmon species includes all naturally spawned populations of Chinook salmon 1730 from the Columbia River and its tributaries from its mouth at the Pacific Ocean upstream to a transitional point 1731 between Washington and Oregon, east of the Hood River and the White Salmon River and includes the Willamette 1732 River to Willamette Falls, Oregon, exclusive of spring-run Chinook salmon in the Clackamas River.

1733 Lower Columbia River Chinook salmon have three life history types, including early fall runs (tules), late fall runs 1734 (brights) and spring-runs. Spring and fall runs have been designated as part of a Lower Columbia River Chinook 1735 salmon species. The Cowlitz, Kalama, Lewis, White Salmon and Klickitat Rivers are the major river systems on the 1736 Washington side and the lower Willamette and Sandy Rivers are foremost on the Oregon side. The eastern boundary 1737 for this species occurs at Celilo Falls, which corresponds to the edge of the drier Columbia Basin Ecosystem and 1738 historically may have been a barrier to salmon migration at certain times of the year. Fall Chinook salmon typically 1739 enter the Columbia River in August through October to spawn in the mainstem of the large rivers (Kostow, 1995). 1740 Spring Chinook salmon enter freshwater in March through June to spawn in upstream tributaries and generally 1741 emigrate from fresh water as yearlings.

1742 Status and Trends 1743 NMFS originally listed Lower Columbia River Chinook salmon as threatened on March 24, 1999 (64 FR 14308); 1744 NMFS reaffirmed the threatened status of Lower Columbia River Chinook salmon on June 28, 2005 (70 FR 37160). 1745 Historical records of Chinook salmon abundance are sparse, but cannery records suggest a peak run of 4.6 million 1746 fish (43 million pounds) in 1883 (Lichatowich, 1999). Although fall-run Chinook salmon are still present throughout 1747 much of their historical range, they are still subject to large-scale hatchery production, relatively high harvest and 1748 extensive habitat degradation. The Lewis River late-fall-run Chinook salmon population is the healthiest and has a 1749 reasonable probability of being self-sustaining. Abundances largely declined during 1998 to 2000 and trend 1750 indicators for most populations are negative, especially if hatchery fish are assumed to have a reproductive success 1751 equivalent to that of natural-origin fish (Good et al., 2005). Most populations for which data are available have a 1752 long-term declining population trend (Good et al., 2005).

1753 Critical Habitat 1754 NMFS designated critical habitat for Lower Columbia River Chinook salmon on September 2, 2005 (70 FR 52630). 1755 Designated critical habitat includes all Columbia River estuarine areas and river reaches proceeding upstream to the 1756 confluence with the Hood Rivers as well as specific stream reaches in a number of tributary subbasins. These areas 1757 are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The 1758 critical habitat designation for this species identifies primary constituent elements that include sites necessary to 1759 support one or more Chinook salmon life stages. Specific sites include freshwater spawning sites, freshwater rearing 1760 sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 1761 features that characterize these sites include water quality and quantity, natural cover, forage, adequate passage 1762 conditions and floodplain connectivity. Of 52 subbasins reviewed in NMFS' assessment of critical habitat for the 1763 Lower Columbia River Chinook salmon species, 13 subbasins were rated as having a medium conservation value, 1764 four were rated as low, and the remaining subbasins (35), were rated as having a high conservation value to Lower 1765 Columbia River Chinook salmon. Factors contributing to the downward trends in this species are

1766 hydromorphological changes resulting from hydropower development, loss of tidal marsh and swamp habitat and 1767 degraded freshwater and marine habitat from industrial harbor and port development and urban development. 1768 Limiting factors identified for this species include reduced access to spawning/rearing habitat in tributaries, hatchery 1769 impacts, loss of habitat diversity and channel stability in tributaries, excessive fine sediment in spawning gravels, 1770 elevated water temperature in tributaries and harvest impacts.

1771 Upper Columbia River Spring-run Chinook Salmon

1772 Distribution and Description of the Listed Species 1773 The Upper Columbia River spring-run Chinook salmon species includes all naturally spawned populations of 1774 Chinook salmon in all river reaches accessible to Chinook salmon in Columbia River tributaries upstream of Rock 1775 Island Dam and downstream of Chief Joseph Dam in Washington, excluding the Okanogan River. Six artificial 1776 propagation programs are part of this species. Spring-run Chinook salmon currently spawn in only three river basins 1777 above Rock Island Dam: the Wenatchee, Entiat and Methow Rivers (Good et al., 2005).

1778 Status and Trends 1779 NMFS listed Upper Columbia River spring-run Chinook salmon as endangered on March 24, 1999 (64 FR 14308), 1780 and reaffirmed their status as endangered on June 28, 2005 (70 FR 37160), because they had been reduced to small 1781 populations in three watersheds. Based on redd count data series, spawning escapements for the Wenatchee, Entiat 1782 and Methow rivers have declined an average of 5.6%, 4.8% and 6.3% per year, respectively, since 1958. In the most 1783 recent 5-year geometric mean (1997 to 2001), spawning escapement for naturally produced fish was 273 for the 1784 Wenatchee population, 65 for the Entiat population, and 282 for the Methow population, only 8% to 15% of the 1785 minimum abundance thresholds, although escapement increased substantially in 2000 and 2001 in all three river 1786 systems. Based on 1980-2004 returns, the average annual growth rate for this species is estimated at 0.93 (meaning 1787 the population is not replacing itself; Fisher and Hinrichsen 2006). Assuming that population growth rates were to 1788 continue at 1980 to 2004 levels, Upper Columbia River spring-run Chinook salmon populations are projected to

1789 have very high probabilities of decline within 50 years. Population viability analyses for this species (using the 1790 Dennis Model) suggest that these Chinook salmon face a significant risk of extinction: a 75 to 100% probability of 1791 extinction within 100 years (given return rates for 1980 to present).

1792 Hatchery influence and genetic diversity are significant issues for the continued survival of Upper Columbia River 1793 Chinook salmon. This is a result of reduced genetic diversity from homogenization of populations that occurred 1794 under the Grand Coulee Fish Maintenance Project from 1939 to 1943. Stray hatchery fish and a high proportion of 1795 hatchery fish during spawning have contributed to the high genetic diversity risk.

1796 Critical Habitat 1797 NMFS designated critical habitat for Upper Columbia River spring-run Chinook salmon on September 2, 2005 (70 1798 FR 52630). The designation includes all Columbia River estuaries and river reaches upstream to Chief Joseph Dam 1799 and several tributary subbasins. This designation includes the stream channels within the designated stream reaches 1800 and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high-water line is 1801 not defined the lateral extent is defined as the bankfull elevation. These areas are important for the species’ overall 1802 conservation by protecting quality growth, reproduction and feeding. The critical habitat designation for this species 1803 identifies primary constituent elements that include sites necessary to support one or more Chinook salmon life 1804 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, 1805 nearshore marine habitat and estuarine areas. The physical or biological features that characterize these sites include 1806 water quality and quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The

1807 Upper Columbia River spring-run Chinook salmon species has 31 watersheds within its range. Five watersheds 1808 received a medium rating and 26 received a high rating of conservation value to the species. The Columbia River 1809 rearing/migration corridor downstream of the spawning range was rated as a high conservation value. Factors 1810 contributing to the downward trends in this species include mainstem Columbia River hydropower system mortality, 1811 tributary riparian degradation and loss of in-river wood, altered tributary floodplain and channel morphology, 1812 reduced tributary stream flow and impaired passage and harvest impacts.

1813 Puget Sound Chinook Salmon

1814 Distribution and Description of the Listed Species

1815 The Puget Sound Chinook salmon species includes all naturally spawned populations of Chinook salmon from rivers 1816 and streams flowing into Puget Sound including the Straits of Juan De Fuca from the Elwha River, eastward, 1817 including rivers and streams flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia in 1818 Washington. Twenty-six artificial propagation programs are part of the species. The Puget Sound species is 1819 comprised of 31 historical populations, of which 22 or more are believed to be extant and nine are considered 1820 extinct.

1821 Chinook salmon in this area generally have an “ocean-type” life history. Puget Sound populations include both 1822 early-returning and late-returning Chinook salmon spawners described by Healey (1991). However, within these 1823 generalized behavioral forms, significant variation occurs in residence time in fresh water and estuarine 1824 environments. For example, Hayman et al., (1996) described three juvenile Chinook salmon life histories with 1825 varying residency times in the Skagit River system in northern Puget Sound. Chinook salmon utilize nearshore 1826 Puget Sound habitats year-round, although they can be far from their natal river systems (Brennan et al., 2004).

1827 Status and Trends 1828 NMFS listed Puget Sound Chinook salmon as threatened in 1999 (64 FR 14308); that status was reaffirmed on June 1829 28, 2005 (70 FR 37160). This species has lost 15 spawning aggregations (nine from the early-run type) that were 1830 either independent historical populations or major components of the remaining 22 existing independent historical 1831 populations identified (Good et al., 2005). The disproportionate loss of early-run life history diversity represents a 1832 significant loss of the evolutionary legacy of the historical species.

1833 Data reported by Good et al., (2005) indicate that long term trends in abundance for this species are split with about 1834 half of the populations declining and the other half increasing. In contrast, the short-term trend for four populations 1835 is declining. The overall long-term trend in abundance indicates that, on average, populations are just replacing 1836 themselves. Estimates of the short-term median population growth rate (λ) (data years 1990-2002) indicate an even 1837 split between populations that are growing and those that are declining, although estimates would be lower for 1838 several populations if the fraction of naturally spawning hatchery fish were available for all populations within the 1839 species. For available data, when λ is calculated assuming that hatchery fish have the equivalent success of natural 1840 spawners then the largest estimated decline occurs in the Green River. Populations with the largest positive short 1841 and long-term trends include the White River and the North Fork Nooksack River (Good et al., 2005). Lambda for 1842 the Skagit River, which produces the most Chinook salmon in this species, has increased slightly. Overall, the recent 1843 analysis by Good et al., (2005) illustrated that there has not be much change in this species since NMFS’ first status 1844 review (Busby et al., 1996). Individual populations have improved, while others have declined. However, the lack of 1845 information on the fraction of naturally spawning, hatchery-origin fish for 10 of the 22 populations that comprise 1846 this species limits our understanding of the trends in naturally spawning fish for a large portion of the species.

1847 The estimated total run size of Chinook salmon in Puget Sound in the early 1990s was 240,000 fish, representing a 1848 loss of nearly 450,000 fish from historic numbers. During a recent 5-year period, the geometric mean of natural 1849 spawners in populations of Puget Sound Chinook salmon ranged from 222 to just over 9,489 fish. Most populations 1850 had natural spawners numbering in the hundreds (median recent natural escapement is 766), and of the six 1851 populations with greater than 1,000 natural spawners, only two have a low fraction of hatchery fish. The populations 1852 with the greatest estimated component of hatchery fish tend to be in mid to southern Puget Sound, Hood Canal and 1853 the Strait of Juan de Fuca regions. Estimates of the historical equilibrium abundance, based on pre-European 1854 settlement habitat conditions, range from 1,700 to 51,000 potential Puget Sound Chinook salmon spawners per 1855 population. The historical estimates of spawner capacity are several orders of magnitude higher than spawner 1856 abundances currently observed throughout the species (Good et al., 2005).

1857 Critical Habitat 1858 NMFS designated critical habitat for Puget Sound Chinook salmon on September 2, 2005 (70 FR 52630). The 1859 specific geographic area includes portions of the Nooksack River, Skagit River, Sauk River, Stillaguamish River, 1860 Skykomish River, Snoqualmie River, Lake Washington, Green River, Puyallup River, White River, Nisqually River, 1861 Hamma Hamma River and other Hood Canal watersheds, the Dungeness/Elwha Watersheds and nearshore marine 1862 areas of the Strait of Georgia, Puget Sound, Hood Canal and the Strait of Juan de Fuca. This designation includes the 1863 stream channels within the designated stream reaches and includes a lateral extent as defined by the ordinary high 1864 water line. In areas where the ordinary high water line is not defined the lateral extent is defined as the bankfull 1865 elevation.

1866 The designation for this species includes sites necessary to support one or more Chinook salmon life stages. These 1867 areas are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. 1868 Specific primary constituent elements include freshwater spawning sites, freshwater rearing sites, freshwater 1869 migration corridors, nearshore marine habitat and estuarine areas. The physical or biological features that 1870 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 1871 floodplain connectivity. Of 49 subbasins (5th field Hydrological Units) reviewed in NMFS' assessment of critical 1872 habitat for the Puget Sound species, nine subbasins were rated as having a medium conservation value, 12 were 1873 rated as low, and the remaining subbasins (40), where the bulk of Federal lands occur for this species, were rated as 1874 having a high conservation value to Puget Sound Chinook salmon. Factors contributing to the downward trends in 1875 this species are hydromorphological changes (such as diking, revetments, loss of secondary channels in floodplains, 1876 widespread blockages of streams and changes in peak flows), degraded freshwater and marine habitat affected by 1877 agricultural activities and urbanization and upper river tributaries widely affected by poor forest practices. Changes 1878 in habitat quantity, availability, diversity, flow, temperature, sediment load and channel stability are common 1879 limiting factors in areas of critical habitat.

1880 Sacramento River Winter-Run Chinook Salmon

1881 Distribution and Description of the Listed Species 1882 The Sacramento River winter-run Chinook salmon species includes all naturally spawned populations of winter-run 1883 Chinook salmon in the Sacramento River and its tributaries in California. Two artificial propagation programs are 1884 included in this species.

1885 This species consists of a single spawning population that enters the Sacramento River and its tributaries in 1886 California from November to June and spawns from late April to mid-August, with a peak from May to June (Good 1887 et al., 2005). Sacramento River winter-run Chinook salmon historically occupied cold, headwater streams, such as

1888 the upper reaches of the Little Sacramento, McCloud and lower Pit Rivers. Young winter-run Chinook salmon 1889 venture to sea in November and December, after only four to seven months in fresh water (Groot and Margolis., 1890 1991).

1891 Status and Trends 1892 NMFS listed Sacramento River winter-run Chinook salmon as endangered on January 4, 1994 (59 FR 440), and 1893 reaffirmed their status as endangered on June 28, 2005 (70 FR 37160), because dams restrict access to a small 1894 fraction of their historic spawning habitat and the habitat remaining to them is degraded. Sacramento River winter- 1895 run Chinook salmon consist of a single self-sustaining population which is entirely dependent upon the provision of 1896 suitably cool water from Shasta Reservoir during periods of spawning, incubation and rearing.

1897 Construction of Shasta Dams in the 1940s eliminated access to historic spawning habitat for winter-run Chinook 1898 salmon in the basin. Winter-run Chinook salmon were not expected to survive this habitat alteration (Moffett, 1949). 1899 However, cold water releases from Shasta Dam have created conditions suitable for winter Chinook salmon for 1900 roughly 60 miles downstream from the dam. As a result the species has been reduced to a single spawning 1901 population confined to the mainstem Sacramento River below Keswick Dam, although some adult winter-run 1902 Chinook salmon were recently observed in Battle Creek, a tributary to the upper Sacramento River.

1903 Quantitative estimates of run-size are not available for the period before 1996, the completion of Red Bluff 1904 Diversion Dam. However, winter-runs may have been as large as 200,000 fish based upon commercial fishery 1905 records from the 1870s (Fisher, 1994). The California Department of Fish and Game estimated spawning 1906 escapement of Sacramento River winter-run Chinook salmon at 61,300 (60,000 in the mainstem, 1,000 in Battle 1907 Creek and 300 in Mill Creek) in the early 1960s. During the first 3 years of operation of the county facility at the 1908 Red Bluff Diversion Dam (1967 to 1969), the spawning run of winter-run Chinook salmon averaged 86,500 fish. 1909 From 1967 through the mid-1990s, the population declined at an average rate of 18% per year, or roughly 50% per 1910 generation. The population reached critically low levels during the drought of 1987 to 1992; the 3-year average run 1911 size for the period of 1989 to 1991 was 388 fish. Based on the Red Bluff Diversion Dam counts, the population has 1912 been growing rapidly since the 1990s. Mean run size from 1995-2000 has been 2,191, but have ranged from 364 to 1913 65,683 (Good et al., 2005). Most recent estimates indicate that the short term trend is 0.26, while the population 1914 growth rate is still less than 1(Good et al., 2005). The draft recovery goal for the species is an average of 10,000 1915 female spawners per year and a population growth rate >1.0, calculated over 13 years of data (Good et al., 2005).

1916 Critical Habitat 1917 NMFS designated critical habitat for Sacramento River winter-run Chinook salmon on June 16, 1993 (58 FR 1918 33212). The following areas consisting of the water, waterway bottom and adjacent riparian zones: the Sacramento 1919 River from Keswick Dam, Shasta County (river mile 302) to Chipps Island (river mile 0) at the westward margin of 1920 the Sacramento-San Joaquin Delta and other specified estuarine waters. These areas are important for the species’ 1921 overall conservation by protecting quality growth, reproduction and feeding. Factors contributing to the downward 1922 trends in this species include reduced access to spawning/rearing habitat, possible loss of genetic integrity through 1923 population bottlenecks, inadequately screened diversions, predation at artificial structures and by nonnative species, 1924 pollution from Iron Mountain Mine and other sources, adverse flow conditions, high summer water temperatures, 1925 unsustainable harvest rates, passage problems at various structures and vulnerability to drought (Good et al., 2005).

1926 Snake River Fall-Run Chinook Salmon

1927 Distribution and Description of the Listed Species 1928 The Snake River fall-run Chinook salmon species includes all naturally spawned populations of fall-run Chinook 1929 salmon in the mainstem Snake River below Hells Canyon Dam, and in the Tucannon River, Grande Ronde River, 1930 Imnaha River, Salmon River and Clearwater River subbasins. Four artificial propagation programs are part of this 1931 species.

1932 Historically, the primary fall-run Chinook salmon spawning areas occurred on the upper mainstem Snake River 1933 (Connor et al., 2005). A series of Snake River dams blocked access to the upper reaches, which significantly 1934 reduced spawning and rearing habitat. Consequently, salmon now reside in waters that are generally cooler than pre- 1935 dam habitats. Currently, natural spawning occurs at the upper end of Lower Granite Reservoir to Hells Canyon 1936 Dam, the lower reaches of the Imnaha, Grande Ronde, Clearwater and Tucannon rivers and small mainstem sections 1937 in the tailraces of the lower Snake River hydroelectric dams.

1938 Adult Snake River fall-run Chinook salmon enter the Columbia River in July and August, and spawning occurs from 1939 October through November. Juveniles emerge from the gravels in March and April of the following year, moving 1940 downstream from natal spawning and early rearing areas from June through early autumn. Prior to dam construction, 1941 fall Chinook salmon were primarily ocean-type (migrated downstream and reared in the mainstem Snake River 1942 during their first year). However, today both an ocean-type and reservoir-type occur (Connor et al., 2005). The 1943 reservoir-type juveniles overwinter in pools created by dams before migrating to sea; this response is likely due to 1944 early development in cooler temperatures which prevents rapid growth. Phenotypic characteristics have shifted in 1945 apparent response to environmental changes from hydroelectric dams (Connor et al., 2005). Migration downstream 1946 appears to be influenced by flow velocity within both river and reservoir systems (Tiffan et al., 2009).

1947 Status and Trends 1948 NMFS originally listed Snake River fall-run Chinook salmon as endangered in 1992 (57 FR 14653) but reclassified 1949 their status as threatened on June 28, 2005 (70 FR 37160). Estimated annual returns for the period 1938 to 1949 was 1950 72,000 fish, and by the 1950s, numbers had declined to an annual average of 29,000 fish (Bjornn and Horner 1980). 1951 Numbers of Snake River fall-run Chinook salmon continued to decline during the 1960s and 1970s as approximately 1952 80% of their historic habitat was eliminated or severely degraded by the construction of the Hells Canyon complex 1953 (1958 to 1967) and the lower Snake River dams (1961 to 1975). Counts of natural-origin adult Snake River fall-run 1954 Chinook salmon at Lower Granite Dam were 1,000 fish in 1975, and ranged from 78 to 905 fish (with an average of 1955 489 fish) over the ensuing 25-year period (Good et al., 2005). Numbers of natural-origin Snake River fall-run 1956 Chinook salmon have increased over the last few years, with estimates at Lower Granite Dam of 2,652 fish in 2001, 1957 2,095 fish in 2002, and 3,895 fish in 2003.

1958 Snake River fall-run Chinook salmon have exhibited an upward trend in returns over Lower Granite Dam since the 1959 mid 1990s. Returns classified as natural-origin spawners exceeded 2,600 fish in 2001, compared to a 1997 to 2001 1960 geometric mean natural-origin count of 871 (35% of the proposed delisting abundance criteria of 2,500 natural 1961 spawners averaged over 8 years). Both the long- and short-term trends in natural returns are positive. Harvest 1962 impacts on Snake River fall Chinook salmon declined after listing and have remained relatively constant in recent 1963 years. Mainstem conditions for sub-yearling Chinook migrants from the Snake River have generally improved since 1964 the early 1990s. The hatchery component, derived from outside the basin, has decreased as a percentage of the run at 1965 Lower Granite Dam from the 1998/99 status reviews (5-year average of 26.2%) to 2001 (8%). This reflects an 1966 increase in the Lyons Ferry component, systematic removal of marked hatchery fish at the Lower Granite trap, and

1967 modifications to the Umatilla supplementation program to increase homing of fall Chinook salmon release groups. 1968 Hatcheries stocking fish to the Snake River fall run produce genetic affects in the population due to three major 1969 components: natural-origin fish (which may be progeny of hatchery fish), returns of Snake River fish from the 1970 Lyons Ferry Hatchery program and strays from hatchery programs outside the Snake River.

1971 Critical Habitat 1972 NMFS designated critical habitat for Snake River fall-run Chinook salmon on December 28, 1993 (58 FR 68543). 1973 This critical habitat encompasses the waters, waterway bottoms and adjacent riparian zones of specified lakes and 1974 river reaches in the Columbia River that are or were accessible to ESA listed Snake River salmon (except reaches 1975 above impassable natural falls and Dworshak and Hells Canyon Dams). These areas are important for the species’ 1976 overall conservation by protecting quality growth, reproduction and feeding. Adjacent riparian zones are defined as 1977 those areas within a horizontal distance of 300 feet from the normal line of high water of a stream channel or from 1978 the shoreline of a standing body of water. Designated critical habitat includes the Columbia River from a straight 1979 line connecting the west end of the Clatsop jetty (Oregon side) and the west end of the Peacock jetty (Washington 1980 side) and including all river reaches from the estuary upstream to the confluence of the Snake River and all Snake 1981 River reaches upstream to Hells Canyon Dam. Critical habitat also includes several river reaches presently or 1982 historically accessible to Snake River fall-run Chinook salmon. Limiting factors identified for Snake River fall-run 1983 Chinook salmon include: mainstem lower Snake and Columbia hydrosystem mortality, degraded water quality, 1984 reduced spawning and rearing habitat due to mainstem lower Snake River hydropower system, harvest impacts, 1985 impaired stream flows, barriers to fish passage in tributaries, excessive sediment and altered floodplain and channel 1986 morphology (NMFS, 2005b).

1987 Snake River Spring/Summer-Run Chinook Salmon

1988 Distribution and Description of the Listed Species 1989 The Snake River spring/summer-run Chinook salmon species includes all naturally spawned populations of 1990 spring/summer-run Chinook salmon in the mainstem Snake River and the Tucannon River, Grande Ronde River, 1991 Imnaha River and Salmon River subbasins. Fifteen artificial propagation programs are part of the species. The 1992 Interior Columbia Basin Technical Recovery Team has identified 32 populations in five major population groups 1993 (Upper Salmon River, South Fork Salmon River, Middle Fork Salmon River, Grande Ronde/Imnaha, Lower Snake 1994 Mainstem Tributaries) for this species. Historic populations above Hells Canyon Dam are considered extinct 1995 (ICBTRT, 2003).

1996 Snake River spring/summer-run Chinook salmon have a stream-type life history. Spawning occurs in late summer 1997 and early fall and eggs incubate over the following winter and hatch in late winter and early spring of the following 1998 year. Juveniles mature in the river for one year before migrating to the ocean in the spring of their second year. 1999 Larger outmigrants have a higher survival rate during outmigration (Zabel and Williams, 2002; Zabel and Achord, 2000 2004). Depending on tributary and the specific habitat conditions, juveniles may migrate widely from natal reaches 2001 into alternative summer-rearing or overwintering areas. Spawners return to spawn primarily as 4- and 5-year-olds 2002 after 2 to 3 years in the ocean.

2003 Status and Trends 2004 NMFS originally listed Snake River spring/summer-run Chinook salmon as threatened on April 22, 1992 (57 FR 2005 14653), and reaffirmed their status as threatened on June 28, 2005 (70 FR 37160). Although direct estimates of 2006 historical annual Snake River spring/summer Chinook salmon returns are not available, returns may have declined 2007 by as much as 97% between the late 1800s and 2000. According to Matthews and Waples (1991), total annual Snake

2008 River spring/summer Chinook salmon production may have exceeded 1.5 million adult fish in the late 1800s. Total 2009 (natural plus hatchery origin) returns fell to roughly 100,000 spawners by the late 1960s (Fulton, 1968). The 1997 to 2010 2001 geometric mean total return for the summer run component at Lower Granite Dam was slightly more than 2011 6,000 fish, compared to the geometric mean of 3,076 fish for the years 1987 to 1996 (Good et al., 2005). Good et 2012 al., (2005) reported that risks to individual populations within the species may be greater than the extinction risk for 2013 the entire species due to low levels of annual abundance and the extensive production areas within the Snake River 2014 basin. Although the average abundance in the most recent decade is more abundant than the previous decade, there 2015 is no obvious long-term trend.

2016 Critical Habitat 2017 NMFS designated critical habitat for Snake River spring/summer-run Chinook salmon on October 25, 1999 (64 FR 2018 57399). This critical habitat encompasses the waters, waterway bottoms and adjacent riparian zones of specified 2019 lakes and river reaches in the Columbia River that are or were accessible to ESA listed Snake River salmon (except 2020 reaches above impassable natural falls and Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined 2021 as those areas within a horizontal distance of 300 feet from the normal line of high water of a stream channel or 2022 from the shoreline of a standing body of water. Designated critical habitat includes the Columbia River from a 2023 straight line connecting the west end of the Clatsop jetty (Oregon side) and the west end of the Peacock jetty 2024 (Washington side) and including all river reaches from the estuary upstream to the confluence of the Snake River 2025 and all Snake River reaches upstream to Hells Canyon Dam; the Palouse River from its confluence with the Snake 2026 River upstream to Palouse Falls, the Clearwater River from its confluence with the Snake River upstream to its 2027 confluence with Lolo Creek; the North Fork Clearwater River from its confluence with the Clearwater river 2028 upstream to Dworshak Dam. Critical habitat also includes several river reaches presently or historically accessible to 2029 Snake River spring/summer Chinook salmon. These areas are important for the species’ overall conservation by 2030 protecting quality growth, reproduction and feeding. Limiting factors identified for this species include hydrosystem 2031 mortality, reduced stream flow, altered channel morphology and floodplain, excessive fine sediment and degraded 2032 water quality (NMFS, 2006).

2033 Upper Willamette River Chinook Salmon

2034 Distribution and Description of the Listed Species 2035 The Upper Willamette River Chinook salmon species includes all naturally spawned populations of spring-run 2036 Chinook salmon in the Clackamas River and in the Willamette River, and its tributaries, above Willamette Falls, 2037 Oregon. Seven artificial propagation programs are part of the species.

2038 Upper Willamette River Chinook salmon occupy the Willamette River and its tributaries. All spring-run Chinook 2039 salmon in the species, except those entering the Clackamas River, must pass Willamette Falls. In the past, this 2040 species included sizable numbers of spawning salmon in the Santiam River, the middle fork of the Willamette River, 2041 and the McKenzie River, as well as smaller numbers in the Molalla River, Calapooia River and Albiqua Creek. 2042 Historically, access above Willamette Falls was restricted to the spring when flows were high. In autumn, low flows 2043 prevented fish from ascending past the falls. The Upper Willamette spring-run Chinook salmon are one of the most 2044 genetically distinct Chinook salmon groups in the Columbia River Basin. Upper Willamette River Chinook salmon 2045 enter the Columbia River and estuary earlier than other spring Chinook salmon species (Meyers et al., 1998). Fall- 2046 run Chinook salmon spawn in the Upper Willamette but are not considered part of the species because they are not 2047 native.

2048 Status and Trends 2049 NMFS originally listed Upper Willamette River Chinook salmon as threatened on March 24, 1999 (64 FR 14308), 2050 and reaffirmed their status as threatened on June 28, 2005 (70 FR 37160). The total abundance of adult spring-run 2051 Chinook salmon (hatchery-origin plus natural-origin fish) passing Willamette Falls has remained relatively steady

2052 over the past 50 years (ranging from approximately 20,000 to 70,000 fish), but it is an order of magnitude below the 2053 peak abundance levels observed in the 1920s (approximately 300,000 adults). Until recent years, interpretation of 2054 abundance levels has been confounded by a high but uncertain fraction of hatchery-produced fish. Although the 2055 number of adult spring-run Chinook salmon crossing Willamette Falls is in the same range (about 20,000 to 70,000

2056 adults) it has been for the last 50 years, a large fraction of these are hatchery produced. Estimates of the percentage 2057 of hatchery fish range according to tributary, several of which exceed 70% (Good et al., 2005). The Calapooia River 2058 is estimated to contain 100% hatchery fish. Insufficient information on hatchery production in the past prevents a 2059 meaningful analysis of the population trend; therefore no formal trend analysis is available.

2060 Most natural spring Chinook salmon populations of the Upper Willamette River are likely extirpated or nearly so, 2061 with only one remaining naturally reproducing population identified in this species: the spring Chinook salmon in 2062 the McKenzie River. Unfortunately, recently short-term declines in abundance suggest that this population may not 2063 be self-sustaining (Meyers et al., 1998). Abundance in this population has been relatively low (low thousands) with 2064 a substantial number of these fish being of hatchery origin. The population increased substantially from 2000 to 2065 2003, probably due to increased survival in the ocean. Future survival rates in the ocean are unpredictable, and the 2066 likelihood of long-term sustainability for this population has not been determined. Of concern is that a majority of 2067 the spawning habitat and approximately 30 to 40% of total historical habitat are no longer accessible because of 2068 dams (Good et al., 2005). Individuals from the species migrate far north and are caught incidentally in ocean 2069 fisheries, particularly off southeast Alaska and northern Canada, and in the mainstem Columbia and Willamette 2070 rivers during spring.

2071 Critical Habitat 2072 NMFS designated critical habitat for Upper Willamette River Chinook salmon on September 2, 2005 (70 FR 2073 52630). Critical habitat for upper Willamette River Chinook salmon includes defined areas within subbasins of the 2074 middle fork Willamette River, upper Willamette River, McKenzie River, Santiam River, Crabtree Creek, Molalla 2075 River and Clackamas River. This designation includes the stream channels within the designated stream reaches and 2076 includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high-water line is not 2077 defined the lateral extent is defined as the bankfull elevation. The critical habitat designation for this species 2078 identifies primary constituent elements that include sites necessary to support one or more Chinook salmon life 2079 stages. Specific sites include freshwater spawning and rearing sites, freshwater migration corridors. The physical or 2080 biological features that characterize these sites include water quality and quantity, natural cover, forage, adequate 2081 passage conditions and floodplain connectivity. Of 65 subbasins reviewed in NMFS’ assessment of critical habitat 2082 for the Upper Willamette River Chinook salmon species, 19 subbasins were rated as having a medium conservation 2083 value, 19 were rated as low, and the 27 remaining subbasins were rated as having a high conservation value to 2084 Upper Willamette River Chinook salmon. Federal lands were generally rated as having high conservation value to 2085 the species’ spawning and rearing. Factors contributing to the downward trends in this species include reduced 2086 access to spawning/rearing habitat in tributaries, hatchery impacts, altered water quality and temperature in 2087 tributaries, altered stream flow in tributaries and lost or degraded floodplain connectivity and lowland stream 2088 habitat.

2089 Chum Salmon 2090 Chum salmon are more widely distributed than other salmon and may have at one time made up nearly 50% of the

2091 Pacific salmon biomass in the Pacific Ocean (Salo, 1991). Historically, chum salmon were distributed throughout 2092 the coastal regions of western Canada and the U.S., as far south as Monterey Bay, California, to the Arctic coast and 2093 east to the Mackenzie River, in the Beaufort Sea. They also ranged in Asia from Korea to the Arctic coast of the 2094 Soviet Union and west to the Lena River. Presently, major spawning populations on the west coast of the U.S. are 2095 found only as far south as Tillamook Bay on the northern Oregon coast. In this section of our Opinion, we discuss 2096 the distribution, status and critical habitats of the two listed species of threatened chum salmon separately. However, 2097 because chum salmon species share many characteristics, we begin this section describing those characteristics 2098 common across species.

2099 There are no known landlocked or naturalized freshwater populations of chum salmon. Like Chinook salmon, chum 2100 salmon are semelparous (Randall et al., 1987 as cited in Johnson et al., 1997). Their general life cycle spans fresh 2101 and marine waters, although chum salmon are more marine oriented than the other Pacific salmon. Chum salmon 2102 spend 2 to 5 years in feeding areas in the northeast Pacific Ocean (Johnson et al., 1997). Chum salmon distribute 2103 throughout the North Pacific Ocean and Bering Sea (Neave et al., 1976 as cited in Johnson et al., 1997).

2104 Spawning migrations generally occur in the summer and fall; the precise spawn timing and migration varies across 2105 populations. Generally, spawning runs consist of fish between 2 and 5 years of age. Fecundity is highly variable and 2106 is correlated with body size and region (Salo, 1991). Once they emerge from their gravel nests, chum salmon fry 2107 outmigrate to seawater almost immediately (Salo, 1991). This ocean-type migratory behavior contrasts with the 2108 stream-type behavior of other species in its genus. Because of their small size chum salmon will form loosely 2109 aggregated schools, presumably to reduce predation by swamping predators (Miller and Brannon 1982; Pitcher 2110 1986).

2111 Generally, chum fry emigrate to estuaries between March through May where they forage on epibenthic and neritic 2112 food resources. The timing of juvenile entry into sea water is commonly correlated with nearshore warming and 2113 associated plankton blooms (Groot and Margolis., 1991). As food resources decline and the fish grow, they move 2114 further out to forage on pelagic and nektonic organisms (Simenstad and Salo, 1982; Salo, 1991). Migratory studies 2115 indicate that chum salmon in their first year of life will typically maintain a coastal migratory pattern although the 2116 pattern is variable as they mature at sea. At sea chum salmon feed on pteropods, euphausiids, amphipods, fish and 2117 squid larvae (Salo, 1991).

2118 Threats 2119 Natural Threats. Chum salmon are exposed to high rates of natural predation each stage of their life stage and in 2120 particular during migration. Mortality at emergence or prior to emergence is significant because eggs develop in the 2121 interstitial spaces in the stream gravel and storm surges that redeposit gravels and wash out eggs or introduce silt to 2122 the interstitial spaces can reduce egg survival. Other factors that reduce egg survival and larvae development include 2123 low dissolved oxygen, poor percolation and extreme cold or warm temperatures.

2124 Anthropogenic Threats. Chum salmon, like the other listed salmon, have declined under the combined effects of 2125 overharvests in fisheries; competition from fish raised in hatcheries and native and non-native exotic species; dams 2126 that block their migrations and alter river hydrology; gravel mining that impedes their migration and alters the 2127 dynamics (hydrogeomorphology) of the rivers and streams that support juveniles; water diversions that deplete 2128 water levels in rivers and streams; destruction or degradation of riparian habitat that increases water temperatures in 2129 rivers and streams sufficient to reduce the survival of juvenile chum salmon; and land use practices (logging, 2130 agriculture, urbanization) that destroy wetland and riparian ecosystems while introducing sediment, nutrients, 2131 biocides, metals and other pollutants into surface and ground water and degrade water quality in the fresh water,

2132 estuarine and coastal ecosystems throughout the Pacific Northwest. These threats are the same as those summarized 2133 in detail under the Chinook salmon of this section.

2134 Columbia River Chum Salmon

2135 Distribution and Description of the Listed Species 2136 The Columbia River chum species includes all naturally spawned populations of chum salmon in the Columbia 2137 River and its tributaries in Washington and Oregon. Three artificial propagation programs are part of the species.

2138 Most of the chum salmon that comprise this species return to northern tributaries of the Columbia River (in 2139 Washington State), primarily the Grays River, in areas immediately below Bonneville Dam and in smaller numbers 2140 under the I-205 bridge near Vancouver. Chum populations that formerly occupied tributaries on the south bank of 2141 the Columbia (in Oregon) are considered extirpated or nearly so. Observers have documented spawning over 2142 multiple years in the mainstem Columbia River, near McCord Creek and Multnomah Falls in Oregon, although the 2143 number of spawners in these areas are generally quite low (McElhany et al., 2007).

2144 Status and Trends 2145 NMFS listed Columbia River chum salmon as threatened on March 25, 1999, and reaffirmed their threatened status 2146 on June 28, 2005 (71 FR 37160). Chum salmon in the Columbia River once numbered in the hundreds of thousands 2147 of adults and were reported in almost every river in the Lower Columbia River basin, but by the 1950s most runs 2148 disappeared (Rich, 1942; Marr, 1943; Fulton, 1970). The total number of chum salmon returning to the Columbia

2149 River in the last 50 years has averaged a few thousand per year, with returns limited to a very restricted portion of 2150 the historical range. Significant spawning occurs in only two of the 16 historical populations, meaning that 88% of 2151 the historical populations are extirpated, or nearly so (Good et al., 2005). The two remaining populations are the 2152 Grays River and the lower Columbia Gorge tributaries (Good et al., 2005). Both long- and short-term trends for 2153 Grays River abundance are negative, but the current trend in abundance for the lower Columbia Gorge tributaries is 2154 slightly positive. Chum salmon appear to be extirpated from the Oregon portion of this species. In 2000, ODFW 2155 conducted surveys to determine the abundance and distribution of chum salmon in the Columbia River, and out of 2156 30 sites surveyed, only one chum salmon was observed.

2157 Few Columbia River chum salmon have been observed in tributaries between The Dalles and Bonneville dams. 2158 Surveys of the White Salmon River in 2002 found one male and one female carcass, with no evidence of spawning 2159 (Ehlke and Keller, 2003). Chum salmon were not observed in any upper Columbia Gorge tributaries during the 2003 2160 and 2004 spawning ground surveys. Finally, most Columbia River chum populations have been functionally 2161 extirpated or are presently at very low abundance levels.

2162 Historically, the Columbia River chum salmon supported a large commercial fishery in the first half of this century 2163 which landed more than 500,000 fish per year as recently as 1942. Commercial catches declined beginning in the 2164 mid-1950s, and in later years rarely exceeded 2,000 per year (Good et al., 2005). During the 1980s and 1990s, the 2165 combined abundance of natural spawners for the lower Columbia Gorge, Washougal and Grays River populations 2166 was below 4,000 adults. In 2002, however, the abundance of natural spawners exhibited a substantial increase at 2167 several locations (estimate of natural spawners is approximately 20,000 adults) (Good et al., 2005). The cause of this 2168 dramatic increase in abundance is unknown. However, long- and short-term productivity trends for populations are 2169 at or below replacement. The loss of off-channel habitat and the extirpation of approximately 17 historical 2170 populations increase this species’ vulnerability to environmental variability and catastrophic events. Overall, the 2171 populations that remain have low abundance, limited distribution and poor connectivity (Good et al., 2005).

2172 Critical Habitat 2173 NMFS designated critical habitat for Columbia River chum salmon on September 2, 2005 (70 FR 52630). The 2174 designated includes defined areas in the following subbasins: Middle Columbia/Hood, Lower Columbia/Sandy, 2175 Lewis, Lower Columbia/Clatskanie, Lower Cowlitz, Lower Columbia subbasin and river corridor. This designation 2176 includes the stream channels within the designated stream reaches and includes a lateral extent as defined by the 2177 ordinary high water line. In areas where the ordinary high-water line is not defined the lateral extent is defined as the 2178 bankfull elevation.

2179 The critical habitat designation for this species identifies primary constituent elements that include sites necessary to 2180 support one or more chum salmon life stages. These areas are important for the species’ overall conservation by 2181 protecting quality growth, reproduction and feeding and are rated as having high conservation value to the species. 2182 Columbia River chum salmon have primary constituent elements of freshwater spawning, freshwater rearing, 2183 freshwater migration, estuarine areas free of obstruction, nearshore marine areas free of obstructions and offshore 2184 marine areas with good water quality. The physical or biological features that characterize these sites include water 2185 quality and quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. Of 21 2186 subbasins reviewed in NMFS' assessment of critical habitat for the Columbia River chum salmon species, three 2187 subbasins were rated as having a medium conservation value, no subbasins were rated as low, and the majority of 2188 subbasins (18), were rated as having a high conservation value to Columbia River chum salmon. The major factors 2189 limiting recovery for Columbia River chum salmon are altered channel form and stability in tributaries, excessive 2190 sediment in tributary spawning gravels, altered stream flow in tributaries and the mainstem Columbia River, loss of 2191 some tributary habitat types and harassment of spawners in the tributaries and mainstem.

2192 Hood Canal Summer-Run Chum Salmon

2193 Distribution and Description of the Listed Species 2194 The Hood Canal summer-run chum salmon species includes all naturally spawned populations of summer-run chum 2195 salmon in Hood Canal and its tributaries as well as populations in Olympic Peninsula rivers between Hood Canal 2196 and Dungeness Bay, Washington (64 FR 14508) from mid-September to mid-October (WDF, 1993), but may enter 2197 natal rivers in late August. Eight artificial propagation programs are considered to be part of the species.

2198 On average Hood Canal chum salmon reside in estuaries for 23 days; daily tidal migrations have not been observed, 2199 but prey availability does influence movement patterns (Bax, 1983). Upon leaving their natal estuaries summer-run 2200 chum salmon generally migrate through Hood Canal and into the main body of Puget Sound.

2201 Status and Trends 2202 NMFS listed Hood Canal summer-run chum salmon as threatened on March 25, 1999 (64 FR 14508), and 2203 reaffirmed as threatened on June 28, 2005 (70 FR 37160). Historically, Hood Canal summer-run chum salmon 2204 comprised an estimated 16 populations. Only eight extant populations remain within this species (Good et al., 2005). 2205 Most of the extirpated populations historically occurred on the eastern side of Hood Canal, which is cause for 2206 concern over the current spatial structure of this species. The widespread loss of estuary and lower floodplain habitat 2207 is a continuing threat to species spatial structure and connectivity.

2208 Although adult returns for some populations showed modest improvements in 2000, with upward trends continuing 2209 in 2001 and 2002 (Good et al., 2005), the recent 5-year mean abundance is variable among populations in the 2210 species, ranging from one fish to nearly 4,500 fish in the Big/Little Quilcene rivers. Hood Canal summer-run chum 2211 are the focus of an extensive rebuilding program developed and implemented since 1992 by the State and Tribal

2212 comanagers. Two populations (the combined Quilcene and Union River populations) are above the conservation 2213 thresholds established by the rebuilding plan. However, most populations remain depressed. Estimates of the 2214 fraction of naturally spawning hatchery fish exceed 60% for some populations, indicating that reintroduction 2215 programs are supplementing the numbers of total fish spawning naturally in streams (Good et al., 2005). Long-term 2216 trends in productivity are above replacement for only the Quilcene and Union River populations (Good et al., 2005). 2217 Buoyed by recent increases, seven populations are exhibiting short-term productivity trends above replacement.

2218 Of the eight programs releasing summer-run chum salmon that are considered to be part of the Hood Canal summer 2219 chum species, six of the programs are supplementation programs implemented to preserve and increase the 2220 abundance of native populations in their natal watersheds. NMFS’ assessment of the effects of artificial propagation 2221 on species extinction risk concluded that these hatchery programs collectively do not substantially reduce the 2222 extinction risk of the species. The hatchery programs are reducing risks to species abundance by increasing total 2223 species abundance as well as the number of naturally spawning summer-run chum salmon.

2224 Critical Habitat 2225 NMFS designated critical habitat for Hood Canal summer-run chum salmon on September 2, 2005 (70 FR 52630). 2226 The specific geographic area includes the Skokomish River, Hood Canal subbasin, which includes the Hamma 2227 Hamma and Dosewallips rivers and others, the Puget Sound subbasin, Dungeness/Elwha subbasin and nearshore 2228 marine areas of Hood Canal and the Strait of Juan de Fuca from the line of extreme high tide to a depth of 30 meters. 2229 This includes a narrow nearshore zone from the extreme high-tide to mean lower low tide within several Navy 2230 security/restricted zones. This also includes about 8 miles of habitat that was unoccupied at the time of the 2231 designation Finch, Anderson and Chimacum creeks (69 FR 74572; 70 FR 52630), but has recently been re-seeded. 2232 The designation for Hood Canal summer-run chum, like others made at this time, includes the stream channels 2233 within the designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas 2234 where the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation.

2235 The specific primary constituent elements identified for Hood Canal summer-run chum salmon are areas for 2236 spawning, freshwater rearing and migration, estuarine areas free of obstruction, nearshore marine areas free of 2237 obstructions and offshore marine areas with good water quality. The physical or biological features that characterize 2238 these sites include water quality and quantity, natural cover, forage, adequate passage conditions and floodplain 2239 connectivity. Of 17 subbasins reviewed in NMFS' assessment of critical habitat for the Hood Canal chum salmon 2240 species, 14 subbasins were rated as having a high conservation value, while only three were rated as having a 2241 medium value to conservation. These areas are important for the species’ overall conservation by protecting quality 2242 growth, reproduction, and feeding. Limiting factors identified for this species include degraded floodplain and 2243 mainstem river channel structure, degraded estuarine conditions and loss of estuarine habitat, riparian area 2244 degradation and loss of in-river wood in mainstem, excessive sediment in spawning gravels and reduced stream flow 2245 in migration areas.

2246 Coho Salmon

2247 Description of the Species 2248 Coho salmon occur naturally in most major river basins around the North Pacific Ocean from central California to 2249 northern Japan (Laufle et al., 1986). They spawn in the fall and winter and the young emerge in the spring. Adult 2250 coho salmon may remain in fresh water three or more months before spawning, with early migrants often moving 2251 farther upstream than later migrants (Sandercock, 1991). Spawning occurs in a few third-order streams, but most 2252 spawning activity occurs in fourth- and fifth-order streams. As with other Pacific salmon, coho salmon fecundity

2253 varies with the size of the fish and latitudinally with coho salmon in northern climes generally exhibiting higher 2254 rates of fecundity (Sandercock, 1991). Most coho salmon mature and spawn at age 3, although there are exceptions 2255 (Sandercock, 1991).

2256 The outmigration of coho smolts begins as early as February and may continue through the summer and fall, with 2257 peak outmigration often between March and June, although this varies among basins and environmental conditions 2258 (Sandercock, 1991). While at sea, coho salmon tend to eat fish including herring, sand lance, sticklebacks, sardines, 2259 shrimp and surf smelt. While in estuaries and in fresh water coho salmon are significant predators of Chinook, pink 2260 and chum salmon, as well as aquatic and terrestrial insects. Smaller fish, such as fry, eat chironomids, plecoptera and 2261 other larval insects and typically use visual cues to find their prey.

2262 Threats 2263 Natural Threats. Coho salmon, like other salmon, are exposed to high rates of natural predation at each life stage. 2264 Most mortality, however, occurs in the freshwater life stages. Winter mortality may be significant for coho salmon 2265 because they overwinter in fresh water, where they can be swept downstream from freshets or eaten by raccoon, 2266 cutthroat trout or other small animals. Once coho reach the ocean, survival is high (Sandercock, 1991).

