Comments on Proposed Critical Habitat for Nine Evolutionarily Significant Units of Steelhead in Washington, Oregon, Idaho and California

July 1, 1999

Dr. Garth Griffin, Branch Chief
Protected Resources Division
National Marine Fisheries Service, Northwest Region
525 NE Oregon Street, Suite 500
Portland, Oregon 97232-2737

Dear Mr. Griffin:

The Association of California Water Agencies (ACWA) appreciates the opportunity to submit comments on the proposed critical habitat designation for steelhead published in the Federal Register on February 5, 1999 (64 FR 24 p. 5740, February 5, 1999). ACWA represents over 450 public water agencies in California. Our members supply over 90% of the water delivered in California for domestic, agricultural and industrial uses. ACWA members are integrally involved in the management of a majority of the river systems in California to ensure that water supply needs are adequately addressed and positive environmental effects are optimized in a balanced manner. In the last decade, ACWA member agencies have become increasingly involved in proactive resolution of fishery resource issues. In particular, ACWA has taken a leadership role to develop viable conservation efforts for steelhead and salmon in California. Fishery scientists, working for or representing ACWA member agencies, have worked with the National Marine Fisheries Service (NMFS), U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) to assure adequate protection of aquatic resources. ACWA supports the recovery of steelhead and other salmonids, and is actively engaged in efforts that will contribute to their recovery and eventual de-listing.

ACWA has reviewed the proposed rule and has had representatives attend several of the public hearings in various locations in California. We understand that the proposed rule would designate as critical habitat all waterways and substrates below naturally impassible barriers and dams that block access to former anadromous habitats throughout the current freshwater and estuarine range of the nine listed and proposed steelhead ESUs. ACWA takes exception to the general and subjective approach proposed by NMFS in defining critical habitat. Our comments are focused on contrasting the proposed rule with the provisions of existing law and identifying the adverse regulatory impacts that we believe will be associated with implementing the proposed rule in its current form.

Existing law states that critical habitat must be designated for listed species "to the maximum extent prudent and determinable...on the basis of the best scientific data available, and after taking into consideration the economic impact and any other relevant impact" (16 U.S.C. 1533 [b][2]) (emphasis added). The Federal Endangered Species Act (ESA) defines critical habitat as "the specific areas within the geographical area occupied by the species…on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection." Additionally, "critical habitat may be designated in areas outside the geographical area occupied by the species upon a determination by the Secretary that such areas are essential for the conservation of the species" (section 3[5][A]) (emphasis added). The ESA also states that, "except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species" (section 3[5][C]) (emphasis added).

The following comments address the concerns of the ACWA membership, as a whole. Additionally, many of our member agencies are preparing their own comments that address issues of particular concern. ACWA member agencies conduct many activities in and adjacent to waterways within the California ESUs that have the potential to modify the proposed critical habitat. These activities include, but are not limited to, on-going operations of existing dams and diversion facilities for municipal and irrigation purposes, facility maintenance that may include sediment, vegetation and debris removal, road building and maintenance, potential development of new water storage or diversion facilities, bank stabilization and habitat restoration projects, and other watershed and land management activities. These activities often require federal authorizations or permits (and occasional cooperative funding) from the Bureau of Reclamation (BOR), the Corps of Engineers (Corps), the U.S. Forest Service (USFS), and other agencies.

We anticipate that the critical habitat designation will trigger new regulatory impacts on ACWA member agencies and federal agencies that are in excess of those already imposed by the listing itself. This expectation is based on anticipation of an increasing number of new Section 7 consultations initiated by federal agencies to address member agency activities that may modify designated critical habitat in locations that do not support steelhead now, have never historically supported steelhead, or are within adjacent areas that have been subjectively defined and conservatively interpreted by the federal agencies or NMFS as "riparian zones." These new consultations are expected to result in new "special management considerations" to be determined on a case-by-case basis by NMFS and the federal agencies, potentially after several rounds of informal or formal consultation in each case. These considerations are expected to generally take the form of "conservation regulations" and generic "best management practices" imposed by NMFS for each activity to ensure that the activity is not "likely to destroy or adversely modify" critical habitat. For areas that are not currently occupied by steelhead, or in upland locations where only minimal indirect effects could be reasonably attributed to the activity, these consultations are likely to consume valuable public resources. These substantive regulatory impacts upon the ACWA member agencies should be ameliorated by NMFS as described in the attached comments.

