[Federal Register Volume 65, Number 29 (Friday, February 11, 2000)]
[Proposed Rules]
[Pages 6960-6975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3283]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 000202022-0022-01; I.D. 012100F]
RIN 0648-AN58


Endangered and Threatened Species: Threatened Status for One 
Evolutionarily Significant Unit of Steelhead in California

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

ACTION: Proposed rule; request for comments.

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SUMMARY: Based on a comprehensive status review of west coast steelhead 
(Oncorhynchus mykiss, or O. mykiss) populations throughout Washington, 
Oregon, Idaho, and California, NMFS proposed to list 10 Evolutionarily 
Significant Units (ESUs) as threatened or endangered under the 
Endangered Species Act (ESA) in 1996. One of these steelhead ESUs, the 
Northern California ESU, was proposed for listing as a threatened 
species. Because of scientific disagreements, NMFS deferred its final 
listing determination for five of these steelhead ESUs, including the 
Northern California ESU, in August 1997. After soliciting and reviewing 
additional information to resolve these disagreements, NMFS issued a 
final determination in March 1998 that the Northern California ESU did 
not warrant listing under the ESA because available scientific 
information and conservation measures indicated the ESU was at a lower 
risk of extinction than at the time of the proposed rule. Because the 
State of California has failed to implement conservation measures that 
NMFS considered critically important in its decision not to list the 
Northern California steelhead ESU, NMFS completed an updated status 
review and has reconsidered the status of this ESU under the ESA.
    Based on this review, NMFS has determined that the Northern 
California steelhead ESU warrants listing as a threatened species at 
this time. Accordingly, NMFS is now issuing a proposed rule to list 
this ESU as threatened under the ESA.

DATES: A public hearing on this proposal will be held on March 15, 
2000, from 6:30 p.m.-9:00 p.m. Requests for additional public hearings 
must be received by March 27, 2000. Comments on this proposal must be 
received at the appropriate address or fax number (See ADDRESSES), no 
later than 5 p.m. pacific standard time, on April 11, 2000. Comments 
will not be accepted if submitted via e-mail or Internet.

ADDRESSES: The public hearing will be held at the Eureka Inn, 518 
Seventh St., Eureka, California. Comments on this proposed rule and 
requests for additional public hearings or reference materials should 
be sent to the Chief, Protected Resources Division, NMFS, Southwest 
Region, 401 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. 
Comments may also be sent via facsimile (fax) to 562-980-4027.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, 562-980-4021, or Chris 
Mobley, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related to West Coast Steelhead

    The history of petitions NMFS has received regarding west coast 
steelhead is summarized in a final rule and notice of determination for 
five steelhead ESUs (Lower Columbia River; Central Valley, California; 
Oregon Coast; Klamath Mountains Province; and Northern California ESUs) 
that was published on March 19, 1998 (63 FR 13347). 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, 
Oregon, Idaho, and California, and convened 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) to conduct a coast-
wide status review for west coast steelhead (Busby et al., 1996).
    Based on the results of the BRT's status review, an analysis of 
Federal, state, and local conservation measures, and other information 
which NMFS determined constituted the best scientific and commercial 
data available, 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, 
including the Northern California ESU, 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 and endangered under the ESA (62 FR 43937, August 18, 
1997). In a separate document published on the same day, NMFS 
determined substantial scientific disagreement remained for five 
proposed ESUs, including the Northern California steelhead ESU (62 FR 
43974, August 18, 1997). In accordance with section 4(b)(6)(B)(i) of 
the ESA, NMFS deferred its decision on these five steelhead ESUs for 6 
months for the purpose of soliciting additional data. During this 6-
month period of deferral, NMFS received new scientific information 
regarding the status of these proposed steelhead ESUs. This new 
information was evaluated by NMFS' BRT which prepared both an updated 
status review for these five ESUs [Memorandum to William Stelle and 
William Hogarth from M. Schiewe, December 18, 1997, Status of Deferred 
and Candidate ESUs of West Coast Steelhead (NMFS, 1997a), and a review 
of the associated hatchery populations [Memorandum to William Stelle 
and William Hogarth from Michael Schiewe, January 13, 1998, Status 
Review Update for Deferred ESUs of West Coast Steelhead: Hatchery 
Populations (NMFS, 1998a).
    Based on a review of the updated scientific information for these 
ESUs, as well as a review and evaluation of Federal, State, and local 
conservation measures reducing the threats to these ESUs, NMFS issued a 
final rule (63 FR 13347, March 19, 1998) listing two ESUs as threatened 
(Lower Columbia River and Central Valley California), and a notice of 
determination that three ESUs (Oregon Coast, Klamath Mountains 
Province, and Northern California) did not warrant listing. NMFS' 
determination that these three ESUs did not warrant listing was based 
on the best available scientific and commercial data, which indicated 
these ESUs were at a lower risk of extinction than at the time of the 
proposed listing determination. Even though the risks confronting these 
ESUs had been reduced to a point at which listing was not warranted, 
NMFS still expressed concerns about the status of these three ESUs in 
the notice of determination,

[[Page 6961]]

and therefore, identified them as candidate species which the agency 
would continue to monitor.

Rationale for Reconsideration of Northern California ESU

    NMFS's March 19, 1998 (63 FR 13347), decision not to list the 
Northern California steelhead ESU was based largely on a determination 
that sufficient Federal and state conservation measures were in place 
to reduce threats to the ESU such that the proposed threatened listing 
was unnecessary. The Federal and state conservation measures upon which 
NMFS based this determination included: (1) implementation of a March 
11, 1998, Memorandum of Agreement (MOA) between NMFS and the State of 
California (NMFS/California MOA, 1998), with particular importance 
given to implementation of those provisions in the MOA which were 
intended to improve non-Federal forest land protections in the ESU (81 
percent of land ownership is non-Federal land); (2) implementation of 
more restrictive in-river harvest regulations by California which were 
intended to reduce mortality and increase the viability of naturally 
reproducing steelhead populations; and (3) improved protections to 
habitat and naturally reproducing steelhead from expanded habitat 
protection and restoration efforts, improvements in the management of 
hatchery steelhead stocks, and expanded population monitoring.
    At the time of its decision not to list the Northern California 
ESU, NMFS considered the protection and restoration of freshwater 
spawning, rearing, and migratory habitat on non-Federal lands to be 
essential for the long-term survival and recovery of this ESU because 
non-Federal lands represented such a large portion of the available 
habitat (81 percent) (63 FR 13347, March 19, 1998). Because of NMFS' 
concerns regarding the preponderance of private timber lands and timber 
harvest in the Northern California ESU, the NMFS/California MOA 
contained several provisions calling for the review and revision of 
California's forest practice rules (FPRs), and a review of their 
implementation and enforcement by January 1, 2000. NMFS considered full 
implementation of these critical provisions within the specified time 
frame to be essential for achieving properly functioning habitat 
conditions for steelhead in this ESU.
    In accordance with the NMFS/California MOA, a scientific review 
panel was established by the state to review the California FPRs, 
including their implementation and enforcement. The scientific review 
panel completed its review and provided the State's Board of Forestry 
with its findings and recommendations in June 1999. In its findings, 
the review panel concluded that California's FPRs, including their 
implementation through the existing timber harvest plan process, do not 
ensure protection of anadromous salmonid habitat and populations. To 
address these shortcomings, and as specified in the NMFS/California 
MOA, the California Resources Agency and CalEPA jointly presented the 
Board of Forestry with a proposed rule change package in July 1999. 
Following several months of public review, the Board of Forestry took 
no action on the package in October 1999, thereby precluding any 
possibility of implementing improvements in California's FPRs by 
January 1, 2000, as the State committed to do in the NMFS/California 
MOA.
    Although NMFS' March 19, 1998, decision not to list the Northern 
California ESU concluded that improvements in steelhead harvest and 
hatchery management would provide immediate conservation benefits to 
this ESU, an essential component of the decision was based on NMFS' 
expectation that changes in the State's FPRs would be implemented by 
January 1, 2000. Because these critical conservation measures are not 
being implemented by the State of California and, therefore, are not 
reducing threats to this ESU that were anticipated at the time of its 
March 19, 1998, decision not to list the ESU, NMFS determined that a 
formal reconsideration of the status of this ESU was warranted 
(December 3, 1999, Memorandum from Rodney R. McInnis and William 
Stelle, Jr. to Penelope D. Dalton (NMFS, 1999).

Steelhead Life History and Background

    Biological information for west coast steelhead (Oncorhynchus 
mykiss) and the Northern California ESU in particular, can be found in 
steelhead status assessments conducted by NMFS (Busby et al., 1996; 
NMFS, 1997a; NMFS, 2000) and in previous Federal Register documents (61 
FR 41541, August 9, 1996; 63 FR 13347, March 19, 1998). A summary of 
steelhead life history follows.
    O. mykiss exhibits one of the most complex suites of life history 
traits of any salmonid species. Individuals may exhibit anadromy 
(meaning they migrate as juveniles from fresh water to the ocean, and 
then return to spawn in fresh water) or freshwater residency (meaning 
they reside their entire life in fresh water). Resident forms are 
usually referred to as ``rainbow'' or ``redband'' trout, while 
anadromous life forms are termed ``steelhead.'' Few detailed studies 
have been conducted regarding the relationship between resident and 
anadromous O. mykiss, and as a result, the relationship between these 
two life forms is poorly understood. The scientific name for the 
biological species that includes both steelhead and rainbow trout has 
been changed from Salmo gairdneri to O. mykiss. This change reflects 
the premise that all trouts from western North America share a common 
lineage with Pacific salmon.
    Steelhead typically migrate to marine waters after spending 2 years 
in fresh water. They then reside in marine waters for typically 2 or 3 
years prior to returning to their natal stream to spawn as 4- or 5-
year-olds. Unlike other Pacific salmon, steelhead are iteroparous, 
meaning they are capable of spawning more than once before they die. 
However, it is rare for steelhead to spawn more than twice before 
dying; most that do so are females. Steelhead adults typically spawn 
between December and June (Bell, 1990; Busby et al., 1996). Depending 
on water temperature, steelhead eggs may incubate in ``redds'' (nesting 
gravels) for 1.5 to 4 months before hatching as ``alevins'' (a larval 
life stage dependent on food stored in a yolk sac). Following yolk sac 
absorption, young juveniles or ``fry'' emerge from the gravel and begin 
actively feeding. Juveniles rear in fresh water from 1 to 4 years, then 
migrate to the ocean as ``smolts.''
    Biologically, steelhead can be divided into two reproductive 
ecotypes, based on their state of sexual maturity at the time of river 
entry and the duration of their spawning migration. These two ecotypes 
are termed ``stream maturing'' and ``ocean maturing.'' Stream maturing 
steelhead enter fresh water in a sexually immature condition and 
require several months to mature and spawn. Ocean maturing steelhead 
enter fresh water with well developed gonads and spawn shortly after 
river entry. These two reproductive ecotypes are more commonly referred 
to by their season of freshwater entry (i.e., summer (stream maturing) 
and winter steelhead (ocean maturing)). The Northern California ESU 
contains populations of both winter and summer steelhead.
    Two major genetic groups or ``subspecies'' of steelhead occur on 
the west coast of the United States: a coastal group and an inland 
group, separated in the Fraser and Columbia River Basins approximately 
by the Cascade crest (Huzyk & Tsuyuki, 1974; Allendorf, 1975; Utter & 
Allendorf, 1977; Okazaki, 1984; Parkinson, 1984; Schreck et al.,

[[Page 6962]]

1986; Reisenbichler et al., 1992). Behnke (1992) proposed classifying 
the coastal subspecies as O. m. irideus and the inland subspecies as O. 
m. gairdneri. These genetic groupings apply to both anadromous and 
nonanadromous forms of O. mykiss. Both coastal and inland steelhead 
occur in Washington and Oregon. California is thought to have only 
coastal steelhead while Idaho has only inland steelhead. The Northern 
California steelhead ESU is part of the coastal grouping.
    Historically, steelhead were distributed throughout the North 
Pacific Ocean from the Kamchatka Peninsula in Asia to the northern Baja 
Peninsula. Presently, the species distribution extends from the 
Kamchatka Peninsula, east and south along the Pacific coast of North 
America, to at least Malibu Creek in southern California. There are 
infrequent anecdotal reports of steelhead occurring as far south as the 
Santa Margarita River in San Diego County (McEwan & Jackson, 1996). In 
1999, juvenile O. mykiss suspected of being the progeny of steelhead 
were reported from San Mateo Creek which is in northernmost San Diego 
County, just north of the Santa Margarita River. Historically, 
steelhead likely inhabited most coastal streams in Washington, Oregon, 
and California as well as many inland streams in these states and 
Idaho. However, during this century, over 23 indigenous, naturally 
reproducing stocks of steelhead are believed to have been extirpated, 
and many more are thought to be in decline in numerous coastal and 
inland streams in Washington, Oregon, Idaho, and California. Forty-
three stocks have been identified by Nehlsen et al (1991) as being at 
moderate or high risk of extinction.

