[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Proposed Rules]
[Pages 29618-29622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13958]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 990525143-9143-01; I.D. 120197A]
RIN 0648-AM41
Designated Critical Habitat; Proposed Revision of Critical
Habitat for Snake River Spring/Summer Chinook Salmon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to revise critical habitat for Snake River
spring/summer chinook salmon (Oncorhynchus tshawytscha), pursuant to
the Endangered Species Act (ESA) of 1973. After a review of the best
available scientific information, NMFS concludes that Napias Creek
Falls constitutes a naturally impassable migrational barrier for Snake
River spring/summer chinook salmon. Therefore, NMFS proposes to exclude
areas above Napias Creek Falls from designated critical habitat because
such areas are outside the species' current and historic range.
DATES: Comments must be received by August 2, 1999. Requests for
additional public hearings must be received by July 19, 1999.
ADDRESSES: Requests for information concerning this action should be
submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon
Street, Suite 500, Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Garth Griffin, Protected Resources
Division, Northwest Region, (503) 231-2005 or Chris Mobley, Office of
Protected Resources, (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
On June 27, 1991, NMFS proposed the listing of Snake River spring/
summer chinook salmon as a threatened species under the ESA (56 FR
29542). The final determination listing Snake River spring/summer
chinook salmon as a threatened species was published on April 22, 1992
(57 FR 14653), and corrected on June 3, 1992 (57 FR 23458). Critical
habitat was designated on December 28, 1993 (58 FR 68543). In that
document, NMFS designated all river reaches presently or historically
accessible to listed spring/summer chinook salmon (except river reaches
above impassable natural falls, and Dworshak and Hells Canyon Dams) in
various hydrologic units as critical habitat (58 FR 68543). Napias
Creek, the area in question, occurs within one of these designated
hydrologic units (Middle Salmon-Panther, USGS Hydrologic Unit
17060203).
On January 6, 1997, the Secretary of Commerce (Secretary) received
a petition from Meridian Gold Company (Meridian) to revise critical
habitat for Snake River spring/summer chinook salmon in Napias Creek, a
tributary to Panther Creek which flows into the Salmon River in central
Idaho. In accordance with section 4(b)(3)(D) of the ESA, NMFS issued a
determination on April 28, 1997, that the petition presented
substantial scientific information indicating that a revision may be
warranted (62 FR 22903). In that document, NMFS solicited information
and comments from interested parties concerning the petitioned action.
On September 16, 1997, Meridian submitted additional information in
support of its petition. Specifically, Meridian submitted three new
reports entitled: (1) ``Ability of Salmon and Steelhead to Pass Napias
Creek Falls''; (2) ``Investigation of Physical Conditions at Napias
Creek Falls''; and (3) ``Historical and Ethnographic Analysis of Salmon
Presence in the Leesburg Basin, Lemhi County, Idaho.'' This new
information was added to the administrative record and was considered
by NMFS in its 12-month determination published on January 30, 1998 (63
FR 4615).
On January 30, 1998, NMFS determined the petitioned action was not
warranted since available information indicated the falls was likely
passable to chinook salmon at some flows and that the presence of
relict indicator species indicated historical usage by anadromous
species (63 FR 4615). NMFS also concluded that habitat above Napias
Creek Falls contained unique features that may aid in the conservation
and recovery of listed salmonid species (63 FR 4615). However, NMFS did
not address the question of whether or not habitat above the falls was
essential for recovery of the species since it concluded that the area
was within the species' current range (63 FR 4615; see also 50 CFR
424.12(e) which states that areas outside of the
[[Page 29619]]
species' current range shall be designated only when the species'
current range is inadequate for conservation purposes).
