Tuesday, September 28, 2010

Part V

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 226 Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To Designate Critical Habitat for Black Abalone; Proposed Rule

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DEPARTMENT OF COMMERCE 0648–AY62, by any one of the following We considered various alternatives to methods: the critical habitat designation for black National Oceanic and Atmospheric • Electronic Submissions: Submit all abalone. The alternative of not Administration electronic public comments via the designating critical habitat for black Federal eRulemaking Portal: http:// abalone would impose no economic, 50 CFR Part 226 www.regulations.gov. Follow the national security, or other relevant [Docket No. 100127045–0120–01] instructions for submitting comments. impacts, but would not provide any • Fax: 1–562–980–4027, Attention: conservation benefit to the species. This RIN 0648–AY62 Melissa Neuman. alternative was considered and rejected • Mail: Submit written information to because such an approach does not meet Endangered and Threatened Wildlife Chief, Protected Resources Division, the legal requirements of the ESA and and Plants: Proposed Rulemaking To Southwest Region, National Marine would not provide for the conservation Designate Critical Habitat for Black Fisheries Service, 501 West Ocean Blvd, of black abalone. The alternative of Abalone Suite 4200, Long Beach, CA 90802– designating all of the areas considered AGENCY: National Marine Fisheries 4213. for designation (i.e., no areas excluded) Service (NMFS), National Oceanic and Instructions: All comments received was also considered and rejected Atmospheric Administration (NOAA), are a part of the public record and will because, for one area, the economic Commerce. generally be posted to http:// benefits of exclusion outweighed the ACTION: Proposed rule; request for www.regulations.gov without change. benefits of designation, and NMFS did comments. All Personal Identifying Information (for not determine that exclusion of this area example, name, address, etc.) would significantly impede SUMMARY: We, the National Marine voluntarily submitted by the commenter conservation of the species or result in Fisheries Service (NMFS), propose to may be publicly accessible. Do not extinction of the species. The total designate approximately 390 square submit Confidential Business estimated annualized economic impact kilometers of critical habitat for the Information or otherwise sensitive or associated with the designation of all of endangered black abalone, pursuant to protected information. NMFS will the areas considered would be $595,900 section 4 of the Endangered Species Act accept anonymous comments (please to $158,967,500 (discounted at 7 (ESA). Specific areas proposed for enter N/A in the required fields if you percent) or $562,600 to $144,410,200 designation include rocky habitats from wish to remain anonymous). (discounted at 3 percent). the mean higher high water (MHHW) Attachments to electronic comments An alternative to designating critical line to a depth of 6 meters (m) within will be accepted in Microsoft Word, habitat within all of the areas the following areas on the California Excel, WordPerfect, or PDF file formats considered for designation is the coast: Del Mar Landing Ecological only. designation of critical habitat within a Reserve to Point Bonita; from the Reference materials and supporting subset of these areas. Under section southern point at the mouth of San documents regarding this proposed 4(b)(2) of the ESA, NMFS must consider Francisco Bay to Natural Bridges State designation can be obtained via the the economic impacts, impacts to Beach; from Pacific Grove to Cayucos; Internet at: http://swr.nmfs.noaa.gov/, national security, and other relevant from Montan˜ a de Oro State Park to just the Federal eRulemaking Portal at: impacts of designating any particular south of Government Point; Palos http://www.regulations.gov, or by area as critical habitat. NMFS has the Verdes Peninsula from the Palos submitting a request to the Assistant discretion to exclude an area from Verdes/Torrance border to Los Angeles Regional Administrator, Protected designation as critical habitat if the Harbor; the Farallon Islands; An˜ o Nuevo Resources Division, Southwest Region, benefits of exclusion (i.e., the impacts Island; San Miguel Island; Santa Rosa NMFS, 501 West Ocean Blvd., Suite that would be avoided if an area were Island; Santa Cruz Island; Anacapa 4200, Long Beach, CA 90802–4213. excluded from the designation) Island; San Nicolas Island; Santa FOR FURTHER INFORMATION CONTACT: outweigh the benefits of designation Barbara Island; Catalina Island; and San Melissa Neuman, NMFS, Southwest (i.e., the conservation benefits to black Clemente Island. We propose to exclude Region (562) 980–4115, or Marta abalone if an area were designated), so the following area from designation Nammack, NMFS, Office of Protected long as exclusion of the area will not because the economic benefits of Resources (301) 713–1401. result in extinction of the species. exclusion outweigh the benefits of SUPPLEMENTARY INFORMATION: Exclusion under section 4(b)(2) of the inclusion, and exclusion will not result ESA of one or more of the areas in the extinction of the species: rocky Background considered for designation would habitats within the MHHW line to a On January 14, 2009, we determined reduce the total impacts of designation. depth of 6 m from Corona Del Mar State that the black abalone (Haliotis The determination of which units to Beach to Dana Point, California. cracherodii) is in danger of extinction exclude depends on NMFS’ ESA section DATES: Comments on this proposed rule throughout all or a significant portion of 4(b)(2) analysis, which is conducted for to designate critical habitat must be its range and listed the species as each area and described in detail in the received by no later than 5 p.m. Pacific endangered under the ESA (74 FR draft ESA 4(b)(2) report (NMFS, 2010b). Standard Time on November 29, 2010. 1937). Under the ESA, we are Under the preferred alternative we A public hearing will be held promptly responsible for designating critical propose to exclude one of the 20 areas if any person so requests by November habitat for all endangered and considered. The total estimated 12, 2010. Notice of the date, location, threatened species (16 U.S.C. 1533). economic impact associated with this and time of any such hearing will be This rule describes the proposed critical preferred alternative is $582,500 to published in the Federal Register not habitat designation, including $155,851,400 (discounted at 7 percent) less than 15 days before the hearing is supporting information on black or $551,800 to $141,300,500 (discounted held. abalone biology, distribution, and at 3 percent). We determined that the ADDRESSES: You may submit comments habitat use, and the methods used to exclusion of this one area would not on the proposed rule, identified by RIN develop the proposed designation. significantly impede the conservation of

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black abalone nor result in extinction of events; (3) gene flow among island observations) studies of movement in the species. We selected this as the populations is relatively greater than black abalone suggest that smaller preferred alternative because it results between island and mainland abalone (<65 mm) move more frequently in a critical habitat designation that populations; and (4) the overall than larger abalone, movement is more provides for the conservation of black connectivity among black abalone frequent during night hours compared abalone while reducing the economic populations is low and likely reflects to daylight hours, and larger abalone impacts. This alternative also meets the limited larval dispersal and a low may remain in the same location for requirements under the ESA and our degree of exchange among populations. many years. joint NMFS–U.S. Fish and Wildlife Habitat Diet Service (USFWS) regulations concerning critical habitat. Black abalone generally inhabit Larvae are lecithotrophic (i.e., receive coastal and offshore island intertidal nourishment via an egg yolk) and Black Abalone Natural History habitats on exposed rocky shores where apparently do not actively feed during General Description bedrock provides deep, protective their planktonic life stage. From the crevice shelter (Leighton, 2005). These time of post-larval metamorphosis to a Black abalone (Haliotis cracherodii, complex surfaces with cracks and size of about 20 mm, black abalone are Leach, 1814) are shallow-living marine crevices in upper and middle intertidal highly cryptic, occurring primarily on gastropods with smooth, circular, and zones may be crucial recruitment the undersides of large boulders or in black to slate blue colored shells that habitat and appear to be important for deep narrow crevices in solid rocky have five to nine open respiratory pores adult survival as well (Leighton, 1959; substrata. In such locations the primary sitting flush with the shell’s surface. Leighton and Boolootian, 1963; Douros, food sources are thought to be microbial Typically, the shell’s interior is white 1985, 1987; Miller and Lawrenz-Miller, and possibly diatom films (Leighton, (Haaker et al., 1986), with a poorly 1993; VanBlaricom et al., 1993; Haaker 1959; Leighton and Boolootian, 1963; defined or no muscle scar (Howorth, et al., 1995). Black abalone range Bergen, 1971) and crustose coralline 1978). Adults attain a maximum shell vertically from the high intertidal zone algae. At roughly 20 mm black abalone length of approximately 20 cm to a depth of 6 m, with most animals move to more open locations, albeit still (throughout this notice we use the found in middle and lower intertidal relatively cryptic, gaining access to both maximum diameter of the elliptical zones. In highly exposed locations attached macrophytes and to pieces of shell as the index for individual body downwind of large offshore kelp beds, drift plants cast into the intertidal zone size). The muscular foot of the black the majority of abalone may be found in by waves and currents. As black abalone abalone allows the animal to clamp the high intertidal where drift kelp continue to grow, the most commonly tightly to rocky surfaces without being fragments, a principal food for black observed feeding method is entrapment dislodged by wave action. Locomotion abalone, tend to be concentrated by of drift plant fragments. Webber and is accomplished by an undulating breaking surf. Giese (1969), Bergen (1971), Hines and motion of the foot. A column of shell Pearse (1982), and Douros (1987) have Movement muscle attaches the body to the shell. confirmed the importance of large kelps The mantle and black epipodium, a Planktonic larval abalone movement in the diet of juvenile and adult black sensory structure and extension of the is determined primarily by patterns of abalone. The primary food species are foot which bears lobed tentacles of the water movement in nearshore habitats said to be giant kelp (Macrocystis same color (Cox, 1960), circle the foot near spawning sites. Larvae may be able pyrifera) and feather boa kelp (Egregia and extend beyond the shell of a healthy to influence movement to some degree menziesii) in southern California (i.e., black abalone. The internal organs are by adjusting their vertical position in south of Point Conception) habitats, and arranged around the foot and under the the water column, but to our knowledge, bull kelp (Nereocystis leutkeana) in shell. the ability of black abalone larvae to central and northern California habitats. move in this way has not been Historical and Current Distribution documented. Movement behavior of Reproduction Black abalone historically occurred postmetamorphic juvenile black abalone Black abalone reach reproductive from Crescent City, California, USA, to is likewise unknown. Leighton (1959) maturity between 3 and 7 years (Smith southern Baja California, Mexico and Leighton and Boolootian (1963) et al., 2003), have separate sexes, and (Geiger, 2004), but today the species’ indicate that black abalone larvae may are ‘‘broadcast’’ spawners. Gametes from constricted range occurs from Point settle and metamorphose in the upper both parents are shed into the sea, and Arena, California, USA, to Bahia intertidal zone, using crevices and fertilization is entirely external. Tortugas, Mexico, and it is rare north of depressions (including those formed by Resulting larvae are minute and San Francisco, California, USA (Morris abrasive action of other intertidal defenseless, receive no parental care or et al., 1980), and south of Punta mollusks) as habitat. Leighton and protection of any kind, and are subject Eugenia, Mexico (P. Raimondi, pers. Boolootian (1963) suggest that young to a broad array of physical and comm.). black abalone move lower in the biological sources of mortality. Species intertidal zone as they begin to grow, with a broadcast-spawning reproductive Population Structure occupying the undersides of large strategy are subject to strong selection Recent studies have evaluated boulders. To our knowledge there is no for maximum fecundity of both sexes. population structure in black abalone published information on direct Only through production of large (Hamm and Burton, 2000; Chambers et observations of movement behavior of numbers of gametes can broadcast al., 2006; Gruenthal and Burton, 2008) the smallest (<20 mm) juvenile black spawners overcome high mortality of using various methods. These studies abalone in the field. Qualitative gametes and larvae and survive across indicate: (1) Minimal gene flow among (Leighton, 2005; VanBlaricom, generations. It is not uncommon for populations; (2) black abalone unpublished observations) and broadcast-spawning marine species, a populations are composed quantitative (Bergen, 1971; Blecha et al., group including many taxa of fish and predominantly of closely related 1992; VanBlaricom and Ashworth, in invertebrates, to produce millions of individuals produced by local spawning preparation; Richards, unpublished eggs or sperm per individual per year.

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Broadcast spawners are also subject to 2000; Chambers et al., 2005; Chambers tissues (Gardner et al., 1995). other kinds of selection for certain traits et al., 2006; Gruenthal, 2007). Progressive signs of the disease include associated with reproduction, including A sequence of studies and discoveries pedal atrophy, diminished spatial and temporal synchrony in suggests that availability of crustose responsiveness to tactile stimuli, spawning and mechanisms that increase coralline algae in appropriate intertidal discoloration of the epipodium, and a probabilities for union of spawned habitats may be an important settlement loss of ability to maintain adhesion to gametes. cue for larval black abalone, and that the rocky substratum (Raimondi et al., presence of adult black abalone may 2002). While population-scale mortality Spawning Density facilitate larval settlement and rates due to WS may vary in space and As intertidal organisms on exposed metamorphosis because the activities time from near zero to high proportions rocky shores, black abalone typically and presence of the abalone promote the of local populations, the available release gametes into environments of maintenance of substantial substratum evidence suggests that the highest extreme turbulence. As a consequence, cover by crustose coralline algae (Morse disease-induced mortality events have eggs and sperm must be released from et al., 1979; Morse and Morse, 1984; followed periods of elevated sea surface adults in relatively close spatial and Douros, 1985; Trapido- Rosenthal and temperature (e.g., Raimondi et al., temporal proximity in order to have any Morse, 1986; Morse, 1990; Morse, 1992; 2002). Laboratory studies have chance of union and fertilization before Miner et al., 2006). Although crustose demonstrated that elevated water rapid dispersal and loss of opportunity. coralline algae are ubiquitous in rocky temperature, while not a direct cause of A central problem for conservation of benthic habitats along the west coast of WS, accelerates the mortality of black black abalone is the dramatic reduction North America, a mechanistic abalone carrying the pathogen that in densities over the past quarter understanding of processes that sustain causes the disease (Friedman et al., century in almost the entire geographic these algal populations has not been 1997). A recent study examined the range of the species. Reductions in established, to our knowledge. effects of elevated sea surface density are so extreme and widespread Growth and Longevity temperature on abalone at the individual level, and suggested that that considerable attention is now Available data on black abalone warming ocean temperatures are likely focused on assessment of critical growth suggest that young animals reach to have negative consequences on those density thresholds for successful maximum shell diameters of about 2 cm species associated with cooler water reproduction, recruitment, and in their first year, then grow at rates of temperatures and/or particularly population sustainability. Critical 1–2 cm per year for the next several susceptible to WS (Vilchis et al., 2005). density thresholds, below which years. Growth begins to slow at lengths Although there is no explicitly recruitment failure occurs, exist across a of about 10 cm, corresponding to an age broad taxonomic range of marine, range of 4–8 years. Beyond this point, documented causal link between the broadcast-spawning invertebrates (e.g., growth is less predictable, shell erosion persistence of WS and long-term climate sea urchins, sea cucumbers, hard clams, may become a significant factor, and change, patterns observed over the past scallops, giant clams, and geoduck size distributions for older animals may 3 decades suggest that progression of clams). Neuman et al. (in press) vary according to local conditions. ocean warming associated with large- reviewed recruitment patterns in three Growth and erosion of shells may come scale climate change may facilitate long-term data sets for black abalone in into equilibrium in older black abalone, further and more prolonged California, and in each case, recruitment such that growth can be viewed as vulnerability of black abalone to the failed when declining population facultatively determinant. Maximum effects of WS. The preponderance of ¥2 densities fell below 0.34 m . Densities recorded shell length for black abalone evidence indicates that WS continues to in most black abalone populations in was listed at 213 mm by Wagner and damage the size and sustainability of Southern California have fallen below Abbott (1990). Ault (1985) reported a black abalone populations on a large the densities noted. Recent evidence maximum shell length of black abalone scale, with little plausible basis for any suggests that disease-induced increases at 215 mm. Leighton (2005) indicated a predictions of reversal except in in the mortality rate of black abalone shell length of 216 mm reported by localized, spatially isolated cases. continue to move northward along the Owen (unpublished observation). Factors such as poaching, reduced mainland coast of California (e.g., Maximum longevity of black abalone is genetic diversity, ocean acidification, Raimondi et al., 2002; Miner et al., thought to be 20–30 years. non-anthropogenic predation (e.g., by 2006). Thus, the number and geographic octopuses, lobsters, sea stars, fishes, sea scope of populations with densities Mortality otters, and shorebirds) and competition falling below sustainable levels is The most important source of black (e.g., with sea urchins), food limitation, expected to increase. abalone mortality is the disease known environmental pollutants and toxins, Larval Dispersal, Settlement, and as withering syndrome (hereafter WS). and substrate destruction may all Recruitment Disease transmission and manifestation impose mortality on black abalone at is intensified when local sea surface varying rates, but predicting the relative Most abalone larvae drift in the water temperatures increase by as little as impacts of each of these factors on the for a period of about 3–10 days before 2.5 °C above ambient sea surface long-term viability of black abalone is settlement and metamorphosis (e.g., temperatures and remain elevated over difficult without further study. In McShane, 1992). During that short a prolonged period of time (i.e., a few addition to the aforementioned present- period of time, abalone have limited months or more) (Friedman et al., 1997; day sources of mortality, commercial capacity for dispersal over distances Raimondi et al., 2002; Harley and and recreational fisheries operating in beyond a few kilometers. Indirect Rogers-Bennett, 2004; Vilchis et al., California until 1993 likely contributed methods for assessing larval dispersal in 2005). WS is caused by a Rickettsiales- to the species’ decline. For more abalone support the conclusion that like prokaryotic pathogen of unknown information on historic and present-day black abalone exhibit limited larval origin that invades digestive epithelial factors leading to the decline of black dispersal (Tegner and Butler, 1985; cells and disrupts absorption of digested abalone populations, please see the Prince et al., 1988; Hamm and Burton, materials from the gut lumen into the NMFS status review for black abalone