Consideration as a ``Species'' Under the ESA

    To qualify for listing as a threatened or endangered species, the 
identified populations of steelhead must be considered ``species'' 
under the ESA. The ESA defines ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.'' NMFS published a policy (56 FR 58612, November 20, 1991) 
describing how the agency will apply the ESA definition of ``species'' 
to anadromous salmonid species. This policy provides that a salmonid 
population will be considered distinct, and hence a species, under the 
ESA, if it represents an ESU of the biological species. A population 
must satisfy two criteria to be considered an ESU: (1) It must be 
reproductively isolated from other conspecific population units; 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 be strong enough to permit 
evolutionarily important differences to accrue in different population 
units. The second criterion is met if the population contributes 
substantially to the ecological/genetic diversity of the species as a 
whole. Guidance on the application of this policy is contained in 
Waples (1991), a NOAA Technical Memorandum entitled ``Definition of 
`Species' Under the Endangered Species Act: Application to Pacific 
Salmon,'' which are available upon request (see ADDRESSES). The 
genetic, ecological, and life history characteristics, as well as 
human-induced genetic changes that NMFS assessed to identify the number 
and geographic extent of steelhead ESUs on the west coast, including 
the Northern California steelhead ESU, are discussed in detail in Busby 
et al. (1996) and in the August 9, 1996, proposed listing determination 
for west coast steelhead (61 FR 41541).

Northern California Steelhead ESU Determination

    The Northern California steelhead ESU has been described in 
previous Federal Register documents (61 FR 41541, 62 FR 43937 and 63 FR 
13347) based on analyses conducted by NMFS and summarized in the 
following documents: ``Status Review for West Coast Steelhead from 
Washington, Idaho, Oregon, and California'' (Busby et al., 1996) and 
``Status Review Update for West Coast Steelhead from Washington, Idaho, 
Oregon, and California'' (NMFS, 1997). The relationship between 
hatchery steelhead populations and naturally spawned steelhead within 
this ESU was also assessed in: ``Status Review Update Deferred ESUs of 
West Coast Steelhead: Hatchery Populations'' (NMFS, 1998a). Copies of 
these NMFS documents are available upon request (see ADDRESSES). NMFS 
has received no new scientific information indicating that a change in 
the Northern California ESU definition is warranted.
    This Northern California coastal steelhead ESU occupies river 
basins from Redwood Creek in Humboldt County, CA to the Gualala River, 
inclusive, in Mendocino County, CA. Dominant vegetation along the coast 
is redwood forest, while some interior basins are much drier than 
surrounding areas and are characterized by many endemic species. This 
area includes the extreme southern end of the contiguous portion of the 
Coast Range Ecoregion (Omernick, 1987). Elevated stream temperatures 
(greater than 20 deg. C) are a factor in some of the larger river 
basins, but not to the extent that they are in river basins farther 
south. Precipitation is generally higher in this geographic area than 
in regions to the south, averaging 100-200 cm of rainfall annually 
(Donley et al., 1979). With the exception of major river basins such as 
the Eel, most rivers in this region have peak flows of short duration. 
Strong and consistent coastal upwelling begins at about Cape Blanco and 
continues south into central California, resulting in a relatively 
productive nearshore marine environment.
    The Northern California ESU includes both winter and summer 
steelhead, including what is presently considered to be the 
southernmost population of summer steelhead, in the Middle Fork Eel 
River. Half-pounder juveniles also occur in this geographic area, 
specifically in the Mad and Eel Rivers. Snyder (1925) first described 
the half-pounder from the Eel River; however, Cramer et al. (1995) 
suggested that adults with the half-pounder juvenile life history may 
not spawn south of the Klamath River Basin. As with the Rogue and 
Klamath Rivers which are located in the Klamath Mountains Province ESU, 
some of the larger rivers in this ESU have migrating steelhead year-
round, and seasonal runs have been named. River entry ranges from 
August through June and spawning from December through April, with peak 
spawning in January in the larger basins and in late February and March 
in the smaller coastal basins.
    Based on the review of steelhead hatchery programs in this ESU 
(NMFS, 1998a), NMFS' steelhead BRT concluded that the following 
steelhead hatchery stocks are part of this ESU because they were 
established from indigenous natural populations and there is limited 
impact from the inclusion of out-of-basin fish in the broodstock: Van 
Arsdale Fisheries Station stock (Eel River), the Yager Creek stock (Eel 
River tributary), Ten Mile River stock, and North Fork Gualala River 
stock. The BRT concluded that the Mad River hatchery summer steelhead 
stock is not part of the ESU based on its origin from out-of-basin 
steelhead populations combined with the mixing of Eel River summer 
steelhead in the broodstock. Rearing of this stock was terminated at 
the Mad River hatchery in 1996. The majority of the BRT concluded that 
the Mad River hatchery winter steelhead stock is not part of this ESU 
although a minority of

[[Page 6963]]

the BRT was uncertain regarding its relationship to the naturally 
spawning population. This stock was founded from South Fork Eel River 
steelhead (within the ESU, but out of the Mad River basin) and some 
local Mad River steelhead.

Status of Northern California Steelhead ESU

    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. In its previous status reviews for west coast 
salmon and steelhead, 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.
    Based on these factors and the best available scientific 
information, NMFS' BRT first reviewed the status of the Northern 
California ESU in its original coast-wide status review for steelhead 
(Busby et al., 1996). The BRT concluded that the Northern California 
steelhead ESU was likely to become endangered in the foreseeable 
future. Population abundance was determined to be very low relative to 
historical estimates (1930's dam counts), and recent trends were 
downward in stocks for which data were available with the exception of 
two summer steelhead stocks. Summer steelhead abundance in particular 
was very low in this ESU. The BRT expressed particular concern 
regarding sedimentation resulting in part from poor land management 
practices and channel restructuring due to floods. The abundance of the 
pikeminnow as a predator in the Eel River was also identified as a 
significant concern. For the Mad River, in particular, the BRT was 
concerned about the influence of hatchery stocks both in terms of 
genetic introgression and the potential for ecological interactions 
between introduced stocks and native stocks.
    The status of the Northern California ESU was reassessed by NMFS' 
BRT in an updated status review following the 6-month period of 
deferral because of scientific disagreements (NMFS, 1997a). Based on 
this updated status review, NMFS' BRT once again concluded that 
Northern California steelhead ESU was likely to become endangered in 
the foreseeable future. The BRT reported that there was very limited 
abundance data available for this ESU, particularly for winter-run 
steelhead. The most complete data set available in this ESU is a time 
series of winter steelhead dam counts on the Eel River at Cape Horn 
Dam. The updated abundance data (through 1997) showed moderately 
declining long-term and short-term trends in abundance, and the vast 
majority of these fish were believed to be of hatchery origin. These 
data show a strong decline in abundance prior to 1970, but no 
significant trend thereafter. Additional winter steelhead data are 
available for Sweasy Dam on the Mad River which show a significant 
decline, but that data set ends in 1963. For the seven populations 
where recent trend data were available, the only runs showing recent 
increases in abundance in the ESU were the relatively small populations 
of summer steelhead in the Mad River which has had high hatchery 
production, and winter steelhead in Prairie Creek where the increase 
may be due to increased monitoring or mitigation efforts.
    As in its original assessment, the BRT continued to be concerned 
about the risks associated with interactions between naturally spawning 
populations and hatchery steelhead in this ESU. Of particular concern 
to the BRT was the potentially deleterious impact to wild steelhead 
from past hatchery practices at the Mad River hatchery, primarily from 
transfers of non-indigenous Mad River hatchery fish to other streams in 
the ESU and the production of non-indigenous summer steelhead. These 
potentially deleterious hatchery practices for summer steelhead ended 
in 1996.
    Habitat degradation and other factors were also of concern to the 
BRT in its reassessment of the long-term risks to this ESU. Specific 
factors which the BRT identified included dams on the upper Eel and Mad 
Rivers, the likely existence of minor blockages throughout the ESU, 
continuing impacts of catastrophic flooding on the 1960s, and 
reductions in riparian and instream habitat and increased sedimentation 
from timber harvest activities. The BRT also cited poaching of summer 
steelhead and predation from pikeminnow in the Eel River as factors for 
concern. NMFS' supplemental review of factors affecting west coast 
steelhead also identified water diversion and extraction, agriculture, 
and mining as factors affecting habitat conditions for steelhead in 
this ESU (NMFS, 1996).
    In conjunction with this reconsideration of the Northern California 
steelhead ESU, NMFS' Southwest Fisheries Science Center (SWFSC) 
recently completed another updated status review for this ESU (January 
2000 Memorandum from Pete Adams, Southwest Fisheries Science Center 
(SWFSC) to Rodney R. McInnis, Regional Administrator, Southwest Region 
(NMFS, 2000)). Based on a review of updated abundance and trend 
information that was available for this ESU, the SWFSC concluded that 
the current status of the ESU has not changed significantly since it 
was last evaluated by NMFS' BRT in December 1997 (NMFS, 1997a). Updated 
abundance and trend data show small increases for winter and summer 
steelhead in the Eel River, but current abundance is well below 
estimates in the 1980s and even further reduced from levels in the 
1960s. Redwood Creek summer steelhead abundance remains very low. There 
are no new data suggesting substantial increases or decreases in 
populations since the last updated status review was completed. The Eel 
River winter and summer steelhead populations, which represent the best 
available data set for this ESU, are still severely reduced from pre-
1960's levels.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 
CFR part 424) set forth procedures for listing species. The Secretary 
of Commerce (Secretary) must determine, through the regulatory process, 
if a species is endangered or threatened based upon any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or education 
purposes; (3) disease or predation; (4) inadequacy of existing 
regulatory mechanisms; or (5) other natural or human-made factors 
affecting its continued existence.
    NMFS has prepared a report that summarizes the factors leading to 
the decline of steelhead on the west coast entitled: ``Factors for 
Decline: A supplement to the notice of determination for west coast 
steelhead''

[[Page 6964]]

(NMFS 1996). This report, available upon request (see ADDRESSES 
section), 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 causes for the decline of steelhead on the 
west coast. NMFS (1996) identified several factors that were considered 
to have contributed to its decline of the Northern California steelhead 
ESU including: impacts from historic flooding (principally in 1964), 
predation, water diversions and extraction, minor habitat blockages, 
poaching, timber harvest, agriculture, and mining. NMFS's steelhead BRT 
also identified the potentially adverse impacts of the release of non-
indigenous hatchery-produced steelhead in this ESU as an important 
factor, and expressed concerns regarding the lack of reliable abundance 
and trend data for assessing the status of steelhead in this ESU (NMFS, 
1997a). Finally, NMFS was also concerned about the impacts of 
recreational angling because of the depressed status of steelhead 
populations and the uncertainty regarding the status of this ESU (March 
11, 1998, Memorandum from William Hogarth to Rolland Schmitten (NMFS, 
1998e)). The following discussion briefly summarizes findings regarding 
factors for decline across the range of west coast steelhead, including 
the Northern California ESU.

