[Federal Register Volume 75, Number 101 (Wednesday, May 26, 2010)]
[Proposed Rules]
[Pages 29489-29506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12635]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 090324348-9655-01]
RIN 0648-XO28


Listing Endangered and Threatened Species: Completion of a Review 
of the Status of the Oregon Coast Evolutionarily Significant Unit of 
Coho Salmon; Proposal to Promulgate Rule Classifying Species as 
Threatened

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

ACTION: Proposed rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
affirm the Endangered Species Act (ESA) status for the Oregon Coast 
(OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus 
kisutch) by promulgating a rule that will supersede our February 11, 
2008, listing determination for this ESU. This proposal will also serve 
as our announcement of the outcome of a new review of the status of 
this ESU and request for public comment on the proposal to promulgate 
the OC coho salmon ESU listing determination. On February 11, 2008, we 
listed the OC coho salmon ESU as threatened, designated critical 
habitat, and issued final protective regulations under section the 
Endangered Species Act (ESA) (February 11, 2008). The ESA listing 
status of the OC coho salmon ESU has been controversial and has 
attracted litigation in the past. This listing determination is the 
result of a settlement agreement. This new listing determination will 
supersede our February 11, 2008, listing determination for this ESU. 
Our February 11, 2008, determination establishing protective 
regulations under the ESA and designating critical habitat for this ESU 
will remain in effect.

DATES:  Information and comments on this proposal must be received by 
July 26, 2010. A public hearing will be held promptly if any person so 
requests by July 12, 2010. Notice of the location and time of any such 
hearing will be published in the Federal Register not less than 15 days 
before the hearing is held.

ADDRESSES: You may submit comments identified by 0648-XO28 by any of 
the following methods:
     Electronic Submissions: Federal e-Rulemaking Portal: 
http://www.regulations.gov. Follow the instructions for submitting 
comments.
     Mail: Submit written comments to Chief, Protected 
Resources Division, Northwest Region, National Marine Fisheries 
Service, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. 
Information about the OC coho salmon ESU can be obtained via the 
Internet at: http://www.nwr.noaa.gov/ or by submitting a request to the 
Assistant Regional Administrator, Protected Resources Division, 
Northwest Region, NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 
97232.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
proposal, contact Eric Murray, NMFS, Northwest Region, (503) 231-2378; 
or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Previous Federal ESA Actions Related to Oregon Coast Coho Salmon

    We first proposed to list the OC coho salmon ESU as threatened 
under the ESA in 1995 (60 FR 38011; July 25, 1995). Since then, we have 
completed several status reviews for this species, and its listing 
classification has changed between threatened and not warranted for 
listing a number of times. A complete history of this ESU's listing 
status can be found in our February 11, 2008, final rule (73 FR 7816), 
classifying this ESU as a threatened species.
    To summarize that history, on July 25, 1995 we first proposed to 
list the ESU as threatened (60 FR 38011). We withdrew that proposal in 
response to the State of Oregon's proposed conservation measures as 
described in the Oregon Plan for Salmon and Watersheds (62 FR 24588; 
May 6, 1997). On June 1, 1998, the U.S. District Court for the District 
of Oregon found that our determination to not list the OC coho salmon 
ESU was arbitrary and capricious (Oregon Natural Resources Council v. 
Daley, 6 F. Supp. 2d 1139 (D. Or. 1998)). The Court ruled that our 
decision gave too much weight to conservation measures with an 
uncertain likelihood of implementation. On August 10, 1998, we issued a 
final rule listing the OC coho ESU as threatened (63 FR 42587). In 
2001, the U.S. District Court in Eugene, Oregon, set aside the 1998 
threatened listing of the OC coho salmon ESU (Alsea Valley Alliance v. 
Evans, 161 F. Supp. 2d 1154, (D. Or. 2001)). The Court ruled that our 
failure to include certain hatchery fish as part of the ESU was not 
consistent with the ESA. Subsequently, we announced that we would 
conduct an updated status review of 27 West Coast salmonid ESUs, 
including the OC coho salmon ESU (67 FR 6215, February 11, 2002; 67 FR 
48601, July 25, 2002).
    To aid us in these reviews, we convened a team of Federal 
scientists, known as a biological review team (BRT). For the OC coho 
salmon ESU, NMFS concluded that this ESU was not in danger of 
extinction, but was likely to become endangered in the foreseeable 
future. The BRT noted considerable scientific uncertainty regarding the 
future viability of this ESU given unknowns about ocean conditions for 
coho salmon survival (Good et al., 2005). They also stated that there 
is uncertainty about whether current freshwater habitats are of 
sufficient quality and quantity to support the then recent high 
abundance levels and sustain populations during future downturns in 
ocean conditions. Considering the BRT's scientific findings and our 
assessment of risks and benefits from artificial propagation programs 
included in the ESU, efforts being made to protect the species, and the 
five factors listed under section 4(a)(1) of the ESA, we proposed to 
list this ESU as threatened (69 FR 33102; June 14, 2004). In the June 
2004 proposed rule, we noted that Oregon was initiating a comprehensive 
assessment of the viability of the OC coho salmon ESU and of the 
adequacy

[[Page 29490]]

of actions under the Oregon Plan for Salmon and Watersheds for 
conserving OC coho salmon.
    In January 2005, the State of Oregon released a draft OC coho 
salmon ESU assessment. This assessment concluded that the OC coho 
salmon ESU was viable and that measures under the Oregon Plan had 
stopped, if not reversed, the deterioration of OC coho salmon habitats. 
We published a notice of availability of Oregon's Draft Viability 
Assessment for public review and comment in the Federal Register (70 FR 
6840; February 9, 2005) and noted that information presented in the 
draft and final assessments would be considered in making the final 
listing determination for the OC coho salmon ESU. We forwarded the 
public comments we received on Oregon's Draft Viability Assessment, as 
well as our technical reviews, for Oregon's consideration in developing 
its final assessment. On May 13, 2005, Oregon issued its final Oregon 
Coastal Coho Assessment. The final assessment included several changes 
intended to address concerns raised regarding the sufficiency and 
accuracy of the draft assessment. The final assessment concluded that: 
(1) The OC coho salmon ESU was viable under current conditions, and 
should be sustainable through a future period of adverse environmental 
conditions (including a prolonged period of poor ocean productivity); 
(2) given the assessed viability of the ESU, the quality and quantity 
of habitat was necessarily sufficient to support a viable ESU; and (3) 
the integration of laws, adaptive management programs, and monitoring 
efforts under the Oregon Plan for Salmon and Watersheds would maintain 
and improve environmental conditions and the viability of the ESU into 
the foreseeable future.
    On June 28, 2005 (70 FR 37217), we announced a 6-month extension of 
the final listing determination for the OC coho ESU, finding that there 
was substantial disagreement regarding the sufficiency or accuracy of 
the available data relevant to the listing determination. We solicited 
additional public comment and information. On January 19, 2006, we 
issued a final determination that listing the OC coho salmon ESU under 
the ESA was not warranted (71 FR 3033). As part of this determination, 
we withdrew the proposed ESA section 4(d) regulations and critical 
habitat designation for the ESU. In reaching our determination not to 
list the OC coho salmon ESU, we found that the BRT's slight majority 
opinion that the ESU is ``likely to become endangered`` and the 
conclusion of the Oregon Final Viability Assessment that the ESU was 
viable represented competing reasonable inferences from the available 
scientific information and considerable associated uncertainty. The 
difference of opinion centered on whether the ESU was at risk because 
of the ``threatened destruction, modification, or curtailment of its 
habitat or range.'' We conducted an analysis of current habitat status 
and likely future habitat trends (NMFS, 2005a) and found that: (1) The 
sufficiency of current habitat conditions was unknown; and (2) likely 
future habitat trends were mixed (i.e., some habitat elements were 
likely to improve, some were likely to decline, others were likely to 
remain in their current condition). We concluded that there was 
insufficient evidence to support the conclusion that the ESU was more 
likely than not to become an endangered species in the foreseeable 
future throughout all or a significant portion of its range.
    Our decision not to list the OC coho salmon ESU was challenged by 
Trout Unlimited. On October 9, 2007, the U.S. District Court for the 
District of Oregon invalidated our January 2006 decision not to list 
the OC coho salmon ESU (Trout Unlimited v. Lohn, Civ. No. 06--01493ST 
(D. Or., Oct. 9, 2007). The Court found that Oregon's viability 
assessment did not represent the best available science as required by 
the ESA, and that we improperly considered it in reaching our final 
listing decision.
    In response to the Court's order and pursuant to deadlines 
established by the Court, we issued a final rule to list the OC coho 
salmon ESU as threatened, designate critical habitat, and establish 
protective regulations under section 4(d) of the ESA on February 11, 
2008 (73 FR 7816). This decision was challenged by Douglas County, 
Oregon and others in Douglas County v. Balsiger (Civ. No. 08-01547; D. 
Or. 2008). We reached a settlement with the litigants, by which we 
would again review the status of the OC coho salmon ESU. This proposal 
announces the results of that review.

ESA Statutory Provisions

    The ESA defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as one that is likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range (16 U.S.C. section 1532(6),(20)). Section 4(a)(1) 
of the ESA and NMFS' implementing regulations (50 CFR part 424) state 
that we must determine whether a species is endangered or threatened 
because of 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 
man-made factors affecting its continued existence. We are to make this 
determination based solely on the best available scientific and 
commercial information after conducting a review of the status of the 
species and taking into account any efforts being made by states or 
foreign governments to protect the species.
    We are responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) of Pacific salmon should be listed 
as threatened or endangered under the ESA. To identify the proper 
taxonomic unit for consideration in a salmon listing determination, we 
apply our Policy on Applying the Definition of Species under the ESA to 
Pacific Salmon (ESU Policy) (56 FR 58612; November 20, 1991). Under 
this policy, populations of salmon substantially reproductively 
isolated from other conspecific populations and representing an 
important component in the evolutionary legacy of the biological 
species are considered to be an ESU. In our listing determinations for 
Pacific salmon under the ESA, we have treated an ESU as constituting a 
DPS, and hence a ``species,'' under the ESA.
    When considering protective efforts identified in conservation 
agreements, conservation plans, management plans, or similar documents 
(developed by Federal agencies, state and local governments, tribal 
governments, businesses, organizations, and individuals) that have not 
yet been implemented, or have been implemented but have not yet 
demonstrated effectiveness, we apply the NMFS--U.S. Fish and Wildlife 
Service Policy on Evaluating Conservation Efforts (``PECE''; 68 FR 
15100; March 28, 2003). In past ESA listing determinations for the OC 
coho salmon ESU, we have applied the PECE policy when evaluating new 
conservation efforts. Most of these conservation efforts have been 
implemented for several years so it is now possible for us to consider 
the available information about their actual implementation and 
effectiveness. Where information on program effectiveness is not 
available, we will not attribute a conservation benefit to the OC coho 
salmon ESU as resulting from the program.

[[Page 29491]]

Species Life History

    Coho salmon are a wide-ranging species of Pacific salmon, spawning 
and rearing in rivers and streams around the Pacific Rim from Monterey 
Bay in California north to Point Hope, Alaska; through the Aleutian 
Islands; and from the Anadyr River in Russia south to Korea and 
northern Hokkaido, Japan (Laufle et al., 1986). From central British 
Columbia south, the vast majority of coho salmon adults return to spawn 
as 3-year-olds, having spent approximately 18 months in freshwater and 
18 months in salt water (Gilbert, 1912; Pritchard ,1940; Sandercock, 
1991). The primary exceptions to this pattern are ``jacks,'' sexually 
mature males that return to freshwater to spawn after only 5 to 7 
months in the ocean. West Coast coho salmon juveniles typically leave 
freshwater in the spring (April to June) and re-enter freshwater from 
September to November when sexually mature. They spawn from November to 
December and occasionally into January (Sandercock, 1991). Coho salmon 
spawning habitat consists of small streams with stable gravels. Summer 
and winter freshwater habitats most preferred by young coho salmon 
consist of quiet areas with low flow, such as backwater pools, beaver 
ponds, and side channels (Reeves et al., 1989). Since coho salmon spend 
up to half of their lives in freshwater, the condition of that habitat 
can have a substantial influence on their survival. In particular, low 
gradient stream reaches on lower elevation land are important for 
winter survival of juvenile coho salmon (Stout et al., 2010).
    The OC coho salmon ESU covers much of the Oregon coast, from Cape 
Blanco to the mouth of the Columbia River, an area with considerable 
physical diversity ranging from extensive sand dunes to rocky outcrops. 
With the exception of the Umpqua River, which extends through the Coast 
Range to drain the Cascade Mountains, rivers in this ESU have their 
headwaters in the Coast Range. Genetic data indicate that OC coho 
salmon north of Cape Blanco form a discrete group, although there is 
evidence of differentiation within this area. However, because there is 
no clear geographic pattern to the differentiation, NMFS has considered 
coho salmon occupying this area to be a single ESU with relatively high 
heterogeneity (Weitkamp et al., 1995).
    Unlike some West Coast salmon ESUs, OC coho salmon have shown wide 
fluctuations in abundance and productivity during the last 50 years. 
Total spawning escapement of naturally produced OC coho held steady 
through the 1960s at between approximately 45,000 to 150,000 fish 
(Stout et al., 2010). Spawning abundance declined gradually through the 
1970s and 1980s, with all time lows observed in the early 1990s. 
Preharvest abundance has fluctuated over time, but the overall trend 
from 1970 through 1999 was strongly negative. Both preharvest and 
spawning abundance increased from 2000 to 2003, with 50-year highs in 
spawning abundance observed in 2002 and 2003. Those years also 
represented the highest preharvest abundance since 1976. With the 
exception of 2007, spawning abundance from 2001 through 2008 has been 
higher than any level since 1969, though preharvest abundance has been 
variable.

