[Federal Register Volume 68, Number 188 (Monday, September 29, 2003)]
[Proposed Rules]
[Pages 55926-55932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24568]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 030716175-3187-02; I.D.070303A]
RIN 0648-AQ77


Endangered and Threatened Species: Advance Notice of Proposed 
Rulemaking to Designate Critical Habitat for 20 Listed Evolutionarily 
Significant Units of Pacific Salmon and Steelhead

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

ACTION: Advance Notice of Proposed Rulemaking; request for information.

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SUMMARY: The National Marine Fisheries Service (NMFS) will be preparing 
critical habitat designation proposals for five species of Pacific 
salmon and steelhead (Oncorhynchus spp.) listed under the Endangered 
Species Act (ESA). The designations will address 20 evolutionarily 
significant units (ESUs) of these species in the states of WA, OR, ID, 
and CA. This advance notice of proposed rulemaking (ANPR) identifies 
issues for consideration and evaluation, and solicits comments 
regarding these issues as well as information regarding the areas and 
species under consideration.

DATES: Comments and information regarding the suggested designation 
process and areas being considered for designation may be sent to the 
appropriate address or fax number (See ADDRESSES), no later than 5 p.m. 
on November 13, 2003.

ADDRESSES: Comments may be sent to Chief, Protected Resources Division, 
NMFS, 525 NE Oregon Street - Suite 500, Portland, OR 97232. Comments 
may also be sent via facsimile (fax) to 503 230-5435 or submitted on 
the Internet at http://www.nmfs.noaa.gov/ibrm.

FOR FURTHER INFORMATION CONTACT: Steve Stone, NMFS Northwest Region 
(WA, OR, and ID), 503/231-2317; Craig Wingert, NMFS Southwest Region 
(CA), 562/980-4021; or Lamont Jackson, NMFS Office of Protected 
Resources, Silver Spring, MD, 301/713-1401.

SUPPLEMENTARY INFORMATION:

Rulemaking Background

    NMFS is responsible for determining whether species, subspecies, or 
distinct population segments of Pacific salmon and steelhead are 
threatened or endangered and which areas constitute critical habitat 
for them under the ESA (16 U.S.C. 1531 et seq.). To be considered for 
listing under the ESA, a group of organisms must constitute a 
``species,'' which is defined in section 3 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.'' The agency has determined that a group of Pacific salmon or 
steelhead populations qualifies as a distinct population segment if it 
is substantially reproductively isolated and represents an important 
component in the evolutionary legacy of the biological species. A group 
of populations meeting these criteria is considered an ``evolutionarily 
significant unit'' (ESU) (56 FR 58612, November 20, 1991). In its ESA 
listing determinations for Pacific salmon and steelhead, NMFS has 
treated an ESU as a ``distinct population segment.'' To date NMFS has 
identified 26 ESUs as threatened or endangered under the ESA (see 50 
CFR 223.203 and 224.101).
    Section 4(b)(2) of the ESA requires NMFS to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat.'' This section grants the 
Secretary [of Commerce] discretion to exclude any area from critical 
habitat if he determines ``the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat.'' The 
Secretary's discretion is limited, as he may not exclude areas if it 
``will result in the extinction of the species.''
    The ESA defines critical habitat under section 3(5)(A) as:
    ``(i) the specific areas within the geographical area occupied 
by the species, at the time it is listed . . ., on which are found 
those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and
    (ii) specific areas outside the geographical area occupied by 
the species at the time it is listed . . . upon a determination by 
the Secretary that such areas are essential for the conservation of 
the species.''
    Once critical habitat is designated, section 7 of the ESA requires 
federal agencies to ensure they do not fund, authorize or carry out any 
actions that will destroy or adversely modify that habitat. This 
requirement is in addition to the section 7 requirement that federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.
    On February 16, 2000, NMFS published a final rule designating 
critical habitat for 19 ESUs of west coast salmon and steelhead (65 FR 
7764). The designations included more than one hundred and fifty river 
subbasins in WA, OR, ID, and CA. Within each occupied subbasin, NMFS 
designated as critical habitat those lakes and river reaches accessible 
to listed fish along with the associated riparian zone, except for 
reaches on Indian land. Areas considered inaccessible included areas 
above long-standing natural impassable barriers and areas above 
impassable dams, but not areas above ephemeral barriers such as failed 
culverts.
    In considering the economic impact, NMFS determined that the 
critical habitat designations would impose very little or no additional 
requirements on federal agencies beyond those already imposed by the 
listing of the species themselves. The ESA's prohibition against 
adversely modifying critical habitat applies only to federal agencies, 
which are also prohibited from jeopardizing the continued existence of 
listed species. NMFS reasoned that since it was designating only 
occupied habitat, there would be few or no actions that adversely 
modified critical habitat that also did not jeopardize the continued 
existence of the species. Therefore, there would be no economic impact 
as a result of the designations (65 FR 7764, 7765, February 16, 2000).
    The National Association of Homebuilders (NAHB) challenged the 
designations in District Court in Washington, D.C. as having 
inadequately considered the economic impacts of the critical habitat 
designations (National Ass'n of Homebuilders v. Evans, 2002 WL 1205743 
No. 00-CV-2799 (D.D.C.). NAHB also challenged NMFS' designation of 
Essential Fish Habitat (EFH) (Pacific Coast Salmon Fishery Management 
Plan, 2000). While the NAHB litigation was pending, the Court of 
Appeals for the 10\th\ Circuit issued its decision in New Mexico 
Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 248 F.3d 
1277 (10\th\ Cir. 2001) (NMCA). In that case, the Court rejected the 
U.S. Fish and Wildlife Service's (FWS) approach to economic analysis, 
which was similar to the approach taken by NMFS in the final rule 
designating critical habitat for 19 ESUs of west coast salmon and 
steelhead. The Court ruled that ``Congress intended that the FWS 
conduct a full analysis of all of the economic impacts of a critical 
habitat