The Present or Threatened Destruction, Modification, or Curtailment of 
Steelhead Habitat or Range

    Steelhead on the West Coast of the United States have experienced 
declines in abundance in the past several decades as a result of 
natural and human factors. Forestry, agriculture, mining, and 
urbanization have degraded, simplified, and fragmented habitat. Water 
diversions for agriculture, flood control, domestic, and hydropower 
purposes have greatly reduced or eliminated historically accessible 
habitat. Among other factors, NMFS (1996) specifically identified 
timber harvest, agriculture, mining, habitat blockages, and water 
diversions as important factors for the decline of steelhead in the 
Northern California ESU. NMFS (1998a) discussed these factors in more 
detail. Studies estimate that during the last 200 years, the lower 48 
states have lost approximately 53 percent of all wetlands and the 
majority of the rest are severely degraded (Dahl 1990; Tiner 1991). 
Washington and Oregon's wetlands are estimated to have diminished by 
one-third, while California has experienced a 91-percent loss of its 
wetland habitat (Dahl, 1990; Jensen et al., 1990; Barbour et al., 1991; 
Reynolds et al., 1993). Loss of habitat complexity has also contributed 
to the decline of steelhead. For example, in national forests in 
Washington, there has been a 58-percent reduction in large, deep pools 
due to sedimentation and loss of pool-forming structures such as 
boulders and large wood (FEMAT, 1993). Similarly, in Oregon, the 
abundance of large, deep pools on private coastal lands has decreased 
by as much as 80 percent (FEMAT, 1993). Sedimentation from land use 
activities is recognized as a primary cause of habitat degradation in 
the range of west coast steelhead, including the northern California 
steelhead ESU.

Overutilization for Commercial, Recreational, Scientific, or Education 
Purposes

    Steelhead are not generally targeted in commercial fisheries. High 
seas driftnet fisheries in the past may have contributed slightly to a 
decline of this species in local areas, but could not be solely 
responsible for the large declines in abundance observed along most of 
the Pacific coast over the past several decades.
    Steelhead support an important recreational fishery throughout most 
of their range. During periods of decreased habitat availability (e.g., 
drought conditions or summer low flows when fish are concentrated), the 
impacts of recreational fishing on native anadromous stocks may be 
heightened.
    Although harvest of steelhead in the Northern California ESU was 
not originally identified as a major factor for decline (NMFS 1996), 
NMFS is concerned about the impacts of recreational angling because of 
depressed steelhead population levels and the lack of reliable 
abundance and trend data for accurately assessing the status of 
individual populations and the ESU as a whole. Because of NMFS' 
concerns about recreational angling impacts to naturally reproduced 
steelhead populations in coastal watersheds in California north of the 
Russian River, the California Department of Fish and Game (DFG) 
proposed and the California Fish and Game Commission adopted new 
steelhead angling regulations in 1998 for all watersheds in the 
Northern California ESU. These new regulations prohibited retention of 
naturally spawned adult steelhead; eliminated fishing for juvenile 
steelhead in tributary streams; minimized impacts on juvenile steelhead 
in mainstem rearing and migratory areas through a combination of gear 
restrictions and delayed seasonal openings; prohibited retention of 
summer steelhead during their upstream migration and prohibited fishing 
in their summer holding areas; and provided for directed harvest and 
retention of hatchery-produced steelhead which are fully marked state-
wide. NMFS (1998b,c,d) analyzed these new regulations and concluded 
that they would substantially reduce fishing effort and reduce 
mortality to that associated with catch-and-release of naturally 
produced steelhead in the Northern California ESU. These regulations 
remain in effect and are enforced by DFG.

Disease or Predation

    Infectious disease is one of many factors that can influence adult 
and juvenile steelhead survival. Steelhead are exposed to numerous 
bacterial, protozoan, viral, and parasitic organisms in spawning and 
rearing areas, hatcheries, migratory routes, and the marine 
environments. Specific diseases such as bacterial kidney disease, 
ceratomyxosis, columnaris, furunculosis, infectious hematopoietic 
necrosis virus, redmouth and black spot disease, erythrocytic inclusion 
body syndrome, and whirling disease, among others, are present and are 
known to affect steelhead and salmon (Rucker et al., 1953; Wood, 1979; 
Leek, 1987; Foott et al., 1994; Gould and Wedemeyer, undated). Very 
little current or historical information exists to quantify changes in 
infection levels and mortality rates attributable to these diseases for 
steelhead. However, studies have shown that naturally spawned fish tend 
to be less susceptible to pathogens than hatchery-reared fish (Buchanon 
et al., 1983; Sanders et al., 1992).
    Introductions of non-native species and habitat modifications have 
resulted in increased predator populations in numerous river systems, 
thereby increasing the level of predation experienced by salmonids. In 
the Northern California steelhead ESU, predation from Sacramento 
pikeminnow that were released into the Eel River is a major problem. 
Predation from pikeminnow is discussed in more detail in NMFS (1996). 
DFG is engaged in an aggressive campaign to control pikeminnow 
predation in the Eel River. Ongoing efforts to implement improved 
downstream flow releases from the Potter Valley hydroelectric project 
in the upper Eel River may assist the State in its efforts to control 
pikeminnow predation.

[[Page 6965]]

    Predation by marine mammals is also of concern in some areas 
experiencing dwindling steelhead run sizes. NMFS (1997b) reviewed the 
available literature concerning the impacts of California sea lion and 
Pacific harbor seal predation on west coast anadromous salmonids, and 
concluded that there was insufficient data in all but one instance 
(i.e., Ballard Locks in Puget Sound) to conclude that pinnipeds were 
having a significant impact on wild salmon or steelhead populations. 
For this reason, and because of the high likelihood that impacts might 
be occurring, the study concluded that substantial additional research 
was needed to address this issue further. Based on this research 
recommendation, NMFS has initiated several field studies in coastal 
watersheds on the west coast designed to assess the magnitude of 
pinniped predation on individual salmon or steelhead populations. In 
California, these studies are being conducted in the lower Klamath 
River, Scott Creek, and the San Lorenzo River.

Inadequacy of Existing Regulatory Mechanisms

1. Federal Land and Water Management
    The Northwest Forest Plan (NFP) is a Federal land management policy 
with important benefits for west coast steelhead. While the NFP covers 
a very large area, the overall effectiveness of the NFP in conserving 
steelhead is limited by the extent of Federal lands and the fact that 
Federal land ownership is not uniformly distributed in watersheds that 
comprise individual ESUs. The extent and distribution of Federal lands 
limits the ability of the NFP to achieve its aquatic habitat 
restoration objectives at watershed and river basin scales, and 
highlights the importance of complementary salmon habitat conservation 
measures on non-federal lands within the subject ESUs.
    Federal land ownership and management in the Northern California 
steelhead ESU is very limited; representing only 19 percent of the 
total land area. Federal lands (i.e., Redwood National Park, portions 
of Mendocino National Forest, and the Kings Range National Conservation 
Area) that do occur in this ESU are also highly fragmented, unlike some 
other steelhead ESUs (e.g., Klamath Mountains Province and Snake River 
Basin). Although Federal lands are limited in extent and fragmented in 
this ESU, NMFS believes that implementation of the NWFP on Mendocino 
National Forest lands (upper reaches of Eel and Mad Rivers) and 
implementation of other habitat protections in Redwood National Park 
(lower reach of Redwood Creek) will provide some limited benefits to 
steelhead. Nevertheless, long-term habitat protection and the key to 
achieving properly functioning habitat conditions in this ESU continues 
to be improvement in non-Federal land management, particularly those 
lands used for timber harvest.
    Because listed coho salmon occur on Federal lands in the Northern 
California steelhead ESU, NMFS routinely engages the U.S. Forest 
Service, Bureau of Land Management, and Redwood Creek National Park in 
ESA section 7 consultations to ensure that ongoing or proposed 
activities do not jeopardize coho salmon or adversely modify its 
critical habitat. Through this section 7 consultation process, NMFS 
ensures that the NFP and other protective measures are fully 
implemented on Federal lands that occur in this ESU. These measures are 
also expected to benefit steelhead.
    The Pacific Gas and Electric Company's (PG&E) Potter Valley 
hydroelectric project is a major diverter of water from the mainstem 
Eel River, which is located in the Northern California ESU. This water 
is diverted into the Russian River basin to generate hydroelectric 
power and provide water for agriculture and urban uses. Pursuant to a 
Federal Energy Regulatory Commission (FERC) licensing requirement, PG&E 
implemented a 10-year monitoring program in the Eel River for the 
purpose of developing recommendations for modifying the flow release 
schedule and other project facilities and/or operations necessary to 
protect and maintain fishery resources, including steelhead. This study 
was completed in 1996, as was construction of a $14 million dollar fish 
screen facility at the Van Arsdale Dam diversion on the Eel River. 
Based on the results of the monitoring study, PG&E has developed a 
proposal for project operations that, along with several others, are 
the subject of National Environmental Policy Act review for ongoing 
FERC license amendment proceedings. FERC is currently conducting 
environmental review of this proposal with input from NMFS, DFG and the 
U.S. Fish & Wildlife Service (USFWS). Implementation of an alternative 
that provides additional instream flows in the Eel River, and provides 
for Sacramento pikeminnow control, in conjunction with the new fish 
screening facility, would be expected to improve habitat quality and 
benefit steelhead in this ESU by increasing survival.
    On March 1, 1999, the Pacific Lumber Company, the State of 
California, the Department of the Interior, and the Department of 
Commerce entered into a complex land purchase, land exchange and 
Habitat Conservation Plan (PALCO HCP) transaction covering the 
Headwaters Forest, Elk Head Springs Forest and the remainder of Pacific 
Lumber Company's land holdings in Humboldt County California. The 
Federal and state governments acquired approximately 10,000 acres of 
conifer and hardwood forest, over 3,000 acres of which is ancient 
redwoods, some of which are over 1,000 years old. This land is now 
subject to Federal and state control under conservation easements.
    The PALCO HCP, which has a 50-year term, covers 211,000 acres of 
non-Federal land timber lands in several drainages that occur in the 
northern portion of Northern California steelhead ESU. These include 
portions of several tributaries to Humboldt Bay (Elk River, Jacoby 
Creek, Freshwater Creek, and Salmon Creek), and portions of the Van 
Duzen River (including Yager Creek), Eel River, Bear River, Salt River, 
and Mattole River watersheds. The PALCO HCP affects the following 
federally listed and candidate anadromous salmonid ESUs: (1)Southern 
Oregon/Northern California coho salmon (threatened), (2) Northern 
California steelhead (candidate), and (3) California Coastal Chinook 
salmon (threatened). The HCP also covers numerous terrestrial species 
listed under the ESA and California Endangered Species Act.
    The PALCO HCP's Operating Conservation Program (Program) contains 
the conservation and management measures and prescriptions necessary to 
minimize, mitigate, and monitor the impacts of take of the covered 
species resulting from timber operations. The Program incorporates 
specific conservation plans for all terrestrial and aquatic species 
covered under the HCP, along with measures to conserve habitat 
diversity and structural components.
    An Aquatics Conservation Plan (ACP) is an integral part of the 
overall Program. The goal of the ACP is to maintain or achieve over 
time properly functioning aquatic habitat conditions, which are 
essential to the long-term survival of salmonids. The reduction in land 
management impacts and habitat improvement that will be realized 
through implementation of the ACP will also benefit other species.
    Monitoring for implementation, effectiveness, and trends is a 
critical component of the Program. The monitoring component includes an 
independent third-party monitor to determine if the provisions of the 
aquatics plan are effective and whether

