[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Proposed Rules]
[Pages 6383-6394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2537]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 100323162-0595-02]
RIN 0648-XV30


Endangered and Threatened Species; 12-Month Finding on a Petition 
To Delist Coho Salmon South of San Francisco Bay

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

ACTION: Proposed rule; 12-month petition finding; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing 
a 12-month finding on a petition to delist coho salmon (Oncorhynchus 
kisutch) in coastal counties south of the ocean entrance to San 
Francisco Bay, California from the Federal List of Endangered and 
Threatened Wildlife under the Endangered Species Act (ESA) of 1973, as 
amended. Coho salmon populations in this region are currently listed 
under the ESA as part of the endangered Central California Coast (CCC) 
Evolutionarily Significant Unit (ESU). The petition was accepted on 
April 2, 2010, triggering a formal review of the petition and a status 
review of the listed ESU. A biological review team (BRT) was convened 
to assist in reviewing the petition and the status of the species. 
Based upon our review of the petitioned action and the status of the 
species, we conclude that the petitioned action is not warranted and 
that coho salmon populations south of San Francisco Bay are part of the 
endangered CCC coho salmon ESU. We further conclude that the southern 
boundary of the CCC coho ESU should be extended southward from its 
current boundary at the San Lorenzo River to include Soquel and Aptos 
Creeks in Santa Cruz County, California, and are proposing this change 
in the ESU boundary. As a result of this proposal, we are also 
soliciting comments and any relevant scientific and commercial data 
concerning the proposed range extension.

DATES: Written comments, data and information relevant to the proposed 
range extension must be received no later than 5 p.m. local time on 
April 5, 2011.

ADDRESSES: You may submit comments on the proposed range extension, 
identified by the RIN 0648-XV30, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http//www.regulations.gov. 
Follow the instructions for submitting comments.
     Facsimile (fax): 562-980-4027, Attn: Craig Wingert.
     Mail: Submit written comments to the Assistant Regional 
Administrator, Protected Resources Division, Attn: Craig Wingert, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean 
Blvd., Suite 5200, Long Beach, CA 90802-4213.
    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

[[Page 6384]]

protected information. We will accept anonymous comments (if you wish 
to remain anonymous enter N/A in the required fields). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, or Adobe 
PDF file formats only.
    A copy of the petition and related documents, our 90-day finding, 
the BRT report, and other relevant information may be obtained by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, Attn: Craig Wingert, Southwest Region, National 
Marine Fisheries Service, 501 W. Ocean Blvd., Suite 5200, Long Beach, 
CA 90802-4213 or from the internet at http://swr.nmfs.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region, 
(562) 980-4021; or Dwayne Meadows, NMFS, Office of Protected Resources, 
Silver Spring, MD, (301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    The Central California Coast (CCC) coho salmon Evolutionarily 
Significant Unit (ESU) was listed as a threatened species on October 
31, 1996 (61 FR 56138), and subsequently reclassified as an endangered 
species on June 28, 2005 (70 FR 37160). Coho salmon in coastal streams 
of Santa Cruz and San Mateo counties south of the entrance to San 
Francisco Bay were found to be part on this ESU at the time of its 
original listing and subsequent reclassification. For more information 
on the status, biology, and habitat of this coho salmon ESU, see 
``Endangered and Threatened Species: Final Listing Determinations for 
16 ESUs of West Coast Salmonids and Final 4(d) Protective Regulations 
for Threatened Salmonid ESUs; Final Rule'' (70 FR 37160; June 28, 2005) 
and ``Final Rule Endangered and Threatened Species; Threatened Status 
for Central California Coast Coho Salmon Evolutionarily Significant 
Unit (ESU)'' (61 FR 56138; October 31, 1996).
    On November 25, 2003, we received a petition from Mr. Homer T. 
McCrary (Petitioner), a Santa Cruz County forestland owner, to redefine 
the southern extent of the CCC coho salmon ESU by excluding coastal 
populations of coho salmon south of the entrance to San Francisco Bay, 
California. An addendum to the petition was received on February 9, 
2004, providing additional information to clarify the original petition 
and respond to new information regarding museum specimens of coho 
salmon from four coastal streams south of San Francisco Bay.
    The ESA authorizes an interested person to petition for the listing 
or delisting of a species, subspecies, or Distinct Population Segment 
(DPS) (16 U.S.C. 1533(b)(3)(A). Our ESU policy (November 20, 1991; 56 
FR 58612) defines a valid ESU as a DPS under the ESA. The ESA 
implementing regulations contain the factors to consider for delisting 
a species (50 CFR 424.11(d)). A species may be delisted only after a 
review of the best scientific and commercial data substantiates that it 
is neither endangered nor threatened for one or more of the following 
reasons: (1) The species is extinct or has been extirpated from its 
previous range; (2) the species has recovered and is no longer 
endangered or threatened; or (3) investigations show the best 
scientific or commercial data available when the species was listed, or 
the interpretation of such data, were in error. The factors, singly or 
in combination, considered in making a delisting determination are: (1) 
The present or threatened destruction, modification, or curtailment of 
a species' habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting a species' continued 
existence.
    Section 4(b)(3)(A) of the ESA requires that, to the maximum extent 
practicable, within 90 days after receiving a petition, the Secretary 
shall make a finding whether the petition presents substantial 
scientific information indicating that the petitioned action may be 
warranted (90-day finding). Our ESA implementing regulations define 
``substantial information'' as the amount of information that would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted (50 CFR 424.14(b)(1)). If a positive 90-day 
finding is made, then we must conduct a status review of the species 
concerned and publish a finding indicating whether the petitioned 
action is or is not warranted (12-month finding) (50 CFR 424.14(b)(3)).
    On March 23, 2006, we published a 90-day finding (71 FR 14683) 
stating that the petition submitted by petitioner did not present 
substantial information indicating that delisting coho salmon south of 
San Francisco Bay may be warranted. On March 31, 2006, the petitioner 
challenged that finding, alleging violations of the ESA and 
Administrative Procedure Act (Homer T. McCrary v. Carlos Gutierrez et 
al., No. 06-cv-86-MCE) (E.D. Cal.)). The venue for the case was 
subsequently transferred to the Northern District Court in San Jose, 
California as case No. C-08-01592-RMW (N.D. Cal.). On February 8, 2010, 
the court issued an order stating our decision to deny the petition was 
arbitrary and capricious. The court found that we failed to follow the 
proper statutory procedures for reviewing petitions under the ESA, by 
using information beyond the four corners of the petition, and in 
applying the 12-month standard of whether the petitioned action ``is or 
is not warranted,'' rather than the 90-day standard of whether the 
petitioned action ``may be warranted.'' The court vacated our March 23, 
2006, finding and remanded the petition to us for processing in 
accordance with 16 U.S.C. 1533(b)(3)(A).
    On April 2, 2010, we published a new 90-day finding (75 FR 16745) 
in response to the February 8, 2010, U.S. District Court decision, 
accepting the petition, triggering its formal review and initiation of 
a status review. In the 90-day finding we solicited information from 
the public and other concerned stakeholders to ensure that the review 
was complete and based on the best available scientific and commercial 
information concerning the issues raised in the petition. The 
California Department of Fish and Game (DFG) provided the only public 
comment on the 90-day finding.
    In July 2010, we convened a biological review team (BRT) composed 
of scientists from our Southwest and Northwest Fisheries Science 
Centers and fishery experts from the U.S. Forest Service and U.S. 
Geological Survey to specifically review the petitioned action, the 
information supporting the petitioned information, and other relevant 
information compiled by the Southwest Fisheries Science Center to 
assess the petition and its specific issue regarding the distribution 
of coho salmon south of San Francisco Bay. Following extensive review 
and discussion, the BRT addressed two key questions pertinent to the 
petitioned action: (1) Does the available evidence support a southern 
boundary for CCC coho salmon that excludes streams south of the 
entrance to San Francisco Bay?, and (2) does the available evidence 
support a boundary different from the current boundary at the San 
Lorenzo River? The BRT's review and findings are detailed in Spence et 
al. (2011). In its findings, the BRT concluded the best available 
scientific and historical information supports a southern boundary for 
this ESU that includes populations inhabiting coastal streams south of 
the entrance to San Francisco Bay. Based on their review of the 
scientific and historical information,

[[Page 6385]]

the BRT also recommended extending the southern boundary of the ESU 
from its current boundary at the San Lorenzo River southward to include 
populations found in Soquel and Aptos Creeks. Below we summarize and 
review the petition and the BRTs status report.

