[Federal Register Volume 63, Number 20 (Friday, January 30, 1998)]
[Proposed Rules]
[Pages 4615-4618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2368]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 971230317-7317-01; I.D. No. 120197A]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on Petition To Revise Critical Habitat for Snake River Spring/Summer 
Chinook Salmon

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

ACTION: Notice of determination.

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SUMMARY: NMFS announces a 12-month determination of how it intends to 
proceed on a petition to revise critical habitat for Snake River 
spring/summer chinook salmon (Oncorhynchus tshawytscha), pursuant to 
the Endangered Species Act (ESA) of 1973. After a review of the best 
available scientific information, NMFS determines the petitioned action 
is not warranted.

DATES: The determination announced in this notice was signed on January 
26, 1998.

ADDRESSES: Requests for information concerning this action should be 
submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon 
Street, Suite 500, Portland, OR 97232; internet ([email protected]).

FOR FURTHER INFORMATION CONTACT: Garth Griffin, Protected Resources 
Division, Northwest Region, (503) 231-2005 or Joe Blum, Office of 
Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On June 27, 1991, NMFS proposed the listing of Snake River spring/
summer chinook salmon as a threatened species under the Endangered 
Species Act (ESA) (56 FR 29542). The final determination listing Snake 
River spring/summer chinook salmon as a threatened species was 
published on April 22, 1992 (57 FR 14653) and corrected on June 3, 1992 
(57 FR 23458). Critical habitat was designated on December 28, 1993 (58 
FR 68543). In the December 28, 1993 notice, NMFS designated all river 
reaches presently or historically accessible to listed spring/summer 
chinook salmon (except river reaches above impassable natural falls, 
and Dworshak and Hells Canyon Dams) in various hydrologic units as 
critical habitat (58 FR 68543). Napias Creek, the area in question, 
occurs within one of these designated hydrologic units (Middle Salmon-
Panther, USGS Hydrologic Unit 17060203).
    On January 6, 1997, the Secretary of Commerce (Secretary) received 
a petition from Meridian Gold Company (Meridian) to revise critical 
habitat for Snake River spring/summer chinook salmon in Napias Creek, a 
tributary to the Salmon River, located near Salmon, Idaho. In 
accordance with section 4(b)(3)(D) of the ESA, NMFS issued a 
determination on April 28, 1997, that the petition presented 
substantial scientific information indicating that a revision may be 
warranted (62 FR 22903). In that notice of finding, NMFS solicited 
information and comments from interested parties concerning the 
petitioned action (62 FR 22903). The comment period on the petitioned 
action closed on June 27, 1997 (62 FR 22903).
    On June 23, 1997, NMFS received a request from Meridian requesting 
NMFS to extend the deadline for new information and comments until 
September 15, 1997. In its request for extension, Meridian stated that 
additional time was needed to complete studies to support the 
petitioned action. By a letter dated July 16, 1997, NMFS declined to 
extend the official comment period for the petitioned action. In this 
letter, NMFS concluded that an extension was not warranted since the 
original comment period was 30 days

[[Page 4616]]

longer than that required by law and only one comment had been received 
during the original public comment period (NMFS, 1997a).
    While NMFS declined to extend the public comment period for the 
petitioned action, NMFS stated in its July 16, 1997, response to 
Meridian that it would consider any pertinent information prior to 
making a determination (NMFS, 1997a). NMFS' willingness to consider 
pertinent information was communicated to the State of Idaho and to the 
only commenter, the Sierra Club Legal Defense Fund (SCLDF).
    On September 16, 1997, Meridian submitted additional information in 
support of its petition. Specifically, Meridian submitted three new 
reports entitled: (1) ``Ability of Salmon and Steelhead to Pass Napias 
Creek Falls''; (2) ``Investigation of Physical Conditions at Napias 
Creek Falls''; and (3) ``Historical and Ethnographic Analysis of Salmon 
Presence in the Leesburg Basin, Lemhi County, Idaho.'' This new 
information was added to the administrative record and was considered 
by NMFS in its 12-month determination. Copies of this information are 
available upon request (see ADDRESSES).

