Endangered and Threatened Wildlife and Plants; 12-Month Finding on Petition To Revise Critical Habitat for Snake River Spring/Summer Chinook Salmon

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 971230317-7317-01; I.D. No. 120197A]

Endangered and Threatened Wildlife and Plants; 12-Month Finding

on Petition To Revise Critical Habitat for Snake River Spring/Summer

Chinook Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of determination.

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SUMMARY: NMFS announces a 12-month determination of how it intends to

proceed on a petition to revise critical habitat for Snake River

spring/summer chinook salmon (Oncorhynchus tshawytscha), pursuant to

the Endangered Species Act (ESA) of 1973. After a review of the best

available scientific information, NMFS determines the petitioned action

is not warranted.

DATES: The determination announced in this notice was signed on January

26, 1998.

ADDRESSES: Requests for information concerning this action should be

submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon

Street, Suite 500, Portland, OR 97232; internet ([email protected]).

FOR FURTHER INFORMATION CONTACT: Garth Griffin, Protected Resources

Division, Northwest Region, (503) 231-2005 or Joe Blum, Office of

Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

On June 27, 1991, NMFS proposed the listing of Snake River spring/

summer chinook salmon as a threatened species under the Endangered

Species Act (ESA) (56 FR 29542). The final determination listing Snake

River spring/summer chinook salmon as a threatened species was

published on April 22, 1992 (57 FR 14653) and corrected on June 3, 1992

(57 FR 23458). Critical habitat was designated on December 28, 1993 (58

FR 68543). In the December 28, 1993 notice, NMFS designated all river

reaches presently or historically accessible to listed spring/summer

chinook salmon (except river reaches above impassable natural falls,

and Dworshak and Hells Canyon Dams) in various hydrologic units as

critical habitat (58 FR 68543). Napias Creek, the area in question,

occurs within one of these designated hydrologic units (Middle Salmon-

Panther, USGS Hydrologic Unit 17060203).

On January 6, 1997, the Secretary of Commerce (Secretary) received

a petition from Meridian Gold Company (Meridian) to revise critical

habitat for Snake River spring/summer chinook salmon in Napias Creek, a

tributary to the Salmon River, located near Salmon, Idaho. In

accordance with section 4(b)(3)(D) of the ESA, NMFS issued a

determination on April 28, 1997, that the petition presented

substantial scientific information indicating that a revision may be

warranted (62 FR 22903). In that notice of finding, NMFS solicited

information and comments from interested parties concerning the

petitioned action (62 FR 22903). The comment period on the petitioned

action closed on June 27, 1997 (62 FR 22903).

On June 23, 1997, NMFS received a request from Meridian requesting

NMFS to extend the deadline for new information and comments until

September 15, 1997. In its request for extension, Meridian stated that

additional time was needed to complete studies to support the

petitioned action. By a letter dated July 16, 1997, NMFS declined to

extend the official comment period for the petitioned action. In this

letter, NMFS concluded that an extension was not warranted since the

original comment period was 30 days

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longer than that required by law and only one comment had been received

during the original public comment period (NMFS, 1997a).

While NMFS declined to extend the public comment period for the

petitioned action, NMFS stated in its July 16, 1997, response to

Meridian that it would consider any pertinent information prior to

making a determination (NMFS, 1997a). NMFS' willingness to consider

pertinent information was communicated to the State of Idaho and to the

only commenter, the Sierra Club Legal Defense Fund (SCLDF).

On September 16, 1997, Meridian submitted additional information in

support of its petition. Specifically, Meridian submitted three new

reports entitled: (1) ``Ability of Salmon and Steelhead to Pass Napias

Creek Falls''; (2) ``Investigation of Physical Conditions at Napias

Creek Falls''; and (3) ``Historical and Ethnographic Analysis of Salmon

Presence in the Leesburg Basin, Lemhi County, Idaho.'' This new

information was added to the administrative record and was considered

by NMFS in its 12-month determination. Copies of this information are

available upon request (see ADDRESSES).

Summary of Comments Received on the Petitioned Action

One comment was received on the petitioned action during the 60-day

public comment period. The commenter, SCLDF, contends the that

petitioned action is not supported by available evidence and that

Meridian's studies do not address the question of historic passability

of Napias Creek (SCLDF, 1997). SCLDF further states that Meridian's

desire to revise the critical habitat designation is to avoid measures

necessary to mitigate its adverse modification of critical habitat

(SCLDF, 1997). SCLDF ultimately recommends that NMFS deny Meridian's

petition (SCLDF, 1997).

NMFS believes that SCLDF's views of Meridian's motivation for

pursuing this action is not relevant for the purposes of determining

the merits of Meridian's petition. While SCLDF provides no new

information concerning the historic accessibility of this area to

listed chinook salmon, NMFS considers the merits of available

scientific information below.

