[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Rules and Regulations]
[Pages 14508-14517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6814]



[[Page 14507]]

_______________________________________________________________________

Part II





Department of Commerce





_______________________________________________________________________



50 CFR Part 223



Endangered and Threatened Species: Threatened Status for Two ESUs of 
Chum Salmon in Washington and Oregon, for Two ESUs of Steelhead in 
Washington and Oregon, and for Ozette Lake Sockeye Salmon in 
Washington; Rules

  Federal Register / Vol. 64, No. 57 / Thursday, March 25, 1999 / Rules 
and Regulations  

[[Page 14508]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980219042-9069-02; I.D. 011498B]
RIN 0648-AK53


Endangered and Threatened Species: Threatened Status for Two ESUs 
of Chum Salmon in Washington and Oregon

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

ACTION: Final rule; notice of determination.

-----------------------------------------------------------------------

SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a 
final determination that the Hood Canal summer-run chum salmon 
(Oncorhynchus keta) and Columbia River chum salmon Evolutionarily 
Significant Units (ESUs) are threatened species under the Endangered 
Species Act (ESA) of 1973, as amended. Fish in the Hood Canal summer-
run chum salmon ESU spawn in several tributaries to Hood Canal and 
Discovery, Sequim, and Dungeness Bays, Washington, while those in the 
Columbia River chum salmon ESU spawn in tributaries to the lower 
Columbia River in Washington and Oregon.
    In both ESUs only naturally spawned chum salmon residing below 
impassable natural barriers (e.g., long-standing, natural waterfalls) 
are listed. NMFS has examined the relationship between hatchery and 
natural populations of chum salmon in each ESU and determined that none 
of the hatchery populations are currently essential for recovery and, 
therefore, the hatchery populations (and their progeny) are not listed.
    NMFS will issue any protective regulations deemed necessary under 
section 4(d) of the ESA for the listed ESUs in a separate rulemaking. 
Even though NMFS does not now issue protective regulations for these 
ESUs, 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 chum salmon.

DATES: Effective May 24, 1999.

ADDRESSES: Branch Chief, Protected Resources Division, NMFS, 525 NE 
Oregon St., Suite 500, Portland, OR 97232-2737.

FOR FURTHER INFORMATION CONTACT: Garth Griffin (503) 231-2005, or Chris 
Mobley (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Reference materials regarding this listing determination can also 
be obtained from the internet at www.nwr.noaa.gov.

Species Background

    Biological information for chum salmon can be found in recent 
species status assessments by NMFS (Johnson et al., 1997; NMFS, 1999a 
and 1999b), Oregon Department of Fish and Wildlife (ODFW) (Kostow, 
1995), and Washington Department of Fisheries (WDF), Washington 
Department of Wildlife, and Western Washington Treaty Tribes (WDF et 
al., 1993), in species life history summaries (Pauley et al., 1988; 
Emmett et al., 1991; and Salo, 1991), and in the Federal Register 
document announcing the listing proposal (63 FR 11774, March 10, 1998).

Previous Federal ESA Actions Related to West Coast Chum Salmon

    On March 14, 1994, NMFS was petitioned by the Professional 
Resources Organization-Salmon (PRO-Salmon) to list Washington's Hood 
Canal, Discovery Bay, and Sequim Bay summer-run chum salmon (O. keta) 
as threatened or endangered species under the ESA (PRO-Salmon, 1994). A 
second petition, received April 4, 1994, from the Save Allison Springs 
Citizens Committee (Save Allison Springs Citizens Committee, 1994), 
requested listing of fall chum salmon found in the following southern 
Puget Sound streams or bays: Allison Springs, McLane Creek, tributaries 
of McLane Creek (Swift Creek and Beatty Creek), Perry Creek, and the 
southern section of Mud Bay/Eld Inlet. A third petition, received by 
NMFS on May 20, 1994, was submitted by Trout Unlimited (Trout 
Unlimited, 1994). This petition requested listing for summer-run chum 
salmon that spawn in 12 tributaries of Hood Canal.
    In response to these petitions and to the more general concerns 
about the status of Pacific salmon throughout the region, NMFS 
published a notification in the Federal Register (59 FR 46808, 
September 12, 1994) announcing that the petitions presented substantial 
scientific information indicating that a listing may be warranted and 
that the agency would initiate ESA status reviews for chum salmon and 
other species of anadromous salmonids in the Pacific Northwest. These 
comprehensive reviews considered all populations in the States of 
Washington, Idaho, Oregon, and California. Hence, the status review for 
chum salmon encompassed, but was not restricted to, the populations 
identified in the petitions described.
    During the coastwide chum salmon status review, NMFS requested 
public comment and assessed the best available scientific and 
commercial data, including technical information from Pacific Salmon 
Biological Technical Committees (PSBTCs) and other interested parties. 
The PSBTCs consisted primarily of scientists (from Federal, state, and 
local resource agencies, Indian tribes, industries, universities, 
professional societies, and public interest groups) possessing 
technical expertise relevant to chum salmon and their habitats. The 
NMFS Biological Review Team (BRT), composed of staff from NMFS' 
Northwest Fisheries Science Center, reviewed and evaluated scientific 
information provided by the PSBTCs and other sources and completed a 
coastwide status review for chum salmon (Johnson et al., 1997). Early 
drafts of the BRT review were distributed to state and tribal fisheries 
managers and peer reviewers who are experts in the field to ensure that 
NMFS' evaluation was accurate and complete.
    Based on the results of the BRT report, and after considering other 
information and existing conservation measures, NMFS published a 
proposed listing determination (63 FR 11774, March 10, 1998) which 
identified four ESUs of chum salmon in Washington, Oregon, and 
California. The Hood Canal summer-run and Columbia River ESUs were 
proposed for listing as threatened species, while the Puget Sound/
Strait of Georgia ESU and Pacific Coast ESU did not warrant listing.
    During the year between the proposed rule and this final 
determination, NMFS solicited peer and comanager review of the agency's 
proposal and received comments and new scientific information 
concerning the status of the ESUs proposed for listing. NMFS also 
received information regarding the relationship of existing hatchery 
stocks to naturally spawned populations in each ESU. This new 
information was evaluated by NMFS' BRT and published in updated status 
review memoranda that draw conclusions about ESU delineation and risk 
assessments for the Hood Canal summer-run and Columbia River ESUs 
(NMFS, 1999a and 1999b). Based on the updated NMFS status review and 
other information, NMFS now issues its final listing determinations for 
the two proposed ESUs. Copies of the NMFS status review

[[Page 14509]]

and related documents are available upon request (see ADDRESSES).

