# Endangered and Threatened Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon

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URL: https://www.frixlaw.com/law-library/documents/fr%3A08-552

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 11, 2008
- **Citation:** 73 FR 7816

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 071227892-7894-01]
RIN 0648-AW39
Endangered and Threatened Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are issuing a final determination to list the Oregon Coast coho salmon (
Oncorhynchus kisutch
) evolutionarily significant unit (ESU) as a threatened species under the Endangered Species Act (ESA). We are also issuing final protective regulations and a final critical habitat designation for the Oregon Coast coho ESU.

DATES:

The listing determination, protective regulations, and designated critical habitat are effective on May 12, 2008. With respect to the protective regulations, the take prohibitions for the Oregon Coast coho ESU do not apply to research and enhancement activities specified in an application for a permit or approval under the protective regulations, provided that the application has been received by the Assistant Administrator for Fisheries (AA), NOAA, no later than June 10, 2008. This “grace period” for pending research and enhancement applications will remain in effect until the issuance or denial of authorization, or March 31, 2009, whichever occurs earliest.

ADDRESSES:

NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon 97232.

FOR FURTHER INFORMATION CONTACT:

Scott Rumsey, NMFS, Northwest Region, Protected Resources Division, at (503) 872-2791, or Marta Nammack, NMFS, Office of Protected Resources, at (301) 713-1401. Reference materials regarding this determination are available upon request or on the Internet at
http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related to Oregon Coast Coho

In 1995, we completed a comprehensive status review of West Coast coho salmon (Weitkamp
et al.
, 1995) that resulted in proposed listing determinations for three coho ESUs, including a proposal to list the Oregon Coast coho ESU as a threatened species (60 FR 38011; July 25, 1995). On October 31, 1996, we announced a 6-month extension of the final listing determination for the ESU, pursuant to section 4(b)(6)(B)(I) of the ESA, noting substantial disagreement regarding the sufficiency and accuracy of the available data relevant to the assessment of extinction risk and the evaluation of protective efforts (61 FR 56211). On May 6, 1997, we withdrew the proposal to list the Oregon Coast coho ESU as threatened, based in part on conservation measures contained in the Oregon Coastal Salmon Restoration Initiative (later renamed the Oregon Plan for Salmon and Watersheds; hereafter referred to as the Oregon Plan) and an April 23, 1997, Memorandum of Agreement (MOA) between NMFS and the State of Oregon which further defined Oregon's commitment to salmon conservation (62 FR 24588). We concluded that implementation of harvest and hatchery reforms, and habitat protection and restoration efforts under the Oregon Plan and the MOA substantially reduced the risk of extinction faced by the Oregon Coast coho ESU. On June 1, 1998, the U.S. District Court for the District of Oregon issued an opinion finding that our May 6, 1997, determination to not list Oregon Coast coho was arbitrary and capricious (
Oregon Natural Resources Council
v.
Daley,
6 F. Supp. 2d 1139 (D. Or. 1998)). The Court vacated our determination to withdraw the proposed rule to list the Oregon Coast coho ESU and remanded the determination to NMFS for further consideration. On August 10, 1998, we issued a final rule listing the Oregon Coast coho ESU as threatened (63 FR 42587), basing the determination solely on the information and data contained in the 1995 status review (Weitkamp
et al.
, 1995) and the 1997 proposed rule.

In 2001 the U.S. District Court in Eugene, Oregon, set aside the 1998 threatened listing of the Oregon Coast coho ESU (
Alsea Valley Alliance
v.
Evans,
161 F. Supp. 2d 1154, (D. Or. 2001)) (Alsea). In response to the
Alsea
ruling and several listing and delisting petitions, we announced that we would conduct an updated status review of 27 West Coast salmonid ESUs, including the Oregon Coast coho ESU (67 FR 6215, February 11, 2002; 67 FR 48601, July 25, 2002).

In 2003 we convened the Pacific Salmonid Biological Review Team (BRT) (an expert panel of scientists from several Federal agencies including NMFS, the U.S. Fish and Wildlife Service (FWS), and the U.S. Geological Survey (USGS)) to review the extinction risks of naturally spawning populations in the 27 ESUs under review, including the Oregon Coast coho ESU (Good
et al.
, 2005; NMFS, 2003a). In making its recommendation, the BRT used a process where each member of the BRT was given 10 votes to divide among three conclusions. Members were allowed to assign votes to more than one conclusion, allowing them to express their relative degree of confidence in particular conclusions. The three options were “In Danger of Extinction,” “Likely to Become Endangered,” and “Not Warranted.” Fifty-six percent of the votes supported the conclusion that naturally spawning Oregon coast coho were likely to become endangered in the foreseeable future, and 44 percent supported the conclusion that naturally spawning Oregon coast coho was “Not Warranted” (that is, not likely to become in danger of extinction in the foreseeable future). The BRT noted considerable uncertainty regarding the future viability of the ESU given the uncertainty in predicting future ocean conditions for coho survival, as well as uncertainty in whether current freshwater habitats are of sufficient quality and quantity to support the recent high abundance levels and sustain populations during future downturns in ocean conditions. Although the BRT couched its conclusion in terms of the statutory definition of a threatened species (that is, not in danger of extinction, but likely to become endangered in the foreseeable future), the BRT's conclusion did not constitute a recommendation to list the species. Our listing determination also considered the risks and benefits from artificial propagation programs included in the ESU, efforts being made to protect the species, and the five factors listed under section 4(a)(1) of the ESA.

On June 14, 2004, based primarily on the BRT voting results, we proposed to list the Oregon Coast coho ESU as a threatened species (69 FR 33102). However, the proposed listing recognized that further information would likely become available and that this information could affect the outcome of the final determination. In the proposed rule, we noted that Oregon was initiating a comprehensive assessment of the viability of the Oregon Coast coho ESU and of the adequacy of actions under the Oregon Plan for conserving Oregon Coast coho. As part of that proposed rule we proposed amendments to existing protective regulations issued under ESA section

4(d) (“4(d) regulations”) for all threatened West Coast salmon and steelhead (50 CFR 223.203). These amendments were needed to: (1) Provide flexibility in fisheries and hatchery management; and (2) simplify and clarify the existing regulations so that they may be more efficiently and effectively accessed and interpreted by all affected parties.

On December 14, 2004, we proposed designations of critical habitat for 13 ESUs of Pacific salmon and steelhead in the Pacific Northwest, including the Oregon Coast coho ESU (69 FR 74572). We proposed critical habitat in 72 of 80 occupied watersheds, contained in 13 subbasins, totaling approximately 6,665 stream miles along the Oregon Coast, south of the Columbia River and north of Cape Blanco (Oregon). The estimated economic impact of the areas proposed for critical habitat was approximately $15.7 million. Eight occupied watersheds were proposed for exclusion because the high benefits of exclusion (due to economic impacts) outweighed the low benefits of inclusion (due to the low inherent conservation value for the listed species). These excluded watersheds included approximately 134 stream miles and represented a 15 percent reduction (approximately $2.75 million) in the economic impact of the proposed designation. To assess economic impacts we measured the co-extensive impacts because, based on the existing record, we could not distinguish between the costs associated with the species' listing from the costs of separately designating critical habitat.

In January 2005 the State of Oregon released a draft Oregon Coastal Coho Assessment (Oregon's Draft Viability Assessment), which (1) evaluated the current viability of the Oregon Coast coho ESU, and (2) evaluated the certainty of implementation and effectiveness of the Oregon Plan measures in addressing the factors for decline of the Oregon Coast coho ESU. The latter evaluation was intended to satisfy the joint NMFS—FWS Policy on Evaluating Conservation Efforts (“PECE”; 68 FR 15100; March 28, 2003). Oregon's Draft Viability Assessment concluded that the Oregon Coast coho ESU is currently viable and that measures under the Oregon Plan have stopped, if not reversed, the deterioration of Oregon Coast coho habitats. The Draft Viability Assessment also concluded that it is highly likely that existing monitoring efforts would detect any significant future deterioration in the ESU's viability, or degradation of environmental condition, allowing a timely and appropriate response to conserve the ESU. On February 9, 2005, we published a notice of availability of Oregon's Draft Viability Assessment for public review and comment in the
Federal Register
(70 FR 6840) and noted that information presented in the draft and final assessments would be considered in making the final listing determination for the Oregon Coast coho ESU.

We forwarded the public comments we received on Oregon's Draft Viability Assessment, as well as our technical reviews, for Oregon's consideration in developing its final assessment. The public comments and our review highlighted areas of uncertainty or disagreement regarding the sufficiency and accuracy of Oregon's Draft Viability Assessment, including: the assumption that Oregon Coast coho populations are inherently resilient at low abundance, and that this compensatory response will prevent extinction during periods of low marine survival; the apparent de-emphasis of abundance as a useful indicator of extinction risk; assumptions regarding the duration and severity of future periods of unfavorable marine and freshwater conditions; the ability of monitoring and adaptive management efforts to detect population declines or habitat degradation, and to identify and implement necessary protective measures; and the ability of Oregon Plan measures to halt or reverse habitat degradation once detected.

On May 13, 2005, Oregon issued its final Oregon Coastal Coho Assessment (Oregon's Final Viability Assessment). Oregon's Final Viability Assessment included several changes intended to address concerns raised regarding the sufficiency and accuracy of the draft assessment. Oregon's Final Viability Assessment concluded that: (1) The Oregon Coast coho ESU is viable under current conditions, and should be sustainable through a future period of adverse environmental conditions (including a prolonged period of poor ocean productivity); (2) given the assessed viability of the ESU, the quality and quantity of habitat is necessarily sufficient to support a viable ESU; and (3) the integration of laws, adaptive management programs, and monitoring efforts under the Oregon Plan will maintain and improve environmental conditions and the viability of the ESU into the foreseeable future.

On June 28, 2005 (70 FR 37217), we announced a 6-month extension of the final listing determination for the Oregon Coast coho ESU, finding that “there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination * * * for the purposes of soliciting additional data” (section 4(b)(6)(B)(i) of the ESA). We announced a 30-day public comment period to solicit information regarding the validity of Oregon's Final Viability Assessment, particularly in light of the concerns raised with respect to Oregon's Draft Viability Assessment. In September 2005 we issued final critical habitat designations for 12 Pacific Northwest ESUs (70 FR 52685; September 2, 2005), but we did not issue a final critical habitat designation for Oregon Coast coho because it was only proposed for listing at that time.