Summary of Comments Received on the Petitioned Action

    One comment was received on the petitioned action during the 60-day 
public comment period. The commenter, SCLDF, contends the that 
petitioned action is not supported by available evidence and that 
Meridian's studies do not address the question of historic passability 
of Napias Creek (SCLDF, 1997). SCLDF further states that Meridian's 
desire to revise the critical habitat designation is to avoid measures 
necessary to mitigate its adverse modification of critical habitat 
(SCLDF, 1997). SCLDF ultimately recommends that NMFS deny Meridian's 
petition (SCLDF, 1997).
    NMFS believes that SCLDF's views of Meridian's motivation for 
pursuing this action is not relevant for the purposes of determining 
the merits of Meridian's petition. While SCLDF provides no new 
information concerning the historic accessibility of this area to 
listed chinook salmon, NMFS considers the merits of available 
scientific information below.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the ESA as ``(i) 
the specific areas within the geographical area occupied by the species 
* * * on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species * * * upon 
a determination by the Secretary of Commerce (Secretary) that such 
areas are essential for the conservation of the species'' (see 16 
U.S.C. 1532(5)(A)). The term ``conservation,'' as defined in section 
3(3) of the ESA, means `` * * * to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary'' (see 16 U.S.C. 1532(3)).
    In designating critical habitat, NMFS considers the following 
requirements of the species: (1) Space for individual and population 
growth, and for normal behavior; (2) food, water, air, light, minerals, 
or other nutritional or physiological requirements; (3) cover or 
shelter; (4) sites for breeding, reproduction, or rearing of offspring; 
and, generally, (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of this species (see 50 CFR Sec. 424.12(b)). In addition 
to these factors, NMFS also focuses on the known physical and 
biological features (primary constituent elements) within the 
designated area that are essential to the conservation of the species 
and may require special management considerations or protection. These 
essential features may include, but are not limited to, spawning sites, 
food resources, water quality and quantity, and riparian vegetation 
(see 50 CFR Sec. 424.12(b)).

Analysis of Available Information and Comments

    Meridian presents two main arguments in support of its petition to 
remove areas of Napias Creek, above Napias Creek Falls, from designated 
Snake River chinook salmon critical habitat. First, Meridian contends 
that, currently, Napias Creek Falls is a complete migration barrier to 
listed Snake River chinook salmon as evidenced by recent hydrologic 
studies. Second, Meridian contends that habitat above Napias Creek 
Falls has historically been inaccessible to chinook salmon as evidenced 
by historical research. These issues are discussed here.

