[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Rules and Regulations]
[Pages 40004-40016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16255]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 130716626-4522-02]
RIN 0648-BD51
Endangered and Threatened Species: Designation of a Nonessential
Experimental Population of Upper Columbia River Spring-run Chinook
Salmon in the Okanogan River Subbasin, Washington, and Protective
Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule and notice of availability of a final environmental
assessment.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), designate
and authorize the release of a nonessential experimental population of
Upper Columbia River (UCR) spring-run Chinook salmon (Oncorhynchus
tshawytscha) under section 10(j) of the Endangered Species Act (ESA) in
the Okanogan River subbasin, and establish a limited set of take
prohibitions for the nonessential experimental population under section
4(d) of the ESA. Successful reintroduction of a population within the
species' historic range would contribute to its viability and further
its conservation. The issuance of limited protective regulations will
provide for the conservation of the species while providing assurances
to people in the Okanogan River subbasin. The geographic boundary for
the NEP is the main stem and all tributaries of the Okanogan River
between the Canada-United States border and to the confluence of the
Okanogan River with the Columbia River, Washington (hereafter
``Okanogan River NEP Area''). We have prepared a Final Environmental
Assessment (EA) and Finding of No Significant Impact (FONSI) on the
proposed action under
[[Page 40005]]
the National Environmental Policy Act (NEPA) (see ADDRESSES: section
below).
DATES: The final rule is effective August 11, 2014.
ADDRESSES: The Final Environmental Assessment and other reference
materials regarding this final rule can be obtained via the Internet at
http://www.westcoast.fisheries.noaa.gov or by submitting a request to
the Branch Chief, Protected Resources Division, West Coast Region,
NMFS, 1201 NE Lloyd Blvd., Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Scott Rumsey, NMFS, 1201 NE Lloyd
Blvd., Portland, OR 97232 (503-872-2791) or Dwayne Meadows, NMFS, 1315
East-West Highway, Silver Spring, MD 20910 (301-427-8403).
SUPPLEMENTARY INFORMATION:
Background
The UCR spring-run Chinook Salmon evolutionarily significant unit
(ESU) is listed as an endangered species under the ESA (16 USC 1531 et
seq.). We first designated the UCR spring-run Chinook Salmon ESU as
endangered on March 24, 1999 (64 FR 14308), reaffirmed this status on
June 28, 2005 (70 FR 37160), and maintained its endangered status after
the ESU's 5-year review (76 FR 50448, August 15, 2011). Section 9 of
the ESA prohibits the ``take'' of UCR spring-run Chinook salmon unless
otherwise authorized.
The listed ESU currently includes all naturally spawned populations
of spring-run Chinook salmon in accessible reaches of Columbia River
tributaries between Rock Island and Chief Joseph Dams, excluding the
Okanogan River. The Okanogan River is a major tributary of the upper
Columbia River, entering the Columbia River between Wells and Chief
Joseph Dams. The majority of the Okanogan River subbasin is in Canada
(74 percent) with the remainder in Washington State (26 percent).
Listed UCR spring-run Chinook salmon from this ESU currently spawn in
three river subbasins in eastern Washington: the Methow, Entiat, and
Wenatchee. A fourth population historically inhabited the Okanogan
River subbasin, but was extirpated in the 1930s because of overfishing,
hydropower development, and habitat degradation (NMFS, 2007). The
listed UCR Spring-run Chinook Salmon ESU also includes six artificial
propagation programs: the Twisp River, Chewuch River, Methow Composite,
Winthrop National Fish Hatchery, Chiwawa River, and White River spring
Chinook salmon hatchery programs.
On November 22, 2010, we received a letter from the Confederated
Tribes of the Colville Reservation (CTCR)), a federally recognized
Native American tribe, requesting that we authorize the release of an
experimental population of spring-run Chinook salmon in the Okanogan
River subbasin under section 10(j) of the ESA. The CTCR also initiated
discussions on this topic with the United States Fish and Wildlife
Service (USFWS), the Bonneville Power Administration, the Army Corps of
Engineers, the Bureau of Reclamation, the Washington Department of Fish
and Wildlife, and the Okanagan Nations Alliance of Canada. The CTCR's
request included a large amount of information on the biology of UCR
spring-run Chinook salmon, the possible management implications of
releasing an experimental population in the Okanogan River subbasin,
and the expected benefits to the recovery of the listed UCR Spring-run
Chinook Salmon ESU. On October 24, 2013 we published a proposed rule to
designate a nonessential experimental population of spring-run Chinook
salmon in the Okanogan River subbasin (78 FR 63439).
Under section 10(j) of the ESA, the Secretary of Commerce
(Secretary) may authorize the release of an ``experimental'' population
of a listed species outside its current range when the release of the
experimental population will further the conservation of the listed
species. The population is experimental under section 10(j) at times
when it is wholly separate geographically from nonexperimental
populations. In order to authorize the release of an experimental
population, section 10(j) also requires that the Secretary determine,
using the best available information, whether the experimental
population is ``essential'' or ``nonessential'' to the continued
existence of the listed species. Section 10(j) allows that an
experimental population deemed ``nonessential'' is treated as a species
proposed for listing during interagency consultations under section 7
of the Act, requiring federal agencies to confer (rather than consult)
with NMFS on actions that are likely to adversely affect the
experimental population (except when the population occurs in an area
within the National Wildlife Refuge System or the National Park System,
where the ESA requires the population be treated as a threatened
species). With respect to the ESA's take prohibitions, section 10(j)
treats experimental populations as threatened species, authorizing NMFS
to issue regulations governing the application of the ESA's prohibition
against take of listed species.
This action involves the designation of a NEP of UCR spring-run
Chinook salmon in the Okanogan River subbasin. The release of this NEP
of UCR spring-run Chinook salmon in the Okanogan River NEP Area would
further the conservation of UCR spring-run Chinook salmon by
potentially establishing a fourth population in the species' historic
range, contributing to the viability of the ESU. Fish used for the
reintroduction would come from the Methow Composite hatchery program
located at Winthrop National Fish Hatchery. The Methow River population
of these fish is included in the UCR Spring-run Chinook Salmon ESU and
has the best chance to survive and adapt to conditions in the Okanogan
River subbasin because they most closely resemble the genetic and life-
history characteristics of the UCR spring-run Chinook salmon population
that historically inhabited the Okanogan River subbasin (Jones et al.,
2011). Fish from the NEP are expected to remain geographically separate
from the UCR Spring-run Chinook Salmon ESU during the life stages in
which they remain in, or return to, the Okanogan River; the
experimental designation will not apply at any time when members of the
NEP are downstream of the confluence of the Okanogan River with the
Columbia River. This experimental population release is being
implemented as recommended in the Upper Columbia Spring Chinook Salmon
and Steelhead Recovery Plan (NMFS, 2007), while at the same time
ensuring that the reintroduction does not impose undue regulatory
restrictions on landowners and third parties.
The geographic boundary defining the Okanogan River NEP Area for
UCR spring-run Chinook salmon is the mainstem and all tributaries of
the Okanogan River between the Canada-United States border to the
confluence of the Okanogan River with the Columbia River. All UCR
spring-run Chinook salmon in this defined Okanogan River NEP Area are
considered part of the NEP, irrespective of their origin. Conversely,
when UCR spring-run Chinook salmon are located outside this defined
Okanogan River NEP Area, they are not considered part of the NEP.
In this action, we are designating an experimental population that
is geographically separate from the nonexperimental ESA-listed UCR
population, as spring-run Chinook salmon are currently extirpated in
the Okanogan River subbasin. This designation is expected to reduce the
species' overall extinction risk from natural and anthropogenic factors
by increasing its abundance, productivity, spatial structure, and
diversity within
[[Page 40006]]
the Upper Columbia River. These expected improvements in the overall
viability of UCR spring-run Chinook salmon, in addition to other
actions being implemented throughout the Columbia River migration
corridor, will contribute to the species near-term viability and
recovery, either minimally if an Okanogan population does not establish
itself, or significantly if it does. The NEP will be geographically
separated from the larger ESU of UCR spring-run Chinook salmon while in
the Okanogan River subbasin, but will intermingle with other Chinook
salmon populations as they travel downstream of the NEP area, while in
the ocean, and on part of their upstream spawning migration. The
``experimental'' population designation is geographically based and
does not travel with the fish outside the Okanogan River NEP Area.
