[Federal Register Volume 61, Number 212 (Thursday, October 31, 1996)]
[Proposed Rules]
[Pages 56211-56213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27888]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[I.D. 012595A]


Endangered and Threatened Species; Notice of Six-Month Extension 
on the Final Determination on Whether to List the Oregon Coast and 
Southern Oregon/Northern California Coast Evolutionarily Significant 
Units (ESUs) of Coho Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of extension of final determination.

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SUMMARY: NMFS has determined that substantial scientific disagreement 
exists regarding the sufficiency and accuracy of data relevant to NMFS' 
proposed determination that two Evolutionarily Significant Units (ESUs) 
of coho salmon in Oregon and northern California warrant listing as 
threatened species. Consequently, NMFS extends the deadline for a final 
listing determination for the Oregon Coast and the Southern Oregon/
Northern California Coast ESUs for 6 additional months to solicit, 
collect, and analyze additional information that will enable NMFS to 
make the final listing determination based on the best available data.

DATES: The new deadline for final action on the proposed listing of the 
Oregon Coast and the Southern Oregon/Northern California Coast ESUs of 
coho salmon is April 25, 1997.

ADDRESSES: Environmental and Technical Services Division, NMFS, 
Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-
2737.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, 503-231-2005, Craig 
Wingert, 310-980-4021, or Marta Nammack, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On July 25, 1995, NMFS published a proposed rule to list three ESUs 
of naturally-reproducing coho salmon (Oncorhynchus kisutch) in Oregon 
and California as threatened under the Endangered Species Act of 1973 
(ESA) (60 FR 38011). The ESUs proposed for listing occur in three 
coastal areas: (1) The Oregon coast from the Columbia River south to 
Cape Blanco in southern Oregon (Oregon Coast ESU), (2) the southern 
Oregon/northern California coasts from Cape Blanco to Punta Gorda in 
northern California (Southern Oregon/Northern California Coast ESU), 
and (3) the central California coast from Punta Gorda to the San 
Lorenzo River in Santa Cruz, including San Francisco Bay (Central 
California Coast ESU). During a coastwide status review, NMFS found 
substantial population declines in each of the three coho salmon ESUs 
proposed as threatened.
    Within 1 year from the date of a proposed listing, section 4(b)(6) 
of the ESA requires NMFS to take one of three actions: (1) Make final 
the proposed listing; (2) withdraw the proposed listing; or (3) extend 
the 1-year period for not more than 6 months. On July 23, 1996, the 
U.S. District Court for the Northern District of California upheld 
NMFS' proposal of October 25, 1996, as the end of the 1-year work 
period allowed for making one of these determinations on the three ESUs 
of coastal coho salmon. This proposal took into consideration the 3-
month funding moratorium in early 1996 on NMFS' listing actions. 
Therefore, by October 25, 1996, NMFS must take one of the three actions 
outlined above.
    Section 4(b)(6)(B)(i) of the ESA authorizes NMFS to extend the 
deadline for a final listing determination for not more than 6 months 
for the purpose of soliciting additional data. NMFS' ESA implementing 
regulations condition such an extension on finding ``substantial 
disagreement among scientists knowledgeable about the species concerned 
regarding the sufficiency or accuracy of the available data relevant to 
the determination'' (50 CFR Sec. 424.17(a)(1)(iv)). After considering 
comments and information received in response to the proposed rule, 
NMFS determines that substantial scientific disagreements exist 
regarding the sufficiency and accuracy of data relevant to final 
listing determinations for the Oregon Coast ESU and the Southern 
Oregon/Northern California Coast ESU. These scientific disagreements 
concern the data needed to determine the status of these species, the 
threats to their continued existence, and the efficacy of recent local, 
state, and Federal conservation measures. Therefore, NMFS extends the 
final listing determination deadline for the Oregon Coast and Southern 
Oregon/Northern California Coast ESUs for 6 months to solicit, collect, 
and analyze additional data.
    While NMFS concludes that a 6-month extension is warranted for the 
Oregon Coast and Southern Oregon/Northern California ESUs, NMFS 
believes that such an extension is not warranted for the Central 
California Coast Coho Salmon ESU. For NMFS' determination on the 
Central California Coast Coho Salmon ESU, see the Central California 
Coast Coho Salmon ESU listing notice in the Rules and Regulations 
section of this Federal Register.
Points of Substantial Scientific Disagreement
    Comments received from peer reviewers, as well as knowledgeable 
scientists from state fish and wildlife agencies, tribes, and the 
private sector, dispute the sufficiency and accuracy of data employed 
by NMFS in its proposed listing of the Oregon Coast and Southern 
Oregon/Northern California Coast ESUs of coastal coho salmon. The 
primary areas of dispute concern data relevant to risk assessment and 
NMFS' evaluation of existing protective measures. The following section 
briefly discusses the types of data subject to substantial scientific 
disagreement.
Risk Assessment
    Risk assessment involves the collection and analysis of data on the 
status of coastal coho and the threats presented by various human 
activities and natural occurrences. In its coastwide status review, 
NMFS assessed the status of coho salmon and identified the principal 
threats to coastal coho as habitat loss, adverse ocean conditions, 
hatchery practices, and harvest.
    In the Oregon Coast and Southern Oregon/Northern California Coast 
ESUs, substantial scientific disagreement exists regarding the 
sufficiency of data used to assess the risks faced by coastal coho. For 
example, Oregon Department of Fish and Wildlife (ODFW) and a peer 
reviewer criticize NMFS' assessment of these ESUs for relying on 
insufficient data. These scientists argue that NMFS failed to consider 
the same types of data for Oregon and Washington coastal coho salmon. 
This difference, they argue, biased NMFS' risk analysis toward finding 
a relatively higher risk for Oregon ESUs. ODFW argues that the Olympic 
Peninsula ESU (located in Washington) faces the same risks as the

