# Endangered and Threatened Species: Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A05-12351

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 28, 2005
- **Citation:** 70 FR 37160

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 040525161-5155-02; I.D. 052104F]
RIN No. 0648-AR93
Endangered and Threatened Species: Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, NOAA's National Marine Fisheries Service (NMFS), are issuing final determinations to list 16 Evolutionarily Significant Units (ESUs) of West Coast salmon (chum,
Oncorhynchus keta
; coho,
O. kisutch
, sockeye,
O. nerka
; Chinook,
O. tshawytscha
; pink,
O. gorbuscha
) under the Endangered Species Act (ESA) of 1973, as amended. We have concluded that four ESUs are endangered, and twelve ESUs are threatened, in California, Oregon, Washington, and Idaho. Fifteen of these ESUs were previously listed as threatened or endangered under the ESA, and one ESU was previously designated as a candidate species. With respect to the Oregon Coast coho ESU and ten
O. mykiss
ESUs, we have found that substantial disagreement regarding the sufficiency or accuracy of the relevant data precludes making final listing determinations at this time, and accordingly we are extending the deadline for making our final determinations for these 11 ESUs for an additional 6 months. The findings regarding the extension of the final listing determination for the Oregon Coast coho ESU and for the ten
O. mykiss
ESUs appear in the Proposed Rules section in today's
Federal Register
issue. The ten
O. mykiss
ESUs were previously listed and remain listed pending final agency action.

Also in this notice, we are finalizing amendments to the ESA 4(d) protective regulations for threatened salmonid ESUs. As part of the proposed listing determinations in June 2004, we proposed changes to these protective regulations to provide the necessary flexibility to ensure that fisheries and artificial propagation programs are managed consistently with the conservation needs of ESA-listed ESUs, and to clarify the existing regulations so that they can be more efficiently and effectively interpreted and followed by all affected parties.

Finally, we are soliciting biological and economic information relevant to designating critical habitat for the Lower Columbia River coho salmon ESU.

DATES:

This final rule is effective August 29, 2005.

ADDRESSES:

Correspondence concerning this final rule may be addressed to Chief, Protected Resources Division, Northwest Region, NMFS, 1201 Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232-1274; or Chief, Protected Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA, 90802-4213.

Information relevant to designating critical habitat for the Lower Columbia River coho ESU may be submitted by: standard mail to Steve Stone, Protected Resources Division, Northwest Region, NMFS, 1201 Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232-1274; e-mail to
LCRcoho_CH.nwr@noaa.gov
; or fax to (503) 230-5441. Please include the identifier “Information RE: Critical Habitat for Lower Columbia River Coho” with any information submitted.

FOR FURTHER INFORMATION CONTACT:

For further information regarding the final listing determinations and the final amendments to the 4(d) protective regulations please contact Scott Rumsey, NMFS, Northwest Region, (503) 872-2791; Craig Wingert, NMFS, Southwest Region, (562) 980-4021; or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401. For further information concerning the information request regarding critical habitat for Lower Columbia River coho salmon, please contact Steve Stone, NMFS, Northwest Region, (503) 231-2317.

SUPPLEMENTARY INFORMATION:

The ESA listing determinations and the amended 4(d) protective regulations for threatened ESUs described in this document are effective August 29, 2005. The take prohibitions applicable to threatened species do not apply to activities specified in an application for a permit or a 4(d) approval for scientific purposes or to enhance the conservation or survival of the species, provided that the application has been received by the Assistant Administrator for Fisheries, NOAA (AA), no later than August 29, 2005. This “grace period” for pending research and enhancement applications will remain in effect until the issuance or denial of authorization, or December 28, 2005, whichever occurs earliest. Additionally, biological and economic information regarding critical habitat for the Lower Columbia River coho ESU must be received no later than 5 p.m. P.S.T. on August 29, 2005 (
see

ADDRESSES
and Information Solicited).

Organization of This Final Rule

This
Federal Register
notice describes the final listing determinations for 16 ESUs of West Coast salmon under the ESA, as well as final amendments to the 4(d) protective regulations for threatened ESUs. The pages that follow summarize the comments and information received in response to the proposed listing determinations and proposed protective regulations (69 FR 33102; June 14, 2004), describe any changes from the proposed listing determinations and proposed protective regulations, and detail the final listing determinations for 16 ESUs and the final protective regulations for threatened ESUs. To assist the reader, the content of this notice is organized as follows:

I. Review of Necessary Background Information.

•
Statutory basis for Listing Species Under the Endangered Species Act.

•
Life History of West Coast Salmon
.

• NMFS'
Past Pacific Salmonid ESA Listings and the Alsea Decision.

•
Initiation of Coast-Wide ESA Status Reviews for 27 ESUs of Pacific Salmonids.

II.
Summary of Comments and Information Received in Response to the Proposed Rule.

• Comments on the Consideration of Artificial Propagation in Listing Determinations.

• Comments on the Consideration of Efforts Being Made to Protect the Species.

• Comments on the Proposed Take Prohibitions and Protective Regulations.

• Comments on ESU-Specific Issues.

III. Summary of Changes from the Proposed Listing Determinations and Proposed Protective Regulations.

IV. Treatment of the Four Listing Determination Steps for Each ESU Under Review.

(1)
Determination of “Species” under the ESA

(2)
Viability Assessments of ESUs
and
Summary of Factors Affecting the Species

(3) Evaluation of
Efforts Being Made to Protect West Coast Salmonids

(4)
Final Listing Determinations
of “threatened,” “endangered,” or “not warranted,” based on the foregoing information

V. Take
Prohibitions and Protective Regulations

VI.
Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA

VII.
Effective Date of the Final Listing Determinations and Protective Regulations

VIII. Summary of agency efforts in designating
Critical Habitat
for listed salmon and
O. mykiss
ESUs, and a summary of
Information Solicited
regarding critical

habitat for the Lower Columbia River coho ESU

IX. Description of the
Classification
, NMFS' compliance with various laws and executive orders with respect to this rulemaking (
e.g.
, National Environmental Policy Act, Regulatory Flexibility Act)

X. Description of amendments to the Code of Federal Regulations (
List of Subjects
). This section itemizes the specific changes to Federal law being made based on the foregoing information:

• Amendments to the list of threatened and endangered species

• Amendments to the protective regulations for threatened West Coast salmonids

Background

Listing Species Under the Endangered Species Act

NMFS is responsible for determining whether species, subspecies, or distinct population segments (DPSs) of Pacific salmon and steelhead are threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. 1531
et seq
). To be considered for listing under the ESA, a group of organisms must constitute a “species,” which is defined in section 3 of the ESA to include “any subspecies of fish or wildlife or plants, and any
distinct population segment
[emphasis added] of any species of vertebrate fish or wildlife which interbreeds when mature.” In this notice, we are issuing final listing determinations for DPSs of Pacific salmon. To qualify as a DPS, a Pacific salmon population must be substantially reproductively isolated from other conspecific populations and represent an important component in the evolutionary legacy of the biological species. A population meeting these criteria is considered to be an ESU (56 FR 58612; November 20, 1991). In our previous listing determinations for Pacific salmonids under the ESA, we have treated an ESU as constituting a DPS, and hence a “species,” under the ESA.

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The statute lists factors that may cause a species to be threatened or endangered (ESA section 4(a)(1)): (a) The present or threatened destruction, modification, or curtailment of its habitat or range; (b) overutilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation; (d) the inadequacy of existing regulatory mechanisms; or (e) other natural or manmade factors affecting its continued existence.

Section 4(b)(1)(A) of the ESA requires NMFS to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made to protect the species. We follow a four-step process in making listing determinations for Pacific salmon: (1) We first determine the ESU or species under listing consideration; (2) we determine the viability of the defined ESU and the factors that have led to its decline; (3) we assess efforts being made to protect the ESU, determining if these efforts adequately mitigate threats to the species; and (4) based on the foregoing steps and the statutory listing factors, we determine if the ESU is threatened or endangered, or does not warrant listing under the ESA.

Life History of West Coast Salmon

The specific life-history characteristics of the subject species are summarized in the proposed listing determinations notice (69 FR 33102; June 14, 2004). These species addressed in this notice each exhibit anadromy, meaning that adults migrate from the ocean to spawn in freshwater lakes and streams where their offspring hatch and rear prior to migrating to the ocean to forage until maturity. The migration and spawning times vary considerably among and within species and populations. At spawning, adults pair to lay and fertilize thousands of eggs in freshwater gravel nests or “redds” excavated by females. Depending on lake/stream 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. Depending on the species and location, juveniles may spend from a few hours to several years 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 in most species. En route to the ocean the juveniles may spend from a few days to several weeks in the estuary, depending on the species. The highly productive estuarine environment is an important feeding and acclimation area for juveniles preparing to enter marine waters.

Juveniles and subadults typically spend from 1 to 5 years foraging over thousands of miles in the North Pacific Ocean before returning to freshwater to spawn. Some species, such as coho and Chinook salmon, have precocious life-history types (primarily male fish) that mature and spawn after only several months in the ocean. Spawning migrations known as “runs” occur throughout the year, varying in time by species and location. Most adult fish return or “home” with great fidelity to spawn in their natal stream, although some do stray to non-natal streams. Salmon species die after spawning.

Past Pacific Salmonid ESA Listings and the Alsea Decision

Pacific salmon ESUs in California and the Pacific Northwest have suffered broad declines over the past hundred years. Since 1991, we have conducted ESA status reviews of six species of Pacific salmonids in California, Oregon, Washington, and Idaho, identifying 52 ESUs, with 25 ESUs currently listed as threatened or endangered (see the Proposed Rule, 69 FR 33102; June 14, 2004, for a detailed summary of previous listing actions for West Coast salmonid ESUs). In past status reviews, we based our extinction risk assessments on whether the naturally spawned fish in an ESU are self-sustaining in their natural ecosystem over the long term. We listed as “endangered” those ESUs whose naturally spawned populations were found to have a present high risk of extinction, and listed as “threatened” those ESUs whose naturally spawned populations were found likely to become endangered in the foreseeable future.

In past status reviews we did not explicitly consider the contribution of hatchery fish to the overall viability of an ESU, or whether the presence of hatchery fish within the ESU might have the potential for reducing the risk of extinction of the ESU or the likelihood that the ESU would become endangered in the foreseeable future. We generally considered artificial propagation as a threat to the long-term persistence of the naturally spawned populations within an ESU. Under a 1993 Interim Policy on the consideration of artificially propagated Pacific salmon and steelhead under the ESA (58 FR 17573; April 5, 1993), if it was determined that an ESU warranted listing, we then reviewed the associated hatchery stocks to determine if they were part of the ESU. We did not include hatchery stocks in an ESU if: (1) Information indicated that the hatchery stock was of a different genetic lineage than the listed natural populations; (2) information indicated that hatchery practices had produced appreciable

changes in the ecological and life-history characteristics of the hatchery stock and these traits were believed to have a genetic basis; or (3) there was substantial uncertainty regarding the relationship between hatchery fish and the existing natural population(s). The Interim Policy provided that hatchery salmon and steelhead found to be part of an ESU would not be listed under the ESA unless they were found to be essential for the ESU's recovery (
i.e.
, if we determined that the hatchery stock contained a substantial portion of the genetic diversity remaining in the ESU). The result of the Interim Policy was that a listing determination for an ESU depended solely upon the relative health of the natural populations in an ESU, and that most hatchery stocks determined to be part of an ESU were excluded from any listing of the ESU.