2267 Anthropogenic Threats. Coho salmon have declined under the combined effects of overharvests in fisheries; 2268 competition from fish raised in hatcheries and native and non-native exotic species; dams that block their migrations 2269 and alter river hydrology; gravel mining that impedes their migration and alters the dynamics 2270 (hydrogeomorphology) of the rivers and streams that support juveniles; water diversions that deplete water levels in 2271 rivers and streams; destruction or degradation of riparian habitat that increase water temperatures in rivers and 2272 streams sufficient to reduce the survival of juvenile coho salmon; and land use practices (logging, agriculture, 2273 urbanization) that destroy wetland and riparian ecosystems while introducing sediment, nutrients, biocides, metals 2274 and other pollutants into surface and ground water and degrade water quality in the fresh water, estuarine and coastal 2275 ecosystems throughout the species’ range. These threats are the same as those summarized in detail under the 2276 Chinook salmon of this section.

2277 Central California Coast Coho Salmon

2278 Distribution and Description of the Listed Species 2279 The Central California Coast coho salmon species extends from Punta Gorda in northern California south to and 2280 including the San Lorenzo River in central California (Sandercock, 1991). The species includes all naturally 2281 spawned populations of coho salmon from Punta Gorda in northern California south to and including the San 2282 Lorenzo River in central California, as well as populations in tributaries to San Francisco Bay, excluding the 2283 Sacramento-San Joaquin River system. Four artificial propagation programs are part of the Central California Coast 2284 coho salmon species.

2285 Coho salmon in this species enter rivers to spawn very late (peaking in January), with little time spent in fresh water 2286 between river entry and spawning. This compressed adult freshwater residency appears to coincide with the single, 2287 brief peak of river flow characteristic of this region.

2288 Status and Trends 2289 NMFS originally listed the central California coast coho salmon species as threatened on October 31, 1996 (61 FR 2290 56138) and later reclassified their status to endangered June 28, 2005 (70 FR 37160). Information on the abundance 2291 and productivity trends for the naturally spawning component of the central California coast coho species is

2292 extremely limited. There are no long-term time series of spawner abundance for individual river systems. Historical 2293 estimated escapement for this species is 56,100 for 1963 and more recent estimates suggest the species dropped to 2294 about one-fourth that size by the late 1980s and early 1990s (Good et al., 2005).

2295 Where data are available, analyses of juvenile coho presence-absence information, juvenile density surveys and 2296 irregular adult counts for the South Fork Noyo River indicate low abundance and long-term downward trends for the 2297 naturally spawning populations throughout the species (Good et al., 2005). Improved ocean conditions coupled with 2298 favorable stream flows and harvest restrictions have contributed to increased returns in 2001 in streams in the 2299 northern portion of the species, as indicated by an increase in the observed presence of fish in historically occupied 2300 streams (Good et al., 2005). Data are particularly lacking for many river basins in the southern two-thirds of the 2301 species where naturally spawning populations are considered to be at the greatest risk. The extirpation or near 2302 extirpation of natural coho salmon populations in several major river basins, and across most of the southern 2303 historical range of the species, represents a significant risk to species spatial structure and diversity (Good et al., 2304 2005).

2305 Artificial propagation of coho salmon within the Central California Coast species has declined since the species was 2306 listed in 1996 though it continues at the Noyo River and Scott Creek facilities. Two captive broodstock populations 2307 have recently been established. Genetic diversity risk associated with out-of-basin transfers appears to be minimal, 2308 but diversity risk from domestication selection and low effective population sizes in the remaining hatchery 2309 programs remains a concern. An artificial propagation program for coho was operated at the Don Clausen hatchery 2310 on the Russian River through the mid 1990s, but was terminated in 1996.

2311 For the naturally spawning component of the species, the biological review team found very high risk of extinction 2312 for the abundance, productivity and spatial structure of the Viable Salmon Population (VSP) parameters and 2313 comparatively moderate risk with respect to the diversity VSP parameter. The lack of direct estimates of the 2314 performance of the naturally spawned populations in this species, and the associated uncertainty this generates, was 2315 of specific concern to the biological review team. Informed by the VSP risk assessment and the associated 2316 uncertainty, the strong majority opinion of the biological review team was that the naturally spawned component of 2317 the Central California Coast coho species was “in danger of extinction.” Accordingly, NMFS upgraded the status of 2318 central California coast coho species to endangered on June 28, 2005 (70 FR 37160).

2319 Central California Coast coho salmon populations continue to be depressed relative to historical numbers. Strong 2320 indications show that breeding groups have been lost from a significant percentage of historical stream range. A 2321 number of coho populations in the southern portion of the range appear to be either extinct or nearly so, including 2322 those in Gualala, Garcia, and Russian rivers, as well as smaller coastal streams in and south of San Francisco Bay 2323 (Good et al., 2005).

2324 Critical Habitat 2325 NMFS designated critical habitat for central California coast coho salmon on May 5, 1999 (64 FR 24049). The 2326 designation encompasses accessible reaches of all rivers (including estuarine areas and riverine reaches) between 2327 Punta Gorda and the San Lorenzo River (inclusive) in California, including two streams entering San Francisco Bay: 2328 Arroyo Corte Madera Del Presidio and Corte Madera Creek. This critical habitat designation includes all waterways, 2329 substrate and adjacent riparian zones of estuarine and riverine reaches (including off-channel habitats) below 2330 longstanding naturally impassable barriers (i.e. natural waterfalls in existence for at least several hundred years). 2331 These areas are important for the species’ overall conservation by protecting growth, reproduction and feeding.

2332 Lower Columbia River Coho Salmon

2333 Distribution and Description of the Listed Species 2334 The lower Columbia River coho salmon species includes all naturally spawned populations of coho salmon in the 2335 Columbia River and its tributaries in Washington and Oregon, from the mouth of the Columbia up to and including 2336 the Big White Salmon and Hood Rivers, and includes the Willamette River to Willamette Falls, Oregon. Twenty- 2337 five artificial propagation programs are part of this species.

2338 Two distinct runs distinguished by the timing of adult returns to fresh water (early returners and later returners) 2339 occur within the species. Early returning adults generally migrate south of the Columbia River once they reach the 2340 ocean, returning to fresh water in mid-August and to spawning tributaries in early September. Peak spawning of 2341 early returning adults occurs from mid-October to early November. Late returning adult coho salmon exhibit a 2342 northern oceanic distribution, return to the Columbia River from late September through December and enter 2343 tributaries from October through January. Most late return adults spawn between November through January, 2344 although some spawn in February and as late as March (Sandercock, 1991). Almost all Lower Columbia River 2345 species coho salmon females and most males spawn at 3 years of age.

2346 Status and Trends 2347 NMFS listed Lower Columbia River coho salmon as threatened on June 28, 2005 (70 FR 37160). The vast majority 2348 (over 90%) of the historic population in the Lower Columbia River coho salmon species appear to be either 2349 extirpated or nearly so.

2350 Only two populations of coho salmon that comprise this species produce a sizeable number of naturally spawned 2351 fish, the upper Sandy River population above Marmot Dam and the Clackamas River population above the North 2352 Fork Dam. Most of the other populations are believed to have very little, if any, natural production. The long-term 2353 and short-term trends for Marmot Dam counts are both negative. The long-term median growth rate is slightly 2354 positive for both the Sandy and Clackamas rivers, but the confidence intervals for each are very wide indicating 2355 there is a large amount of uncertainty. Both populations within the Sandy and Clackamas rivers have suffered from 2356 recruitment failure a number of times over the past 15 years, despite the reductions in harvest. The most serious 2357 threat facing this species is the scarcity of naturally-produced spawners, with attendant risks associated with small 2358 populations, loss of diversity and fragmentation and isolation of the remaining naturally-produced fish. Spatial 2359 structure has been substantially reduced by the loss of access to upper basins from tributary hydro development (i.e., 2360 Condit Dam on the Big White Salmon River and Powerdale Dam on the Hood River). The diversity of populations 2361 in all three areas has been eroded by large hatchery influences and periodically, low effective population sizes.

2362 Critical Habitat 2363 NMFS has not designated critical habitat for Lower Columbia River coho salmon.

2364 Southern Oregon/Northern California Coast Coho Salmon

2365 Distribution and Description of the Listed Species 2366 Southern Oregon/Northern California coast coho salmon consists of all naturally spawning populations of coho 2367 salmon that reside below long-term, naturally impassible barriers in streams between Punta Gorda, California and 2368 Cape Blanco, Oregon, as well as three artificial propagation programs: the Cole Rivers Hatchery, Trinity River 2369 Hatchery and Iron Gate Hatchery coho hatchery programs. The three major river systems supporting Southern 2370 Oregon – Northern Coastal California coast coho are the Rogue, Klamath (including the Trinity) and Eel rivers.

2371 Southern Oregon and Northern California coast coho immigrate to natal rivers in September or October. River entry 2372 is much later south of the Klamath River Basin, occurring in November and December, as well as in basins south of 2373 the Klamath River to the Mattole River, California. River entry occurs from mid-December to mid-February in 2374 rivers farther south. Because individuals enter rivers late, they spend much less time in the river. Coho salmon adults 2375 spawn at age 3, spending just over 1 year in fresh water and a year and a half in the ocean.

2376 Status and Trends 2377 Southern Oregon/Northern California coast coho salmon were listed as threatened on May 7, 1997 (62 FR 24588); 2378 they retained that classification when their status was reviewed on June 28, 2005 (70 FR 37160). Southern 2379 Oregon/Northern California Coast coho salmon extend from Cape Blanco in southern Oregon to Punta Gorda in 2380 northern California (Sandercock, 1991). The status of coho salmon coast-wide, including the Southern 2381 Oregon/Northern California Coast coho salmon species, was formally assessed in 1995 (Sandercock, 1991). Two 2382 subsequent status review updates have been published by NMFS, one addressing all West Coast coho salmon 2383 species and a second specifically addressing the Oregon Coast Southern Oregon/Northern California Coast coho 2384 salmon species (NMFS, 1996, 1997a). In the 1997 status update, estimates of natural population abundance were 2385 based on very limited information. New data on presence/absence in northern California streams that historically 2386 supported coho salmon were even more disturbing than earlier results, indicating that a smaller percentage of 2387 streams contained coho salmon compared to the percentage presence in an earlier study (Good et al., 2005). 2388 However, it was unclear whether these new data represented actual trends in local extinctions or were biased by 2389 sampling effort.

2390 Data on population abundance and trends are limited for the California portion of this species. No regular estimates 2391 of natural spawner escapement are available. Historical point estimates of coho salmon abundance for the early 2392 1960s and mid-1980s suggest that coho spawning escapement in the 1940s ranged between 200,000 and 500,000 2393 fish. Numbers declined to about 100,000 fish by the mid-1960s with about 43% originating from this species. Brown 2394 et al., (1994) estimated that the California portion of this species was represented by about 7,000 wild and 2395 naturalized coho salmon (Good et al., 2005). In the Klamath River, the estimated escapement has dropped from 2396 approximately 15,400 in the mid-1960s to about 3,000 in the mid 1980s, and more recently to about 2,000 (Good et 2397 al., 2005). The second largest producing river in this species, the Eel River, dropped from 14,000, to 4,000 to about 2398 2,000 during the same period. Historical estimates are considered “best guesses” made using a combination of 2399 limited catch statistics, hatchery records and the personal observations of biologists and managers.

2400 Most recently, Williams et al., (2006) described the structure of historic populations of Southern Oregon/Northern 2401 California Coast coho salmon. They described three categories of populations: functionally independent 2402 populations, potentially independent populations and dependent populations. Functionally independent populations 2403 are populations capable of existing in isolation with a minimal risk of extinction. Potentially independent 2404 populations are similar but rely on some interchange with adjacent populations to maintain a low probability of 2405 extinction. Dependent populations have a high risk of extinction in isolation over a 100-year timeframe and rely on 2406 exchange of individuals from adjacent populations to maintain themselves.

2407 Critical Habitat 2408 NMFS designated critical habitat for Southern Oregon/Northern California Coast coho salmon on May 5, 1999 (64 2409 FR 24049). Critical habitat for this species encompasses all accessible river reaches between Cape Blanco, Oregon 2410 and Punta Gorda, California. Critical habitat consists of the water, substrate and river reaches (including off-channel 2411 habitats) in specified areas. Accessible reaches are those within the historical range of the species that can still be 2412 occupied by any life stage of coho salmon. Of 155 historical streams for which data are available, 63% likely still

2413 support coho salmon. These river habitats are important for a variety of reasons, such as supporting the feeding and 2414 growth of juveniles and serving as spawning habitat for adults. Limiting factors identified for this species include: 2415 loss of channel complexity, connectivity and sinuosity, loss of floodplain and estuarine habitats, loss of riparian 2416 habitats and large in-river wood, reduced stream flow, poor water quality, temperature and excessive sedimentation 2417 and unscreened diversions and fish passage structures.

2418 Oregon Coast Coho Salmon

2419 Distribution and Description of the Listed Species 2420 The Oregon Coast coho salmon species includes all naturally spawned populations of coho salmon in Oregon 2421 coastal streams south of the Columbia River and north of Cape Blanco (63 FR 42587; August 1998). One hatchery 2422 population, the Cow Creek hatchery coho salmon, is considered part of the species.

2423 Status and Trends 2424 The Oregon coast coho salmon species was listed as a threatened species under the ESA on February 11, 2008 (73 2425 FR 7816), the conclusion to a 13-year history of court cases. The most recent NMFS status review for the Oregon 2426 Coast coho species was conducted by the biological review team in 2003, which assessed data through 2002. The 2427 abundance and productivity of Oregon Coast coho since the previous status review represented some of the best and 2428 worst years on record (Sandercock, 1991). Yearly adult returns for the Oregon Coast coho species were over 2429 160,000 natural spawners in 2001 and over 260,000 in 2002, far exceeding the abundance observed for the past 2430 several decades (Good et al., 2005). These increases in spawner abundance in 2000 to 2002 followed three 2431 consecutive brood years (the 1994 to 1996 brood years returning in 1997 to 1999, respectively) exhibiting 2432 recruitment failure (recruitment failure is when a given year class of natural spawners fails to replace itself when its 2433 offspring return to the spawning grounds 3 years later). These 3 years of recruitment failure were the only such 2434 instances observed thus far in the entire 55-year abundance time series for Oregon Coast coho salmon (although 2435 comprehensive population-level survey data have only been available since 1980). The 2000 to 2002 increases in 2436 natural spawner abundance occurred in many populations in the northern portion of the species, which were the 2437 most depressed at the time of the last review (Sandercock, 1991). Although encouraged by the increase in spawner 2438 abundance in 2000 to 2002, the biological review team noted that the long-term trends in species productivity were 2439 still negative due to the low abundances observed during the 1990s.

2440 Since the biological review team convened, the total abundance of natural spawners in the Oregon Coast coho 2441 species has declined each year (i.e., 2003 to 2006). The abundance of total natural spawners in 2006 (111,025 2442 spawners) was approximately 43% of the recent peak abundance in 2002 (255,372 spawners). In 2003, species-level 2443 productivity (evaluated in terms of the number of spawning recruits resulting from spawners 3 years earlier) was 2444 above replacement, and in 2004, productivity was approximately at replacement level. However, productivity was 2445 below replacement in 2005 and 2006 and dropped to the lowest level since 1991 in 2006 (73 FR 7816).

2446 Preliminary spawner survey data for 2007 (the average peak number of spawners per mile observed during random 2447 coho spawning surveys in 41 streams) suggest that the 2007 to 2008 return of Oregon Coast coho is either (1) much 2448 reduced from abundance levels in 2006, or (2) exhibiting delayed run timing from previous years. As of December 2449 13, 2007, the average peak number of spawners per mile was below 2006 levels in 38 of 41 surveyed streams (see 2450 ODFW 2007 in 73 FR 7816). It is possible that the timing of peak spawner abundance is delayed relative to previous 2451 years, and that increased spawner abundance in late December and January 2008 will compensate for the low levels 2452 observed thus far.

2453 The recent 5-year geometric mean abundance (2002 to 2006) of approximately 152,960 total natural spawners 2454 remains well above that of a decade ago (approximately 52,845 from 1992 to 1996). However, the decline in 2455 productivity from 2003 to 2006, despite generally favorable marine survival conditions and low harvest rates, is of 2456 concern (73 FR 7816).

2457 Critical Habitat 2458 NMFS designated critical habitat for Oregon Coast coho on February 11, 2008 (73 FR 7816). The designation 2459 includes 72 of 80 watersheds occupied by Oregon Coast coho salmon, and totals about 6,600 stream miles including 2460 all or portions of the Nehalem, Nestucca/Trask, Yaguina, Alsea, Umpqua and Coquille basins. These areas are 2461 essential for feeding, migration, spawning and rearing. The specific primary constituent elements include: spawning 2462 sites with water and substrate quantity to support spawning, incubation and larval development; freshwater rearing 2463 sites with water quantity and floodplain connectivity to form and maintain physical habitat conditions and support 2464 juvenile growth, foraging, behavioral development (e.g., predator avoidance, competition) and mobility; freshwater 2465 migratory corridors free of obstruction with adequate water quantity and quality conditions; and estuarine, nearshore 2466 and offshore areas free of obstruction with adequate water quantity, quality and salinity conditions that support 2467 physiological transitions between fresh- and saltwater, predator avoidance, foraging and other life history behaviors.

2468 Sockeye Salmon

2469 Description of the Species 2470 Sockeye salmon are the second most abundant of the seven Pacific salmon species and occur in the North Pacific 2471 and Arctic oceans and associated freshwater systems. This species ranges south as far as the Sacramento River in 2472 California and northern Hokkaido in Japan, to as far north as far as Bathurst Inlet in the Canadian Arctic and the 2473 Anadyr River in Siberia (Burgner, 1991). The largest populations, and hence the most important commercial 2474 populations, occur north of the Columbia River.

2475 The majority of sockeye salmon are anadromous fish that make use of lacustrine habitat for juvenile rearing. 2476 Sockeye salmon also have a wholly freshwater life history form, called kokanee (Burgner, 1991). In some cases a 2477 single population will give rise to both the anadromous and freshwater life history form. While in fresh water 2478 juveniles of both life history types prey primarily upon insects. In coastal lakes, where the migration to sea is 2479 relatively short and energetic costs are minimal, kokanee populations are rare.

2480 Once smolts enter the Pacific Ocean, they distribute widely across the North Pacific, generally above 40ºN where a 2481 current boundary is located. Season, temperature, salinity, life stage, age, size, availability of prey and population- 2482 of-origin are all factors that influence offshore movements (Burgner, 1991). They may migrate several thousand 2483 miles in search of prey and are considered to travel continuously (Royce et al., 1968). While at sea, sockeye prey 2484 upon a variety of organisms, including small fish (capelin, lantern fish, cod, sand lance, herring and pollock), squid, 2485 crustacean larvae, krill and other invertebrates (Foerster, 1968; French et al., 1976; Wing, 1977).

2486 Spawning generally occurs in late summer and autumn, but the precise time can vary greatly among populations. 2487 Age at maturity varies by region from 2 to 5 years, but is generally 2 to 4 years in Washington State (Burgner, 2488 1991). Males often arrive earlier than females on the spawning grounds and will persist longer during the spawning 2489 period.

2490 Incubation is a function of water temperatures, but generally lasts between 100 and roughly 200 days (Burgner, 2491 1991). After emergence, fry move rapidly downstream or upstream along the banks to the lake rearing area. Fry

2492 emerging from lakeshore or island spawning grounds may simply move along the shoreline of the lake (Burgner, 2493 1991).

2494 Threats 2495 Sockeye salmon have declined under the combined effects of overharvesting; competition from fish raised in 2496 hatcheries of native and non-native exotic species; dams that block migration patterns and alter river hydrology; 2497 water diversions that deplete water levels in rivers and streams; destruction or adverse modification of riparian 2498 habitat; and land use practices that destroy wetland and riparian ecosystems while introducing sediment, nutrients, 2499 biocides, metals and other pollutants into surface and ground water and degrade water quality in the fresh water, 2500 estuarine and coastal ecosystems throughout the species’ range. These threats are the same as those summarized in 2501 detail under the Chinook salmon of this section.

2502 Ozette Lake Sockeye Salmon

2503 Distribution and Description of the Listed Species 2504 This species includes all naturally spawned sockeye salmon in Ozette Lake, Ozette River, Coal Creek and other 2505 tributaries flowing into Ozette Lake, Washington. Composed of only one population, the Ozette Lake sockeye 2506 salmon species consists of five spawning aggregations or subpopulations which are grouped according to their 2507 spawning locations. The five spawning locations are Umbrella and Crooked creeks, Big River and Olsen’s and 2508 Allen’s beaches (NMFS, 2009b).

2509 Adult Ozette Lake sockeye salmon enter Ozette Lake through the Ozette River from mid-April to mid-August, 2510 holding three to nine months in Ozette Lake prior to spawning in late October through January. Sockeye salmon 2511 spawn primarily in lakeshore upwelling areas in Ozette Lake (particularly at Allen's Bay and Olsen's Beach) and in 2512 two tributaries Umbrella Creek and Big River. Minor spawning may occur below Ozette Lake in the Ozette River or 2513 in Coal Creek, a tributary of the Ozette River. Beach spawners are almost all age four adults, while tributary 2514 spawners are ages three and five (Haggerty et al., 2009). Spawning occurs in the fall through early winter, with peak 2515 spawning in tributaries in November and December. Eggs and alevins remain in the gravel until the fish emerge as 2516 fry in spring. Fry then migrate immediately to the limnetic zone in Ozette Lake, where the fish rear. After one year 2517 of rearing, in late spring, Ozette Lake sockeye salmon emigrate seaward as age-1+ smolts, where they spend 2518 between 1 and 3 years in ocean before returning to fresh water.

2519 Status and Trends 2520 NMFS originally listed Ozette Lake sockeye salmon species as a threatened species in 1999 (64 FR 14528). This 2521 classification was retained on June 28, 2005 (70 FR 37160). This species includes all naturally spawned populations 2522 of sockeye salmon in Ozette Lake, Ozette River, Coal Creek and other tributaries flowing into Ozette Lake, 2523 Washington. Two artificial propagation programs are considered part of this species: The Umbrella Creek and Big 2524 River sockeye salmon hatchery programs. NMFS considers these artificially propagated populations no more 2525 divergent relative to the local natural population than would be expected between closely related natural populations 2526 (70 FR 37160).

2527 The historical abundance of Ozette Lake sockeye salmon is poorly documented, but may have been as high as 2528 50,000 individuals (Blum, 1988). The overall abundance of naturally–produced Ozette Lake sockeye salmon is 2529 believed to have declined substantially from historical levels. In the first study of lake escapement of Ozette Lake 2530 sockeye salmon (Kemmerich, 1945), the run size entering the lake was estimated at a level of several thousand fish.

2531 These counts appear to be roughly double the current mean lake abundance, considering that they were likely 2532 conducted upstream from fisheries in or near to the Ozette River. Makah Fisheries Management (as cited in Good et 2533 al., 2005) concluded that there appears to be a substantial decline in the Tribal catch of Ozette Lake sockeye salmon 2534 beginning in the 1950s and a similar decline in the run size since the 1920s weir counts reported by Kemmerich 2535 (1945).

2536 An analysis of total annual Ozette Lake sockeye salmon abundance (based on adult run size data presented in Jacobs 2537 et al., 1996) indicates a trend in abundance averaging -2% per year over the period 1977 through 1998 (NMFS, 2538 1998d). The current tributary-based hatchery program was planned and initiated in response to the declining 2539 population trend identified for the Ozette Lake sockeye salmon population. The most recent (1996 to 2003) run-size 2540 estimates range from a low of 1,609 in 1997 to a high of 5,075 in 2003, averaging approximately 3,600 sockeye per 2541 year (NMFS, 2009b). For return years 2000 to 2003, the 4-year average abundance estimate was slightly over 4,600 2542 sockeye. Because run-size estimates before 1998 are likely to be even more unreliable than recent counts, and new 2543 counting technology has resulted in an increase in estimated run sizes, no statistical estimation of trends is reported. 2544 The current trends in abundance are unknown for the beach spawning aggregations. Although overall abundance 2545 appears to have declined from historical levels, whether this resulted in fewer spawning aggregations, lower 2546 abundances at each aggregation, or both, is not known (Good et al., 2005). Based on estimates of habitat carrying 2547 capacity, a viable sockeye salmon population in Lake Ozette watershed would range between 35,500 to 121,000 2548 spawners (Rawson et al., 2009).

2549 There has been no harvest of Ozette Lake sockeye salmon for the past four brood-cycle years (since 1982). Prior to 2550 that time, ceremonial and subsistence harvests by the Makah Tribe were low, ranging from zero to 84 fish per year. 2551 Harvest has not been an important mortality factor for the population in over 35 years. In addition, due to the early 2552 river entry timing of returning Ozette Lake sockeye salmon (beginning in late April, with the peak returns prior to 2553 late-May to mid-June), the fish are not intercepted in Canadian and U.S. marine area fisheries directed at Fraser 2554 River sockeye salmon. There are currently no known marine area harvest impacts on Ozette Lake sockeye salmon.

2555 Overall abundance is substantially below historical levels (Good et al., 2005). Declines in abundance have been 2556 attributed to a combination of introduced species, predation, loss of tributary populations, a loss of quality of beach 2557 spawning habitat, temporarily unfavorable ocean conditions, habitat degradation and excessive historical harvests 2558 (Jacobs et al., 1996). In the last few years the number of returning adults has increased, although some of these 2559 individuals are of hatchery origin. This produces uncertainty regarding natural growth rate and productivity of the 2560 species’ natural component. In addition, genetic integrity has perhaps been compromised due to the artificial 2561 supplementation that has occurred in this population, since approximately one million sockeye have been released 2562 into the Ozette watershed from the late 1930s to present (Kemmerich, 1945).

2563 Critical Habitat 2564 On September 2, 2005, NMFS designated critical habitat for the Ozette Lake sockeye salmon species (70 FR 2565 52630). The specific geographic areas designated as critical are the Hoh/Quillayute Subbasin, Ozette Lake and the 2566 Ozette Lake watershed, and include: the Ozette River upstream to endpoints in Big River, Coal Creek, East Branch 2567 Umbrella Creek, the North and South Fork of Crooked Creek and several other tributaries. The specific primary 2568 constituent elements identified for Lake Ozette sockeye salmon are areas for spawning, freshwater rearing and 2569 migration, estuarine areas free of obstruction, nearshore marine areas free of obstructions and offshore marine areas 2570 with good water quality. The physical or biological features that characterize these sites include water quality and 2571 quantity, natural cover, forage and adequate passage conditions. Only one watershed supports this species and it is 2572 rated as having a high conservation value. This watershed is essential to the species’ overall conservation by

2573 protecting quality growth, reproduction and feeding.

2574 Snake River Sockeye Salmon

2575 Distribution and Description of the Listed Species 2576 Snake River sockeye salmon are unique compared to other sockeye salmon populations: it spawns at a higher 2577 elevation (6,500 feet) and a longer freshwater migration (approximately 900 miles) than any other sockeye salmon 2578 population in the world. Sockeye salmon in this species spawn in Redfish Lake in Idaho’s Stanley Basin (Bjornn et 2579 al., 1968; Foerster, 1968). Stanley Basin sockeye salmon are separated by 700 or more river miles from two other 2580 extant upper Columbia River populations in the Wenatchee River and Okanogan River drainages. These latter 2581 populations return to lakes at substantially lower elevations (Wenatchee at 1,870 feet and Okanagon at 912 feet) and 2582 occupy different ecoregions. The Snake River sockeye salmon species includes all anadromous and residual sockeye 2583 salmon from the Snake River basin of Idaho, as well as hatchery individuals from the Redfish Lake Captive 2584 Broodstock Program.

2585 Status and Trends 2586 Snake River sockeye salmon were originally listed as endangered in 1991 and retained that classification when their 2587 status was reviewed on June 28, 2005 (70 FR 37160). The only extant sockeye salmon population in the Snake River 2588 basin at the time of listing was that in Redfish Lake, in the Stanley Basin (upper Salmon River drainage) of Idaho. 2589 Other lakes in the Snake River basin historically supported sockeye salmon populations, including Wallowa Lake 2590 (Grande Ronde River drainage, Oregon), Payette Lake (Payette River drainage, Idaho) and Warm Lake (South Fork 2591 Salmon River drainage, Idaho; (Waples et al., 1997). These populations are now considered extinct. Although 2592 kokanee, a resident form of O. nerka, occur in numerous lakes in the Snake River basin, other lakes in the Stanley 2593 Basin, and sympatrically with sockeye in Redfish Lake, resident O. nerka were not considered part of the species at 2594 the time of listing (1991). Subsequent to the 1991 listing, a residual form of sockeye residing in Redfish Lake was 2595 identified. The residuals are non-anadromous, completing their entire life cycle in fresh water, but spawn at the same 2596 time and in the same location as anadromous sockeye salmon. In 1993, NMFS determined that residual sockeye 2597 salmon in Redfish Lake were part of the Snake River sockeye salmon. Also, artificially propagated sockeye salmon 2598 from the Redfish Lake Captive Propagation program are considered part of this species (70 FR 37160; June 28, 2599 2005).

2600 Five lakes in the Stanley Basin historically contained sockeye salmon: Alturas, Pettit, Redfish, Stanley and 2601 Yellowbelly (Bjornn et al., 1968). It is generally believed that adults were prevented from returning to the Sawtooth 2602 Valley from 1910 to 1934 by Sunbeam Dam. Sunbeam Dam was constructed on the Salmon River approximately 20 2603 miles downstream of Redfish Lake. Whether Sunbeam Dam was a complete barrier to adult migration remains 2604 unknown. It has been hypothesized that some passage occurred while the dam was in place, allowing the Stanley 2605 Basin population or populations to persist (Bjornn et al., 1968; Waples et al., 1991).

2606 Adult returns to Redfish Lake during the period 1954 through 1966 ranged from 11 to 4,361 fish (Bjornn et al., 2607 1968). Sockeye salmon in Alturas Lake were extirpated in the early 1900s as a result of irrigation diversions, 2608 although residual sockeye may still exist in the lake (Chapman and Witty, 1993). From 1955 to 1965, the Idaho 2609 Department of Fish and Game eradicated sockeye salmon from Pettit, Stanley and Yellowbelly lakes, and built 2610 permanent structures on each of the lake outlets that prevented re-entry of anadromous sockeye salmon (Chapman 2611 and Witty, 1993). In 1985, 1986, and 1987, 11, 29, and 16 sockeye, respectively, were counted at the Redfish Lake 2612 weir (Good et al., 2005). Only 18 natural origin sockeye salmon have returned to the Stanley Basin since 1987. 2613 During the fall of 1990, during the course of NMFS’ first status review on the species, no fish were observed at

2614 Lower Granite Dam or entering the lake and only one fish was observed in each of the two previous years. The first 2615 adult returns from the captive broodstock program returned to the Stanley Basin in 1999. From 1999 through 2005, a 2616 total of 345 captive brood program adults that had migrated to the ocean returned to the Stanley Basin.

2617 Recent annual abundances of natural origin sockeye salmon in the Stanley Basin have been extremely low. No 2618 natural origin anadromous adults have returned since 1998 and the abundance of residual sockeye salmon in Redfish 2619 Lake is unknown. This species is entirely supported by adults produced through the captive propagation program at 2620 the present time. Current smolt-to-adult survival of sockeye originating from the Stanley Basin lakes is rarely greater 2621 than 0.3% (Hebdon et al., 2004). The status of this species is extremely precarious, such that there was unanimous 2622 consent among the biological review team members that the species remains in danger of extinction (Good et al., 2623 2005).

2624 Critical Habitat 2625 Critical habitat for these salmon was designated on December 28, 1993 (58 FR 68543) and encompasses the waters, 2626 waterway bottoms and adjacent riparian zones of specified lakes and river reaches in the Columbia River that are or 2627 were accessible to ESA listed Snake River salmon (except reaches above impassable natural falls and Dworshak and 2628 Hells Canyon Dams). Adjacent riparian zones are defined as those areas within a horizontal distance of 300 feet 2629 from the normal line of high water of a stream channel or from the shoreline of a standing body of water. Designated 2630 critical habitat includes the Columbia River from a straight line connecting the west end of the Clatsop jetty (Oregon 2631 side) and the west end of the Peacock jetty (Washington side) and including all river reaches from the estuary 2632 upstream to the confluence of the Snake River and all Snake River reaches upstream to the confluence of the Salmon 2633 River; all Salmon River reaches to Alturas Lake Creek; Stanley, Redfish, Yellow Belly, Pettit and Alturas Lakes 2634 (including their inlet and outlet creeks); Alturas Lake Creek and that portion of Valley Creek between Stanley Lake 2635 Creek and the Salmon River. Critical habitat also includes all river lakes and reaches presently or historically 2636 accessible to Snake River sockeye salmon. These habitats are critical for the conservation of the species because it 2637 provides spawning and juvenile rearing habitat, areas for juvenile growth and development and migration corridors 2638 for smolts to the ocean and adults to spawning habitat from the Pacific Ocean. Limiting factors identified for Snake 2639 River sockeye include: reduced tributary stream flow, impaired tributary passage and blocks to migration and 2640 mainstem Columbia River hydropower system mortality

2641 Steelhead

2642 Description of the Species 2643 Steelhead, the common name of the anadromous form of O. mykiss, are native to Pacific Coast streams extending 2644 from Alaska south to northwestern Mexico (Moyle, 1976a; NMFS, 1997b). The life history of this species varies 2645 considerably throughout its range. Generally, steelhead fall into two races: the stream-maturing type; and the ocean- 2646 maturing type.

2647 Summer steelhead enter fresh water between May and October in the Pacific Northwest (Nickelson et al., 1992; 2648 Busby et al., 1996). They require cool, deep holding pools during summer and fall, prior to spawning (Nickelson et 2649 al., 1992). Summer steelhead migrate inland toward spawning areas, overwinter in the larger rivers, resume 2650 migration in early spring to natal streams, and then spawn in January and February (Barnhart, 1986; Meehan and 2651 Bjornn, 1991; Nickelson et al., 1992). Winter steelhead enter fresh water between November and April in the Pacific 2652 Northwest (Nickelson et al., 1992), migrate to spawning areas and spawn generally between April and May 2653 (Barnhart, 1986). Some adults, however, do not enter some coastal streams until spring, just before spawning 2654 (Meehan and Bjornn, 1991).

2655 In late spring, after emerging from the gravel, fry usually inhabit shallow water along banks of perennial streams 2656 (Nickelson et al., 1992). Summer rearing takes place primarily in the faster parts of pools, while winter rearing 2657 occurs more uniformly at lower densities across a wide range of fast and slow habitat types. Some older juveniles 2658 move downstream to rear in larger tributaries and mainstem rivers (Nickelson et al., 1992).

2659 There is a high degree of overlap in spawn timing between populations regardless of run type (Busby et al., 1996). 2660 Difficult field conditions at that time of year and the remoteness of spawning grounds contribute to the relative lack 2661 of specific information on steelhead spawning. Unlike Pacific salmon, steelhead are capable of spawning more than 2662 once before death, although steelhead rarely spawn more than twice before dying; most that do spawn more than 2663 twice tend to be female (Nickelson et al., 1992; Busby et al., 1996).

2664 Juvenile steelhead migrate little during their first summer and occupy a range of habitats featuring moderate to high 2665 water velocity and variable depths (Bisson et al., 1988). Steelhead hold territories close to the substratum where 2666 flows are lower and sometimes counter to the main stream; from these, they can make forays up into surface 2667 currents to take drifting food (Kalleberg 1958). Juveniles rear in fresh water from 1 to 4 years, then smolt and 2668 migrate to the ocean in March and April (Barnhart, 1986). Winter steelhead juveniles generally smolt after 2 years in 2669 fresh water (Busby et al., 1996). Juveniles feed primarily on insects (chironomids, baetid mayflies and hydropsychid 2670 caddisflies (Merz, 1994) while adults feed on aquatic and terrestrial insects, mollusks, crustaceans, fish eggs, 2671 minnows and other small fishes (Chapman and Bjornn, 1969) .

2672 Threats 2673 Natural Threats. Steelhead, like other salmon, are exposed to high rates of natural predation each stage of their life 2674 stage. Mortality is high early in life and decreases with age. For example, Puget Sound steelhead leaving freshwater 2675 and estuarine habitats experience 55-86% survival to the point of reaching Hood Canal and 0-49% from Hood Canal 2676 to the Strait of Juan de Fuca, with survival increasing greatly upon entering the Pacific Ocean (Moore et al., 2010). 2677 In fresh water, fry fall prey to older steelhead and other trout, as well as birds, sculpin and various mammals. In the 2678 ocean, marine mammals and other fish prey on steelhead but the extent of such predation is not well known.

2679 Anthropogenic Threats. Steelhead have declined under the combined effects of overharvests in fisheries, 2680 competition from hatchery fish and exotic species, dams that block their migrations and alter river hydrology, 2681 hydrogeomorphological changes, destruction or degradation of riparian habitat and land use practices that destroy or 2682 degrade fresh water, estuarine and coastal ecosystems throughout the species’ range. These threats are the same as 2683 those summarized in detail under the Chinook salmon of this section.

2684 Central California Coast Steelhead

2685 Distribution and Description of the Listed Species 2686 The Central California Coast steelhead species includes all naturally spawned anadromous steelhead populations 2687 below natural and manmade impassable barriers in California streams from the Russian River (inclusive) to Aptos 2688 Creek (inclusive), and the drainages of San Francisco, San Pablo, and Suisun Bays eastward to Chipps Island at the 2689 confluence of the Sacramento and San Joaquin Rivers. Tributary streams to Suisun Marsh including Suisun Creek, 2690 Green Valley Creek, and an unnamed tributary to Cordelia Slough (commonly referred to as Red Top Creek), 2691 excluding the Sacramento-San Joaquin River Basin, as well as two artificial propagation programs: the Don Clausen 2692 Fish Hatchery, and Kingfisher Flat Hatchery/ Scott Creek (Monterey Bay Salmon and Trout Project) steelhead 2693 hatchery programs.

2694 The species is entirely composed of winter run fish, as are those species to the south. As winter-run fish adults 2695 migrating upstream from December-April, and smolts emigrating between March-May (Shapovalov and Taft, 1954; 2696 Hayes et al., 2008). At the time of the 1996 status review and 1997 listing, little information was available on the 2697 specific demographics and life history characteristics of steelhead in this species. While age at smoltification 2698 typically ranges from one to four years, recent studies by Sogard and Williams (2009) that growth rates in Soquel 2699 Creek likely prevent juveniles from undergoing smoltification until age 2. Survival in freshwater reaches tends to be 2700 higher in summer and lower from winter through spring for year classes zero and one (Sogard et al., 2009). Larger 2701 individuals also survive more readily than do smaller fish within year classes (Sogard et al., 2009). Greater 2702 movement of juveniles in fresh water has been observed in winter and spring versus summer and fall time periods, 2703 with smaller individuals more likely to move between stream areas (Sogard et al., 2009). Growth rates during this 2704 time have rarely been observed to exceed 0.3 mm per day and are highest in winter through spring, potentially due 2705 to higher water flow rates and greater food availability (Boughton et al., 2007; Hayes et al., 2008; Sogard et al., 2706 2009).

2707 Status and Trends 2708 The Central California Coast steelhead species was listed as a threatened species on August 18, 1997 (62 FR 43937); 2709 threatened status was reaffirmed on January 5, 2006 (71 FR 834). Estimates of historical abundance are provided 2710 here only for background, as the accuracy of the estimates is unclear. An estimate of historical abundance for the 2711 species is provided by CDFG at 94,000 fish. This estimate is based on a partial data set and “best professional 2712 judgment” (see Good et al., 2005). Other estimates of historical abundance are on a per river basis: Shapovalov and 2713 Taft (1954) (as cited in Busby et al., 1996) described an average of about 500 adults in Waddell Creek (Santa Cruz 2714 County) for the 1930s and early 1940s.

2715 No current estimates of total population size are available for this species, and consequently there is no time series 2716 data available to evaluate the central California coast steelhead population trends. Rather, a general lack of data on 2717 adult steelhead within the species, led the biological review team to examine data collected on juvenile steelhead 2718 (see Good et al., 2005). In general, juvenile data is considered a poor indicator of the reproductive portion of the 2719 population as juvenile age classes exhibit greater mortality rates, which are closely tied to stochastic events, and may 2720 move widely within a basin (which may include intermixing with other populations). There is no simple relationship 2721 between juvenile and adult numbers (Shea and Mangel, 2001). Nonetheless, there was not enough adult data upon 2722 which the biological review team could base an assessment of the population trends within the species. Therefore, 2723 the biological review team log transformed and normalized juvenile survey data from a number of watersheds 2724 (presumed populations). As a result, the team derived trend estimates for five populations: the San Lorenzo River, 2725 Scott Creek, Waddell Creek, Gazos Creek and Redwood Creek in Marin County (see Good et al., 2005). All 2726 populations exhibited downward trends in abundance. Accordingly, provided the juvenile data is representative of 2727 the true trend, this data suggests that there is an overall downward trend in abundance in the species.

2728 In the most recent review of the status of this species, most members of the biological review team (69%) 2729 considered this species “likely to become endangered” thus supporting the renewal of the threatened status for 2730 central California coast steelhead. Notably, 25% of the team voted that the species be upgraded to endangered status 2731 (see Good et al., 2005). Abundance and productivity were of relatively high concern (as a contributing factor to risk 2732 of extinction) and spatial structure was also of concern.

2733 Since the original status review, fishing regulations have changed in a way that probably reduces extinction risk for 2734 Central California Coast steelhead. Ocean sport harvest is prohibited and ocean harvest is considered rare. Although 2735 freshwater streams are closed to fishing year round, CDFG has identified certain streams as exceptions where they

2736 allow catch-and-release angling or summer trout fishing. In catch-and-release streams, all wild steelhead must be 2737 released unharmed.

2738 Critical Habitat 2739 Critical habitat was designated for the Central California Coast steelhead species on September 2, 2005 (70 FR 2740 52488) and includes areas within the following hydrologic units: Russian River, Bodega, Marin Coastal, San Mateo, 2741 Bay Bridge, Santa Clara, San Pablo and Big Basin. These areas are important for the species’ overall conservation 2742 by protecting quality growth, reproduction and feeding. The critical habitat designation for this species identifies 2743 primary constituent elements that include sites necessary to support one or more steelhead life stages. Specific sites 2744 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 2745 and estuarine areas. The physical or biological features that characterize these sites include water quality and 2746 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The critical habitat 2747 designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this designation 2748 and the areas that were excluded from designation.

2749 In total, Central California Coast steelhead occupy 46 watersheds (fresh water and estuarine). The total area of 2750 habitat designated as critical includes about 1,500 miles of stream habitat and about 400 square miles of estuarine 2751 habitat (principally Humboldt Bay). This designation includes the stream channels within the designated stream 2752 reaches and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high- 2753 water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is 2754 defined by the extreme high water because extreme high tide areas encompass those areas typically inundated by 2755 water and regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the 2756 nearshore zone and relying on cover and refuge qualities provided by these habitats and while they are foraging. Of 2757 the 46 occupied watersheds reviewed in NMFS' assessment of critical habitat for Central California Coast steelhead, 2758 14 watersheds received a low rating of conservation value, 13 received a medium rating and 19 received a high 2759 rating of conservation value for the species.

2760 California Central Valley Steelhead

2761 Distribution and Description of the Listed Species 2762 California Central Valley steelhead salmon occupy the Sacramento and San Joaquin Rivers and their tributaries, 2763 although they were once widespread throughout the Central Valley (Busby et al., 1996; Zimmerman et al., 2009). 2764 Steelhead were found from the upper Sacramento and Pit River systems (now inaccessible due to Shasta and 2765 Keswick Dams), south to the Kings and possibly the Kern River systems (now inaccessible due to extensive 2766 alteration from water diversion projects) and in both east- and west-side Sacramento River tributaries (Yoshiyama et 2767 al., 1996). The present distribution has been greatly reduced (McEwan and Jackson, 1996). The CACSS (1988) 2768 reported a reduction of steelhead habitat from 6,000 miles historically to 300 miles today. Historically, steelhead 2769 probably ascended Clear Creek past the French Gulch area, but access to the upper basin was blocked by 2770 Whiskeytown Dam in 1964 (Yoshiyama et al., 1996). Steelhead also occurred in the upper drainages of the Feather, 2771 American, Yuba and Stanislaus Rivers which are now inaccessible (McEwan and Jackson, 1996; Yoshiyama et al., 2772 1996).

2773 Existing wild steelhead populations in the Central Valley are mostly confined to the upper Sacramento River and its 2774 tributaries, including Antelope, Deer, and Mill Creeks and the Yuba River. Populations may exist in Big Chico and 2775 Butte Creeks and a few wild steelhead are produced in the American and Feather Rivers (McEwan and Jackson, 2776 1996). Recent snorkel surveys (1999 to 2002) indicate that steelhead are present in Clear Creek (Good et al., 2005).

2777 Because of the large resident O. mykiss population in Clear Creek, steelhead spawner abundance has not been 2778 estimated. Until recently, steelhead were thought to be extirpated from the San Joaquin River system. Recent 2779 monitoring has detected small self-sustaining populations of steelhead in the Stanislaus, Mokelumne, Calaveras and 2780 other streams previously thought to be void of steelhead (McEwan, 2001). On the Stanislaus River, steelhead smolts 2781 have been captured in rotary screw traps at Caswell State Park and Oakdale each year since 1995 (Demko and 2782 Cramer, 2000). It is possible that naturally spawning populations exist in many other streams but are undetected due 2783 to lack of monitoring programs.

2784 The Sacramento and San Joaquin Rivers offer the only migration route to the drainages of the Sierra Nevada and 2785 southern Cascade mountain ranges for anadromous fish. The CDFG considers all steelhead in the Central Valley as 2786 winter steelhead, although “three distinct runs,” including summer steelhead, may have occurred there as recently as 2787 1947 (McEwan and Jackson, 1996). Steelhead in these basins travel extensive distances in fresh water (some exceed 2788 300 km to their natal streams), making these the longest freshwater migrations of any population of winter steelhead. 2789 The upper Sacramento River essentially receives a single continuous run of steelhead in from July through May, 2790 with peaks in September and February. Spawning begins in late December and can extend into April (McEwan and 2791 Jackson, 1996).

2792 Status and Trends

2793 NMFS originally listed California Central Valley steelhead as threatened in 1998; this status was reviewed and 2794 retained on January 5, 2006 (71 FR 834). Historic Central Valley steelhead run size is difficult to estimate given the 2795 paucity of data, but may have approached one to two million adults annually (McEwan, 2001). By the early 1960s, 2796 the steelhead run size had declined to about 40,000 adults(McEwan, 2001). Over the past 30 years, the naturally 2797 spawned steelhead populations in the upper Sacramento River have declined substantially. Hallock et al., (1961) 2798 estimated an average of 20,540 adult steelhead occurred in the Sacramento River (upstream of the Feather River). 2799 Steelhead counts at Red Bluff Diversion Dam declined from an average of 11,187 for the period of 1967 to 1977, to 2800 an average of approximately 2,000 through the early 1990s, with an estimated total annual run size for the entire 2801 Sacramento-San Joaquin system at no more than 10,000 adults (McEwan and Jackson, 1996; McEwan, 2001). The 2802 five-year geometric mean is approximately 2,000 steelhead and the long-term trend suggests that the population is 2803 declining (Good et al., 2005).

2804 The only consistent data available on steelhead numbers in the San Joaquin River basin come from CDFG mid- 2805 water trawling samples collected on the lower San Joaquin River at Mossdale. These data indicate a decline in 2806 steelhead numbers in the early 1990s, which have remained low through 2002 (Good et al., 2005). In 2004, a total of 2807 12 steelhead smolts were collected at Mossdale (Good et al., 2005).

2808 Reynolds et al., (1993) reported that 95% of salmonid habitat in California’s Central Valley has been lost, largely 2809 due to mining and water development activities. They also noted that declines in Central Valley steelhead 2810 populations are “due mostly to water development, inadequate instream flows, rapid flow fluctuations, high summer 2811 water temperatures in streams immediately below reservoirs, diversion dams which block access and entrainment of 2812 juveniles into unscreened or poorly screened diversions.” Thus, overall habitat problems in this species relate 2813 primarily to water development resulting in inadequate flows, flow fluctuations, blockages and entrainment into 2814 diversions (McEwan and Jackson, 1996). Other problems related to land use practices (agriculture and forestry) and 2815 urbanization have also contributed to population declines. It is unclear how harvest has affected California’s Central 2816 Valley steelhead, although it is likely a continuing threat. A CDFG creel census in 2000 indicated that most fish are 2817 caught and released, but due to the size of the catch and release fishery (more than 14,000 steelhead were caught and 2818 released according to the survey) even a small amount of mortality in this fishery could cause declines in the

2819 populations.

