[Federal Register Volume 66, Number 65 (Wednesday, April 4, 2001)]
[Proposed Rules]
[Pages 17845-17856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8166]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010118020-1082-02; I.D. 010801A]
RIN 0648-AO86


Endangered and Threatened Species: Final Listing Determination 
for Klamath Mountains Province Steelhead

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

ACTION: Notice of determination of status review.

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SUMMARY: In keeping with a recent Federal Court ruling, NMFS has 
reconsidered the status of Klamath Mountains Province (KMP) steelhead 
Evolutionarily Significant Unit (ESU) under the Endangered Species Act 
of 1973 (ESA), as amended. After reviewing the best available 
scientific and commercial information, NMFS has determined that KMP 
steelhead do not warrant listing as threatened or endangered at this 
time.

DATES: The finding for this document was made on March 28, 2001.

ADDRESSES: Protected Resources Division, NMFS, 525 NE Oregon Street, 
Suite 500, Portland, OR 97232. Reference materials regarding this 
determination can be obtained via the Internet at www.nwr.noaa.gov .

FOR FURTHER INFORMATION CONTACT: Garth Griffin, 503-231-2005, 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 and agency findings regarding the KMP 
steelhead ESU are detailed in the February 12, 2001, listing proposal 
(66 FR 9808). Briefly, NMFS first proposed this ESU as a threatened 
species under the ESA in 1995 (60 FR 14253, March 16, 1995), identified 
areas of substantial scientific disagreement for this and other ESUs in 
1997 (62 FR 43974, August 18, 1997), and finally determined that 
listing was not warranted for KMP steelhead in 1998 (63 FR 13347, March 
19, 1998). The no-list decision was based on evidence indicating the 
ESU was at a lower risk of extinction than at the time it was proposed 
for listing. Even though it found that the risks had been reduced to a 
point at which listing was not warranted, NMFS expressed concerns about 
the status of KMP steelhead, and identified the ESU as a candidate 
species, which the agency would continue to monitor and re-assess by 
2002.
    On October 25, 2000, the U.S. District Court for the Northern 
District of California (Court) ruled that NMFS' March 19, 1998, 
determination regarding the KMP steelhead ESU was arbitrary and 
capricious (Federation of Fly Fishers v. Daley, Civ. No. C-99-0981-SI). 
The Court set aside NMFS' ``not warranted'' determination and remanded 
the case to NMFS for further consideration and decision consistent with 
its Order by March 31, 2001. In vacating the agency's decision, the 
Court held that the ESA does not allow NMFS to consider the expected 
effects of future conservation actions or to rely exclusively on 
voluntary conservation efforts. In response to the Court's mandate, 
NMFS re-proposed listing the KMP steelhead as a threatened species 
under the ESA on February 12, 2001 (66 FR 9808). NMFS noted that the 
Court-ordered deadline of March 31, 2001, for a final listing decision 
did not provide sufficient time to conduct a thorough assessment of new 
information (i.e., data since 1998) prior to re-proposing this ESU for 
listing. Therefore, the re-proposal relied primarily upon information 
contained in the NMFS steelhead administrative record as it existed on 
March 19, 1998. Comments on the proposed listing yielded substantial 
new information regarding the status of this ESU. This new information 
was evaluated by NMFS' steelhead Biological Review Team (BRT) which 
resulted in an updated status review document for the KMP steelhead ESU 
(NMFS, 2001).

Life History of KMP Steelhead

    Biological information for West Coast steelhead, and the KMP 
steelhead ESU in particular, can be found in agency assessments 
conducted by NMFS (NMFS, 1993, 1994, 1996a, 1997a, 1998a) and in 
previous Federal Register documents (60 FR 14253, March 16, 1995; 61 FR 
41541, August 9, 1996). Steelhead exhibit 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.'' The KMP 
steelhead ESU includes both life forms. However, only the anadromous 
forms are under the jurisdiction of NMFS; the U.S. Fish and Wildlife 
Service (USFWS) maintains ESA authority over resident life forms.
    Within the KMP steelhead ESU, the species inhabits coastal river 
basins between the Elk River in Oregon and the Klamath River in 
California, inclusive. 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 (ocean maturing) steelhead). The KMP steelhead ESU contains 
populations of both winter and summer steelhead. In addition, the Rogue 
and Klamath River Basins are distinctive in that they are two of the 
few basins producing ``half-pounder'' steelhead. This life history type 
refers to immature steelhead that return to fresh water after only 2-4 
months in the ocean, generally overwinter in fresh water, then 
outmigrate again the following spring (Snyder, 1925; Kesner and 
Barnhart, 1972; Everest, 1973; Barnhart, 1986).

Summary of Comments Received in Response to the Proposed Rule

    Following NMFS' proposal to list KMP and other steelhead ESUs in 
1995 and 1996 (60 FR 14253, March 16, 1995; 61 FR 41541, August 9, 
1996), a total of 16 public hearings were held in California, Oregon, 
Idaho, and Washington to solicit comments on the proposed rule. During 
the 90-day public comment period, NMFS received nearly 1,000 written 
comments on the listing proposals from Federal, state, and local 
government agencies, Indian tribes, non-governmental organizations, the 
scientific community, and other individuals. A number of comments 
addressed specific technical issues

[[Page 17846]]

pertaining to a particular geographic region or O. mykiss population. 
These technical comments were considered by NMFS' steelhead BRT and 
were discussed in the agency's 1997 updated status review report (NMFS, 
1997a). These and other comments were also addressed in the agency's 
1998 listing determination (63 FR 13347, March 19, 1998).
    During the recent 21-day public comment period following NMFS' re-
proposal to list this ESU (66 FR 9808, February 12, 2001), the agency 
held public hearings in Gold Beach, OR and Eureka, CA, and received 
additional comments and data pertaining to KMP steelhead. A total of 47 
individuals presented testimony at these public hearings; all but one 
person expressed opposition to the proposed listing. NMFS also received 
more than 170 documents containing comments and information from 
Federal, state, and local government agencies, Indian tribes, non-
governmental organizations, and other individuals. A large majority of 
written comments (approximately 110) opposed the listing proposal, 
including co-manager comments from the California Department of Fish 
and Game (CDFG), Oregon Department of Fish and Wildlife (ODFW), and 
Hoopa Valley Tribe. Also, in accordance with a joint NMFS and USFWS 
policy regarding peer review under the ESA (59 FR 34270, July 1, 1994), 
NMFS solicited peer review of the KMP re-proposal from eight recognized 
experts in the field of steelhead biology. Only one peer reviewer 
responded to NMFS' request during the relatively short public comment 
period. As with the bulk of other comments received, this reviewer also 
was of the opinion that the KMP steelhead ESU does not warrant listing 
at this time. As noted previously, NMFS' steelhead BRT reviewed new 
information germane to drawing risk conclusions for the KMP steelhead 
ESU and have described their findings in an updated status review 
document (NMFS, 2001). A summary of major issues/comments received in 
response to the February 12, 2001, proposed rule and NMFS' responses 
follows.

Issue 1: Public Notification Process

    Comment 1: Some commenters complained about the lack of 
notification and the failure to hold public hearings in interior areas 
of the Rogue and Klamath River basins. One commenter requested that 
NMFS extend the deadline for comments.
    Response: NMFS made every attempt to communicate the KMP steelhead 
re-proposal to the affected communities. The agency notified local 
media sources (newspaper, radio, and television) in these communities, 
and encouraged all parties to provide written comments on the proposed 
rule. As noted earlier, public hearings were held in Eureka, CA and 
Gold Beach, OR on February 22, 2001. Unfortunately, significant time 
constraints limited the number of hearings that could be accommodated, 
so NMFS chose sites where previous public hearings had been successful 
in engaging the affected public. In addition, NMFS recognized the high 
level of interest expressed by communities in interior areas of the KMP 
steelhead range, and held an additional public meeting in Yreka, CA, on 
February 28, 2001, to discuss issues regarding KMP steelhead. Finally, 
due to the deadline imposed by the Court, NMFS was unable to extend the 
period for public comments. Any and all parties are encouraged to 
contact NMFS if they have questions or need additional information 
regarding this final determination (see FOR FURTHER INFORMATION 
CONTACT).