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) of the ESA as ``(i)

the specific areas within the geographical area occupied by the species

* * * 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 * * * upon

a determination by the Secretary of Commerce (Secretary) that such

areas are essential for the conservation of the species'' (see 16

U.S.C. 1532(5)(A)). The term ``conservation,'' as defined in section

3(3) of the ESA, means `` * * * 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 Act are no longer necessary'' (see 16 U.S.C. 1532(3)).

In designating critical habitat, NMFS considers 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 historic geographical and ecological

distributions of this species (see 50 CFR Sec. 424.12(b)). In addition

to these factors, NMFS also focuses on the known physical and

biological features (primary constituent elements) within the

designated area that are essential to the conservation of the species

and may require special management considerations or protection. These

essential features may include, but are not limited to, spawning sites,

food resources, water quality and quantity, and riparian vegetation

(see 50 CFR Sec. 424.12(b)).

Analysis of Available Information and Comments

Meridian presents two main arguments in support of its petition to

remove areas of Napias Creek, above Napias Creek Falls, from designated

Snake River chinook salmon critical habitat. First, Meridian contends

that, currently, Napias Creek Falls is a complete migration barrier to

listed Snake River chinook salmon as evidenced by recent hydrologic

studies. Second, Meridian contends that habitat above Napias Creek

Falls has historically been inaccessible to chinook salmon as evidenced

by historical research. These issues are discussed here.

Current Passage Conditions at Napias Creek Falls

Meridian conducted several studies to determine the ability of

chinook salmon to migrate above Napias Creek Falls. One study evaluated

the geomorphology of the falls, while another study assessed the

potential for fish passage using the methods of Powers and Orsborn

(P&O) as described in ``Analysis of Barriers to Upstream Fish

Migration'' (Bonneville Power Administration (BPA), 1984). A third

study entitled ``Ability of Salmon and Steelhead to Pass Napias Creek

Falls'' analyzed information and conclusions of the preceding two

studies and concluded that ``Napias Creek Falls is an absolute barrier

to upstream migration of salmon and steelhead in Napias Creek.''

(Meridian, 1997). NMFS has reviewed all information and studies

submitted by Meridian regarding this issue. Further, NMFS conducted

several on-site inspections of Napias Creek Falls to independently

assess the potential for chinook salmon passage in this area. Based on

an assessment of information contained in the petition, and on an

independent assessment of physical conditions at Napias Creek Falls,

NMFS concludes that chinook salmon can migrate past Napias Creek Falls

during certain flow conditions (NMFS, 1997b). The following paragraphs

summarize NMFS' analysis and conclusions.

First, conceding that the swimming capability of the anadromous

fish that may have occupied Napias Creek can not be precisely

determined, the swimming burst velocity (Vf) chosen for

Napias Creek Falls in Meridian's petition, which is about 16.8 feet per

second (fps) (5.12 meters per second (mps)) for Napias Creek Falls, was

used by NMFS in its analysis. Based on a Vf of 16.8 fps

(5.12 mps), Meridian uses the methods of P&O to calculate a potential

jump height (Hj) of 4.3 feet(ft) (1.31 m) However, the P&O

report states ``Aaserude noted that to determine the true leaping

height above the water surface, the length of the fish should be added

to equation (6) (clarification - the projectile motion equation)

because the fish uses its full propulsive power up until the point the

fish's tail leaves the water * * *'' (BPA, 1984). Therefore, the length

of the fish should be added to the height of the jump. Since a small

adult chinook salmon might measure 2 ft (.61 m) in length, adding this

length to Hj yields a total potential jump height

(Ht) of 6.3 ft (1.92 m).

Using data from Meridian's petition, the height of Napias Creek

Falls is 9 ft (2.74 m) when streamflow is 49 cfs (1.37

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cubic meters per second (cms)), and the water velocity at the crest of

the falls is 7 fps (2.13 mps). After water drops 2.7 ft (.82 m) from

the falls crest, gravity accelerates the water velocity to 11.7 fps

(3.57 mps) (Vh) at the fish landing point, as calculated

using the equations given in Meridian's petition. Since this velocity

is below the burst velocity of a chinook salmon, the fish should be

able to swim for 5 to 10 seconds at a Vf of 16.8 seconds

(Bell, 1991). Swimming at a net velocity (Vf -Vh)

of 5.1 fps ( 1.55 mps) for 5 seconds, a fish can travel a distance of

25.5 ft (7.77 m), much further than what would be required to pass the

crest of the falls.

