[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Notices]
[Pages 68572-68575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21913]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD392]


Notice of Intent To Prepare an Environmental Impact Statement for 
Issuance of an Incidental Take Statement Under the Endangered Species 
Act for Salmon Fisheries in Southeast Alaska Subject to the Pacific 
Salmon Treaty

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

ACTION: Notice; intent to prepare an environmental impact statement; 
request for written comments.

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SUMMARY: NMFS announces its intent to prepare an Environmental Impact 
Statement (EIS), in accordance with the National Environmental Policy 
Act (NEPA), to analyze the impacts of alternatives related to NMFS's 
issuance of an incidental take statement (ITS) for species listed as 
threatened or endangered under the Endangered Species Act (ESA) 
affected by salmon fisheries in Southeast Alaska (SEAK) that are 
managed consistent with the provisions of the 2019 Pacific Salmon 
Treaty (PST) Agreement. Compliance with the ITS would exempt 
participants in these fisheries from the ESA's prohibition on take of 
threatened and endangered species. This notice is necessary to inform 
the public of NMFS's intent to prepare this EIS and to provide the 
public with an opportunity to provide input for NMFS's consideration.

DATES: NMFS requests comments concerning the scope of the analysis and 
identification of relevant information, studies, and analyses. All 
comments must be received by 11:59 p.m. Eastern Time on November 20, 
2023.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2023-0115, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2023-0115 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Submit written comments to Gretchen Harrington, 
Assistant Regional Administrator, Sustainable Fisheries Division, 
Alaska Region NMFS, Attn: Susan Meyer. Mail comments to P.O. Box 21668, 
Juneau, AK 99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, (907) 586-7228, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Pacific Salmon Treaty and SEAK Salmon Fishery Management

    The PST provides a framework for the management of salmon fisheries 
in the U.S. and Canada and regulates the salmon fisheries that occur in 
the ocean and inland waters of Oregon, Washington, British Columbia, 
the Yukon, and southeast Alaska, and the rivers that flow into these 
waters. The PST established fishing regimes that set upper limits on 
intercepting fisheries, defined as fisheries in one country that 
harvest salmon originating in another country, and sometimes include 
provisions that apply to the management of the Parties' non-
intercepting fisheries as well. The overall purpose of the regimes is 
to accomplish the conservation, production, and harvest allocation 
objectives set forth in the PST. These objectives are designed to 
prevent overfishing, provide for each country to benefit from 
production originating in its water, avoid undue disruption of existing 
fisheries, and reduce interceptions to the extent practicable.
    Each Party to the PST must implement the fisheries management 
framework domestically. Fisheries in both Federal and state waters off 
of SEAK are managed consistent with the 2019 PST Agreement. For Federal

[[Page 68573]]

fisheries occurring in the Exclusive Economic Zone (EEZ) off the coast 
of SEAK, the U.S. does this through implementation of provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act and the 
Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska 
(FMP). The FMP, approved in 1979 (last amended in 2021), conserves and 
manages the Pacific salmon commercial and sport fisheries that occur in 
the U.S. EEZ off Alaska. The FMP establishes two management areas, the 
East Area and the West Area, with a border at Cape Suckling, and 
addresses commercial salmon fisheries in each area. In the East Area, 
the FMP delegates management of the commercial troll and sport salmon 
fisheries that occur in the EEZ to the State of Alaska and prohibits 
commercial salmon fishing with net gear in the EEZ.
    NMFS does not manage the salmon fisheries that occur in state 
waters. The State of Alaska Department of Fish and Game (ADF&G) manages 
salmon troll, net, and sport fisheries subject to the PST's 
conservation, production, and harvest allocation objectives in state 
waters (internal waters and marine waters from shore to 3 nautical 
miles (approximately 6 kilometers) offshore) of SEAK. The SEAK 
commercial salmon fisheries occurring in state waters include troll, 
purse seine, drift gillnet, and set gillnet fisheries. The State's 
management of commercial and sport salmon fisheries, including harvest 
monitoring, stock assessment, and transboundary river enhancement 
necessary to implement the 2019 PST Agreement, is partially funded 
through Federal grants dispersed by NOAA.