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(VanBlaricom et al., 2009), and the those physical and biological features range were found at higher intertidal proposed and final listing rules for black that are essential to the conservation of zones in narrow crevices and in abalone (71 FR 1986, January 11, 2008; a given species and that may require depressions abraded into rock surfaces 74 FR 1937, January 14, 2009). special management considerations or by the intertidal chiton, Nutallina protection.’’ Features to consider may californica (Reeve, 1847). Black abalone Methods and Criteria Used To Identify include, but are not limited to: ‘‘(1) observed at greater depths (3–6 m) Critical Habitat Space for individual and population typically were mature adults. California In accordance with section 4(b)(2) of growth, and for normal behavior; (2) contains approximately 848.5 miles the ESA and our implementing Food, water, air, light, minerals, or other (1365.5 km) of consolidated rocky regulations (50 CFR 424.12(a)), this nutritional or physiological coastline and 599.3 miles (964.5 km) or proposed rule is based on the best requirements; (3) Cover or shelter; (4) 70 percent of it falls within the areas scientific information available Sites for breeding, reproduction, rearing considered in this proposed critical concerning the present and historical of offspring, germination, or seed habitat designation. range, habitat, biology, and threats to dispersal; and generally; (5) Habitats (2) Food resources. Abundant food habitat for black abalone. In preparing that are protected from disturbance or resources including bacterial and this rule, we reviewed and summarized are representative of the historic diatom films, crustose coralline algae, current information on black abalone, geographical and ecological and a source of detrital macroalgae, are including recent biological surveys and distributions of a species.’’ The required for growth and survival of all reports, peer-reviewed literature, the regulations also require the agencies to stages of black abalone. From post-larval NMFS status review for black abalone ‘‘focus on the principal biological or metamorphosis to a size of about 20 (VanBlaricom et al., 2009), and the physical constituent elements’’ mm, black abalone consume microbial proposed and final listing rules for black (hereafter referred to as ‘‘Primary and possibly diatom films (Leighton, abalone (71 FR 1986, January 11, 2008; Constituent Elements’’ or PCEs) within 1959; Leighton and Boolootian, 1963; 74 FR 1937, January 14, 2009). To assist the specific areas considered for Bergen, 1971) and crustose coralline with the evaluation of critical habitat, designation that are essential to algae. At roughly 20 mm black abalone we convened a black abalone critical conservation of the species, which ‘‘may begin feeding on both attached habitat review team (CHRT), comprised include, but are not limited to, the macrophytes and pieces of drift plants of seven Federal biologists from NMFS, following: * * * spawning sites, cast into the intertidal zone by waves the National Park Service (NPS), US feeding sites, seasonal wetland or and currents. The primary macroalgae Geological Survey (USGS), Minerals dryland, water quality or quantity, consumed by juvenile and adult black Management Service (hereafter MMS; * * * geological formation, vegetation abalone are giant kelp (Macrocystis MMS has been renamed the Bureau of type, tide, and specific soil types.’’ pyrifera) and feather boa kelp (Egregia Ocean Energy Management, Regulation, Based on the best available scientific menziesii) in southern California (i.e., and Enforcement, or BOEMRE, as of information, the CHRT identified the south of Point Conception) habitats, and June 18, 2010), and the Monterey Bay following PCEs essential for the bull kelp (Nereocystis leutkeana) in National Marine Sanctuary with conservation of black abalone: central and northern California habitats experience in abalone research, (1) Rocky substrate. Suitable rocky (i.e., north of Santa Cruz). Southern sea monitoring and management. The CHRT substrate includes rocky benches palm (Eisenia arborea), elk kelp used the best available scientific and formed from consolidated rock of (Pelagophycus porra), stalked kelp commercial data and their best various geological origins (e.g., igneous, (Pterygophora californica), and other professional judgment to: (1) Verify the metamorphic, and sedimentary) that brown kelps (Laminaria sp.) may also be geographical area occupied by black contain channels with macro- and consumed by black abalone. abalone at the time of listing; (2) micro-crevices or large boulders (greater (3) Juvenile settlement habitat. Rocky identify the physical and biological than or equal to 1 m in diameter) and intertidal habitat containing crustose features essential to the conservation of occur from mean higher high water coralline algae and crevices or cryptic the species; (3) identify specific areas (MHHW) to a depth of 6 m. All types of biogenic structures (e.g., urchins, within the occupied area containing relief (high, medium and low; 0.5 to mussels, chiton holes, conspecifics, those essential physical and biological greater than 2 m vertical relief; anemones) is important for successful features; (4) verify whether the essential Wentworth, 1922) support black abalone larval recruitment and juvenile growth features within each specific area may and complex configurations of rock and survival of black abalone less than need special management surfaces likely afford protection from approximately 25 mm shell length. The considerations or protection and predators, direct impacts of breaking presence of adult abalone may facilitate identify activities that may affect these waves, wave-born projectiles, and larval settlement and metamorphosis, essential features; (5) evaluate the excessive solar heating during daytime because adults may: (1) Promote the conservation value of each specific area; low tides. Most black abalone occupy maintenance of substantial substratum and (6) determine if any unoccupied the middle and lower intertidal zones. cover by crustose coralline algae by areas are essential to the conservation of In highly exposed locations downwind grazing other algal species that could black abalone. The CHRT’s evaluation of large offshore kelp beds, the majority compete with crustose coralline algae; and conclusions are described in detail of abalone may be found in the high and/or (2) outcompete encrusting sessile in the following sections, as well as in intertidal where drift kelp fragments invertebrates (e.g., tube worms and tube the draft biological report (NMFS, tend to be concentrated by breaking snails) for space on rocky substrates 2010c). surf. Leighton (1959) found evidence for thereby promoting the growth of ontogenetic shifts in depth distribution crustose coralline algae and settlement Physical or Biological Features Essential among juvenile abalone on the Palos of larvae; and/or (3) emit chemical cues for Conservation Verdes Peninsula. Juvenile black necessary to induce larval settlement Joint NMFS–USFWS regulations, at abalone (10–30 mm) were found at mid- (Miner et al., 2006; Toonen and 50 CFR 424.12(b), state that in intertidal depths on undersides of rock Pawlick, 1994). Increasing partial determining what areas are critical providing clear beneath-rock open space pressure of CO2 may decrease habitat, the agencies ‘‘shall consider while juveniles in the 5–10 mm size calcification rates of coralline algae,

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thereby reducing their abundance and settlement of abalone (Morse et al., may decrease the likelihood that ultimately affecting the survival of 1979) and severely reduce algal growth abalone larvae will successfully settle to newly settled black abalone (Feely et al., (Silver and Riley, 2001). We are not suitable habitats. However, retention of 2004; Hall-Spencer et al., 2008). aware of other studies that have larvae inshore due to bottom friction Laboratory experiments have shown established direct and indirect links and minimal advective flows near kelp that the presence of pesticides (e.g., between currently used pesticides and beds (the ‘‘sticky water’’ phenomenon; dichlorodiphenyltrichloroethane (DDT), effects on black abalone habitat quality Wolanski and Spagnol, 2000; Zeidberg 2,4-dichlorophenoxyacetic acid (2,4-D), and solicit the public for more and Hamner, 2002) may increase the methoxychlor, dieldrin) interfered with information on this topic. The suitable likelihood that larvae will successfully larval settlement of abalone because the salinity range for black abalone is from settle to suitable habitats. chemical cues emitted by coralline algae 30 to 35 parts per thousand (ppt), and Geographical Area Occupied by the and its associated diatom films which the suitable pH range is 7.5–8.5. Ocean Species and Specific Areas Within the trigger abalone settlement are blocked pH values that are outside of the normal Geographical Area Occupied (Morse et al., 1979), and the pesticide range for seawater (i.e., pH less than 7.5 oxadiazon was found to severely reduce or greater than 8.5; http:// One of the first steps in the critical algal growth (Silver and Riley, 2001). www.marinebio.net/marinescience/ habitat designation process is to define We are not aware of additional 02ocean/swcomposition.htm) may cause the geographical area occupied by the information regarding processes that reduced growth and survivorship in species at the time of listing and to mediate crustose coralline algae abalone as has been observed in other identify specific areas, within this abundance and solicit the public for marine gastropods (Shirayama and geographically occupied area, that more information on this topic. Thornton, 2005). Specifically, with contain at least one PCE that may increasing uptake of atmospheric CO require special management (4) Suitable water quality. Suitable 2 considerations or protection. In the water quality includes temperature, by the ocean, the pH of seawater becomes more acidic, which may January 2009 final ESA listing rule, the salinity, pH, and other chemical range of black abalone was defined to characteristics necessary for normal decrease calcification rates in marine organisms and result in negative extend from Crescent City (Del Norte settlement, growth, behavior, and County, California) to Cape San Lucas, viability of black abalone. The impacts to black abalone in at least two ways: (1) Disrupting an abalone’s ability Baja California, Mexico, including all biogeographical water temperature offshore islands. The northern and to maintain and grow its protective range of black abalone is from 12 to 25 southern extent of the range was ° shell; and/or (2) reducing abundance of C, but they are most abundant in areas determined based on museum coralline algae (and associated diatom where the water temperature ranges specimens collected more than 10 years ° films and bacteria), a calcifying from 18 to 22 C (Hines et al., 1980). prior to the listing of the species (Geiger, organism that may mediate settlement There is increased mortality due to WS 2004). Because this range was based on through chemical cues and support and during periods following elevated sea dated records, and because we cannot provide food sources for newly settled surface temperature (Raimondi et al., designate critical habitat in areas abalone (Feely et al., 2004; Hall-Spencer 2002). The CHRT did not consider the outside of the United States (see 50 CFR et al., 2008). presence of the bacteria that causes WS 424.12(h)), the CHRT reconsidered the when evaluating the condition of this (5) Suitable nearshore circulation scope of the current (i.e., at the time of PCE because it is thought to be present patterns. Suitable circulation patterns the final ESA listing) occupied range of throughout a large portion of the are those that retain eggs, sperm, black abalone. The CHRT examined data species’ current range (greater than 60 fertilized eggs and ready-to-settle larvae from ongoing monitoring studies along percent), including all coastal specific enough so that successful fertilization the California coast (Neuman et al., in areas south of Monterey County, CA and and settlement to suitable habitat can press) and literature references to the Farallon Islands (J. Moore, pers. take place. Nearshore circulation determine that, within the United comm.). Instead the CHRT relied on sea patterns are controlled by a variety of States, the geographical area currently surface temperature information to factors including wind speed and occupied by black abalone extends from evaluate water quality in terms of direction, current speed and direction, the Del Mar Landing Ecological Reserve disease virulence, recognizing that tidal fluctuation, geomorphology of the in Sonoma County, California, to Dana elevated sea surface temperatures are coastline, and bathymetry of subtidal Point, Orange County, California, on the correlated with increased rates of WS habitats adjacent to the coastline. mainland and includes the Farallon transmission and manifestation in Anthropogenic activities may also have Islands, An˜ o Nuevo Island, and all of abalone. Elevated levels of contaminants the capacity to influence nearshore the California Channel Islands. The (e.g., copper, oil, polycyclic aromatic circulation patterns (e.g., intake pipes, CHRT noted that there are pockets of hydrocarbon (PAH) endocrine sand replenishment, dredging, in water unoccupied habitat within this broader disrupters, persistent organic construction, etc.). These factors, in area of occupation (NMFS, 2010c). compounds (POC)) can cause mortality combination with the early life history Within this geographically occupied of black abalone. In 1975, toxic levels of dynamics of black abalone, may area, black abalone typically inhabit copper in the cooling water effluent of influence retention or dispersal rates of coastal and offshore island rocky a nuclear power plant near Diablo eggs, sperm, fertilized eggs and ready-to- intertidal habitats from MHHW to Canyon, California, were associated settle larvae (Siegel et al., 2008). Given depths of 6 m (Leighton, 2005). The with abalone mortalities in a nearshore that black abalone gamete and larval CHRT then identified ‘‘specific areas’’ cove that received significant effluent durations are relatively short, larvae within the geographical area occupied flows (Shepherd and Breen, 1992; have little control over their position in by the species that may be eligible for Martin et al., 1977). As mentioned the water column, and ready-to-settle critical habitat designation under the above for the Juvenile settlement habitat larvae require shallow, intertidal habitat ESA. For an occupied specific area to be PCE, laboratory experiments have for settlement. Forces that disperse eligible for designation it must contain shown that the presence of some larvae offshore (i.e., by distances on the at least one PCE that may require special pesticides interfere with larval order of greater than tens of kilometers) management considerations or

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protection. For each occupied specific Activities that exacerbate global climate affected by WS. The CHRT was of the area, the CHRT reviewed the available change (most notably fossil fuel opinion that the area could support data regarding black abalone presence combustion, which contributes to an higher densities and multiple size and verified that each area contained increase in atmospheric CO2 levels and classes of black abalone in the future if one or more PCE(s) that may require subsequent sea level rise, sea surface habitat changes (e.g., sea surface special management considerations or temperature elevation, and ocean temperature rise) render it more suitable protection. The CHRT determined that acidification) were identified as a for promoting population growth. Thus, for all specific areas, unless otherwise concern for all of the specific areas. The the CHRT scored the conservation value noted, MHHW delineates the landward Black Abalone Proposed Critical Habitat of this area as ‘‘High.’’ boundary, and the 6 m bathymetric Designation maps below, as well as the Specific Area 2. Specific Area 2 contour delineates the seaward draft biological report (NMFS, 2010c), includes rocky intertidal habitat from boundary. The CHRT also agreed to show the location of each specific area Bodega Head in Sonoma County, consider naturally occurring considered for designation. California, to Point Bonita in Marin geomorphological formations and size Specific Area 1. Specific Area 1 County, California. Point Bonita was (i.e., area) to delineate the northern and includes the rocky intertidal habitat chosen to delineate the southern southern boundaries of the specific from the Del Mar Landing Ecological boundary of this specific area because it areas. The CHRT intentionally aimed to Reserve to Bodega Head in Sonoma sits at the southern point of the Marin delineate specific areas of similar sizes County, California. Bodega Head is a Headlands, the final promontory encountered as one moves south along in order to minimize biases in the small peninsula that creates a natural the coast before reaching the entrance to economic cost estimates for the specific barrier between it and the coastline that San Francisco Bay. Historical presence areas. lies to the east and south. In addition, of black abalone within this area is The CHRT scored and rated the the geological origin of Bodega Head limited, but in locations where black relative conservation value of each differs from that of the coastline to the abalone were observed, they were occupied specific area. Areas rated as east and south of it. For these reasons, considered rare (Light, 1941; Chan, ‘‘High’’ were deemed to have a high this location was chosen to delineate the 1980; S. Allen, pers. comm.). Since the likelihood of promoting the southern boundary of Specific Area 1. mid-2000s, Point Reyes National conservation of the species. Areas rated Based on the limited historical data Seashore and Golden Gate National ‘‘ ’’ ‘‘ ’’ as Medium or Low were deemed to available for this area (Geiger 2003, Recreation Area staff have observed have a moderate or low likelihood of State Water Resources Control Board black abalone at several locations, but promoting the conservation of the 1979, J. Sones pers. comm.), black their qualitative abundance is species, respectively. The CHRT abalone were encountered occasionally considered to be rare (see definition of considered several factors in assigning in some locations. Black abalone have rare above). This area contains good to the conservation value ratings, been present in this area in low excellent quality consolidated rocky including the PCEs present, the numbers since the Partnership for substrate (e.g., 71 percent of rocky condition of the PCEs, and the Interdisciplinary Studies of Coastal substrate available is consolidated), food historical, present, and potential future Oceans (PISCO) began its long-term resources, and water quality, and fair to use of the area by black abalone. These intertidal sampling program in the early good settlement habitat, but as with factors were scored by the CHRT and 2000s. Black abalone are currently Specific Area 1 above, the area is at the summed to generate a total score for considered to be rare (i.e., difficult to limit of the species’ northern range, each specific area, which was find with some search effort and rarely which may explain its rarity. There are considered in the CHRT’s evaluation seen at sampling sites; J. Sones pers. several activities occurring within this and assignment of the final conservation comm.), and the CHRT expressed area that may threaten the quality of the value ratings. The draft biological report uncertainty regarding the area’s ability PCEs, including: sand replenishment, (NMFS, 2010c; available via our Web to support early life stages of black waste-water discharge, coastal site at http://swr.nmfs.noaa.gov, via the abalone because historical and current development, non-native species Federal eRulemaking Web site at http:// data are lacking. However, the presence introduction and management, activities www.regulations.gov, or upon request— of good to excellent quality rocky that exacerbate global climate change, see ADDRESSES) describes in detail the substrate (e.g., 87 percent of rocky and agricultural pesticide application methods used by the CHRT in their substrate available is consolidated), food and irrigation. This area is at the limit assessment of the specific areas and resources, and water quality (Water of the species’ northern range, which provides the biological information Quality Control Board, 1979) and fair to may explain the rarity of black abalone supporting the CHRT’s assessment as good settlement habitat led the CHRT to here, but it is also one of the few areas well as the final conservation value conclude that the area could support a along the California coast that has not ratings and justifications. The following larger black abalone population yet been affected by WS. The CHRT was paragraphs provide a brief description comprised of multiple size classes. of the opinion that the area could of the presence and distribution of black There are several activities occurring support higher densities and multiple abalone within each area, additional within this area that may threaten the size classes of black abalone in the detail regarding the CHRT’s methods for quality of the PCEs including waste- future if habitat changes (e.g., sea delineating the specific areas, and the water discharge, agricultural pesticide surface temperature rise) render it more justification for assigning conservation application and irrigation, construction suitable for promoting population scores. The following paragraphs also and operation of tidal and wave energy growth. Thus, the CHRT scored the provide a brief description of the projects, and activities that exacerbate conservation value of this area as activities within each area that may global climate change (e.g., fossil fuel ‘‘High.’’ threaten the quality of the PCEs, which combustion). This area is at the limit of Specific Area 3. Specific Area 3 are discussed in more detail in the the species’ northern range, which may includes the rocky intertidal habitat Special Management Considerations or explain the rarity of black abalone here, surrounding the Farallon Islands, San Protection section below and the draft but it is also one of the few areas along Francisco County, California. This area economic report (NMFS, 2010a). the California coast that has not yet been is a group of islands and rocks found in