Current Passage Conditions at Napias Creek Falls

    Meridian conducted several studies to determine the ability of 
chinook salmon to migrate above Napias Creek Falls. One study evaluated 
the geomorphology of the falls, while another study assessed the 
potential for fish passage using the methods of Powers and Orsborn 
(P&O) as described in ``Analysis of Barriers to Upstream Fish 
Migration'' (Bonneville Power Administration (BPA), 1984). A third 
study entitled ``Ability of Salmon and Steelhead to Pass Napias Creek 
Falls'' analyzed information and conclusions of the preceding two 
studies and concluded that ``Napias Creek Falls is an absolute barrier 
to upstream migration of salmon and steelhead in Napias Creek.'' 
(Meridian, 1997). NMFS has reviewed all information and studies 
submitted by Meridian regarding this issue. Further, NMFS conducted 
several on-site inspections of Napias Creek Falls to independently 
assess the potential for chinook salmon passage in this area. Based on 
an assessment of information contained in the petition, and on an 
independent assessment of physical conditions at Napias Creek Falls, 
NMFS concludes that chinook salmon can migrate past Napias Creek Falls 
during certain flow conditions (NMFS, 1997b). The following paragraphs 
summarize NMFS' analysis and conclusions.
    First, conceding that the swimming capability of the anadromous 
fish that may have occupied Napias Creek can not be precisely 
determined, the swimming burst velocity (Vf) chosen for 
Napias Creek Falls in Meridian's petition, which is about 16.8 feet per 
second (fps) (5.12 meters per second (mps)) for Napias Creek Falls, was 
used by NMFS in its analysis. Based on a Vf of 16.8 fps 
(5.12 mps), Meridian uses the methods of P&O to calculate a potential 
jump height (Hj) of 4.3 feet(ft) (1.31 m) However, the P&O 
report states ``Aaserude noted that to determine the true leaping 
height above the water surface, the length of the fish should be added 
to equation (6) (clarification - the projectile motion equation) 
because the fish uses its full propulsive power up until the point the 
fish's tail leaves the water * * *'' (BPA, 1984). Therefore, the length 
of the fish should be added to the height of the jump. Since a small 
adult chinook salmon might measure 2 ft (.61 m) in length, adding this 
length to Hj yields a total potential jump height 
(Ht) of 6.3 ft (1.92 m).
    Using data from Meridian's petition, the height of Napias Creek 
Falls is 9 ft (2.74 m) when streamflow is 49 cfs (1.37

[[Page 4617]]

cubic meters per second (cms)), and the water velocity at the crest of 
the falls is 7 fps (2.13 mps). After water drops 2.7 ft (.82 m) from 
the falls crest, gravity accelerates the water velocity to 11.7 fps 
(3.57 mps) (Vh) at the fish landing point, as calculated 
using the equations given in Meridian's petition. Since this velocity 
is below the burst velocity of a chinook salmon, the fish should be 
able to swim for 5 to 10 seconds at a Vf of 16.8 seconds 
(Bell, 1991). Swimming at a net velocity (Vf -Vh) 
of 5.1 fps ( 1.55 mps) for 5 seconds, a fish can travel a distance of 
25.5 ft (7.77 m), much further than what would be required to pass the 
crest of the falls.
    According to Meridian's petition, at 49 cfs (1.37 cms) the pool 
below Napias Creek Falls is 6 ft. deep (1.83 m), which is of sufficient 
depth for a fish to stage and leap at the falls. The P&O report states:

    From a research project the author participated in observing 
fish leaping over weirs at John's Creek Fish Hatchery, near Shelton, 
Washington (Aasrude 1984), it was concluded that two conditions 
should be satisfied to provide optimum leaping conditions in plunge 
pools: (1) depth of penetration of falling water should be less than 
the depth in the plunge pool, and (2) depth of the plunge pool must 
be on the order of, or greater than the length of the fish 
attempting to pass (BPA 1984).

    Information from Meridian's petition shows that the pool below the 
uppermost falls at Napias Creek satisfies both of these conditions.
    Finally, the issue of aerated two-phase (air-water) flow is 
discussed in Meridian's petition as a condition that further impedes 
the swimming and leaping ability of the fish. No data are given to 
reveal the extent of aeration at Napias Creek Falls and this is very 
difficult to measure in situ. Based on basic fluid drag equations that 
relate to the forces exerted by and on a moving submerged object, such 
as a fish, the drag force is directly proportional to the unit weight 
of water. Since the drag forces involved with the movement of a fish 
include propulsion by fins and friction drag produced by water velocity 
passing over the shape of a fish, the reduction of the unit weight of 
water due to aeration has force components that both increase and 
decrease the fish's swimming ability. This is an area that has not been 
specifically studied in bio-mechanical tests. However, it is reasonable 
to assume that, in the case of Napias Creek Falls, flowing at 49 cfs 
(1.37 cms), aeration will have an effect on the leaping ability of the 
fish, either positive or negative depending on the percent aeration of 
the flow. Data reported in the U.S. Bureau of Reclamation's Engineering 
Monograph No. 41, ``Air-Water Flow in Hydraulic Structures'' show that 
entrained air concentration decreases to near zero at the channel 
bottom of the receiving pool of a 15-degree slope chute to around 7 
percent at mid-depth, with higher concentrations only nearer to the 
water surface. In the context of a fish's jumping ability, the majority 
of the water column produces only a slight decrease (some fraction of 0 
percent to 7 percent) in the swimming speed reached before the jump 
commences. Noting that flow over most (if not all) falls is aerated, 
aeration of flow does not or did not preclude passage over Tumwater, 
Sherars, Celilo, and Willamette Falls. Presumably, this would also be 
the case at Napias Creek Falls.
    Based on its analysis of data from the reports and from observation 
of Napias Creek Falls, NMFS concludes that chinook salmon could pass 
the current configuration of the falls at river flows of about 50 cfs 
(1.4 cms).