This final rule establishes legal authority under section 10(j) of
the ESA for an experimental population of UCR spring-run Chinook salmon
in the Okanogan River basin. The rule also provides protective
regulations under section 4(d) deemed necessary and advisable to
conserve the experimental population. We, in close coordination with
tribal, state and federal comanagers, are committed to completing
review of the Hatchery Genetic Management Plans associated with the
broodstock-collection, fish-transfer, and fish-release activities
required to support this reintroduction effort.
To assist in the development of the Upper Columbia Spring Chinook
Salmon and Steelhead Recovery Plan (hereinafter called the recovery
plan), we assembled the Interior Columbia Technical Recovery Team
(ICTRT) to identify population structure and recovery goals. The
recovery plan subsequently adopted the ICTRT recovery goals as
delisting criteria for the UCR spring-run Chinook Salmon ESU.
The ICTRT recommended specific abundance and productivity goals for
each population in the UCR Spring-run Chinook Salmon ESU. The team also
identified the current risk level of each population based on the gap
between recent abundance and productivity and the desired recovery
goals. The ICTRT (2008) considered all three extant natural populations
(Methow, Entiat, and Wenatchee) to be at high risk of extinction based
on their current abundance and productivity levels. The ICTRT also
recommended spatial structure and diversity metrics for these
populations (ICTRT, 2007). Spatial structure refers to the geographic
distribution of a population and the processes that affect the
distribution. Populations with restricted distribution and few spawning
areas are at a higher risk of extinction from catastrophic
environmental events (e.g., a single landslide) than are populations
with more widespread and complex spatial structure. A population with
complex spatial structure typically has multiple spawning areas
containing the expression of diverse life-history characteristics.
Diversity is the phenotypic (morphology, behavior, and life-history
traits) and genotypic (DNA) characteristics within and between
populations. Phenotypic diversity allows more diverse populations to
use a wider array of environments and protects populations against
short-term temporal and spatial environmental changes. Genotypic
diversity, on the other hand, provides populations with the ability to
survive long-term changes in the environment by providing genetic
variations that may prove successful under different situations. It is
the combination of phenotypic and genotypic diversity expressed in a
natural setting that provides populations with the ability to utilize
the full range of habitat and environmental conditions and to have the
resiliency to survive and adapt to long-term changes in the
environment. The mixing of hatchery fish (or excessive numbers of out-
of-basin stocks) with naturally produced fish on spawning grounds can
decrease genetic diversity within a population (NMFS, 2007). The ICTRT
(2008) also determined that all three extant populations of this ESU
are at high risk of extinction based on their current lack of spatial
structure and diversity.
The recovery plan identifies re-establishment of a population in
the Okanogan River subbasin as a recovery action (NMFS, 2007). More
specifically, the recovery plan explains that re-establishment of a
spring-run Chinook salmon population in the Okanogan River subbasin
would aid recovery of this ESU by increasing abundance, productivity,
spatial structure, and diversity, thereby reducing the risk of
extinction to the ESU as a whole. The recovery plan establishes a
framework for accomplishing restoration goals for the Okanogan River
subbasin including restoring connectivity throughout their historic
range where feasible and practical. Short- and long-term actions will
protect riparian habitat along spawning and rearing streams and
establish, restore, and protect stream flows suitable for spawning,
rearing, and migration. In addition, water quality will be protected
and restored where feasible and practical. In the mainstem Columbia
River, implementation of the Federal Columbia River Power System
(FCRPS) ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010)
provides a number of new actions and continuation of existing programs
that will likely continue to increase passage survival through the
Columbia River mainstem passage corridor.
Statutory and Regulatory Framework
The ESA provides that species listed as endangered or threatened
are afforded protection primarily through the prohibitions of section 9
(16 U.S.C. 1538) and the consultation requirements of section 7 (16
U.S.C. 1536). Section 9 of the ESA prohibits the take of an endangered
species. The term ``take'' is defined by the ESA as ``to harass, harm,
pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to
engage in any such conduct'' (16 U.S.C. 1532(19)). Section 7 of the ESA
provides procedures for federal interagency cooperation and
consultation to conserve federally listed species, ensure their
survival, help in recovery of these species, and protect designated
critical habitat necessary for the survival of the listed species. It
also mandates that all federal agencies determine how to use their
existing authorities to further the purposes of the ESA to aid in
recovering listed species. In addition, ESA section 7 requires that
federal agencies will, in consultation with NMFS, ensure that any
action they authorize, fund, or carry out is not likely to jeopardize
the continued existence of a listed species, or result in the
destruction or adverse modification of designated critical habitat.
Section 7 of the ESA does not apply to activities undertaken on private
land unless they are authorized, funded, or carried out by a federal
agency.
As noted above, for the purposes of section 7 of the ESA, section
10(j) requires that we treat NEPs as a species proposed to be listed,
unless they are located within a National Wildlife Refuge or National
Park, in which case they are treated as threatened, and section 7
consultation requirements apply. When NEPs are located outside a
National Wildlife Refuge or National Park, only two provisions of
section 7 apply--section 7(a)(1) and section 7(a)(4). In these
instances, NEP designations provide additional flexibility in
developing conservation and management measures by allowing us to work
with the action agency early to develop conservation measures, instead
of analyzing an already well-developed proposed action provided by
[[Page 40007]]
the agency under the framework of a section 7(a)(2) consultation.
Additionally, for populations of listed species that are designated as
nonessential, section 7(a)(4) of the ESA only requires that federal
agencies confer (rather than consult) with us on actions that are
likely to jeopardize the continued existence of a species proposed to
be listed. These conferences are advisory in nature, and their findings
do not restrict agencies from carrying out, funding, or authorizing
activities.
For endangered species, section 9 of the ESA automatically
prohibits take. For threatened species, the ESA does not automatically
extend the Section 9 take prohibitions, but instead authorizes the
agency to adopt regulations it deems necessary and advisable for
species conservation, including prohibiting take under section 4(d).
Where we designate an experimental population of an endangered species,
the automatic take prohibition no longer applies; however, because the
experimental population is treated as a separate threatened species, we
can issue protective 4(d) regulations for that population as we deem
necessary and advisable for the conservation of the population. Such
regulations may include take prohibitions.
The USFWS has regulations for experimental population designation,
50 CFR 17.80 through 17.84, that provide definitions, considerations in
finding that the designation would further the conservation of the
species and information to be included in the designation. These
regulations state that, in making the determination that the
designation would further the conservation of the species, the
Secretary must consider the effect of taking the eggs or young from
another population, the likelihood that the experimental population
will become established, the effect the designation would have on the
species' overall recovery, and the extent to which the experimental
population would be affected by activities in the area. Under the USFWS
regulations, a regulation designating the experimental population must
include: A clear means to identify the experimental population; a
finding based on the best available science indicating whether the
population is essential to the continued existence of the species;
management restrictions, protective measures, or other management
concerns; and a periodic review of the success of the release and its
effect on the conservation and recovery of the species. The USFWS
regulations also state that any experimental population shall be
treated as threatened for purposes of establishing protective
regulations under ESA section 4(d), and the protective regulations for
the experimental population will contain applicable prohibitions and
exceptions for that population.
The USFWS implementing regulations contain the following specific
provisions:
The USFWS regulations define an essential experimental population
as one ``whose loss would be likely to appreciably reduce the
likelihood of the survival of the species in the wild'' (50 CFR
17.80(b)). All other experimental populations are classified as
nonessential (50 CFR 17.81(f)). This definition was directly derived
from the legislative history to the ESA amendments that created section
10(j).
In determining whether the experimental population will further the
conservation of the species, the USFWS regulations require the agency
to consider: (1) Any possible adverse effects on extant populations of
a species as a result of removal of individuals, eggs, or propagules
for introduction elsewhere, (2) the likelihood that any such
experimental population will become established and survive in the
foreseeable future, (3) the relative effects that establishment of an
experimental population will have on the recovery of the species, and
(4) the extent to which the introduced population may be affected by
existing or anticipated federal or state actions or private activities
within or adjacent to the experimental population area (50 CFR
17.81(b)).