Issue 2: The Court Decision

    Comment 2: Some commenters wondered why NMFS did not appeal the 
Court's decision. Others took exception with the Court's dim view of 
conservation efforts that were ``voluntary'' and based on unreliable 
funding.
    Response: Litigation decisions, such as whether to appeal, involve 
myriad legal, policy, and other considerations by several involved 
Federal agencies. In this case, the Federal Government decided that it 
would be more useful to conduct a thorough re-assessment of the ESU, 
especially in light of the fact that in 1998, NMFS committed to re-
evaluate the ESA status of KMP steelhead by 2002 (63 FR 13347, March 
19, 1998). With respect to the Court's views on voluntary conservation 
efforts, the judge held that ``[a]lthough it was appropriate for NMFS 
to consider such measures, it was arbitrary and capricious for NMFS to 
rely, in effect, exclusively on voluntary actions.'' NMFS understands 
that there is a wide spectrum of conservation efforts with varying 
degrees of certainty in terms of effectiveness and implementation. To 
aid future assessments of conservation efforts, NMFS and USFWS recently 
published a proposed joint policy that identifies criteria that will be 
used to evaluate the certainty of implementation and effectiveness of 
formalized conservation efforts that have not yet been fully 
implemented or have been recently implemented and have not yet 
demonstrated effectiveness at the time of a listing decision (65 FR 
37102, June 13, 2000). Moreover, the agency will continue to encourage 
all forms of species conservation-voluntary and otherwise-that it 
believes will help prevent species from being listed under the ESA or 
aid in listed species' recovery.

Issue 3: Sufficiency and Accuracy of Scientific Information and 
Analyses

    Comment 3: Some commenters questioned the sufficiency and accuracy 
of data NMFS employed in the listing proposal. Many, including the peer 
reviewer, requested that NMFS make every effort to review new data, 
especially from tribes, states, anglers/guides, and hatchery personnel. 
Some commenters suggested that risk assessments were made in an 
arbitrary manner and that NMFS did not rely on the best available 
science.
    Response: As noted in the February 12, 2001, listing proposal, NMFS 
expected that more information was available than that which the agency 
had on file as of December 2000. Therefore, the agency considered it 
imperative to solicit and review updated information prior to making a 
final listing determination for KMP steelhead. Based on the 
considerable amount of new information received, it is apparent that 
this solicitation was both prudent and successful. NMFS acknowledges 
that there are still significant data gaps pertaining to this ESU, and 
that conclusions about the ESU's status are complicated by such 
uncertainties. However, the ESA does not require that a specific 
information threshold be met prior to making a listing determination. 
Instead, section 4(b)(1)(A) of the ESA requires that NMFS make its 
listing determinations solely on the basis of the best available 
scientific and commercial data after reviewing the status of the 
species and after taking into account conservation efforts. NMFS 
invested considerable time and effort in working with co-managers and 
the affected public to compile such information on KMP steelhead. This 
information came from a variety of sources (including those described 
here) and the agency appreciates the significant contributions made by 
all interested parties-in particular, the state and tribal co-managers-
to assist in this effort. Information contained in the agency's 
previous status reviews (NMFS, 1996a; NMFS, 1997a; NMFS, 1998a; NMFS, 
2000) and updated status review (NMFS, 2001), along with information on 
conservation efforts, represents the best scientific and commercial 
information presently available for the KMP steelhead ESU. The agency

[[Page 17847]]

believes that these reviews, coupled with considerable input from the 
public, co-managers, peer reviewers, and other species experts, 
demonstrate that its listing determinations are based on an open and 
rigorous scientific assessment.

Issue 4: Steelhead Biology and Ecology

    Comment 4: Some commenters contend that hatchery-produced steelhead 
are no different from ``wild'' steelhead and hence should be considered 
in NMFS' risk assessment.
    Response: NMFS believes that section 2(b) of the ESA establishes a 
clear linkage between ``wild'' (i.e., naturally produced) fish and 
their native habitats when it states that ``the purposes of this Act 
are to provide a means whereby the ecosystems upon which endangered 
species and threatened species depend may be conserved.'' NMFS' interim 
policy on artificial propagation of Pacific salmon (58 FR 17573, April 
5, 1993) reinforces that ``evaluations of the status of the population 
under the ESA depend on the viability of the population in the natural 
habitat.'' There is ample evidence indicating that hatchery- and 
naturally produced fish are in fact different, and that hatchery fish 
can have significant and long-lasting impacts on natural steelhead 
populations (see NMFS, 1996b). Indeed, one of the most difficult tasks 
in conducting a salmonid risk assessment is discerning the viability of 
natural populations when their actual status is being ``masked'' by 
hatchery fish. That said, NMFS recognizes that hatchery propagation can 
be used to prevent a species from becoming extinct in the near term 
while steps are taken to address factors contributing to the decline of 
natural populations. To better understand the relationship between 
hatchery- and naturally produced fish in the KMP steelhead ESU, the 
NMFS steelhead BRT completed an assessment of hatchery stocks (NMFS, 
1998a) (see ``KMP Steelhead ESU Determination'' later in this document) 
and concluded that 7 steelhead hatchery stocks should be considered 
part of this ESU. However, using criteria described in NMFS' artificial 
propagation policy (58 FR 17573, April 5, 1993), none of these stocks 
was deemed essential for the recovery of the ESU.
    Comment 5: Several commenters questioned NMFS' inclusion of both 
summer- and winter-run steelhead in the same ESU. These commenters 
suggested that summer-and winter-run steelhead be segregated into 
individual ESUs based on life history differences and the fact that 
winter-run fish are relatively healthier in this ESU.
    Response: While NMFS considers both life history forms (summer- and 
winter-run steelhead) to be important components of diversity within 
the species, new genetic data reinforce previous conclusions that, 
within a geographic area, summer- and winter-run steelhead typically 
are more genetically similar to one another than either is to 
populations with similar run timing in different geographic areas. This 
indicates that an ESU that includes summer-run populations from 
different geographic areas but excludes winter-run populations (or 
vice-versa) would be an inappropriate unit. The only biologically 
meaningful way to have summer- and winter-run steelhead populations in 
separate ESUs would be to have a very large number of ESUs, most 
consisting of just one or a very few populations. This would be 
inconsistent with the approach NMFS has taken in defining ESUs for 
other anadromous Pacific salmonids. Taking these factors into 
consideration, NMFS concludes that summer- and winter-run steelhead 
should be considered part of the same ESU in geographic areas where 
they co-occur.
    For similar reasons, NMFS does not believe it is appropriate to 
split ESUs based on the varying degrees of health of constituent 
populations.
    Comment 6: Some commenters believe that resident rainbow trout 
should be included in the KMP steelhead ESU if it is listed.
    Response: In its August 9, 1996, listing proposal, NMFS stated that 
based on available genetic information, it was the consensus of NMFS 
scientists, as well as regional fishery biologists, that resident fish 
should generally be considered part of the steelhead ESUs, but also 
concluded that available data were inconclusive regarding the 
relationship of resident rainbow trout and steelhead. NMFS requested 
additional data to clarify this relationship and determine if resident 
rainbow trout should be included in listed steelhead ESUs. In response 
to this request for additional information, many groups and individuals 
expressed opinions regarding this issue.
    While conclusive evidence does not yet exist regarding the 
relationship of resident and anadromous O. mykiss, NMFS believes 
available evidence suggests that resident rainbow trout should be 
included in listed steelhead ESUs in certain cases. Such cases include: 
(1) where resident O. mykiss have the opportunity to interbreed with 
anadromous fish below natural or man-made barriers; or (2) where 
resident fish of native lineage once had the ability to interbreed with 
anadromous fish but no longer do because they are currently above 
human-made barriers, and they are considered essential for recovery of 
the ESU. Resident fish above long-standing natural barriers, and those 
that are derived from the introduction of non-native rainbow trout, 
would not be considered part of any ESU.
    NMFS believes resident fish can help buffer extinction risks to an 
anadromous population by mitigating depensatory effects in spawning 
populations, by providing offspring that migrate to the ocean and enter 
the breeding population of steelhead, and by providing a ``reserve'' 
gene pool in fresh water that may persist through times of unfavorable 
conditions for anadromous fish. In spite of these potential benefits, 
presence of resident populations is not a substitute for conservation 
of anadromous populations. A particular concern is isolation of 
resident populations by human-caused barriers to migration. This 
interrupts normal population dynamics and population genetic processes 
and can lead to loss of a genetically based trait (anadromy). As 
discussed in NMFS' ``species identification'' paper (Waples, 1991), the 
potential loss of anadromy in distinct population segments may in and 
of itself warrant listing the ``species'' as a whole.
    NMFS and USFWS adopted a joint policy to clarify their 
interpretation of the phrase ``distinct population segment (DPS) of any 
species of vertebrate fish or wildlife'' for the purposes of listing, 
delisting, and reclassifying species under the ESA (61 FR 4722). DPSs 
are ``species'' pursuant to section 3(15) of the ESA. Previously, NMFS 
had developed a policy for stocks of Pacific salmon where an ESU of a 
biological species is considered ``distinct'' (and hence a species) if 
(1) it is substantially reproductively isolated from other conspecific 
population units, and (2) it represents an important component in the 
evolutionary legacy of the species (56 FR 58612, November 20, 1991). 
NMFS believes available data suggest that resident rainbow trout are in 
many cases part of steelhead ESUs. However, the FWS, which has ESA 
authority for resident fish, holds that behavioral forms can be 
regarded as separate DPSs and that absent evidence suggesting resident 
rainbow trout need ESA protection, the FWS concludes that only the 
anadromous forms of each ESU should be listed under the ESA (U.S. 
Department of Interior, 1997; USFWS, 1997).

