Endangered and Threatened Species; Threatened Status for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon

SUMMARY: In 1995, NMFS completed a comprehensive status review of west

coast coho salmon (Oncorhynchus kisutch) that resulted in proposed

listings for three Evolutionarily Significant Units (ESUs), including

an Oregon Coast ESU of coho salmon inhabiting coastal streams between

Cape Blanco and the Columbia River. After reviewing additional

information, including biological data on the species' status and an

assessment of protective efforts, NMFS concluded that this ESU did not

warrant listing. However, the Oregon District Court recently overturned

the decision and remanded the rule back to the agency. The District

Court concluded that the ESA does not allow NMFS to consider the

biological effects of future or voluntary conservation measures when

making a listing determination. In light of the Court's order, the

agency now concludes that the Oregon Coast coho salmon ESU warrants

listing as a threatened species.

NMFS will issue any protective regulations deemed necessary under

section 4(d) of the Endangered Species Act (ESA) for this ESU in a

separate rulemaking. Even though NMFS is not issuing protective

regulations for this ESU at this time, Federal agencies are required

under section 7 of the ESA to consult with NMFS if any activity they

authorize, fund, or carry out may affect listed Oregon Coast coho

salmon.

In the Oregon Coast ESU, only naturally spawned populations of coho

salmon are listed. NMFS has examined the relationship between hatchery

and natural populations of coho salmon in this ESU and determined that

none of the hatchery populations are currently essential for recovery

and, therefore, the hatchery populations are not listed.

DATES: Effective October 9, 1998.

ADDRESSES: Garth Griffin, NMFS, Northwest Region, Protected Species

Program, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; Kellie

Carter, NMFS, Office of Protected Resources, 1315 East-West Highway,

Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Rob Jones at (503) 230-5429 or Garth

Griffin at (503) 231-2005.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

The history of petitions received regarding coho salmon is

summarized in the proposed rule published on July 25, 1995 (60 FR

38011). The most comprehensive petition was submitted by the Pacific

Rivers Council and by 22 co-petitioners on October 20, 1993. In

response to that petition, NMFS assessed the best available scientific

and commercial data, including technical information from Pacific

Salmon Biological and Technical Committees (PSBTCs) in Washington,

Oregon, and California. The PSBTCs consisted of scientists from

Federal, state, and local resource agencies, Indian tribes,

universities, industries, professional societies, and public interest

groups with technical expertise relevant to coho salmon. NMFS also

established a Biological Review Team (BRT), composed of staff from its

Northwest Fisheries Science Center and Southwest Regional Office, which

conducted a coastwide status review for coho salmon (Weitkamp et al.,

1995).

Based on the results of the BRT report, and after considering other

information and existing conservation measures, NMFS published a

proposed listing determination (60 FR 38011, July 25, 1995) that

identified six ESUs of coho salmon, ranging from southern British

Columbia to central California. The Olympic Peninsula ESU was found not

to warrant listing, and the Oregon Coast ESU, Southern Oregon/Northern

California Coasts ESU, and Central California Coast ESU were proposed

for listing as threatened species. The Puget Sound/Strait of Georgia

ESU and the lower Columbia River/southwest Washington Coast ESU were

identified as candidates for listing. NMFS is in the process of

completing status reviews for the latter two ESUs; results and findings

for both will be announced in an upcoming Federal Register document.

On October 31, 1996, NMFS published a final rule listing the

Central California Coast ESU as a threatened species (61 FR 56138).

Concurrently, NMFS announced that a 6-month extension was warranted for

the Oregon Coast and Southern Oregon/Northern California Coasts ESUs

(61 FR 56211), pursuant to section 4(b)(6)(B)(i) of the ESA, due to the

fact that there was

[[Page 42588]]

substantial disagreement regarding the sufficiency and accuracy of the

available data relevant to the listing determination.

On May 6, 1997, NMFS issued a final rule listing the Southern

Oregon/Northern California coasts coho salmon ESU as a threatened

species (62 FR 24588). In that document, NMFS withdrew its proposed

rule to list the Oregon Coast coho salmon ESU as a threatened species,

based in part on conservation measures contained in the Oregon Coastal

Salmon Restoration Initiative (OCSRI). The OCSRI is a comprehensive

conservation plan directed specifically at coho salmon stocks on the

coast of Oregon (OCSRI, 1997a). This plan was later expanded to include

conservation measures for coastal steelhead stocks (OCSRI, 1997b) and

renamed the ``Oregon Plan for Salmon and Watersheds'' (OPSW). For a

detailed description of the OPSW, refer to the May 6, 1997, listing

determination for Southern Oregon/Northern California coho salmon (62

FR 24588).