USFWS regulations at 50 CFR 17.81(c) also describe four components
that will be provided in any regulations promulgated with regard to an
experimental population under section 10(j). The components are: (1)
Appropriate means to identify the experimental population, including,
but not limited to, its actual or proposed location, actual or
anticipated migration, number of specimens released or to be released,
and other criteria appropriate to identify the experimental
population(s), (2) a finding of whether the experimental population is,
or is not, essential to the continued existence of the species in the
wild, (3) management restrictions, protective measures, or other
special management concerns of that population, which may include but
are not limited to, measures to isolate and/or contain the experimental
population designated in the regulation from natural populations, and
(4) a process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species.
We have not promulgated regulations implementing section 10(j) of
the ESA, and have authorized only two experimental populations to date
(78 FR 2893, January 15, 2013; 78 FR 79622, December 31, 2013). The
USFWS has authorized many experimental populations. While USFWS'
regulations do not apply to NMFS' 10(j) authorizations, they can help
inform our authorization process and we use them to do so. We
considered the factors identified in the USFWS regulations in the
course of making the statutorily mandated determinations found in ESA
section 10(j). To summarize, the statute requires that we determine:
(1) Whether the release will further the conservation of the species,
and (2) whether the population is essential or nonessential. In
addition, because section 10(j) provides that the population will only
be experimental when and at such times as it is wholly separate
geographically from nonexperimental populations of the same species, we
must establish that there are such times and places when the
experimental population is wholly geographically separate. Similarly,
the regulations require that we identify the experimental population;
the legislative history indicates that the purpose of this requirement
is to provide notice as to which populations of listed species are
experimental (See, Joint Explanatory Statement of the Committee of
Conference, H.R. Conf. Rep No. 97-835, at 15 (1982)).
Biological Information and Current Status
UCR spring-run Chinook salmon are anadromous fish that migrate as
adults from the ocean in the spring to spawn in freshwater streams
where their offspring hatch and rear prior to migrating back to the
ocean to forage until maturity. At spawning, adults pair to lay and
fertilize thousands of eggs in freshwater gravel nests or ``redds''
excavated by females. Depending on temperatures, eggs incubate for
several weeks to months before hatching as ``alevins'' (a larval life
stage dependent on food stored in a yolk sac). Following yolk sac
absorption, alevins emerge from the gravel as young juveniles called
``fry'' and begin actively feeding. UCR spring-run Chinook salmon
juveniles spend a year in freshwater areas before migrating to the
ocean. The physiological and behavioral changes required for the
transition to salt water result in a distinct ``smolt'' stage. On their
journey juveniles migrate downstream through a riverine and
[[Page 40008]]
estuarine corridor between their natal lake or stream and the ocean.
After two to three years in the ocean, adult UCR spring-run Chinook
salmon begin returning from the ocean in the early spring, with the run
into the Columbia River peaking in mid-May (NMFS, 2007). Spring-run
Chinook salmon enter the upper Columbia River tributaries from April
through July. After migration, they hold in these tributaries until
spawning occurs in the late summer, peaking in mid-to-late August.
On March 18, 2010, we announced the initiation of 5-year status
reviews for 16 ESUs of Pacific salmon including the UCR Spring-run
Chinook Salmon ESU (75 FR 13082). As part of this review, our Northwest
Fisheries Science Center compiled and issued a report on the newest
scientific information on the viability of this ESU. The report states,
``The Upper Columbia Spring-run Chinook salmon ESU is not
currently meeting the viability criteria (adapted from the ICTRT) in
the Upper Columbia Recovery Plan. Increases in natural origin
abundance relative to the extremely low spawning levels observed in
the mid[hyphen]1990s are encouraging; however, average productivity
levels remain extremely low. Large-scale directed supplementation
programs are underway in two of the three extant populations in the
ESU. These programs are intended to mitigate short[hyphen]term
demographic risks while actions to improve natural productivity and
capacity are implemented. While these programs may provide
short[hyphen]term demographic benefits, there are significant
uncertainties regarding the long[hyphen]term risks of relying on
high levels of hatchery influence to maintain natural populations
(Ford et al. 2011).''
All extant populations are still considered to be at high risk of
extinction based on the abundance/productivity and spatial structure/
diversity metrics. When the risk levels for these attributes are
integrated, the overall risk of extinction for this ESU is high (Ford
et al., 2011).
Analysis of the Statutory Requirements
1. Will authorizing release of a UCR spring-run Chinook salmon
experimental population in the Okanogan River subbasin further the
conservation of the species?
The ESA defines ``conservation'' as ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provide pursuant
to this [Act] are no longer necessary.'' The factors we considered in
determining if release of an experimental population in the Okanogan
River NEP Area would ``further the conservation'' of UCR spring-run
Chinook salmon included the potential impacts to the ESU posed by the
release, the likelihood that the experimental population would become
established and self-sustaining, and the extent to which a self-
sustaining experimental population would reduce the threats to the
ESU's viability. The USFWS regulations suggest considering whether the
experimental population would be affected by other state- or federally-
approved actions in the area. This last factor may not be subject to
precise evaluation, but, where possible, we took into account all
factors such as other approved actions that affect whether a population
could become established and self-sustaining.
The Upper Columbia Spring Chinook Salmon and Steelhead Recovery
Plan contains specific management strategies for recovering UCR spring-
run Chinook salmon that include securing existing populations and
reintroducing spring-run Chinook salmon into historically occupied
habitats in the Okanogan River subbasin. The plan concludes, and we
continue to agree, that establishing an experimental population of UCR
spring-run Chinook salmon in the Okanogan River subbasin is expected to
reduce the species' overall extinction risk from natural and
anthropogenic factors by increasing its abundance, productivity,
spatial structure, and diversity within the Upper Columbia River. These
expected improvements in the overall viability of UCR spring-run
Chinook salmon, in addition to other actions being implemented
throughout the Columbia River migration corridor, will contribute to
the species near-term viability and recovery.
To ensure the best chance for a successful reintroduction, we first
determined the most appropriate source of broodstock within the UCR
Spring-run Chinook Salmon ESU and the availability of that source.
Reintroduction efforts have the best chance for success when the donor
population has life history characteristics and genetic diversity
compatible with the anticipated environmental conditions of the habitat
into which fish will be reintroduced (Araki et al., 2008). Populations
found in watersheds closest to the reintroduction area are most likely
to have adaptive traits that will lead to a successful reintroduction,
and therefore only spring-run Chinook salmon populations found in the
Upper Columbia River subbasin were considered for establishing the
experimental population in the Okanogan River NEP Area.
The listed UCR Spring-run Chinook Salmon ESU includes six
artificial propagation programs: The Twisp River, Chewuch River, Methow
Composite, Winthrop National Fish Hatchery, Chiwawa River, and White
River. We evaluated the fish propagated by each of these programs for
their potential to support a re-introduced population in the Okanogan
River subbasin. We concluded that fish produced from the Methow
Composite stock of UCR spring-run Chinook salmon at Winthrop National
Fish Hatchery are likely the most similar to the extirpated Okanogan
spring-run Chinook salmon and represent the best initial source of
individuals to establish an experimental population of UCR spring-run
Chinook salmon in the Okanogan River. Because the Methow Composite
stock of UCR spring-run Chinook salmon are from the neighboring Methow
River subbasin and have evolved in an environment similar to that of
the Okanogan River subbasin, they are likely to be more genetically
similar to the extirpated Okanogan spring-run Chinook salmon population
than spring-run Chinook salmon populations from the more distant Entiat
and Wenatchee River subbasins. For the past several years, enough adult
salmon from the Methow Composite hatchery program have returned to the
Methow subbasin to provide enough excess eggs and sperm to begin
raising fish for reintroduction into the Okanogan River NEP Area.