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designation, regardless of whether those impacts are attributable co-
extensively to other causes.'' Subsequent to the 10th Circuit decision, 
NMFS entered into and sought judicial approval of a consent decree 
resolving the NAHB litigation. That decree provided for the withdrawal 
of critical habitat designations for the 19 salmon and steelhead ESUs 
and dismissed NAHB's challenge to the EFH designations. The District 
Court approved the consent decree and vacated the critical habitat 
designations by Court order on April 30, 2002 (National Ass'n of 
Homebuilders v. Evans, 2002 WL 1205743 (D.D.C. 2002).

Related Rulemaking and Litigation

    At the same time NAHB was challenging the critical habitat 
designations, other plaintiffs were challenging NMFS' listing decision 
for Oregon Coast coho salmon. In Alsea Valley Alliance v. Evans (143 F. 
Supp. 2d 1154 (D. Ore. 2001)) (Alsea), the U.S. District Court in 
Eugene, OR, set aside NMFS' 1998 ESA listing of the Oregon Coast coho 
salmon ESU, and ruled that NMFS' treatment of hatchery populations 
within this ESU was arbitrary and capricious. Specifically, the Court 
found that NMFS' 1998 listing of Oregon Coast coho salmon made improper 
distinctions below the level of an ESU by excluding hatchery 
populations from listing protection even though they were determined to 
be part of the same ESU as the listed naturally spawned populations. 
NMFS subsequently acceded to the District Court's decision and did not 
appeal the ruling. However, on December 14, 2001, the U.S. Court of 
Appeals for the Ninth Circuit (Appeal No. 01-36071) granted 
intervenors-appellants an emergency motion to stay the district court 
judgment in the Alsea decision. Accordingly, the Oregon Coast coho 
salmon ESU remains listed as a threatened species pending final 
disposition of the appeal.
    In light of the Alsea decision, NMFS announced it would reconsider 
its listing determinations for all salmon and steelhead ESUs affected 
by the ESA interpretive issues raised by the Court's decision (67 FR 
6215, February 11, 2002; 67 FR 79898, December 31, 2002). The agency 
also accepted several petitions to reconsider its listing of other ESUs 
based on the Alsea decision (67 FR 6215, February 11, 2002; 67 FR 
48601, July 25, 2001). NMFS' schedule for reconsidering these listing 
decisions anticipates proposing any revised listing determinations for 
all 26 listed ESUs (and one candidate ESU) by March 2004. Since NMFS 
also intends to list those hatchery populations that are part of an 
ESU, many of the currently listed ESUs may be altered as a result of 
the ongoing status reviews, which could also affect the designation of 
critical habitat for such ESUs.