Subsequent to NMFS' January 30, 1998, determination, Meridian
submitted a ``petition for reconsideration,'' providing additional data
and analyses concerning the likelihood that Napias Creek Falls
constitutes a naturally impassable barrier to anadromous salmonid
migration (Meridian 1998a, 1998b; Chapman 1998). While NMFS' ESA
implementing regulations do not provide a process for reconsidering
findings on petitions, NMFS nonetheless agreed in a letter dated July
31, 1998, to consider Meridian's new information and provide Meridian
with a written determination regarding its findings (NMFS, 1998a;
Meridian, 1998d). On October 30, 1998, NMFS staff met with Meridian
representatives to discuss the new technical information and its
interpretations (NMFS, 1998b).
On December 29, 1998, Meridian expressed its desire to withdraw its
``petition for reconsideration'' stating that it interpreted NMFS'
continuing treatment of the area as critical habitat as a denial of its
petition (Meridian, 1998c). However, at the time of that letter, NMFS
had not yet reached a conclusion regarding the additional information
submitted by Meridian, nor had NMFS provided Meridian with a written
determination on the matter as it had committed to do in its July 31,
1998, letter (NMFS, 1998a).
While Meridian now seeks to withdraw its additional information
concerning Napias Creek Falls, NMFS concludes this information is part
of the best scientific information available regarding whether this
area constitutes critical habitat for the species. Therefore, in
accordance with section 4(b)(1)(A) of the ESA, NMFS bases the
conclusions in this proposal on Meridian's new information. NMFS
likewise considered this information in its recent proposed rule to
designate critical habitat for Snake River steelhead (64 FR 5740,
February 5, 1999).
Definition of Critical Habitat
Critical habitat is defined in section 3(5)(A) of the ESA as ``(i)
the specific areas within the geographical area occupied by the species
* * * on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species * * * upon
a determination by the Secretary of Commerce (Secretary) that such
areas are essential for the conservation of the species'' (see 16
U.S.C. 1532(5)(A)). The term ``conservation,'' as defined in section
3(3) of the ESA, means `` * * * to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary'' (see 16 U.S.C. 1532(3)).
Defining specific river reaches that constitute critical habitat
for chinook salmon, and anadromous fish species in general, is
difficult to do because of NMFS' imperfect understanding of the
species' freshwater distribution, both current and historical, and the
lack of comprehensive sampling efforts dedicated to monitoring these
species. Given this scientific uncertainty, NMFS' approach to
designating critical habitat for chinook salmon is to designate all
areas currently and historically accessible to the species within the
range of the ESU. NMFS believes this inclusive approach to designating
critical habitat is appropriate because it: (1) recognizes the species'
extensive use of diverse habitats and underscores the need to account
for all of the habitat types supporting the species' juvenile and adult
freshwater and estuarine life stages; and (2) takes into account the
natural variability in the species' habitat use; and (3) recognizes
data limitations and scientific uncertainty that exist concerning the
distribution and habitat usage of the listed species.
Process for Defining Critical Habitat
Developing a proposed critical habitat designation involves three
main considerations. First, the biological needs of the species are
evaluated, and essential habitat areas and features are identified.
Second, the need for special management considerations or protection of
the area(s) or features identified are evaluated. Finally, the probable
economic and other impacts of designating these essential areas as
``critical habitat'' are evaluated. After considering the requirements
of the species, the need for special management, and the impacts of the
designation, a notification of the proposed critical habitat is
published in the Federal Register for comment. The final critical
habitat designation, considering comments on the proposal and impacts
assessment, is typically published within 1 year of the proposed rule.
Final critical habitat designations may be revised as new information
becomes available.
At this time, new information exists that indicates a revision in
NMFS' final critical habitat designation is warranted. A discussion of
this information follows.
Analysis of Available Information
Two lines of evidence indicate that areas above Napias Creek Falls
do not constitute critical habitat for the listed species. This
evidence includes: (1) current passage conditions at the falls; and (2)
surveys of current and historic salmonid presence above the falls.