Previous Reviews and Biological Review Team Reports

    Above we described the ESA listing history of OC coho salmon 
(Previous Federal ESA Actions Related to Oregon Coast Coho Salmon). For 
each of the status reviews, consistent with our general practice for 
other salmonid species, we convened a biological review team (BRT) 
composed of Federal scientists with expertise in salmon biology, 
genetics, fishery stock evaluation, marine ecology, or freshwater 
habitat assessment. The first BRT was convened in 1995 and produced a 
report detailing its findings (Weitkamp et al., 1995). During the first 
status review, the BRT found that spawning escapements for the OC coho 
salmon ESU had declined substantially during the 20th century and 
natural production was at 5 percent to 10 percent of production in the 
early 1900s. They noted that productivity and abundance showed clear 
long-term downward trends. Average spawner abundance had been 
relatively constant since the late 1970s, but preharvest abundance was 
declining. Average recruits per spawner were also declining and average 
spawner-to-spawner ratios were below replacement levels in the worst 
years. OC coho salmon populations in most major rivers were found to be 
heavily influenced by hatchery stocks, although some tributaries may 
have maintained native stocks. Widespread freshwater habitat 
degradation was noted as a risk factor by the 1995 BRT.
    We conducted a second status review of this ESU in 1996. The BRT 
considered new data on ESU abundance and productivity as well as new 
analyses on ESU viability based on marine conditions and habitat 
quality (Nickelson and Lawson, 1998). For absolute abundance, the 1996 
total average (5-year geometric mean) spawner abundance of OC coho 
salmon (44,500) and corresponding ocean run size (72,000) were less 
than one-tenth of ocean run sizes estimated in the late 1800s and early 
1900s, and only about one-third of 1950s ocean run sizes (Oregon 
Department of Fish and Wildlife, 1995). Long-term trend estimates 
through 1996 showed that for escapement, run size, and recruits per 
spawner, trends were negative. The BRT also noted concerns about the 
influence of hatchery fish and the quality and quantity of habitat 
available to this ESU.
    In 1996, the BRT concluded that, assuming that current conditions 
continued into the future (and that proposed harvest and hatchery 
reforms were not implemented), the OC coho salmon ESU was not at 
significant short-term risk of extinction, but it was likely to become 
endangered in the foreseeable future. A minority disagreed, and felt 
that the ESU was not likely to become endangered. The BRT generally 
agreed that implementation of the harvest and hatchery reforms would 
have a positive effect on the ESU's status, but they were about evenly 
split as to whether the effects would be substantial enough to move the 
ESU out of the ``likely to become endangered'' category, because of 
uncertainty about the adequacy of freshwater habitat and trends in 
ocean survival.
    In 2003, we initiated a coast-wide status review of Pacific salmon 
and steelhead including OC coho salmon. The 2003 BRT (Good et al., 
2005) noted several improvements in the OC coho salmon's status as 
compared to the previous assessment in 1996. For example, adult 
spawners for this ESU in 2001 and 2002 exceeded the number observed for 
any year in the past several decades, and preharvest run size rivaled 
some of the high abundances observed in the 1970s (although well below 
historical levels), including increases in the formerly depressed 
northern part of the ESU. Hatchery reforms were increasingly being 
implemented, and the fraction of natural spawners that were first-
generation hatchery fish was reduced in many areas, compared to highs 
in the early to mid-1990s. On the other hand, the years of good returns 
just prior to 2003 were preceded by three years of low spawner 
escapements, the result of three consecutive years of recruitment 
failure, in which the natural spawners did not replace themselves, even 
in the absence of any directed harvest. These three years of 
recruitment failure were the only such instance observed in the entire 
time series considered. Whereas the increases in spawner escapement

[[Page 29492]]

just prior to 2003 resulted in long-term trends in spawners that were 
generally positive, the long-term trends in productivity as of 2003 
were still strongly negative.
    For the 2003 conclusions, a majority of the BRT opinion was in the 
``likely to become endangered'' category, with a substantial minority 
falling in the ``not likely to become endangered'' category. Although 
they considered the significantly higher returns in 2001 and 2002 to be 
encouraging, most BRT members felt that the factor responsible for the 
increases was more likely to be unusually favorable marine productivity 
conditions than improvement in freshwater productivity.

Current Review of the OC Coho Salmon ESU

    During this new review for the OC coho salmon we convened a new BRT 
to assist us in carrying out the most recent status review for OC coho 
salmon. The BRT was composed of Federal scientists from our Northwest 
and Southwest Fisheries Science Centers and the USDA Forest Service. As 
part of their evaluation, the BRT considered ESU boundaries, membership 
of fish from hatchery programs within the ESU, ESU extinction risks, 
and threats facing this ESU. The BRT evaluated new data on ESU 
abundance, marine survival, ESU productivity, and spatial structure. 
They considered the work products of the Oregon/Northern California 
Coast Technical Recovery Team and information submitted by the public, 
state agencies, and other Federal agencies. They also considered 
threats to this ESU, trends in habitat complexity, and potential 
effects of global climate change.

New Information Available Since the Last OC Coho Salmon ESU Status 
Review

    Since our status review of the OC coho salmon ESU in 2005 (Good et 
al., 2005), new information is available for consideration. Good et al. 
(2005) analyzed OC coho adult returns through 2003. We now have 
information on adult returns and marine survival rates through 2009. 
Also the marking of all hatchery-produced fish and increased monitoring 
on the spawning grounds have improved our ability to predict the 
effects of hatchery production on the long-term viability of the ESU.
    In addition to the new biological data available, new analyses are 
available since the 2005 review. These analyses were produced by the 
Oregon/Northern California Coast Technical Recovery Team (http://www.nwfsc.noaa.gov/trt/oregonncal.cfm). This team is one of several 
technical recovery teams convened in the Pacific Northwest to help us 
develop recovery plans for ESA-listed salmon and steelhead. These teams 
are different from BRTs and focus on developing information on 
historical population structure and ESA technical products to support 
development of ESA recovery criteria. Technical recovery teams are 
comprised of Federal, state, and tribal biologists as well as 
scientists from private consulting firms and academia.
    The Oregon/Northern California Coast Technical Recovery Team 
produced two reports, Identification of Historical Populations of Coho 
Salmon in the Oregon Coast Evolutionarily Significant Unit (Lawson et 
al., 2007) and Biological Recovery Criteria for the Oregon Coast Coho 
Salmon Evolutionarily Significant Unit (Wainwright et al., 2008), which 
were considered by the BRT in their assessment of this ESU's status. 
Lawson et al. (2007) identified 56 historic populations that function 
collectively to form the OC coho salmon ESU. Populations were 
identified as independent, potentially independent, and dependent. This 
ESU's long-term viability relies on the larger independent and 
potentially independent populations (Lawson et al., 2007). Dependent 
populations occupy smaller watersheds and rely on straying from 
neighboring independent populations to remain viable. Populations were 
grouped together to form five biogeographic strata-- North Coast, Mid-
Coast, Lakes, Umpqua, and Mid-South Coast. Collectively, the five 
strata form the ESU as a whole.
    Wainwright et al. (2008) used a decision support system to assess 
the viability of the OC coho salmon ESU and form the basis of 
recommended ESA recovery criteria for this ESU. The decision support 
system is based on the population structure identified by Lawson et al. 
(2007) and builds on concepts developed in that report. It is a 
computer-based tool that can analyze and compare numerous pieces of 
data (Turban and Aronson, 2001). The decision support system begins 
with evaluating a number of primary biological criteria that are 
defined in terms of logical (true/false) statements about biological 
processes essential to the persistence or sustainability of the OC coho 
salmon ESU. These biological criteria include population abundance, 
diversity, distribution, and habitat quantity and quality. Evaluating 
these primary criteria with respect to available observations results 
in a ``truth value'' in the range from -1 (false) to +1 (true). 
Intermediate values between these extremes reflect the degree of 
certainty of the statement given available knowledge, with a value of 
zero indicating complete uncertainty about whether the statement is 
true or false. These primary criteria are then combined logically with 
other criteria at the same geographic scale and then combined across 
geographic scales (population, strata, and ESU). The end result is an 
evaluation of the biological status of the ESU as a whole, with an 
indication of the degree of certainty of that evaluation (Wainwright et 
al., 2008). The model output describes the likelihood that the ESU is 
persistent and sustainable. The model predicts the likelihood that the 
ESU will persist (i.e., not go extinct) over a 100-year time frame. 
This includes the ability to survive prolonged periods of adverse 
environmental conditions that may be expected to occur at least once 
during the 100-year time frame. In the sustainability portion of the 
analysis, the model predicts the likelihood that the ESU will retain 
its genetic legacy and long-term adaptive potential into the 
foreseeable future (foreseeable future is not defined for this 
criterion), based on the stability of habitat conditions and other 
factors necessary for the full expression of life history diversity. A 
detailed description of the decision support system can be found in 
Wainwright et al. (2008) and the new BRT report (Stout et al., 2010).

ESU Boundaries and Hatchery Fish Membership

    The BRT evaluated new information related to ESU boundaries, and 
found evidence that no ESU boundary changes are necessary (Stout et 
al., 2010). The basis for their conclusion is that the environmental 
and biogeographical information considered during the first coast-wide 
BRT review of coho salmon (Weitkamp et al., 1995) remains unchanged, 
and new tagging and genetic analysis published subsequent to the 
original ESU boundary designation continues to support the current ESU 
boundaries. The BRT also evaluated ESU membership of fish from hatchery 
programs since the last BRT review (Good et al., 2005). In doing so, 
they applied our Policy on the Consideration of Hatchery-Origin Fish in 
ESA Listing Determinations (70 FR 37204; June 28, 2005). The BRT noted 
that many hatchery programs within this ESU have been discontinued 
since the first review of coast-wide status of coho salmon (Weitkamp et 
al., 1995). They identified only three programs--the North Fork 
Nehalem, Trask (Tillamook basin) and Cow Creek (South Umpqua)--that

[[Page 29493]]

produce coho salmon within the boundaries of this ESU.
    The North Fork Nehalem coho stocks are managed as an isolated 
harvest program. Natural-origin fish have not been intentionally 
incorporated into the brood stock since 1986 and only adipose fin 
clipped brood stock have been taken since the late 1990s. Because of 
this, the stock is considered to have substantial divergence from the 
native natural population and is not included in the OC coho salmon 
ESU. The Trask (Tillamook population) coho salmon stock is also managed 
as an isolated harvest program. Natural-origin fish have not been 
incorporated into the brood stock since 1996 when all returns were mass 
marked. Therefore, this stock is considered to have substantial 
divergence from the native natural population and, based on our Policy 
on the Consideration of Hatchery-Origin Fish in ESA Listing 
Determinations, is not included in the OC coho salmon ESU.
    The Cow Creek stock (South Umpqua Population) is managed as an 
integrated program and is included as part of the ESU because the 
original brood stock was founded from the local natural-origin 
population and natural-origin coho salmon have been incorporated into 
the brood stock on a regular basis. This brood stock was founded in 
1987 from natural-origin coho salmon returns to the base of Galesville 
Dam on Cow Creek, a tributary to the South Umpqua River. Subsequently, 
brood stock has continued to be collected from returns to the dam, with 
natural-origin coho salmon comprising 25 percent to 100 percent of the 
brood stock nearly every year since returning fish have been externally 
tagged. The Cow Creek stock is probably no more than moderately 
diverged from the local natural-origin coho salmon population in the 
South Umpqua River because of these brood stock practices and is 
therefore considered a part of this ESU.