On January 19, 2006, we issued a final determination that listing the Oregon Coast coho ESU under the ESA was not warranted (71 FR 3033). As part of this determination, we withdrew the proposed ESA section 4(d) regulations and critical habitat designation for the ESU. In reaching our determination not to list Oregon Coast coho, we found that the BRT's slight majority opinion that the ESU is “likely to become endangered” and the conclusion of the Oregon Final Viability Assessment that the ESU is viable represented competing reasonable inferences from the available scientific information and considerable associated uncertainty. The difference of opinion centered on whether the ESU was at risk because of the “threatened destruction, modification, or curtailment of its habitat or range.” We conducted an analysis of current habitat status and likely future habitat trends (NMFS, 2005a) and found that: (1) The sufficiency of current habitat conditions was unknown; and (2) likely future habitat trends were mixed (i.e., some habitat elements were likely to improve, some were likely to decline, others were likely to remain in their current condition). We concluded that there was insufficient evidence to support the conclusion that the ESU was more likely than not to become an endangered species in the foreseeable future throughout all or a significant portion of its range.

Our decision not to list the Oregon Coast coho ESU was challenged in
Trout Unlimited.
On October 9, 2007, the U.S. District Court for the District of Oregon invalidated our January 2006 decision not to list Oregon Coast coho (
Trout Unlimited
v.
Lohn, Civ. No. 06-01493 ST
(
D. Oreg., October 9, 2007
). The Court found that Oregon's Viability Assessment does not represent the best available science, and that we improperly considered it in reaching our final listing decision. The Court ordered us to issue a new final listing rule consistent with the ESA. This listing decision has been made in compliance with the Court's order.

ESA Statutory Provisions

Listing Determinations

The ESA defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future (sections 3(6) and 3(20), respectively). The statute requires us to determine whether any species is endangered or threatened because of any of five factors: the present or threatened destruction of its habitat, overexploitation, disease or predation, the inadequacy of existing regulatory mechanisms, or any other natural or manmade factors (section 4(a)(1)(A)-(E)). We are to make this determination based solely on the best available scientific information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species. The focus of our evaluation of these five factors is to evaluate whether and to what extent a given factor represents a threat to the future survival of the species. The focus of our consideration of protective efforts is to evaluate whether these efforts substantially have and will continue to address the identified threats and so ameliorate a species' risk of extinction. In making our listing determination, we must consider all factors that may affect the future viability of the species, including whether regulatory and conservation programs are inadequate and allow threats to the species to persist or worsen, or whether these programs are likely to mitigate threats to the species and reduce its extinction risk. The steps we follow in implementing this statutory scheme are to: review the status of the species, analyze the factors listed in section 4(a)(1) of the ESA to identify threats facing the species, assess whether certain protective efforts mitigate these threats, and make our best prediction about the species' future persistence.

As indicated above, the PECE provides direction for considering 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 several criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determining whether a species warrants listing under the ESA. Evaluation of the certainty that an effort will be implemented includes 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.

PECE also notes several important caveats. Satisfaction of the above mentioned criteria for implementation and effectiveness establishes a given protective effort as a candidate for consideration, but does not mean that an effort will ultimately change the risk assessment. The policy stresses that, just as listing determinations must be based on the viability of the species at the time of review, so they must be based on the state of protective efforts at the time of the listing determination. The PECE does not provide explicit guidance on how protective efforts affecting only a portion of a species' range may affect a listing determination, other than to say that such efforts will be evaluated in the context of other efforts being made and the species' overall viability.

Protective Regulations

ESA section 9(a) take and other prohibitions (16 U.S.C. 1538(a)(1)(B)) apply to all species listed as endangered. Hatchery stocks determined to be part of endangered ESUs are afforded all of the full section 9 protections. In the case of threatened species, ESA section 4(d) leaves it to the Secretary of Commerce's (Secretary) discretion to determine whether and to what extent regulatory requirements may be appropriate, by directing the Secretary to issue regulations determined to be necessary and advisable for the conservation of the species. We have flexibility under section 4(d) to tailor protective regulations based on the contributions of available conservation measures. The 4(d) regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species.

Critical Habitat

Section 3 of the ESA defines critical habitat as (1) specific areas within the geographical area occupied by the species at the time of listing, on which are found those physical or biological features that are essential to the conservation of the listed species and that may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of a listed species. In designating critical habitat our regulations direct us to focus on “primary constituent elements,” or PCEs, in identifying these physical or biological features. Section 4 of the ESA requires us to consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. We may exclude any area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the failure to designate such an area will result in the extinction of the species.

At the time of a proposed listing determination, ESA section 4(a)(3) and our regulations require us to specify critical habitat to the maximum extent “prudent and determinable.” Critical habitat designation is not prudent if: (1) The species is threatened by taking or other human activity and the identification of critical habitat can be expected to increase such threat(s); or (2) critical habitat designation would not be beneficial to the species. Critical habitat is not determinable if: (1) Sufficient information is lacking to perform the required analyses of the impact of the designation; or (2) the biological needs of the species are not sufficiently well known to identify an area as critical habitat. In our proposed rule to designate specific areas as critical habitat (69 FR 74572; December 14, 2004), we determined that designating critical habitat for this species is prudent and determinable. The record continues to support this determination.

The ESA requires that a final regulation designating critical habitat be published concurrently with the final determination listing a species as threatened or endangered, unless: (1) It is essential to the conservation of such species that the species be listed promptly (e.g., in instances when a species is listed by emergency rule); or (2) critical habitat of such species is not

then determinable. Section 7(a)(2) of the ESA requires that each Federal agency shall, in consultation with, and with the assistance of, NMFS, ensure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of its designated critical habitat.

Summary of Public and Independent Review

Our regulations require that we allow a period of at least 60 days for the public to review and comment on a proposed rule to list, delist, or reclassify a species, or to designate or revise critical habitat. We may extend or reopen the comment period upon finding that there is good cause to do so by publishing notice in the
Federal Register
. We are required to hold at least one public hearing if any person so requests within 45 days of the publication of a proposed rule. Notice of the location and time of any hearings is published in the
Federal Register
.

A 1994 joint NMFS-FWS policy (Independent Review Policy) requires us to solicit independent expert review from at least three qualified specialists, concurrent with the public comment period following a proposed rule (59 FR 34270; July 1, 1994). In December 2004 the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review (Peer Review Bulletin), 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 ensure the quality of agency information, analyses, and regulatory activities and provide for a more transparent review process.

Listing Determination and Protective Regulations

We solicited public comment on the proposed listing determination and ESA section 4(d) regulations for the Oregon Coast coho ESU for a total of 208 days (69 FR 33102, June 14, 2004; 69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004; 70 FR 6840, February 9, 2005; 70 FR 37217, June 28, 2005). In addition, we held eight public hearings in the Pacific Northwest concerning the June 2004 West Coast salmon and steelhead proposed 4(d) regulations and proposed listing determinations, including the proposed determination for the Oregon Coast coho ESU (69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004). In compliance with the 1994 Independent Review Policy we solicited technical review of the June 2004 proposed 4(d) regulations and listing determinations, including the proposed determination for the Oregon Coast coho ESU, from over 50 independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. The individuals from whom we solicited review of the proposals and the underlying science were selected because of their demonstrated expertise in a variety of disciplines including: Artificial propagation; salmonid biology, taxonomy, and ecology; genetic and molecular techniques and analyses; population demography; quantitative methods of assessing extinction risk; fisheries management; local and regional habitat conditions and processes; and conducting scientific analyses in support of ESA listing determinations. The individuals solicited represent a broad spectrum of perspectives and expertise. The individuals solicited include those who have been critical of past agency actions in implementing the ESA for West Coast salmon and steelhead, as well as those who have been supportive of these actions. These individuals were not involved in producing the scientific information for our determinations and were not employed by the agency. We received comments from four of these experts. In addition to these solicited reviews, several independent scientific panels and academic societies provided technical review of the proposals and the supporting documentation. With respect to the Peer Review Bulletin's requirements for “adequate [prior] peer review,” we believe the independent expert review under the 1994 Independent Review Policy, and the comments received from several academic societies and expert advisory panels, collectively satisfy the Peer Review Bulletin's requirements (NMFS, 2005b).

In response to our requests for information and comments on the June 2004 proposed listing determinations, 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 that addressed general issues not specific to the Oregon Coast coho ESU. 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, farming groups, irrigation groups, and individuals with expertise in Pacific salmonids. The majority of commenters focused on the consideration of hatchery-origin fish in ESA listing determinations, with only a few comments specifically addressing the Oregon Coast coho ESU. We also received comments from 4 of the 50 independent experts from whom we had requested technical review of the scientific information underlying the June 2004 proposed listing determinations. Their comments did not specifically address the proposed determination for the Oregon Coast coho ESU. The reader is referred to the final hatchery listing policy (70 FR 37204; June 28, 2005) and the final listing determinations and ESA section 4(d) regulations for 16 salmon ESUs (70 FR 37160; June 28, 2005) for a summary and discussion of issues raised by the comments that were not specific to the Oregon Coast coho ESU. The comments addressing the proposed listing determination for the Oregon Coast coho ESU are summarized below. We did not receive any comments that addressed the proposed 4(d) regulations in the specific context of the Oregon Coast coho ESU.

Critical Habitat

We solicited public comment on the proposed critical habitat designation for Oregon Coast coho for a total of 105 days (69 FR 74578, December 14, 2004; 70 FR 6394; February 7, 2005). We also contacted the appropriate Federal, state, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule. To facilitate public participation, we made the proposed rule available via the Internet as soon as it was signed by the AA of NMFS (approximately 2 weeks prior to actual publication). In addition, we held four public hearings in the Pacific Northwest between January 11, 2005, and January 25, 2005. We received 5,230 written comments (5,111 of these were “form e-mails” with nearly identical verbiage) during the comment period on the proposed rule. Eight comments addressed specifically, or in part, the proposed critical habitat designation for the Oregon Coast coho ESU.

In compliance with the Peer Review Bulletin, prior to publishing the proposed rule we submitted the initial biological assessments of our Critical Habitat Analytical Review Teams (CHARTs) to state and tribal comanagers and asked them to review those findings. These comanager reviews resulted in several changes to the CHARTs' preliminary assessments (for

example, revised fish distribution as well as conservation value ratings) and helped ensure that the CHARTs' revised findings incorporated the best available scientific data. Consistent with the 1994 Independent Review Policy, we later solicited technical review of the entire critical habitat proposal (including the underlying biological and economic reports) from 45 independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. We also solicited opinions from three individuals with economics expertise to review the draft economics analysis supporting the proposed rule. All three of the economics reviewers and three of the biological reviewers submitted written opinions on our proposal. We have determined that the independent expert review and comments received regarding the science involved in this rulemaking constitute adequate prior review under section II.2 of the OMB Peer Review Bulletin (NMFS, 2005c) and satisfy the 1994 Independent Review Policy.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for all 13 ESUs addressed in the proposed rule. The reader is referred to the final critical habitat designations for 12 Pacific Northwest ESUs (70 FR 52685; September 2, 2005) for a summary and discussion of general issues, or issues specific to other ESUs. The comments addressing the proposed critical habitat designation for the Oregon Coast coho ESU are summarized below.