Summary of Comments and Information Received in Response to the 
Proposed Rule

    NMFS held 21 public hearings in California, Oregon, Idaho, and 
Washington to solicit comments on this and other salmonid listing 
proposals (63 FR 16955, April 7, 1998; 63 FR 30455, June 4, 1998). 
During the 112-day public comment period, NMFS received 10 written 
comments regarding the chum salmon proposed rule. NMFS also sought new 
data and analyses from tribal and state comanagers and met with them to 
formally discuss technical issues associated with the chum salmon 
status review. Technical information was considered by NMFS' BRT in its 
re-evaluation of ESU boundaries and risk assessments; this information 
is discussed in the updated status review memoranda for chum salmon 
(NMFS, 1999a and 1999b).
    The new information focused on the Hood Canal summer-run ESU and 
included data regarding an extension of the ESU's boundaries, updated 
final 1997 (and preliminary 1998) spawning escapement estimates, and 
revised run reconstruction data for the ESU. No new information bearing 
on the risk assessment for the Columbia River ESU was provided for the 
BRT's consideration.
    A number of comments addressed issues pertaining to the proposed 
critical habitat designation for chum salmon. NMFS will address these 
comments in a forthcoming Federal Register document announcing the 
agency's conclusions about critical habitat for the listed ESUs.
    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service (FWS), published a series of policies regarding listings under 
the ESA, including a policy for peer review of scientific data (59 FR 
34270). In accordance with this policy, NMFS solicited 7 individuals to 
take part in a peer review of its west coast chum salmon status review 
and proposed rule. All individuals solicited are recognized experts in 
the field of chum salmon biology, and represent a broad range of 
interests, including Federal, state, and tribal resource managers, and 
academia. Four of the seven individuals took part in the peer review of 
this action; comments from peer reviewers were considered by NMFS' BRT 
and are summarized in the updated status review document (NMFS, 1999a).
    A summary of comments received in response to the proposed rule is 
presented here.

Issue 1: Sufficiency and Accuracy of Scientific Information and 
Analysis

    Comment: Some commenters questioned the sufficiency and accuracy of 
data which NMFS employed in the listing proposal. In contrast, peer 
reviewers commented that the agency's status review was both credible 
and comprehensive.
    Response: Section 4(b)(1)(A) of the ESA requires that NMFS make its 
listing determinations solely on the basis of the best available 
scientific and commercial data after reviewing the status of the 
species. NMFS believes that information contained in the agency's 
status review (Johnson et al., 1997), together with more recent 
information obtained in response to the proposed rule (NMFS, 1999a and 
1999b), represent the best scientific information presently available 
for the chum salmon ESUs addressed in this final rule. NMFS has made 
every effort to conduct an exhaustive review of all available 
information and has solicited information and opinion from all 
interested parties, including peer reviewers. If, in the future, new 
data become available to change these conclusions, NMFS will act 
accordingly.

Issue 2: Delineation of Chum Salmon ESUs

    Comment: The majority of responses generally supported the BRT's 
findings on ESU boundaries. An exception was one commenter who 
suggested the BRT did not present sufficiently strong scientific 
evidence to support the identification of multiple ESUs in the Pacific 
Northwest. This commenter believed that all the ESUs identified by the 
BRT are likely segments of a general north-south cline of chum salmon 
and not distinct ESUs. Comments solicited from peer reviewers with 
specific expertise on chum salmon biology were supportive of the BRT's 
delineations. One peer reviewer supported separation of the lower 
Columbia River from coastal regions based upon a combination of the 
genetic data developed by the BRT and data from other species. However, 
he pointed out that only two genetic samples from the Columbia River 
were evaluated by the BRT, and that this was inadequate to support an 
accurate description of the ESU.
    Response: As described in Issue 1, NMFS believes that the available 
information is sufficiently accurate to support the proposed ESU 
boundaries. NMFS has published a policy describing how it will apply 
the ESA definition of ``species'' to anadromous salmonid species (56 FR 
58612, November 20, 1991). More recently, NMFS and FWS published a 
joint policy, which is consistent with NMFS' policy, regarding the 
definition of ``distinct population segments'' (61 FR 4722, February 7, 
1996). The earlier policy is more detailed and applies specifically to 
Pacific salmonids and, therefore, was used for this determination. This 
policy indicates that one or more naturally reproducing salmonid 
populations will be considered to be distinct and, hence, species under 
the ESA, if they represent an ESU of the biological species. To be 
considered an ESU, a population must satisfy two criteria: (1) It must 
be reproductively isolated from other population units of the same 
species, and (2) it must represent an important component in the 
evolutionary legacy of the biological species. The first criterion, 
reproductive isolation, need not be absolute but must have been strong 
enough to permit evolutionarily important differences to occur in 
different population units. The second criterion is met if the 
population contributes substantially to the ecological or genetic 
diversity of the species as a whole. Guidance on applying this policy 
is contained in a NOAA Technical Memorandum entitled ``Definition of 
'Species' Under the Endangered Species Act: Application to Pacific 
Salmon'' (Waples, 1991) and in a recent scientific paper by Waples 
(1995).
    The National Research Council (NRC) has recently addressed the 
issue of defining species under the ESA (NRC, 1995). Their report found 
that protecting distinct population segments (DPS) is soundly based on 
scientific evidence, and recommends applying an ``Evolutionary Unit'' 
(EU) approach in describing these segments. The NRC report describes 
the high degree of similarity between the EU and ESU approaches 
(differences being largely a matter of application between salmon and 
other vertebrates), and concluded that either approach would lead to 
similar DPS descriptions most of the time.
    NMFS believes there is evidence to support the identification of 
distinct population segments for chum salmon, and that the extant 
populations do not merely represent a north-south cline within the 
species. The chum salmon status review describes a variety of 
characteristics that support the ESU delineations for this species. For 
example, the review noted that run-timing data from as early as 1913 
indicate differences between Hood Canal summer-run (mid-September to 
mid-October) and fall-run (November to December/January) populations. 
In addition, the summer-run populations

[[Page 14510]]

