[Federal Register Volume 63, Number 153 (Monday, August 10, 1998)]
[Rules and Regulations]
[Pages 42587-42591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21255]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 950407093-8201-04; I.D. 063098A]


Endangered and Threatened Species; Threatened Status for the 
Oregon Coast Evolutionarily Significant Unit of Coho Salmon

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

ACTION: Final rule.

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SUMMARY: In 1995, NMFS completed a comprehensive status review of west 
coast coho salmon (Oncorhynchus kisutch) that resulted in proposed 
listings for three Evolutionarily Significant Units (ESUs), including 
an Oregon Coast ESU of coho salmon inhabiting coastal streams between 
Cape Blanco and the Columbia River. After reviewing additional 
information, including biological data on the species' status and an 
assessment of protective efforts, NMFS concluded that this ESU did not 
warrant listing. However, the Oregon District Court recently overturned 
the decision and remanded the rule back to the agency. The District 
Court concluded that the ESA does not allow NMFS to consider the 
biological effects of future or voluntary conservation measures when 
making a listing determination. In light of the Court's order, the 
agency now concludes that the Oregon Coast coho salmon ESU warrants 
listing as a threatened species.
    NMFS will issue any protective regulations deemed necessary under 
section 4(d) of the Endangered Species Act (ESA) for this ESU in a 
separate rulemaking. Even though NMFS is not issuing protective 
regulations for this ESU at this time, Federal agencies are required 
under section 7 of the ESA to consult with NMFS if any activity they 
authorize, fund, or carry out may affect listed Oregon Coast coho 
salmon.
    In the Oregon Coast ESU, only naturally spawned populations of coho 
salmon are listed. NMFS has examined the relationship between hatchery 
and natural populations of coho salmon in this ESU and determined that 
none of the hatchery populations are currently essential for recovery 
and, therefore, the hatchery populations are not listed.
DATES: Effective October 9, 1998.

ADDRESSES: Garth Griffin, NMFS, Northwest Region, Protected Species 
Program, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; Kellie 
Carter, NMFS, Office of Protected Resources, 1315 East-West Highway, 
Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Rob Jones at (503) 230-5429 or Garth 
Griffin at (503) 231-2005.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    The history of petitions received regarding coho salmon is 
summarized in the proposed rule published on July 25, 1995 (60 FR 
38011). The most comprehensive petition was submitted by the Pacific 
Rivers Council and by 22 co-petitioners on October 20, 1993. In 
response to that petition, NMFS assessed the best available scientific 
and commercial data, including technical information from Pacific 
Salmon Biological and Technical Committees (PSBTCs) in Washington, 
Oregon, and California. The PSBTCs consisted of scientists from 
Federal, state, and local resource agencies, Indian tribes, 
universities, industries, professional societies, and public interest 
groups with technical expertise relevant to coho salmon. NMFS also 
established a Biological Review Team (BRT), composed of staff from its 
Northwest Fisheries Science Center and Southwest Regional Office, which 
conducted a coastwide status review for coho salmon (Weitkamp et al., 
1995).
    Based on the results of the BRT report, and after considering other 
information and existing conservation measures, NMFS published a 
proposed listing determination (60 FR 38011, July 25, 1995) that 
identified six ESUs of coho salmon, ranging from southern British 
Columbia to central California. The Olympic Peninsula ESU was found not 
to warrant listing, and the Oregon Coast ESU, Southern Oregon/Northern 
California Coasts ESU, and Central California Coast ESU were proposed 
for listing as threatened species. The Puget Sound/Strait of Georgia 
ESU and the lower Columbia River/southwest Washington Coast ESU were 
identified as candidates for listing. NMFS is in the process of 
completing status reviews for the latter two ESUs; results and findings 
for both will be announced in an upcoming Federal Register document.
    On October 31, 1996, NMFS published a final rule listing the 
Central California Coast ESU as a threatened species (61 FR 56138). 
Concurrently, NMFS announced that a 6-month extension was warranted for 
the Oregon Coast and Southern Oregon/Northern California Coasts ESUs 
(61 FR 56211), pursuant to section 4(b)(6)(B)(i) of the ESA, due to the 
fact that there was