Conservation benefits accruing from the Oregon Plan and the

subsequent Memorandum of Agreement (MOA) between NMFS and the State of

Oregon, April 23, 1997, which further defined Oregon's commitment to

salmon conservation, formed a major basis for NMFS' original

determination to withdraw the listing proposal for the Oregon Coast

coho salmon ESU. In particular, NMFS scientists expressed the view that

implementation of OPSW harvest and hatchery reforms may substantially

reduce the short-term risk of extinction faced by the Oregon Coast ESU.

They also viewed habitat protection and restoration as key to ensuring

the long-term survival of the ESU. While NMFS determined that the OPSW

contains many programs that will improve habitat conditions for coho

salmon, many of these measures needed strengthening to ensure the

creation and maintenance of high quality habitat over the long term.

Thus, in declining to list the Oregon Coast ESU in May 1997, NMFS

relied on the harvest, hatchery and habitat programs in the OPSW, as

well as commitments to strengthen habitat measures made in the MOA.

On June 1, 1998, the Federal District Court for the District of

Oregon issued an opinion finding NMFS' May 6, 1997, determination

regarding the Oregon Coast coho salmon ESU arbitrary and capricious,

Oregon Natural Resources Council et. al v. Daley, CV-97-1155-ST (D. Or.

June 1, 1998). The Court vacated NMFS' determination and remanded the

case to NMFS for further consideration. In vacating NMFS' decision to

withdraw its proposed rule to list the Oregon Coast coho salmon ESU,

the Oregon District Court held that the ESA does not allow NMFS to

consider the biological effects of future or voluntary conservation

measures and that NMFS could give no weight to such measures in its

listing determination. NMFS believes this legal interpretation of the

ESA is incorrect and is appealing that decision. The District Court and

the Ninth Circuit Court of Appeals declined to stay the District

Court's order requiring NMFS to make a new decision by August 3, 1998,

during the pendency of NMFS' appeal. Therefore, NMFS is issuing the new

rule in accordance with the Court's order.

This determination is based solely on information and data

contained in the agency's west coast coho salmon administrative record

as it existed on May 6, 1997. Although NMFS has received a substantial

amount of new information regarding the status of the ESU and efforts

being made to protect it, NMFS could not fully integrate that

information into the current determination. In order to do so, NMFS

would have to reconvene the BRT, the members of which are now fully

occupied in finishing NMFS' comprehensive status review of Pacific

salmonids. However, NMFS will continue to review the status of the ESU

and propose changes as needed.

Species Life History and Status

Biological information for Oregon Coast coho salmon can be found in

species status assessments by NMFS (Weitkamp et al., 1995; NMFS, 1997a)

and by Oregon Department of Fish and Wildlife (Nickelson et al., 1992;

OCSRI 1997a), and in species life history summaries by Laufle et al.,

1986; Emmett et al., 1991; and Sandercock, 1991, and by Federal

Register documents (60 FR 38011, July 25, 1995; 62 FR 24588, May 6,

1997).

Summary of Comments Regarding the Oregon Coast ESU

NMFS held six public hearings in California, Oregon, and Washington

to solicit comments on the proposed listing determination for west

coast coho salmon. Sixty-three individuals presented testimony at the

hearings. During the 90-day public comment period, NMFS received 174

written comments on the proposed rule from state, Federal, and local

government agencies, Indian tribes, non-governmental organizations, the

scientific community, and other individuals. In accordance with agency

policy (59 FR 34270, July 1, 1994), NMFS also requested a scientific

peer review of the proposed rule and received responses from two of the

seven reviewers. A summary of major public comments pertaining to the

Oregon Coast coho salmon ESU (including issues raised by peer

reviewers) is presented in NMFS' May 6, 1997, Federal Register document

(62 FR 24588).

Summary of Factors Affecting Coho Salmon

Section 4(a)(1) of the ESA and NMFS listing regulations (50 CFR

part 424) set forth procedures for listing species. The Secretary of

Commerce (Secretary) must determine, through the regulatory process, if

a species is endangered or threatened based upon 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.