ACWA believes that NMFS must substantially revise the proposed rule to adequately address the following concerns:

• Definition of Critical Habitat - NMFS must revise the definition of riparian zones to provide clear, unambiguous standards for definition of critical habitat. The standards must be objective and "determinable" using good science, and provide a "bright line" to guide federal and non-federal agencies.
• Designation of Critical Habitat in Unoccupied Areas - NMFS must revise the designation of critical habitat to eliminate unoccupied areas and areas where no sustainable population exists, based on a critical and peer-reviewed evaluation of existing scientific and commercial data.
• Designation of Critical Habitat above Impassible Barriers - NMFS must continue to exclude designation of critical habitat above impassible barriers. However, the list of dams and other permanent facilities representing the upstream extent of critical habitat by hydrological units in each ESU must be corrected and refined to provide an accurate definition of the upstream extent of critical habitat. Areas above impassible barriers should be evaluated for future critical habitat designation only within the context of a recovery plan that identifies specific, feasible, and funded programs and facilities to restore fish passage in particular locations, based on supporting analysis that indicates how these programs and facilities would contribute significantly to the conservation of the species.
• Inclusion of Marine Habitat - NMFS should revise the proposed rule to include marine habitat areas, based on disclosure of the current state of knowledge concerning the impact of human activities in the marine habitat on adult steelhead mortality, or provide adequate, scientific justification for excluding
  marine habitat as critical habitat.
• Absence of Valid Consideration of Economic Impact and Other Factors - NMFS must revise the proposed rule to include the consideration of economic impact and other factors as required in 16 U.S.C. 1533 (b)(2). The legal basis for NMFS's "incremental approach" must be documented. NMFS needs to consult with other federal agencies and representative non-federal agencies regarding the general level of increased regulatory activity anticipated to implement the proposed rule. The results of this consultation need to be used to estimate the general level of economic impact and other impacts (including an estimate of the federal and non-federal "opportunity costs" to recovery and restoration activities) attributable to implementation of this proposed rule.
• Corrections - NMFS must revise and correct the tables to correctly and comprehensively identify the dams and other facilities that form permanent barriers to fish passage at this time, based on a critical and peer-reviewed evaluation of existing scientific and commercial data.

Additionally, we believe that NMFS must take the initiative to provide two other elements as part of a revised rule:

1. An update and reevaluation of the status of recovery planning for steelhead to focus NMFS's internal resources on proactive, and cooperative steelhead recovery efforts, and

2. An explicit and specific commitment by NMFS to assume leadership in the cooperative development of programmatic Section 7 consultation processes to streamline and expedite compliance with other federal laws for classes of projects and activities with minimal (or "de minimus") impacts.

ACWA and its member agencies support and are implementing cooperative, locally implemented on-the-ground efforts to help recover the steelhead based on sound science. We also support and are actively promoting Congressional funding of the Pacific Coastal Salmonid Conservation and Recovery Initiative as part of NMFS's year 2000 budget, and are working to ensure matching state funding for this initiative. However, the designation of critical habitat as described in the proposed rule would be counterproductive unless NMFS can successfully address all of ACWA's comments and those of other regulated entities.

For the reasons given above and described in more detail in our enclosed comment letter, ACWA requests that the proposed rule be withdrawn until such time as these concerns have been adequately addressed. If you have any questions regarding these comments, please contact David Bolland at 916-441-4545.

Sincerely,

Dan Smith
Manager of Regulatory Affairs

Enclosure (below)
cc: Anadromous Species Task Force
(Steelhead Critical Habitat Working Group)
Chip Wullbrandt, Price Postel & Parma
Jean Baldrige, ENTRIX
Joe Miyamoto, EBMUD
Bob Nuzum, EBMUD
Randy Poole, SCWA
Sean White, SCWA

1. Definition of Critical Habitat

ACWA is concerned that the definition of critical habitat in the proposed rule is much too subjective and would therefore be applied erratically beyond the area essential to the conservation of the species. The proposed rule describes the rationale for a "functional definition" of critical habitat based on the essential physical features that combine to create adequate habitat (64 FR 24 p.5743). The proposed definition is "watershed-based" and includes not only the attributes of the aquatic environment (substrate, water quantity, quality, temperature, velocity cover/shelter, food, space and passage), but also the "adjacent riparian zone…which could require special management considerations" (64 FR 24 pp.5742-5743). The proposed rule discusses various means that have been proposed to define the extent of the riparian zone for critical habitat designations for other anadromous species. NMFS notes the limitations of several objective definitions (including 300-foot horizontal [or slope] distance from the normal high water line, edge of channel to inner gorge, two potential tree heights, 100-year flood plain, and edge of riparian vegetation). Instead, the proposed rule defines critical habitat based on "key riparian functions" (64 FR 24 p.5744), which would be applied on a case-by-case basis by federal agencies in consultation with NMFS to define the specific extent of critical habitat during specific future Section 7 consultations. This functional definition has been recently adopted by NMFS in its final rule designating critical habitat for Coho salmon ESUs in response to criticisms of the proposed 300-foot standard (64 FR 86 p.24049, May 5, 1999).