Subsequently, in
Alsea Valley Alliance
v.
Evans
, 161 F. Supp. 2d 1154 (D. Or. 2001)(
Alsea
), the U.S. District Court in Eugene, Oregon, set aside our 1998 ESA listing of Oregon Coast coho salmon (
O. kisutch
) because it impermissibly excluded hatchery fish within the ESU from listing. The court ruled that the ESA does not allow listing a subset of a DPS and that, since we had found an ESU constitutes a DPS, we had improperly excluded stocks from the listing that we had determined were part of the ESU. Although the
Alsea
ruling affected only one ESU, the interpretive issue raised by the ruling called into question the validity of the Interim Policy implemented in nearly all of our Pacific salmonid listing determinations.

Initiation of Coast-Wide ESA Status Reviews

Following the
Alsea
ruling, NMFS received a total of nine petitions seeking to delist, or to redefine and list, 17 listed salmonid ESUs (see the Proposed Rule for a summary of the petitions; 69 FR 33102; June 14, 2004). We determined that seven of the petitions presented substantial scientific and commercial information that the petitioned actions may be warranted for 16 of the subject ESUs (67 FR 6215, February 11, 2002; 67 FR 40679, June 13, 2002; 67 FR 48601, July 25, 2002). As part of our response to the ESA interpretive issues raised by the
Alsea
ruling, we announced that we would revise the 1993 Interim Policy, and we elected to initiate status reviews for 11 ESUs in addition to the 16 ESUs for which we had accepted delisting/listing petitions (67 FR 6215, February 11, 2002; 67 FR 79898, December 31, 2002).

NMFS' Pacific Salmonid Biological Review Team (BRT) (an expert panel of scientists from several Federal agencies including NMFS, FWS, and the U.S. Geological Survey) reviewed the viability and extinction risk of naturally spawning populations in the 27 ESUs, 16 of which are the subject of this proposed rule (NMFS, 2003b). The BRT evaluated the risk of extinction based on the performance of the naturally spawning populations in each of the ESUs under the assumption that present conditions will continue into the future. The BRT did not explicitly consider artificial propagation in its evaluations.

The BRT assessed ESU-level extinction risk (as indicated by the viability of the naturally spawning populations) at two levels: First, at the individual population level, then at the overall ESU level. The BRT used factors for “Viable Salmonid Populations” (VSP; McElhany
et al.
, 2000) to guide its risk assessments. The VSP factors were developed to provide a consistent and logical reference for making viability determinations and are based on a review and synthesis of the conservation biology and salmon literature. Individual populations were evaluated according to the four VSP factors: abundance, productivity, spatial structure (including connectivity), and diversity. These four parameters are universal indicators of species' viability, and individually and collectively function as reasonable predictors of extinction risk. After reviewing all relevant biological information for the populations in a particular ESU, the BRT ascribed an ESU-level risk score for each of the four VSP factors.

The BRT described and assessed ESU-level risk for each of the VSP factors and the ESU-level extinction risk based on the performance of the naturally spawning populations. The BRT's assessment of ESU-level extinction risk uses categories that correspond to the definitions of endangered species and threatened species, respectively, in the ESA: in danger of extinction throughout all or a significant portion of its range, likely to become endangered within the foreseeable future throughout all or a significant portion of its range, or neither. In general, these evaluations did not include consideration of the potential contribution of hatchery stocks to the viability of ESUs, or evaluate efforts being made to protect the species. Therefore, the BRT's findings are not recommendations regarding listing. The BRT's ESU-level extinction risk assessment reflects the BRT's professional scientific judgment, guided by the analysis of the VSP factors, as well as by expectations about the likely interactions among the individual VSP factors. For example, a single VSP factor with a “High Risk” score might be sufficient to result in an overall extinction risk assessment of “in danger of extinction,” but a combination of several VSP factors with more moderate risk scores could also lead to the same assessment, or a finding that the ESU is “likely to become endangered.”

To assist in determining the ESU membership of individual hatchery stocks, a Salmon and Steelhead Hatchery Assessment Group (SSHAG), composed of NMFS scientists from the Northwest and Southwest Fisheries Science Centers, evaluated the best available information describing the relationships between hatchery stocks and natural ESA-listed salmon and anadromous
O. mykiss
populations in the Pacific Northwest and California. The SSHAG produced a report, entitled “Hatchery Broodstock Summaries and Assessments for Chum, Coho, and Chinook Salmon and Steelhead Stocks within Evolutionarily Significant Units Listed under the Endangered Species Act” (NMFS, 2003a), describing the relatedness of each hatchery stock to the natural component of an ESU on the basis of stock origin and the degree of known or inferred genetic divergence between the hatchery stock and the local natural population(s). We used the information presented in the SSHAG Report to determine the ESU membership of those hatchery stocks within the historical geographic range of a given ESU. Our assessment of individual hatchery stocks and our findings regarding their ESU membership are detailed in the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b).

The assessment of the effects of ESU hatchery programs on ESU viability and extinction risk is also presented in the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b). The Report evaluates the effects of hatchery programs on the likelihood of extinction of an ESU on the basis of the four VSP factors (
i.e.
, abundance, productivity, spatial structure, and diversity) and how artificial propagation efforts within the ESU affect those factors. In April 2004, we convened an Artificial Propagation Evaluation Workshop of Federal scientists and managers with expertise in salmonid artificial propagation. The Artificial Propagation Evaluation Workshop reviewed the BRT's findings (NMFS, 2003a), evaluated the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and assessed the overall extinction risk of ESUs with associated hatchery stocks. The discussions and conclusions of the

Artificial Propagation Evaluation Workshop are detailed in a workshop report (NMFS, 2004c). In this document, the extinction risk of an ESU “in-total” refers to the assessed level of extinction risk after considering the contributions to viability by all components of the ESU (hatchery origin, natural origin, anadromous, and resident).

On June 3, 2004, we published in the
Federal Register
a proposed policy for the consideration of hatchery-origin fish in ESA listing determinations (Hatchery Listing Policy; 69 FR 31354). On June 14, 2004, we proposed listing determinations for the 27 ESUs under review, proposing that four ESUs be listed as threatened and 23 ESUs be listed as endangered (69 FR 33102). We proposed maintaining the existing ESA listing status for 22 ESUs: Two sockeye ESUs (the endangered Snake River and threatened Ozette Lake sockeye ESUs); eight Chinook ESUs (the endangered Upper Columbia River spring-run ESU, and the threatened Central Valley spring-run, California Coastal, Upper Willamette River, Lower Columbia River, Puget Sound, Snake River fall-run, and Snake River spring/summer-run Chinook ESUs); one coho ESU (the threatened Southern Oregon/Northern California Coast coho ESU); two chum ESUs (the threatened Columbia River and Hood Canal summer-run chum ESUs); and nine
O. mykiss
ESUs (the endangered Southern California
O. mykiss
ESU, and the threatened South-Central California Coast, Central California Coast, California Central Valley, Northern California, Upper Willamette River, Lower Columbia River, Middle Columbia River, and Snake River Basin
O. mykiss
ESUs). We proposed revising the status of three ESA-listed ESUs: The endangered Sacramento River winter-run Chinook and Upper Columbia River
O. mykiss
ESUs were proposed for threatened status; and the threatened Central California Coast coho ESU was proposed for endangered status. Finally, we proposed that two ESUs designated as candidate species be listed as threatened: the Oregon Coast coho and Lower Columbia River coho ESUs. Also as part of the proposed listing determinations, we proposed amending the section 4(d) protective regulations for threatened ESUs to: Exclude listed hatchery fish marked by a clipped adipose fin and resident fish from the ESA take prohibition; and simplify existing 4(d) protective regulations so that the same set of limits apply to all threatened ESUs.

Summary of Comments and Information Received in Response to the Proposed Rule

With the publication of the proposed listing determinations for 27 ESUs we announced a 90-day public comment period extending through September 13, 2004. In
Federal Register
notices published on August 31, 2004 (69 FR 53093), September 9, 2004 (69 FR 54637), and October 8, 2004 (69 FR 61347), we extended the public comment period for the proposed policy through November 12, 2004. The public comment period for the proposed listing determinations was open for 151 days. We held 14 public hearings (at eight locations in the Pacific Northwest, and six locations in California) to provide additional opportunities and formats to receive public input (69 FR 53039, August 31, 2004; 69 FR 54620, September 9, 2004; 69 FR 61347, October 8, 2004). Additionally, pursuant to the requirements of the National Environmental Policy Act (NEPA) of 1969, we conducted an Environmental Assessment (EA) analyzing the proposed amendments to the 4(d) protective regulations for threatened salmonids. As part of the proposed listing determinations and the proposed amendments to the 4(d) protective regulations, we announced that a draft of the EA was available from NMFS upon request (69 FR at 33172; June 14, 2004). Additionally, on November 15, 2004, we published a notice of availability in the
Federal Register
soliciting comment on the draft EA for an additional 30 days (69 FR 65582).

A joint NMFS/FWS policy requires us to solicit independent expert review from at least three qualified specialists, concurrent with the public comment period (59 FR 34270; July 1, 1994). We solicited technical review of the proposed listing determinations from over 50 independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. In December 2004 the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input. The OMB Peer Review Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to provide public oversight on the quality of agency information, analyses, and regulatory activities, and applies to information disseminated on or after June 16, 2005. The independent expert review under the joint NMFS/FWS peer review policy, and the comments received from several academic societies and expert advisory panels, collectively satisfy the requirements of the OMB Peer Review Bulletin (NMFS, 2005a).

In response to the requests for information and comments on the proposed hatchery listing policy, the proposed listing determinations, and the proposed amendments to the 4(d) protective regulations, we received over 28,250 comments by fax, standard mail, and e-mail. The majority of the comments received were from interested individuals who submitted form letters or form e-mails. Comments were also submitted by state and tribal natural resource agencies, fishing groups, environmental organizations, home builder associations, academic and professional societies, expert advisory panels (including NMFS' Recovery Science Review Panel, the Independent Science Advisory Board, and the State of Oregon's Independent Multidisciplinary Science Team), farming groups, irrigation groups, and individuals with expertise in Pacific salmonids. The majority of respondents focused on the proposed Hatchery Listing Policy, although many respondents also included comments relevant to the proposed listing determinations and the proposed amendments to the 4(d) protective regulations. The public comments were generally critical of the proposed hatchery listing policy, for a variety of reasons, but were generally favorable of the proposed listing determinations and the manner in which the proposed hatchery listing policy was implemented. Those few comments that addressed the proposed amendments to the 4(d) protective regulations expressed concerns about the practical implications of the proposed changes on the management of hatchery programs as well as on tribal, recreational, and commercial salmon and steelhead fisheries.

We also received comments from four of the independent experts from whom we had requested technical review of the proposed listing determinations. The independent expert reviews were generally supportive of the scientific principles underlying the application of the proposed Hatchery Listing Policy in the proposed listing determinations. However, the reviewers noted several concerns with the proposed Hatchery Listing Policy including: Vague and imprecise policy language; an apparent de-emphasis of the importance of naturally spawned self-sustaining populations for the conservation and recovery of salmonid ESUs, and the goal

of the ESA to conserve the ecosystems upon which they depend; accumulating long-term adverse impacts of artificial propagation due to unavoidable artificial selection and domestication in the hatchery environment; and the lack of scientific evidence that artificial propagation can contribute to the productivity and conservation of viable natural populations over the long term. Two of the reviewers felt that hatchery fish are inherently different from wild fish and should not be included in ESUs, and were concerned that the inclusion of hatchery fish in ESUs would jeopardize the conservation and recovery of native salmonid populations in their natural ecosystems. The other two reviewers were supportive of the scientific basis for including hatchery fish in ESUs, but felt that the policy did not appropriately emphasize that the conservation and recovery of listed ESUs depends upon the viability of wild populations and natural ecosystems over the long term.