Issues for Consideration and Evaluation

    Section 4(a)(3) of the ESA requires NMFS to designate critical 
habitat for threatened and endangered species. NMFS is currently in the 
information-gathering phase, compiling information to prepare critical 
habitat proposals for the 19 ESUs vacated by the Court in April 2002 as 
well as the Northern California steelhead ESU listed as threatened on 
June 7, 2000 (65 FR 36074). If new information warrants, the agency 
also may later revise, subject to appropriate regulatory procedures, 
existing critical habitat designations for six ESUs (Sacramento River 
winter-run chinook, Central California coast coho, Southern Oregon/
Northern California coasts coho, Snake River sockeye, spring/summer 
chinook, and fall chinook salmon) that were not subject to the Court's 
decision in National Ass'n of Homebuilders v. Evans.
    Sections 3, 4(a) and 4(b) of the ESA suggest a number of questions 
the agency should consider when designating critical habitat for 
Pacific salmon and steelhead:
    What areas were occupied by the species at the time of listing?
    What physical and biological features are essential to the species' 
conservation?
    Are those essential features ones that may require special 
management considerations or protection?
    Are areas outside those currently occupied ``essential for 
conservation''?
    What are the benefits to the species of critical habitat 
designation?
    What economic and other relevant impacts would result from a 
critical habitat designation, even if coextensive with other causes 
such as listing?
    What is the appropriate geographic scale for weighing the benefits 
of exclusion and benefits of designation?
    What is the best way to determine if the failure to designate an 
area as critical habitat will result in the extinction of the species 
concerned?
    Answering these questions involves a variety of biological and 
economic considerations. Because these considerations are complex and 
there is considerable controversy surrounding critical habitat 
designations in general, NMFS is issuing this Advance Notice of 
Proposed Rulemaking to solicit information before issuing a proposed 
rule. During the information-gathering phase, NMFS is seeking public 
input and information (see ``Information Solicited'' below) and will 
gather and analyze the best available scientific data to support 
critical habitat designations. NMFS will continue to meet with 
comanagers and other stakeholders to review this information and the 
overall designation process. NMFS will then initiate rulemaking with 
the publication of a proposed designation of critical habitat, opening 
a period for public comment and the opportunity for public hearings. 
Information derived from NMFS' ongoing reconsideration of the listing 
determinations will also be important for defining the status of the 
relevant ESUs and informing the future critical habitat designations. 
NMFS is also undertaking recovery planning for the currently listed 
ESUs. Information developed in the recovery planning process will also 
inform any proposed critical habitat designations for the 20 ESUs.

Pacific Salmon and Steelhead Biology and Habitat Use

    Pacific salmon and steelhead are anadromous fish, meaning adults 
migrate from the ocean to spawn in freshwater lakes and streams where 
their offspring hatch and rear prior to migrating back to the ocean to 
forage until maturity. The migration and spawning times vary 
considerably between and within species and populations (Groot and 
Margolis, 1991). At spawning, adults pair to lay and fertilize 
thousands of eggs in freshwater gravel nests or ``redds'' excavated by 
females. Depending on lake/stream temperatures, eggs incubate for 
several weeks to months before hatching as ``alevins'' (a larval life 
stage dependent on food stored in a yolk sac). Following yolk sac 
absorption, alevins emerge from the gravel as young juveniles called 
``fry'' and begin actively feeding. Depending on the species and 
location, juveniles may spend from a few hours to several years in 
freshwater areas before migrating to the ocean. The physiological and 
behavioral changes required for the transition to salt water result in 
a distinct ``smolt'' stage in most species. On their journey juveniles 
must migrate downstream through every riverine and estuarine corridor 
between their natal lake or stream and the ocean. For example, smolts 
from Idaho will travel as far as 900 miles from their inland spawning 
grounds. En route to the ocean the juveniles may spend from a few days 
to several weeks in the estuary, depending on the species. The highly 
productive estuarine environment is an important feeding and 
acclimation area for juveniles preparing to enter marine waters.

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    Juveniles and subadults typically spend from one to five years 
foraging over thousands of miles in the North Pacific Ocean before 
returning to spawn. Some species, such as coho and chinook salmon, have 
precocious life history types (primarily male fish) that mature and 
spawn after only several months in the ocean. Spawning migrations known 
as ``runs'' occur throughout the year, varying by species and location. 
Most adult fish return or ``home'' with great fidelity to spawn in 
their natal stream, although some do stray to non-natal streams. Salmon 
species die after spawning, while steelhead may return to the ocean and 
make repeat spawning migrations.
    This complex life cycle gives rise to complex habitat needs, 
particularly during the freshwater phase (see review by Spence et al., 
1996). Spawning gravels must be of a certain size and free of sediment 
to allow successful incubation of the eggs. Eggs also require cool, 
clean, and well-oxygenated waters for proper development. Juveniles 
need abundant food sources, including insects, crustaceans, and other 
small fish. They need places to hide from predators (mostly birds and 
bigger fish), such as under logs, root wads and boulders in the stream, 
and beneath overhanging vegetation. They also need places to seek 
refuge from periodic high flows (side channels and off channel areas) 
and from warm summer water temperatures (coldwater springs and deep 
pools). Returning adults generally do not feed in fresh water but 
instead rely on limited energy stores to migrate, mature, and spawn. 
Like juveniles, they also require cool water and places to rest and 
hide from predators. During all life stages salmon and steelhead 
require cool water that is free of contaminants. They also require 
migratory corridors with adequate passage conditions (timing, water 
quality, and water quantity) to allow access to the various habitats 
required to complete their life cycle.
    The homing fidelity of salmon and steelhead has created a meta-
population structure with discrete populations distributed among 
watersheds (McElhany et al., 2000). Low levels of straying result in 
regular genetic exchange among populations, creating genetic 
similarities among populations in adjacent watersheds. Maintenance of 
the meta-population structure requires a distribution of populations 
among watersheds where environmental risks (e.g., from landslides or 
floods) are likely to vary. It also requires migratory connections 
among the watersheds to allow for periodic genetic exchange and 
alternate spawning sites in the case that natal streams are 
inaccessible due to natural events such as a drought or landslide.