[[Page 6966]]

the aquatic habitat is responding as expected. There is also a 
provision for adaptive management if the results are not as predicted.
    NMFS believes that the conservation measures contained in the HCP 
will protect and provide for long-term conservation of steelhead 
populations occurring on PALCO lands in the Northern California ESU.
2. Land Management
    The California Department of Forestry and Fire Protection (CDF) 
enforces California's forest practice rules (FPRs) on non-Federal 
(private and State managed forests) lands. These rules are promulgated 
through the State Board of Forestry (BOF). Timber harvest activities 
have been documented to result in adverse effects on streams and stream 
side zones including the loss of large woody debris, increased 
sedimentation, loss of riparian vegetation, and the loss of habitat 
complexity and connectivity (NMFS 1996).
    The vast majority of freshwater habitat in the Northern California 
steelhead ESU (approximately 81 percent of total land) is on non-
Federal lands, with the majority being privately owned. For the major 
river basins in this ESU (i.e. Redwood Creek, Mad River, Eel River, 
Mattole River, Ten Mile River, Noyo River, Big River, Albion River, 
Navarro River, Garcia River, and Gualala River), private forest lands 
average about 75 percent of the total acreage, with a range of 42 
percent (Eel River) to 94 percent (Gualala River).
    NMFS reviewed the California FPRs as part of its listing 
determination for the Northern California steelhead ESU (53 FR 13347; 
March 19, 1998). That review concluded that although the FPRs mandate 
protection of sensitive resources such as anadromous salmonids, the 
FPRs and their implementation and enforcement do not accomplish this 
objective. Specific problems with the FPRs include: (1) protective 
provisions that are not supported by scientific literature; (2) 
provisions that are scientifically inadequate to protect salmonids 
including steelhead; (3) inadequate and ineffective cumulative effects 
analyses; (4) dependence upon registered professional foresters that 
may not possess the necessary level of multi-disciplinary technical 
expertise to develop timber harvest plans (THPs) protective of 
salmonids; (5) dependence by CDF on other State agencies to review and 
comment on THPs; (6) failure of CDF to incorporate recommendations from 
other agencies; and (7) inadequate enforcement due to staffing 
limitations. NMFS further concluded that until a comprehensive 
scientific peer review process was implemented and appropriate changes 
to the FPRs and the THP approval process were made, properly 
functioning habitat conditions would not be ensured on non-Federal 
lands in the Northern California steelhead ESU.
    The NMFS/California MOA which was entered into in March 1998 to 
ensure the conservation of north coast steelhead in California 
contained specific provisions to address NMFS' concerns over the 
California FPRs. In the NMFS/California MOA, the State committed to: 
(1) conduct a scientific review of the State's FPRs, including their 
implementation and enforcement; (2) make appropriate changes in 
implementation and enforcement of the FPRs based on this review; and 
(3) make recommendations to the BOF for changes in the FPRs if they 
were found to be necessary for the conservation of Northern California 
coastal anadromous salmonids. Full implementation of these provisions 
in the NMFS/California MOA, including implementation of changes in the 
FPRs by January 1, 2000, was a critical factor in NMFS's decision to 
not list this ESU.
    In accordance with these provisions, a subcommittee of the state's 
scientific review panel for its Watershed Protection Program was 
appointed to undertake an independent review of the FPRs. The 
subcommittee's review and recommendations were completed and presented 
to the BOF in June 1999. The scientific review panel concluded that 
California's FPRs, including their implementation through the timber 
harvest plan process, do not ensure protection of anadromous salmonid 
populations. Based in part on the scientific review panel report and 
findings in July 1999, the California Resources Agency and CalEPA 
jointly presented the BOF with a proposed rule change package designed 
to address shortcomings in the state's existing FPRs. The BOF 
circulated the proposed rule package for public review, held several 
meetings and two public hearings on the proposals from July until 
October 1999, but failed to take action to adopt any of the proposed 
FPR changes.
    As a result of the listing of coho salmon in coastal watersheds in 
northern California, the counties of Del Norte, Siskiyou, Trinity, 
Humboldt, and Mendocino developed and have implemented a multi-county, 
regional approach to assessing and improving county-controlled 
activities in order to enhance the quality and increase the quantity of 
salmonid habitat that is potentially affected by those county 
activities. NMFS and the State of California have contributed funding 
to this multi-county planning effort.
    This county-level conservation planning approach involves a 
thorough review of general plans, ordinances, procedures, practices, 
and policies developed and implemented at the county level. Through the 
assessment and evaluation of these county-controlled mechanisms, a 
process is being developed that will enable the counties to exert 
control at the local level over human activities that can adversely 
affect anadromous salmonid populations and habitat. This multi-county 
planning effort culminated in a Memorandum of Agreement (Multi-County 
MOA) which was signed by all five counties in late 1997. Under the 
terms of the Multi-County MOA, the counties agreed to embark on a 
cooperative planning and restoration effort; assess the adequacy of 
existing general plans, county policies and practices, zoning and other 
land use ordinances; review county management procedures that affect 
anadromous salmonid habitat in each county; recommend changes to 
specific county ordinances and/or practices as necessary; develop a 
watershed-based education and technical assistance/training program for 
local agencies and decision-makers that will foster better 
understanding of the linkages between land use and county maintenance 
practices and salmonid habitat; and seek to establish some form of 
regulatory recognition at the state and/or Federal level.
    This multi-county assessment is being used to document the 
effectiveness of existing regulations. Where the assessment identifies 
areas for improvement, the planning effort will develop alternative 
policies, ordinances and practices that are suitable for maintaining or 
enhancing anadromous salmonid habitat. The assessment will address the 
need to focus public works projects on sites that improve fisheries 
habitat. A watershed-based approach will be used, even where watersheds 
cross county boundaries, to ensure that enhancement efforts are 
complementary to natural ecosystem processes.
    The outcome of this county-level effort is expected to be a 
comprehensive and coordinated analysis of local land use regulations. 
Where it is found that development standards such as subdivision 
restrictions, zoning, and capital improvement programs may not 
adequately maintain or restore salmonid habitat, model ordinances will 
be developed for consideration by each of the participating counties. 
Conversely,

[[Page 6967]]

innovative approaches for land use (such as density modifications and 
standards that preserve habitat functions) developed by some counties 
will be presented as options for the other counties. This 
collaborative, regionally based planning effort is designed to be 
complementary with state and national salmonid recovery efforts. The 
planning process encourages public participation through direct contact 
with interested public agencies, landowners, community organizations, 
environmental groups, industry representatives, and others. The public 
process is being implemented through public hearings, meetings, scoping 
sessions, forums and other avenues.
    Agricultural activity has had multiple and often severe impacts on 
salmonid habitat. These include depletion of needed flows due to 
irrigation withdrawals; blocking of fish passage by diversion or other 
structures; destruction of riparian vegetation and bank stability by 
grazing or cultivation practices; and channelization resulting in loss 
of side-channel and wetland-related habitat (NMFS, 1996).
    Impacts from agricultural and grazing practices have not 
historically been closely regulated in California. This is an important 
concern to NMFS because a significant portion of the acreage in the 
Northern California ESU is comprised of farmland. For example, farmland 
constitutes approximately 25-30 percent of the total acreage of 
Humboldt and Mendocino counties, which in turn constitutes much of the 
Northern California ESU. Private lands, and public lands not 
administered by the Federal government, are now being addressed by the 
California Rangeland Water Quality Management Program (CRWQMP), which 
was adopted by the State Water Resources Control Board and CDF in 1995. 
The CRWQMP is a water quality improvement program based on the 
voluntary participation of landowners for compliance with state and 
federal non-point source pollution reduction requirements. The CRWQMP 
was initiated as a cooperative effort among the livestock industry, 
conservation organizations, and state and Federal agencies, to address 
the impacts of grazing and land use practices on water quality in 
streams that flow through private property. Through this program, 
private landowners will be able to maintain rangeland productivity and 
enhance landowners' abilities to manage these lands in a manner that 
maintains water quality standards necessary for the survival and 
recovery of listed salmonids.
    Between 1995-1998, rangeland plans were developed under the CRWQMP 
for more than 250,000 acres on the north coast, ranging from San 
Francisco to the Oregon border. The State plans to review the 
implementation status of these plans at intervals of 3,5 and 10 years, 
provided that sufficient resources are available. NMFS is encouraged by 
these ongoing efforts. Plans that are consistent with this guidance are 
likely to result in meeting state water quality standards, but the 
program is voluntary and it is uncertain to what extent their 
implementation will contribute to improved habitat conditions and 
riparian function.
    The USDA Natural Resources Conservation Service (NRCS), NMFS, 
USFWS, the U.S. Environmental Protection Agency (EPA), the California 
Association of Resource Conservation Districts (CARCD), and the State 
of California have recently developed a joint approach that is expected 
to encourage the voluntary use of improved conservation management 
practices for agriculture on private land. Recognizing that recovery of 
listed and other at-risk salmonid populations depends on the willing 
participation of private landowners, these agencies have the goal of 
providing an incentive to landowners to enhance the quality and 
quantity of habitat needed by species of concern. To accomplish this 
goal, the agencies have agreed to support cooperative approaches and 
consensus-building activities, foster communication among agencies and 
private landowners, share resources and information, and establish 
strong, effective working relationships that instill trust and promote 
sound stewardship.
    This agreement is the subject of a draft Memorandum of 
Understanding (MOU) among the partner agencies. Through the procedures 
described in the MOU, practices contained in the NRCS Field Office 
Technical Guides (FOTG) will undergo ESA section 7 review by NMFS and 
USFWS. For those practices that NMFS and USFWS determine are not likely 
to adversely affect listed species or critical habitat, the landowner 
should have confidence that those practices, if implemented in 
accordance with the FOTG standards and specifications, will not result 
in any additional permitting requirement or penalties under the ESA. 
The objective of this MOU is to encourage the adoption of protective 
land use practices on private lands, to provide some regulatory 
assurance for landowners, to improve habitat conditions for sensitive 
species, to continue sustainable economic production on private lands, 
to facilitate better coordination among the partner agencies, and to 
foster better awareness and support for conservation programs 
throughout the State.
    The next step in the NRCS MOU process will be to incorporate the 
specific interests of the State of California. The current draft MOU 
lacks language describing the roles and responsibilities of the State. 
The draft MOU is under review by the state and upon completion is 
expected to be formally signed by all parties.
3. Dredge, Fill, and In-water Construction Programs
    The Army Corps of Engineers (COE) regulates removal/fill activities 
under section 404 of the Clean Water Act (CWA), which requires that the 
COE not permit a discharge that would ``cause or contribute to 
significant degradation of the waters of the United States.'' One of 
the factors that must be considered in this determination is cumulative 
effects. However, the COE guidelines do not specify a methodology for 
assessing cumulative impacts or how much weight to assign them in 
decision-making. Furthermore, the COE does not have in place any 
process to address the additive effects of the continued development of 
waterfront, riverine, coastal, and wetland properties.
    The COE, state, and local governments have developed and 
implemented procedures reviewing, approving, and monitoring gravel 
mining activities in Del Norte and Humboldt counties which are 
authorized under a Letter of Permission (LOP) process. This process 
regulates gravel mining in a substantial portion of the Northern 
California ESU (including the Mad, Eel and Van Duzen Rivers) where 
listed coho salmon and chinook salmon populations also occur. These 
procedures are designed to provide substantially improved protection 
for anadromous salmonids and their habitats, including steelhead. 
Important elements of the process include: a prohibition on gravel 
mining in the active channel and on trenching except in limited 
instances, a restriction on gravel operations to the dry season, 
monitoring of channel cross sections to detect changes in channel 
morphology and habitat conditions, fisheries monitoring, and gravel 
mining on a sustained yield basis. An additional element of the process 
in Humboldt County is the participation of an independent scientific 
review committee, which makes annual recommendations on gravel 
extraction limits and site design features in order to minimize adverse 
impacts.