There was substantial overlap between the comments from the independent expert reviewers, the independent scientific panels and academic societies, and the substantive public comments. Some of the comments received were not directly pertinent to the proposed listing determinations or the proposed amendments to the 4(d) protective regulations. We will consider and address comments relating to other determinations (for example, the proposed Hatchery Listing Policy (69 FR 31354, June 3, 2004), the proposed critical habitat designations for 20 West Coast salmonid ESUs (69 FR 71880, December 10, 2004; 69 FR 74572, December 14, 2004), and the remanded biological opinion on the Federal Columbia River Power System (see
http://www.salmonrecovery.gov/R_biop_final.shtml
)) in the context of those determinations. With respect to comments received on the Hatchery Listing Policy, the summary of and response to comments below is confined to the implementation of the policy in delineating the ESUs for consideration, and determining their ESA listing status. The reader is referred to the final Hatchery Listing Policy elsewhere in this edition of the
Federal Register
for a summary of the comments received regarding the legal and policy interpretations articulated in the policy.

The summary of comments and our responses below are organized into four general categories: (1) General comments on the consideration of artificial propagation in the proposed listing determinations; (2) general comments on the consideration of efforts being made to protect the species; (3) comments on the proposed amendments to the protective regulations; and (4) comments on ESU-specific issues (for example, the ESU membership of specific hatchery stocks, level of extinction risk assessed for an ESU, and the consideration of specific conservation efforts being made to protect and conserve an ESU).

General Comments on the Consideration of Artificial Propagation

Issue 1:
Several commenters felt that our implementation of the Hatchery Listing Policy's threshold for including hatchery stocks in a given ESU was inconsistent among hatchery programs both within and among ESUs. The commenters felt that in most circumstances quantitative information on the genetic differentiation of a specific hatchery stock relative to the local natural population(s) is not available. The commenters argued that, given the poor availability of genetic data, determinations of whether a given hatchery stock is part of an ESU are ambiguous, highly subjective, and arbitrary.

Response:
We agree with the commenters that in many cases empirical genetic data are not available to quantitatively assess the level of genetic differentiation and reproductive isolation of a hatchery stock relative to the local natural population(s) in an ESU. The ESA requires that we review the status of the species based upon the “best available” scientific and commercial information, and in many instances the agency must rely on qualitative analyses of surrogate information when quantitative genetic data are not available to assist in determining the “species” under consideration. For this rulemaking, in lieu of empirical genetic data, we relied on a number of strong biological indicators to inform a qualitative assessment of the level of reproductive isolation and evolutionary divergence, such as stock isolation, selection of run timing, the magnitude and regularity of incorporating natural broodstock, the incorporation of out-of-basin or out-of-ESU eggs or fish, mating protocols, behavioral and life-history traits,
etc.

Issue 2:
One commenter disapproved of our approach of evaluating the ESU membership of hatchery fish in terms of individual hatchery programs. The commenter recommended that ESU membership be based on broodstock source, recognizing that a given broodstock may be propagated at several hatchery facilities. The commenter felt that our approach of evaluating hatchery programs confused three important issues: the broodstock source, history, and genetic management of the hatchery fish; the management practices of the hatchery program producing the hatchery fish (such as the timing and location of releasing hatchery fish); and the life-history characteristics of the local natural population where a hatchery stock is being released. The commenter was concerned that evaluating and listing hatchery fish by hatchery program could erroneously result in one group of hatchery fish from a given broodstock source being included in an ESU, and another group of hatchery fish from the same broodstock source not being included in the ESU.

Response:
The commenter is correct that our approach could, and did, result in hatchery programs being excluded from an ESU despite having been derived from the same broodstock lineage as other hatchery programs included in the ESU. However, we feel it would be inappropriate to determine the ESU membership of hatchery fish solely on the basis of broodstock lineage to the exclusion of a case-by-case analysis of the past and present practices of hatchery programs producing fish within the geographic range of an ESU. The commenter correctly points out that individual hatchery programs may differ in their broodstock lineage, hatchery practices, and the specific ecological conditions into which the hatchery fish are released. The broodstock used represents the raw genetic resources brought into a hatchery program, and provides one useful predictor of ESU membership. How these raw genetic resources are managed and the specific environmental and ecological conditions into which the hatchery fish are released are also key determinants of whether a group of hatchery fish is part of an ESU. Critical considerations in evaluating the relationship of hatchery fish to an ESU include whether it reflects: (1) The level of reproductive isolation characteristic of the natural populations in the ESU; and (2) the ecological, life-history, and genetic diversity that compose the ESU's evolutionary legacy. Information regarding the origin, isolation, and broodstock source and mating protocols of a hatchery program help determine its level of reproductive isolation from the local natural population(s) in an ESU. Information regarding the behavioral and life-history traits of the hatchery fish produced by a program relative to the locally adapted natural populations help inform evaluations of whether the hatchery fish are

representative of the ESU's evolutionary legacy. We feel that it is appropriate to evaluate the ESU membership of hatchery fish with respect to the specific hatchery programs producing them.

Issue 3:
Many commenters felt that hatchery-origin fish should not be included in ESUs. The commenters discussed scientific studies demonstrating that hatchery-origin fish differ from naturally-spawned fish in physical, physiological, behavioral, reproductive and genetic traits. Commenters argued that hatchery-origin and natural-origin fish should not be included in the same ESU because of these differences.

Response:
We do not agree that hatchery-origin fish should be universally excluded from ESUs. As articulated in the final Hatchery Listing Policy in this edition of the
Federal Register
, important genetic resources for the conservation and recovery of an ESU can reside in fish spawned in a hatchery as well as in fish spawned in the wild. The established practice of incorporating local natural-origin fish into hatchery broodstock can result in hatchery stocks and natural populations that are not reproductively isolated and that share the same genetic and ecological evolutionary legacy. Under the final Hatchery Listing Policy we determine the ESU membership of hatchery fish by conducting a case-by-case evaluation of the relationship of individual hatchery stocks to the local natural population(s) on the basis of: Stock origin and the degree of known or inferred genetic divergence between the hatchery stock and the local natural population(s); and the similarity of hatchery stocks to natural populations in ecological and life-history traits. Although certain hatchery programs will be determined to be reproductively isolated and not representative of the evolutionary legacy of an ESU (and hence not part of the ESU), we do not believe that such a conclusion is universally warranted for all hatchery stocks. Many hatchery stocks are reproductively integrated with natural populations in an ESU and continue to exhibit the local adaptations composing the ESU's ecological and genetic diversity. We recognize that artificial selection in the hatchery environment may be unavoidable, that a well-managed hatchery stock could eventually diverge from the evolutionary lineage of an ESU, and that a poorly managed hatchery stock could quickly diverge from the evolutionary lineage of an ESU. However, the potential for divergence is not adequate justification for the universal exclusion of hatchery fish from an ESU. Consistent with the ESU policy, a hatchery program should be excluded from an ESU if the hatchery stock exhibits genetic, ecological or life-history traits indicating that it has diverged from the evolutionary legacy of the ESU.

Issue 4:
Many commenters felt that hatchery-origin fish should be considered only as a threat to the persistence of Pacific salmon and
O. mykiss
ESUs. The commenters cited scientific studies indicating that artificial selection in hatcheries can result in diminished reproductive fitness in hatchery-origin fish in only one generation. Commenters also noted scientific studies describing negative ecological, reproductive, and genetic effects of hatchery stocks on natural populations. The commenters were concerned that including hatchery fish in assessments of extinction risk reduces the importance of conserving self-sustaining populations in the wild, and inappropriately equates naturally produced fish and fish produced with ease in a hatchery.

Response:
We do not agree that all hatchery programs, and the hatchery fish they produce, can be universally regarded as threats to salmon and
O. mykiss
ESUs. There are so many different ways in which hatchery-origin fish interact with natural populations and the environment that there can be no uniform conclusion about the potential contribution of hatchery-origin fish to the survival of an ESU. As described in the final Hatchery Listing Policy elsewhere in this edition of the
Federal Register
, the consideration of hatchery-origin fish in evaluating the level of extinction risk of an ESU requires a case-by-case analysis of the risks, benefits, and uncertainties of specific hatchery stocks within the geographical area of an ESU. The risks and benefits of artificial propagation to the survival of an ESU over the long term are highly uncertain. The presence of well distributed self-sustaining natural populations that are ecologically and genetically diverse provides the most certain predictor that an ESU is not likely to become endangered in the foreseeable future. The presence of carefully designed and operated hatchery programs, under certain circumstances, may mitigate the risk of extirpation for severely depressed populations in the short term, and thereby reduce an ESU's immediate risk of extinction. Whether the contributions of a hatchery program or group of hatchery programs will warrant an ESU being listed as “threatened” rather than “endangered” will depend upon the specific demographic risks facing natural populations within the ESU, the availability and condition of the surrounding natural habitat, as well as the factors that led to the ESU's decline and current threats limiting the ESU's recovery.

Issue 5:
A few commenters felt that extinction risk should be evaluated based on the total abundance of fish within the defined ESU without discriminating between fish of hatchery or natural origin. These commenters contended that the District Court in
Alsea
ruled that once an ESU is defined, risk determinations should not discriminate among its components. The commenters described the risk of extinction as the chance that there will be no living representatives of the species, and that such a consideration must not be biased toward a specific means of production (artificial or natural).

Response:
The
Alsea
ruling does not require any particular approach to assessing extinction risk. The court ruled that if it is determined that a DPS warrants listing, all members of the defined species must be included in the listing. The court did not rule on how the agency should determine whether the species is in danger of extinction or likely to become so in the foreseeable future. The commenters assert that the viability of an ESU is determined by the total numbers of fish. The risk of extinction of an ESU depends not just on the abundance of fish, but also on the productivity, spatial distribution, and diversity of its component populations (Viable Salmonid Populations (VSP) factors; McElhany
et al.
, 2000; Ruckelshaus
et al.
, 2002). In addition to having sufficient abundance, viable ESUs and populations have sufficient productivity, diversity, and a spatial distribution to survive environmental variation and natural and human catastrophes. The commenters also assume that hatchery managers will continue to produce the same numbers of the same stock and quality of fish with the same success as in the past. In many cases, such assumptions are not warranted.

Issue 6:
One commenter noted that the proposed ESU delineations included “naturally spawned fish” within a given geographical area, and was concerned that as defined the ESUs might be misinterpreted to include the naturally spawned progeny of hatchery fish not included in the ESU. The commenter was concerned that the naturally-spawned progeny of these out-of-ESU hatchery fish would inadvertently be afforded the protections of the ESA, potentially constraining conservation measures intended to reduce the

negative impacts of these fish on listed local natural populations.

Response:
The final rule defines ESUs as naturally spawned fish originating from a defined geographic area, plus hatchery fish from certain enumerated hatchery programs. It is possible that within any geographic area there may be out-of-ESU hatchery strays spawning with other out-of-ESU hatchery strays to produce progeny that biologically would not be considered part of the ESU. As a practical matter, however, it is seldom possible to distinguish the progeny of these matings from the progeny of within-ESU natural spawners, without elaborate (and potentially inconclusive) tests. Accordingly, we have defined the ESUs to make the listings unambiguous and the ESA protections easily enforceable.