Comments Specific to Oregon Coast Coho

Below we address the comments received that directly pertain to: (1) The listing determination for the Oregon Coast coho ESU, and (2) the designation of critical habitat for the Oregon Coast coho ESU. (Copies of the full text of comments received are available upon request, see
ADDRESSES
and
FOR FURTHER INFORMATION CONTACT,
above.)

Comments Regarding the Listing Determination

Comment 1:
The Oregon Department of Fish and Wildlife (ODFW) expressed concern regarding the proposed inclusion of the North Fork Nehalem River coho hatchery program in the Oregon Coast coho ESU. ODFW explained that the hatchery program propagates two different stocks: The North Fork Nehalem River hatchery coho stock (ODFW stock #32) and the Fishhawk Lake hatchery coho stock (ODFW stock #99). ODFW noted that both stocks, although founded using local natural-origin fish, are presently managed as isolated broodstocks. Although the level of divergence between these hatchery stocks and the local wild populations is not known, ODFW noted that our hatchery reviews (NMFS, 2003b, 2004a, 2004b) acknowledged that the level of divergence may be substantial. ODFW recommended that both the North Fork Nehalem River and Fishhawk Lake hatchery stocks be excluded from the ESU.

ODFW also noted that the recently founded Calapooya Creek (Umpqua River basin, Oregon) hatchery coho stock was not included in our hatchery reviews. The Calapooya Creek program was a small, short-term (in operation from 2001-2003), research hatchery program conducted to evaluate the use of hatchery-reared fish in the supplementation of a wild coho population. The program is no longer releasing fish, and had adults returning through 2006. ODFW suggested that, had we included this stock in our initial evaluations, the progeny expected to return through 2006 would have been considered as part of the Oregon Coast coho ESU.

Response:
We agree with ODFW's comments that the North Fork Nehalem River and Fishhawk Lake stocks propagated by the Nehalem hatchery coho program are substantially reproductively isolated from the local natural populations, and diverged substantially from the evolutionary legacy of the ESU. Moreover, since our 2006 final determination these two programs have been discontinued, with the last adults returning in 2007 (NMFS, 2007a). We conclude that the North Fork Nehalem River and Fishhawk Lake hatchery coho stocks are not part of the Oregon Coast coho ESU.

We did not include the Calapooya Creek coho hatchery stock in our hatchery reviews as the program is no longer collecting fish for broodstock or releasing smolts. We agree with ODFW that returns from Calapooya Creek hatchery stock, having been derived from local natural-origin fish, likely were no more than moderately diverged from the local natural populations. However, given that the program has been terminated, and 2006 was the last year of returns, the Calapooya Creek hatchery stock will not be considered part of the Oregon Coast coho ESU.

At the time of the 2004 proposed rule and our January 2006 final determination not to list the ESU, Cow Creek (ODFW stock #37), the North Umpqua River (ODFW stock #18), the Coos Basin (ODFW stock #37), and the Coquille River (ODFW stock #44) hatchery coho programs were considered part of the Oregon Coast coho ESU. The latter three of these programs have been discontinued since our 2006 final determination (NMFS, 2007a). The last year of returns for these programs is 2007. Given that the North Umpqua River, Coos Basin, and Coquille River hatchery programs have been terminated, and this winter (2007) is the last year of returns, these stocks will not be considered part of the Oregon Coast coho ESU.

Comment 2:
A comment submitted by the Pacific Rivers Council (PRC) included a July 2003 report investigating the potential benefits of a modeled conservation hatchery program in supplementing Oregon Coast coho (Oosterhout and Huntington, 2003). PRC asserted that the report supports their position that hatchery fish should be considered as only a threat to wild salmonid populations, and that any potential short-term benefits of artificial propagation are outweighed by the long-term damaging genetic and ecological effects on wild populations. The Oosterhout and Huntington (2003) report modeled an “idealized conservation hatchery” program and evaluated the success of supplementation efforts under different scenarios of habitat quality and marine survival. The authors conclude from their modeling study that supplementation, even under optimized model assumptions, poses long-term ecological and genetic risks, and any short-term gains in salmon abundance are temporary.

Response:
The use of artificial propagation represents a broad spectrum of hatchery practices and facilities, as well as a variety of ecological settings into which hatchery-origin fish are released. For this reason it is essential to assess hatchery programs on a case-by-case basis. Our assessment of the benefits, risks, and uncertainties of artificial propagation concluded that the specific hatchery programs considered to be part of the Oregon Coast coho ESU collectively do not substantially reduce the extinction risk of the ESU in-total (NMFS, 2004b). We noted that these hatchery programs likely contribute to an increased abundance of total natural spawners in the short term, although their contribution to the productivity of the supplemented populations is unknown. Our assessment is consistent with the findings of Oosterhout and Huntington (2003). The findings of scientific studies, such as the subject study on simulated conservation hatchery

programs and their impacts on natural coho populations, inform our consideration of the benefits and risks to be expected from artificial propagation. However, it would be inappropriate to rely on theoretical conclusions about the effectiveness of hatchery programs while ignoring program-specific information regarding broodstock origin, hatchery practices, and performance of hatchery- and natural-origin fish.

Comment 3:
Douglas County Board of Commissioners (Oregon) submitted a report (Cramer
et al.
, 2004) that concludes that NMFS' earlier viability analyses overstate the risks to Oregon Coast coho populations, and that the 2003 BRT's findings warrant reconsideration. The Cramer
et al.
(2004) report asserts that previous viability assessments failed to adequately consider connectivity among spawner aggregations, underestimated juvenile over-winter survival in smaller stream reaches, and underestimated coho population stability. The report asserts that sharp reductions in ocean harvest rates since 1994, declining influence of hatchery-origin fish, and improved monitoring and evaluation under the Oregon Plan confer a very low risk of extinction even if future marine survival rates are low and remain low.

Response:
The Cramer
et al.
(2004) report does not present any substantial new information, other than including an additional year of abundance data that was not available to the BRT. The report emphasizes selective aspects of the available data including: reduction of threats by changes in fishery and harvest management; and improved biological status evidenced by increasing spawning escapements and successful juvenile rearing throughout the ESU. These observations and analyses were fully considered in the BRT's review (Good
et al.
, 2005; NMFS, 2003a). The Cramer
et al.
(2004) report does not, by itself, add to our consideration of the BRT's findings.

Comment 4:
Several commenters felt that effective regulatory controls and monitoring programs are in place to ensure that harvest and hatchery practices no longer threaten the ESU.

Response:
Many noteworthy and important regulatory changes have been made that adequately address historically harmful practices. Changes in ocean and freshwater fisheries management have resulted in sharp reductions in fishing mortality in Oregon Coast coho populations, and likely have contributed to recent population increases. It is unlikely that those harvest controls will weaken in the future, in light of Federal management of ocean fisheries. Reforms in hatchery management practices have limited the potential for adverse ecological interactions between hatchery-origin and natural fish, and have markedly reduced risks to the genetic diversity and reproductive fitness for the majority of naturally spawned populations in the ESU. It is also unlikely those reforms will be weakened in the future.

Comment 5:
One commenter was critical of the Oregon Forest Practices Act, and argued that it is inadequate to prevent the future degradation of riparian habitats, particularly on private non-industrial forestlands. The commenter noted that the Forest Practices Act applies only to the commercial harvest of trees, and that non-commercial land owners may cut riparian trees without restriction if they do not sell the wood. The commenter noted that this unregulated practice is particularly evident in areas with increased rural residential development along streambanks.

Other commenters doubted whether regulations, restoration programs, and other protective efforts would improve habitat conditions in the foreseeable future. One commenter noted that there is an insufficient data record to evaluate the success of protective efforts aimed at restoring riparian habitats, particularly in increasing the recruitment of large woody debris. Several other commenters doubted whether forest management under the Oregon Plan has resulted, or will result, in an increased amount of large-diameter trees (important for the recruitment of large woody debris in coho rearing areas). The commenters argued that the shorter rotations being implemented on private industrial forest lands reduce the size of trees delivered to streams in landslides, and thus may result in diminished stream complexity in important coho rearing habitats.

Response:
Our review suggests that there are likely to be improvements in some aspects of habitat condition, declines in others, and a continuation of current conditions in still others (NMFS, 2005a). For example, the Northwest Forest Plan instituted riparian habitat buffers and other measures on Federal lands that improved many of the historical forestry practices that led to the loss and degradation of riparian habitats. Development and implementation of Total Maximum Daily Loads under the Federal Clean Water Act are likely to result in improved water quality. Restoration efforts have treated approximately seven percent of the stream miles within the range of the ESU over the last 7 years with the intent of restoring stream complexity and riparian habitats and improving water quality, though it is unclear how much restoration is likely to occur in the future, given funding uncertainties.

Forest practices on state and private land include some improvements over historically harmful practices, such as the establishment of riparian management areas under revisions to Oregon forest practice rules in the 1990s. However, there are also offsetting practices that are expected to degrade habitat conditions and complexity, such as shorter harvest rotations, road construction, and logging on unstable slopes and along debris flow paths (NMFS, 2005a).

For agricultural lands, riparian management is governed by agricultural water quality management plans under Oregon Senate Bill 1010, as well as by subsequently developed riparian rules which synthesize elements of individual Senate Bill 1010 plans for a given basin. These agricultural plans and rules do not specify the vegetation composition or size of the riparian areas to be established. The lack of specificity of these agricultural plans makes the enforcement and effectiveness of these plans uncertain (NMFS, 2005a). Any modest improvements in riparian vegetation on agricultural lands under current rules that might be expected may be offset by habitat declines resulting from urban and rural development (NMFS, 2005a). On balance, habitat conditions on agricultural lands are not likely to show significant improvement or decline.

Future urbanization and development within the range of the ESU is projected at approximately 20 percent population growth, representing slightly more than 30,000 people over the next 40 years (NMFS, 2005a). Most of this development is expected to be concentrated in lowland areas with high intrinsic potential for rearing coho. Current urban or rural growth boundaries encompass approximately nine percent of high intrinsic potential riparian habitat areas, so future urbanization and development activities could have significant implications for some coho populations. The degree of potential impacts on coho habitat (both positive and negative) is highly uncertain and depends largely on the spatial distribution of future urbanization and development activities, their proximity to riparian areas, and the kinds of development activities undertaken and the land management practices used.

Comment 6:
Several commenters expressed concern that inadequate funding has limited the ability of many

Oregon agencies to monitor non-permitted habitat-affecting activities, effectively enforce regulations, and ensure proper reporting of permitted activities. The commenters felt that these inadequacies should be considered evidence of uncertainty that some as yet, unproven elements under the Oregon Plan will be implemented.

