[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