According to Meridian's petition, at 49 cfs (1.37 cms) the pool

below Napias Creek Falls is 6 ft. deep (1.83 m), which is of sufficient

depth for a fish to stage and leap at the falls. The P&O report states:

From a research project the author participated in observing

fish leaping over weirs at John's Creek Fish Hatchery, near Shelton,

Washington (Aasrude 1984), it was concluded that two conditions

should be satisfied to provide optimum leaping conditions in plunge

pools: (1) depth of penetration of falling water should be less than

the depth in the plunge pool, and (2) depth of the plunge pool must

be on the order of, or greater than the length of the fish

attempting to pass (BPA 1984).

Information from Meridian's petition shows that the pool below the

uppermost falls at Napias Creek satisfies both of these conditions.

Finally, the issue of aerated two-phase (air-water) flow is

discussed in Meridian's petition as a condition that further impedes

the swimming and leaping ability of the fish. No data are given to

reveal the extent of aeration at Napias Creek Falls and this is very

difficult to measure in situ. Based on basic fluid drag equations that

relate to the forces exerted by and on a moving submerged object, such

as a fish, the drag force is directly proportional to the unit weight

of water. Since the drag forces involved with the movement of a fish

include propulsion by fins and friction drag produced by water velocity

passing over the shape of a fish, the reduction of the unit weight of

water due to aeration has force components that both increase and

decrease the fish's swimming ability. This is an area that has not been

specifically studied in bio-mechanical tests. However, it is reasonable

to assume that, in the case of Napias Creek Falls, flowing at 49 cfs

(1.37 cms), aeration will have an effect on the leaping ability of the

fish, either positive or negative depending on the percent aeration of

the flow. Data reported in the U.S. Bureau of Reclamation's Engineering

Monograph No. 41, ``Air-Water Flow in Hydraulic Structures'' show that

entrained air concentration decreases to near zero at the channel

bottom of the receiving pool of a 15-degree slope chute to around 7

percent at mid-depth, with higher concentrations only nearer to the

water surface. In the context of a fish's jumping ability, the majority

of the water column produces only a slight decrease (some fraction of 0

percent to 7 percent) in the swimming speed reached before the jump

commences. Noting that flow over most (if not all) falls is aerated,

aeration of flow does not or did not preclude passage over Tumwater,

Sherars, Celilo, and Willamette Falls. Presumably, this would also be

the case at Napias Creek Falls.

Based on its analysis of data from the reports and from observation

of Napias Creek Falls, NMFS concludes that chinook salmon could pass

the current configuration of the falls at river flows of about 50 cfs

(1.4 cms).

Historical Passage Conditions at Napias Creek Falls

Meridian conducted two studies to determine if, historically,

chinook salmon were observed above Napias Creek Falls. The first study

reviewed historical accounts of chinook salmon occurring above Napias

Creek Falls. Meridian states that reviews of historical and independent

ethnographic research document that salmon or steelhead were not

observed or caught above Napias Creek Falls and, therefore, the fish

were not historically present in this area. A second study reviews the

genesis of Napias Creek Falls and concludes that the falls are a

natural feature and, therefore, historically impassable to chinook

salmon.

While the studies provided by Meridian tend to indicate that Napias

Creek Falls may have been a historic barrier to salmon passage, this

conclusion is called into question by comments from a United States

Forest Service fishery biologist (Forest). In a report dated February

8, 1996, Bruce Smith, Salmon and Challis National Forest Fisheries

Biologist, concludes that Napias Creek historically contained chinook

salmon (Smith, 1996a). Furthermore, Smith states that areas above

Napias Creek Falls currently contain relict indicator species,

specifically bull trout and rainbow trout (Smith, 1996a), indicating

pre-historic accessibility of this area to anadromous salmon species

such as chinook (Smith, 1996b).

In its petition, Meridian provides a letter from George Matejko,

Forest Supervisor, Salmon and Challis National Forests, dated April 30,

1996, to William Stelle, Jr., Regional Administrator, Northwest Region,

NMFS, concerning the Smith reports. This letter states ``it is the

Forest Service's opinion that the Upper Napias Creek Watershed above

Napias Creek Falls is not historic chinook salmon habitat'' and ``the

minority opinion submitted to your office by Bruce Smith does not

reflect the official Forest position on this issue'' (Matejko, 1996).

While NMFS understands the Smith reports may not constitute the

official position of the Forest on whether Upper Napias Creek is

historical chinook salmon habitat, NMFS believes these reports provide

relevant scientific information worthy of consideration.

Furthermore, while the Forest questions NMFS' use and

interpretation of scientific information contained in the Smith

reports, the Forest does not seek to refute all aspects of these

reports (e.g., the presence of relict indicator species above the

falls), nor does it provide new scientific information that would call

into question conclusions contained in these reports.