Areas Occupied by the Species at the Time of Listing

    As described in ESA section 3(5)(A)(i), the agency will assemble 
the best available information to identify those ``specific areas 
within the geographical area occupied by the species at the time it is 
listed . . . on which are found those physical or biological features . 
. . (I) essential to the conservation of the species and (II) which may 
require special management considerations or protection.''
    The ESA specifies that critical habitat is that habitat occupied by 
the species ``at the time it is listed'' (ESA section 3(5)(A)(i)). Due 
to their anadromous, highly migratory life cycle and the presence of 
multiple year classes or ``cohorts,'' fish from a particular ESU are 
widely distributed at the time of listing. For example, at the time an 
ESU is listed the eggs from one cohort may be incubating in stream 
gravel while older cohorts are rearing in an estuary and still others 
are foraging in the North Pacific Ocean. Thus, the geographic area 
occupied is a vast and diverse array of habitats occupied 
simultaneously by various cohorts and life stages. NMFS' ESA 
regulations relevant to describing a ``geographical area'' and 
``specific areas'' state that ``each critical habitat will be defined 
by specific limits using reference points and lines as found on 
standard topographic maps of the area'' (50 CFR 424.12). These 
regulations require that NMFS also identify the state(s), county(ies), 
or other local governmental units within which all or part of the 
critical habitat is located. However, the regulations note that such 
political units typically would not constitute the boundaries of 
critical habitat. In addition, the regulations state that ephemeral 
reference points (e.g., trees, sand bars) shall not be used in defining 
critical habitat. Distribution information for Pacific salmon and 
steelhead is available in three general formats: (1) maps and databases 
identifying specific river segments (i.e., data mapped as line 
segments); (2) maps and databases identifying entire watersheds (i.e., 
data mapped as polygons); and (3) textual descriptions. During the 
information-gathering phase, NMFS is seeking information in all 
available formats.
    NMFS will seek the best scientific information available to make 
the designations as precise as practicable. Most of the data sources 
that NMFS has reviewed to date indicate that fish distribution can be 
mapped for most watersheds at a scale of 1 to 100,000 or greater (see 
StreamNet, 2003). At this coarse scale, numerous streams and stream 
reaches that may contain physical and biological features essential to 
conservation do not appear (Roni et al., 1997; StreamNet, 2003). Also, 
fish distribution maps are often based on a mix of empirical data 
(i.e., fish observations) and best professional judgement, and may not 
reflect the species' actual distribution in many stream reaches that 
have never been or have only occasionally been surveyed. During the 
information-gathering phase, NMFS is seeking information that will 
allow it to map specific river reaches, using reference points and 
lines as found on standard topographic maps, that (1) are currently 
occupied by the species and (2) contain essential physical and 
biological features. NMFS will seek input as to the accuracy and 
suitability of this approach, and the applicability of other 
approaches.
    NMFS has not designated marine areas in previous critical habitat 
designations for salmon, except in the case of Puget Sound chinook 
salmon and Hood Canal summer-run chum salmon. This exclusion was due to 
the lack of identifiable special management considerations affecting 
marine habitat features (65 FR 7764, 7771, February 16, 2000). However, 
in the February 2000 rulemaking the agency noted that it would be re-
evaluating this issue, especially in light of the recent marine area 
designations of EFH for Pacific salmon (Pacific Coast Salmon Fishery 
Management Plan, 2000). This notice seeks information on habitat in 
marine as well as freshwater areas.