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the Gulf of the Farallones, 27 miles (43 agricultural pesticide application and An˜ o Nuevo State Reserve, the rest of km) west of the entrance to San irrigation, non-native species which is on the mainland opposite the Francisco Bay and 20 miles (32 km) introduction and management, oil and island. Black abalone were common in south of Point Reyes. The islands are a chemical spills and clean-up, and intertidal habitats surrounding the National Wildlife Refuge and are activities that exacerbate global climate island during surveys conducted from currently managed by the USFWS, in change. The CHRT scored the 1987–1995, with mean densities ranging conjunction with the Point Reyes Bird conservation value of this area as from 6–8 per m2 (Tissot, 2007; Observatory Conservation Science. The ‘‘Medium.’’ VanBlaricom et al., 2009). To our waters surrounding the islands are part Specific Area 5. Specific Area 5 knowledge, the island has not been of the Gulf of the Farallones National includes rocky intertidal habitat from surveyed for black abalone since that Marine Sanctuary. Historical presence Moss Beach to Pescadero State Beach, time. The CHRT verified that good to of black abalone in intertidal habitats San Mateo County, California. This area excellent quality rocky substrate, food surrounding the Farallon Islands was was considered separately from Specific resources, and water quality, and fair to noted in the late 1970s (Farallones Area 4, even though each area alone is good settlement habitat exist at An˜ o Research Group, 1979) and again in the smaller in size compared to the majority Nuevo Island, but expressed uncertainty early 1990s (E. Ueber, unpublished of the other specific areas. The reasons regarding whether the area currently data). Black abalone have been observed for separate consideration were that: (1) supports early life stages and long-term in Specific Area 3 during limited The CHRT team viewed the PCEs in survival of juveniles and adults. The surveys conducted during the past 5 Specific Area 5 as being of lower quality impact of global climate change on the years, and researchers have confirmed overall than those contained within habitat features important to black that all of the PCEs are present and of Specific Area 4; and (2) the level of abalone was the only concern identified good to excellent quality, and adverse certainty the CHRT had in evaluating within this specific area. The CHRT impacts due to anthropogenic activities the conservation value of Specific Area scored the conservation value of this on these isolated islands are relatively 4 was higher than that for Specific Area area as ‘‘High.’’ 5. The CHRT recognized that all of the low. However, the CHRT expressed Specific Area 7. Specific Area 7 PCEs were present in the area and their concern over the following activities includes the rocky intertidal habitat current quality ranged from poor to that may affect habitat features from Pescadero State Beach, San Mateo good. The CHRT expressed a high important for black abalone County, California, to Natural Bridges conservation and recovery, including: degree of uncertainty regarding the area’s ability to support early life stages State Beach, Santa Cruz County, waste-water discharge, agricultural California. Situated to the north of pesticide application and irrigation, and and long-term survival of juveniles and adults because the area has not been Monterey Bay, Natural Bridges State activities that exacerbate global climate Beach marks the last stretch of rocky change. The CHRT scored the adequately studied. Since the species was listed in 2009, only one survey has intertidal habitat before reaching the conservation value of this area as primarily fine-to medium-grained sand ‘‘High.’’ been conducted by Reyes National Seashore and Golden Gate National beaches of Monterey Bay (http:// Specific Area 4. Specific Area 4 www.sanctuarysimon.org/monterey/ Recreation Area researchers. One black _ _ extends from the land mass framing the abalone was identified during this sections/beaches/b overview map.php). southern entrance to San Francisco Bay survey. Waste-water discharge, oil and Historical data are limited, but the to Moss Beach, San Mateo County, chemical spills and clean-up, and information available suggests that black California, and includes all rocky activities that exacerbate global climate abalone were common at a couple of intertidal habitat within this area. There change may compromise the quality of sites within this specific area in the late is limited historical and current the PCEs within this specific area. The 1970s and early 1980s (Water Quality information regarding black abalone CHRT scored the conservation value of Control Board, 1979; J. Pearse, pers. occurrence and abundance along this this area as ‘‘Medium,’’ recognizing that comm.) and rare at the majority of sites stretch of the coast. At the one site it lies to the north of areas that have (Water Quality Control Board, 1979; J. where black abalone were noted experienced population declines, and Pearse, pers. comm.). PISCO began historically, they were considered to be thus the habitat in this area may still intertidal black abalone surveys in this rare (Light, 1941). PISCO, Point Reyes provide a refuge from the devastating area in 1999 and, at that time, National Seashore and Golden Gate effects of WS. qualitative abundance ranged from rare National Recreation Area researchers Specific Area 6. Specific Area 6 to common, depending on the specific found ten individuals within this includes the rocky intertidal habitat site. Sampling by PISCO within the last specific area during limited surveys surrounding An˜ o Nuevo Island, San 5 years indicates that black abalone are conducted since 2007. The CHRT Mateo County, California. The island present and common at about 50 considered the PCEs within the area to lies 50 miles (74 km) south of San percent of the sites within this area, but be of fair to good quality. While the Francisco Bay and, two hundred years that abundance may be declining at a CHRT was uncertain about this area’s ago, it was connected to the mainland few of these sites. At the other sites, ability to support early life stages by a narrow peninsula. Today it is black abalone are either present, but because data are lacking, it was more separated from the mainland by a rare, or completely absent. The CHRT confident that the area can support the channel that grows wider with each confirmed that all of the PCEs are long-term survival of juveniles and winter storm. An˜ o Nuevo Island is present and of good to excellent quality adults based on several lines of managed by the University of California here. PISCO data (Raimondi et al., 2002; evidence from historical records (Light, Santa Cruz’s Long Marine Laboratory Tissot, 2007) provide evidence that the 1941, J. Sones, pers. comm..; M. Wilson, under an agreement with the California area supports early life stages (i.e., small pers. comm.). The CHRT noted that the Department of Parks and Recreation. individuals (< 30mm) are present following activities may threaten the The An˜ o Nuevo Island Reserve, currently; see definition in NMFS, quality of the PCEs within this specific including the island and surrounding 2010c) and long-term survival of area: Sand replenishment, waste-water waters, comprises approximately 25 of juveniles and adults (i.e., there is stable discharge, coastal development, the 4,000 acres (10 of 1,600 ha) of the or increasing abundance, and multiple

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size classes of black abalone evident in northern edge of Estero Bay, Cayucos that they were considered to be common length-frequency distributions; see marks the last stretch of rocky intertidal at a majority of the sites sampled definition in NMFS, 2010c). The CHRT habitat before reaching the primarily (Raimondi et al., 2002; Tissot, 2007). identified the following activities that fine-to medium-grained sand beaches of PISCO and UCSC established long-term may threaten the quality of habitat Estero Bay. PISCO and the University of monitoring sites within this area features essential to black abalone California Santa Cruz (UCSC) between 1992 and 2007, and, within the within this area: Sand replenishment, established long-term monitoring sites last 5 years, population declines have waste-water discharge, coastal within this area between 1995 and 2008. been noted at most locations within this development, sidecasting (i.e., the piling Surveys conducted prior to 2004 specific area, with local extinction of excavated dirt on the edge of a ditch indicated that black abalone of a range occurring in at least one sampling site. or elsewhere in a wetland or other water of sizes were present and common at all Despite declines in abundance and lack body because of road maintenance), but one of the sites surveyed within this of evidence of recent recruitment in this agricultural pesticide application and area (Water Quality Control Board, specific area, the CHRT confirmed that irrigation, oil and chemical spills and 1979; Raimondi et al., 2002; Tissot, the PCEs range from fair to excellent clean-up, construction and operation of 2007). More recent information gathered quality along this stretch of the desalination plants, vessel grounding, by PISCO and UCSC indicates that black California coast. The CHRT identified non-native species introduction and abalone of a range of sizes are present several activities that may threaten the management, kelp harvesting, and at all sites within the area and are quality of the PCEs within this specific activities that exacerbate global climate commonly found at 57 percent of the area, including: in-water construction, change. The CHRT scored the sites, occasionally found with some waste-water discharge, coastal conservation value of this area as search effort at 14 percent of the sites, development, agricultural pesticide ‘‘High.’’ and rarely found at 29 percent of the application and irrigation, construction Specific Area 8. Specific Area 8 sites. The CHRT confirmed that all of and operation of power generating and includes rocky intertidal habitats from the PCEs are present and of good to desalination plants, mineral and Pacific Grove to Prewitt Creek, excellent quality. The area supports petroleum exploration and extraction, Monterey County, California. Pacific early life stages and long-term survival non-native species introduction and Grove marks the first stretch of rocky of juveniles and adults (see NMFS, management, kelp harvesting and intertidal habitat to the south of the 2010c for details). However, the CHRT activities that exacerbate global climate fine-to medium-grained sand beaches of also noted that PISCO researchers have change. The CHRT scored the Monterey Bay (http:// reported recent population declines at conservation value of this area as www.sanctuarysimon.org/monterey/ 57 percent of the sites sampled within ‘‘High.’’ sections/beaches/b_overview_map.php). this area and in at least one site, the Specific Area 11. Specific Area 11 In order to keep the size of this area population decline has been severe. comparable to other specific areas, includes rocky intertidal habitats Activities that may threaten the habitat surrounding the Palos Verdes Peninsula Prewitt Creek was chosen to delineate features important for black abalone its southern boundary. Surveys and extends from the Palos Verdes/ conservation are: waste-water discharge, Torrance border to Los Angeles Harbor conducted prior to 2004 indicated that agricultural pesticide application and black abalone encompassing a range of in southwestern Los Angeles County, irrigation, oil and chemical spills and California. This small peninsula is one sizes were present and common at all of clean-up, construction and operation of the sampled sites within this area of only two areas within Santa Monica desalination plants, kelp harvesting, and (Water Quality Control Board, 1979; Bay that contain intertidal and subtidal activities that exacerbate global climate Raimondi et al., 2002; Tissot, 2007). rocky substrate suitable for supporting change. The CHRT scored the More recent information gathered black abalone. The limited extent of conservation value of this area as within the last 5 years by PISCO rocky intertidal habitat is what defines ‘‘High.’’ indicates that black abalone the northern and southern boundaries of encompassing a range of sizes remain at Specific Area 10. Specific Area 10 this specific area. Long-term intertidal all sites sampled and are considered includes rocky intertidal habitats from monitoring on the Peninsula conducted common at 93 percent of the sites. The Montan˜ a de Oro State Park in San Luis by the California State University Long CHRT confirmed that all of the PCEs are Obispo County, California, to just south Beach (CSULB) and the Cabrillo Marine present and of good to excellent quality, of Government Point, Santa Barbara Aquarium began in 1975, and, at that but may be threatened by waste-water County, California. Montan˜ a de Oro time, densities ranged from 2 to 7 per discharge, coastal development, State Park is the first stretch of rocky m2. Densities declined throughout the agricultural pesticide application and intertidal habitat encountered to the 1980s, and by the 1990s black abalone irrigation, oil and chemical spills and south of the sandy beaches of Estero were locally extinct at a majority of clean-up, construction and operation of Bay, thus it was chosen to delineate the sampling sites within the area. Good to desalination plants, kelp harvesting, and northern boundary of this specific area. high quality rocky substrate and food activities that exacerbate global climate The southern boundary of this area, resources and fair to good settlement change. PISCO data (Raimondi et al., Government Point, is where the Santa habitat persist within this area, which 2002; Tissot, 2007) provide evidence Barbara Channel meets the Pacific led to the CHRT’s conclusion that this that the area supports early life stages Ocean, the mostly north-south trending area is of ‘‘Medium’’ conservation value. and long-term survival of juveniles and portion of coast transitions to a mostly The CHRT recognized that water quality adults (see NMFS, 2010c for details). east-west trending part of the coast, and within this area is in poor condition. The CHRT scored the conservation a natural division between Southern Unlike the majority of the other areas value of this area as ‘‘High.’’ and Central California occurs. For these where significant declines in black Specific Area 9. Specific Area 9 reasons, it was chosen as the southern abalone abundance have been observed, includes rocky intertidal habitats from boundary of this specific area. Historical declines in this area occurred prior to Prewitt Creek, Monterey County, data indicates that black abalone were the onset of WS and have been California to Cayucos, San Luis Obispo present at 100 percent of the sites attributed to the combined effects of County, California. Situated on the sampled within this specific area and significant El Nin˜ o events and poor

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water quality resulting from large- putative black abalone was observed at abundance of >99 percent were volume domestic sewage discharge by one additional location in January, observed at all of the CINP sampling Los Angeles County during the 1950s 2010. The area contains rocky substrate sites. Within the last 5 years, abundance and 1960s (Leighton, 1959; Cox, 1962; (88 percent of rocky substrate is at most locations remains depressed; Young, 1964; Miller and Lawrenz- consolidated) and food resources that however, at a small number of sites Miller, 1993). From the mid-1970s to are in fair to good condition, but abundance has increased and repeated 1997, however, improved wastewater settlement habitat and water quality are recruitment events have occurred. These treatment processes resulted in an 80 in poor to fair condition. Abundance of areas contain fair to excellent rocky percent reduction in the discharge of crustose coralline algae is limited in the substrate, food resources, settlement total suspended solids from the White rocky intertidal area and the extirpation habitat and water quality, despite the Point outfall. That, along with kelp of abalone from the habitat has resulted fact that abundance has declined replanting efforts in the 1970s, resulted in a shift in its biogenic structure, dramatically since the 1980s. Because in a remarkable increase in the kelp rendering the area less suitable for these islands are somewhat remote, canopy from a low of 5 acres (2 settling abalone larvae. Water quality there is a limited list of activities that hectares) in 1974 to a peak of more than may be tainted by waste-water may threaten the PCEs in these specific 1,100 acres (445 hectares) in 1989. More discharge, agricultural pesticide areas and they include: oil and chemical recently, erosion and sedimentation application and irrigation, construction spills and clean-up on Santa Cruz have threatened the kelp beds off the and operation of desalination plants, Island; waste-water discharge, Palos Verdes Peninsula. Since 1980, an and changes in the thermal and agricultural pesticide application and active landslide at Portuguese Bend on chemical properties of sea water irrigation on Anacapa Island; and kelp the Palos Verdes Peninsula has supplied through global climate change. Food harvesting and activities that exacerbate more than seven times the suspended resources within this area may be global warming. The CHRT recognized solids as the Whites Point outfall impacted by kelp harvesting activities. that, although these areas are currently (LACSD, 1997). Currently, there is no The CHRT scored this area of ‘‘Low’’ lacking multiple size classes of black evidence that this area supports conservation value primarily because abalone, there is evidence of small-scale recruitment, and, given the extremely the quality of the PCEs is relatively low recovery at a few locations, and, low numbers of juveniles and adults, it and because black abalone have not therefore, these areas received ‘‘High’’ is suspected that the area does not been identified at regularly monitored conservation value scores. support long-term persistence of this sampling locations within the last five Specific Areas 17–20. Specific Areas population (Miller and Lawrenz-Miller, years. 17–20 include the rocky intertidal 1993; J. Kalman and B. Allen, pers. habitat surrounding the Southern Specific Areas 13–16. Specific Areas California Channel Islands: San Nicolas comm.). However, because many of the 13–16 include the rocky intertidal habitat features important to black Island in Ventura County, CA, Santa habitat surrounding the Northern Barbara Island in Santa Barbara County, abalone are still present and are in fair California Channel Islands: San Miguel, to excellent condition, the CHRT scored CA, and Santa Catalina and San Santa Rosa, and Santa Cruz islands in Clemente islands in Los Angeles the conservation value of this area as Santa Barbara County, California, and ‘‘Medium.’’ The activities that may County, California. The Southern Anacapa Island in Ventura County, Channel Islands are part of the same threaten the habitat features important California. The Northern Channel to the conservation of black abalone are archipelago that includes the Northern Islands lay just off California’s southern Channel Islands. San Nicolas and San sand replenishment, waste-water coast in the Santa Barbara Channel and Clemente islands have been owned and management, non-native species remain somewhat isolated from operated by the U.S. Navy since the introduction and management, kelp mainland anthropogenic impacts. In early 1930s. These islands accommodate harvesting, and activities that exacerbate 1980, Congress designated these islands a variety of Navy training, testing and global climate change. and approximately 100,000 acres (405 evaluation activities including naval Specific Area 12. Specific Area 12 km2) of submerged land surrounding surface fire support, air-to-ground includes rocky intertidal habitats from them as a national park because of their ordnance delivery operations, special Corona Del Mar State Beach to Dana unique natural and cultural resources. operations, surface weapon launch Point in Orange County, California. The This area was augmented by the support, and radar testing. Santa limited extent of rocky intertidal habitat designation of Channel Islands National Barbara Island and its surrounding is what defines the northern and Marine Sanctuary later that year. The waters out to six nautical miles (11km) southern boundaries of this specific sanctuary boundaries stretch 6 nautical were designated part of the CINP and area. Historical information for this area miles (11 km) offshore, including their the Channel Islands National Marine indicates that black abalone were interconnecting channels. Channel Sanctuary in 1980. Since 1972, Santa present along this stretch of coastline, Islands National Park (CINP) began an Catalina Island has been owned and limited abundance information intertidal monitoring program on San primarily by a nonprofit organization, suggests densities of <1 per m2 (Tissot, Miguel, Santa Rosa, and Anacapa the Catalina Island Conservancy, whose 2007; S. Murray, pers. comm.) in the islands in the early to mid-1980s, while mission is to preserve and conserve the late 1970s and early 1980s. Thus, there monitoring on Santa Cruz Island did not island. is uncertainty regarding whether these begin until 1994. Historically, black Since 1981, the U. S. Geological populations were viable at that time. By abalone were present and common at 76 Survey (USGS) and the University of 1986, local extinction of black abalone percent of the sampling locations within Washington (UW) have monitored at one sampling location within this these specific areas (Water Quality multiple sites around San Nicolas specific area was reported (Tissot, Control Board, 1979; Water Quality Island. Black abalone were considered 2007). The University of California Control Board, 1982; Water Quality common at all of the sites up until Fullerton began monitoring four sites Control Board, 1982; B. Douros, pers. approximately 1993, when mass within this area in 1996, and no black comm.; CINP, pers. comm.; Tissot, mortalities due to WS swept through the abalone have been observed at these 2007). Severe population declines began island (VanBlaricom, 2009). Within the locations within the last 5 years. A in 1986 and by the 1990s declines in last 5 years, slight increases in