[[Page 6968]]

Additionally, any channel crossings must be designed to allow for fish 
passage. NMFS participated in the development of these procedures and 
has concluded, through section 7 consultation with the COE, that these 
procedures will not jeopardize the continued existence of coho salmon 
or steelhead. NMFS recently reinitiated formal consultation with the 
COE on the LOP process to address the final critical habitat 
designation for coho salmon and the recent listing of California 
Coastal chinook salmon as threatened.
    Section 1603 of the California Fish and Game Code requires that any 
person who proposes a project that will substantially divert or 
obstruct the natural flow or substantially change the bed, channel or 
river bank of any river, stream or lake, or use materials from a 
streambed, notify the DFG before beginning any work. The authorization 
for these activities under section 1603 is called a Lake or Streambed 
Alteration Agreement. Beginning May 1, 1999, the 1603 process was 
significantly modified to require a higher level of review by DFG that 
is in compliance with the California Environmental Quality Act (CEQA). 
Any proposed project that DFG determines may substantially adversely 
affect existing fish and wildlife resources will need to comply with 
the CEQA standard of mitigating project impacts to the level of 
insignificance. The new standard for project review has resulted in 
increasing the time needed for project approval from 2 weeks to 60-120 
days.
    Although the state has substantially improved the level of project 
review under the 1603 process to comply with the new CEQA standard, the 
state has not submitted the program to NMFS for review to determine 
whether it adequately protects anadromous salmonids. The state 
currently issues 1603 streambed alteration agreements to project 
applicants with the disclosure that the applicant may still need to 
obtain incidental take authorization from NMFS. In most cases, however, 
where a project proposes a stream or watercourse modification and 
listed species are present, a Clean Water Act, section 404 permit from 
the COE is required. Within the geographic area encompassing the 
Northern California steelhead ESU, the presence of listed coho and 
chinook salmon populations requires the COE to consult with NMFS under 
section 7 of the ESA prior to the issuance of 404 permits.
4. Water Quality Programs
    Under Clean Water Act section 303(d), states, territories, and 
authorized Tribes are required to establish lists of impaired water 
bodies, set priorities for addressing the pollutant source, and write 
pollutant control plans to achieve and maintain water quality 
standards. These plans, Total Maximum Daily Loads (TMDLs), provide an 
effective mechanism for determining the causes of water body 
impairment, quantifying the various pollutant sources, and setting 
targets for reducing pollutant discharges. Generally, states are 
responsible for developing TMDLs and related implementation plans, 
which are subject to EPA review and approval. If the EPA disapproves a 
TMDL or if a state fails to establish one, the EPA is required to step 
in and establish the TMDL. The TMDL is then implemented through 
existing regulatory and non-regulatory programs to control, reduce, or 
eliminate pollution from both point and non-point sources.
    The TMDL process provides a flexible assessment and planning 
framework for identifying load reductions or other actions needed to 
attain water quality standards such as protection of aquatic life, 
provision of safe drinking water, etc. The TMDL should address all 
significant stressors (e.g., chemicals, temperatures, sediment loads) 
that cause or threaten to cause deleterious effects to water quality. 
The TMDL assessment is the sum of the individual waste load allocations 
from point sources, non-point sources, natural sources, and an 
appropriate margin of safety to account for uncertainty. The TMDL may 
address single or multiple pollutants but must clearly identify the 
links between the water quality impairment (or threat) of concern, the 
causes of the threat or concern, and the load reductions or 
conservation actions needed to remedy or prevent the impairment.
    As TMDL assessments and implementation plans are developed and 
approved, the State of California, through the State Water Resources 
Control Board and the nine Regional Water Quality Control Boards, will 
adopt and implement the TMDLs. The TMDL contains a problem statement, 
numeric targets, source analysis, allocations of loads or controls, and 
a monitoring plan. The implementation component includes descriptions 
of land management practices, remediation activities, and restoration 
projects necessary to attain the goals established in the TMDL 
assessment. It is through the implementation plan that necessary 
controls and restoration actions are assigned to specific parties and 
attainment schedules are promulgated.
    In coastal watersheds of northern California, 38 water body 
segments have been identified as impaired and have been scheduled for 
development of TMDLs. The schedule for development of TMDLs in northern 
California extends to the year 2011 (Russian River and Lake Pillsbury). 
The schedule in this area is driven in part by a consent decree 
(Pacific Coast Federation of Fishermen's Associations, et al. v. 
Marcus, No. 95-4474 MHP, March 11, 1997). Under this consent decree, 
EPA agreed to oversee the development of TMDLs on 18 rivers on the 
north coast of California, 12 of which are located within the Northern 
California steelhead ESU.
    The consent decree establishes a schedule for developing TMDL 
criteria for listed rivers. Under this schedule, seven river basins in 
the Northern California ESU would have TMDLs developed within the next 
2 years, with the remaining rivers having TMDLs developed by 2002. This 
legally-binding schedule is expected to result in significant progress 
on improving the beneficial uses of these watersheds, where the 
beneficial use has been identified as habitat for salmonids.
    On May 28, 1998, the North Coast Regional Water Quality Control 
Board approved a TMDL for the Garcia River. The TMDL contains the 
following elements: (1) Findings that the Garcia River is impaired due 
to sediment and temperature impacts resulting from land use practices, 
primarily timber operations and related activities; (2) adoption of the 
Water Quality Attainment Strategy as part of the Water Quality Control 
Plan for the North Coast Region (Basin Plan) that would eliminate 90 
percent of total controllable road-related sediment sources within 20 
years and 50 percent of controllable upslope sediment sources within 40 
years; (3) numeric targets including specified numerical values for 
percent fine sediments, frequency of pools in stream habitat profiles, 
and improving trends in large woody debris; (4) an implementation plan 
which specifies that either default prescriptions be observed or a 
site-specific plan be implemented that provides assurances that source 
reduction targets will be met; (5) assurances that sediment reduction 
or control goals are capable of being met and that site-specific 
planning and implementation by landowners provides a flexible 
framework; and (6) a monitoring plan to verify that conservation 
practices are implemented and are effective.
    The TMDL process provides a flexible, adaptive management approach 
that relies on substantial public input and participation to set 
targets, identify protection measures, and implement

[[Page 6969]]

and monitor corrective practices. The completion of the Garcia River 
TMDL, and the initiation of TMDLs for the other listed rivers, 
represents a significant step forward in improving watershed health for 
steelhead and other salmonids on the north coast of California. In the 
long-term, the development and implementation of these TMDLs should be 
beneficial for steelhead. However, their development and implementation 
will be difficult and it will take many years to assess their efficacy 
in protecting steelhead habitat. Furthermore, it is essential that the 
EPA consults with NMFS on the formulation of TMDLs in waters that 
contain listed salmonids. Such consultations will help ensure that 
TMDLs adequately address the needs of these species.
5. State Hatchery and Harvest Management
    In an attempt to mitigate the loss of habitat and enhance fishing 
opportunities, extensive hatchery programs have been implemented 
throughout the range of steelhead on the west coast. While some of 
these programs have succeeded in providing fishing opportunities, the 
impacts of these programs on native, naturally reproducing stocks are 
not well understood. Competition, genetic introgression, and disease 
transmission resulting from hatchery introductions may significantly 
reduce the production and survival of native, naturally-reproducing 
steelhead (NMFS, 1996). Collection of native steelhead for hatchery 
broodstock purposes often harms small or dwindling natural populations. 
On the other hand, when properly managed, hatcheries can play an 
important role in steelhead recovery through carefully controlled 
supplementation programs.
    In the past, non-native steelhead stocks have been introduced as 
broodstock in hatcheries and widely transplanted in many coastal rivers 
and streams in California (Bryant, 1994; Busby et al., 1996; NMFS, 
1997a). Because of problems associated with this practice, DFG has 
developed and implemented a Salmon and Steelhead Stock Management 
Policy. This policy recognizes that mixing of non-native stocks with 
native stocks is detrimental, and seeks to maintain the genetic 
integrity of all identifiable stocks of salmon and steelhead in 
California, as well as to minimize interactions between hatchery and 
natural populations.
    NMFS's BRT identified the potentially adverse impacts of 
interactions between hatchery (Mad River hatchery) and wild steelhead 
as an important concern with regard to the Northern California ESU 
(NMFS, 1997a). As part of its strategic management plan for this ESU, 
DFG has implemented several changes in its hatchery practices. In 
addition, DFG has implemented several additional measures pursuant to 
the 1998 NMFS/California MOA. These hatchery management measures 
include: (1) marking of all hatchery steelhead released from the Mad 
River hatchery and all cooperative rearing facilities in the Northern 
California ESU; (2) continuation of long-standing hatchery management 
practices aimed at minimizing hatchery and wild steelhead interactions 
including prohibitions on stocking of resident trout in anadromous 
waters; releasing hatchery steelhead only at times, sizes and places 
that minimize impacts on naturally produced fish; only releasing 
hatchery fish that are determined to be healthy; (3) initiation of 
monitoring efforts intended to measure hatchery fish stray rates; and 
(4) a joint NMFS/DFG review of the Mad River hatchery including its 
stocking history, analysis of current broodstock, and its consistency 
with the strategic management plan for the Northern California ESU.
    In conjunction with the improved hatchery management practices, in-
river sport fisheries in the Northern California ESU now focus on 
harvest of marked, hatchery-produced steelhead, and sport fishing 
regulations have been modified to protect wild adult and juvenile 
steelhead.

Other Natural or Human-Made Factors Affecting Continued Existence of 
Steelhead

    Natural climatic conditions have exacerbated the problems 
associated with degraded and altered riverine and estuarine habitats. 
Persistent drought conditions have reduced already limited spawning, 
rearing and migration habitat. Climatic conditions appear to have 
resulted in decreased ocean productivity which, during more productive 
periods, may help offset degraded freshwater habitat conditions (NMFS, 
1996a).