spawn during peak periods of high water temperature, suggesting a 
unique adaptation that allows this ESU to persist in an otherwise 
inhospitable environment. For the Columbia River ESU, the BRT concluded 
that there was historically at least one ESU of chum salmon in this 
major west coast river basin. The BRT also assessed available allozyme 
data for the proposed ESUs and concluded that sufficient genetic 
differences existed between these and adjacent ESUs to support separate 
delineations. Finally, other researchers have reported similar findings 
of distinctness for this species in Washington (Busack and Shaklee, 
1995; and Phelps et al., 1995).
    Comment: One commenter presented data to support extending the 
boundary of the Hood Canal summer-run chum salmon ESU approximately 10 
miles (16 kilometers) westward along the Strait of Juan de Fuca to 
include early-returning chum salmon in the Dungeness River.
    Response: During the original BRT meetings in 1994 for the 
coastwide status review of chum salmon, the BRT considered including 
the Dungeness River early returning fish in the Hood Canal summer-run 
ESU, but at that time, the only data available on summer-run fish in 
the river were anecdotal. The new data provided by the Washington 
Department of Fish and Wildlife (WDFW) (and described in detail in the 
updated status review) clearly shows that in almost every year since 
extensive salmon surveys were begun in 1971, early-returning chum 
salmon were observed in the mainstem Dungeness River. Further, because 
the data are all incidental counts collected during pink or chinook 
salmon spawning surveys, the actual numbers of early-returning summer-
run chum salmon might be significantly greater than these incidental 
counts. Also, the Dungeness River is geographically and environmentally 
similar to rivers in the Hood Canal summer-run ESU. The Dungeness River 
drains from the Olympic Mountains (like other rivers in the ESU), the 
mouth of the Dungeness River is less than 10 kilometers (6 miles) from 
the western boundary of the proposed Hood Canal summer-run ESU, and its 
tributaries intermingle with tributaries of Sequim Bay which was 
identified as within the proposed ESU. Based on this information, the 
BRT agreed with the commenter and concluded the Hood Canal summer-run 
ESU should be extended westward to include summer-run chum salmon in 
the Dungeness River.
    Comment: Another peer reviewer said that chum salmon in the Lower 
Columbia River do appear to select spawning sites with upwelling 
groundwater, contrary to observations of WDFW biologists reported in 
NMFS' status review. He reported that the three populations of chum 
salmon monitored by WDFW in the Columbia River spawn in upwellings and 
seeps (two in spring fed systems and one in seeps and springs, all with 
upwellings). This commenter also noted that there is a population of 
chum salmon of undetermined size spawning below Bonneville Dam between 
Hamilton and Ives Islands in the Columbia River and that a few chum 
salmon are documented to migrate above Bonneville Dam to an unknown 
stream or streams.
    Response: The NMFS status review presented the available 
information regarding spawning ground and redd characteristics for this 
species (Johnson et al., 1997). Several studies on Asian chum salmon 
populations corroborate the reviewer's contention that the species may 
prefer to spawn in areas with upwelling groundwater (Sano, 1966; Salo, 
1991; and Smirnov, 1975). Unfortunately, similar published studies are 
lacking for North American populations. Continued monitoring of 
Columbia River populations should shed more light on this issue and 
whether conservation efforts aimed at restoring subgravel flow could 
accrue benefits to this ESU.
    NMFS reviewed the information documenting chum salmon passage at 
Bonneville Dam (ODFW and WDFW, 1995) and cited these data as one source 
for estimating the population size for the Columbia River ESU (Johnson 
et al., 1997). Unfortunately, the final spawning destination for these 
fish is not known. However, these fish would still be considered part 
of the listed ESU since NMFS has described the ESU to include all 
naturally spawned populations of chum salmon in the Columbia River and 
its tributaries in Washington and Oregon. Although data are limited, 
NMFS has also reviewed WDFW surveys (dating back to at least 1976) 
which indicate that chum salmon are known to spawn in the area below 
Bonneville Dam (WDFW, 1997). NMFS has recently worked with the 
Bonneville Power Administration and other Columbia River comanagers to 
assess the effects of hydropower operations on these fish and has 
recommended that monitoring be initiated to evaluate impacts resulting 
from changes in operational flows (NMFS, 1998b).

Issue 3: Risk Analyses for Chum Salmon ESUs

    Comment: Most commenters, including peer reviewers, generally 
supported the BRT's findings on ESU risk designations. An exception was 
one commenter who believed that NMFS had not shown with statistical 
data that any chum salmon ESUs are at high risk of extinction. Two 
commenters suggested that more data should be collected on chum salmon 
from the Oregon coast and southern Puget Sound, because they believed 
the data would demonstrate that these fish are at greater risk than 
presently believed. Similarly, two peer reviewers expressed concern 
about the paucity of data for making the determination that listing is 
not warranted for the Pacific Coast ESU.
    Response: For nearly a decade, NMFS scientists have been conducting 
salmonid status reviews under the ESA using a risk assessment approach 
that includes an evaluation of: (1) absolute numbers of fish and their 
spatial and temporal distribution; (2) current abundance in relation to 
historical abundance and current carrying capacity of the habitat; (3) 
trends in abundance; (4) natural and human-influenced factors that 
cause variability in survival and abundance; (5) possible threats to 
genetic integrity (e.g., from strays or outplants from hatchery 
programs); and (6) recent events (e.g., a drought or changes in harvest 
management) that have predictable short-term consequences for abundance 
of the ESU. In determining whether an ESU is threatened or endangered, 
BRT scientists must make judgements about the overall risk to the ESU 
based on likely interactions among, and cumulative effects of, these 
various status indicators.
    During the chum salmon status review, NMFS evaluated both 
quantitative and qualitative information regarding the various 
indicators described above. The types and quality of information used 
in these assessments vary considerably (both within and between ESUs) 
and not all indicators lend themselves to rigorous statistical 
analyses. When possible, NMFS used computed statistics to determine 
overall trends in chum salmon populations (Johnson et al., 1997). 
Except in the case of Puget Sound stocks, these statistics were either 
not available or considered unreliable. However, statistical analyses 
are not the only means by which to make risk assessments. For example, 
while escapement data clearly demonstrated a steady decline in Hood 
Canal summer-run chum salmon over the past 30 years, the BRT was 
equally concerned about the ESU's low productivity, low current 
abundance relative to historic abundance, and the loss of several of 
the historically smaller populations on the Kitsap Peninsula (NMFS, 
1999a). Other

[[Page 14511]]