Overview of the Petition

    The McCrary petition asserts that coho salmon were introduced into 
Santa Cruz County, California, in 1906 and until that time, aside from 
possible occasional strays, no self-sustaining native coho populations 
existed in the coastal streams south of the entrance to San Francisco 
Bay. The petition asserts the legal and factual criteria supporting the 
listing of coho salmon under the ESA were in error, as demonstrated by 
historical and scientific information presented in the petition. The 
petitioner also asserts that extant populations of coho salmon in the 
coastal streams south of the entrance to San Francisco Bay are most 
likely of non-native origin and only persist there due to ongoing 
artificial propagation efforts. As a consequence, the petitioner argues 
that these populations do not constitute an important component in the 
evolutionary legacy of the species. The petition also asserts coho 
salmon populations in these streams should be delisted because they are 
not evolutionarily significant populations and their inclusion in the 
CCC coho salmon ESU is inconsistent with NMFS' ESU policy for Pacific 
salmon (Waples, 1991). Based on this and other information detailed in 
the petition and addendums, the petitioner requested that we delist 
populations of coho salmon in coastal streams south of the entrance to 
San Francisco Bay and redefine the southern boundary of the CCC coho 
salmon ESU to an undetermined location north of San Francisco Bay.
    Information used to support the petitioner's assertion that coho 
salmon are not native in coastal streams south of the entrance to San 
Francisco Bay, and therefore, should not be listed, included: (1) Early 
scientific and historical accounts indicating that the entrance to San 
Francisco Bay was the southern boundary for coho salmon; (2) 
differences in environmental conditions (geology, climate, and 
hydrology) between regions north and south of San Francisco Bay; (3) 
information and historical accounts indicating that coho salmon from 
out of the area were artificially planted into the coastal streams 
south of the entrance to San Francisco Bay; and (4) the absence of coho 
salmon remains in the archeological record at sites south of the 
entrance to San Francisco Bay. Finally, the petitioner also argued that 
even if coho salmon populations south of the entrance to San Francisco 
Bay are of native origin they are likely ephemeral populations that 
contribute little to the evolutionary legacy of the species, and 
therefore, should not be listed under the ESA.
    We considered all additional information provided by the petitioner 
and others that provided supplemental information on his behalf to be 
part of the petition. This supplemental information originated as a 
result of written communication and discussions between our Southwest 
Region office, the Southwest Fisheries Science Center and the 
petitioner in 2004 and 2005. We also considered information presented 
in Kaczynski and Alvarado (2006) which clarified and expanded on some 
of the information and arguments made by the petitioner.

Summary of BRT Findings

    The following summary of the BRT's findings addresses the main 
points raised in the petition, supplemental information provided by the 
petitioner, and arguments made in Kaczynski and Alvarado (2006). The 
summary addresses the following issues raised in the petition: (1) 
Early scientific and historical accounts; (2) environmental conditions 
north and south of the entrance to San Francisco Bay; (3) human 
intervention as it relates to artificial propagation; (4) the 
archeological record for coho remains at sites south of the entrance to 
San Francisco Bay; and (5) the relationship of these southern 
populations to the overall CCC coho salmon ESU and their consideration 
in the context of our ESU policy.
    1. Early scientific and historical accounts. The petitioner 
presented a review of early scientific and historical accounts that 
suggested coho salmon were not present in coastal streams south of the 
entrance to San Francisco Bay prior to hatchery planting efforts. In 
his review, the petitioner found no references to coho salmon in the 
area until after the initiation of hatchery outplanting efforts which 
began in 1906. Because the scientific literature prior to 1906 
referenced coho salmon as occurring or being abundant north of San 
Francisco the petitioner concluded coho salmon were absent in coastal 
streams south of San Francisco. In response to the discovery of coho 
salmon museum specimens collected in 1895 from four streams south of 
the entrance to San Francisco Bay, information that was not presented 
in the original petition, the petitioner argued these specimens were 
not reliable evidence that coho salmon historically occurred south of 
San Francisco Bay and instead were likely the result of the fish 
straying southward because of unusually favorable ocean conditions or 
of undocumented non-native stock introductions.
    The BRT reviewed all available information and concluded that the 
petitioner's assertions are not supported by the available scientific 
or historical evidence. The historical record demonstrates that few 
faunal surveys had been conducted by early fishery scientists in 
coastal watersheds anywhere in California prior to 1895, and certainly 
not enough to precisely define the southern boundary of coho salmon in 
California.
    In reviewing historical reports and other information regarding the 
range of coho salmon in California, the BRT found there was 
considerable uncertainty and confusion about the identification of the 
various species of Pacific salmon in the 1800s and into the early 
1900s. This confusion raised the BRT's concerns over the reliability 
and accuracy of popular sources of information (e.g., newspapers) and 
early scientific accounts to establish freshwater range limits for coho 
salmon in California. This widespread confusion regarding species 
identification was due to several factors, including a poor 
understanding of salmonid life histories and life stages, the use of 
different common names (which sometimes varied between geographic 
localities) for the same species, and the use of the same common name 
for different species. These factors contributed to the frequent 
misidentification of salmon species and the resultant conflicting 
descriptions of the species' geographic range. After a careful review 
of the early literature, the BRT found evidence that coho salmon were 
likely missidentified as chum salmon (O. keta) or steelhead (O. mykiss) 
which led early fishery scientists to inaccurately describe the 
presence and/or distribution of coho salmon in California.
    The BRT concluded that museum collections currently held at the 
California Academy of Sciences (CAS) provide direct evidence coho 
salmon were present in coastal streams south of the entrance to San 
Francisco Bay prior to 1906. The collection of these specimens 
represents the first known scientific effort to document the presence 
of freshwater fish species, including salmonids, in coastal streams 
south of the entrance to San Francisco Bay. The petitioner contends 
these specimens are not reliable indicators of

[[Page 6386]]

