[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Rules and Regulations]
[Pages 14517-14528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6817]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980225046-9070-03; I.D. 021098B]
RIN 0648-AK54


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

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

ACTION: Final rule; notice of determination.

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SUMMARY: Previously, NMFS completed a comprehensive status review of 
west coast steelhead (Oncorhynchus mykiss) populations in Washington, 
Oregon, Idaho, and California, and identified 15 Evolutionarily 
Significant Units (ESUs) within this range. NMFS now issues a final 
rule to list two ESUs as threatened under the Endangered Species Act 
(ESA). The listed ESUs include the Middle Columbia River ESU located in 
Washington and Oregon, and the Upper Willamette River ESU located in 
Oregon.
    In both threatened ESUs, only naturally spawned populations of 
steelhead residing below impassable natural barriers (e.g., long-
standing, natural waterfalls) are listed. NMFS examined the 
relationship between hatchery and natural populations of steelhead in 
these ESUs and determines none of the identified hatchery populations 
are essential for recovery at this time.
    At this time, NMFS is listing only anadromous life forms of O. 
mykiss.
    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 steelhead.

DATES: Effective May 24, 1999.

ADDRESSES: Branch Chief, Protected Resources Division, NMFS, Northwest 
Region, 525 NE Oregon Street, 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 and life history information for steelhead can be found 
in NMFS' recent status assessments (Busby et al., 1996; NMFS, 1999a and 
1999b) and in the Federal Register notice announcing the listing 
proposal (63 FR 11797, March 10, 1998).

Previous Federal ESA Actions Related to West Coast Steelhead

    The history of petitions received regarding west coast steelhead is 
summarized in the proposed rule published on August 9, 1996 (61 FR 
41541). The most comprehensive petition was submitted by Oregon Natural 
Resources Council and 15 co-petitioners on February 16, 1994. In 
response to this petition, NMFS assessed the best available scientific 
and commercial data, including technical information from Pacific 
Salmon Biological Technical Committees (PSBTCs) and interested parties 
in Washington and Oregon. 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 steelhead and their 
habitats. NMFS also established a Biological Review Team (BRT), 
composed of staff from NMFS' Northwest and Southwest Fisheries Science 
Centers and Southwest Regional Office, as well as a representative of 
the U.S. Geological Survey Biological Resources Division (formerly the 
National Biological Service), which conducted a coastwide status review 
for west coast steelhead (Busby et al., 1996).
    Based on the results of the BRT report, and after considering other 
information and existing conservation measures, NMFS published a 
proposed listing determination (61 FR 41541, August 9, 1996) that 
identified 15 ESUs of steelhead in the states of Washington, Oregon, 
Idaho, and California. Ten of these ESUs were proposed for listing as 
threatened or endangered species, four were found not warranted for 
listing, and one was identified as a candidate for listing.
    On August 18, 1997, NMFS published a final rule listing five ESUs 
as threatened or endangered under the ESA (62 FR 43937, August 18, 
1997). In a separate notice published on the same day, NMFS determined 
substantial scientific disagreement remained for five proposed ESUs (62 
FR 43974, August 18, 1997). In accordance with section 4(b)(6)(B)(i) of 
the ESA, NMFS deferred its decision on these remaining steelhead ESUs 
for 6 months, until February 9, 1998, for the purpose of soliciting 
additional data. On March 19, 1998, NMFS published a final rule listing 
two ESUs as threatened (63 FR 13347, March 19, 1998). In this notice 
NMFS also determined the remaining three ESUs (Oregon Coast, Klamath 
Mountains Province, and Northern California) did not warrant listing 
(Id.).
    On March 10, 1998, NMFS published a proposed listing determination 
for Middle Columbia River and Upper Willamette River steelhead ESUs (63 
FR

[[Page 14518]]

11798). This proposed rule was based on an updated status review 
completed for previously deferred ESUs [Memorandum to William Stelle 
and William Hogarth from M. Schiewe, December 18, 1997, Status of 
Deferred and Candidate ESUs of West Coast Steelhead]. In response to 
the proposed rule, NMFS received comments and scientific information 
from affected states, tribes, and others which were recently considered 
by NMFS' BRT. NMFS has now completed an updated status review that 
analyzes this new information (NMFS, 1999a). Copies of this memorandum 
are available upon request (see ADDRESSES). Based on this updated 
review and other information, NMFS now lists the Upper Willamette River 
and Middle Columbia River steelhead ESUs as threatened species under 
the ESA.

Summary of Comments 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 28 written 
comments on the proposed rule from Federal, state, and local government 
agencies, Indian tribes, non-governmental organizations, the scientific 
community, and other individuals. A number of comments addressed 
specific technical issues pertaining to a particular geographic region 
or O. mykiss population. These technical comments were considered by 
NMFS' BRT in its re-evaluation of ESU boundaries and status and are 
discussed in the updated Status Review document (NMFS, 1999a).
    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 a total of 35 
individuals to take part in a peer review of the current and previous 
west coast steelhead proposed rules. All individuals solicited are 
recognized experts in the field of steelhead biology, and represent a 
broad range of interests, including Federal, state, and tribal resource 
managers, private industry consultants, and academia. Eight individuals 
took part in the peer review of these findings; comments from peer 
reviewers were considered by NMFS' BRT and are summarized in the 
relevant Status Review documents (e.g., NMFS 1997a).
    A summary of comments received in response to this proposed rule is 
presented here.

Issue 1: Sufficiency and Accuracy of Scientific Information and 
Analysis

    Comment: Numerous commenters disputed the sufficiency and accuracy 
of data which NMFS employed in its proposed rule to list two steelhead 
ESUs as threatened under the ESA. Several commenters urged NMFS to 
delay any ESA listing decisions for steelhead until additional 
scientific information is available concerning this species.
    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 (Busby et al., 1996), together with more recent 
information obtained in response to the proposed rule (NMFS, 1999a), 
represents the best scientific information presently available for the 
steelhead ESUs addressed in this final rule. NMFS has conducted an 
exhaustive review of all available information relevant to the status 
of this species. NMFS has also solicited information and opinion from 
all interested parties. If, in the future, new data become available to 
change these conclusions, NMFS will act accordingly.

Issue 2: Description and Status of Steelhead ESUs

    Comment: Several commenters disputed NMFS' conclusions regarding 
the geographic boundaries for some of the ESUs and questioned NMFS' 
basis for determining these boundaries.
    Response: NMFS has published a policy describing how it applies 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.
    Comment: Several commenters questioned NMFS' methodology for 
determining whether a given steelhead ESU warranted listing. In most 
cases, such commenters also expressed opinions regarding whether 
listing was warranted for a particular steelhead ESU. A few commenters 
provided substantive new information relevant to making risk 
assessments.
    Response: Section 3 of the ESA defines the term ``endangered 
species'' as ``any species which is in danger of extinction throughout 
all or a significant portion of its range.'' The term ``threatened 
species'' is defined as ``any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' NMFS has identified a number of 
factors that should be considered in evaluating the level of risk faced 
by an ESU, including: (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

[[Page 14519]]

predictable short-term consequences for abundance of the ESU. A more 
detailed discussion of status of individual ESUs is provided in this 
document under ``Summary of Conclusions Regarding Listed ESUs.''