We also considered the suitability of available habitat in the
Okanogan River subbasin to support the experimental population in the
foreseeable future. The Columbia basin as a whole is estimated to have
supported pre-development spring-run Chinook salmon returns as large as
588,000 fish (Chapman, 1986). Historically, the UCR Spring-run Chinook
Salmon ESU component of the Columbia basin is estimated to have
comprised up to 68,900 fish (Mullan, 1987; UCSRB, 2007). It is
estimated that before the 1930s, the Okanogan population of the UCR
Spring-run Chinook Salmon ESU contained at least 500 spring-run Chinook
salmon (NMFS, 2007).
While the historical population of spring-run Chinook salmon in the
Okanogan River subbasin has been extirpated, the potential remains to
reestablish a population in this area. Over the past century,
overfishing, hydropower development, and local habitat degradation have
severely impacted ecosystem features and processes in the Okanogan and
other subbasins, creating a fragmented mixture of altered or barren
fish and wildlife habitats and eradicating UCR spring-run Chinook
salmon from the Okanogan River subbasin. Disruptions
[[Page 40009]]
in the hydrologic system have resulted in widespread loss of migratory
corridors and access to productive habitat (CTCR, 2007). Low base
stream flow and warm summer water temperatures have limited salmonid
production both currently and historically. Stream flow and fish
passage within the Okanogan River subbasin are affected by a series of
dams and water diversions. However, the Upper Columbia Spring Chinook
Salmon and Steelhead Recovery Plan estimates that the Okanogan River
subbasin continues to have the capacity for at least 500 spring-run
Chinook salmon (NMFS, 2007).
The recovery plan establishes a framework for accomplishing
restoration goals for the Okanogan River subbasin including restoring
connectivity throughout their historic range where feasible and
practical. Short- and long-term actions will protect riparian habitat
along spawning and rearing streams and establish, restore, and protect
stream flows suitable for spawning, rearing, and migration. In
addition, water quality will be protected and restored where feasible
and practical. In the mainstem Columbia River, implementation of the
FCRPS ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010)
provides a number of new actions and continuation of existing programs
that will likely continue to increase passage survival through the
Columbia River mainstem passage corridor. The implementation of these
actions continues to improve habitat conditions in the Okanogan River
NEP Area to support reestablishing a potential fourth independent
population of UCR spring-run Chinook salmon. Salmon Creek and Omak
Creek offer the best habitat conditions for spawning and rearing in the
subbasin, and major efforts by the CTCR are underway to restore
tributary habitat for spring-run Chinook salmon in both the United
States and Canadian portions of the Okanogan River subbasin.
In addition to actions taken under the recovery plan, there are
many federal and state laws and regulations that will also help ensure
the establishment and survival of the experimental population by
protecting aquatic and riparian habitat. Section 404 of the Clean Water
Act (CWA) (33 U.S.C. 1344) requires permits from the United States Army
Corps of Engineers (Corps) before dredge or fill material can be
discharged into waters of the United States. The dredge and fill permit
program provides avoidance, minimization, and mitigation for the
potential adverse effects of dredge and fill activities within the
nation's waterways (40 CFR 100-149). Section 404(b) of the CWA requires
that section 404 permits be granted only in the absence of practicable
alternatives to the proposed project, which would have a less adverse
impact on the aquatic ecosystem. CWA section 401 provides protection of
water quality by requiring dischargers to navigable waters to comply
with applicable water quality standards. In addition, construction and
operational storm water runoff is subject to restrictions under CWA
section 402 and state water quality laws. Also the Magnuson-Stevens
Fishery Conservation and Management Act, as amended (16 U.S.C. 1801 et
seq.), requires that Essential Fish Habitat (EFH) be identified and
federal action agencies consult with NMFS on any activity which they
fund, permit, or carry out that may adversely affect EFH. Freshwater
EFH for spring-run Chinook salmon in the Upper Columbia River subbasin
includes the Okanogan River NEP Area. For each of these authorities, we
do not assume complete implementation and compliance for all actions
potentially affecting the experimental population or the listed ESU.
However, we expect compliance and assume, at a minimum, that these
authorities provide a regulatory regime that tends to encourage actions
consistent with that regime.
The habitat improvement actions called for in the recovery plan,
the protective measures in this final rule, and compliance with
existing federal, state and local laws, statutes, and regulations, are
expected to contribute to the survival of the experimental population
in the Okanogan River subbasin into the foreseeable future. Although
any reintroduction effort is likely to require supplementation with
hatchery-origin fish for several years, we conclude there is the
potential for a population of spring-run Chinook salmon to become
established. Furthermore, we conclude that such a self-sustaining
population of genetically compatible individuals is likely to further
the conservation of the species as discussed above.
2. Is the experimental population separate geographically from the
nonexperimental populations of the same species?
Section 10(j) of the ESA requires that we identify the population
by regulation to provide notice of which populations are experimental.
The statute also provides that the population is only considered
experimental ``when, and at such times as, [it] is wholly separate
geographically from the nonexperimental populations of the same
species.'' In this case, the analysis and information that identifies
the population also demonstrates when and where it will be wholly
geographically separate from other UCR spring-run Chinook salmon. Under
this rule, the experimental population is defined as the UCR spring-run
Chinook salmon population released in the Okanogan River subbasin, and
their subsequent progeny, when geographically located within the
Okanogan River NEP Area. When the juvenile experimental UCR spring-run
Chinook salmon leave the mouth of the Okanogan River and pass into the
Columbia River mainstem and proceed to the Pacific Ocean, they are no
longer geographically separated from the other extant, listed UCR
spring-run Chinook salmon populations, and the ``experimental''
designation does not apply, unless and until they return as adults to
spawn in the Okanogan River NEP Area.
The Okanogan River NEP Area provides the requisite level of
geographic separation because UCR spring-run Chinook salmon are
currently extirpated from this area, and straying of other UCR spring-
run Chinook populations into this area is extremely low (Colville
Business Council, 2010). The UCR Spring-run Chinook Salmon ESU does not
include the Okanogan River, and the status of the ESU does not rely on
the Okanogan River subbasin for recovery. If any extant UCR spring-run
Chinook salmon stray into the Okanogan River subbasin, they would
acquire experimental status while within that area, and therefore no
longer be covered by the ``endangered'' listing, nor by the full range
of section 9 prohibitions. The ``experimental'' designation is
geographically based and does not travel with the fish outside the
Okanogan River subbasin.
Hatchery-origin fish used for the reintroduction will be marked,
for example, with specific fin clips and/or coded-wire tags to evaluate
the stray rate and allow for broodstock collection of returning NEP
adults. It may be possible to mark NEP juvenile fish released into the
Okanogan River NEP Area in an alternative manner (other than coded-wire
tags) that would distinguish them from other Chief Joseph Hatchery-
raised Chinook salmon, and we will consider this during the Chief
Joseph Hatchery annual review. During the Chief Joseph Hatchery annual
review process, information on fish interactions and stray rates,
productivity rates of hatchery-origin and natural-origin populations,
and harvest effects are analyzed and evaluated for consistency with
best management
[[Page 40010]]
practices for artificial production as developed by the Hatchery
Scientific Review Group (HSRG) and other science groups in the Pacific
Northwest. Any such clips or tags would not, however, be for the
purpose of identifying the NEP since, as discussed above, the
experimental population is identified based on the geographic location
of the fish. Indeed, if the reintroduction is successful, and fish
begin reproducing naturally, their offspring would not be
distinguishable from fish from other natural-origin UCR spring-run
Chinook salmon populations. Outside of the experimental population
area, e.g., in the Columbia River below the mouth of the Okanogan River
or in the ocean, any such unmarked fish (juveniles and adults alike)
will not be considered members of experimental population. They will be
considered part of the ESU currently listed as endangered. Likewise,
any fish that were marked before release in the NEP Okanogan River Area
will not be considered part of the experimental population once they
leave the Okanogan River NEP Area; rather, they will be considered part
of the ESU currently listed as endangered.
3. Is the experimental population essential to the continued existence
of the species?
The ESA requires the Secretary, in authorizing the release of an
experimental population, to determine whether the population would be
``essential to the continued existence'' of the ESU. The statute does
not elaborate on how this determination is to be made. However, as
noted above, Congress gave some further definition to the term when it
described an essential experimental population as one whose loss
``would be likely to appreciably reduce the likelihood of the survival
of the species in the wild'' (see, Joint Explanatory Statement of the
Committee of Conference, H.R. Conf. Rep. No. 97-835, at 15 (1982)). The
USFWS incorporated this concept into its regulatory definition of an
essential population.