Physical and Biological Features Essential for Conservation

    Joint NMFS/FWS regulations for listing endangered and threatened 
species and designating critical habitat at section 50 CFR 424.12(b) 
state that the agency ``shall consider those physical and biological 
features that are essential to the conservation of a given species and 
that may require special management considerations or protection 
(hereafter also referred to as ``Essential Features''). Pursuant to the 
regulations, such requirements include, but are not limited to the 
following: (1) Space for individual and population growth, and for 
normal behavior; (2) Food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) Cover or shelter; (4) 
Sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally; (5) Habitats that are protected from 
disturbance or are representative of the historic

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geographical and ecological distributions of a species. These 
regulations go on to emphasize that the agency shall focus on essential 
features within the specific areas considered for designation. These 
features ``may include, but are not limited to, the following: spawning 
sites, feeding sites, seasonal wetland or dryland, water quality or 
quantity, geological formation, vegetation type, tide, and specific 
soil types.''
    The 20 ESUs under consideration comprise five species, each of 
which has unique life history characteristics and habitat requirements. 
However, these characteristics/requirements depend on a common set of 
physical and biological features that are essential to the conservation 
of each species. Information supporting the identification of essential 
features is contained in a robust body of scientific literature 
addressing salmonid life history and habitat characteristics (e.g., see 
Everest et al., 1985; Bell, 1986; Groot and Margolis, 1991; FEMAT, 
1993; Spence et al., 1996). Also, NMFS is applying knowledge gained 
from over a decade's experience with thousands of ESA section 7 
consultations on listed salmonids to identify these features. NMFS has 
developed a decision matrix (NMFS, 1996) that describes general 
parameters and characteristics of most of the essential features now 
under consideration in critical habitat designations. During the 
information-gathering phase, NMFS seeks input on the following 
characterization of essential features.
    Essential features for the listed ESUs of salmon and steelhead 
include sites essential to support one or more life stages of a 
population necessary to the conservation of the ESU. These sites in 
turn contain generic features that contribute to their conservation 
value for the ESU. Specific types of sites and their generic features 
include:
    (1) Freshwater spawning sites with sufficient water quantity and 
quality and adequate substrate to support spawning, incubation and 
larval development;
    (2) Freshwater rearing sites with sufficient water quantity and 
floodplain connectivity to form and maintain physical habitat 
conditions and allow salmonid development and mobility; sufficient 
water quality to support growth and development; food and nutrient 
resources such as terrestrial and aquatic invertebrates, and forage 
fish; and natural cover such as shade, submerged and overhanging large 
wood, log jams, beaver dams, aquatic vegetation, large rocks and 
boulders, side channels and undercut banks;
    (3) Freshwater migration corridors free of obstruction and 
excessive predation, with adequate water quantity to allow for juvenile 
and adult mobility; cover, shelter and holding areas for juveniles and 
adults; and adequate water quality to allow for survival;
    (4) Estuarine areas that provide uncontaminated water and 
substrates; food and nutrient sources to support growth and 
development; and connected shallow water areas and wetlands to cover 
and shelter juveniles; and
    (5) Marine areas with sufficient water quality to support salmonid 
growth, development, and mobility; food and nutrient resources such as 
marine invertebrates and forage fish; and nearshore marine habitats 
with adequate depth, cover, and marine vegetation to provide cover and 
shelter.
    The conservation value of a site depends on (1) the importance of 
the populations associated with a site to the ESU conservation, and (2) 
the contribution of that site to the conservation of the population 
either through demonstrated or potential productivity of the area.

Special Management Considerations or Protection

    Coupled with the identification of essential features, during the 
information-gathering phase NMFS seeks input on whether the above 
essential features may require special management considerations or 
protection. For example, numerous special management considerations 
relate to fish passage conditions, including methods and procedures 
aimed at maintaining sufficient water flows and preventing or 
minimizing impacts from manmade barriers such as dams and culverts. 
Similarly, essential natural cover elements such as shade and large 
wood involve a variety of land management considerations. NMFS will 
document the special management considerations and protection 
associated with the essential features and expects to relate these to 
the factors affecting the species and/or critical habitat during formal 
rulemaking (see ``Schedule and Contents of Rulemaking).

Areas outside the Geographical Area Occupied by the Species

    Section 3(5)(A)(ii) of the ESA defines critical habitat to include 
specific areas outside the geographical area occupied by the species 
only if the Secretary determines them to be essential for the 
conservation of the species. Section 3(3) of the ESA defines 
conservation as ``the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary.'' NMFS' ESA regulations at 424.12(e) state that the agency 
``shall designate as critical habitat areas outside the geographical 
area presently occupied by a species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.'' NMFS would thus include areas outside the occupied 
geographical area only if areas within the occupied geographical area 
were not adequate to support conservation. In the previous designations 
of critical habitat (65 FR 7764, February 16, 2000), NMFS did not 
consider designations for areas outside the geographical areas occupied 
by the species. The agency is also seeking information on the adequacy 
of the currently occupied habitat to support conservation of the listed 
ESUs, and whether areas that are unoccupied might be ``essential for 
conservation.''