[[Page 42588]]

substantial disagreement regarding the sufficiency and accuracy of the 
available data relevant to the listing determination.
    On May 6, 1997, NMFS issued a final rule listing the Southern 
Oregon/Northern California coasts coho salmon ESU as a threatened 
species (62 FR 24588). In that document, NMFS withdrew its proposed 
rule to list the Oregon Coast coho salmon ESU as a threatened species, 
based in part on conservation measures contained in the Oregon Coastal 
Salmon Restoration Initiative (OCSRI). The OCSRI is a comprehensive 
conservation plan directed specifically at coho salmon stocks on the 
coast of Oregon (OCSRI, 1997a). This plan was later expanded to include 
conservation measures for coastal steelhead stocks (OCSRI, 1997b) and 
renamed the ``Oregon Plan for Salmon and Watersheds'' (OPSW). For a 
detailed description of the OPSW, refer to the May 6, 1997, listing 
determination for Southern Oregon/Northern California coho salmon (62 
FR 24588).
    Conservation benefits accruing from the Oregon Plan and the 
subsequent Memorandum of Agreement (MOA) between NMFS and the State of 
Oregon, April 23, 1997, which further defined Oregon's commitment to 
salmon conservation, formed a major basis for NMFS' original 
determination to withdraw the listing proposal for the Oregon Coast 
coho salmon ESU. In particular, NMFS scientists expressed the view that 
implementation of OPSW harvest and hatchery reforms may substantially 
reduce the short-term risk of extinction faced by the Oregon Coast ESU. 
They also viewed habitat protection and restoration as key to ensuring 
the long-term survival of the ESU. While NMFS determined that the OPSW 
contains many programs that will improve habitat conditions for coho 
salmon, many of these measures needed strengthening to ensure the 
creation and maintenance of high quality habitat over the long term. 
Thus, in declining to list the Oregon Coast ESU in May 1997, NMFS 
relied on the harvest, hatchery and habitat programs in the OPSW, as 
well as commitments to strengthen habitat measures made in the MOA.
    On June 1, 1998, the Federal District Court for the District of 
Oregon issued an opinion finding NMFS' May 6, 1997, determination 
regarding the Oregon Coast coho salmon ESU arbitrary and capricious, 
Oregon Natural Resources Council et. al v. Daley, CV-97-1155-ST (D. Or. 
June 1, 1998). The Court vacated NMFS' determination and remanded the 
case to NMFS for further consideration. In vacating NMFS' decision to 
withdraw its proposed rule to list the Oregon Coast coho salmon ESU, 
the Oregon District Court held that the ESA does not allow NMFS to 
consider the biological effects of future or voluntary conservation 
measures and that NMFS could give no weight to such measures in its 
listing determination. NMFS believes this legal interpretation of the 
ESA is incorrect and is appealing that decision. The District Court and 
the Ninth Circuit Court of Appeals declined to stay the District 
Court's order requiring NMFS to make a new decision by August 3, 1998, 
during the pendency of NMFS' appeal. Therefore, NMFS is issuing the new 
rule in accordance with the Court's order.
    This determination is based solely on information and data 
contained in the agency's west coast coho salmon administrative record 
as it existed on May 6, 1997. Although NMFS has received a substantial 
amount of new information regarding the status of the ESU and efforts 
being made to protect it, NMFS could not fully integrate that 
information into the current determination. In order to do so, NMFS 
would have to reconvene the BRT, the members of which are now fully 
occupied in finishing NMFS' comprehensive status review of Pacific 
salmonids. However, NMFS will continue to review the status of the ESU 
and propose changes as needed.

Species Life History and Status

    Biological information for Oregon Coast coho salmon can be found in 
species status assessments by NMFS (Weitkamp et al., 1995; NMFS, 1997a) 
and by Oregon Department of Fish and Wildlife (Nickelson et al., 1992; 
OCSRI 1997a), and in species life history summaries by Laufle et al., 
1986; Emmett et al., 1991; and Sandercock, 1991, and by Federal 
Register documents (60 FR 38011, July 25, 1995; 62 FR 24588, May 6, 
1997).

Summary of Comments Regarding the Oregon Coast ESU

    NMFS held six public hearings in California, Oregon, and Washington 
to solicit comments on the proposed listing determination for west 
coast coho salmon. Sixty-three individuals presented testimony at the 
hearings. During the 90-day public comment period, NMFS received 174 
written comments on the proposed rule from state, Federal, and local 
government agencies, Indian tribes, non-governmental organizations, the 
scientific community, and other individuals. In accordance with agency 
policy (59 FR 34270, July 1, 1994), NMFS also requested a scientific 
peer review of the proposed rule and received responses from two of the 
seven reviewers. A summary of major public comments pertaining to the 
Oregon Coast coho salmon ESU (including issues raised by peer 
reviewers) is presented in NMFS' May 6, 1997, Federal Register document 
(62 FR 24588).