2820 Critical Habitat

2821 NMFS designated critical habitat for California Central Valley steelhead on September 2, 2005 (70 FR 52488). 2822 Specific geographic areas designated include the following CALWATER hydrological units: Tehama, Whitmore, 2823 Redding, Eastern Tehama, Sacramento Delta, Valley-Putach-Cache, American River, Marysville, Yuba, Valley 2824 American, Colusa Basin, Butte Creek, Ball Mountain, Shata Bally, North Valley Floor, Upper Calaveras, Stanislaus 2825 River, San Joaquin Valley, Delta-Mendota Canal, North Diablo Range and the San Joaquin Delta. These areas are 2826 important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The critical 2827 habitat designation for this species identifies primary constituent elements that include sites necessary to support one 2828 or more steelhead life stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater 2829 migration corridors, nearshore marine habitat and estuarine areas. The physical or biological features that 2830 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 2831 floodplain connectivity. The critical habitat designation (70 FR 52488) contains additional details on the sub-areas 2832 that are included as part of this designation and the areas that were excluded from designation.

2833 In total, California Central Valley steelhead occupy 67 watersheds (freshwater and estuarine). The total area of

2834 habitat designated as critical includes about 2,300 miles of stream habitat and about 250 square miles of estuarine 2835 habitat in the San Francisco-San Pablo-Suisan Bay estuarine complex. This designation includes the stream channels 2836 within the designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas 2837 where the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine 2838 areas the lateral extent is defined by the extreme high water because extreme high tide areas encompass those areas 2839 typically inundated by water and regularly occupied by juvenile salmon during the spring and summer, when they 2840 are migrating in the nearshore zone and relying on cover and refuge qualities provided by these habitats and while 2841 they are foraging. Of the 67 watersheds reviewed in NMFS' assessment of critical habitat for California Central 2842 Valley steelhead, seven watersheds received a low rating of conservation value, three received a medium rating and 2843 27 received a high rating of conservation value for the species.

2844 Lower Columbia River Steelhead

2845 Distribution and Description of the Listed Species

2846 Lower Columbia River steelhead include naturally produced steelhead returning to Columbia River tributaries on 2847 the Washington side between the Cowlitz and Wind rivers in Washington and on the Oregon side between the 2848 Willamette and Hood rivers, inclusive. In the Willamette River, the upstream boundary of this species is at 2849 Willamette Falls. This species includes both winter and summer steelhead. Two hatchery populations are included in 2850 this species, the Cowlitz Trout Hatchery winter-run population and the Clackamas River population but neither was 2851 listed as threatened

2852 Summer steelhead return sexually immature to the Columbia River from May to November and spend several 2853 months in fresh water prior to spawning. When winter steelhead enter fresh water from November to April, they are 2854 close to sexual maturity and spawn shortly after arrival in their natal streams. Where both races spawn in the same 2855 stream, summer steelhead tend to spawn at higher elevations than the winter forms (see Good et al., 2005).

2856 Status and Trends

2857 NMFS listed Lower Columbia River steelhead as threatened on March 19, 1998 (63 FR 13347), and reaffirmed their 2858 status as threatened on January 5, 2006 (71 FR 834). The 1998 status review noted that this species is characterized 2859 by populations at low abundance relative to historical levels, significant population declines since the mid-1980s, 2860 and widespread occurrence of hatchery fish in naturally spawning steelhead populations. During this review NMFS 2861 was unable to identify any natural populations that would be considered at low risk.

2862 All populations declined between 1980 and 2000, with sharp declines beginning in 1995. Those with adequate data 2863 for modeling are estimated to have a high extinction risk (Good et al., 2005). Abundance trends are generally 2864 negative, showing that most populations are in decline, although some populations, particularly summer run, have 2865 shown higher return in the last 2 to 3 years (Good et al., 2005). Historical counts in some of the larger tributaries 2866 (Cowlitz, Kalama and Sandy Rivers) suggest the population probably exceeded 20,000 fish while in the 1990s fish 2867 abundance dropped to 1,000 to 2,000. Recent abundance estimates of natural-origin spawners range from completely 2868 extirpated for some populations above impassable barriers to over 700 for the Kalama and Sandy winter-run 2869 populations (Good et al., 2005). A number of the populations have a substantial fraction of hatchery-origin spawners 2870 in spawning areas and are hypothesized to be sustained largely by hatchery production. Exceptions are the Kalama, 2871 the Toutle and East Fork Lewis winter-run populations (Good et al., 2005).

2872 Critical Habitat

2873 NMFS designated critical habitat for Lower Columbia River steelhead on September 2, 2005 (70 FR 52630). 2874 Designated critical habitat includes the following subbasins: Middle Columbia/Hood subbasin, Lower 2875 Columbia/Sandy subbasin, Lewis subbasin, Lower Columbia/Clatskanie subbasin, Upper Cowlitz subbasin, Cowlitz 2876 subbasin, Clackamas subbasin, Lower Willamette subbasin and the Lower Columbia River corridor. These areas are 2877 important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The critical 2878 habitat designation for this species identifies primary constituent elements that include sites necessary to support one 2879 or more steelhead life stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater 2880 migration corridors, nearshore marine habitat and estuarine areas. The physical or biological features that 2881 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 2882 floodplain connectivity. The critical habitat designation (70 FR 52630) contains additional description of the 2883 watersheds that are included as part of this designation and any areas specifically excluded from the designation.

2884 In total, Lower Columbia River steelhead occupy 32 watersheds. The total area of habitat designated as critical 2885 includes about 2,340 miles of stream habitat. This designation includes the stream channels within the designated 2886 stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary 2887 high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 32 watersheds reviewed 2888 in NMFS' assessment of critical habitat for Lower Columbia River steelhead, two watersheds received a low rating 2889 of conservation value, 11 received a medium rating and 26 received a high rating of conservation value for the 2890 species. Limiting factors identified for Lower Columbia River steelhead include: degraded floodplain and steam 2891 channel structure and function, reduced access to spawning/rearing habitat, altered stream flow in tributaries, 2892 excessive sediment and elevated water temperatures in tributaries and hatchery impacts.

2893 Middle Columbia River Steelhead

2894 Distribution and Description of the Listed Species

2895 The Middle Columbia River steelhead species includes all naturally spawned anadromous steelhead populations 2896 below natural and manmade impassible barriers in Oregon and Washington drainages upstream of the Hood and 2897 Wind River systems, up to and including the Yakima River (61 FR 41541). Steelhead from the Snake River Basin 2898 are excluded from this species. Seven artificial propagation programs are part of this species.

2899 Middle Columbia River steelhead occupy the intermountain region of the Pacific Northwest, which includes some of 2900 the driest areas in the region generally receiving less than 15.7 inches of rainfall annually. The major drainages that 2901 support this species are the Deschutes, John Day, Umatilla, Walla Walla, Yakima and Klickitat river systems. The 2902 area is generally characterized by its dry climate and harsh temperature extremes. Almost all steelhead populations 2903 within this species are summer-run fish; the only exceptions are the only populations of inland winter steelhead, 2904 which occur in the Klickitat River and Fifteen-mile Creek (Busby et al., 1996). According to Interior Columbia 2905 Basin Technical Recovery Team (ICTRT, 2003) this species is comprised of 16 putative populations in four major 2906 population groups (Cascades Eastern Slopes Tributaries, John Day River, Walla Walla and Umatilla Rivers, and 2907 Yakima River) and one unaffiliated independent population (Rock Creek).

2908 There are two extinct populations in the Cascades Eastern Slope major population group, the White Salmon River 2909 and Deschutes Crooked River above the Pelton/Round Butte Dam complex. Present population structure is 2910 delineated largely based on geographical proximity, topography, distance, ecological similarities or differences. 2911 Additional genetic studies are needed to describe the species substructure, as well as the fine-scale genetic structure 2912 of the populations within a particular basin (e.g., John Day River).

2913 Most Middle Columbia River steelhead smolt at 2 years of age and spend 1 to 2 years at sea prior to re-entering 2914 natal river systems. They may remain in such rivers for up to a year prior to spawning (Howell et al., 1985b). 2915 Factors contributing to the decline of Middle Columbia river steelhead include hydropower development and 2916 agriculture; these land uses impede or prevent migrations, alter water availability and alter water chemistry and 2917 temperatures.

2918 Status and Trends 2919 Middle Columbia River steelhead were listed as threatened in 1999 (64 FR 14517), and their status was reaffirmed 2920 on January 5, 2006 (71 FR 834). The precise pre-1960 abundance of this species is unknown. Based upon the 2921 Washington Department of Fish and Wildlife’s estimates of the historic run size for the Yakima River at 100,000 2922 steelhead, Busby et al., (1996) surmised that total species abundance likely exceeded 300,000 returning adults. By 2923 1993, the estimated 5-year average size (ending in 1993) of the Middle Columbia steelhead species was 142,000 fish 2924 (Busby et al., 1996). Survey data collected between 1997 and 2001 indicates that several populations within the 2925 species have increased since the last status review (Good et al., 2005). However, long-term annual population 2926 growth rate (λ) is negative for most populations.

2927 In contrast, short term trends in major areas were positive for seven of the 12 areas with available data (see Good et 2928 al., 2005). Spawner numbers in the Yakima River, the Deschutes River and sections of the John Day River system 2929 were substantially higher compared to numbers surveyed between 1992 and 1997 (Good et al., 2005). Similarly, 2930 spawner numbers substantially increased in the Umatilla River and Fifteen-mile Creek relative to annual levels in 2931 the early 1990s. Nonetheless, most populations remain below interim target levels. For instance, the Yakima River 2932 returns are still substantially below interim target levels of 8,900 (the current 5-year average is 1,747 fish) and

2933 estimated historical return levels. In fact, the majority of spawning occurs in only one tributary, Satus Creek (Berg, 2934 2001as cited in Good et al., 2005). Based on recent 5-year geometric means, only the Deschutes River exceeded 2935 interim target levels (Good et al., 2005). While increases in short-term trends could suggest improvements within 2936 the species, given that the average population growth rate across all streams is negative (0.98 assuming hatchery 2937 spawners do not contribute to production, and 0.97 assuming that both hatchery and natural-origin fish contribute 2938 equally) and evidence of large fluctuation in marine survival for the species, recent increases in population sizes 2939 must be viewed cautiously (Good et al., 2005).

2940 Critical Habitat 2941 NMFS designated critical habitat for Middle Columbia River steelhead on September 2, 2005 (70 FR 52630). 2942 Designated critical habitat includes the following subbasins: Upper Yakima, Naches, Lower Yakima, Middle 2943 Columbia/Lake Wallula, Walla Walla, Umatilla, Middle Columbia/Hood, Klickitat, Upper John Day, North Fork 2944 John Day, Middle Fork John Day, Lower John Day, Lower Deschutes, Trout, and the Upper Columbia/Priest Rapids 2945 subbasins and the Columbia River corridor. These areas are important for the species’ overall conservation by 2946 protecting quality growth, reproduction and feeding. The critical habitat designation for this species identifies 2947 primary constituent elements that include sites necessary to support one or more steelhead life stages. Specific sites 2948 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 2949 and estuarine areas. The physical or biological features that characterize these sites include water quality and 2950 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The final rule (70 FR 2951 52630) lists the watersheds that comprise the designated subbasins and any areas that are specifically excluded from 2952 the designation.

2953 In total, there are 114 watersheds within the range of Middle Columbia River steelhead. The total area of habitat 2954 designated as critical includes about 5,800 miles of stream habitat. This designation includes the stream channels 2955 within the designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas 2956 where the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 114 2957 watersheds reviewed in NMFS' assessment of critical habitat for Middle Columbia River steelhead, nine watersheds 2958 received a low rating of conservation value, 24 received a medium rating and 81 received a high rating of 2959 conservation value for the species. Although pristine habitat conditions are still present in some wilderness, roadless 2960 and undeveloped areas, habitat complexity has been greatly reduced in many areas of designated critical habitat for 2961 Middle Columbia River steelhead. Limiting factors identified for Middle Columbia River steelhead include: 2962 hydropower system mortality, reduced stream flow, impaired passage, excessive sediment, degraded water quality 2963 and altered channel morphology and floodplain.

2964 Northern California Steelhead

2965 Distribution and Description of the Listed Species 2966 The Northern California species of steelhead includes all naturally spawned steelhead populations below natural and 2967 manmade impassible barriers in California coastal river basins from Redwood Creek south to, but not including the 2968 Russian river and two artificial propagation programs (Yager Creek Hatchery and North Fork Gualala River 2969 Hatchery). In the recent update on the status of this species, the southern boundary of the species was redefined to 2970 include the small coastal streams south of the Gualala River (between the Gualala River and the Russian River) that 2971 support steelhead. This species consists of winter and summer-run fish, as well as “half-pounders” – a steelhead that 2972 returns from the sea after spending less than a year in the ocean.

2973 Status and Trends 2974 NMFS listed Northern California steelhead as threatened on June 7, 2000 (65 FR 36074), and reaffirmed their status 2975 as threatened on January 5, 2006 (71 FR 834). Long-term data sets are limited for Northern California steelhead. 2976 Before 1960, estimates of abundance specific to this species were available from dam counts in the upper Eel River 2977 (Cape Horn Dam; annual average number of adults was 4,400 in the 1940s), the South Fork Eel River (Benbow 2978 Dam; annual average number of adults was 18,000 in the 1940s) and the Mad River (Sweasey Dam; annual average 2979 number of adults was 3,800 in the 1940s). According to California Department of Fish & Game nearly 200,000 2980 spawning steelhead may have comprised this species in the early 1960s (Good et al., 2005). At the time of the first 2981 status review on this population, adult escapement trends could be calculated for seven populations. Five of the 2982 seven populations exhibited declines, while two exhibited increases with a range of almost 6% annual decline to a 2983 3.5% increase. At the time, little information was available on the actual contribution of hatchery fish to natural 2984 spawning, there was and continues to be insufficient information to calculate an overall abundance estimate for 2985 Northern California steelhead (Busby et al., 1996).

2986 Recent time series data is also limited for this species, with recent abundance estimates available for only four 2987 populations, three summer-run and one winter-run. Similarly, Good et al., (2005) could only calculate the 2988 population growth rate for three populations. Population growth rates are negative for two of the three populations, 2989 the South Fork Eel River winter-run and the Middle Fork Eel River summer-run. Based on time series data for the 2990 Middle Fork Eel River, both the long-term and short-term trends are downward. Due to the lack of adult data on 2991 which to base their risk assessment, Good et al., (2005) also examined data on juvenile steelhead and found both 2992 upward and downward trends. The lack of data for the populations within this species, particular winter-run fish is 2993 of continuing concern.

2994 Critical Habitat 2995 NMFS designated critical habitat for Northern California steelhead on September 2, 2005 (70 FR 52488). Specific 2996 geographic areas designated include the following CALWATER hydrological units: Redwood Creek, Trinidad, 2997 Mad River, Eureka Plain, Eel River, Cape Mendocino and the Mendocino Coast. These areas are important for the 2998 species’ overall conservation by protecting quality growth, reproduction and feeding. The critical habitat designation 2999 for this species identifies primary constituent elements that include sites necessary to support one or more steelhead 3000 life stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, 3001 nearshore marine habitat and estuarine areas. The physical or biological features that characterize these sites include 3002 water quality and quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The 3003 critical habitat designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this 3004 designation and the areas that were excluded from designation.

3005 In total, Northern California steelhead occupy 50 watersheds (fresh water and estuarine). The total area of habitat 3006 designated as critical includes about 3,000 miles of stream habitat and about 25 square miles of estuarine habitat, 3007 mostly within Humboldt Bay. This designation includes the stream channels within the designated stream reaches 3008 and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high-water line is 3009 not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is defined by 3010 the extreme high water because extreme high tide areas encompass those areas typically inundated by water and 3011 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone

3012 and relying on cover and refuge qualities provided by these habitats and while they are foraging. Of the 50 3013 watersheds reviewed in NMFS' assessment of critical habitat for Northern California steelhead, nine watersheds 3014 received a low rating of conservation value, 14 received a medium rating and 27 received a high rating of 3015 conservation value for the species. Two estuarine areas used for rearing and migration (Humboldt Bay and the Eel

3016 River estuary) also received a rating of high conservation value.

3017 Puget Sound Steelhead

3018 Distribution and Description of the Listed Species 3019 The Puget Sound species for steelhead includes all naturally spawned anadromous winter-run and summer-run 3020 steelhead populations in watersheds of the Strait of Juan de Fuca, Puget Sound and Hood Canal, Washington. 3021 Boundaries of this species extend to and include the Elwha River to the west and the Nooksack River and Dakota 3022 Creek to the north. Hatchery production of steelhead is widespread throughout this species, but only two artificial 3023 propagation programs are part of this species: the Green River natural and Hamma Hamma winter-run steelhead 3024 hatchery populations. The remaining hatchery programs are not considered part of the Puget Sound steelhead 3025 species because they are more than moderately diverged from the local native populations (Hard et al., 2007).

3026 The oceanic distribution of Puget Sound steelhead is not well understood. Winter and summer runs from multiple 3027 steelhead species comingle in the North Pacific Ocean and some may undergo extensive migrations as a result of the 3028 location of their natal streams and oceanic “centers of abundance” (Light et al., 1989). Tagging and genetic studies 3029 indicate that Puget Sound steelhead migrate to the central North Pacific ocean (see French et al. 1975, Hartt and Dell 3030 1986, and Burgner et al. 1992 in Hard et al., 2007). Oceanic residence times varies among populations within the 3031 species, with some populations spending only one season in the ocean and others spending three years in marine 3032 waters before returning to their natal stream for spawning. Generally, winter-run steelhead enter their natal 3033 freshwater systems later (November to April) in the year than summer-run steelhead (May to October. Winter-run 3034 steelhead have a lower pre-spawn mortality rate than summer-run steelhead (Hard et al., 2007). Winter-run 3035 steelhead are also more prevalent than summer-run fish, comprising 37 of the 53 populations within this species.

3036 Status and Trends 3037 NMFS listed Puget Sound steelhead as a threatened species on May 11, 2007 (72 FR 26722). At the time of the 3038 listing, the biological review team concluded that: the viability of Puget Sound steelhead is at a high risk due to 3039 declining productivity and abundance; Puget Sound steelhead are at moderate risk due to reduced spatial complexity 3040 and connectivity among populations within the species and reduction in life-history diversity within populations and 3041 from the threats posed by artificial propagation and harvest. The Puget Sound steelhead species includes 53 putative 3042 populations; most of which are composed of winter-run fish. Summer-run populations within Puget Sound are small, 3043 with most averaging less than 200 spawners and most lack sufficient data to estimate population abundance (Hard et 3044 al., 2007).

3045 In general, steelhead are most abundant in the northern Puget Sound streams (Hard et al., 2007). The largest 3046 populations in this species are in the Skagit River and Snohomish River winter-run steelhead populations. The recent 3047 geometric mean escapement is 5,608 winter-run steelhead in the Skagit, and 3,230 winter-run steelhead in the 3048 Snohomish River (Hard et al., 2007). The Green River and Puyallup River populations, in central Puget Sound, are 3049 the next largest populations and average approximately 1,500 (Green) and 1,000 (Puyallup) winter-run steelhead 3050 spawners annually (Hard et al., 2007).

3051 Estimates of historical abundance for this species are largely based on catch data. The earliest catch records from 3052 commercial fisheries in the late 1880s indicate that the catch peaked at 163,796 steelhead in Puget Sound in 1895 3053 (Hard et al., 2007). Based on this catch data, estimates for the peak run size for Puget Sound steelhead ranges 3054 between 300,000 and 550,000 fish (Hard et al., 2007). Given that most fish were harvested in terminal fisheries (nets 3055 set at the mouth of rivers) NMFS expects that this estimate is a fair estimate of the Puget Sound species as it is

3056 unlikely to include fish from neighboring rivers outside of the Puget Sound species. As early as 1898, Washington 3057 officials expressed concerns that the run had declined by half of its size in only three years (Hard et al., 2007). Since 3058 1925, Washington has managed steelhead as a game fish, and in 1932 the State prohibited the commercial catch, 3059 possession or sale of steelhead.

3060 Run size for this species was calculated in the early 1980s at about 100,000 winter-run fish and 20,000 summer-run 3061 fish. It is not clear what portion were hatchery fish, but a combined estimate with coastal steelhead suggested that 3062 roughly 70% of steelhead in ocean runs were of hatchery origin. Escapement of wild fish to spawning grounds 3063 would be much lower without the influx of hatchery fish (Busby et al., 1996).

3064 NMFS’ first status review for Puget Sound steelhead demonstrated that 80% of the runs for which there was data 3065 had declining trends in abundance. Busby et al., (1996) noted that the largest decline, an 18% annual decline, 3066 occurred in the Lake Washington population. On the contrary, the largest increase in abundance occurred in the 3067 Skykomish River winter-run steelhead (the Skykomish River is a tributary to the Snohomish River) at a 7% annual 3068 increase. Estimates of spawner abundance in the Skagit and Snohomish rivers, the two largest steelhead producing 3069 basins in the species, were about 8,000 naturally spawning adult steelhead each. These two basins exhibited modest 3070 overall upward trends at the time of the first status review. Recent data demonstrates significant declines in the 3071 natural escapement of steelhead throughout the species, especially in the southern Puget Sound populations. 3072 Significant positive trends have occurred in the Samish and the Hamma Hamma winter-run populations. The 3073 increasing trend in the Hamma Hamma River appears to be the result of a captive rearing program, rather than due 3074 to natural escapement. The predominant downward trends in escapement and run size of natural steelhead in the 3075 Puget Sound species, both over the long-term and short-term, is of concern particularly given that despite 3076 widespread reductions in direct harvest since the mid 1990s (Hard et al., 2007).

3077 Critical Habitat 3078 NMFS has not designated critical habitat for Puget Sound steelhead.

3079 Snake River Steelhead

3080 Distribution and Description of the Listed Species 3081 The Snake River Basin steelhead species includes all naturally spawned populations of steelhead in streams in the 3082 Snake River basins of southeast Washington, northeast Oregon and Idaho. Six artificial propagation programs are 3083 considered part of this species: The Tucannon River, Dworshak National Fish Hatchery, Lolo Creek, North Fork 3084 Clearwater, East Fork Salmon River and the Little Sheep Creek/Imnaha river hatchery programs.

3085 Snake River Basin steelhead are distributed throughout the Snake River drainage basin, migrating a considerable 3086 distance from the ocean to use high-elevation tributaries (typically 1,000-2,000 m above sea level) (Good et al., 3087 2005). Generally classified as summer-run fish, Snake River steelhead enter the Columbia River from late June to 3088 October. (Good et al., 2005) After remaining in the river through the winter, Snake River steelhead spawn the 3089 following spring (March to May) (Good et al., 2005). Managers recognize two life history patterns within Snake 3090 River steelhead primarily based on ocean age and adult size upon return: A-run steelhead are typically smaller, have 3091 a shorter fresh water and ocean residence (generally 1 year in the ocean) , and begin their up-river migration earlier 3092 in the year; whereas B-run steelhead are larger, spend more time in fresh water and the ocean (generally 2-years in 3093 ocean) and appear to start their upstream migration later in the year (Good et al., 2005).

3094 Status and Trends 3095 NMFS listed Snake River steelhead as threatened in 1997 (62 FR 43937), and reaffirmed their status as threatened 3096 on January 5, 2006 (71 FR 834). NMFS 1997 status review identified sharp declines in the returns of naturally 3097 produced steelhead, beginning in the mid-1980s. At the time nine of 13 trend indicators were in decline and the 3098 average abundance (geometric mean, 1992-1996) for the species was 75,000 adult steelhead (8,900 naturally 3099 produced). Of this, about 7,000 were A-run adults, and about 1,400 were B-run adults (Busby et al., 1996).

3100 The lack of data on adult spawning escapement for specific tributaries of the Snake River Basin species continues to 3101 make a quantitative assessment of viability difficult. Available data indicate that the overall long-term estimates of 3102 population trends have remained negative (Good et al., 2005). Annual return estimates are limited to counts of the 3103 aggregate return over Lower Granite Dam, and spawner estimates for the Tucannon, Asotin, Grande Ronde and 3104 Imnaha Rivers. The 2001 return over Lower Granite Dam was substantially higher relative to the low levels seen in 3105 the 1990s; the recent geometric 5-year mean abundance (Total escapement 106,175 with 14,768 natural returns) was 3106 approximately 28% of the interim recovery target level (52,000 natural spawners) (Good et al., 2005). The 10-year 3107 average for natural-origin steelhead passing Lower Granite Dam between 1996 and 2005 is 28,303 adults. Long- 3108 term trend estimates of the population growth rate (λ) across the available data set was 0.998 assuming that natural 3109 returns are produced only from natural-origin spawners, and 0.733 if both hatchery and wild spawners are 3110 contributing to production equally (Good et al., 2005). The Snake River supports approximately 63% of the total 3111 natural-origin production of steelhead in the Columbia River Basin (Good et al., 2005).

3112 Critical Habitat 3113 NMFS designated critical habitat for Snake River steelhead on September 2, 2005 (70 FR 52630). Designated 3114 critical habitat includes the following subbasins: Hells Canyon, Imnaha River, Lower Snake/Asotin, Upper Grand 3115 Ronde River, Wallowa River, Lower Grand Ronde, Lower Snake/Tucannon, Upper Salmon, Pahsimeroi, Middle 3116 Salmon-Panther, Lemhi, Upper Middle Fork Salmon, Lower Middle Fork Salmon, Middle Salmon, South Fork 3117 Salmon, Lower Salmon, Little Salmon, Upper and Lower Selway, Lochsa, Middle and South Fork Clearwater, and 3118 the Clearwater subbasins and the Lower Snake/Columbia River corridor. These areas are important for the species’ 3119 overall conservation by protecting quality growth, reproduction, and feeding. The critical habitat designation for this 3120 species identifies primary constituent elements that include sites necessary to support one or more steelhead life 3121 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, 3122 nearshore marine habitat and estuarine areas. The physical or biological features that characterize these sites include 3123 water quality and quantity, natural cover, forage, adequate passage conditions, and floodplain connectivity. The final 3124 rule (70 FR 52630) lists the watersheds that comprise the designated subbasins and any areas that are specifically 3125 excluded from the designation.

3126 There are 289 watersheds within the range of Snake River steelhead. The total area of habitat designated as critical 3127 includes about 8,000 miles of stream habitat. This designation includes the stream channels within the designated 3128 stream reaches, and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary 3129 high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 289 fifth order streams 3130 reviewed in this species, 231 received a high conservation value rating, 44 received a medium rating and 14 received 3131 a rating of low conservation value for the species. The lower Snake/Columbia rearing/migration corridor 3132 downstream of the spawning range has a high conservation value. Limiting factors identified for Snake River Basin 3133 steelhead include: hydrosystem mortality, reduced stream flow, altered channel morphology and floodplain, 3134 excessive sediment, degraded water quality, harvest impacts, and hatchery impacts.

3135 South-Central California Coast Steelhead

3136 Distribution and Description of the Listed Species 3137 The South-Central California Coast steelhead species includes all naturally spawned populations of steelhead (and 3138 their progeny) in streams from the Pajaro River (inclusive) to, but not including the Santa Maria River, California. 3139 No artificially propagated steelhead populations that reside within the historical geographic range of this species are 3140 included in this designation. The two largest basins within this species’ range are the inland basins of the Pajaro 3141 River and the Salinas River. Both of these watersheds drain intercoastal mountain ranges and have long alluvial 3142 lower stretches. Principle sub-basins in the Pajaro River that support steelhead include: Corralitos Creek, Pescadero 3143 Creek, Uvas Creek and Pacheco Creek. Principle sub-basins in the Salinas River that support steelhead include the 3144 Arroyo Seco River, Gabilan Creek, Paso Robles Creek, Atascadero Creek and Santa Margarita Creek. Other 3145 important watersheds include the smaller coastal basins of the Carmel River, and St. Rosa and San Luis Obispos 3146 creeks.

3147 Status and Trends 3148 NMFS listed South-Central California Coast steelhead as threatened in 1997, and reaffirmed their status as 3149 threatened on January 5, 2006 (71 FR 834). Historical data on the South-Central California Coast steelhead species 3150 are sparse and no credible historic or recent estimates of total species size are available. Steelhead are present in a 3151 large portion of the historically occupied basins within this species’ range (estimated 86-95%) but observed and 3152 inferred abundance suggest many of this basins support a small fragment of their historic run size. Present 3153 population trends within individual watersheds continuing to support runs is generally unknown, but may vary 3154 widely between watersheds. No data are available to estimate the steelhead abundance or trends in the two largest 3155 watersheds in the species, the Pajaro and Salinas basins. These basins are highly degraded and expected to support 3156 runs much reduced in size from historical levels.

3157 Steelhead in the Carmel Basin have been monitored at San Clemente Dam since 1964, representing one of the 3158 longest data sets available for steelhead in this species. However, this data is also limited because a nine year gap 3159 exists in the series, a large portion of the run spawns below the dam and the older dam counts may be incomplete. 3160 Between NMFS’ 1997 status review and 2005 status update, continuous data from San Clement dam suggests that 3161 the abundance of adult spawners in the Carmel River has increased. Carmel River time series data indicate that the 3162 population declined by about 22% per year between 1963 and 1993, and between 1991 and 1997 the population 3163 increased from one adult to 775 adults at San Clemente Dam. Good et al., (2005) deemed this increase too great to 3164 attribute simply to improved reproduction and survival of the local steelhead population. Other possibilities were 3165 considered, including that the substantial immigration or transplantation occurred or that resident trout production 3166 increased as a result of improved environmental conditions within the basin. The five-year geometric mean 3167 calculated by Good et al., (2005) for the Carmel River population (1998-2002) was 611.

3168 Critical Habitat 3169 NMFS designated critical habitat for South-Central California Coast steelhead on September 2, 2005 (70 FR 52488). 3170 Specific geographic areas designated include the following CALWATER hydrological units: Pajaro River, Carmel 3171 River, Santa Lucia, Salinas River and Estero Bay. These areas are important for the species’ overall conservation by 3172 protecting quality growth, reproduction and feeding. The critical habitat designation for this species identifies 3173 primary constituent elements that include sites necessary to support one or more steelhead life stages. Specific sites 3174 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 3175 and estuarine areas. The physical or biological features that characterize these sites include water quality and 3176 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The critical habitat

3177 designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this designation 3178 and the areas that were excluded from designation.

3179 In total, South-Central California Coast steelhead occupy 30 watersheds (fresh water and estuarine). The total area 3180 of habitat designated as critical includes about 1,250 miles of stream habitat and about 3 square miles of estuarine 3181 habitat (e.g., Morro Bay). This designation includes the stream channels within the designated stream reaches and 3182 includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high-water line is not 3183 defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is defined by the 3184 extreme high water because extreme high tide areas encompass those areas typically inundated by water and 3185 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone 3186 and relying on cover and refuge qualities provided by these habitats and while they are foraging. Of the 30 3187 watersheds reviewed in NMFS' assessment of critical habitat for South-Central California Coast steelhead, six 3188 watersheds received a low rating of conservation value, 11 received a medium rating and 13 received a high rating 3189 of conservation value for the species.

3190 Southern California Steelhead

3191 Distribution and Description of the Listed Species 3192 The Southern California steelhead species includes all naturally spawned populations of steelhead in streams from 3193 the Santa Maria River, San Luis Obispo County, California (inclusive) to the U.S.-Mexico border. Artificially 3194 propagated steelhead that reside within the historical geographic range of this species are not included in the listing.

3195 A comprehensive assessment of the distribution of steelhead within the Southern California species indicates that 3196 steelhead occur in most of the coastal basins (Boughton and Fish 2003 in Good et al., 2005). Major watersheds 3197 occupied by steelhead in this species include the Santa Maria, Santa Ynez, Ventura, Santa Clara rivers. Smaller 3198 watersheds that support steelhead include the Los Angeles, San Gabriel, San Luis Rey and Sweetwater rivers, and 3199 San Juan and San Mateo creeks. Significant portions of several upper watersheds are contained with four national 3200 forests (Los Padres, Angeles, Cleveland and San Bernardino National Forests), whereas coastal and inland valleys 3201 are dominated by urban development, with the Los Angeles basin being the most expansive and densest urban area 3202 in the species. Populations within the southernmost portion of the species (San Juan Creek, San Luis Rey River and 3203 San Mateo Creek) are separated from the northernmost populations by about 80 miles.

3204 Status and Trends 3205 NMFS listed Southern California steelhead as endangered in 1997 (62 FR 43937), and reaffirmed their status as 3206 endangered on January 5, 2006 (71 FR 834). Historical and recent data is generally lacking for Southern California 3207 steelhead, making a general assessment of their status difficult. The historical run size estimate for the entire species 3208 was between 32,000-46,000 steelhead, but this estimate omits the Santa Maria system and basins south of Malibu 3209 Creek (Busby et al., 1996). Estimates for the Santa Ynez River Basin, probably the largest run historically, range 3210 from 13,000 to 30,000 spawners, although this number may underestimate the steelhead abundance in the basin prior 3211 to the construction of Juncal and Gibraltar dams (Busby et al., 1996; Good et al., 2005). No recent data are available 3212 for steelhead in the Santa Ynez basin and most of the historical spawning habitat was blocked by Bradbury and 3213 Gibraltar dams.

3214 Steelhead and rainbow trout are known to occur in streams downstream of Bradbury Dam, but no estimates of 3215 abundance or trends are available. Similarly, Twitchell Dam in the Santa Maria River, and Casitas Dam on Coyote 3216 Creek and Matilija Dam on Matilija Creek block access to significant portions of historical spawning and rearing

3217 habitat and alter the hydrology of the basins. A fish ladder and counting trap at the Vern Freeman Diversion Dam on 3218 the Santa Clara River is thought to be dysfunctional (Good et al., 2005). In general run sizes in river systems within 3219 the species are believed to range between less than five anadromous adults per year, to less than 100 anadromous 3220 adults per year. An estimated 26-52% of historically occupied basins are believed to contain some steelhead and 3221 about 30% are believed vacant, extirpated or nearly extirpated due to dewatering or barriers that block spawning 3222 habitat.

3223 Critical Habitat 3224 NMFS designated critical habitat for Southern California steelhead on September 2, 2005 (70 FR 52488). Specific 3225 geographic areas designated include the following CALWATER hydrological units: Santa Maria River, Santa 3226 Ynez, South Coast, Ventura River, Santa Clara Calleguas, Santa Monica Bay, Callequas and San Juan hydrological 3227 units. These areas are important for the species’ overall conservation by protecting quality growth, reproduction and 3228 feeding. The critical habitat designation for this species identifies primary constituent elements that include sites 3229 necessary to support one or more steelhead life stages. Specific sites include freshwater spawning sites, freshwater 3230 rearing sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 3231 features that characterize these sites include water quality and quantity, natural cover, forage, adequate passage 3232 conditions and floodplain connectivity. The critical habitat designation (70 FR 52488) contains additional details on 3233 the sub-areas that are included as part of this designation and the areas that were excluded from designation.

3234 In total, Southern California steelhead occupy 32 watersheds (fresh water and estuarine). The total area of habitat 3235 designated as critical includes about 700 miles of stream habitat and about 22 square miles of estuarine habitat, 3236 mostly within Humboldt Bay. This designation includes the stream channels within the designated stream reaches 3237 and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary high-water line is 3238 not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is defined by 3239 the extreme high water because extreme high tide areas encompass those areas typically inundated by water and 3240 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone 3241 and relying on cover and refuge qualities provided by these habitats and while they are foraging. Of the 32 3242 watersheds reviewed in NMFS' assessment of critical habitat for Southern California steelhead, five watersheds 3243 received a low rating of conservation value, six received a medium rating and 21 received a high rating of 3244 conservation value for the species.

3245 Upper Columbia River Steelhead

3246 Distribution and Description of the Listed Species 3247 The Upper Columbia River steelhead species includes all naturally spawned populations of steelhead in streams in 3248 the Columbia River Basin upstream from the Yakima River, Washington, to the U.S.-Canada border. Six artificial 3249 propagation programs are part of this species.

3250 Rivers in this species primarily drain the east slope of the northern Cascade Mountains and include the Wenatchee, 3251 Entiat, Methow and Okanogan River Basins. Some of these upper Columbia River subbasins, including the 3252 Okanogan River and the upper Columbia River proper, extend into British Columbia although steelhead do not 3253 occur in significant numbers in British Columbia and thus were not included in the species. Identified largely based 3254 on spawning distributions, this species is composed of four putative populations defined by the Wenatchee, Entiat, 3255 Methow and Okanogan rivers. Historically (before the construction of Grand Coulee Dam blocked 50% of the river 3256 to Upper Columbia steelhead) major watershed that may have supported steelhead that comprise this species were 3257 the Sanpoil, Spokane, Colville, Kettle, Pend Oreille and Kootenai rivers (ICBTRT, 2003).

3258 All upper Columbia River steelhead are summer-run steelhead. Adults return in the late summer and early fall, with 3259 most migrating relatively quickly to their natal tributaries. A portion of the returning adult steelhead overwinters in 3260 mainstem reservoirs, passing over upper-mid-Columbia dams in April and May of the following year. Spawning 3261 occurs in the late spring of the year following river entry. Juvenile steelhead spend one to seven years rearing in 3262 fresh water before migrating to sea. Smolt outmigrations are predominantly year class two and three (juveniles), 3263 although some of the oldest smolts are reported from this species (7 years). Most adult steelhead return to fresh 3264 water after one or two years.

3265 Status and Trends 3266 NMFS originally listed Upper Columbia River steelhead as endangered in 1997 (62 FR 43937). On January 5, 2006, 3267 after reviewing the status of Upper Columbia River steelhead and noting an increase in abundance and more 3268 widespread spawning, NMFS reclassified the status of Upper Columbia River threatened (71 FR 834). In accordance 3269 with a U.S. District Court decision, NMFS reinstated the endangered status of Upper Columbia River steelhead in 3270 June 2007 (62 FR 43937). NMFS appealed the Court’s decision, and on June 18, 2009, the District Court revised its 3271 ruling, effectively reinstating threatened status for Upper Columbia River steelhead (74 FR 42605). Thus, consistent 3272 with the court’s rulings and the NMFS’ listing determination of January 5, 2006, Upper Columbia River steelhead 3273 are listed as threatened under the ESA.

3274 Since the 1940s, artificially propagated steelhead have seeded this species to supplement the numbers lost with the 3275 construction of the Grand Coulee Dam. Abundance estimates of returning naturally produced Upper Columbia River 3276 steelhead have been based on extrapolations from mainstem dam counts and associated sampling information (e.g., 3277 hatchery/wild fraction, age composition). Early estimates of steelhead in this species may be based on runs that were 3278 already depressed due to dams and steelhead fisheries. Nevertheless, these early dam counts are the best source of 3279 available data on the former size of the populations within this species. From 1933-1959 counts at Rock Island Dam 3280 averaged between 2,600 and 3,700 steelhead adults, which suggested the pre-fishery run size likely exceeded 5,000 3281 adults destined for tributaries above Rock Island Dam (Chapman et al., 1994 as cited in Busby et al. 1996). Using 3282 counts at Priest Rapids Dam (located below the production areas for this species) as an indicator of species size and 3283 trends suggests that the total number of spawners has increased since NMFS’ 1996 status review. The 1992-1996 3284 average annual total returns (hatchery plus natural) of steelhead spawners was 7,800, and the 1997-2001 average is 3285 12,900 steelhead (hatchery plus natural). The natural component increased in these same periods from 1,040 to 3286 2,200, respectively (Good et al., 2005).

3287 While the total number of naturally produced fish in this species increased between status reviews, the proportion of 3288 naturally produced steelhead to hatchery-origin fish has declined. Total escapement increased in the combined 3289 estimate for the Wenatchee and Entiat rivers to a geometric mean of 3,279 spawners (900 natural spawners) over 3290 NMFS’ previous estimate of 2,500 hatchery and natural steelhead spawners (1989 to 1993, natural component 800 3291 steelhead) (Good et al., 2005). Estimates of the hatchery contribution to this population increased from 65% to 71% 3292 of total escapement. (Good et al., 2005) A comparison of estimates for the Methow and Okanogan rivers during the 3293 same periods indicate that the total escapement increased from 2,400 to 3,714 while naturally produced steelhead

3294 declined from 450 to 358. Thus, the contribution of naturally produced steelhead declined from 19% to only 9% of 3295 total escapement between the 1993 and 2001 estimates (Good et al., 2005).

3296 The assumptions of the role that hatchery fish play in the overall productivity and health of the species strongly 3297 influence estimates of population growth rates. Estimates based on the assumption that hatchery fish contribute to 3298 natural production at the same rate as natural-origin spawners consistently result in long-term population growth 3299 rates (expressed as λ) that are consistently below 1 (Good et al., 2005). Under the assumption that hatchery fish do

3300 not contribute to natural production, estimates of long term population growth rate suggest the population is 3301 growing. Determining the actual contribution of hatchery fish to natural production is important for understanding 3302 the true status of this species, particularly given that the proportion of naturally produced steelhead to hatchery- 3303 origin steelhead continues to decline. The extremely low replacement rate of naturally produced steelhead in this 3304 species is of concern.

3305 The majority of the biological review team (54%) felt that this species warranted an “endangered” listing due to the 3306 growth rate and productivity and uncertainty over the contribution of hatchery fish to natural production. NMFS, 3307 after convening a review of the artificial propagation programs of the six hatcheries concluded that the programs 3308 collectively mitigate the immediacy of extinction risk of the species. Thus, NMFS listed the species as threatened 3309 rather than threatened (71 FR 834). NMFS concluded that the hatchery programs have increased total escapement 3310 and the distribution of spawning areas and minimize the potential risks associated with artificial propagation. 3311 However, the abundance and productivity of naturally spawned steelhead remains a concern.

3312 Critical Habitat 3313 NMFS designated critical habitat for Upper Columbia River steelhead on September 2, 2005 (70 FR 52630). 3314 Designated critical habitat includes the following subbasins: Chief Joseph, Okanogan, Similkameen, Methow, 3315 Upper Columbia/Entiat, Wenatchee, Lower Crab, and the Upper Columbia/Priest Rapids subbasins and the 3316 Columbia River corridor. These areas are important for the species’ overall conservation by protecting quality 3317 growth, reproduction and feeding. The critical habitat designation for this species identifies primary constituent 3318 elements that include sites necessary to support one or more steelhead life stages. Specific sites include freshwater 3319 spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat and estuarine 3320 areas. The physical or biological features that characterize these sites include water quality and quantity, natural 3321 cover, forage, adequate passage conditions and floodplain connectivity. The final rule (70 FR 52630) lists the 3322 watersheds that comprise the designated subbasins and any areas that are specifically excluded from the designation.

3323 There are 42 watersheds within the range of Upper Columbia River steelhead. The total area of habitat designated as 3324 critical includes about 1,250 miles of stream habitat. This designation includes the stream channels within the 3325 designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas where the 3326 ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 42 watersheds 3327 reviewed in NMFS' assessment of critical habitat for Upper Columbia River steelhead, three watersheds received a 3328 low rating of conservation value, eight received a medium rating and 31 received a high rating of conservation value 3329 for the species. In addition, the Columbia River rearing/migration corridor downstream of the spawning range was 3330 rated as a high conservation value. Limiting factors identified for the Upper Columbia River steelhead include: 3331 mainstem Columbia River hydropower system mortality, reduced tributary stream flow, tributary riparian 3332 degradation and loss of in-river wood, altered tributary floodplain and channel morphology and excessive fine 3333 sediment and degraded tributary water quality.

3334 Upper Willamette River Steelhead

3335 Distribution and Description of the Listed Species 3336 The Upper Willamette River steelhead species includes all naturally spawned populations of winter-run steelhead in 3337 the Willamette River, Oregon and its tributaries upstream from Willamette Falls to the Calapooia River (inclusive). 3338 No artificially propagated populations that reside within the historical geographic range of this species are included 3339 in this listing. Hatchery summer-run steelhead occur in the Willamette Basin but are an out-of-basin population that 3340 is not included in this species.

3341 The native (late) winter-run steelhead, with spring Chinook salmon, are the only two populations of salmon believed 3342 to historically occur above Willametter Falls. The construction of a fish ladder at the falls in the late 1880s, allowed 3343 for the passage of summer steelhead from Skamania Creek and winter-run steelhead from Big Creek (i.e., Gnat 3344 Creek). The two groups of winter-run steelhead exhibit different return times. The later run exhibits the historical 3345 phenotype adapted to passing the seasonal barrier that existed at Willamette Falls prior to construction of the fish 3346 ladder. The early run of winter-run steelhead are considered non-native and were derived from Columbia River 3347 steelhead outside the Willamette River (Good et al., 2005). While the release of these hatchery winter-run fish was 3348 recently discontinued, some fish from earlier releases now reproduce naturally within the upper Willamette River 3349 Basin. Nonnative summer-run hatchery steelhead continue to be released within the upper basin (Good et al., 2005).

3350 Native steelhead in the Upper Willamette are a late-migrating winter group that enters fresh water in January and 3351 February (Howell et al., 1985a). They do not ascend to their spawning areas until late March or April (Dimick and 3352 Merryfield, 1945) and spawning occurs from April to June 1. The smolt migration past Willamette Falls also begins 3353 in early April and proceeds into early June, peaking in early- to mid-May (Howell et al., 1985). Smolts generally 3354 migrate through the Columbia via Multnomah Channel rather than the mouth of the Willamette River. Most spend 2 3355 years in the ocean before re-entering natal rivers to spawn (Busby et al., 1996). Steelhead of the Upper Willamette 3356 River species generally spawn once or twice, although some may spawn three times. Repeat spawners are 3357 predominantly female and generally account for less than 10% of the total run size (Busby et al., 1996).

3358 Status and Trends 3359 NMFS originally listed Upper Willamette River steelhead as threatened in 1999 (64 FR 14517), and reaffirmed their 3360 status as threatened on January 5, 2006 (71 FR 834). The Upper Willamette steelhead species consists of four 3361 demographically independent populations, each of which remains extant although depressed from historical levels. 3362 Available data for this species comes from a combination of dam counts, redd count index surveys and hatchery trap 3363 counts. Estimates of abundance from NMFS 1996 status review on this species, demonstrate a mix of trends with the 3364 largest populations, Mollala and North Santiam Rivers, declining over the period of analysis. The 2005 review of the 3365 status of the Upper Willamette steelhead species indicated that each population showed a declining trend over the 3366 data series that extended to 2000 and 2001, while one population, the Calapooia River, increased over the short-term 3367 (Good et al., 2005).

3368 More recently, data reported in McElhany et al., (2007) indicate that currently the two largest populations within 3369 this species are the Santiam River populations. Mean spawner abundance in both the North Santiam River and the 3370 South Santiam River is about 2,100. Long-term growth is negative for three of the populations within the species, 3371 with Calapooia River demonstrating a lambda of >1 indicating long-term growth in this population (McElhany et 3372 al., 2007). Spatial structure for the North and South Santiam populations has been substantially reduced by the loss 3373 of access to the upper North Santiam basin and the Quartzville Creek watershed in the South Santiam subbasin due 3374 dam construction lacking passage facilities (McElhany et al., 2007). Additionally, habitat in the Molalla subbasin 3375 has been reduced significantly by habitat degradation and in the Calapooia by habitat degradation as well as passage 3376 barriers. Finally, the diversity of some populations has been eroded by small population size, the loss of access to 3377 historical habitat, legacy effects of past winter-run hatchery releases and the ongoing release of summer steelhead 3378 (McElhany et al., 2007).