Determining Conservation Value

    Section 4(b)(2) of the ESA requires that the Secretary, before 
designating any particular area as critical habitat, weigh the benefit 
of excluding the area from designation against the benefit of including 
it in the designation. Accordingly, during the information-gathering 
phase, NMFS is seeking input on the benefit of designating areas as 
critical habitat. In particular, NMFS seeks information on the 
conservation value of potential critical habitat based on the quality 
and quantity of the essential feature(s) and on the difficulty of 
restoring the quality and quantity where those features have been 
limited or degraded. Federal agencies, states, tribes and others have 
already compiled a great deal of information on the historic and 
present importance of different areas to salmonid conservation. Some 
general types of information include stream habitat inventories, 
juvenile and spawning fish surveys, redd and dam counts, angler harvest 
records, and tagged fish recoveries. In some cases it may not be known 
whether an area was historically productive. Areas might also be 
considered to have a high potential if they possess characteristics of 
other highly productive areas.
    NMFS will also gather analyses provided by the NMFS Technical 
Recovery Teams. These Teams have been formed for several recovery 
planning areas covering most of the presently listed ESUs. The Teams 
first identify the population structure of the ESU and provide guidance 
on what

[[Page 55930]]

constitutes recovery for each population. The Teams next provide 
guidance on the numbers and distribution of recovered populations that 
would constitute a healthy ESU, as well as guidance on the status of 
populations that will not be recovered but still have a role to play in 
overall ESU health.
    NMFS also seeks input on the best methods for evaluating the 
conservation value of potential critical habitat areas. NMFS is 
interested in information relevant to monetizing the conservation value 
of an area, or to ranking the conservation benefits in an ordinal 
manner. Finally, NMFS is seeking input on what approaches would allow 
it to determine if excluding an area from designation will result in 
the extinction of the species.

Determining Economic and other Relevant Impacts

    Section 4(b)(2) of the ESA requires the Secretary to consider the 
``economic impact, and any other relevant impact,'' of designating a 
particular area as critical habitat. During the information-gathering 
phase, NMFS seeks information regarding the economic benefits of 
excluding an area from the critical habitat designation and the 
economic benefits of including an area as part of the critical habitat 
designation. In keeping with the guidance provided by the Office of 
Management and Budget (2000, 2003), NMFS seeks information that would 
allow it to monetize these effects to the extent possible, as well as 
information on qualitative impacts to economic values. NMFS is also 
seeking information on any other impacts of designating critical 
habitat.

The Appropriate Geographic Scale for Weighing the Benefits of Exclusion 
and Benefits of Inclusion

    There are thousands of miles of rivers and streams presently 
occupied by listed salmon and steelhead in OR, WA, ID, and CA. Before 
designating any ``particular area'' as critical habitat NMFS must 
balance the benefit of excluding that area against the benefit of 
including it in the designation (ESA section 4(b)(2)). To manage this 
task, streams and rivers must be grouped in a manner that allows for 
meaningful analysis. As discussed in more detail above, salmon 
populations tend to divide along watershed boundaries. Through the 
mapping efforts of the U. S Geological Survey (USGS), watersheds can be 
mapped across most of the salmon and steelhead range at a fairly fine 
scale, relative to the broad distribution of the species. NMFS seeks 
input on the relevance of using watersheds as a unit of analysis for 
the balancing test. In some cases it may be useful to consider habitat 
units at a finer scale than the watershed, for example where an 
economic impact or a conservation benefit can be isolated to a stream 
or river segment. NMFS therefore also seeks input on approaches to 
isolating impacts of designation at a finer scale than the watershed.