Of the 16 ESUs addressed in this final rule, four ESUs have associated out-of-ESU hatchery programs: the Lower Columbia River Chinook, Upper Columbia River spring-run Chinook, Puget Sound Chinook, and Snake River spring/summer-run Chinook ESUs. In some instances the progeny of out-of-ESU hatchery fish may be distinguished by distinct patterns of habitat use, spawning location, run timing, or other means. In such a case we may determine that protection of those fish is not necessary for conservation of the ESU and approve actions that result in take, through sections 4(d), 7(a)(2), 10(a)(1)(A) or 10(a)(1)(B) of the ESA, as appropriate. NMFS will also use these statutory authorities to minimize harmful impacts to the listed ESUs from out-of-ESU hatchery fish spawning in the wild.

General Comments on the Consideration of Protective Efforts

Issue 7:
Several commenters criticized the evaluation of efforts being made to protect the species in the proposed listing determinations (see 69 FR at 33142 through 33157; June 14, 2004). The commenters argued that the joint NMFS/FWS “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE”; 68 FR 15100; March 28, 2003) does not apply to currently listed species. In addition to this criticism the commenters felt that our treatment of protective efforts in the proposed listing determinations failed to address the criteria required under PECE for evaluating the certainty of implementation and effectiveness of protective efforts. (The commenters also provided criticisms specific to the consideration of protective efforts for the Sacramento River winter-run Chinook ESU, see Issue 13 in the “Comments on ESU-specific Issues” section, below).

Response:
Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations “solely on the basis of the best scientific and commercial data available * * * after conducting a review of the status of the species
and after taking into account those efforts, if any, being made
* * *
to protect such species
” (emphasis added). When making listing determinations, we therefore evaluate efforts being made to protect the species to determine if those measures reduce the threats facing an ESU and ameliorate its assessed level of extinction risk. In judging the efficacy of protective efforts, we rely on the guidance provided in PECE. PECE provides direction for the consideration of protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or have been implemented but have not yet demonstrated effectiveness. The policy articulates 15 criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determination of whether a species should be listed as threatened or endangered. Evaluations of the certainty an effort will be implemented include whether: The necessary resources (
e.g.
, funding and staffing) are available; the requisite agreements have been formalized such that the necessary authority and regulatory mechanisms are in place; there is a schedule for completion and evaluation of the stated objectives; and (for voluntary efforts) the necessary incentives are in place to ensure adequate participation. The evaluation of the certainty of an effort's effectiveness is made on the basis of whether the effort or plan: establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; and is likely to improve the species' viability at the time of the listing determination.

The commenters are correct that PECE does not explicitly apply to changing a species' listing status from endangered to threatened, or to delisting actions. NMFS and FWS noted that recovery planning is the appropriate vehicle to provide case-by-case guidance on the actions necessary to delist or change a species' listing status. The agencies left open whether specific policy guidance would be developed to instruct the consideration of conservation efforts for the purposes of changing a species' listing status or delisting a species, and such guidance has not yet been developed. Recovery planning efforts for the listed ESUs under review have not progressed to the point that they can provide guidance on the specific actions that would inform a decision to delist or change an ESU's listing status. In lieu of further policy guidance, PECE provides a useful and appropriate general framework to guide consistent and predictable evaluations of protective efforts.

We agree with the commenters that the regional summary of protective efforts provided as part of the proposed listing determinations does not provide a detailed treatment of the fifteen criteria articulated in PECE. However, only one of the proposed listings for the 16 ESUs addressed in this notice relied on the determination that protective efforts ameliorated risks to an ESU's abundance, productivity, spatial structure, and diversity as a basis for proposing that a previously endangered species be listed as threatened (the Sacramento River winter-run Chinook ESU). (The final listing determination for the Sacramento River winter-run Chinook ESU does not rely on an evaluation of protective efforts.) Our review of protective efforts provided in the proposed listing determinations concluded that the efforts do not as yet individually or collectively provide sufficient certainty of implementation and effectiveness to alter the assessed level of extinction risk for the other ESUs under review. A detailed documentation of the fifteen criteria articulated in PECE is not necessary unless we rely on protective efforts to overcome our assessment of extinction risk and the five factors identified in ESA section 4(a)(1).

Comments on Protective Regulations

Issue 8:
Several commenters believe the ESA does not allow us to apply different levels of protections to hatchery and natural-origin fish in an ESU by not applying the take prohibitions to threatened hatchery fish that have had their adipose fin removed prior to release into the wild. The commenters argue that the
Alsea
ruling found that all fish included in an ESU must be protected equally if it is found that the ESU in-total warrants listing.

Response 14:
The
Alsea
ruling does not require us to implement protective regulations equally among components of threatened ESUs. The
Alsea
ruling found that the ESA does not allow us to

list a subset of a DPS or ESU, and that all components of an ESU (natural populations, hatchery stocks, and resident populations) must be included in a listing if it is determined that an ESU warrants listing as threatened or endangered.

The section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply to species listed as endangered. In the case of threatened species, ESA Section 4(d) leaves it to the Secretary's discretion whether and to what extent to promulgate protective regulations. Section 4(d) of the ESA states that “[w]henever a species is listed as a threatened species * * *, the Secretary shall issue such regulations
as he deems necessary and advisable
to provide for the conservation of such species' [emphasis added]. “The Secretary may * * * prohibit with respect to any threatened species any act prohibited under section 9(a)(1) * * * with respect to endangered species.” This gives the Secretary flexibility under section 4(d) to tailor protective regulations that appropriately reflect the biological condition of each threatened ESU and the intended role of listed hatchery fish.

We find that it is necessary and advisable for conservation of the ESUs to prohibit take only of natural-origin fish and hatchery fish with the adipose fin left intact. The majority of hatchery programs produce fish for harvest rather than for conservation. Protecting those fish intended for harvest is not necessary for the conservation of the ESU. To the contrary, if too many hatchery fish are allowed to spawn naturally, it may pose ecological and genetic risks to the natural populations in the ESU. Removal of some hatchery fish before they are allowed to spawn may thus be necessary for the conservation of some ESUs. This concern is discussed in more detail in the final Hatchery Listing Policy elsewhere in this edition of the
Federal Register
.

Hatchery production that is surplus to conservation needs may thus create population pressures that cannot be relieved except through harvest of the surplus. An alternative approach to conservation would be to simply produce fewer hatchery fish. While reducing hatchery production might be another option for addressing this threat, the hatchery production itself is in many cases important for redressing lost treaty harvest opportunities (as well as meeting other societal values). Allowing the continued production of hatchery fish for harvest, and not prohibiting the take of listed marked hatchery fish, balances the conservation needs of listed ESUs against other Federal obligations.

Issue 9:
Several commenters were concerned that excluding threatened hatchery fish with a clipped adipose fin (hereafter, “ad-clipped”) from 4(d) protections would be perceived by managers as strong pressure to expand the use of mark-selective fisheries. (A “mark-selective” fishery is one in which anglers can retain only ad-clipped hatchery fish, while any unmarked fish that are caught must be released. Mark-selective fisheries are intended to protect the weaker stock(s) in a mixed-stock fishery, while allowing for harvest opportunities on stronger stocks. Mass-marking by clipping the adipose fins of hatchery fish that are intended for harvest is used to provide an easily distinguished visual cue for anglers). Some of these commenters suggested an alternative would be to prohibit the take of “naturally spawned fish,” and fish from specified conservation hatcheries.

Commenters also noted that many ad-clipped hatchery fish are released from conservation programs for recovery purposes and thus merit take prohibitions. The commenters were concerned that the proposed 4(d) protective regulations would require conservation hatchery managers to release hatchery fish with their adipose fins intact so that the take prohibitions would apply. The commenters argued that this would force hatchery managers to use alternative marking methods that are more expensive, more difficult to implement, and less effective.

Response:
The amended prohibitions do not mandate that listed hatchery fish be ad-clipped, nor do they mandate the use of mark-selective fisheries. State and tribal hatchery and fishery managers use an array of management tools depending on the needs of individual salmonid populations and resource use objectives. Among these tools are mass marking and mark-selective fisheries. Although the amended protective regulations do not require it, ad-clipping may be the best strategy to achieve their goals for some hatchery programs. These ad-clipped hatchery fish can be harvested in fisheries that have appropriate ESA authorization, including, but not limited to, mark-selective fisheries. However, the amended 4(d) protective regulations do not mandate any particular management strategy provided the strategy is consistent with the conservation and recovery objectives of listed ESUs. An alternative approach would have been to prohibit the take of naturally spawned fish and fish from specific conservation hatcheries. We have instead chosen to rely on the adipose-fin clip because it provides a readily identifiable and enforceable feature for distinguishing those fish protected by the ESA take prohibitions.

The commenters are correct that hatchery fish intended for conservation purposes will not be afforded ESA protection against take if they are released with a clipped adipose fin. Managers of conservation hatchery programs may choose to use alternative marking methods to assist research and monitoring efforts such that the take prohibitions apply to the fish they produce. We acknowledge that the prospect of listing more than 130 West Coast hatchery programs presents challenges to hatchery and fishery management in California, Oregon, Washington, and Idaho. We believe that exempting ad-clipped fish from the take prohibitions is the preferable regulatory option, as compared to the alternative of prohibiting take of all listed hatchery fish. Allowing for the take of listed ad-clipped hatchery fish provides a clearly enforceable distinction for when take prohibitions apply, and provides additional flexibility to more effectively manage fisheries, control the number and proportion of hatchery fish spawning in the wild, and minimize potentially adverse impacts of hatchery fish on natural populations. Although the proposed approach provides management flexibility, we recognize that it may present some challenges. We will continue to work with state and tribal managers to address any challenges in a way that minimizes adverse impacts on affected parties, while achieving conservation and resource use objectives for listed ESUs.

Issue 10:
A few commenters felt that NMFS should extend the “grace period” for applications for coverage under the 4(d) limits to: Apply to applications for all limits rather than just for scientific research and enhancement activities; allow for more than 60 days to submit an application; and allow for more than 6 months to obtain approval under a 4(d) limit. The commenters felt sufficient time must be allowed for entities to prepare and process applications for 4(d) coverage. The commenters were concerned that NMFS does not have the necessary resources to process applications and issue authorizations within 6 months, given the likely high volume of new 4(d) applications and the significant administrative burden associated with processing and authorizing 4(d) applications. The commenters stressed that any delays in issuing authorizations under 4(d) would disrupt important fisheries and would also risk impeding progress on important recovery efforts.

Response:
We are concerned about the potential for disruption of ongoing scientific research, monitoring, and conservation activities, especially during the coming summer/fall field seasons. Consistent with the previously promulgated 4(d) protective regulations, the amended regulations finalized in this notice include a “temporary” limit or 6-month grace period for ongoing scientific research and enhancement activities provided a permit application is received by NMFS within 60 days of this notice (see
DATES
, above). Applicants will be subject to the take prohibitions if their permit application is denied, rejected as insufficient, or the 6-month grace period expires, whichever occurs earliest.

We do not feel that a similar 6-month grace period is warranted for limits addressing other activities affecting threatened ESUs. In this notice we are amending existing 4(d) protective regulations for threatened ESUs that are already listed under the ESA (except for the Lower Columbia River coho ESU, which is a new threatened listing). Thus, activities affecting the subject ESUs already have ESA coverage through the existing 4(d) protective regulations, through section 10 permits, as a result of section 7 consultation, or are in the process of obtaining such authorization. The amended 4(d) protective regulations will become effective within 60 days of the publication of this notice (see
DATES
, above). We believe that the grace period allows sufficient time to amend existing ESA authorizations consistent with the revised 4(d) protective regulations. Some activities will not need ESA coverage immediately after the amended protective regulations go into effect because the actions do not affect listed species. We will work with regional co-managers to prioritize activities and programs on the basis of how urgently each needs ESA coverage.