Summary of Factors Affecting Coho Salmon

    Section 4(a)(1) of the ESA and NMFS listing regulations (50 CFR 
part 424) set forth procedures for listing species. The Secretary of 
Commerce (Secretary) must determine, through the regulatory process, if 
a species is endangered or threatened based upon any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or human-made 
factors affecting its continued existence.
    The factors threatening naturally reproducing coho salmon 
throughout its range are numerous and varied. For coho salmon 
populations in Oregon, the present depressed condition is the result of 
several longstanding, human-induced factors (e.g., habitat degradation, 
water diversions, harvest, and artificial propagation) that serve to 
exacerbate the adverse effects of natural environmental variability 
from such factors as drought, floods, and poor ocean conditions.
    As noted earlier, NMFS received numerous comments regarding the 
relative importance of various factors contributing to the decline of 
coho salmon. A summary of various risk factors and their role in the 
decline of the Oregon Coast coho salmon ESU is presented in NMFS' May 
6, 1997, Federal Register document (62 FR 24588), as well as in several 
documents contained in the agency's west coast coho salmon 
administrative record (NMFS, 1996, 1997a, and 1997b; OCSRI, 1997a).

Determination

    In keeping with the June 1, 1998, order of the Oregon District 
Court, NMFS has re-assessed the scientific and commercial information 
available at the time of the May 1997 decision. The BRT report (NMFS, 
1997a) concluded that, although the species was not at significant 
short-term risk of extinction, ``...assuming present conditions 
continue into the future (and that proposed harvest and hatchery 
reforms are not implemented), ...this ESU was

[[Page 42589]]

likely to become endangered in the foreseeable future.'' Among the 
BRT's concerns were that this ESU's current abundance was substantially 
less than it was historically, and both recruitment and recruits-per-
spawner declined over a significant portion of the ESU's range. In 
addition, habitat degradation and inadequate regulatory mechanisms 
posed continued threats to this species' survival.
    While NMFS reaffirms its conclusion that the species is not at 
significant short-term risk of extinction, i.e, is not endangered, the 
agency now must find that the species is likely to become endangered in 
the foreseeable future. This decision is driven by the District Court's 
order, which precludes NMFS from considering any non-Federal efforts 
that will take place in the future or are voluntary in nature. Although 
NMFS still believes these measures should be considered in the listing 
determination and is appealing the Court's decision, the current 
determination cannot and does not rely on the application in the future 
of the harvest and hatchery measures contained in the Oregon Plan, nor 
the habitat improvement programs being undertaken under the Oregon 
Plan, nor the commitments made by Oregon in the MOA for improvement of 
applicable habitat measures. Many of these measures address the reforms 
considered necessary or important by NMFS. However, in light of the 
Court's order on factors NMFS may not and should not consider, NMFS 
must now determine that the Oregon Coast coho salmon ESU warrants 
listing as a threatened species under the ESA.
    As described in agency status reviews (Weitkamp et al., 1995; NMFS, 
1997a) and the proposed listing determination for west coast coho 
salmon (60 FR 38011, July 25, 1995), NMFS defines the Oregon Coast coho 
salmon ESU to include all native, naturally spawned populations of coho 
salmon (and their progeny) that are part of the biological ESU and 
reside below long-term, naturally impassible barriers in streams 
between the Columbia River and Cape Blanco (Oregon). NMFS has evaluated 
the status of thirteen hatchery stocks of coho salmon presently reared 
and released within the range of this ESU (NMFS, 1997a, 1998). Four of 
these hatchery stocks either are not considered part of the ESU (Fall 
Creek, Siletz River, and Trask River) or are of uncertain relationship 
to the ESU (North Fork Nehalem River).