ESA Consultation and Litigation History

    In response to the 2019 PST Agreement, NMFS consulted under section 
7 of the ESA on three actions--
     Delegation of management authority over salmon fisheries 
in the SEAK EEZ to the State of Alaska on the basis of new information 
regarding the effects of the action and the contemporary status of 
impacted ESA-listed species,
     Federal funding through grants to the State of Alaska for 
the State's management of commercial and sport salmon fisheries and 
transboundary river enhancement necessary to implement the 2019 PST 
Agreement, and
     Federal funding of a conservation program to support 
critical Puget Sound Chinook stocks and Southern Resident Killer Whales 
(SRKW) related to the 2019 PST Agreement, one component of which 
included funding of a prey increase program for Southern Resident 
Killer Whales (SRKW).
    In 2019, NMFS completed the consultation and issued the 2019 
Biological Opinion (BiOp) and ITS. In the BiOp, NMFS concluded that the 
actions were not likely to jeopardize the continued existence of any of 
the ESA-listed species and that the actions were not likely to destroy 
or adversely modify designated critical habitat for any of the listed 
species. NMFS also issued an ITS that exempted take of ESA-listed 
species incidental to the prosecution of the SEAK fisheries.
    In 2020, the Wild Fish Conservancy (WFC), a 501(c)3 nonprofit 
organization, filed a lawsuit in the U.S. District Court for the 
Western District of Washington challenging the 2019 BiOp (Wild Fish 
Conservancy v. Quan, No. 2:20-CV-417-RAJ-MLP (W.D. Wash.)). WFC alleged 
NMFS violated the ESA and NEPA. On August 8, 2022, the district court 
found that NMFS violated both the ESA and NEPA (Wild Fish Conservancy 
v. Quan, No. 2:20-CV-417-RAJ-MLP, 2021 WL 8445587 (W.D. Wash. Sept. 27, 
2021), report and recommendation adopted, No. 2:20-CV-417-RAJ, 2022 WL 
3155784 (W.D. Wash. Aug. 8, 2022)). With respect to the ESA, the court 
determined the prey increase program lacked specificity and deadlines 
or otherwise enforceable obligations and was not subject to agency 
control or reasonably certain to occur. The court also concluded that 
NMFS failed to evaluate the effects of the prey increase program on 
ESA-listed Chinook salmon.
    With respect to NEPA, the court concluded NMFS failed to conduct 
NEPA analyses for the issuance of the ITS exempting take of ESA-listed 
species associated with the SEAK salmon fisheries considered in the 
2019 BiOp. The court also concluded that NMFS failed to conduct 
adequate NEPA analysis for the adoption of the prey increase program. 
The court remanded to the agency to address its conclusions regarding 
the ESA and NEPA deficiencies.
    As part of its effort to address the court's orders on remand, NMFS 
intends to conduct an ESA Section 7 consultation and prepare two EISs. 
The EIS described in this Notice of Intent would respond specifically 
to the court order with respect to the stated failure to prepare an 
analysis pursuant to NEPA for the issuance of the ITS for the SEAK 
salmon fisheries. This EIS will analyze the effects of a reasonable 
range of alternatives for the issuance of an ITS to exempt otherwise 
prohibited take of ESA-listed species in the SEAK salmon fisheries 
under the 2019 PST Agreement. NMFS is also preparing a separate EIS for 
the expenditure of Federal funding to provide additional prey for SRKW 
(88 FR 54301, August 10, 2023).