We have anticipated that processing new 4(d) applications submitted in response to the amended 4(d) protective regulations will increase agency workload. As a result, we are evaluating our resource needs and are fully committed to meeting future program demands. We encourage entities to work together in developing plans for 4(d) approval that cover wide geographic scales and multiple activities, thus reducing the number of individual programs that need to be reviewed. While enforcement may be initiated against activities that take protected salmonids, our clear preference is to work with persons or entities to promptly shape their programs and activities to include credible and reliable conservation measures for listed salmon and
O. mykiss
ESUs.

Issue 11:
Two Federal agencies (the Bureau of Land Management (BLM), and the U.S. Forest Service (FS)) requested that we amend the limits concerning land management activities on state, private, and tribal lands to include activities on Federal lands that implement regional Land Resource Management Plans (LRMPs) and aquatic conservation strategies. The BLM and FS recognized that including Federal lands in these limits on the take prohibitions would not eliminate their requirement to consult under section 7 of the ESA. However, BLM and FS felt that extending these limits to Federal lands would make the section 7 consultation process more efficient, and minimize or eliminate the need to develop and implement reasonable and prudent measures, as well as mandatory terms and conditions for actions covered under a section 7 Incidental Take Statement.

Response:
It is not possible to extend existing 4(d) limits to cover Federal activities implemented under FS and BLM LRMPs because the existing limits address land management activities conducted under differing regulatory authorities and relationships. If we were to adopt a new 4(d) limit covering the LRMPs, it would require review and approval of specific activities, similar to the current 4(d) limits. The LRMPs address general classes of FS and BLM actions, and lack the specificity required for a 4(d) limit. For a 4(d) limit to cover future unidentified actions, without subsequent review and approval, the limit would have to specify narrowly defined activities to be conducted according to strict guidelines within stringent project management conditions. Adopting limits that require subsequent review and approval would not provide any relief to Federal agencies and would, to the contrary, increase regulatory review.

As the BLM and FS acknowledged, the 4(d) limits on the take prohibitions do not relieve Federal agencies of their duty under section 7 of the ESA to consult with NMFS if actions they fund, authorize, or carry out may affect listed species. The various 4(d) limits may be useful to Federal agencies as guidance in developing and implementing their conservation programs. To the extent that Federal actions subject to section 7 consultation are consistent with the terms of a 4(d) limit, the consultation process may be greatly simplified. However, granting BLM's and FS” request to explicitly include certain Federal activities in several 4(d) limits would not diminish their section 7 obligations.

Comments on ESU-Specific Issues

Issue 12:
We received many helpful ESU-specific comments of an editorial nature. These comments noted inadvertent errors in the proposed listing determinations and offered non-substantive but nonetheless clarifying changes to wording.

Response:
We have incorporated these editorial-type comments in the ESU definitions, descriptions of ESU status, and the final listing determinations. As these comments do not result in substantive changes to this final rule, we have not detailed the changes made.

Sacramento River Winter-Run Chinook ESU

Issue 13:
Several commenters contended that our proposal to reclassify the endangered Sacramento River winter-run Chinook ESU as threatened was not justified because the BRT concluded it was at a high risk of extinction and we overstated the benefits of protective efforts such as the Battle Creek restoration project. They argued that this program in particular was uncertain to be fully implemented, funded, or successful in establishing a second population of this ESU in Battle Creek. In addition, they argued that 2004 changes in the Central Valley Project operations criteria (CVP-OCAP) provided less protection for this ESU than did the previous water project operational criteria.

Response:
We acknowledge the BRT concluded this ESU still continues to be at a high risk of extinction, primarily because of concerns about the spatial structure (the ESU is represented by a single population) and the loss of diversity. As indicated in the proposed rule, however, we believe that many important protective efforts have been implemented over the past 10 to 15 years that have contributed to the increased abundance and productivity of this ESU in recent years, as have favorable ocean conditions. These protective efforts include changes in the operation of the Central Valley and State Water Projects, implementation of many CALFED Bay-Delta Program (CALFED) and other habitat restoration projects (
e.g.
, screening of water diversions), changes in ocean and freshwater harvest management, and successful implementation of the hatchery supplementation program at Livingston Stone National Fish Hatchery (NFH). We agree with commenters, however, that the Battle Creek restoration project, which was cited in the proposed rule to support the proposed reclassification,

has not been fully implemented and that its funding and future success are uncertain at this time.

We disagree, however, that the 2004 CVP-OCAP provides less protection to this ESU than previous water project operations criteria. The new CVP-OCAP continues to provide adequate control of temperatures for spawning in the upper Sacramento River despite changes in the temperature control point and carryover storage requirements. We fully analyzed the new CVP-OCAP operations in a biological opinion issued in 2004 and concluded that these operational changes would not jeopardize the continued existence of this ESU.

In light of the concerns raised about the adequacy and benefits of protective efforts for this ESU, particularly the Battle Creek restoration project, we are withdrawing our proposal to reclassify this ESU as threatened. We conclude that the Sacramento River winter-run Chinook ESU continues to warrant listing as an endangered species. We will continue to monitor the status of this ESU and the implementation of protective efforts throughout the California Central Valley. We may reconsider reclassification of the ESU's listing status in the future as these protective efforts mature (the Battle Creek restoration project in particular) and are fully implemented, and their certainty of effectiveness can be more fully assessed.

Central Valley Spring-Run Chinook

Issue 14:
Several commenters questioned whether naturally spawning spring-run Chinook in the Feather River should be included in the listed ESU given that they are genetically similar to the Feather River Hatchery stock which was not proposed as part of the Central Valley spring-run Chinook ESU.

Response:
We agree with the commenters that naturally spawning spring-run Chinook in the Feather River are genetically similar to the Feather River Hatchery spring-run Chinook stock. Although the hatchery stock shows evidence of introgression with Central Valley fall-run Chinook and is divergent from other within-ESU naturally spawning populations in Deer, Mill and Butte Creeks, both the Feather River naturally spawning population and the Feather River Hatchery spring-run Chinook stock continue to exhibit a distinct early-returning spring-run phenotype. NMFS’ SSHAG report (NMFS, 2003a) found that if it was determined that the naturally spawning spring-run Chinook population in the Feather River was part of the ESU, then the Feather River Hatchery spring-run Chinook stock might also be considered part of the ESU. NMFS’ Central Valley Technical Recovery Team believes that this early run timing in the Feather River represents the evolutionary legacy of the spring-run Chinook populations that once spawned above Oroville Dam, and that the extant population in the Feather River may be the only remaining representative of this important ESU component (NMFS, 2004d). The Feather River Hatchery spring-run Chinook stock may play an important role in the recovery of spring-run Chinook in the Feather River Basin as efforts progress to restore natural spring-run populations in the Feather and Yuba Rivers. The California Department of Fish and Game (CDFG) has recently initiated marking of all early returning fish to the Feather River Hatchery, and is incorporating only those early-run fish into the Feather River Hatchery spring-run Chinook stock. The California Department of Water Resources also plans to construct a weir to create geographic isolation for spring-run Chinook in the Feather River. These efforts are intended to reduce introgression by Central Valley fall-run Chinook, thereby further isolating and preserving this important early-returning spring-run Chinook phenotype in the Feather River. Recent results indicate that a small percentage of these marked early-run hatchery fish (
i.e.
, those that do not return to the hatchery or are not harvested) are spawning naturally in the Feather River. Based on a consideration of this information, we have determined that: (1) The naturally spawning population of spring-run Chinook in the Feather River represents the level of reproductive isolation and the evolutionary legacy of the ESU, and thus warrants inclusion in the ESU; and (2) the Feather River Hatchery spring-run Chinook stock is no more divergent relative to this local natural population than would be expected between two closely related populations in the ESU, and thus it also warrants inclusion in the ESU. Accordingly, we have revised the ESU definition of the Central Valley spring-run Chinook ESU in this final rule to include the natural population of spring-run Chinook in the Feather River as well as the Feather River Hatchery spring-run Chinook stock (see the “Determination of ‘Species’ under the ESA” section, below).

Upper Willamette River Chinook ESU

Issue 15:
The Oregon Department of Fish and Wildlife (ODFW) felt that the Clackamas Hatchery spring-run Chinook program (ODFW stock #19), which was proposed for inclusion in the Upper Willamette River Chinook ESU, should not be included as part of the ESU. ODFW contended that the Clackamas Hatchery should be excluded from the ESU because the program consists of a long-term domesticated broodstock founded from a mix of non-local (but within ESU) populations, and the program is managed for isolation between the hatchery stock and the local natural populations.

Response:
The Clackamas spring Chinook broodstock (ODFW stock #19) was initiated in 1976 and is the most recently founded broodstock in the entire ESU. Since hatchery fish released from this program were not all externally marked until 1997, it is unknown how many natural-origin fish have been incorporated into the broodstock since the program was initiated. However, based on the number of natural-origin fish that have entered the hatchery over the last 3 years since all hatchery returns have been marked, it is likely some natural-origin fish have been incorporated regularly into the broodstock since it was established. When this hatchery program began, naturally-produced spring Chinook numbered in the hundreds. It is likely that the subsequent increases in the number of natural-origin Clackamas spring-run Chinook includes the progeny of naturally spawning hatchery-origin fish from the Clackamas Hatchery. Based on this information, the Clackamas Hatchery stock is likely no more divergent from the local natural population than are closely related natural populations in the ESU, and thus it is appropriate for this hatchery stock to be included as part of the Upper Willamette River Chinook ESU.

Lower Columbia River Chinook ESU

Issue 16:
ODFW felt that the Big Creek tule (Big Creek, OR) fall-run Chinook hatchery program, which was proposed for inclusion in the Lower Columbia River Chinook ESU, should not be included in the ESU. ODFW contended that the Big Creek tule Chinook program is substantially diverged from the local natural populations in the ESU because it has incorporated non-local (but within ESU) fish in the hatchery broodstock, and the program is unable to actively collect and incorporate natural-origin fish into the broodstock because returning hatchery-origin fish are unmarked and indistinguishable from returning natural-origin fish.

Response:
We respectfully disagree with ODFW's contention that the Big Creek Tule fall-run Chinook hatchery program should be excluded from the Lower Columbia River Chinook ESU. The Big Creek Hatchery program has

been releasing hatchery tule fall-run Chinook into Big Creek since 1941 and has incorporated non-local (but within-ESU) hatchery and naturally produced fall-run Chinook into the hatchery broodstock. The program is currently using only hatchery-origin and natural-origin fish returning to Big Creek Hatchery. The level of natural-origin tule fall-run Chinook that are used in the broodstock is unknown due to the low marking rate of hatchery fall-run Chinook released from the facility. However, natural production within this population has been swamped by a high proportion of naturally spawning hatchery-origin fish, and available spawning habitat is constrained by the weir at the hatchery. Consequently, the distinction between the natural-origin and hatchery-origin fall Chinook is minimal. Presently, Big Creek Hatchery fall Chinook are probably not distinguishable from the existing natural population, and thus it is appropriate for this hatchery stock to be included as part of the ESU.