BRT Extinction Risk Assessment

    The BRT conducted an extinction risk assessment for the OC coho 
salmon ESU considering available information on trends in abundance and 
productivity, genetic diversity, population spatial structure, and 
marine survival rates. They also considered trends in freshwater 
habitat complexity and threats to this ESU, including possible effects 
from global climate change.
    The BRT noted that spawning escapements in some recent years have 
been higher than the past 60 years. This is attributable to a 
combination of management actions and environmental conditions. In 
particular, harvest has been strongly curtailed since 1994, allowing 
more fish to return to the spawning grounds. Hatchery production has 
been reduced to a small fraction of the natural-origin production. 
Nickelson (2003) found that reduced hatchery production led directly to 
higher survival of naturally produced fish, and Buhle et al. (2009) 
found that the reduction in hatchery releases of Oregon coast coho 
salmon in the mid-1990's resulted in increased natural coho salmon 
abundance. Ocean survival, as measured by smolt to adult survival of 
Oregon Production Index area hatchery fish, generally started improving 
for fish returning in 1999 (Stout et al., 2010). In combination, these 
factors have resulted in the highest spawning escapements since 1950, 
although total abundance before harvest peaked at the low end of what 
was observed in the 1970s (Stout et al., 2010).
    The BRT applied the decision support system of the Technical 
Recovery Team (Wainwright et al., 2008) to help assess viability and 
risk level for this ESU. The BRT made a change to the decision support 
system model and reran the model with data through 2008. This change 
was to use a different data set to determine the abundance level at 
which there are so few adult fish on the spawning grounds that they 
have trouble finding mates (which results in ``depensation'' or reduced 
spawning success). Depensation is thought to occur at spawner densities 
below four fish per mile (Wainwright et al., 2008). The Technical 
Recovery Team had used ``area-under-the-curve'' counts for the critical 
abundance criterion in the decision support system, while the BRT chose 
to use peak count data. Area-under-the-curve counts (which refers to 
the total numbers of fish returning over the entire adult run time) are 
almost always higher than peak counts because they include fish present 
on the spawning grounds over a longer period of time. Peak counts are 
simply the highest number of fish observed at any one time. The BRT 
concluded that peak abundance counts were more likely to capture the 
potential for depensation because the effect occurs for fish that are 
on the spawning grounds at the same time (that is, fish need to find 
mates that are on the spawning grounds at the same time they are).
    The BRT's result using the decision support system was 0.09 for ESU 
persistence. A value of 1.0 would indicate complete confidence that the 
ESU will persist for the next 100 years, a value of -1.0 would indicate 
complete certainty of failure to persist, and a value of 0 would 
indicate no certainty of either persistence or extinction. The BRT 
therefore interpreted a value of 0.09 as indicating a low certainty of 
ESU persistence over the next 100 years. The decision support system 
result for ESU sustainability was 0.21, indicating a low-to-moderate 
certainty that the ESU is sustainable for the foreseeable future. These 
results reflect the model's measure of ESU sustainability and 
persistence under current conditions.
    The overall ESU persistence and sustainability scores summarize a 
great deal of variability in population and stratum level information 
on viability. For example, although the overall persistence score was 
0.09, the scores for individual populations ranged from -1 (Sixes 
River) to +0.99 (Tenmile Lakes), and approximately half (10/21) of the 
independent and potentially-independent populations had persistence 
scores greater than 0.25. The stratum level persistence scores were 
calculated as the median of the population scores. Only the Lakes 
stratum had a very high certainty of stratum persistence (0.94), 
followed by the Mid-South Coast (0.19). The Mid-Coast score for stratum 
persistence was slightly negative (-0.05). Population sustainability 
scores ranged from -1.0 in three populations to a high of 0.94 in 
Tenmile Lake. The stratum scores for sustainability were less variable. 
Again, the Lakes had the highest score (0.72). North Coast, Mid Coast, 
and Umpqua had scores indicating a low to moderate certainty of 
sustainability (0.21 to 0.29), while the Mid-South Coast scored 
somewhat higher for stratum sustainability (0.50).
    The BRT's decision support system scores suggested a higher 
certainty of sustainability than persistence, a counter-intuitive 
result. (That is, one would expect a population that has a good chance 
of maintaining its genetic legacy and long-term adaptive potential for 
the foreseeable future to also have a good chance of not going extinct 
in 100 years. In addition, the BRT was concerned that the values for 
the population functionality criterion are strongly influenced by basin 
size, and all large populations scored 1.0 regardless of overall 
habitat quality within the basin. For example, for the largest river 
system in the ESU, the Umpqua River, all four populations had a 
functionality score of 1.0, even though the BRT had serious concerns 
about habitat conditions for these populations. For these and other 
reasons, the BRT considered other methods of assessing ESU viability 
and in particular, habitat conditions.

[[Page 29494]]

Introduction to Habitat Analysis

    The BRT evaluated habitat conditions across the range of the OC 
coho salmon ESU in two new analyses. An analysis using newly available 
Landsat images (the Landsat Program is a series of Earth-observing 
satellite missions jointly managed by NASA and the U.S. Geological 
Survey) mapped patterns of forest disturbance over the ESU from 1986 to 
2008, revealing different rates of disturbance across basins and 
strata. A second analysis addressed the question ``is stream habitat 
complexity improving?'' To answer this question, the BRT quantified 
stream habitat complexity over the past 10 years from in-stream habitat 
surveys and analyzed for trends.

Landsat Analysis

    Recent public availability of Landsat imagery and the development 
of tools for analysis have made it possible to analyze disturbance 
patterns on a fine temporal and spatial scale, allowing a 
comprehensive, uniform picture of disturbance patterns that was 
heretofore unavailable. In an analysis conducted for the BRT, satellite 
annual vegetation maps of the OC salmon ESU from 1986 to 2008 were 
analyzed for patterns of disturbance. Disturbance in this analysis was 
removal of vegetative cover, primarily through timber harvest or fire. 
The scale of resolution of these analyses is approximately 100 meters 
(328 feet), so individual clear cuts and forest thinning operations 
were clearly detectable on an annual basis.
    The BRT noted that disturbance was wide-spread over the ESU, and 
varied over space, time, and land ownership. Some river systems 
experienced higher disturbance than others, with 14 percent to 50 
percent of individual basins disturbed since 1986. Rates of disturbance 
were relatively constant, but the most intense disturbance has moved 
from Federal (USDA Forest Service and USDI Bureau of Land Management) 
to private non-industrial lands, presumably in response to policy 
changes (i.e., implementation of the Northwest Forest Plan).

New Habitat Trend Analysis

    The BRT's analysis indicates that the OC coho salmon ESU is in 
better condition, particularly in terms of total abundance, than it was 
during the previous status reviews. However, productivity in several 
recent years was remains below replacement, highlighting the long-
standing concern for this ESU that freshwater habitat may not be 
sufficient to maintain the ESU at times when marine conditions are 
poor. The BRT noted that the criteria in the decision support system do 
not meaningfully evaluate freshwater habitat conditions for this ESU. 
To address this deficiency, the BRT undertook new analyses of habitat 
complexity across the freshwater habitat of this ESU.
    The BRT relied on habitat monitoring data from the ODFW Habitat 
Monitoring Program. ODFW has been monitoring the wadeable stream 
(streams that would be shallow enough for an adult to wade across 
during survey efforts) portion of the freshwater rearing habitat for 
the OC coho salmon ESU over the past decade (1998 to present) 
collecting data during the summer low flow period (Anlauf et al., 
2009). The goal of this program is to measure the status and trend of 
habitat conditions throughout the range of the ESU through variables 
related to the quality and quantity of aquatic habitat for coho salmon: 
stream morphology, substrate composition, instream roughness, riparian 
structure, and winter rearing capacity (Moore, 2008). The ODFW habitat 
survey design is based on 1\st\ through 3\rd\ order streams (USGS 
1:100k and ODFW 1:24k). The sampling design is based on a generalized 
random-tessellation stratified survey (Stevens and Olsen, 2004) that 
selects potential sample sites from all candidate stream reaches in a 
spatially balanced manner. The full survey design incorporates a 
``rotating panel'' of sampling sites; 25 percent of the sites are 
surveyed annually, 25 percent every 3 years, 25 percent every 9 years, 
and 25 percent new surveys each year. This provides a balanced way to 
monitor short-term and long-term trends and to evaluate new areas. Due 
to the availability of these data, the BRT was able to examine trends 
in habitat complexity over the past 11 years.
    In addition, ODFW provided more information to the BRT on the 
status of aquatic habitats in the OC coho salmon ESU in the form of 
presentations, comments, and a publication (Anlauf et al., 2009). ODFW 
analyzed trends in individual stream habitat attributes, including wood 
volume, percent fine sediments and percent gravel. They analyzed these 
attributes separately as linear trends by year in the North Coast, Mid-
Coast, Umpqua River, and Mid-South Coast strata. They also analyzed 
winter rearing capacity for juvenile coho salmon with their Habitat 
Limiting Factors Model (HLFM (version 7)), which integrates habitat 
attributes. This model emphasizes percent and complexity of pools, and 
amount of off-channel pools and beaver ponds. In the ODFW/Anlauf et al. 
(2009) HLFM analysis, ODFW used parametric statistical methods to 
produce a point estimate of habitat condition. They concluded that for 
the most part, at the ESU and strata scale, habitat for the OC coho 
salmon has not changed significantly in the last decade. They did find 
some small but significant trends. For instance the Mid-South Coast 
sttatum did show a positive increase in winter rearing capacity.
    The BRT was concerned that the analysis of trends of individual 
habitat attributes presented by ODFW/Anlauf et al. (2009) does not 
capture interactions among the various habitat attributes and does not 
adequately represent habitat complexity. In addition, the HLFM analysis 
presented by ODFW/Anlauf et al. (2009) used monitoring data for sites 
that had been surveyed only once or twice. The BRT concluded that using 
sites that had been visited at least three times would enhance their 
ability to discern trends. To address these concerns, the BRT: (1) 
asked ODFW to re-run the HLFM using only data from sites that had been 
surveyed at least three times during the 1998--2008 period, and (2) 
used the ODFW habitat monitoring data in a model developed by the U.S. 
Forest Service Aquatic and Riparian Effectiveness Monitoring Program 
(AREMP) (Reeves et al., 2004; Reeves et al., 2006). For the re-running 
of the HLFM analysis, ODFW estimated both summer and winter rearing 
capacity (the ability to predict summer rearing capacity was a new 
function of the model not available at the time Anlauf et al. (2009) 
prepared their report). In the AREMP model, the BRT used the ODFW 
monitoring program's data for key wood pieces, residual pool depth and 
percent fine sediment to generate habitat complexity indicators for 
stream reaches within populations of the OC coho salmon. Using several 
models allowed the BRT to compare multiple estimates of stream habitat 
complexity.
    The BRT anticipated that there may be spatial structure in trends 
of habitat complexity patterns over time due to biogeographic 
differences present at the scale of strata. For instance, habitat 
complexity in streams in the Umpqua River basin might be expected to 
change at a rate different from the streams in the North Coast Basin. 
This is because the Umpqua Basin is further south and drains part of 
the Cascade Mountains, while the North Coast streams are at the 
northern extent of this ESU's range and drain only the Oregon Coastal 
Mountains. There are biological, geological, hydrological, and 
precipitation pattern differences that affect stream habitat conditions 
in these basins. Differences in land-use practices

[[Page 29495]]

will also affect changes in habitat complexity over large spatial 
scales. For example, the Tillamook State Forest has been recovering 
from a series of fires (the ``Tillamook Burn'') that burned 355,000 
acres (1437 square kilometers) between 1933 and 1951, and little timber 
harvest has occurred in that area. On the other hand, some areas of the 
South Coast have experienced ongoing industrial timber harvest over the 
past 20 years.
     In contrast to the analytical method employed by ODFW/Anlauf et 
al. (2009), the BRT applied a Bayesian mixed regression model to 
estimate rate of change for habitat complexity scores at the stratum, 
population and site (habitat monitoring trend site) levels. In this 
analysis, the trends in both the AREMP and HLFM (second run of the 
model at the BRT's request) data were negative, indicating there is a 
high likelihood that habitat complexity has declined over the past 
decade. General patterns among the AREMP channel condition, the HLFM 
summer rearing capacity, and the HLFM winter rearing capacity were 
consistent. All three modeling results showed a moderate probability 
that habitat complexity has declined across the range of this ESU. The 
North Coast Stratum and Mid-South Coast Stratum showed the strongest 
and most consistent declines. For the Mid-Coast Stratum, the HLFM 
showed no trend in summer and winter juvenile rearing capacity, while 
the AREMP showed moderate decline in channel condition. The biggest 
difference between model results was observed in the Umpqua River 
stratum. The AREMP model showed no trend in channel condition, while 
the HLFM showed a strong decline in summer and winter juvenile rearing 
capacity. There was no consistent pattern in the differences between 
model results; in the Mid-Coast Stratum the AREMP showed declines while 
the HLFM did not. In the Umpqua River Stratum, the HLFM showed declines 
while the AREMP did not. There were no strong positive trends observed 
in any stratum. The BRT's analyses indicate that habitat complexity 
over the ESU has not improved over the past decade. At best, habitat 
complexity has been holding steady in some areas while declining in 
others.
    Like the ODFW/ Anlauf et al. (2009) trend analysis of individual 
habitat attributes, the BRT's analyses found that habitat complexity 
across the ESU did not improve over the period of consideration (1998-
2008) regardless of the habitat metric chosen for comparison. The ODFW/ 
Anlauf et al. (2009) trend analysis based on individual habitat 
attributes found no evidence of trends in the Umpqua River or Mid-Coast 
strata. In the BRT analyses, results from the AREMP channel complexity 
model do not show a trend up or down in the Umpqua River stratum. 
However, the HLFM summer and winter rearing capacity analyses (second 
run of the model conducted at the BRT's request) do show negative 
trends in the Umpqua River stratum. AREMP channel complexity and HLFM 
model results for the Mid-Coast Stratum are mixed, with no consistent 
indication of a trend in either direction.
    In the ODFW/Anlauf et al. (2009) trend analysis of individual 
habitat attributes, all of the statistically significant trends in 
habitat complexity were observed in the North Coast and Mid-South Coast 
strata (Anlauf et al., 2009). The results for the North Coast Stratum 
showed a declining trend in sediment and wood volume, but an increase 
in gravel. The Mid-South Coast Stratum showed an increase in sediment 
but a decreasing trend in the proportion of gravel. Although the ODFW /
Anlauf et al. (2009) analysis of individual habitat attributes showed 
that trends in gravel and sediment in the North Coast and Mid-South 
Coast strata are in opposite directions, the multivariate AREMP channel 
condition analysis performed by the BRT found that both North Coast and 
Mid-South Coast strata showed strong negative declines. While these 
results may seem contradictory, the observation that individual metrics 
(ODFW trend analysis) behave differently than integrated, multivariate 
indicators (AREMP and HFLM analysis) is a key point -- fish habitat is 
multidimensional, potentially declining even as components such as 
large wood or sediment increase at different spatial scales.
    The ODFW/Anlauf et al. (2009) HLFM model run showed an 8.9 percent 
annual increase in winter rearing capacity in the Mid-South Coast. The 
BRT's results (including the second running of the HLFM model by ODFW) 
showed that the Mid-South Coast Stratum had the most certain negative 
trends for AREMP channel condition and HLFM summer and winter rearing 
capacity analyses. Compared to the 8.9 percent estimated increase in 
winter capacity by ODFW/Anlauf et al. (2009) for the Mid-South Coast 
Stratum, the second run of the HLFM summer and winter rearing model 
estimated a summer capacity decline of 8 percent and a winter capacity 
decline of 3 percent.
    There are several important differences between the BRT analyses 
and the ODFW/Anlauf et al. (2009) analyses. These differences are 
likely responsible for different conclusions. First, the habitat 
variables considered in the BRT analyses represented aggregate indices 
(winter rearing capacity score, summer rearing capacity score, or AREMP 
Channel Condition score). One portion of the ODFW/Anlauf et al. (2009) 
trend analysis examined trends only in measured individual habitat 
variables (wood volume, fine sediment, gravel), although the HLFM 
winter rearing capacity analysis produced an aggregate index. The 
second difference is that for the HLFM winter rearing capacity 
analysis, ODFW/ Anlauf et al. (2009) utilized the entire suite of 
sampled sites for wood volume, fine sediment and gravel, and the second 
run of the HLFM winter and summer rearing capacity analysis used a 
subset of sites sampled (only those sites that had been sampled 3 
times). A third important difference is the model framework used. The 
BRT analysis was done using Bayesian methods as opposed to the 
parametric statistical methods employed by ODFW.
    In summary, the BRT considered the quality of available freshwater 
habitat using revised data sets from ODFW. The BRT examined evidence of 
trends in complexity, with the understanding that an increasing trend 
would indicate that stream habitat was improving. The BRT found that, 
for the most part, stream complexity is decreasing. In addition, The 
BRT examined patterns of disturbance from Landsat images and found that 
timber harvest activities are continuing in the ESU, with intensity 
varying among basins. The BRT noted that legacy effects of splash 
damming, log drives, and stream cleaning activities still affect the 
amount and type of wood and gravel substrate available and, therefore, 
stream complexity across the ESU (Miller, 2009; Montgomery et al., 
2003). Road densities remain high and affect stream quality through 
hydrologic effects like runoff and siltation and by providing access 
for human activities. Beaver (Castor canadensis) activities, which 
produce the most favorable coho salmon rearing habitat especially in 
lowland areas, appear to be reduced. Stream habitat restoration 
activities may be having a short-term positive effect in some areas, 
but the quantity of impaired habitat and the rate of continued 
disturbance outpace agencies' ability to conduct effective restoration.