concerns identified included genetic risks from artificial propagation, 
the increasing urbanization of the Kitsap Peninsula, and recent 
increases in pinniped populations in Hood Canal. The BRT had similar 
concerns for the remaining Columbia River populations, which currently 
persist at less than 1 percent of historical run sizes (Johnson et al., 
1997; and NMFS, 1999a).
    With respect to the ESA status of the Pacific Coast ESU, NMFS 
acknowledges that the available data sets are far from exhaustive. 
However, the agency did not receive new information indicating that the 
Pacific Coast ESU is at risk of extinction, nor did NMFS obtain 
complete updated information for these or other populations not 
proposed for listing. Still, justifiable concerns exist for specific 
populations in both the Puget Sound and Pacific Coast ESUs. The NMFS 
status review details some of these concerns. For example, populations 
in the Tillamook District (the major chum salmon-producing area on the 
Oregon coast) are at much lower abundance than they were historically, 
with no apparent increase in abundance since the closure of commercial 
fisheries in 1962. In the Puget Sound ESU, the BRT expressed concern 
that the summer-run populations in this ESU spawn in relatively small, 
localized areas and, therefore, are intrinsically vulnerable to habitat 
degradation and demographic or environmental fluctuations. Concern was 
also expressed about effects on natural populations of the high level 
of hatchery production of fall chum salmon in the southern part of 
Puget Sound and Hood Canal and about the high representation of non-
native stocks in the ancestry of hatchery stocks throughout this ESU. 
If new information indicates that either of these ESUs warrant further 
consideration for listing, NMFS will announce a re-opening of the 
status review for the species.
    Comment: Comments and new information on the risk analysis of the 
Hood Canal summer-run ESU all supported the analysis conducted by the 
BRT, although commenters pointed out some specific concerns. Among 
these concerns were: (1) numbers of returning adults to the Union River 
were depressed in 1996, but the decrease was not statistically 
significant, and may have no biological significance; (2) in estimating 
strength of Hood Canal summer-run chum salmon, the BRT should use the 
number of returning adults compared to the number of parents creating 
those adults. Estimates of these ratios (spawner-to-spawner) suggest a 
trend toward increasing populations over the last 8 years in those Hood 
Canal runs that still exist; and (3) fishery co-managers have greatly 
reduced harvest impacts on summer-run chum salmon by limiting fisheries 
on other co-mingled species (even when these species have been 
plentiful) and this should be taken into account in risk analyses. One 
commenter stated that there are actually two streams (not one, as 
stated in the proposed rule) in the Strait of Juan de Fuca portion of 
the Hood Canal summer-run chum salmon ESU showing increases in adult 
returns in 1996.
    Response: With respect to one commenter's concerns about NMFS' 
characterization of Union River returns in 1996, NMFS did not intend to 
imply that this downturn was statistically significant. In contrast, 
NMFS noted in the proposed rule that the Union River was classified as 
a healthy stock (WDF et al., 1993). NMFS was merely expressing concern 
that 1996 returns, while substantially improved for other populations, 
were not uniformly distributed throughout the ESU. Based on suggestions 
from this commenter, NMFS has considered the spawner-to-spawner ratios 
for this ESU. The results may suggest a trend toward increasing 
populations over the last 8 years in some Hood Canal streams. However, 
these trends must be balanced against a variety of other risk factors 
facing the ESU, including a steady decline in abundance over the past 
30 years and the extinction of several populations in the ESU.
    NMFS recognizes that Washington tribal and state fishery co-
managers have made significant strides in reducing harvest impacts on 
summer-run chum salmon and the agency has taken these efforts into 
account in this final listing determination. It was this recognition, 
combined with increased returns in 1995 and 1996, that led NMFS to 
propose this ESU as threatened instead of endangered. While some of 
NMFS' concerns were mitigated by these harvest impact reductions, it is 
clear that other risk factors (including Canadian fisheries in the 
Northern Strait of Juan de Fuca) still bear upon this ESU. NMFS also 
acknowledges that the proposed rule was in error and that two 
populations (Snow and Salmon Creeks) in the Strait of Juan de Fuca 
portion of the Hood Canal summer-run chum salmon ESU showed increases 
in adult returns in 1996. The third (Jimmycomelately Creek) continued 
to demonstrate a long-term decline.
    The new information received by NMFS did not substantially affect 
the agency's previous conclusions about the status of the Hood Canal 
summer-run ESU. The Western Washington Treaty Tribes and WDFW submitted 
a revision of run reconstructions for Hood Canal summer-run chum 
salmon. The revision has been comprehensive and thorough, including 
recalculation of escapement from historic survey data using consistent 
methods, an earlier cutoff date for distinguishing summer-run from 
fall-run chum salmon in catches (i.e., substantial numbers of fall-run 
chum salmon had been classified as summer-run chum salmon), and 
incorporation of summer-run chum salmon catches in Canadian Area 20 
fisheries (N. Lampsakis, Point No Point Treaty Council, pers. comm., 
November 1998). These changes in the run reconstruction database have 
resulted in a substantial improvement in the quality of data available 
for summer-run chum salmon. However, the revisions result in mostly 
minor changes in escapement estimates for individual streams, with 
little change in the overall pattern of historic spawning escapements.
    In addition, WDFW (J. Ames, pers. comm., November 1998) provided 
updated final 1997 and preliminary 1998 spawning escapement estimates 
for summer-run chum salmon in Hood Canal and Strait of Juan de Fuca 
tributaries. Spawning escapement to the ESU in 1997 was estimated to be 
10,013 fish and preliminarily estimated in 1998 to be 5,290 fish. Of 
these totals, 8,734 spawners in 1997 and 3,959 spawners in 1998 
returned to streams with supplementation programs. These spawning 
escapements in 1997 and 1998 represent 46 percent and 25 percent, 
respectively, of the recent high escapement of 21,594 fish in 1996.
    Comment: One peer reviewer concurred that the Columbia River ESU is 
threatened (due to small population size with limited buffering 
capacity) but he was not compelled to believe that this ESU faces a 
high short term risk of extinction. Another peer reviewer stated 
concerns about using hatchery fish from an out-of-basin stock (Willapa 
Bay) in assessing extinction risk for the Columbia River ESU.
    Response: NMFS did not receive new information bearing on the risk 
assessment for the Columbia River ESU. During the original NMFS status 
review, the BRT evaluated various indices of chum salmon abundance in 
the Columbia River ESU, including historical commercial landings, 
recent recreational harvests, spawner escapements in Washington 
tributaries, Bonneville dam counts, and returns to the Sea Resources 
Hatchery on the Chinook River, Washington (Johnson et al., 1997). In 
addition, the BRT constructed a minimal run size estimate based on a 
composite of these indices.

[[Page 14512]]

Including the Sea Resources Hatchery return data was considered 
appropriate at the time of the proposed listing because the BRT had not 
drawn conclusions about whether any hatchery population was part of the 
ESU. However, NMFS has recently completed an assessment of hatchery 
populations associated with this ESU (NMFS, 1999b), and the agency 
agrees that the hatchery return data have likely inflated the minimal 
run size estimates. The BRT took this information into account when it 
re-assessed the status of the ESU for this final determination.

