[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]
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