Preliminary Purpose and Need Statement

    The proposed action is the issuance of the ITS under the ESA, per 
the court orders in Wild Fish Conservancy v. Quan directing the agency 
to conduct NEPA analysis for the issuance of the ITS. The purpose of 
issuing the ITS in a BiOp is to exempt incidental take of ESA-listed 
species associated with the SEAK salmon fisheries subject to provisions 
of the 2019 PST Agreement to the level or amount as specified in the 
ITS, provided the take occurs in compliance with the ITS. NMFS issues 
an ITS when NMFS concludes that an action and associated incidental 
take of ESA-listed species would not violate ESA Section 7.
    Under Section 7 of the ESA, NMFS as the action agency must consult 
to ensure that any action it authorizes, funds, or carries out is not 
likely to jeopardize the continued existence of listed species or 
result in the destruction or adverse modification of designated 
critical habitat (16 U.S.C. 1536(a)(2)). As a result of that 
consultation, NMFS as the consulting agency must prepare a BiOp 
detailing how the agency action affects ESA-listed species and 
designated critical habitat under its jurisdiction (16 U.S.C. 
1536(b)(3)). If NMFS as the consulting agency concludes, among other 
things, that the agency action and any associated incidental take is 
not likely to jeopardize the continued existence of any ESA-listed 
species, NMFS must issue an ITS. Compliance with the ITS exempts the 
incidental take that is reasonably certain to occur (16 U.S.C. 
1536(b)(4); 50 CFR 402.14) from prohibitions under Section 9 of the 
ESA. The ITS specifies, among other requirements: the impact of such 
incidental taking on the listed species and limits on that incidental 
take; measures considered necessary or appropriate to minimize the 
impact of such take; terms and conditions (including reporting 
requirements) that implement the specified measures; and measures 
needed to comply with the Marine Mammal Protection Act, if applicable.
    When NMFS issues a BiOp and ITS in its role as the consulting 
agency, the ITS is not a permit or authorization or otherwise a major 
Federal action that triggers the requirement to comply with NEPA. As 
set forth in section 7(o) of the ESA, compliance with an ITS provides

[[Page 68574]]

an exemption from the ESA's take prohibition (16 U.S.C. 1536(o)). There 
are instances, such as this one, when NMFS is both the consulting 
agency and the action agency (prior decision to delegate management of 
fisheries in the EEZ and disbursement of Federal funding). In those 
instances, NMFS as the action agency must comply with NEPA for the 
underlying Federal actions, but NMFS does not separately have to comply 
with NEPA for the issuance of the BiOp and the ITS since the issuance 
of a BiOp and ITS does not constitute a ``major Federal action.'' San 
Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 644-45 (9th 
Cir. 2014). However, because the district court concluded that NMFS 
must comply with NEPA in issuing this ITS, we intend to prepare this 
EIS to respond to the court's orders.

Preliminary Alternatives

    NMFS will evaluate a reasonable range of alternatives regarding the 
proposed issuance of the ITS for ESA-listed species associated with the 
SEAK salmon fisheries subject to provisions of the 2019 PST Agreement. 
Possible alternatives could be constructed from one or more of the 
following draft alternatives in addition to those developed through the 
public scoping:

Alternative 1: Status Quo, No Action

    Alternative 1 is the status quo ITS from the 2019 BiOp. With this 
ITS, the EIS would assume that the SEAK salmon fisheries subject to the 
2019 PST Agreement would continue to be prosecuted under the 2019 PST 
Agreement and existing fishery management measures. This alternative 
would not comply with the court's orders, because the court identified 
flaws with the 2019 BiOp.

Alternative 2: Issuance of a New ITS With a New BiOp

    Under Alternative 2, NMFS would develop a new BiOp to respond to 
the court's finding that the 2019 BiOp did not comply with the ESA; the 
new BiOp would contain an ITS, consistent with the requirements of 16 
U.S.C. 1536, that includes the level of take that NMFS determines is 
reasonably certain to occur for each ESA-listed species considered in 
the BiOp.
    With this ITS, the EIS would assume that the SEAK salmon fisheries 
subject to the 2019 PST Agreement would continue to be prosecuted under 
the 2019 PST Agreement and fishery management measures consistent with 
any reasonable and prudent measures and terms and conditions included 
in the new ITS.