Issue 3: Factors Contributing to the Decline of West Coast 
Steelhead

    Comment: Many commenters identified factors they believe have 
contributed to the decline of west coast steelhead. Factors identified 
include overharvest by recreational fisheries, predation by pinnipeds 
and piscivorous fish species, effects of artificial propagation, and 
the deterioration or loss of freshwater and marine habitats.
    Response: NMFS agrees that many factors, past and present, have 
contributed to the decline of West Coast steelhead. NMFS also 
recognizes that natural environmental fluctuations have likely played a 
role in the species' recent declines. However, NMFS believes other 
human-induced impacts (e.g., incidental catch in certain fisheries, 
hatchery practices, and habitat modification) have played an equally 
significant role in this species' decline. Moreover, these human-
induced impacts have likely reduced the species' resiliency to natural 
factors for decline such as drought and poor ocean conditions (NMFS, 
1996a).
    Since the time of this proposed listing, NMFS has published a 
report describing the impacts of California sea lions and Pacific 
harbor seals upon salmonids and on the coastal ecosystems of 
Washington, Oregon, and California (NMFS, 1999c). This report concludes 
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. This study further 
concludes 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, 1997b). For additional information on this issue see 
the ``Summary of Factors Affecting Steelhead'' later in this document.
    Comment: Several commenters stated that NMFS' assessment 
underestimated the significant influence of natural environmental 
fluctuations on salmonid populations. Several commenters stated that 
ocean conditions are one of the primary factors for decline.
    Response: Environmental changes in both marine and freshwater 
habitats can have important impacts on steelhead abundance. For 
example, a pattern of relatively high abundance in the mid-1980s 
followed by (often sharp) declines over the next decade occurred in 
steelhead populations from most geographic regions of the Pacific 
Northwest. This result is most plausibly explained by broad-scale 
changes in ocean productivity. Similarly, 6 to 8 years of drought in 
the late 1980s and early 1990s adversely affected many freshwater 
habitats for steelhead throughout the region. These natural phenomena 
put increasing pressure on natural populations already stressed by 
anthropogenic factors such as habitat degradation, blockage of 
migratory routes, and harvest (NMFS, 1996a).
    Improvement of cyclic or episodic environmental conditions (for 
example, increases in ocean productivity or shifts from drought to 
wetter conditions) may help alleviate extinction risk to steelhead 
populations. However, NMFS cannot reliably predict future environmental 
conditions, making it unreasonable to assume improvements in abundance 
as a result of improvements in such conditions. Furthermore, steelhead 
and other species of Pacific salmon have evolved over the centuries 
with such cyclical environmental stresses. This species has persisted 
through time in the face of these conditions largely due to the 
presence of freshwater and estuarine refugia. As these refugia are 
altered and degraded, Pacific salmon species are more vulnerable to 
such episodic events as shifts in ocean productivity and drought cycles 
(NMFS, 1996a).

Issue 4: Consideration of Existing Conservation Measures

    Comment: Several commenters argued that NMFS had not considered 
existing conservation programs designed to enhance steelhead stocks 
within a particular ESU. Some commenters provided specific information 
on some of these programs to NMFS concerning the efficacy of existing 
conservation plans.
    Response: NMFS has reviewed existing conservation plans and 
measures relevant to the two ESUs addressed in this final rule and 
concludes that existing conservation efforts in some cases have helped 
ameliorate risks facing the species. These conservation efforts are 
discussed in detail later in this document under ``Existing 
Conservation Efforts.''
    While several of the plans addressed in comments show promise for 
ameliorating risks facing steelhead, some of the measures described in 
comments have not been implemented and are only recently proposed. Some 
of these measures are also geographically limited to individual river 
basins or political subdivisions, thereby improving conditions for only 
a small portion of the entire ESU.
    Even though existing conservation efforts and plans in the listed 
ESUs are not sufficient to preclude the need for listings at this time, 
they are nevertheless valuable for improving watershed health and 
restoring fishery resources. In those cases where well-developed, 
reliable conservation plans exist, NMFS may choose to incorporate them 
into the recovery planning process. 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. NMFS has already adopted 4(d) rules that except a limited 
range of activities from section 9 take prohibitions. For example, the 
interim 4(d) rule for Southern Oregon/Northern California coho salmon 
(62 FR 38479, July 18, 1997) excepts habitat restoration activities 
conducted in accordance with approved plans and fisheries conducted in 
accordance with an approved state management plan. In appropriate 
cases, 4(d) rules could contain limited take prohibitions applicable to 
such activities as forestry, agriculture, and road construction when 
such activities are conducted in accordance with NMFS approved state or 
tribal conservation plans.
    These examples show that NMFS may apply modified ESA section 9 
prohibitions where NMFS approved state or tribal conservation plans 
exist. 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 of salmon or steelhead 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 the populations within it, and to the 
strength of state and tribal conservation plans in place to protect 
them.

Issue 5: Steelhead Biology and Ecology

    Comment: Several commenters asserted that resident rainbow trout 
should be included in listed steelhead ESUs. Several commenters also 
stated that NMFS and FWS should address how the presence of rainbow 
trout

[[Page 14520]]