3379 Critical Habitat 3380 NMFS designated critical habitat for Upper Willamette River steelhead on September 2, 2005 (70 FR 52488). 3381 Designated critical habitat includes the following subbasins: Upper Willamette, North Santiam, South Santiam, 3382 Middle Willamette, Molalla/Pudding, Yamhill, Tualatin, and the Lower Willamette subbasins and the lower

3383 Willamette/Columbia River corridor. These areas are important for the species’ overall conservation by protecting 3384 quality growth, reproduction and feeding. The critical habitat designation for this species identifies primary 3385 constituent elements that include sites necessary to support one or more steelhead life stages. Specific sites include 3386 freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat and 3387 estuarine areas. The physical or biological features that characterize these sites include water quality and quantity, 3388 natural cover, forage, adequate passage conditions and floodplain connectivity. The final rule (70 FR 52630) lists the 3389 watersheds that comprise the designated subbasins and any areas that are specifically excluded from the designation.

3390 There are 38 watersheds within the range of Upper Willamette River steelhead. The total area of habitat designated 3391 as critical includes about 1,250 miles of stream habitat. This designation includes the stream channels within the 3392 designated stream reaches and includes a lateral extent as defined by the ordinary high water line. In areas where the 3393 ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 38 watersheds 3394 reviewed in NMFS' assessment of critical habitat for Upper Willamette River steelhead, 17 watersheds received a 3395 low rating of conservation value, six received a medium rating and 15 received a high rating of conservation value 3396 for the species. In addition, the lower Willamette/Columbia River rearing/migration corridor downstream of the 3397 spawning range was rated as a high conservation value.

3398 Marine Mammals

3399 Cook Inlet Beluga Whale

3400 Distribution and Description of the Listed Species 3401 Beluga whales are widely distributed in Arctic and subarctic waters and in Alaska five putative populations exist 3402 (Beaufort Sea, eastern Chukchi Sea, Bristol Bay, eastern Bering Sea and Cook Inlet) (Angliss et al., 2001). Cook 3403 Inlet beluga whales are the only population that is listed under the ESA. Mitochondrial and nuclear DNA distinguish 3404 Alaskan beluga whales from those that occur in Hudson Strait, Baffin Bay and the St. Lawrence River, with the 3405 Cook Inlet population demonstrating the strong evidence of genetic isolation from the other Alaskan populations and 3406 other populations demonstrating weak to moderate evidence of genetic isolation (O'Corry-Crowe et al., 2007; 3407 O'Corry-Crowe, 2008).

3408 Based on past studies of the summer distribution of beluga whales in Cook Inlet, it appears that the population has 3409 experienced a contraction in its overall distribution (Speckman and Piatt., 2000; Hobbs et al., 2008; Rugh et al., 3410 2010). According to Hobbs et al., (2008) 90% of the whales in the 1970s were observed within 70 nmi of the 3411 western tip of Anchorage (Point Woronzof), whereas more recently (1998-2007) 90% were detected within 20 nmi. 3412 Although the precise reason for the range contraction is not known, the shrinking summer distribution likely reflects 3413 the reduction in the population size over the same intervals and the beluga whale’s preference for dense aggregations 3414 of preferred prey species.

3415 Analyses of beluga whale stomach contents indicate that beluga whales are opportunistic feeders, but specific 3416 species form the bulk of the prey when they are seasonally abundant (Hobbs et al., 2008). For instance, eulachon 3417 (Thaleichthys pacificus) also known as smelt or candlefish, are a small anadromous fish return that their natal rivers 3418 in spring for spawning. The high fat content of this species confers a significant source of energy for beluga whales, 3419 including calving whales that occur in the upper inlet during the same period (Calkins, 1989). Based on stomach 3420 sample analyses from 2002-2007 fish compose the majority of the prey species, with gadids (cod and walleye 3421 pollock) and salmonids composing the majority of the fish eaten (Hobbs et al., 2008). Anadromous salmonids begin 3422 concentrating at the river mouths and intertidal flats in upper Cook Inlet in late spring and early summer as 3423 emigrating smolts and immigrating adult spawners. Like eulachon, salmon are another source of lipid-rich prey for

3424 the beluga whale and represent the greatest percent frequency of occurrence of the prey species found in Cook Inlet 3425 beluga whale stomachs (Hobbs et al., 2008). As salmonid numbers dwindle in the fall and winter, beluga whales 3426 return to feed on nearshore or deeper water species including cod, sculpin, flounder, sole, shrimp, crab and others 3427 (Hobbs et al., 2008).

3428 Beluga whale calving is not well documented but the presence of cow/calf pairs in large river estuaries in the upper 3429 inlet, and accounts of Alaskan Natives, suggests that calving and nursery areas are located near the mouths of the 3430 Beluga and Susitna Rivers, Chickaloon Bay and Turnagain Arm (see NMFS, 2008b). Recent surveys suggest that 3431 cow/calf pairs also make extensive use of Knik Arm in the summer and fall (Funk et al. 2005 as cited in NMFS, 3432 2008b). Neonates are often not seen until June in Cook Inlet (Burns and Seaman, 1986). Some researchers have 3433 suggested that the shallow waters of Cook Inlet may be important for reproduction and calving, as the shallower 3434 water is warmer which may confer an important thermal advantage for calf survival as they have relatively limited 3435 fat deposits at birth (see NMFS, 2008b). A beluga female’s first parturition is at age five or six. Breeding is 3436 presumed to occur shortly after calving, in the late summer after about 14-15 months of gestation (Calkins, 1989). 3437 Lactation lasts about two years, with breeding occurring during lactation (Calkins, 1989).

3438 Status and Trends 3439 On October 22, 2008, NMFS listed the Cook Inlet beluga whale as endangered (73 FR 62919). Historic numbers of 3440 beluga whales in Cook Inlet are unknown. Dedicated surveys began in earnest in the 1990s when NMFS began 3441 conducting aerial surveys for beluga whales in Cook Inlet. Prior to then, survey efforts were inconsistent, part of 3442 larger sea bird and marine mammal surveys, made by vessel, or estimated following interviews with fishermen 3443 (Klinkhart, 1966). In many cases the survey methodology or confidence intervals were not described. For instance, 3444 Klinkhart (1966) conducted aerial surveys in 1964 and 1965, where he describes having estimated the populations at 3445 300-400 whales, but the methodology was not described nor did he report the variance around these estimates. Other 3446 estimates were incomplete due to the small area the survey focused upon (e.g. river mouth estimates; e.g., Hazard 3447 1988). The most comprehensive survey effort prior to the 1990s occurred in 1979 and included transects from 3448 Anchorage to Homer, and covered the upper, middle and lower portions of Cook Inlet. From this effort, and using a 3449 correction factor of 2.7 to account for submerged whales Calkins (1989) estimated the 1979 abundance at about 3450 1,293 whales.

3451 In 1993, NMFS began systematic aerial surveys of beluga whales in Cook Inlet and like the 1979 survey cover the 3452 upper, middle and lower portions of Cook Inlet. The survey protocol involves using paired observers who make 3453 independent counts at the same time a video of the whale grouping is recorded. Each group size estimate is corrected 3454 for subsurface and missed animals, or if video counts are not available then additional corrections are made (Allen 3455 and Angliss, 2010).

3456 Between 1979 and 1994, according to above noted population estimates, Cook Inlet beluga whales declined by 50%, 3457 with another 50% decline observed between 1994 and 1998. Using a growth fitted model Hobbs et al., (2008) 3458 observed an average annual rate of decline of -2.91% (SE = 0.010) from 1994 to 2008, and a -15.1% (SE = 0.047) 3459 between 1994 and 1998. A comparison with the 1999-2008 data suggests the rate of decline at -1.45% (SE=0.014) 3460 per year (Hobbs et al., 2008). Given that harvest was curtailed significantly between 1999 and 2008, NMFS had 3461 expected the population would begin to recover at a rate of 2-6% per year. However, abundance estimates 3462 demonstrate that this is not the case (Hobbs and Shelden, 2008).

3463 In conducting its status review, NMFS ran a number of population viability analyses (PVAs) to estimate the time to 3464 extinction for Cook Inlet beluga whales. The models were sensitive to a variety of parameters such as killer whale

3465 predation, allee effects and unusual mortality events. The best approximation of the current population incorporated 3466 killer whale predation at only one beluga whale per year and allowed for an unusual mortality event occurring on 3467 average every 20 years. According to this model, there is an 80% probability that the population is declining, a 26% 3468 probability that the population will be extinct in 100 years (by 2108) and a 70% probability that the population will 3469 be extinct within 300 years (by 2308).

3470 Threats 3471 Natural Threats. Natural threats to Cook Inlet beluga whales include stranding, predation, parasitism and disease, 3472 environmental change and genetic risks associated with small populations (e.g., inbreeding, loss of genetic 3473 variability). As noted in NMFS’ Cook Inlet beluga whale conservation plan (NMFS, 2008b),beluga whales may 3474 strand accidentally as they occupy shallow water areas or escape predators, or as a result of diseases, illness or 3475 injury. Given the extreme tidal fluctuations in Cook Inlet, beluga whale strandings are not uncommon. According to 3476 NMFS (2008b) killer whales have been observed in Cook Inlet concurrent to beluga whale strandings and evidence 3477 of killer whale attacks is apparent in some beluga whale strandings.

3478 Over 700 beluga whales have stranded in Cook Inlet since 1988, many of which occurred in Turnagain Arm and 3479 often coincided with extreme tidal fluctuations (NMFS, 2008b). Where stranding occurs from extreme tidal 3480 fluctuations and animals are out of the water for extended periods the risk of mortality increases from cardiovascular 3481 collapse. Ten hours may be the upper limit for out of the water for beluga whales before serious injury or death 3482 occurs (NMFS, 2008b). Strandings may represent a significant threat to the conservation and recovery of the Cook 3483 Inlet beluga whale population.

3484 Gaydos et al., (2004) identified 16 infectious agents in free-ranging and captive southern resident killer whales, but 3485 concluded that none of these pathogens were known to have high potential to cause epizootics. Many of these same 3486 infectious agents could pose a problem for Cook Inlet beluga whales. At this time little information is available to 3487 date to suggest bacterial or viral agents are actively contributing to the decline in the Cook Inlet population. About 3488 80% of Cook Inlet beluga whales examined, however, have evidence of the parasite Crassicauda giliakiana in the 3489 kidneys, although it is presently unclear whether the parasite is affecting the status of the population (NMFS, 3490 2008b). Necropsies have also revealed infestations of the common nematode anasakids, or whaleworm in the 3491 stomach of adult Cook Inlet beluga whales. While the parasite tends to favor the stomach and can cause gastritis or 3492 ulcerations, the infestations in beluga whales has not been considered severe enough to have caused clinical 3493 responses (NMFS, 2008b). Liver trematodes have also been identified in at least one beluga whale. At present, 3494 NMFS has no information to suggest that parasites are having a measureable impact on the survival and health of the 3495 Cook Inlet whale population (NMFS, 2008b).

3496 Anthropogenic Threats. Human induced threats to Cook Inlet beluga whales include subsistence harvest, poaching 3497 and illegal harvest, incidental take during commercial fishing and reduction of prey through fishing harvests, 3498 pollution, oil and gas development, urban development, vessel traffic including from tourism and whale watching, 3499 noise, as well as research activities directed at beluga whales. During the early 1900s there was a short-lived 3500 commercial whaling company, The Beluga Whaling Company, which operated at the Beluga River in upper Cook 3501 Inlet. The Company during its 5 years of operation harvest 151 belugas from 1917-1921 (Mahoney and Shelden, 3502 2000). Another commercial hunt of beluga whales in 1930s is recollected by residents, but no record of the hunt 3503 exists in Alaska fishery and fur seal documents (as cited in Mahoney and Shelden, 2000). In 1999 and 2000 there 3504 was a voluntary moratorium on subsistence harvest. Thereafter, subsistence harvests have been conducted under co- 3505 management agreements. Since 2000, no more than 2 beluga whales have been taken in subsistence harvests in any 3506 one year (NMFS, 2008b).

3507 Commercial fisheries likely have varying levels of interactions with Cook Inlet beluga whales, according to the 3508 timing, gear types, targeted species and location of activities (NMFS, 2008b). Reports of fatal interactions with 3509 commercial fisheries have been noted in the literature (Hobbs et al., 2008). Direct interactions with fishing vessels 3510 and nets are considered unusual, based on observer data and unlikely to inhibit the recovery of Cook Inlet beluga 3511 whales. The reduction of prey species, however, is of more concern for the species. In 2000 NMFS recommended 3512 the closing of the eulachon fishery due to a lack of understanding of how this fishery interfered with beluga whale 3513 feeding, but in 2005 this fishery was reopened with a harvest limited at 100 tons of eulachon. Currently, it is unclear 3514 if fishery harvest of prey species is having a significant impact on the beluga whale population. Impacts from 3515 recreational fisheries, which are very popular in the region, likely include the reduction of fish prey species 3516 particularly salmonid species and also the harassment from noise and risk of injury from vessel strikes from the 3517 operation of small watercraft in the estuarine/river mouths (NMFS, 2008b).

3518 Contaminants in beluga whales are of concern for both whale health and the health of subsistence users. Tissue 3519 samples are regularly collected from subsistence harvested and stranded beluga whales and archived. Tissues and 3520 organs commonly collected include blubber, liver and kidneys, as well as muscle, heart, bone, skin and brain. 3521 Blubber is the most commonly collected; due to the lipid content it typically contains the most lipophilic substances 3522 (Becker, 2000). The kidney and liver are used to analyze heavy metal compounds. Relatively high levels of PCBs, 3523 chlorinated pesticides and mercury are evident in beluga whales, although the more contaminated belugas are from 3524 the St. Lawrence River, Canada (Becker 2000). Concentrations of chlorinated hydrocarbons in Cook Inlet beluga 3525 whales range from 0.1-2.4 µg/g, w.w. DDT, 0.6-4.7 µg/g, w.w. PCB, 0.1-0.6 µg/g, w.w. chlordane, <0.1-4.3 µg/g, 3526 w.w. toxaphene. Studies indicate that PCBs and chlorinated pesticide concentrations are higher in male beluga 3527 whales than females, reflecting the transference of body loads to the offspring that occurs during gestation and 3528 lactation (Becker et al., 2000). Other contaminants detected in Cook Inlet beluga whales include heavy metals such 3529 as cadmium, mercury, selenium, copper and zinc. Comparative studies suggest that Cook Inlet beluga whales 3530 generally carry less contaminant body burdens than beluga whales from other areas. An exception is copper, which 3531 is two to three times higher in Cook Inlet beluga whales than beluga whales from the eastern Beaufort Sea and the 3532 eastern Chukchi Sea, but is similar concentrations found in Hudson Bay beluga whales (Becker et al., 2000).

3533 Critical Habitat 3534 On April 11, 2011 NMFS designated critical habitat for the Cook Inlet beluga whale 76 FR 20180. Two specific 3535 areas are designated comprising 7,800 square kilometers of marine habitat. Area one encompasses all marine waters 3536 of Cook Inlet north of a line from the mouth of Threemile Creek (61°08.5′ N., 151°04.4′ W.) connecting to Point 3537 Possession (61°02.1′ N., 150°24.3′ W.), including waters of the Susitna River south of 61°20.0′ N., the Little Susitna 3538 River south of 61°18.0′ N. and the Chickaloon River north of 60°53.0′ N. (2) Area two encompasses all marine 3539 waters of Cook Inlet south of a line from the mouth of Threemile Creek (61°08.5′ N., 151°04.4′ W.) to Point 3540 Possession (61°02.1′ N., 150°24.3′ W.) and north of 60°15.0′N., including waters within two nautical miles seaward 3541 of the mean high water boundary along the western shoreline of Cook Inlet between 60°15.0′ N. and the mouth of 3542 the Douglas River (59°04.0′ N., 153°46.0′ W.); all waters of Kachemak Bay east of 151°40.0′ W.; and waters of the 3543 Kenai River below the Warren Ames bridge at Kenai, Alaska.

3544 Area 1 has the highest concentration of beluga whales in the spring through fall as well as the greatest potential for 3545 adverse impact from anthropogenic threats. It contains many rivers with large eulachon and salmon runs, including 3546 two rivers in Turnagain Arm (Twenty-mile River and Placer River) which are visited by beluga whales in the early 3547 spring. Use declines in the summer and increases again in August through the fall, coinciding with coho salmon 3548 returns. Also included in Area 1 are Knik Arm and the Susitna delta. Area 2 is located south of Area 1 and is used 3549 by Cook Inlet beluga whales for fall and winter feeding and as transit waters.

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3550 The primary constituent elements essential to the conservation of Cook Inlet beluga whales are: (1) Intertidal and 3551 subtidal waters of Cook Inlet with depths <30 ft. (MLLW) and within 5 miles of high and medium flow 3552 accumulation anadromous fish streams; (2) Primary prey species consisting of four species of Pacific salmon 3553 (Chinook, coho, sockeye and chum salmon), Pacific eulachon, Pacific cod, walleye pollock, saffron cod and 3554 yellowfin sole; (3) Waters free of toxins or other harmful agents; (4) Unrestricted passage within or between the 3555 critical habitat areas, and; (5) An absence of in-water noise levels that result in the abandonment of habitat by Cook 3556 Inlet beluga whales.

3557 Killer Whale Southern Resident Species

3558 Distribution and Description of the Listed Species 3559 The SRKW has been listed as endangered under the ESA since November 18, 2005 (70 FR 69903); critical habitat 3560 for this species was designated on November 29, 2006 (71 FR 69054). In April 2004, the Washington Department of 3561 Fish and Wildlife (WDFW) designated killer whales in Washington State as a “State endangered species” (WAC 3562 232-12-297). SRKWs are also protected by the MMPA and Canada’s Species at Risk Act (SARA).

3563 The Southern Resident killer whale (Orcinus orca) is a toothed whale and is the largest member of the dolphin 3564 family. Based on genetic research, it is believed that multiple subspecies of killer whales exist worldwide (Krahn et 3565 al., 2004; Reeves et al., 2004; Waples and Clapham, 2004; Jefferson et al., 2008). Resident killer whales in the 3566 Northeast Pacific are distributed from Alaska to California, with four distinct communities recognized: southern, 3567 northern, southern and western Alaska (Krahn et al., 2002; Krahn et al., 2004). The SRKW occurs in the 3568 northeastern Pacific Ocean along the west coasts of the U.S. and Canada. Resident whales exhibit advanced vocal 3569 communication and live in highly stable social matriarchal groupings called pods. They frequent a variety of marine 3570 habitats and their range does not appear to be limited by depth, temperature or salinity (Baird, 2000).

3571 The SRKW species consists of three pods, designated J, K and L, that reside for part of the year in the inland 3572 waterways of Washington State and British Columbia (Strait of Georgia, Strait of Juan de Fuca and Puget Sound), 3573 principally during the late spring, summer and fall (Bigg, 1982; Ford et al., 2000; Krahn et al., 2002). Pods have 3574 visited coastal sites off Washington and Vancouver Island (Ford et al., 2000) and are known to travel as far south as 3575 central California and as far north as the Queen Charlotte Islands off British Columbia. The locations of SRKWs in 3576 the late fall, winter and early spring are less well known.

3577 Parsons (2009) noted that members of different pods interact, but members generally remain within their matrilinear 3578 group. Interaction between pods has increased over the past two decades and may be the result of a common 3579 response among pods to the stress of a declining population (Parsons et al., 2009). The rate of intrapod interaction 3580 was lowest within L pod, which is the largest of the SRKW pods (Parsons et al., 2009).

3581 Male SRKWs become sexually mature at a mean age of approximately 15 years and are thought to remain sexually 3582 active throughout their adult lives (Christensen et al., 1984; Perrin and Reilly, 1984; Duffield and Miller, 1988; 3583 Olesiuk et al., 1990). Females first give birth at a mean age of approximately 14.9 years and produce an average of 3584 approximately 5.4 surviving calves over a reproductive life span of about 25 years (Olesiuk et al., 1990; Matkin et 3585 al., 2003). Gestation periods, as observed in captive killer whales, average around 17 months (Asper et al., 1988; 3586 Walker et al., 1988; Duffield et al., 1995). The mean interval between viable calve births is four years (Bain, 1990). 3587 Older mothers tend to have greater calving success and they appear to be assisted in calf rearing by grandmothers 3588 (Ward et al., 2009b). Some females may reach 90 years of age (Olesiuk et al., 1990). Mothers and offspring 3589 maintain highly-stable, lifelong social bonds and this relationship appears to be the basis for their matrilinear social 3590 structure (Bigg et al., 1990; Baird, 2000; Ford et al., 2000).

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3591 Although mating can occur year-round, most killer whale reproduction in the North Pacific has been observed to 3592 occur primarily from April to October (Olesiuk et al., 1990; Matkin et al., 1997), with a peak in calving occurring 3593 between September and March (Olesiuk et al., 2005; Jefferson et al., 2008). Killer whales are polygamous 3594 (Dahlheim and Heyning, 1999) and genetic data indicate that resident males mate with females outside of their own 3595 pods almost exclusively. This reduces the chances of inbreeding (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 3596 2001).

3597 Killer whales are apex predators and consume a varied diet but fish are their preferred prey (Scheffer and Slipp, 3598 1948; Ford et al., 1998; Ford et al., 2000; Saulitis et al., 2000). Although the record is incomplete, data suggest that 3599 SRKWs have a strong preference for Chinook salmon during late spring to fall (Hanson et al., 2005; Ford and Ellis, 3600 2006). Their winter and early spring diet is largely unknown. SRKWs spend about half of their time hunting prey. 3601 Approximately 95% of their time spent underwater is at depths of less than 30 m (Baird, 2000; Baird et al., 2003; 3602 Baird et al., 2005). They detect prey via echolocation and passive listening and likely hunt through a combination of 3603 vision and echolocation (Barrett-Lennard et al., 1996; Baird, 2000). Maximum observed dive depths average 141 m 3604 (Baird et al., 2003). Baird et al., (2005) reported that although the deepest recorded dive for a SRKW is 264 m, they 3605 are probably capable of diving to at least 330 m. No significant differences in the diving behavior of the three 3606 Southern Resident pods has been observed (Baird et al., 2005).

3607 Status and Trends 3608 The only pre-1974 account of Southern Resident abundance is from Sheffer and Slipp (1948) and merely notes that 3609 the species was “frequently seen” during the 1940s in the Strait of Juan de Fuca, northern Puget Sound, and off the 3610 coast of the Olympic Peninsula, with smaller numbers along Washington’s outer coast. Little information exists on 3611 the historic abundance of SRKWs. Until the mid- to late-1800s, the SRKW community may have numbered more 3612 than 200 animals (Krahn et al., 2002). Using the estimated abundance of SRKWs in 1971 of 67 whales and factoring 3613 in various sources of mortality, NMFS estimated a minimum historical abundance of about 140 SRKWs (Olesiuk et 3614 al., 1990). The SRKW population had grown to 90 whales by September 2006, but declined in 2007 with the loss of 3615 five individuals and the gain of two new calves leaving the total number at 87, with 25 whales in J pod, 19 whales in 3616 K pod and 43 whales in L pod (Center for Whale Research, unpublished data cited in NMFS, 2008d). At present, the 3617 Southern Resident population has declined to essentially the same size that was estimated during the early 1960s, 3618 when it was considered to be depleted (Olesiuk et al., 1990).

3619 Photo-identification catalogs for SRKWs provide information on recent abundance and trends of these pods (see 3620 Dahlheim, 1997; Dahlheim et al., 1997; Ford and Ellis, 1999; Matkin et al., 1999). From 1974–2007, the SRKWs as 3621 a whole have gone through several periods of growth and decline. For example, the species appeared to experience a 3622 period of recovery by increasing to 99 whales in 1995, but then declined by 20% to 79 whales in 2001 before 3623 another slight increase to 83 whales in 2003 (Ford et al., 2000; Carretta et al., 2005). This abrupt decline and 3624 unstable population status continue to be cause for concern, particularly given the small size of the species which 3625 makes it potentially vulnerable to Allee effects (e.g., inbreeding depression) that could cause further population 3626 decline or preclude a substantial increase in abundance (see NMFS, 2008d). The intensity of factors affecting the 3627 species is increased by stochastic events such as the small number of reproductive age males and high mortality 3628 rates for this group and is a major reason that the SRKW was listed as endangered rather than threatened (NMFS, 3629 2008d).

3630 Using data from 1974–2003, Krahn et al., (2002; 2004) further analyzed the population dynamics of the species to 3631 identify demographic factors contributing to the latest decline in abundance. Changes in survival were not related to 3632 stochastic variation caused by the SRKW community’s small size, such as random patterns in births or deaths or to

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3633 annual fluctuations in survival. Rather, the survival patterns were more likely influenced by external causes, such as 3634 changes in prey availability etc.

3635 Threats 3636 Natural Threats. The population of SRKWs has declined recently. The recent decline and unstable population 3637 structure make it difficult for SRKWs to recover from natural spikes in mortality (NMFS, 2008d). Although disease 3638 outbreaks have not been identified in this population, increased contaminant loading may increase the susceptibility 3639 of individuals to disease.

3640 Anthropogenic Threats. Salmon is the primary prey of killer whales and has been severely reduced due to habitat 3641 loss (NRC, 1996; Slaney et al., 1996; Gregory and Bisson, 1997; Lichatowich, 1999; Lackey, 2003; Pess et al., 3642 2003; Schoonmaker et al., 2003). A 50% reduction in killer whale calving has been correlated with years of low 3643 Chinook salmon abundance (Ward et al., 2009b).

3644 Contaminants entering SRKW habitat in Puget Sound and its surrounding waters accumulate in water, benthic 3645 sediments and in prey organisms (Krahn et al., 2009). SRKWs bioaccumulate these toxins in their tissues which 3646 may lead to numerous adverse physiological changes (Krahn et al., 2009). The greatest contaminant threats are from 3647 organochlorines (e.g. PCBs, pesticides, dioxins, furans and DDT) (Ross et al., 2000; CBD, 2001; Krahn et al., 2002; 3648 Cullon et al., 2009; Krahn et al., 2009). These chemicals bioaccumulate in fatty tissues, persist and can be 3649 transmitted from mother to offspring (Haraguchi et al., 2009; Krahn et al., 2009).

3650 Vessel activity has also been identified as a threat to SRKWs. In 2005, a U.S. vessel participating in sonar exercises 3651 apparently caused significant behavior changes in killer whale activity , such that the whales vacated the area 3652 (NMFS, 2005a). Additionally, the increase in “background noise” resulting from vessel traffic has the potential to 3653 influence or disrupt the ability of SRKWs to navigate, communicate and forage (Bain and Dahlheim, 1994; Gordon 3654 and Moscrop, 1996; Erbe, 2002; Williams et al., 2002a; Williams et al., 2002b; Holt et al., 2009).

3655 Critical Habitat 3656 NMFS designated critical habitat for Southern Resident killer whales on November 29, 2006 (71 FR 69054). Three 3657 specific areas were designated; (1) the Summer Core Area in Haro Strait and waters around the San Juan Islands; (2) 3658 Puget Sound; and (3) the Strait of Juan de Fuca, which comprise approximately 6,630 square kilometers of marine 3659 habitat. Three primary constituent elements exist in these areas: water quality to support growth and development, 3660 prey species of sufficient quantity, quality and availability to support individual growth, reproduction and 3661 development, as well as overall population growth, and passage conditions to allow for migration, resting and 3662 foraging. Water quality has declined in recent years due to agricultural run-off, urban development resulting in 3663 additional treated water discharge, industrial development and oil spills. The primary prey of southern residents, 3664 salmon, has also declined due to overfishing and reproductive impairment associated with loss of spawning habitat. 3665 The constant presence of whale-watching vessels and growing anthropogenic noise background has raised concerns 3666 about the health of areas of growth and reproduction as well.

3667 Environmental Baseline

3668 By regulation, environmental baselines for biological opinions include the past and present impacts of all state, 3669 Federal or private actions and other human activities in the action area, the anticipated impacts of all proposed

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3670 Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact 3671 of State or private actions which are contemporaneous with the consultation in process (50 CFR 402.02). The 3672 environmental baseline for this biological opinion includes the effects of several activities that affect the survival 3673 and recovery of endangered and threatened in the Action Area.

3674 A number of human activities have contributed to the current status of populations of endangered and threatened 3675 species in the action area. Some of those activities, most notably commercial whaling, occurred extensively in the 3676 past, ended, and no longer appear to affect populations of these species, although the effects of these reductions 3677 likely persist today. Other human activities are ongoing and appear to continue to affect populations of endangered 3678 and threatened species in the Action Area. The following discussion summarizes the principal phenomena in the 3679 Action Area that are known to affect the likelihood that these endangered and threatened species will survive and 3680 recover in the wild.

3681 Because this is a programmatic consultation, however, on what is primarily a continuing action with a geographic 3682 scope that encompasses all lands and waters of the United States, its territories and possessions, this Environmental 3683 Baseline serves a slightly different purpose. First, because this is both a programmatic and national consultation that 3684 does not assess the consequences of the Corps proposed action for specific sites or listed resources that occur at 3685 those sites, this Environmental Baseline focuses primarily on the status and trends of the aquatic ecosystems in the 3686 United States and the consequences of that status for listed resources. As such, this Environmental Baseline 3687 elaborates on some of the narratives we have already presented in our treatments of the Status of Listed resources by 3688 focusing on the status and trends of waters of the United States at a national scale. However, this Opinion is limited 3689 to discharges that occur in the District of Columbia, Idaho, Massachusetts and New Hampshire, all Indian lands and 3690 Federal lands in Delaware, Vermont and Washington State.

3691 We begin this Environmental Baseline with a discussion of the status and trends of waters of the United States. 3692 Because the status and trends of those waters, and the endangered and threatened species that depend on them, has 3693 been strongly influenced by wetland ecosystems in the United States, we summarize the status and trends of 3694 wetlands in the United States as a second step. Then we summarize the effect of Federal programs designed to 3695 protect and restore waters of the United States. We conclude by integrating and synthesizing this information to 3696 assess the effect of these programs on endangered species, threatened species, and designated critical habitat.

3697 The Changing Landscapes of the United States 3698 The continental United States has a land area of about 2.3 billion acres. In 2002, about 20 percent of this area (442 3699 million acres) was cropland in 2002, 26 percent (587 million acres) was permanent grassland pasture and range, 29 3700 percent (651 million acres) was forest-use land, and urban areas represented about 3 percent (60 million acres) of 3701 this land area, while a variety of other land uses -parks and recreational areas, wildlife areas, rural highways, roads, 3702 railroads, airport rights-of-way- represented about 13 percent of the land area (Lubowski et al., 2006).

3703 Since the 1940s, the acreage of land dedicated to forest-uses has declined since, although this acreage has increased 3704 by about 2 percent between 1997 and 2002. Between 1945 and 2002, the acreage of land dedicated to cropland uses 3705 declined by about 2 percent; between 1997 and 2002, total cropland decreased by 14 million acres (3 percent) to its 3706 lowest level since 1945 (Lubowski et al,. 2006). The acreage of land dedicated to grassland pasture and range 3707 increased by almost 7 million acres (1 percent) from 1997 to 2002; however, the area dedicated to grazing has 3708 declined from the 1940s to 2002 (Lubowski et al., 2006). Between 1945 and 2002, the land area dedicated to 3709 special-uses and urban areas has increased continuously. Between 1990 and 2002, the acres in urban areas increased 3710 by about 13 percent to 60 million acres (Lubowski et al., 2006).

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3711 Since colonial times, the landscapes of the United States reflect the abundance, distribution and economics of the 3712 human population. In 1790, the United States had a resident population that was slightly less than 4 million and a 3713 population density of 4.5 people per square mile. By 2000, that population had grown to slightly more than 281 3714 million people and the population density had increased to 79.6 per square mile. In 2007, the population of the 3715 United States increased to more than 300 million people for the first time in its history.

3716 Most of the population growth in the United States occurred in urban areas, first in central cities and later suburbs. 3717 Population sizes of cities in the eastern United States increased from the early 1800s until the 1950s; since then, the 3718 population size of western cities like Los Angeles and Phoenix increased while large eastern and Midwestern cities 3719 started to decline (Gibson, 1998). At the same time, an increasing percentage of our nation’s population was located 3720 in suburban areas. In 1910, three times more Americans lived in central cities than in suburban areas; by 1970, 3721 slightly more Americans lived in suburban areas than in either cities or rural areas. From 1950 to 1996, the urban 3722 population increased by 63 percent, the rural population decreased by 19 percent, and the greatest relative change 3723 occurred in the suburban population, an increase of 274 percent.

3724 By 2000, half of the population in the United States lived in the suburbs (Hobbs et al., 2002). About 75 percent of 3725 all Americans now live in areas that are urban or suburban in character; that is, about 75 percent of the people in the 3726 lower 48 States live in less than 2 percent of the land area of the lower 48 states. Most of the urban or suburban areas 3727 occur in the South and Midwest, but cities and suburbs account for less than 2 percent of the land area in those 3728 regions. In comparison, urban and suburban lands in the Northeast made up over 5 percent of the landscape. The 3729 percentage of “undeveloped” land or natural areas in the South, Northeast and West was almost the same as the 3730 percentage of urban and suburban area in those regions (about 22 percent). The Midwest had the lowest percentage 3731 of these lands (17 percent). In the Northeast and South, these lands are represented by forest cover; in the Midwest, 3732 these lands are represented by farmland, and in the West the lands are represented by grassland and shrub cover.

3733 About half of all natural lands in urban and suburban areas consist of patches that are smaller than 10 acres. 3734 Nationally, less than 5 percent of all natural areas consist of patches at least 1,000 acres in size. The northeast States 3735 have a higher percentage of natural areas between 100 and 1,000 acres and 1,000 to 10,000 acres in size than the 3736 other regions. Only western States have natural areas greater than 10,000 acres; these natural areas, however, 3737 account for 0.3 percent of all natural lands in urban and suburban areas.

3738 In some cases suburbs developed along major highways and transportation systems to connect pre-existing, rural 3739 communities with nearby urban areas. In other cases, suburbs developed in areas that had previously been 3740 agricultural or had been dominated by natural communities because of favorable environmental conditions, zoning 3741 ordinances or land costs (Abler, 1976; Matlack, 1997). As a result, most modern metropolitan areas encompass a 3742 mosaic of different land covers and uses (Hart, 1991). The mosaic or land uses associated with urban and suburban 3743 centers has been cited as the primary cause of declining environmental conditions in the United States (Flather et 3744 al., 1998) and other areas of the world (Houghton, 1994).

3745 Other human activities that have altered the landscapes of the United States include agricultural practices that 3746 include land conversion, sod busting, and applications of pesticides; forest practices that include timber harvests, 3747 silviculture, and the construction of logging roads; mining practices that include open-pit mining, mountain-top 3748 mining, placer mining, heap-leach mining, and removal of overburden materials; road construction practices that 3749 include alteration of land in the right of way, spraying herbicides to maintain the right of way, and construction of 3750 quarries for source materials; civil works projects that include canals, drainage ditches, projects to deliver water to 3751 arid lands in the western States, projects to drain wetlands in southeastern States, projects to control flooding in mid- 3752 western and eastern States, port construction, projects to maintain shipping channels, and the construction of more

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3753 than 8,100 major dams on rivers and streams in the United States, Puerto Rico, and the U.S. Virgin Islands.

3754 The direct and indirect effects of these changes in land-use and land-cover change have had a lasting effect on the 3755 quantity, quality and distribution of every major terrestrial, aquatic, and coastal ecosystem in the United States, its 3756 territories and possessions. By the mid-1990s, at least 27 types of ecosystems had declined by more than 98 percent 3757 (Noss and Murphy, 1995). These include old growth and virgin forests in the eastern United States, pine barrens 3758 across Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island 3759 (Cryan, 1985); more than 95 percent of the natural barrier island beaches in Maryland had been destroyed along with 3760 more than 50 percent of barrier island dunes. By 1986, more than 98 percent of the pre-settlement longleaf pine 3761 (Pinus palustris) forests in the southeastern coastal plain had been destroyed (Ware et al., 1993; Noss and Murphy, 3762 1995). Many other native ecosystems have experienced substantial reductions in area. About 90 percent of the 3763 original 58 million hectares of tallgrass prairie had been destroyed; 99 percent of the tallgrass prairie east of the 3764 Missouri River and 85 percent of the tallgrass prairie west of the Missouri River has been destroyed (Klopatek et al., 3765 1979).

3766 Aquatic and semi-aquatic ecosystems have not fared much better than these terrestrial ecosystems. Between the 3767 1780s and 1980s, 30 percent of the nation’s wetlands had been destroyed, including 74 percent of the wetlands in 3768 Connecticut, 73 percent of the wetlands in Maryland, 52 percent of the wetlands in Texas, 91 percent of all wetlands 3769 in California, including 94 percent of all inland wetlands (Dahl, 1990). From 1982 to 1987, the wetland area 3770 throughout the conterminous United States declined by 1.1 percent and the expansion of urban – suburban 3771 metropolitan areas accounted for 48 percent of this decline (Brady and Flather., 1994).

3772 Because of these changes in land use, many of the native plant and animal species that inhabited those native 3773 ecosystems over the past have become extinct or extinct in the wild over the past 200 years. The last passenger 3774 pigeon, a species that once numbered in the billions and covered most of the eastern and mid-western United States, 3775 became extinct in 1912. In the same year, the Louisiana parakeet (Conuropsis carolinensis ludoviciana) became 3776 extinct followed two years later by the extinction of its relative, the Carolina parakeet (C. c. carolinensis). The heath 3777 hen became extinct in the mid-1920s, the June sucker (Chasmistes liorus liorus) in the mid-1930s, Tecopa pupfish 3778 (Cyprinodon nevadensis calidae) in the early 1940s, and Ash Meadows killifish (Empetrichthys merriami) and 3779 Thicktail chub (Gila crassicauda) in the 1950s. Over the past 200 years, a substantial portion of the bird fauna of the 3780 Hawaiian islands — including the Oahu akepa, Kona finch, Lanai creeper, black mamo, and Hawai’i o’o — became 3781 extinct combined with the extinction of substantial portions of the freshwater mussel fauna of the Mississippi, Ohio, 3782 and Tennessee Rivers and regional extirpations of the flora and fauna of California, Florida, Oregon, Puerto Rico, 3783 and the desert states.

3784 Status and Trends of Waters of the United States 3785 All of the endangered and threatened species and designated critical habitat under the jurisdiction of NMFS depend 3786 on the health of aquatic ecosystems for their survival. All of these species were listed as endangered or threatened, at 3787 least in part, because of the consequences of human activities on the aquatic ecosystems -the estuaries, rivers, lakes, 3788 streams, and associated wetlands, floodplains, and riparian ecosystems- of the United States, its Territories and 3789 possessions. The status and trends of those aquatic ecosystems determines the status and trends of these species and 3790 the critical habitat that has been designated for them.

3791 Over the past 30 to 40 years, the nation’s aquatic ecosystems have improved substantially. In particular, pollution 3792 from point sources has been significantly reduced over the past 35 years. Sewage and industrial discharges into 3793 aquatic ecosystems have been controlled and some agricultural pesticides have been restricted or banned. Programs 3794 like the Conservation Reserve Program have taken highly erodible lands out of production. Despite this progress,

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3795 however, many aquatic ecosystems remain highly polluted. Of the waters bodies they assessed -39 percent of the 3796 river and stream miles, 46 percent of the lake area and 51 percent of the estuarine area- one or more designated uses 3797 are impaired. Non-point pollution from urban and agricultural land (e.g. siltation, nutrients, bacteria, metals and 3798 oxygen depleting substances) that is transported by precipitation and runoff was the primary cause of the 3799 impairment.

3800 These water quality problems, particularly the problem of non-point sources of pollution, have resulted from the 3801 changes humans have imposed on the landscapes of the United States over the past 100 – 200 years. One way of 3802 relating these changes in water quality to land uses relies on the surface area of a watershed that is covered by 3803 porous versus impervious surfaces. Most land areas that are covered by natural vegetation are highly porous and 3804 have very little sheet flow; precipitation falling on these landscapes infiltrates the soil, is transpired by the vegetative 3805 cover or evaporates. The increased transformation of the landscapes of the United States into a mosaic of urban and 3806 suburban land uses has increased the area of impervious surfaces -roads, rooftops, parking lots, driveways and 3807 sidewalks- in those landscapes.

3808 The amount of impervious surface in a watershed is a reliable indicator of a suite of phenomena that influence a 3809 watershed’s hydrology (Center for Watershed Protection, 2003). Above certain thresholds, landscapes with 3810 impervious surfaces respond to precipitation differently than other land-uses: rain that would normally infiltrate in 3811 forest, grassland and wetland soils falls on and flows over impervious surfaces. That runoff is then channeled into 3812 storm sewers and released directly into surface waters (rivers and streams), which changes the magnitude and 3813 variability of water velocity and volume in those receiving waters.

3814 Clean Water Act 3815 The Federal Water Pollution Control Act, or Clean Water Act, is the principal law concerned with polluting activity 3816 in streams, lakes and estuaries in the United States. This 1948 statute was totally re-written in 1972 (P. L. 92-500) to 3817 produce its current purpose: “to restore and maintain the chemical, physical, and biological integrity of the Nation's 3818 waters” (Federal Water Pollution Control Act, Public Law 92 –500). Congress made substantial amendment to the 3819 Clean Water Act in the Water Quality Act of 1987 (P. L. 100-4) in response to the significant and persistent water 3820 quality problems.

3821 The Clean Water Act uses two primary approaches to achieve its goal. The first approach uses regulations to achieve 3822 a goal of zero discharge of pollutants into waters of the United States. The second approach provides Federal 3823 technical assistance for municipal wastewater treatment construction. Both approaches are supported by research 3824 activities, permits and provisions for enforcement.

3825 To achieve its objectives, the Clean Water Act prohibits all discharges into the nation’s waters, unless they are 3826 specifically authorized by a permit. For example, the National Pollutant Discharge Elimination System or NPDES 3827 program regulates discharges of pollutants like bacteria, oxygen-consuming materials, and toxic pollutants like 3828 heavy metals, pesticides, and other organic chemicals. On the other hand, Section 404 of the Clean Water Act 3829 prohibits discharges of dredged or fill material into waters of the United States without a permit.

3830 Most of these Federal programs are administered by the EPA, while state and local governments have the principal 3831 day-to-day responsibility for implementing the law. However, other section of the Clean Water Act, such as the 3832 regulation of discharges of dredged or fill material into waters of the United States pursuant to section 404 (33 3833 U.S.C section 1344) are administered by the U.S. Army Corps of Engineers, or a state with a program approved by 3834 the EPA. Nonpoint sources of water pollution, which are believed to be responsible for the majority of modern water

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3835 quality problems in the United States, are not subject to Clean Water Act permits or the regulatory requirements. 3836 Instead, non-point sources of pollution are regulated by State programs.

3837 Puget Sound as an Example of the Impact 3838 Puget Sound provides and illustrative example of the impacts of the environmental baseline on endangered and 3839 threatened species under NMFS’ jurisdiction. Between 2000 and 2006, counties in Puget Sound increased by 3840 315,965 people or by more than 50,000 people per year, with associated increases in the area of impervious surface 3841 and population density per square mile of impervious surface in the Puget Sound region (Puget Sound Action Team 3842 2007). Between 1991 and 2001, the area of impervious surface in the Puget Sound basin increased 10.4 percent 3843 (Puget Sound Action Team, 2007). By 2001, impervious surface covered 7.3 percent of the Puget Sound region 3844 below 1,000 feet elevation; in some counties and watersheds in the region, this area was substantially higher.

3845 Over the same time interval, about 190 square miles of forest (about 2.3 percent of the total forested area of the 3846 Puget Sound basin) was converted to other uses. In areas below 1,000 feet elevation, the change was more dramatic: 3847 3.9 percent of total forest area was converted to other uses. By 2004, about 1,474 fresh and marine waters in Puget 3848 Sound were listed as “impaired waters” in Puget Sound. Fifty-nine percent of these waters tested were impaired 3849 because of toxic contamination, pathogens, low dissolved oxygen or high temperatures. Less than one-third of these 3850 impaired waters have cleanup plans in place. Chinook salmon from Puget Sound have 2-to-6 times the 3851 concentrations of PCBs in their bodies as other Chinook salmon populations on the Pacific Coast. Because of this 3852 contamination, the Washington State Department of Health issued consumption advisories for Puget Sound chinook 3853 (Puget Sound Action Team, 2007).

3854 The quality of water in the Puget Sound Basin and aquatic biota those water support have been affected by a range 3855 of forestry, agricultural, and urban development practices. The chemical quality of surface water in the foothills and 3856 mountains is generally suitable for most uses. However, the physical hydrology, water temperature and biologic 3857 integrity of streams have been influenced to varying degrees by logging (Black and Silkey, 1998).

3858 Because of development, many streams in the Puget Lowlands have undergone changes in structure and function 3859 with a trend toward simplification of stream channels and loss of habitat (Black and Silkey, 1998). Sources of 3860 contaminants to lowland streams and lower reaches of large rivers are largely nonpoint because most major point 3861 sources discharge directly to Puget Sound. Compared with that in small streams in the Puget Lowlands, the quality 3862 of water in the lower reaches of large rivers is better because much of the flow is derived from the forested 3863 headwaters.

3864 More than half of the agricultural acreage in the basin is located in Whatcom, Skagit and Snohomish Counties. 3865 Agricultural land use consists of about 60 percent cropland and 40 percent pasture. Livestock produce a large 3866 amount of manure that is applied as fertilizer to cropland, sometimes in excess amounts, resulting in runoff of 3867 nitrogen and phosphorus to surface water and leaching of nitrate to ground water. Runoff from agricultural areas 3868 also carries sediment, pesticides, and bacteria to streams (Staubitz et al., 1997). Pesticides and fumigant-related 3869 compounds are present, usually at low concentrations, in shallow ground water in agricultural areas.

3870 Heavy industry is generally located on the shores of the urban bays and along the lower reaches of their influent 3871 tributaries, such as Commencement Bay and the Puyallup River in Tacoma and Elliott Bay and the Duwamish 3872 Waterway in Seattle. High-density commercial and residential development occurs primarily within and adjacent to 3873 the major cities. Development in recent years has continued around the periphery of these urban areas but has 3874 trended toward lower density. This trend has resulted in increasing urban sprawl in the central Puget Sound Basin.

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3875 Urban land-use activities have significantly reduced the quality of streams in the Puget Sound Basin (Staubitz and 3876 others, 1997). Water-quality concerns related to urban development include providing adequate sewage treatment 3877 and disposal, transport of contaminants to streams by storm runoff, and preservation of stream corridors. Water 3878 availability has been and will continue to be a major, long- term issue in the Puget Sound Basin. It is now widely 3879 recognized that ground-water withdrawals can deplete streamflows (Morgan and Jones, 1999), and one of the 3880 increasing demands for surface water is the need to maintain instream flows for fish and other aquatic biota.

3881 Chinook salmon from Puget Sound have 2-to-6 times the concentrations of PCBs in their bodies as other Chinook 3882 salmon populations on the Pacific Coast. Because of this contamination, the Washington State Department of Health 3883 has issued consumption advisories for Puget Sound Chinook (Puget Sound Action Team, 2007). Nevertheless, 3884 between 2000 and 2006, counties in Puget Sound counties increased by 315,965 people or by more than 50,000 3885 people per year, with associated increases in impervious surfaces and population density per square mile of 3886 impervious surface (Puget Sound Action Team, 2007).

3887 Pollutants founds in Puget Sound chinook salmon have found their way into the food chain of the Sound. Harbor 3888 seals in southern Puget Sound, which feed on Chinook salmon, have PCB levels that are seven times greater than 3889 those found in harbor seals from the Georgia Basin. Concentrations of polybrominated diphenyl ether (also known 3890 as PBDE, a product of flame retardants that are used in household products like fabrics, furniture, and electronics) in 3891 seals have increased from less than 50 parts per billion in fatty tissue to more than 1,000 ppb over the past 20 years 3892 (Puget Sound Action Team, 2007).