Issue 4: Factors Contributing to the Decline of West Coast Chum 
Salmon

    Comment: A few comments addressed specific factors believed to have 
contributed to the decline of west coast chum salmon. Factors 
identified include overharvest in commercial and recreational 
fisheries, climate change, reduced ocean productivity, changes in the 
Columbia River estuary food base, stress and disease, reduced body size 
and fecundity, increased abundance of predators (e.g., marine mammals, 
seabirds and exotic fishes), pollution from pesticide and herbicide 
applications, urbanization, blocked habitats, decreased beaver-related 
habitat, reductions in anadromous fish carcasses, removal of large 
woody debris, and the general deterioration and loss of freshwater and 
marine habitats throughout the region. A peer reviewer suggested that 
NMFS evaluate potential negative impacts from hatchery releases of chum 
salmon derived from stocks outside the ESU. One commenter noted that 
NMFS failed to fully investigate and evaluate the impact of adverse 
marine conditions and climate change on chum salmon abundance, and 
further contended that degradation of freshwater habitat is not likely 
the major cause of recent declines.
    Response: NMFS agrees that a multitude of factors, past and 
present, have contributed to the decline of west coast chum salmon. 
Many of the identified factors were specifically cited as risk agents 
in the NMFS status review (Johnson et al., 1997) and listing proposal 
(63 FR 11774, March 10, 1998). NMFS recognizes that natural 
environmental fluctuations have likely played a role in the species' 
recent declines. However, NMFS believes other human-induced impacts 
(e.g., harvest in certain fisheries and widespread habitat 
modification) have played an equally significant role in this species' 
decline.
    The NMFS status review briefly addressed the impact of adverse 
marine conditions and climate change, but concluded that there is 
considerable uncertainty regarding the role of these factors in 
controlling chum salmon abundance. At this time, we do not know whether 
these climate conditions represent a long-term shift in conditions that 
will continue into the future or short-term environmental fluctuations 
that can be expected to reverse soon. A recent review by Hare et al. 
(1999) suggests that these conditions could be part of an alternating 
20- to 30-year long regime pattern. These authors concluded that, while 
at-risk salmon stocks may benefit from a reversal in the current 
climate/ocean regime, fisheries management should continue to focus on 
reducing impacts from harvest and artificial propagation and improving 
freshwater and estuarine habitats.
    NMFS believes there is ample evidence to suggest that degradation 
of freshwater habitats has contributed to the decline of Hood Canal and 
Columbia River chum salmon. The past destruction, modification, and 
curtailment of freshwater habitat was reviewed in a recent NMFS 
assessment for steelhead (NMFS, 1996), and many of the identified risks 
and conclusions also apply to chum salmon. Examples of habitat 
alterations affecting chum salmon include water withdrawal, conveyance, 
storage, and flood control (resulting in insufficient flows, stranding, 
juvenile entrainment, and increased stream temperatures); logging and 
agriculture (resulting in loss of large woody debris, sedimentation, 
loss of riparian vegetation, and habitat simplification)(Johnson et 
al., 1997). At a more population-specific level, Washington state and 
tribal comanagers have completed an assessment which concludes that a 
variety of habitat- and land-use practices have had a detrimental 
impact on chum salmon (WDF et al., 1993). For example, they identified 
gravel aggradation (due to logging in some areas), channel shifting, 
and diking as habitat risk agents in Hood Canal. In the Columbia River, 
habitat ``limiters'' associated with chum salmon included gravel 
quality and stability, availability of good quality nearshore mainstem 
freshwater and marine habitat, road building, timber harvest, diking, 
and industrialization (WDF et al., 1993). These human-induced impacts 
in freshwater ecosystems have likely reduced the species' resiliency to 
natural factors for decline such as drought and poor ocean conditions. 
A critical next step in restoring listed chum salmon will be 
identifying and ameliorating specific factors for decline at both the 
ESU and population level.
    With respect to predation issues raised by some commenters, it is 
worth noting that NMFS has recently published reports describing the 
impacts of California sea lions and Pacific harbor seals upon salmonids 
and on the coastal ecosystems of Washington, Oregon, and California 
(NMFS, 1997 and 1999c). These reports conclude that in certain cases 
where pinniped populations co-occur with depressed salmonid 
populations, salmon populations may experience severe impacts due to 
predation. An example of such a situation is Ballard Locks, Washington, 
where sea lions are known to consume significant numbers of adult 
winter steelhead. These reports further conclude that data regarding 
pinniped predation are quite limited, and that substantial additional 
research is needed to fully address this issue. Existing information on 
the seriously depressed status of many salmonid stocks is sufficient to 
warrant actions to remove pinnipeds in areas of co-occurrence where 
pinnipeds prey on depressed salmonid populations (NMFS, 1997 and 
1999c).
    The relationship between various hatchery stocks and naturally 
spawned chum salmon, and their potential role for recovery of specific 
ESUs, is discussed in the ``Determination'' section later in this 
document.

Issue 5: Consideration of Existing Conservation Measures

    Comment: One peer reviewer expressed concern about NMFS' 
characterization of the efficacy of the Northwest Forest Plan (NFP), 
citing significant differences in management practices between various 
Federal land management agencies.
    Response: NMFS has reviewed existing conservation efforts and 
plans, including the NFP, and concludes that existing conservation 
efforts have generally helped ameliorate risks facing some chum salmon 
populations. In the listing proposal, NMFS noted that the NFP requires 
specific management actions on Federal lands, including actions in key 
watersheds within the range of both ESUs that comply with special 
standards and guidelines designed to preserve their refugia functions 
for at-risk salmonids (i.e., watershed analysis must be completed prior 
to timber harvests and other management actions, road miles should be 
reduced, no new roads can be built in roadless areas, and restoration 
activities are prioritized). In addition, the most significant element 
of the NFP for anadromous fish is its Aquatic Conservation Strategy 
(ACS), a regional-scale aquatic ecosystem conservation strategy that 
includes (1) special land allocations (such as key watersheds,

[[Page 14513]]

riparian reserves, and late-successional reserves) to provide aquatic 
habitat refugia; (2) special requirements for project planning and 
design in the form of standards and guidelines; and (3) new watershed 
analysis, watershed restoration, and monitoring processes. These ACS 
components collectively ensure that Federal land management actions 
achieve a set of nine ACS objectives that strive to maintain and 
restore ecosystem health at watershed and landscape scales to protect 
habitat for fish and other riparian-dependent species and resources and 
to restore currently degraded habitats. NMFS will continue to support 
the NFP strategy and address Federal land management issues via ESA 
section 7 consultations in concert with this strategy.
    Comment: One commenter expressed concern over the need to list chum 
salmon and the effects of these listings on Indian resources, programs, 
land management, and associated Trust responsibilities. This commenter 
was particularly concerned about the effects of listing Hood Canal 
summer-run chum salmon on tribal fishing for this and other species, 
and further noted that the Tribes had foregone significant harvest 
opportunities in the interest of protecting summer-run chum salmon 
stocks.
    Response: NMFS believes that the best available scientific 
information supports listing two ESUs of chum salmon as threatened 
under the ESA. NMFS acknowledges that these listings may impact Indian 
resources, programs, land management, and associated Trust 
responsibilities. As stated previously in this document, NMFS applauds 
the recent efforts by tribal and state comanagers to reduce specific 
harvest impacts on at-risk chum salmon populations. NMFS will continue 
to work closely with affected Indian tribes as harvest and other 
management issues arise and will continue to support the development of 
strong and credible tribal and state conservation efforts to restore 
listed chum salmon and other west coast salmon populations.