ACWA concurs that none of the objective definitions offered should be imposed in a "one-size-fits-all" manner, yet the absence of an objective "bright line" definition will only increase uncertainty as this rule is implemented variably by different agency biologists in different ESUs and watersheds. Critical habitat must be objectively "determinable" (as required by the ESA) to serve its primary purpose of "providing federal agencies with a clear indication as to when consultation under Section 7 of the ESA is required" (64 FR 24 p.5742). However, under the functional definition, the boundary of critical habitat may be subjectively interpreted in a given context if proposed activities are judged to impact the key riparian functions, and either "directly or indirectly modify" habitat (64 FR 24 p.5743) (emphasis added). Indeed, NMFS states in the proposed rule that "federal permitting agencies will be required to ensure that the permitted action, regardless of whether it occurs in the stream channel, adjacent riparian zone, or upland areas, does not appreciably diminish the value of critical habitat for both survival and recovery of the listed species, or jeopardize the species' continued existence" (64 FR 24 p.5745 emphasis added). This goes far beyond the statutory requirements of the ESA and invites a significant element of subjective judgment on the part of the federal agency and NMFS biologists in defining the extent of critical habitat based on riparian functions.

The proposed rule must not avoid or defer the admittedly difficult task of providing clear, unambiguous standards for definition of critical habitat. These standards must be developed with full consideration of the diversity of habitat and physical conditions throughout each ESU. The standards must be objectively "determinable" using the best available science, and should provide a "bright line" to guide federal and non-federal agencies. The standards must provide a mechanism to limit the critical habitat designation to those areas that are truly essential to the conservation of steelhead, based on the economic balancing test specified in the statute (see comments below concerning the absence of this required analysis). Unless these standards and guidance are provided within the rule, it will surely fail to serve its primary purpose because of confusion and controversy concerning the actual location and extent of critical habitat "on-the-ground."

As it now stands, the proposed rule will lead to erratic or conservative interpretations, which will lead to new consultations under Section 7 for actions that federal agencies would not have otherwise identified as having the potential to affect steelhead under the listing alone. Since the boundary of critical habitat is so ill defined in the proposed rule, conservative interpretations and consideration of potentially adverse habitat modification based on speculation about potential "cumulative effects" will lead some federal agencies into unnecessary consultations.

A discussion with a regulator in the Corps of Engineers Sacramento District's Regulatory Branch indicates that this agency is planning to respond in just such a conservative manner. The district's Regulatory Branch anticipates having to conduct formal Section 7 consultations on a substantial number of future actions that require Clean Water Act Section 404 permits within the Central Valley ESU. In many cases, work that would have been authorized under non-reporting general permits will need to be reported to the Corps to ensure compliance with the endangered species condition of the general permits. The Corps will need to submit these applications for formal consultation with NMFS, resulting in both a significant increase in workload for both agencies and in increased approval times for project proponents. This practice is not automatically required by the listing itself and would not be conducted by the Corps where a finding of "no effect" can be made for a proposed action. However, once a designation of critical habitat is made in an area where the Corps would regulate certain activities, that agency is no longer in the position of making such determinations, and must consult with NMFS. The result is that this agency appears to be preparing for a significant increase in Section 7 consultations, and the extent of that increase will be magnified by the degree to which the proposed critical habitat definition is subjective in nature. (Jim Monroe, Chief, San Joaquin Valley Office, personal communication with David Bolland, June 2, 1999)

Other federal agencies are anticipated to act in a similar manner. The incremental increase in new consultations that will result from implementation of the proposed rule over those currently conducted under the listing triggers NMFS's own "incremental" threshold, requiring the economic impact and other impact assessment, as explained below.