Response:
The commenters are correct that the availability of necessary funding and staffing resources is an important consideration in evaluating how likely it is that a given protective effort will be implemented. Our review has noted that funding declines have led to the loss of staff at the Oregon Department of Environmental Quality, Department of Forestry, and ODFW (NMFS, 2005a). The reduced funding has slowed the completion of Total Maximum Daily Load water quality standards, and reduced the ability to monitor water quality, habitat structure and complexity, and fish populations.

Comments Regarding the Designation of Critical Habitat

Comment 7:
One Federal commenter provided information recommending changes to designated stream reaches in several watersheds due to errors in interpreting existing salmon distribution maps, recent field surveys, and the location of impassible barriers. This commenter also questioned the inclusion of Jackson and Josephine counties as within the range of areas designated as critical habitat for Oregon Coast coho salmon.

Response:
In light of the specific comments received, we have reviewed all the data regarding habitat areas occupied by coho salmon and the location of impassible barriers. This review included discussions with local ODFW biologists familiar with the areas in question. The majority of suggested revisions were found to be warranted, and, as a result, we have updated the endpoints delineating areas occupied by coho salmon, including those designated as critical habitat, in ten watersheds (see “
Summary of Changes from the Proposed Critical Habitat Designation
”). We have also removed Josephine and Jackson counties from the relevant critical habitat table in our regulations. These counties overlap slightly with upland areas in watersheds occupied by Oregon Coast coho salmon, but they do not contain stream reaches designated as critical habitat for this ESU.

Comment 8:
Two commenters questioned the “medium” conservation-value rating assigned by the CHART to the habitat area for Devils Lake coho. These areas are within a larger Devils Lake/Moolack Frontal watershed. The commenters cited recent genetic data establishing that coho from Rock Creek/Devils Lake are genetically distinct from other populations in the ESU. The commenters believed that the coho in Devils Lake possess a unique and distinct genetic heritage warranting a “high” conservation value rating.

Response:
The CHART considered these comments along with recent population identification work (Lawson
et al.
, 2007) and genetic analyses by Johnson and Banks (2007). The team maintained that the Devils Lake/Moolack Frontal watershed (which contains Devils Lake) was still of medium conservation value, noting that Devil's Lake coho are one of ten small and dependent populations in this watershed and appear to be most closely related to coho in the nearby Siletz River. The team acknowledged that Devils Lake was the most productive of these ten populations but that the overall watershed did not warrant a high conservation value relative to other adjacent watersheds with more extensive habitat areas and functionally independent populations (e.g., the Siletz River and Yaquina River watersheds). Regardless, Devils Lake and all other habitat areas in the Devils Lake/Moolack Frontal watershed are designated as critical habitat for Oregon Coast coho salmon.

Comment 9:
One tribal government expressed support of the proposed exclusion of Indian lands from the area eligible for critical habitat designation. The tribe agreed with our proposal that designating Indian lands as critical habitat would adversely impact tribal partnerships with us and limit the benefits that result from collaboration. Additionally, the tribe felt that the proposal to not designate Indian lands as critical habitat appropriately acknowledges tribal sovereignty and authority in managing natural resources on their lands.

Response:
This final rule maintains the exclusion of Indian lands for the reasons described in the
Exclusions Based on Impacts to Tribes
section below.

Comment 10:
Several commenters argued that the conservation benefits provided by certain conservation measures on non-Federal lands provide sufficient protections so that there would be minimal benefit of designating the affected areas as critical habitat. One commenter felt that existing forest protections under the Oregon Forest Protection Act and associated best management practices adequately protect the PCEs found on private and state forest lands in the State of Oregon. Another commenter felt that protections under the Oregon Plan have demonstrated conservation benefits that warrant the exclusion of affected areas from designation as critical habitat. Another commenter felt that existing regulatory and other mechanisms under these conservation measures are inadequate to protect the ESU and its habitats. The commenter argued that it is essential to designate critical habitat in these areas where existing regulatory mechanisms do not prevent or alter certain activities that would adversely modify habitat.

Response:
The comments imply that if an area is covered by a management plan, it either does not meet the ESA section 3(5)(a) definition of critical habitat or it must be excluded from critical habitat under ESA section 4(b)(2). Neither assertion is correct.

Section 3(5)(a) of the ESA defines critical habitat as occupied areas containing physical or biological features that are (1) essential to the conservation of the species and (2) which may require special management considerations or protections. Consistent with the statute, in identifying areas meeting the definition of critical habitat for this ESU, we identified the physical or biological features essential to the conservation of the ESU, identified the occupied areas where these features are present, and then determined whether these features in each area may require special management considerations and protections. The bases for these conclusions are described further below and in a separate report (NMFS, 2007b).

Section 4(b)(2) of the ESA gives the Secretary discretion to exclude areas from critical habitat if he determines that benefits of exclusion outweigh the benefits of designation. Exercising the discretion to exclude an area from critical habitat requires evidence of a benefit of exclusion. Section 4(b)(2) and the supporting legislative history make clear that the consideration and weight given to impacts are within the Secretary's (H.R. 95-1625) discretion and that exclusion is not required even when the benefits of exclusion outweigh the benefits of designation. In other critical habitat designations for Pacific salmon and steelhead, the Secretary excluded areas from critical habitat on private lands covered by habitat conservation plans because there was evidence in the record that exclusion would enhance the relationship between the landowner and the agency. That improved relationship was expected to result in improved implementation of the plan and incentives for the development of other

plans, increasing conservation benefits for fish (70 FR 52630; September 2, 2005). Regarding private and state lands subject to Oregon's forest practice laws, there is no conservation agreement in place between landowners and NMFS, nor any evidence in the record supporting a conclusion that conservation actions of landowners subject to these laws would improve as a result of exclusion. The same is true for lands generally covered by the Oregon Plan. Based on our review of available information, we found there were insufficient data and analysis to conclude that there is a benefit of exclusion. Absent evidence of a benefit of exclusion, we could not conclude that the benefits of exclusion outweigh the benefits of inclusion.

Comment 11:
Two Federal commenters felt that all Federal lands merited exclusion from designation as critical habitat. They contended that conservation benefits under PACFISH, the Northwest Forest Plan, and National Forest Land and Resource Management Plans (LRMPs) provide necessary protection and special management that eliminates the need to designate habitats on Federal lands as critical. These commenters contended that designating critical habitat on these Federal lands was unnecessarily duplicative of existing ESA section 7 consultation processes, inefficient (e.g., citing costs of re-initiating consultation), while offering no additional conservation benefit to the listed species. They believed that excluding Federal lands would be consistent with our exclusion of military lands that are subject to Integrated Natural Resource Management Plans, which they felt contain similar provisions for the protection and restoration of listed species.

Response:
ESA section 4(b)(2) provides the Secretary with discretion to exclude areas from the designation of critical habitat if the Secretary determines that the benefits of exclusion outweigh the benefits of designation, and the Secretary finds that exclusion of the area will not result in extinction of the species. In the proposed rule, and the reports supporting it, we explained the policies that guided us and provided supporting analysis for a number of proposed exclusions. We also noted a number of additional potential exclusions, including those associated with the Oregon Coast coho salmon due to conservation measures within the Northwest Forest Plan on Federal lands, explaining that we were considering them because the Secretary of the Interior had recently made similar exclusions in designating critical habitat for the bull trout. In the final rule designating critical habitat for 12 Pacific Northwest ESUs (70 FR 52630; September 2, 2005), we considered extensive comments supporting and opposing the exclusion of Federal lands, as well as comments concerning alternative approaches for assessing the benefits of exclusion versus inclusion of lands as critical habitat. That final rule also stated the following with regard to the potential exclusion of Federal lands and alternative approaches to designation:

We will continue to study this issue and alternative approaches in future rulemakings designating critical habitat. In particular, we intend to analyze the planning and management framework for each of the ownership categories proposed for consideration for exclusion. In each case, we envision that the planning and management framework would be evaluated against a set of criteria, which could include at least some or all of the following:

1. Whether the land manager has specific written policies that create a commitment to protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

2. Whether the land manager has geographically specific goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

3. Whether the land manager has guidance for land management activities designed to achieve goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

4. Whether the land manager has an effective monitoring system to evaluate progress toward goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

5. Whether the land manager has a management framework that will adjust ongoing management to respond to monitoring results and/or external review and validation of progress toward goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

6. Whether the land manager has effective arrangements in place for periodic and timely communications with NOAA on the effectiveness of the planning and management framework in reaching mutually agreed goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

NMFS has continued dialogue with the Federal land management agencies since that time. Although we have not yet developed the type of information that would allow us to exclude Federal lands at this time, we will work with the land management agencies to develop the information and consider exclusion of Federal lands, as well as alternative approaches to designation, where the analysis provides appropriate support. We anticipate that further analyses using principles such as those above can result in additional data to inform the ESA Section 4(b)(2) analysis regarding possible exclusion of Federal lands from critical habitat designations.

Comment 12:
One commenter and a peer reviewer expressed concern that the economic analysis failed to consider the full range of economic benefits of salmon habitat conservation and, therefore, provided a distorted picture of the economic consequences of designating versus excluding eligible habitat areas. The commenter expressed concern that the economic impact of not designating particular areas would impede recovery efforts, and this cost should be considered in the economic analysis. The commenter cited the lack of consideration in the economic analysis of the potential benefits of critical habitat designation to: (1) Other aquatic and riparian species; (2) water quality; (3) recreation; and (4) increased recreational, commercial, and tribal harvest opportunities that would be available with recovery.

Response:
As described in the economic analysis (NMFS, 2007c) and ESA section 4(b)(2) report (NMFS, 2007d), we did not have information available at the scale of this designation that would allow us to quantify the benefits of designation in terms of increased fisheries. Such an estimate would have required us to estimate the additional number of fish likely to be produced as a result of the designation, and would have required us to determine how to allocate the economic benefit from those additional fish to a particular watershed. Instead, we considered the “benefits of designation” in terms of conservation value ratings for each particular area (see “Methods and Criteria Used to Designate Critical Habitat” section below). We also lacked information to quantify and include in the economic analysis the economic benefit that might result from such things as improved water quality or flood control, or improved condition of other species.

Moreover, we did not have information at the scale of this designation that would allow us to consider the relative ranking of these types of benefits on the “benefits of designation” side of the ESA section 4(b)(2) balancing process. Our primary focus was to determine, consider, and balance the benefits of designating these

areas to the conservation of the listed species. Given the uncertainties involved in quantifying or even ranking these ancillary types of benefits, we did not include them in our analysis.