[[Page 17848]]

Issue 5: Factors Contributing to the Decline of the KMP Steelhead 
ESU

    Comment 7: Some commenters identified factors for decline that were 
either not identified in the NMFS status reviews or which they believed 
were not given sufficient consideration in the risk analysis. Other 
commenters contend that recent declines in KMP steelhead abundance are 
related to natural factors such as marine mammal predation and changes 
in ocean productivity.
    Response: The status review did not attempt to exhaustively 
identify factors for decline, except insofar as they contributed 
directly to the risk analysis. Nevertheless, NMFS agrees that a 
multitude of factors, past and present, have contributed to the decline 
of west coast steelhead. Many of the identified risk factors were 
specifically cited in NMFS' original west coast steelhead status review 
(NMFS, 1996a) and subsequent listing notices (61 FR 41541; 63 FR 13347; 
65 FR 6960). In addition, 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'' (NMFS, 1996b). This report 
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 recognizes that natural environmental fluctuations have likely 
played a role in the species' recent declines as well. However, NMFS 
believes other human-induced impacts (e.g., harvest in certain 
fisheries, artificial propagation, and widespread habitat modification) 
have played a greater role in the decline of steelhead. NMFS' 1996 
status review briefly addressed the impact of adverse marine conditions 
and climate change, but concluded that there is considerable 
uncertainty regarding the role of these factors in steelhead abundance. 
At this time, we do not know whether these climate conditions represent 
a long-term shift in conditions that will continue into the future or 
short-term environmental fluctuations that can be expected to reverse 
soon (NMFS, 1996b). A recent review by Hare et al. (1999) suggests that 
these conditions could be part of an alternating 20- to 30-year regime 
pattern. These authors concluded-and NMFS concurs-that although at-risk 
salmonid stocks may benefit from a reversal in the current climate/
ocean regime, fisheries management should continue to focus on reducing 
impacts from harvest and artificial propagation and improving 
freshwater and estuarine habitats.
    With respect to predation impacts on steelhead, NMFS has recently 
published reports describing the impacts of California sea lions and 
Pacific harbor seals upon salmonids and on the coastal ecosystems of 
Washington, Oregon, and California (NMFS, 1997b; NMFS, 1999a). These 
reports conclude that in certain cases where pinniped populations co-
occur with depressed salmonid populations, salmonid populations may 
experience severe impacts due to predation. An example of such a 
situation is at the Ballard Locks, WA, where sea lions are known to 
consume significant numbers of adult winter steelhead. These reports 
further conclude that data regarding pinniped predation are quite 
limited and that substantial additional research is needed to fully 
address this issue. Existing information on the seriously depressed 
status of many salmonid stocks may be sufficient to warrant actions to 
remove pinnipeds in areas of co-occurrence where pinnipeds prey on 
depressed salmonid populations (NMFS, 1997b; NMFS, 1999a).

Issue 6: Consideration of Existing Conservation Measures

    Comment 8: Numerous commenters noted that an array of state and 
Federal conservation measures were underway for this and other species 
and asked that NMFS give them more consideration in its listing 
determination. Several summarized ongoing conservation efforts that 
have resulted in millions of dollars being spent to benefit fish. In 
contrast, some reviewers contended that the state efforts were 
inadequate to conserve steelhead and that Federal protection under the 
ESA was the best way to protect the species from threats due to habitat 
degradation.
    Response: NMFS has reviewed existing conservation efforts relevant 
to the KMP steelhead ESU (see ``Efforts Being Made to Protect West 
Coast Steelhead'' later in this document) and believes that many of the 
efforts described in comments show promise for ameliorating the risks 
facing the species. The agency acknowledges that in some cases, 
measures described in comments have not been implemented or are in 
their early stages of implementation and have not yet demonstrated 
success. Some of these measures are also geographically limited to 
individual river basins or political subdivisions, thereby improving 
conditions for only a small portion of the entire ESU. Still, NMFS 
recognizes and applauds the considerable interest and efforts shown by 
individual landowners, conservation groups, and Federal and state 
agencies, tribes, and local entities to improve watershed health and 
restore fishery resources.
    NMFS has recently initiated recovery planning for the threatened 
southern Oregon/northern California Coasts (SONCC) coho salmon (O. 
kisutch) ESU, a species with substantial habitat overlap with KMP 
steelhead. NMFS intends to capitalize on the significant efforts being 
made by all entities, from large-scale transboundary actions adopted 
via the Northwest Forest Plan and Klamath and Trinity Rivers 
Restoration Acts to more localized efforts like those implemented by 
the Five Counties Salmon Conservation Program and Scott River Watershed 
Council. These efforts, coupled with ESA protective regulations for 
listed coho salmon, will likely improve conditions for KMP steelhead as 
well.
    Comment 9: Several commenters expressed their belief that current 
California Forest Practice Rules (FPRs) were adequate to protect 
northern California steelhead. Several comments expressed concern that 
NMFS did not adequately review and consider the interim FPR changes 
adopted by the California Board of Forestry (BOF) for anadromous 
salmonids in March 2000.
    Response: NMFS disagrees with the assertion that the state's FPRs, 
as currently implemented, are adequate to protect anadromous salmonids 
in California. NMFS has reviewed the state FPRs, including those 
interim changes recently adopted by the BOF and concludes that they do 
not adequately protect anadromous salmonids, including steelhead, or 
provide for properly functioning habitat conditions. In fact, the 
deleterious impacts of timber harvest and other activities have 
resulted in recent listings by the Environmental Protection Agency of 
many north coast California streams as sediment and/or temperature 
impaired under section 303(d) of the Clean Water Act. Furthermore, the 
failure of the state to amend the FPRs was a primary reason that NMFS 
recently reconsidered its March 19, 1998, (63 FR 13347) decision for 
the Northern California steelhead ESU and has now listed that ESU as a 
threatened species under the ESA (65 FR 36074, June 7, 2000).

Issue 7: Economic Considerations

    Comment 10: Numerous commenters believed that NMFS failed to 
address the economic impacts that would result from listing the KMP 
steelhead ESU.

[[Page 17849]]

 One commenter contended that some counties could incur annual economic 
impacts amounting to several million dollars due to reductions in 
revenues associated with tourism and angling.
    Response: NMFS recognizes that an ESA listing would likely result 
in economic costs to some entities. The ESA has been interpreted to 
prohibit the consideration of economic impacts in the listing process, 
but requires analysis of economic impacts when designating critical 
habitat. NMFS did not propose to designate critical habitat for KMP 
steelhead and therefore did not draw conclusions about economic 
impacts.

Issue 8: Supplemental ESA Requirements Regarding Take Prohibitions, 
Critical Habitat Designation, and Recovery Planning

    Comment 11: Several commenters requested NMFS' guidance on ESA 4(d) 
regulations in case the KMP steelhead ESU is listed as a threatened 
species. Others requested that the agency designate critical habitat as 
soon as possible. Comments from a tribal entity requested that NMFS 
exclude tribal lands from critical habitat. This commenter also 
requested that NMFS define specific recovery goals for steelhead to 
expedite recovery planning.
    Response: As noted in the listing proposal, NMFS had planned to 
develop and propose take prohibitions (i.e., an ESA 4(d) rule) and 
critical habitat designations after the event of a final listing for 
KMP steelhead. However, these issues are now moot given that the agency 
has determined that listing is not warranted for this ESU (see Listing 
Determination).

KMP Steelhead ESU Determination

    The KMP steelhead ESU has been described in NMFS' status review 
documents and Federal Register notices cited here; no new scientific 
information has been received to indicate that the ESU should be 
redefined. This ESU includes both winter and summer steelhead 
inhabiting coastal river basins between the Elk River in Oregon and the 
Klamath River in California, inclusive. Half-pounder juveniles 
(described previously under ``Life History of KMP Steelhead'') also 
occur in this geographic area. Geologically, this region includes the 
Klamath Mountains Geological Province, which is not as erosive as the 
Franciscan formation terrains south of the Klamath River Basin. 
Dominant vegetation along the coast is redwood forest, while some 
interior basins are much drier than surrounding areas. The region is 
characterized by many endemic plant species. Elevated stream 
temperatures are a factor affecting steelhead and other species in some 
of the larger river basins. With the exception of major river basins, 
such as the Rogue and Klamath, most rivers in this region have a short 
duration of peak flows. Strong and consistent coastal upwelling begins 
at about Cape Blanco and continues south into the central California 
coast, resulting in a relatively productive nearshore marine 
environment. Protein electrophoretic analyses of coastal steelhead have 
indicated genetic discontinuities between the steelhead of this region 
and those to the north and south (Hatch, 1990; NMFS, 1993; NMFS, 1994; 
NMFS, 1996a). Chromosomal studies have also identified a distinctive 
karyotype that has been reported only from populations within this ESU.
    The relationship between hatchery steelhead populations and 
naturally spawned steelhead within this ESU was also assessed in a NMFS 
status review update (NMFS, 1998a). Based on this assessment, NMFS' 
steelhead BRT concluded that 7 steelhead hatchery stocks are part of 
this ESU because they were established from indigenous natural 
populations. In Oregon these stocks are: Applegate River - ODFW stock # 
62 (winter run), Upper Rogue River - ODFW stock # 52 (winter run), 
Upper Rogue River - ODFW stock # 52 (summer run), and Chetco River - 
ODFW stock # 96 (winter run). In California, the stocks are: Iron Gate 
Hatchery stock (winter run), Trinity River Hatchery stock (fall/winter 
run), and Rowdy Creek Hatchery stock (winter-run).