2. Critical Habitat in Unoccupied Areas

The proposed rule designates critical habitat on all waterways accessible to steelhead in all ESUs. NMFS notes that "defining specific reaches that are critical for steelhead is difficult" due to lack of adequate data (64 FR 24 p.5742). NMFS also states that it "recognizes that there are areas within the ESUs that [it assumes] historically constituted steelhead habitat but may not be currently occupied by steelhead." It therefore "requests information about steelhead in these currently unoccupied areas and whether these habitats should be considered essential to the recovery of the species or excluded from the designation" (64 FR 24 p.5747). Unfortunately, the resulting critical habitat designation is inclusive of "the entire geographical area currently occupied by the species" (contrary to the direction of the ESA in section 3[5][C]).

ACWA's position is that areas for which there is no evidence that steelhead ever occupied a waterway or stream reach must be excluded from the critical habitat designation. Additionally, critical habitat must not be designated where there is no evidence that a waterway or reach can support a sustainable steelhead population, or in areas where no sustainable population exists, based on a critical and peer-reviewed evaluation of existing scientific and commercial data. Habitat that is not occupied or where no sustainable population exists clearly is not currently essential to the species. A specific example to support the ACWA position concerns San Pablo Creek in the Central California Coast ESU, as described in the comment letter submitted by East Bay Municipal Utility District (EBMUD) dated June 3, 1999.

The NMFS ESA implementing regulation itself precludes designation of unoccupied areas as critical habitat unless the present range is inadequate to ensure the conservation of the species (50 CFR 424.12[e]). Unoccupied areas and areas where no sustainable population exists must not be designated as critical habitat unless a recovery plan has been prepared that uses "good science" to demonstrate that the present range is inadequate for the conservation of steelhead and identifies specific, feasible, and funded restoration and enhancement programs and facilities that would contribute significantly to that end.

Unless the currently unoccupied areas and areas where no sustainable populations of steelhead exist are excluded, the proposed rule will lead to additional Section 7 consultations that would not have been required under the listing itself, as explained above. This is another aspect of the proposed rule that would trigger NMFS's own threshold to require economic impact and other impact assessment, as explained below.

3. Critical Habitat above Impassible Barriers

The proposed rule excludes designation of critical habitat above impassible barriers and attempts to list the dams representing the upstream extent of critical habitat by hydrological units in each ESU (64 FR 24 p.5750ff, Tables 18-26 to Part 226). ACWA concurs with this attempt to geographically define the extent of critical habitat with objective criteria, but is concerned that many permanent barriers to fish passage located downstream of the identified facilities on many waterways are omitted. ACWA has noted the need for several corrections where dams were misidentified for specific waterways that have come to our attention (see "Corrections," below). We expect additional corrections to be offered by our member agencies and other commenters. ACWA recommends that the final rule specify that the lowest structure that can be shown to form a permanent barrier to upstream steelhead passage on any particular waterway define the upstream extent of critical habitat for that waterway, regardless of the information given on Tables 18-26.

NMFS notes that it has concluded that the potential for restoring access above currently impassible barriers is a "significant factor" in determining whether such habitat is essential to the conservation of steelhead and should therefore be designated as critical habitat in the final rule or a future action (64 FR 24 p.5746). However, former habitat above impassible barriers has not been shown to meet the definition of critical habitat that is "essential to the conservation" of particular steelhead ESUs. The presence of landlocked rainbow trout that may exhibit genetic characteristics that suggest they may be former steelhead does not, in itself, warrant designation of critical habitat in these locations. These populations were excluded from the listing because they are not currently anadromous. Nor does a subjective determination of the "potential" for future restoration support designation of impassible reaches as critical habitat at this time. ACWA believes that designation of critical habitat above impassible barriers is not warranted until such time as a recovery plan has been prepared that identifies specific, feasible, and funded programs and facilities to restore fish passage in particular locations and shows how these programs and facilities would contribute significantly to the conservation of steelhead. ACWA also draws NMFS's attention to EBMUD's comments on this issue, as well as to those provided by the Cachuma Conservation Release Board and the Santa Ynez River Water Conservation District, Improvement District Number 1.

4. Marine Habitat

Exclusion of marine habitat is not adequately justified. The proposed rule states that "no special management considerations have been identified for steelhead while they are residing in the ocean environment" (64 FR 24 p.5747), yet acknowledges that this habitat is "vital to the species, and ocean conditions may have a major influence on steelhead survival (64 FR 24 p.5743)." It has been estimated that unauthorized high seas driftnet fisheries harvest between 2% and 28% of adult steelhead that return to the Pacific coast of North America (Cooper and Johnson 1992, as quoted in Steelhead Restoration and Management Plan for California, Department of Fish and Game, 1996). That data, combined with an estimated 3% legal high seas driftnet harvest (ibid.), clearly indicate that human activities in the marine habitat may significantly affect adult steelhead. Special management considerations in the marine habitat, including better monitoring, new bycatch regulations and better enforcement of existing harvest regulations, could be implemented if marine habitat is designated critical habitat. The proposed freshwater and estuarine habitat designation is incomplete and inadequate if it does not address marine habitat. This proposed rule must not be acted upon until the significance of human activities in the marine habitat has been addressed adequately.