populations may ameliorate risks facing anadromous populations within 
listed ESUs.
    Response: In its August 9, 1996, proposed rule (61 FR 41541), NMFS 
stated that based on available genetic information, it was the 
consensus of NMFS scientists, as well as regional fishery biologists, 
that resident fish should generally be considered part of the steelhead 
ESUs. However, NMFS concluded that available data were inconclusive 
regarding the relationship of resident rainbow trout and steelhead. 
NMFS requested additional data in the proposed rule to clarify this 
relationship and determine if resident rainbow trout should be included 
in listed steelhead ESUs.
    In response to this request for additional information, many groups 
and individuals expressed opinions regarding this issue. In most cases 
these opinions were not supported by new information that resolves 
existing uncertainty. Two state fishery management agencies (Washington 
Department of Fish and Wildlife (WDFW) and Oregon Department of Fish 
and Wildlife(ODFW)) provided comments and information supporting the 
inclusion of resident rainbow trout in listed steelhead ESUs. In 
general, these parties also felt that rainbow trout may serve as an 
important reservoir of genetic material for at-risk steelhead stocks.
    While conclusive evidence does not yet exist regarding the 
relationship of resident and anadromous O. mykiss, NMFS believes 
available evidence suggests that resident rainbow trout should be 
included in listed steelhead ESUs in certain cases. Such cases include 
(1) where resident O. mykiss have the opportunity to interbreed with 
anadromous fish below natural or man-made barriers, or (2) where 
resident fish of native lineage once had the ability to interbreed with 
anadromous fish but no longer do because they are currently above 
human-made barriers, and they are considered essential for recovery of 
the ESU. Whether resident fish that exist above any particular man-made 
barrier meet these criteria must be reviewed on a case-by-case basis by 
NMFS. Resident fish above long-standing natural barriers and those that 
are derived from the introduction of non-native rainbow trout would not 
be considered part of any salmonid ESU.
    Several lines of evidence exist to support this conclusion. Under 
certain conditions, anadromous and resident O. mykiss are apparently 
capable not only of interbreeding, but also of having offspring that 
express the alternate life history form, that is, anadromous fish can 
produce nonanadromous offspring, and vice versa (Shapovalov and Taft, 
1954; Burgner et al., 1992). Mullan et al. (1992) found evidence that 
in very cold streams, juvenile steelhead had difficulty attaining 
``mean threshold size for smoltification'' and concluded that ``Most 
fish here [Methow River, Washington] that do not emigrate downstream 
early in life are thermally-fated to a resident life history regardless 
of whether they were the progeny of anadromous or resident parents.'' 
Additionally, Shapovalov and Taft (1954) reported evidence of O. mykiss 
maturing in fresh water and spawning prior to their first ocean 
migration; this life history variation has also been found in cutthroat 
trout (O. clarki) and Atlantic salmon (Salmo salar).
    NMFS believes resident fish can help buffer extinction risks to an 
anadromous population by mitigating depensatory effects in spawning 
populations, by providing offspring that migrate to the ocean and enter 
the breeding population of steelhead, and by providing a ``reserve'' 
gene pool in freshwater that may persist through times of unfavorable 
conditions for anadromous fish. In spite of these potential benefits, 
the presence of resident populations is not a substitute for 
conservation of anadromous populations. A particular concern is 
isolation of resident populations by human-caused barriers to 
migration. This interrupts normal population dynamics and population 
genetic processes and can lead to loss of a genetically based trait 
(anadromy). As discussed in NMFS' ``species identification'' paper 
(Waples, 1991), the potential loss of anadromy in distinct population 
segments may, in and of itself, warrant listing the ESU as a whole.
    On February 7, 1996, FWS and NMFS adopted a joint policy to clarify 
their interpretation of the phrase ``distinct population segment of any 
species of vertebrate fish or wildlife'' (DPS) for the purposes of 
listing, delisting, and reclassifying species under the ESA (61 FR 
4722). DPSs are ``species'' pursuant to section 3(15) of the ESA. 
Previously, NMFS had developed a policy for stocks of Pacific salmon 
where an ESU of a biological species is considered to be a DPS if (1) 
it is substantially reproductively isolated from other conspecific 
population units, and (2) it represents an important component in the 
evolutionary legacy of the species (56 FR 58612, November 20, 1991). 
NMFS believes available data suggest that resident rainbow trout are, 
in many cases, part of steelhead ESUs. However, FWS, which has ESA 
authority for resident fish, maintains that behavioral forms can be 
regarded as separate DPSs (e.g., as when the agency listed coastal, but 
not interior, populations of the western snowy plover).
    In its review of West Coast steelhead, NMFS' BRT stated that 
rainbow trout and steelhead in the same area may share a common gene 
pool, at least over evolutionary time periods (NMFS, 1997a). The 
importance of any recovery action is measured in terms of its ability 
to recover the listed species in the foreseeable future. The FWS 
believes that steelhead recovery will not rely on the intermittent 
exchange of genetic material between resident and anadromous forms 
(FWS, 1997). As a result, without a clear demonstration of any risks to 
resident rainbow trout or the need to protect rainbow trout to recover 
steelhead in the foreseeable future, the FWS concludes that only the 
anadromous forms of O. mykiss should be included in the listed 
steelhead ESUs at this time (Department of the Interior, 1997; FWS, 
1997).
    Comment: Several commenters questioned NMFS' inclusion of both 
summer- and winter-run steelhead in the same ESU. These commenters 
suggested that summer- and winter-run steelhead be segregated into 
individual ESUs based on life history differences.
    Response: While NMFS considers both life history forms (summer and 
winter steelhead) to be important components of diversity within the 
species, new genetic data reinforces previous conclusions that within a 
geographic area, summer and winter steelhead typically are more 
genetically similar to one another than either is to populations with 
similar run timing in different geographic areas. This indicates that 
an ESU that included summer-run populations from different geographic 
areas but excluded winter-run populations (or vice-versa) would be an 
inappropriate unit. The only biologically meaningful way to have summer 
and winter steelhead populations in separate ESUs would be to have a 
very large number of ESUs, most consisting of just one or a very few 
populations. This would be inconsistent with the approach NMFS has 
taken in defining ESUs in other anadromous Pacific salmonids. Taking 
these factors into consideration, NMFS concludes that summer and winter 
steelhead should be considered part of the same ESU in geographic areas 
where they co-occur.

Summary of Steelhead ESU Determinations

    The following is a summary of NMFS' ESU determinations for the 
species. A more detailed discussion of ESU determinations is presented 
in the

[[Page 14521]]

``Status Review Update for Deferred and Candidate ESUs of West Coast 
Steelhead'' (NMFS, 1997a) and ``Updated Review of the Status of the 
Upper Willamette River and Middle Columbia River ESUs of Steelhead'' 
(NMFS, 1999a). Copies of these documents are available upon request 
(see ADDRESSES).
    NMFS also evaluated the relationship between hatchery and natural 
populations of steelhead 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.