3893 Water quality appears poised to have larger-scale effects on the marine ecosystem of the Puget Sound Georgia Basin 3894 as evidenced by the intensity and persistence of water stratification in the basin. Historically, Puget Sound was 3895 thought to have an unlimited ability to assimilate waste from cities, farms and industries in the region and decisions 3896 about human occupation of the landscape were based on that belief. More recent data suggests that the marine 3897 ecosystems of the basin have a much more limited ability to assimilate pollution, particularly in areas such as Hood 3898 Canal, south Puget Sound, inner Whidbey basin and the central Georgia Basin. In these areas, as strong stratification 3899 has developed and persisted, the respective water quality has steadily decreased. As waters become more stratified, 3900 through weather, climate or circulation changes, they become even more limited in their ability to assimilate 3901 pollution.

3902 The presence of high levels of persistent organic pollutants, such as PCB, DDT, and flame–retardants have also been 3903 documented in southern resident killer whales (Herman et al., 2005; Ross, 2006; Ylitalo et al., 2008). Although the 3904 consequences of these pollutants on the fitness of individual killer whales and the population itself remain unknown, 3905 in other species these pollutants have been reported to suppress immune responses (Kakuschke and Prange, 2007), 3906 impair reproduction and exacerbate the energetic consequences of physiological stress responses when they interact 3907 with other compounds in an animal’s tissues (Martineau, 2007). Because of their long life span, position at the top of 3908 the food chain, and their blubber stores, killer whales would be capable of accumulating high concentrations of 3909 contaminants.

3910 Ambient Noise in the Puget Sound Region 3911 Ambient noise is background noise in the environment. When one considers the distance from its source that a 3912 signal can be detected, the intensity and frequency characteristics of ambient noise are important factors to consider 3913 in combination with the rate at which sound is lost as it is transmitted from its source to a receiver (Richardson et 3914 al., 1995). Generally, a signal would be detectable or salient only if it is stronger than the ambient noise at similar 3915 frequencies. The lower the intensity of ambient noise, the farther signals would travel and remain salient.

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3916 There are many sources of ambient noise in the ocean, including wind and waves, rain and hail, human activities 3917 such as shipping, fishing boats, and seismic surveys; sounds produced by living organisms, seismic noise from 3918 volcanic and tectonic activity, and thermal noise that results from molecular agitation (which is important at 3919 frequencies greater than 30 kHz).

3920 Several authors have reported that ambient noise levels in the northeast Pacific Ocean increased between the mid- 3921 1960s, the mid-1990s, and the early 2000s. Andrew et al. (2002) reported that ambient sound levels increased by 3922 about 10 dB in the frequency ranges between 20 and 80 Hz and 200 and 300 Hz between the period from 1963 to 3923 1965 and 1994 to 2001. In the frequency range between 200 and 300 Hz, ambient sound levels increased by about 3 3924 dB. Since the 1960s, ambient noise in the 30–50 Hz band has increased by 10–12 dB, with most of this increase 3925 resulting from changes in commercial shipping (McDonald et al., 2006) and increases in whale song (Andrew et al. 3926 2002).

3927 Measurements taken at San Nicholas Island, which were considered representative of patterns that would occur 3928 across the Pacific Coast of California, Oregon, and Washington, identified seasonal differences in ocean ambient 3929 levels due to seasonal changes in wind driven waves, biological sound production, and shipping route changes 3930 (McDonald et al., 2006). The strongest seasonal signal at the San Nicolas South site was attributed to blue whale 3931 singing (Burtenshaw et al., 2004) which had a broad peak near 20 Hz in the spectral data (because fin whales occur 3932 in the area throughout the year, the seasonal difference was attributed to blue whales, which only occur in the areas 3933 seasonally). When the band of fin whale calls were excluded, the average February 2004 ambient pressure spectrum 3934 level was 10–14 dB higher than the February 1965 and 1966 levels over the 10–50 Hz band Above 100 Hz, there 3935 was a 1–2 dB difference between the two sets of February noise data (McDonald et al., 2006).

3936 Noise in the marine environment has received a lot of attention in recent years and is likely to continue to receive 3937 attention in the near future. Several investigators have argued that anthropogenic sources of noise have increased 3938 ambient noise levels in the ocean over the last 50 years (Richardson et al., 1995). As discussed in the preceding 3939 section, much of this increase is due to increased shipping as ships become more numerous and of larger tonnage 3940 (National Research Council, 2003). Commercial fishing vessels, cruise ships, transport boats, airplanes, helicopters 3941 and recreational boats all contribute sound into the ocean (National Research Council, 2003). The military uses 3942 sound to test the construction of new vessels as well as for naval operations. In some areas where oil and gas 3943 production takes place, noise originates from the drilling and production platforms, tankers, vessel and aircraft 3944 support, seismic surveys, and the explosive removal of platforms (National Research Council, 2003). Many 3945 researchers have described behavioral responses of marine mammals to the sounds produced by helicopters and 3946 fixed-wing aircraft, boats and ships, as well as dredging, construction, geological explorations, etc. (Richardson et 3947 al,. 1995).

3948 Integration and Synthesis of the Environmental Baseline 3949 The direct and indirect effects of changes in land-use and land-cover in the states of Alaska, Delaware, Idaho, 3950 Hawaii (only Midway Island), Massachusetts, New Hampshire, Vermont and Washington; the District of Columbia; 3951 the territories of American Samoa, Guam, and Puerto Rico; the Commonwealth of the Northern Mariana Islands; the 3952 possessions Johnston Atoll and Wake Island; and Indian lands throughout the United States have had lasting effect 3953 on the quantity, quality, and distribution of every major terrestrial, aquatic, and coastal ecosystem in those states, 3954 district, territories, and possessions. Many native ecosystems exist as small isolated fragments surrounded by 3955 expanses of urban and suburban landscapes or “natural” areas that are dominated by non-native species. As a result, 3956 many of the native plant and animal species that inhabited those native ecosystems over the past have become 3957 extinct, extinct in the wild, endangered, or threatened over the past 200 years.

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3958 Beginning in the 1960s, a wide variety of programs undertaken by Federal, State, and local governments, non- 3959 governmental organizations, and private individuals have been established to protect or restore our nation’s forests, 3960 grasslands, wetlands, estuaries, rivers, lakes, and streams. Those programs have helped slow and, for many 3961 ecosystems, reverse declining trends that began in the past. However, those efforts have benefited some ecosystems 3962 and their associated flora and fauna more than other ecosystems. Despite the efforts of agencies at every level of 3963 government, non-governmental organizations, and private individuals, non-point sources of pollution still degraded 3964 our rivers, lakes, and streams; freshwater aquifers in coastal areas remain at risk from saltwater intrusion because of 3965 water withdrawals; nutrients transported down the Mississippi River remains sufficient to produce an hypoxic zone 3966 in the Gulf of Mexico that had more than doubled in size; and the acreage of wetland declined from slightly more 3967 than 274 million acres of wetlands to about 107.7 million acres between the 1980s and 2004 (Dahl, 2006).

3968 Southern Resident Killer Whales 3969 As discussed in the Status of the Species section of this Opinion, southern resident killer whales were listed as 3970 endangered because of their exposure to the various stressors that occur in the action area for this consultation. 3971 Exposure to those stressors resulted in the species’ decline from around 200 individuals to about 67 individuals in 3972 the 1970s and the species’ apparent inability to increase in abundance above the 75 to 90 individuals that currently 3973 comprise this species. These phenomena would increase the extinction probability of southern resident killer whales 3974 and amplify the potential consequences of human-related activities on this species. Based on their population size 3975 and population ecology (that is, slow-growing mammals that give birth to single calves with several years between 3976 births), we assume that southern resident killer whales would have elevated extinction probabilities because of 3977 exogenous threats caused by anthropogenic activities that result in the death or injury of individual whales (for 3978 example, ship strikes or entanglement) and natural phenomena (such as disease, predation, or changes in the 3979 distribution and abundance of their prey in response to changing climate) as well as endogenous threats resulting 3980 from the small size of their population. Based on the number of other species in similar circumstances that have 3981 become extinct (and the small number of species that have avoided extinction in similar circumstances), the longer 3982 southern resident killer whales remain in these circumstances, the greater their extinction probability becomes.

3983 Pacific Salmon 3984 When NMFS listed Sacramento River winter-run Chinook salmon as endangered and designated critical habitat for 3985 the species, its final rules to list the species and designated its critical habitat identified water quality degradation 3986 associated with the section 404 permits the Corps issued in the Sacramento River, Sacramento River-San Joaquin 3987 Delta, and San Francisco Bay as one of several reasons for the listing (57 FR 36626, 59 FR 440). When NMFS 3988 proposed Oregon coast, Southern Oregon Northern Coastal California, and Central California Coast coho salmon as 3989 threatened, the proposal also identified the loss of wetland habitat, including the Corps failure to consider the 3990 cumulative impact of its 404 permits, as one of several reasons for listing these salmon as threatened (60 FR 38011, 3991 61 FR 56138).

3992 Similarly, when NMFS proposed and listed Central California Coast, South Central California Coast, Central 3993 Valley, Upper Columbia River, Snake River Basin, Lower Columbia River, and Northern California steelhead as 3994 threatened and Southern California steelhead as endangered, NMFS identified the loss of wetland habitat as one of 3995 several reasons these steelhead warranted protection under the ESA (61 FR 41541, 62 FR 43937). Rules designating 3996 or proposing critical habitat for green and hawksbill sea turtles, several populations of steelhead, and coho salmon 3997 have also identified water quality degradation caused by activities authorized by Corps permits as one of several 3998 reasons for these critical habitat designations (64 FR 36274, July 6, 1999; 63 FR 46693, September 2, 1998, 64 FR 3999 5740, February 5, 1999; 64 FR 24049, May 5, 1999; and 64 FR 24998, May 10, 1999).

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4000 Effects of the Proposed Action

4001 The Description of the Proposed Action section of this Opinion summarized the proposed Action. The Status of the 4002 Listed Resources and Environmental Baseline section then identified the endangered species, threatened species and 4003 designated critical habitat under NMFS’ jurisdiction that are likely to be adversely affected by the proposed action 4004 and summarized the status and trends of those species, their dependence on waters of the United States and other 4005 ecological information that might be relevant to our effects’ analyses, then summarized the consequences of a 4006 variety of human activities on endangered species, threatened species and designated critical habitat.

4007 In the Effects of the Action section of this programmatic consultation we evaluate the decision-making process that 4008 EPA uses to insure that the activities it authorizes are not likely to result in jeopardy to threatened or endangered 4009 species or result in adverse modification of designated critical habitat. For many programmatic consultations, the 4010 action agency has structured the program so that neither species nor critical habitat are exposed to the stressors of 4011 the action until there is a separate ESA section 7 consultations addressing site specific activities that will result in 4012 exposure. However, in this instance, EPA intends to authorize a large number of discharges without subsequent ESA 4013 section 7 consultations, except for those discharges that do not qualify for coverage under the general permit and for 4014 which the discharger must seek an individual permit. Accordingly, if there is overlap with species, EPA’s 4015 programmatic action will result in exposure of species and critical habitat to the action. In this section we approach 4016 analyses of the EPA’s decisions and actions through a series of steps. The first step identifies those aspects of 4017 proposed actions that are likely to have individual, interactive or cumulative direct or indirect physical, chemical and 4018 biotic effects on the environment. We refer to these aspects of the action as “potential stressors.” Potential stressors 4019 include the actual phenomena that cause stress to an organism as well as the events resulting in those phenomena.

4020 The second step of our analyses identifies the endangered or threatened species, or designated critical habitat that are 4021 likely to occur in the same space and at the same time as these potential stressors. Once we identify which 4022 endangered or threatened species, or designated critical habitat are likely to be exposed to an action’s effects and the 4023 nature of that exposure, we examine the scientific and commercial data available to determine whether and how 4024 those endangered or threatened species, or designated critical habitat are likely to respond given their exposure. This 4025 step represents our Exposure and Response Analyses. The Risk Analyses are the final steps of our analyses and 4026 establish the risks those responses pose to the continued existence of listed species or designated critical habitat.

4027 Because the continued existence of listed species depends on the fate of the populations that comprise them, the 4028 viability of listed species (i.e. the probability of extinction or probability of persistence) depends on the viability of 4029 the populations that comprise these species. Similarly, the continued existence of populations are determined by the 4030 fate of the individuals that comprise them; populations grow or decline as the individuals that comprise the 4031 population live, die, grow, mature, migrate and reproduce (or fail to do so).

4032 For designated critical habitat, our “destruction or adverse modification” determinations are based on an action’s 4033 effects on the conservation value of habitat that has been designated as critical to threatened or endangered species12. 4034 If critical habitat designation is likely to be exposed to the direct or indirect consequences of the proposed action on

12 We are aware that several Courts have ruled that the definition of destruction or adverse modification that appears in the Section 7 regulations at 50 CFR 402.02 is invalid and do not rely on that definition for the determinations we make in this Opinion. Instead, as we explain in the text, we use the “conservation value” of critical habitat for our determinations, which focuses on the designated area’s ability to contribute to the conservation or the species for which the area was designated.

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4035 the natural environment, we ask if any primary or secondary constituent elements included in the designation or 4036 physical, chemical or biotic phenomena are likely to respond to that exposure.

4037 For the final part of our Effects Analysis, we examine the EPA’s decision making process and the protective control 4038 measures it intends to establish to protect listed species or designated critical habitat from the adverse direct or 4039 indirect effects of the activities authorized by the permit. We then determine whether these controls are sufficient 4040 such that EPA can insure that these activities are not likely to result in jeopardy to the continued existence of any 4041 listed species or designated critical habitat under NMFS’ jurisdiction. As part of this analysis, we analyze the past 4042 performance of similar control measures in the individual and general permits that the EPA has issued and consider 4043 the performance of those controls as indicative of how well the controls of the PGP are likely to work.

4044 To conduct these analyses, we rely on all of the evidence available to us13. This evidence might consist of 4045 monitoring reports submitted by past and present permit holders, reports from NMFS Science Centers, reports 4046 prepared by State or Tribal natural resource agencies, reports from non-governmental organizations involved in 4047 marine conservation issues and the general scientific literature. In addition to this evidence, we consider reports and 4048 other documents (e.g. environmental assessments, environmental impact statements and monitoring reports) 4049 prepared by other Federal and State agencies such as the Minerals Management Service, U.S. Coast Guard and U.S. 4050 Navy whose operations extend into the marine environment.

4051 Potential Stressors

4052 In this section, we identify those aspects of the proposed action that are likely to have individual, interactive, or 4053 cumulative direct or indirect physical, chemical and biotic effects on the environment. In this Opinion we are 4054 primarily concerned with the potential adverse effects to endangered or threatened species, or designated critical 4055 habitat by pesticides discharged on, over or near waters of the United States as authorized by the issuance of the 4056 PGP.

4057 The EPA focused on the active ingredients of pesticide formulations when it registered these compounds for the use 4058 patterns to be authorized by the PGP. Many of these pesticide active ingredients persist in the aquatic environment 4059 long after their intended uses (see Table 4). In addition, these active ingredients also include adjuvants, surfactants 4060 and other additives. The effects of exposure to these other product ingredients were not evaluated in the FIFRA 4061 registration process.

4062 The EPA permits more than 4,000 potentially hazardous additives for use in pesticide formulations. For example, 4063 nonylphenols are ingredients that may be included in the formulations of pesticide pollutants and are common 4064 wastewater contaminants from industrial and municipal sources. A national survey of streams found that 4065 nonylphenol was among the most common organic wastewater contaminants in the U.S. and was detected in more 4066 than 50% of the samples tested (Koplin et al., 2002a). The common pesticide additive xylene is a neurotoxin and the 4067 additive coal tar is a known carcinogen. To complicate matters, several permitted additives are also registered 4068 pesticide active ingredients.

4069

13 Although Section 7(a)(2) of the Endangered Species Act of 1973, as amended, requires us to use the best scientific and commercial data available, at this stage of our analyses, we consider all lines of evidence.

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Table 4. Persistence of Some Commonly Used Pesticides in Surface Water and Aquatic Sediments (After Mackay et al., 1997)

Half Life Surface Use Class Chemical Class Example Water Aquatic Sediment Herbicides Amino acid Glyphosate ~2 months ~8 months derivatives

Chlorphenoxy 2,4-D, ~2 days ~2 months acids

Triazines Atrazine ~2 years ~2 months

Simazine ~3 weeks ~8 months Insecticides Carbamates Carbaryl ~1 week ~2 months

Organophosphates Chlorpyrfos ~1 week ~2 months

Diazinon ~2 months ~8 months Malathion ~2 days ~3 weeks 4070

4071 Because individual components of pesticide formulations other than the active ingredients may themselves be toxic, 4072 we consider all pesticides –including adjuvants, surfactants and other additives in the formulations of those 4073 pesticides– that are to be authorized to be discharged on, over or near waters of the United States by the proposed 4074 PGP to be pesticide pollutants.

4075 Use Patterns to be Authorized by the Proposed Permit

4076 Mosquito and Other Flying Insect Pest Control 4077 This use pattern includes any application of pesticides in, over or near waterbodies where these pests spend at least 4078 part of their life cycle. Applications may occur to prevent disease outbreaks or other health reasons or to support 4079 recreational activities.

4080 The variety of pesticides and formulations that are used will commonly depend on the life stage of mosquito that is 4081 being controlled. To control larval stages, formulations of Bacillus thuringiensis and B. sphaericus are common 4082 while formulations of carbaryl, chlorpyrifos, deltamethrin, malathion, methoprene, sumithrin and temephos are 4083 common to control flying adults. The 13 mosquito abatement districts in the State of Idaho, for example, generally 4084 apply different formulations of Bacillus thuringiensis and B. sphaericus to mosquito breeding habitats when their 4085 larvae are in the first to third instar stages of life (Anonymous, 2003), although some districts will also apply 4086 methoprene, temephos (in the formulation Abate), or pyrethrins. To control flying adult mosquitoes, these districts 4087 apply ultra-low volumes of insecticides, which include a malathion-based ultra-low volume concentrate, naled, 4088 pyrethrins and pyrethroids (Anonymous, 2003).

4089 The Central Massachusetts Mosquito Control Project14, as another example, also applies different formulations of 4090 Bacillus thuringiensis and B. sphaericus to control mosquito larvae, also supplemented with formulations of 4091 methoprene. To control flying adult mosquitoes, these districts apply ultra-low volumes of insecticides, which 4092 include formulations of sumithrin, deltamethrin and pyrethroids. The State of New Hampshire Department of Health

14 http://www.cmmcp.org/

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4093 and Human Services15 uses similar formulations to control mosquitoes.

4094 Aquatic Weed and Algae and Pathogen Control 4095 The aquatic weed and algae control pesticide use pattern includes the application of pesticides in, over or near 4096 waterbodies to control algae and other submergent or emergent nuisance aquatic plants to protect sensitive aquatic 4097 habitats and to maintain recreational uses. This is a broad use pattern covering many types of aquatic habitats.

4098 There are a variety of formulations and application methods for this use pattern. For example, the pesticides that the 4099 EPA currently authorizes for aquatic weed and algae control in Idaho include 2,4-D, copper compounds, diquat, 4100 endothall, fluridone, glyphosate and triclopyr16. Application methods include boom sprayers, spreaders, backpack 4101 sprayers and aerial applications. Applications under this use pattern include spot treatments or large scale treatments 4102 of several acres. These applications are usually made when the target plants are present and not dormant. Because 4103 these factors can vary widely between regions and individual waterbodies, these applications may occur at any time 4104 of year.

4105 Aquatic Nuisance Animal and Pathogen Control 4106 The aquatic nuisance animal control use pattern includes the application of pesticides in, over or near waterbodies to 4107 control a wide variety of aquatic animals. These uses include fisheries management, invasive species eradication and 4108 equipment maintenance.

4109 Aquatic nuisance animal pests include a range of taxa including vertebrates and invertebrates such as insects, 4110 mollusks or crustaceans in a variety of aquatic habitats. Examples of the types of pesticides authorized for this use 4111 pattern include sodium chlorate and rotenone, which are currently authorized by the EPA use in Idaho16. In addition, 4112 the EPA authorizes other pesticides such as antimycin-A and TFM for other areas under this use pattern.

4113 Applications are usually made over an entire waterbody and applications methods include drip-feed devices, 4114 backpack sprayers, boat bailers and aerial applications. Treatments are usually made several years apart and may 4115 occur at any time of year.

4116 Forest Canopy Pest and Pathogen Control 4117 The forest canopy pest control use pattern includes pesticide applications in and over forest canopies where these 4118 pesticides may enter waters of the United States. These applications usually occur over areas in response to specific 4119 pest outbreaks. Examples of such pests include gypsy moths, southern pine beetles and locust borers. This is a broad 4120 use category and covers a wide range of aquatic habitats with a variety of pesticide formulations and application 4121 methods. For example, the EPA authorizes carbaryl, chlorpyrifos and dimethoate for use in Idaho under this use 4122 pattern. Other pesticides including diflubenzuron, disparlure, malathion and trichlorfon are authorized by the EPA 4123 for forest canopy pest control in other locations. Application methods include hand sprayers, aerial applications and 4124 drip or overhead irrigation systems. These applications may occur at any time of year.

4125 Spatial Overlap between Use Patterns, Listed Species and Designated Critical Habitat

4126 Location of Use Patterns Authorized by the Permit 4127 To determine the spatial overlap between the use patterns to be authorized by the PGP and the endangered or

15 http://www.dhhs.nh.gov/dphs/cdcs/arboviral/mosquito.htm 16 Idaho State Department of Agriculture: http://www.kellysolutions.com/ID/searchbyproductname.asp

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4128 threatened species and designated critical habitat under NMFS’ authority, we first determined the relative number of 4129 operators by location and type that EPA estimates will be authorized to discharge pesticide pollutants by the 4130 proposed permit. The results of this analysis are presented in Table 5. The EPA did not identify any differences in 4131 the timing, pesticide formulations or application rates to be used between geographic regions for any use pattern.

4132 Based on this analysis, one or more use patterns are expected to overlap with the distributions of endangered or 4133 threatened species or designated critical habitat under NMFS’ jurisdiction in all of the locations where EPA is the 4134 permitting authority. Of the 35,183 total operators that EPA expects to authorize under the proposed permit, in 4135 locations where endangered or threatened species under NMFS’ jurisdiction occur, most pesticide pollutant 4136 discharges will occur in the State of Idaho (47.10%), followed by Massachusetts (6.48%) then by New Hampshire 4137 with 2.17%. Operators in Alaska and Indian lands would comprise 1.09% and 0.48% of all operators respectively. 4138 Idaho is within the range of listed Chinook salmon, chum salmon, coho salmon, sockeye salmon and steelhead trout 4139 species and also contains designated critical habitat for Chinook salmon, sockeye salmon and steelhead trout. New 4140 Hampshire is within the range the endangered shortnose sturgeon. Shortnose sturgeon are also found in 4141 Massachusetts, especially the Merrimack River.

4142 The majority of mosquito and other flying pest control use pattern operators would occur in New Hampshire 4143 (36.36%), followed by Idaho (19.01%). Most of the aquatic weed and algae control operators are in Idaho (48.17%) 4144 followed by Massachusetts with 5.96%. Most of the aquatic nuisance animal control operators that overlap with the 4145 distribution of endangered or threatened species and designated critical habitat under NMFS’ authority are in 4146 Massachusetts and Alaska (both at 6.82%), followed by Idaho at 5.45%.

4147 The forest canopy pest control use patterns overlap with the distributions of endangered and threatened species and 4148 designated critical habitat under NMFS’ jurisdiction in all of the locations where EPA is the permitting authority 4149 except the District of Columbia. Of these, most operators are located in Massachusetts (38.93%) followed by New 4150 Hampshire with 15.32%.

Table 5. Percentage of Operators to be Authorized by the Permit per Location and Type

Mosquito and Aquatic Weed Aquatic Forest Canopy Location Other Flying and Algae Nuisance TOTAL Pest Control Insect Control Control Animal Control 1.65% 1.02% 6.82% 2.95% 1.09% Alaska*

19.01% 48.17% 5.45% 7.87% 47.10% Idaho*

7.44% 5.96% 6.82% 35.08% 6.48% Massachusetts*

36.36% 1.83% 3.64% 13.93% 2.17% New Hampshire*

10.74% 30.41% 9.55% 4.26% 29.76% New Mexico

0.83% 11.36% 33.64% 26.07% 11.72% Oklahoma

0.83% 0.02% 0.91% 0.00% 0.03% District of Columbia*

0.83% 0.92% 17.27% 0.66% 1.01% Territories*

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Table 5. Percentage of Operators to be Authorized by the Permit per Location and Type

Location Mosquito and Aquatic Weed Aquatic Forest Canopy TOTAL 14.05% 0.27% 11.36% 5.57% 0.48% Indian Lands*

8.26% 0.03% 4.55% 3.61% 0.15% Federal Facilities*

* Denotes areas where discharges may overlap with the distribution of listed species or designated critical habitat under NMFS’ jurisdiction.

4151 Pesticide Occurrence in Rivers and Streams 4152 Pesticides or their degradates were detected in at least one of the water samples from every stream sampled in the 4153 U.S. Geological Survey’s NAWQA study of California, Idaho, Oregon and Washington waters (Gilliom et al., 4154 2006). Streams in agricultural and urban areas had one or more detectable pesticide or degradate 97% of the time; 4155 streams in mixed land-use areas had one or more detectable pesticide or degradate 94% of the time; and streams in 4156 undeveloped areas had one or more detectable pesticide or degradate 65% of the time (Gilliom et al., 2006). The 4157 NAWQA study concluded that the presence of pesticide compounds in undeveloped watersheds might have resulted 4158 from earlier or contemporary uses within the watershed for forest management, maintenance of rights-of-way, uses 4159 associated with small areas of urban or agricultural land, or atmospheric transport from other areas.

4160 Of 186 stream sites sampled as part of the NAWQA study (Gilliom et al., 2006), 57% of 83 agricultural streams had 4161 concentrations of at least one pesticide that exceeded one or more aquatic-life benchmarks at least once during the 4162 year (68% of sites sampled during 1993–1994, 43% during 1995–1997, and 50% during 1998–2000); 83% of 30 4163 urban streams had concentrations of at least one pesticide that exceeded one or more aquatic-life benchmarks at least 4164 once during the year (90% of sites sampled during 1993–1994, 100% during 1995–1997, and 64% during 1998– 4165 2000); and 42% of 65 mixed-land-use streams had concentrations of at least one pesticide that exceeded one or more 4166 aquatic-life benchmarks at least once during the year (38% of sites sampled during 1993–1994, 40% during 1995– 4167 1997 and 46% during 1998–2000).

4168 In urban streams, most concentrations greater than a benchmark involved the insecticides diazinon (73% of sites), 4169 chlorpyrifos (37%) and malathion (30%). The pesticides detected most frequently in streams and ground water were 4170 primarily those had been used the most and had the greatest mobility or persistence in aquatic ecosystems. They 4171 included atrazine (and its degradate deethylatrazine), metolachlor, cyanazine, alachlor and acetochlor, which were 4172 the most heavily-used agricultural pesticides between 1992 and 2001; simazine, prometon, tebuthiuron, 2,4-D and 4173 diuron, which were the most heavily-used non-agricultural pesticides; and diazinon, chlorpyrifos and carbaryl, 4174 which were the most heavily-used insecticides between 1992 and 2001. Simazine, prometon, diuron, 2,4-D, diazinon 4175 and carbaryl, which are commonly used to control weeds, insects and other pests in urban areas, were frequently 4176 found at relatively high levels in urban streams throughout the Nation. Within California, Idaho, Oregon and 4177 Washington, malathion was detected in approximately 6% of the samples of surface waters analyzed in river basins 4178 included in the NAWQA study (Gilliom et al., 2006). Table 6 identifies the number of detections of chlorpyrifos, 4179 diazinon and malathion, the maximum and minimum concentrations of these three active ingredients and summary 4180 statistics.

4181 An evaluation of pesticides concentrations in eight tributaries of Idaho’s Clearwater River basin (Campbell 2004) 4182 detected the pesticides metribuzon (found in 23% of 47 detections), diuron (found in 15% of 47 detections), dicamba 4183 (found in 13% of 47 detections), atrazine (found in 11% of 47 detections), picloram (found in 8% of 47 detections), 4184 dimethoate (found in 6% of 47 detections), hexazinone (found in 6% of 47 detections), bromacil (found in 4% of 47

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4185 detections), linuron (found in 2% of 47 detections), methomyl (found in 4% of 47 detections), simazine (found in 4186 2% of 47 detections), tralkoxydim (found in 2% of 47 detections) and 2,4,-D (found in 2% of 47 detections). 4187 Pesticides with the highest detections were diuron (1.1 g/L), dicamba (0.76 ppb), picloram (0.75 g/L), methomyl 4188 (0.36 ppb) and 2,4-D (0.28 g/L). Five of the eight streams in this basin – Holes Creek, Little Canyon Creek, 4189 Mission Creek, Sweetwater Creek and Six Mile Creek – are listed as impaired because of pesticide concentrations 4190 and also support salmon populations. Similar surveys of pesticide concentrations in the Lower Payette River basin 4191 and Boise River basin detected 21 and 24 pesticides, respectively, including chlorpyrifos, malathion, methomyl, 4192 bromacil, dimethoate, diuron and 2,4-D (Campbell, 2009).

Table 6. Summary of detections of chlorpyrifos, diazinon and malathion in filtered stream samples collected in California, Idaho, Oregon and Washington streams (Gilliom et al., 2006)

Chemical Chlorpyrifos Diazinon Malathion Number of detections 1,131 1,767 272 Minimum (µg/L) 0.004 0.002 0.005 Maximum (µg/L) 0.401 3.800 1.350 Arithmetic Mean (µg/L) 0.022 0.084 0.049 Standard Deviation (µg/L) 0.037 0.230 0.121

4193 Degradate Occurrence 4194 Over time, pesticides are transformed into other compounds by chemical, photochemical and biologically-mediated 4195 reactions; these other compounds are generally called “degradates” or “metabolites” (Boxall et al., 2004; Gilliom et 4196 al., 2006). Some degradates are as prevalent as parent pesticides while others are more prevalent. For example, 4197 deethylatrazine, which is a degradate of atrazine and other triazine herbicides, was one of the most frequently 4198 detected pesticide compounds in water and one of the most frequent contributors to pesticide mixtures in the U.S. 4199 Geological Survey’s NAWQA analyses (Gilliom et al., 2006). NAWQA surveys also reported that degradates and 4200 by-products of organochlorine pesticides were among the most commonly detected pesticide compounds in fish 4201 (Gilliom et al., 2006). Many degradates are more persistent and more mobile in the environment than their parent 4202 compounds (Boxall et al., 2004; Gilliom et al., 2006).

4203 Degradates, like their parent compounds, have the potential to adversely affect water quality, depending on their 4204 toxicity. Degradates may be either more or less toxic than their parent pesticides, although most have toxicities to 4205 aquatic life that are similar to, or lower than, those of their parent compounds (Sinclair and Boxall, 2003; Boxall et 4206 al., 2004; Gilliom et al., 2006). Sinclair and Boxall (2003) reported that 41% of degradates were less toxic than their 4207 parent compounds, 39% had toxicities similar to their parents, 20% were more than 3 times more toxic than their 4208 parent compound and 9% were more than 10 times more toxic.

4209 Environmental Mixtures 4210 More than 90% of streams surveyed by the NAWQA study in developed land-use settings detected two or more 4211 pesticides or degradates; about 70% of the time, streams had five or more pesticides or degradates, and about 20% of 4212 the time, streams had detections of 10 or more pesticides or degradates (Gilliom et al., 2006). Mixtures also were 4213 found in streams draining undeveloped watersheds, although these streams have compounds: about 25% of the time, 4214 undeveloped streams had detections of five or more pesticides or degradates, but no samples had more than 10 4215 detections.

4216 The individual pesticides that were reported in the NAWQA study were the pesticides that were detected the most 4217 often and included the herbicides atrazine (and its degradate deethylatrazine), metolachlor, simazine and prometon,

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4218 each of which was present in more than 30% of all mixtures found in agricultural and urban areas, and in both 4219 streams and ground water (Gilliom et al., 2006). In agricultural streams, cyanazine, alachlor, metribuzin and 4220 trifluralin were detected in more than 30% of the mixtures; in urban streams, dacthal and the insecticides diazinon, 4221 chlorpyrifos, carbaryl and malathion were detected in more than 30% of the mixtures. The NAWQA study detected 4222 more than 6,000 unique mixtures of five pesticides in agricultural streams (Gilliom et al., 2006).

4223 Mixtures of organochlorine pesticide compounds were common in samples of fish-tissue taken from most of the 4224 streams that were sampled in the NAWQA study (Gilliom et al., 2006). About 90% of fish samples collected in 4225 urban streams contained two or more pesticide compounds and 33% contained 10 or more; about 75% of fish 4226 samples from streams draining watersheds with agricultural and mixed land use contained two or more pesticide 4227 compounds while 10% had 10 or more. Mixtures were detected least often in fish from undeveloped streams, in 4228 which two or more compounds were detected in about 25% of the fish-tissue samples.

4229 Surveys of pesticide concentrations in five streams in the Boise River basin detected up to 17 pesticides in some 4230 streams (Mason Creek and Fifteenmile); the lowest number of detections was 10 pesticides (Campbell, 2009). 4231 Detections included degradates of atrazine (Campbell, 2009).

4232 Consequences of Exposing Listed Species and Designated Critical Habitat 4233 The preceding section of this Opinion presented the evidence that leads us to conclude that endangered or threatened 4234 species and designated critical habitat under the jurisdiction of the NMFS are likely to co-occur with discharges of 4235 pesticide pollutants on, over or near waters of the United States In this section of this Opinion, we summarize 4236 information on the probable physical, physiological, behavioral, social and ecological responses of endangered or 4237 threatened species or constituent elements of critical habitat given exposure to active ingredients in formulations, 4238 other ingredients of formulations, degradates of these ingredients, or chemical mixtures. Our purpose is not to 4239 provide a comprehensive review of the probable responses of endangered or threatened species to formulations that 4240 include all 171 of the active ingredients who formulations the PGP would authorize; instead, our intention is to 4241 identify the range of representative responses we would expect listed species to exhibit given exposure to these 4242 chemicals.

4243 EPA’s proposed PGP would authorize discharges of pesticide formulations that include about 171 active ingredients 4244 (Appendix A) on, over, or near waters of the United States Table 8 organizes those 171 active ingredients by class of 4245 pesticide, which includes benzoic acids, botanical pesticides, carbamate pesticides, inorganic pesticides, microbial 4246 pesticides, organophosphate pesticides, pyrethroid pesticides and rodenticides.

4247 Consequences of Exposure to Active Ingredients and Formulations 4248 The preceding section of this Opinion presented the evidence that leads us to conclude that endangered or threatened 4249 species and designated critical habitat under the jurisdiction of the NMFS are likely to co-occur with discharges of 4250 pesticide pollutants on, over or near waters of the U.S. In this section of this Opinion, we summarize information on 4251 the probable physical, physiological, behavioral, social and ecological responses of endangered or threatened species 4252 or constituent elements of critical habitat given exposure to active ingredients in formulations, other ingredients of 4253 formulations, degradates of these ingredients, or chemical mixtures. Our purpose is not to provide a comprehensive 4254 review of the probable responses of endangered or threatened species to formulations that include all 171 of the 4255 active ingredients for which formulations the PGP would authorize discharges on, over or near waters of the United 4256 States; instead, our intention is to identify the range of representative responses we would expect listed species to 4257 exhibit given exposure to these chemicals.

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4258 EPA’s proposed Pesticides General Permit would authorize discharges of pesticide formulations that include about 4259 171 active ingredients (Appendix A) on, over, or near waters of the U.S. Table 8 organizes those 171 active 4260 ingredients by class of pesticide, which includes benzoic acids, botanical pesticides, carbamate pesticides, inorganic 4261 pesticides, microbial pesticides, organophosphate pesticides, pyrethroid pesticides and rodenticides.

4262 Consequences of Exposure to Active Ingredients and Formulations 4263 All pesticide products contain one or more active ingredients. Most pesticide products also contain ingredients 4264 called “adjuvants” (which are designed to increase the effectiveness of the active ingredient and are usually referred 4265 to as inert ingredients on product labels) “surfactants” (which reduce the interfacial or surface tension of a system or 4266 a surface-active substance) and carriers, as well as other ingredients. Some formulations may contain multiple active 4267 ingredients.

4268 Piperonyl butoxide, nonylphenol and nonylphenol polyethoxylates are examples of “inert” ingredients that may be 4269 formulated in pesticide products or added as adjuvant ingredients during pesticide applications. Piperonyl butoxide 4270 is a common synergist in formulations of synthetic pyrethroids. Nonylphenol and nonylphenol polyethoxylates are 4271 common ingredients in detergents, cosmetics and other industrial products. These compounds are also common 4272 wastewater contaminants from industrial and municipal sources. A national survey of streams found that 4273 nonylphenol was among the most common organic wastewater contaminants in the U.S. and was detected in more 4274 than 50% of the samples tested. The median concentration of nonylphenol in streams was 0.8 µg/L and the 4275 maximum concentration detected was 40.0 µg/L. Related compounds were also detected at a relatively high 4276 frequency (Koplin et al., 2002b).

4277 For an example of the other ingredients that might appear in formulations, registered pesticide products containing 4278 chlorpyrifos, diazinon and malathion always include other ingredients such as carriers and surfactants and may 4279 include other registered active ingredients (Table 7).

4280 Because the proposed PGP will authorize discharges of formulations of pesticides on, over or near waters of the 4281 U.S., we are concerned about those components of formulations that might be toxic to endangered or threatened 4282 species under our jurisdiction. Therefore, the summary of the literature that follows discusses various ingredients 4283 that appear in pesticides formulations. Some of these ingredients would be listed as “active ingredients” on a 4284 pesticide label while others would be listed as “inert” ingredients.

4285 Research that has been conducted over several decades has established that many, but not all, of the 171 ingredients 4286 in the 24 classes of pesticides pose serious risks for many aquatic organisms. When they are exposed at some 4287 concentration of some pesticides, individuals of some species or stages of species die as a result of their exposure. 4288 Other individuals of aquatic species experience reductions in developmental patterns, rates of growth or 4289 reproductive success as a direct result of the exposure or because of the chemical’s effect on their behavioral 4290 patterns. Exposure to some of the chemicals whose discharges would be authorized by EPA’s proposed Pesticide 4291 General Permit has been demonstrated to have physical, physiological or neural effects on individuals that have been 4292 exposed and these changes increase their probability of being captured and killed by predators.

4293 Some of the pesticides in the 24 classes identified in Table 8 have been reported to have few, if any, adverse 4294 consequences for aquatic organisms, including endangered or threatened species. For example, despite a half-life 4295 that is estimated to be about two months in clean river water that is low in sediment, bromacil is not toxic to

4296 invertebrates and is only slightly toxic to practically non-toxic to fish. The 48-hour LC50 for bromacil in rainbow

4297 trout is 56-75 mg/L, in bluegill sunfish is 71 mg/L and in carp is 164 mg/L. The 96-hour LC50 in fathead minnows is 4298 182 mg/L. The microbial insecticide Bacillus thuringiensis (or B.t.) did not adversely affect aquatic vertebrates,

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4299 including brook trout, white suckers and smallmouth bass even a month after aerial applications, although it may 4300 adversely affect non-target invertebrates, including butterflies (Lepidoptera).

Table 7. Example of listed ingredients on labels of some products containing chlorpyrifos, diazinon and malathion (after NMFS 2008a) EPA Product Other Registration Active Ingredients Ingredients Number 499-405 chlorpyrifos 8%, cyfluthrin 1.6% 90.4% 4329-36 chlorpyrifos 12% permethrin 4% 84% 39039-6 chlorpyrifos 12% diazinon 4% 60% 655-441 chlorpyrifos 13%, dichlorvos 4.82% 82.18% 66222-19 chlorpyrifos 42.5% 57.5% 7501-112-5905 diazinon 15%, lindane 25%, carboxin 14% 46% 11556-123 diazinon 20%, coumaphos 20% 60% 270-260 diazinon 18%, piperonyl butoxide 2% 80% 61483-92 diazinon 40%, tetrachlorvinphos 10% 50% 4-122 malathion 6%, carbaryl 0.3%, captan 11.8% 81.9% 4-59 malathion 3%, carbaryl 0.5%, captan 5.87% 90.63% 4-355 malathion 6%, sulfur 25%, captan 6.03% 62.97% 4-157 malathion 13.5%, captan 13.5% 73% 7401-163 malathion 7.5%, PCNB 12.5% 80% 11474-96 malathion 2%, piperonyl butoxide 0.12%, pyrethrins 0.05% 97.83% 5481-275 malathion 2%,carbaryl 2% 96% 8329-29 malathion 30.6%, piperonyl butoxide 4.96 %, resmethrin 1.88% 62.66% 769-646 malathion 5.5%, petroleum distillates and mineral oil 89.0% 5.5% 4301 4302 Some of the chemicals in the 24 classes identified in Table 8 have more severe consequences for aquatic organisms 4303 that are exposed to them, although the different groups of chemicals affect species through different modes of 4304 action. Organophosphates and carbamates inhibit acetylcholinesterase; organotins prevent the formation of 4305 adenosine triphosphate; pyrethroids keep sodium channels in neuronal membranes open, which affects the 4306 peripheral and central nervous systems and cause a hyper-excitable state; symptoms include tremors, lack of 4307 coordination, hyperactivity and paralysis; rotenone which inhibits respiratory enzymes; and limonene which affects 4308 the sensory nerves of the peripheral nervous system.

4309 Botanicals 4310 The botanicals included in the proposed PGP are cube resins (other than rotenone) and Rotenone. Rotenone is used 4311 as a fish toxin (piscicide) so we would expect to be highly toxic to fish, including endangered and threatened species 4312 of fish. Cheng and Farrell (2007) reported that rotenone was not toxic to juvenile rainbow trout when they were 4313 exposed at concentrations of 5.0 g/L during 96-hour tests, but 100% of the juveniles died when at concentrations of

4314 6.6 g/L for 96 hours. Johnson and Finley (1980) reported 96-hour LC50 for rotenone was 23 g/L for rainbow trout 4315 and 2.6 g/L for channel catfish. Finlayson et al., (2010) exposed rainbow trout for 4 and 8 hours to concentrations 4316 of synergized and non-synergized formulations of rotenone. Exposing rainbow trout to a CFT Legumine formulation 4317 of rotenone at 5.3 μg/L for an average of eight hours killed half of the rainbow trout; exposing them to a Nusyn- 4318 Noxfish formulation of rotenone at 6.2 μg/L for an average of 8 hours also killed half of the rainbow trout.

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4319 In addition, populations of aquatic invertebrates have been eliminated in streams that have been treated with 4320 rotenone. Binns (1965) reported that aquatic invertebrate populations in the Green River, Wyoming were almost 4321 completely eliminated following rotenone treatments. Mangum and Madrigal (1999) reported that the richness of 4322 Ephemeroptera in the Strawberry River in north eastern Utah had been reduced by 67-100%, Plecoptera by 67-100% 4323 and Trichoptera by 61-100% after two rotenone treatments, of 3 mg/L for 48 hours. In Great Basin National Park, 4324 rotenone treatments reduced species in these taxa by 99% for one month.

4325 Carbamates 4326 The carbamates whose uses would be authorized by the proposed PGP include carbaryl, asulam and sodium salt. 4327 Numerous authors have studied and reported the responses of vertebrate species exposed to carbamates (Shea and 4328 Berry, 1983; Zinkl et al., 1987; Hanazato, 1991; Sharma et al., 1993; Beyers et al., 1994; Beyers and Sikoski, 1994; 4329 Relyea and Mills, 2001; Relyea, 2004; Boran et al., 2007; Davidson and Knapp, 2007). Carbaryl, which is also 4330 known by the trade name Sevin, is an example of the group known as N-methyl carbamates, which includes other 4331 pesticides like carbofuran and methomyl. These chemicals act as neurotoxicants by impairing nerve cell 4332 transmission in vertebrates and invertebrates; specifically, they interfere with normal nerve transmissions and, as a 4333 result, can affect a wide array of physiological systems. Organophosphates have the same mode of action and 4334 produce similar physiological responses.

4335 Beyers et al., (1994) studied the toxicity of technical carbaryl (1-napthyl methylcarbamate, 99%) and Sevin-4-Oil (a 4336 formulation containing 49% carbaryl and petroleum distillates) to Federally endangered Colorado squawfish 4337 (Ptychocheilus lucius) and bonytail (Gila elegans). In Colorado squawfish, median lethal concentrations for 4338 technical carbaryl were 1.31 mg/L (95% confidence interval: 1.23-1.40 mg/L) and were 3.18 mg/L (95% confidence 4339 interval: 2.87-3.52 mg/L) for Sevin-4-Oil. In bonytail, median lethal concentrations for technical carbaryl were 2.02 4340 mg/L (95% confidence interval: 1.78 -2.25 mg/L) and were 3.31 mg/L (3.06,-3.55 mg/L) for Sevin-4-Oil. Because 4341 Colorado squawfish and bonytail are about as sensitive to carbaryl as cutthroat trout (Oncorhynchus clarki), rainbow 4342 trout, Atlantic salmon (Salmo salar) and brook trout (Salvelinus fontinalis), these results should also be applicable to 4343 ESA listed Atlantic salmon and listed steelhead (Beyers et al., 1994).

4344 Carlson (1971) exposed fathead minnow to five treatments of carbaryl (8, 17, 62, 210 and 680 µg/L) in a flow 4345 through system for nine months; capturing the life cycle of the fathead minnow. Fathead minnows showed reduced 4346 number of eggs per female and reduced number of eggs spawned when exposed to 680 µg/L; none of the eggs that 4347 were spawned hatched. Zinkl et al., (1987) reported that carbaryl killed rainbow trout when they were exposed to 4348 concentrations at or above 1,000 µg/L for as few as 90 minutes and the trout exhibited AChE inhibition from 61 to 4349 91% when exposed to concentrations of 250 – 4,000 µg/L for 24 hours.