Historical Passage Conditions at Napias Creek Falls

    Meridian conducted two studies to determine if, historically, 
chinook salmon were observed above Napias Creek Falls. The first study 
reviewed historical accounts of chinook salmon occurring above Napias 
Creek Falls. Meridian states that reviews of historical and independent 
ethnographic research document that salmon or steelhead were not 
observed or caught above Napias Creek Falls and, therefore, the fish 
were not historically present in this area. A second study reviews the 
genesis of Napias Creek Falls and concludes that the falls are a 
natural feature and, therefore, historically impassable to chinook 
salmon.
    While the studies provided by Meridian tend to indicate that Napias 
Creek Falls may have been a historic barrier to salmon passage, this 
conclusion is called into question by comments from a United States 
Forest Service fishery biologist (Forest). In a report dated February 
8, 1996, Bruce Smith, Salmon and Challis National Forest Fisheries 
Biologist, concludes that Napias Creek historically contained chinook 
salmon (Smith, 1996a). Furthermore, Smith states that areas above 
Napias Creek Falls currently contain relict indicator species, 
specifically bull trout and rainbow trout (Smith, 1996a), indicating 
pre-historic accessibility of this area to anadromous salmon species 
such as chinook (Smith, 1996b).
    In its petition, Meridian provides a letter from George Matejko, 
Forest Supervisor, Salmon and Challis National Forests, dated April 30, 
1996, to William Stelle, Jr., Regional Administrator, Northwest Region, 
NMFS, concerning the Smith reports. This letter states ``it is the 
Forest Service's opinion that the Upper Napias Creek Watershed above 
Napias Creek Falls is not historic chinook salmon habitat'' and ``the 
minority opinion submitted to your office by Bruce Smith does not 
reflect the official Forest position on this issue'' (Matejko, 1996).
    While NMFS understands the Smith reports may not constitute the 
official position of the Forest on whether Upper Napias Creek is 
historical chinook salmon habitat, NMFS believes these reports provide 
relevant scientific information worthy of consideration.
    Furthermore, while the Forest questions NMFS' use and 
interpretation of scientific information contained in the Smith 
reports, the Forest does not seek to refute all aspects of these 
reports (e.g., the presence of relict indicator species above the 
falls), nor does it provide new scientific information that would call 
into question conclusions contained in these reports.
    Smith concluded that based on historical, ethnobiological, and 
biological evidence, it is likely chinook salmon historically occurred 
in Napias Creek, including areas above Napias Falls (Smith, 1996a; 
Smith, 1996b). Meridian attempts to prove that Napias Falls is a 
historic barrier to chinook salmon migration based on historic, 
ethnographic, and geologic studies of the area in question. NMFS 
concludes that the evidence contained in the Smith reports is not 
overcome by the evidence presented by Meridian or the Forest, and is 
persuasive on the question of the historical presence of chinook salmon 
in Upper Napias Creek.
    While NMFS concludes it is likely that historically, chinook salmon 
and steelhead occurred above Napias Creek Falls, the issue of 
historical use of this area may in fact be moot since NMFS concludes 
chinook salmon can now migrate above Napias Creek Falls, (i.e., the 
area above Napias Creek Falls is within the current range of chinook 
salmon).