Based on the best available information as required by ESA section
10(j)(2)(B), we conclude that the proposed experimental population will
not be one ``whose loss would be likely to appreciably reduce the
likelihood of survival'' of the UCR Chinook Spring-run Salmon ESU for
the reasons described below.
The recovery plan states that recovery of spring-run Chinook salmon
in the Okanogan subbasin is not a requirement for delisting. Based on
the recovery plan's recovery criteria and proposed management
strategies, the UCR Spring-run Chinook Salmon ESU could recover to the
point where listing under the ESA is no longer necessary solely with
contributions from the three extant populations. Specifically, if the
Wenatchee and Methow populations could achieve a 12-year geometric mean
abundance of 2,000 natural-origin fish, and if the Entiat population
reaches a 12-year geometric mean abundance of 500 natural-origin fish,
the UCR Spring-run Chinook Salmon ESU would meet the recovery criteria
for abundance. This would require a minimum productivity of between 1.2
and 1.4 recruits per spawner for the 12-year time period (NMFS, 2007).
The extant populations would also need to meet specific criteria,
identified in the recovery plan, which would result in a moderate or
lower risk for spatial structure and diversity. The Upper Columbia
Salmon and Steelhead Recovery Plan identifies several harvest, hatchery
management, hydropower and habitat related actions that could be taken
to improve viability of the three extant UCR spring-run Chinook salmon
populations.
The recovery plan estimates recovery of the UCR Spring-run Chinook
Salmon ESU would take 10 to 30 years without the addition of the
Okanogan population. Based on the best available current evidence and
information, we conclude that recovery of the UCR Spring-run Chinook
Salmon ESU would still be likely under the above-discussed conditions.
NOAA's 2011 5-year status review concluded that, despite an
increase in abundance and a decrease in productivity of the UCR Spring-
run Chinook Salmon ESU, information considered in the review did not
change the biological extinction risk category since the previous 2005
status review. Neither status review considered the potential for UCR
spring-run Chinook salmon in the Okanogan River subbasin to alter this
risk, because UCR spring-run Chinook salmon were extirpated from the
Okanogan River subbasin in the 1930s and no UCR spring-run Chinook
salmon currently exist in the Okanogan River subbasin.
In summary, even without the establishment of a fourth (Okanogan)
population, the UCR Spring-run Chinook Salmon ESU could possibly be
delisted if all threats were addressed and all three populations
recovered. Because we conclude that a population of UCR spring-run
Chinook salmon in the Okanogan River NEP Area is not essential for
conservation of the ESU, we conclude that the proper designation is as
an NEP. Under Section 10(j)(2)(C)(ii) of the ESA we cannot designate
critical habitat for a NEP.
Location of the NEP
ESA section 10(j) requires that the experimental population be
designated ``only when, and at such times, as it is geographically
separate from nonexperimental populations of the same species.'' The
geographic boundary defining the Okanogan River NEP Area for UCR
spring-run Chinook salmon is the mainstem and all tributaries of the
Okanogan River between the Canada-United States border to the
confluence of the Okanogan River with the Columbia River. All UCR
spring-run Chinook salmon in this defined Okanogan River NEP Area are
considered part of the NEP, irrespective of their origin. Conversely,
when UCR spring-run Chinook salmon are located outside this defined
Okanogan River NEP Area, they are not considered part of the NEP.
Additional Management Restrictions, Protective Measures, and Other
Special Management Considerations
As indicated above, section 10(j) requires that experimental
populations are treated as threatened species, except for certain
portions of section 7. Congress intended that this provision would
authorize us to issue regulations we deemed necessary and advisable to
provide for the conservation of the experimental population, just as it
does, under section 4(d), for any threatened species (Joint Explanatory
Statement, supra, at 15). In addition, when amending the ESA to add
section 10(j), Congress specifically intended to provide broad
discretion and flexibility to the Secretary in managing experimental
populations so as to reduce opposition to release of listed species
outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34
(1982)). Therefore, we are exercising the authority to issue protective
regulations under section 4(d) for the proposed NEP to identify take
prohibitions necessary to provide for the conservation of the species
and otherwise provide assurances to people in the Okanogan River NEP
Area.
The ESA defines ``take'' to mean: Harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in
any such conduct. Concurrent with the ESA section 10(j) authorization,
we adopt protective regulations under ESA section 4(d) for the
experimental population that prohibit take of UCR spring-run Chinook
salmon that are part of the experimental population except in the
[[Page 40011]]
following circumstances in the Okanogan River NEP Area:
1. Any activity taken pursuant to a valid permit issued by us under
Sec. 223.203(b)(1) and Sec. 223.203(b)(7) for scientific research
activities.
2. Aid, disposal, or salvage of fish by authorized agency personnel
acting in compliance with 50 CFR 223.203(b)(3).
3. Activities associated with artificial propagation of the
experimental population under an approved Hatchery Genetic Management
Plan that complies with the requirements of-Sec. 223.203(b)(5).
4. Any harvest-related activity undertaken by a tribe, tribal
member, tribal permittee, tribal employee, or tribal agent consistent
with tribal harvest regulations and an approved Tribal Resource
Management Plan that complies with the requirements of Sec. 223.204.
5. Any harvest-related activity consistent with state harvest
regulations and an approved Fishery Management Evaluation Plan that
complies with the requirements of Sec. 223.203(b)(4).
6. Any take that is incidental \1\ to an otherwise lawful activity.
Otherwise lawful activities include, but are not limited to,
agricultural, water management, construction, recreation, navigation,
or forestry practices, when such activities are in full compliance with
all applicable laws and regulations.
---------------------------------------------------------------------------
\1\ Incidental take refers to takings that result from, but are
not the purpose of, carrying out an otherwise lawful activity
conducted by the Federal agency or applicant. 50 CFR 402.02
---------------------------------------------------------------------------
Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon
are not considered to be part of the NEP (even if they originated
there), and the take prohibitions applicable for endangered UCR spring-
run Chinook salmon will apply.
Summary of Comments and Responses
The proposed rule and draft EA established a public comment period
from October 24 until December 9, 2013 (78 FR 63439, October 24, 2013).
In addition to welcoming comments in general, we also requested
comments on seven specific questions regarding: (1) Whether the Methow
Composite stock of UCR spring-run Chinook salmon is the best fish to
use in establishing an experimental population and the scientific basis
for the comment; (2) the proposed geographical boundary of the
experimental population; (3) the extent to which the experimental
population would be affected by current or future federal, state,
tribal, or private actions within or adjacent to the experimental
population area; (4) any necessary management restrictions, protective
measures, or other management measures that we may not have considered;
(5) the likelihood that the experimental population would become
established in the Okanogan River NEP Area; (6) whether the proposed
experimental population is essential or nonessential; and (7) whether
the proposed designation furthers the conservation of the species and
whether we have used the best available science in making this
determination. We also contacted other Federal agencies and tribes and
invited them to comment on the proposed rule. On November 5, 2013, we
also held a public meeting within the geographic area affected by the
proposed rule.
We received comments from a total of 8 individuals or organizations
on the proposed rule and draft EA representing the opinions of various
natural resource agencies, county officials, non-governmental
organizations, and private entities. Six of the commenters expressed
support for the proposal. One of the commenters in support of the
proposal also suggested a few specific technical edits and
clarifications be made to the draft EA, which we incorporated. The
remaining two commenters provided comments expressing concerns about
the proposal. Below we summarize our responses to all of the
substantive issues raised regarding the proposed rule and draft EA.
Comments and Responses
Comment 1: One commenter noted disappointment in the short comment
period, and felt that there was inadequate coordination with elected
officials in developing the proposed introduction of endangered UCR
spring-run Chinook salmon into the Okanogan River and tributaries.
Response: We provided a 45-day comment period starting on October
24, 2013, and ending on December 9, 2013. We did not receive requests
from commenters for a review period extension.