Efforts Being Made to Protect West Coast Steelhead

    Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to 
make listing determinations solely on the basis of the best scientific 
and commercial data available after conducting a review of the status 
of the species and after taking into account efforts being made to 
protect the species. Therefore, in making its listing determinations, 
NMFS first assesses the status of the species and identifies factors 
that have lead to the decline of the species. NMFS then assesses 
conservation measures to determine if they ameliorate risks to the 
species.
    In judging the efficacy of existing conservation efforts, NMFS 
considers the following: (1) The substantive, protective, and 
conservation elements of such efforts; (2) the degree of certainty such 
efforts will be reliably implemented; and (3) the presence of 
monitoring provisions that determine effectiveness and that permit 
adaptive management (NMFS, 1996b). In some cases, conservation efforts 
may be relatively new and may not have had time to demonstrate their 
biological benefit. In such cases, provisions for adequate monitoring 
and funding of conservation efforts are essential to ensure that 
intended conservation benefits are realized.
    As part of its west coast steelhead status review, NMFS reviewed an 
array of protective efforts for steelhead and other salmonids, ranging 
in scope from regional strategies to local watershed initiatives. NMFS 
has summarized some of the major efforts in a document entitled 
``Steelhead Conservation Efforts: A Supplement to the Notice of 
Determination for West Coast Steelhead under the Endangered Species 
Act'' (NMFS, 1996c). NMFS also reviewed conservation measures being 
implemented by the State of California for steelhead at the time of its 
final listing determination for the Northern California, Klamath 
Mountains Province, and Central Valley steelhead ESUs (63 FR 13347). 
The following sections update the current status of the State of 
California's conservation efforts for steelhead with particular 
emphasis on the Northern California steelhead ESU.
    The State of California's conservation efforts that address 
steelhead in the Northern California ESU include: (1) development of 
the state's Watershed Protection Program, which includes funding and 
implementation of an expanded watershed planning and habitat 
restoration program; (2) implementation of the DFG's strategic 
management plan for the Northern California ESU; and (3) implementation 
of the 1998 NMFS/California MOA which addresses management of coastal 
steelhead in northern California. The status of these conservation 
efforts is discussed in more detail here.

California Watershed Protection Program and Implementation of SB 271

    In July 1997, California's Governor created the state's Watershed

[[Page 6970]]

Restoration and Protection Council (WPRC) for the purpose of: (1) 
overseeing all state activities aimed at watershed protection and 
enhancement, including the conservation and restoration of anadromous 
salmonids in California; and (2) directing the development of a 
California Watershed Protection Program that would provide for the 
conservation of anadromous salmonids in the State of California. A 
working group of the WPRC issued a detailed report in December 1998 
entitled ``Protecting California's Anadromous Fisheries.'' The 
Executive Order that established this program expired in January 1999. 
However, continued coordination of the program is occurring under the 
auspices of the California Biodiversity Council. NMFS is encouraged 
that the State initiated a comprehensive, watershed-based approach to 
salmon management and restoration, but the California Watershed 
Protection Program is still under development and has not been 
implemented as originally envisioned.
    To support the Governor's WPRC and its efforts to develop a 
Watershed Protection Program, DFG implemented a $3 million Watershed 
Initiative in 1997-98 for coastal watershed projects north of San 
Francisco, through its Fishery Restoration Grants Program. These 
projects focused on watershed and riparian habitat restoration, 
instream habitat restoration, and watershed evaluation, assessment, 
planning, restoration project maintenance, and monitoring. Beginning in 
1998-1999, DFG funded additional staff positions to assist in watershed 
planning efforts and grant proposal development.
    A key element of the state's Watershed Protection Program that is 
also specified in the 1998 NMFS/California MOA is DFG's implementation 
of an expanded habitat restoration program for coastal salmonids, 
including steelhead. In 1997, the California legislature enacted Senate 
Bill 271 which provided DFG with $43 million over 6 years for habitat 
restoration and watershed planning to benefit anadromous salmonids in 
coastal watersheds, including the geographic area which encompasses the 
Northern California steelhead ESU. The program was initiated in 1997-98 
and has expanded since that time. Based on the SB 271 legislation, 
funding is expected to continue through at least 2002. Substantial 
funding from this program has been committed to habitat restoration, 
enhancement, and watershed planning efforts within the Northern 
California steelhead ESU since 1997-98. Throughout Humboldt and 
Mendocino counties, which constitute much of the geographic area 
comprising the Northern California steelhead ESU, DFG has funded over 
200 projects costing in excess of $7.5 million during the past 3 years 
(1997-98 through 1999-2000). NMFS participates as an ex-officio member 
of the Advisory Committee that reviews the distribution of SB 271 grant 
funding, to help ensure that available funds are spent on projects that 
will contribute to the conservation of listed salmonids, including 
north coast steelhead. In addition to the expanded habitat restoration 
program funded by SB 271, DFG has added additional staff positions to 
assist in administering the program, provide technical support in the 
development of watershed plans and habitat restoration projects, and 
implement a new steelhead monitoring and adaptive management program 
throughout coastal northern California.

Northern California Steelhead ESU Strategic Plan

    In February 1998, DFG completed its strategic management plan for 
steelhead stocks in the Northern California ESU (DFG 1998). In March 
1998, the state and DFG formally committed to implement this plan as 
part of the NMFS/California MOA. The plan describes existing and new 
management measures for recreational steelhead angling, steelhead 
hatchery programs, and steelhead monitoring, assessment, and adaptive 
management efforts in this ESU. In addition, the plan describes DFG's 
ongoing efforts to protect and enhance steelhead habitat within this 
ESU. These management measures were intended to provide immediate 
protection for steelhead populations in this ESU, while longer-term 
measures were implemented to protect anadromous fish habitat on non-
federal lands through the Watershed Protection Program and the SB 271 
habitat restoration program. The main elements of the Northern 
California steelhead strategic management plan are briefly discussed 
here.
(a) Harvest Measures
    The strategic management plan includes several harvest management 
actions which are intended to reduce impacts on adult and juvenile 
steelhead in the Northern California ESU. These include: (1) no 
retention of unmarked (i.e., naturally produced) adult and juvenile 
steelhead in all rivers and streams; (2) fishing closures in steelhead 
rearing tributaries to protect juveniles; (3) expanded closures in 
mainstem rivers through May to protect outmigrating juvenile steelhead; 
and (4) various gear and bait restrictions designed to reduce mortality 
associated with incidental hooking of steelhead.
    In February and March 1998, the California Fish and Game Commission 
(Commission) adopted emergency changes to the State's inland fishing 
regulations which were intended to implement the harvest regulation 
changes contained in the Northern California steelhead strategic 
management plan. In conjunction with the final listing determination 
for this ESU in March 1998(63 FR 13347), NMFS reviewed these regulatory 
changes and concluded that they would substantially reduce impacts to 
adult and juvenile steelhead and also assist in the conservation of the 
ESU (NMFS 1998). These emergency regulations were formally enacted by 
the Commission in June 1998 following public review and comment, and 
they currently remain in place. NMFS believes that these angling 
regulations continue to provide the reduction in impacts and 
conservation benefits that were expected at the time the decision was 
made not to list this ESU in March 1998.
(b) Hatchery Measures
    The strategic plan for the Northern California ESU contains a wide 
range of existing and new hatchery management measures that are 
intended to reduce the impacts of hatchery steelhead programs on wild 
steelhead populations in this ESU. Measures incorporated into the plan 
include: (1) release strategies that require a minimum 6 inches ( 15.2 
cm) size and release at the hatchery rather than off-site; (2) marking 
of all hatchery-produced fish that are released and the implementation 
of spawner surveys to assess the extent to which hatchery fish stray 
into natural spawning areas; (3) a commitment to reduce hatchery 
releases or implement other changes in hatchery practices if 
significant straying of hatchery fish is found to occur; (4) a cap on 
hatchery production to current levels, regular health checks during 
each rearing cycle, and the destruction of diseased fish that cannot be 
effectively treated; (5) a review of the existing operating procedures 
for all cooperative rearing facilities permitted by the state; and (6) 
adoption of a requirement that all cooperative facilities develop and 
submit 5-year management plans to the State for approval. NMFS 
previously reviewed these existing and new hatchery management measures 
and concluded that they would substantially reduce potential impacts to 
wild steelhead (NMFS 1998d). Because of NMFS concerns regarding the 
operations of the the Mad River Hatchery which is

[[Page 6971]]

located in this ESU, DFG also committed in the 1998 NMFS/California MOA 
to: (1) undertake a comprehensive review of the hatchery program, 
including its stocking history and genetic analysis of current 
broodstock; and (2) develop a plan to eliminate any adverse impacts of 
hatchery operations on Northern California steelhead if necessary.
    DFG implemented a statewide mass-marking program for its hatchery 
steelhead programs beginning in 1997 which includes the hatchery 
steelhead programs in the Northern California steelhead ESU. DFG is 
also requiring all cooperative rearing programs that produce steelhead 
in this ESU to mark all released fish. This marking program has 
continued since its implementation in 1997 and DFG is committed to 
continuing this program into the future. DFG and the NMFS have also 
initiated a comprehensive review of DFG's hatchery programs in this ESU 
(Mad River Hatchery and cooperative rearing programs), with the 
objective of ensuring that these programs are compatible with the 
conservation of naturally produced steelhead. This review is expected 
to be completed in 2000. Comprehensive monitoring of stray rates for 
hatchery produced fish has not been implemented in this ESU, but DFG 
expects to begin a north coast steelhead stray rate monitoring program 
in 2000.
(c) Steelhead Monitoring and Adaptive Management
    The strategic management plan for the Northern California ESU 
identifies ongoing and expanded monitoring programs to assess steelhead 
abundance. A commitment to implement these programs is contained in the 
1998 NMFS/California MOA. A key element of this monitoring program was 
a commitment to establish a joint scientific and technical team 
including representatives from DFG and NMFS to design appropriate 
detailed monitoring programs for steelhead in this ESU. NMFS considered 
these monitoring efforts critically important given the uncertain 
status of steelhead populations in these ESUs, and indicated that 
adequate State funding was critical to implementing the program (63 FR 
13347). As part of the NMFS/California MOA, both DFG and NMFS committed 
to seek adequate funding for this program. The DFG has taken 
significant steps to implement this expanded steelhead monitoring 
program in the Northern California steelhead ESU, but the full program 
has not yet been fully developed or implemented. The DFG has committed 
significant fiscal resources to hire and redirect existing staff 
resources to create a north coast steelhead monitoring team and program 
that will address the Northern California steelhead ESU as well as 
areas further north in California, and has established a scientific and 
technical team to guide development of this effort. Comprehensive 
monitoring proposals have been developed and are under review by the 
scientific and technical team. NMFS expects the finalized monitoring 
program for this ESU to be implemented in early 2000.