coho presence south of the entrance to San Francisco Bay for several 
reasons including: (1) The original misidentification of the specimens 
as species other than coho salmon; (2) the possibility that the 
collections were ``contaminated'' during the 1906 San Francisco 
earthquake where some specimen bottles in the original museum 
collection at Stanford University were broken; and (3) a ``broken 
chain'' of custody for the 1895 specimens. The petitioner also asserted 
even if these specimens were collected from local streams, they are not 
evidence of persistent populations south of San Francisco Bay, but 
rather may have been the result of unusually favorable ocean survival 
conditions in the early 1890s that led to an ephemeral colonization 
event in these streams by coho salmon.
    The BRT was not persuaded by either of the first two arguments. The 
misidentification of species was commonplace in this era when there was 
substantial confusion surrounding the taxonomy and nomenclature of 
Pacific salmon and a poor understanding of the early life stages of 
these species. The correct identification of these fish as coho salmon 
was made sometime later, most likely before the Stanford collection was 
transferred to the CAS (D. Catania, CAS, pers. comm., 14 November 2004, 
in Spence et al., 2011). Further, the timing of these collections 
(June) and size of individuals (50-85 mm) is most consistent with coho 
salmon, which reside in fresh water for a full year. Three of the four 
lots were originally identified as chum salmon. However, chum salmon 
emigrate shortly after emergence in the spring at very small sizes 
(usually < 50 mm); thus, a June collection of fish > 50 mm would be 
highly unlikely. Thus, the most reasonable explanation is that the 1895 
specimens collected by the Carmel River Expedition were coho salmon 
that were misidentified. Adams et al. (2007) reached the same 
conclusion.
    The BRT also concluded that the assertion that the museum specimens 
or labels were mixed up or ``contaminated'' after the 1906 San 
Francisco earthquake lacks support. The BRT noted that extensive 
efforts were made by museum staff after the earthquake to match 
specimens with the correct collection information and that all 
unmatched specimens were discarded. They also believed that the 
petitioner's assertion that contamination had occurred would have 
necessitated several improbable events to have occurred, making that 
scenario highly unlikely.
    The BRT did not specifically address the ``chain of custody'' 
argument made by the petitioner regarding these specimens, but as Adams 
et al. (2007) pointed out, this concept is normally applied to evidence 
handling in legal proceedings and not the handling of scientific museum 
specimens. We believe this is an inappropriate standard in a situation 
such as this and that few if any museum collections, even contemporary 
collections, could meet this legal evidence standard.
    The BRT also found the petitioner's argument that coho salmon 
colonized these streams in the 1890s as a result of unusually favorable 
ocean conditions to be highly speculative and without a credible basis. 
The BRT concluded the collection of coho salmon in four different 
streams south of San Francisco Bay during a fairly brief field survey 
in 1895 strongly suggested their presence was not caused by a random 
colonization event resulting from favorable ocean conditions.
    Finally, the BRT found clear evidence from multiple historical 
sources that coastal streams south of the entrance to San Francisco Bay 
supported at least two, if not more, species of anadromous salmonids on 
a recurring basis in the late 1800s and early 1900s. One of the species 
was undoubtedly steelhead, which is still present in these coastal 
streams south of San Francisco Bay. Based on the known historical and 
current distributions of the five species of Pacific salmon, the second 
species could only be coho salmon or Chinook (O. tshawytscha) salmon. 
Given the different ecological requirements of these two species and 
the nature of local stream habitats, the BRT concluded that coho salmon 
rather than Chinook salmon is most likely to have been the other 
salmonid species regularly observed in the coastal streams south of the 
entrance to San Francisco Bay. To conclude otherwise, the BRT stated, 
would be inconsistent with all that is known about the comparative 
ecology and habitat requirements of the two species.
    In summary, the BRT found clear evidence that coho salmon were 
present in the coastal streams south of San Francisco Bay prior to 
1906. Evidence cited by the BRT includes museum specimens collected in 
1895 and a large body of information indicating that at least two 
species of salmonids were present in the area, one of which was likely 
coho salmon. The BRT also found widespread confusion regarding the 
identification of salmonids in the early popular and scientific 
literature indicating that these sources of information could not be 
reliably used to define the southern freshwater range limit of coho 
salmon in California.
    2. Environmental conditions. In the petition and other written 
correspondence the petitioner presented information contending that the 
environmental conditions in coastal streams south of the entrance to 
San Francisco Bay are too harsh or extreme to support persistent 
populations of coho salmon. Environmental factors identified by the 
petitioner and Kazcynski and Alvarado (2006) were stream hydrology, 
precipitation, sedimentation, drought conditions, and stream access.
    After reviewing the available information characterizing the 
environmental conditions in streams immediately north and south of San 
Francisco Bay, the BRT disagreed with the petitioner's contention. The 
BRT concluded that the relatively small differences in stream hydrology 
(baseflow and dynamic range) between the northern and southern 
watersheds were not biologically meaningful to coho salmon. The BRT 
also concluded that the petitioner's analysis of hydrology was flawed 
because it failed to account for the effects of regulated flow releases 
in Lagunitas Creek (Marin County, California) and major summer water 
diversions in Soquel Creek (Santa Cruz County, California), both of 
which alter the natural hydrograph in these streams.
    The petitioner's arguments regarding the unsuitability of habitat 
south of San Francisco Bay were also discussed by Kaczynski and 
Alvarado (2006), who compared precipitation regimes in different 
watersheds and concluded that the frequency of extreme storms is 
significantly greater in Santa Cruz County than in Marin County. Adams 
et al. (2007) evaluated this analysis and concluded that the 
differences in extreme storm frequency were so slight that they were 
unlikely to be biologically significant to coho salmon. The BRT 
concurred with the Adams et al. (2007) assessment.
    Kazcynski and Alvarado (2006) also contended that habitat 
conditions were significantly different in watersheds immediately north 
and south of San Francisco Bay. Specifically, they argued that drought 
conditions are more severe south of San Francisco Bay, freshwater 
temperatures are warmer south of San Francisco Bay, and that coho 
salmon may not be able to access spawning habitat during drought 
periods south of San Francisco Bay. The BRT concluded that these 
conditions are not unique to streams south of San Francisco Bay, nor 
would they significantly hinder habitat

[[Page 6387]]