Current Passage Conditions at Napias Creek Falls
On September 16, 1997, Meridian submitted the results of several
studies conducted to determine the ability of chinook salmon to migrate
above Napias Creek Falls. One study evaluated the geomorphology of the
falls, while another study assessed the potential for fish passage
using the methods of Powers and Orsborn as described in ``Analysis of
Barriers to Upstream Fish Migration'' (Bonneville Power Administration,
1984). A third study entitled ``Ability of Salmon and Steelhead to Pass
Napias Creek Falls'' analyzed information and conclusions of the
preceding two studies and concluded that ``Napias Creek Falls is an
absolute barrier to upstream migration of salmon and steelhead in
Napias Creek'' (Meridian, 1997). NMFS analyzed Meridian's studies which
indicated that the falls was a historic barrier to chinook salmon
passage in the January 30, 1998, determination (63 FR 4615, 4617). NMFS
also conducted its own passage assessment of Napias Creek Falls.
On May 29, 1998, and dates thereafter, Meridian commented on NMFS'
passage assessment and provided additional explanation of its own prior
analyses (Meridian 1998a, 1998b; Chapman 1998). NMFS analyzed these
comments in a memo entitled ``Analysis of Meridian Gold Company's May
29, 1998, Submittal Concerning Chinook Salmon Passage Conditions at
Napias Creek Falls'' (NMFS 1998c). In this memo, NMFS concluded that
while Meridian's May 29, 1998, submittal provides additional
information regarding the passage issue at Napias Creek Falls, such
information does not change NMFS' original conclusion reached in its
November 21, 1997, analysis (NMFS, 1997). Specifically, NMFS concluded
that Napias Creek Falls is likely passable to listed chinook salmon
under certain flow conditions (NMFS, 1998c).
However, NMFS recognizes that it is difficult to determine whether
the falls
[[Page 29620]]
constitutes an ``effective'' migrational barrier to the species, thus,
precluding the species from colonizing areas above the falls (see NMFS,
1999). NMFS believes that current and historic usage information is
informative on the question of whether or not the falls constitutes an
effective migrational barrier for the species. From such information,
one can infer whether Napias Creek Falls effectively constitutes a
migrational barrier for the species and, therefore, is outside the
species' current and historic range.
Surveys of Current and Historic Salmonid Presence
Meridian conducted two studies to determine if, historically,
chinook salmon were observed above Napias Creek Falls. The first study
reviewed historical accounts of chinook salmon occurring above Napias
Creek Falls (Meridian, 1997a). Meridian states that reviews of
historical and independent ethnographic research document that salmon
or steelhead were not observed or caught above Napias Creek Falls and,
therefore, the fish were not historically present in this area. A
second study reviews the genesis of Napias Creek Falls and concludes
that the falls are a natural feature and not the result of development
activities near the area (Meridian, 1997b).
Meridian's studies and the opinions of Federal and state resource
agencies (i.e., U.S. Forest Service (USFS), and Idaho Department of
Fish and Game (IDFG)) indicate that areas above Napias Creek Falls are
outside the range of listed chinook salmon and do not constitute
critical habitat for the species (USFS, 1996; IDFG undated); however,
this conclusion is in conflict with comments from a USFS fishery
biologist. In a report dated February 8, 1996, Bruce Smith, Salmon and
Challis National Forest Fisheries Biologist, concludes that Napias
Creek historically contained chinook salmon (Smith, 1996a). Smith also
states that areas above Napias Creek Falls currently contain relict
indicator species (Smith, 1996a), indicating pre-historic accessibility
of this area to anadromous salmonid species (Smith, 1996b).
In its January 30, 1998, determination, NMFS found Smith's analysis
persuasive on the question of the historical presence of chinook salmon
above Napias Creek Falls primarily based on Smith's identification of
relict indicator species above the falls (63 FR 4615; 4617). However,
Meridian points out in their recently submitted study that while relict
indicator species such as rainbow trout and bull trout occur above the
falls, other native species (e.g., mountain whitefish, westslope
cutthroat trout, scuplins, and dace) do not presently occur above the
falls, indicating that salmonids in the area may have been the result
of hatchery plantings or other introductions (Chapman, 1998). This
explanation is supported by the presence of other nonnative fish
species above the falls (i.e., brook trout), and the history of
stocking activities in Napias Creek (Smith, 1996a).