BRT Extinction Risk Conclusions

    In order to reach its final extinction risk conclusions, the BRT 
used a ``risk matrix'' as a method to organize and summarize the 
professional judgment of

[[Page 29496]]

a panel of knowledgeable scientists with regard to extinction risk of 
the species. This approach is described in detail by Wainright and Kope 
(1999) and has been used for over 10 years in our Pacific salmonid and 
other marine species status reviews. In this risk matrix approach, the 
collective condition of individual populations is summarized at the ESU 
level according to four demographic risk criteria: abundance, growth 
rate/productivity, spatial structure/connectivity, and diversity. These 
viability criteria, outlined in McElhany et al. (2000), reflect 
concepts that are well founded in conservation biology and are 
generally applicable to a wide variety of species. These criteria 
describe demographic risks that individually and collectively provide 
strong indicators of extinction risk. The summary of demographic risks 
and other pertinent information obtained by this approach is then 
considered by the BRT in determining the species' overall level of 
extinction risk. This analysis process is described in detail in the 
BRT's report (Stout et al., 2010). The scoring for the risk criteria 
correspond to the following values: 1-very low risk, 2-low risk, 3-
moderate risk, 4-high risk, 5-very high risk.
    After reviewing all relevant biological information for the 
species, each BRT member assigns a risk score to each of the four 
demographic criteria. The scores are tallied (means, modes, and range 
of scores), reviewed, and the range of perspectives discussed by the 
BRT before making its overall risk determination. To allow individuals 
to express uncertainty in determining the overall level of extinction 
risk facing the species, the BRT adopted the ``likelihood point'' 
method, often referred to as the ``FEMAT'' method because it is a 
variation of a method used by scientific teams evaluating options under 
the Northwest Forest Plan (FEMAT 1993). In this approach, each BRT 
member distributes ten likelihood points among the three species' 
extinction risk categories, reflecting their opinion of how likely that 
category correctly reflects the species true status. This method has 
been used in all status reviews for anadromous Pacific salmonids since 
1999, as well as in reviews of Puget Sound rockfishes (Stout et al., 
2001b), Pacific herring (Stout et al., 2001a; Gustafson et al., 2006), 
Pacific hake, walleye pollock, Pacific cod (Gustafson et al., 2000), 
eulachon (Gustafson et al., 2008) and black abalone (Butler et al., 
2008).
    For the OC coho salmon ESU, the BRT conducted both the risk matrix 
analysis and the overall extinction risk assessment under two different 
sets of assumptions. Case 1: The BRT evaluated extinction risk based on 
the demographic risk criteria (abundance, growth rate, spatial 
structure and diversity) currently exhibited by the species, assuming 
that the threats influencing ESU status would continue unchanged into 
the future. This case in effect assumes that all of the threats 
evaluated by the BRT are fully manifest in the current ESU status and 
will in aggregate neither worsen nor improve in the future. Case 2: The 
BRT also evaluated extinction risk based on the demographic risk 
criteria currently exhibited by the species, taking into account 
predicted changes to threats that were not yet manifest in the current 
demographic status of the ESU. In effect, this scenario asked the BRT 
to evaluate whether threats to the ESU would lessen, worsen, or remain 
constant compared to current conditions. Information gathered by the 
BRT about current and future threats was evaluated to help guide its 
risk voting under this scenario.
    The risk matrix scores differed considerably for the two cases. 
When only current biological status was considered (Case 1), the median 
score for each demographic risk criterion was 2 (low risk) and the mean 
scores ranged from 2 to 2.47. Current abundance was rated as less of a 
risk factor than productivity, spatial structure, and diversity. When 
future conditions were taken into account (Case 2), median scores 
increased to 3 (moderate risk) for each factor, and mean scores ranged 
from 2.8 for abundance to 3.27 for productivity. BRT members also 
separately scored the overall risk associated with threats that they 
believed were not yet manifest in current demographic criteria (Case 
2), and the median score for these threats was 4 (high risk).
    The assessment of overall extinction risk for the OC coho salmon 
ESU also differed substantially depending on what was assumed about the 
future. When only current biological status was considered (Case 1), 
the overall assessment was closely split between low risk (49 percent 
of the likelihood points) and moderate risk (44 percent), with high 
risk receiving 7 percent of the likelihood points. The BRT's evaluation 
of risk under this scenario largely reflects the results of the 
decision support system, which the BRT interpreted as indicating 
considerable uncertainty about ESU status under current conditions. 
When the BRT evaluated risk while taking into account future changes to 
threats (Case 2), the assessment became more pessimistic with 25 
percent of the likelihood points falling in low risk, 54 percent in 
moderate risk, and 21 percent in high risk. The increase in the 
proportion of the likelihood points in the moderate and high risk 
categories reflects the BRT's conclusions that, on balance, the threats 
facing OC coho salmon are likely to grow more severe in the future.
    Under the assumption that current conditions continue into the 
future (Case 1), the BRT's primary concern was that current freshwater 
habitat conditions may not be able to sustain the ESU in the face of 
normal fluctuations in marine survival. The BRT noted that the legacy 
of past forest management practices combined with lowland agriculture 
and urban development has resulted in a situation in which the areas of 
highest intrinsic potential habitat capacity are now degraded. The BRT 
decision was also influenced by its new stream complexity trend 
analysis and its new Landsat-based forest disturbance analysis. The 
results of these analyses lend support to the conclusion that the 
effects of historic and on-going land management activities are still 
negatively influencing stream habitat complexity.
    Like previous BRTs evaluating the status of OC coho salmon, the 
most recent BRT was also concerned about the long-term downward trend 
in productivity of this ESU. The BRT noted that natural spawning 
abundance and total (pre-harvest) adult abundance has increased 
markedly over the past decade due to a combination of improved ocean 
survival, lower harvest rates, and reduced hatchery production. 
However, the BRT was concerned that much of the increase in pre-harvest 
adult abundance could be attributed to increases in marine survival 
that are expected to fluctuate naturally, with a smaller proportion of 
the increase attributable to hatchery and harvest recovery actions 
(Buhle et al., 2009). The BRT noted that the reduction in risks from 
hatchery and harvest are expected to help buffer the ESU when marine 
survival returns to a lower level, likely resulting in improved status 
compared to the situation a decade ago. On balance, however, the BRT 
was uncertain about the ESU's ability to survive another prolonged 
period of low ocean survivals, and this translated into greater concern 
about the overall risk to the ESU under current conditions.
    The BRT was more certain about overall risk status when taking into 
account predictable changes to the threats facing the population, with 
a clear majority of the likelihood points falling in the moderate or 
high risk categories. The BRT was particularly

[[Page 29497]]

concerned that global climate change will lead to a long-term downward 
trend in both freshwater and marine coho salmon habitat compared to 
current conditions in this ESU. The BRT evaluated the available 
scientific information on the effects of predicted climate change on 
the freshwater and marine environments inhabited by OC coho salmon. 
Although there was considerable uncertainty about the magnitude of most 
effects, the BRT was concerned that most changes associated with 
climate change are expected to result in poorer habitat conditions for 
OC coho salmon than exist currently. Some members of the BRT noted that 
freshwater effects of climate change may not be as severe on the Oregon 
coast as in other parts of the Pacific Northwest, and the distribution 
of overall risk scores reflects this.
    In addition to effects due to global climate change, the BRT was 
also concerned that freshwater habitat for the ESU would continue to 
degrade from current conditions due to local effects. The BRT noted 
that despite increased habitat protections on Federal lands with the 
implementation of the Northwest Forest Plan in the mid-1990s (FEMAT, 
1993), timber harvest activities have increased on private industrial 
lands. The BRT's new habitat analysis indicates that stream habitat 
complexity has decreased since 1998. Conversion of forests to urban 
uses was also a concern (e.g., Kline et al., 2001), particularly for 
the North Coast, mid-south Coast, and Umpqua. The BRT was also 
concerned that a lack of protection for beaver would result in downward 
trends for this important habitat forming species. Some BRT members 
felt that the data indicating that freshwater habitat conditions were 
likely to worsen from current levels in the future were equivocal, and 
the distribution of risk matrix and overall threats scores reflects 
this uncertainty.
    The BRT did note some ongoing positive changes that are likely to 
become manifest in abundance trends for the ESU in the future. In 
particular, hatchery production continues to be reduced with the 
cessation of releases in the North Umpqua and Salmon River populations, 
and the BRT expects that the near-term ecological benefits from these 
reductions would result in improved survival for these populations in 
the future. In addition, the BRT expected that reductions in hatchery 
releases that have occurred over the past decade would continue to 
produce some positive effects on the survival of the ESU in the future, 
due to the time it may take for past genetic impacts to become 
attenuated. The BRT also concluded that stream habitat conditions on 
Federal land would ultimately improve in the future under the Northwest 
Forest Plan, even though their analysis indicated an apparent decrease 
in habitat quality over the last decade. The BRT concluded that, when 
future conditions are taken into account, the OC coho salmon ESU as a 
whole is at moderate risk of extinction. The BRT therefore did not need 
to explicitly address whether the ESU was at risk in only a significant 
portion of its range.