(1) Upper Willamette River ESU

    This steelhead ESU occupies the Willamette River and its 
tributaries, upstream from Willamette Falls to the Calapooia River, 
inclusive. This is a revision of the proposed ESU boundary in that NMFS 
now refines the range of this ESU to exclude rivers upstream of the 
Calapooia River.
    The Willamette River Basin is zoogeographically complex. In 
addition to its connection to the Columbia River, the Willamette River 
historically has had connections with coastal basins through stream 
capture and headwater transfer events (Minckley et al., 1986).
    Steelhead from the upper Willamette River are genetically distinct 
from those in the lower river. Reproductive isolation from lower river 
populations may have been facilitated by Willamette Falls, which is 
known to be a migration barrier to some anadromous salmonids. For 
example, winter steelhead and spring chinook salmon (O. tshawytscha) 
occurred historically above the falls, but summer steelhead, fall 
chinook salmon, and coho salmon did not (PGE, 1994).
    The native steelhead of this basin are late-migrating winter 
steelhead, entering fresh water primarily in March and April (Howell et 
al., 1985), whereas most other populations of west coast winter 
steelhead enter fresh water beginning in November or December. As early 
as 1885, fish ladders were constructed at Willamette Falls to aid the 
passage of anadromous fish. The ladders have been modified and rebuilt, 
most recently in 1971, as technology has improved (Bennett, 1987; PGE, 
1994). These fishways facilitated successful introduction of Skamania 
stock summer steelhead and early-migrating Big Creek stock winter 
steelhead to the upper basin. Another effort to expand the steelhead 
production in the upper Willamette River was the stocking of native 
steelhead in tributaries not historically used by that species. Native 
steelhead primarily used tributaries on the east side of the basin, 
with cutthroat trout predominating in streams draining the west side of 
the basin.
    Resident O. mykiss are known to occupy the Upper Willamette River 
Basin; however, most of these populations occur above natural and 
manmade barriers (Kostow, 1995). Historically, spawning by Upper 
Willamette River steelhead was concentrated in the North and Middle 
Santiam River Basins (Fulton, 1970). These areas are now largely 
blocked to fish passage by dams, and steelhead spawning is now 
distributed throughout more of the Upper Willamette River Basin than in 
the past (Fulton, 1970). Due to introductions of non-native steelhead 
stocks and transplantation of native stocks within the basin, it is 
difficult to formulate a clear picture of the present distribution of 
native Upper Willamette River steelhead, and their relationship to 
nonanadromous and possibly residualized O. mykiss within the basin.
    Substantive comments from ODFW on this ESU addressed the boundaries 
of the ESU and the relationship between the native steelhead of the 
middle basin and the resident trout of the upper basin (i.e., McKenzie 
and Middle Fork Willamette Rivers) (Greer, 1998). Additionally, NMFS 
was able to evaluate new genetic information pertinent to this ESU.
    Recently developed resident trout genetic data from the McKenzie 
and Middle Fork Willamette River Basins showed no genetic continuity 
with known hatchery trout (Cape Cod stock) or any Willamette River 
steelhead population. Additionally, ODFW has been unable to achieve 
success in their attempts to establish steelhead populations in these 
subbasins. These factors combine to give credence to the theory that, 
for some unidentified reason, the upper reaches of the Willamette River 
Basin are not suitable to support steelhead populations, although 
resident trout and chinook salmon have been successful there.
    NMFS reviewed the steelhead distribution described by Fulton 
(1970); however, aside from this, little new information was added to 
that presented by Busby et al. (1996). NMFS concludes that this ESU was 
comprised of the native late-run winter steelhead and that the historic 
distribution of the ESU did not extend upstream of the Calapooia River. 
NMFS also concludes that steelhead had some historic distribution in 
westside tributaries to the Willamette River (e.g., Gales Creek in the 
Tualatin River Basin) but that current distribution of winter-run 
steelhead in westside tributaries is somewhat unclear. Based on limited 
genetic analysis, the recent samples from westside tributaries do not 
appear to reflect populations derived from this ESU (NMFS, 1999a). 
However, information provided by the State of Oregon indicates that 
winter-run steelhead may in fact presently occur in several westside 
tributaries (Kostow, 1995; NMFS, 1999a).
    Based on the best available scientific information, NMFS concludes 
that westside tributaries to the Willamette River warrant inclusion in 
this ESU at this time, although some uncertainty remains regarding this 
conclusion. While westside tributaries are included in the ESU, it is 
important to note that the listed ESU consists of naturally spawned, 
winter-run steelhead. Where distinguishable, naturally spawned, summer-
run steelhead are not included in the listed ESU.

Hatchery Populations Pertaining to the ESU

    NMFS identified three hatchery stocks associated with the Upper 
Willamette River ESU (NMFS, 1999b). After reviewing the best available 
information regarding the relationship between hatchery and natural 
populations in this ESU, NMFS concludes that the North Santiam River 
(ODFW Stock 21) hatchery stock should be considered part of the ESU. 
However, the Big Creek (ODFW Stock 13) and Skamania/Foster/McKenzie 
ODFW stocks are not considered part of the ESU. The listing status of 
these hatchery stocks is described later in this document under 
``Status of Steelhead ESUs.''

(2) Middle Columbia River ESU

    This inland steelhead ESU occupies the Columbia River Basin and 
tributaries from above the Wind River in Washington and the Hood River 
in Oregon (exclusive), upstream to, and including, the Yakima River, in 
Washington. Steelhead of the Snake River Basin are excluded. Franklin 
and Dyrness (1973) placed the Yakima River Basin in the Columbia Basin 
Physiographic Province, along with the Deschutes, John Day, Walla 
Walla, and lower Snake River Basins. Geology within this province is 
dominated by the Columbia River Basalt formation, stemming from lava 
deposition in the Miocene epoch, overlain by plio-Pleistocene deposits 
of glaciolacustrine origin (Franklin & Dyrness, 1973). This 
intermontane region includes some of the driest areas of the Pacific 
Northwest, generally receiving less than 40 centimeters of rainfall 
annually (Jackson, 1993). Vegetation is of the

[[Page 14522]]

shrub-steppe province, reflecting the dry climate and harsh temperature 
extremes.
    Genetic differences between inland and coastal steelhead are well 
established, although some uncertainty remains about the exact 
geographic boundaries of the two forms in the Columbia River. 
Electrophoretic and meristic data show consistent differences between 
several middle Columbia River steelhead populations and Snake River 
steelhead. No recent genetic data exist for natural steelhead 
populations in the upper Columbia River, but recent WDFW data show that 
the Wells Hatchery stock from the upper Columbia River does not have a 
close genetic affinity to sampled populations from the middle Columbia 
River.
    All steelhead in the Columbia River Basin upstream from The Dalles 
Dam are summer-run, inland steelhead (Schreck et al., 1986; 
Reisenbichler et al., 1992; and Chapman et al., 1994). Steelhead in 
Fifteenmile Creek, Oregon, are genetically allied with inland O. 
mykiss, but are winter-run. Winter steelhead are also found in the 
Klickitat and White Salmon Rivers, Washington.
    Life history information for steelhead of this ESU indicates that 
most middle Columbia River steelhead smolt at 2 years and spend 1 to 2 
years in salt water (i.e., 1-ocean and 2-ocean fish, respectively) 
prior to re-entering fresh water, where they may remain up to a year 
prior to spawning (Howell et al., 1985; BPA, 1992). Within this ESU, 
the Klickitat River is unusual in that it produces both summer and 
winter steelhead, and the summer steelhead are dominated by 2-ocean 
steelhead, whereas most other rivers in this region produce about equal 
numbers of both 1- and 2-ocean steelhead.
    The proposed listing of the Middle Columbia River ESU generated 
substantive comments from ODFW (Greer, 1998) and the Confederated 
Tribes of the Warm Springs Reservation of Oregon (CTWSRO) (Calica, 
1998). These comments, while summarized here, are discussed in detail 
in the status review update (NMFS, 1999a).
    NMFS previously concluded that native, resident O. mykiss 
populations that have the opportunity to interbreed with anadromous O. 
mykiss should be included in the steelhead ESUs (Busby et al., 1996). 
While ODFW and CTWSRO presented anecdotal accounts of spawning 
interactions between resident trout and steelhead in the Deschutes 
River (i.e., Zimmerman and Reeves, 1996; 1997; and 1998), such studies 
did not provide much evidence of this. NMFS concludes that, given the 
opportunity for reproductive interaction, co-occurring resident trout 
are included within this steelhead ESU.
    In its comments, ODFW recommended that NMFS realign the proposed 
ESU to exclude winter steelhead from it; however, this recommendation 
is not supported by any new scientific data. Currently available data 
indicate that these are inland steelhead populations. An intensive 
genetic survey of these steelhead populations might provide useful 
information to further clarify the relationship between coastal and 
inland steelhead. NMFS concludes that no change in the ESU boundaries 
are warranted based solely on the presence of a winter-run life 
history.
    Recently obtained genetic data raises some question about the 
boundaries of the Middle Columbia River ESU. However, NMFS concludes 
that this new information is too uncertain at this stage to warrant 
revising the proposed ESU boundaries. NMFS will revise these boundaries 
in the future when additional data support such a revision.