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Table 8. Classification of the 171 active ingredients by class of pesticide. Ingredients that are listed in bold type are discussed in greater detail in the document

Pesticide Class Pesticide Active Ingredient, as listed in Biological Evaluation Benzoic acid Dicamba, Dicamba, diglycoamine salt, Dicamba, dimethylamine salt, Dicamba, sodium salt Biochemical 2, 4-Dodecadienoic acid, 11-methoxy-3, 7, 11-trimethyl-, 1-met, Methoprene, Nonanoic acid Botanical Cube Resins other than rotenone, Rotenone Bromine Compound Bromine chloride, Sodium bromide Carbamate Carbaryl, Asulam, sodium salt Chlorine Compound Calcium hypochlorite, Chlorine, Chlorine dioxide, Sodium hypochlorite Dinitroaniline 2, 4-Dinitro-N3, N3-dipropyl-6-(trifluoromethyl)-1, 3-benzenedia, Oryzalin, Pendimethalin Hydantoin 1, 3-Dibromo-5, 5-dimethylhydantoin, 1-Bromo-3-chloro-5, 5-dimethylhydantoin (+-)-2-(4, 5-Dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1H-imida, Imazapic, Imazapic-ammonium, Imazapyr, Imazapyr, isopropylamine Imidazolinone salt, Imazaquin, monoammonium salt Copper as metallic (in the form of chelates of copper citrate), Copper carbonate, basic, Copper ethanolamine complex, Copper Inorganic ethylenediamine complex, Copper sulfate pentahydrate, Copper triethanolamine complex, Hydrogen peroxide, Sodium chlorate, Sodium metaborate (NaBO2), Zinc sulfate monohydrate Antimycin A, Bacillus thuringiensis subspecies israelensis Strain BMP, Bacillus licheniformis SB3086, Bacillus sphaericus, Bacillus thuringiensis subspecies israelensis, Bacillus thuringiensis subspecies aizawai, Bacillus thuringiensis subspecies kurstaki, Bacillus Microbial thuringiensis subspecies tenebrionis, Polyhedral inclusion bodies of gypsy moth nucleopolyhedrosis virus, Lagenidium giganteum, mycelium or oospores Organophosphate Acephate, Chlorpyrifos, Diazinon, Dichlorvos, Dimethoate, Malathion, Naled, Temephos, Trichlorfon, Triclorfon Acrolein, Saflufenacil, Diflubenzuron, Diquat dibromide, Tebufenozide, Oxyfluorfen, Dodecylguanidine hydrochloride, Imidacloprid, Monosodium acid methanearsonate, Methoxychlor, (**)-Trifluoro-4-nitro-m-cresol (**) = alpha, alpha, alpha-, 1-Bromo-1-(bromomethyl)-1, 3-propanedicarbonitrile, 2-(1-Methyl-2-(4-phenoxyphenoxy)ethoxy)pyridine, 2, 2-Dibromo-3-nitrilopropionamide, Benzenesulfonamide, 2- (2, 2-difluoroethoxy)-N-(5, 8-dimethoxy[1, Carfentrazone-ethyl, CAS Reg. No. 68038-71-1, Endothall, dipotassium salt, Endothall, mono(N, N-dimethylcocoamine) salt, Erioglaucine, Ethyl 2-chloro-5-[4-chloro-(5-difluoromethoxy)-1-methyl-1H-py, Etofenprox, Fluridone, Other Fosamine ammonium, Glufosinate-ammonium, Glutaral, Methanone, [3-(4, 5-dihydro-3-isoxazolyl)-2-methyl-4-(methylsu, Methyl 9- hydroxyfluorene-9-carboxylate, Mono-molecular surface film, Niclosamide, Phenol, 4-nitro-3-(trifluoromethyl), Poly(oxyethylene(dimethyliminio)ethylene(dimethyliminio)ethyl, Saccharopolyspora spinosa fermentation product containing Spi, Sodium percarbonate, Spinosad, Tartrazine, Tetrakis(hydroxymethyl)phosphonium sulphate (THPS), Chlorflurenol, methyl ester, Methyl 2, 7- dichlorohydroxyfluorene-9-carboxylate, Peroxyacetic acid, Cis-7, 8-Epoxy-2-methyloctadecane, POE isooctadecanol Petroleum derivative Espesol 3A, Mineral oil, Mineral oil - includes paraffin oil from 063503, Petroleum distillate Phenoxy (R)-2-(2, 4-Dichlorophenoxy)propanoic acid, dimethylamine salt, 2-4, D, 2-Ethylhexyl (R)-2-(2, 4-dichlorophenoxy)propionate, 2-

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Table 8. Classification of the 171 active ingredients by class of pesticide. Ingredients that are listed in bold type are discussed in greater detail in the document

Ethylhexyl 2-(2, 4-dichlorophenoxy)propionate, Acetic acid, (2, 4-dichlorophenoxy)-, 2-ethylhexyl ester, Butoxyethyl 2, 4- dichlorophenoxyacetate, Diethanolamine (2, 4-dichlorophenoxy)acetate, Dimethylamine (R)-2-(2-methyl-4-chlorophenoxy)propionate, Dimethylamine 2, 4-dichlorophenoxyacetate, Isooctyl 2-(2, 4-dichlorophenoxy)propionate, Isopropylamine 2, 4-dichlorophenoxyacetate, MCPA, dimethylamine salt, Mecoprop (and salts and esters), Sodium 2, 4-dichlorophenoxyacetate, Triisopropanolamine 2, 4- dichlorophenoxyacetate Glycine, N-(phosphonomethyl)- potassium salt, Glycine, N-(phosphonomethyl)-, diammonium salt, Glyphosate, Glyphosate, ammonium Phosphonoglycine salt, Glyphosate, isopropylamine salt Phenothrin, Bifenthrin, Deltamethrin, D-Phenothrin, N-Octyl bicycloheptene dicarboximide, Permethrin, Permethrin, mixed cis, trans, Pyrethroids, Pyrethrins & Synergists Piperonyl butoxide, Prallethrin, Pyrethrins, Resmethrin, Sumithrin, Tau-fluvalinate Butoxyethyl triclopyr, CAS Reg. No. 566191-87-5, CAS Reg. No. 566191-89-7, Clopyralid, Clopyralid, monoethanolamine salt, Pyridine Clopyralid, triethanolamine, Fluroxypyr 1-methylheptyl ester, Picloram, triisopropanolamine salt, Triclopyr, Triethylamine triclopyr Alkyl* dimethyl benzyl ammonium chloride *(50%C14, 40%C12, 10, Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 30%C16, 5%, Quaternary Compound Alkyl* dimethyl ethylbenzyl ammonium chloride *(68%C12, 32%C1, Didecyl dimethyl ammonium chloride Rodenticide Chlorophacinone, Difethialone, Diphacinone, Zinc phosphide (Zn3P2) Sulfonylurea 1-(4, 6-dimethoxypyrimidin-2-yl)-3-(2-ethylsulfonylimidazo{1, 2, Chlorsulfuron, Metsulfuron-methyl, Rimsulfuron, Sulfometuron methyl Prometon, Sodium dichloroisocyanurate dihydrate, Sodium dichloro-s-triazinetrione, Trichloro-s-triazinetrione, Hexazinone, Triazine/Triazinetrione/Triazinone Sulfentrazone Uracil Bromacil, Bromacil, lithium salt Urea Diuron, Tebuthiuron

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4350 Exposure to carbaryl appears to make cutthroat trout more susceptible to predation, perhaps by inhibiting AChE 4351 activity in brain and muscle. Cutthroat trout experienced higher predation rates when exposed to carbaryl at 4352 concentrations of 200 µg/L, 500 µg/L and 1,000 µg/L. At 200 µg/L, an increase in predation was evident (Labenia et 4353 al., 2007). Little et al.,(1990) reported similar results from their studies of the effects of exposing rainbow trout fry 4354 (0.5-1.0 g) to carbaryl at 10, 100 and 1,000g/L for 96 hours. At all of these exposure concentrations, significantly 4355 more rainbow trout were consumed compared with unexposed fish. At concentrations of 1,000 g/L, exposed 4356 rainbow trout fry experienced significant reductions in swimming capacity, swimming activity, prey strike 4357 frequency, daphnids consumed, percent consuming daphnids and percent survival from predation.

4358 Organophosphates 4359 The organophosphates whose uses would be authorized by the proposed PGP include acephate, chlorpyrifos, 4360 diazinon, dichlorvos, dimethoate, malathion, naled, temephos, trichlorfon and triclorfon. Numerous authors have 4361 studied and reported the responses of vertebrate species exposed to organophosphates (Shea and Berry, 1983; Zinkl 4362 et al., 1987; Hanazato, 1991; Sharma et al., 1993; Beyers et al., 1994; Beyers and Sikoski, 1994; Relyea and Mills, 4363 2001; Relyea, 2004; Boran et al., 2007; Davidson and Knapp, 2007). Like carbamates, these chemicals act as 4364 neurotoxicants by impairing nerve cell transmission in vertebrates and invertebrates; specifically, they interfere with 4365 normal nerve transmissions and, as a result, can affect a wide array of physiological systems.

4366 Chlorpyrifos is highly toxic to freshwater fish, aquatic invertebrates and estuarine and marine organisms. EPA’s 4367 Office of Pesticide Programs estimated environmental concentrations for formulations of chlorpyrifos that assumed 4368 that 10% of the applied rate may drift to surface water. As a result, an application rate of 0.025 lbs chlorpyrifos per 4369 acre would result in concentrations of 1.5 – 18.5 µg/L chlorpyrifos in surface water at depths of six inches to six 4370 feet. The EPA (1989) reported that application of concentrations as low as 0.01 pounds of active ingredient per acre

4371 may cause fish and aquatic invertebrate deaths. The 96-hour LC50 for chlorpyrifos is 0.009 mg/L in mature rainbow 4372 trout, 0.098 mg/L in lake trout, 0.806 mg/L in goldfish, 0.01 mg/L in bluegill sunfish and 0.331 mg/L in fathead 4373 minnow (EPA, 1986). Therefore, mature rainbow trout exposed to chlorpyrifos concentrations produced by 4374 application rates of 0.025 lbs of chlorpyrifos per acre would be expected to have a 50% probability of dying after 96 4375 hours of exposure (alternatively, we would expect about half of an exposed population of rainbow trout to die as a 4376 result of their exposure to these concentrations of chlorpyrifos for 96 hours).

4377 When fathead minnows were exposed to Dursban (a formulation of chlorpyrifos) growth was reduced within 30 4378 days at 2.68 micrograms/liter and within 60 days at 1.21 µg/L. The maturation rate of first-generation fish was 4379 reduced at all Dursban exposure concentration and reproduction was significantly reduced at concentrations of at 4380 least 0.63 micrograms/liter. Growth rates and estimated biomass of 30-day-old second-generation fish were 4381 significantly reduced when they were exposed at concentrations of 0.12 micrograms/liter (Jarvinen et al., 1983). 4382 Carp (Cyprinus carpio) fingerlings exposed to concentrations of chlorpyrifos ranging from 0.120 to 0.200 mg/L for 4383 96 hours had acute toxicities at concentrations of 0.160 mg/L. When these carp were exposed for 1, 7 and 14 days at 4384 concentrations of 0.0224 mg/L and 0.0112 mg/L, they exhibited irregular, erratic and darting swimming movements, 4385 hyper-excitability and loss of equilibrium and sinking to the bottom. Caudal bending was also reported during 4386 exposures (Ramesh and David, 2009).

4387 Diazinon exposures have been implicated in five fish kills reported in California since 2002. One of the fish kills, 4388 which EPA classified as probably caused by the use of diazinon, occurred in June 2002 and consisted of 2,000 4389 salmon that were found Tembladera Slough and the Old Salinas River channel in Monterey County, California. 4390 Monterey County Agricultural Commissioner staff indicated that a small number of applications of diazinon had 4391 been made in the general area when the fish kill occurred. Water samples collected from the sites detected diazinon

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4392 in four of six samples with concentrations ranging from 0.095 – 0.183 µg/L. Gill samples from all five fish showed 4393 recent exposure to chlorpyrifos with concentrations ranging from 5 - 40 µg/kg. Methidathion, another 4394 organophosphate, was also detected at low concentrations in the water but was absent in gill tissue. Although 4395 concentrations of diazinon in the water column were well below median lethal concentrations for fish that had been 4396 observed in the laboratory, peak concentrations probably had not been detected because diazinon concentrations had 4397 probably dissipated in the few days between the occurrence of the fish kill and sampling.

4398 Diazinon also affects the olfaction of juvenile salmon, which mediates a suite of fish behaviors involved in feeding, 4399 predator avoidance, kin recognition, spawning, homing and migration. For example, Moore and Waring (1996) 4400 studied the effects of diazinon exposure on olfaction in Atlantic salmon parr. They first exposed male parr to 4401 diazinon concentrations (0, 0.1, 1.0, 2.0, 5.0, 10 and 20 µg/L) for 30 minutes and determined the parrs’ ability to 4402 detect priming odorant released by female salmon that synchronizes spawning and also has a role as a primer on 4403 male plasma steroids and gonadotropin production. At 1.0 µg/L, diazinon significantly reduced the capacity for parr 4404 to detect the priming odorant by 22% (compared with controls); at 20 µg/L, diazinon inhibited olfaction by 79%. 4405 Olfaction was affected for up to 4-5 hours following exposure.

4406 They also studied the effect of longer-term exposure to diazinon on male parrs’ plasma reproductive steroid levels 4407 after the males were exposed to the urine of ovulating females. Diazinon concentrations of 0.3 – 45 µg/L abolished 4408 the induction of male hormones, although levels of testosterone and one ketotestosterone were not significantly 4409 affected by the diazinon exposure. Milt production was reduced by about 28% at concentrations of diazinon ranging 4410 from 0.3 - 45 µg/L. We would expect these outcomes to impair Atlantic salmon’s ability to detect and respond to 4411 reproductive scents and increase their probability of missing spawning opportunities, which would reduce the 4412 lifetime reproductive success of individuals that experience this response.

4413 Scholz et al.,(2000) also studied the effects of 24 hour exposures to diazinon on the swimming and feeding behavior 4414 of juvenile coho salmon. They reported statistically significant effects on swimming and feeding behaviors in the 4415 presence of an alarm cue following exposures at concentrations of diazinon at 1 and 10 µg/L (compared to control 4416 fish) and reduced homing at 0.1 µg/L.

4417 Temephos shows a wide range of toxicity to aquatic organisms, depending on the formulation. Generally, the 4418 technical grade compound is considered moderately toxic while the emulsifiable concentrate and wettable powder 4419 formulations are highly to very highly toxic. The most sensitive species of fish is the rainbow trout with a temephos

4420 LD50 ranging from 0.16 mg/L to 3.49 mg/L (Johnson and Finley, 1980). Other 96-hour LD50 values are reported as: 4421 coho salmon 0.35 mg/L, largemouth bass 1.44 mg/L, channel catfish 3.23 mg/L to >10 mg/L, bluegill sunfish 1.14 4422 mg/L to 21.8 mg/L, and Atlantic salmon 6.7 mg/L to 21 mg/L (Johnson and Finley, 1980; Kidd and James, 1991).

4423 Trichlorfon is also highly toxic to several species of fish and aquatic invertebrates, including species like Daphnia

4424 and stoneflies that are prey for fish. LC50 (96-hour) values for trichlorfon are 0.18 mg/L (48-hour) in Daphnia, 0.01 4425 mg/L in stoneflies, 7.8 mg/L in crayfish, 1.4 mg/L in rainbow trout, 2.5 mg/L in brook trout, 0.88 mg/L in channel 4426 catfish and 0.26 mg/L in bluegill (Hudson et al., 1984; Hill and Camardese, 1986).

4427 Pyrethroids, Pyrethrins and Synergists 4428 The pyrethroids, pyrethrins and synergists whose uses would be authorized by the proposed PGP include 4429 permethrin, permethrin, mixed cis, trans, resmethrin, sumithrin, piperonyl butoxide and n-octyl bicycloheptene 4430 dicarboximide. The latter substances, piperonyl butoxide and n-octyl bicycloheptene dicarboximide (mgk-264) are 4431 synergists. As we described previously, formulations of these pesticides are used to control adult mosquitoes.

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4432 Paul et al., (2005) compared the toxicity of synergized and technical formulations of permethrin, sumithrin and 4433 resmethrin to brook trout (Salvelinus fontinalis) and brown trout (Salmo trutta). They reported that the toxicity of 4434 the synergized permethrin formulation was significantly increased in 24, 48 and 96-hour tests, compared to tests 4435 with the technical formulation. There was little difference in the toxicity of synergized and technical formulations of 4436 sumithrin until 48 hours had elapsed. They reported that many test fish were strongly intoxicated by either 4437 formulation of permethrin or sumithrin, but the synergized formulations of both chemicals affected fish at lower 4438 concentrations. Intoxication was potentially severe enough to reduce the survival of these fish in the wild. Finally, 4439 they tested the ability of exposed fish to swim against a current and concluded that fish exposed for 6 hours to 4440 synergized permethrin and resmethrin had far less swimming stamina than those exposed to technical formulations. 4441 They did not find a difference in the effect on swimming between the synergized and technical formulation of 4442 sumithrin. They concluded that the synergized formulations of these pesticides appeared to cause a faster response 4443 than the technical formulations and this response increased the lethal and sublethal effect of the insecticides on the 4444 trout.

4445 ‘Inert’ ingredients 4446 Some of the other ingredients of formulations of these pesticides are also toxic. For example, piperonyl butoxide is a 4447 common constituent of insecticide containing formulations (for example, it is a common synergist in formulations of

4448 synthetic pyrethroids) and is toxic to aquatic invertebrates and fish. EPA (2006) reported an LC50 for rainbow trout 4449 of 1.9 mg/L. In longer term exposures piperonyl butoxide affects fish and aquatic invertebrates at concentrations as

4450 low as 0.11 mg/L. Piperonyl butoxide is highly toxic to aquatic invertebrates with a reported EC50 of 0.51 mg/L for 4451 Daphnia magna (EPA, 2006).

4452 As another example, methoxychlor is a co-constituent in formulations with malathion. Formulated products are 4453 more toxic than methoxychlor alone. It is also an organo-chlorine insecticide that is toxic to fish and aquatic

4454 invertebrates. Johnson and Finley (1980) reported LC50s less than 20 µg/L and one 96-hour LC50 of 1.7 µg/L was 4455 reported for Atlantic salmon (Howard, 1991).

4456 Consequences of Exposure to Degradates 4457 As we discussed in the preceding subsection, over time, pesticides are transformed into other compounds by 4458 chemical, photochemical and biologically-mediated reactions; these other compounds are generally called 4459 “degradates” or “metabolites” (Boxall et al., 2004; Gilliom et al., 2006). Degradates, like their parent compounds, 4460 have the potential to adversely affect water quality, depending on their toxicity. Sinclair and Boxall (2003) reported 4461 that 41% of degradates were less toxic than their parent compounds, 39% had toxicities similar to their parents, 20% 4462 were more than 3 times more toxic than their parent compound and 9% were more than 10 times more toxic.

4463 For example, the major metabolite of carbaryl is 1-naphthol, which is formed by abiotic and microbially mediated 4464 processes and has been reported to represent up to 67% of the applied carbaryl in degradation studies. This 4465 degradate is more toxic than carbaryl itself. For example, Shea and Berry (1983) compared 10-day acute lethalities 4466 between carbaryl and 1-naphthol in goldfish (Carassius auratus) and killifish (Fundulus heteroclitus). They 4467 concluded that 1-naphtol was about five times more toxic than carbaryl in goldfish and twice as toxic as carbaryl in 4468 killifish. In addition, fish exposed to 1-naphthol showed neurological trauma including erratic swimming behaviors 4469 and increased opercula beats following 4-hour exposures at 5 mg/L and 24-hour exposures at 10 mg/L. They did not 4470 observe any of these symptoms in the carbaryl treatments.

4471 Consequences of Exposure to Mixtures 4472 As we also discussed in the preceding subsection, most aquatic species are likely to be exposed to mixtures of

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4473 pesticides, their degradates and other chemicals that exist in the environment. Once in a mixture, co-occurring 4474 pesticides (including their degradates) can either act independently of one another (called an “independent” effect); 4475 they can have additive effects (for example, this might be expected, for example, for pesticides with a common 4476 mode of action and similar chemical structure); they can have synergistic effects in which their combined toxicity is 4477 greater than their additive toxicity; or they can have combined toxicity that is less than their additive toxicity (called 4478 an “antagonistic” effect).

4479 As an example of synergistic effects, (Relyea and Mills, 2001; 2004) exposed amphibians to a combination of 4480 pesticides and chemical cues mimicking natural predators and found that these combinations induced stress and, as a 4481 result, increased the mortality rates of the amphibians (see also Sih et al., 2004). For some species, exposing the 4482 amphibians to combinations of pesticides and natural stressors produced mortality rates that were substantially 4483 greater than mortality rates associated with each individual stressor. For example, carbaryl was up to 46 times more 4484 lethal to gray treefrog tadpoles (Hyla versicolor) when they were exposed to a combination of this pesticide and 4485 chemical cues emitted by aquatic predators (Relyea and Mills, 2001). When they were exposed to malathion at 4486 concentrations of 5 mg/L, 42% of the gray treefrog tadpoles died when predator cues were absent, but 82% died 4487 when predator cues were present (Rhatigan, 2004).

4488 Mixtures containing malathion resulted in additive effects (when mixed with DDT, toxaphene), synergistic effects 4489 (when mixed with Baytex, parathion, carbaryl, perthane) and antagonistic effects (when mixed with copper sulfate) 4490 (Macek, 1975). Mixtures of diazinon and parathion killed more bluegill sunfish than predicted. Tierney et al. (2008), 4491 exposed juvenile steelhead to environmentally realistic concentrations of a mixture that included chlorpyrifos, 4492 diazinon and malathion (the realistic mixture contained chlorpyrifos at 13.4 ng/L; diazinon at 157 ng/L; and 4493 malathion at 46.3 ng/L, respectively). Exposures to this mixture for 96 hours compromised the ability of juvenile 4494 steelhead to detect changes in odorant concentrations, which would impair behavior that rely on smell such as 4495 homing and migration.

4496 Mixtures that paired two organophosphates produced a greater degree of synergism than mixtures containing one or 4497 two carbamates, particularly mixtures containing malathion coupled with either diazinon or chlorpyrifos Table 9. At

4498 the highest exposure treatment, 1.0 EC50 (malathion at 37.3 µg/L, chlorpyrifos at 2 µg/L, diazinon at 72.5 µg/L), 4499 binary combinations produced synergistic toxicity. Coho salmon exposed to combinations of diazinon and malathion 4500 as well as chlorpyrifos and malathion all died (Laetz et al., 2009). Fish exposed to these organophosphate mixtures 4501 showed toxic signs of inhibition of AChE, including loss of equilibrium, rapid gilling, altered startle response and 4502 increased mucus production before dying. Organophosphate combinations were also synergistic at the lowest 4503 concentrations tested. Diazinon and chlorpyrifos were synergistic when combined at 7.3 g/L and 0.1 g/L, 4504 respectively. The pairing of diazinon (7.3 g/L) with malathion (3.7 g/L) produced severe (> 90%) AChE 4505 inhibition including classical signs of poisoning as well as death with some combinations. For binary combinations 4506 of malathion, diazinon and chlorpyrifos synergism was likely to occur at exposure concentrations that were below 4507 the lowest used by Laetz et al., (2009) i.e., chlorpyrifos concentrations lower than 0.1 µg/L; diazinon concentrations 4508 lower than 7.3 µg/L; malathion concentrations lower than 3.7 µg/L.

Table 9. Mixture concentrations resulting in 100% mortality of juvenile coho following 96h exposures (after NMFS 2008a) Mixture Concentration, µg/L 72.5 diazinon, 37.3 malathion diazinon + malathion 29.0 diazinon, 14.9 malathion

chlorpyrifos + malathion chlorpyrifos, 37.3 malathion

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4509 In our 2008 biological opinion on the EPA’s registration of pesticides containing chlorpyrifos, diazinon and 4510 malathion, NMFS concluded that anadromous salmonids were likely to die following short term exposure (less than 4511 96 hours) to these three insecticides. Concentrations of chlorpyrifos, diazinon and malathion can occur at levels well 4512 over 100µg/l and upwards of 1,000 µg/l based on measured environmental concentrations and exposure models. We 4513 concluded that the youngest, swimming salmonids appeared to be the most likely to die from short-term, acute 4514 exposures, although adult salmon were also susceptible at higher concentrations. We did not expect acute exposures 4515 to these pesticides to kill eggs.

4516 Trophic Consequences of the Proposed PGP on Listed Cetaceans 4517 Salmon are a significant contributor to the overall ecological food web throughout their range. Two significant 4518 indirect effects of the proposed action to Chinook, coho, sockeye and chum salmon and steelhead could result in the 4519 further loss of prey species for southern resident killer whales and Cook Inlet beluga whales. Such reductions would 4520 also likely result in the loss of nutrient transport to freshwater systems that are important to Pacific salmonids 4521 themselves. Bilby et al., (1996) demonstrate that juvenile and older age classes of salmon grow more rapidly with 4522 the appearance of spawners because these younger fish will feed on eggs and spawner carcasses. Salmon carcasses 4523 in rivers and streambanks are a significant source of food to a wide number of animals and affect the overall 4524 productivity of nutrient-poor systems (Bilby et al., 1996; Cederholm et al., 2000). The loss of these “marine derived 4525 nutrients” would reduce the survival of their own species, particularly in nutrient poor streams. Bilby et al., (1996) 4526 showed that up to 45% of the carbon in cutthroat trout and 40% of the carbon in young coho comes from the 4527 decaying carcasses of the previous generation of salmon. Increased body size is directly correlated to increases in 4528 over winter survival and marine survival. They suggest that reduced nutrient transport is one important indicator of 4529 ecosystem failure and is contributing to the observed reductions in abundance we have seen in many salmon 4530 populations, which could further diminish the success of recovery efforts. Given many salmon populations comprise 4531 the prey component of killer whale and beluga whale critical habitat, any additional reduction in prey attributable to 4532 the PGP could adversely modify their critical habitat.

4533 Southern resident killer whales feed primarily on salmon. Any reductions in salmon populations as a result of this 4534 action can be expected to have adverse effects on southern resident killer whales via reductions in the prey 4535 component of their designated critical habitat. Based on killer whale stomach contents from stranded whales and 4536 field observations of predation, Ford et al., (1998) determined that 95% of the diet of resident killer whales consists 4537 of fish, with roughly 66% being Chinook salmon. The authors suggested that killer whales might preferentially hunt 4538 Chinook salmon because these fish have large body sizes and a high fat content. A reduction in Pacific salmon – 4539 Chinook salmon in particular– from effects from the proposed action is likely to have adverse effects on the fitness 4540 of southern resident killer whales and their population viability. As noted earlier, a 50% reduction in killer whale 4541 calving has been correlated with years of low Chinook salmon abundance (Ward et al., 2009a).

4542 A reduction in the number of adult Chinook salmon in the Puget Sound would reduce the forage base for southern 4543 resident killer whales. Southern resident killer whales are not restricted to Puget Sound, but do spend a large portion 4544 of time in Puget Sound, the Strait of Juan de Fuca and Haro Strait. Prey losses could also be realized throughout 4545 their range, including Oregon and California. Such reductions in prey could impede recovery.

4546 Pacific salmon and eulachon (Calkins, 1989) are an important prey species for Cook Inlet beluga whales. Pacific 4547 salmon are an especially important prey item as these whales build their lipid body stores essential to their winter 4548 survival (Abookire and Piatt, 2005; Litzow et al., 2006). As a result, Cook Inlet beluga whales could similarly 4549 experience a reduction in their most abundant summer and fall prey species (most of which are non-listed Chinook, 4550 coho, sockeye and chum species). These losses could reduce the forage base of Cook Inlet beluga whales and as a

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4551 result, could impede recovery.

4552 Critical Habitat of Southern Resident Killer Whales 4553 We evaluated the potential effects of EPA’s issuance of their PGP on critical habitat by first reviewing the essential 4554 features or primary constituent elements of critical habitat for listed designations. Based on our analysis, the primary 4555 features that may be affected by pesticide pollutant discharges authorized by the issuance of this permit are those 4556 designated as “prey species of sufficient quantity, quality and availability to support individual growth, reproduction 4557 and development, as well as overall population growth.” Based on our analysis, EPA has not insured that the actions 4558 it authorizes will not reduce the availability of Pacific salmonid species to southern resident killer whales. As a 4559 result, these species may experience reductions in population. These losses could diminish the ability of critical 4560 habitat to provide for conservation of the southern resident killer whales.

4561 Proposed Critical Habitat of Cook Inlet Beluga Whales 4562 We evaluated the potential effects of EPA’s issuance of their PGP on critical habitat by first reviewing the essential 4563 features or primary constituent elements of critical habitat for the proposed designation for Cook Inlet beluga 4564 whales. Based on our analysis, the primary features that may be affected by pesticide pollutant discharges authorized 4565 by the issuance of this permit are those designated as “prey species of sufficient quantity, quality and availability to 4566 support individual growth, reproduction and development, as well as overall population growth.” Based on our 4567 analysis, EPA has not insured that the actions it authorizes will not reduce the availability of pacific salmonid 4568 species to Cook Inlet beluga whales. As a result, these species may experience reductions in population. These 4569 losses could diminish the ability of critical habitat to provide for conservation of Cook Inlet beluga whales.

4570 Components of the Proposed PGP Designed to Minimize or Prevent Exposure

4571 The EPA proposes several control measures to minimize any environmental effects resulting from these activities 4572 authorized by the permit. These include the existing statutory requirements of the CWA and FIFRA and the 4573 additional controls to be included specifically in the proposed permit. Given the large number of pesticide 4574 discharges that EPA intends to authorize, we determine whether these control measures are sufficient such that EPA 4575 can insure that these activities are not likely to result in jeopardy to the continued existence of any listed species or 4576 designated critical habitat under NMFS’ jurisdiction.

4577 To accomplish this, we examine existing risk assessments for pesticides produced by EPA and NMFS and contrast 4578 the approach used to register pesticides under FIFRA and with that used to derive water quality criteria under the 4579 CWA. We then examine the effectiveness of the NPDES program that will administer the PGP. We analyze the 4580 performance of similar control measures in previous general permits that the EPA has issued and consider the 4581 performance of those controls as an indicator of how well the controls of the proposed PGP are likely to work.

4582 Finally, we analyze the general conditions specific to the PGP that are designed to mitigate the exposures of 4583 pesticides to ESA listed species or designated critical habitat. We determine whether these controls are sufficient to 4584 insure that the actions authorized by the permit are not likely to expose endangered or threatened species, or 4585 designated critical habitat to the effects of the actions it authorizes.

4586 The control measures intended to minimize any direct or indirect environmental effects resulting from activities 4587 authorized by the permit are described below.

4588 Clean Water Act 4589 The stated objective of the CWA is to “…restore and maintain the chemical, physical and biological integrity of the

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4590 Nation’s waters.” The Act further states: “…it is the national policy that the discharge of toxic pollutants in toxic 4591 amounts be prohibited.” Identification of toxic pollutants in toxic amounts is provided for by §304(a)(1) of the CWA 4592 which requires that EPA develop National Water Quality Criteria (WQC) that accurately reflect the latest scientific 4593 knowledge about the effects of priority chemical pollutants on aquatic life. These criteria represent numeric limits on 4594 the amounts of specific pollutants that can be present in waters of the United States without causing “harm”17 to 4595 aquatic life. The WQC were developed for the 120 priority pollutants listed in section 307 of the CWA and an 4596 additional 47 non-priority pollutants. These WQC are applied through the basic framework of programs, such as 4597 NPDES, established by the CWA to control sources of pollutants that may impair or threaten water quality. The 4598 recommended WQC are intended to be protective of the majority of aquatic communities in the U.S. Individual 4599 States may adopt these criteria directly or they may adjust them, with EPA’s approval, to suit State needs or 4600 designated uses for specific bodies of water.

4601 The EPA’s Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic 4602 Organisms and Their Uses (National Guidelines18) (Stephen et al., 1985) describe an objective way of deriving 4603 national criteria intended to provide an appropriate level of protection for aquatic organisms. Aquatic life criteria are 4604 based on the National Guidelines and consist of two metrics: 1) The Criterion Maximum Concentration (CMC) 4605 intended to protect against severe acute effects, and; 2) The Criterion Continuous Concentration (CCC) intended to 4606 protect against longer-term effects on survival, growth and reproduction. The acute criterion limits peak exposures 4607 by requiring that 1-hour averages of exposure concentrations not exceed the CMC more often than once in three 4608 years on average. The chronic criterion limits more prolonged exposures by requiring that 4-day averages of 4609 exposure concentrations not exceed the CCC more often than once in three years on average. The CMC and CCC 4610 are calculated using endpoints derived from standard toxicity tests in which organisms are exposed to a range of 4611 concentrations of a toxicant. These tests use standard surrogate species to represent large groups of taxa. For 4612 example, rainbow trout (Oncorhynchus mykiss) are considered acceptable surrogates for coldwater fish19. Organism 4613 responses at each concentration are recorded.

4614 The results of the exposures are then analyzed to produce standardized endpoint values described in the following 20 4615 paragraphs. The acute criterion is based on available acute endpoint values: median lethal concentrations (LC50 ) or 21 4616 median effect concentrations (EC50 ) for severe acute effects such as immobilization from acute toxicity tests (48- 4617 to 96-hours long) meeting certain data quality requirements. To compute an acute criterion, EPA’s National 4618 Guidelines require that acceptable acute values be available for at least eight families to address a range of 4619 taxonomic diversity. These minimum data requirements include three vertebrates (a salmonid, another bony fish and 4620 another vertebrate) and five invertebrates (a planktonic crustacean, a benthic crustacean, an insect, a species from a

17 For the purposes of the Clean Water Act, EPA defines the term “harm “to include increased mortality or reductions in growth or reproduction as well as the accumulation of harmful levels of toxic chemicals in the tissues of aquatic organisms that may adversely affect consumers of such organisms. This usage should not be confused with how NMFS has defined “harm” for the purposes of the ESA. 18 http://water.epa.gov/scitech/swguidance/waterquality/standards/criteria/aqlife/upload/85guidelines.pdf 19 Dwyer, F. James, Linda C. Sappington, Denny R. Buckler and Susan B. Jones. 1995. Use of Surrogate Species in Assessing Contaminant Risk to Endangered and Threatened Fishes. EPA/600/R-96/029. U.S. Environmental Protection Agency, Environmental Research Laboratory, Gulf Breeze, FL. 78 p. (EPA/600/X-92/139, Environmental Research Laboratory, Gulf Breeze, FL) 20 LC50 = concentration at which 50% of exposed organisms die. 21 EC50 = concentration at which 50% of exposed organisms are affected.

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4621 phylum other than Chordata or Arthropoda and a species from another order of insect or another phylum not already 4622 represented.

4623 For each genus, the EPA calculates a Genus Mean Acute Value (GMAV) by first taking the geometric mean of the 4624 available acute values within each species (Species Mean Acute Value, [SMAV]) and then the geometric mean of 4625 the SMAVs within the genus. The GMAVs are then ranked and a regression analysis is performed on the four most 4626 sensitive GMAVs resulting in an estimate of the concentration of the pollutant corresponding to a cumulative 4627 probability of 0.05 (the 5th percentile of the species sensitivity distribution). This is the Final Acute Value (FAV). 4628 When appropriate, the EPA may lower the FAV to equal the SMAV of an important, sensitive species. The FAV is 4629 then divided by two to derive the acute Criterion Maximum Concentration value (CMC) that is expected to fall 4630 below where any acute adverse effects to organisms are observed.

4631 Chronic tests for invertebrate species are required to include the entire life-cycle, but for fish species partial life- 4632 cycle and/or early life-stage tests may be accepted. Sufficient data for chronic toxicity are rarely available for 4633 deriving criteria as described for acute criterion above. When such data are available, the chronic criterion (CCC) is 4634 calculated in the same manner as the FAV. If chronic values are available for at least one fish, one invertebrate and 4635 one acutely sensitive species, then the chronic criterion may be estimated by dividing the FAV by a Final Acute to 4636 Chronic Ratio based on the available paired acute and chronic values. A chronic criterion may not be calculated if 4637 fewer chronic values are available. Alternatively, the chronic criterion may be based on plant toxicity data if aquatic 4638 plants are more sensitive than aquatic animals.

4639 National Pollution Discharge Elimination System (NPDES) 4640 Among the programs established by the CWA to control sources of pollutants, Section 402 of the CWA authorizes 4641 the EPA to issue permits for the discharge of pollutants under NPDES. Permits establish effluent limitations that are 4642 designed to prevent the discharge of toxic pollutants in toxic amounts such that pollutant levels in receiving water do 4643 not violate WQC or other permit-specific standards. An NPDES permit is required for entities that discharge 4644 pollutants from a point source on, over or near waters of the United States. An individual permit is specifically 4645 tailored to an individual discharger, while a general permit covers multiple dischargers within a specific category. 4646 According to the NPDES regulations (40 CFR l22.28), general permits like the PGP may be written to cover 4647 categories of point source discharges that have common elements. General permits may only be issued to 4648 dischargers within a specific geographical area. This allows EPA to cover a large group of individual without 4649 putting forth the resources necessary to review applications and issue permits on a case-by-case basis. When 4650 developing and issuing general NPDES permits, the EPA generally collects data to demonstrate that a category of 4651 dischargers has enough similar attributes to warrant a general permit, such as:

4652 1. The number of dischargers or facilities to be authorized.

4653 2. Any similarities in production processes or activities among dischargers.

4654 3. Any similarities in the pollutants to be discharged among dischargers.

4655 The EPA then develops the draft general permit and fact sheet and makes it available for public comment. After the 4656 public comment period, EPA addresses the comments and makes any necessary changes before the final general 4657 permit is issued. After issuance of the final general permit, entities that wish to be authorized under the general 4658 permit may submit an NOI to the EPA. The EPA then has the authority to request additional information. After 4659 review of the additional information, the applicant is notified either that their planned activities are authorized under 4660 the general permit or that they must apply for an individual permit.

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4661 The EPA is authorized to directly implement the NPDES program or to authorize States, Territories or Tribes to 4662 implement all or parts of the national program. Any State, Territory or Tribe may seek the authority to implement 4663 the NPDES program. The EPA no longer administers NPDES permits or administers any parts of this program once 4664 a State, Territory or Tribe is authorized to conduct these activities. The EPA does reserve the right to review each 4665 permit issued by the State, Territory or Tribe and may object to elements that conflict with Federal requirements. 4666 Once a permit is issued through a government agency, it is enforceable by the approved State, Territorial, Tribal and 4667 Federal agencies with authority to implement and enforce the permit. If the State, Territory or Tribe does not have 4668 approval for administering the NPDES program, the EPA will operate the NPDES program. Once a permit is issued, 4669 it is enforceable by the approved State, Territorial, Tribal and Federal agencies with authority to implement and 4670 enforce the permit.

4671 All NPDES permits consist of at least five general sections:

4672 1. A Cover Page: A statement with the name and location of the facility or discharger, a description of the 4673 permitted activity and the specific locations where discharges are authorized.

4674 2. Effluent Limits: A statement describing the means for controlling discharges of pollutants based on 4675 applicable standards.

4676 3. Monitoring and Reporting Requirements: A statement that characterizes streams and receiving waters, 4677 evaluates pollution reducing efficiency and determines compliance with permit conditions.

4678 4. Special Conditions: A statement describing measures to supplement effluent limit guidelines such as: Best 4679 Management Practices (BMPs), additional monitoring activities, surveys and toxicity reduction evaluations 4680 (TREs).

4681 5. Standard Condition: A statement describing the legal, administrative and procedural requirements of permit 4682 conditions that apply to all NPDES permits.

4683 While monitoring and reporting requirements set forth in a permit are the primary component of compliance 4684 monitoring, the permitting authority may also conduct inspections to verify that permit requirements are being met. 4685 Specifically, inspections are conducted to: determine if permittee is in compliance with regulations, permit 4686 conditions and other program requirements, verify the accuracy of information submitted and verify the adequacy of 4687 sampling and monitoring. An inspection may also be conducted to obtain information that supports the permitting 4688 process, gather evidence to support enforcement actions, or to assess compliance with orders or consent decrees.

4689 EPA oversight of permits, both those it administers and those administered by non-Federal authorized agencies, 4690 includes collection of compliance information. Depending on the State or territory of origin, this data is entered into 4691 one of two national databases: the Permit Compliance System (PCS) and the Integrated Compliance Information 4692 System for the National Pollutant Discharge Elimination System (ICIS-NPDES). These databases track information 4693 on the number of self-reported violations, the number of compliance evaluations performed, the number of non- 4694 compliances found, the number of formal and informal enforcement actions taken and the penalties assessed.

4695 Water Quality Standards 4696 Water Quality Standards are mandated by the Clean Water Act and define the goals for a water body by designating 4697 that waterbody’s uses, setting criteria to protect those designated uses and preventing degradation of water quality 4698 through antidegradation provisions.

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4699 Designated Uses 4700 Designated uses are statements of management objectives and expectations for water bodies under State or Tribal 4701 jurisdiction. As defined in 40 CFR 131.3, designated uses are specified for each water body or water body segment 4702 regardless of whether or not they are being attained. Designated uses include, but are not limited to: water supply 4703 (domestic, industrial and agricultural); stock watering; fish and shellfish uses (salmonid migration, rearing, 4704 spawning and harvesting; other fish migration, rearing, spawning and harvesting); wildlife habitat; ceremonial and 4705 religious water use; recreation (primary contact recreation; sport fishing; boating and aesthetic enjoyment); and 4706 commerce and navigation.

4707 The water quality standards regulation requires that States and Tribes specify which water uses are to be achieved 4708 and protected. These uses are determined by considering the value and suitability of water bodies based on their 4709 physical, chemical and biological characteristics as well as their geographical settings, aesthetic qualities and 4710 economic attributes. Each water body does not necessarily require a unique set of uses. Rather, water bodies sharing 4711 characteristics necessary to support a use can be grouped together. If water quality standards specify designated uses 4712 of a lower standard than those that are actually being attained, the State or Tribe is required to revise its standards to 4713 reflect these uses.

4714 Only California and Puerto Rico explicitly address threatened or endangered species as part of their designated uses. 4715 California’s designated uses include a broad statement that the waters must support the survival and maintenance of 4716 aquatic species that are protected, and Puerto Rico’s designated uses note that endangered and threatened species are 4717 included as part of the broader category of desirable species (Table 10). Other states have revised their designated 4718 uses to incorporate the specific needs of certain threatened or endangered species (e.g., Oregon and Washington 4719 adopted designated uses for the protection of Pacific salmon). Washington’s designated uses explicitly denote the 4720 following categories of aquatic life uses: char spawning and rearing; core summer salmonid habitat; salmonid 4721 spawning; rearing and migration; salmonid rearing and migration only and several others (WAC 173-201A-200). 4722 Washington’s designated uses should provide additional protection for Washington’s native char, bull trout and 4723 Dolly Varden and several species of Pacific salmon that are listed as threatened or endangered, as well as others that 4724 are not listed.

Table 10. State Designated Uses that Explicitly Address Listed Species State Designated Use Description EPA Effective Date

Uses of water that support aquatic habitats necessary, at least in part, CA for the survival and successful maintenance of plant or animal species Regions 1, 2, 3, 4, 8/18/1994 established under State or Federal law as rare, threatened or 5, 6, 7, 8, 9 endangered.

Coastal waters and estuarine waters intended for use in primary and PR secondary contact recreation and for propagation and preservation of 6/26/2003 desirable species, including threatened or endangered species.

4725 4726 Antidegradation 4727 The water quality standards regulation also requires that States and Tribes establish a three-tiered antidegradation 4728 program. The specific steps to be followed depend upon which tier or tiers apply. These tiers are listed below:

4729  Tier 1: These requirements are applicable to all surface waters. They protect existing uses and water quality 4730 conditions necessary to support such uses. These uses can be established if they can be demonstrated to have 4731 actually occurred since November 28, 1975, or if water quality can be demonstrated to be suitable for such uses.

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4732 If an existing use is established, it must be protected even if it is not listed in the water quality standards as a 4733 designated use.

4734  Tier 2: These requirements maintain and protect "high quality" water bodies where existing conditions are 4735 better than those necessary to support CWA § 101(a)(2) "fishable/swimmable" uses. Although the water quality 4736 in these water bodies can be lowered, States and Tribes must identify procedures that must be followed and 4737 questions that must be answered before a reduction in water quality can be allowed. The water quality of these 4738 water bodies cannot be lowered to a level that would interfere with existing or designated uses.

4739  Tier 3: These requirements maintain and protect water quality in outstanding national resource waters 4740 (ONRWs) and generally include the highest quality waters of the United States ONRW classification also offers 4741 special protection for waters of exceptional ecological significance. Except for certain temporary changes, water 4742 quality cannot be lowered in these waters. States and Tribes decide which water bodies qualify as ONRWs.

4743 In a January 27, 2005, memorandum to its Regional Offices, EPA concluded that ESA Section 7 consultation does 4744 not apply to EPA’s approvals of State antidegradation policies because EPA’s approval action does not meet the

4745 “Applicability” standard defined in the regulations implementing Section 7 of the ESA (EPA 2005; 50 CFR 402.03).

4746 Section 402.03 of the consultation regulations (50 CFR Part 402) states that Section 7 and the requirements of 50 4747 CFR parts 402 apply to all actions in which there is discretionary Federal involvement or control.

4748 EPA concluded that they are compelled to approve State antidegradation policies if State submissions meet all 4749 applicable requirements of the Water Quality Standards Regulation (40 CFR part 131) and lack discretion to 4750 implement measures that would benefit listed species. As a result, EPA determined that consultation is not 4751 warranted on antidegradation policies because the Agency does not possess the regulatory authority to require more 4752 than the minimum required elements of the regulations. For these reasons, EPA’s approvals of State antidegradation 4753 policies are not part of this consultation.

4754 FIFRA 4755 The EPA regulates pesticides under FIFRA, as amended by the FQPA of 1996 and the Pesticide Registration 4756 Improvement Act of 2003. Under FIFRA, the EPA is responsible for evaluating and registering all pesticide uses in 4757 the U.S. To do so, the EPA evaluates scientific data provided by the applicants and other sources of evidence 4758 including data from the open literature (as presented in their Ecotoxicology [ECOTOX] database22). To determine 4759 whether those data demonstrate that the registration of these pesticide uses will not cause “unreasonable adverse 4760 effects on the environment,” which is defined “any unreasonable risk to man or the environment, taking into account 4761 the economic, social, and environmental costs and benefits of the use of any pesticide...”). This is important because 4762 under FIFRA, the EPA must weigh the economic and social costs of registering pesticide uses against the 4763 environmental costs and benefits they may pose. Under Section 7 of the ESA, the Services do not include such 4764 considerations in jeopardy to species or destruction or adverse modification of designated critical habitat 4765 determinations.

4766 Under FIFRA, the EPA does not consider the toxicity or potential environmental impacts of specific pesticides in 4767 relation to other pesticides during the registration process. Instead, the EPA evaluates the potential direct and 4768 indirect environmental effects of these pesticide uses on a case-by-case basis and does not recommend that any 4769 pesticide be used as opposed to any other pesticide.

22 The ECOTOX database may be found online at: http://cfpub.epa.gov/ecotox/.

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4770 The EPA works with stakeholders to develop voluntary measures or regulatory controls to reduce risks pesticides 4771 may pose to human health and to the environment. For aquatic systems, the EPA relies on computer models to 4772 calculate Estimated Environmental Concentrations (EECs) in the environment. These models simulate the expected 4773 behavior of these pesticides in a: “standard pond” receiving direct application or spray drift, runoff and transport 4774 through soil pore water from treated areas. A “standard pond” is modeled as having constant volume and without 4775 flow. These models incorporate variables such as chemical properties of the pesticide, average rainfall in the area, 4776 transpiration of water from vegetation, hydrology and chemical transport. These models assume 5% spray drift from 4777 aerial pesticide applications and 1% spray drift for applications from the ground. Where water-monitoring data are 4778 available, EPA will take into consideration whether measured pesticide concentrations are higher than estimated by 4779 computer models.

4780 The EPA risk assessment process compares EECs to species toxicity endpoints derived from standard toxicity tests23 4781 where standard test species are exposed to concentration gradients of pesticide active ingredients, formulated 4782 pesticide products or degradates. Organism responses at each concentration are recorded and analyzed to produce 4783 standardized endpoint values. The standard test species used are intended to represent large groups of taxa. The EPA 4784 may use data on other species from other sources to inform their risk assessments if it deems that the studies that 4785 produced these data were at least as stringent as the standard tests. The acute and chronic toxicity endpoints for 4786 animals and endpoints for terrestrial listed and non-listed plants relevant to our Opinion are summarized in Table 4787 11.The EPA then uses a Risk Quotient (RQ) method to estimate the potential direct effects of pesticides to non- 4788 target organisms. To calculate RQs, the EPA divides the EECs by the endpoint values described above 4789 (RQ=EEC/Endpoint)24. The measure of exposure for assessing direct effects to aquatic animals is the modeled peak

4790 EEC for acute effects compared to the lowest tested EC50 or LC50 for representative freshwater and estuarine/marine 4791 fish and invertebrates.

Table 11. EPA’s FIFRA Standard Test Endpoints.

Aquatic Animals

Lowest tested EC or LC for freshwater fish and invertebrates and Acute Toxicity assessment 50 50 estuarine/marine fish and invertebrates acute toxicity tests. Lowest NOEC1 for freshwater fish and invertebrates and estuarine/marine fish Chronic Toxicity assessment and invertebrates early life-stage or full life-cycle tests. Plants

Lowest EC 2 values from both seedling emergence and vegetative vigor for Terrestrial Listed 25 both monocots and dicots.