Final Species Determination

The Oregon Coast coho ESU includes all naturally spawned populations of coho salmon in Oregon coastal streams south of the Columbia River and north of Cape Blanco (63 FR 42587; August 10, 1998). One hatchery stock is considered part of the ESU: The Cow Creek (ODFW stock # 37) hatchery coho stock.

On June 14, 2004, we proposed that five artificial propagation programs should be considered part of the ESU (69 FR 33102), including the North Fork Nehalem River (ODFW stock # 32), the North Umpqua River (ODFW stock # 18), Coos Basin (ODFW stock # 37), and the Coquille River (ODFW stock # 44) coho hatchery programs. Informed by our analysis of the comments received from ODFW, and other recently available information (see Comment 1 and response, above), we conclude that these four hatchery programs are not part of the Oregon Coast coho ESU.

Assessment of the Species' Status

The steps we follow in making a listing determination are to: Review the status of the species, analyze the factors listed in section 4(a)(1) of the ESA to identify threats facing the species, assess whether certain protective efforts mitigate these threats, and predict the species' future persistence. Below we summarize the information we evaluated in reviewing the status of the Oregon Coast coho ESU. We considered the information included in the record for our January 2006 determination in a manner consistent with the Court's ruling in
Trout Unlimited.
We also considered additional status information that was readily available since our January 2006 decision, to determine if this new information is consistent with our conclusion based on the January 2006 (as the Court has ordered us to consider it).

We begin a typical listing determination for a salmon ESU by gathering the most recent available and relevant biological information and appointing a panel of Federal scientists (the BRT) familiar with the biology and population dynamics of salmon. This panel reviews the status information, considers and discusses various possible interpretations of the information, and prepares a written report containing its recommendations as well as the basis for them. In addition, the documents underlying the BRT's conclusions are made available to the decision maker for consideration. Typically, the BRT's review takes about 3-6 months to complete.

At the same time, regulatory staff gather updated information about the status and trends for other related factors, including the potential contributions (both positive and negative) from hatchery programs, the condition of the habitat, and the expected implementation and effectiveness of conservation efforts. This information is considered together with the BRT's recommendations in forming a final determination and preparing a written explanation of that determination.

While the above steps were conducted for Oregon Coast coho prior to the issuance of the 2004 proposed rule, the court order in
Trout Unlimited
requiring a final determination and the time allowed for making that final determination do not permit us to follow our typical practice anew for Oregon Coast coho. The available record contains a BRT recommendation and report made in 2003, based on status information through 2002. The information in the record about the condition of the habitat and the effectiveness of conservation efforts is also mostly data collected prior to 2003. We have also considered draft reports of the Technical Recovery Team for the Oregon Coast. These draft reports are directed primarily at the population structure of and recovery criteria for the Oregon Coast coho ESU, rather than the determination required for a listing decision.

Quantitative information available to us for this determination also includes numerical information on the abundance of Oregon Coast coho through 2006, preliminary spawner survey information for 2007, and estimates of the ocean survival for coho through 2006. Comparison of the abundance of the naturally-produced coho with the marine survival index suggests the possibility that much of the variability in coho numbers over the last decade or so may be due to fluctuations in the availability of food in the near-shore ocean (NMFS, 2007k). In addition, there is some indication that juvenile survival is limited by the supply of nutrients from the carcasses of spawning adult coho (Bilby
et al.
, 2001). It is possible that existing freshwater habitat is adequate to support a viable ESU, and that the fluctuations observed in Oregon Coast coho populations are partially driven by the supply of carcasses. The 2003 BRT did not explicitly consider the relationship between coho abundance and marine food availability, or the relationship between juvenile survival and the supply of carcasses. Our current record lacks the information and analyses necessary to assess the present status of freshwater habitat conditions and functional processes in the ESU. Oregon has aggressively implemented habitat conservation efforts, yet we lack the data necessary to resolve the benefits realized from these efforts by coho populations given the considerable variability in other environmental processes. In short, the recently available abundance information is not necessarily indicative of degraded freshwater habitat conditions, nor is it convincingly suggestive of a declining long-term trend for the ESU. Given the opportunity for further scientific review, it is possible that an improved understanding of the roles marine conditions and stream-nutrient supply play in determining coho population dynamics, might require revision of this determination. In summary, if we had been permitted to consider all the scientific information in the record, and if we had been allowed more time to do a complete scientific review of new information in a manner consistent with our typically thorough and comprehensive analytical processes, there is a reasonable possibility that we would have reached a different final listing determination.

Consideration of Information in the January 2006 Record

Biological Review Team Findings
—The 2003 BRT considered data available through 2002. The abundance and productivity of Oregon Coast coho since the previous status review (NMFS, 1997a) represented some of the best and worst years on record. Yearly adult returns for the Oregon Coast coho ESU were in excess of 160,000 natural spawners in 2001 and 2002, far exceeding the abundance observed for the past several decades. These encouraging increases in spawner abundance in 2000-2002 were preceded, however, by three consecutive brood years (the 1994-1996 brood years returning in 1997-1999, respectively) exhibiting recruitment failure (recruitment failure is when a given year class of natural spawners fails to replace itself when its offspring return to the spawning grounds 3 years later). These 3 years of recruitment failure were the only such instances observed thus far in the entire 55-year abundance time series for Oregon Coast coho salmon (although comprehensive population-level survey data have only been available since 1980). The encouraging 2000-2002 increases in

natural spawner abundance occurred in many populations in the northern portion of the ESU, populations that were the most depressed at the time of the last review (NMFS, 1997a). Although encouraged by the increase in spawner abundance in 2000-2002, the BRT noted that the long-term trends in ESU productivity were still negative due to the low abundances observed during the 1990s.

The majority of the BRT felt that the recent increases in coho returns were most likely attributable to favorable ocean conditions and reduced harvest rates. The BRT was uncertain as to whether such favorable marine conditions would continue into the future. Despite the likely benefits to spawner abundance levels gained by the dramatic reduction of harvest rates on Oregon Coast coho populations (PFMC, 1998), harvest cannot be significantly further reduced in the future to compensate for declining productivity due to other factors. The BRT was concerned that if the long-term decline in productivity reflected deteriorating conditions in freshwater habitat, this ESU could face very serious risks of local extirpations if ocean conditions reverted back to poor productivity conditions. Approximately 30 percent of the ESU has suffered habitat fragmentation by culverts and thermal barriers, generating concerns about ESU spatial structure. Additionally, the lack of response to favorable ocean conditions for some populations in smaller streams and the different patterns between north and south coast populations may indicate compromised connectivity among populations. The degradation of many lake habitats and the resultant impacts on several lake populations in the Oregon Coast coho ESU also pose risks to ESU diversity. The BRT noted that hatchery closures, reductions in the number of hatchery smolt releases, and improved marking rates of hatchery fish have significantly reduced risks to diversity associated with artificial propagation.

The BRT found high risk to the ESU's productivity, and comparatively lower risk to the ESU's abundance, spatial structure, and diversity. Informed by this risk assessment, a slight majority of the BRT concluded that the Oregon Coast coho ESU was “likely to become endangered within the foreseeable future.” However, a substantial minority of the BRT concluded that the ESU was “not in danger of extinction or likely to become endangered within the foreseeable future.” The minority believed that the large number of spawners in 2001-2002 and a high projected abundance for 2003 suggested that this ESU was not “in danger of extinction” or “likely to become endangered within the foreseeable future.” Furthermore, the minority believed that recent strong returns following 3 years of recruitment failure demonstrated that populations in this ESU are resilient.

Consideration of Artificial Propagation
—Our review of the five hatchery programs that were proposed to be listed as part of the ESU concluded that they collectively do not substantially reduce the extinction risk of the ESU (NMFS, 2003a, 2004a, 2004b; see proposed rule for a more detailed explanation of this assessment, 69 FR 33102; June 14, 2004). Our final determination that the North Umpqua River, Coos Basin, Coquille River, North Fork Nehalem River, and Fishhawk Lake coho hatchery programs are not part of the ESU does not alter our previous conclusion that artificial propagation does not contribute appreciably to the viability of the ESU.

In
Trout Unlimited
v.
Lohn
(Civ. No. 06-0483-JCC (W. D. Wash., June 13, 2006), the U.S. District Court for the Western District of Washington set aside our 2005 Hatchery Listing Policy, finding that the Policy's consideration of both natural and hatchery fish in ESA listing determinations departs from the ESA's central purpose to promote and conserve naturally self-sustaining populations. Although the extinction risk assessment in the 2006 record evaluated the status of the ESU in-total (including both within-ESU natural and hatchery fish), we found that consideration of artificial propagation does not reduce the risk of extinction of the ESU. Therefore, the above described assessment of extinction risk does not require revision in light of the ruling in the above case.

Preliminary Results of Oregon Coast Coho Recovery Planning
—NMFS' Technical Recovery Team (TRT) for the Oregon and Northern California Coast is charged with describing the historical population structure, developing biological recovery criteria with which to evaluate the status of an ESU relative to recovery, and identifying those factors limiting or impeding recovery. Prior to our 2006 determination not to list the Oregon Coast coho ESU, the TRT provided a preliminary report on its progress in developing these products for the Oregon Coast coho ESU (NMFS, 2005d). The TRT's preliminary report underscored the uncertainty associated with assessing the future status of the ESU. The TRT stated that “at this time our evaluation indicates, with a moderate degree of uncertainty, that the ESU is persistent” (the TRT defines a “persistent” ESU as one that is able to persist (i.e., not go extinct) over a 100-year period without artificial support, relating the term to “the simple risk of extinction, which is the primary determination of endangered status under the ESA”). The TRT further stated that “our evaluation of biological viability based on current and recent past conditions shows a high degree of uncertainty with respect to the statement that the ESU is sustainable” (the TRT defines a “sustainable” ESU as “one that, in addition to being persistent, is able to maintain its genetic legacy and long-term adaptive potential for the foreseeable future * * * so that risk of extinction will not increase in the future,” relating the term to “threatened status under the ESA”).

Biological Implications of Ocean-Climate Conditions
—In an August 12, 2005, memorandum, NMFS' Northwest Fisheries Science Center (NWFSC) summarized the most recent information available on West Coast ocean conditions, described observations of impacts on marine communities, and offered predictions of the implications of recent ocean conditions on West Coast salmon stocks, including the Oregon Coast coho ESU (NMFS, 2005e). The memorandum described recent observations of anomalous ocean conditions that may portend lower returns of coho salmon for the fall of 2005 and the next several years. The memorandum noted that indices of ocean-climate variation are suggestive of a regime shift in ocean-climate conditions that in the past have been associated with warmer water temperature, poor primary productivity, and generally less favorable conditions for coho marine survival. The recent in-situ observations confirm delayed coastal upwelling, anomalously warm sea surface temperatures, altered zooplankton community structure, and low survey abundances of juvenile salmon, possibly indicating low marine survival. Strong upwelling occurred in mid-July 2005 resulting in cooler sea surface temperatures, increased primary productivity, and generally more favorable conditions for salmon survival. It was unclear whether this delayed onset of coastal upwelling would compensate for earlier unfavorable conditions which occurred during critical life-history stages for coho salmon. The memorandum noted that model projections indicate that fish populations that prey on juvenile coho salmon may be reduced, possibly compensating somewhat for unfavorable marine survival conditions for coho returns in 2006. The memorandum

concluded that the NWFSC was relatively confident that the negative biological implications of recent ocean conditions for the Oregon Coast coho ESU would be dramatic over the next few years.