availability or use by coho salmon in streams south of San Francisco 
Bay.
    The petitioner noted that coastal streams south of the entrance to 
San Francisco Bay are subject to high amounts of fine sediment input 
which can make habitat unsuitable and deleterious to coho salmon. The 
BRT noted this problem is neither new nor unique to streams south of 
San Francisco Bay, and that coho salmon occupy streams such as the Eel 
River, Mad River, and Redwood Creek (in Humboldt County, California), 
which have some of the highest sediment yields in the United States 
(Milliman and Syvitski, 1992).
    The petitioner and Kazcynski and Alvarado (2006) contended that 
some of the streams south of San Francisco are in excellent condition 
and cited a number of recent documents attesting to the difficulties 
that coho salmon have coping with environmental conditions in these 
streams. The BRT did not dispute the fact that coho salmon are 
significantly challenged by the current habitat conditions in these 
streams, but they strongly disagreed that some streams in Santa Cruz 
County are now in excellent condition. Based on their understanding of 
habitat conditions in streams south of San Francisco Bay and the 
history of anthropogenic disturbance in these watersheds, the BRT does 
not believe there is a single watershed that exhibits the pristine 
habitat complexity that existed prior to the 1800s when significant 
anthropogenic alteration of these watersheds first began. The BRT 
concluded that these anthropogenic disturbances are the major factor 
affecting coho salmon use of these watersheds rather than the inherent 
characteristics of the watersheds themselves.
    In summary, the BRT found no compelling evidence that environmental 
conditions are appreciably different in coastal streams south of the 
entrance to San Francisco Bay compared with streams north of San 
Francisco Bay where the historical (and current) presence of coho 
salmon is not disputed.
    3. Human intervention by artificial propagation. The petitioner 
contends coho salmon were first introduced into streams south of San 
Francisco Bay with the delivery of coho salmon eggs from Baker Lake, 
Washington, to the Brookdale hatchery on the San Lorenzo River in Santa 
Cruz County in 1906. According to the petition, this introduction was 
the beginning of an effort to establish a coho salmon fishery in the 
coastal streams south of San Francisco Bay. Petitioner then asserts 
that the first credible observation of coho salmon in the region did 
not occur until after the introductions began in 1906. The petitioner 
concludes that all subsequent observations of coho salmon in these 
streams were likely the result of the 1906 or later introductions.
    The BRT reviewed and evaluated past coho salmon hatchery out-
planting activities in streams south of San Francisco Bay to address 
three issues: (1) Whether the substantial numbers of coho salmon that 
occurred in these streams were the result of the Baker Lake and 
subsequent introductions; (2) whether the CAS coho salmon specimens 
collected in 1895, prior to the start of hatchery out-planting, could 
have been the result of earlier hatchery activities; and (3) whether 
the current populations of coho salmon in streams south of the entrance 
to San Francisco Bay are the result of these and subsequent 
introductions of fish from watersheds north of San Francisco Bay.
    The BRT concluded that it is highly unlikely that the introduction 
of modest numbers of coho salmon fry from Baker Lake could account for 
the substantial numbers of coho salmon observed by Shapovalov and Taft 
(1954) in Waddell Creek by the 1930s. The BRT based this determination 
on several considerations including evidence indicating that all of 
these early coho salmon releases into streams south of San Francisco 
Bay consisted of fish at the fry life stage. The BRT indicated that 
fish released at the fry stage would be expected to have very low 
survival rates even with modern hatchery practices, let alone the 
practices used in the early 1900s. The BRT also noted the habitat 
characteristics of the streams south of the entrance to San Francisco 
Bay are substantially different from those in which the Baker Lake 
stock is found. The Baker Lake stock of coho salmon evolved in a cold, 
snowmelt-dominated watershed of the northern Cascade Range under 
environmental conditions vastly different from those found in streams 
on the central coast of California, which may have limited the success 
of any released fish. The most notable adaptation of coho salmon to the 
Baker Lake habitat conditions is the summer run timing (July-August) of 
returning adult spawners. This pattern contrasts significantly with the 
winter run timing of coho salmon in central California. Adult run 
timing of salmonids, including coho salmon, is under strong genetic 
control and the summer run timing of Baker Lake coho salmon would be 
extremely maladaptive for the coastal streams south of the entrance to 
San Francisco Bay since most stream entrances in this area become 
inaccessible due to sand bars during summer and are not accessible 
until late November or December in most years. Given the summer run 
timing of the Baker Lake stock and the inaccessibility of many stream 
mouths during the summer south of San Francisco Bay, returning Baker 
Lake coho would have had a very difficult time accessing these streams 
in order to spawn.
    The BRT evaluated whether coho salmon observed prior to 1906 could 
have been the result of hatchery plantings. The petition addendum 
indicated such a possibility might exist due to information suggesting 
there were fish plantings from northern California and elsewhere into 
streams of the Santa Cruz Mountains occurring at least as early as 
1878. The BRT found no credible evidence to support this point and 
substantial evidence to the contrary. Published records clearly 
demonstrate that neither Federal nor State-owned hatcheries produced or 
released coho salmon into waters south of San Francisco prior to the 
1906 introduction of Baker Lake fish. While some small-scale privately 
owned hatcheries and rearing ponds operated in the state prior to 1906, 
the BRT found no evidence that any of these facilities reared or 
distributed coho salmon south of the entrance to San Francisco Bay.
    Based on the limited production of coho salmon in hatcheries 
anywhere in the Pacific Northwest and the lack of any evidence that 
coho salmon were stocked into streams south of San Francisco Bay prior 
to 1906, the BRT determined that it is highly unlikely that the CAS 
collection of coho salmon from four Santa Cruz Mountain streams in 1895 
by the Carmel River Expedition were the consequence of hatchery 
activities pre-dating these collections.
    The BRT also investigated whether existing populations of coho 
salmon in coastal streams south of San Francisco Bay could be the 
result of introductions from other areas by reviewing several genetic 
datasets for coho salmon from throughout California and elsewhere in 
the species' range. Molecular genetic data are extensively used in 
fisheries research to provide inferences about population structure and 
the ancestry of populations and individual fish. If the coho salmon 
populations currently found in streams south of San Francisco had been 
established using fish out-planted in the early 1900s from streams in 
the northern portion of the species range, we would expect these 
current populations south of San Francisco to have genetic 
characteristics similar to those of northern populations.
    The genetic data reviewed by the BRT provided consistent results 
regarding

[[Page 6388]]

the ancestry of coho salmon populations in the coastal streams south of 
San Francisco Bay. The Garza (manuscript in preparation) dataset 
discussed in Spence et al. (2011) is particularly relevant to the claim 
in the petition that these populations are non-native and derived from 
an out-of-ESU source. This dataset consists of molecular genetic data 
from coho salmon populations located throughout California, as well as 
from populations located throughout the rest of the species' range, 
including Canada, Alaska and Russia. This dataset also includes genetic 
data for coho salmon from the Samish River which is the watershed 
immediately north of the Skagit River in Puget Sound where the Baker 
Lake stock cited by the petitioner as the original source for coho 
salmon in 1906 originated. Analysis of these data show that coho salmon 
from populations in the southernmost portion of the range of the CCC 
coho salmon ESU are unambiguously similar to coho salmon populations 
elsewhere within the range of this ESU and not with populations from 
other ESUs located further north. This analysis clearly rules out the 
possibility that the genetic ancestry of coho salmon populations south 
of the entrance to San Francisco Bay is substantially derived from an 
out-of-ESU source (e.g., Baker Lake or 1980s imports from Washington 
and Oregon stocks). The analysis definitively establishes that fish 
from northern populations are not the primary contributors to the 
current populations south of San Francisco, nor were they established 
by out-planting of fish from northern populations within the ESU or 
outside the ESU, including imports from the Noyo River.
    Based on its review of hatchery out-planting in the streams south 
of the entrance to San Francisco Bay after 1906, hatchery and rearing 
pond efforts prior to 1895, and the available genetic information, the 
BRT concluded the available evidence did not support the petitioner's 
assertions. In fact, the available information strongly suggests that 
early hatchery out-planting efforts were unsuccessful at establishing 
new populations of coho salmon in the streams south of the entrance to 
San Francisco Bay. Although the available genetic information cannot 
rule out the possibility that coho salmon from streams in the northern 
portion of the ESU may have contributed to the genetic ancestry of 
current populations south of San Francisco, these data indicate that 
any such contribution was not large and that current populations are 
native to the area.
    4. Archeological record. The petitioner cited the studies of 
Gobalet and Jones (1995) and Gobalet et al. (2004) that failed to 
identify the archeological remains of coho salmon from Indian middens 
in Santa Cruz and San Mateo counties as additional evidence that coho 
salmon were not native to the streams south of the entrance to San 
Francisco Bay.
    The BRT concurred that archaeological studies can provide important 
evidence for the distribution of plant and animal species through their 
use by native inhabitants (Gobalet and Jones, 1995). A recent paper on 
this topic (Gobalet manuscript in press as cited in Spence et al., 
2011) addresses the southern extent of coho salmon distribution in 
California specifically. Gobalet (manuscript in press) reports on 
findings from newly examined archeological material from five locations 
in coastal California south of the entrance to San Francisco Bay, and 
from a re-examination of materials from Elkhorn Slough (near the 
historical mouth of the Salinas River) that had previously been 
identified as steelhead. From these materials Gobalet (manuscript in 
press) identified two, and possibly three, archaeological locations as 
having remains of coho salmon. Of the two locations where coho salmon 
remains were independently verified, one was from a historical home 
site in Santa Barbara (Santa Barbara County, California) and one was 
located at the A[ntilde]o Nuevo State Reserve in southern coastal San 
Mateo County. The third location was at Elkhorn Slough where three 
elements (vertebrae) were determined to be coho salmon. However, these 
elements will require confirmation by another specialist before a 
conclusion can be reached that coho salmon occurred as far south as 
Monterey County.
    Based on its review, the BRT concluded that the identification of 
coho salmon archeological specimens from locations in coastal streams 
south of San Francisco Bay indicates coho salmon are native to this 
area. Based on the most recent archaeological evidence, the BRT 
concluded that: (1) Archaeological evidence from the A[ntilde]o Nuevo 
site establishes the historical presence of coho salmon south of the 
entrance to San Francisco Bay; and (2) independent confirmation of 
vertebrae identified from the Elkhorn Slough site may extend the 
southern limit of historical coho salmon distribution to northern 
Monterey County.
    5. Contribution of populations south of San Francisco to the 
overall CCC coho salmon ESU. The petitioner and his representatives 
questioned the basis for the federal listing of coho salmon in the 
streams south of the entrance to San Francisco Bay. The issues raised 
fall into three categories: (1) That coho salmon were introduced to the 
area in question, and therefore, do not qualify for Federal listing; 
(2) listing of these southern populations conflicts with NMFS' ESU 
policy (56 FR 58612) and Waples (1991) regarding the issue of 
evolutionary legacy; and (3) the southern populations are ephemeral or 
sink populations, and therefore, do not contribute to the evolutionary 
legacy of the CCC coho salmon ESU. The BRT disagreed with the 
petitioner and his representatives on all three issues. The BRT 
concluded that the weight of the evidence indicates coho salmon are 
native to the area and do qualify for Federal listing. As stated in the 
BRT report (Spence et al., 2011), the CAS specimens and recent genetic 
information clearly demonstrate that coho salmon in the streams south 
of the entrance to San Francisco Bay are native.
    The BRT concluded that the petitioner misinterpreted our ESU 
policy. The petitioner argued that the ESU policy requires a population 
by population analysis of reproductive isolation and evolutionary 
legacy. The BRT noted that the evolutionary legacy criterion in the 
policy applies to the ESU as a whole, and not to individual populations 
within an ESU. Our ESU policy has no requirement that each constituent 
population or group of populations within an ESU contribute uniquely to 
the evolutionary legacy of the species. In fact, if the southern coho 
salmon populations had been determined to be reproductively isolated 
and to constitute an important part of the evolutionary legacy of the 
species, they would have been considered a separate ESU.
    The BRT did not believe there was compelling evidence that coho 
salmon populations south of the entrance to San Francisco Bay were 
ephemeral, at least not at the time scales implied by the petitioner. 
The petitioner's assertion directly contradicts the finding from NMFS' 
Technical Recovery Team (Spence et al., 2008) which concluded that at 
least two independent coho salmon populations (Pescadero Creek in San 
Mateo County and San Lorenzo River in Santa Cruz County) likely existed 
in the region prior to the extensive habitat alteration that followed 
Euro-American settlement.
    Finally, the BRT report (Spence et al., 2011) provided an expanded 
discussion on the relative roles of ephemeral and sink populations and 
the contribution these populations can make to the resiliency of a 
salmon ESU. Demographically, these populations