NMFS/California Memorandum of Agreement

    NMFS evaluated a wide range of conservation efforts that California 
had adopted or was in the process of developing in conjunction with its 
decision not to list the Northern California steelhead ESU (63 FR 
13347). NMFS concluded that DFG's harvest and hatchery programs for 
this ESU would contribute to increasing escapement of adults, 
substantially reduce impacts on juveniles resulting in increased 
survival, and reduce adverse impacts of hatchery populations on wild 
fish. In the near-term, NMFS expected these measures would contribute 
to improved survival and population stability for steelhead. In 
addition, DFG's monitoring and adaptive management programs were 
expected to provide state and Federal managers with the ability to 
assess the status of steelhead populations and their response to 
harvest and hatchery management changes. However, NMFS was also 
concerned that California's habitat protection efforts, (e.g., 
development of a Watershed Protection Program and implementation of the 
expanded habitat restoration program established by SB 271), were not 
adequate to secure properly functioning habitat conditions for this ESU 
over the long-term. To address these concerns, NMFS entered into a MOA 
with the State (NMFS/California MOA 1998).
    Under the terms of the NMFS/California MOA, the State committed to 
a broad range of measures including: (1) compliance with existing State 
regulations, with particular emphasis on the management measures 
contained in the strategic management plans for north coast steelhead; 
(2) implementation of harvest and hatchery management measures 
contained in the strategic management plan for Northern California 
steelhead; (3) implementation of a monitoring evaluation and adaptive 
management program for steelhead, including those elements contained in 
the strategic management plan for Northern California steelhead; (4) 
continued implementation of a California Watershed Protection Program, 
including the SB 271 watershed planning and habitat restoration program 
in coastal watersheds, and the joint review and revision of the State's 
forest practice rules (FPRs), in conjunction with a scientific review 
panel to ensure that the revised FPRs were adequate to conserve 
anadromous salmonids, including steelhead. As previously discussed, 
because of the preponderance of private timber lands and timber harvest 
activity in the Northern California ESU, NMFS considered this to be a 
critically important provision in the MOA.
    Many of the provisions in the NMFS/California MOA relating to the 
Northern California steelhead ESU have been or are being implemented by 
the state; however, critically important provisions related to revision 
of the FPRs have not been implemented. The current status of the 
State's effort to implement the MOA, with particular regard to the 
Northern California steelhead ESU, is discussed here.
(a) Compliance with Existing State Regulations
    In accordance with section 4 of the NMFS/California MOA, DFG made 
recommendations to the Fish and Game Commission to implement detailed 
angling regulation changes contained in the strategic management plan 
for Northern California steelhead. The Commission adopted these 
recommendations on an emergency basis in February 1998 and permanent 
regulations became effective in August 1998. Within this ESU, these 
regulations specifically prohibit retention of naturally spawned adult 
steelhead, prohibit fishing for naturally produced juvenile steelhead 
in tributary streams, minimize the angling impacts on juvenile 
steelhead in mainstem rearing areas through gear/bait restrictions, 
prohibit retention of summer steelhead and prohibit fishing in their 
summer holding areas, and provide for the retention of marked, 
hatchery-produced steelhead.
(b) Harvest and Hatchery Management
    In accordance with section 6 of the NMFS/California MOA, two 
provisions have been implemented. First, the DFG recommended and the 
Fish and Game Commission adopted permanent regulations that provide 
only for the retention of non-listed, hatchery-produced steelhead. 
Second, the DFG has implemented a statewide mass marking program for 
hatchery produced steelhead. This program was initiated

[[Page 6972]]

with brood year 1997 steelhead released in winter 1998, and the marking 
program has continued annually since that time. This program has 
resulted in complete marking of all steelhead produced at the Mad River 
Hatchery which is located in this ESU. In addition, DFG is requiring 
that all cooperative rearing programs that produce steelhead mark them 
prior to release.
    Three additional provisions contained in section 6 of the NMFS/
California MOA have not yet been implemented, but are either in 
progress or will be initiated shortly. To date, DFG has not implemented 
a process for establishing recovery and strategic goals for north coast 
steelhead, including this ESU, nor has it initiated a monitoring 
program to measure stray rates of hatchery produced steelhead. However, 
the DFG has established a North Coast Steelhead Monitoring Program to 
develop and implement a monitoring program, which will include the 
Northern California steelhead ESU, and a joint scientific and technical 
team to provide guidance to the program. DFG has developed a 
preliminary monitoring program and is consulting the joint scientific 
and technical team to refine that program, and is exploring options for 
establishing recovery and strategic goals within this ESU. NMFS 
anticipates that this program will commence in 2000. Although the 
monitoring program specified in the NMFS/California MOA has not been 
fully implemented, DFG has continued to carry out several monitoring 
and research programs on the north coast, primarily in the Klamath 
Mountains Province ESU, which have provided data useful for the 
management of steelhead. Finally, NMFS and DFG have recently undertaken 
a state-wide review of the state's hatchery programs, including the Mad 
River Hatchery which in located in this ESU, as well as the state's 
cooperative rearing program which has a small number of projects within 
this ESU. This review is expected to be completed by June 2000.
(c) Monitoring, Evaluation, and Adaptive Management
    In accordance with section 7 of the NMFS/California MOA, the DFG 
has implemented, at least in part, two key provisions. First, DFG has 
established a joint scientific and technical team to assist it with the 
development of a comprehensive monitoring program for steelhead on the 
north coast, including the Northern California ESU. The NMFS/California 
MOA called for this program to be developed by June 1998; however, as 
discussed in the preceding section, DFG has not yet completed 
development of the study plan or initiated a comprehensive monitoring 
program. Second, DFG has secured the necessary funding to establish a 
north coast steelhead monitoring program, including the dedication of 
professional staff and the acquisition of necessary equipment and 
facilities. A preliminary monitoring program plan has been developed by 
the monitoring program staff and this plan is currently under review by 
the joint scientific and technical team.
(d) California's Watershed Protection Program
    Section 9 of the NMFS/California MOA commits the State to continue 
development of its Watershed Protection Program, with a specific 
element addressing salmonid conservation, and to coordinate with NMFS 
in establishing a scientific review panel that would advise the State 
in its development of this program. In addition, Section 9 commits the 
state to direct personnel and fiscal resources to implement an expanded 
habitat restoration program in coastal watersheds using SB 271 funds. 
Details of the state's Watershed Protection Program and DFG's efforts 
to implement expanded watershed planning and habitat restoration in 
coastal watersheds were described previously (see Efforts Being Made to 
Protect West Coast Steelhead).
    Section 9 of the NMFS/California MOA contains several measures 
relating to the review and revision of the State's FPRs because of 
NMFS's concerns regarding the effects of State-regulated timber harvest 
on freshwater habitat conditions for anadromous salmonids, including 
steelhead in the Northern California ESU. Specifically, the NMFS/
California MOA calls for: (1) a joint review of the FPRs by NMFS and 
the State, including their implementation and enforcement; (2) the 
State to make appropriate changes in implementation and enforcement, if 
necessary; (3) the state, in consultation with NMFS, to make 
recommendations to the BOF for changes in the FPRs necessary to 
conserve anadromous salmonids; and (4) the BOF to complete action on 
the recommended changes in the FPRs by January 2000. Full 
implementation of these NMFS/California MOA provisions, including 
implementation of changes in the FPRs by January 1, 2000, was a 
critical factor in NMFS's decision to not list the Northern California 
steelhead ESU.
    In accordance with these provisions, the state established a 
subcommittee of the scientific review panel for its Watershed 
Protection Program to undertake an independent review of the State's 
FPRs. In June 1999, this subcommittee submitted a report to the BOF 
which concluded that the state's FPRs, including their implementation 
through the timber harvest plan process, do not ensure protection of 
anadromous salmonid populations. Based in part on the scientific review 
panel's findings, the Secretaries of the California Resources Agency 
and CalEPA jointly presented a proposed package of FPR revisions to the 
BOF in July 1999 that was designed to address shortcomings identified 
by the scientific review committee. At its October 6-7, 1999, meeting, 
the BOF failed to take action to adopt the proposed rule changes, 
thereby eliminating to possibility of implementing improvements in 
California's FPRs by January 1, 2000.

Proposed Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as any species likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range. Section 4(b)(1) of the ESA requires that the 
listing determination be based solely on the best scientific and 
commercial data available, after conducting a review of the status of 
the species and after taking into account those efforts, if any, being 
made to protect such species.
    In December 1997, the NMFS' BRT concluded that the Northern 
California steelhead ESU was likely to become endangered within the 
foreseeable future based on a review of the best available biological 
information (NMFS 1997). Based on a review of updated abundance and 
trend information that was available for this ESU, NMFS's Southwest 
Fisheries Science Center (NMFS/Tiburon Lab 1/2000), concluded that the 
current biological status of the ESU has changed little since it was 
last evaluated by NMFS' BRT. Updated abundance and trend data show 
small increases for winter and summer steelhead in the Eel River, but 
current abundance is well below estimates in the 1980s and even further 
reduced from levels in the 1960s. Redwood Creek summer steelhead 
abundance remains very low. There are no new data suggesting 
substantial increases or decreases in populations since the last 
updated status review was completed. The Eel River winter and summer 
steelhead populations, which represent the best available data set for 
this ESU, are still severely reduced from pre-1960s levels.

[[Page 6973]]

    After taking into consideration state and Federal efforts for the 
conservation of steelhead, NMFS previously decided that threats to the 
ESU were sufficiently reduced that a listing of the Northern California 
steelhead ESU as threatened was unnecessary. The key Federal and state 
conservation measures which NMFS concluded reduced threats to this ESU 
were: (1) implementation of the NMFS/California MOA, with particular 
emphasis on the provisions intended to improve non-Federal forest land 
protections because of the predominance of non-Federal lands in the 
California portion of this ESU (81 percent non-Federal land); (2) 
substantial changes to in-river harvest regulations by California; and 
(3) general improvements in the ESU resulting from implementation of 
the DFG's strategic management plan for this ESU, the State's Watershed 
Protection Program, and other provisions in the NMFS/California MOA 
which serve to implement steelhead angling regulation changes, hatchery 
steelhead management changes, habitat protections and restoration, and 
expanded steelhead monitoring.
    As previously discussed in this document, California has 
implemented several of the conservation measures that NMFS relied upon 
in making its decision not to list the Northern California ESU. 
Specifically, the state has enacted substantial changes to the state's 
in-river angling regulations in 1998 to protect coastal steelhead 
populations including steelhead in this ESU. These regulations, with 
slight modification, remain in effect, and NMFS believes they continue 
to provide the substantial protection and conservation benefits that 
were expected to occur at the time of the decision not to list this 
ESU. The State has also implemented, or begun to implement, several 
other conservation measures for this ESU, including extensive watershed 
planning and/or habitat restoration through the SB 271 program, marking 
of hatchery produced steelhead and other improvements in hatchery 
practices, and steelhead monitoring. Although implementation of some of 
these measures has been delayed, as is the case for the steelhead 
monitoring program, NMFS continues to believe that these efforts will 
collectively benefit steelhead in this ESU and will eventually 
contribute to an improved understanding of its status.
    Although these conservation efforts are expected to benefit 
steelhead in this ESU, NMFS continues to believe that improved habitat 
protection and restoration of properly functioning freshwater habitat 
conditions for spawning, rearing, and migration are essential to the 
long-term survival and recovery of this ESU. Because Federal land 
ownership is both fragmented and limited in this ESU (approximately 19 
percent of ESU), the key to achieving habitat protection and properly 
functioning habitat conditions in this ESU is the improvement of land 
management activities on non-Federal lands (approximately 81 percent of 
ESU). To ensure improved protection of habitat on non-Federal lands in 
this ESU, the NMFS/California MOA contained several provisions for the 
review and modification of the state's FPRs. Full implementation of 
these provisions, including implementation of changes in the FPRs by 
January 1, 2000, was a critical factor in NMFS's previous decision not 
to list this ESU. Because the State has failed to implement changes in 
the FPRs as called for in the NMFS/California MOA, critically important 
conservation measures are not being implemented to reduce the threats 
to this ESU from timber harvest activities on non-Federal lands. For 
this reason, NMFS concludes that the conservation measures fail to 
provide for the attainment of properly functioning habitat conditions 
necessary to provide for the long-term protection and conservation of 
this ESU.
    Based on a review of the best available information, therefore, 
NMFS concludes that the Northern California steelhead ESU warrants 
listing as a threatened species at this time. In arriving at this 
determination, NMFS carefully considered the December 1997 scientific 
conclusions of the BRT regarding this ESU, the results of an updated 
status review for the ESU, and the current status of all Federal, 
state, and local conservation efforts directed at this ESU, including 
implementation of provisions for the NMFS/California MOA for steelhead.
    NMFS has previously examined the relationship between hatchery and 
natural populations of steelhead in this ESU, and also assessed whether 
any hatchery populations are essential for their recovery. At this 
time, NMFS does not believe any specific hatchery populations warrant 
listing.
    At this time, NMFS is only proposing to list the anadromous life 
forms of O. mykiss.