Puget Sound Chinook ESU

Issue 17:
Two commenters felt that the Issaquah Creek (Cedar River, Washington), George Adams and Rick's Pond (Skokomish River, Washington), and Hamma Hamma (Westside Hood Canal, Washington) hatchery fall-run Chinook programs, which were not proposed for inclusion in the Puget Sound Chinook ESU, should be included and listed as part of the ESU. The commenters contended that recent genetic analyses (Spidle and Currens, 2005; Marshall, 2000a, 2000b), the broodstock source for the hatchery programs, and their spawning migration timing supported their inclusion in the ESU.

Response:
The commenters reach different conclusions regarding the ESU membership of the subject hatchery programs largely because they evaluated their level of divergence relative to different reference natural populations than we did in the proposed listing determination for the Puget Sound Chinook ESU. After reviewing the comments received, other recently available scientific information, and the guidance provided in the final Hatchery Listing Policy, we agree with the commenters that the Issaquah Creek, George Adams, Rick's Pond, and Hamma Hamma fall-run Chinook hatchery programs should be included and listed as part of the ESU. Accordingly we have revised the defined ESU (see the “Determination of ‘Species’ under the ESA” section below) in this final listing determination. In the following paragraphs we provide a brief summary of the information considered in making this change from the proposed listing determination.

Each of the four hatchery programs addressed by the commenters presents a unique challenge in determining what the appropriate “local natural population” is for evaluating the level of genetic divergence exhibited by a hatchery program and for determining its ESU membership. These four hatchery programs produce hatchery stocks that are non-indigenous to the local area, but were derived from hatchery stocks founded elsewhere in the Puget Sound Chinook ESU (principally from the Green River hatchery stock lineage). If any existed, the historically native natural populations in the areas where these hatchery programs release their production have been extirpated and replaced by the introduced hatchery stocks (Ruckelshaus
et al.
, in press). Available genetic and tagging information indicates that the existing natural populations are derived from the introduced hatchery stocks and do not represent the historically present local populations. In evaluating the level of divergence exhibited by such a hatchery stock one might compare it to: (1) What is believed to have been the historically native natural population; (2) the out-of-basin natural population from which the hatchery stock was derived; or (3) the existing natural population in the local area that is largely, if not completely, derived from naturally spawning introduced hatchery fish. The commenters argue that the existing local natural population is the appropriate benchmark against which to evaluate a hatchery program's level of divergence. In developing the proposed ESU delineations, however, we evaluated hatchery programs relative to the natural populations from which they were founded, and considered several factors in determining their level of divergence (such as the incorporation of natural-origin fish into the hatchery broodstock, rearing and release practices, whether hatchery fish exhibit locally adaptive life-history traits reflective of the natural population, etc.).

The final Hatchery Listing Policy states that “hatchery stocks with a level of genetic divergence relative to the
local natural population(s)
that is no more than what would be expected between closely related natural populations within the ESU * * * are considered part of the ESU” [emphasis added]. In the proposed ESU delineation for the Puget Sound Chinook ESU we concluded that the Issaquah Creek, George Adams, Rick's Pond, and Hamma Hamma fall-run Chinook hatchery programs should not be included due to their non-indigenous origin, and their likely substantial divergence from the founding natural population and hatchery lineage. These programs are intended to produce fish for harvest in an isolated setting, and have not been designed or managed with the intention of seeding the local watersheds with hatchery fish that ecologically and genetically represent natural Chinook (WDFW, 2003a). Despite the intent of these programs, the existing natural populations are likely the progeny of naturally spawning hatchery fish from these non-local programs. Available information indicates that these four hatchery programs are no more diverged from the (existing) local natural populations than what would be expected between closely related natural populations within the ESU, and thus we conclude that they are part of the ESU.

In the proposed ESU determination for the Puget Sound Chinook ESU, we proposed excluding the Hoodsport fall-Chinook hatchery program from the ESU. Our conclusion, similar to the four hatchery programs discussed above, was based on an evaluation of divergence of the Hoodsport hatchery program relative to the stock from which it was derived. Upon re-evaluation consistent with the revised findings for the Issaquah Creek, George Adams, Rick's Pond, and Hamma Hamma hatchery programs, we conclude that the Hoodsport Hatchery program is not part of the ESU. Finch Creek, where the Hoodsport Hatchery program is located, historically and currently lacks an extant local natural Chinook salmon population.

Southern Oregon/Northern California Coast Coho ESU

Issue 18:
One commenter disagreed with the proposed determination that the Southern Oregon/Northern California Coast coho ESU is threatened. The commenter asserted that the available data are inadequate to rigorously assess the risk of extinction of the ESU. The commenter further argued that the available data show increasing abundance in the ESU, and do not indicate that Southern Oregon/Northern California Coast coho salmon are likely to become endangered in the foreseeable future throughout all or a significant potion of its range. In addition, the commenter felt that the State of California's coho salmon recovery plan provides sufficient protections to remove the threat that the ESU will become endangered.

Response:
We respectfully disagree with the commenter's conclusion that

the Southern Oregon/Northern California Coast coho ESU does not warrant listing. The commenter is correct that there are few data available for naturally spawned populations in the ESU, particularly for the portion of the ESU in California. (The Rogue River population in Oregon is the notable exception, providing the only robust time series of natural-origin abundance in the ESU.) The BRT's status review update report and our proposed threatened determination for this ESU acknowledged this paucity of data for populations in California. However, the ESA requires that we make listing determinations “solely on the basis of the best scientific and commercial data
available
* * *” [emphasis added] (ESA section 4(b)(1)(A)). The BRT evaluated all available indices of spawner abundance, and historical and current distribution. The strong majority of the BRT concluded that the ESU is “likely to become endangered in the foreseeable future.” The recent increases in ESU abundance noted by the commenter were fully considered by the BRT and in the proposed listing determination. The BRT was encouraged by indications of strong returns in 2001 for several California populations and an apparent increase in the distribution of coho in historically occupied streams. However, the BRT cautioned that the recent increase in abundance and distribution, presumably due to a combination of favorable freshwater and marine conditions, must be evaluated in the context of more than a decade of poor ESU performance, remaining concerns regarding the high level of hatchery production in the ESU, and the loss of local populations in several river systems.

In developing the proposed threatened listing determination for the Southern Oregon/Northern California Coast coho ESU, we considered the potential contributions of many conservation measures, including California's 2003 State listing of coho, and its subsequent efforts in developing and implementing a comprehensive recovery plan for coho in the State (69 FR at 33148; June 14, 2004). We concluded that if “successfully implemented the State recovery plan will provide substantial benefits to both the Central California Coast and Southern Oregon/Northern California Coast coho ESUs, however, the long-term prospects for plan funding and implementation are uncertain.” Although a wide range of important protective efforts have been implemented in both Oregon and California, these protective efforts, as yet, do not sufficiently reduce threats to the ESU. Protective efforts, as evaluated pursuant to PECE, do not provide sufficient certainty of implementation and effectiveness to alter the conclusion that the Southern Oregon/Northern California Coast coho ESU is threatened.

Lower Columbia River Coho ESU

Issue 19:
The Washington Department of Fish and Wildlife (WDFW) argued that the Kalama River Type-N and Type-S hatchery coho programs, which were not proposed for inclusion in the Lower Columbia River coho ESU, should be considered part of the ESU. WDFW acknowledged that the number of local natural-origin fish incorporated in the broodstock for these hatcheries is unknown prior to 1998, and for the Kalama River Type-N hatchery program, non-local sources of broodstock have been used when there were insufficient returns of local fish to meet the program's broodstock needs. However, WDFW noted that adults returning to the Kalama Basin are given priority for incorporation into the hatchery broodstock, and for the Kalama River Type-S hatchery these fish have been sufficient to meet the broodstock needs of the program. In 2004 WDFW proposed integrating the maximum possible level of natural-origin fish into the respective broodstocks for these programs.

WDFW also noted that the Washougal Type-N hatchery coho program was evaluated in NMFS' Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b) and recommended for inclusion in the ESU, but apparently was inadvertently omitted from the proposed listing determination. WDFW recommended that the Washougal Type-N hatchery coho program be included as part of the Lower Columbia River coho ESU.

ODFW opposed the inclusion of Oregon hatchery coho programs in the Lower Columbia River coho ESU. ODFW argued that the Big Creek Hatchery (ODFW stock # 13), Sandy Hatchery (ODFW stock # 11), Bonneville/Cascade/Oxbow Complex (ODFW stock # 14), and Eagle Creek NFH (ODFW stock # 19) broodstocks propagated at the Oregon hatchery facilities should not be regarded as part of the ESU as all are long-term domesticated broodstocks, all have incorporated various levels of out-of-basin (but within ESU) stocks, and all are managed for isolation between the hatchery stocks and any local natural coho populations. For these reasons ODFW recommended excluding the following Oregon hatchery coho programs from the Lower Columbia River coho ESU: Big Creek Hatchery (Big Creek, Oregon), Astoria High School STEP (Youngs Bay, Oregon), Warrenton High School STEP (Youngs Bay, Oregon), CEDC Coho Salmon Program (Youngs Bay, Oregon), Sandy Hatchery (Sandy River, Oregon), and the Bonneville/Cascade/Oxbow Complex (Lower Columbia River Gorge, Oregon) hatchery coho programs. ODFW also noted that the Eagle Creek NFH (Clackamas River, Oregon) coho hatchery program was apparently inadvertently omitted from the proposed listing determination.

Response:
The commenters are correct that the Washougal Type-N and Eagle Creek NFH hatchery coho programs were inadvertently omitted from the proposed listing determinations. We have fixed that oversight by including these two programs as part of the Lower Columbia River coho ESU in the final listing determination (see “Determination of Species under the ESA” section, below).

We concur with WDFW that the Kalama River Type-N and Type-S hatchery coho programs should be included within the ESU (see “Determination of Species under the ESA” section, below). Although it is unknown if these programs represent the populations that were historically present, they do represent the current populations within the basin. Both Type-N and Type-S coho were historically present in the Kalama River but not in great abundance, with habitat limited to the area below Kalama Falls. Both natural and hatchery-origin Type-N and Type-S coho salmon were used in the broodstocks prior to 1998. Subsequently all hatchery production has been marked, and broodstocks were limited to only hatchery-origin coho from 1998 to 2004. In 2004, WDFW proposed to begin incorporating natural-origin coho into the broodstocks. The incorporation of Type-N coho salmon released into the Kalama River from other basins has occurred in recent years, though the origin of the Type-N coho is representative of the Type-N coho within the ESU. With implementation of WDFW's proposal to incorporate natural-origin coho salmon into the broodstock, the hatchery stock will become even more similar to the extant natural populations. The Type-S program has been self-sustaining (
i.e.
, it has not had to incorporate fish from other basins) since 1992.

We disagree with ODFW that the Big Creek Hatchery, Astoria High School STEP, Warrenton High School STEP, Sandy Hatchery, and the Bonneville/Cascade/Oxbow Complex hatchery coho programs should be excluded from the

Lower Columbia River coho ESU. We acknowledge that these programs have incorporated within-ESU hatchery coho from outside the local historical population(s) and that the hatcheries have been managed as isolated programs. However, these programs originated from within-ESU natural coho stocks and incorporated local natural-origin coho into the broodstock until the late 1990s (when the practice of mass marking hatchery coho was implemented and only marked hatchery-origin fish were incorporated into the broodstock). The Sandy Hatchery program has been the exception, having been developed from only Sandy River natural coho salmon with limited introductions from non-local ESU populations (the last of which occurred in 1952). Within the populations where these hatchery coho programs release their production, returning hatchery-origin adults contribute substantially to natural spawning. As described in the Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b; 2005b) and by the BRT (NMFS, 2003b) all of these hatchery programs represent the existing local spawning populations, and they also represent a large proportion of the remaining genetic material for many of the smaller tributaries within the ESU.