[[Page 6389]]

increase overall metapopulation size, increase the size of the source 
populations, and extend the survival of a declining metapopulation. In 
contrast to arguments presented by the petitioner and his 
representatives regarding the importance of ephemeral and sink 
populations, the BRT noted these populations contribute to maintaining 
the evolutionary legacy of the ESU as a whole. The BRT concluded that 
the loss of populations at the edge of a species' range (such as coho 
salmon south of the entrance to San Francisco Bay) may have a 
relatively greater negative impact on ESU persistence than loss of 
populations occurring nearer to the center of the species' 
distribution. In addition to these demographic benefits, populations 
near the edge of a species' range provide potential genetic benefits by 
fostering evolution in a broader ecological niche for the ESU as a 
whole.

12-Month Finding on the McCrary Petition

    We have reviewed the best scientific and commercial information 
available including the petition, the addendum to the petition, all 
other correspondence between the petitioner and NMFS, comments on the 
90-day finding from DFG, and the BRT's detailed analysis and 
conclusions regarding the petitioned action (Spence et al., 2011). 
Based on this review, we conclude that the petitioned action is not 
warranted.

New Information on Coho Salmon Distribution and Habitat Use South of 
the San Lorenzo River

    The ESU boundaries for West Coast coho salmon ranging from southern 
British Columbia to Central California were first delineated in a 1994 
status review (Weitkamp et al., 1995). In delineating coho ESU 
boundaries, the 1994 status review evaluated a wide range of 
information pertaining to West Coast coho salmon, including geography, 
ecology, and coho salmon genetic characteristics and life history 
traits. In the proposed listing determination for the CCC coho salmon 
ESU (60 FR 38011; 25 July 1995), we stated that the current range of 
the ESU extended to the southernmost extent of the species range in 
California based on recent data. At that time, we believed the southern 
extent of the species range was the San Lorenzo River in Santa Cruz 
County.
    For coho salmon in central California, the 1994 status review 
recognized that the rivers draining the Santa Cruz Mountains formed a 
cohesive group with respect to environmental conditions, and therefore, 
concluded that the Pajaro River, which is south of Aptos Creek, was 
likely the historical southern limit of coho salmon. In determining 
where the southern boundary of the Central California coast ESU should 
be placed, the 1994 status review relied heavily on information 
provided in a status review of coho salmon in Scott and Waddell Creeks 
(Bryant, 1994). The Bryant (1994) status review indicated there were no 
recent reports of coho salmon in rivers south of the San Lorenzo River. 
Faced with uncertainty of whether any coho salmon populations might be 
present south of San Lorenzo River and the uncertain origins of coho 
salmon in the San Lorenzo (native or hatchery influenced), the status 
review concluded that the San Lorenzo River should be the southern-most 
basin in the ESU. In reaching this conclusion, the 1994 status review 
and proposed and final listing determinations (60 FR 38011 and 61 FR 
56138) stated that any coho salmon found spawning south of the San 
Lorenzo River that were not the result of stock transfers should be 
considered part of this ESU.
    In reviewing the McCrary petition, the current BRT (Spence et al., 
2011) compiled new information about the distribution of coho salmon 
south of the entrance to San Francisco Bay. Based on a review of this 
new information, the BRT recommended that the southern boundary of the 
CCC coho salmon ESU be moved southward from the San Lorenzo River to 
include any coho salmon populations occurring in Soquel and Aptos 
Creeks. New information supporting this recommendation includes: (1) 
Recent observations of coho salmon in Soquel Creek; (2) recent genetic 
information obtained from coho salmon observed in Soquel Creek; and (3) 
information indicating that freshwater habitat conditions and watershed 
processes in Soquel and Aptos Creeks are similar to those found in 
closely adjacent basins within the current range of the CCC coho salmon 
ESU.
    During the summer of 2008, juvenile coho salmon were observed by 
our Southwest Fisheries Science Center (SWFSC) scientists in Soquel 
Creek for the first time in many years. Soquel Creek enters the Pacific 
Ocean about 6.5 km south of the current ESU boundary at the ocean mouth 
of the San Lorenzo River. A total of approximately 170 juvenile fish 
were observed in the East Branch of Soquel Creek and some were 
photographed. These observations demonstrate that suitable spawning and 
rearing habitat occurs in Soquel Creek for coho salmon. A total of 28 
of these fish were captured for tissue sampling and subsequent genetic 
analysis.
    Genetic analyses of the juvenile coho salmon from Soquel Creek used 
18 microsatellite loci to genotype these fish and investigate the 
origins of their parents and the minimum number of reproductive events 
that contributed to the observed juveniles. Standard genetic stock 
identification techniques were used with a baseline reference database 
that included representative stocks from all regional California groups 
of coho salmon. The Soquel Creek fish were compared to a coho salmon 
reference population located south of San Francisco (Scott Creek) and 
it was determined, with very high confidence, that they were closely 
related. This comparison demonstrated that: (1) The juvenile fish 
observed in Soquel Creek were the progeny of locally produced adults 
returning to reproduce in nearby streams; and (2) they are native to 
streams draining the Santa Cruz Mountains south of the entrance to San 
Francisco Bay.
    Genetic analysis of tissue samples from these juveniles (Garza et 
al., unpublished as cited in Spence et al., 2011) also revealed that 
they were produced by a minimum of two reproductive events in Soquel 
Creek rather than by a single pair of fish randomly straying into the 
watershed. The analysis only determined the minimum number of spawning 
parents so it is possible that additional reproductive events occurred 
in Soquel Creek in 2008. This information strongly supports our 
conclusion that coho salmon in this stream should be considered part of 
the CCC coho salmon ESU.
    In reviewing the ecological conditions of streams south of San 
Francisco Bay that originate from the Santa Cruz Mountains, the BRT 
noted that a significant ecological transition occurs immediately south 
of the Santa Cruz Mountains, with the northern edge of the Salinas 
Valley marking the boundary between an area with cool, wet redwood 
forests to the north and an area with warm, drier chaparral landscapes 
to the south where small relic redwood forests are primarily confined 
to riparian areas near the coast. The Soquel and Aptos Creek watersheds 
occur within the Coast Range Ecoregion which runs nearly continuously 
from the Oregon border to the southern boundary of the Santa Cruz 
Mountains (the northern edge of the Pajaro River basin) and includes 
all the streams originating from the Santa Cruz Mountains south of San 
Francisco. Soquel and Aptos Creeks exhibit ecological, climatic, and 
habitat attributes similar to streams historically occupied by coho 
salmon elsewhere in

[[Page 6390]]

this Ecoregion indicating they are suitable for coho salmon.