Updated Status of KMP Steelhead

    As described previously in this document, NMFS last addressed the 
KMP steelhead ESU in 1998 (63 FR 13347, March 19, 1998), with the 
steelhead BRT concluding its assessments in January 1998 (NMFS, 1997a; 
NMFS, 1998a). Hence, the agency's decision to place this ESU on the 
candidate species list was based on information made available through 
1997. For the current review, NMFS considered information that has 
become available since then, with particular emphasis on how that 
information addressed the specific concerns that the BRT initially 
expressed in 1994. Information from a wide variety of sources was 
submitted to NMFS during the public comment period, at public hearings, 
and during meetings with comanagers. Information directly integral to 
the BRT's latest assessment are described in detail in the updated 
status review for KMP steelhead (NMFS, 2001) and included: dam, weir, 
and trap counts; angler reports/catch data; seine, gillnet, and 
electrofishing surveys; snorkel and redd counts; hatchery release/
return data; and population modeling analyses.
    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. Specific concerns raised by 
the BRT in its 1994 review include:
    1. Although historical trends in overall abundance within the ESU 
are not clearly understood, there has been a substantial replacement of 
natural fish with hatchery produced fish.
    2. Since about 1970, trends in abundance have been downward in most 
steelhead populations within the ESU, and a number of populations are 
considered by various agencies and groups to be at moderate to high 
risk of extinction.
    3. Declines in summer steelhead populations are of particular 
concern.
    4. Most populations of steelhead within the area experience a 
substantial infusion of naturally-spawning hatchery fish each year. 
After accounting for the contribution of these hatchery fish, we are 
unable to identify any steelhead populations that are naturally self-
sustaining.
    5. Total abundance of adult steelhead remains fairly large (above 
10,000 individuals) in several river basins within the region, but 
several basins have natural runs below 1,000 adults per year.
    Recently the BRT considered new information regarding KMP steelhead 
in the context of previously existing information and assessed these 
collective data with respect to the general risk factors identified 
above. A summary of their assessment and conclusions follows.

Naturally Spawning Hatchery Fish

    The original status review for KMP (NMFS, 1994) identified the high 
estimated proportion of naturally spawning hatchery fish as a major 
risk

[[Page 17850]]

factor. Subsequently, ODFW (Chilcote, 1997) indicated that some of the 
earlier estimates they had provided, and which were used in the 1994 
status review, were largely based on samples provided by anglers and 
thus were upwardly biased by counts of non-spawning half-pounder 
steelhead. More recently, ODFW (2001) has collected new empirical data 
indicating that the percentage of naturally spawning hatchery fish is 
very low (less than 4 percent) in the upper Rogue Basin. The hatchery 
proportion remains relatively high in two areas of the Oregon portion 
of the ESU that still have hatchery programs: the Applegate River 
(about 25 percent of natural spawners are hatchery origin) and the 
Chetco River (about 50 percent of the fish in the lower river are of 
hatchery origin). The incidence of natural spawning by hatchery fish in 
the Chetco River as a whole is not known but is likely much lower; most 
of the spawning areas are above the sampling area, which is also near 
the area where juvenile hatchery fish are released and hatchery 
broodstock is collected. In 2000-01, ODFW also sampled adult steelhead 
returning to streams outside the Rogue River basin in the Oregon part 
of this ESU and found that 7 percent were hatchery fish. This compares 
with an estimate of 15 percent in the 1997 ODFW report and 25-80 
percent for most populations considered by NMFS (1994) for which ODFW 
provided information.
    In California, the largest proportions of naturally spawning 
hatchery fish are believed to occur in the Trinity River, where 
estimates from the 1990s range from 20-70 percent hatchery. These 
estimates apply to fall-run fish. Because the hatchery program in the 
Trinity River basin propagates mostly fall-run fish, natural spawners 
in this basin that return at other run times are believed to be 
predominantly of natural origin. In the Klamath River basin, the Iron 
Gate Hatchery stock has been such a poor producer of adult returns 
(Koch, 2001) that the proportion of naturally spawning hatchery fish in 
the basin is believed to be low. Recent CDFG angler-catch data for the 
Klamath River supports this conclusion, which is also corroborated by 
information from several commenters and a peer reviewer (some of whom 
provided data from their harvest punchcards). In the Smith River, an 
estimated 27-37 percent of adults in the lower portion of the river 
have been hatchery fish in recent years; however, as discussed earlier, 
this probably overestimates (but by an unknown amount) the proportion 
of hatchery fish in natural spawning areas.
    Based on this information, the BRT concluded that significant 
impacts of naturally spawning hatchery fish appear to be localized to a 
few areas of the ESU: The Applegate River, the Trinity River fall run, 
and perhaps the Smith River and the Chetco River.

Declining Trends

    Most populations in the Oregon part of this ESU for which adequate 
data were available during the initial status review showed sharply 
declining trends (NMFS, 1994). Trends were mixed in the data sets for 
California populations. For both states, the trends in the initial 
status review were based on data series that ended in 1989 to 1991. 
Comparisons of recent trends with these older data are difficult 
because most of the Oregon data series were based on angler counts, and 
these data stopped after implementation of catch and release 
regulations in 1991. Outside of the Rogue River in Oregon, no recent 
information is available to estimate trends in adult abundance.
    In California, adult trend data are available for a number of 
relatively small summer steelhead populations. Most of these showed a 
precipitous decline to very low abundance around 1990 and relatively 
little change since that time. In 2000, however, many of these 
populations showed a modest increase in abundance.
    Interpretation of these trend data is difficult because they are 
sensitive to the initial year in the data series. For most steelhead 
populations coastwide, peak abundances over the last 30-40 years 
occurred during the 1980s. Therefore, population trends that started 
during this period almost universally show declines. However, it is 
difficult to determine whether these declines are part of a natural 
cycle of abundance or something more serious. Trends that cover longer 
time series (e.g., the counts at Gold Ray Dam on the Rogue River) are 
often positive or flat. Most of the trends for summer steelhead are 
based on snorkel surveys, that do not represent population abundance 
and are difficult to standardize across years.
    Some insight into effects of the last few years of data on 
population trends can be gained by comparing current short-term trends 
(based on the most recent 7-10 years of data) with short-term trends 
computed based on data available at the time of the last status review 
update. In Oregon streams, the current short term trends are more 
positive (or at least less negative) than they were in 1997 for all of 
the streams for which a comparison is possible; in California streams, 
seven of the current trends for natural populations are better than 
they were in 1997, two are essentially unchanged, and two are less 
favorable than they were in 1997. Collectively, these data indicate 
that in most areas within the ESU, recent trends are somewhat more 
favorable now than they were at the time of the last status assessment. 
In spite of these relative improvements, however, in some cases the 
populations are still declining.

Population Abundance and Distribution

    Reliable estimates of population abundance are available for only a 
fraction of the populations in this ESU. Throughout the ESU, monitoring 
of adult winter steelhead which local biologists agree is the dominant 
and most abundant life history form is very poor due to logistical 
difficulties in sampling adults during the winter season. The most 
reliable data are probably counts at Gold Ray Dam that separate fish of 
hatchery and natural origin. These data show recent (5 year) geometric 
mean abundance of about 6800 natural origin winter steelhead and about 
3000 natural origin summer steelhead. In the Trinity River, counts at 
Willow Creek weir provide an estimate of about 2000 natural origin 
fall-run spawners per year.
    To help address the considerable information gap for the majority 
of steelhead populations in this ESU, in 1999 and 2000 ODFW conducted 
juvenile density surveys in streams in Oregon. Based on results 
summarized above, they concluded that steelhead populations in other 
Oregon streams in the ESU were at least as robust as those in the Rogue 
basin. ODFW also found juvenile O. mykiss resent in almost all the 
sites they examined in the Rogue River basin and in all of the sites 
examined in other Oregon streams. This suggests that adult steelhead 
are well distributed throughout suitable habitat in the Oregon portion 
of the ESU. However, as this study did not separate out data for the 
higher elevation habitats most likely to support summer steelhead, the 
mean density values could be masking lower densities of summer 
steelhead.
    ODFW also used four methods to estimate total adult abundance of 
steelhead in the Oregon portion of the ESU. All involved extrapolation 
based on the total number of miles of steelhead habitat, and two also 
involved expanding from juveniles to adults based on estimated survival 
rates. All methods yielded annual estimates in the range 69,000 to 
83,000 adults.