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abundance have been observed at 33 to excellent condition. There is a great and the areas in which those threats percent of the sampled sites and deal of uncertainty regarding whether occur. NMFS and the CHRT then moderate increases in abundance at one the island supports early life stages and determined whether at least one PCE in site. At 55 percent of the sampled sites, the long-term survival of juveniles and each specific area may require special abundance remains low with densities adults because data are lacking. The management considerations or less than 2 percent of their former CHRT scored the conservation value of protection because of a threat or threats. values prior to population declines. this area as ‘‘High,’’ despite uncertainty NMFS and the CHRT worked together to Recent repeated recruitment events have in the demographic history and current identify activities that could be linked occurred at a few sites as evidenced by status of populations on Catalina, to threats, and when possible, identified the presence of small individuals (<30 because the habitat is in good condition ways in which activities might be mm; VanBlaricom, unpublished data). and could support black abalone altered in order to protect and improve Thus, this specific area supports early populations in the future. Several the quality of black abalone PCEs. These life stages. However, the long-term activities may compromise the generally activities are described briefly in the survival of juveniles and adults is good habitat quality surrounding following paragraphs and Table 1. These questionable, given that relative Catalina Island, including in-water activities are documented more fully in abundance levels remain low and construction, waste-water discharge, the draft biological report (NMFS, evidence of multiple size classes is still coastal development, oil and chemical 2010c) and draft economic report lacking at the majority of sampling sites. spills and clean-up, construction and (NMFS, 2010a), which provide a All of the PCEs are present and are of operation of desalination plants and description of the potential effects of good to excellent quality, which led the tidal and wave energy projects, kelp each category of activities on the PCEs. CHRT to score this area as one of ‘‘High’’ harvesting and activities that exacerbate The major categories of habitat-related conservation value. The CHRT global climate change. activities include: (1) Coastal identified the following activities that San Clemente Island was surveyed by development (e.g., construction or may compromise the quality of habitat the California Department of Fish and expansion of stormwater outfalls, features essential to the conservation of Game from 1988–1993. As late as residential and commercial black abalone within this specific area: October 1988, black abalone were construction); (2) in-water construction in-water construction, waste-water present and populations were robust at (e.g., coastal armoring, pier management, coastal development, a number of locations, but by 1990, construction, jetty or harbor construction and operation of population declines due to WS were construction, pile driving); (3) sand desalination plants, kelp harvesting, and underway (CDFG, 1993). Densities replenishment or beach nourishment activities that exacerbate global climate decreased to less than 1 per m2 by 1993 activities; (4) dredging and disposal of change. (CDFG, 1993). The Department of dredged material; (5) agricultural CINP began limited sampling at Santa Defense initiated a San Clemente Island- activities (e.g., irrigation, livestock Barbara Island in 1985. At that time wide investigation to determine the farming, pesticide application); (6) black abalone were present on the current extent of remaining black National Pollutant Discharge island, and their qualitative abundance abalone populations on the island in Elimination System (NPDES) activities levels ranged from rare to common. 2008. During 30-minute timed searches and activities generating non-point Within the last 5 years black abalone at 61 locations that each covered source pollution; (7) sidecasting have disappeared from one sampling approximately 1500 m2 of potential activities (e.g., the piling of excavated site and remain present, but rare, at black abalone habitat, ten black abalone dirt on the edge of a ditch or elsewhere another. The CHRT considered the (all > 100 mm) were identified and all in a wetland or other water body rocky substrate and settlement habitat to but two of the animals were solitary because of road maintenance); (8) oil be of fair to good quality, food resources individuals (Tierra Data Inc., 2008). All and chemical spills and clean-up to be of poor to fair quality, and water of the PCEs are present and are in good activities; (9) mineral and petroleum quality to be good to excellent. to excellent condition, despite the fact exploration or extraction activities; (10) However, given the lack of evidence of that there is no evidence of recruitment power generation operations involving recruitment both historically and and the island currently does not water withdrawal from and discharge to currently and very low numbers of support long-term survival of adults. In marine coastal waters; (11) construction juveniles and adults, the CHRT scored order to protect these high quality PCEs and operation of alternative energy the conservation value of this area as and promote the conservation of black hydrokinetic projects (tidal or wave ‘‘Medium.’’ The only activities that abalone, certain activities may require energy projects); (12) construction and threaten the PCEs and that may require modification, such as in-water operation of desalination plants; (13) special management on Santa Barbara construction, coastal development, kelp construction and operation of liquefied Island are those that alter the thermal harvesting, and activities that exacerbate natural gas (LNG) projects; (14) vessel and chemical properties of sea water global climate change. Thus, the CHRT groundings; (15) non-native species through global climate change, most deemed this area as being of ‘‘High’’ introduction and management (from notably fossil fuel combustion. conservation value. commercial shipping and aquaculture); Surveys conducted around Catalina (16) kelp harvesting activities; and (17) Special Management Considerations or Island in the 1960s, 1970s, and 1980s activities that exacerbate global climate Protection confirm that black abalone were present change (e.g., fossil fuel combustion). at a variety of locations around the Joint NMFS and USFWS regulations The draft Biological Report (NMFS island, but size distribution and at 50 CFR 424.02(j) define ‘‘special 2010a) and draft Economic Analysis abundance information are lacking. The management considerations or Report (NMFS 2010b) provide a PISCO University of California Los protection’’ to mean ‘‘any methods or description of the potential effects of Angeles group established two long- procedures useful in protecting physical each category of activities and threats on term sampling sites in 1982 and 1995, and biological features of the the PCEs. For example, activities such and, since the 1990s, black abalone have environment for the conservation of as in-water construction, coastal not been encountered at these sites. All listed species.’’ The CHRT identified development, dredging and disposal, of the PCEs are present and are in fair several threats to black abalone PCEs sidecasting, mineral and petroleum

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exploration and extraction, and sand projects may also increase local water and settlement habitat if these species replenishment may result in increased temperatures with the discharge of alter the natural algal communities. sedimentation, erosion, turbidity, or heated effluent, introduce elevated Shifts in water temperatures and sea scouring in rocky intertidal habitats and levels of certain metals or contaminants level related to global climate change may have adverse impacts on rocky into the water, or alter nearshore water may also affect black abalone habitat. substrate, settlement habitat, food circulation patterns. The discharge of For example, coastal water temperatures resources, water quality, or nearshore contaminants from activities such as may increase to levels above the optimal circulation patterns. The construction of NPDES activities may affect water range for black abalone, and sea level proposed energy and desalination quality, food resources (by affecting the rise may alter the distribution of rocky algal community), and settlement projects along the coast would result in intertidal habitats along the California increased in-water construction and habitat (by affecting the ability of larvae coast. coastal development. The operation of to settle). Introduction of non-native these energy projects and desalination species may also affect food resources

TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Dredging ...... Unknown ...... Rocky substrate PCE—Dredging The U.S. Army Corps of Engi- Restrictions on the spatial and We solicit the that does occur near rocky neers (USACE) issues permits temporal extent of dredging ac- public for intertidal areas may increase pursuant to Section 404 of the tivities and the deposition of more informa- sedimentation into the rocky Clean Water Act (CWA), dredge spoil. Requirements to tion (see habitat. A variety of harmful among several others. The treat (detoxify) dredge spoil. ‘‘Public Com- substances, including heavy USACE must then consult with ments Solic- metals, oil, tributyltin (TBT), NMFS under section 7 of the ited’’). polychlorinated biphenyls ESA. (PCBs) and pesticides, can be absorbed into the seabed sedi- ments and contaminate them. Water quality PCE—Dredging and disposal processes can re- lease contaminants into the water column, affecting water quality, and making them avail- able to be taken up by animals and plants, which could cause morphological or reproductive disorders. In-water construc- 10, 17, 19, and Rocky substrate PCE—Increased The USACE issues permits pur- Bank stabilization measures and tion. 20. sedimentation, a side effect of suant to Section 10 of the Riv- more natural erosion control. some in-water construction ers and Harbors Act of 1899 projects, can reduce the quality (RHA) among several others. and/or quantity of rocky sub- Although in-water construction strate. projects are commonly Food resources PCE—The pres- unertaken by private or non- ence of in-water structures Federal parties, in most cases may affect black abalone habi- they must obtain a USACE tat by affecting the distribution permit. The USACE must then and abundance of algal spe- consult with NMFS under sec- cies that provide food for aba- tion 7 of the ESA. lone or the distribution and abundance of other intertidal invertebrate species.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Settlement habitat PCE— Changes in algal communities could affect settlement of larval abalone (believed to be influ- enced by the presence of coralline algae).. Nearshore circulation pattern PCE—Nearshore circulation patterns may affect intertidal communities by providing step- ping-stones between popu- lations, resulting in range ex- tensions for species with lim- ited dispersal distances. Artifi- cial structures, like break- waters, may also alter the physical environment by reduc- ing wave action and modifying nearshore circulation and sedi- ment transport. Sand replenish- 2, 4, 7, and 11 .. Rocky substrate PCE—Sand The USACE is responsible for Monitor the water quality (tur- ment. movements could cover up administering Section 404 per- bidity) during and after the rocky substrate thereby reduc- mits under the CWA, which are project. Place a buffer around ing its quality and/or quantity. required for sand replenish- pertinent areas within critical ment activities. habitat that sand replenish- ment projects have to work around. Ensure any dredge discharge pipelines are sited to avoid rocky intertidal habitat. Construct training dikes to help retain the sand at the receiving location, which should mini- mize movement of sand into the rocky intertidal areas. NPDES-permitted 1, 2, 3, 4, 5, 7, Food resources PCE—Sewage Issuance of CWA permits. State Where Federal permits are nec- activities. 8, 9, 10, 11, outfalls may affect food re- water quality standards are essary, ensure discharge 12, 16, 17, sources by causing light levels subject to an ESA section 7 meets standards other than ex- and 19. to be reduced to levels too low consultation between NOAA isting federal standards and to support Macrocystis germi- and the EPA and NOAA can regulations (EPA, CWA). Re- nation and growth. Eutrophica- review individual NPDES per- quire measures to prevent or tion occurs around southern mit applications for impacts on respond to a catastrophic California sewage outfalls ESA-listed species. event (i.e., using best tech- where phytoplankton crops and nology to avoid unnecessary primary production exceed typ- discharges). ical levels and approach val- ues characteristic of upwelling periods. Water quality PCE—Exposure to heavy metals can affect growth of marine organisms, either promoting or inhibiting growth depending on the combination and concentrations of metals. There is little information on these effects on black abalone, however.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Coastal develop- 2, 4, 7, 8, 10, Rocky substrate PCE—Increased The USACE permits construction Stormwater pollution prevention ment. 17, 19, and 20. sediment load that may result or expansion of stormwater plan; permanent stormwater from urbanization of the coast outfalls, discharge or fill of wet- site plan; and stormwater best and of watersheds (increased lands, flood control projects, management practice oper- transport of fine sediments into bank stabilization, and in- ations and maintenance. the coastal zone by rivers or stream work. runoff) can reduce the quality and/or quantity of rocky sub- strate. For example, in a study on San Nicolas Island, black abalone ‘‘dominated areas where rock contours provided a refuge from sand deposition’’ (Littler et al., 1983, cited in Airoldi, 2003). Overall, there has been little study of the ef- fects of increased sedimenta- tion on rocky shoreline com- munities (Airoldi, 2003). In ad- dition, construction of coastal armoring is often associated with coastal urban develop- ment to protect structures from wave action or prevent erosion (see ‘‘in-water construction’’ in Section 2.1). Food resources PCE—Increased sedimentation may also affect feeding by covering up food re- sources, altering algal commu- nities (including algal commu- nities on the rocky reef and the growth of kelp forests that sup- ply drift algae), and altering in- vertebrate communities (affect- ing biological interactions). Ephemeral and turf-forming algae were found to be favored in rocky intertidal areas that experience intermittent inunda- tion (Airoldi, 1998, cited in Thompson et al., 2002). Settlement habitat PCE—In- creased sedimentation may af- fect settlement of larvae and propagules by covering up set- tlement habitat as well as af- fecting the growth of encrusting coralline algae (see Steneck et al., 1997, cited in Airoldi, 2003), thought to be important for settlement. Sidecasting ...... 7 and 8 ...... Rocky substrate and settlement National Marine Sanctuary Haul away (or store locally) ex- habitat PCEs—Increased likeli- (NMS) regulations prohibit dis- cess material from road main- hood of sediment input into charge of materials within its tenance activities, rather than rocky intertidal habitats may boundaries, as well as outside sidecast; place excess material reduce its quality and quantity. its boundaries if the material at a stable site at a safe dis- Food resources PCE— may enter the sanctuary and tance from rocky intertidal Sidecasting may result in pos- harm sanctuary resources. habitats; and use mulch or sible reductions or changes to However, under certain cir- vegetation to stabilize the ma- food resources. See sedi- cumstances, a permit may be terial. mentation effects as described obtained from the Monterey under ‘‘Coastal development’’, Bay National Marine Sanctuary above. (MBNMS) to allow for a prohib- ited activity.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Agricultural activi- 1, 2, 3, 4, 7, 8, Rocky substrate PCE—Soil ero- Irrigation—any water supplier For irrigated agriculture: con- ties (including 9, 10, 12, and sion from intensive irrigated providing water via contract servation crop rotation, under- pesticide appli- 16. agriculture or livestock farming with U.S. Bureau of Reclama- ground outlets, land smooth- cation, irriga- of areas adjacent to the coast tion (USBR) or using infra- ing, structures for water con- tion, and live- can cause increased sedi- structure owned or maintained trol, subsurface drains, field stock farming). mentation thereby reducing the by the USBR is subject to sec- ditches, mains or laterals, and quality and quantity of rocky tion 7 consultation under ESA. toxic salt reduction. substrate. Privately owned diversions For pesticides application: restric- Food resources PCE—Herbi- may require a Federal permit tions on application of some cides are designed to kill from USACE under sections pesticides within certain dis- plants, thus herbicide contami- 401 or 404 of the CWA. tances of streams. nation of water could have Pesticide Application—Environ- For livestock farming: fencing ri- devastating effects on aquatic mental Protection Agency parian areas; placing salt or plants. (EPA) consultation on the Fed- mineral supplements to draw Settlement habitat PCE—Labora- eral Insecticide, Fungicide, and cattle away from rivers; total tory experiments showed that Rodenticide Act (FIFRA), pes- rest of allotments when pos- the presence of pesticides ticide registration program, and sible; and frequent monitoring. (those examined in the study NPDES permits for aquatic were DDT, methoxychlor, pesticides. dieldrin, and 2,4–D) interfered Livestock farming—Bureau of with larval settlement. Pres- Land Management (BLM) and ence of pesticides had a much the U.S. Forest Service lesser effect on survival of lar- (USFS). vae. Water quality PCE—Pesticides alter the chemical properties of sea water such that they can interfere with settlement cues emitted by coralline algae and associated diatom films and/or they may inhibit growth of ma- rine algae upon which black abalone depend for food. There is little information on these effects on black abalone or related species, however, especially for pesticides that are currently in use.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Oil & chemical 4, 5, 7, 8, 9, 12, Rocky substrate and settlement Review of oil spill response plan Restrict or minimize the use or spills & clean- 15, and 19. habitat PCEs—Oil spill clean- from United States Coast type of response to oil spills up. up activities may be as de- Guard (USCG). Regulations (e.g. boom, dispersants, in situ structive, or more destructive, under the Water Pollution Con- burning) in areas where black than the oil spill itself. Oil spill trol Act. abalone habitat exists. Mitiga- clean-up may involve applica- tion measures include adoption tion of toxic dispersants and of oil/chemical spill clean-up the use of physical cleaning protocols and oil/chemical spill methods such as the use of prevention plans, more Clean high pressure and/or high tem- Seas boats as first responders perature water to flush out oil to prevent oil/chemical spills which may decrease the qual- from coming onshore, and re- ity of rocky substrate and set- location of proposed oil/chem- tlement habitat in an area. Oil, ical platforms further away oil/dispersant mixtures, and from black abalone habitats. dispersants used in oil spill clean-up may adversely affect grazing mollusks like abalone in rocky intertidal areas, al- though less-toxic dispersants have been developed in recent years. Food resources PCE—The use of dispersants and physical cleaning methods may affect black abalone food resources (algal community). Chemical spills could also affect food re- sources, if the chemicals kill algae or affect algal growth. Water quality PCE—Effects of oil spills vary from no discernable differences to widespread mor- tality of marine invertebrates over a large area and reduced densities persisting a year after the spill. Vessel grounding 8 ...... Rocky substrate and settlement The USCG has the authority to Best management practices habitat PCEs—Vessel ground- respond to all oil and haz- (BMP) for oil spill and debris ing can affect the rocky sub- ardous substance spills in the clean-up to reduce trampling. strate and have substantial ef- offshore/coastal zone, while Education of USCG, NMS biolo- fects on the environment, rang- the EPA has the authority to gists, and others involved in ing from minor displacement of respond in the inland zone. clean-up to raise awareness of sediment to catastrophic dam- black abalone. age to reefs. Wave activity may also cause the vessel to roll excessively and do more damage to the ocean floor. Food resources and water quality PCEs—The risk of invasion by foreign species attached to the ship’s hull into a local environ- ment. The wreck of an ocean- going vessel can result in large masses of steel distributed over substantial areas of sea- bed, particularly in high en- ergy, shallow water environ- ments. The wreckage may be a chronic source of dissolved iron. Elevated levels of iron may affect water quality and result in an increase of oppor- tunistic algae blooms.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Construction and 10 ...... Water quality PCE—The power The Diablo Canyon Nuclear Require cooling of thermal efflu- operation of plants’ use of coastal waters Power Plant, located in specific ent before release to the envi- power plants. for cooling and subsequently area 10, is licensed through ronment (may require use of discharging of heated water the Nuclear Regulatory Com- different technology). Require back into the marine environ- mission. treatment of any contaminated ment may raise water tempera- waste materials. tures and introduce contami- Modifications associated with nants into the water. Elevated permit issued under NPDES water temperatures have been (any updates from current linked to increased virulence of early 1990s issuance). Dry the withering syndrome dis- cooling systems (not as fea- ease. sible as wet cooling systems due to greater logistical con- straints and total costs). Modi- fications to cooling water in- take flow by season and oper- ational conditions using vari- able speed pumps/variable fre- quency drives (benefits depend on the frequency and degree that flow can be reduced with- out affecting operations). Use of reclaimed water as a source of makeup water for wet cool- ing towers or as a source for once-through cooling water systems. Construction and 4, 7, 8, 9, 10, Water quality PCE—Discharge of A desalination facility may re- Potential conservation efforts to operation of de- 12, 17, and 19. hyper-saline water results in in- quire a Section 404 permit mitigate desalination impacts salination plants. creased salinity and fluctuating under the CWA from the may include the treatment of salinity conditions that may af- USACE if it involves placing fill hyper-saline effluent to ensure fect sensitive organisms near in navigable waters, and a that salinity levels are restored the outfall. The impacts of Section 10 permit under the to normal values. The costs of brine effluent are generally RHA if the proposal involves treating hyper-saline effluent or more severe in rocky substrate placing a structure in a navi- finding an alternate manner of than on sandy seafloor habi- gable waterway. brine disposal can vary widely tats. However, more research across plants depending on is needed on the tolerance plant capacity and design. level of black abalone for dif- ferent salinities. Other effects of the discharge on water qual- ity include increased turbidity, concentration of organic sub- stances and metals contained in the feed waters, concentra- tion of metals picked up through contact with the plant components, thermal pollution, and decreased oxygen levels. Entrainment and impingement of black abalone larvae may also occur from water intake at desalination plants, but this is primarily a take issue.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Construction and 1 and 19 ...... Rocky substrate PCE—Impacts Subject to the Federal Energy Use of non-toxic fluids instead of operation of on rocky substrate may result Regulatory Commission toxic fluids. tidal and wave from the installation of power (FERC) permitting and licens- When the project requires the energy projects. lines to transport power to ing requirements, as well as use of power lines, use exist- shore. These projects typically requirements under Section ing power lines, instead of con- involve placement of struc- 401 of the CWA. structing new ones, and avoid tures, such as buoys, cables, rocky intertidal areas. and turbines, in the water col- umn. Water quality PCE—Alternative energy projects may result in reduced wave height by as much as 5 to 13 percent, which may benefit abalone habitat. Effects on wave height would generally only be ob- served 1–2 km away from the wave energy device. Another concern is the potential for liq- uids used in the system to leak or be accidentally spilled, re- sulting in release of toxic fluids. Toxins may also be re- leased in the use of biocides to control the growth of marine organisms. The potential ef- fects of coastal wave and tidal energy projects on black aba- lone habitat are uncertain, be- cause these projects are rel- atively new and the impacts are very site-specific. Construction and Unknown ...... Rocky substrate PCE—Onshore CWA permits under section 401 Offshore facilities: In the installa- operation of liq- We solicit the LNG terminals, construction of (water quality certificate) and/ tion of pipelines, avoid rocky uefied natural public for breakwaters, jetties, or other or section 404 (a dredge and intertidal habitats or use exist- gas (LNG) more informa- shoreline structures and the fill permit) and Clean Air Act ing pipelines. Onshore siting projects. tion (see activities associated with con- permits under section 502 may considerations: Avoid siting ‘‘Public Com- struction (e.g., dredging) may be required. LNG projects within or adja- ments Solic- affect black abalone habitat. cent to rocky intertidal habitats. ited’’). Offshore LNG terminals involve construction of pipelines to transport LNG onshore and may affect rocky habitat. See sedimentation effects de- scribed under ‘‘dredging’’, ‘‘in- water construction’’, and ‘‘coastal development’’. Food resource and water quality PCEs—There is an increased potential for oil spills and po- tential effects on water quality from the presence of vessels transporting and offloading LNG at the terminals.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Mineral and petro- 10 ...... Rocky substrate PCE—This ac- The Mineral Management Serv- Adoption of erosion control leum explo- tivity may result in increased ice (MMS) manages the na- measures. Adoption of oil spill ration and ex- sedimentation into rocky tion’s offshore energy and min- clean-up protocols and oil spill traction. intertidal habitats. See sedi- eral resources, including oil, prevention plans; more Clean mentation effects described gas, and alternative energy Seas boats as first responders under ‘‘dredging’’, ‘‘in-water sources, as well as sand, grav- to prevent oil spills from com- construction’’, and ‘‘coastal de- el and other hard minerals on ing onshore; and relocation of velopment’’. the outer continental shelf. proposed oil platforms further Food resources and settlement away from black abalone habi- habitat PCE—In a laboratory tats. study, water-based drilling muds from an active platform were found to negatively affect the settlement of red abalone larvae on coralline algae, but fertilization and early develop- ment were not affected. Water quality PCE—The activity may cause an increased risk of oil spills or leaks and in- creased sedimentation thereby affecting water quality. Non-native spe- 2, 4, 8, 10, and Food resources PCE—The re- The National Invasive Species For commercial shipping: safe cies introduction 11. lease of wastewater, sewage, Act of 1996 (NISA) and the (non-contaminated) ballast dis- and manage- and ballast water from com- Nonindigenous Aquatic Nui- posal; rinse anchors and an- ment. mercial shipping presents a sance Prevention and Control chor chains when retrieving the risk to kelp and other Act of 1990 under the USCG. anchor to remove organisms macroalgal species because of and sediments at their place of the potential introduction of ex- origin; remove hull fouling or- otic species. ganisms from hull, piping, pro- Settlement habitat PCE—Non- pellers, sea chests, and other native species may displace submerged portions of a ves- native organisms by preying on sel, on a regular basis, and them or out-competing them dispose of removed sub- for resources such as food, stances in accordance with space or both. Non-native spe- local, state, and federal law. cies may introduce disease- For aquaculture: inspect aqua- causing organisms and can culture facilities to prevent non- cause substantial population, native species transport in community, and habitat packing materials. changes. Other possible con- sequences of non-native spe- cies introductions could be im- pacts on flow patterns, sedi- ment and nutrient dynamics, and impacts on native bio- engineering species. Kelp harvesting ... 7–20 ...... Food resources PCE—Kelp is None ...... None. the primary source of food for black abalone. Kelp is har- vested for algin, which is used as a binder, emulsifier, and molding material in a broad range of products, and as a food source in abalone aqua- culture operations. The harvest is small, but the kelp grows quickly, and harvest could gen- erate drift (which can poten- tially be beneficial to black ab- alone). Potential impacts re- lated to kelp harvesting are un- clear.