Revised CCC Coho Salmon ESU

    To qualify for listing as a threatened or endangered species, 
identified populations of coho salmon must be considered a ``species'' 
under the ESA. The ESA defines ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.'' Our ESU policy describes how the agency applies the ESA 
definition of ``species'' to anadromous salmonid species. This policy 
provides that a salmonid population will be considered distinct, and 
hence a species under the ESA, if it represents an ESU of the 
biological species. A population must satisfy two criteria to be 
considered an ESU: (1) It must be reproductively isolated from other 
con-specific population units; and (2) it must represent an important 
component in the evolutionary legacy of the biological species. The 
first criterion, reproductive isolation, need not be absolute, but must 
be strong enough to permit evolutionarily important differences to 
accrue in different population units. The second criterion is met if 
the population contributes substantially to the ecological/genetic 
diversity of the species as a whole. Guidance on the application of 
this policy is contained in Waples (1991). The genetic, ecological, and 
life history characteristics that we assessed to identify the number 
and geographic extent of coho salmon ESUs in accordance with this 
policy, including the CCC coho salmon ESU, are discussed in detail in 
Weitkamp et al. (1995) and in the July 25, 1995, proposed listing 
determination for three coho salmon ESUs (60 FR 38011). Additional 
information is presented in the original threatened listing 
determination for the CCC coho ESU in 1996 (61 FR 56138).
    As described in the 2005 final listing determination that 
reclassified the CCC coho salmon ESU as endangered (70 FR 37160), the 
ESU consists of naturally and hatchery spawned populations of coho 
salmon in rivers and streams from Punta Gorda in southern Humboldt 
County, California, to the southern extent of the species' range which 
was identified as the San Lorenzo River in Santa Cruz County, 
California (inclusive). The ESU also includes populations from several 
San Francisco Bay tributaries. The four listed hatchery stocks are 
those propagated by the Don Clausen Fish Hatchery Captive Broodstock 
Program, Scott Creek/King Fisher Flats Conservation Program, the Scott 
Creek Captive Broodstock Program, and the Noyo River Fish Station egg-
take Program. The Noyo River program was discontinued after the 2005 
listing.
    The recent information compiled by the BRT clearly indicates that 
adult coho salmon entered Soquel Creek and successfully spawned during 
the 2007-2008 winter period. The juvenile progeny of those spawning 
adults were observed by a SWFSC scientist during the summer of 2008. 
The genetic information collected from these fish clearly indicate they 
are closely related to other coho salmon in the Santa Cruz Mountains 
Diversity Stratum and not the result of strays from outside the ESU or 
streams to the north of the entrance to San Francisco Bay. Since there 
had been no recent evidence of coho salmon presence in Soquel Creek 
prior to 2008, it is likely that the adult coho salmon which 
successfully spawned during the winter of 2007-2008 were strays from 
nearby watersheds within the Santa Cruz Mountains Diversity Stratum.
    Aptos Creek, like Soquel Creek, is part of Coast Range Ecoregion 
and is believed to have historically supported a coho salmon population 
(Anderson 1995). NMFS biologists familiar with the habitat requirements 
of coho salmon have determined that Aptos Creek has freshwater habitat 
suitable for successful spawning and rearing of coho salmon. Because 
Aptos Creek has suitable habitat for coho salmon and is in close 
proximity to Soquel Creek and other streams that support coho salmon, 
the BRT recommends that any coho found in Aptos Creek be considered 
part of the ESU. Although there is no current information indicating 
coho salmon occur in Aptos Creek, this may be the result of limited 
survey efforts in the watershed.
    While the BRT believes that Pajaro River tributaries draining the 
Santa Cruz Mountains (e.g., Corralitos Creek and perhaps others) may 
have also supported coho salmon in the past, the lack of historical or 
recent evidence of naturally occurring coho salmon in this watershed 
makes inclusion of these streams within the ESU more difficult to 
justify. The BRT concludes, however, that any coho salmon found 
spawning in Santa Cruz Mountain streams south of Aptos Creek should be 
considered part of this ESU unless they are non-native stock transfers.

Status of CCC Coho Salmon ESU

    Status reviews by Weitkamp et al. (1995) and Good et al. (2005) 
both concluded that the CCC coho salmon ESU was in danger of 
extinction. We listed the CCC coho salmon ESU as threatened in 1996 (61 
FR 56138) and reclassified its status as endangered in 2005 (71 FR 
834). Both status reviews cited concerns over low abundance and long-
term downward trends in abundance throughout the ESU, as well as 
extirpation or near extirpation of populations across most of the 
southern two-thirds of the ESU's historical range including several 
major river basins. They further cited as risk factors the potential 
loss of genetic diversity associated with range reductions or loss of 
one or more brood lineages, coupled with the historical influence of 
hatchery fish (Good et al., 2005).
    As part of a 5-year status review update, the SWFSC has updated the 
biological status of the coho salmon populations in this ESU (Spence 
and Williams, 2011). This review concluded that despite the lack of 
long-term data on coho salmon abundance, available evidence from recent 
shorter-term research and monitoring efforts demonstrates that the 
status of coho populations in this ESU have worsened since the Good et 
al. (2005) review. For all available time series, recent population 
trends have been downward, in many cases significantly so, with 
particularly poor adult returns from 2006 to 2010. Based on population 
viability criteria developed to support recovery planning efforts for 
this ESU (Bjorkstedt et al., 2005; Spence et al., 2008), all of the 
independent populations are well below low-risk abundance targets 
(e.g., Ten Mile River, Noyo River, Albion River), and several are, if 
not extinct, below high-risk depensation thresholds (e.g., San Lorenzo 
River, Pescadero Creek, Russian River, Gualala River). Though 
population-level estimates of abundance for most independent 
populations are lacking, it does not appear that any of the five 
diversity strata identified by Bjorkstedt et al. (2005) currently 
support a single viable coho salmon population based on viability 
criteria that have been established by Spence et al. (2008). Based on a 
consideration of the updated biological status information for this 
ESU, including the status of the newly discovered coho salmon 
population in Soquel Creek, we conclude that the CCC coho salmon ESU 
continues to be in danger of extinction.