Hatchery Populations Pertaining to the ESU

    NMFS identified two hatchery stocks associated with the Middle 
Columbia River ESU (NMFS, 1999b). After reviewing the best available 
information regarding the relationship between hatchery and natural 
populations in this ESU, NMFS concludes that both the Deschutes River 
(ODFW Stock 66) and Umatilla River (ODFW Stock 91) hatchery stocks 
should be considered part of the ESU. The listing status of these 
hatchery stocks is described later in this document under ``Status of 
Steelhead ESUs.''

Summary of Factors Affecting Steelhead

    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.
    Several recent documents describe in more detail the impacts of 
various factors contributing to the decline of steelhead and other 
salmonids (e.g., 63 FR 11798; NMFS, 1999a). Relative to west coast 
steelhead, NMFS prepared a supporting document that addresses the 
factors leading to the decline of this species entitled ``Factors for 
Decline: A Supplement to the Notice of Determination for West Coast 
Steelhead'' (NMFS, 1996b). This report, available upon request (see 
ADDRESSES), concludes that all of the factors identified in section 
4(a)(1) of the ESA have played a role in the decline of the species. 
The report identifies destruction and modification of habitat, 
overutilization for recreational purposes, and natural and human-made 
factors as being the primary reasons for the decline of west coast 
steelhead.

Efforts Being Made to Protect West Coast Steelhead

    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 steelhead 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 11798) as well as a document entitled 
``Steelhead Conservation Efforts: A Supplement to the Notice of 
Determination for West Coast Steelhead under the Endangered Species 
Act'' (NMFS, 1996c). During the proposed rule period, NMFS identified 
additional conservation measures in the States of Washington and 
Oregon. These additional conservation measures are summarized here.
    Two Federal planning efforts affect aquatic habitat on Federal 
lands within the range of these ESUs. These Federal efforts in some 
cases provide substantial protection for aquatic communities and are 
therefore considered in NMFS' listing determination. Federal forest 
lands in the Upper Willamette River ESU (and some areas of the Middle 
Columbia River ESU) are managed under U.S. Forest Service (USFS) and 
Bureau of Land Management (BLM) Land and Resource Management Plans or 
Land Use Plans which are amended by the Northwest Forest Plan (NFP). 
The NFP is a Federal interagency cooperative program that was 
implemented to provide a coordinated management direction for the lands 
administered by the USFS and BLM. A major part of the Plan, 
implementation of an Aquatic Conservation Strategy (ACS) on Federal 
land, is expected to reverse the trend of aquatic ecosystem degradation 
and contribute toward fish habitat recovery. Coordination among

[[Page 14523]]