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TABLE 1—SUMMARY OF ACTIVITIES THAT MAY AFFECT BLACK ABALONE PCES, INCLUDING: THE AREA(S) IN WHICH THE ACTIVITY IS LOCATED, THE PCE(S) THE ACTIVITY COULD AFFECT AND THE NATURE OF THAT THREAT, THE ESA SEC- TION 7 NEXUS FOR THAT ACTIVITY, AND THE POSSIBLE MODIFICATIONS TO THE ACTIVITY DUE TO THE BLACK ABA- LONE CRITICAL HABITAT DESIGNATION—Continued

Possible modification(s) to the Activity Specific areas PCE and nature of the threat Section 7 nexus activity

Activities leading 1–20 ...... Affects all PCEs. There is little Uncertain ...... Uncertain. to global cli- information on these effects, mate change however. We solicit the public (e.g., fossil fuel for more information (see combustion). ‘‘Public Comments Solicited’’). Water quality PCE—Sea surface water temperatures that ex- ceed 25ßC may increase risks to black abalone. Ocean pH values that are outside of the normal range for seawater (i.e., pH less than 7.5 or great- er than 8.5) may cause re- duced growth and survivorship in abalone as has been ob- served in other marine gastro- pods (Shirayama and Thorn- ton, 2005). Food resources and settlement habitat PCE–Increasing partial pressure of carbon dioxide may reduce abundance of coralline algae and thereby af- fect the survival of newly set- tled black abalone (Feely et al., 2004; Hall-Spencer et al., 2008).

Unoccupied Areas the past 5 years. In the area from Cape were not considered in further analyses. Arago, Oregon, to the Del Mar Landing We solicit comments from the public Section 3(5)(A)(ii) of the ESA Ecological Reserve, California, four regarding the historical, current, and ‘‘ authorizes the designation of specific museum specimens of black abalone potential condition of the habitat and of areas outside the geographical area were noted from two survey sites black abalone populations within the occupied at the time [the species] is (Geiger, 2004), one specimen was noted unoccupied areas identified above and listed’’ if these areas are essential for the from another site where red abalone are the importance of these areas to conservation of the species. Regulations considered common (Thompson, 1920), conservation of the species. at 50 CFR 424.12(e) emphasize that the and no data on black abalone were Military Lands agency ‘‘shall designate as critical available for the other sites. Black habitat areas outside the geographical abalone were not observed during rocky Under the Sikes Act of 1997 (Sikes area presently occupied by a species intertidal surveys conducted in the Act) (16 U.S.C. 670a), ‘‘each military only when a designation limited to its 1970s and 1980s at several sites within installation that includes land and water present range would be inadequate to this area (J. DeMartini, pers. comm.). In suitable for the conservation and ensure the conservation of the species.’’ the area from just south of Government management of natural resources’’ is The CHRT identified potential Point to Point Dume State Beach in required to develop and implement an unoccupied areas to consider for California, black abalone were reported integrated natural resources designation. These areas represent as rare at one site (Morin and management plan (INRMP). An INRMP segments of the California and Oregon Harrington, 1979), but have never been integrates implementation of the coast that contain rocky intertidal observed at the other survey sites. In the military mission of the installation with habitats that historically supported area from Cardiff State Beach to Cabrillo stewardship of the natural resources black abalone and that may support National Monument in California, black found there. Each INRMP includes: An black abalone populations in the future. abalone were noted to be historically assessment of the ecological needs on The CHRT identified the following present at a few sites (Zedler, 1976, the military installation, including the unoccupied areas: (1) From Cape Arago 1978) and rare at one site (California need to provide for the conservation of State Park, Oregon, to Del Mar Landing State Water Resources Control Board, listed species; a statement of goals and Ecological Reserve, California; (2) from 1979). priorities; a detailed description of just south of Government Point to Point At this time, the CHRT concluded that management actions to be implemented Dume State Beach, California; and (3) the three unoccupied areas may be to provide for these ecological needs; from Cardiff State Beach in Encinitas, essential for conservation, but that there and a monitoring and adaptive California, to Cabrillo National is currently insufficient data to management plan. Each INRMP must, to Monument, California. conclude that any of the areas are the extent appropriate and applicable, In each of these areas, black abalone essential for conservation. Therefore, provide for fish and wildlife have not been observed in surveys in the three presently unoccupied areas management, fish and wildlife habitat

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enhancement or modification, wetland Reserve to Bodega Head, Bodega Head impacts that may result from the protection, enhancement, and to Point Bonita, Farallon Islands, etc.). designation and the application of ESA restoration where necessary to support Delineating the ‘‘particular areas’’ as the section 7(a)(2). fish and wildlife and enforcement of same units as the ‘‘specific areas’’ In determining the impacts of the applicable natural resource laws. The allowed us to most effectively consider designation, we focused on the ESA was amended by the National the conservation value of the different incremental change in Federal agency Defense Authorization Act for Fiscal areas when balancing conservation actions as a result of the critical habitat Year 2004 (Pub. L. 108–136) to address benefits of designation against economic designation and the adverse the designation of military lands as benefits of exclusion. Delineating modification prohibition, beyond the critical habitat. ESA section 4(a)(3)(B)(i) particular areas based on impacts on changes predicted to occur as a result of states: ‘‘The Secretary shall not national security or other relevant listing and the jeopardy provision. designate as critical habitat any lands or impact should be based on land Following a line of recent court other geographical areas owned or ownership or control (e.g., land decisions, in particular, Cape Hatteras controlled by the Department of controlled by the Department of Defense Access Preservation Alliance v. Norton, Defense, or designated for its use, that (DOD) within which national security 344 F. Supp. 2d 1080 (D.D.C. 2004)) are subject to an integrated natural impacts may exist, or Indian lands). We (Cape Hatteras) we analyzed the impact resources management plan prepared request information on other relevant of this proposed regulation based on a under section 101 of the Sikes Act (16 impacts that should be considered (see comparison of the world with and U.S.C. 670a), if the Secretary determines ‘‘Public Comments Solicited’’). The next without the action. Consistent with the in writing that such plan provides a step in the ESA section 4(b)(2) analysis Cape Hatteras decision, we focus on the benefit to the species for which critical involves identification of the impacts of potential incremental impacts beyond habitat is proposed for designation.’’ The designation (i.e., the benefits of the impacts that would result from the Navy’s facilities on San Clemente Island designation and the benefits of listing and jeopardy provision. In some and San Nicolas Island are covered by exclusion). We then weigh the benefits instances, however, it was difficult to INRMPs that are currently being revised of designation against the benefits of exclude potential impacts that may to address black abalone conservation. If exclusion to identify areas where the already occur under the baseline (i.e., these INRMPs are finalized and benefits of exclusion outweigh the protections already afforded black determined to provide benefits to black benefits of designation. These steps and abalone under its listing or under other abalone, as described under section the resulting list of areas proposed for Federal, State, and local regulations). 4(a)(3)(B) of the ESA, then the areas exclusion from designation are Many uncertainties exist with regard to would be ineligible for designation and described in detail in the sections future management actions that may be a determination on whether the areas below. required due to black abalone critical warrant exclusion under section 4(b)(2) habitat because of the short consultation Impacts of Designation of the ESA based on national security history for black abalone and overlap impacts would no longer be necessary. The primary impact of a critical with protections provided under the habitat designation stems from the listing and other existing regulations. Application of ESA Section 4(b)(2) requirement under section 7(a)(2) of the Thus, the analysis included some Section 4(b)(2) of the ESA requires the ESA that Federal agencies ensure their impacts that would have occurred under Secretary to consider the economic, actions are not likely to result in the the baseline regardless of the critical national security, and any other relevant destruction or adverse modification of habitat designation. As such, the impacts of designating any particular critical habitat. Determining this impact consideration of impacts cannot be area as critical habitat. Any particular is complicated by the fact that section characterized as exclusively incremental area may be excluded from critical 7(a)(2) contains the overlapping impacts of the critical habitat habitat if the Secretary determines that requirement that Federal agencies must designation (New Mexico Cattle Growers the benefits of excluding the area also ensure their actions are not likely Association v. U.S. Fish and Wildlife outweigh the benefits of designating the to jeopardize the species’ continued Service, 248 F.3d 1277 (10th Cir. 2001)) area. The Secretary may not exclude a existence. One incremental impact of (NMCA). Instead, the impacts of the particular area from designation if designation is the extent to which designation are more correctly exclusion will result in the extinction of Federal agencies modify their actions to characterized as black abalone impacts. the species. Because the authority to ensure their actions are not likely to Once we determined the impacts of exclude is discretionary, exclusion is adversely modify the critical habitat of the designation, we then determined the not required for any areas. We propose the species, beyond any modifications benefits of designation and the benefits to exclude one occupied specific area they would make because of the listing of exclusion based on the impacts of the (i.e., Corona Del Mar State Beach to and the jeopardy requirement. When a designation. The benefits of designation Dana Point, Orange County, CA) from modification would be required due to include the conservation impacts for the critical habitat designation because impacts to both the species and critical black abalone and its habitat that result the economic benefits of exclusion habitat, the impact of the designation is from the critical habitat designation and outweigh the benefits of designation. considered co-extensive with the ESA the application of ESA section 7(a)(2). The first step in conducting the ESA listing of the species. Additional The benefits of exclusion include the section 4(b)(2) analysis is to identify the impacts of designation include state and economic impacts, impacts on national ‘‘particular areas’’ to be analyzed. Where local protections that may be triggered security, and other relevant impacts we considered economic impacts and as a result of the designation and the (e.g., impacts on Indian lands) of the weighed the economic benefits of benefits from educating the public about designation that would be avoided if a exclusion against the conservation the importance of each area for species particular area were excluded from the benefits of designation, we used the conservation. Thus, the impacts of the critical habitat designation. The same biologically-based ‘‘specific areas’’ designation include conservation following sections describe how we we identified in the previous sections impacts for black abalone and its determined the benefits of designation pursuant to section 3(5)(A) of the ESA habitat, economic impacts, impacts on and the benefits of exclusion and how (e.g., Del Mar Landing Ecological national security, and other relevant these benefits were weighed, as required