Summary of Factors Affecting the Revised CCC Coho Salmon ESU Including 
Soquel and Aptos Creeks

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat and Range

    Our review of factors affecting the CCC coho salmon ESU concluded 
that

[[Page 6391]]

logging, agriculture and mining activities, urbanization, stream 
channelization, dams, wetland loss, and water withdrawals and 
unscreened diversions have contributed to the decline of the CCC coho 
salmon ESU. Land-use activities associated with logging, road 
construction, urban development, mining, agriculture, and recreation 
have significantly altered coho salmon habitat quantity and quality (61 
FR 56138; 31 October 1996 and 70 FR 37160; 28 June 2005). Impacts of 
these activities include alteration of streambank and channel 
morphology, alteration of ambient stream water temperatures, 
elimination of spawning and rearing habitat, fragmentation of available 
habitats, elimination of downstream recruitment of spawning gravels and 
large woody debris, removal of riparian vegetation resulting in 
increased stream bank erosion, and degradation of water quality (61 FR 
56138; 31 October 1996 and 70 FR 37160; 28 June 2005).
    Land-use and extraction activities leading to habitat modification 
can have significant direct and indirect impacts to coho salmon 
populations. Land-use activities associated with residential and 
commercial development, road construction, use and maintenance, 
recreation, and logging have significantly altered coho salmon 
freshwater habitat quantity and quality throughout this ESU as well as 
in the Aptos and Soquel watersheds. Associated impacts of these 
activities include; alteration of streambank and channel morphology; 
alteration of ambient stream water temperatures; degradation of water 
quality; elimination of spawning and rearing habitats; elimination of 
recruitment of large woody debris; removal of instream large woody 
debris which forms pool habitats and overwintering refugia; removal of 
riparian vegetation resulting in increased bank erosion; loss of 
floodplain habitats and associated refugia; and increased sedimentation 
input into spawning and rearing areas resulting in the loss of channel 
complexity, pool habitat, suitable gravel substrate, and large woody 
debris.
    The loss and degradation of habitats and flow conditions were 
identified as a threat to coho salmon in Soquel and Aptos Creeks in the 
draft recovery plan for this ESU (NMFS, 2010). Although many 
historically harmful practices have been halted, particularly removal 
of large woody debris by Santa Cruz County, much of the historical 
damage to habitats limiting coho salmon in these watersheds remains to 
be addressed. Habitat restoration activities and threat abatement 
actions will likely require more focused effort and time to stabilize 
and improve habitat conditions in order to improve the survival of coho 
salmon in these watersheds. Additionally, in some watersheds, land-use 
practices such as quarrying and road maintenance practices continue to 
pose risks to the survival of local coho salmon populations.

B. Overutilization for Commercial, Recreational, Scientific, or 
Education Purposes

    Previous reviews (61 FR 56138; 31 October 96 and 70 FR 37160; 28 
June 2005) concluded that ocean and recreational fisheries had 
adversely impacted coho salmon populations throughout its range on the 
west coast and contributed to their decline. Commercial and 
recreational fisheries have been closed since the mid 1990s for coho 
salmon in California; however, the coho salmon is this ESU as well as 
Soquel Creek can still be impacted from fisheries as a result of 
incidental bycatch. In recent years, ocean fisheries for salmon have 
been severely constrained; however, incidental bycatch on coho salmon 
is poorly understood and could potentially be significant for this ESU 
in watersheds where populations are in low abundance. Recreational 
fishing for steelhead is still allowed in some portions of this ESU, 
including Soquel and Aptos Creeks, and therefore, coho salmon, when 
present, may be unintentionally caught by steelhead anglers. The risk 
of unintentional capture is believed to be higher in these watersheds 
than in many other coastal streams because of current fishing 
regulations that allow catch and release for steelhead based on a 
calendar dates regardless of river flow. Fishing during low flow 
periods may expose coho salmon adults to increased rates of incidental 
capture and injury.
    At the time the CCC coho salmon ESU was listed in 1996, collection 
for scientific research and educational programs were believed to have 
little or no impact on California coho salmon populations. In 
California, most of the scientific collection permits are issued by DFG 
and NMFS to environmental consultants, Federal resource agencies, and 
educational institutions. Regulation of take is controlled by imposing 
conditions on individual permits (61 FR 56138). Given the extremely low 
population levels throughout the ESU, but especially south of the 
entrance to San Francisco Bay, any collections can have significant 
impacts on local populations and need to be monitored. In Soquel and 
Aptos Creeks, two researchers are currently sampling juvenile salmonid 
populations using electrofishing as part of their methodology. Only one 
researcher is authorized to capture coho salmon and the other must stop 
collections if juvenile coho salmon are detected.

C. Disease or Predation

    Relative to the effects of fishing, habitat degradation, and 
hatchery practices, disease and predation are not believed to have been 
major factors contributing to the decline of West Coast coho salmon 
populations or this ESU. However, disease and predation may have 
substantial adverse impacts in localized areas. Specific diseases known 
to be present in and affect salmonids are listed in 69 FR 33102 (14 
June 2004). No current or historical information exists to quantify 
changes in infection levels and mortality rates attributable to these 
diseases for coho salmon, including coho salmon populations in Soquel 
and Aptos Creeks.
    Habitat conditions such as low water flows and high water 
temperatures can exacerbate susceptibility to infectious diseases (69 
FR 33102; 14 June 2004). The large quantity of water diverted from 
Soquel Creek which results in decrease summer flows may increase the 
susceptibility of rearing coho salmon to disease and predation. Avian 
predators have been shown to impact some juvenile salmonids in 
freshwater and near shore environments. In nearby Scott Creek, a SWFSC 
scientist (Hayes, pers. comm.) has documented substantial predation 
impacts on outmigrating smolts based on the discovery of pit tags in 
gull nesting areas. Predation may significantly influence salmonid 
abundance in some local populations when other prey are absent and 
physical conditions lead to the concentration of adults and juveniles 
(Cooper and Johnson, 1992). Low flow conditions in these watersheds may 
enhance predation opportunities, particularly in streams where adult 
coho may congregate at the mouth of streams waiting for high flows for 
access (DFG, 1995). These type of conditions could lead to significant 
predation in Soquel Creek because of the low abundance of coho salmon. 
Marine predation is a concern in some areas (i.e., seal and sea lions) 
given the dwindling abundance of coho salmon across the range of this 
ESU; however, it is generally considered by most investigators to be an 
insignificant contributor to the population declines that have been 
observed in Central California.

[[Page 6392]]

D. Inadequacy of Existing Regulatory Mechanisms

    At the time of listing, most Federal and non-Federal regulatory 
efforts were not found to adequately protect coho salmon in this ESU 
due to a variety of factors. Detailed information on these regulatory 
mechanisms and protective efforts is provided in NMFS' Draft Proposed 
Recovery Plan for CCC Coho Salmon (NMFS, 2010) and in the 1996 (61 FR 
56138) and 2005 (70 FR 37160) final listing determinations. Since the 
listing, these Federal and non-Federal regulatory efforts have not been 
significantly improved or implemented differently to reduce threats to 
this species. A variety of State and Federal regulatory mechanisms 
exist to protect coho salmon habitat and address the factors causing 
the decline of this ESU, but they have not been adequately implemented 
(61 FR 56138; NMFS, 2010).
    In Soquel and Aptos Creeks, the only significant program change has 
been the curtailed funding and implementation of the Santa Cruz 
County's large instream wood removal program in 2009. Curtailment of 
this program is anticipated to result in eventual improvement to coho 
salmon summer and winter rearing habitats during the freshwater 
lifestage. Other regulatory efforts, including lack of oversight and 
enforcement of State water law pertaining to permitted and unpermitted 
diversions are a significant concern in Soquel and Aptos Creeks.

E. Other Natural or Human-Made Factors Affecting Continued Existence

    Long-term trends in rainfall and marine productivity associated 
with atmospheric conditions in the North Pacific Ocean have a major 
influence on coho salmon production. Natural climatic conditions may 
have exacerbated or mitigated the problems associated with degraded and 
altered riverine and estuarine habitats (69 FR 33102). Detailed 
discussions on these factors can be found the 1996 and 2005 listing 
determinations (61 FR 56138 and 70 FR 37160). No significant changes to 
this factor have occurred since listing and the threats remain for the 
ESU and Soquel and Aptos Creeks.
    The best available scientific information indicates that the 
Earth's climate is warming, driven by the accumulation of greenhouse 
gasses in the atmosphere (Oreskes, 2004; Battin, et al., 2007; Lindley 
et al., 2007). Because coho salmon depend upon freshwater streams and 
the ocean during all stages of their life history cycle, the 
populations in this ESU are likely to be significantly impacted by 
climate change in the decades ahead, including populations in Soquel 
and Aptos Creeks.