The factors threatening naturally reproducing coho salmon

throughout its range are numerous and varied. For coho salmon

populations in Oregon, the present depressed condition is the result of

several longstanding, human-induced factors (e.g., habitat degradation,

water diversions, harvest, and artificial propagation) that serve to

exacerbate the adverse effects of natural environmental variability

from such factors as drought, floods, and poor ocean conditions.

As noted earlier, NMFS received numerous comments regarding the

relative importance of various factors contributing to the decline of

coho salmon. A summary of various risk factors and their role in the

decline of the Oregon Coast coho salmon ESU is presented in NMFS' May

6, 1997, Federal Register document (62 FR 24588), as well as in several

documents contained in the agency's west coast coho salmon

administrative record (NMFS, 1996, 1997a, and 1997b; OCSRI, 1997a).

Determination

In keeping with the June 1, 1998, order of the Oregon District

Court, NMFS has re-assessed the scientific and commercial information

available at the time of the May 1997 decision. The BRT report (NMFS,

1997a) concluded that, although the species was not at significant

short-term risk of extinction, ``...assuming present conditions

continue into the future (and that proposed harvest and hatchery

reforms are not implemented), ...this ESU was

[[Page 42589]]

likely to become endangered in the foreseeable future.'' Among the

BRT's concerns were that this ESU's current abundance was substantially

less than it was historically, and both recruitment and recruits-per-

spawner declined over a significant portion of the ESU's range. In

addition, habitat degradation and inadequate regulatory mechanisms

posed continued threats to this species' survival.

While NMFS reaffirms its conclusion that the species is not at

significant short-term risk of extinction, i.e, is not endangered, the

agency now must find that the species is likely to become endangered in

the foreseeable future. This decision is driven by the District Court's

order, which precludes NMFS from considering any non-Federal efforts

that will take place in the future or are voluntary in nature. Although

NMFS still believes these measures should be considered in the listing

determination and is appealing the Court's decision, the current

determination cannot and does not rely on the application in the future

of the harvest and hatchery measures contained in the Oregon Plan, nor

the habitat improvement programs being undertaken under the Oregon

Plan, nor the commitments made by Oregon in the MOA for improvement of

applicable habitat measures. Many of these measures address the reforms

considered necessary or important by NMFS. However, in light of the

Court's order on factors NMFS may not and should not consider, NMFS

must now determine that the Oregon Coast coho salmon ESU warrants

listing as a threatened species under the ESA.

As described in agency status reviews (Weitkamp et al., 1995; NMFS,

1997a) and the proposed listing determination for west coast coho

salmon (60 FR 38011, July 25, 1995), NMFS defines the Oregon Coast coho

salmon ESU to include all native, naturally spawned populations of coho

salmon (and their progeny) that are part of the biological ESU and

reside below long-term, naturally impassible barriers in streams

between the Columbia River and Cape Blanco (Oregon). NMFS has evaluated

the status of thirteen hatchery stocks of coho salmon presently reared

and released within the range of this ESU (NMFS, 1997a, 1998). Four of

these hatchery stocks either are not considered part of the ESU (Fall

Creek, Siletz River, and Trask River) or are of uncertain relationship

to the ESU (North Fork Nehalem River).

In contrast, NMFS has concluded that fish from nine Oregon hatchery

populations (Coos River, Coquille River, Cow Creek, North Umpqua River,

Smith River, Tahkenitch/Siltcoos, Alsea River and tributaries, Salmon

River, and Fishhawk Creek) are part of this ESU. None of these nine

hatchery stocks are presently deemed ``essential'' for the ESU's

recovery (58 FR 17573, April 5, 1993). Hence, these hatchery fish are

not being listed at this time. However, NMFS recognizes that some of

the hatchery populations may play an important role in recovery

efforts. The determination that a hatchery stock is not ``essential''

for recovery does not preclude it from playing a role in recovery. Any

hatchery population that is part of the ESU is available for use in

recovery if needed. In this context, an ``essential'' hatchery

population is one that is vital for full incorporation into recovery

efforts (for example, if the associated natural population(s) were

extinct or at high risk of extinction). Under such circumstances, NMFS

would consider taking the administrative action of listing existing

hatchery fish.

NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon

Under the Endangered Species Act'' (58 FR 17573, April 5, 1993)

provides guidance on the treatment of hatchery stocks in the event of a

listing. Under this policy, ``progeny of fish from the listed species

that are propagated artificially are considered part of the listed

species and are protected under the ESA.'' (58 FR 17573). In the case

of four hatchery populations (Coos River, Coquille River, Cow Creek,

and Smith River) that are considered part of the Oregon Coast ESU, the

protective regulations that NMFS will issue shortly may except certain

take of naturally spawned listed fish for use as broodstock as part of

an overall conservation program. According to the interim policy, the

progeny of these hatchery-wild or wild-wild crosses would also be

listed unless the agency determines otherwise. NMFS has determined in

these four cases, however, not to consider hatchery-reared progeny of

intentional hatchery-wild or wild-wild crosses as listed (NMFS 1998).

Coho salmon populations in the Coos, Coquille, and Umpqua River basins

are relatively abundant, the take of naturally spawned fish for

broodstock purposes will be specifically limited, and NMFS has

concluded that none of these four hatchery populations are currently

essential for recovery (NMFS, 1998). In addition, NMFS believes it is

desirable to incorporate wild fish into these hatchery populations to

ensure that their genetic and life history characteristics do not

diverge significantly from the natural populations. NMFS, therefore,

concludes that it is not inconsistent with NMFS' interim policy, nor

with the policy and purposes of the ESA, to consider these progeny part

of the ESU but not listed. NMFS may consider taking similar action for

other coho salmon hatchery populations in the Oregon Coast ESU, but

only after determining that such action would be beneficial or would

not compromise the health of naturally spawned populations.

Critical Habitat

Section 4(a)(3)(A) of the ESA requires that, to the extent prudent

and determinable, critical habitat be designated concurrently with the

listing of a species. Section 4(b)(6)(C)(ii) provides that, where

critical habitat is not determinable at the time of final listing, NMFS

may extend the period for designating critical habitat by no more than

1 additional year. NMFS finds at this time critical habitat is not

determinable for this ESU since required biological data have not yet

been collected and analyzed. NMFS, therefore, extends the deadline for

designating critical habitat for 1 year until such data can be

collected and analyzed.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the ESA include recognition, recovery actions, Federal

agency consultation requirements, and prohibitions on taking.

Recognition through listing promotes public awareness and conservation

actions by Federal, state, and local agencies, private organizations,

and individuals. With respect to the Oregon Coast coho salmon ESU,

Federal and state efforts are underway (and will continue under the

listing) that are expected to slow or reverse the decline of coho

salmon in this ESU.

A. Federal Conservation Efforts

Federal efforts include significant protections under the Northwest

Forest Plan's Aquatic Conservation Strategy (Forest Ecosystem

Management Assessment Team, 1993), the South Slough National Estuarine

Research Reserve located in Coos Bay, an upcoming consultation on the

North Umpqua Hydroelectric Projects in the Umpqua River basin, and

continued road retirement and obliteration on Federal forest lands. In

addition, the Natural Resources Conservation Service (NRCS) is

currently engaged with NMFS in discussions about updating their Field

Office Technical Guides (FOTGs) to better assist landowners in Oregon

[[Page 42590]]

desiring to implement voluntary conservation measures protective of, or

benefitting, salmonids. A subset of the FOTGs are the guidance that

local field offices follow when engaging in actions that may affect

anadromous fish or their habitats.

NMFS and U.S. Fish and Wildlife Service are also engaged in an

ongoing effort to assist in the development of multiple species Habitat

Conservation Plans (HCPs) for state and privately owned lands in

Oregon. While section 7 of the ESA addresses species protection

associated with Federal actions and lands, Habitat Conservation

Planning under section 10 of the ESA addresses species protection on

non-Federal lands. HCPs are particularly important since about 65

percent of the habitat in the range of the Oregon coast ESU is in non-

Federal ownership. The intent of the HCP process is to reduce conflicts

between listed species and economic development activities and to

provide a framework that would encourage ``creative partnerships''

between the public and private sectors and state, municipal, and

Federal agencies in the interests of endangered and threatened species

and habitat conservation.

Section 4(d) of the ESA directs the Secretary to promulgate

regulations ``to provide for the conservation of [threatened]

species,'' which may include extending any or all of the prohibitions

of section 9 of the ESA to threatened species. Section 9(a)(1)(G) also

prohibits violations of protective regulations for threatened species

promulgated under section 4(d) of the ESA. NMFS will issue any

protective regulations deemed necessary under section 4(d) of the ESA

for this ESU in a separate rulemaking. Even though NMFS is not issuing

protective regulations for this ESU at this time, Federal agencies are

required under section 7 to consult with NMFS if any activity they

authorize, fund, or carry out may affect listed Oregon Coast coho

salmon. The effective date for this requirement is October 9, 1998.