[[Page 17851]]

    No comparable methods have been used to estimate total abundance 
for California populations. However, CDFG and tribal biologists did 
point out that existing data provide information about only a fraction 
of the natural steelhead populations in the California portion of this 
ESU. For example, the Willow Creek weir samples steelhead only over a 
period of about 3 months during the fall run and thus provides no 
information about other runs in the basin. Based on professional 
judgement and the consensus that the largely unsampled winter-run 
populations are the most abundant, California biologists estimated 
natural escapement in the California part of this ESU to be 
approximately 30,000-50,000 adults per year. Combined with the ODFW 
estimates, these suggest the total abundance of naturally spawning 
steelhead in the ESU may be approximately 100,000-130,000
    Finally, ODFW biologists observed that the KMP steelhead ESU range 
is a geologically unique area; in fact, geological and ecological 
distinctiveness was one of the factors that helped identify this area 
as an ESU (NMFS, 1994). This area is characterized by high relief and 
highly erosive habitat that is more well-suited to steelhead than the 
generally lower-relief streams in coastal areas to the north and the 
south of the KMP. The widespread availability of good steelhead habitat 
throughout the KMP made the ODFW biologists more comfortable in 
extrapolating steelhead data into unsampled areas.
    The BRT regarded the overall abundance estimates as only very crude 
approximations. Two of the ODFW methods are based on survival estimates 
that may be optimistic, and all depend on the assumption that unsampled 
areas are comparable to the small fraction of the areas actually 
sampled. The abundance estimates for the California side are even less 
rigorous. However, even if the estimates are high by a factor of two, 
they still would represent a significant number of natural fish--quite 
possibly more than in any other steelhead ESU considered in NMFS' 
coastwide status reviews of the species.
    The BRT agreed that the juvenile abundance data suggest that adult 
steelhead are well distributed throughout at least the Oregon part of 
the ESU. However, the BRT noted the large variance associated with 
these estimates and also noted that other studies (e.g., Shea and 
Mangel, 2001) have shown that juvenile abundance data provides at best 
low power to estimate adult abundance of salmon and steelhead.

Summer Steelhead

    In previous status reviews, the BRT expressed serious concern about 
the status of summer steelhead in the KMP steelhead ESU. Those concerns 
have not diminished. Summer steelhead populations remain severely 
depressed throughout the ESU, in spite of a modest upward turn in 2000 
in many streams. The uniformity in the status of summer steelhead 
throughout large geographic areas of this ESU suggest that they may all 
be experiencing a common risk factor(s)- perhaps poor environmental 
conditions in freshwater habitat or in the ocean.
    As discussed earlier, little direct information is available 
regarding historical distribution of summer steelhead in this ESU. 
However, it is believed that, historically, summer steelhead occurred 
primarily in the upper parts of the major basins- the Rogue, Klamath, 
and Trinity Rivers. Considerable summer-run habitat has already been 
lost above and because of impassible dams in these three systems. 
Recent data indicate that summer steelhead still exist in about five 
areas within each of these major basins, which may be the most 
widespread representation of the summer-run life history type for any 
ESU of the coastal subspecies of steelhead. Whether summer steelhead 
have disappeared from other areas that they used historically cannot be 
determined based on available data, but the 1997 Klamath National 
Forest Survey cited above provides some reason for concern that this 
may be the case.

Viability Analyses

    Chilcote (2001) revised a method he used previously (Chilcote, 
1997) to estimate viability of Oregon steelhead populations, including 
four populations in the Rogue River basin for which adequate data were 
available. On the basis of this analysis, Chilcote concluded that the 
summer- and winter-run populations in the upper Rogue River and the 
winter run population in the Applegate River all have a negligible 
probability of extinction, but the mid-Rogue River summer-run 
population is at appreciable risk. The BRT was concerned about several 
aspects of this viability model (in particular the form of the 
recruitment function, the use of an 18-year cycle of ocean survivals, 
the choice of viability criteria, and assumptions about hatchery fish) 
that they believe can lead to overly optimistic conclusions regarding 
viability. Nevertheless, the BRT did not disagree with the conclusions 
regarding viability of the upper Rogue River winter-run population, 
which appears to be healthy based on overall abundance and trend. The 
Upper Rogue summer-run population also is relatively large, but the 
ODFW model does not account for the sharp downward trend in recent 
years which, if it persists into the future, could eventually place the 
population at risk. The BRT was skeptical of the conclusion of no 
extinction risk for the Applegate River population because it depends 
upon specific assumptions about the response of the natural fish to 
naturally spawning hatchery fish. Other assumptions could lead to the 
conclusion that the population is falling far short of replacing 
itself.
    After considering the best available information since the last 
steelhead status review (NMFS, 1997a; NMFS, 1998a), the BRT evaluated 
the overall status of the KMP steelhead ESU. The majority of BRT 
scientists believed that the ESU was not in danger of extinction nor 
likely to become so in the foreseeable future, while a substantial 
minority believed that it was likely to become endangered. The range of 
views among BRT scientists reflected the substantial degree of 
uncertainty that continues to be associated with evaluating the status 
of this ESU. This result differs from that of previous evaluations of 
this ESU, in which a majority of BRT scientists concluded that the ESU 
was likely to become endangered in the foreseeable future. However, the 
BRT's conclusions parallel the reductions in the risks associated with 
various factors for the species' decline (see ``Summary of Factors 
Affecting the Species'' later in this document).
    In spite of relatively favorable indicators for this ESU, the BRT 
remained concerned about several issues. First, the status of summer 
steelhead throughout this ESU continues to be a serious concern to the 
BRT as well as to local biologists. Second, the pervasive lack of 
information for winter-run populations, which by all accounts represent 
the majority of fish in this ESU, continues to hinder a more 
quantitative and reliable assessment of the status of KMP steelhead. 
More effort is needed to collect biological data on winter steelhead 
throughout this ESU. Third, the contribution of hatchery fish to 
natural spawning escapements continues to be high in some areas, and 
this poses continuing demographic, ecological, and genetic risks to 
wild populations. Ongoing monitoring of these effects, as well as 
longer time series of data to demonstrate conclusively whether previous

[[Page 17852]]

estimates of hatchery contribution were biased upwards, should be an 
important component of steelhead conservation programs in this area.

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 
educational 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 numerous factors leading to the decline of 
steelhead on the West Coast (NMFS, 1996b). 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 West Coast steelhead. The report further identifies several 
factors that were considered to have contributed to the decline of the 
KMP steelhead ESU, including: hatchery introgression, logging, water 
diversion/extraction, habitat blockages, poaching, agriculture, 
hydropower development, historic flooding, and mining. Hence, the 
present depressed condition of this ESU can be attributed to 
longstanding, human-induced factors that serve to exacerbate the 
adverse effects of natural environmental variability from such factors 
as drought, floods, and poor ocean conditions.
    In reassessing the status of the KMP steelhead ESU, the BRT 
evaluated specific areas of risks associated with many of the factors 
identified above. This evaluation involved ranking risk factors on a 
scale from 1-5 (very low risk to high risk). More detailed descriptions 
of this process are contained in the updated status review for KMP 
steelhead (NMFS, 2001), while the following sections summarize the 
conclusions.

Abundance and Distribution

    This element covers demographic and genetic risks caused by small 
population size and risks to the ESU as a whole caused by reductions in 
distribution of populations. The mean score for this element was 3.0 
(range 2-4), indicating moderate risk. Most of the concerns regarding 
this element were for summer steelhead populations, most of which are 
at very low abundance. The BRT remained concerned about possible loss 
of this key life history type in portions of the ESU.

Trends and Productivity

    The mean score for this element was 2.9 (range 2-4), indicating 
moderate risk. The scores reflect the mixed nature of the trend data; 
many are declining, but others are not. The general lack of reliable 
trend data for most winter-run populations remained a concern and a 
major source of uncertainty.

Genetic Integrity

    Genetic integrity primarily covers genetic risks to natural 
populations from hatchery programs, including loss of fitness and loss 
of diversity among populations. The mean score for this element was 2.3 
(range 2-3), indicating low to moderate risk. The concerns focused 
primarily on areas with a relatively high proportion of naturally 
spawning hatchery fish (Trinity, Applegate, and perhaps Smith and 
Chetco Rivers).