Consideration of ESA section 4(a)(1) Factors

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

    Our previous Federal Register Notices and BRT reports (Weitkamp et 
al, 1995; Good et al., 2005), as well as numerous other reports and 
assessments (ODFW, 1995; State of Oregon, 2005; State of Oregon 2007), 
have reviewed in detail the effects of historical and ongoing land 
management practices that have altered OC coho salmon habitat. The BRT 
reviewed the factors that have led to the current degraded condition of 
OC coho salmon habitat. We will briefly summarize this information here 
and direct readers to the BRT report (Stout et al., 2010) for more 
detail.
    Historical and ongoing timber harvest and road building have 
reduced stream shade, increased fine sediment levels, reduced levels of 
instream large wood, and altered watershed hydrology. Historical splash 
damming removed stream roughness elements such as boulders and large 
wood and in some cases scoured streams to bedrock. Fish passage has 
been blocked in many streams by improperly designed culverts. Fish 
passage has been restricted in some estuary areas by tidegates.
    Urbanization has resulted in loss of streamside vegetation and 
added impervious surfaces, which alter normal hydraulic processes. 
Agricultural activities have removed stream-side vegetation. Building 
of dikes and levees has disconnected streams from their floodplains and 
results in loss of natural stream sinuosity. Stormwater and 
agricultural runoff reaching streams is often contaminated by 
hydrocarbons, fertilizers, pesticides, and other contaminants. In the 
Umpqua River basin, diversion of water for agriculture reduces base 
stream flow and may result in higher summer stream temperatures.
    Conversion of forest and agricultural land to urban and suburban 
development is likely to result in an increase in these effects in the 
future (Burnett et al., 2007). Loss of beavers from areas inhabited by 
the OC coho salmon has led to reduced stream habitat complexity and 
loss of freshwater wetlands. The BRT reports that the amount of tidal 
wetland habitat available to support coho salmon rearing has declined 
substantially relative to historical estimates across all of the 
biogeographic strata (Stout et al., 2010). Instream and off-channel 
gravel mining has removed natural stream substrates and altered 
floodplain function.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Historical harvest rates of OC coho salmon ranged from 60 percent 
to 90 percent from the 1960s into the 1980s (Stout et al., 2010). 
Modest harvest reductions were achieved in the late 1980s, but rates 
remained high until a crisis was perceived, and most directed coho 
salmon harvest was prohibited in 1994 (Stout et al., 2010). The Pacific 
Fishery Management Council adopted Amendment 13 to its Salmon Fishery 
Management Plan in 1998. This amendment was part of the Oregon Plan for 
Salmon and Watersheds and was designed to reduce harvest of OC coho 
salmon. Current harvest rates are based on parental spawner escapements 
and predicted marine survival and range from minimal harvest (0 to 8 
percent) to 45 percent.
    A few small freshwater fisheries on OC coho salmon have been 
allowed in recent years based on the provision in Amendment 13 that 
terminal fisheries can be allowed on strong populations as long as the 
overall exploitation rate for the ESU does not exceed the Amendment 13 
allowable rate, and that escapement is not reduced below full seeding 
of the best available habitat. We have approved these fisheries with 
the condition that the methodologies used by the ODFW to predict 
population abundances and estimate full seeding levels are presented to 
the Pacific Fishery Management Council for review and approval.
    While historical harvest management may have contributed to OC coho 
declines, the BRT concluded that the decreases in harvest mortalities 
described above have reduced this threat to the ESU and that further 
harvest reductions would not further reduce the risk to ESU 
persistence.

Disease or Predation

    The ODFW (2005), in its assessment of OC coho salmon, asserted that 
disease is not an important consideration in the recovery of this ESU. 
However, the BRT

[[Page 29498]]

noted that Nanophyetus salmincola (a parasitic trematode) may be a 
source of mortality for juvenile OC coho salmon. Jacobson (2008) 
reports that annual occurrence of N. salmincola in yearling coho salmon 
caught in ocean tows off the coast of Oregon were 62--78 percent. 
Yearling coho salmon had significantly higher intensities of infection 
and higher infection in natural-origin versus hatchery juveniles, 
presumably due to the greater exposure to metacercaria (encysted 
resting or maturing stage of trematode parasites) in natal streams. 
Occurrence and intensities in yearling coho salmon caught in September 
were significantly lower (21 percent) than in those caught in May or 
June in 3 of 4 years. This suggests parasite-associated host mortality 
during early ocean residence for yearling coho salmon. Pearcy (1992) 
hypothesized that ocean conditions (food and predators) are important 
to marine mortality, especially soon after juvenile coho salmon enter 
the ocean. This is the time period that Jacobson et al. (2008) observed 
the loss of highly infected juveniles. Jacobson hypothesized that high 
levels of infection may lead to behavioral changes in the fish and thus 
make the juveniles more susceptible to predation.
    Cairns et al. (2006) investigated the influence of summer stream 
temperatures on black spot infestation of juvenile coho salmon in the 
West Fork of the Smith River, Oregon, a stream system occupied by OC 
coho salmon. Their studies show that ``although other environmental 
factors may affect the incidence of black spot, elevated water 
temperature is clearly associated with higher infestation rates in the 
West Fork Smith River stream network.'' This may be an important issue 
for coho salmon juveniles as many of the streams they inhabit are 
already close to lethal temperatures during the summer months, and, 
with the expectation of rising stream temperatures due to global 
climate change, increases in infection rates of juvenile coho by 
parasites may become an increasingly important stressor both for 
freshwater and marine survival (Stout et al., 2010).
     Parasitism and disease were not considered important factors for 
decline in previous BRT reviews for OC coho salmon (Weitkamp et al., 
1994; Good et al., 2005). However, some information considered by the 
BRT suggests that they may become more important as temperatures rise 
due to global climate change and may become important risks for 
juvenile fish in the early ocean-entry stage of the lifecycle.
    The BRT identified several bird species and marine mammals that 
prey on OC coho salmon, but concluded that these predators are not a 
significant threat. Salmonids have co-evolved with predators and have 
survived and remained productive for thousands of years in spite of the 
large numbers of predators. Because of the abundance and visibility of 
marine mammal predators on the Oregon coast, and their interactions 
with fishermen and other users of coastal resources, there is a 
perception that reducing predation by harbor seals and California sea 
lions is important for the restoration of OC coho salmon (Smith et al., 
1997). However, the BRT listed two sources (Botkin et al., 1995; IMST, 
1998) that concluded that predation was a minor threat to the OC coho 
salmon ESU. Similarly, in their 2005 Oregon State Coho Assessment, the 
ODFW (State of Oregon, 2005) reported that ``natural predation by 
pinnipeds or seabirds has not been a significant cause in the decline 
of salmonid stocks at the ESU scale.''
    The BRT was more concerned about predation on OC coho salmon from 
introduced warm-water fishes such as smallmouth bass (Micropterus 
dolomieu) and largemouth bass (Micropterus salmoides). These predatory 
fish are especially abundant in the streams and lakes of the Lakes 
Stratum and the lower Umpqua River. The BRT concluded that predation 
and competition from exotic fishes, particularly in light of the 
warming water temperatures from global climate change, could seriously 
affect the lake and slow-water rearing life history of OC coho salmon 
by increasing predation.

The Inadequacy of Existing Regulatory Mechanisms

    Existing regulations governing ocean and tributary coho salmon 
harvest have dramatically improved the ESU's likelihood of persistence. 
These regulations are unlikely to be weakened in the future because 
they have been developed and negotiated in a comprehensive process by 
the Pacific Fishery Management Council and the State of Oregon. Many 
hatchery practices that were detrimental to the long-term viability of 
this ESU have been discontinued. As the BRT notes in its report, some 
of the benefits of these management changes are being realized as 
improvements in ESU abundance. However, trends in freshwater habitat 
complexity throughout many areas of this ESU's range remain negative 
(Stout et al., 2010). We remain concerned that regulation of some 
habitat altering actions is insufficient to provide habitat conditions 
that support a viable ESU. In the Efforts Being Made to Protect the 
Species section of this document, we present our analysis of the 
current efforts to protect OC coho salmon freshwater and estuarine 
habitat.

Other Natural or Manmade Factors Affecting its Continued Existence

    Ocean conditions in the Pacific Northwest exhibit patterns of 
recurring, decadal-scale variability (including the Pacific Decadal 
Oscillation and the El Nino Southern Oscillation), and correlations 
exist between these oceanic changes and salmon abundance in the Pacific 
Northwest (Stout et al., 2010). It is also generally accepted that for 
at least 2 decades, beginning about 1977, marine productivity 
conditions were unfavorable for the majority of salmon and steelhead 
populations in the Pacific Northwest, but this pattern broke in 1998, 
after which marine productivity has been quite variable (Stout et al., 
2010). In considering these shifts in ocean conditions, the BRT was 
concerned about how prolonged periods of poor marine survival caused by 
unfavorable ocean conditions may affect the population viability 
parameters of abundance, productivity, spatial structure, and 
diversity. OC coho salmon have persisted through many favorable-
unfavorable ocean/climate cycles in the past. However, in the past much 
of their freshwater habitat was in good condition, buffering the 
effects of ocean/climate variability on population abundance and 
productivity. It is uncertain how these populations will fare in 
periods of poor ocean survival when their freshwater, estuary, and 
nearshore marine habitats are degraded (Stout et al., 2010).
    The potential effects of global climate change are also a concern 
for this species. The BRT noted that there is considerable uncertainty 
regarding the effects of climate change on OC coho salmon and their 
freshwater, marine, and estuarine habitat. Their assessment can be 
found in Appendix C of its report (Stout et al., 2010). Although the 
BRT used the best information available to predict the possible effects 
of climate change on this ESU, both the BRT and other authors (Roessig 
et al., 2004) note that aquatic ecosystems are complex and our 
understanding of their function is incomplete. Therefore, the BRT's 
analysis should be considered qualitative in nature and involves some 
uncertainty. A summary of the BRT's conclusions follows.
    A shift to a warmer/drier climate in the Pacific Northwest is 
generally expected to have negative effects on salmon survival (Mote et 
al., 2003; Stout

[[Page 29499]]

et al., 2010), and some effects have already been observed (ISAB 2007; 
Crozier et al., 2008; Mantua et al., 2009). Warmer/drier years 
associated with the warm phase of the El Nino Southern Oscillation or 
the Pacific Decadal Oscillation lead to below-average snowpack, 
streamflow, flooding, salmon survival, and forest growth, and above-
average forest fire risk (Mote et al., 2003). Similar climate patterns 
predicted by climate-change models can be expected to have similar 
effects on salmon (Stout et al., 2010). A number of studies (Francis & 
Mantua, 2003; ISAB, 2007; Crozier et al., 2008; Mantua et al., 2009) 
have identified ways by which climate variation or trends influence 
salmon sustainability, including metabolic costs, disease resistance, 
shifts in seasonal timing of important life-history events (upstream 
migration, spawning, emergence, outmigration), changes in growth and 
development rates, changes in freshwater habitat structure, and changes 
in the structure of ecosystems on which salmon depend (especially in 
terms of food supply and predation risk). Salmon are affected 
throughout their life cycle, including freshwater, estuarine and marine 
habitats (Stout et al., 2010).
    In freshwater habitats, increases in temperature (Mote et al., 
2008), decreases in snowpack (Mote et al., 2003; Karl et al., 2009), 
and alterations in precipitation patterns (Mote et al., 2003) are 
expected to have direct effects on OC coho salmon freshwater habitat 
such as increasing stream temperature, altering stream flow patterns, 
and increasing flood frequency (ISAB, 2007). Indirect effects on 
freshwater salmon habitat may occur as a result of increased forest 
fires, decreased tree growth rates, and increased frequency of damaging 
insect outbreaks (such as the recent mountain pine beetle attacks) 
(Mote et al., 2003; Peterson et al., 2008; Karl et al., 2009). Climate 
change may also affect forest composition, which in turn would affect 
stream habitat across the range of this ESU, although these types of 
effects cannot be predicted with certainty (Stout et al., 2010).
     In addition to potential effects in the freshwater portion of 
their habitat, changes in ocean conditions as a result of climate 
change are likely to have a substantial effect on OC coho salmon. 
Warming sea temperatures and changes in wind patterns may affect 
upwelling in the Pacific Ocean off the Northwest coast, and upwelling 
is a main determinant of marine food supply for juvenile salmon. Recent 
strong El Ninos and other anomalous conditions (such as occurred in 
summer 2005) may serve as indicators of potential impacts of climate 
change. In both cases, the spring transition was delayed, surface 
waters became anomalously warm, and nutrient levels were low, which had 
implications for the entire marine ecosystem including decreased salmon 
survival (Brodeur et al., 2005; Emmett et al., 2006; Schwing et al., 
2006; Bograd et al., 2009).
    Warming sea temperatures may also result in changes in zooplankton 
communities (Mackas et al., 2007) and northward range expansions of 
marine predators that may consume OC coho salmon. For instance, in 
recent years, large numbers of Humboldt squid (Dosidicus gigas) have 
been observed off the coast of Oregon. This potential predator of 
juvenile salmon is typically not found this far north and may represent 
a new source of predation on juvenile OC coho salmon.
    Ocean acidification caused by climate change may also affect OC 
coho salmon by altering marine food webs. Increasing atmospheric carbon 
dioxide is absorbed by the surface layers of the ocean, leading to 
increased acidity and decreased concentration of carbonate in the ocean 
(Bindoff et al., 2007; Fabry et al., 2008). Reductions in carbonate 
have consequences for marine invertebrates, which use carbonate to 
produce calcite and aragonite shells; this could lead to substantial 
changes in marine foodwebs (Feely et al., 2004; Fabry et al., 2008).
    As with freshwater and open ocean habitats, changes in estuary 
ecosystems as a result of climate change may also affect OC coho 
salmon. Rising sea levels, changes in freshwater inputs, and increases 
in water temperature could lead to shifts in species distributions, 
changes in community species composition, and changes in biological 
production (Stout et al., 2010). Warming in estuaries can also be 
expected to have similar effects on coho salmon as in other habitats: 
increased physiological stress and increased susceptibility to disease, 
parasites, and predation (Marine and Cech, 2004; Marcogliese, 2008).
    Despite the uncertainties involved in predicting the effects of 
global climate change on the OC coho salmon ESU, the available 
information indicates that most impacts are likely to be negative. 
While individual effects at a particular life-history stage may be 
small, the cumulative effect of many small effects multiplied across 
life-history stages and across generations can result in large changes 
in salmon population dynamics (Stout et al., 2010). In its conclusion 
on the likely effects of climate change, the BRT expressed both 
positive and negative possible effects but stressed that when effects 
are considered collectively, their impact on ESU viability is likely to 
be negative despite the large uncertainties associated with individual 
effects.

Efforts Being Made to Protect the Species

    Section 4(b)(1)(A) of the ESA requires the Secretary to take into 
account efforts being made to protect a species when evaluating a 
species' listing classification (50 CFR 424.11(f)). Because the BRT's 
extinction risk findings were influenced significantly by predictions 
about future freshwater and estuarine habitat conditions, we performed 
a comprehensive analysis of programs that provide protection to OC coho 
salmon habitat.