Prohibitions and Protective Measures

    Section 4(d) of the ESA requires NMFS to issue protective 
regulations it finds necessary and advisable to provide for the 
conservation of threatened species. Section 9 of the ESA prohibits 
violations of protective regulations for threatened species promulgated 
under section 4(d). The 4(d) protective regulations may prohibit, with 
respect to the threatened species, some or all of the acts which 
section 9 of the ESA prohibits with respect to endangered species. 
These section 9 prohibitions and 4(d) regulations apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
NMFS intends to develop and promulgate a 4(d) protective regulation for 
the Northern California steelhead ESU in a separate rulemaking. The 
process for completing the 4(d) rule will provide the opportunity for 
public comment on the proposed protective regulations.
    In the case of threatened species, NMFS has flexibility under 
section 4(d) to tailor the protective regulations to provide for the 
conservation of the species. Even though existing conservation efforts 
and plans are not sufficient to preclude the need for listing 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, starting with the protective 
regulations. For example, the interim 4(d) rule for the Southern 
Oregon/Northern California coho (62 FR 24588, May 7, 1997) does not 
prohibit habitat restoration activities conducted in accordance with 
approved plans, nor does it prohibit fisheries conducted in accordance 
with an approved state management plan. NMFS has recently proposed 4(d) 
regulations for all threatened ESUs of steelhead (64 FR 73479). Future 
4(d) rules may contain limited take prohibitions applicable to 
activities such as forestry, agriculture, and road construction, when 
such activities are conducted in accordance with approved conservation 
plans.
    Sections 7(a)(2) and 7(a)(4) of the ESA require Federal agencies to 
consult with NMFS to ensure that activities they authorize, fund, or 
conduct are not likely to jeopardize the continued existence of a 
listed species or a species proposed for listing, or adversely modify 
critical habitat or proposed critical habitat.
    Examples of Federal actions likely to affect steelhead in the 
Northern California ESU include authorized land management activities 
of the U.S. Forest Service and Bureau of Land Management, operation of 
hydroelectric and storage projects permitted by FERC, and activities 
permitted by the COE. Such activities may include timber sales and 
harvest, permitting livestock grazing, hydroelectric power generation, 
and flood control. Other Federal actions,

[[Page 6974]]

including the COE section 404 permitting activities under the CWA, COE 
permitting activities under the River and Harbors Act, FERC licenses 
for non-Federal development and operation of hydropower, and Federal 
salmon hatcheries, may also require consultation.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. NMFS has 
issued section 10(a)(1)(A) research/enhancement permits for listed 
chinook salmon and steelhead 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.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities which may incidentally take 
listed species, so long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity. The types 
of activities potentially requiring a section 10(a)(1)(B) incidental 
take permit include the operation and release of artificially 
propagated fish by state or privately operated and funded hatcheries, 
state or academic research not receiving Federal authorization or 
funding, logging, road building, grazing, and diverting water onto 
private lands.

NMFS Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, NMFS, jointly with USFWS, published a series of 
policies regarding listings under the ESA, including a policy for peer 
review of scientific data (59 FR 34270) and a policy to identify, to 
the maximum extent possible, those activities that would or would not 
constitute a violation of section 9 of the ESA (59 FR 34272).

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. Prior to a 
final listing, NMFS will solicit the expert opinions of at least three 
qualified specialists, concurrent with the public comment period. 
Independent peer reviewers will be selected from the academic and 
scientific community, Native American tribal groups, Federal and state 
agencies, and the private sector.
    NMFS and USFWS published in the Federal Register on July 1, 1994 
(59 FR 34272), a policy that NMFS shall 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 
this listing on proposed and ongoing activities within the species' 
range. At the time of the final rule for the Northern California 
steelhead ESU, NMFS will identify to the extent known specific 
activities that will not be considered likely to result in violations 
of section 9 once a 4(d) rule has been adopted, as well as activities 
that will be considered likely to result in violations. NMFS believes 
that, based on the best available information, the following actions 
will not be prohibited in a 4(d) rule and therefore will not result in 
a violation of section 9:
    1. Possession of steelhead from any steelhead ESU listed as 
threatened which are 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.
    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 section 7 consultation has been 
completed, and when activities are conducted in accordance with any 
terms and conditions provided by NMFS in an incidental take statement 
accompanying a biological opinion.
    Activities that NMFS believes could potentially harm steelhead in 
the Northern California ESU and therefore may be prohibited in a 4(d) 
rule applying section 9 take prohibitions, include, but are not limited 
to:
    1. Land-use activities that adversely affect steelhead habitat in 
the proposed ESU (e.g., logging, grazing, farming, urban development, 
road construction in riparian areas and areas susceptible to mass 
wasting and surface erosion).
    2. Destruction/alteration of steelhead habitat in the proposed ESU, 
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 
steelhead in the proposed ESU.
    4. Violation of discharge permits.
    5. Pesticide applications.
    6. Interstate and foreign commerce of steelhead from the proposed 
ESU and import/export of steelhead from any ESU without a threatened or 
endangered species permit.
    7. Collecting or handling of steelhead from the proposed ESU. 
Permits to conduct these activities are available for purposes of 
scientific research or to enhance the propagation or survival of the 
species.
    8. Introduction of non-native species likely to prey on steelhead 
in the proposed ESU or displace them from their habitat.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that might or might not be 
considered by NMFS as constituting a take of steelhead in the Northern 
California ESU under the ESA and its regulations. Questions regarding 
whether specific activities will constitute a violation of the ESA 
section 9 take prohibitions, and general inquiries regarding 
prohibitions and permits, should be directed to NMFS (see ADDRESSES).

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. While 
NMFS has completed its initial analysis of the biological status of 
steelhead in the Northern California ESU, it has not performed the full 
analysis necessary for designating critical habitat at this time. It is 
NMFS' intent to develop a critical habitat proposal for this ESU within 
the next year as soon as the analysis can be completed.

Public Comments Solicited

    NMFS has exercised its best professional judgement in developing 
this proposal to list the Northern California steelhead ESU. To ensure 
that the final action resulting from this proposal will be as accurate 
and effective as possible, NMFS is soliciting comments and suggestions 
from the public, other governmental agencies, the scientific community, 
industry, and any other interested parties. NMFS is interested in any 
additional information concerning: (1) biological or other relevant 
data concerning any threats to steelhead in this ESU; (2) the range, 
distribution, and population size of steelhead in this ESU; (3) current 
or planned activities in the proposed ESU and their possible impact on 
steelhead; (4) steelhead escapement, particularly escapement data 
partitioned into natural

[[Page 6975]]

and hatchery components; (5) the proportion of naturally reproducing 
fish that were reared as juveniles in a hatchery; (6) homing and 
straying of natural and hatchery fish; (7) the reproductive success of 
naturally reproducing hatchery fish (i.e., hatchery-produced fish that 
spawn in natural habitat) and their relationship to proposed ESU; (8) 
efforts being made to protect native, naturally reproducing populations 
of steelhead in this ESU; and (9) suggestions for specific regulations 
under section 4(d) of the ESA that should apply to steelhead in this 
ESU. Suggested regulations may address activities, plans, or guidelines 
that, despite their potential to result in the take of listed fish, 
will ultimately promote the conservation and recovery of threatened 
steelhead.
    NMFS will review all public comments and any additional information 
regarding the status of the Northern California steelhead ESU and will 
complete a final rule within 1 year of this proposed rule, as required 
under the ESA. The availability of new information may cause NMFS to 
reassess the status of this ESU.
    Joint Commerce-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 * * * or to designate or revise critical habitat.'' 
(see 50 CFR 424.16(c)(3)). A public hearing schedule on this proposal 
is contained in this notice. A public hearing will provide the 
opportunity for the public to give comments and to permit an exchange 
of information and opinion among interested parties. NMFS encourages 
the public's involvement in such ESA matters. Written comments on the 
proposed rule should be submitted to NMFS (see ADDRESSES).

References

    A complete list of all cited references is available upon request 
(see ADDRESSES).

Classification

National Environmental Policy Act

    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 concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA). See NOAA Administrative Order 216-6.

Executive Order 12866 and Regulatory Flexibility Act

    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. In addition, this final rule is exempt from review under 
Executive Order 12866.

Executive Order 13132--Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, NMFS has conferred with State and local 
government agencies in the course of assessing the status of the 
Northern California steelhead ESU, and considered, among other things, 
state and local conservation measures. State and local governments have 
expressed support both for the conservation of the Northern California 
steelhead ESU and for activities that affect this ESU. The history and 
content of this dialogue, as well as the basis for this proposed 
action, is described in the SUPPLEMENTARY INFORMATION section of this 
document, and in other Federal Register documents preceding this 
proposed action. (See 61 FR 41541, August 9, 1996; 62 FR 43974, August 
18, 1997; and 63 FR 13347, March 19, 1998). NMFS staff have had 
numerous discussions with various governmental agency representatives 
regarding the status of this ESU, and have sought working relationships 
with agencies and others in order to promote salmonid restoration 
efforts. In addition, NMFS' staff have given presentations to 
interagency forums and other interested groups considering conservation 
measures. As the process continues, NMFS intends to continue engaging 
in informal and formal contacts with affected state, local or regional 
entities, giving careful consideration to all written or oral comments 
received. As one part of that continued process, NMFS has scheduled 
public hearings on this proposed action. NMFS also intends to consult 
with appropriate elected officials in the establishment of a final 
rule.
    At this time NMFS is not promulgating protective regulations 
pursuant to ESA section 4(d) or proposing to designate critical 
habitat. Prior to finalizing 4(d) regulations for this ESU, or 
proposing to designate critical habitat, NMFS will comply with all 
relevant NEPA and RFA requirements.

List of Subjects in 50 CFR Part 223

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

    Dated: February 4, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 223 is 
proposed to be 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, paragraph (a)(22) is added to read as follows:


Sec. 223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (a) * * *
    (22) Northern California steelhead (Oncorhynchus mykiss). Includes 
all naturally spawned populations of steelhead (and their progeny) in 
coastal river basins ranging from Redwood Creek in Humboldt County, 
California to the Gualala River, inclusive, in Mendocino County, 
California.
* * * * *
[FR Doc. 00-3283 Filed 2-10-00; 8:45 am]
BILLING CODE 3510-22-F