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under section 4(b)(2) of the ESA, to critical habitat, or of the monetary value to determine the types of activities and identify particular areas that may be of education and outreach benefits). As potential range of changes. For each eligible for exclusion from the an alternative approach, we determined potential impact, we tried to provide designation. We also summarize the the benefits of designation based on the information on whether the impact is results of this weighing process and CHRT’s biological analysis of the more closely associated with adverse determinations on the areas that may be specific areas. We used the CHRT’s modification or with jeopardy, to eligible for exclusion. conservation value ratings (High, distinguish the impacts of applying the Medium, and Low) to represent the Benefits of Designation jeopardy provision versus the adverse qualitative conservation benefits of modification provision. The primary benefit of designation is designation for each of the specific areas While the statute and our agency the protection afforded under section 7 considered for designation. In guidance directs us to identify activities of the ESA, requiring all Federal evaluating the conservation value of that may affect the habitat features agencies to ensure their actions are not each specific area, the CHRT focused on important to black abalone conservation likely to destroy or adversely modify the habitat features present in each area, within a specific area in order to designated critical habitat. This is in the habitat functions provided by each determine its eligibility for designation, addition to the requirement that all area, and the importance of protecting not all of these activities may be affected Federal agencies ensure their actions are the habitat for the overall conservation by the critical habitat designation (i.e., not likely to jeopardize the continued of the species. The CHRT considered a subject to a section 7 consultation) and existence of the species. In addition, the number of factors to determine the designation may provide education and sustain an economic impact. It is only conservation value of each specific area, those activities with a federal nexus that outreach benefits by informing the including: (a) The present condition of public about areas and features would sustain an economic impact as a the primary constituent elements or result of the designation. Within the set important to the conservation of black PCEs; (b) the level at which the habitat abalone. By delineating areas of high of activities identified in the Special supports recruitment of early life stages, Management Considerations and conservation value, the designation may based on the level of recruitment help focus and contribute to Protections above, we were only able to observed at survey sites within the area; estimate economic impacts for a subset conservation efforts for black abalone and (c) the level at which the habitat of them because of: (1) The limited and their habitats. supports long-term survival of juvenile consultation history; (2) uncertainty in The designation of critical habitat has and adult black abalone, based on the types of modification that would be been found to benefit the status and trends in the abundance and size required; (3) uncertainty in the number recovery of ESA-listed species. Recent frequencies of black abalone and locations of activities based on reports by the USFWS indicated that populations observed at survey sites currently available data; and (4) the lack species with critical habitat were more within the area. These conservation of available cost data. The draft likely to have increased and less likely value ratings represent the estimated economic report analyzes the potential to have declined than species without conservation impact to black abalone economic impacts to the following critical habitat (Taylor et al. 2005). In and its habitat if the area were addition, species with critical habitat designated as critical habitat, and thus categories of activities: (1) Coastal were also more likely to have a recovery were used to represent the benefit of development; (2) in-water construction; plan and to have these plans designation. The draft Biological Report (3) sand replenishment or beach implemented, compared to species (NMFS 2010a) provides detailed nourishment activities; (4) agricultural without critical habitat (Harvey et al., information on the CHRT’s biological activities (e.g., irrigation); (5) NPDES 2002; Lundquist et al. 2002). These analysis and evaluation of each specific activities and activities generating non- benefits may result from the unique, area. point source pollution; (6) sidecasting; species-specific protections afforded by (7) oil and chemical spills and clean-up critical habitat (e.g., enhanced habitat Benefits of Exclusion Based on activities; (8) power generation protection, increased public awareness Economic Impacts and Proposed operations involving water withdrawal and education of important habitats) Exclusions from and discharge to marine coastal that are more comprehensive than other The economic benefits of exclusion waters; (9) construction and operation of existing regulations (Hagen and Hodges, are the economic impacts that would be alternative energy hydrokinetic projects 2006). avoided by excluding particular areas (tidal or wave energy projects); and (10) The benefits of designation are not from the designation. To determine construction and operation of directly comparable to the benefits of these economic impacts, we first asked desalination plants. The following exclusion for the purposes of weighing the CHRT to identify activities within activities were discussed qualitatively: the benefits under conducting the ESA each specific area that may affect black Dredging and disposal of dredged section 4(b)(2) analysis as described abalone and its critical habitat. The 17 material; agricultural pesticide below. Ideally, the benefits of categories of activities identified by the application and livestock farming; designation and benefits of exclusion CHRT are identified in the Special mineral and petroleum exploration or should be monetized in order to directly Management Considerations and extraction; construction and operation compare and weigh them. With Protections above. We then considered of LNG projects; vessel groundings; non- sufficient information, it may be the range of modifications NMFS might native species introduction and possible to monetize the benefits of a seek in these activities to avoid management; kelp harvesting; and critical habitat designation by first destroying or adversely modifying black activities that lead to global climate quantifying the benefits expected from abalone critical habitat. Where possible, change. The economic impacts of the an ESA section 7 consultation and we focused on changes beyond those designation on these activities could not translating that into dollars. We are not that may be required under the jeopardy be quantified because a federal nexus aware, however, of any available data to provision. Because of the limited does not exist (i.e., for kelp harvesting monetize the benefits of designation consultation history, we relied on activities) or is uncertain (i.e., for (e.g., estimates of the monetary value of information from other section 7 activities that lead to global climate the PCEs within areas designated as consultations and the CHRT’s expertise change), or because the potential

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economic impacts are uncertain, for the statute emphasizes that the decision to CHRT gave the area a ‘‘Low’’ reasons described above. The draft exclude is discretionary. Thus, the level conservation value, because the current economic report (NMFS, 2010a) at which the economic benefits of habitat conditions are of lower quality provides a more detailed description exclusion outweigh the conservation compared to other areas along the coast. and analysis of the potential economic benefits of designation is a matter of While rocky intertidal habitat of good impacts to each of these categories of discretion and depends on the policy quality occurs within the area, these activities. context. For critical habitat, the ESA habitats are patchy and may be affected We had sufficient information to directs us to consider exclusions to by sand scour due to the presence of monetize the economic benefits of avoid high economic impacts, but also many sandy beaches. In addition, the exclusion, but were not able to monetize requires that the areas designated as rocky habitat within the area consists of the conservation benefits of designation. critical habitat are sufficient to support narrow benches and fewer crevices Thus, to weigh the benefits of the conservation of the species and to compared to other areas and has been designation against the economic avoid extinction. In this policy context, degraded by the establishment of benefits of exclusion, we compared the we developed decision rules with dollar sandcastle worm (Phragmatopoma conservation value ratings with thresholds representing the levels at californica) colonies. There is also little economic impact ratings that were which we believe the economic benefit to no coralline algae to provide adequate based on the mean annualized economic of exclusion associated with a specific larval settlement habitat. Low densities impact estimates (discounted at 7%; see area could outweigh the conservation of black abalone were observed at a few draft economic report (NMFS 2010a) for benefits of designation. These dollar sites in the area in the 1970s and 1980s. additional details) for each specific area. thresholds and decision rules provided However, no recruitment has been To develop the economic impact a relatively simple process to identify, observed and black abalone have been ratings, we examined the mean in a limited amount of time, specific absent from the area except for one annualized economic impacts areas warranting consideration for black abalone found in January 2010. (discounted at 7 percent) across all of exclusion based on economic impacts. For these reasons, the CHRT concluded the specific areas. We then divided the Based on this analysis, two areas were that excluding specific area 12 (from economic impacts into four economic identified preliminarily as eligible for Corona Del Mar State Beach to Dana impact rating categories corresponding exclusion. These areas were: (1) Specific Point) from the designation would not to ‘‘Low’’ ($0 to $100,000), ‘‘Medium’’ area 10, from Montan˜ a de Oro State Park significantly impede the conservation of (greater than $100,000 to $500,000), to just south of Government Point; and black abalone. The high estimated ‘‘High’’ (greater than $500,000 to $10 (2) specific area 12, from Corona Del economic impact for this area was million), and ‘‘Very High’’ (greater than Mar State Beach to Dana Point. We primarily due to impacts associated $10 million) economic impact ratings. presented the two areas to the CHRT to with construction and operation of a The four economic impact rating help us further characterize the benefits proposed desalination plant, which categories were determined by visually of designation by determining whether made up about 93% of the mean inspecting the economic impact values excluding any of these areas would annualized economic impact estimate of and identifying natural breakpoints in significantly impede conservation of $1,563,500 for this area. The estimated the economic impacts data where the black abalone. If exclusion of an area economic impacts to the desalination estimated economic impacts would significantly impede plant were based on the costs for using experienced a large increase. We then conservation, then the benefits of alternate methods of brine disposal (i.e., compared these economic impact exclusion would likely not outweigh the injection wells). ratings (representing the benefits of benefits of designation for that area. The exclusion) with the conservation value CHRT considered this question in the The CHRT determined, and we ratings (representing the benefits of context of all of the areas eligible for concur, that exclusion of specific area designation) and applied the following exclusion as well as the information 10 (from Montan˜ a de Oro State Park to decision rules to identify areas eligible they had developed in providing the just south of Government Point) would for exclusion based on economic conservation value ratings. If the CHRT significantly impede conservation of impacts: (1) Areas with a conservation determined that exclusion of an area black abalone. The CHRT gave the area value rating of ‘‘High’’ were eligible for would significantly impede a ‘‘High’’ conservation value in their exclusion if the mean annualized conservation of black abalone, the biological evaluation. Historically, black economic impact estimate exceeded $10 conservation benefits of designation abalone were considered common at million (i.e., the economic impact rating were increased one level in the several sites within the area. The was ‘‘Very High’’); (2) areas with a weighing process. This necessitated the populations have since suffered conservation value rating of ‘‘Medium’’ creation of a Very High conservation declines due to WS, but continue to were eligible for exclusion if the mean value rating. Areas rated as ‘‘Very High’’ persist at several sites. Although the annualized economic impact estimate were deemed to have a very high habitat has changed since the decline in exceeded $500,000 (i.e., the economic likelihood of promoting the abalone (e.g., sea urchins and encrusting impact rating was at least a ‘‘High’’); and conservation of the species. invertebrates have moved in to some (3) areas with a conservation value The CHRT determined, and we crevice habitats), the habitat remains of rating of ‘‘Low’’ were eligible for concur, that exclusion of specific area high quality. The CHRT also exclusion if the mean annualized 12 (from Corona Del Mar State Beach to emphasized the importance of this area economic impact estimate exceeded Dana Point) would not significantly in maintaining connectivity between $100,000 (i.e., the economic impact impede conservation of black abalone black abalone populations on the north- rating was at least a ‘‘Medium’’). and that the economic benefit of central California coast and the southern These dollar thresholds should not be exclusion for this area outweighs the California coast. Therefore, the CHRT interpreted as estimates of the dollar conservation benefit of designation. The determined, and we concur, that the value of High, Medium, or Low CHRT based their determinations on the conservation value of this area should conservation value areas. Under the best available data regarding the present be raised by one level (i.e., from High ESA, we are to weigh dissimilar impacts condition of the habitat and black to Very High). In addition, the estimated given limited time and information. The abalone populations in the area. The economic impact for this area is likely

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overestimated. The very high economic the designation of particular areas as ‘‘Public Comments Solicited’’). After impact estimate for this area was critical habitat for black abalone. In a assessing any additional information primarily due to costs associated with letter dated May 20, 2010 (5090 Ser N40 provided by the DOD as well as by the the Diablo Canyon Nuclear Power Plant JJR.cs/0011), representatives of the DOD public, a final determination will be (DCNPP), which made up about 46 identified the following particular areas made in the final critical habitat percent of the low annualized economic owned or controlled by the U.S. Navy designation. The Navy’s facilities on impact estimate and 99 percent of the and requested exclusion of these areas San Clemente Island and San Nicolas mean and high annualized economic from the designation based on potential Island are covered by INRMPs that are impact estimate for the area (see NMFS, national security impacts: (1) Naval currently being revised to address black 2010a for details). These estimated costs Auxiliary Landing Field (NALF) San abalone conservation. If these INRMPs were based on the costs required to Clemente Island; (2) Outlying Landing are finalized and determined to provide retrofit the DCNPP with a closed cooling Field (OLF) San Nicolas Island; (3) benefits to black abalone, as described system. However, there are less costly Naval Support Detachment Monterey; under section 4(a)(3)(B) of the ESA, then actions that we could not monetize that (4) Naval Weapons Station Seal Beach; the areas would be ineligible for could be taken to avoid or minimize and (5) Naval Base Ventura County designation and a determination on effects on black abalone habitat, such as (Point Mugu and Port Hueneme). whether the areas warrant exclusion restoring habitat in other areas around We determined that the Naval under section 4(b)(2) of the ESA based the DCNPP and conducting biological Support Detachment Monterey, Naval on national security impacts would no monitoring of black abalone and its Weapons Station Seal Beach, and Naval longer be necessary. The response habitat. Thus, the economic benefits of Base Ventura County do not occur summarized above was transmitted to exclusion were not determined to within the specific areas being the Navy via a letter from NMFS dated outweigh the conservation benefits of considered for designation (NMFS, July 9, 2010. designation for specific area 12 for the 2010b). Thus, these areas were not Benefits of Exclusion for Indian Lands following reasons: (a) The area has a included in further analyses. The NALF and Proposed Exclusions Very High conservation value to black San Clemente Island and OLF San abalone and exclusion of this area Nicolas Island do occur within the The only other relevant impacts of the would significantly impede specific areas being considered for designation identified were potential conservation of the species; and (b) the designation and were analyzed for impacts on Indian lands. The benefits of very high economic impacts are likely potential exclusion under section 4(b)(2) exclusion for Indian lands are the overestimated. We solicit comments of the ESA. impacts on Indian lands that would be from the public regarding the estimate The Navy did not provide information avoided if particular areas were of economic impacts to the DCNPP, the about the activities occurring within the excluded from the designation. A broad effects of the DCNPP on black abalone OLF San Nicolas Island, but did provide array of activities on Indian lands may and its habitat, and the potential information regarding activities trigger ESA section 7 consultations and modifications that may be required to conducted within the NALF San be affected by the designation of critical address these effects (including the Clemente Island that may be affected by habitat. The longstanding and feasibility and estimated costs of such the designation of critical habitat for distinctive relationship between the modifications; see ‘‘Public Comments black abalone. An overview of these Federal and tribal governments is Solicited’’). If information obtained activities is provided in the draft ESA defined by treaties, statutes, executive during the public comment period section 4(b)(2) report (NMFS, 2010b). orders, judicial decisions, and suggests that the very high economic More specific information is needed agreements, which differentiate tribal impact estimate for retrofitting the regarding which of the Navy activities governments from the other entities that DCNPP is a realistic impact of the may affect black abalone habitat (i.e., deal with, or are affected by, the Federal designation, we will re-examine our rocky intertidal habitat within MHHW government. This relationship has given analysis regarding this area and to a depth of 6 m), how these activities rise to a special Federal trust consider other approaches that may may be affected by the critical habitat responsibility involving the legal allow exclusion of a particular area designation, and how these effects may responsibilities and obligations of the within this specific area. result in impacts on national security. United States toward Indian Tribes and In summary, we propose to exclude We request additional information from the application of fiduciary standards of specific area 12 (from Corona Del Mar the Navy identifying and describing in due care with respect to Indian lands, State Beach to Dana Point) from the detail the activities that may occur in or tribal trust resources, and the exercise of critical habitat designation. Based on that may affect the areas being tribal rights. Pursuant to these the best scientific and commercial data considered for designation (i.e., rocky authorities, lands have been retained by currently available, we have determined habitat) and thus trigger consultation Indian Tribes or have been set aside for that exclusion of this area will not under section 7 of the ESA. This tribal use. These lands are managed by impede the conservation of black information is necessary to assess Indian Tribes in accordance with tribal abalone, nor will it result in the whether the areas warrant exclusion goals and objectives within the extinction of the species. from the designation based on national framework of applicable treaties and security impacts. laws. E.O. 13175 (Consultation and Benefits of Exclusion Based on National At this time, we do not propose to Coordination with Indian Tribal Security and Proposed Exclusions exclude the NALF San Clemente Island Governments) outlines the The national security benefits of or OLF San Nicolas Island from the responsibilities of the Federal exclusion are the impacts on national designation based on national security Government in matters affecting tribal security that would be avoided by impacts but will continue to coordinate interests. excluding particular areas from the with the Navy to assess the potential For this proposed critical habitat designation. We contacted national security impacts. Additional designation for black abalone, we representatives of the DOD to request information is also solicited from the reviewed maps indicating that none of information on potential national public regarding the potential national the specific areas under consideration security impacts that may result from security impacts of this designation (see for designation as critical habitat