Summary of Factors Affecting Chum 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 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 spawned chum salmon throughout 
the species' range are numerous and varied. The present depressed 
condition of many populations is the result of several long-standing, 
human-induced factors (e.g., habitat degradation, water diversions, 
harvest, and artificial propagation) that serve to exacerbate the 
adverse effects of natural factors (e.g., competition and predation) or 
environmental variability from such factors as drought and poor ocean 
conditions.
     As noted previously, NMFS received only a few comments regarding 
the relative importance of various risk factors contributing to the 
decline of chum salmon. A summary of these factors and their role in 
the decline of the ESUs proposed for listing is presented in NMFS' 
March 10, 1998, Federal Register notification (63 FR 11774), as well as 
several documents in the agency's west coast chum salmon administrative 
record (WDF et al., 1993; Kostow, 1995; Johnson et al., 1997; and NMFS, 
1999a).
    Efforts Being Made to Protect West Coast Chum Salmon
    Under section 4(b)(1)(A) of the ESA, the Secretary of Commerce is 
required to make listing determinations solely on the basis of the best 
scientific and commercial data available and after taking into account 
efforts being made to protect a species. During the status review for 
west coast chum salmon and for other salmonids, NMFS reviewed 
protective efforts ranging in scope from regional strategies to local 
watershed initiatives; some of the major efforts are summarized in the 
March 10, 1998, proposed rule (63 FR 11774). Since then, NMFS has 
received little new information regarding these or other efforts being 
made to protect chum salmon. Notable efforts within the range of the 
Hood Canal summer-run and Columbia River ESUs continue to be the NFP, 
Lower Columbia River National Estuary Program, Lower Columbia Steelhead 
Conservation Initiative, Oregon Plan for Salmon and Watersheds, 
Washington Wild Stock Restoration Initiative, Washington Wild Salmonid 
Policy, and Hood Canal/Strait of Juan de Fuca Chum Salmon Conservation 
Plan (HCSCP).
    Of the existing efforts, the HCSCP is currently the most 
comprehensive chum salmon conservation effort operating at the scale of 
an ESU. State and tribal fisheries managers involved in the HCSCP have 
continued to endorse an array of harvest restrictions, including 
refraining from directed fisheries on summer-run chum salmon in the 
Hood Canal summer-run ESU. These management restrictions are 
significant, and are expected to continue based on current management 
objectives and the HCSCP. In addition, ongoing hatchery supplementation 
and reintroduction efforts may play a key role in the recovery of this 
ESU. NMFS will encourage the continued development and implementation 
of the HCSCP as an important strategy for protecting and restoring Hood 
Canal summer-run chum salmon.
    While NMFS recognizes that many of the ongoing protective efforts 
are likely to promote the conservation of chum salmon and other 
salmonids, some are very recent and few address chum salmon 
conservation at a scale that is adequate to protect and conserve entire 
ESUs. NMFS concludes that existing protective efforts are inadequate to 
preclude a listing for the Hood Canal summer-run and Columbia River 
ESUs. However, NMFS will continue to encourage these and future 
protective efforts and will work with Federal, state, and tribal 
fisheries managers to evaluate, promote, and improve efforts to 
conserve chum salmon populations.

Determinations

    Section 3 of the ESA defines an endangered species as any species 
in danger of extinction throughout all or a significant portion of its 
range, and a threatened species as any species likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. Section 4(b)(1) of the ESA requires 
that listing determinations be based solely on the best scientific and 
commercial data available after conducting a review of the status of 
the species and after taking into account those efforts, if any, being 
made to protect such species.
    Based on results from its coastwide status review for chum salmon, 
and after taking into account comments and new information described 
previously, NMFS determines that the two ESUs proposed for listing on 
March 10, 1998 (Hood Canal summer-run and Columbia River ESUs) should 
be classified as threatened under the ESA. In both cases, the majority 
of the NMFS BRT concluded that the ESUs are likely to become endangered 
in the foreseeable future if present conditions continue. Furthermore, 
NMFS concludes that current protective efforts are insufficient to 
change the BRT's forecast of extinction risk.
    In both ESUs, only naturally spawned populations of chum salmon 
residing

[[Page 14514]]

below impassable natural barriers (e.g., long-standing, natural 
waterfalls) are listed. NMFS' intent in listing only ``naturally 
spawned'' populations is to protect chum salmon stocks that are 
indigenous to (i.e., part of) the ESU. In this listing determination, 
NMFS has identified various non-indigenous populations that co-occur 
with fish in the listed ESUs. The agency recognizes the difficulty of 
differentiating between indigenous and non-indigenous fish, especially 
when the latter are not readily distinguishable with a mark (e.g., fin 
clip). Also, matings in the wild of either type would generally result 
in progeny that would be treated as listed fish (i.e., they would have 
been naturally spawned in the geographic range of the listed ESU and 
have no distinguishing mark). Therefore, to reduce confusion regarding 
which chum salmon are considered listed within an ESU, NMFS will treat 
all naturally spawned fish as listed for purposes of the ESA. Efforts 
to determine the conservation status of an ESU would focus on the 
contribution of indigenous fish to the listed ESU. It should be noted 
that NMFS will take actions necessary to minimize or prevent non-
indigenous chum salmon from spawning in the wild unless the fish are 
specifically part of a recovery effort.
    NMFS has evaluated the relationship between hatchery and natural 
populations of chum salmon in these ESUs (NMFS, 1999b). In examining 
this relationship, NMFS scientists consulted with hatchery managers to 
determine whether any hatchery populations are similar enough to 
native, naturally spawned fish to be considered part of the biological 
ESU. The evaluation also considered whether any hatchery population 
should be considered essential for the recovery of a listed ESU. In the 
Hood Canal summer-run ESU, chum salmon from the following five hatchery 
programs are considered part of the ESU: Quilcene National Fish 
Hatchery; Long Live the Kings Enhancement Project (Lilliwaup Creek); 
Hamma Hamma River Supplementation Project; Big Beef Creek Re-
introduction Project; and WDFW/Wild Olympic Salmon Cooperative 
(Dungeness River). In the Columbia River ESU, chum salmon from the 
Grays River Hatchery and Cowlitz River Hatchery programs are considered 
part of the ESU, while chum salmon from the Sea Resources Hatchery 
program are not considered part of the ESU.
    At this time, none of the hatchery populations considered part of 
the ESUs are being listed because none are deemed essential for the 
recovery of either ESU. However, 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 conditions warrant. In this 
context, an ``essential'' hatchery population is one that is vital to 
incorporate 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.'' In the case of hatchery chum 
salmon populations considered to be part of the Hood Canal summer-run 
ESU or Columbia River ESU, the protective regulations that NMFS will 
issue shortly may except 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. Given the requirement for an acceptable 
conservation plan as a prerequisite for collecting broodstock, NMFS 
determines that it is not necessary to consider the progeny of 
intentional hatchery-wild or wild-wild crosses as listed.
    In addition, NMFS believes it is desirable to incorporate naturally 
spawned 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 as part of the ESU, but 
not listed.