Other Risk Factors

    The only additional risk factor identified was the very low 
survival of Iron Gate Hatchery fish. Although in itself this is not a 
risk factor for wild fish, it may be an indication of serious 
environmental problems in the river that could also affect wild fish. 
The BRT expressed concern about this issue but recognized that at this 
point it is only speculative.

Recent Events

    The BRT considered factors that have recently occurred and which 
may have predictable consequences for steelhead populations, but whose 
effects for the most part have not yet been reflected in the data. 
These include:
    (1) There are some indications that atmospheric and oceanographic 
conditions have recently shifted toward a regime more favorable for 
ocean survival of salmonids in the Pacific Northwest. The majority of 
the BRT felt that this might benefit steelhead in the KMP ESU in the 
near future. However, the BRT acknowledged that there is no way to 
predict with any certainty how long favorable ocean conditions might 
last, and that no one has demonstrated a direct link between ocean 
conditions and marine survival of KMP steelhead.
    (2) A majority of the BRT felt that habitat improvements (e.g., 
stream restoration activities, riparian corridor restoration, 
improvements to culverts, road removal) that have occurred through 
various state and Federal programs should improve conditions for 
steelhead, but there is no basis at this point for quantifying the 
possible beneficial effects of these activities.
    (3) No-retention provisions for wild steelhead have recently been 
implemented in both Oregon and California portions of the ESU. The 
first 2-3 years of data for Klamath and Smith River basin steelhead 
suggest that this has already been effective in allowing several 
hundred more natural fish per year to spawn. The BRT concluded that 
this management change would benefit wild steelhead populations in the 
near term.
    (4) Drought and recent power shortages. The BRT was concerned that 
these factors might lead to low water flows in some streams, but 
insufficient information was available to provide any quantitative 
evaluation of this factor.
    Scores for each of three major risk elements (i.e., abundance, 
trends, and genetics) were lower than in the last BRT evaluation of 
this ESU. In 1997, the mean (and range) scores were 3.4 (2-5), 3.4 (3-
4), and 3.0 (2-4) for abundance, trends, and genetic integrity, 
respectively (NMFS, 1997a). The current risk scores can also be 
compared with scores for 11 other steelhead ESUs that were considered 
for final listing determinations by the BRT in 1997. Of those 11 ESUs, 
10 were subsequently listed as threatened or endangered species. For 
those 10 listed ESUs, the range of the mean risk scores were as 
follows: abundance (3.4-5.0); trends (3.4-4.4); genetic integrity (2.8-
4.3). The current mean risk scores for the KMP ESU, therefore, are 
lower than those for any listed ESU for each of the three risk 
elements. The only ESU included in the 1997 evaluations that was not 
listed was the Oregon Coast ESU, for which the respective risk scores 
were 2.9, 2.9, and 3.1. The current risk scores for the KMP ESU are 
comparable to those of the Oregon Coast ESU for abundance and trends 
and lower than the Oregon Coast ESU for genetic integrity.

Efforts Being Made to Protect West Coast Steelhead

    Section 4(b)(1)(A) of the ESA requires the Secretary 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 by any 
state or foreign nation to protect the species. Therefore, in making 
its listing determinations, NMFS first assesses the status of the 
species and identifies

[[Page 17853]]

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 has considered 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. 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 intended 
conservation benefits are realized.
    As part of its West Coast steelhead status reviews, 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 
supplement to the earlier status reviews (NMFS, 1996c). NMFS also 
reviewed steelhead conservation measures being implemented by the 
States of California and Oregon at the time of its March 19, 1998, 
listing determination for the KMP steelhead ESU (63 FR 13347). The 
following sections summarize new information reviewed since the status 
of this ESU was last addressed in March 1998.

State and Local Efforts

    Recent efforts in California and Oregon include habitat 
improvements, harvest restrictions and hatchery improvements, and 
monitoring under the following categories/programs: (1) California's 
Watershed and Anadromous Fish Habitat Restoration Program; (2) 
California's harvest and hatchery management; (3) California's 
steelhead monitoring, (4) Oregon harvest and hatchery management; and 
(5) Oregon steelhead monitoring. In addition, NMFS received several 
comments describing local conservation efforts, in particular for the 
California portion of the KMP steelhead ESU. The status of these 
efforts is discussed in more detail here.
    1. California Watershed and Anadromous Fish Habitat Restoration - 
In 1997, California's funding for watershed and habitat restoration in 
coastal watersheds, including those in the KMP steelhead ESU, increased 
substantially with the enactment of new legislation (SB 271) which 
provided CDFG with $43 million over 6 years for these types of 
projects. State funding available for coastal watershed and habitat 
restoration projects was greatly supplemented in 2000 and will be again 
in 2001 by Federal Pacific Coastal Salmon Recovery funds. Since 1997, 
the state has spent approximately $8 million on over 140 watershed an 
fish habitat restoration projects within the geographic area 
encompassed by the KMP steelhead ESU. In 2000-01, the state funded 
approximately 35 projects in this ESU at a total of over $4.5 million 
and expects to continue restoration funding at this level for the next 
several years. Restoration projects that have been implemented include 
instream habitat improvements, improved fish passage through barrier 
modification and construction of fish screens and ways, streambank 
stabilization, riparian habitat restoration and upslope activities 
geared at minimizing erosion and sedimentation in streams. In addition 
to the expanded habitat restoration program funded by SB 271 and other 
sources, CDFG 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. In accordance with the 1998 NMFS/California MOA 
for Northcoast steelhead and the 2000 MOA with the state concerning the 
transfer and administration of Federal Pacific Coast Salmon Recovery 
funds, NMFS participates in the review of watershed and habitat 
restoration proposals under the state program.
    2. California Harvest and Hatchery Management - In February 1998, 
CDFG completed a strategic management plan for the KMP steelhead ESU 
which included new and existing management measures addressing the 
recreational harvest of steelhead and the management of steelhead 
hatchery programs. In March 1998, the State and NMFS formally committed 
to implement this plan as part of the NMFS/California MOA. As called 
for in the plan, the California Fish and Game Commission (Commission) 
adopted emergency changes to the state's inland fishing regulations in 
February and March 1998 to protect steelhead in this ESU. These changes 
included: (1) elimination of wild steelhead retention in all stream and 
rivers within the ESU except for the Smith River where limited 
retention was allowed based on the health of the population, (2) 
fishing closures in steelhead rearing tributaries throughout the ESU to 
protect juvenile fish, (3) expanded mainstem river closures through the 
end of May to protect juvenile outmigrating steelhead, and (4) various 
gear/bait restrictions to decrease mortality associated with incidental 
hooking of steelhead juveniles. Prior to NMFS' 1998 final listing 
determination for the KMP steelhead ESU, NMFS reviewed these regulation 
changes and concluded they would substantially reduce impacts to adult 
and juvenile steelhead (NMFS 1998). The emergency regulations were 
formally enacted by the Commission in June 1998 following public review 
and comment and they continue to be in place. NMFS believes these more 
restrictive angling regulations continue to provide the reduction in 
impacts and other benefits that were expected at the time they were 
enacted in 1998.
    In accordance with the KMP steelhead strategic management plan and 
the 1998 NMFS/California MOA, the CDFG also committed to continue and/
or implement new hatchery management measures intended to reduce 
impacts to wild steelhead in this ESU. These measures included: (1) the 
continuation of release strategies intended to minimize impacts on wild 
steelhead, (2) continued marking of all hatchery produced steelhead 
that were released, (3) the continued prohibition on stocking of 
domestic trout in steelhead waters, (4) a commitment to reduce hatchery 
releases or implement other changes in hatchery practices if 
significant straying of hatchery fish was found to occur, (5) a cap on 
hatchery production at current levels, regular health checks during the 
rearing cycle and the destruction of diseased fish that cannot be 
treated, and (6) a review of the existing operating procedures for all 
coop rearing facilities and adoption of a requirement that coop 
facilities develop and submit 5-year management plans to the state for 
approval. As with the harvest management changes enacted by the State, 
NMFS reviewed these management measures and concluded they would 
benefit wild steelhead in the KMP steelhead ESU. In addition to these 
measures, NMFS and CDFG have also been conducting a state-wide review 
of CDFG's hatchery programs including those in the KMP steelhead ESU 
(Iron Gate hatchery and Trinity River hatchery) with the objective of 
ensuring these programs are compatible with the conservation of listed 
and candidate anadromous salmonids, including steelhead. This review is 
expected to be completed in 2001.
    3. California Steelhead Monitoring - In accordance with the 1998 
NMFS/California MOA, the CDFG committed to develop and implement an 
expanded