Conclusions Regarding the Status of the Oregon Coast Coho ESU

We conclude, after considering the above information contained in the record of our January 2006 determination (in a manner consistent with the Court's order), that the Oregon Coast coho ESU is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. This finding is based, in part, on the BRT's slight majority conclusion that the ESU is “likely to become endangered in the foreseeable future.” The TRT's subsequent preliminary assessment of ESU viability (NMFS, 2005d) was consistent with the BRT's assessment, finding a high degree of uncertainty whether the ESU is sustainable for the foreseeable future. Although returns in 2001 and 2002 were extremely encouraging, there remained concern whether future ocean conditions would favor such high levels of recruitment. The NWFSC's August 2005 memorandum describing the implications of recent ocean-climate conditions (NMFS, 2005e) did not assuage this concern, concluding that recent ocean conditions portended unfavorable marine survival conditions for Oregon Coast coho in the near term.

Consideration of New Information Since the January 2006 Determination

The ESA requires that listing determinations be made solely on the basis of the best scientific and commercial data available. To that end, we also considered new status and trend information made available since the 2003 BRT report, and since our January 2006 “not warranted” determination to ensure that our present listing determination for the Oregon Coast coho ESU has considered the best information available. We evaluated these new data to determine whether they supported our risk assessment based on the information contained in the January 2006 record alone.

Since the BRT convened in January 2003, the total abundance of natural spawners in the Oregon Coast coho ESU has declined each year (i.e., 2003-2006). The abundance of total natural spawners in 2006 (111,025 spawners) was approximately 43 percent of the recent peak abundance in 2002 (255,372 spawners). In 2003, ESU-level productivity (evaluated in terms of the number of spawning recruits resulting from spawners 3 years earlier) was above replacement (approximately 3.2 recruits per spawner). ESU-level productivity was essentially at replacement in 2004 (approximately 0.99 recruits per spawner), but below replacement in 2005 and 2006. The productivity observed in 2006 (approximately 0.49 recruits per spawner) is the lowest observed since 1991. From 2003-2006 harvest rates remained low, averaging approximately 12 percent of the total run. Marine survival from 2003-2006 (estimated in terms of the number of returning hatchery adults resulting from the number of hatchery smolts released 2 years earlier) was generally at or above the average during 1990-2006. The decline in ESU productivity from 2003-2006, while marine survival conditions were generally favorable, suggests that factors other than ocean conditions are responsible for the decline.

In August 2007, the Oregon and Northern California Coast TRT released a draft report entitled “Biological Recovery Criteria for the Oregon Coast coho Salmon Evolutionarily Significant Unit” (Wainwright
et al.
, 2007). This draft report presents biological criteria for assessing the ESU's progress toward recovery, and also applies these criteria in assessing the current biological status of the ESU. The TRT considered the population data available through 2004. This draft report thus represents a more recent assessment of the ESU's status relative to the 2003 BRT's review. The results of the recent draft report are consistent with the TRT's preliminary progress report described above (NMFS, 2005d), finding that there is low to moderate certainty that the ESU is sustainable for the foreseeable future. The recent draft report considered the population data available through 2004, and thus does not reflect the declining abundance and productivity observed in 2005 and 2006.

Preliminary spawner survey data for 2007 (the average peak number of spawners per mile observed during random coho spawning surveys in 41 streams) suggest that the 2007-2008 return of Oregon Coast coho is either (1) much reduced from abundance levels in 2006, or (2) exhibiting delayed run timing from previous years. As of December 13, 2007, the average peak number of spawners per mile was below 2006 levels in 38 of 41 surveyed streams (ODFW, 2007). It is possible that the timing of peak spawner abundance is delayed relative to previous years, and that increased spawner abundance in late December 2007 and January 2008 will compensate for the low levels observed thus far in the 2007-2008 spawning season.

Our review of the above new abundance and productivity information and the TRT's 2007 draft report does not indicate that the status of the Oregon Coast coho ESU has improved since the 2003 BRT report. The recent 5-year geometric mean abundance (2002-2006) of approximately 152,960 total natural spawners remains well above that of a decade ago (approximately 52,845 from 1992-1996). However, the decline in productivity from 2003 to 2006, despite generally favorable marine survival conditions and low harvest rates, is of concern.

After reviewing the scientific and commercial information available in the record concerning the status of the Oregon Coast Coho (in a manner consistent with the Court's order) and adding to the record the Draft 2007 TRT report, 2003-2006 abundance and marine survival information, and preliminary spawner survey information for 2007, we conclude that this information requires a conclusion that the ESU is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. The recent declines in the ESU's abundance and productivity are not necessarily indicative of a substantial degradation of the ESU's status. Similar interannual variability in abundance and productivity has been observed previously for the Oregon Coast coho ESU, and similar variability is expected to occur in the future. The principal inquiry in determining if the ESU warrants listing is whether present habitat conditions are sufficient to support a viable ESU, and whether future freshwater habitat conditions are expected to degrade. The present and future status of freshwater habitat for the Oregon Coast coho ESU remains uncertain. As noted above, we believe that if we had been permitted to consider all the scientific information in the record, and if we had been allowed more time for a complete scientific review of new information in a manner consistent with our typically thorough and comprehensive analytical processes, there is a reasonable possibility that we would have reached a different final listing determination.

Final Listing Determination

Consideration of ESA Section 4(a)(1) Factors

Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR part 424) requires us to add a species to the

List of Endangered and Threatened Species if it is endangered or threatened because of any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence. We have previously detailed the impacts of various factors contributing to the decline of Pacific salmonids as part of our prior listing determinations for 27 ESUs, as well as in supporting technical reports (e.g., NMFS, 1997b, “Coastal coho habitat factors for decline and protective efforts in Oregon;” NMFS, 1997c, “Factors Contributing to the Decline of Chinook Salmon—An Addendum to the 1996 West Coast Steelhead Factors for Decline Report;” NMFS, 1996a, “Factors for Decline—A Supplement to the Notice of Determination for West Coast Steelhead Under the Endangered Species Act”). Our prior listing determinations and technical reports concluded that all of the factors identified in section 4(a)(1) of the ESA have played a role in the decline of West Coast salmon and steelhead. In our 1998 threatened listing determination for the Oregon Coast coho ESU (63 FR 42588; August 10, 1998), we concluded that the decline of Oregon Coast coho populations is the result of several longstanding, human-induced factors (e.g., habitat degradation, water diversions, harvest, and artificial propagation) that exacerbate the adverse effects of natural environmental variability (e.g., floods, drought, and poor ocean conditions). The following discussion briefly summarizes our findings regarding the threats currently facing the Oregon Coast coho ESU. While these threats are treated in general terms, it is important to underscore that impacts from certain threats are more acute for some populations in the ESU.

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

In many Oregon coastal streams, past human activities (e.g., logging, agriculture, gravel mining, urbanization) have resulted in impediments to fish passage, degradation of stream complexity, increased sedimentation, reduced water quality and quantity, loss and degradation of riparian habitats, and loss and degradation of lowland, estuarine, and wetland coho rearing habitats. The relevant issues are whether current habitat conditions are adequate to support the ESU's persistence (that is, whether the species is endangered or threatened because of present destruction, modification, or curtailment of its habitat or range) and whether habitat conditions are likely to worsen in the future (that is, whether the species is endangered or threatened because of threatened destruction, modification, or curtailment of its habitat or range). Regarding the first issue, the 2003 BRT noted uncertainty about the adequacy of current habitat conditions, and this uncertainty contributed to the slight majority finding that the ESU was likely to become an endangered species within the foreseeable future.

Regarding the second issue, the threat of future habitat declines, the 2003 BRT noted that “if the long-term decline in productivity [of the Oregon Coast coho ESU] reflects deteriorating conditions in freshwater habitat, this ESU could face very serious risks of local extinction during the next cycle of poor ocean conditions.” The BRT thus identified potential future habitat declines as a potential concern. As part of our January 2006 determination we evaluated the likely future trend of various habitat elements and the likely impact of future population growth (NMFS, 2005a). With respect to population growth and urbanization, we found that approximately 3.4 percent of “high intrinsic potential” habitat areas for coho (e.g., lowland stream reaches particularly important to juvenile coho rearing and overwintering survival) are within currently designated urban growth areas, suggesting that future human population growth may not represent a significant threat to the ESU (NMFS, 2005a). With respect to lowland and upland habitat areas under various types of land use and ownership, we found that some areas are likely to improve, some are likely to decline, and others are likely to remain in their current condition. Overall, there is a high level of uncertainty associated with projections of future habitat conditions due to underlying economic and sociopolitical factors influencing forest harvest and restoration rates, urban conversion of agricultural and forest lands, and the enforcement and implementation of land-use plans and regulations. Based on our analysis, we found that there is insufficient evidence to conclude that the Oregon Coast coho ESU was more likely than not to become an endangered species because of the “threatened destruction, modification, or curtailment of its habitat or range.” It remains uncertain whether future freshwater habitat conditions will be adequate to support a viable coho ESU, particularly during periods of unfavorable ocean conditions and poor marine survival.

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

Harvest rates on Oregon Coast coho populations ranged between 60 and 90 percent between the 1960s and 1980s (Good
et al.
, 2005). Modest harvest restrictions were imposed in the late 1980s, but harvest rates remained high until most directed coho salmon harvest was prohibited in 1994. These restrictive harvest regulations, developed concurrently with the Oregon Plan and subsequently revised, have imposed conservative restrictions on directed and incidental fishery mortality, and appropriately consider marine survival conditions and the biological status of naturally produced coho populations. Under these revised regulations, harvest rates are stipulated to be between 0 and 8 percent during critically low spawner abundance, and may increase to a maximum exploitation rate of 45 percent under high survival and abundance conditions (Oregon, 2005). Empirical data over the last 10 years show that harvest mortality for Oregon Coast coho has been maintained below 15 percent since the adoption of the revised regulations (Oregon, 2005). We agree with the 2003 BRT's finding that overutilization has been effectively addressed for Oregon Coast coho populations.