We believe that there was adequate coordination with elected
officials and the public in the development of the proposed NEP. The
reintroduction of spring-run Chinook salmon into the Okanogan River
subbasin was included as a recommended action in the 2007 Upper
Columbia Spring Chinook Salmon and Steelhead Recovery Plan. The
Recovery Plan was developed in close collaboration with the Upper
Columbia Salmon Recovery Board with extensive involvement of elected
officials, state and tribal co-managers, and other stakeholders
throughout the region. In 2011, we published an Advance Notice of
Proposed Rulemaking in the Federal Register (76 FR 42658; July 16,
2011) notifying the public of our intention to develop a proposal for
reintroduction, and describing opportunities for public engagement.
Additional opportunities for input and engagement were highlighted in
the proposed rule (78 FR 63439; October 24, 2013). We met with the
Okanogan County Commissioners on December 5, 2011, and on November 5,
2013. On those same dates we also convened public meetings in Omak,
Washington on the proposed reintroduction. These meetings were noticed
in advance in local newspapers.
Comment 2: One commenter contended that there is a lack of credible
historical evidence that the Okanogan Basin ever supported a viable
population of spring-run Chinook salmon.
Response: We believe there is credible evidence that the Okanogan
River subbasin historically supported a viable population of spring-run
Chinook salmon (see section 3.2.1.1 of the EA for more detailed
discussion). UCR spring-run Chinook salmon historically occurred in at
least four systems in the Okanogan River subbasin: (1) Salmon Creek
(Craig and Suomela, 1941), (2) tributaries upstream of Lake Osoyoos
(Gartrell, 1936; Chapman et al., 1995; NPCC, 2004a), (3) Omak Creek
(Fulton, 1968), and (4) the Similkameen River (Fulton, 1968).
Comment 3: One commenter expressed concern that there is inadequate
habitat to support the reintroduction of UCR spring-run Chinook salmon.
Response: In the EA we evaluated whether the current water
conditions would allow for a reintroduction program to succeed, and
which areas of the Okanogan River subbasin currently have potential for
year round rearing of UCR spring-run Chinook salmon (Section 3.5.4). We
concluded that there is adequate tributary habitat to support UCR
spring-run Chinook salmon in the United States portion of the Okanogan
River subbasin.
Comment 4: One commenter expressed concern that the reintroduction
of spring-run Chinook salmon will negatively impact other ESA listed
and non-listed species.
Response: The reintroduction will not negatively impact other
populations of UCR spring run Chinook salmon. The reintroduction effort
will effectively reduce releases of Methow Composite hatchery smolts in
the Methow subbasin by 200,000 out of a program goal of 600,000 smolts,
and release them into
[[Page 40012]]
the Okanogan River subbasin instead. Consequently the number of
naturally spawning hatchery fish in the Methow subbasin is expected to
be greatly reduced, by approximately one third, providing a large
benefit to the endangered wild UCR spring-run Chinook salmon in the
Methow subbasin. Apart from this benefit, life-history strategies for
UCR spring-run Chinook salmon will not be affected by this action. The
reintroduction effort into the Okanogan River subbasin is not expected
to alter fisheries management outside of the action area and not
expected to result in an increase in harvest impacts for UCR spring-run
Chinook salmon or other listed species.
The proposed reintroduction is unlikely to negatively affect UCR
summer/fall-run Chinook salmon populations. Spring-run Chinook salmon
typically spawn prior to, and in different habitat than, summer/fall-
run Chinook salmon habitat. Competition for spawning sites or redd
superimposition is typically rare and in this case is not expected
between the two species.
The reintroduction effort will not negatively impact UCR steelhead.
Given the life-history differences between UCR spring-run Chinook
salmon and steelhead (e.g., discrete run, spawn, and emergence timing),
adverse ecological interactions between the experimental spring-run
Chinook salmon population and steelhead are expected to be minimal.
There is the possibility of some incidental take of UCR steelhead by
activities directed at the experimental population (e.g., handling of
steelhead that is incidental to the collection of spring-run Chinook
broodstock). However, the level of incidental take of UCR steelhead is
expected to be minimal, and non-lethal. Additionally, while the limited
protective regulations in this final rule will apply to the
nonessential experimental population of UCR spring-run Chinook salmon,
any actions that might directly or indirectly take steelhead in the
Okanogan River subbasin must comply with the 4(d) protective
regulations for West Coast steelhead (71 FR 5178; February 1, 2006).
Comment 5: One commenter was concerned about the genetic risks to
the Methow population of spring-run Chinook salmon posed by ``alien''
stocks straying into the Methow subbasin from the reintroduction effort
in the Okanogan River subbasin.
Response: No ``alien'' stocks of spring-run Chinook salmon would be
used in the reintroduction program. The reintroduction effort will use
Methow Composite hatchery stock, a stock originating in the Methow
subbasin that is currently propagated at the Winthrop National Fish
Hatchery. This stock is considered the most closely related to the
historical spring Chinook salmon run in the Okanogan River subbasin and
determined to be the best for the reintroduction program (see EA
Subsection 2.5.3, Authorize the Reintroduction Using a Different
Hatchery Stock). As previously mentioned, the proposed reintroduction
program will likely reduce the impact of the Methow Composite stock on
wild UCR spring-run Chinook salmon in the Methow subbasin by relocating
the release of 200,000 smolts from the Methow River to the Okanogan
River subbasin.
Comment 6: One commenter was concerned that harvest targeting
reintroduced UCR spring-run Chinook salmon stocks would impede recovery
by resulting in the over-harvest of co-mingled Methow subbasin salmon
and steelhead.
Response: Although the wild Methow and the reintroduced UCR spring-
run Chinook salmon populations would co-mingle in the ocean and
mainstem Columbia River during adult migration, neither population will
be marked with an adipose-fin clip and thereby be subjected to higher
sport-harvest rates (see EA Subsection 1.7.1.2, Spring-run Chinook
Salmon Reintroduction Program (Methow Composite Stock)). Successful
reintroduction of an experimental UCR spring-run Chinook salmon
population will expand the spatial distribution of the UCR Spring-run
Chinook Salmon ESU in the Upper Columbia River Basin, thus aiding in
recovery.
Comment 7: One commenter requested information regarding the
effectiveness of a previous reintroduction effort by the CTCR in the
Okanogan River subbasin using the Carson stock of hatchery spring-run
Chinook salmon.
Response: CTCR staff informed us that Chinook smolts were released
in the Okanogan River subbasin from 2002 through 2006 to evaluate the
potential for a reintroduction program (see EA Subsection 2.5.3,
Authorize the Reintroduction Using a Different Hatchery Stock). The
Carson stock releases were terminated in 2006 in favor of obtaining a
broodstock source more genetically similar to the historical Okanagan
subbasin stock that would better support a long-term reintroduction
program. We could not find any published literature on the
effectiveness of the Carson spring-run Chinook salmon reintroduction
efforts. According to CTCR staff, the 2002-2006 Carson stock
reintroduction effort demonstrated that spring-run Chinook salmon could
successfully rear in Omak Creek and emigrate out of the Okanogan River
subbasin. The study was short-term and limited in scope. Additional
information may be obtained from CTCR staff.
Comment 8: One commenter requested information regarding the
designation of other nonessential experimental populations, and whether
they had been successful.
Response: To date, NMFS has designated two nonessential
experimental populations under section 10(j) of the ESA.
On January 15, 2013, NMFS designated Middle Columbia River
steelhead reintroduced above the Pelton Round Butte Hydroelectric
Project (Oregon) as a non-essential experimental population under
section 10(j) of the ESA. For additional information see: http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/html/2013-00700.html.
On December 31, 2013, NMFS issued a final rule establishing a
nonessential experimental population of Central Valley spring-run
Chinook salmon and associated protective regulations under section 4(d)
of the ESA. For additional information see: http://www.westcoast.fisheries.noaa.gov/central_valley/san_joaquin/san_joaquin_reint.html.
NMFS has not had sufficient time yet to determine the effectiveness
of these NMFS 10(j) reintroduction efforts.
The USFWS has used Section 10(j) of the ESA to reintroduce scores
of threatened and endangered species throughout the U.S. For additional
information see: http://ecos.fws.gov/ecos/home.action.