Aquatic (Listed and Non-listed) Lowest EC50 for both vascular and algae. Lowest EC 3 or NOEC for both seedling emergence and vegetative vigor for Terrestrial Non-listed 05 both monocots and dicots. 4792 1No Observed Effect Concentration: The highest concentration of a pesticide that resulted in no observed effect to any tested 4793 organism. For fish, this value is typically obtained from a standard life cycle test where “fish should be cultured in the presence 4794 of the test substance from one stage of the life cycle to at least the same stage of the next generation (e.g. egg to egg) 4795 http://www.epa.gov/ocspp/pubs/frs/publications/OPPTS_Harmonized/850_Ecological_Effects_Test_Guidelines/Drafts/850-

23 See EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) test guidelines for more information: http://www.epa.gov/ocspp/pubs/frs/home/draftguidelines.htm 24 See: http://www.epa.gov/espp/consultation/ecorisk-overview.pdf

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4796 1500.pdf. If no such data are available, the EPA estimates this value using and Acute to Chronic Ratio (ACR) based on data for 4797 similar species. 4798 2Effective Concentration 25: The concentration of pesticide that resulted in 25% of individuals tested exhibiting an effect. 4799 3Effective Concentration 5: The concentration of pesticide that resulted in 5% of individuals tested exhibiting an effect. 4800 A rolling mean modeled EEC is used to estimate chronic effects and compared to the lowest NOEC for 4801 representative freshwater and estuarine/marine fish and invertebrate early life-stage or full life-cycle tests. The 4802 modeled EEC for 60 days after a pesticide application, or series of applications, is used for assessing chronic 4803 exposure for fish. The modeled EEC for 21 days after pesticide application is used for assessing chronic exposure 4804 for aquatic invertebrates.

4805 These RQs are then compared to the Levels of Concern (LOCs) that EPA has established to estimate potential risk to 4806 non-target organisms for chronic and acute exposures. These LOCs are as follows:

4807  Non-listed Species Direct Acute Risk: RQ > 0.5 for aquatic animals (greater than 50% of the laboratory test 4808 organisms exposed to the peak EECs would be expected to exhibit an effect greater than or equal to that 4809 described by the standard acute toxicity endpoint.) 4810  Non-listed Species Direct Acute for Restricted Use25 Pesticides: RQ > 0.1 for aquatic animals (greater than 4811 10% of the laboratory test organisms exposed to the peak EECs would be expected to exhibit an effect 4812 greater than or equal to that described by the standard acute endpoint.) 4813  ESA Listed Species Direct Acute: RQ > 0.05 for aquatic animals (greater than 5% of the laboratory test 4814 organisms exposed to the peak EECs would be expected to exhibit an effect greater than or equal to that 4815 described by the standard acute endpoint.) 4816  Direct Chronic Risk: RQ > 1 for both ESA listed and non-listed animals (The long term EECs would be 4817 greater than the NOEC for 100% of the laboratory test organisms) 4818  Non-listed Species Aquatic and Terrestrial Plant Direct Effects: RQ >1 (100% of the laboratory test 4819 organisms exposed to the EECs would be expected to exhibit an effect greater than or equal to that 4820 described by the standard endpoint for non-listed species.) 4821  ESA Listed Species Aquatic and Terrestrial Plant Direct Effects: RQ>1 (100% of the laboratory test 4822 organisms exposed to the EECs would be expected to exhibit an effect greater than or equal to that 4823 described by the standard endpoint for listed plant species.) 4824 The EPA has set its ESA listed animal species acute LOCs an order of magnitude lower than those for non-listed 4825 species but does not make a distinction between the chronic effect risk LOCs between listed and non-listed animal 4826 species. The LOCs for listed plants are the same as for non-listed species, but the RQs for listed terrestrial plants are 4827 calculated using lower toxicity endpoints than non-listed plants. The EPA gives no such consideration to ESA listed 4828 aquatic plant species.

4829 When registering pesticides, the EPA generally considers that any species for which the RQs do not exceed their 4830 designated LOC to not be at risk from the pesticide use being evaluated. If the RQs for a taxonomic group in 4831 question exceed LOCs, the EPA may conduct additional analyses and then must weigh the economic and social 4832 costs of registering that pesticide use against the environmental costs and benefits such a pesticide use may pose.

25 The "Restricted Use" classification restricts a product, or its uses, to use by a certificated pesticide applicator or under the direct supervision of a certified applicator.

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4833 It is important to note that for acute aquatic animal effect estimations, the EPA uses an endpoint based on the 4834 amount of the pesticide that is observed to kill test species. This is the case for non-listed species as well as 4835 threatened or endangered species. Based on this methodology, EECs for pesticide pollutants in the water could be 4836 expected to kill or adversely affect threatened or endangered species under NMFS’ jurisdiction without exceeding 4837 the EPA’s LOC.

4838 In order to analyze indirect effects to ESA listed organisms, the EPA uses the direct effects LOCs for each 4839 taxonomic group upon which a listed species may rely for survival. If the RQs for these taxonomic groups are below 4840 the direct effect listed species LOCs, the EPA considers any effects to these resources and indirect effects that these 4841 exposures may cause to ESA listed species to be of no concern. These determinations are designed to capture any 4842 effects to designated critical habitat.

4843 Additional Requirements of the PGP 4844 The EPA’s conclusion, as presented in its BE, is that the additional requirements provided in the proposed PGP will 4845 likely reduce the potential adverse effects to ESA listed species from those that would be expected from current 4846 pesticide applications approved and registered under the FIFRA. These additional requirements are presented in the 4847 Description of the Proposed Action section of this Opinion and are summarized below.

4848 Technology Based Effluent Limitations 4849 Under this requirement of the permit, operators would be required to implement control measures to minimize the 4850 discharge of pesticide pollutants to waters of the United States through the use of technology based effluent 4851 limitations to the extent technologically available and economically achievable and practicable. All operators must 4852 review or modify pest management measures if an event occurs such as an unauthorized discharge, water quality 4853 standards are not met, operators failed to use the amount of pesticide and frequency of pesticide application 4854 necessary to control the target pest, pesticide application equipment is not kept in proper operating condition, 4855 weather conditions are not considered, an adverse incident occurs or an inspection by EPA, State, Tribal or local 4856 entities reveal modifications are necessary to meet applicable water quality standards. An operator must make such 4857 changes before or –if not practicable– as soon as possible before the next discharge.

4858 Water Quality Standards 4859 All operators would be required to control discharges to meet applicable numeric and narrative State, Territory or 4860 Tribal water quality standards. If at any time the permittee becomes aware, or EPA determines, that the discharge 4861 causes or contributes to an excursion of applicable water quality standards, the permittee must take corrective action.

4862 Pesticide Discharge Management Plan 4863 Decision makers that exceed NOI thresholds (except for those made in response to a declared pest emergency) and 4864 are “large entities” must prepare a PDMP to document the selection and implementation of control measures used to 4865 comply with the effluent limitations described earlier. The permit defines “large entities” as any: 1) public entity that 4866 serves a population greater than 10,000 or; 2) a private enterprise that exceeds the Small Business Administration 4867 size standard. Pesticide discharge management team information, problem identification, pest management options 4868 evaluation, spill and adverse incident response procedures are required to be included in the PDMP by the permit.

4869 Oversight and Corrective Actions 4870 All operators would be required by the permit to allow EPA or an authorized representative to enter the premises 4871 where a regulated facility or activity is located or conducted; have access to any records that must be kept under the 4872 conditions of the permit; inspect any facilities, equipment practices, or operations regulated or required under the 4873 permit, and; sample or monitor for the purposes of assuring permit compliance.

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4874 If an operator becomes aware that: an adverse incident occurs; an unauthorized discharge occurs; control measures 4875 are not sufficient to meet applicable water quality standards; the operator failed to use the optimum frequency of 4876 pesticide applications necessary to control the target pest; the operator failed to perform regular maintenance 4877 activities to reduce unintended discharges; the operator failed to maintain pesticide application equipment, or; if an 4878 inspection or evaluation by an EPA official, or local, State, Territorial or Tribal entity determines that modifications 4879 to the control measures are necessary to meet the non-numeric effluent limits, that operator must review and revise 4880 the evaluation and selection of their control measures as necessary to insure that the situation is eliminated and will 4881 not be repeated in the future.

4882 If an operator determines that changes to its control measures are necessary, such changes must be made before the 4883 next pesticide application if practicable, or if not, as soon as possible thereafter.

4884 The occurrence of a situations requiring revision of control measures (as defined above) may constitute a violation 4885 of the permit. The EPA will consider the appropriateness and promptness of corrective action in determining 4886 enforcement responses to permit violations and, along with the Courts, may impose additional requirements and 4887 schedules of compliance.

4888 Limitations on Coverage 4889 The proposed PGP would not authorize the discharge of pesticide to impaired Water of the U.S. that is such 4890 impaired by the specific pesticide, or degradates of the pesticide, to be permitted to be discharged. In this case, the 4891 operator would have to obtain coverage under an individual permit for such a discharge or chose some other means 4892 of pest management.

4893 If a proposed discharge is already authorized under another permit, the operator is ineligible for coverage under the 4894 PGP permit. If the intended discharge was included in a permit that has been or is in the process of being denied, 4895 terminated or revoked by EPA in the past five years, the proposed discharge is ineligible for coverage under this 4896 permit.

4897 IPM/Pest Management Measures 4898 Under the PGP, operators are required to use Pest Management Measures not currently required under FIFRA. The 4899 EPA anticipates that these requirements will lead to a decrease in the amount of pesticides used and an increase in 4900 the use of non-chemical pest control methods. For each use pattern, the permit requires that each decision maker 4901 evaluate the use of non-chemical methods and to consider impacts to non-target organisms.

4902 NOI and Determinations of Potential Effects to ESA listed Resources 4903 Under the PGP, all decision makers expecting to discharge pesticides on, over or near waters of the United States. 4904 on Federal lands or into designated Tier 3 waters are required to submit an NOI containing information on whether 4905 these discharges will overlap with the distributions of endangered or threatened species, or designated critical habitat 4906 (listed resource effect determinations). All State or Federal operators and mosquito, irrigation and aquatic weed 4907 control or other pest control districts must submit NOIs. All other decision makers, including decision makers 4908 expecting to discharge on Indian lands, are required to submit an NOI to obtain coverage for discharges resulting 4909 from the application of pesticides if it has reason to believe it will exceed one or more of the treatment area 4910 thresholds. Decision makers who do not expect to exceed one or more of the treatment area thresholds are not 4911 required to submit an NOI; those discharges would automatically be authorized under the proposed permit.

4912 To determine the appropriate thresholds that would trigger the NOI requirements, the EPA discussed these proposed 4913 thresholds with the U.S. Department of Agriculture and industry representatives. The EPA then developed annual

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4914 treatment area thresholds based on these discussions as well as from comments received during the public comment 4915 process. These thresholds are meant to differentiate between applications to small and larger areas. EPA’s 4916 assumption was that the larger areas “are believed to have a greater potential for impact on Waters of the US.”

4917 Earlier in the consultation process, the EPA26 stated that they were:

4918 “assuming that 100% of categories 1 [mosquito and other flying insect pests control] and 3 [aquatic 4919 nuisance animal control] will submit NOIs; a significantly lesser percentage will submit NOIs for 4920 category 2 [aquatic nuisance weed and algae control] (<10%); and it seems as though about 10% of 4921 the category 4 [forest canopy pest control] activities will be required to submit an NOI…” 4922 However, on December 16, 2010, EPA notified NMFS that it was raising the NOI thresholds for some of the use 4923 patterns. NOI threshold requirements for nuisance aquatic plant and animal treatments increased fourfold from 20 to 4924 80 square acres (the linear area threshold remained unchanged at 20 miles). The EPA also raised the NOI thresholds 4925 for forest canopy applications and mosquito adulticide applications an order of magnitude from 640 ac to 6,400 ac 4926 (ten square miles).

4927 Monitoring and Reporting 4928 Under the conditions of the PGP, all operators would be required to: monitor the amount of pesticide and frequency 4929 of pesticide application used to control the target pest; monitor pesticide application activities to insure pesticide 4930 application equipment is maintained in proper operating conditions; and monitor weather conditions in the treatment 4931 area to insure application is consistent with all applicable Federal requirements. If a reportable spill occurs, the 4932 operator must contact the National Response Center immediately. The operator must document and retain 4933 information on the spill within 30 days.

4934 All operators must keep records of adverse incidents reports; a copy of corrective action determinations and a copy 4935 of any spill or other non-permitted discharges. Any decision maker that is not a “large entity” and is required to 4936 submit an NOI must also keep records of the NOI and any correspondence with EPA about the NOI; documentation 4937 of equipment calibration, and; Information on each treatment area. These decision makers must also submit an 4938 annual report to EPA.

4939 The permit also requires visual monitoring assessments by all operators of the application area and notification to 4940 the permitting authority if adverse effects are observed. The EPA also states in its BE that: “[Visual monitoring by 4941 permittees] … should provide valuable information to EPA and the States about where adverse environmental 4942 effects are occurring. This knowledge will help EPA identify where problems may remain and where improvements 4943 can be made in the next PGP.”

4944 Evaluation of Those Components of the Proposed PGP Designed to Minimize or Prevent Exposure

4945 EPA’s Ability to Estimate the Number and Locations of Discharges Authorized by the PGP 4946 To reliably estimate the probable individual or cumulative effects to ESA listed species or designated critical habitat, 4947 the EPA would need to know or reliably estimate the probable number of discharges that it would authorize under 4948 the permit. The EPA is proposing to rely on a small subset of the estimated 35,183 operators to file NOIs to obtain 4949 this information. In addition, the NOIs that EPA expects provide very little information prior to discharge. These 4950 NOIs would contain: 1) The name, address, type and contact information of the operator expected to discharge

26 April 5, 2010 Email from EPA on affected operator estimated numbers.

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4951 pollutants, and; 2) Pesticide use patterns and planned locations of these applications. These NOIs would only 4952 provide information on the planned locations of discharges to waters of the United States where listed species or 4953 designated critical habitat occurs, but not the locations or timings of actual discharges that occur. Nor would the 4954 discharger be required to identify which product or products would be used. Further, most routine dischargers would 4955 file only one NOI at the beginning of the five year period. The number of operators that the EPA estimates will be 4956 affected by the proposed general permit is listed in Table 12.

4957 If a decision maker is a Federal facility and intends to discharge into designated Tier 3 waters or has reason to 4958 believe that it will exceed the annual treatment thresholds established by the EPA as described in the proposed 4959 general permit, that decision maker is required to submit a Notice of Intent (NOI) to obtain coverage. The NOIs are 4960 to contain a section where the decision maker is to self-certify whether pesticide application activities will overlap 4961 with the distribution of endangered or threatened species, or designated critical habitat and, if so, whether these 4962 applications have undergone ESA Section 7 consultations or received an ESA Section 10 permit for take of listed 4963 species or designated critical habitat. The permit would cover the decision maker 10 days after EPA posts a receipt 4964 of a complete and accurate NOI. Any decision maker that expects to exceed any area thresholds must submit an NOI 4965 by January 9, 2012. It is also important to note that because of this, discharges to waters of the United States made 4966 by that decision maker would immediately be authorized under the permit before any NOI is required.

4967 The EPA’s Office of Water; Office of Pesticides, Pollution and Toxic Substances; and Regional Offices, engaged in 4968 discussions with USDA and representatives from industry to determine the thresholds that would trigger NOI 4969 requirements for the remaining operators. The EPA then developed annual treatment area thresholds that 4970 differentiate between smaller applications and the larger applications that it believes to have a greater potential for 4971 adverse impacts to waters of the United States All State or Federal operators and operators that are mosquito, 4972 irrigation and aquatic weed control or other pest control districts must submit NOIs.

4973

4974

Table 12. EPA Estimated Number of Operators to be Affected by the PGP1

Mosquito and Aquatic Weed Aquatic Forest Canopy Other Flying and Algae Nuisance TOTAL Pest Control Insect Control Control Animal Control

Alaska* 2 325 15 18 385 Idaho* 23 16,489 12 48 16,572 Massachusetts* 9 2,041 15 214 2,279 New Hampshire* 44 627 8 85 764 New Mexico 13 10,411 21 26 10,471 Oklahoma 1 3,889 74 159 4,123 District of Columbia* 1 8 2 0 11 Territories* 1 314 38 4 357 Tribes* 17 93 25 34 169 Federal Facilities* 10 10 10 22 52 Total 121 34,232 220 610 35,183

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4975 * Denotes areas where discharges may affect ESA listed species or designated critical habitat under NMFS' jurisdiction.

4976 The EPA originally estimated that roughly 100% of operators under the Mosquito and other Flying Insect Control 4977 and Aquatic Nuisance Animal Control would be required to file NOIs. Less than 10% of operators under the Aquatic 4978 Weed and Algae control and roughly 10% of the Forest Canopy Pest Control operators were originally estimated to 4979 be required to file NOIs. NMFS estimated corrected numbers of non-Federal operators expected to be required to 4980 file NOIs. Based on the original information given by EPA, NMFS adjusted the expected number of operators who 4981 would file NOIs based on the changes in the most recent version of the permit that raised the threshold numbers.

4982 The NOI threshold for mosquitoes and other flying insect pest control is 6,400 acres. The EPA did not provide us 4983 with estimates of the number of decision makers that would be required to submit NOIs containing endangered or 4984 threatened species or designated critical habitat effects determinations. However, all State or Federal operators and 4985 operators that are mosquito or other pest control districts must submit NOIs.

4986 We believe discharges of pesticides to waters of the United States from mosquitoes and other flying insect pest 4987 control will occur in areas where listed species under NMFS' jurisdiction occur. This is of concern because in 4988 addition to direct toxicity, these pesticides are toxic to invertebrates that constitute the prey base of ESA listed 4989 species and make up the ecological communities on which these species depend for survival. We expect that these 4990 discharges are likely to expose ESA listed species under NMFS' jurisdiction, their prey and habitat to pesticides and 4991 that these exposures may cause adverse effects to those species or to designated critical habitat. For those decision 4992 makers who fall under the newly raised threshold, there will be no mechanism for EPA to know or reliably estimate 4993 the number and locations of discharges.

4994 The EPA originally estimated that less than 10% of operators under the aquatic weed and algae control would 4995 exceed the area threshold required to submit NOIs. However, these estimates were based on proposed treatment 4996 thresholds of 20 acres with a linear treatment threshold of 20 linear miles and the assumption that not all Federal, 4997 State and aquatic weed control or other pest control districts would be required to submit NOIs. The EPA since 4998 raised the NOI threshold for aquatic weed and algae control to 80 acres of treatment area. The current proposed 4999 permit now requires that all State or Federal operators and operators that are aquatic weed control or other pest 5000 control districts must submit NOIs. The EPA also changed the requirement that these estimates be cumulative on an 5001 annual basis, to being mere single application estimates, meaning that a decision maker could discharge pesticides 5002 into an unlimited amount of area as long as the FIFRA approved pesticide label was followed and no single 5003 application exceeds 80 square acres or 20 linear miles.

5004 For many decision makers under this category, EPA will have no mechanism for determining the number and 5005 location of discharges. This is of concern because aquatic plants contribute a large part to the overall health of 5006 aquatic ecosystems. In fact, without aquatic plants, there would be no aquatic ecosystems.

5007 In addition, the death of aquatic plans from herbicide exposure can result in hypoxic conditions in these ecosystems 5008 that are not easily observed, but may have adverse consequences to ESA listed species under NMFS’ jurisdiction 5009 and their designated critical habitat. As a result, we expect that the aquatic weed and algae control actions authorized 5010 by the permit may expose endangered or threatened species, or designated critical habitat to pesticides and that these 5011 exposures may cause adverse effects to these resources.

5012 The EPA originally estimated that approximately 100% of operators under the aquatic nuisance animal control use 5013 pattern would exceed the area threshold required to submit NOIs. However, these estimates were based on treatment 5014 thresholds of 20 acres. The EPA since raised this NOI threshold to 80 acres. All Federal and State decision makers

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5015 would be required to submit NOIs under the proposed permit. While EPA did not provide us with adequate 5016 information to determine how many non-Federal or State operators would now be required to submit NOIs for this 5017 use pattern, this number would be fewer than originally estimated. As a result, we believe discharges of pesticides to 5018 waters of the United States from aquatic nuisance animal control activities authorized by the permit will occur in 5019 areas where listed species under NMFS’ jurisdiction occur. This is especially concerning because many of the 5020 pesticides under this use category are lethal to fish, including listed species. We expect that these discharges are 5021 likely to result in exposures of pesticides to endangered or threatened species or designated critical habitat under 5022 NMFS’ jurisdiction and that these exposures may cause adverse effects to those species or to designated critical 5023 habitat. For the decision makers who will not be required to submit NOIs, there will be no mechanism to prevent 5024 these exposures from occurring because no identification of these potential exposures will now be required.

5025 The EPA originally estimated that approximately 10% of operators discharging under the forest canopy pest control 5026 use category would be required to submit NOIs. However this estimate was based on an earlier threshold of 640 5027 acres. The NOI threshold for forest canopy pest control activities was raised to 6,400 acres. As a result, we estimate 5028 that only roughly 1% of the forest canopy pest control applicators would now be required to submit NOIs and that 5029 ~99% of these decision makers would be automatically authorized without being required to submit any endangered 5030 or threatened species, or designated critical habitat effects determinations to the EPA. Thus, the vast majority of 5031 applicators authorized to discharge pesticides on, over or near waters of the United States for this use category under 5032 the permit would therefore not be required to make any listed resource effects determinations or to consider the 5033 impacts that these pesticides may have to these resources. We expect that these discharges are likely to result in 5034 exposures of pesticides to ESA listed species or designated critical habitat under NMFS’ jurisdiction. This is of 5035 concern because these pesticides may have effects to those species and their prey and, given the wide pesticide 5036 application pattern for this use, many streams upon which listed species depend for survival may be exposed. Thus, 5037 it is our opinion that these exposures will cause adverse effects to ESA listed species or designated critical habitat 5038 under NMFS’ jurisdiction.

5039 The current draft of the permit does require that all Federal facilities and decision makers who intend to discharge 5040 pesticides into Tier 3 waters submit NOIs and accompanying listed resource effect determinations. However, even if 5041 all decision makers were required to submit NOIs containing listed resource effect determinations, these decision 5042 makers would have little incentive to make a positive effect determination because such determinations could 5043 negatively affect them economically. It is also unlikely that most decision makers would possess the ability or 5044 resources to make accurate effects determinations in the first place. Furthermore, the EPA has not explained how –or 5045 if– it intends to assess the effect determinations it does receive. The EPA has also not stated what consequences a 5046 positive effect determination would have to the decision maker’s ability to discharge pesticides in areas where 5047 endangered or threatened species or designated critical habitat occur.

5048 Any decision maker that is a “large entity” and is required to submit an NOI must also submit an annual report to 5049 EPA that includes: 1) A description of the treatment area; 2) Identification of any waters receiving discharged 5050 pesticides, and; 3) Any adverse incidents and a description of any corrective actions. The permit defines “large 5051 entities” as: 1) Any public entity that serves a population greater than 10,000 or; 2) A private enterprise that exceeds 5052 the Small Business Administration size standard.

5053 Most operators discharging pesticide pollutants on, over or near waters of the United States as authorized by the 5054 proposed general permit would not be required to provide NOIs or annual reports. Because of this, the EPA would 5055 not know how many pesticide pollutant discharges it would authorize under the proposed general permit or where 5056 these discharges occur. Those discharges that the EPA will require operators to report will only be reported after

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5057 those discharges have happened. Furthermore, decision makers would immediately be authorized under the permit 5058 before any NOI would be required. As such, the EPA has not structured the proposed general permit so that it could 5059 know or reliably estimate the number of discharges that it would authorize under the permit, nor can it know or 5060 reliably estimate the probable locations of these discharges. Accordingly, the EPA cannot reliably estimate the 5061 effects of the discharges it proposes to authorize under the PGP to ESA listed species or designated critical habitat.

5062 EPA’s Ability to Estimate Stressors Produced from the Proposed Actions Authorized by the PGP 5063 To know or reliably estimate the physical, chemical or biotic stressors that are likely to be produced as a direct or 5064 indirect result of the discharges of pesticide pollutants that would be authorized by the PGP, the EPA would need to 5065 know or be able to reliably estimate whether those discharges have occurred in concentrations, frequencies or for 5066 durations that violate the terms of the proposed PGP.

5067 Under the proposed permit, all operators would be required to control discharges to meet applicable numeric and 5068 narrative State, Territory or Tribal water quality standards. As noted above, numeric standards have not been 5069 identified for most of the pesticide active ingredients and degradates. If at any time the permittee becomes aware 5070 that the discharge causes or contributes to an excursion of applicable water quality standards, the permittee must 5071 take corrective action. However, it is unlikely that any operator would become aware that its discharge has resulted 5072 in an exceedance of a water quality standard because the proposed general permit does not require either the 5073 operator or EPA to monitor for such exceedances for the vast majority of the discharges to be authorized. As such, 5074 the EPA cannot know or reliably estimate the physical, chemical or biotic stressors that are likely to be produced as 5075 a direct or indirect result of the activities to be authorized by the proposed permit.

5076 EPA’s Ability to Estimate Compliance with the Permit 5077 To know or be able to determine reliably whether or to what degree operators are complying with the conditions, 5078 restrictions or mitigation measures the proposed general permit requires when they discharge pesticide pollutants on, 5079 over or near waters of the U.S., the EPA must have an effective means of oversight. Under the conditions of the 5080 permit, any operator would be required to allow EPA or an authorized representative to: 1) Enter the premises where 5081 a regulated facility or activity is located or conducted; 2) Have access to and copy, at reasonable times, any records 5082 that must be kept under the conditions of the permit; 3) Inspect at reasonable times any facilities, equipment, 5083 practices, or operations regulated or required under the permit, and; 4) Sample or monitor at reasonable times, for 5084 the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or 5085 parameters at any location.

5086 However, it is not explained how often, or if the EPA plans to carry out such oversight. The proposed general permit 5087 only states that the operator must allow EPA to do so. While we cannot know in advance the compliance rate for the 5088 PGP, the compliance rates of existing general permits provide an insight into the effectiveness of general permits in 5089 protecting water quality.

5090 EPA’s Online Tracking Information System (OTIS) was used to query NPDES compliance data in the Permit 5091 Compliance System (PCS) and Integrated Compliance Information System - National Pollutant Discharge 5092 Elimination System (ICIS-NPDES) databases27. The database was downloaded on January 5, 2011. The PCS and

27 The PCS was the original tracking mechanism for NPDES permits and currently includes data for 21 states. State by state, the data in PCS is being migrated into the newer ICIS-NPDES. The ICIS-NPDES currently tracks data for the remaining states not represented in PCS, U.S. territories, the Navajo Nation, and the St. Regis Tribe.

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5093 ICIS-NPDES databases track the number of inspections and enforcement actions over five years, along with the 5094 number of non-compliance and effluent guideline exceedances over three years. The data are divided between major 5095 and minor dischargers. Major dischargers are typically facilities with a flow of one million gallons per day or 5096 greater. Examples of major dischargers are cities, towns or regional sewer districts. For the purposes of this 5097 consultation, we consider all operators to be authorized to discharge pesticide pollutants on, over or near waters of 5098 the United States as minor dischargers.

5099 We focused on general and individual permits for entities where EPA is the permitting authority as identified in the 5100 Description of the Proposed Action section of this Biological Opinion. A list of the general types and number of 5101 NPDES general permits is listed in Table 13.

Table 13. Types and Current Number of NPDES General Permits Activity # General Permits Aquaculture 90 Concentrated Animal Feed Operation 105 Construction General Permit 168 Cooling Water 23 Drinking Water 53 Groundwater Remediation 23 Hydroelectric Facilities 27 Hydrostatic Testing 4 Industrial 6 Industrial Storm Water 128 Log Transfer Facilities 84 Mining 590 Municipal Storm Water 48 Oil & Gas 2888 Other 386 Publicly Owned Treatment Works (POTW) 119 Seafood Processors 264

5102 To avoid bias from permits with multiple inspections due to compliance and enforcement actions, we converted the 5103 frequency data into presence/absence of inspection, compliance and enforcement events. In this way, each permit 5104 was equally weighted in the analysis. Table 14 shows that the majority of major dischargers (66%) were inspected at 5105 least once in the past 5 years. However, among minor dischargers, a much smaller proportion of general permittees 5106 (14%) were inspected relative to the proportion of individual permittees inspected.

Table 14. Number and Relative Proportion of Inspected Permittees According to Permit Type Discharger Type Permit Type Never Inspected Inspected Proportion Inspected Major General 0 41 100% Individual 3 405 99% Minor General 4292 673 14% Individual 375 735 66%

5107 The relationship between inspections and the detection of violations within general and individual permits is

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5108 illustrated in Table 15. Uninspected operators had fewer violations than inspected permittees. Substantially fewer 5109 violations were reported for the uninspected general permittees relative to those permittees that were inspected. Half 5110 of the inspected general permittees were found in violation at least once in the past three years while only 15% of 5111 the uninspected general permittees were reported to be in violation over that time period. This suggests that the 5112 reduced inspection rate among general permits for minor dischargers results in a fairly large number of undetected 5113 violations.

Table 15. Frequency and Relative Rate of Permit Violations for Minor Dischargers with and without Inspections No Permit Proportion Permit Type Inspected? Permit Violations Violations Violations General Never 3658 634 15% Yes 335 338 50% Individual Never 135 240 64% Yes 173 562 76%

5114 Due to the nature of general permits, only seven percent (356) of the general permittees had effluent limit data 5115 available. The rates of effluent violations for those permits with effluent limits are detailed in Table 16. The 5116 proportion of effluent violations detected for minor dischargers with individual permits had similar violation rates, 5117 with the inspected permit violation rate at 91% and the uninspected permit violation rate of 83%. Effluent violations 5118 for uninspected minor dischargers with general permits were detected at a substantially lower rate (47%) than 5119 inspected operators, whose violation rate was 92%.

Table 16. Frequency and Relative Rate of Permit Effluent Limit Violations with and without Inspections No Effluent Limit Effluent Limit Proportion with Permit Type Inspected? Violations Violations effluent violations General Never 133 117 47% Yes 4 102 96% Individual Never 42 203 83% Yes 46 500 92%

5120 These analyses suggest that general permits for minor dischargers have substantial undetected violations and that 5121 these violations include exceedances of effluent limits. The severity of a given violation is reflected by the 5122 enforcement action taken. Formal enforcement actions are triggered by the failure to achieve compliance within a 5123 specified period of time under informal enforcement measures or for violations of sufficiently serious nature 5124 triggering formal enforcement action with subsequent penalty order or judicial action.28 Enforcement actions were 5125 more frequently pursued against major dischargers than minor dischargers irrespective of permit type (see Table 17). 5126 Informal enforcement actions were more common than formal enforcement actions among general permits for both 5127 minor and major dischargers.

5128

5129

5130

28 USEPA 1989. The Enforcement Management System: National Pollutant Discharge Elimination System, (Clean Water Act). Office of Water. # PB95-156527

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Table 17. Relative Distribution of Enforcement Actions among Different Permit Types Discharger Type Permit Type Formal Informal No Enforcement Major General 3% 52% 39% Individual 24% 18% 38% Minor General 2% 30% 67% Individual 18% 11% 70%

5131 While the dominance of informal enforcement actions for general permits suggests that these violations were less 5132 severe than violations committed under individual permits, this could be due to the absence of effluent limits among 5133 the general permits. If a formal enforcement action is more likely to be linked to an effluent limit violation, then 5134 formal enforcement actions are less likely to occur among general permits. If this were the case, one would expect 5135 that an examination of enforcement actions for only those permits with effluent violations would show similar rates 5136 of formal enforcement actions. Table 18 details the results of such an analysis. Among permits with effluent limit 5137 violations, general permits were less likely than individual permits to receive a formal enforcement action. However, 5138 it is interesting to note that general permits with effluent limit violations were somewhat less likely than individual 5139 permits to be met with any enforcement action.

Table 18. Relative Distribution of Enforcement Actions Among Permits with Effluent Violations Discharger Type Permit Type Formal Informal No Enforcement Major General 0% 50% 50% Individual 47% 15% 39% Minor General 3% 10% 88% Individual 21% 12% 67%

5140 A review of inspection and compliance patterns for general permits recorded in EPA databases produced evidence 5141 that the reduced rate of inspections of minor dischargers with general permits likely results in a substantial number 5142 of undetected permit violations and that these violations include exceedances of effluent limits. General permit 5143 violations for minor dischargers are less likely to be met with formal enforcement actions, suggesting that general 5144 permit violations are less severe than violations found under individual permits. However, the disparity in the rate of 5145 formal enforcement actions for individual and general permits could be due to the differing nature of their 5146 discharges and the specificity of the constraints listed within the permits. Individual permittees are largely 5147 wastewater treatment facilities and industrial dischargers releasing effluents with known constituents (more or less) 5148 at a predictable rate from discrete point sources. This allows more specific monitoring and reporting requirements 5149 within a permit and, as a consequence, a greater probability of violating the permit conditions. These dischargers are 5150 also more likely to release constituents for which there are water quality criteria. Discharges of such constituents 5151 from a point source at a known rate are more easily monitored than the diffuse, episodic discharges typical of 5152 general permits.

5153 Previous investigations of general permits have examined the reliability of self-identification for permit coverage 5154 and self-reporting for permit violations. One investigation reported grossly incomplete compliance with State and 5155 EPA administered storm water general permits 10 years after implementation (Duke and Augustenborg, 2006). The 5156 researchers also determined that general permits administered by EPA attained higher compliance rates than State 5157 administered general permits. Another study found a compliance rate of 10% under Florida’s State wide general 5158 permit. Only 14 of the 136 industries examined which should have filed an NOI did so (Cross and Duke, 2008).

5159 Analysis of EPA’s permitting and compliance databases indicate high levels of non-compliance and lower rate of

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5160 enforcement actions with general permits as opposed to individual permits. Further, among general permits, those 5161 that were never inspected were half as likely to be listed with effluent violations. The lower rate of inspections for 5162 minor dischargers, such as those to be authorized by the proposed PGP, appears to be a weak point in compliance 5163 with existing NPDES general permits. Given the findings of this analysis, NMFS expects that the EPA cannot insure 5164 compliance with the protective provisions of NPDES general permits. Because of this, the EPA is not likely to 5165 know, or be able to determine reliably, whether, or to what degree, operators that are to be authorized to discharge 5166 pesticide pollutants would be complying with the conditions, restrictions or mitigation measures that the proposed 5167 PGP requires.

5168 EPA’s Ability to Determine Exposures of Listed Resources to the Effects of the Proposed Action 5169 The EPA proposes to employ the NOI process on order to know or be able to reliably estimate whether or what 5170 degree specific endangered or threatened species are likely to be exposed to the direct or indirect effects of the 5171 activities to be authorized by the proposed permit. The NOIs are to contain a section where the decision maker is to 5172 self-certify whether its pesticide application activities will overlap with the distribution of ESA listed species or 5173 designated critical habitat, and if so, must state: 1) If these applications have undergone ESA Section 7 consultations 5174 or received an ESA Section 10 permit and, 2) Which of these endangered or threatened species, or designated 5175 critical habitat overlap with treatment areas. However, as mentioned previously, the majority of operators would be 5176 authorized by the proposed general permit without filing such NOIs. In addition, some operators would be 5177 authorized to discharge pesticide pollutants before any such NOI would be required.

5178 Even if all decision makers were required to submit NOIs with ESA listed species and designated critical habitat 5179 effect determinations, these decision makers would have little incentive to make a positive effect determination 5180 given that such a determination could preclude their ability to apply pesticides and would therefore affect them 5181 economically. Furthermore, it is unlikely that the majority of decision makers would possess the ability or resources 5182 to make accurate effects determinations.

5183 Section 7(a)(2) of the ESA requires Federal Agencies to use the best scientific and commercial data available to 5184 insure that any action authorized, funded or carried out by such Agency is not likely to jeopardize the continued 5185 existence of any listed resource. The conditions that EPA proposes to add to the permit require permittees to be 5186 responsible for complying with this requirement by determining whether the specific actions those permittees carry 5187 out, as authorized by the proposed general permit, may affect ESA listed species or designated critical habitat 5188 without. However it is unlikely that the majority of these operators would have access to the best scientific and 5189 commercial data available to make such determinations. Furthermore, the EPA has not explained how –or if– it 5190 intends to assess the effect determinations it does receive for accuracy. The EPA has also not stated what 5191 consequences such a positive effect determination would have to the decision maker’s ability to discharge pesticides 5192 in areas where endangered or threatened species or designated critical habitat occur.

5193 The condition that permittees be required to assess potential effects to ESA listed species from the activities 5194 authorized by the permit is not sufficient to insure that these actions are not likely to expose endangered or 5195 threatened species, or designated critical habitat to the direct or indirect effects of the actions. Because of the small 5196 percentage of decision makers that are required to submit NOIs containing determinations as to the presence of ESA 5197 listed species or designated critical habitat in the areas where pesticide pollutants are to be discharged; and the fact 5198 that it is not likely that those few decision makers who are required to submit such determinations would possess the 5199 knowledge, skills or resources to make such determinations accurately; and that it is not clear how –or if– the EPA 5200 will evaluate the few determinations it does receive; or what the consequences of any such determinations would be; 5201 the NOI process is not sufficient such that the EPA would know or be able to reliably estimate whether or what

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5202 degree ESA listed species are likely to be exposed to the direct or indirect effects of the activities to be authorized by 5203 the proposed permit.

5204 EPA’s Ability to Monitor Adverse Effects from Activities Authorized by the PGP 5205 In order to continually identify, collect and analyze information that suggests that the discharges of pesticide 5206 pollutants on, over or near waters of the United States may expose endangered or threatened species or designated 5207 critical habitat to pesticide pollutants at concentrations, durations or frequencies that are known or suspected to 5208 produce physical, physiological, behavioral or ecological responses that have potential individual or cumulative 5209 adverse consequences for individual organisms or constituent elements of critical habitat, the EPA proposes to 5210 require that operators self-monitor for adverse effects resulting from these discharges. Under requirements of the 5211 PGP, permittees are required to monitor and report any adverse incidents resulting from activities authorized by the 5212 permit. This places the responsibility for oversight largely on the permittees who would have little incentive to do so 5213 given that such observations could result in a violation of the permit and result in enforcement responses by the 5214 EPA.

5215 Adequate monitoring by the operator that would be sufficient to insure that no adverse exposures occurred from 5216 authorized discharges would be time and resource intensive. It is also unclear how an operator will have the ability 5217 to visually detect all adverse responses to pesticide exposures to ESA listed species or their designated critical 5218 habitat. For example, while operators might have the ability to observe the mortality of adult or juvenile listed fish, 5219 they likely would not have the resources or ability to visually detect the death of the eggs or alevins of these species. 5220 Nor would they likely have the resources or ability to observe reductions in the reproduction or growth rates of these 5221 species as a result of pesticide exposures. The EPA states in its BE that:

5222 “[Visual monitoring by permittees] … should provide valuable information to EPA and the States 5223 about where adverse environmental effects are occurring. This knowledge will help EPA identify 5224 where problems may remain and where improvements can be made in the next PGP.”

5225 While we agree that these monitoring efforts may certainly improve the permit over time, It is unlikely that the self- 5226 monitoring and self-reporting conditions of the permit are sufficient such that the EPA can continually identify, 5227 collect and analyze information that suggests that the discharges of pesticide pollutants on, over or near waters of the 5228 United States may expose endangered or threatened species or designated critical habitat under NMFS’ jurisdiction 5229 to pesticide pollutants at concentrations, durations or frequencies that are known or suspected to produce physical, 5230 physiological, behavioral or ecological responses that have potential individual or cumulative adverse consequences 5231 for individual organisms or constituent elements of critical habitat.

5232 EPA’s Consideration of Species’ Status and Population Effects 5233 The EPA makes its determinations of the potential effects pesticides may have on ESA listed species through an 5234 ecological risk assessment process specifically designed to address the active ingredients in pesticides under FIFRA. 5235 In order to prevent or mitigate risks ESA listed species and their designated critical habitat, the EPA employs a 5236 screening level risk assessment that uses a generic risk quotient (RQ) method to estimate the potential direct effects 5237 of individual pesticides to non-target organisms. An RQ is the ratio of the Estimated Environmental Concentrations 5238 (EECs) in the environment and an endpoint value derived from a standard toxicity test exposing standard species to 5239 a gradient of pesticide concentrations29 (RQ=EEC/Endpoint). The degree to which an endpoint value exceeds the 5240 EEC is classified according to pre-established levels of concern (LOC).

29 See EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) test guidelines for more information: http://www.epa.gov/ocspp/pubs/frs/home/draftguidelines.htm

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5241 In order to analyze indirect effects to ESA listed organisms, the EPA uses the direct effects LOCs for each 5242 taxonomic group upon which an ESA listed species may rely for survival. If the RQs for these taxonomic groups are 5243 below the direct effect ESA listed species LOCs, the EPA considers any effects to these resources and indirect 5244 effects that these effects may cause to ESA listed species to be of no concern. These determinations are designed to 5245 capture any effects to designated critical habitat.

5246 The FIFRA registration process described above addresses toxicity for a single exposure to a single stressor in the 5247 lifetime of a standard test organism. It does not integrate the status and trends of ESA listed species and critical 5248 habitat, the demographic and ecological status of ESA listed species populations and individuals comprising those 5249 populations or the pre-existing stressors in the watersheds where they occur. The exposure modeling employed does 5250 not examine the specific direct and indirect pathways through which ESA listed species and designated critical 5251 habitat are exposed.

5252 Summary of EPA’s Ability to Minimize or Prevent Exposure 5253 As the proposed general permit is structured, the EPA would not know the total number of pesticide pollutant 5254 discharges it would authorize under the proposed general permit or where or when these discharges would occur. In 5255 addition, some of the discharges that the EPA would require operators to report would only be reported after the 5256 fact.

5257 Though operators would be required to control discharges to meet applicable numeric and narrative State, Territory 5258 or Tribal water quality standards under the current draft general permit, the majority of operators would not monitor 5259 water quality and would thus have no way of knowing whether a discharge has exceeded a water quality standard. 5260 Because of this, the EPA cannot know or reliably estimate the physical, chemical or biotic stressors that are likely to 5261 be produced as a direct or indirect result of the activities to be authorized by the proposed permit.

5262 There is a high level of non-compliance and lower rate of enforcement actions with general permits. There is also a 5263 low rate of inspections for minor dischargers, such as those to be authorized by the proposed PGP. Because of this, 5264 the EPA is not likely to know or be able to determine reliably whether or to what degree operators are complying 5265 with the conditions, restrictions or mitigation measures the proposed general permit requires when they discharge 5266 pesticide pollutants on, over or near waters of the U.S.

5267 The majority of operators will not be required to submit NOIs containing determinations as to the presence of ESA 5268 listed species or designated critical habitat in the areas where pesticide pollutants are to be discharged. Furthermore, 5269 it is not clear how –or if– the EPA will evaluate the determinations it does receive, or what the consequences of any 5270 such determinations would be. Because of these reasons, the NOI process is not sufficient such that the EPA would 5271 know or be able to reliably estimate whether or what degree ESA listed species are likely to be exposed to the direct 5272 or indirect effects of the activities to be authorized by the proposed permit.

5273 The self-monitoring and self-reporting conditions of the permit are not sufficient such that the EPA can continually 5274 identify, collect and analyze information that would suggest that the discharges of pesticide pollutants may expose 5275 endangered or threatened species or designated critical habitat to pesticide pollutants. Because of this, the EPA 5276 would not know if these exposures are occurring at concentrations, durations or frequencies that are known or 5277 suspected to produce adverse effects to ESA listed species or constituent elements of critical habitat.

5278 The current draft general permit is not sufficient such that the EPA can reliably estimate whether or to what degree 5279 specific endangered or threatened species are likely to be affected by the direct or indirect effects of the activities to 5280 be authorized by the proposed permit. The FIFRA registration process that originally authorized the pesticide uses to

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5281 be authorized under the proposed general permit does not integrate information on the status and trends of ESA 5282 listed species and critical habitat, the demographic and ecological status of ESA listed species populations and 5283 individuals comprising those populations, or the pre-existing stressors in the watersheds where they occur.

5284 Because of these insufficiencies, the EPA would not be likely to know where or when most of the discharges it 5285 intends to authorize by the proposed general permit would occur; if these discharges were resulting in exposures to 5286 pesticide pollutants in concentrations, durations or frequencies that would cause adverse effects to ESA listed 5287 species or designated critical habitat or whether the permittees were complying with the conditions of the permit 5288 designed to prevent exposures to ESA listed species and designated critical habitat. As such, the EPA would not 5289 likely be able to implement preventive measures to stop such exposures.

5290 Therefore, the EPA has not structured the proposed PGP so that it will be able to prevent endangered or threatened 5291 species from being exposed to discharges of pesticide pollutants: (a) At concentrations, durations, or frequencies that 5292 are potentially harmful to individual listed organisms, populations or the species; (b) In mixtures that are potentially 5293 harmful to individual listed organisms, populations or the species, or; (c) To ecological consequences that are 5294 potentially harmful to individual listed organisms, populations, species or Primary Constituent Elements of 5295 designated critical habitat.

5296 Cumulative Effects

5297 Cumulative effects include the effects of future state, Tribal, local or private actions that are reasonably certain to 5298 occur in the action area considered in this Biological Opinion. Future Federal actions that are unrelated to the 5299 proposed action are not considered in this section because they require separate consultation pursuant to Section 7 of 5300 the ESA.

5301 The biological evaluation that EPA submitted to support its request for formal consultation and which is required to 5302 discuss cumulative effects (as they are defined for the purposes of section 7 of the ESA) did not identify future State, 5303 Tribal, local, or private actions that were reasonably certain to occur in the action area and that would not require 5304 Federal authorization, Federal funding, or the actions of a Federal agency. During this consultation, NMFS searched 5305 for information on future State, Tribal, local or private actions that were reasonably certain to occur in the action 5306 area. NMFS conducted electronic searches of business journals, trade journals and newspapers using First Search, 5307 Google and other electronic search engines. Those searches produced no evidence of future private action in the 5308 action area that would not require Federal authorization or funding and is reasonably certain to occur. As a result, 5309 NMFS is not aware of any actions of this kind that are likely to occur in the action area during the near future.

5310 Integration and Synthesis of Effects

5311 In the Assessment Approach section of this Opinion, our risk analyses began by identifying the probable risks 5312 actions pose to ESA listed individuals that are likely to be exposed to an action’s effects. We identify risks to 5313 individuals of endangered or threatened species using changes in the individuals’ “fitness” or the individual’s 5314 growth, survival, annual reproductive success and lifetime reproductive success. When we do not expect listed 5315 plants or animals exposed to an action’s effects to experience reductions in fitness, we would not expect the action 5316 to have adverse consequences on the viability of the populations those individuals represent or the species those 5317 populations comprise (Stearns, 1977; Mills and Beatty, 1979; Stearns, 1992; Anderson, 2000). As a result, if we 5318 conclude that listed plants or animals are not likely to experience reductions in their fitness, we would conclude our

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5319 assessment. If, however, we conclude that listed plants or animals are likely to experience reductions in their fitness, 5320 we would assess the potential consequences of those fitness reductions for the population or populations the 5321 individuals in an action area represent.

5322 As part of our risk analyses, we consider the consequences of exposing endangered or threatened species to the 5323 stressors associated with the proposed actions, individually and cumulatively, given that the individuals in the action 5324 areas for this consultation are also exposed to other stressors in the action area and elsewhere in their geographic 5325 range. These stressors or the response of individual animals to those stressors can produce consequences - or 5326 “cumulative impacts” (in the National Environmental Policy Act sense of the term) - that would not occur if animals 5327 were only exposed to a single stressor.

5328 In the Effects of the Proposed Action section of this Opinion, we presented the evidence that leads us to conclude 5329 that endangered or threatened species and designated critical habitat under the jurisdiction of the NMFS are likely to 5330 co-occur with discharges of pesticide pollutants on, over or near waters of the United States As we discussed in the 5331 Approach to the Assessment section of this Opinion, the purpose of those analyses was to establish whether or to 5332 what degree endangered or threatened species or designated critical habitat are likely to be adversely affected if they 5333 are exposed to discharges of formulations of the 171 active ingredients.