C. Disease or Predation

Past species introductions and habitat modifications have resulted in increased non-native predator populations, notably in coastal lake habitats. Predation by increased populations of marine mammals (principally sea lions) may influence salmon abundance in some local populations when other prey species are absent and where physical conditions lead to the concentration of adults and juveniles (e.g., Cooper and Johnson, 1992). However, the extent to which marine mammal predation threatens the persistence of Oregon coast coho populations is unknown.

Infectious disease is one of many factors that can influence adult and juvenile salmon survival. Salmonids are exposed to numerous bacterial, protozoan, viral, and parasitic organisms in spawning and rearing areas, hatcheries, migratory routes, and the marine environment. Specific diseases such as bacterial kidney disease, ceratomyxosis, columnaris, furunculosis, infectious hematopoietic

necrosis virus, redmouth and black spot disease, erythrocytic inclusion body syndrome, and whirling disease, among others, are present and known to affect West Coast salmonids (Rucker
et al.
, 1953; Wood, 1979; Leek, 1987; Foott
et al.
, 1994; Gould and Wedemeyer, undated). In general, very little current or historical information exists to quantify trends over time in infection levels and disease mortality rates. However, studies have shown that naturally spawned fish tend to be less susceptible to pathogens than hatchery-reared fish (Buchanon
et al.
, 1983; Sanders
et al.
, 1992). Native salmon populations have co-evolved with specific communities of these organisms, but the widespread use of artificial propagation has introduced exotic organisms not historically present in a particular watershed. Habitat conditions such as low water flows and high temperatures can exacerbate susceptibility to infectious diseases.

Aggressive hatchery reform efforts implemented by the State of Oregon have reduced the magnitude and distribution of hatchery fish releases in the ESU, and, consequently, the interactions between hatchery- and natural-origin fish and the potential transmission of infectious diseases. Additionally, regulations controlling hatchery effluent discharges into streams have reduced the potential of pathogens being released into coho habitats.

D. The Inadequacy of Existing Regulatory Mechanisms

Existing regulations governing coho harvest have dramatically improved the ESU's likelihood of persistence. These regulations are unlikely to be weakened in the future. Of the wide range of land uses and other activities affecting salmon habitat, however, some are more amenable to regulation than others. In the range of Oregon Coast coho, the regulation of some activities and land uses will alter past harmful practices, resulting in habitat improvements; the regulation of other activities is inadequate to alter past harmful practices, resulting in habitat conditions continuing in their present state; and the regulation of still other activities and land uses will lead to further degradation (NMFS, 2005a).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Natural variability in ocean and freshwater conditions has at different times exacerbated or mitigated the effects on Oregon Coast coho populations of habitat limiting factors. There is considerable uncertainty in predicting ocean-climate conditions into the foreseeable future and their biological impacts on the Oregon Coast coho ESU. Variability in ocean-climate conditions is expected, and coho productivity and abundance are similarly expected to fluctuate in response to this natural environmental variability. It is unknown whether unfavorable ocean conditions will predominate in the foreseeable future.

Prior to the 1990s, coho hatchery programs along the Oregon coast posed substantial risks to the survival, reproductive fitness, and diversity of natural populations. High numbers of hatchery coho were released in most of the basins in the ESU, most programs propagated non-native broodstocks, and naturally spawning hatchery-origin strays were common in most natural production areas. Oregon's aggressive hatchery reform efforts have resulted in substantial reductions of this threat. Hatchery coho are released in less than half of the populations in the ESU, and the magnitude of releases has declined from a peak of 35 million smolts in 1981, to approximately 800,000 in 2005. Hatchery programs are currently constrained to releasing no more than 200,000 smolts in any basin. The reduction in the number of hatchery fish released has reduced the potential for competition with, and predation on, natural coho. The proportion of hatchery-origin fish in natural spawning areas has been reduced to below 10 percent in all but two populations in the ESU. All hatchery coho releases in the ESU are now marked, affording improved monitoring and assessment of the co-existing naturally produced coho populations. Broodstock management practices have been modified to minimize the potential for hatchery-origin fish to pose risks to the genetic diversity of local natural populations. We conclude the ESU is not in danger of extinction or likely to become endangered in the foreseeable future because of hatchery practices.

Efforts Being Made To Protect the Species

Section 4(b)(1)(A) of the ESA requires the Secretary to make listing determinations solely on the basis of the best scientific and commercial data available after taking into account efforts being made to protect a species. In making listing determinations we first assess the species' level of extinction risk, identify factors that threaten its continued existence, and assess existing efforts being made to protect the species to determine if those measures ameliorate the risks it faces. The reader is referred to the June 14, 2004, proposed rule for a summary of efforts, including those under the Oregon Plan, being made to protect Oregon Coast coho populations (69 FR 33102, at 33142). Harvest reductions and improvements in hatchery management are noteworthy in that they have been fully implemented and their effectiveness is manifested in the improved status of Oregon Coast coho populations. The benefits of these accomplishments in hatchery and harvest management under the Oregon Plan, however, were fully considered in the 2003 BRT's assessment of ESU extinction risk. In our June, 14, 2004, proposed listing for the Oregon Coast coho ESU (69 FR 33102), we evaluated all other relevant protective efforts and determined that they did not substantially alter our finding that the ESU is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

Since our January 2006 determination, the State of Oregon released a draft Coho Conservation Plan for Oregon Coast coho. The draft Conservation Plan culminated a 2-year development process including significant input and involvement from local stakeholders. The draft conservation plan establishes ambitious conservation goals and is an important step in describing limiting factors and threats, identifying specific conservation actions to address these factors and threats, and designing a robust research and monitoring program to evaluate the effectiveness of conservation actions that contribute to rebuilding the Oregon Coast coho ESU. As reflected in the comments that we provided on the draft Conservation Plan (NMFS, 2007e), the plan lacks the necessary detail, specificity, and commitment of resources to provide sufficient certainty of implementation and effectiveness to alter our assessment that the ESU is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

Final Listing Determination

The ESA defines an endangered species as any species in danger of extinction throughout all or a significant portion of its range, and a threatened species as any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and taking into

account those efforts, if any, being made to protect such species.

The information included in the record of our January 2006 determination (as the Court has ordered us to consider it) indicates that the Oregon Coast coho ESU is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. New abundance and productivity data do not suggest that the ESU's biological status has improved since our January 2006 determination. Efforts being made to protect the species, at present, do not provide sufficient certainty of implementation or effectiveness to mitigate the assessed level of extinction risk. Therefore, we conclude that the Oregon Coast coho ESU warrants listing under the ESA as a threatened species.

Prohibitions and Protective Regulations

On June 28, 2005, as part of the final listing determinations for 16 ESUs of West Coast salmon, we amended and streamlined the previously promulgated ESA section 4(d) regulations for threatened salmon and steelhead (70 FR 37160). We finalized an amendment to provide the necessary flexibility to ensure that fisheries and artificial propagation programs are managed consistently with the conservation needs of threatened salmon and steelhead. Under this change the section 4(d) protections apply to natural and hatchery fish with an intact adipose fin, but not to listed hatchery fish that have had their adipose fin removed prior to release into the wild. Additionally, we made several simplifying and clarifying changes to the 4(d) regulations, including updating an expired limit (section 223.203(b)(2)), providing a temporary exemption for ongoing research and enhancement activities, and applying the same set of 14 limits to all threatened salmon and steelhead.

Description of Protective Regulations Being Afforded Oregon Coast Coho

Consistent with the June 2005 amended ESA section 4(d) regulations, this final rule applies the ESA section 9(a)(1) take and other prohibitions (subject to the “limits” discussed below) to unmarked members of the Oregon Coast coho ESU with an intact adipose fin. (The clipping of adipose fins in juvenile hatchery fish just prior to release into the natural environment is a commonly employed method for the marking of hatchery production). We believe this approach provides needed flexibility to appropriately manage the artificial propagation and directed take of threatened salmon and steelhead for the conservation and recovery of the listed species.

The June 2005 amended ESA section 4(d) regulations simplified the previously promulgated 4(d) rules by applying the same set of 14 “limits” to all threatened salmon and steelhead. These limits allow us to exempt certain activities from the take prohibitions, provided that the applicable programs and regulations meet specific conditions to adequately protect the listed species. In this final rule we are applying this same set of 14 limits to the Oregon Coast coho ESU. Comprehensive descriptions of each 4(d) limit are contained in “A Citizen's Guide to the 4(d) Rule” (available on the Internet at
http://www.nwr.noaa.gov
), and in previously published
Federal Register
notices (65 FR 42422, July 10, 2000; 65 FR 42485, July 10, 2000; 69 FR 33102; June 14, 2004; 70 FR 37160, June 28, 2005). These “limits” include: activities conducted in accordance with ESA section 10 incidental take authorization (50 CFR 223.203(b)(1)); scientific or artificial propagation activities with pending permit applications at the time of rulemaking (§ 223.203(b)(2)); emergency actions related to injured, stranded, or dead salmonids (§ 223.203(b)(3)); fishery management activities (§ 223.203(b)(4)); hatchery and genetic management programs (§ 223.203(b)(5)); activities in compliance with joint tribal/state plans developed within
United States

(U.S.)
v.
Washington
or
U.S.
v.
Oregon
(§ 223.203(b)(6)); scientific research activities permitted or conducted by the states (§ 223.203(b)(7)); state, local, and private habitat restoration activities (§ 223.203(b)(8)); properly screened water diversion devices (§ 223.203(b)(9)); routine road maintenance activities (§ 223.203(b)(10)); certain park pest management activities (§ 223.203(b)(11)); certain municipal, residential, commercial, and industrial development and redevelopment activities (§ 223.203(b)(12)); management activities on state and private lands within the State of Washington (§ 223.203(b)(13)); and activities undertaken consistent with an approved tribal resource management plan (§ 223.204).

Limit § 223.203(b)(2) exempts scientific or artificial propagation activities with pending applications for ESA section 4(d) approval. The limit was amended as part of the June 28, 2005, final rule to temporarily exempt such activities from the take prohibitions during a “grace period,” provided that a complete application for 4(d) approval was received within a specified period from the notice's publication (70 FR 37160). The limit was again modified in February 2006 when the 4(d) regulations were extended to the Upper Columbia River steelhead DPS (71 FR 5178; February 1, 2006). The deadlines associated with this exemption have expired. Consistent with the 2004 proposed rule to list Oregon Coast coho and extend 4(d) regulations to the ESU (69 FR 33102; June 14, 2004), we believe it is necessary and advisable for the conservation and recovery of Oregon Coast coho to allow research and enhancement activities to continue uninterrupted while we process the necessary permits and approvals. Provided we receive a complete application by June 10, 2008, the take prohibitions will not apply to research and enhancement activities which affect Oregon Coast coho until the application is rejected as insufficient, a permit or 4(d) approval is issued, or until March 31, 2009, whichever occurs earliest. The length of this “grace period” is necessary because we process applications for 4(d) approval annually.