Interpretation of Available Scientific Data
While NMFS concludes that Napias Creek Falls is most likely
passable to chinook salmon at certain flows, it is difficult to predict
the likelihood that this species would colonize areas above the falls
if present in sufficient numbers in Napias Creek. The presence of
relict indicator species (e.g., rainbow trout) above the falls suggests
historic usage by anadromous species; however, the origin of these
indicator species is uncertain. The presence of nonnative species and
the absence of other common native species suggest that such indicator
species may be the result of hatchery plantings or other introductions.
Historical records of hatchery plantings by IDFG support this
conclusion. Furthermore, historical surveys indicate that in recent
history (since the 1930s), chinook salmon have not occurred above the
falls, supporting the conclusion that the falls effectively constitutes
a migrational barrier for the species.
After reconsidering its prior analysis in light of new information
provided by Meridian, NMFS concludes that the best available scientific
information indicates that habitat above Napias Creek Falls is outside
the current range of listed spring/summer chinook salmon and,
therefore, does not constitute critical habitat for the species. This
conclusion is supported by NMFS' assessment of available scientific
data and the independent opinions of other Federal and state resource
agencies (USFS, 1996; IDFG, undated). The apparent lack of historic
usage of this area by chinook salmon also indicates that this area is
not essential for conservation of the species. This conclusion is
consistent with NMFS' previous spring/summer chinook salmon critical
habitat finding that the species' current range is likely adequate for
conservation purposes (See 58 FR 68543, Final Designation of Critical
Habitat for Snake River Spring/Summer Chinook Salmon).
NMFS recognizes that scientific uncertainty remains regarding its
conclusion that areas above Napias Creek Falls do not constitute
critical habitat for listed spring/summer chinook salmon. Specifically,
uncertainty remains regarding whether chinook salmon could establish a
naturally reproducing population above the falls if they were present
in sufficient numbers in Napias Creek, or if chinook salmon
historically inhabited areas above Napias Creek Falls. To resolve
remaining uncertainties, NMFS requests comments and information
regarding its proposed determination (See Public Comments Solicited).
Even though scientific uncertainty remains regarding NMFS'
conclusion, chinook salmon do not now occur in Napias Creek and,
therefore, habitat above the falls would not likely be used by the
species in the near-term even if it were accessible. Therefore, if this
proposal is finalized, the long-term risk of harm to the species is
lessened by the fact that NMFS may revise its determination in the
future if additional information indicates that areas above Napias
Creek Falls constitute critical habitat for the species.
While NMFS concludes that areas above Napias Creek Falls do not
constitute critical habitat for chinook salmon, NMFS believes that
Napias Creek constitutes an important source of dilution water within
the Panther Creek system (63 FR 4615 and 4618, January 30, 1998). Any
degradation of dilution flows from Napias Creek would likely hinder
efforts to reestablish anadromous species in Panther Creek (63 FR 4615
and 4618, January 30, 1998). Consequently, NMFS intends to carefully
evaluate any proposed impacts on Napias Creek water quality to ensure
that the survival and recovery of listed species are not jeopardized.
Expected Economic Impacts
Section 4(b)(2) of the ESA requires NMFS to consider the economic
impact of specifying any particular areas as critical habitat. However,
section 4(b)(1)(A) of the ESA prohibits NMFS from considering economic
impacts associated with species listings. Consequently, when
designating critical habitat, NMFS considers only the incremental
economic impacts associated with the designation above the economic
impacts attributable to the listing of the species or authorities other
than the ESA. Incremental impacts result from special management
activities in those areas, if any, outside the present distribution of
the listed species that NMFS has determined to be essential for the
conservation of the species.