5. Consideration of Economic Impact and Other Factors

No evidence is provided or referenced in the proposed rule to support the assertion that economic impact and other factors were considered by NMFS as required in 16 U.S.C. 1533 (b)(2). Instead, NMFS rationalizes (incorrectly) that its duty is only to disclose any "incremental impacts resulting specifically from the critical habitat designation" above those associated with the listing of steelhead. However, this "incremental approach" is not authorized by the statute, which clearly intends a "balancing" test to allow for exclusion of areas where the economic and other benefits outweigh the benefits of the designation of critical habitat (in contrast to the listing process, which makes no such provision).

Additionally, the economic and other impacts must be fully disclosed for this action, not improperly deferred to a multiplicity of potential future actions by various federal agencies, as suggested by NMFS (64 FR 24 p.5742). Deferring disclosure of the economic impact to subsequent proposals for specific implementing regulations will lead to fragmentary and incomplete economic analyses that fail to adequately disclose the full costs associated with this proposed rule.

NMFS must revise the proposed rule to document the legal basis for its "incremental approach." It must also consult with other federal agencies and representative non-federal agencies regarding the general level of increased activity anticipated to implement the proposed rule. The results should be used to estimate the incremental and the total level of economic and other impacts associated with its implementation.

Instead of providing evidence to support its conclusions in the proposed rule, NMFS offers only the unsubstantiated (and qualified) claims that "in many cases, the economic and other impacts resulting from the critical habitat designation, over and above the impacts of the listing itself, are minimal" (64 FR 24 p.5741), and "the designation will result in few, if any, additional economic effects beyond those that have been caused by the listing…" (64 FR 24 p.5747). ACWA's comments have asserted that the ill-defined character of this proposed rule will cause regulatory uncertainty that will lead to more Section 7 consultations being conducted than would otherwise be the case under the listing alone. These additional consultations include economic impacts associated with additional staff time and resources required by various federal lead agencies, including NMFS, BOR, Corps, USFS, and BLM, and the non-federal agencies that need permits from these agencies. The economic impacts for project proponents include the personnel costs associated with the additional staff time to support longer permitting timeframes, increased costs for consulting services, data collection and submission, and report preparation. The economic impacts also include the design, construction and implementation costs associated with imposition of "conservation regulations" and other mitigation requirements to avoid "adverse modification" of habitat. These regulatory procedures and considerations would, in many cases, not otherwise be necessary to preclude a "take" based on the listing alone.

"Other impacts" for public agencies must also include the "opportunity costs" associated with shifting limited resources from more strategically important restoration and recovery projects to these new Section 7 consultations that would not have otherwise been required under the listing. A number of ACWA member agencies are currently conducting fisheries restoration efforts that will benefit steelhead. For some agencies, the ability to sustain and expand these efforts may be seriously curtailed by the need to conduct new consultations based on the steelhead critical habitat designation. In its final rule designating critical habitat for Coho salmon ESUs, NMFS addresses this concern by stating that "species listings and critical habitat designations under the ESA should in no way hamper efforts to help Coho salmon and other imperiled species…" (64 FR 24 p.24057, May 5, 1999). But in fact, limited public resources (particularly staff time) must often be reallocated to comply with each additional regulatory requirement, often at the expense of pro-active, voluntary on-the-ground habitat restoration activities that may be implemented or planned. NMFS should provide evidence that it recognizes and has fully considered the effect of the proposed rule in diverting scarce resources away from on-going and future "on-the-ground" restoration efforts being conducted by many public agencies throughout the steelhead ESUs. This "opportunity cost" is likely to be particularly significant to NMFS itself, which should be focusing its resources on recovery planning for steelhead and salmon. NMFS should also disclose how the proposed rule is expected to impact its own efforts associated with recovery planning and how it plans to address this impact.

The scale of these economic impacts is potentially huge as new consultations are conducted by many federal agencies throughout five western states in years to come. This consideration of economic and other factors must be disclosed to not only meet the letter of the law at 16 U.S.C. 1533 (b)(2), but more importantly to inform Congress and the public of the anticipated costs of designating critical habitat for steelhead. Disclosure of these costs is necessary to hold NMFS and the Secretary accountable for their administration of the ESA and to help inform the public policy debate about allocation of scarce public resources.