Other Protective ESA Provisions

Section 7(a)(4) of the ESA requires that Federal agencies confer with NMFS on any actions likely to jeopardize the continued existence of a species proposed for listing and on actions likely to result in the destruction or adverse modification of proposed critical habitat. For listed species, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify its critical habitat. If a proposed Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with NMFS or the FWS, as appropriate. Examples of Federal actions likely to affect salmon include authorized land management activities of the USFS and the BLM, as well as operation of hydroelectric and storage projects of the Bureau of Reclamation (BOR) and the U.S. Army Corps of Engineers (USACE). Such activities include timber sales and harvest, permitting livestock grazing, hydroelectric power generation, and flood control. Federal actions, including the USACE section 404 permitting activities under the Clean Water Act, USACE permitting activities under the River and Harbors Act, Federal Energy Regulatory Commission (FERC) licenses for non-Federal development and operation of hydropower, and Federal

salmon hatcheries, may also require consultation.

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with authority to grant exceptions to the ESA's “take” prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) conducting research that involves a directed take of listed species. A directed take refers to the intentional take of listed species. We have issued section 10(a)(1)(A) research/enhancement permits for currently listed ESUs for a number of activities, including trapping and tagging, electroshocking to determine population presence and abundance, removal of fish from irrigation ditches, and collection of adult fish for artificial propagation programs. Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities performing activities which may incidentally take listed species. The types of activities potentially requiring a section 10(a)(1)(B) incidental take permit include the operation and release of artificially propagated fish by state or privately operated and funded hatcheries, state or academic research that may incidentally take listed species, the implementation of state fishing regulations, logging, road building, grazing, and diverting water into private lands.

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

NMFS and the FWS published in the
Federal Register
on July 1, 1994 (59 FR 34272), a policy that NMFS shall identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. The intent of this policy is to increase public awareness of the effect of this listing on proposed and ongoing activities within the species' range. At the time of the final rule, we must identify to the extent known specific activities that will not be considered likely to result in violation of section 9, as well as activities that will be considered likely to result in violation. We believe that, based on the best available information, the following actions will not result in a violation of section 9:

1. Possession of fish from the Oregon Coast coho ESU that are acquired lawfully by permit issued by NMFS pursuant to section 10 of the ESA, or by the terms of an incidental take statement issued pursuant to section 7 of the ESA; or

2. Federally funded or approved projects that involve activities such as silviculture, grazing, mining, road construction, dam construction and operation, discharge of fill material, stream channelization or diversion for which section 7 consultation has been completed, and when activities are conducted in accordance with any terms and conditions provided by NMFS in an incidental take statement accompanying a biological opinion.

There are many activities that we believe could potentially take salmon by harming them. “Harm” is defined by our regulations as “an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering” (50 CFR 222.102 (harm)). Activities that may harm the Oregon Coast coho ESU resulting in a violation of the section 9 take and other prohibitions, include, but are not limited to:

1. Land-use activities that degrade habitats for the Oregon Coast coho ESU (e.g., logging, grazing, farming, urban development, road construction in riparian areas and areas susceptible to mass wasting and surface erosion);

2. Destruction/alteration of the habitats for the Oregon Coast coho ESU, such as removal of large woody debris and “sinker logs” or riparian shade canopy, dredging, discharge of fill material, draining, ditching, diverting, blocking, gravel mining, or altering stream channels or surface or ground water flow;

3. Discharges or dumping of toxic chemicals or other pollutants (e.g., sewage, oil, gasoline) into waters or riparian areas supporting the Oregon Coast coho ESU;

4. Violation of discharge permits;

5. Application of pesticides affecting water quality or riparian areas for the Oregon Coast coho ESU;

6. Interstate and foreign commerce of fish from the Oregon Coast coho ESU and import/export of fish from the Oregon Coast coho ESU without a threatened or endangered species permit;

7. Collecting or handling of fish from the Oregon Coast coho ESU. Permits to conduct these activities are available for purposes of scientific research or to enhance the conservation or survival of the species; and

8. Introduction of non-native species likely to prey on fish from the Oregon Coast coho ESU or displace them from their habitat.

These lists are not exhaustive. They are intended to provide some examples of the types of activities that might or might not be considered by NMFS as constituting a take of fish in the Oregon Coast coho ESU under the ESA and its regulations. Questions regarding whether specific activities would constitute a violation of the section 9 take and other prohibitions, and general inquiries regarding prohibitions and permits, should be directed to NMFS (see
ADDRESSES
).

Designating Critical Habitat

Methods and Criteria Used to Designate Critical Habitat

The following paragraphs and sections describe the relevant definitions and guidance found in the ESA and our implementing regulations, and the key methods and criteria we used to designate critical habitat after incorporating, as appropriate, comments and information received on the proposed rule.

Section 4 of the ESA (16 U.S.C. 1533(b)(2) and our regulations at 50 CFR 424.12(a) require that we designate critical habitat, and make revisions thereto, “on the basis of the best scientific data available.” Section 3 of the ESA (16 U.S.C. 1532(5)) defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * * on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.”

Pursuant to our regulations, when identifying physical or biological features essential to conservation, we consider the following requirements of the species: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, or rearing of offspring;

and, generally, (5) habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of the species (see 50 CFR 424.12(b)). In addition to these factors, we also focus on the more specific primary constituent elements (PCEs) within the occupied areas that are essential to the conservation of the species. The regulations identify PCEs as including, but not limited to: “roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.” For an area containing PCEs to meet the definition of critical habitat, we must conclude that the PCEs in that area “may require special management considerations or protection.” Our regulations define special management considerations or protection as “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” Both the ESA and our regulations, in recognition of the divergent biological needs of species, establish criteria that are species specific rather than a “one size fits all” approach.

Our regulations state that, “[t]he Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species' (50 CFR 424.12(e)). Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Section 4 of the ESA (16 U.S.C. 1533(b)(2)) requires that, before designating critical habitat, we consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat, and the Secretary may exclude any area from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species. This exercise of discretion must be based upon the best scientific and commercial data. Once critical habitat for a salmon or steelhead ESU is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with and with the assistance of NMFS, ensure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat.

Identifying the Geographical Area Occupied by the Species and Specific Areas Within the Geographical Area

In past critical habitat designations, we had concluded that the limited availability of species distribution data prevented mapping salmonid critical habitat at a scale finer than occupied river basins (65 FR 7764; February 16, 2000). Therefore, the 2000 designations defined the “geographical area occupied by the species, at the time of listing” as all accessible river reaches within the current range of the listed species.

In the 2004 proposed rule to designate critical habitat for 13 ESUs of Pacific salmon and steelhead (69 FR 74572; December 14, 2004) we described in greater detail that, since the previous designations in 2000, we can now be more precise about the “geographical area occupied by the species” because Federal, state, and tribal fishery biologists have made progress documenting and mapping actual species distribution at the level of stream reaches. Moreover, much of the available data can now be accessed and analyzed using Geographic Information System (GIS) software to produce consistent and fine-scale maps (NMFS, 2007b; StreamNet, 2005). The current maps document fish presence by identifying occupied stream reaches where the species has been observed. It also identifies stream reaches where the species is presumed to occur based on the professional judgment of biologists familiar with the watershed (although in some cases there are streams classified as occupied based on professional judgment when in fact the species has been observed but the GIS data have not been updated). We made use of these finer-scale data for the final critical habitat designations for 12 Pacific Northwest ESUs (70 FR 52630; September 2, 2005), as well as for the current critical habitat designation. We believe that this approach enables a more accurate delineation of the “geographical area occupied by the species” referred to in the ESA definition of critical habitat. We received some comments on this approach, some in support and some against it (see comments in final critical habitat designations for 12 Pacific Northwest ESUs, 70 FR 52630, September 2, 2005). However, none of the latter comments described a specific methodology that would yield a better approach than what we used.

We are now also able to identify “specific areas” (ESA section 3(5)(a)) and “particular areas” (ESA section 4(b)(2)) at a finer scale than in 2000. Since 2000, various Federal agencies have mapped fifth field hydrologic units (referred to as “HUC5s” or “watersheds”) throughout the Pacific Northwest using USGS mapping conventions (Seaber
et al.
, 1986). This information is now generally available via the internet (NMFS, 2007b), and we have expanded our GIS resources to use these data. As in the 2000 designations (in which we used larger fourth field hydrologic units), we used the HUC5s to organize critical habitat information systematically and at a scale that is applicable to the spatial distribution of salmon. Organizing information at this scale is especially relevant to salmonids, since their innate homing ability allows them to return to the watersheds where they were born. Such site fidelity results in spatial aggregations of salmonid populations that generally correspond to the area encompassed by subbasins or HUC5 watersheds (Washington Department of Fisheries
et al.
, 1992; Kostow, 1995; McElhany
et al.
, 2000). As noted above regarding our use of finer scale data, none of the comments received provided us with a specific alternative methodology that would yield a better approach than the watershed-scale approach we adopted.

The USGS maps watershed units as polygons, bounding a drainage area from ridge-top to ridge-top, encompassing streams, riparian areas and uplands. Within the boundaries of any watershed, there are stream reaches not occupied by the species. Land areas within the HUC5 boundaries are also generally not “occupied” by the species (though certain areas such as flood plains or side channels may be occupied at some times of some years). We used the watershed boundaries as a basis for aggregating occupied stream reaches, for purposes of delineating “specific” areas at a scale that often corresponds well to salmonid population structure and ecological processes. Although we are designating only the streams and not the entire watershed, our documents frequently refer to the “specific areas” as “watersheds” because that is the term often used as a convenient shorthand. We also refer to the stream reaches as “habitat areas.” Each watershed was reviewed by the CHART to verify occupation, PCEs, and special management considerations (see “Critical Habitat Analytical Review Team” section below).

The watershed-scale aggregation of stream reaches also allowed us to analyze the impacts of designating a “particular area,” as required by ESA section 4(b)(2). As a result of watershed

processes, many activities occurring in riparian or upland areas and in non-fish-bearing streams may affect the physical or biological features essential to conservation in the occupied stream reaches. The watershed boundary thus describes an area in which Federal activities have the potential to affect critical habitat (Spence
et al.
, 1996). Using watershed boundaries for the economic analysis ensured that all potential economic impacts were considered. Section 3(5) defines critical habitat in terms of “specific areas,” and section 4(b)(2) requires the agency to consider certain factors before designating “particular areas.” In the case of West Coast salmon and steelhead, the biology of the species, the characteristics of their habitat, the nature of the impacts, and the limited information currently available at finer geographic scales made it appropriate to consider “specific areas” and “particular areas” as the same uni

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A08-552. Public record. Not legal advice.