For this Evolutionarily Significant Unit (ESU), NMFS determines
that the
[[Page 29621]]
present geographic extent of the species' freshwater and estuarine
range is likely sufficient to provide for conservation of the species.
Since NMFS believes that virtually all ``adverse modification''
determinations pertaining to critical habitat would also result in
``jeopardy'' conclusions under section 7 consultations of the ESA
(i.e., as a result of the species being listed), the designation of
critical habitat is not expected to result in significant incremental
restrictions on Federal agency activities. Critical habitat designation
will, therefore, result in few, if any, additional economic effects
beyond those that may be attributable to the listing and other
statutes.
The USFS and U.S. Army Corp of Engineers (COE) manage areas of
critical habitat for this ESU, both as it is now designated and as
proposed for revision. COE and other Federal agencies that may be
involved with funding or permits for projects in critical habitat areas
may also be affected by this designation. Since the proposed revision
will result in eliminating areas above Napias Creek Falls from
designated critical habitat, the impact of this action on these Federal
agencies should be minimal.
Proposed Determination
After reconsidering its prior analysis and analyzing new
information and analyses submitted by Meridian, NMFS concludes that
Napias Creek Falls constitutes a naturally impassable migrational
barrier for Snake River spring/summer chinook salmon and, therefore, is
outside the species' range. While the falls may be passable to chinook
salmon at certain flows, available historical evidence suggests that
this species has not navigated this falls in the recent past, nor is it
likely do so in the future. NMFS specifically requests data and
analyses to address remaining scientific uncertainty associated with
this conclusion (See Public Comments Solicited).
Public Comments Solicited
To ensure that NMFS' final determination is based on the best
available scientific data as required by the ESA, NMFS solicits
comments from the public, other governmental agencies, the scientific
community, industry, and any other interested parties on the following
issues: (1) The sufficiency of the evidence supporting NMFS'
determination that Napias Creek Falls constitutes a naturally
impassable migrational barrier for chinook salmon; (2) the existence of
any evidence that may address the potential for fish passage above the
falls, such as historic accounts indicating chinook salmon or other
anadromous salmonids occurred above Napias Creek Falls, data or reports
analyzing the likelihood that chinook salmon or other anadromous
salmonids would migrate above Napias Creek Falls if present in Napias
Creek, or information pertaining to the origin of rainbow trout or
other residualized anadromous species above Napias Creek Falls (e.g.,
hatchery stocking records); and (3) other information indicating
whether areas above Napias Creek Falls do or do not constitute critical
habitat for the species. NMFS will analyze all comments and information
received prior to issuing a final determination.
Public Hearings
Joint Department of Commerce and Interior ESA implementing
regulations state that the Secretary shall promptly hold at least one
public hearing if any person so requests within 45 days of publication
of a proposed regulation to list species or to designate critical
habitat (50 CFR 424.16(c)(3)). Requests for public hearings must be
received by July 19, 1999.
References
A complete list of all references cited herein and maps describing
the range of proposed Snake River spring/summer chinook salmon are
available upon request (see ADDRESSES).
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS proposes to designate only the current range of this ESU as
critical habitat. This current range encompasses a wide range of
habitat, including tributary streams, as well as mainstem, off-channel
and estuarine areas. Areas not included in this proposed redesignation
include marine habitats in the Pacific Ocean and areas above impassable
natural barriers (e.g., long-standing, natural waterfalls). NMFS
concludes that the currently accessible areas within the species' range
are the minimum habitat necessary to ensure the species' conservation
and recovery. The proposed action would revise critical habitat for the
listed ESU to realign critical habitat with the current range of the
ESU. Having determined that Napias Creek Falls constitutes a naturally
impassable barrier for Snake River spring/summer chinook, NMFS proposes
to remove the habitat above the Falls from designated critical habitat.