    In contrast, NMFS has concluded that fish from nine Oregon hatchery 
populations (Coos River, Coquille River, Cow Creek, North Umpqua River, 
Smith River, Tahkenitch/Siltcoos, Alsea River and tributaries, Salmon 
River, and Fishhawk Creek) are part of this ESU. None of these nine 
hatchery stocks are presently deemed ``essential'' for the ESU's 
recovery (58 FR 17573, April 5, 1993). Hence, these hatchery fish are 
not being listed at this time. However, NMFS recognizes that some of 
the hatchery populations may play an important role in recovery 
efforts. The determination that a hatchery stock is not ``essential'' 
for recovery does not preclude it from playing a role in recovery. Any 
hatchery population that is part of the ESU is available for use in 
recovery if needed. In this context, an ``essential'' hatchery 
population is one that is vital for full incorporation into recovery 
efforts (for example, if the associated natural population(s) were 
extinct or at high risk of extinction). Under such circumstances, NMFS 
would consider taking the administrative action of listing existing 
hatchery fish.
    NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon 
Under the Endangered Species Act'' (58 FR 17573, April 5, 1993) 
provides guidance on the treatment of hatchery stocks in the event of a 
listing. Under this policy, ``progeny of fish from the listed species 
that are propagated artificially are considered part of the listed 
species and are protected under the ESA.'' (58 FR 17573). In the case 
of four hatchery populations (Coos River, Coquille River, Cow Creek, 
and Smith River) that are considered part of the Oregon Coast ESU, the 
protective regulations that NMFS will issue shortly may except certain 
take of naturally spawned listed fish for use as broodstock as part of 
an overall conservation program. According to the interim policy, the 
progeny of these hatchery-wild or wild-wild crosses would also be 
listed unless the agency determines otherwise. NMFS has determined in 
these four cases, however, not to consider hatchery-reared progeny of 
intentional hatchery-wild or wild-wild crosses as listed (NMFS 1998). 
Coho salmon populations in the Coos, Coquille, and Umpqua River basins 
are relatively abundant, the take of naturally spawned fish for 
broodstock purposes will be specifically limited, and NMFS has 
concluded that none of these four hatchery populations are currently 
essential for recovery (NMFS, 1998). In addition, NMFS believes it is 
desirable to incorporate wild fish into these hatchery populations to 
ensure that their genetic and life history characteristics do not 
diverge significantly from the natural populations. NMFS, therefore, 
concludes that it is not inconsistent with NMFS' interim policy, nor 
with the policy and purposes of the ESA, to consider these progeny part 
of the ESU but not listed. NMFS may consider taking similar action for 
other coho salmon hatchery populations in the Oregon Coast ESU, but 
only after determining that such action would be beneficial or would 
not compromise the health of naturally spawned populations.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the extent prudent 
and determinable, critical habitat be designated concurrently with the 
listing of a species. Section 4(b)(6)(C)(ii) provides that, where 
critical habitat is not determinable at the time of final listing, NMFS 
may extend the period for designating critical habitat by no more than 
1 additional year. NMFS finds at this time critical habitat is not 
determinable for this ESU since required biological data have not yet 
been collected and analyzed. NMFS, therefore, extends the deadline for 
designating critical habitat for 1 year until such data can be 
collected and analyzed.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include recognition, recovery actions, Federal 
agency consultation requirements, and prohibitions on taking. 
Recognition through listing promotes public awareness and conservation 
actions by Federal, state, and local agencies, private organizations, 
and individuals. With respect to the Oregon Coast coho salmon ESU, 
Federal and state efforts are underway (and will continue under the 
listing) that are expected to slow or reverse the decline of coho 
salmon in this ESU.