Prohibitions and Protective Measures

    Section 4(d) of the ESA requires NMFS to issue protective 
regulations that it finds necessary and advisable to provide for the 
conservation of a threatened species. Section 9(a) of the ESA prohibits 
violations of protective regulations for threatened species promulgated 
under section 4(d). The 4(d) protective regulations may prohibit, with 
respect to the threatened species, some or all of the acts which 
section 9(a) of the ESA prohibits with respect to endangered species. 
These 9(a) prohibitions and 4(d) regulations apply to all individuals, 
organizations, and agencies subject to U.S. jurisdiction. NMFS will 
publish 4(d) protective regulations for both listed chum salmon ESUs in 
a separate Federal Register document. The process for completing the 
4(d) rule will provide the opportunity for public comment on the 
proposed protective regulations.
    In the case of threatened species, NMFS also has flexibility under 
section 4(d) of the ESA to tailor the protective regulations based on 
the contents of available conservation measures. Even though existing 
conservation efforts and plans are not sufficient to preclude the need 
for listings at this time, they are nevertheless valuable for improving 
watershed health and restoring salmon populations. In those cases where 
well-developed and reliable conservation plans exist, NMFS may choose 
to incorporate them into the protective regulations and recovery plans. 
NMFS has already adopted 4(d) protective regulations that exempt a 
limited range of activities from section 9 take prohibitions. For 
example, the interim 4(d) rule for Southern Oregon/Northern California 
Coasts coho salmon (62 FR 38479, July 18, 1997) exempts habitat 
restoration activities conducted in accordance with approved plans and 
fisheries conducted in accordance with an approved state management 
plan. In the future, 4(d) rules may contain limited take prohibitions 
applicable to activities such as forestry, agriculture, and road 
construction when such activities are conducted in accordance with 
approved conservation plans.
    These are all examples where NMFS may apply modified ESA section 9 
prohibitions in light of the protections provided in a conservation 
plan that is adequately protective. There may be other circumstances as 
well in which NMFS would use the flexibility of section 4(d). For 
example, in some cases there may be a healthy population within an 
overall ESU that is listed. In such a case, it may not be necessary to 
apply the full range of prohibitions available in section 9. NMFS 
intends to use the flexibility of the ESA to respond appropriately to 
the biological condition of each ESU and to the strength of efforts to 
protect them.
    Section 7(a)(4) of the ESA requires that Federal agencies confer 
with NMFS on any actions likely to jeopardize the continued existence 
of a species proposed for listing and on actions likely to result in 
the destruction or adverse modification of proposed critical habitat. 
For listed species, section 7(a)(2) of the ESA requires Federal 
agencies to ensure that activities

[[Page 14515]]

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 likely to affect chum salmon in the 
listed ESUs include authorized land management activities of the U.S. 
Forest Service (USFS) and U.S. Bureau of Land Management (BLM), as well 
as operation of hydroelectric and storage projects of the Bureau of 
Reclamation and U.S. Army Corps of Engineers (COE). Such activities 
include timber sales and harvest, hydroelectric power generation, and 
flood control. Federal actions, including the COE section 404 
permitting activities under the Clean Water Act, COE permitting 
activities under the River and Harbors Act, National Pollution 
Discharge Elimination System permits issued by the Environmental 
Protection Agency, highway projects authorized by the Federal Highway 
Administration, Federal Energy Regulatory Commission licenses for non-
Federal development and operation of hydropower, and Federal salmon 
hatcheries, may also require consultation. These actions will likely be 
subject to ESA section 7 consultation requirements that may result in 
conditions designed to achieve the intended purpose of the project and 
avoid or reduce impacts to chum salmon and its habitat within the range 
of the listed ESUs.
    There are likely to be Federal actions ongoing in the range of the 
listed ESUs at the time these listings become effective. Therefore, 
NMFS will review all ongoing actions that may affect the listed species 
with Federal agencies and will complete formal or informal 
consultations, where requested or necessary, for such actions 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. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) conducting research that 
involves a directed take of listed species.
    NMFS has issued ESA section 10(a)(1)(A) research or enhancement 
permits for other listed species (e.g., Snake River chinook salmon and 
Sacramento River winter-run chinook salmon) for a number of activities, 
including trapping and tagging, electroshocking to determine population 
presence and abundance, removal of fish from irrigation ditches, and 
collection of adult fish for artificial propagation programs. NMFS is 
aware of several sampling efforts for chum salmon in the listed ESUs, 
including efforts by Federal and state fishery management agencies. 
These and other research efforts could provide critical information 
regarding chum salmon distribution and population abundance.
    ESA section 10(a)(1)(B) incidental take permits may be issued to 
non-Federal entities performing activities that may incidentally take 
listed species. The types of activities potentially requiring a section 
10(a)(1)(B) incidental take permit include the release of artificially 
propagated fish by tribal, state or privately operated and funded 
hatcheries, state or university research on species other than chum 
salmon not receiving Federal authorization or funding, the 
implementation of state fishing regulations, and timber harvest 
activities on non-Federal lands.

Take Guidance

    On July 1, 1994, (59 FR 34272) NMFS and FWS published a policy 
committing the Services to identify, to the maximum extent practicable 
at the time a species is listed, those activities that would or would 
not constitute a violation of section 9 of the ESA. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and on-going activities within the species' range. NMFS 
believes that, based on the best available information, the following 
actions will not result in a violation of section 9: (1) Possession of 
chum salmon from the listed ESUs acquired lawfully by permit issued by 
NMFS pursuant to section 10 of the ESA, or by the terms of an 
incidental take statement pursuant to section 7 of the ESA; and (2) 
federally funded or approved projects that involve activities such as 
silviculture, grazing, mining, road construction, dam construction and 
operation, discharge of fill material, stream channelization or 
diversion for which an ESA section 7 consultation has been completed, 
and when such an activity is conducted in accordance with any terms and 
conditions provided by NMFS in an incidental take statement accompanied 
by a biological opinion pursuant to section 7 of the ESA. As described 
previously in this document, NMFS may adopt 4(d) protective regulations 
that except other activities from section 9 take prohibitions for 
threatened species.
    Activities that NMFS believes could potentially harm, injure or 
kill chum salmon in the listed ESUs and result in a violation of 
section 9 include, but are not limited to: (1) land-use activities that 
adversely affect chum salmon habitat in this ESU (e.g., logging, 
grazing, farming, road construction in riparian areas, and areas 
susceptible to mass wasting and surface erosion); (2) destruction or 
alteration of chum salmon habitat in the listed ESUs, such as removal 
of large woody debris and ``sinker logs'' or riparian shade canopy, 
dredging, discharge of fill material, draining, ditching, diverting, 
blocking, or altering stream channels or surface or ground water flow; 
(3) discharges or dumping of toxic chemicals or other pollutants (e.g., 
sewage, oil, gasoline) into waters or riparian areas supporting listed 
chum salmon; (4) violation of discharge permits; (5) pesticide and 
herbicide applications; (6) interstate and foreign commerce of chum 
salmon from the listed ESUs and import/export of chum salmon from 
listed ESUs without an ESA permit, unless the fish were harvested 
pursuant to legal exception; (7) collecting or handling of chum salmon 
from listed ESUs (permits to conduct these activities are available for 
purposes of scientific research or to enhance the propagation or 
survival of the species); and (8) introduction of non-native species 
likely to prey on chum salmon in these ESUs or displace them from their 
habitat. This list is not exhaustive. It is intended to provide some 
examples of the types of activities that might or might not be 
considered by NMFS as constituting a take of listed chum salmon under 
the ESA and its regulations. Questions regarding whether specific 
activities will constitute a violation of this rule, and general 
inquiries regarding prohibitions and permits, should be directed to 
NMFS (see ADDRESSES).