the Federal land management agencies, NMFS, the U.S. Environmental 
Protection Agency (EPA), and the FWS should ensure that the ACS 
objectives are achieved.
    Prior to implementing the Record of Decision for the President's 
Forest Plan, little or no riparian protection was afforded for the fish 
and their habitat. One of the most important substantive protective 
measures implemented through the Plan are riparian reserves. These are 
buffered strips of land that, depending on stream class and type of 
watershed, range from 300 ft (91m) on perennial streams to 50 ft (15 m) 
on ephemeral streams.
    Some Federal lands in the Middle Columbia River ESU are managed 
under USFS and BLM Land and Resource Management Plans or Land Use Plans 
which are amended by PACFISH. PACFISH provides objectives, standards 
and guidelines that are applied to all Federal land management 
activities such as timber harvest, road construction, mining, grazing 
and recreation. The USFS and BLM implemented PACFISH in 1995 and 
intended it to provide interim protection to anadromous fish habitat 
while a longer term, basin scale aquatic conservation strategy was 
developed in the Interior Columbia Basin, Ecosystem Managment Project 
(ICBEMP). It is intended that ICBEMP will have a Final Environmental 
Impact Statement and Record of Decision by early 2000.
    For other ESUs already listed in the Interior Columbia Basin (Snake 
River chinook, Snake River steelhead, and Upper Columbia River 
steelhead), NMFS has required in section 7 consultation, several 
components that are in addition to the PACFISH strategy (NMFS 1995; 
NMFS 1998). NMFS, USFS, and BLM intend these additional components to 
bridge the gap between interim PACFISH direction and the longterm 
strategy envisioned for ICBEMP. NMFS anticipates that these components 
will also be carried forward in the ICBEMP direction. These components 
include (but are not limited to) implementation monitoring and 
accountability, a system of watersheds that are prioritized for 
protection and restoration, improved and monitored grazing systems, 
road system evaluation and planning requirements, mapping and analysis 
of unroaded areas, multi-year restoration strategies, and batching and 
analyzing projects at the watershed scale. Given the timeframe for 
ICBEMP, NMFS will likely conduct similar additional section 7 
consultations for the Land and Resource Management plans within the 
Middle Columbia River ESU and will then consult on ICBEMP when it is 
complete.
    In the range of both the Middle Columbia River and Upper Willamette 
River ESUs, several notable efforts have recently been initiated. 
Harvest, hatchery, and habitat protections under state control are 
evolving under the Oregon Plan for Salmon and Watersheds (OPSW). The 
OPSW is a long-term effort to protect all at-risk wild salmonids 
through cooperation between state, local and Federal agencies, tribal 
governments, industry, private organizations, and individuals. Parts of 
the OPSW are already providing benefits, including an aggressive 
program by the Oregon Department of Transportation to inventory, 
repair, and replace road culverts that block fish from reaching 
important spawning and rearing areas. The OPSW also encourages efforts 
to improve conditions for salmon through non-regulatory means, 
including significant efforts by local watershed councils. An 
Independent Multi-disciplinary Science Team provides scientific 
oversight to OPSW components and outcomes. A recent Executive Order 
from Governor Kitzhaber reinforced his expectation that all state 
agencies will make improved environmental health and salmon recovery 
part of their mission.
    Protecting and restoring fish and wildlife habitat and population 
levels in the Willamette River Basin, promoting proper floodplain 
management, and enhancing water quality is the focus of the recently 
formed Willamette Restoration Initiative (WRI). The WRI creates a 
mechanism through which residents of the basin are mounting a 
concerted, collaborative effort to restore watershed health. In 
addition, habitat protection and improved water quality in the 
Portland/Vancouver metropolitan areas are getting unprecedented 
attention from local jurisdictions. The regional government, Metro, 
recently adopted an aggressive stream and floodplain protection 
ordinance designed to protect functions and values of floodplains, and 
natural stream and adjacent vegetated corridors. All jurisdictions in 
the region must amend their land use plans and implementing ordinances 
to comply with the Metro ordinance within 18 months. Metro also has a 
green spaces acquisition program that addresses regional biodiversity, 
and is giving protection to significant amounts of land, some of it on 
the Sandy River or on tributaries to the Willamette River. The City of 
Portland has identified those activities which impact salmonids and is 
now using that information to reduce impacts of existing programs and 
to identify potential enhancement actions. The City will shortly be 
making significant improvements in its storm water management program, 
a key to reducing impacts on salmonid habitat.
    In the lower Columbia River, salmonid populations were seriously 
depleted long before increasing predator populations posed any 
significant threat to their long-term survival. Various development and 
management actions have interrupted the natural balance between 
predator and prey populations, and this situation now poses a risk to 
struggling salmonid populations. For example, steps have already been 
taken this year by the U.S. Army Corps of Engineers (COE), FWS, ODFW, 
and NMFS to relocate at least 90 percent of a Caspian tern colony away 
from areas in the lower Columbia where their primary food is juvenile 
salmonids.
    The State of Washington is currently in the process of developing a 
statewide strategy to protect and restore wild steelhead and other 
salmon and trout species. In May of 1997, Governor Gary Locke and other 
state officials signed a Memorandum of Agreement creating the Joint 
Natural Resources Cabinet (Joint Cabinet). This body is comprised of 
state agency directors or their equivalents from a wide variety of 
agencies whose activities and constituents influence Washington's 
natural resources. The goal of the Joint Cabinet is to restore salmon, 
steelhead, and trout populations by improving those habitats on which 
the fish rely. The Joint Cabinet's current activities include 
development of the Lower Columbia Steelhead Conservation Initiative 
(LCSCI), which is intended to comprehensively address protection and 
recovery of steelhead in the lower Columbia River area.
    NMFS intends to continue working with the State of Washington and 
stakeholders involved in the formulation of the LCSCI. Ultimately, when 
completed, this conservation effort may help to ameliorate risks facing 
many salmonid species in this region. In the near term, for steelhead 
and other listed species, individual components of the conservation 
effort may be recognized through section 4(d) of the ESA. In this way 
activities conducted in accordance with full, matured, and implemented 
conservation efforts may be excepted from take under section 9 of the 
ESA.
    NMFS and FWS 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 and Washington. While section 
7 of the ESA addresses species protection associated

[[Page 14524]]

with Federal actions and lands, Habitat Conservation Planning under 
section 10 of the ESA addresses species protection on private (non-
Federal) lands. HCPs are particularly important since significant 
portions of habitat in the range of both steelhead ESUs is in non-
Federal ownership. The intent of the HCP process is to ensure that any 
incidental taking of listed species will not appreciably reduce the 
likelihood of survival of the species, 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.
    NMFS will continue to evaluate state, tribal, and non-Federal 
efforts to develop and implement measures to protect and begin the 
recovery of steelhead populations within these ESUs. Because a 
substantial portion of land in these ESUs is in state or private 
ownership, conservation measures on these lands will be key to 
protecting and recovering steelhead populations in these ESUs. NMFS 
recognizes that strong conservation benefits will accrue from specific 
components of many non-Federal conservation efforts.
    While NMFS acknowledges that many of the ongoing protective efforts 
are likely to promote the conservation of steelhead and other 
salmonids, some are very recent and few address steelhead 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 these 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 steelhead populations.

Status of Steelhead ESUs

    Section 3 of the ESA defines the term ``endangered species'' as 
``any species which is in danger of extinction throughout all or a 
significant portion of its range.'' The term ``threatened species'' is 
defined as ``any species which is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range.'' Thompson (1991) suggested that conventional 
rules of thumb, analytical approaches, and simulations may all be 
useful in making this determination. In previous status reviews (e.g., 
Weitkamp et al., 1995), NMFS has identified a number of factors that 
should be considered in evaluating the level of risk faced by an ESU, 
including: (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.
    During the coastwide status review for steelhead, NMFS evaluated 
both quantitative and qualitative information to determine whether any 
proposed ESU is threatened or endangered according to the ESA. The 
types of information used in these assessments are described in the 
proposed rule, published August 9, 1996 (61 FR 41541). The assessments 
also considered whether any of the hatchery populations identified in 
``Summary of Steelhead ESU Determinations'' should be considered 
essential for the recovery of a listed ESU. The following summaries 
draw on these quantitative and qualitative assessments to describe 
NMFS' conclusions regarding the status of each steelhead ESU. A more 
detailed discussion of the status of these steelhead ESUs is presented 
in the ``Status Review Update for Deferred and Candidate ESUs of West 
Coast Steelhead'' (NMFS, 1997a) and ``Updated Review of the Status of 
the Upper Willamette River and Middle Columbia River ESUs of 
Steelhead'' (NMFS, 1999a). Copies of these documents are available upon 
request (see ADDRESSES).