5334 Based on our review of the commercial and scientific literature, many, but not all, of the 171 ingredients in the 24 5335 classes of pesticides pose serious risks for many aquatic organisms. When they are exposed to concentrations of 5336 some pesticides that we would expect to result from discharges of formulations of these pesticides on, over, or near 5337 waters of the U.S., individuals of some species or life stages of species are likely to die as a result of their exposure. 5338 Other individuals of aquatic species experience reductions in developmental patterns, rates of growth, reproductive 5339 success as a direct result of the exposure or because of the chemical’s effect on their behavioral patterns. Exposure 5340 to some of the chemicals whose discharges would be authorized by EPA’s proposed PGP has been demonstrated to 5341 have physical, physiological or neural effects on individuals that have been exposed and these changes increase their 5342 probability of being captured and killed by predators. Because of the action of these chemicals on primary 5343 production (aquatic plants), invertebrate populations (insects) and other aquatic animals, the discharges of pesticide 5344 pollutants on, over or near waters of the U.S., endangered and threatened species under NMFS’ jurisdiction could be 5345 exposed to changes in their prey base, changes in the distribution of abundance of predators and competitors. These 5346 changes in the ecological community of the endangered and threatened aquatic animals are likely to represent 5347 changes in listed species, the populations they comprise and their designated critical habitat.

5348 Because some of the species that have been studied in investigations into the responses of aquatic species to 5349 pesticides are taxonomically identical to species that have been listed as endangered or threatened (for example, 5350 Oncorhynchus mykiss and Salmo salar), we assume that the responses of the endangered and threatened taxa would 5351 be the same as those reported for the non-listed members of these taxa. We would expect the responses of listed 5352 salmon to be generally similar to the responses that have been reported for O. mykiss.

5353 We are not certain whether or to what degree the responses reported in the literature would be representative of the 5354 responses in the various species of sturgeon that have been listed or southern eulachon, but we do not have evidence 5355 that would lead us to conclude that their responses would not be representative of those species that have been 5356 studied. Therefore, we assume that the responses of these other endangered and threatened species will be generally 5357 similar to those reported in the literature, although the exposure concentrations and durations might differ.

5358 A Biological Opinion NMFS issued in 2008 concluded that the registration of chlorpyrifos, diazinon and malathion 5359 was likely to jeopardize the continued existence of 27 species of endangered and threatened salmon and was likely

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5360 to destroy or adversely modify critical habitat designated for 25 of those species (NMFS, 2008a). A separate 5361 Biological Opinion NMFS issued in 2009 concluded that the proposed registration of carbaryl, carbofuran and 5362 methomyl was likely to jeopardize the continued existence of 22 species of endangered and threatened salmon and 5363 was likely to destroy or adversely modify critical habitat designated for 20 of those species (NMFS, 2009a). The 5364 literature review that we conducted for this consultation updates and reaffirms the conclusions we reached in those 5365 prior Biological Opinions on carbaryl, chlorpyrifos, diazinon, malathion and methomyl: exposing endangered and 5366 threatened species of anadromous fish under NMFS’ jurisdiction to concentrations of these active ingredients, 5367 mixtures of these active ingredients, or degradates of these active ingredients or other components of formulations 5368 containing these active ingredients would increase their likelihood of becoming extinct in the foreseeable future.

5369 Conclusion

5370 Listed Species and Critical Habitat

5371 After reviewing the current status of the listed species, the environmental baseline for the action area, the potential 5372 direct and indirect effects of the EPA’s proposal to issue a Pesticide General Permit that authorizes point-source 5373 discharges of pesticide pollutants into a wide variety of aquatic habitats from the application of pesticides to or over, 5374 including near, waters of the United States where the EPA is the permitting authority, an examination of the controls 5375 EPA proposes to implement to mitigate these effects, and cumulative effects, it is our Biological Opinion that EPA 5376 has failed to insure that the discharges of pesticide pollutants it proposes to authorize using the proposed Pesticide 5377 General Permit are not likely to result in jeopardy to any listed threatened or endangered species under NMFS’ 5378 jurisdiction.

5379 As a result of that failure and based on our review of the best scientific and commercial data available, it is NMFS’ 5380 Biological Opinion that discharges of pesticide pollutants that would be authorized by the Pesticide General Permit 5381 are likely to jeopardize the continued existence of California coastal Chinook salmon, Central Valley spring-run 5382 Chinook salmon, Lower Columbia River Chinook salmon, Upper Columbia River spring-run Chinook salmon, 5383 Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, 5384 Snake River spring/summer-run Chinook salmon, Upper Willamette River Chinook salmon, Columbia River chum 5385 salmon, Hood Canal summer-run chum salmon, Central California Coast coho salmon, Lower Columbia River coho 5386 salmon, Southern Oregon and Northern California Coast coho salmon, Oregon Coast coho salmon, Pacific eulachon, 5387 Southern green sturgeon, Shortnose sturgeon, Lake Ozette sockeye salmon, Snake River sockeye salmon, Central 5388 California Coast steelhead, California Central Valley steelhead, Lower Columbia River steelhead, Middle Columbia 5389 River steelhead, Northern California steelhead, Puget Sound steelhead, Snake River steelhead, South-Central 5390 California Coast steelhead, Southern California coast steelhead, Upper Columbia river steelhead and Upper 5391 Willamette River steelhead, Killer whale (southern resident) and Beluga whale (Cook Inlet).

5392 After reviewing the current status of the critical habitat that has been designated for endangered and threatened 5393 species, the environmental baseline of the action area, the potential direct and indirect effects of the action, an 5394 examination of the controls EPA proposes to implement to mitigate these effects, and cumulative effects, it is our 5395 Biological Opinion that EPA has not insured that the activities it proposes to authorize under its proposed PGP are 5396 not likely to destroy or adversely modify designated critical habitat. As a result of that failure and based on our 5397 review of the best scientific and commercial data available, it is NMFS’ Biological Opinion that discharges of 5398 pesticide pollutants that would be authorized by the Pesticide General Permit are, likely to result in the destruction

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5399 or adverse modification of designated critical habitat for California coastal Chinook salmon, Central Valley spring- 5400 run Chinook salmon, Lower Columbia River Chinook salmon, Upper Columbia River spring-run Chinook salmon, 5401 Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, 5402 Snake River spring/summer-run Chinook salmon, Upper Willamette River Chinook salmon, Columbia River chum 5403 salmon, Hood Canal summer-run chum salmon, Central California Coast coho salmon, Lower Columbia River coho 5404 salmon, Southern Oregon and Northern California Coast coho salmon, Oregon Coast coho salmon, Southern green 5405 sturgeon, Lake Ozette sockeye salmon, Snake River sockeye salmon, Central California Coast steelhead, California 5406 Central Valley steelhead, Lower Columbia River steelhead, Middle Columbia River steelhead, Northern California 5407 steelhead, Snake River steelhead, South-Central California Coast steelhead, Southern California coast steelhead, 5408 Upper Columbia river steelhead and Upper Willamette River steelhead, Cook Inlet beluga whale and killer whale 5409 (southern resident).

5410 Reasonable and Prudent Alternative

5411 This Opinion has concluded that EPA’s issuance of the PGP is likely to jeopardize the continued existence of 33 5412 species under NMFS’ jurisdiction and result in the destruction or adverse modification of critical habitat that has 5413 been designated for 29 species. The clause “jeopardize the continued existence of” means “to engage in an action 5414 that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival 5415 and recovery of ESA listed species in the wild by reducing the reproduction, numbers or distribution of that species

5416 (50 CFR §402.02).

5417 NMFS reached this conclusion because as the general permit is currently structured, the EPA would not be likely to 5418 know where or when most of the discharges it intends to authorize would occur; if these discharges were resulting in 5419 exposures to pesticide pollutants in concentrations, durations or frequencies that would cause adverse effects to ESA 5420 listed species or designated critical habitat and would not be in a position to take measures to avoid those adverse 5421 effects; or whether the permittees were complying with the conditions of the permit designed to protect ESA listed 5422 species and designated critical habitat from being exposed.

5423 Because we have concluded that the proposed general permit fails to comply with the requirements of section 5424 7(a)(2) of the ESA, we have provided a Reasonable and Prudent Alternative (RPA) that would allow EPA to comply

5425 with the requirements of section 7(a)(2) of the ESA. Regulations implementing Section 7 of the Act (50 CFR 5426 402.02) define RPAs as alternative actions, identified during formal consultation, that: (1) can be implemented in a 5427 manner consistent with the intended purpose of the action; (2) can be implemented consistent with the scope of the 5428 action agency’s legal authority and jurisdiction; (3) are economically and technologically feasible; and (4) would, 5429 NMFS believes, avoid the likelihood of jeopardizing the continued existence of ESA listed species or resulting in 5430 the destruction or adverse modification of critical habitat. Because the general permit, for purposes of endangered or 5431 threatened species under NMFS’ jurisdiction, authorizes discharges in the District of Columbia, Idaho, 5432 Massachusetts and New Hampshire, all Indian lands and Federal lands in Delaware, Vermont and Washington State, 5433 the RPA described below applies only in those locations. In addition, this RPA is not applicable to discharges on 5434 Federal lands for which an existing consultation covers those discharges.

5435 The RPA is comprised of three required elements which must be implemented in their entirety to insure that the 5436 actions authorized by the general permit are not likely to jeopardize endangered or threatened species under the 5437 jurisdiction of NMFS or destroy or adversely modify critical habitat that has been designated for any of these

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5438 species.

5439 Because this Biological Opinion has concluded that the EPA’s proposed PGP is likely to jeopardize the continued 5440 existence of endangered species and threatened species under the jurisdiction of NMFS and is likely to result in the 5441 destruction or adverse modification of designated critical habitat, the EPA is required to notify the NMFS Office of 5442 Protected Resources of its final decision on implementation of the reasonable and prudent alternatives.

5443 The Reasonable and Prudent Alternative is as follows:

5444 RPA Element 1 5445 The EPA will, with the technical assistance of NMFS, and based on EPA’s FIFRA risk assessments and Registration 5446 Eligibility Decision documents, identify30 the discharges that are eligible for coverage under the general permit 5447 based on three conditions: 1) those discharges would not occur in the range of any endangered or threatened species 5448 under NMFS’ jurisdiction; 2) the pesticide pollutants that would be discharged are known not to cause adverse 5449 effects to endangered or threatened species under NMFS’ jurisdiction or to representative surrogate species, or; 3) 5450 the discharges of pesticide pollutants resulting from the maximum allowed pesticide use rates are not expected to 5451 result in pesticide pollutants in the water in peak concentrations that exceed the no observed adverse effect 5452 concentration/level for those species or for representative surrogate species. To determine whether the discharge is 5453 eligible under this criterion, the EPA must compare the Peak Estimated Environmental Concentrations (Peak EECs) 5454 for the maximum application rate for that pesticide use to the NOAECs or NOAELs for endangered or threatened 5455 species or for representative surrogate species as presented in EPA’s FIFRA risk assessments or Registration 5456 Eligibility Decision documents. In the absence of such data the EPA shall consult NMFS to determine the 5457 appropriate category.

5458 These discharges will be authorized under the existing terms of the permit and, in addition, all operators that make 5459 such discharges must employ the protective measures as described in the “Decision-Maker’s Responsibilities: For 5460 Decision-makers Required to Submit NOIs” section of the draft general permit (see p. 18 of this Opinion).

5461 Any discharge

5462 (a) That has not been identified as eligible, and;

5463 (b) Would occur within the range of endangered or listed species under NMFS’ jurisdiction,

5464 would not be authorized under the general permit unless the operator provides evidence sufficient to demonstrate to 5465 EPA, with the technical assistance and concurrence of NMFS, that:

5466 1. Any endangered or threatened species under NMFS’ jurisdiction will not be directly or indirectly exposed 5467 to pesticide pollutants produced by the discharge (e.g., the species will not occur in the discharge area when 5468 that time of year, the species will not be present in the hydrologic unit in which the discharge will occur, 5469 the species is not present because of the presence of the pest being controlled etc.), or;

30 These calculations are used as a screening tool to determine whether a discharge can be covered under the general permit without further evaluation, other than to verify the accuracy of the information provided. A determination that a particular pesticide product does not fall into this category is not a determination that the chemical is likely to jeopardize ESA listed species or destroy or adversely modify critical habitat designated for those species, but rather a determination that EPA has failed to insure that discharges of that pesticide under the general permit is not likely to jeopardize listed species or destroy or adversely modify critical habitat.

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5470 5471 2. The discharge for a specific pesticide use is below the maximum allowed pesticide use rate such that the 5472 discharge will result in peak pesticide pollutant concentrations in the water that are less than those known 5473 to exceed the no observed adverse effect concentration/level for those species or representative surrogate 5474 species, or; 5475 5476 3. After consultation (pursuant to section 7(a)(2) of the ESA) between EPA and the NMFS Regional, Branch, 5477 or Field Office with responsibility for the area in which the discharge occurs, that consultation concludes 5478 that the pest to be controlled poses a greater threat to the survival or recovery of the endangered or 5479 threatened species under NMFS’ jurisdiction than the pesticide pollutant (e.g. lampreys, snakehead, 5480 noxious vegetation causing anoxia etc.). The explanation and evidence that supports the conclusion that the 5481 pest to be controlled poses a greater threat to listed species should appear in any concurrence letter or 5482 Biological Opinion that would result from such a consultation (such a document would demonstrate that the 5483 operator has provided sufficient evidence that the pest that needs to be controlled poses a greater threat to 5484 the survival of endangered or threatened species under NMFS’ jurisdiction than the pesticide pollutant). If 5485 that consultation produces a Biological Opinion and an exemption to the ESA’s section 9 prohibitions is 5486 warranted, the Biological Opinion would contain an incidental take exemption for the pesticide discharge.

5487 If an operator fails to demonstrate that a discharge fulfills one or more of these criteria, that discharge shall not be 5488 authorized by the proposed PGP. If, however, EPA and NMFS agree that the operator has demonstrated that the 5489 discharge fulfills one or more of these criteria, that discharge will be covered under the existing terms of the permit 5490 and all such operators must employ the additional protective measures as described in the “Decision-Maker’s 5491 Responsibilities: For Decision-makers Required to Submit NOIs” part of section 2.2 of the draft permit (see p. 18 if 5492 this Opinion).

5493 If the operator seeks to make this demonstration for more than one discharge, the operator must identify each 5494 pesticide formulation to be used; application method; amount and rate for each discharge; the precise location of 5495 each discharge; and the approximate date of each discharge. EPA with the technical assistance of NMFS will 5496 determine which if any of the planned discharges are eligible under the general permit and which if any of the 5497 planned discharges must be covered by an individual permit to proceed.

5498 For any discharges determined to be eligible under the general permit, the operator must make the same 5499 demonstration if the operator wishes to change for any individual discharge the chemical used, the amount used, the 5500 location of discharge or the approximate date. The EPA, with the technical assistance and concurrence of NMFS 5501 shall make any determination as to eligibility to discharge under the general permit. NMFS will provide technical 5502 assistance and concurrence within 30 days from receipt of the operator’s materials from EPA. NMFS will provide its 5503 technical assistance its opinion, if any, on whether the discharge meets the eligibility criteria within 30 days from 5504 receipt of the operator’s materials from EPA. The operator can provide this demonstration to EPA prior to filing a 5505 NOI, at the time of filing a NOI, or subsequent to filing a NOI. However, discharge is not authorized until EPA 5506 agrees, with the technical assistance and concurrence of NMFS, that the discharge or group of discharges meets the 5507 eligibility criteria above.

5508 Rationale 5509 The EPA relied on the FIFRA registration process for the evaluation of the pesticide uses that will result in the 5510 pesticide pollutant discharges that it intends to authorize in the proposed general permit. However, the FIFRA 5511 registration process does not integrate the status and trends of ESA listed species and critical habitat, the

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5512 demographic and ecological status of the populations those species comprise or the environmental baseline for those 5513 species. The EPA risk assessment process compares estimated environmental concentrations to species toxicity 5514 endpoints derived from standard toxicity tests where individual standard test organisms are exposed to concentration 5515 gradients of pesticide active ingredients, formulated pesticide products or degradates in a laboratory setting over the 5516 course of that individual test organism’s lifespan.

5517 In addition, the FIFRA process does not necessarily prohibit the registration of pesticide uses that are expected to 5518 result in concentrations of pesticide pollutants in the water that can kill or adversely affect ESA listed species under 5519 NMFS’ jurisdiction, or representative surrogate species. When evaluating and registering pesticide uses, the EPA 5520 must weigh the economic and social costs of registering pesticides against the environmental costs and benefits 5521 these pesticide uses may pose. Under the ESA, the Services do not include such considerations in their species 5522 jeopardy, or destruction or adverse modification of designated critical habitat determinations.

5523 To determine estimated environmental concentrations of pesticide pollutants in the water, the EPA employs 5524 computer models to simulate the expected behavior of these pesticide pollutants in a “standard pond” receiving 5525 direct applications of pesticides or receiving pesticide pollutants from spray drift, runoff or transport through soil 5526 pore water from treated areas. The “standard pond” covers an area of 1 hectare, is 2 meters deep, has no flow and 5527 contains 20,000 cubic meters of water. However, endangered and threatened anadromous fish species under NMFS’ 5528 jurisdiction use a variety of river and stream habitats through their life cycle. These habitats have a broad range of 5529 geological features and flow regimes.

5530 In many cases, the estimated environmental concentrations as modeled by the “standard pond” scenario may 5531 represent a conservative estimate. However, backwater areas that are connected to streams, creeks, rivers or alcoves 5532 are also ESA listed anadromous fish habitats and may not adequately be represented by the “standard pond” 5533 scenario. Furthermore, the EPA uses an endpoint based on the concentration of pesticide pollutant required to kill 5534 test species to determine direct acute effects. As such, comparing a lethality derived endpoint to peak estimated 5535 environmental concentrations derived from a “standard pond” model may not capture all expected direct acute 5536 effects to the survival of ESA listed anadromous fish species.

5537 Similarly, EPA’s compares a growth and reproduction derived endpoint such as a life-cycle test derived no observed 5538 adverse effect concentration/level to a computer modeled 60 day rolling mean estimated environmental 5539 concentration. This approach may not capture all chronic, behavioral, reproductive or sublethal effects to those 5540 species. Anadromous species exhibit chemical avoidance and other behavioral responses that can influence 5541 migration. EPA’s comparison of a computer modeled 60 day rolling mean of estimated environmental pesticide 5542 pollutant concentrations to a no observed adverse effect concentration/level based on a life-cycle test may not 5543 capture such effects.

5544 Because of these reasons, the evaluation and registration of pesticide applications by the EPA under FIFRA and the 5545 authorization of discharges on, over or near waters of the United States pursuant to the general permit are not 5546 sufficient such that the EPA would know or be able to reliably estimate the consequences of the direct or indirect 5547 effects of the activities authorized by the general permit to ESA listed species or designated critical habitat under 5548 NMFS’ jurisdiction. This RPA element accounts for these insufficiencies by comparing the peak estimated 5549 environmental concentrations for a “standard pond” to the pesticide pollutant concentration value that is known to 5550 not cause observed adverse effects to ESA listed fish species under NMFS jurisdiction, or to representative surrogate 5551 species. By incorporating this element of the RPA, the proposed general permit would not result in any peak 5552 concentrations of pesticide pollutants in the water that would be expected cause adverse effects to endangered or 5553 threatened species under NMFS’ jurisdiction unless the pest being controlled poses a greater threat to the survival of

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5554 those species than would the exposure to that pesticide pollutant.

5555 By preventing direct adverse effects to ESA listed salmonid fish species under NMFS’ jurisdiction, unless the pest 5556 being controlled poses a greater threat to the survival of those species than would the exposure to that pesticide 5557 pollutant, this element of the RPA would prevent the salmonid fish prey base of southern resident killer whales and 5558 Cook Inlet beluga whales from becoming appreciably diminished by the activities authorized by the issuance of the 5559 proposed general permit. In addition, by requiring that all operators that make such discharges must employ the 5560 additional protective pesticide management measures such as applying pesticides only when the action threshold has 5561 been met and selecting pesticide applications that have less adverse effects on not target organisms (e.g. selecting 5562 larvicides as a preferred pesticide for mosquito or flying insect pest control), in addition to the technology based 5563 effluent limitations in the proposed general permit, the EPA can reduce the impacts of these applications to 5564 designated critical habitat for all ESA listed species. This reduction in environmental impacts, along with the limited 5565 spatial and temporal overlap of the proposed pesticide applications with the range of ESA listed species under 5566 NMFS’ jurisdiction and the targeted nature of those applications, will allow the EPA to insure that the actions it 5567 intends to authorize by the proposed general permit will not appreciably diminish the value of designated critical 5568 habitat for the survival or recovery of any endangered or threatened species fish under NMFS’ jurisdiction. 5569 Therefore, by implementing this element of the RPA, the EPA can insure that no designated critical habitat of any 5570 endangered or listed species under NMFS’ jurisdiction would be destroyed or adversely modified.

5571 RPA Element 2

5572 Any decision maker that meets the eligibility criteria for discharge under RPA Element 1 and plans to discharge 5573 pesticide pollutants into waters of the U.S. in the range of endangered or threatened species under NMFS’ 5574 jurisdiction must file a Notice of Intent (NOI) to discharge that identifies the pesticide product to be discharged, the 5575 planned quantity and rate of discharge, the number of planned discharges, and the category of that discharge as 5576 identified in the first element of the RPA. That decision maker must also file an annual report containing: 1) A 5577 description of treatment area, including location and size; 2) The approximate date of any discharge; 3) 5578 Identification of any waters of the U.S. to which pesticide pollutants are discharged; 4) The pesticide use pattern 5579 resulting in any discharge (i.e., mosquito and other flying insect pest control, aquatic weed and algae control, aquatic 5580 nuisance animal control, or forest canopy pest control); 5) Any target pest; 6) Contact information for the decision 5581 maker or any pesticide applicator, if different from the decision maker; 7) The total amount of each pesticide 5582 product applied for the reporting year by application method; 8) If applicable, an annual report of any adverse 5583 incidents as a result of any discharge; 9) If applicable, a description of any corrective action. The EPA must collect 5584 and summarize these reports and provide this summary to NMFS.

5585 Rationale 5586 Under the proposed general permit, only those decision makers who meet the eligibility requirements to submit an 5587 NOI would be required to notify the EPA if their discharge would expose any endangered or threatened species 5588 under NMFS’ jurisdiction to a pesticide pollutant. According to EPA estimates, only a small fraction of the total 5589 number of operators that would discharge within the range of endangered or threatened species under NMFS’ 5590 jurisdiction would be required to file such a notification. In addition, it is unlikely that those few decision makers 5591 that would be required to file these notifications would possess the ability or resources to make such determinations 5592 accurately. For these reasons, the EPA would not know if the majority of discharges it plans to authorize would 5593 expose endangered or threatened species under NMFS’ jurisdiction to the direct or indirect effects of the activities to 5594 be authorized by the proposed permit. Because of this, the EPA cannot reliably estimate the probable individual or 5595 cumulative effects of those activities to those species or to their designated critical habitat.

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5596 This RPA element addresses these insufficiencies by requiring all operators that intend to discharge into waters of 5597 the U.S. within the range of ESA listed species under NMFS’ jurisdiction to file an NOI that identifies where such 5598 discharges would occur and of which use patterns these discharges would consist. By implementing this RPA 5599 element, the EPA would know or be able to reliably estimate whether or to what degree ESA listed species under 5600 NMFS’ jurisdiction would be likely to be exposed to the direct or indirect effects of the activities to be authorized by 5601 the general permit.

5602 This RPA element also allows the EPA to reliably estimate the probable individual or cumulative effects to 5603 endangered or threatened species under NMFS’ jurisdiction and designated critical habitat by requiring that all 5604 operators that discharge into waters of the U.S. within the range of ESA listed species under NMFS’ jurisdiction file 5605 an annual report that includes information on total the amount of each pesticide product applied, any adverse 5606 incidents that occurred as a result of any such discharges and a description of any corrective action that was 5607 undertaken. This gives the EPA the ability to make corrective actions or to implement preventive or corrective 5608 measures based on this information received on those probable individual or cumulative effects. This also allows the

5609 EPA to know whether reinitiation of formal consultation is required as provided in 50 CFR 402.16.

5610 RPA Element 3

5611 In addition to the current monitoring requirements in the general permit, within two years of the issuance of the 5612 general permit the EPA shall develop and implement a NMFS-approved monitoring plan for the presence of 5613 pesticide pollutants in habitats where endangered or threatened species, or designated critical habitat occur to insure 5614 that the pesticide pollutant discharges it authorizes under the general permit do not exceed any Water Quality 5615 Criterion or occur in concentrations that are likely to result in adverse effects to endangered or threatened species or 5616 to designated critical habitat under NMFS’ jurisdiction.

5617 The plan shall include sampling and analyses for the presence of pesticide pollutants in representative habitats where 5618 and when endangered or threatened species, or designated critical habitat may be exposed to discharges of pesticide 5619 pollutants as authorized by the proposed general permit, including non-target waters of the U.S. into which these 5620 discharges may flow. The report shall be submitted to NMFS OPR and will summarize annual monitoring data and 5621 provide all raw data.

5622 Rationale 5623 The majority of operators who are eligible for coverage under the proposed general permit would not monitor water 5624 quality and would thus have no way of knowing whether a discharge has exceeded a water quality standard or 5625 resulted in any pesticide pollutant in the water in a toxic amount. As a result, the proposed general permit is not 5626 currently structured such that the EPA can continually identify, collect and analyze information that would indicate 5627 whether authorized discharges of pesticide pollutants on, over or near waters of the U.S. may expose ESA listed 5628 species or designated critical habitat under NMFS’ jurisdiction to pesticide pollutants at concentrations, durations or 5629 frequencies that are known or suspected to produce physical, physiological, behavioral or ecological responses that 5630 have potential individual or cumulative adverse consequences for individual organisms or constituent elements of 5631 critical habitat.

5632 In addition, there is a greater level of non-compliance and lower rate of enforcement actions with general permits. 5633 There is also a low rate of inspections for minor dischargers, such as those to be authorized by the proposed PGP. 5634 Because of the lack of water quality monitoring requirements in the proposed general permit, the EPA is not likely 5635 to know or be able to determine reliably whether or to what degree operators are complying with the conditions, 5636 restrictions or mitigation measures the proposed general permit requires when they discharge pesticide pollutants on,

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5637 over or near waters of the U.S.

5638 To address these insufficiencies, this element of the RPA requires that the EPA monitor for any exceedance of any 5639 water quality standard or for any pesticide pollutant occurring in excess of levels known not to have adverse effects 5640 to ESA listed species under NMFS’ jurisdiction or to representative surrogate species. By monitoring for such 5641 exceedances in representative habitats where and when endangered or threatened species, or designated critical 5642 habitat may be exposed to these discharges, the EPA will be able to know or reliably determine whether or to what 5643 degree operators are complying with the conditions, restrictions or mitigation measures the proposed general permit 5644 requires. As a result, the EPA can know whether those discharges are exposing ESA listed species or designated 5645 critical habitat under NMFS’ jurisdiction to pesticide pollutants at concentrations, durations or frequencies that are 5646 known or suspected to produce potential individual or cumulative adverse consequences. The EPA can then make 5647 corrective or enforcement actions as necessary. This also allows the EPA to know whether reinitiation of formal

5648 consultation is required as provided in 50 CFR 402.16.

5649 By assuring that no activities authorized by the general permit would result in any peak concentrations of pesticide 5650 pollutants in the water that would be expected cause adverse effects to endangered or threatened species under 5651 NMFS’ jurisdiction unless the pest being controlled poses a greater threat to the survival of those species than would 5652 the exposure to that pesticide pollutant as required by the first element of the RPA, and if all operators who 5653 discharge into waters of the U.S. within the range of ESA listed species under NMFS’ jurisdiction are identified as 5654 required in the second element of the RPA, and if all of those operators comply with the terms of the general permit 5655 as would be assured by the third element of the RPA, the direct or indirect effects of the activities to be authorized 5656 by that general permit should not cause direct adverse effects to any of those species unless the pest being controlled 5657 were to pose a greater threat to the survival of those species than would the exposure to that pesticide pollutant. 5658 Thus, by implementing these combined elements of the RPA, the EPA can insure that the actions it proposes to 5659 authorize by the general permit will not jeopardize the continued existence of any endangered or threatened species 5660 under NMFS’ jurisdiction or result in the destruction or adverse modification of any designated critical habitat of 5661 those species

5662 Incidental Take Statement

5663 Section 9 of the ESA and Federal regulations pursuant to section 4(d) of the ESA prohibit the take of endangered 5664 and threatened species, respectively, without special exemption. Take is defined as to: “harass, harm, pursue, hunt, 5665 shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” Harm is further defined by 5666 NMFS to include significant habitat modification or degradation that results in death or injury to ESA listed species 5667 by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. Incidental take is 5668 defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under 5669 the terms of Section 7(b)(4) and Section 7(o)(2), taking that is incidental to and not intended as part of the agency 5670 action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the 5671 terms and conditions of this Incidental Take Statement.

5672 Amount or Extent of Take

5673 This programmatic consultation focuses on whether the EPA has insured that their issuance of the general permit is 5674 not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction

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5675 or adverse modification of critical habitat of such species. It does not address specific actions that the general permit 5676 would authorize. The RPAs are designed to reduce or in most cases prevent the exposure of endangered or 5677 threatened species under NMFS’ jurisdiction to pesticide pollutants as a result of activities authorized by the general 5678 permit. However, it is possible that such exposures may still take place as a result of those activities, and it is 5679 possible that these exposures may cause incidental take. In particular, NMFS anticipates that incidental take could 5680 occur in those situations in which EPA has determined, with the technical assistance of NMFS, that a discharge of a 5681 pesticide that adversely affects listed species is preferable to exposing the species to the pest. As a result, incidental 5682 take of endangered or threatened species is possible over the duration of the proposed general permit.

5683 Because of the large scale and broad scope of the proposed action, even the best scientific and commercial data 5684 available are not sufficient to enable NMFS to estimate the specific amount of potential incidental take associated 5685 with the action. Therefore, NMFS identifies, as a surrogate for the allowable extent of take, the ability of this action 5686 to proceed without any adverse incident as defined in Appendix A of the PGP (see Appendix B) to fish of any 5687 species, that is attributed to any pesticide pollutant discharged in accordance with the general permit in the range of 5688 listed endangered or threatened species under NMFS’ jurisdiction. An adverse incident to fish is considered 5689 attributable to a pesticide pollutant discharged in accordance with the general permit if that pesticide pollutant is 5690 known to have been discharged prior to and near or upstream of the adverse incident and if the pesticide pollutant is 5691 detected in water samples or in tissue samples of affected fish.

5692 Reasonable and Prudent Measures

5693 The measures to avoid or minimize take described below are non-discretionary and must be undertaken by the EPA 5694 so that they become a binding condition of any applicant, as appropriate, for the exemption in section 7(o)(2) to 5695 apply. The EPA has a continuing duty to regulate the activity covered by this incidental take statement. The 5696 protective coverage of section 7(o)(2) may lapse f the EPA: (1) fails to assume and implement the terms and 5697 conditions, or; (2) fails to require any applicant to adhere to the terms and conditions of the incidental take statement 5698 through enforceable terms that are added to the general permit. In order to monitor the impact of incidental take, the 5699 EPA must report the progress of the action and its impact on the species to NMFS OPR as specified in the incidental 5700 take statement (50 CFR§402.14(i)(3)). The reporting requirements will be established in accordance with 50 CFR 5701 220.45 and 228.5.

5702 To satisfy its obligations pursuant to section 7(a)(2) of the ESA, the EPA must: (1) monitor the direct, indirect, and 5703 cumulative impacts of the activities authorized by the issuance of the general permit, and; (2) evaluate the direct, 5704 indirect, or cumulative impacts of the activities authorized by the issuance of the general permit and the 5705 consequences of those effects on endangered and threatened species under NMFS’ jurisdiction. The purpose of the 5706 monitoring is to provide data for the EPA to use to identify necessary modifications to the general permit in order to 5707 reduce exposures to endangered and threatened species under NMFS’ jurisdiction. NMFS believes all measures 5708 described as part of the proposed action, together with use of the Reasonable and Prudent Measures and Terms and 5709 Conditions described below, are necessary and appropriate to minimize the likelihood of incidental take of ESA 5710 listed species due to implementation of the proposed action.

5711 5712 The EPA shall: 5713 1. Monitor any incidental take or surrogate measure of take that occurs from the action, and; 5714 2. Report annually to NMFS OPR on the monitoring results from the previous year.

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5715

5716 Terms and Conditions

5717 To be exempt from the prohibitions of section 9 of the ESA, the EPA must comply with the following condition. 5718 This condition implements the reasonable and prudent measures described above. This condition is non- 5719 discretionary.

5720 The EPA shall include the following instructions requiring reporting of adverse incidents to fish in the general 5721 permit:

5722 “NOTICE: Incidents where fish appear injured or killed as a result of discharges into Waters of 5723 the U.S. from pesticide applications as authorized by this permit in the range of endangered or 5724 threatened species under the jurisdiction of the National Marine Fisheries Service shall be reported 5725 to the National Marine Fisheries Service, Office of Protected Resources at (301) 713.1401 and 5726 EPA at (202) 564.0748. The finder should leave the fish alone, make note of any circumstances 5727 likely causing the death or injury, note the location and number of fish involved and, if possible, 5728 take photographs. Adult fish should not be disturbed unless circumstances arise where an adult 5729 fish is obviously injured or killed by pesticide exposure, or some unnatural cause. The finder may 5730 be asked to carry out instructions provided by NMFS OPR to collect specimens or take other 5731 measures to ensure that evidence intrinsic to the specimen is preserved.” 5732

5733 Conservation Recommendations

5734 Section 7(a)(1) of the Act directs Federal agencies to utilize their authorities to further the purposes of the Act by 5735 carrying out conservation programs for the benefit of endangered and threatened species. Conservation 5736 recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on 5737 ESA listed species or critical habitat, to help implement recovery plans, or to develop information.

5738 The following conservation recommendations would provide information for future consultation involving EPA’s 5739 approval of State water quality standards:

5740 1. The EPA should work with States with the delegated authority to implement the NPDES program to 5741 develop their permits in a manner that is protective of endangered or threatened species or designated 5742 critical habitat and to create monitoring programs that evaluate whether these permits are successful in 5743 accomplishing that goal.

5744 In order to keep NMFS’ Endangered Species Division informed of actions minimizing or avoiding adverse effects or 5745 benefiting ESA listed species or their habitats, the U.S. Environmental Protection Agency should notify the 5746 Endangered Species Division of any conservation recommendations they implement in their final action.

5747

162

5748 Reinitiation Notice

5749 This concludes formal consultation on the U.S. Environmental Protection Agency’s issuance of the Pesticides

5750 General Permit. As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary 5751 Federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) new 5752 information reveals effects of the agency action that may affect endangered or threatened species under NMFS’ 5753 jurisdiction or to designated critical habitat in a manner or to an extent not considered in this Opinion; (2) the agency 5754 action is subsequently modified in a manner that causes an effect to the ESA listed species or critical habitat not 5755 considered in this Opinion; (3) a new species is listed or critical habitat designated that may be affected by the 5756 action; or (4) the amount or extent to take specified in the incidental take statement is exceeded. In instances where 5757 the amount or extent of take specified in the incidental take statement is exceeded, the U.S. Environmental 5758 Protection Agency must immediately request reinitiation of Section 7 consultation.

5759

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6617 Ware, S., Frost, C., Doerr, P.D., 1993. Southern mixed hardwood forest: the former longleaf pine forest. 6618 Biodiversity of the southeastern United States: Lowland terrestrial communities, 447-493. 6619 WDF, 1993. Washington Department of Fisheries 1992 Washington State salmon and steelhead stock inventory 6620 (SASSI). Washington Department of Fisheries, Washington Department of Wildlife, Western Washington Treaty 6621 Indian Tribes, Olympia, Washington. 6622 WDFW, ODFW, 2001. Washington and Oregon eulachon management plan. Washington Department of Fish and 6623 Wildlife and Oregon Department of Fish and Wildlife. 6624 Webb, M.A., Feist, H.G.W., Fitzpatrick, M.S., Foster, E.P., Schreck, C.B., Plumlee, M., Wong, C., Gundersen, D.T., 6625 2006. Mercury concentrations in gonad, liver, and muscle of white sturgeon Acipenser transmontanus in the Lower 6626 Columbia River. Archives of Environmental Contamination and Toxicology 50, 443–451. 6627 Wedemeyer, G.A., Saunders, R.L., Clarke, W.C., 1980. Environmental factors affecting smoltification and early 6628 marine survival of anadromous salmonids. Mar.Fish.Rev., 1–14. 6629 Williams, J.E., Haak, A.L., Neville, H.M., Colyer, W.T., 2009. Potential consequences of climate change to 6630 persistence of cutthroat trout populations. North American Journal of Fisheries Management 29. 6631 Williams, R., Bain, D.E., Ford, J.K.B., Trites, A.W., 2002a. Behavioural responses of male killer whales to a 6632 ‘leapfrogging’ vessel. Journal of Cetacean Research, and Management 4, 305-310. 6633 Williams, R., Trites, A.W., Bain, D.E., 2002b. Behavioural responses of killer whales (Orcinus orca) to whale- 6634 watching boats: opportunistic observations and experimental approaches. Journal of Zoology 256, 255-270. 6635 Willson, M.F., Armstrong, R.H., Hermans, M.C., Koski, K., 2006. Eulachon: a review of biology and an annotated 6636 bibliography. Auke Bay Laboratory, Alaska Fisheries Science Center, Juneau, Alaska. 6637 Wing, B.L., 1977. Salmon food observations. Pages 20-27 in: Southeast Alaska troll log book program: 1976 6638 scientific report. Alaska Sea Grant Report 77-11. 6639 Wirgin, I., Grunwald, C., Carlson, E., Stabile, J., Peterson, D.L., Waldman, J., 2005. Range-wide population 6640 structure of shortnose sturgeon Acipenser brevirostrum based on sequence analysis of the mitochondrial DNA 6641 control region. Estuaries 28, 16. 6642 Wright, S., 1999. Petition to list eulachon Thaleichthys pacificus as threatened or endangered under the Endangered 6643 Species Act. 6644 Wydoski, R., Whitney, R., 1979. Inland fishes of Washington. University of Washington Press. 6645 Yang, M.S., Nelson, M.W., 1999. Food habits of the commercially important groundfishes in the Gulf of Alaska in 6646 1990, 1993, and 1996. NOAA. 6647 Ylitalo, G.M., Myers, M., Stewart, B.S., Yochem, P.K., Braun, R., Kashinsky, L., Boyd, D., Antonelis, G.A., 6648 Atkinson, S., Aguirre, A.A., Krahn, M.M., 2008. Organochlorine contaminants in endangered Hawaiian monk seals 6649 from four subpopulations in the Northwestern Hawaiian Islands. Marine Pollution Bulletin 56, 231-244. 6650 Yoshiyama, R.M., Gerstung, E.R., Fisher, F.W., Moyle, P.B., 1996. Historical and present distribution of chinook 6651 salmon in the Central Valley drainage of California. Department of Wildlife, Fish, and Conservation Biology, 6652 University of California, Davis California. 6653 Zabel, R.W., Achord, S., 2004. Relating size of individuals to juvenile survival within and among closely-related 6654 populations of chinook salmon. Ecology 85, 795-806. 6655 Zabel, R.W., Williams, J.G., 2002. Selective mortality in Chinook salmon: What is the role of human disturbance? 6656 Ecological Applications 12, 173-183. 6657 Zimmerman, C.E., Edwards, G.W., Perry, K., 2009. Maternal Origin and Migratory History of Steelhead and 6658 Rainbow Trout Captured in Rivers of the Central Valley, California. Transactions of the American Fisheries Society 6659 138, 280-291. 6660 Zinkl, J.G., Shea, P.J., Nakamoto, R.J., Callman, J., 1987. Brain cholinesterase activity of rainbow trout poisoned by 6661 carbaryl. Bulletin of environmental contamination and toxicology 38, 29-35.

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6662 6663 6664

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6665 APPENDIX A: List of Pesticides Pollutants Authorized by the PGP

6666

6667 EPA States that: “[this] list of pesticides provided to you [NMFS] in the 6668 biological evaluation generated from OPP's [Office of Pesticide Programs] 6669 database is the best information we have available. 6670

All Use Categories

Active Ingredient Count: 171

(**)-Trifluoro-4-nitro-m-cresol (**) = alpha,alpha,alpha-

(+-)-2-(4,5-Dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1H-imida

(R)-2-(2,4-Dichlorophenoxy)propanoic acid, dimethylamine salt

1-(4,6-dimethoxypyrimidin-2-yl)-3-(2-ethylsulfonylimidazo{1,2

1,3-Dibromo-5,5-dimethylhydantoin

1-Bromo-1-(bromomethyl)-1,3-propanedicarbonitrile

1-Bromo-3-chloro-5,5-dimethylhydantoin

2-(1-Methyl-2-(4-phenoxyphenoxy)ethoxy)pyridine

2,2-Dibromo-3-nitrilopropionamide

2,4-Dinitro-N3,N3-dipropyl-6-(trifluoromethyl)-1,3-benzenedia

2,4-Dodecadienoic acid, 11-methoxy-3,7,11-trimethyl-, 1-met

2-4,D

2-Ethylhexyl (R)-2-(2,4-dichlorophenoxy)propionate

2-Ethylhexyl 2-(2,4-dichlorophenoxy)propionate

Acephate

Acetic acid, (2,4-dichlorophenoxy)-, 2-ethylhexyl ester

Acrolein

Alkyl* dimethyl benzyl ammonium chloride *(50%C14, 40%C12, 10

Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 30%C16, 5%

Alkyl* dimethyl ethylbenzyl ammonium chloride *(68%C12, 32%C1

Antimycin A

185

Asulam, sodium salt

Atrazine

Bacillus thuringiensis subspecies israelensis Strain BMP

Bacillus licheniformis SB3086

Bacillus sphaericus

Bacillus thuringiensis subspecies israelensis

Bacillus thuringiensis subspecies aizawai

Bacillus thuringiensis subspecies kurstaki

Bacillus thuringiensis subspecies tenebrionis

Benzenesulfonamide, 2-(2,2-difluoroethoxy)-N-(5,8-dimethoxy[1

Bifenthrin

Bromacil

Bromacil, lithium salt

Bromine chloride

Butoxyethyl 2,4-dichlorophenoxyacetate

Butoxyethyl triclopyr

Calcium hypochlorite

Carbaryl

Carfentrazone-ethyl

CAS Reg. No. 566191-87-5

CAS Reg. No. 566191-89-7

CAS Reg. No. 68038-71-1

Chlorflurenol, methyl ester

Chlorine

Chlorine dioxide

Chlorophacinone

Chlorpyrifos

Chlorsulfuron

Cis-7,8-Epoxy-2-methyloctadecane

186

Clopyralid

Clopyralid, monoethanolamine salt

Clopyralid, triethanolamine

Copper as metallic (in the form of chelates of copper citrate)

Copper carbonate, basic

Copper ethanolamine complex

Copper ethylenediamine complex

Copper sulfate pentahydrate

Copper triethanolamine complex

Cube Resins other than rotenone

Deltamethrin

Diazinon

Dicamba

Dicamba, diglycoamine salt

Dicamba, dimethylamine salt

Dicamba, sodium salt

Dichlorvos

Didecyl dimethyl ammonium chloride

Diethanolamine (2,4-dichlorophenoxy)acetate

Difethialone

Diflubenzuron

Dimethoate

Dimethylamine (R)-2-(2-methyl-4-chlorophenoxy)propionate

Dimethylamine 2,4-dichlorophenoxyacetate

Diphacinone

Diquat dibromide

Diuron

Dodecylguanidine hydrochloride

D-Phenothrin

187

Endothall, dipotassium salt

Endothall, mono(N,N-dimethylcocoamine) salt

Erioglaucine

Espesol 3A

Ethyl 2-chloro-5-[4-chloro-(5-difluoromethoxy)-1-methyl-1H-py

Etofenprox

Fluridone

Fluroxypyr 1-methylheptyl ester

Fosamine ammonium

Glufosinate-ammonium

Glutaral

Glycine, N-(phosphonomethyl)- potassium salt

Glycine, N-(phosphonomethyl)-, diammonium salt

Glyphosate

Glyphosate, ammonium salt

Glyphosate, isopropylamine salt

Hexazinone

Hydrogen peroxide

Imazapic

Imazapic-ammonium

Imazapyr

Imazapyr, isopropylamine salt

Imazaquin, monoammonium salt

Imidacloprid

Isooctyl 2-(2,4-dichlorophenoxy)propionate

Isopropylamine 2,4-dichlorophenoxyacetate

Lagenidium giganteum, mycelium or oospores

Malathion

MCPA, dimethylamine salt

188

Mecoprop (and salts and esters)

Methanone, [3-(4,5-dihydro-3-isoxazolyl)-2-methyl-4-(methylsu

Methoprene

Methoxychlor

Methyl 2,7-dichlorohydroxyfluorene-9-carboxylate

Methyl 9-hydroxyfluorene-9-carboxylate

Metsulfuron-methyl

Mineral oil

Mineral oil - includes paraffin oil from 063503

Mono-molecular surface film

Monosodium acid methanearsonate

Naled

Niclosamide

N-Octyl bicycloheptene dicarboximide

Nonanoic acid

Oryzalin

Oxyfluorfen

Pendimethalin

Permethrin

Permethrin, mixed cis,trans

Peroxyacetic acid

Petroleum distillate

Phenol, 4-nitro-3-(trifluoromethyl)

Phenothrin

Picloram, triisopropanolamine salt

Piperonyl butoxide

POE isooctadecanol

Poly(oxyethylene(dimethyliminio)ethylene(dimethyliminio)ethyl

Polyhedral inclusion bodies of gypsy moth nucleopolyhedrosis virus

189

Prallethrin

Prometon

Pyrethrins

Resmethrin

Rimsulfuron

Rotenone

Saccharopolyspora spinosa fermentation product containing Spi

Saflufenacil

Sodium 2,4-dichlorophenoxyacetate

Sodium bromide

Sodium chlorate

Sodium dichloroisocyanurate dihydrate

Sodium dichloro-s-triazinetrione

Sodium hypochlorite

Sodium metaborate (NaBO2)

Sodium percarbonate

Spinosad

Sulfentrazone

Sulfometuron methyl

Sumithrin

Tartrazine

Tau-fluvalinate

Tebufenozide

Tebuthiuron

Temephos

Tetrakis(hydroxymethyl)phosphonium sulphate (THPS)

Trichlorfon

Trichloro-s-triazinetrione

Triclopyr

190

Triclorfon

Triethylamine triclopyr

Triisopropanolamine 2,4-dichlorophenoxyacetate

Zinc phosphide (Zn3P2)

Zinc sulfate monohydrate

6671

6672

191

6673 APPENDIX B: Definition of Adverse Incidents in the PGP

6674

6675 From the Draft PGP Appendix A:

6676 Adverse Incident – means an unusual or unexpected incident that an Operator has observed upon inspection or of 6677 which the Operator otherwise become aware, in which:

6678 (1) There is evidence that a person or non-target organism has likely been exposed to a pesticide residue, and

6679 (2) The person or non-target organism suffered a toxic or adverse effect. The phrase toxic or adverse effects 6680 includes effects that occur within waters of the United States on non-target plants, fish or wildlife that are unusual or 6681 unexpected (e.g., effects are to organisms not otherwise described on the pesticide product label or otherwise not 6682 expected to be present) as a result of exposure to a pesticide residue, and may include:

6683  Distressed or dead juvenile and small fishes

6684  Washed up or floating fish

6685  Fish swimming abnormally or erratically

6686  Fish lying lethargically at water surface or in shallow water

6687  Fish that are listless or nonresponsive to disturbance

6688  Stunting, wilting, or desiccation of non-target submerged or emergent aquatic plants

6689  Other dead or visibly distressed non-target aquatic organisms (amphibians, turtles, invertebrates, etc.)

6690 The phrase, toxic or adverse effects, also includes any adverse effects to humans (e.g., skin rashes) or 6691 domesticated animals that occur either from direct contact with or as a secondary effect from a discharge 6692 (e.g., sickness from consumption of plants or animals containing pesticides) to Waters of the United States 6693 that are temporally and spatially related to exposure to a pesticide residue (e.g., vomiting, lethargy).

192