Comment 9: One commenter questioned whether the proposed
reintroduction would divert resources away from recovery efforts
targeting extant spring-run Chinook salmon populations, and expressed
concerns that the reintroduction would impose a financial burden on
Okanogan County ratepayers.
Response: Funds allocated to salmon recovery and habitat
restoration by Public Utility Districts, the Bonneville Power
Administration and other federal agencies are already established and
would not change as a result of the reintroduction program. Because
there would be no change or redirection of these allocated funds with,
or without, the designation of UCR spring-run Chinook salmon as a NEP
in the Okanogan River subbasin, the reintroduction program would not
[[Page 40013]]
impose any additional financial burden on Okanogan County ratepayers.
Comment 10: Two commenters expressed concern that the introduction
of spring-run Chinook salmon would bring additional regulatory burdens,
and that the ``threatened'' status accompanying a nonessential
experimental population might lead to an upgraded endangered status in
the future.
Response: This is a concern that we have specifically sought to
address throughout the rulemaking process, and as a result, no
additional regulatory burdens would occur as a result of this
designation. The underlying intent of the nonessential experimental
population is to utilize the flexibility and discretion afforded under
section 10(j) of the ESA to manage the introduced population in a
manner that minimizes regulatory burdens and the potential risk of ESA
liability to the local community. Section 10(j) allows us to promulgate
tailored protective regulations to ensure that the potential
implication(s) of the introduced population are minimized for private
stakeholders. An exception to the take prohibitions was included in the
proposed rule to address this specific concern by allowing take of
spring-run Chinook in the NEP area that is incidental to an otherwise
lawful activity (see section CFR 223.301(c)(3)(vi) in this final rule).
In this final rule, we have included additional language in this
exception to further protect individuals acting lawfully from the take
prohibitions by clarifying that ``any fish that is incidentally taken
in a manner allowed by this paragraph may not be collected and must be
immediately returned to its habitat.'' This clarifying language will
help ensure that an individual does not errantly retain, transport, or
possess a fish outside of the Okanogan River NEP Area where the take
prohibitions for endangered UCR spring-run Chinook salmon would apply.
The nonessential experimental population designation also minimizes
the regulatory burden under section 7 of the ESA for federal actions.
Section 10(j) allows that an experimental population deemed
``nonessential'' is treated as a species proposed for listing during
interagency consultations under section 7 of the Act, requiring federal
agencies to confer (rather than consult) with NMFS on actions that are
likely to adversely affect the experimental population. Any
recommendations that result from the conference are advisory in nature
only, further minimizing any regulatory burden associated with the
designation of the experimental population.
There is no risk that the reintroduced population will be upgraded
to ``endangered'' status. The ``threatened'' status that accompanies
the reintroduced nonessential experimental population designation will
remain unchanged ``in perpetuity'' (see EA Subsection 4.1.1.5, Short-
term and Long-term Timeframes Used for Analyses of the EA).
Comment 11: One commenter was concerned that the reintroduction
will only serve to justify future acquisition of private lands for the
purposes of habitat restoration and protection.
Response: We respectfully disagree that the reintroduction program
will serve as justification for, or provide an incentive for, enhanced
land acquisition for habitat conservation. The reintroduction program
does not encourage nor require additional land acquisition to be
successful. There is adequate potential spring-run Chinook salmon
habitat available in the Okanogan River subbasin to support the
reintroduction effort (see EA Subsection 3.5.4, Okanogan Subbasin
Habitat Availability). Although the 10(j) designation is not a
justification to acquire land for habitat conservation purposes, the
CTCR and any other entity retain the legal rights to pursue land
acquisitions in the Okanogan River subbasin to protect salmon and
steelhead habitat. Similarly, landowners retain the legal right to
pursue, accept and reject proposed property transactions as they see
fit.
Comment 12: One commenter asked whether non-tribal members would be
afforded equal harvest opportunities as tribal members on hatchery-
origin UCR spring-run Chinook salmon from the Okanogan River subbasin.
Response: The CTCR is developing a fishery management plan to
harvest returns to the Okanogan River subbasin if such harvest is
required to reduce the proportion of naturally spawning hatchery-origin
spring-run Chinook salmon. Washington Department of Fish and Wildlife
has not submitted a harvest plan that would include recreational
fishing for spring-run Chinook salmon in the Okanogan River subbasin.
However, Washington Department of Fish and Wildlife may desire to
coordinate with co-managers to set recreational fishing seasons in
addition to regulations already established by the CTCR for tribal
fisheries in the mainstem Columbia River above Wells Dam for
Leavenworth spring-run Chinook salmon returning to the Chief Joseph
Hatchery.
After review of the comments and further consideration, we have
decided to adopt the proposed rule that was published in the Federal
Register (78 FR 63439) on October 24, 2013, with only non-substantive
editorial changes. Minor modifications were made to remove unnecessary
regulatory language and provide clarity. The modifications make no
change to the substance of the rule.
Findings
Based on the best available information, we determine that the
release of a NEP of UCR spring-run Chinook salmon in the Okanogan River
NEP Area will further the conservation of UCR spring-run Chinook
salmon. Fish used for the reintroduction will come from the Methow
Composite hatchery program located at Winthrop National Fish Hatchery.
These fish are included in the UCR spring-run Chinook salmon ESU and
have the best chance to survive and adapt to conditions in the Okanogan
River subbasin (Jones et al., 2011). They are expected to remain
geographically separate from the existing three extant populations of
the UCR spring-run Chinook Salmon ESU during the life stages in which
the NEP remains in, or returns to, the Okanogan River; at all times
when members of the NEP are downstream of the confluence of the
Okanogan and Columbia Rivers, the experimental designation will not
apply. Establishment of a fourth population of UCR spring-run Chinook
salmon in the Okanogan River subbasin will likely contribute to the
viability of the ESU as a whole. This experimental population release
is being implemented as recommended in the 2007 Upper Columbia Spring
Chinook Salmon and Steelhead Recovery Plan, while at the same time
ensuring that the reintroduction will not impose undue regulatory
restrictions on landowners and third parties.
We further determine, based on the best available information, that
the designated experimental population is not essential to the ESU,
because absence of the experimental population will not reduce the
likelihood of survival of the ESU. An Okanogan spring-run Chinook
salmon population is not a requirement for delisting because the
population is extirpated. Implementation of habitat actions in the
recovery plan are expected to increase the viability of the Methow,
Wenatchee, and Entiat populations to meet ESU recovery criteria without
establishment of an Okanogan population. We therefore designate the
released
[[Page 40014]]
population as a Nonessential Experimental Population.
Information Quality Act and Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal
Register on January 14, 2005 (70 FR 2664). The Bulletin established
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation with regard to certain types of information disseminated
by the Federal Government. The peer review requirements of the OMB
Bulletin apply to influential or highly influential scientific
information disseminated on or after June 16, 2005. There are no
documents supporting this final rule that meet these criteria.
Classification
Executive Order 12866
This final rule has been determined to be not significant under
Executive Order (E.O.) 12866.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities.
The Chief Counsel for Regulation, Department of Commerce, certified
to the Chief Counsel for Advocacy at the Small Business Administration
at the proposed rule stage that this rule will not have a significant
economic effect on a substantial number of small entities. No comments
were received regarding the economic impact of this final rule on small
entities. The factual basis for this certification was published with
the proposed rule and is not repeated here. Because this rule requires
no additional regulations on small entities and would impose little to
no regulatory requirements for activities within the affected area, a
final regulatory flexibility analysis is not required and one was not
prepared.
Executive Order 12630
In accordance with E.O. 12630, the final rule does not have
significant takings implications. A takings implication assessment is
not required because this rule: (1) would not effectively compel a
property owner to have the government physically invade their property,
and (2) would not deny all economically beneficial or productive use of
the land or aquatic resources. This rule would substantially advance a
legitimate government interest (conservation and recovery of a listed
fish species) and would not present a barrier to all reasonable and
expected beneficial use of private property.
Executive Order 13132
In accordance with E.O. 13132, we have determined that this final
rule does not have federalism implications as that termed is defined in
E.O. 13132.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
OMB regulations at 5 CFR 1320, which implement provisions of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal
agencies obtain approval from OMB before collecting information from
the public. A Federal agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a currently valid OMB control number. This final rule does not
include any new collections of information that require approval by OMB
under the Paperwork Reduction Act.