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overlap with Indian lands. Therefore, no provided in the section titled ‘‘226.220 habitat is subsequently designated; or areas were considered for exclusion Critical habitat for the black abalone (2) new information or changes to the based on impacts on Indian lands. We (Haliotis cracherodii)’’ are provided for action may result in effects to critical solicit information from the public general guidance purposes only and not habitat not previously considered in the regarding any Indian lands that may as a definitive source for determining biological opinion. Consequently, some overlap with and may warrant exclusion critical habitat boundaries. As discussed Federal agencies may request from critical habitat for black abalone in previous critical habitat designations, reinitiation of consultation or (see ‘‘Public Comments Solicited’’). human activities that occur outside of conference with NMFS on actions for Indian lands are those defined in the designated critical habitat can destroy or which formal consultation has been Secretarial Order ‘‘American Indian adversely modify the essential physical completed, if those actions may affect Tribal Rights, Federal-Tribal Trust and biological features of these areas. designated critical habitat. Activities Responsibilities, and the Endangered This designation will help to ensure that subject to the ESA section 7 Species Act’’ (June 5, 1997) and include: Federal agencies are aware of the consultation process include activities (1) Lands held in trust by the United impacts that activities occurring outside on Federal lands and activities on States for the benefit of any Indian tribe; of the proposed critical habitat area private or state lands requiring a permit (2) land held in trust by the United (e.g., coastal development, activities that from a Federal agency (e.g., a section States for any Indian Tribe or individual exacerbate global warming, agricultural 10(a)(1)(B) permit from NMFS) or some subject to restrictions by the United irrigation and pesticide application) other Federal action, including funding States against alienation; (3) fee lands, may have on black abalone critical (e.g., Federal Highway Administration either within or outside the reservation habitat. (FHA) or Federal Emergency boundaries, owned by the tribal Management Agency (FEMA) funding). government; and (4) fee lands within the Effects of Critical Habitat Designation ESA section 7 consultation would not reservation boundaries owned by ESA Section 7 Consultation be required for Federal actions that do individual Indians. Should any Indian Section 7(a)(2) of the ESA requires not affect listed species or critical lands be identified within the specific Federal agencies, including NMFS, to habitat nor for actions on non-Federal and private lands that are not federally areas considered and proposed for ensure that any action authorized, designation as black abalone critical funded, authorized, or carried out. funded, or carried out by the agency habitat, they will be considered for (agency action) does not jeopardize the Activities Likely To Be Affected exclusion under section 4(b)(2) of the continued existence of any threatened ESA if the tribe or tribes request ESA section 4(b)(8) requires, to the or endangered species or destroy or exclusion (see ‘‘Public Comments maximum extent practicable, in any adversely modify designated critical Solicited’’). proposed regulation to designate critical habitat. When a species is listed or habitat, an evaluation and brief Critical Habitat Designation critical habitat is designated, Federal description of those activities (whether This rule proposes to designate agencies must consult with NMFS on public or private) that may adversely approximately 390 square kilometers of any agency actions to be conducted in modify such habitat or that may be habitat in California within the an area where the species is present and affected by such designation. A wide geographical area presently occupied by that may affect the species or its critical variety of activities may affect black black abalone. These critical habitat habitat. During the consultation, NMFS abalone critical habitat and may be areas contain physical or biological evaluates the agency action to determine subject to the ESA section 7 features essential to the conservation of whether the action may adversely affect consultation process when carried out, the species that may require special listed species or critical habitat and funded, or authorized by a Federal management considerations or issues its findings in a biological agency. The activities most likely to be protection. This rule proposes to opinion. If NMFS concludes in the affected by this critical habitat exclude from the designation the area biological opinion that the agency designation once finalized are: (1) from Corona Del Mar State Beach to action would likely result in the Coastal development; (2) in-water Dana Point, Orange County, CA. destruction or adverse modification of construction; (3) sand replenishment or Although we have identified three critical habitat, NMFS would also beach nourishment activities; (4) presently unoccupied areas, we are not recommend any reasonable and prudent agricultural activities (e.g., irrigation); proposing any unoccupied areas for alternatives to the action. Reasonable (5) NPDES activities and activities designation as critical habitat at this and prudent alternatives are defined in generating non-point source pollution; time, because we do not have sufficient 50 CFR 402.02 as alternative actions (6) sidecasting; (7) oil and chemical information to determine that any of the identified during formal consultation spills and clean-up activities; (8) unoccupied areas are essential to the that can be implemented in a manner construction and operation of power conservation of the species. consistent with the intended purpose of plants that take in and discharge water the action, that are consistent with the from the ocean; (9) construction and Lateral Extent of Critical Habitat scope of the Federal agency’s legal operation of alternative energy The lateral extent of the proposed authority and jurisdiction, that are hydrokinetic projects (tidal or wave critical habitat designation offshore is economically and technologically energy projects); and (10) construction defined by the 6 m depth bathymetry feasible, and that would avoid the and operation of desalination plants. contour relative to the line of mean destruction or adverse modification of Private entities may also be affected by lower low water (MLLW) and shoreward critical habitat. Regulations at 50 CFR this critical habitat designation if a to the MHHW line. The textual 402.16 require Federal agencies that Federal permit is required, Federal descriptions of critical habitat in the have retained discretionary involvement funding is received, or the entity is section titled ‘‘226.220 Critical habitat or control over an action, or where such involved in or receives benefits from a for the black abalone (Haliotis discretionary involvement or control is Federal project. These activities would cracherodii)’’ are the definitive source authorized by law, to reinitiate need to be evaluated with respect to for determining the critical habitat consultation on previously reviewed their potential to destroy or adversely boundaries. The overview maps actions in instances where: (1) Critical modify critical habitat. Changes to the

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actions to minimize or avoid destruction habitat; (9) information regarding the for Peer Review (Bulletin). The Bulletin or adverse modification of designated benefits of excluding particular areas was published in the Federal Register critical habitat may result in changes to from the critical habitat designation; on January 14, 2005 (70 FR 2664), and some activities. Please see the draft (10) current or planned activities in the went into effect on June 16, 2005. The economic report (NMFS, 2010a) for areas proposed for designation and their primary purpose of the Bulletin is to more details and examples of changes possible impacts on proposed critical improve the quality and credibility of that may need to occur in order for habitat; and (11) any foreseeable scientific information disseminated by activities to minimize or avoid economic, national security, tribal, or the Federal government by requiring destruction or adverse modification of other relevant impacts resulting from peer review of ‘‘influential scientific designated critical habitat. Questions the proposed designations. With regard information’’ and ‘‘highly influential regarding whether specific activities to Indian lands, we request that the scientific information’’ prior to public would constitute destruction or adverse following information be provided to modification of critical habitat should inform our ESA section 4(b)(2) analysis: dissemination. Influential scientific ‘‘ be directed to NMFS (see ADDRESSES (1) A map and description of the Indian information is defined as information and FOR FURTHER INFORMATION CONTACT). lands (e.g., location, latitude and the agency reasonably can determine longitude coordinates to define the will have or does have a clear and Public Comments Solicited boundaries, extent into waterways); (2) substantial impact on important public To ensure the final action resulting a description of tribal activities that may policies or private sector decisions.’’ The from this proposal will be as accurate be affected within the area; (3) a Bulletin provides agencies broad and as effective as possible, we solicit description of past, ongoing, or future discretion in determining the comments and suggestions from the conservation measures conducted by the appropriate process and level of peer public, other concerned governments tribes that may protect black abalone review. Stricter standards were and agencies, the scientific community, habitat within the area; and (4) a point established for the peer review of industry, or any other interested party of contact. ‘‘highly influential scientific concerning this proposed rule. We encourage comments on this assessments,’’ defined as information Specifically, public comments are proposal. You may submit your whose ‘‘dissemination could have a sought concerning: (1) The role that comments and materials by any one of potential impact of more than $500 ocean acidification plays in reducing several methods (see ADDRESSES). The million in any one year on either the growth and survivorship of abalone as proposed rule, maps, references, and public or private sector or that the has been observed in other marine other materials relating to this proposal dissemination is novel, controversial, or gastropods (Shirayama and Thornton, can be found on our Web site at precedent-setting, or has significant 2005); (2) the impact that reduced http://swr.nmfs.noaa.gov, on the Federal ’’ abundance of coralline algae resulting eRulemaking Portal at http:// interagency interest. The draft from increased partial pressure of www.regulations.gov, or can be made biological report and draft economic carbon dioxide (hereafter CO2) (Feely et available upon request. We will analysis report supporting this rule al., 2004; Hall-Spencer et al., 2008) has consider all comments and information proposing to designate critical habitat on the survival of newly settled black received during the comment period for for the black abalone are considered abalone; (3) the effects that this proposed rule in preparing the final influential scientific information and environmental pollutants have on rule. subject to peer review. These two growth, reproduction, and survival of reports will each be distributed to three black abalone at varying spatial scales, Public Hearings independent peer reviewers for review as has been demonstrated in a few, Regulations at 50 CFR 424.16(c)(3) on or before the publication date of this locally isolated cases (e.g., Diablo require the Secretary to promptly hold proposed rule. The peer reviewer Canyon-Martin et al., 1977; Palos at least one public hearing if any person comments will be compiled into a peer Verdes Peninsula-Leighton, 1959; Cox, requests one within 45 days of review report to be made available to 1962; Young, 1964; Miller and Lawrenz- publication of a proposed rule to the public at the time the black abalone Miller, 1993); (4) the impacts that designate critical habitat. Requests for a critical habitat designation is finalized. accidentally spilled oil from offshore public hearing must be made in writing drilling platforms or various types of (see ADDRESSES) by November 12, 2010. Required Determinations commercial vessels and subsequent If a public hearing is requested, a notice Regulatory Planning and Review (E.O. clean-up operations have on the quality detailing the specific hearing location of black abalone habitat; (5) information and time will be published in the 12866) describing the abundance, distribution, Federal Register at least 15 days before This proposed rule has been and habitat use of black abalone the hearing is to be held. Information on determined to be significant for throughout its current and historical specific hearing locations and times will purposes of E.O. 12866. A draft range; (6) information on the also be posted on our Web site at http:// economic analysis report and ESA identification, location, and quality of swr.nmfs.noaa.gov. These hearings section 4(b)(2) report have been physical or biological features which provide the opportunity for interested prepared to support the exclusion may be essential to the conservation of individuals and parties to give process under section 4(b)(2) of the ESA black abalone; (7) information regarding comments, exchange information and potential impacts of designating any opinions, and engage in a constructive and our consideration of alternatives to particular area, including the types of dialogue concerning this proposed rule. this rulemaking as required under E.O. Federal activities that may trigger an We encourage the public’s involvement 12866. The draft economic analysis ESA section 7 consultation and the in such ESA matters. report and ESA section 4(b)(2) report are possible modifications that may be available on the Southwest Region Web required of those activities as a result of Peer Review site at http://swr.nmfs.noaa.gov, on the section 7 consultation; (8) information On December 16, 2004, the Office of Federal eRulemaking Web site at http:// regarding the benefits of designating any Management and Budget (OMB) issued www.regulations.gov, or upon request particular area of the proposed critical its Final Information Quality Bulletin (see ADDRESSES).

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Regulatory Flexibility Act (5 U.S.C. 601 activities occur and which could be $407,050, and $325,300, respectively et seq.) affected by the designation. (NMFS, 2010a). Ideally, this analysis would directly In accordance with the requirements Under the Regulatory Flexibility Act identify the number of small entities of the RFA (as amended by SBREFA of (RFA) (5 U.S.C. 601 et seq., as amended that are located within the coastal areas 1996) this analysis considered various by the Small Business Regulatory adjacent to the specific areas. However, alternatives to the critical habitat Enforcement Fairness Act (SBREFA) of it is not possible to directly determine designation for the black abalone. The 1996), whenever an agency publishes a the number of firms in each industry alternative of not designating critical notice of rulemaking for any proposed sector within these areas because habitat for the black abalone was or final rule, it must prepare and make business activity data is maintained at considered and rejected because such an available for public comment a the county level. Therefore, this analysis approach does not meet the legal regulatory flexibility analysis describing provides a maximum number of small requirements of the ESA. We considered the effects of the rule on small entities businesses that could be affected. This the alternative of designating all specific (i.e., small businesses, small number is most likely inflated since all areas (i.e., no areas excluded); however, organizations, and small government of the identified small businesses are in one case, the benefits of excluding jurisdictions). We have prepared an unlikely to be located in close proximity specific area 12 (Corona Del Mar to initial regulatory flexibility analysis of the specific areas. Dana Point) outweighed the benefits of (IRFA), which is part of the draft After determining the number of including it in the designation. Thus, economic analysis report (NMFS, small entities, this analysis estimates NMFS also considered the alternative of 2010a). This document is available upon the impact per entity for each area and designating all specific areas, but request (see ADDRESSES), via our Web industry sector. The following steps excluding specific area 12. This site at http://swr.nmfs.noaa.gov, or via were used to provide these estimates: (1) alternative helps to reduce the number the Federal eRulemaking Web site at Total impact for every area and activity of small businesses potentially affected http://www.regulations.gov. type is determined based on the results from 3,671 to 3,193; however, the total In summary, the IRFA did not presented in the draft economic report potential annualized economic impact consider all types of small businesses (NMFS, 2010a); (2) the proportion of to small businesses ($76,858,250; that could be affected by the black businesses that are small is calculated NMFS, 2010a) remains largely abalone critical habitat designation due for every area for every activity type; (3) unchanged because the estimated to lack of information. Impacts to small the impact to small businesses for every annualized cost borne by small entities businesses involved in 10 activities area and activity type is estimated by associated with specific area 12 was were considered: (1) In-water multiplying the total impacts estimated very low ($27,200; NMFS, 2010a) and construction; (2) dredging; (3) NPDES- for all businesses with the proportion of only accounts for 0.04 percent of the permitted facilities that discharge water businesses that are determined to be total small business impacts. small; and (4) the average impact per into or adjacent to the coastal marine E.O. 13211 environment; (4) coastal urban small businesses is estimated by taking On May 18, 2001, the President issued development; (5) agriculture (including the ratio of the total estimated impacts an Executive Order on regulations that pesticide use, irrigation, and livestock to the total number of small businesses. There is a maximum of 3,671 small significantly affect energy supply, farming); (6) oil and chemical spills and businesses involved in activities most distribution, and use. E.O. 13211 clean-up; (7) construction and operation likely to be affected by this rule. This is requires agencies to prepare Statements of power plants; (8) construction and based on the assumption that all small of Energy Effects when undertaking an operation of tidal and wave energy businesses counted across areas and action expected to lead to the projects; (9) construction and operation activity types are separate entities. promulgation of a final rule or of liquefied natural gas (LNG) projects; However, it is likely that a particular regulation that is a significant regulatory and (10) mineral and petroleum small business may appear multiple action under E.O. 12866 and is likely to exploration and extraction. The IRFA times as being affected by conservation have a significant adverse effect on the estimates the potential number of small measures for multiple areas and activity supply, distribution, or use of energy. businesses that may be affected by this types. Hence, total small business An energy impacts analysis was rule, and the average annualized impact estimates across areas and activity types prepared under E.O. 13211 and is per entity for a given area and activity are likely to be overestimated. The available as part of the draft economic type. Specifically, based on an potential annualized impacts borne by analysis report. The results of the examination of the North American small entities were highest for specific analysis are summarized here, and more Industry Classification System (NAICS), area 10 (Montan˜ a de Oro State Park to detail is provided in the NMFS draft this analysis classifies the potentially just south of Government Point) with economic report (NMFS, 2010a). affected economic activities into potential costs as high as $75 million. The Office of Management and Budget industry sectors and provides an This is mainly due to the impacts on the provides guidance for implementing estimate of the number of small three facilities that are associated with this Executive Order, outlining nine businesses affected in each sector based power plants, which are estimated to be outcomes that may constitute ‘‘a on the applicable NAICS codes. 97.5 percent of the total costs. It is significant adverse effect’’ when The specific areas considered for important to note here that these costs compared with the regulatory action designation as critical habitat, and area likely overestimated, due to the fact under consideration: (1) Reductions in hence the action area for this rule, span that the modification costs for power crude oil supply in excess of 10,000 from the Del Mar Landing Ecological plants are based solely on the closed barrels per day (bbls); (2) reductions in Reserve to Dana Point in California, cooling system retrofit. Specific areas 3 fuel production in excess of 4,000 bbls; including several offshore islands. (Farallon Islands), 4 (southern point at (3) reductions in coal production in Although the areas of concern include the mouth of San Francisco Bay to Moss excess of 5 million tons per year; (4) marine areas off the coast, the small Beach), and 2 (Bodega Head to Point reductions in natural gas production in business analysis is focused on land Bonita) have potential annualized small excess of 25 million cubic feet per year; based areas where most economic business impacts of about $614,850, (5) reductions in electricity production