Smith concluded that based on historical, ethnobiological, and

biological evidence, it is likely chinook salmon historically occurred

in Napias Creek, including areas above Napias Falls (Smith, 1996a;

Smith, 1996b). Meridian attempts to prove that Napias Falls is a

historic barrier to chinook salmon migration based on historic,

ethnographic, and geologic studies of the area in question. NMFS

concludes that the evidence contained in the Smith reports is not

overcome by the evidence presented by Meridian or the Forest, and is

persuasive on the question of the historical presence of chinook salmon

in Upper Napias Creek.

While NMFS concludes it is likely that historically, chinook salmon

and steelhead occurred above Napias Creek Falls, the issue of

historical use of this area may in fact be moot since NMFS concludes

chinook salmon can now migrate above Napias Creek Falls, (i.e., the

area above Napias Creek Falls is within the current range of chinook

salmon).

Essential Features of Habitat

NMFS' ESA implementing regulations state that it ``shall designate

as critical habitat areas outside the geographical area presently

occupied by a species only when a designation limited to its present

range would be inadequate to ensure the conservation of the species''

(50 CFR Sec. 424.12(e)). Therefore, in the

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event that areas outside a species' current range contain unique

biological features that would aid in the conservation of the species,

NMFS may designate such areas as critical habitat.

Documents submitted by Meridian indicate that habitat above Napias

Creek Falls is of high quality and that this habitat may therefore be

desirable for recovery of listed chinook salmon. In an undated report

from Idaho Department of Fish and Game (IDFG) submitted by Meridian,

the State concludes that ``excellent spawning areas exist in the upper

half of the stream'' (IDFG, undated). This conclusion is supported by a

recent NMFS assessment of this habitat (NMFS, 1997c). NMFS' recent

habitat assessment is summarized here.

In assessing the quality of habitat in Napias Creek, NMFS' fishery

biologists conducted onsite habitat evaluations and reviewed available

scientific literature regarding the area. The portion of Napias Creek

above Napias Creek Falls from approximately River Mile (RM) 3 to RM 10

has a lower gradient and often meanders through a more open floodplain.

This stream stretch contains a high proportion of low gradient riffles,

along with glides, runs, plunge pools, main channel pools, and lateral

scour pools that create important spawning and rearing habitat for

anadromous fishes (Thurow and Overton, 1993). Gravel and rubble tend to

dominate the existing substrate, and occasional deep pools exist. Some

portions of this stream reach may be considered pristine, although

there is also some evidence of historical mining (ACZ Inc., 1990).

Napias Creek is an important source of high-quality dilution water

within the Panther Creek system. Any degradation of dilution flows from

Napias Creek would negatively impact efforts to reestablish anadromous

fisheries in Panther Creek (ACZ Inc., 1990). According to Smith (1990),

the dilution effect on Panther Creek creates a ``habitat window'' with

natural benthic and fisheries values for about six miles downstream, to

the confluence with Big Deer Creek, where Blackbird Mine drainage

becomes a problem. Napias Creek water is also considered to have

extremely low hardness (approximately 10 mg/l CaCO3)

relative to Panther Creek water (approximately 30 mg/l

CaCO3).

In most years, spring/summer chinook salmon should be able to

navigate through Napias Creek Falls between late-June to mid-July when

streamflows and water levels are more favorable (NMFS, 1997b). This

time window will be more selective for early arriving adult chinook

salmon. Historically, the Panther Creek system likely maintained an

early migration of adult spring/summer chinook salmon (Parkhurst,

1950). The early spawning run and the low hardness factor may expand

the genetic variability of listed Snake River chinook salmon, thereby

enhancing the survival characteristics of the entire Snake River

chinook salmon ESU.

Based on its own independent scientific analysis, NMFS concludes

that areas above Napias Creek Falls contain a significant amount of

high quality chinook salmon habitat. Given its assessment of habitat

above Napias Creek Falls, NMFS believes that habitat above Napias Creek

Falls contains unique features that will aid in the conservation and

recovery of listed salmonid species. Therefore, if future studies

indicate areas above Napias Creek Falls are outside the current range

of listed chinook salmon, it is possible that such habitat areas may be

found essential for conservation and recovery of listed salmonid

species.

Determination

NMFS has reviewed Meridian's petition to revise critical habitat

for Snake River spring/summer chinook salmon in Napias Creek, a

tributary to the Salmon River, located near Salmon, Idaho. Based on its

assessment of the best available scientific information, NMFS concludes

that the petitioned action is not warranted.

References

A complete list of references is available upon request (see

ADDRESSES).

Authority: 16 U.S.C. Sec. 1531 et seq.

Dated: January 26, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 98-2368 Filed 1-29-98; 8:45 am]

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