Alternative 3: NMFS Would Not Issue an ITS

    Under Alternative 3, NMFS would not develop a new BiOp and any 
incidental taking of listed species by the SEAK salmon fisheries would 
not be exempt from the ESA's prohibition of such take. The EIS would 
therefore assume that the SEAK salmon fisheries under the 2019 PST 
Agreement would not be prosecuted.
    This Alternative is presented exclusively for analytical purposes 
consistent with the requirements of NEPA and implementing regulations 
that NMFS analyze a range of alternatives. It is not consistent with 
the purpose and need of the action. Under the ESA, NMFS as the 
consulting agency is obligated at the conclusion of any consultation to 
(1) prepare a BiOp detailing how the agency action affects listed 
species and their designated critical habitat (16 U.S.C. 1536(b)(3)); 
and (2) issue an ITS for take that is reasonably certain to occur 
incidental to the action (16 U.S.C. 1536(b)(4)) if NMFS concludes, 
among other things, that the agency action and any incidental take is 
not likely to jeopardize the continued existence of any listed species 
(16 U.S.C. 1536(b)(4); 50 CFR 402.14(g)(7)). Therefore, NMFS fully 
intends to comply with the ESA and the court's orders by conducting a 
new consultation and issuing a BiOp and ITS for the Federal actions 
associated with the SEAK salmon fisheries.

Issues and Expected Impacts to be Analyzed

    The EIS will analyze a reasonable range of alternatives developed 
through the scoping process and their likely impacts on ESA-listed 
species, marine resources, and participants in the SEAK salmon 
fisheries subject to the 2019 PST Agreement. Those fisheries include 
the sport salmon fisheries and the commercial salmon troll, purse 
seine, drift gillnet, and set gillnet fisheries. Marine resources, in 
addition to ESA-listed species, that may be impacted by the 
alternatives include non ESA-listed salmon, other finfish, marine 
mammals, seabirds, and habitat. The EIS will consider any socio-
economic impacts of the alternatives.
    The ESA-listed species designated in an ITS, on which the impacts 
of the proposed action would be analyzed in the EIS, could include ESA-
listed Chinook salmon: Puget Sound, Lower Columbia River, Upper 
Willamette River, and Snake River fall-run Evolutionary Significant 
Units (ESUs, all threatened); Steller sea lions, western Distinct 
Population Segment (DPS) (endangered); humpback whale, Mexico DPS 
(threatened); killer whale, southern resident DPS (SRKW) (endangered); 
and their designated critical habitats.
    Salmon fisheries in SEAK may have effects on non-listed salmon. 
Some of these salmon may be prey resources for SRKW, thus the fisheries 
may affect SRKW through the catch of non-ESA-listed salmon. Fishing 
gear interactions occur in the SEAK salmon fisheries that may affect 
the Mexico DPS of humpback whales and the western DPS of Steller sea 
lions.

Schedule for the Decision-Making Process

    NMFS intends to prepare the EIS concurrently with the new BiOP. 
NMFS anticipates issuing a Record of Decision before November 2024.

Public Involvement

    Scoping is an early and open process for determining the scope of 
issues to be addressed in an EIS and for identifying the significant 
issues related to the proposed action (40 CFR 1501.9). An EIS is a 
detailed statement on a proposed agency action, but it does not mandate 
particular results or substantive outcomes, as the purpose and function 
of NEPA is satisfied if the agency considered relevant environmental 
information and the public has been informed regarding the decision-
making process (40 CFR 1500.1(a)).
    A principal objective of the scoping and public involvement process 
is to identify a range of reasonable management alternatives that, with 
adequate analysis in an EIS, will delineate critical issues and provide 
a clear basis for distinguishing among those alternatives and informing 
the selection of a preferred alternative. Through this notice, NMFS is 
notifying the public that an EIS and a decision-making process for this 
proposed action have been initiated, so that interested or affected 
people may participate and contribute to the final decision.
    NMFS is seeking written public comments on the scope of issues, 
including potential impacts, information, analyses, and alternatives 
that should be considered. Written comments should be as specific as 
possible to be the most helpful. Written comments received during the 
scoping process, including the names and addresses of those submitting 
them, will be considered part of the public record of this proposal and 
will be available for public inspection. Written comments will be 
accepted at the address above (see ADDRESSES).

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    Authority: 16 U.S.C. 1801 et seq.

    Dated: September 28, 2023.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2023-21913 Filed 9-29-23; 4:15 pm]
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