Forestry

State Forest Practices Act
    Management of riparian areas on private forest lands within the 
range of OC coho salmon is regulated by the Oregon Forest Practices Act 
and Rules (Oregon Department of Forestry, 2005b). These rules require 
the establishment of riparian management areas (RMA) on certain streams 
that are within or adjacent to forestry operations. The RMA widths vary 
from 10 feet (3.05 meters) to 100 feet (30.48 meters) depending on the 
stream classification, with fish-bearing streams having wider RMA than 
streams that are not fish-bearing.
    Logging generally is allowed within the RMA under the Forest 
Practice rules. The rules specify the types and amount of vegetation 
that must be retained for various types of streams, and land owners may 
choose general or site-specific vegetation retention prescriptions as 
detailed in Oregon Department of Forestry (2005b).
    Although the Oregon Forest Practices Act and the Forest Practice 
rules generally have become more protective of riparian and aquatic 
habitats over time, significant concerns remain over their ability to 
fully protect water quality and salmon habitat (Everest and Reeves, 
2007; ODF, 2005b; IMST, 1999). In particular, disagreements continue 
over: (1) Whether the widths of RMAs are sufficient to fully protect 
riparian functions and stream habitats; (2) whether operations allowed 
within RMAs will degrade stream habitats; (3) operations on high-risk 
landslide sites; and (4) watershed-scale effects. Based on the 
available information, we are unable to conclude that the Oregon Forest 
Practices Act adequately protects OC coho habitat in all circumstances. 
On some streams, forestry operations conducted in compliance with this 
act

[[Page 29500]]

are likely to reduce stream shade, slow the recruitment of large woody 
debris, and add fine sediments. Since there are no limitations on 
cumulative watershed effects, road density on private forest lands, 
which is high throughout the range of this ESU, is unlikely to 
decrease.
State Forest Programs
    Approximately 567,000 acres (2295 square kilometers) of forest land 
within the range of OC coho salmon are managed by the Oregon Board of 
Forestry (Oregon Department of Forestry, 2005). These lands are divided 
between Common School Fund lands and Board of Forestry Lands. Most of 
the Common School Fund lands are located in the Elliot State Forest, 
and most of the Board of Forestry Lands are located in the Clatsop and 
Tillamook State Forests. There are also small scattered tracts of both 
Common School Fund lands and Board of Forestry Lands throughout the 
range of OC coho salmon. The majority of these lands are managed under 
the Northwest Oregon Forest Management Plan and the Elliot Forest 
Management Plan.
    These plans are described in detail in Oregon Department of 
Forestry (2001and 2006). Each plan defines a set of desired riparian 
conditions, landscape management strategies, aquatic and riparian 
strategies, guidelines for implementing these strategies, and an 
adaptive management framework. The plans contain a stream 
classification system for determining applicable management standards 
for each stream size/type. More specific protective measures for salmon 
and riparian areas on the Elliot State Forest can be found in the 
Elliot State Forest Draft Habitat Conservation Plan (Oregon Department 
of Forestry, 2008). The Oregon Department of Forestry began pursuing an 
ESA section 10 habitat conservation plan for the Northwest Oregon State 
Forests, but has not completed the plan.
    Specific standards for forest management within riparian zones are 
described in the Elliot State Forest Draft Habitat Conservation Plan 
(Oregon Department of Forestry, 2008). For fish-bearing streams, three 
management zones exist, the stream bank zone (0--25 feet), inner 
riparian management zone (25--100 feet) and the outer riparian 
management zone (100--160 feet). Standards for the stream bank 
management zone are the most restrictive with no harvest of trees 
allowed, no use of ground based equipment, and full suspension of logs 
that are yarded through this zone. The management of forestry 
activities becomes more permissive as the distance from the stream 
increases.
    We have yet to reach an agreement with Oregon Department of 
Forestry on completing a Habitat Conservation Plan for the Elliot 
Forest Habitat Conservation Plan. On July 19, 2009, we notified Oregon 
Department of Forestry that ``we are unable to conclude the strategies 
would meet the conservation needs of our trust resources and provide 
for the survival and recovery of Oregon Coast (OC) coho salmon.'' 
(Letter from Kim Kratz, NMFS to Jim Young, Oregon Department of 
Forestry, dated July 19, 2009). We identified concerns over stream 
shade, woody debris recruitment, and certain other issues that needed 
be resolved before the Habitat Conservation Plan can be approved. On 
July 27, 2009, the Oregon Department of Forestry responded, stating 
that the proposed protective measures ``will provide a high level of 
protection for Oregon's fish and wildlife species and a low level of 
risk'' (Letter from Jim Young, Oregon Department of Forestry, to Kim 
Kratz, NMFS, dated July 27, 2009). There is still significant 
disagreement over whether the proposed protective measures are 
sufficient to conserve OC coho salmon and their habitat. We remain in 
negotiations with Oregon Department of Forestry over the plan, but it 
is uncertain how the outstanding disagreements will be resolved. For 
purposes of this assessment, we are unable to conclude that the state 
forest management plans will provide for OC coho salmon habitat that is 
capable of supporting populations that are viable during both good and 
poor marine conditions. It is likely that some OC coho salmon habitat 
on state forests will be maintained in its current degraded state, some 
habitat will be further degraded, and habitat in areas that are not 
being harvested will recover.
Northwest Forest Plan
    Since 1994, land management on Forest Service and Bureau of Land 
Management (BLM) lands in Western Oregon has been guided by the Federal 
Northwest Forest Plan (USDA and USDI, 1994). The aquatic conservation 
strategy contained in this plan includes elements such as designation 
of riparian management zones, activity-specific management standards, 
watershed assessment, watershed restoration, and identification of key 
watersheds (USDA and USDI, 1994). In the short term, this strategy was 
designed to halt watershed degradation and in the long-term, to provide 
for a system of healthy, functioning watersheds with good-quality 
aquatic habitat (FEMAT, 1993). A detailed explanation of the aquatic 
conservation strategy and its expected benefits to OC coho salmon and 
their habitat can be found in FEMAT (1993), USDA and USDI (1994), and 
Oregon State BLM and U.S. Forest Service, Region 6 (2005).
    When compared to other aquatic conservation strategies and forest 
practice rules, the Northwest Forest Plan has large riparian management 
zones (1 to 2 site potential tree heights) and relatively protective 
activity-specific management standards (USDA and USDI, 1994). For 
instance, on fish-bearing streams, the riparian management zone extends 
approximately 300 feet (91.44 meters) on each side of the stream. 
Although some timber harvest or pre-commercial thinning could occur in 
riparian management zones, a comprehensive analysis process known as 
watershed assessment is required first (USDA and USDI, 1994). Most 
riparian functions such as maintenance of water temperature, control of 
sediment, and maintenance of stream banks, will be addressed under this 
plan (FEMAT, 1993; Everest and Reeves, 2007), although Federal land 
management agencies have considerable discretion to develop individual 
forest management actions with varying levels of impacts under the 
plan. Additional protection for ESA-listed species comes from the ESA 
requirement for federal land-management agencies to ensure that their 
actions are not likely to jeopardize listed species or destroy or 
adversely modify their critical habitats and to evaluate their actions 
under the National Environmental Policy Act. Unlike many state forest 
practice rules, the Northwest Forest Plan addresses riparian management 
at the watershed scale with specific emphasis on maintaining ecosystem 
functions over the long term (Everest and Reeves, 2007). The plan also 
goes beyond establishing the absolute minimum set of practices that 
would meet stated riparian management goals and the concept that goals 
could be met by implementing yet another set of best management 
practices (Everest and Reeves, 2007).
    Large improvements in watershed condition were not expected 
immediately after this plan's implementation because many watersheds 
were extensively degraded and natural systems recover at a slow rate 
(FEMAT, 1993). Researchers began evaluating how watershed condition had 
changed after 10 years of plan implementation. Gallo et al. (2005) 
evaluated 250 watersheds within the area covered by the Northwest 
Forest

[[Page 29501]]

Plan during two time periods (1990--1996 and 1998--2003) and found 
slight improvements in watershed condition between the two periods. 
Fifty-seven percent of the watersheds had higher condition scores in 
the second time period than in the first time period. They also found 
that growth rate of trees exceeded losses to harvest and wildfire, and 
nine times as many roads were decommissioned as were constructed. 
Reeves et al. (2006) found that watershed condition scores (a method of 
evaluating the physical characteristics of a watershed likely to 
facilitate the development of good habitat for native or desirable fish 
species) improved in 161 of 250 watersheds evaluated, remained the same 
in 18, and decreased in 71 watersheds. The authors note wildfires 
burned large portions of many of the watersheds where condition scores 
had decreased.
    These authors conclude that, in general, the condition of 
watersheds covered by the Northwest Forest Plan has improved, and 
primary reasons for the improvement include the increase in number of 
large trees in riparian areas, a decrease in the extent of clear-
cutting in riparian zones, and a reduction in the amount of road-
building. Additionally, litigation also curtailed forest management 
activities in many salmon-bearing watersheds during a substantial part 
of the evaluation period. However, the authors also caution that it is 
currently unknown if the observed improvements in watershed condition 
will translate into longer-term improvements in aquatic ecosystems 
across the broad landscape covered by the plan. The BRT's analysis of 
stream habitat complexity trends indicates that the observed 
improvements in watershed condition have yet to be fully realized in 
actual stream habitat conditions (Stout et al., 2010). After 
considering the available information, the BRT also concluded that 
stream habitat conditions on Federal land would ultimately improve in 
the future under the Northwest Forest Plan, even though its analysis 
indicated an apparent decrease in habitat quality over the last decade 
(Stout et al., 2010).
    When fully implemented, we also consider the Northwest Forest Plan 
sufficient to provide for OC coho salmon habitat needs on Federal lands 
that can contribute to viable populations of OC coho salmon in the 
future. However, uncertainty exists about the future of aquatic 
conservation strategies on Federal lands in the Pacific Northwest. The 
Forest Service has attempted to revise the aquatic conservation 
strategy for management of its land several times over the last few 
years but has encountered legal challenges each time. In 2007, the BLM 
proposed to adopt a new aquatic conservation strategy as part of the 
Western Oregon Resources Plan (USDI BLM, 2007). On January 11, 2008, 
NMFS notified the BLM of several concerns about the proposed revisions. 
NMFS indicated that the plan ``does not contain a coherent and cohesive 
conservation strategy for anadromous fish and their habitat in any of 
the action alternatives'' and ``the riparian management scenario 
proposed in the preferred alternative would not adequately maintain and 
restore the riparian and aquatic habitat conditions and processes that 
are critical to the conservation of anadromous fish'' (letter from D. 
Robert Lohn to Edward Shepard, July 11, 2008). The BLM made some 
changes in response to these comments and later decided to withdraw the 
proposed plan entirely. Although the Northwest Forest Plan aquatic 
conservation strategy is the current standard for protection of fish 
habitat on Federal lands in Oregon, there is some possibility that a 
less protective plan will be adopted in the future. NMFS is not aware 
of any effort to strengthen the Northwest Forest Plan's aquatic 
conservation strategy since its adoption in 1994.

Agriculture

Agricultural Water Quality Program
    For agricultural lands, riparian management is governed by 
agricultural water quality management plans under Oregon Senate Bill 
1010 and later area rules. Under these rules, water quality management 
plans must be developed for streams that are listed as water quality 
limited under the Federal Clean Water Act. Water quality management 
plans may also be developed in response to other Federal or state laws 
such as the Coastal Zone Management Act, Groundwater Management Act, or 
Safe Drinking Water Act. Within the range of OC coho salmon, water 
quality management plans have been developed for the Yamhill, North 
Coast, Mid-Coast, Curry County, and Inland Rogue River basins (Oregon 
Department of Agriculture, 2005). Once plans are completed, Oregon 
Administrative Rules (OAR 603-095) are promulgated to provide an 
enforceable backstop for addressing water pollution from agricultural 
activities and rural lands.
    Specific rules for riparian management vary by basin and are 
summarized in Oregon Department of Agriculture (2005). The rules are 
general and open to interpretation. For instance, language similar to 
the following from the mid-coast plan is found in the other plans 
``[Riparian] vegetation must be sufficient to provide the following 
riparian functions: shade, streambank integrity during stream flows 
following a 25-year storm event, and filtration of nutrients and 
sediment.'' Although this type of language identifies the important 
functions riparian vegetation may provide, there are no measurable 
standards or specific requirements in any of the riparian rules. This 
leaves uncertainty for landowners and makes enforcement of these rules 
difficult. This is reflected in the number of enforcement actions taken 
from 1998--2004. The Oregon Department of Agriculture reported that 
nine complaints were made within the range of OC coho salmon during 
this time period. This resulted in three water quality advisory 
sessions with the Department of Agriculture, one letter of warning, and 
no letters of non-compliance or civil penalties (Oregon Department of 
Agriculture, 2005).
    In the past, the Oregon Department of Agriculture enforced the 
rules only when members of the public made complaints. Since the 
program does not specify what type of vegetation riparian areas should 
contain, it is hard for the public to know if and when the rules are 
being violated. Consequently, complaints were rare. Recent 
administrative changes now allow staff from the Department of 
Agriculture to investigate possible violations without complaints from 
the public. At this point, it is uncertain how many investigations will 
be initiated by the Department of Agriculture. In the past, the 
Department has relied on a cooperative approach with landowners, and 
repeated violations were necessary for enforcement action to take 
place. With the adoption of the Oregon Plan for Salmon and Watersheds 
and outreach by the Department of Agriculture, awareness about salmon 
habitat on agricultural lands has increased. Still, uncertainties exist 
about how the rules will affect the quality and trend of stream habitat 
conditions on agricultural lands throughout the range of OC coho 
salmon.
    The riparian rules also exempt levees, dikes, and livestock 
crossing areas. In some agricultural lands, this may result in only a 
small portion of a riparian area being excluded from the rules. In 
other areas, extensive levees or dikes may constrain a stream's 
floodplain and prevent the development of a healthy riparian plant 
community and the resulting improvements in instream habitat 
complexity.