Issue 20:
Several commenters were opposed to the proposed listing of the Lower Columbia River coho ESU. WDFW and ODFW suggested that conservation measures for coho and other salmonids in the Lower Columbia region, if evaluated pursuant to PECE, might substantially mitigate risks to the Lower Columbia River coho ESU such that it would not warrant ESA listing. In particular, the commenters highlighted the beneficial contributions of: (1) The Lower Columbia Fish Recovery Board's (LCFRB) recovery plan for salmonids in the Lower Columbia region; (2) the 1999 listing of Lower Columbia River coho as an “endangered” species on the State of Oregon's Endangered Species List; and (3) the recovery plan for Lower Columbia River coho developed and adopted by the Oregon Fish and Wildlife Commission in 2001, which specifies State conservation measures with respect to harvest, hatchery operations, fish passage, and habitat restoration necessary to achieve recovery goals.

Response:
We respectfully disagree with the suggestion that conservation measures under the LCFRB and Oregon recovery plans substantially reduce risks to the ESU to the point that Lower Columbia River coho are not in danger of extinction or likely to become endangered in the foreseeable future. Of an estimated 23 historical populations in the ESU, there are only two extant populations in the Sandy and Clackamas Rivers, and approximately 40 percent of historical habitat is currently inaccessible. Of the extant populations, the total recent mean abundance is less than 1,500 naturally spawning adults, posing significant risks due to depensatory and stochastic demographic processes. The BRT found extremely high levels of risk to the ESU's abundance, productivity, spatial structure, and diversity, and the majority concluded that the ESU is “in danger of extinction.” In proposing Lower Columbia River coho as threatened, we concluded that the genetic reserve represented by the 21 hatchery programs within this ESU mitigated the immediacy of extinction risk in the short term. However, we cautioned that long-term reliance on the continued operation of these hatchery programs is inherently risky.

The commenters suggest that the LCFRB recovery plan and Oregon's Lower Columbia River coho recovery plan satisfy the criteria under PECE for certainty of implementation and effectiveness. PECE requires that conservation efforts provide such certainty at the time of a listing determination, and although we are very supportive of these recovery planning efforts, we feel that these efforts lack this certainty. For example, while the LCFRB and Oregon coho recovery plans lay out actions that, if implemented, would address threats to Lower Columbia River coho, all the laws and regulations necessary to implement those actions are not yet in place, nor is there a high level of certainty that the actions will be funded. Similarly, while the plans identify the nature and extent of threats to Lower Columbia River coho, they do not as yet address the full suite of PECE criteria for certainty of effectiveness (such as establishing quantifiable performance measures for monitoring compliance and effectiveness, and employing adaptive management). While we expect that as the plans evolve these elements will be developed, our listing determination must be based on whether the plans are
currently
certain to improve the status of the species.

As noted in PECE, “there are circumstances in which the threats to a species are so imminent and/or complex that it will be almost impossible to develop an agreement or plan that includes conservation efforts that will result in making the listing unnecessary” (68 FR at 15101; March 28, 2003). We are concerned that the severity of the demographic risks facing the two extant natural populations in the ESU makes it extremely unlikely that any conservation program or suite of programs could sufficiently mitigate extinction risk such that the ESU would not warrant listing.

Issue 21:
In their comments on the proposed threatened determination for the Lower Columbia River coho ESU, ODFW noted that it was unclear whether the defined ESU includes naturally produced coho in the Willamette River Basin upstream of Willamette Falls (Oregon City, Oregon). ODFW noted that an apparently robust and self-sustaining population of coho has been established above the falls as a result of introductions of Lower Columbia River hatchery coho. These hatchery releases have been stopped, and the coho returning above the falls are naturally produced. ODFW recommended against including the coho population above Willamette Falls in the Lower Columbia River coho ESU because they occur outside of the native range of coho, and may pose a potential threat to native Upper Willamette spring-run Chinook and winter steelhead listed as threatened.

Response:
The historical upstream extent of coho in the Willamette River Basin was Willamette Falls. Coho salmon returning to spawn in fall during low-flow conditions were unable to pass above the falls (only species with early spring migration timing during higher flow conditions, spring-run Chinook and winter steelhead, were historically able to pass above Willamette Falls (Myers
et al.
, 2001)). However, as early as 1885, fish ladders were constructed at the falls to aid the passage of anadromous fish in low flow conditions. The ladders have subsequently been modified and rebuilt, as recently as 1971 and 1975 (Bennett, 1987; PGE, 1994).

Although the coho population in the Upper Willamette River Basin is outside of the historical geographic range of the Lower Columbia River coho ESU, the question remains whether this population satisfies the criteria for inclusion in the ESU: (1) It is not substantially reproductively isolated from the ESU; and (2) it reflects the ESU's evolutionary legacy. The technical paper describing the ESU concept (Waples, 1991) notes that an introduced population outside of the historic range of the species may be considered part of an ESU if it supports natural production in areas that are ecologically similar to and geographically near the source natural population(s). The Upper Willamette River Basin is ecologically complex and

arguably shares ecological features with extant and historical coho populations in the Lower Columbia River coho ESU. However, it is worth noting that all of the anadromous salmonid species that historically spawned in the Upper Willamette River (
O. mykiss,
cutthroat trout, spring-run Chinook) are delineated into separate ESUs from lower Columbia River populations of the same species. The delineation of separate Upper Willamette River ESUs is based in part on historic genetic differences reflecting reproductive isolation, but also because of distinct ecological features.

We are uncertain whether the Upper Willamette River coho population is representative of the genetic lineage of the Lower Columbia River coho ESU. Introductions of coho into the Upper Willamette River Basin began on a regular basis in 1952 (Williams, 1983). Coho salmon (at various life-history stages) were released in the Willamette River and 17 major tributaries above Willamette Falls from thirteen different hatchery programs. The predominant hatchery stock released was from the Bonneville/Cascade/Oxbow Complex (considered within the ESU); however, several out-of-ESU hatchery stocks from the northern Oregon Coast were also introduced at several locations through the early 1970s. There is insufficient information to determine if this introduced coho population reflects the level of reproductive isolation in the Lower Columbia River coho ESU given the mixture of within-ESU and out-of-ESU hatchery stocks used to found the population, and the lack of genetic data to evaluate its level of divergence relative to the extant populations in the Sandy and Clackamas Rivers. Given this uncertainty, we do not feel that there is sufficient information to support including the Upper Willamette River coho population as part of the Lower Columbia River coho ESU at this time. If information becomes available indicating that the Upper Willamette River coho population is not substantially reproductively isolated from the Lower Columbia River coho ESU, we may take such opportunity to review the ESU membership of the introduced population.

Issue 22:
Several commenters felt that we lack sufficient site-specific information to justify including co-occurring resident and anadromous
O. mykiss
in the same ESU. The commenters acknowledged that there is general evidence indicating that where the two life-history forms co-occur they interbreed, are genetically and phenotypically indistinguishable, and can produce offspring of the alternate life-history form. However, the commenters felt that we lack the population-specific genetic and behavioral information to extrapolate these observations universally to all populations and ESUs where resident and anadromous
O. mykiss
have overlapping distributions.

The commenters further noted that in the proposed listing determinations resident populations included in
O. mykiss
ESUs were determined to have minor contributions to the viability of the ESUs. (In the proposed listing determinations we concluded that, despite the reduced risk to abundance for certain
O. mykiss
ESUs due to qualitatively abundant rainbow trout populations, the collective contribution of the resident life-history form to the viability of an ESU in-total is unknown and may not substantially reduce an ESU's risk of extinction (NMFS, 2004; 69 FR 33102, June 14, 2004)). The commenters questioned why resident
O. mykiss
populations should be included in an ESU given that they have little, if any, contribution to the viability of the ESU.

Response:
We believe that the best available scientific information indicates that: (1) Where resident and anadromous
O. mykiss
co-occur they share a common gene pool, and collectively exhibit the adaptive life-history, ecological, and behavioral traits composing an important component in the evolutionary legacy of the species; and (2) some components of an
O. mykiss
ESU will (on average) have a larger contribution to its viability, while other components will have a comparatively weaker contribution to the ESU's viability, with a persistence that may be dependent upon their connectivity with other more productive components of the ESU. However, we agree that substantial disagreement exists regarding the sufficiency and accuracy of the data. Several efforts are underway that may resolve scientific disagreement regarding the sufficiency and accuracy of data relevant to these ESUs (
i.e.
, the relationship between resident rainbow trout and anadromous steelhead and the contribution of resident rainbow trout to the viability of
O. mykiss
ESUs). We will gather more data and engage further debate among scientific experts before making final determinations regarding these ESUs. A separate notice of 6-month extension of the deadline for making final listing determinations on the
O. mykiss
ESUs appears in today's issue of the
Federal Register
.

Issue 23:
In March 2005 the State of Oregon released a draft Oregon Coastal Coho Assessment (draft assessment) of the viability of the Oregon Coast coho ESU, as well as of the contributions of the Oregon Plan for Salmon and Watersheds to conserving the Oregon Coast coho ESU. Oregon's draft assessment concluded that the Oregon Coast coho ESU is viable. We announced in a
Federal Register
notice that we would be considering the information presented by Oregon in determining the final listing status for the ESU, and we solicited public comment on Oregon's draft assessment during a 30-day public comment period (70 FR 6840; February 9, 2005). The comments received by NMFS and Oregon raised a number of concerns regarding the sufficiency and adequacy of the data and analyses used in the draft assessment. On May 6, 2005, Oregon released a final Oregon Coastal Coho Assessment (final assessment) that incorporates and responds to the comments received, and includes several substantive changes intended to address the concerns raised regarding the sufficiency and adequacy of the draft assessment.

Response:
We will extend the deadline for the final listing determination for the Oregon Coast coho ESU for 6 months to analyze Oregon's final assessment in light of the comments received on the draft assessment. Additionally, we are soliciting additional information regarding the sufficiency and adequacy of the final assessment. This extension will enable us to make a final listing determination based upon the best available scientific information. A separate notice of 6-month extension of the deadline for making a final listing determination on the Oregon Coast coho ESU appears in this issue of the
Federal Register
.

Summary of Changes From the Proposed Listing Determinations and Proposed Protective Regulations

Based on the comments received, we have made several substantive changes to the proposed ESU definitions and listing determinations, as discussed in the response to comments (above), and detailed below. We do not detail minor changes of an editorial nature (see Response to Issue 12, above).

The listing determination for the Sacramento River winter-run Chinook ESU has been changed from “threatened” (as proposed), to “endangered” (see Issue 13, above). The ESU is currently listed as an endangered species.

For the Central Valley spring-run Chinook ESU we have included the natural population of spring-run Chinook in the Feather River, as well as

the Feather River Hatchery spring-run Chinook program, in the ESU. The Feather River Hatchery spring-run Chinook program and the associated natural population were not proposed as part of the ESU (see Issue 14, above).

For the Puget Sound Chinook ESU we have included the following hatchery programs as part of the ESU: the Issaquah Creek (Cedar River, Washington), George Adams and Rick's Pond (Skokomish River, Washington), and Hamma Hamma (Westside Hood Canal, Washington) hatchery fall-run Chinook programs. These hatchery programs were not proposed as part of the ESU (see Issue 17, above).