[[Page 17854]]

monitoring, evaluation, and adaptive management program for steelhead 
with the range of the KMP and Northern California steelhead ESUs. In 
response to this commitment, CDFG funded and established the Steelhead 
Research and Monitoring Program (S-RAMP) in early 1999 and developed a 
research program which was implemented in late 1999/2000. Within the 
KMP steelhead ESU, this program conducts projects on the Smith, Klamath 
and Trinity Rivers, including various creel censuses, spawner surveys, 
juvenile trapping studies, and other research oriented projects. Future 
studies are planned to address steelhead residualism in the Klamath and 
Trinity Rivers and summer steelhead abundance in both ESUs. NMFS 
intends to continue working with CDFG through the joint scientific and 
technical team which provides advice to the S-RAMP to refine its study 
objectives and funding priorities so that it will provide useful 
information of the status of wild steelhead stocks in the KMP steelhead 
ESU.
    4. Oregon Harvest and Hatchery Management - Prior to NMFS' 1998 
listing determination for the KMP steelhead ESU, significant changes 
were made to hatchery programs and recreational fishing regulations 
affecting steelhead in the Oregon portion of this ESU. The major 
changes related to fishing included reduction or elimination of the 
harvest of wild adult steelhead, reduction or elimination of the 
harvest of wild trout, specific gear restrictions when angling with 
bait, and establishing sanctuary areas that are closed to all fishing. 
Significant changes to hatchery management included eliminating 
stocking of hatchery trout in flowing waters where anadromous fish 
occur, reducing the number of hatchery steelhead smolts released, 
elimination of inappropriate hatchery broodstocks, and development of 
locally adapted broodstocks. NMFS assessed these management changes in 
1998 and concluded that they would benefit KMP steelhead (NMFS, 1998b). 
Moreover, all of the management changes related to hatcheries and 
harvest that were implemented by ODFW's emergency regulations in March 
1998 were adopted as permanent rules in August 1998 and remain in 
effect.
    5. Oregon Steelhead Monitoring - The steelhead supplement to the 
Oregon Plan for Salmon and Watersheds (OPSW, 1998) includes a measure 
committing the ODFW to work with NMFS to establish population health 
goals for wild steelhead in Oregon. In support of this measure, and in 
coordination with the OPSW's state-wide monitoring strategy, ODFW 
developed a set of population health goals and assessment methods in 
1999 (ODFW, 1999). The specific goals address: (1) habitat 
characteristics; (2) densities of juvenile steelhead; (3) steelhead 
distribution; (4) fry production; (5) abundance of Rogue River 
steelhead; and (6) life history of summer steelhead. NMFS participated 
in the development of these goals and concluded that the overall 
monitoring approach addressed key issues and would improve 
understanding of the health of KMP steelhead populations (NMFS, 1999b). 
Monitoring conducted during the past 2 years has generated a 
considerable amount of information on KMP steelhead. As noted 
previously in this document (see ``Updated Status of KMP Steelhead''), 
ODFW has reported O. mykiss present in almost all the sites they 
examined, suggesting that adult steelhead are well distributed 
throughout suitable habitat in the Oregon portion of the ESU. NMFS will 
continue to work with ODFW to make needed modifications in these 
monitoring efforts to ensure that they continue to track the health and 
productivity of KMP steelhead populations.
    6. Local Efforts - Private lands comprise approximately 35 percent 
of the land ownership within the range of the KMP steelhead ESU. As 
noted previously in this document, NMFS received numerous comments 
regarding salmonid conservation efforts by local entities and 
individual landowners. Specific efforts identified included those by 
the Five Counties Salmon Conservation Program, Scott River Watershed 
Council, Shasta River Coordinated Resource Management Plan, Salmon 
River Restoration Council. In addition, the Natural Resources 
Conservation Service district offices and Resource Conservation 
Districts have been working closely with local landowners and 
governments to improve salmonid habitats throughout the range of KMP 
steelhead. These efforts have involved expenditures of millions of 
dollars and helped generate considerable landowner interest in salmonid 
restoration work, including: inventorying fish barriers and restoring 
access to anadromous fish habitats (e.g., replacing culverts with 
bridges); improving and abandoning forest roads; fencing and planting 
riparian areas; identifying riparian reserves; promoting large woody 
debris; screening water diversions; controlling runoff/sedimentation; 
monitoring fish and habitat; and educating youth and local communities 
about the importance of salmon and watersheds. NMFS believes that these 
efforts, coupled with ESA protective regulations for listed coho 
salmon, will likely improve conditions for KMP steelhead as well.

Tribal Efforts

    During the public comment period, NMFS received information from 
the Hoopa Valley and Yurok Tribes; the latter provided information 
regarding their efforts to promote the conservation of KMP steelhead. 
Key efforts cited by the Yurok Tribe include: (1) monitoring of adult 
and juvenile steelhead in the Klamath and Trinity River basins via 
creel, outmigrant, and spawner surveys; and (2) tribal advocacy and 
funding for habitat restoration activities and hatchery fish marking 
strategies. The tribe also underscored their support for the recent 
Trinity River Record of Decision which establishes in-stream flows 
aimed at protecting fish in this Klamath River subbasin.

Federal Efforts

    Substantial Federal conservation efforts in California and Oregon 
continue to address and improve habitat conditions for KMP steelhead. 
As described in the agency's 1998 listing determination (63 FR 13347, 
March 19, 1998), benefits to steelhead accrue from four major Federal 
efforts: (1) the Northwest Forest Plan; (2) Klamath and Trinity River 
basin restoration; and (3) ESA protections for threatened SONCC coho 
salmon, in particular, (a) ESA section 7 consultations and (b) habitat 
conservation planning. The status of these efforts is discussed in more 
detail here.
    1. Northwest Forest Plan (NFP) - The NFP is a Federal interagency 
cooperative program, for which a Record of Decision was signed and 
implemented in April 1994. The NFP represents a coordinated ecosystem 
management strategy for Federal lands administered by the U.S. Forest 
Service (USFS) and Bureau of Land Management (BLM) within the range of 
the northern spotted owl (which overlaps considerably with the 
freshwater range of KMP steelhead). The most significant element of the 
NFP for anadromous fish is its Aquatic Conservation Strategy (ACS), a 
regional-scale aquatic ecosystem conservation strategy that includes: 
(1) special land allocations, such as key watersheds, riparian 
reserves, and late-successional reserves, to provide aquatic habitat 
refugia; (2) special requirements for project planning and design in 
the form of standards and guidelines; and (3) new watershed analysis, 
watershed restoration, and monitoring processes. These ACS components 
collectively

[[Page 17855]]