6. Corrections

a. An error and several omissions occur on Table 20 where "Calavera [sic]
Reservoir" is incorrectly listed within the Coyote Hydrologic Unit. Instead,
Anderson and Coyote dams should be listed for the Coyote Hydrologic Unit.
Calaveras Reservoir is actually located within the San Francisco Bay
Hydrologic Unit on Alameda Creek, along with San Antonio and Del Valle
dams, each on different tributaries. However, on Alameda Creek the "BART"
weir appears to function as the lowest barrier to upstream steelhead passage.
(Tom Taylor, ENTRIX, personal communication with David Bolland 6/22/99.)

b. On Table 20, no dams are indicated for any waterways within San Francisco Bay Hydrologic Unit, when in fact permanent barriers to steelhead passage occur on many of the tributary waterways within this unit.

c. An error occurs on Table 22 where the Vern Freeman Diversion Dam is
incorrectly listed among several dams within the Ventura Hydrologic Unit. It
is actually located within the Santa Clara Hydrologic Unit. (Mike Manka,
ENTRIX, personal communication with David Bolland 6/22/99)

d. On Table 23, no dams are indicated for any waterways within the Lower
Sacramento Hydrologic Unit, when in fact permanent barriers to steelhead
passage occur on many of the tributary waterways within this unit.

Conclusion and Recommendations

The proposed rule must be withdrawn and substantially revised to effectively address the concerns identified in this comment letter. ACWA recommends that NMFS:

§ Revise the definition of riparian zones to provide clear, unambiguous standards for definition of critical habitat. The standards must be objectively "determinable" using the best available science, and should provide a "bright line" to guide federal and non-federal agencies.

§ Revise the designation of critical habitat to eliminate unoccupied areas and areas where no sustainable population exists based on a critical and peer-reviewed evaluation of existing scientific and commercial data. These areas should be evaluated for future critical habitat designation only in the context of a recovery plan that has been prepared based on "good science." The recovery plan must demonstrate that the present range would be inadequate for the conservation of the species and should identify specific, feasible, and funded restoration and enhancement programs and facilities that would contribute significantly to that end.

§ Continue to exclude designation of critical habitat above impassible barriers and refine the list of dams and other permanent facilities representing the upstream extent of critical habitat by hydrological units in each ESU. Areas above impassible barriers should be evaluated for future critical habitat designation only in the context of a recovery plan that identifies specific, feasible, and funded programs and facilities to restore fish passage in particular locations and shows how these programs and facilities would contribute significantly to the conservation of the steelhead.

§ Revise the proposed rule to disclose the current state of knowledge concerning the impact of human activities in the marine habitat on adult steelhead mortality. Identify potential management considerations in the marine habitat, including bycatch regulations and better harvest monitoring and enforcement that could reduce steelhead mortality, or provide adequate scientific justification for excluding marine habitat as critical habitat.

§ Revise the proposed rule to include the consideration of economic impacts and other factors as required in 16 U.S.C. 1533 (b)(2). Document the legal basis for NMFS's "incremental approach" and disclose the results of consultation with other federal agencies and representative non-federal agencies regarding the general level of increased activity anticipated to implement the proposed rule. Use the results of this consultation to estimate the general level of economic impacts, including an evaluation of other factors such as the federal and non-federal "opportunity costs" that would adversely affect recovery and restoration activities attributable to implementation of this proposed rule.

§ Revise and correct the tables to correctly identify the dams and other facilities that form permanent barriers to fish passage at this time, based on a critical and peer-reviewed evaluation of existing scientific and commercial data.

Additionally, NMFS must take the initiative to provide two other elements as part of a revised rule:

1. An update and reevaluation of the status of recovery planning for steelhead
(16 USC 1533) to focus NMFS's internal resources on proactive, and
cooperative steelhead recovery efforts, and

2. An explicit and specific commitment by NMFS to assume leadership in the
cooperative development of programmatic Section 7 consultation processes to
streamline and expedite compliance with federal laws such as Section 404 of
the Clean Water Act (especially integration with the Nationwide Permit
program). Programmatic consultations must provide procedures to expedite
classes of projects and activities with minimal impacts or "de minimus"
cumulative impacts. This would result in predictable and standardized "special
management considerations" / "best management practices" / "reasonable and
prudent alternatives" / "terms and conditions" implemented at a local level
under delegated authority.