Protective Efforts

    At the time of its reclassification in 2005, existing protective 
efforts for this ESU were not considered sufficiently certain in terms 
of their implementation or effectiveness to ameliorate its extinction 
risk (70 FR 37160; 28 June 2005). Extinction risk of this ESU has 
increased since 2005 (Spence, 2011) and we continue to believe that 
there are insufficient protective efforts for ESU as a whole to 
ameliorate its extinction risk.

Proposed Determination

    Based on a careful consideration of all available information, 
including new information on the presence of coho salmon in Soquel 
Creek and the similarilty of habitat in Aptos Creek we propose to 
extend the southern boundary of the CCC coho salmon ESU southward to 
include Soquel and Aptos Creeks in Santa Cruz County, California. Based 
on an updated assessment of coho salmon populations throughout the 
range of the ESU, including the newly discovered population in Soquel 
Creek, and a consideration of the factors affecting this species 
throughout the range of the ESU, we propose to list the redefined ESU 
as endangered.

Section 9 Take Prohibitions

    The CCC coho salmon ESU is listed as an endangered species. Section 
9 of the ESA prohibits certain activities that directly or indirectly 
affect endangered species. These section 9(a) prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
If this proposed rule is finalized and the southern boundary of the ESU 
is moved southward to include populations of coho salmon in Soquel and 
Aptos Creeks, then the section 9 take prohibitions will apply to all 
naturally produced coho salmon in these watersheds. Depending on their 
activities, some individuals, organizations and agencies in Soquel and 
Aptos Creeks may be subject to these take prohibitions if this proposed 
rule is finalized.

Other Protections

    Section 7(a)(2) of the ESA and the NMFS-U.S. Fish and Wildlife 
Service (USFWS) joint implementing regulations require Federal agencies 
to confer with us on actions likely to jeopardize the continued 
existence of species proposed for listing or to result in the 
destruction or adverse modification of proposed critical habitat. If a 
proposed species is ultimately listed, Federal agencies must consult on 
any action they authorize, fund, or carry out if those actions may 
affect the listed species or critical habitat. Federal agencies 
carrying out such actions in Soquel and Aptos Creeks may be subject to 
these requirements.

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, 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.
    On July 1, 1994, the NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. To satisfy our obligations under the OMB Bulletin, we 
obtained independent peer review of the BRT report (Spence et al., 
2011) which supports this 12-month finding and proposed rule to extend 
the southern boundary of the CCC coho salmon ESU. Both peer reviewers 
strongly supported the BRT's findings, analyses, and conclusions. Minor 
technical and other comments from the peer reviewers will be addressed 
prior to dissemination of the final BRT report.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA as: ``(i) the 
specific areas within the geographic area occupied by the species, at 
the time it is listed in accordance with the provisions of section 4 of 
this Act, on which are found those physical and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed in accordance with the provisions of section 4 of this 
Act, upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 U.S.C. 1532(5)(A)). 
Conservation means the use of all methods and procedures needed

[[Page 6393]]

to bring the species to the point at which listing under the ESA is no 
longer necessary. Section 4(a)(3)(A) of the ESA requires that, to the 
maximum extent prudent and determinable, critical habitat be designated 
concurrently with the listing of a species. If critical habitat is not 
then determinable, however, section 4(b)(6)(C)(ii) allows for a one-
year extension. Section 4(b)(2) requires that designation of critical 
habitat be based on the best scientific data available, after taking 
into consideration the economic, national security, and other relevant 
impacts of specifying any particular area as critical habitat.
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure that they do not fund, authorize, or carry 
out any actions that are likely to destroy or adversely modify that 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure that their actions do not jeopardize the 
continued existence of the listed species.
    Critical habitat was designated for the CCC coho salmon ESU in 1999 
(64 FR 24049) and includes all accessible reaches of rivers between 
Punta Gorda and the San Lorenzo River, which is the current southern 
boundary of the ESU. Within this area, the critical habitat includes 
all waterways, substrate and adjacent riparian habitat below 
longstanding, natural impassable barriers and some specific dams. 
Critical habitat is not presently being proposed for designation in the 
Soquel and Aptos Creek watersheds as it is not now determinable. We are 
seeking public input and information to assist in gathering and 
analyzing the best available scientific data to support the possible 
designation of critical habitat in Soquel and Aptos Creeks. After 
considering all the available information, we may initiate rulemaking 
by publishing a proposed rule in the Federal Register to designate 
critical habitat in these watersheds. Any proposed rule will provide an 
opportunity for public comments and a public hearing, if requested.

Public Comments Solicited

    To ensure that the proposed range extension of the CCC coho salmon 
ESU is based on the best available information and will be as accurate 
as possible, we solicit comments and suggestions from the public, other 
governmental agencies, the scientific community, industry, 
environmental groups, and any other interested party (See Dates and 
Addresses for submitting comments). Specifically, we are interested in 
the following information for Soquel and Aptos Creeks: (1) Historical 
and any recent information, including photographs, regarding the 
presence and run size of coho salmon in these streams; (2) information 
on the current suitability of habitat in these streams to support coho 
salmon spawning, rearing and migration, as well as threats to these 
habitat features; (3) biological or other relevant information 
concerning any current or planned activities that may threaten coho 
salmon or its habitat in these streams; (4) efforts being made to 
protect coho salmon in these streams; and (5) potential economic costs 
or other impacts of designating critical habitat in these streams.

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. 2nd 829 (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 may not be considered when assessing the status 
of a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the ESA 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.

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). In keeping with the 
intent of the Administration and Congress to provide continuing and 
meaningful dialogue on issues of mutual State and Federal interest, 
this proposed rule will be given to the State of California and the 
relevant State agencies for their review and comment. We have consulted 
with the State of California through CDFG regarding the issue of coho 
salmon populations south of San Francisco Bay and considered their 
comments. CDFG also commented on the 90-day finding for the petition in 
question and we have considered their comments in reviewing the 
petition and this proposed rule. As we proceed with this rulemaking, we 
intend to continue engagement with the State and relevant agencies, as 
well as local government entities, to ensure we provide them ample 
opportunity to comment on the proposal and fully consider their 
comments.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: January 31, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority:  12 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. Revise the entry for ``Central California Coast coho,'' in Sec.  
224.101(a) to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) * * *

[[Page 6394]]



----------------------------------------------------------------------------------------------------------------
                    Species \1\                                              Citation(s) for    Citation(s) for
---------------------------------------------------      Where listed            listing        critical habitat
          Common name             Scientific name                             determinations      designations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Central California Coast coho..  Oncorhynchus       U.S.A., CA, including    [INSERT FR        [INSERT FR
                                  kitsutch.          all naturally           CITATION & DATE    CITATION & DATE
                                                     spawning populations    WHEN PUBLISHED     WHEN PUBLISHED
                                                     of coho salmon from     AS A FINAL RULE].  AS A FINAL
                                                     Punta Gorda in                             RULE].
                                                     northern California
                                                     South to and
                                                     including Aptos Creek
                                                     in central
                                                     California, as well
                                                     as populations in
                                                     tributaries to San
                                                     Francisco Bay,
                                                     excluding the
                                                     Sacramento-San
                                                     Joaquin River system,
                                                     as well as three
                                                     artificial
                                                     propagation programs:
                                                     the Don Clausen Fish
                                                     Hatchery Captive
                                                     Broodstock Program,
                                                     Scott Creek/King
                                                     Fisher Flats
                                                     Conservation Program,
                                                     and the Scott Creek
                                                     Captive Broodstock
                                                     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. 2011-2537 Filed 2-3-11; 8:45 am]
BILLING CODE 3510-22-P