For listed species, section 7(a)(2) of the ESA 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 Federal

action may affect a listed species or its critical habitat, the

responsible Federal agency must enter into consultation with NMFS.

Examples of Federal actions most likely to be affected by listing

this ESU include U.S. Army Corps of Engineers (COE) section 404

permitting activities under the Clean Water Act; COE section 10

permitting activities under the River and Harbors Act; Federal Energy

Regulatory Commission licensing and relicensing for non-Federal

development and operation of hydropower; U.S. Environmental Protection

Agency promulgation of water quality standards; and activities funded,

authorized, or carried out by U.S. Department of Agriculture agencies

including, but not limited to, the NRCS. These actions will likely be

subject to ESA section 7 consultation requirements, which may result in

conditions designed to achieve the intended purpose of the project and

avoid or reduce impacts to coho salmon and its habitat within the range

of the listed ESU.

There are likely to be Federal actions ongoing in the range of the

Oregon Coast ESU at the time that this listing becomes effective.

Therefore, within available staffing and funding constraints, NMFS will

review all ongoing actions that may affect the listed species with the

Federal agencies and will complete formal or informal consultations

(where requested or necessary) for such actions as appropriate,

pursuant to ESA section 7(a)(2).

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with

authority to grant exceptions to the ESA's ``taking'' prohibitions (see

regulations at 50 CFR 222.22 through 222.24). Section 10(a)(1)(A)

scientific research and enhancement permits may be issued to entities

(Federal and non-Federal) conducting research that involves direct take

of listed species.

NMFS has issued section 10(a)(1)(A) research or enhancement permits

for other listed species (e.g., Snake River chinook salmon, Sacramento

River winter-run chinook salmon) for a number of activities, including

trapping and tagging to determine population distribution and

abundance, and collection of adult fish for artificial propagation

programs. NMFS is aware of several sampling efforts for coho salmon in

the Oregon Coast ESU, including efforts by Federal and state fisheries

agencies, and private landowners. These and other research efforts

could provide critical information regarding coho salmon distribution

and population abundance.

Section 10(a)(1)(B) incidental take permits may be issued to non-

Federal entities to authorize take of listed species incidental to

otherwise lawful activities. The types of activities potentially

requiring a section 10(a)(1)(B) incidental take permit include the

operation and funding of hatcheries and release of artificially

propagated fish by the state, state or university research not

receiving Federal authorization or funding, the implementation of state

fishing regulations, and timber harvest activities on non-Federal

lands.

B. Non-Federal Conservation Efforts

As noted previously, conservation benefits accruing from the Oregon

Plan and the subsequent MOA formed a major basis for NMFS' original

determination to withdraw the listing proposal for the Oregon Coast

coho salmon ESU. NMFS will continue to support the OPSW and work with

state and non-Federal entities to develop and implement any additional

measures needed to protect salmon within this ESU. Because a

substantial portion of land in this ESU is in state or private

ownership (approximately 65 percent), conservation measures on these

lands will be key to this effort.

References

The complete citations for the references used in this document can

be obtained by contacting NMFS (see ADDRESSES).

Classification

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the

information that may be considered when assessing species for listing.

Based on this limitation of criteria for a listing decision and the

opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.,

1981), NMFS has categorically excluded all ESA listing actions from the

environmental assessment requirements of the National Environmental

Policy Act (48 FR 4413, February 6, 1984).

As noted in the Conference Report on the 1982 amendments to the

ESA, economic impacts cannot be considered when assessing the status of

the species. Therefore, the economic analysis requirements of the

Regulatory Flexibility Act are not applicable to the listing process.

In addition, this final rule is exempt from review under E.O. 12866.

List of Subjects in 50 CFR Part 227

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: August 3, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 227 is amended

as follows:

[[Page 42591]]

PART 227--THREATENED FISH AND WILDLIFE

1. The authority citation of part 227 continues to read as follows:

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also

issued under 16 U.S.C. 1361 et seq.

2. In Sec. 227.4, paragraph (o) is added to read as follows:

Sec. 227.4 Enumeration of threatened species.

* * * * *

(o) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all

naturally spawned populations of coho salmon in streams south of the

Columbia River and north of Cape Blanco in Curry County, OR.

[FR Doc. 98-21255 Filed 8-7-98; 8:45 am]

BILLING CODE 3510-22-F