[[Page 56212]]

Oregon ESUs, yet NMFS did not propose the Olympic Peninsula ESU for 
listing.
    ODFW contends that NMFS overstated the depressed condition of 
Oregon coastal coho salmon leading NMFS to incorrectly conclude that 
listing is warranted. In the draft Coastal Salmon Restoration 
Initiative (CSRI) submitted to NMFS on August 20, 1996, ODFW scientists 
proposed population abundance listing thresholds that are inconsistent 
with NMFS' assessment that Oregon coho salmon are threatened.
    In an attempt to define the risk of extinction faced by coho in the 
Oregon Coast ESU, ODFW has begun an effort to develop three different 
population simulation models. The results of these models could have 
direct bearing on NMFS' final listing determinations. These models 
apply different approaches and assumptions, and, to date, the models 
have produced inconsistent results. The third model, under development 
by a recognized expert in conservation biology, includes genetic data 
not analyzed in the first two models.
    Equally relevant to both the Oregon Coast and Southern Oregon/
Northern California Coast ESUs, several scientists claim that NMFS 
relied on insufficient data in determining the effects of natural 
environmental variability and population cycles. This, the commenters 
believe, led NMFS to overstate the risk associated with low population 
numbers.
    Some commenters argue that NMFS did not use sufficient data to 
properly assess significant risk factors facing coastal coho salmon. 
For example, ODFW and a peer reviewer contend that NMFS overstated the 
adverse effects of hatchery fish by failing to consider data relevant 
to factors that mitigate the risk posed by hatchery stocks. These three 
factors include: (1) The temporal separation in spawning between wild 
and hatchery runs; (2) the reduced reproductive success of naturally-
spawning hatchery fish; and (3) the limited geographic scope of 
significant hatchery straying. ODFW argues that by not using these 
data, NMFS based its determination on insufficient data.
    With respect to the Southern Oregon/Northern California Coast ESU, 
both the States of Oregon and California have expressed disagreement 
with NMFS' assessment of risks facing coho in this region. As described 
above, the State of Oregon and a peer reviewer disagree with the 
sufficiency and adequacy of data used by NMFS in assessing Oregon coho 
populations in this ESU. In a letter to NMFS dated September 27, 1996, 
the California Resources Agency expressed similar disagreement. The 
Resources Agency adopted ODFW's criticisms in whole and argued that 
they applied equally in California, thus expressing disagreement 
regarding the sufficiency and accuracy of data used to conduct risk 
assessments for the California portion of the Southern Oregon/Northern 
California Coast ESU. Moreover, the data on California coho 
populations, particularly in small streams in northern California, are 
limited. The State of California provided NMFS with additional 
information from private landowners that was consistent with NMFS' 
recent observations. The State believes the information it provided, 
and information now being collected, will indicate that coho are more 
abundant and widespread than currently thought.