Effective Date of Final Listing

    Given the cultural, scientific, and recreational importance of this 
species, and the broad geographic range of these listings, NMFS 
recognizes that numerous parties may be affected by this listing. 
Therefore, to permit an orderly implementation of the consultation 
requirements associated with this action, this final listing will take 
effect May 24, 1999.

Conservation Measures

    Conservation benefits are provided to species listed as endangered 
or threatened under the ESA through increased recognition, recovery 
actions, Federal agency consultation requirements, and prohibitions on 
taking. Increased recognition through listing promotes public awareness 
and conservation actions by Federal, state,

[[Page 14516]]

and local agencies, private organizations, and individuals.
    Several conservation efforts are underway that may reverse the 
decline of west coast chum salmon and other salmonids. NMFS is 
encouraged by these significant efforts, which could provide all 
stakeholders with an approach to achieving the purposes of the ESA-
protecting and restoring native fish populations and the ecosystems 
upon which they depend that are less regulatory. NMFS will continue to 
encourage and support these initiatives as important components of 
recovery planning for chum salmon and other salmonids.
    To succeed, protective regulations and recovery programs for chum 
salmon will need to focus on conserving aquatic ecosystem health. NMFS 
intends that Federal lands and Federal activities play a primary role 
in preserving listed populations and the ecosystems upon which they 
depend. However, throughout the range of the listed ESUs, chum salmon 
habitat occurs and can be affected by activities on state, tribal or 
private land.
    Conservation measures that could be implemented to help conserve 
the species are listed here (the list is generalized and does not 
constitute NMFS' interpretation of a recovery plan under section 4(f) 
of the ESA). Progress on some of these is being made to differing 
degrees in specific areas.
    1. Measures could be taken to promote practices that are more 
protective of (or restore) chum salmon habitat across a variety of land 
and water management activities. Activities affecting this habitat 
include timber harvest; agriculture; livestock grazing and operations; 
pesticide and herbicide applications; construction and urban 
development; road building and maintenance; sand and gravel mining; 
stream channelization; dredging and dredged spoil disposal; dock and 
marina construction; diking and bank stabilization; dam construction/
operation; irrigation withdrawal, storage, and management; mineral 
mining; wastewater/pollutant discharge; wetland and floodplain 
alteration; habitat restoration projects; and woody debris/structure 
removal from rivers and estuaries. Each of these activities could be 
modified to ensure that watersheds and specific river reaches are 
adequately protected in the short- and long-terms.
    2. Fish passage could be restored at barriers to migration through 
the installation or modification of fish ladders, upgrade of culverts, 
or removal of barriers.
    3. Harvest regulations could be modified to protect listed chum 
salmon populations affected by both directed harvest and incidental 
take in other fisheries.
    4. Artificial propagation programs could be modified to minimize 
negative impacts (e.g., genetic introgression, competition, disease, 
etc.) upon native populations of chum salmon.
    5. Predator control/relocation programs could be implemented in 
areas where predators pose a significant threat to chum salmon.
    6. Measures could be taken to improve monitoring of chum salmon 
populations and their habitat.
    7. Federal agencies such as the USFS, BLM, Federal Energy 
Regulatory Commission, COE, U.S. Department of Transportation, and U.S. 
Bureau of Reclamation could review their management programs and use 
their discretionary authorities to formulate conservation plans 
pursuant to section 7(a)(1) of the ESA.
    NMFS encourages non-Federal landowners to assess the impacts of 
their actions on threatened or endangered salmonids. In particular, 
NMFS encourages state and local governments to use their existing 
authorities and programs, and encourages the formation of watershed 
partnerships to promote conservation in accordance with ecosystem 
principles. These partnerships will be successful only if state, 
tribal, and local governments, landowner representatives, and Federal 
and non-Federal biologists all participate and share the goal of 
restoring salmon to the watersheds.

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 not more than 
one additional year.
    In the proposed rule (63 FR 11774, March 10, 1998), NMFS described 
the areas that may constitute critical habitat for the Hood Canal 
summer-run and Columbia River ESUs. Since then, NMFS has received 
numerous comments from the public concerning the process and definition 
of critical habitat for chum salmon and other salmonids. Also, due to 
statutory time limitations, NMFS has not yet consulted with affected 
Indian tribes regarding the designation of critical habitat in areas 
that may affect tribal trust resources, tribal-owned fee lands, or the 
exercise of tribal rights.
    Given these remaining unresolved issues, NMFS determines at this 
time that a final critical habitat designation is not determinable for 
these ESUs since additional time is required to complete the needed 
biological assessments and evaluate special management considerations 
affecting critical habitat. The agency therefore extends the deadline 
for designating critical habitat for 1 year until such assessments can 
be made and after appropriate consultations are completed.

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 
environmental assessment requirements of the National Environmental 
Policy Act (NEPA) under NOAA Administrative Order 216-6.
    As noted in Conference Report on the 1982 amendments to the ESA, 
economic impacts cannot be considered when assessing the status of 
species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act (RFA) are not applicable to the listing 
process. In addition, this final rule is exempt from review under E.O. 
12866.
    This rule has been determined to be major under the Congressional 
Review Act (5 U.S.C. 801 et seq.)
    At this time NMFS is not promulgating protective regulations 
pursuant to ESA section 4(d). In the future, prior to finalizing its 
4(d) regulations for the threatened chum salmon ESUs, NMFS will comply 
with all relevant NEPA and RFA requirements.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES) and can also be obtained from the internet at 
www.nwr.noaa.gov.

Threatened Species Regulations Consolidation

    In the proposed rule issued on March 10, 1998 (63 FR 11774), Hood 
Canal summer-run chum salmon was designated the letter (m) and Columbia 
River chum salmon the letter (n) in Sec. 227.4. Since March 10, 1998, 
NMFS issued a final rule consolidating and reorganizing existing 
regulations regarding implementation of the ESA. In this 
reorganization, Sec. 227.4 has been redesignated as Sec. 223.102; 
therefore, Hood Canal summer-run chum salmon

[[Page 14517]]

is designated in this final rule as paragraph (a)(12) and Columbia 
River chum salmon as paragraph (a)(13) of Sec. 223.102. The regulatory 
text of the proposed rule remains unchanged in this final rule.

List of Subjects in 50 CFR Part 223

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

    Dated: March 15, 1999.
Andrew A. Rosenberg, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 223 is 
amended as follows:

PART 223-THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.

    2. In Sec. 223.102, paragraphs (a)(12) and (a)(13) are added to 
read as follows:


Sec. 223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (a) * * *
    (12) Hood Canal summer-run chum salmon (Oncorhynchus keta). 
Includes all naturally spawned populations of summer-run chum salmon in 
Hood Canal and its tributaries as well as populations in Olympic 
Peninsula rivers between Hood Canal and Dungeness Bay, Washington;
    (13) Columbia River chum salmon (Oncorhynchus keta). Includes all 
naturally spawned populations of chum salmon in the Columbia River and 
its tributaries in Washington and Oregon.
* * * * *
[FR Doc. 99-6814 Filed 3-24-99; 8:45 am]
BILLING CODE 3510-22-F