Process and Schedule

    In response to a complaint filed by the Pacific Coast Federation of 
Fishermen's Associations, Institute for Fisheries Resources, the Center 
for Biological Diversity, the Oregon Natural Resources Council, the 
Pacific Rivers Council, and the Environmental Protection Information 
Center alleging NMFS's failure to timely designate critical habitat, 
NMFS recently filed with the D.C. District Court an agreement resolving 
that litigation and establishing a schedule for designation of critical 
habitat. The schedule provides for submission by June 30, 2004 to the 
Federal Register for publication the proposed rule(s) designating 
critical habitat for those of the 20 ESUs that are included on the list 
of threatened and endangered species as of June 30, 2004. Additionally, 
the schedule provides for submission by January 18, 2005 to the Federal 
Register for publication the final rule(s) designating critical habitat 
for the 20 ESUs that are included on the lists of threatened and 
endangered species as of January 18, 2005. The District Court approved 
the agreement on September 12, 2003.
    As described in current agency regulations (50 CFR 424.16), NMFS 
anticipates that the proposed rulemaking will contain text detailing 
the proposal, a summary of the data used and its relationship to the 
proposal, a summary of factors affecting the species and/or critical 
habitat, citations of pertinent information sources, a map of the 
critical habitat, an economic report, and an explanation of a 4(b)(2) 
process and any areas proposed for exclusion. To the maximum extent 
practicable, the proposal will also include a brief description and 
evaluation of those activities (whether public or private) that, in the 
opinion of the Secretary, if undertaken, may adversely modify the 
critical habitat, or may be affected by the designation. Products to be 
made available to the public at this step also include access to maps 
depicting the areas proposed for designation and relevant agency 
biological and economic analyses supporting the rulemaking. NMFS also 
will provide the requisite comment period and opportunity for public 
hearings on the proposed rule.
    In addition to publication in the Federal Register, NMFS will 
provide the critical habitat proposal to, and invite comments from, 
affected states and counties (and equivalent jurisdictions) and 
scientific organizations as well as any federal agencies, tribal 
governments, local authorities, or private individuals or organizations 
known to be affected by the proposed rule. The agency will also publish 
a summary of the proposed rule in a newspaper of general circulation in 
affected areas. In accordance with a joint NMFS/FWS policy published on 
July 1, 1994 (59 FR 34270), NMFS will also seek the expert opinions of 
at least three appropriate and independent specialists. The purpose of 
such review is to ensure that the critical habitat designations are 
based on scientifically sound data, assumptions, and analyses. NMFS 
will send these peer reviewers copies of the proposed rule (and other 
documentation as needed) immediately following publication in the 
Federal Register. The agency will invite each peer reviewer to comment 
independently, during the public comment period, on the proposed 
designations and will specifically identify and address all peer review 
comments in the final rule.
    In accordance with the Secretarial Order on American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act, NMFS will coordinate with Federally recognized American 
Indian Tribes on a Government-to-Government basis to determine how to 
make critical habitat assessments in areas that may impact Tribal trust 
resources.
    NMFS will review all information received during the comment period 
as well as any new information identified after publishing the proposed 
designations. If changes are warranted, the agency will document the 
bases for the revisions and include this rationale as part of the 
administrative record for critical habitat designations.
    Per current agency regulations at 50 CFR 424.18 and 424.19, NMFS 
anticipates that the final designations will be published in a Federal 
Register notice containing the complete text of the rule, a summary of 
the comments and recommendations received in response to the proposal 
(including input from public hearings and peer reviewers), summaries of 
the data on which the rule is based and the relationship of such data 
to the final rule, and a description of any conservation measures 
available under the rule. The final rule will: summarize

[[Page 55931]]

factors affecting the species; identify physical and biological 
features essential to the conservation of the species that may require 
special management considerations or protection; describe any 
significant activities that would either affect an area considered for 
designation as critical habitat or be likely to be affected by the 
designation; identify the probable economic and other relevant impacts 
of the designation upon proposed or ongoing activities; identify the 
areas where the benefits of exclusion outweigh the benefits of 
including such areas as critical habitat; and describe the boundaries 
and include a map of critical habitat. To the maximum extent 
practicable, the final rule will also include a brief description and 
evaluation of those activities (whether public or private) that might 
occur in the designated areas and which, in the opinion of the 
Secretary, may adversely modify critical habitat or be affected by such 
designation.
    New information and public and peer reviewer comments may result in 
final designations that differ from the proposals.