(1) Upper Willamette River ESU

    Steelhead in the Upper Willamette River ESU are distributed in a 
few, relatively small, natural populations. Over the past several 
decades, total abundance of natural late-migrating winter steelhead 
ascending the Willamette Falls fish ladder has fluctuated several times 
over a range of approximately 5,000 to 20,000 spawners. However, the 
last peak occurred in 1988, and this peak has been followed by a steep 
and continuing decline. Abundance in each of the last 5 years has been 
below 4,300 fish, and the run in 1995 was the lowest in 30 years. 
Declines also have been observed in almost all natural populations, 
including those with and without a substantial component of naturally 
spawning hatchery fish. NMFS notes with concern the results from ODFW's 
extinction assessment, which estimates that the Molalla River 
population had a greater than 20 percent extinction probability in the 
next 60 years, and that the upper South Santiam River population had a 
greater than 5 percent extinction risk within the next 100 years 
(Chilcote, 1997).
    Steelhead native to the Upper Willamette River ESU are late-run 
winter steelhead, but introduced hatchery stocks of summer and early-
run winter steelhead also occur in the upper Willamette River. 
Estimates of the proportion of hatchery fish in natural spawning 
escapements range from 5 to 25 percent. NMFS is concerned about the 
potential risks associated with interactions between non-native summer 
and wild winter steelhead, whose spawning areas are sympatric in some 
rivers (especially in the Molalla and North and South Santiam Rivers). 
The percentage of hatchery fish in natural spawning escapements is 
considered relatively low in most rivers in the Upper Willamette River 
Basin. Declines in winter steelhead runs, regardless of degree of 
hatchery influence, suggest that causes other than artificial 
propagation are primarily responsible for reduced abundances.
    NMFS remains concerned about the lack of historical abundance 
estimates for winter steelhead in the Upper Willamette River ESU. It 
may be possible that population sizes were never large above Willamette 
Falls, and that the winter steelhead in this ESU are capable of 
persisting at relatively low abundance. Although not as extreme as is 
the case for spring chinook salmon, the proportion and total amount of 
historical steelhead spawning habitat that has been blocked by dams and 
water diversions is high in the Upper Willamette River ESU. It is 
possible that several consecutive years of poor ocean conditions and 
recent harvest pressure in the lower Columbia River have pushed the 
winter steelhead populations in the Upper Willamette River drainage to 
the limit of their resiliency.

Listing Determination

    Based on new information submitted by ODFW and others, NMFS 
concludes Upper Willamette River steelhead warrant listing as a 
threatened species. NMFS is concerned about the universally declining 
trends in abundance in the relatively small-to-moderate sized runs of 
winter steelhead in this ESU. Recent abundance trends indicate 
naturally spawned steelhead have declined to historically low levels in 
areas above Willamette Falls. This

[[Page 14525]]

low abundance, coupled with potential risks associated with 
interactions between naturally spawned steelhead and hatchery stocks is 
of great concern to NMFS.
    Recent conservation planning efforts by the State of Oregon may 
reduce risks faced by steelhead in this ESU in the future; however, 
these efforts are still in their formative stages. Specifically, the 
OPSW, while substantially implemented and funded on the Oregon Coast, 
has not yet reached a similar level of development in inland areas. 
Furthermore, while the NFP has reduced habitat degradation on Federal 
lands within this ESU, less than 20 percent of land areas in this 
region are under Federal ownership and hence covered by this management 
plan.

Status of Hatchery Populations

    NMFS concludes that none of the hatchery steelhead stocks 
identified as part of this ESU (see ``Summary of Steelhead ESU 
Determinations'') should be listed since they are not currently 
essential for its recovery (NMFS, 1999b).

(2) Middle Columbia River Basin ESU

    Current population sizes are substantially lower than historic 
levels, especially in the rivers with the largest steelhead runs in the 
ESU: the John Day, Deschutes, and Yakima Rivers. At least two 
extinctions of native steelhead runs in the ESU have occurred (the 
Crooked and Metolius Rivers, both in the Deschutes River Basin). Trends 
in natural escapement in the Yakima and Umatilla Rivers have been 
highly variable since the mid-late 1970s, ranging from abundances that 
indicate relatively healthy runs to those that are cause for concern 
(i.e., from 2,000 to 3,000 steelhead during peaks to approximately 500 
fish during the low points).
    One of the most significant sources of risk to steelhead in the 
Middle Columbia ESU is the recent and dramatic increase in the 
percentage of hatchery fish in natural escapement in the Deschutes 
River Basin. ODFW estimates that in recent years, the percentage of 
hatchery strays in the Deschutes River has exceeded 70 percent, and 
most of these are believed to be long-distance strays from outside the 
ESU. Coincident with this increase in the percentage of strays has been 
a decline in the abundance of native steelhead in the Deschutes River. 
In combination with the trends in hatchery fish in the Deschutes River, 
estimates of increased proportions of hatchery fish in the John Day and 
Umatilla River Basins pose a risk to wild steelhead due to negative 
effects of genetic and ecological interactions with hatchery fish. For 
example, in recent years, most of the fish planted in the Touchet River 
are from out of ESU stocks. As a result, a recent analysis of this 
stock by WDFW found that it was most similar genetically to Wells 
Hatchery steelhead from the Upper Columbia River ESU.
    NMFS remains concerned about the widespread declines in abundance 
in the steelhead populations in this ESU. The serious declines in 
abundance in the John Day River Basin are especially troublesome, 
because the John Day River has supported the largest populations of 
naturally spawning summer steelhead in the ESU. Populations in the 
Yakima River Basin are at a small fraction of historical levels, with 
the majority of production coming from a single stream (Satus Creek). 
The number of naturally spawning fish in the Umatilla River has been 
relatively stable in recent years, but this has been accomplished with 
substantial supplementation of natural spawning by hatchery-reared 
fish. Naturally produced steelhead have declined precipitously in the 
Deschutes River over the past decade. The most optimistic observation 
that can be made for steelhead in this area is that some populations 
have shown resiliency to bounce back from even more depressed levels in 
the past (e.g., the late 1970s).
    The continued increase of stray steelhead into the Deschutes River 
Basin is also a major source of concern to NMFS. ODFW and CTWSRO 
estimate that 60 to 80 percent of the naturally spawning population is 
composed of strays, which greatly outnumber naturally produced fish. 
Although the level of reproductive success of these stray fish has not 
been evaluated, the levels are so high that major genetic and 
ecological effects on natural populations are possible. Recent efforts 
underway by the CTWSRO and ODFW to determine the origin of strays and 
the proportion of strays that are spawning naturally in the Deschutes 
River may prove useful in focusing management efforts to address this 
serious issue.
    ODFW argues that resident fish in the Deschutes River play a more 
substantial role in overall population dynamics and abundance of O. 
mykiss than is the case in other streams within this ESU or in most 
other steelhead ESUs. Further, they argue that the resident populations 
in the Deschutes River are robust and provide a substantial buffer 
against extinction. Evaluating the role of resident fish in extinction 
risk analysis for steelhead ESUs is very complex. Comprehensive 
abundance information for resident fish is not available, but if the 
data presented by ODFW for Nena Creek/North Junction are 
representative, the overall abundance of resident fish in the Deschutes 
River may be fairly high. Some spawning between resident and anadromous 
fish has been observed, but there appears to be substantial 
microhabitat partitioning of reproduction between the forms based on 
size, timing, and location. Available information is limited, but it 
does not provide evidence that resident fish contribute significantly 
to anadromous returns. A tentative conclusion is that, within the 
Deschutes River Basin, the two forms are closely linked over 
evolutionary time frames, but the ability of the resident form to 
substantially affect demographic/genetic processes in steelhead 
populations in the short term is doubtful. To the extent that the 
resident form has been producing steelhead offspring in this ESU, the 
effect of that production has not been sufficient to stave off 
continued declines in steelhead populations. Furthermore, if there is 
substantial and continuing gene flow between resident and anadromous 
forms, that would suggest that the high stray rates of non-native 
hatchery steelhead also pose a genetic risk to resident fish in the 
Deschutes River. Not enough information currently exists to determine 
whether the relative abundances of the two life history forms should be 
viewed positively (e.g., the relatively high abundance of the resident 
form in those streams can act to buffer the anadromous form from 
declines) or negatively (e.g., the resident form is outcompeting or 
interbreeding with the anadromous form) in risk evaluations.