[[Page 29502]]

Confined Animal Feeding Operation Program
    The Oregon Department of Agriculture issues permits for confined 
animal feeding operations commonly known as feedlots. This permitting 
program began in the early 1980s to prevent animal wastes from 
contaminating groundwater and surface water. The Federal Clean Water 
Act also requires permitting of confined feedlots in some situations. 
For many years, the State of Oregon chose not to issue Clean Water Act 
permits (under the National Pollutant Discharge Elimination System) for 
confined animal feeding operation wastes because it deemed the state-
issued permits to be more restrictive. The state permit program 
prohibits the discharge of animal wastes to surface waters, while Clean 
Water Act permits allow such discharges to surface water during large 
storm events. In 2001, the Oregon State Legislature ordered the 
Department of Agriculture to begin issuing permits under the Federal 
Clean Water Act.
    The Department of Agriculture carries out an inspection program for 
confined animal feed operations. From 1998 to 2004, the Department 
carried out 1,013 inspections and investigated 82 complaints, resulting 
in the issuance of 92 notices of noncompliance, 175 notices of 
noncompliance with a plan of correction, and 8 civil penalties (ODA, 
2005). It appears as if the Department of Agriculture maintains a 
fairly robust enforcement program for feedlot operations.
State Pesticide Programs
    The Oregon Department of Agriculture's Pesticides Division 
regulates agricultural, residential, and commercial application of 
pesticides throughout the state. The U.S. Environmental Protection 
Agency has designated the Oregon Department of Agriculture to enforce 
the Federal Insecticide, Fungicide, and Rodenticide Act, as it pertains 
to pesticides. Oregon also has a Pesticide Control Act (passed in 
1973), which, in part, allows the Department of Agriculture to further 
regulate pesticide use across the entire state or within a specific 
area (ODA, 2005). The Department of Agriculture regulates pesticide 
application by licensing certain applicators, requiring pesticides to 
be registered, and carrying out pesticide compliance monitoring.
    Oregon House Bill 3602 required the Department of Agriculture to 
develop a Pesticide Use Reporting Program. Funding and staffing 
problems have delayed implementation of this program. The Department 
reports that this pesticide use reporting will not resume until 2013 
(http://www.oregon.gov/ODA/PEST/purs_index.shtml#PURS_news). Other 
Federal and Oregon state laws may require some pesticide use reporting, 
but this information is not readily available to NMFS, and there is no 
current method to estimate the amount of pesticides being applied 
throughout the range of the OC coho salmon.
    The Department of Agriculture pesticide program most likely helps 
reduce the amount of pesticides reaching surface water throughout the 
range of the OC coho salmon. The licensing program and compliance 
monitoring help to reduce the amount of pesticides that are applied in 
a manner that would adversely affect water quality. Unfortunately, we 
know that many pesticides still end up in surface waters of Oregon 
(Carpenter et al., 2008; NMFS, 2008). The state programs do not include 
any specific buffers for the application of pesticides. It is likely 
that the Federal pesticide registration and labeling program (as 
described below) may be more important in reducing the amount of 
pesticides reaching surface waters.
Federal Pesticide Labeling Program
    Starting in 2001, a series of legal actions forced the U.S. 
Environmental Protection Agency to initiate ESA section 7 consultations 
with NMFS on its registration of pesticides under the Federal 
Insecticide, Fungicide, and Rodenticide Act. As part of a negotiated 
settlement, the Environmental Protection Agency and NMFS agreed to 
complete consultation on 37 pesticides that may adversely affect listed 
salmonids and their critical habitat. This first consultation, 
completed in November 2008, evaluated three organophosphate pesticides: 
chlorpyrifos, diazinon, and malathion. In the biological opinion for 
this consultation, we concluded that the Environmental Protection 
Agency's proposed registration of the uses (as described by product 
labels) of all pesticides containing chlorpyrifos, diazinon, or 
malathion jeopardizes the continued existence of OC coho salmon and 
adversely modifies their designated critical habitat (NMFS, 2008).
    Chlorpyrifos, diazinon, or malathion are toxic to salmonids and 
their prey at relatively low exposure rates (NMFS, 2008). These 
chemicals can cause several lethal and sublethal effects, including 
reduced growth (Allison and Hermanutz, 1977), interference with 
olfactory function (Scholz et al., 2000), and death from acute exposure 
(NMFS, 2008). In our biological opinion on their registration, we 
stated ``Given the life history of OC coho salmon, we expect the 
proposed uses of chlorpyrifos, diazinon, and malathion pesticide 
products that contaminate aquatic habitats may lead to both individual 
fitness level consequences and subsequent population level 
consequences, i.e., reductions in population viability. The widespread 
uses of these materials indicate substantial overlap with the 
populations that comprise the OC coho salmon. The risk to this species' 
survival and recovery from the stressors of the action is high.'' 
(NMFS, 2008) We also stated ``Chlorpyrifos, diazinon, and malathion are 
among the most common insecticides found in mixtures. Based on evidence 
of additive and synergistic effects of these compounds, we expect 
mortality of large numbers and types of aquatic insects, which are prey 
items for salmon,'' and concluded that the proposed action would 
adversely modify critical habitat for OC coho salmon. This biological 
opinion provides a reasonable and prudent alternative to the proposed 
action. This alternative includes adding labeling provisions that 
prohibit ground application of these chemicals within 500 feet (152.4 
meters) of salmonid habitat, aerial application within 1,000 feet 
(304.8 meters) of salmonid habitat, and when wind speed is greater or 
equal to 10 miles per hour (16.1 kilometers per hour). This reasonable 
and prudent alternative has yet to be fully accepted by the 
Environmental Protection Agency.
    Diazinon and chlorpyrifos are being phased out for some non-crop 
uses but will remain available for some commercial uses and 
agricultural use, so, the use of these chemicals may decrease slightly 
in the near future. Malathion is not being phased out in the 
foreseeable future. We will continue consultation on registration of 
the remaining pesticides, but since these three organo-phosphate 
pesticides are among the most toxic to salmon and their prey, it is 
reasonable to assume that the results of the future consultations will 
be equally or less restrictive.
Irrigation and Water Availability
    The Oregon Water Resources Department has initiated a water right 
leasing program to mitigate loss of instream flow due to irrigation 
withdrawals. Water leases provide a mechanism for temporarily changing 
the type and place of use for a certificated water right to an instream 
use. In streams where low summer stream flow is a limiting factor for 
OC coho salmon,

[[Page 29503]]

boosting instream flow would improve this habitat. In some cases, 
leased water can remain instream for a significant distance. In other 
cases, leased water only remains instream until it reaches the next 
water user because that water user's water right would be sufficiently 
large enough to allow them to divert all or a portion of the leased 
water. Consequently, the protection of instream water rights does not 
provide certain instream flow for fish and wildlife because virtually 
all of these existing rights for instream flow have priority dates 
after 1955 and are fairly junior to other water rights in most basins 
and therefore do not often affect water deliveries (INR, 2005). Due to 
these uncertainties, we must conclude that this program provides some 
local beneficial effects by boosting stream flow, but it is not likely 
to have population level positive effects in areas where low flow 
limits OC coho salmon production (i.e., Umpqua River Basin).
Agriculture Summary
    Across all populations, agricultural lands occupy approximately 0-
20 percent of lands adjacent to OC coho salmon habitat (Burnett et al., 
2007). Much of this habitat is considered to have high intrinsic 
potential (low gradient stream reaches with historically high habitat 
complexity) but has been degraded by past management activities 
(Burnett et al., 2007). The state and Federal programs reviewed in this 
section are partially effective at protecting this habitat. Other 
programs including the Federal Clean Water Act section 404 and Division 
of State Lands permitting programs regulate additional activities, such 
as discharge of fill material in wetlands and water bodies that may 
occur on agricultural lands (these programs are reviewed in other 
sections of this Proposed Rule). When considered together, these 
programs provide a minimal level of protection for OC coho habitat on 
agricultural lands. Many of the agricultural actions that have the 
greatest potential to degrade coho habitat, such as management of 
animal waste, application of toxic pesticides, and discharge of fill 
material, have some protective measures in place that limit their 
adverse effects on aquatic habitat. However, deficiencies in these 
programs limit their effectiveness at protecting OC coho salmon 
habitat. In particular, the riparian rules of the water quality 
management program are vague and enforcement of this program is 
sporadic. The lack of clear criteria for riparian condition will 
continue to make the requirements of this program difficult to enforce. 
Levees and dikes can be maintained and left devoid of riparian 
vegetation regardless of their proximity to a stream. The lack of 
streamside buffers in the state's pesticide program likely results in 
water quality impacts from the application of pesticides. Although new 
requirements from ESA section 7 consultations on pesticide registration 
may afford more protection to OC coho salmon, these requirements will 
only apply if the OC coho salmon remains listed. Although a water 
leasing program is available, there is much uncertainty about how much 
these programs will actually boost instream flow. The available 
information leads us to conclude that it is likely that the quality of 
OC coho salmon habitat on private agricultural lands may improve slowly 
over time or remain in a degraded state. It is unlikely that, under the 
current programs, OC coho salmon habitat will recover to the point that 
it can produce viable populations during both good and poor marine 
conditions.

Federal Clean Water Act Fill and Removal Permitting

    Several sections of the Federal Clean Water act, such as section 
401 (water quality certification), section 402 (National Pollutant 
Discharge Elimination System), and section 404 (discharge of fill into 
waters of the United States), regulate activities that might degrade 
salmon habitat. Despite the existence and enforcement of this law, a 
significant percentage of stream reaches in the range of the Oregon 
Coast coho salmon do not meet current water quality standards. For 
instance, many of the populations of this ESU have degraded water 
quality identified as a secondary limiting factor (ODFW, 2007). Forty 
percent of the stream miles inhabited by OC salmon ESU are classified 
as temperature impaired (Stout et al., 2010). Although programs carried 
out under the Clean Water Act are well funded and enforcement of this 
law occurs, it is unlikely that programs are sufficient to protect 
salmon habitat in a condition that would provide for viable populations 
during good and poor marine conditions.

Gravel Mining

    Gravel mining occurs in various areas throughout the freshwater 
range of OC coho salmon but is most common in the South Fork Umpqua, 
South Fork Coquille, Nehalem, Nestucca, Trask, Kilchis, Miami, and 
Wilson Rivers. The U.S. Army Corps of Engineers frequently issues 
permits under Section 404 of the Clean Water Act and Section 10 of the 
Rivers and Harbors Act for gravel mining in rivers in the southern 
extent of the OC coho salmon's range. Although gravel mining activities 
occur within rivers at the northern extent of this ESU's range, such as 
the Nehalem River, the Corps of Engineers does not always issue permits 
for these activities. Although the gravel mining occurring in the 
northern and southern portions of this ESU's range uses similar methods 
to collect the material, it is unclear why fewer permits are issued in 
the northern portion of this ESU's range. The Oregon Department of 
State Lands issues similar permits under both the Removal-Fill Law and 
the State Scenic Waterway Law.
    Improperly managed gravel mining may adversely affect OC coho 
salmon habitat, particularly in systems where substrate recruitment 
patterns have been altered. River channel deepening through substrate 
removal may reduce the available important low velocity, shallow water 
rearing habitats. This type of habitat can be particularly important 
for juvenile coho salmon in lower river and estuary areas (Bottom and 
Jones, 1990; Dawley et al., 1986). McMahon and Holtby (1992) found coho 
smolts sought cover as they migrated through the estuary. Gravel mining 
can result in a deeper and less complex streambed which would not 
provide these refuge areas.
    Gravel mining can also alter salmonid food webs by eliminating 
shallow water habitat, where food webs are based on substrate or 
emergent marsh vegetation and infauna (Bottom and Jones, 1990; Dawley 
et al., 1986). These food webs are more likely to directly support 
salmonid productivity than ones in large open channels (Bottom et al., 
1984; Salo, 1991). For substrate-oriented macroinvertebrates, the 
highest abundance is produced by well-graded mixtures of gravel and 
cobble, with poorly-graded mixtures of sands and silts or boulders and 
bedrock producing the lowest abundance (Reiser, 1998). In particular, 
the significant taxonomic groups for salmonid food sources, including 
insects in the orders Ephemeroptera (mayflies), Plecoptera 
(stoneflies), and Trichopetera (caddisflies), show preferences for 
small to large-sized gravels rather than coarse or fine sands. Direct 
removal of aquatic vegetation or elimination of shallow water habitats 
will also reduce the abundance of vegetation-oriented 
macroinvertebrates easten by juvenile salmon such as ants (Formicidae) 
and grasshoppers (Caelifera).
    Removal of riverbed substrates may also alter the relationship 
between sediment load and shear stress forces and increases bank and 
channel erosion. This disrupts channel form, and can also disrupt the 
processes of channel

[[Page 29504]]

formation and habitat development (Lagasse et al., 1980; Waters, 1995). 
Operation of heavy equipment in the river channel or riparian areas can 
result in disturbance of vegetation, exposure of bare soil to erosive 
forces, and spills or releases of petroleum-based contaminants. 
Dredging and excavation activities have the potential to resuspend 
embedded contaminants or unearth buried contaminants adhered to 
sediment and soil particles.
    Management and removal of stream substrates has been a concern in 
some rivers that provide habitat for OC coho salmon. On August 6, 2004, 
NMFS issued a jeopardy conference opinion under section 7 of the ESA on 
the issuance of a permit under section 10 of the Rivers and Harbors Act 
and section 404 of the Clean Water Act for gravel mining in the Umpqua 
River between rivermile 18 and 25 (NMFS, 2004). This action 
subsequently ceased, but gravel mining in the South Fork Umpqua River 
remains a concern. In 2005, we issued a draft conference opinion that 
concluded that proposed gravel mining in the South Fork Umpqua River 
was likely to jeopardize the continued existence of OC coho salmon and 
would result in the destruction or adverse modification of their 
critical habitat (letter from Michael Crouse, NMFS to Larry Evans, 
Corps of Engineers dated May 29, 2007). NMFS also recommended, under 
the Fish and Wildlife Coordination Act and Magnuson-Stevens Fishery 
Conservation and Management Act, that the permit for this proposed 
action be denied. Similarly, we recommended under the Magnuson-Stevens 
Fishery Conservation and Management Act, that the volume of gravel 
being removed from the Lower Umpqua River be limited and the method of 
removal restricted to a manner that will protect the geomorphology of 
the river (NMFS, 2006).
    Although the Corps of Engineers and Department of State Lands carry 
out programs to regulate gravel mining, recent ESA and MSA 
consultations indicate that, in some cases, additional measures are 
needed to provide for OC coho salmon habitat capable of producing 
viable populations during good and poor marine conditions.