Essential Features of Habitat

    NMFS' ESA implementing regulations state that it ``shall designate 
as critical habitat areas outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species'' 
(50 CFR Sec. 424.12(e)). Therefore, in the

[[Page 4618]]

event that areas outside a species' current range contain unique 
biological features that would aid in the conservation of the species, 
NMFS may designate such areas as critical habitat.
    Documents submitted by Meridian indicate that habitat above Napias 
Creek Falls is of high quality and that this habitat may therefore be 
desirable for recovery of listed chinook salmon. In an undated report 
from Idaho Department of Fish and Game (IDFG) submitted by Meridian, 
the State concludes that ``excellent spawning areas exist in the upper 
half of the stream'' (IDFG, undated). This conclusion is supported by a 
recent NMFS assessment of this habitat (NMFS, 1997c). NMFS' recent 
habitat assessment is summarized here.
    In assessing the quality of habitat in Napias Creek, NMFS' fishery 
biologists conducted onsite habitat evaluations and reviewed available 
scientific literature regarding the area. The portion of Napias Creek 
above Napias Creek Falls from approximately River Mile (RM) 3 to RM 10 
has a lower gradient and often meanders through a more open floodplain. 
This stream stretch contains a high proportion of low gradient riffles, 
along with glides, runs, plunge pools, main channel pools, and lateral 
scour pools that create important spawning and rearing habitat for 
anadromous fishes (Thurow and Overton, 1993). Gravel and rubble tend to 
dominate the existing substrate, and occasional deep pools exist. Some 
portions of this stream reach may be considered pristine, although 
there is also some evidence of historical mining (ACZ Inc., 1990).
    Napias Creek is an important source of high-quality dilution water 
within the Panther Creek system. Any degradation of dilution flows from 
Napias Creek would negatively impact efforts to reestablish anadromous 
fisheries in Panther Creek (ACZ Inc., 1990). According to Smith (1990), 
the dilution effect on Panther Creek creates a ``habitat window'' with 
natural benthic and fisheries values for about six miles downstream, to 
the confluence with Big Deer Creek, where Blackbird Mine drainage 
becomes a problem. Napias Creek water is also considered to have 
extremely low hardness (approximately 10 mg/l CaCO3) 
relative to Panther Creek water (approximately 30 mg/l 
CaCO3).
    In most years, spring/summer chinook salmon should be able to 
navigate through Napias Creek Falls between late-June to mid-July when 
streamflows and water levels are more favorable (NMFS, 1997b). This 
time window will be more selective for early arriving adult chinook 
salmon. Historically, the Panther Creek system likely maintained an 
early migration of adult spring/summer chinook salmon (Parkhurst, 
1950). The early spawning run and the low hardness factor may expand 
the genetic variability of listed Snake River chinook salmon, thereby 
enhancing the survival characteristics of the entire Snake River 
chinook salmon ESU.
    Based on its own independent scientific analysis, NMFS concludes 
that areas above Napias Creek Falls contain a significant amount of 
high quality chinook salmon habitat. Given its assessment of habitat 
above Napias Creek Falls, NMFS believes that habitat above Napias Creek 
Falls contains unique features that will aid in the conservation and 
recovery of listed salmonid species. Therefore, if future studies 
indicate areas above Napias Creek Falls are outside the current range 
of listed chinook salmon, it is possible that such habitat areas may be 
found essential for conservation and recovery of listed salmonid 
species.

Determination

    NMFS has reviewed Meridian's petition to revise critical habitat 
for Snake River spring/summer chinook salmon in Napias Creek, a 
tributary to the Salmon River, located near Salmon, Idaho. Based on its 
assessment of the best available scientific information, NMFS concludes 
that the petitioned action is not warranted.

References

    A complete list of references is available upon request (see 
ADDRESSES).

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

    Dated: January 26, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-2368 Filed 1-29-98; 8:45 am]
BILLING CODE 3510-22-F