Efficacy of Conservation Measures

    Sections 4(a)(1)(D) and 4(b)(1)(A) of the ESA require NMFS to 
consider the likely effect of existing regulatory mechanisms and state 
efforts to protect the species in making listing determinations. In its 
proposed rule, NMFS concluded that, at present, existing measures were 
not sufficient to offset population declines.
    Regarding the Oregon Coast and Southern Oregon/Northern California 
Coast ESUs, several reviewers disagree with this assessment and believe 
that NMFS should give more weight to existing or recently implemented 
conservation measures. For example, ODFW and the Oregon Department of 
Forestry contend that recent conservation measures will substantially 
improve habitat conditions for coho salmon populations. NMFS believes 
that more data are needed to properly evaluate measures regarding road 
erosion, stream habitat assessment, and stream fish surveys. The 
California Resources Agency asserts that NMFS needs to more carefully 
consider all available scientific evidence, including existing 
regulatory mechanisms such as state forest practice rules. Also, ODFW 
states that recent changes in ocean harvest management have drastically 
reduced total fishing mortality and will provide substantial protection 
in future years.
    The Southern Oregon/Northern California Coast ESU presents unique 
problems in evaluating existing conservation measures, given that this 
ESU includes land in both states. An added level of consideration 
results from the mix of state jurisdictions and regulatory authorities. 
Not only must NMFS assess the protective measures provided by each 
regulatory program, but each program's relative importance to the ESU. 
For example, while Oregon has recently established a wider range of 
conservation efforts, California has initiated forest practice changes 
protective of coho. NMFS must consider the differences in these 
programs and weigh their overall benefit for coho salmon. As stated 
above, however, both states contest NMFS' current evaluation of their 
respective conservation programs. Therefore, more time is required both 
to resolve these disagreements and conduct a thorough analysis of the 
relative benefits of state conservation efforts in this ESU.

Prospects for Resolving Existing Disagreements

    Several efforts are underway that have prospects for resolving 
scientific disagreement on the accuracy and sufficiency of data 
relevant to listing the Oregon Coast and Southern Oregon/Northern 
California Coast ESUs. NMFS recently requested additional information 
on the proposed and candidate ESUs from the States of Washington, 
California, and Oregon. NMFS recently received data from the State of 
California and expects the submission of additional data (including 
population modeling results) from the State of Oregon when it completes 
its CSRI. NMFS expects that all new information will be submitted and 
under review by late 1996.
    On November 13 through 15, 1996, NMFS will conduct a scientific 
workshop to solicit information and develop and evaluate approaches to 
risk assessment for Pacific salmon. This workshop will feature twelve 
scientists with expertise in various aspects of extinction risk 
analysis. The panelists will provide written summaries of their 
presentations to NMFS at the time of the workshop. Further, an editor 
will compile a written report of the workshop, with publication 
expected by the end of January 1997. Information obtained from this 
workshop should produce results that are highly relevant to coho salmon 
listing determinations, in particular, how to interpret limited and 
conflicting data and how best to make species/ESU risk assessments.
    The State of Oregon has requested independent review of the CSRI 
plan by scientists with Oregon State University and other peer 
reviewers. By the spring of 1997, the State is expected to provide its 
completed CSRI to NMFS for its review. In addition, the State of 
California may have a similar draft prepared next year. NMFS expects 
these plans to contain detailed summaries and assessments of 
conservation measures which benefit coho salmon in the respective 
states. During the period of

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this 6-month extension, NMFS will assess more complete versions of 
these plans, work with the states to resolve scientific disagreements 
surrounding the adequacy of the plans, and seek a scientific basis for 
determining whether these conservation measures will substantially 
reduce the risks faced by one or both of these coho salmon ESUs 
proposed for listing.

Determination

    The scientific disagreements about data and information identified 
above are substantial and may alter NMFS' assessment of the status of 
the Oregon Coast and Southern Oregon/Northern California Coast coho 
salmon ESUs. In light of these disagreements and the fact that more 
data are forthcoming on conservation planning and risk assessment, NMFS 
extends the final determination deadline on the Oregon Coast and 
Southern Oregon/Northern California Coast ESUs of coastal coho salmon 
for 6 additional months, until April 25, 1997. During this period, NMFS 
will collect and analyze new information aimed at resolving these 
disagreements. If new information or analyses indicate that listing of 
one or more ESUs of west coast coho salmon is not warranted, NMFS will 
withdraw or modify the proposed rule accordingly.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: October 24, 1996.
Gary C. Matlock,
Acting Assistant Administator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 96-27888 Filed 10-25-96; 5:05 pm]
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