Since NMFS is designating the current range of the listed species
as critical habitat, this designation will not impose any additional
requirements or economic effects upon small entities beyond those which
may accrue from section 7 of the ESA. Section 7 requires Federal
agencies to insure that any action they carry out, authorize, or fund
is not likely to jeopardize the continued existence of any listed
species or to result in the destruction or adverse modification of
critical habitat (ESA section 7(a)(2)). The consultation requirements
of section 7 are nondiscretionary and are effective at the time of
species' listing. Therefore, Federal agencies must consult with NMFS
and ensure their actions do not jeopardize a listed species, regardless
of whether critical habitat is designated.
In the future, should NMFS determine that designation of habitat
areas outside the species' current range is necessary for conservation
and recovery, NMFS will analyze the incremental costs of that action
and assess its potential impacts on small entities, as required by the
Regulatory Flexibility Act. Until that time, a more detailed analysis
would be premature and would not reflect the true economic impacts of
the proposed action on small businesses, organizations, and
governments.
Meridian owns and operates Beartrack Mine, which is adjacent to
Upper Napias Creek (Napias Creek above the Falls), within the Salmon
National Forest. NMFS is not aware of any other business operating in
Upper Napias Creek whose operations might adversely modify potential
salmon habitat. The proposed action would reduce the ESU's critical
habitat, by eliminating Upper Napias Creek from critical habitat. To
the extent that Meridian may be impacted by the current designation of
Upper Napias Creek as critical habitat, the proposed reduction of
critical habitat would lessen Meridian's economic burden, if any, from
that impact.
Accordingly, the Chief Counsel for Regulation of the Department of
Commerce has certified to the Chief Counsel for Advocacy of the Small
Business Administration that the proposed critical habitat designation,
if adopted, would not have a significant economic impact on a
substantial number of small entities, as described in the Regulatory
Flexibility Act.
This proposed rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act.
NMFS has determined that Environmental Assessments or an
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared for
this
[[Page 29622]]
critical habitat designation. See Douglas County v. Babbitt, 48 F.3d
1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).
List of Subjects in 50 CFR Part 226
Endangered and threatened species, Incorporation by reference.
Dated: May 26, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 226 is
proposed to be amended as follows:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation for part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
2. In Sec. 226.205, paragraph (b) is revised to read as follows:
Sec. 226.205 Critical habitat for Snake River sockeye salmon, Snake
River fall chinook salmon and Snake River spring/summer chinook salmon.
* * * * *
(b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus
tshawytscha). Geographic boundaries. Critical habitat is designated to
include the Columbia River from a straight line connecting the west end
of the Clatsop jetty (south jetty, Oregon side) and the west end of the
Peacock jetty (north jetty, Washington side) and including all Columbia
River estuarine areas and river reaches proceeding upstream to the
confluence of the Columbia and Snake Rivers; all Snake River reaches
from the confluence of the Columbia River upstream to Hells Canyon Dam.
Critical habitat also includes river reaches presently or historically
accessible (except reaches above impassable natural falls (including
Napias Creek Falls), and Dworshak and Hells Canyon Dams) to Snake River
spring/summer chinook salmon in the following hydrologic units: Hells
Canyon, Imnaha, Lemhi, Little Salmon, Lower Grande Ronde, Lower Middle
Fork Salmon, Lower Salmon, Lower Snake-Asotin, Lower Snake-Tucannon,
Middle Salmon-Chamberlain, Middle Salmon-Panther, Pahsimeroi, South
Fork Salmon, Upper Middle Fork Salmon, Upper Grande Ronde, Upper
Salmon, Wallowa. Critical habitat borders on or passes through the
following counties in Oregon: Baker, Clatsop, Columbia, Gillium, Hood
River, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco; the
following counties in Washington: Asotin, Benton, Clark, Columbia,
Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum,
Walla, Whitman; and the following counties in Idaho: Adams, Blaine,
Custer, Idaho, Lemhi, Lewis, Nez Perce, Valley.
* * * * *
[FR Doc. 99-13958 Filed 6-1-99; 8:45 am]
BILLING CODE 3510-22-F