Listing Determination

    NMFS concludes the Middle Columbia ESU warrants listing as a 
threatened species. Continued declines in steelhead abundance and 
increases in the percentage of hatchery fish in natural escapements 
pose significant threats to this ESU.
    Recent conservation planning efforts by the States of Washington 
and Oregon may reduce risks faced by steelhead in this ESU in the 
future; however, these efforts are still in their formative stages. 
Federal management efforts, including the NFP, PACFISH, and forthcoming 
ICEBMP, address important habitat-related risk factors for this ESU. 
However, only about 24 percent of the land area within this ESU is 
under Federal management and subject to these management efforts.

Status of Hatchery Populations

    NMFS concludes that none of the hatchery steelhead stocks 
identified as part of this ESU (see ``Summary of Steelhead ESU 
Determinations'') should

[[Page 14526]]

be listed since they are not currently essential for its recovery 
(NMFS, 1999b).

Determinations

    Based on new information and comments received during the proposed 
rule, NMFS concludes that Upper Willamette River steelhead and Middle 
Columbia River steelhead warrant listing as threatened species under 
the ESA. The geographic boundaries (i.e., the watersheds within which 
the members of the ESU spend their freshwater residence) for these ESUs 
are described under ``Summary of Steelhead ESU Determinations.''
    In both threatened steelhead ESUs, NMFS is listing only naturally 
spawned populations residing below impassable natural barriers (e.g., 
long-standing, natural waterfalls). NMFS' intent in listing only 
``naturally spawned'' populations is to protect steelhead 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 steelhead 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 steelhead from spawning in the wild unless the 
fish are specifically part of a recovery effort.
    NMFS has also evaluated the relationship between hatchery and 
natural populations of steelhead in the listed ESUs (described 
previously in ``Summary of Steelhead ESU Determinations'' and ``Status 
of Steelhead ESUs''). None of the hatchery populations are being listed 
because, while some are considered part of the ESUs, none are deemed 
essential for the recovery of either ESU (NMFS, 1999b).
    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 
steelhead populations considered to be part of the Upper Willamette 
River ESU or Middle 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.
    At this time, NMFS is listing only anadromous life forms of O. 
mykiss.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Section 9 prohibitions apply automatically to endangered species, as 
described in the following discussion, this is not the case for 
threatened species.
    Section 4(d) of the ESA directs the Secretary of Commerce to 
implement regulations ``to provide for the conservation of [threatened] 
species,'' that may include extending any or all of the prohibitions of 
section 9 to threatened species. Section 9(a)(1)(g) also prohibits 
violations of protective regulations for threatened species implemented 
under section 4(d). NMFS will issue shortly protective regulations 
pursuant to section 4(d) for the listed ESUs.
    Section 7(a)(4) of the ESA requires that Federal agencies consult 
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) 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 likely to affect steelhead in the 
listed ESUs include authorized land management activities of the USFS 
and BLM, as well as operation of hydroelectric and storage projects of 
the Bureau of Reclamation and 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 
EPA, highway projects authorized by the Federal Highway Administration, 
Federal Energy Regulatory Commission licenses for nonfederal 
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 steelhead and its habitat within the range of the 
listed ESUs. It is important to note that the current listing applies 
only to the anadromous form of O. mykiss; therefore, section 7 
consultations will not address resident forms of O. mykiss at this 
time.
    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).

[[Page 14527]]

    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 steelhead in the listed ESUs, 
including efforts by Federal and state fishery management agencies. 
These and other research efforts could provide critical information 
regarding steelhead 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 state or privately operated and funded hatcheries, 
state or university research on species other than steelhead, not 
receiving Federal authorization or funding, the implementation of state 
fishing regulations, and timber harvest activities on nonfederal lands.

Take Guidance

    On July 1, 1994, (59 FR 34272) NMFS and FWS published a policy 
committing the agencies 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 
steelhead 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 a 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 notice, 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 steelhead in the listed ESUs and result in a violation of section 
9 of the ESA include, but are not limited to: (1) land-use activities 
that adversely affect steelhead 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 steelhead 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 
steelhead; (4) violation of discharge permits; (5) pesticide and 
herbicide applications; (6) interstate and foreign commerce of 
steelhead from the listed ESUs and import/export of steelhead from 
listed ESUs without an ESA permit, unless the fish were harvested 
pursuant to legal exception; (7) collecting or handling of steelhead 
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 steelhead 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 steelhead 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, and local agencies, private 
organizations, and individuals.
    Several conservation efforts are underway that may reverse the 
decline of west coast steelhead 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 steelhead and other salmonids.
    To succeed, protective regulations and recovery programs for 
steelhead 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, 
steelhead 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) steelhead 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,

[[Page 14528]]

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 
steelhead 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 steelhead.
    5. Predator control/relocation programs could be implemented in 
areas where predators pose a significant threat to steelhead.
    6. Measures could be taken to improve monitoring of steelhead 
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 steelhead and salmon to the watersheds.

Critical Habitat

    Section 4(b)(6)(C) of the ESA requires that, to the extent prudent, 
critical habitat be designated concurrently with the listing of a 
species unless such critical habitat is not determinable at that time. 
On February 5, 1999, NMFS published a proposed critical habitat rule 
for all listed and proposed steelhead ESUs (64 FR 5740). Copies of this 
critical habitat proposed rule are available upon request (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 
environmental assessment requirements of the National Environmental 
Policy Act (NEPA) under NOAA Administrative Order 216-6.
    As noted in the 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. Similarly, 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 steelhead 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), Upper 
Willamette River steelhead was designated the letter (v) and Middle 
Columbia River steelhead the letter (w) 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, Upper Willamette River steelhead is designated in this final 
rule as paragraph (a)(14) and Middle Columbia River steelhead as 
paragraph (a)(15) 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,
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)(14) and (a)(15) are added to 
read as follows:


Sec. 223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (a) * * *
    (14) Upper Willamette River steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of winter-run steelhead in 
the Willamette River, Oregon, and its tributaries upstream from 
Willamette Falls to the Calapooia River, inclusive;
    (15) Middle Columbia River steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead in streams from 
above the Wind River, Washington, and the Hood River, Oregon 
(exclusive), upstream to, and including, the Yakima River, Washington. 
Excluded are steelhead from the Snake River Basin.
* * * * *
[FR Doc. 99-6817 Filed 3-24-99; 8:45 am]
BILLING CODE 3510-22-F