National Environmental Policy Act
In compliance with all provisions of the National Environmental
Policy Act of 1969, we have analyzed the impact on the human
environment and considered a reasonable range of alternatives for this
final rule. We made the draft EA available for public comment along
with the proposed rule, received one set of comments, and responded to
those comments in an Appendix to the EA. We have prepared a final EA
and FONSI on this action and have made these documents available for
public inspection (see ADDRESSES section).
Government-to-Government Relationship With Tribes (E.O. 13175)
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the federal government in
matters affecting tribal interests. If we issue a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes) we
must consult with those governments or the Federal Government must
provide funds necessary to pay direct compliance costs incurred by
tribal governments.
The CTCR Reservation lies within the experimental population area.
In 2010 staff members of CTCR met with NMFS staff. They discussed the
Tribe's developing proposal to reintroduce UCR spring-run Chinook
salmon in the Okanogan River subbasin and designate it as an ESA 10(j)
experimental population.
Since that meeting CTCR and NMFS staffs have been in frequent
contact, including explaining the rule-making process and evaluations
involved in reviewing any proposal from the Tribes. These contacts and
conversations included working together on public meetings held in
Okanogan and Omak, WA (December 5, 2011, and November 5, 2013) and
monthly status/update calls describing activity associated with the
NEPA and ESA reviews associated with the proposal and final rules.
In addition to frequent contact and coordination among CTCR and
senior NMFS technical and policy staff, we also discussed hatchery
production changes affected by the Chief Joseph Hatchery and the
associated aspects of the 10(j) proposal with the Parties to United
States v. Oregon (Confederated Tribes and Bands of the Yakama Nation,
Confederated Tribes of the Umatilla Indian Reservation, Confederated
Tribes of the Warm Springs Reservation of Oregon, Nez Perce Tribe, and
the Shoshone-Bannock Tribes of the Fort Hall Reservation; the States of
Washington, Oregon, and Idaho; and the United States (NMFS, USFWS,
Bureau of Indian Affairs, and the Department of Justice)). The current
2008-2017 United States v. Oregon Management Agreement (2008)
anticipated the development of the Chief Joseph Hatchery. Footnote
5 to Table B-1 Spring Chinook Production for Brood
[[Page 40015]]
Years 2008-2017 states that the parties to the Agreement ``anticipate
that the proposed Chief Joseph Hatchery is likely to begin operations
during the term of this Agreement. The Parties agree to develop options
for providing . . . spring Chinook salmon eggs to initiate the Chief
Joseph program when it comes online.'' (p. 99). This will include
coordinating with the ``Production Advisory Committee'' (PAC) which is
responsible to ``coordinate information, review and analyze . . .
future natural and artificial production programs . . . and to submit
recommendations to the management entities.'' (p. 14) The U.S. v Oregon
Policy Committee, in February 2012, approved changes to the Agreement
that identified the marking and transfer of 200,000 UCR spring-run
Chinook salmon pre-smolts to Okanogan River acclimation ponds, and the
prioritization of this production, in relation to other hatchery
programs in the Methow River subbasin. The footnote has been modified
to reflect these changes. The PAC includes technical representatives
from '' . . . the Warm Springs Tribe, the Umatilla Tribes, the Nez
Perce Tribe, the Yakama Nation, and the Shoshone-Bannock Tribes.''
(p.14). It is these technical representatives who will review adult
management proposals associated with this final rule. Those
representatives are senior staff from the identified tribes and will be
in communication with their respective governments. We invite meetings
with tribes to have detailed discussions that could lead to government-
to-government consultation meetings with tribal governments. We will
continue to coordinate with the affected tribes.
References Cited
A complete list of all references cited in this final rule is
available upon request (see FOR FURTHER INFORMATION CONTACT).
Dated: July 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports.
For the reasons set out in the preamble, part 223 of chapter II,
title 50 of the Code of Federal Regulations, is amended as follows.
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec. Sec. 223.201
and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C.
5503(d) for Sec. 223.206(d)(9).
0
2. In Sec. 223.102, in the table in paragraph (e) under ``Fishes,''
add an entry for ``Salmon, Chinook (Upper Columbia River spring-run
ESU-XN)'' after the entry for ``Salmon, Chinook (Upper Willamette River
ESU)'' and before the entry for ``Salmon, Chum (Columbia River ESU)''
to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Salmon, Chinook (Upper Oncorhynchus Upper Columbia River [Insert Federal NA 223.301
Columbia River spring-run tshawytscha. spring-run Chinook Register
ESU-XN). salmon only when, citation] 7/11/
and at such times, 14.
as they are found
in the mainstem or
tributaries of the
Okanogan River from
the Canada-United
States border to
the confluence of
the Okanogan River
with the Columbia
River, Washington.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\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).
* * * * *
0
3. In Sec. 223.301, add paragraph (c) to read as follows:
Sec. 223.301 Special rules--marine and anadromous fishes.
* * * * *
(c) Okanogan River UCR spring-run Chinook Salmon Experimental
Population (Oncorhynchus tshawytscha). (1) The Upper Columbia River
(UCR) spring-run Chinook salmon population located in the geographic
area identified in paragraph (c)(5) of this section shall comprise the
Okanogan River nonessential experimental population (NEP), and shall be
treated as a ``threatened species'' pursuant to 16 U.S.C.
1539(j)(2)(C).
(2) Prohibitions. Except as provided in paragraph (c)(3) of this
section, the prohibitions of section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered species apply to UCR spring-run
Chinook salmon in the Okanogan River NEP Area, defined in paragraph
(c)(5) of this section.
(3) Exceptions to the Application of Section 9 Take Prohibitions in
the Experimental Population Area. Take of UCR spring-run Chinook salmon
that is otherwise prohibited by paragraph (c)(2) of this section and 50
CFR 223.203(a) in the Okanogan River NEP Area is allowed, except as
otherwise noted, provided it falls within one of the following
categories:
(i) Any activity taken pursuant to a valid permit issued by NMFS
under Sec. 223.203(b)(1) and (7) for scientific research activities;
(ii) Aid, disposal, or salvage of fish by authorized agency
personnel acting in compliance with 50 CFR 223.203(b)(3);
(iii) Activities associated with artificial propagation of the
experimental population under an approved Hatchery Genetic Management
Plan (HGMP) that complies with the requirements of 50 CFR
223.203(b)(5);
[[Page 40016]]
(iv) Any harvest-related activity undertaken by a tribe, tribal
member, tribal permittee, tribal employee, or tribal agent consistent
with tribal harvest regulations and an approved Tribal Resource
Management Plan (TRMP) that complies with the requirements of 50 CFR
223.204;
(v) Any harvest-related activity consistent with state harvest
regulations and an approved Fishery Management Evaluation Plan (FMEP)
that complies with the requirements of 50 CFR 223.203(b)(4); or
(vi) Any take that is incidental to an otherwise lawful activity,
provided that the taking is unintentional; not due to negligent
conduct; and incidental to, and not the purpose of, the carrying out of
the otherwise lawful activity. Otherwise lawful activities include, but
are not limited to, agricultural, water management, construction,
recreation, navigation, or forestry practices, when such activities are
in full compliance with all applicable laws and regulations. Any fish
that is incidentally taken in a manner allowed by this paragraph may
not be collected and must be immediately returned to its habitat.
(4) Prohibited take outside the NEP area. Outside the Okanogan
River NEP Area, UCR spring-run Chinook salmon are not considered to be
part of the NEP, irrespective of their origin, and therefore the take
prohibitions for endangered UCR spring-run Chinook salmon apply.
(5) Geographic extent of the Okanogan River NEP Area. The
geographic boundary defining the Okanogan River NEP Area for UCR
spring-run Chinook salmon is the mainstem and all tributaries of the
Okanogan River between the Canada-United States border to the
confluence of the Okanogan River with the Columbia River. All UCR
spring-run Chinook salmon in this defined Okanogan River NEP Area are
considered part of the NEP, irrespective of where they originated.
[FR Doc. 2014-16255 Filed 7-10-14; 8:45 am]
BILLING CODE 3510-22-P