Information Solicited

    Past critical habitat designations have generated considerable 
public interest. Therefore, NMFS believes it is important to engage the 
public early and often in the rulemaking process. This advance notice 
is a key first step, and NMFS encourages all interested parties to 
submit comments regarding the issues raised in this notice. NMFS is 
also soliciting biological and economic information relevant to making 
critical habitat designations for the following 20 ESUs: (1) Puget 
Sound chinook salmon; (2) Lower Columbia River chinook salmon; (3) 
Upper Willamette River chinook salmon; (4) Upper Columbia River spring-
run chinook salmon; (5) Central Valley Spring-run chinook salmon; (6) 
California coastal chinook salmon; (7) Oregon Coast coho salmon; (8) 
Hood Canal summer-run chum salmon; (9) Columbia River chum salmon; (10) 
Ozette Lake sockeye salmon; (11) Southern California steelhead; (12) 
South-Central California coast steelhead; (13) Central California Coast 
steelhead; (14) Central Valley California steelhead; (15) Upper 
Columbia River steelhead; (16) Snake River Basin steelhead; (17) Lower 
Columbia River steelhead; (18) Upper Willamette River steelhead; (19) 
Middle Columbia River steelhead; and (20) Northern California steelhead 
(see Figure 1).
    In accordance with agency regulations at 50 CFR 424.13, the agency 
will consult as appropriate with affected states, interested persons 
and organizations, other affected Federal agencies, and, in cooperation 
with the Secretary of State, with the country or countries in which the 
species concerned are normally found or whose citizens harvest such 
species from the high seas. Data reviewed may include, but are not 
limited to, scientific or commercial publications, administrative 
reports, maps or other graphic materials, information received from 
experts, and comments from interested parties. Specific data needs 
include:
    (1) Information (including fish surveys, dam counts, historical 
accounts, etc., as geographically specific as possible) on the past and 
current numbers and distribution of listed salmon and steelhead;
    (2) Information describing the quality and extent of marine, 
estuarine, and freshwater habitats for all life stages of listed salmon 
and steelhead, separately describing habitat occupied at the time of 
listing; currently occupied habitat; and habitat that is currently 
accessible but not occupied by listed salmon and steelhead;
    (3) Within areas occupied by salmon and steelhead in listed ESUs, 
NMFS seeks information regarding the physical and biological features 
that are essential to the conservation of the ESUs. Such essential 
features may include, but are not limited to: a) freshwater spawning 
sites with sufficient water quantity and quality and adequate substrate 
to support spawning, incubation and larval development; b) freshwater 
rearing sites with sufficient water quantity and floodplain 
connectivity to form and maintain physical habitat conditions and allow 
salmonid development and mobility; sufficient water quality to support 
growth and development; food and nutrient resources such as terrestrial 
and aquatic invertebrates, and forage fish; and natural cover such as 
shade, submerged and overhanging large wood, log jams, beaver dams, 
aquatic vegetation, large rocks and boulders, side channels and 
undercut banks; c) freshwater migration corridors free of obstruction 
and excessive predation, with adequate water quantity to allow for 
juvenile and adult mobility; cover, shelter and holding areas for 
juveniles and adults; and adequate water quality to allow for survival; 
d) estuarine areas that provide uncontaminated water and substrates; 
food and nutrient sources to support growth and development; and 
connected shallow water areas and wetlands to cover and shelter 
juveniles; e) marine areas with sufficient water quality to support 
salmonid growth, development, and mobility; food and nutrient resources 
such as marine invertebrates and forage fish; and nearshore marine 
habitats with adequate depth, cover, and marine vegetation to provide 
cover and shelter;
    (4) Any special management considerations or protection currently 
associated with essential physical and biological features within areas 
occupied by the listed ESUs, such as a recorded easement or deed 
restriction, a state statute or comprehensive land use program; a 
federal regulatory limitation or a legally-binding federal land use 
plan; or a county ordinance or other binding local enactment;
    (5) Whether there are any specific areas within the range of listed 
ESUs that should not be considered for critical habitat designation 
because they lack essential physical or biological features or may not 
require special management consideration or protections;
    (6) Whether specific Indian lands should be considered essential 
for the conservation of the listed ESUs or whether conservation needs 
can be achieved by limiting the designations to other lands;
    (7) Whether there are any specific areas outside the area occupied 
by listed ESUs that are essential for their conservation, and why;
    (8) Whether there are any specific areas that should be excluded 
from critical habitat designation because the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat;
    (9) Any current or planned activities in the range of listed ESUs 
and their possible impacts on areas that may qualify as critical 
habitat;
    (10) Any economic or other relevant impacts that may result from 
designating critical habitat, regardless of whether those impacts are 
attributable co-extensively to other causes, in particular those 
impacts affecting small entities;
    (11) Other benefits of excluding or designating a specific area as 
critical habitat;
    (12) Whether the approach to critical habitat designation for 
hatchery fish should be the same as for naturally spawned fish and if 
not, what approach should be used; and
    (13) Potential peer reviewers for proposed critical habitat 
designations, including persons with biological and economic expertise 
relevant to the designations.
    NMFS seeks the above information as soon as possible but by no 
later than November 13, 2003.
    As described in a joint NMFS/FWS policy on ESA information 
standards

[[Page 55932]]

published on July 1, 1994 (59 FR 34271), NMFS will rely on the best and 
most comprehensive technical information available; gather and 
impartially evaluate information that disputes official positions; 
document evaluation of information; use, retain, and reference primary 
and original sources of information; and conduct management-level 
review of documents to verify and assure the quality of the science 
used to make the critical habitat designations. NMFS will review all 
comments and information resulting from this advanced notice of 
proposed rulemaking prior to making any proposed designations and will 
include such documents in the agency's public record. The public may 
review information submitted by contacting NMFS (see ADDRESSES and FOR 
FURTHER INFORMATION CONTACT) or via the internet at http://www.nwr.noaa.gov. The agency will continue to meet with comanagers and 
other stakeholders to review this information as well as the overall 
designation process prior to a proposed critical habitat designation.

References

    The complete citations for the references used in this document can 
be obtained by contacting NMFS or via the Internet (see ADDRESSES and 
FOR FURTHER INFORMATION CONTACT).

    Dated: September 24, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 03-24568 Filed 9-26-03; 8:45 am]
BILLING CODE 3510-22-S