ensure that Federal land management actions achieve a set of nine 
Aquatic Conservation Strategy objectives, which include salmon habitat 
conservation. In recognition of over 300 ``at-risk'' Pacific salmonid 
stocks within the NFP area (Nehlsen et al., 1991), the ACS was 
developed by aquatic scientists, with NMFS participation, to restore 
and maintain the ecological health of watersheds and aquatic ecosystems 
on public lands. The ACS strives to maintain and restore ecosystem 
health at watershed and landscape scales to protect habitat for fish 
and other riparian-dependent species and resources and to restore 
currently degraded habitats. The approach seeks to prevent further 
degradation and to restore habitat on Federal lands over broad 
landscapes.
    NMFS believes that implementation of the NFP will continue to 
provide substantial benefits to KMP steelhead. While the NFP covers a 
very large area, the overall effectiveness of the NFP in conserving KMP 
steelhead is somewhat limited by the extent of Federal lands 
(approximately 63 percent of the ESU's range) and the fact that Federal 
land ownership is not uniformly distributed in watersheds within the 
affected ESUs. Therefore, long-term habitat protection within the range 
of this ESU continues to be improvement in non-Federal land management, 
particularly those lands used for timber harvest.
    2. Klamath/Trinity River Basin Restoration - The Klamath Act (Pub. 
L. 99-552), which was passed by Congress in 1986, authorized a 20-year 
Federal-state cooperative Klamath River Basin Conservation Area 
Restoration Program for the rebuilding of the river's fish resources. 
The Klamath Act created a 14-member Klamath River Basin Fisheries Task 
Force (Task Force) and directs the U.S. Secretary of Interior to 
cooperate with the Task Force in the creation and implementation of a 
Klamath River Basin Conservation Area Fishery Restoration Program 
(KRBFTF, 1991). The Task Force members are appointed by, and represent, 
the Governors of California and Oregon; the U.S. Secretaries of 
Interior, Commerce and Agriculture; the California counties of Del 
Norte, Humboldt, Siskiyou and Trinity; Hoopa Valley, Karuk and Yurok 
Indian tribal fishers; as well as by anglers and commercial fishermen. 
The Klamath Act also created an 11-member Klamath Fishery Management 
Council to ``establish a comprehensive long-term plan and policy * * * 
for the management of the in-river and ocean harvesting that affects or 
may affect Klamath and Trinity River basin anadromous salmon 
populations.'' The Council comprises essentially the same interests as 
the Task Force, except for the four county representatives who hold 
seats only on the Task Force.
    In addition to habitat restoration projects implemented pursuant to 
the Klamath Act, the Department of Interior contracted with Utah State 
in 1998 to develop interim flow recommendations downstream of Iron Gate 
Dam for salmon and steelhead. This study was initiated to develop a 
more scientific basis for instream flow needs for anadromous salmonids 
than existed previously. The second phase of this study is ongoing and 
involves close technical coordination with the USFWS, U.S. Geological 
Survey, NMFS, CDFG, and the Klamath basin Indian tribes. NMFS is 
confident this research effort will provide the technical and 
scientific basis leading to increased flows, improved water quality, 
and increased rearing habitat for juvenile salmon and steelhead in the 
Klamath River.
    In October 1984, the Trinity River Basin Fish and Wildlife 
Restoration Act (Act) was enacted by Congress. The Act appropriated $33 
million dollars over a 10-year period for design and construction of 
restoration projects and $2.4 million dollars annually for operation, 
maintenance, and monitoring. The Act embodied in law an 11-point plan 
to restore and maintain fish and wildlife resources in the basin at 
levels which occurred prior to the construction of the Trinity River 
Diversion, Central Valley Project. The Trinity River Basin Fish and 
Wildlife Task Force, which was formed to investigate and develop an 
action plan to identify and correct fish and wildlife problems in the 
Trinity River basin, issued the Trinity River Basin Fish and Wildlife 
Management Program Report, which outlined five major goals to restore 
fish and wildlife. The report identified ten major actions and 
associated costs to restore fish populations and rehabilitate habitat. 
A 3-year action plan was issued by the Task Force in 1988 and a second 
3-year plan was issued in 1992. This most recent plan identifies over 
100 restoration, supplementation, and monitoring activities to be 
completed over the next 3 years.
    In December 2000, the Secretary of Interior issued a Record of 
Decision for restoration of the Trinity River which culminated years of 
study (Trinity River Flow Evaluation Study) and a multi-year effort to 
develop an Environmental Impact Statement/Environmental Impact Report 
(EIS/EIR) for the program. The development of this program was mandated 
by several Federal actions of statutes including a 1981 Department of 
Interior Secretarial Decision, the Trinity River Restoration Act, and 
the 1992 Central Valley Project Improvement Act. The new restoration 
program includes: (1) a new instream flow regime that provides for 
increases flow releases according to hydrologic year type and reduced 
exports to the Central Valley, (2) mechanical channel rehabilitation of 
47 sites in the river, (3) coarse and fine sediment management and 
gravel replacement, (4) bridge replacement and infrastructure 
modification, (5) watershed restoration, and (6) adaptive management. 
NMFS fully supports the implementation of this new program and believes 
it will result in significant increases in anadromous fish populations, 
including steelhead within the Trinity River basin.
    3. ESA Section 7 Consultations - On May 6, 1997, the SONCC coho 
salmon ESU was listed as a threatened species under the ESA (62 FR 
24588). The range of this ESU encompasses all major river basins 
inhabited by KMP steelhead, although the species' distribution varies 
to a degree within individual subbasins. The SONCC coho salmon listing 
has resulted in significant Federal focus on improving salmonid habitat 
conditions in southern Oregon and northern California. The USFS and BLM 
routinely engage NMFS in section 7 consultations to ensure that ongoing 
or proposed activities do not jeopardize coho salmon or adversely 
modify its critical habitat.
    Over the past 4 years, NMFS has consulted on over 200 ongoing and 
proposed activities that may affect salmonid habitats within the range 
of the KMP steelhead ESU. Biological assessments (BAs) and biological 
opinions (BOs) cover a wide range of management activities, including 
forest and/or resource area-wide routine and non-routine road 
maintenance, hazard tree removal, range allotment management, watershed 
and instream restoration, special use permits (e.g., mining, ingress/
egress), flood control, water supply/irrigation (e.g., Klamath River 
and Trinity River flows), and timber sale programs (e.g., green tree, 
fuel reduction, thinning, regeneration, and salvage). These BAs and BOs 
include region-specific best management practices, necessary measures 
to minimize impacts for listed anadromous salmonids, monitoring, and 
environmental baseline checklists for each project. In addition to the 
numerous consultations involving Federal land management actions, NMFS 
has also consulted on a variety of activities involving private actions 
requiring Federal authorization or approval. Examples of these actions

[[Page 17856]]

include significant instream projects such as building boat ramps and 
docks, water withdrawals, and dredging activities. NMFS' involvement in 
these consultations, and the resultant BOs, have resulted in a more 
consistent approach to management of public lands throughout the range 
of KMP steelhead.
    4. Habitat Conservation Plans - NMFS and USFWS are also engaged in 
an ongoing effort to assist in the development of multiple species 
Habitat Conservation Plans (HCPs) for state and privately owned lands 
in California and Oregon. While section 7 of the ESA addresses species 
protection associated with Federal actions and lands, Habitat 
Conservation Planning under section 10 of the ESA addresses species 
protection on non-Federal lands. HCPs are particularly important since 
about 37 percent of the habitat in the range of the KMP steelhead ESU 
is in non-Federal ownership. The intent of the HCP process is to reduce 
conflicts between listed species and economic development activities 
and to provide a framework that encourages creative partnerships 
between the public and private sectors and state, municipal, and 
Federal agencies in the interests of endangered and threatened species 
and habitat conservation.
    To date, two HCPs are under development within the range of KMP 
steelhead, one by Simpson Timber Company and the other by the Grants 
Pass Irrigation District (GPID). However, only the latter has been 
formally submitted to NMFS. GPID has requested an Incidental Take 
Permit (Permit) regarding the operation of Savage Rapids Dam in 
Josephine and Jackson Counties, OR, and has prepared an HCP designed to 
minimize and mitigate incidental take of endangered and threatened 
species. Fish passage has been an issue at Savage Rapids Dam since GPID 
constructed the dam in 1921. GPID proposes to operate Savage Rapids Dam 
consistent with conservation measures developed during 1998-2000 to 
reduce take, with further operational modifications based on the timing 
of fish runs. Activities proposed for inclusion in the GPID Permit 
include: all aspects of operating the dam, including opening and 
closing the radial gates, installing and removing the stoplogs, and 
operating the fish ladders, the turbine and the screens, and the 
diversion facilities. The Permit and HCP would also cover monitoring 
activities and related scientific experiments in the HCP area.
    The proposed Permit would authorize the incidental take of SONCC 
coho salmon, but GPID also sought coverage for KMP steelhead (in the 
event this ESU was listed). The duration of the proposed Permit and HCP 
is 1 year. NMFS very recently announced the availability of the HCP and 
a draft Environmental Assessment for review (66 FR 15080, March 15, 
2001) and expects to make a final Permit decision after April 16, 2001. 
In addition, during the 1-year implementation period, GPID will 
continue to pursue Federal authorization and funding for dam removal. 
Within that time period, more information regarding the likelihood and 
timing of dam removal will be available, and a new proposed action can 
be identified.

Listing Determination

    Section 3 of the ESA defines an endangered species as any species 
in danger of extinction throughout all or a significant portion of its 
range, and a threatened species as any species likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. Section 4(b)(1)(A) 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 
being made by any state or foreign nation to protect such species.
    As described previously in this document, the NMFS steelhead BRT 
reviewed updated abundance and trend information available for this ESU 
(NMFS, 2001) and the majority of BRT scientists concluded that the ESU 
was not in danger of extinction nor likely to become so in the 
foreseeable future. The change since 1998 in the BRT's overall risk 
assessment can primarily be attributed to new information that affected 
the interpretation of two major factors:
    1. Current information indicates that the proportion of naturally 
spawning hatchery fish, at least in Oregon, is much lower than 
indicated by data available for the initial steelhead status review 
(NMFS, 1994), and somewhat lower than the revised estimates available 
at the time of the last assessment (NMFS, 1997a; NMFS, 1998a). The new 
information reduced concerns of the BRT for genetic risks associated 
with artificial propagation and increased confidence that naturally 
sustaining populations are more widely distributed throughout this ESU 
than previously thought.
    2. Although solid estimates of overall abundance in this ESU are 
still not available, new information provided reason to believe that 
abundance of natural fish in this ESU is probably at least 50,000 
adults and may exceed 100,000. Natural production in this ESU may 
exceed that of any other steelhead ESU considered in the coastwide 
status review.
    These findings, coupled with the agency's conclusion that existing 
conservation efforts are collectively benefitting steelhead in this 
ESU, form the basis for NMFS' decision that the KMP steelhead ESU does 
not warrant listing under the ESA at this time.

References

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

    Dated: March 28, 2001.
Clarence Pautzke,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 01-8166 Filed 4-3-01; 8:45 am]
BILLING CODE 3510-22-S