[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Notices]
[Pages 5210-5211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01606]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD625]


Notice of Availability of a Draft Environmental Impact Statement 
for the Issuance of an Incidental Take Statement Under the Endangered 
Species Act for Salmon Fisheries in Southeast Alaska Subject to the 
2019 Pacific Salmon Treaty Agreement and Funding to the State of Alaska 
To Implement the 2019 Pacific Salmon Treaty Agreement

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

ACTION: Notice; availability of a draft environmental impact statement; 
request for written comments.

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SUMMARY: A Notice of Intent to prepare this draft environmental impact 
statement (DEIS) was published in the Federal Register on October 4, 
2023. This DEIS is prepared pursuant to the National Environmental 
Policy Act (NEPA) to assess the environmental impacts associated with 
NMFS issuing an incidental take statement (ITS) under section 7 of the 
Endangered Species Act (ESA) that would exempt take of threatened or 
endangered ESA-listed species by participants in Southeast Alaska 
(SEAK) salmon fisheries that are subject to the 2019 Pacific Salmon 
Treaty (PST) Agreement. This DEIS also assesses the environmental 
impacts of NMFS funding grants to the State of Alaska (State) to 
monitor and manage the SEAK salmon fisheries and salmon stocks subject 
to the 2019 PST Agreement. If warranted, NMFS would issue an ITS, 
consistent with requirements of the ESA, as part of a consultation on 
two agency actions related to the 2019 PST Agreement, including the 
funding to the State. That consultation would conclude with the 
issuance of a biological opinion (BiOp) that evaluates the effects of 
those agency actions on ESA-listed species and critical habitat. This 
DEIS directly responds to a court order and analyzes the effects of the 
proposed issuance of an ITS for those two agency actions.

DATES: NMFS requests comments on this DEIS. All comments must be 
received by 11:59 p.m. Eastern Time on March 11, 2024.

ADDRESSES: This document is available on the National Marine Fisheries 
Service Alaska Region website at: https://www.fisheries.noaa.gov/resource/document/environmental-impact-statement-issuance-incidental-take-statement-salmon and at https://www.regulations.gov by entering 
docket number ``NOAA-NMFS-2023-0152'' in the search bar.
    You may submit comments on the DEIS identified by NOAA-NMFS-2023-
0152 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-2023-0152 in the Search box. 
Click the ``Comment'' icon, complete the required fields and enter or 
attach your comments.
     Mail: Submit written comments to Gretchen Herrington, 
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 
is publicly accessible. NMFS will accept anonymous comments (enter ``N/
A'' in the required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Kelly Cates, telephone: 907-586-7221; 
email: [email protected]; or Bridget Mansfield, telephone: 907-586-
7221; email: [email protected].

SUPPLEMENTARY INFORMATION: This EIS directly responds to court orders 
to provide decision-makers and the public with an assessment of the 
environmental, economic, and social impacts of alternative approaches 
to the issuance of an ITS under Section 7 of the ESA that would exempt 
take of threatened or endangered ESA-listed species by participants in 
SEAK salmon fisheries that are subject to the 2019 PST Agreement.

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 waters, 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. Salmon fisheries in both Federal and state 
waters off SEAK are managed consistent with the 2019 PST Agreement. For 
Federal 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 establishes two management areas, the East 
Area and the West Area with a border at Cape Suckling. In the East 
Area, the FMP delegates management of the commercial troll and sport 
salmon fisheries that occur in the EEZ to the State and prohibits 
commercial salmon fishing with net gear in the EEZ.
    NMFS does not manage the salmon fisheries that occur in state 
waters (internal waters and marine waters from shore to 3 nautical 
miles (approximately 6 kilometers) offshore) of SEAK. The State of 
Alaska Department of Fish and Game (ADF&G) manages salmon troll, net, 
personal use, and sport fisheries subject to the PST's conservation, 
production, and harvest allocation objectives in state waters. The SEAK 
commercial salmon fisheries occurring in state waters include troll, 
purse seine, drift gillnet, and set gillnet fisheries. The State's 
management of 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:

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     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 SRKW.
    The Federal funding of the conservation program to support Puget 
Sound Chinook stocks and SRKW was a separate action from the two 
Federal actions related to the SEAK salmon fisheries (delegation and 
funding). In 2019, NMFS completed the consultation and issued the 2019 
BiOp and ITS. In the 2019 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 issued an ITS in the 2019 BiOp for take associated with 
the Federal actions related to the SEAK salmon fisheries, compliance 
with which would exempt participants in these fisheries from the ESA's 
prohibition on the incidental take of threatened and endangered 
species.
    In 2020, the Wild Fish Conservancy (WFC)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 NEPA, the court concluded NMFS failed to conduct a 
NEPA analysis for the issuance of the ITS with 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 these NEPA, as well as the 
ESA, deficiencies.
    As part of its effort to address the court's orders on remand, NMFS 
intends to conduct a new ESA section 7 consultation on the effects from 
the federal actions related to the SEAK salmon fisheries (delegation 
and funding), and if warranted, would issue a new ITS as part of that 
consultation. Compliance with a new ITS would exempt participants in 
the SEAK salmon fisheries under the 2019 PST Agreement from the ESA's 
prohibition on the incidental take of threatened and endangered 
species.

Draft Environmental Impact Statement

    This DEIS responds 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 DEIS analyzes 
the effects of a reasonable range of alternatives for the proposed 
issuance of a new ITS.
    In light of the nexus between the court's orders on the ESA and 
NEPA deficiencies and in light of NMFS's ongoing disbursement of funds 
to the State, this EIS also evaluates the effects of the following 
actions under consultation:
     NMFS's delegation of management authority over salmon 
fisheries in the EEZ in SEAK to the State of Alaska under the Salmon 
FMP; and
     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 implementation of the 2019 
PST Agreement. This is also a second proposed action considered as a 
component of the alternatives.
    Ultimately, this DEIS provides an assessment of the environmental, 
economic, and social impacts of the SEAK salmon fisheries in federal 
and state waters, even though none of the federal actions directly 
authorize the fisheries, because NMFS expects these impacts to occur 
from the operation of the salmon fisheries in SEAK that are prosecuted 
pursuant to the 2019 PST Agreement, facilitated by proposed Federal 
funding of grants to the State under the 2019 PST Agreement, and 
proposed to be exempted from liability for incidental takes of ESA 
listed species through the issuance of a new ITS.
    Since the primary Federal action here--the issuance of the ITS--
would exempt incidental take of ESA-listed species that occur in 
compliance with the ITS, the DEIS focuses on effects to those species 
(both ESA-listed salmon and ESA-listed marine mammals). In addition, 
the DEIS also analyzes the impacts of the SEAK salmon fisheries on non-
ESA-listed salmon, marine mammals, habitat, seabirds, greenhouse gas 
emissions and climate change. The DEIS also analyzes the impacts of the 
alternatives on fishery participants, communities, and Alaska Native 
tribes.
    NMFS is also preparing a separate EIS for the expenditure of 
Federal funding to for the prey increase program for SRKW (88 FR 54301, 
August 10, 2023). For more information about that EIS, see https://www.fisheries.noaa.gov/action/review-prey-increase-program-southern-resident-killer-whales.
    Authority: 16 U.S.C. 1801 et seq.

    Dated: January 23, 2024.
Everett Wayne Baxter,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2024-01606 Filed 1-25-24; 8:45 am]
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