For the Lower Columbia River coho ESU we have included the following programs as part of the ESU: Kalama River Type-N (Washington), Kalama River Type-S (Washington), Washougal River Type-N (Washington), and Eagle Creek NFH (Clackamas River, Oregon) hatchery coho programs. The Eagle Creek NFH and Washougal River Type-N hatchery programs were inadvertently omitted from the proposed listing determination (see Issue 19, above). The Kalama River Type-N and Type-S hatchery coho programs were not proposed as part of the ESU (see Issue 19, above).

Treatment of the Four Listing Determination Steps for Each ESU Under Review

Determination of “Species” Under the ESA

To qualify for listing as a threatened or endangered species, a population (or group of populations) of West Coast salmonids must be considered a “species” as defined under the ESA. The ESA defines a species to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (ESA section 3(16)). NMFS published a policy (56 FR 58612; November 20, 1991) describing the agency's application of the ESA definition of “species” to anadromous Pacific salmonid species. This policy provides that a Pacific salmonid population (or group of populations) will be considered a DPS, and hence a “species” under the ESA, if it represents an ESU of the biological species. An ESU must be reproductively isolated from other conspecific population units, and it must represent an important component in the evolutionary legacy of the biological species. The first criterion, reproductive isolation, need not be absolute, but must be strong enough to permit evolutionarily important differences to accrue in different population units. The second criterion is met if the population unit contributes substantially to the ecological and genetic diversity of the species. Guidance on the application of this policy is contained in 56 FR 58612 (November 20, 1991) and Waples (1991). As noted in the
“Past Pacific Salmonid ESA Listings and the Alsea Decision”
section above, all components included in an ESU (natural populations, hatchery stocks, resident populations, etc.) must be listed if it is determined that the ESU in-total is threatened or endangered under the ESA.

We have reviewed the ESU relationships of hatchery salmon stocks (NMFS, 2003a; 2004b; 2005b). Hatchery stocks are included in an ESU if it is determined that they are not reproductively isolated from populations in the ESU, and they are representative of the evolutionary legacy of the ESU (see the “Consideration of Artificial Propagation in Listing Determinations” section above). Hatchery stocks are considered representative of the evolutionary legacy of an ESU, and hence included in the ESU, if it is determined that they are genetically no more than moderately divergent from the natural population (see final Hatchery Listing Policy elsewhere in this edition of the
Federal Register
). If a hatchery stock is more divergent from the local natural population, this indicates that the hatchery stock is reproductively isolated from the ESU.

The hatchery components are detailed below for each ESU, as applicable. More detailed descriptions of the hatchery stocks included in the ESUs below can be found in the revised Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 2005b). A given hatchery stock determined to be part of an ESU may be propagated at multiple sites. To more clearly convey the hatchery fish that are included in a given ESU, the ESU descriptions below list the artificial propagation programs that propagate hatchery stocks determined to be part of the 16 ESUs addressed in this final rule. A list of those specific artificial propagation programs by ESU is provided for reference in Table 1 at the end of this section.

Snake River Sockeye ESU
—The Snake River sockeye ESU includes populations of anadromous sockeye salmon in the Snake River Basin, Idaho (extant populations occur only in the Stanley Basin) (56 FR 58619; November 20, 1991), residual sockeye salmon in Redfish Lake, Idaho, as well as one captive propagation hatchery program (Table 1). Artificially propagated sockeye salmon from the Redfish Lake Captive Propagation program are considered part of this ESU. We have determined that this artificially propagated stock is no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Subsequent to the 1991 listing determination for the Snake River sockeye ESU, a “residual” form of Snake River sockeye (hereafter “residuals”) was identified. The residuals often occur together with anadromous sockeye salmon and exhibit similar behavior in the timing and location of spawning. Residuals are thought to be the progeny of anadromous sockeye salmon, but are generally nonanadromous. In 1993 NMFS determined that the residual population of Snake River sockeye that exists in Redfish Lake is substantially reproductively isolated from kokanee (
i.e.
, nonanadromous populations of
O. nerka
that become resident in lake environments over long periods of time), represents an important component in the evolutionary legacy of the biological species, and thus merits inclusion in the Snake River sockeye ESU. Constituents and co-managers were subsequently advised that residual sockeye salmon in Redfish Lake are part of the ESU and are listed as an endangered species “subject to all the protection, prohibitions, and requirements of the ESA that apply to Snake River sockeye salmon” (letter from Acting NMFS Director Nancy Foster to Constituents, dated March 19, 1993).

Ozette Lake Sockeye ESU
—The Ozette Lake sockeye ESU includes all naturally spawned populations of sockeye salmon in Ozette Lake and streams and tributaries flowing into Ozette Lake, Washington (64 FR 14528; March 25, 1999). Two artificial propagation programs are considered to be part of this ESU (Table 1): The Umbrella Creek and Big River sockeye hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Sacramento Winter-run Chinook ESU
—The Sacramento winter-run Chinook ESU includes all naturally spawned populations of winter-run Chinook salmon in the Sacramento River and its tributaries in California (59 FR 440; January 1, 1994), as well as two

artificial propagation programs (Table 1): Winter-run Chinook from the Livingston Stone National Fish Hatchery (NFH), and winter run Chinook in a captive broodstock program maintained at Livingston Stone NFH and the University of California Bodega Marine Laboratory. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Central Valley Spring-run Chinook ESU
—The Central Valley spring-run Chinook ESU includes all naturally spawned populations of spring-run Chinook salmon in the Sacramento River and its tributaries in California, including the Feather River (64 FR 50394; September 16, 1999). One artificial propagation program is considered part of the ESU (Table 1): The Feather River Hatchery spring run Chinook program (see response to Issue 14 in the “Summary of Comments and Information Received” section, above). We have determined that this artificially propagated stock is no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

California Coastal Chinook ESU
—The California Coastal Chinook ESU includes all naturally spawned populations of Chinook salmon from rivers and streams south of the Klamath River to the Russian River, California (64 FR 50394; September 16, 1999). Seven artificial propagation programs are considered to be part of the ESU (Table 1): The Humboldt Fish Action Council (Freshwater Creek), Yager Creek, Redwood Creek, Hollow Tree, Van Arsdale Fish Station, Mattole Salmon Group, and Mad River Hatchery fall-run Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Upper Willamette River Chinook ESU
—The Upper Willamette River Chinook ESU includes all naturally spawned populations of spring-run Chinook salmon in the Clackamas River and in the Willamette River, and its tributaries, above Willamette Falls, Oregon (64 FR 14208; March 24, 1999). Seven artificial propagation programs are considered to be part of the ESU (Table 1): The McKenzie River Hatchery (Oregon Department of Fish and Wildlife (ODFW) stock # 24), Marion Forks/North Fork Santiam River (ODFW stock # 21), South Santiam Hatchery (ODFW stock # 23) in the South Fork Santiam River, South Santiam Hatchery (ODFW stock # 23) in the Calapooia River, South Santiam Hatchery (ODFW stock # 23) in the Mollala River, Willamette Hatchery (ODFW stock # 22), and Clackamas hatchery (ODFW stock # 19) spring-run Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Lower Columbia River Chinook ESU
—The Lower Columbia River Chinook ESU includes all naturally spawned populations of Chinook salmon from the Columbia River and its tributaries from its mouth at the Pacific Ocean upstream to a transitional point between Washington and Oregon east of the Hood River and the White Salmon River, and includes the Willamette River to Willamette Falls, Oregon, exclusive of spring-run Chinook salmon in the Clackamas River (64 FR 14208; March 24, 1999). Seventeen artificial propagation programs are considered to be part of the ESU (Table 1): The Sea Resources Tule Chinook Program, Big Creek Tule Chinook Program, Astoria High School (STEP) Tule Chinook Program, Warrenton High School (STEP) Tule Chinook Program, Elochoman River Tule Chinook Program, Cowlitz Tule Chinook Program, North Fork Toutle Tule Chinook Program, Kalama Tule Chinook Program, Washougal River Tule Chinook Program, Spring Creek NFH Tule Chinook Program, Cowlitz spring Chinook Program in the Upper Cowlitz River and the Cispus River, Friends of the Cowlitz spring Chinook Program, Kalama River spring Chinook Program, Lewis River spring Chinook Program, Fish First spring Chinook Program, and the Sandy River Hatchery (ODFW stock #11) Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Upper Columbia River Spring-run Chinook ESU
—The Upper Columbia River spring-run Chinook ESU includes all naturally spawned populations of Chinook salmon in all river reaches accessible to Chinook salmon in Columbia River tributaries upstream of the Rock Island Dam and downstream of Chief Joseph Dam in Washington, excluding the Okanogan River (64 FR 14208; March 24, 1999). Six artificial propagation programs are considered to be part of the ESU (Table 1): The Twisp River, Chewuch River, Methow Composite, Winthrop NFH, Chiwawa River, and White River spring-run Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Puget Sound Chinook ESU
—The Puget Sound Chinook ESU includes all naturally spawned populations of Chinook salmon from rivers and streams flowing into Puget Sound including the Straits of Juan De Fuca from the Elwha River, eastward, including rivers and streams flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia in Washington (64 FR 14208; March 24, 1999). Twenty-six artificial propagation programs are considered to be part of the ESU (Table 1): The Kendal Creek Hatchery, Marblemount Hatchery (fall, spring yearlings, spring subyearlings, and summer run), Harvey Creek Hatchery, Whitehorse Springs Pond, Wallace River Hatchery (yearlings and subyearlings), Tulalip Bay, Issaquah Hatchery, Soos Creek Hatchery, Icy Creek Hatchery, Keta Creek Hatchery, White River Hatchery, White Acclimation Pond, Hupp Springs hatchery, Voights Creek Hatchery, Diru Creek, Clear Creek, Kalama Creek, George Adams Hatchery, Rick's Pond Hatchery, Hamma Hamma Hatchery, Dungeness/Hurd Creek Hatchery, and Elwha Channel Hatchery Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b; and see Response to Issue 17, above).

Snake River Fall-run Chinook ESU
—The Snake River fall-run Chinook ESU includes all naturally spawned populations of fall-run Chinook salmon in the mainstem Snake River below Hells Canyon Dam, and in the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River subbasins (57 FR 14653, April 22, 1992; 57 FR 23458, June 3, 1992). Four artificial propagation programs are considered to be part of the ESU (Table 1): The Lyons Ferry Hatchery, Fall Chinook Acclimation Ponds Program, Nez Perce Tribal Hatchery, and Oxbow Hatchery fall-run

Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Snake River Spring/Summer Chinook ESU
—The Snake River spring/summer-run Chinook ESU includes all naturally spawned populations of spring/summer-run Chinook salmon in the mainstem Snake River and the Tucannon River, Grande Ronde River, Imnaha River, and Salmon River subbasins (57 FR 23458; June 3, 1992). Fifteen artificial propagation programs are considered to be part of the ESU (Table 1): The Tucannon River conventional Hatchery, Tucannon River Captive Broodstock Program, Lostine River, Catherine Creek, Lookingglass Hatchery Reintroduction Program (Catherine Creek stock), Upper Grande Ronde, Imnaha River, Big Sheep Creek, McCall Hatchery, Johnson Creek Artificial Propagation Enhancement, Lemhi River Captive Rearing Experiment, Pahsimeroi Hatchery, East Fork Captive Rearing Experiment, West Fork Yankee Fork Captive Rearing Experiment, and the Sawtooth Hatchery spring/summer-run Chinook hatchery programs. We have determined that these artificially propagated stocks are no more divergent relative to the local natural population(s) than what would be expected between closely related natural populations within the ESU (NMFS, 2005b).

Central California Coast Coho ESU
—The Central California Coast coho ESU includes all naturally spawned populations of coho salmon from Punta Gorda in northern California south to a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-12351. Public record. Not legal advice.