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in excess of 1 billion kilowatts-hours Regulatory Commission (FERC).1 Future costs. However, the construction of LNG per year or in excess of 500 megawatts management and required project facilities and associated increased of installed capacity; (6) increases in modifications for black abalone critical energy supplies to consumers aim to energy use required by the regulatory habitat related to tidal and wave energy generally result in lower energy prices action that exceed the thresholds above; projects are uncertain and could vary than would have otherwise been (7) increases in the cost of energy widely in scope from project to project. expected. Therefore, this analysis is production in excess of one percent; (8) Moreover, because the proposed unable to forecast potential energy increases in the cost of energy projects are still in the preliminary impacts resulting from changes to LNG distribution in excess of one percent; or stages, the potential impact of possible projects without specific information (9) other similarly adverse outcomes. black abalone conservation efforts on about recommended black abalone Of these, the most relevant criteria to the project’s energy production and the conservation measures or future this analysis are potential changes in associated cost of that energy are forecasts of energy prices that reflect natural gas and electricity production, unclear. Proposed tidal and wave energy future markets with increased energy as well as changes in the cost of energy projects within the study area have a supplies from LNG projects. production. Possible energy impacts combined production capacity of 21 Unfunded Mandates Reform Act (2 may occur as the result of requested megawatts. It is more likely that any U.S.C. 1501 et seq.) project modifications to power plants, additional cost of black abalone tidal and wave energy projects, and LNG conservation efforts would be passed on In accordance with the Unfunded facilities. There is currently only one to the consumer in the form of slightly Mandates Reform Act, NMFS makes the power plant, the Diablo Canyon Nuclear higher energy prices. That said, any following findings: Power Plant (DCNPP), located within an increase in energy prices as a result of (A) This proposed rule would not produce a Federal mandate. In general, area that could be affected by black black abalone conservation would have a Federal mandate is a provision in abalone critical habitat. Future to be balanced against changes in energy legislation, statute, or regulation that management and required project price resulting from the development of would impose an enforceable duty upon modifications for black abalone critical these projects. That is, the construction State, local, tribal governments, or the habitat related to power plants include: of tidal and wave energy projects may private sector and includes both cooling of thermal effluent before result in a general reduction in energy ‘‘Federal intergovernmental mandates’’ release to the environment, treatment of prices in affected areas. Without and ‘‘Federal private sector mandates.’’ any contaminated waste materials, information about the effect of the tidal These terms are defined in 2 U.S.C. retrofitting to a wet cooling system, and and wave projects on future electricity 658(5)–(7). ‘‘Federal intergovernmental prices and more specific information modifications associated with permits mandate’’ includes a regulation that about recommended conservation issued under NPDES. These ‘‘would impose an enforceable duty measures for black abalone, this analysis modifications could affect energy upon State, local, or tribal governments’’ is unable to forecast potential energy production; however, the potential with two exceptions. It excludes ‘‘a impacts resulting from changes to tidal impact of possible black abalone condition of Federal assistance.’’ It also and wave energy projects. conservation efforts on the project’s excludes ‘‘a duty arising from Similar to tidal and wave energy energy production and the associated participation in a voluntary Federal projects, the number of future LNG cost is unknown. DCNPP has a program,’’ unless the regulation ‘‘relates projects that will be built within the production capacity of 2,200 megawatts to a then-existing Federal program specific areas is unknown. Many LNG and therefore, if about half of this under which $500,000,000 or more is projects are likely to be abandoned capacity is affected by black abalone provided annually to State, local, and during the development stages for critical habitat, it would be higher than tribal governments under entitlement reasons unrelated to black abalone the 500 megawatts of installed capacity authority,’’ if the provision would critical habitat. In addition, the threshold. It is unlikely that any project ‘‘increase the stringency of conditions of potential impact of LNG facilities on modifications would have a large assistance’’ or ‘‘place caps upon, or impact on the amount of electricity black abalone habitat remains uncertain, otherwise decrease, the Federal produced. It is more likely that any as is the nature of any project Government’s responsibility to provide additional cost of black abalone modifications that might be requested to funding’’ and the State, local, or tribal conservation efforts would be passed on mitigate adverse impacts. Since there governments ‘‘lack authority’’ to adjust to the consumer in the form of slightly are no LNG projects in the development accordingly. ‘‘Federal private sector higher energy prices. Without stage, the potential impact of possible mandate’’ includes a regulation that information about the effect of power black abalone conservation efforts on ‘‘would impose an enforceable duty plants on future electricity prices and the project’s energy production and the upon the private sector, except (i) a more specific information about how associated cost of that energy are condition of Federal assistance; or (ii) a recommended conservation measures unclear. Project modifications may duty arising from participation in a for black abalone would affect include biological monitoring, spatial voluntary Federal program.’’ The electricity production, this analysis is restrictions on project installation, and designation of critical habitat does not unable to forecast potential energy specific measures to prevent or respond impose an enforceable duty on non- impacts resulting from changes to power to catastrophes. Out of these project Federal government entities or private plants. modifications, spatial restrictions on parties. The only regulatory effect of a The number of future tidal and wave project installation could have effects on critical habitat designation is that energy projects that will be constructed energy production. This modification Federal agencies must ensure that their within the specific areas is unknown. could increase LNG construction costs, actions do not destroy or adversely Currently there are no actively- which may result in higher natural gas modify critical habitat under ESA generating wave or tidal energy projects section 7. Non-Federal entities that located within the study area. However, 1 FERC. Issued and Valid Hydrokinetic Projects Preliminary Permit. Accessed at: http:// receive funding, assistance, or permits four projects have received preliminary www.ferc.gov/industries/hydropower/indus-act/ from Federal agencies, or otherwise permits from the Federal Energy hydrokinetics/permits-issued.xls on April 5, 2010. require approval or authorization from a

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Federal agency for an action may be may have some benefit to state and local resources and coastal effects) must be indirectly affected by the designation of resource agencies in that the areas consistent to the maximum extent critical habitat. Furthermore, to the essential to the conservation of the practicable with the enforceable policies extent that non-Federal entities are species are more clearly defined, and of a coastal state’s federally approved indirectly impacted because they the PCEs of the habitat necessary for the coastal management program. We have receive Federal assistance or participate survival of black abalone are specifically determined that this proposed critical in a voluntary Federal aid program, the identified. While this designation would habitat designation is consistent to the Unfunded Mandates Reform Act would not alter where and what non-federally maximum extent practicable with the not apply, nor would critical habitat sponsored activities may occur, it may enforceable policies of the approved shift the costs of the large entitlement assist local governments in long-range Coastal Zone Management Program of programs listed above to state planning. California. This determination will be governments. submitted for review by the California Civil Justice Reform (B) Due to the prohibition against take Coastal Commission. of black abalone both within and In accordance with E.O. 12988, we outside of the designated areas, we do have determined that this proposed rule Government-to-Government not anticipate that this proposed rule would not unduly burden the judicial Relationship With Tribes would significantly or uniquely affect system and meets the requirements of The longstanding and distinctive small governments. As such, a Small sections 3(a) and 3(b)(2) of the E.O. We relationship between the Federal and Government Agency Plan is not are proposing to designate critical tribal governments is defined by required. habitat in accordance with the treaties, statutes, executive orders, Takings provisions of the ESA. This proposed judicial decisions, and agreements, rule uses standard property descriptions which differentiate tribal governments Under E.O. 12630, Federal agencies and identifies the PCEs within the from the other entities that deal with, or must consider the effects of their actions designated areas to assist the public in are affected by, the Federal government. on constitutionally protected private understanding the habitat needs of black This relationship has given rise to a property rights and avoid unnecessary abalone. special Federal trust responsibility takings of property. A taking of property involving the legal responsibilities and includes actions that result in physical Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) obligations of the United States toward invasion or occupancy of private Indian Tribes and the application of property, and regulations imposed on This proposed rule does not contain fiduciary standards of due care with private property that substantially affect new or revised information collections respect to Indian lands, tribal trust its value or use. In accordance with E.O. that require approval by the Office of resources, and the exercise of tribal 12630, this proposed rule would not Management and Budget (OMB) under rights. Pursuant to these authorities have significant takings implications. A the Paperwork Reduction Act. This lands have been retained by Indian takings implication assessment is not proposed rule would not impose Tribes or have been set aside for tribal required. The designation of critical recordkeeping or reporting requirements use. These lands are managed by Indian habitat affects only Federal agency on State or local governments, Tribes in accordance with tribal goals actions. This proposed rule would not individuals, businesses, or and objectives within the framework of increase or decrease the current organizations. applicable treaties and laws. E.O. 13175, restrictions on private property Consultation and Coordination with concerning take of black abalone, nor do National Environmental Policy Act of Indian Tribal Governments, outlines the we expect the critical habitat 1969 (NEPA) responsibilities of the Federal designation to impose substantial We have determined that an Government in matters affecting tribal additional burdens on land use or environmental analysis as provided for interests. There is a broad array of substantially affect property values. under the NEPA of 1969 for critical activities on Indian lands that may Additionally, the critical habitat habitat designations made pursuant to trigger ESA section 7 consultations. As designation would not preclude the the ESA is not required. See Douglas described in the section above titled development of Habitat Conservation County v. Babbitt, 48 F.3d 1495 (9th Cir. ‘‘Exclusions Based on Impacts on Indian Plans and issuance of incidental take 1995), cert. denied, 116 S.Ct 698 (1996). Lands,’’ we have not identified any permits for non-Federal actions. Owners tribal lands that overlap with the of areas included within the proposed Coastal Zone Management Act of 1972 proposed critical habitat designation for critical habitat designation would (CZMA) black abalone. continue to have the opportunity to use The CZMA emphasizes the primacy of their property in ways consistent with state decision-making regarding the References Cited coastal zone. Section 307 of the CZMA the survival of endangered black A complete list of all references cited (16 U.S.C. 1456), called the federal abalone. herein is available upon request (see consistency provision, is a major ADDRESSES section) or via our Web site Federalism incentive for states to join the national at http://swr.nmfs.noaa.gov. In accordance with E.O. 13132, we coastal management program and is a determined that this proposed rule powerful tool that states use to manage List of Subjects in 50 CFR Part 226 would not have significant Federalism coastal uses and resources and to Endangered and threatened species. effects and that a Federalism assessment facilitate cooperation and coordination is not required. In keeping with with federal agencies. Dated: September 20, 2010. Department of Commerce policies, we Federal consistency is the CZMA Eric C. Schwaab, request information from, and will requirement where federal agency Assistant Administrator for Fisheries, coordinate development of this activities that have reasonably National Marine Fisheries Service. proposed critical habitat designation foreseeable effects on any land or water For the reasons set out in the with, appropriate state resource use or natural resource of the coastal preamble, this proposed rule proposes agencies in California. This designation zone (also referred to as coastal uses or to amend part 226, title 50 of the Code

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of Federal Regulations as set forth (iii) South of San Francisco Bay to Los Angeles County, California: below: Moss Beach, San Mateo County, northern seaward coordinates: California: northern seaward 33°48′22.604″ N, 118°24′3.534″ W; PART 226—DESIGNATED CRITICAL coordinates: 37°47′17.078″ N, northern shoreward coordinates: HABITAT 122°31′13.59″ W; northern shoreward 33°48′22.268″ N, 118°23′35.504″ W; coordinates: 37°47′17.524″ N, southern seaward coordinates: 1. The authority citation of part 226 ° ′ ″ ° ′ ″ ° ′ ″ continues to read as follows: 122 30 21.458 W; southern seaward 33 42 10.303 N, 118 16 50.17 W; coordinates: 37°30′11.763″ N, southern shoreward coordinates: Authority: 16 U.S.C. 1533. 122°30′35.06″ W; southern shoreward 33°42′25.816″ N, 118°16′41.059″ W. 2. Add § 226.220, to read as follows: coordinates: 37°30′12.815″ N, (2) Coastal Islands: The black abalone ° ′ ″ § 226.220 Critical habitat for black abalone 122 30 2.083 W. critical habitat areas surrounding the (Haliotis cracherodii). (iv) Moss Beach to Pescadero State coastal islands listed below are defined Beach, San Mateo County, California: Critical habitat is designated for black by a seaward boundary that extends northern seaward coordinates: abalone as described in this section. The offshore to the 6m depth bathymetry 37°30′11.763″ N, 122°30′35.06″ W; textual descriptions of critical habitat in line (relative to mean lower low water), northern shoreward coordinates: this section are the definitive source for and a shoreward boundary that is the 37°30′12.815″ N, 122°30′2.083″ W; determining the critical habitat line marking mean higher high water. southern seaward coordinates: Critical habitat only includes rocky boundaries. The overview maps are 37°16′42.635″ N, 122°24′52.453″ W; provided for general guidance purposes intertidal habitats to a depth of 6 m. southern shoreward coordinates: (i) Farallon Islands, San Francisco only and not as a definitive source for 37°16′45.728″ N, 122°24′32.42″ W. determining critical habitat boundaries. County, California. (v) Just north of Pescadero State (ii) An˜ o Nuevo Island, San Mateo (a) Critical habitat boundaries. Beach, San Mateo County, California to (1) Coastal Marine Areas: Each coastal County, California. Natural Bridges State Beach, Santa Cruz (iii) San Miguel Island, Santa Barbara marine area below is defined by four County, California: northern seaward County, California. latitude and longitude coordinates that coordinates: 37°16′42.635″ N, (iv) Santa Rosa Island, Santa Barbara set the northern, southern, seaward and 122°24′52.453″ W; northern shoreward County, California. shoreward boundaries for the critical coordinates: 37°16′45.728″ N, (v) Santa Cruz Island, Santa Barbara habitat designation for black abalone in 122°24′32.42″ W; southern seaward County, California. U.S. coastal marine waters. The coordinates: 36°57′11.547″ N, (vi) Anacapa Island, Ventura County, northern boundary is the straight line 121°58′36.276″ W; southern shoreward California. between the northern seaward and coordinates: 36°57′15.208″ N, (vii) San Nicolas Island, Ventura shoreward coordinates and the southern 121°58′31.424″ W. County, California. boundary is the straight line between (vi) Pacific Grove to Prewitt Creek, (viii) Santa Barbara Island, Santa the southern seaward and shoreward Monterey County, California: northern Barbara County, California. coordinates. The seaward boundary seaward coordinates: 36°36′41.16″ N, (ix) Santa Catalina Island, Los extends offshore to the 6 m depth 121°53′30.453″ W; northern shoreward Angeles County, California. bathymetry line (relative to mean lower coordinates: 36°36′41.616″ N, (x) San Clemente Island, Los Angeles low water) between the northern 121°53′47.763″ W; southern seaward County, California. seaward and southern seaward coordinates: 35°56′5.324″ N, (b) Primary constituent elements. The coordinates and the shoreward 121°28′45.131″ W; southern shoreward primary constituent elements essential boundary is the line that marks mean coordinates: 35°56′6.025″ N, for the conservation of the black abalone higher high water between the northern 121°28′34.36″ W. are: shoreward and southern shoreward (vii) Prewitt Creek, Monterey County, (1) Rocky substrate. Suitable rocky coordinates. Critical habitat only California to Cayucos, San Luis Obispo substrate includes rocky benches includes rocky intertidal habitats to a County, California: northern seaward formed from consolidated rock of depth of 6 m. coordinates: 35°56′5.324″ N, various geological origins (e.g., igneous, (i) Del Mar Landing Ecological 121°28′45.131″ W; northern shoreward metamorphic, and sedimentary) that Reserve to Bodega Head, Sonoma coordinates: 35°56′6.025″ N, contain channels with macro- and County, California: northern seaward 121°28′34.36″ W; southern seaward micro-crevices or large boulders (greater coordinates: 38°44′25.04″ N, coordinates: 35°26′22.887″ N, than or equal to 1 m in diameter) and 123°30′52.067″ W; northern shoreward 120°54′6.264″ W; southern shoreward occur from mean higher high water coordinates: 38°44′25.948″ N, coordinates: 35°26′23.708″ N, (MHHW) to a depth of 6 m. All types of 123°30′19.175″ W; southern seaward 120°53′39.427″ W. relief (high, medium and low; 0.5 to coordinates: 38°18′38.623″ N, (viii) Montan˜ a de Oro State Park in greater than 2 m vertical relief) support 123°4′21.549″ W; southern shoreward San Luis Obispo County, California to black abalone. coordinates: 38°18′39.478″ N, just south of Government Point, Santa (2) Food resources. Abundant food 123°4′7.573″ W. Barbara County, California: northern resources including bacterial and (ii) Bodega Head, Sonoma County, seaward coordinates: 35°17′15.72″ N, diatom films, crustose coralline algae, California to Point Bonita, Marin 120°53′30.537″ W; northern shoreward and a source of detrital macroalgae, are County, California: northern seaward coordinates: 35°17′15.965″ N, required for growth and survival of all coordinates: 38°18′38.623″ N, 120°52′59.583″ W; southern seaward stages of black abalone. The primary 123°4′21.549″ W; northern shoreward coordinates: 34°27′12.95″ N, macroalgae consumed by juvenile and coordinates: 38°18′39.478″ N, 120°22′10.341″ W; southern shoreward adult black abalone are giant kelp 123°4′7.573″ W; southern seaward coordinates: 34°27′25.11″ N, (Macrocystis pyrifera) and feather boa coordinates: 37°49′3.404″ N, 120°22′3.731″ W. kelp (Egregia menziesii) in southern 122°31′56.339″ W; southern shoreward (ix) Palos Verdes Peninsula extending California (i.e., south of Point coordinates: 37°49′3.082″ N, from the Palos Verdes/Torrance border Conception) habitats, and bull kelp 122°31′50.549″ W. to Los Angeles Harbor in southwestern (Nereocystis leutkeana) in central and

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northern California habitats (i.e., north Adult abalone may facilitate larval tolerance range: 12 to 25 °C, optimal of Santa Cruz). Southern sea palm settlement and metamorphosis by, range: 18 to 22 °C), salinity (i.e., 30 to (Eisenia arborea), elk kelp grazing down algal competitors and 35 ppt), pH (i.e., 7.5 to 8.5), and other (Pelagophycus porra), stalked kelp thereby promoting the maintenance of chemical characteristics necessary for (Pterygophora californica), and other substantial substratum cover by crustose normal settlement, growth, behavior, brown kelps (Laminaria sp.) may also be coralline algae, outcompeting encrusting and viability of black abalone. consumed by black abalone. sessile invertebrates (e.g., tube worms (5) Suitable nearshore circulation (3) Juvenile settlement habitat. Rocky and tube snails) for space and thereby patterns. Suitable circulation patterns intertidal habitat containing crustose promoting the maintenance of are those that retain eggs, sperm, coralline algae and crevices or cryptic substantial substratum cover by crustose fertilized eggs and ready-to-settle larvae biogenic structures (e.g., urchins, coralline algae as well as creating space within 100 km from shore so that mussels, chiton holes, conspecifics, for settling abalone, and emitting successful fertilization and settlement to anemones) is important for successful chemical cues that may induce shallow intertidal habitat can take place. larval recruitment and juvenile growth settlement of abalone larvae. (c) Overview maps of black abalone and survival of black abalone less than (4) Suitable water quality. Suitable critical habitat follow: approximately 25 mm shell length. water quality includes temperature (i.e., BILLING CODE 3510–22–P

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[FR Doc. 2010–24215 Filed 9–27–10; 8:45 am] BILLING CODE 2510–22–C

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