A. Federal Conservation Efforts

    Federal efforts include significant protections under the Northwest 
Forest Plan's Aquatic Conservation Strategy (Forest Ecosystem 
Management Assessment Team, 1993), the South Slough National Estuarine 
Research Reserve located in Coos Bay, an upcoming consultation on the 
North Umpqua Hydroelectric Projects in the Umpqua River basin, and 
continued road retirement and obliteration on Federal forest lands. In 
addition, the Natural Resources Conservation Service (NRCS) is 
currently engaged with NMFS in discussions about updating their Field 
Office Technical Guides (FOTGs) to better assist landowners in Oregon

[[Page 42590]]

desiring to implement voluntary conservation measures protective of, or 
benefitting, salmonids. A subset of the FOTGs are the guidance that 
local field offices follow when engaging in actions that may affect 
anadromous fish or their habitats.
    NMFS and U.S. Fish and Wildlife Service are also engaged in an 
ongoing effort to assist in the development of multiple species Habitat 
Conservation Plans (HCPs) for state and privately owned lands in 
Oregon. While section 7 of the ESA addresses species protection 
associated with Federal actions and lands, Habitat Conservation 
Planning under section 10 of the ESA addresses species protection on 
non-Federal lands. HCPs are particularly important since about 65 
percent of the habitat in the range of the Oregon coast ESU is in non-
Federal ownership. The intent of the HCP process is to reduce conflicts 
between listed species and economic development activities and to 
provide a framework that would encourage ``creative partnerships'' 
between the public and private sectors and state, municipal, and 
Federal agencies in the interests of endangered and threatened species 
and habitat conservation.
    Section 4(d) of the ESA directs the Secretary to promulgate 
regulations ``to provide for the conservation of [threatened] 
species,'' which may include extending any or all of the prohibitions 
of section 9 of the ESA to threatened species. Section 9(a)(1)(G) also 
prohibits violations of protective regulations for threatened species 
promulgated under section 4(d) of the ESA. NMFS will issue any 
protective regulations deemed necessary under section 4(d) of the ESA 
for this ESU in a separate rulemaking. Even though NMFS is not issuing 
protective regulations for this ESU at this time, Federal agencies are 
required under section 7 to consult with NMFS if any activity they 
authorize, fund, or carry out may affect listed Oregon Coast coho 
salmon. The effective date for this requirement is October 9, 1998.
    For listed species, section 7(a)(2) of the ESA requires Federal 
agencies to ensure that activities they authorize, fund, or conduct are 
not likely to jeopardize the continued existence of a listed species or 
to destroy or adversely modify its critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with NMFS.
    Examples of Federal actions most likely to be affected by listing 
this ESU include U.S. Army Corps of Engineers (COE) section 404 
permitting activities under the Clean Water Act; COE section 10 
permitting activities under the River and Harbors Act; Federal Energy 
Regulatory Commission licensing and relicensing for non-Federal 
development and operation of hydropower; U.S. Environmental Protection 
Agency promulgation of water quality standards; and activities funded, 
authorized, or carried out by U.S. Department of Agriculture agencies 
including, but not limited to, the NRCS. These actions will likely be 
subject to ESA section 7 consultation requirements, which may result in 
conditions designed to achieve the intended purpose of the project and 
avoid or reduce impacts to coho salmon and its habitat within the range 
of the listed ESU.
    There are likely to be Federal actions ongoing in the range of the 
Oregon Coast ESU at the time that this listing becomes effective. 
Therefore, within available staffing and funding constraints, NMFS will 
review all ongoing actions that may affect the listed species with the 
Federal agencies and will complete formal or informal consultations 
(where requested or necessary) for such actions as appropriate, 
pursuant to ESA section 7(a)(2).
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``taking'' prohibitions (see 
regulations at 50 CFR 222.22 through 222.24). Section 10(a)(1)(A) 
scientific research and enhancement permits may be issued to entities 
(Federal and non-Federal) conducting research that involves direct take 
of listed species.
    NMFS has issued section 10(a)(1)(A) research or enhancement permits 
for other listed species (e.g., Snake River chinook salmon, Sacramento 
River winter-run chinook salmon) for a number of activities, including 
trapping and tagging to determine population distribution and 
abundance, and collection of adult fish for artificial propagation 
programs. NMFS is aware of several sampling efforts for coho salmon in 
the Oregon Coast ESU, including efforts by Federal and state fisheries 
agencies, and private landowners. These and other research efforts 
could provide critical information regarding coho salmon distribution 
and population abundance.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities to authorize take of listed species incidental to 
otherwise lawful activities. The types of activities potentially 
requiring a section 10(a)(1)(B) incidental take permit include the 
operation and funding of hatcheries and release of artificially 
propagated fish by the state, state or university research not 
receiving Federal authorization or funding, the implementation of state 
fishing regulations, and timber harvest activities on non-Federal 
lands.

B. Non-Federal Conservation Efforts

    As noted previously, conservation benefits accruing from the Oregon 
Plan and the subsequent MOA formed a major basis for NMFS' original 
determination to withdraw the listing proposal for the Oregon Coast 
coho salmon ESU. NMFS will continue to support the OPSW and work with 
state and non-Federal entities to develop and implement any additional 
measures needed to protect salmon within this ESU. Because a 
substantial portion of land in this ESU is in state or private 
ownership (approximately 65 percent), conservation measures on these 
lands will be key to this effort.

References

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (see ADDRESSES).

Classification

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir., 
1981), NMFS has categorically excluded all ESA listing actions from the 
environmental assessment requirements of the National Environmental 
Policy Act (48 FR 4413, February 6, 1984).
    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
the species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under E.O. 12866.

List of Subjects in 50 CFR Part 227

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: August 3, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 227 is amended 
as follows:

[[Page 42591]]

PART 227--THREATENED FISH AND WILDLIFE

    1. The authority citation of part 227 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also 
issued under 16 U.S.C. 1361 et seq.

    2. In Sec. 227.4, paragraph (o) is added to read as follows:




Sec. 227.4  Enumeration of threatened species.

* * * * *
    (o) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all 
naturally spawned populations of coho salmon in streams south of the 
Columbia River and north of Cape Blanco in Curry County, OR.
[FR Doc. 98-21255 Filed 8-7-98; 8:45 am]
BILLING CODE 3510-22-F