Habitat Restoration Programs

    The Oregon Watershed Enhancement Board funds and facilitates 
habitat restoration projects throughout the range of the OC coho 
salmon. Many of these projects occur on private land and are planned 
with local stakeholder groups known as watershed councils. Biologists 
and restoration specialists from state, Federal and tribal agencies 
often assist in the planning and implementation of projects. Habitat 
restoration projects funded by the Oregon Watershed Enhancement Board 
include installation of fish screens, riparian planting, placement of 
large woody debris, road treatments to reduce sediment inputs to 
streams, wetland restoration, and removal of fish passage barriers 
(Oregon Watershed Enhancement Board, 2009). The web-based Oregon 
Watershed Restoration Inventory (http://www.oregon.gov/OWEB/MONITOR/OWRI_data.shtml) and the North Coast Explorer (http://www.northcoastexplorer.info/) systems provide detailed information on 
restoration projects implemented within the range of OC coho salmon. We 
also maintain the Pacific Northwest Salmon Habitat Project Database 
(http://webapps.nwfsc.noaa.gov/pnshp) to track salmon habitat 
restoration projects. Douglas County provided information on several 
habitat restoration projects completed within the Umpqua River Basin. 
In addition to state and private efforts, the Forest Service and Bureau 
of Land Management carry out restoration projects on Federal lands 
(USDA and USDI, 2005).
    The BRT conducted an analysis to determine if recent habitat 
restoration projects are being located to address habitat need. The 
results indicate that restoration projects in broad areas of the ESU 
are well matched to the needs of the specific basins, but in a few 
areas on the North Coast and most of the Umpqua River basin, the 
projects' match is marginal or worse, indicating a need for 
coordination between those doing habitat assessments and those 
designing and implementing restoration projects (Stout et al., 2010).

Beaver Management

    Beavers were once widespread across Oregon. There is general 
agreement that beavers are a natural component of the aquatic ecosystem 
and beaver dams provide ideal habitat for overwintering coho salmon 
juveniles (ODFW, 1997). Currently, beavers in Oregon are classified as 
nuisance species, so there is no closed season or bag limit. They may 
be killed at any time they are encountered. Oregon also maintains a 
trapping season for beavers. The ODFW is currently investigating 
possible ways to protect beavers and their dams throughout the range of 
OC coho salmon. All of the current protective efforts are voluntary, 
and there is low certainty they will be fully implemented.

Proposed Determination

    Section 4(b)(1) of the ESA requires that a listing determination be 
based solely on the best scientific and commercial data available, 
after conducting a review of the status of the species and after taking 
into account those efforts, if any, being made by any state or foreign 
nation to protect and conserve the species. We have reviewed the 
information received during the public comment period we announced at 
the beginning of this review process, the report of the BRT (Stout et 
al., 2010) and other information available on the biology and status of 
the OC coho salmon ESU. Based on this review, we conclude that there is 
no new information to indicate that the boundaries of this ESU should 
be revised or that the ESU membership of existing hatchery populations 
should be changed.
    Ongoing efforts to protect OC coho salmon and their habitat, as 
described in the previous section, are likely to provide some benefit 
to this ESU. Considered collectively, however, these efforts do not 
comprehensively address the threats to the OC coho salmon ESU from 
ongoing and future land management activities and global climate 
change.
    Based on the best scientific and commercial information available, 
including the BRT report, we determine that the OC coho salmon ESU is 
not presently in danger of extinction, but is likely to become so in 
the foreseeable future throughout all of its range. Factors supporting 
a conclusion that this ESU is not presently in danger of extinction 
include: (1) although abundance has declined from historical levels, 
this ESU remains well distributed throughout its historical range from 
just south of the Columbia River to north of Cape Blanco, Oregon; (2) 
each one of the five strata comprising this ESU contains at least one 
relatively healthy population; (3) threats posed by overharvest and 
hatchery practices have largely been addressed; and (4) spawning 
escapement levels have improved considerably in recent years.
    Factors supporting a conclusion that the DPS is likely to become in 
danger of extinction in the foreseeable future include: (1) although 
the results of the BRT's decision support system analysis indicate a 
low to moderate certainty that the ESU is sustainable, the results 
indicate a low certainty that the ESU will persist over the next 100 
years; (2) habitat complexity in streams throughout the range of this 
ESU is either static or declining (Stout et al., 2010); (3) current 
protective efforts are

[[Page 29505]]

insufficient to provide for freshwater habitat conditions capable of 
producing a viable ESU; and (4) global climate change is likely to 
result in further degradation of freshwater habitat conditions and poor 
marine survival. Therefore, we propose to retain the threatened listing 
for the OC coho salmon ESU by repromulgating the rule classifying the 
ESU as threatened. This proposed rule would supersede our 2008 rule 
listing the species as threatened.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits the take of endangered species. The 
term ``take`` means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct 
(16 U.S.C. 1532(19). In the case of threatened species, ESA section 
4(d) leaves it to the Secretary's discretion whether, and to what 
extent, to extend the section 9(a) ``take`` prohibitions to the 
species, and authorizes us to issue regulations it considers necessary 
and advisable for the conservation of the species. On February 11, 
2008, we issued final protective regulations under section 4(d) of the 
ESA for the OC coho salmon ESU (73 FR 7816). The new information that 
we evaluated in this current review of the status of the OC coho ESU 
does not alter our determinations regarding those portions of our 
February 11, 2008 rule establishing ESA section 4(d) protections for 
the species. Accordingly, we do not proposed changing those protective 
regulations and they remain in effect.

Other Protective ESA Provisions

    Section 7(a)(4) of the ESA requires that Federal agencies confer 
with NMFS on any actions likely to jeopardize the continued existence 
of a species proposed for listing and on actions likely to result in 
the destruction or adverse modification of proposed critical habitat. 
For listed species, section 7(a)(2) requires Federal agencies to ensure 
that activities they authorize, fund, or conduct are not likely to 
jeopardize the continued existence of a listed species or to destroy or 
adversely modify its critical habitat. If a proposed Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with NMFS or the FWS, as 
appropriate. Examples of Federal actions likely to affect salmon 
include authorized land management activities of the Forest Service and 
the BLM, as well as operation of hydroelectric and storage projects of 
the Bureau of Reclamation and the U.S. Army Corps of Engineers. Such 
activities include timber sales and harvest, permitting livestock 
grazing, hydroelectric power generation, and flood control. Federal 
actions, including the U.S. Army Corps of Engineers section 404 
permitting activities under the Clean Water Act, permitting activities 
under the River and Harbors Act, Federal Energy Regulatory Commission 
licenses for non-Federal development and operation of hydropower, and 
Federal salmon hatcheries, may also require consultation. We have a 
long history of consultation with these agencies on the OC coho salmon 
ESU.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``take`` prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) conducting research that 
involves a directed take of listed species. A directed take refers to 
the intentional take of listed species. We have issued section 
10(a)(1)(A) research/enhancement permits for currently listed ESUs for 
a number of activities, including trapping and tagging, electroshocking 
to determine population presence and abundance, removal of fish from 
irrigation ditches, and collection of adult fish for artificial 
propagation programs. Section 10(a)(1)(B) incidental take permits may 
be issued to non-Federal entities performing activities that may 
incidentally take listed species. The types of activities potentially 
requiring a section 10(a)(1)(B) incidental take permit include the 
operation and release of artificially propagated fish by state or 
privately operated and funded hatcheries, state or academic research 
that may incidentally take listed species, the implementation of state 
fishing regulations, logging, road building, grazing, and diverting 
water into private lands. These ``Other Protective ESA Provisions'' of 
the February 11, 2008 rule remain in effect.

Critical Habitat

    Section 4(a)(3) of the ESA requires that, to the extent practicable 
and determinable, critical habitat be designated concurrently with the 
listing of a species. Designation of critical habitat must be based on 
the best scientific data available and must take into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat.
    On February 11, 2008, we designated critical habitat for the OC 
coho salmon ESU (73 FR 7816). The new information that we evaluated in 
this current review of the status of the OC coho ESU does not alter our 
determinations regarding those portions of our February 11, 2008 rule 
designating critical habitat for the species. Accordingly, we do not 
propose changing the critical habitat designation which remains in 
effect.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106--554), is intended to enhance the quality 
and credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. Pursuant to the OMB Bulletin, 
we are obtaining independent peer review of the draft BRT report; all 
peer reviewer comments will be considered prior to dissemination of the 
final report and publication of the final rule.

Public Comments Solicited

    To ensure that the final action resulting from this proposed rule 
will be as accurate and effective as possible, and informed by the best 
available scientific and commercial information, NMFS is soliciting 
information, comments, and suggestions from the public, other 
governmental agencies, the scientific community, industry, and any 
other interested parties. Specifically, we are interested in 
information that we have not considered regarding: (1) assessment 
methods to determine this ESU's viability; (2) this ESU's abundance, 
productivity, spatial structure, or diversity; (3) efforts being made 
to protect this ESU or its habitat; (4) threats to this ESU; and (5) 
changes to the condition or quantity of this ESU's habitat.

References

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

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d

[[Page 29506]]

825 (6th Cir. 1981), we have concluded that ESA listing actions are not 
subject to the environmental assessment requirements of the National 
Environmental Policy Act (See NOAA Administrative Order 216--6).

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this proposed rule is exempt from review under Executive 
Order 12866. This proposed rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13175 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments or the Federal 
Government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This proposed rule 
is unlikely to result in direct costs to Native American Tribes due to 
the following: (1) this ESU has been listed for 15 years, and in our 
experience, there have been few, if any, direct costs to Tribes, (2) 
section 7 of the ESA requires that Federal agencies consult with NMFS 
on the effects of actions they fund, authorize, or carry out; there is 
no requirement for Tribes to do so, and (3) there are no large 
reservations within the range of this ESU, so Federal actions that may 
affect Tribes occur infrequently. Accordingly, the requirements of 
section 5(b) of E.O. 13175 do not apply to this final rule. 
Nonetheless, we will continue to inform potentially affected tribal 
governments, solicit their input, and coordinate on future management 
actions.

Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). We have determined that 
this proposed rule is a policy that does not have federalism 
implications. Consistent with the requirements of E.O. 13132, 
recognizing the intent of the Administration and Congress to provide 
continuing and meaningful dialogue on issues of mutual State and 
Federal interest, and in keeping with Department of Commerce policies, 
the Assistant Secretary for Legislative and Intergovermental Affairs 
will provide notice of this proposed rule and request comments from the 
State of Oregon.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: May 18, 2010.
Eric Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9) et seq.
    2. In Sec.  223.102, revise paragraph (c) (24) to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

----------------------------------------------------------------------------------------------------------------
                       Species                                                                        Citations
------------------------------------------------------                                                 (s) for
                                                          Where Listed    Citation (s) for Listing    Critical
           Common name              Scientific name                            Determinations          Habitat
                                                                                                    Designations
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
(c) * * *                         ...................  .................  ........................  ............
(24) Oregon Coast Coho                  Oncorhynchus    U.S.A., OR, all       73 FR 7816; Feb 11,   73 FR 7816;
                                             kisutch   naturally spawned         2008; [Insert FR   Feb 11, 2008
                                                         populations of    citation and date when
                                                         coho salmon in      published as a final
                                                         Oregon coastal                     rule]
                                                       streams south of
                                                                   the Columbia
                                                        River and north
                                                                    of Cape Blanco,
                                                         including the Cow
                                                                       Creek (ODFW stock
                                                       37) coho
                                                       hatchery program
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

[FR Doc. 2010-12635 Filed 5-25-10; 8:45 am]
BILLING CODE 3510-22-S