Endangered and Threatened Species: Threatened Status for Ozette Lake Sockeye Salmon in Washington

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980219043-9068-02; I.D. 011498A]

RIN 0648-AK52

Endangered and Threatened Species: Threatened Status for Ozette

Lake Sockeye Salmon in Washington

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a

final determination that the Ozette Lake sockeye salmon (Oncorhynchus

nerka) Evolutionarily Significant Unit (ESU), located on Washington's

Olympic Peninsula, is a threatened species under

[[Page 14529]]

the Endangered Species Act (ESA) of 1973, as amended.

NMFS also reviewed the status of Baker River sockeye salmon,

previously designated as a candidate species. Based on that review,

NMFS has determined that Baker River sockeye salmon do not warrant

listing under the ESA, nor candidate status at this time. NMFS

previously determined that the Okanogan River, Lake Wenatchee, Quinault

Lake, and Lake Pleasant (all located in Washington) sockeye salmon ESUs

did not warrant listing. However, based on new information, NMFS

remains concerned about the status of the Okanogan River and Lake

Wenatchee ESUs, and will closely monitor their status.

At this time, NMFS is listing all naturally spawned populations of

Ozette Lake sockeye salmon belonging to the species' anadromous life

form. NMFS has examined the relationship between hatchery and natural

populations of sockeye salmon in this ESU and determined that none of

the hatchery populations are currently essential for recovery and,

therefore, the hatchery populations (and their progeny) are not listed.

NMFS will issue any protective regulations deemed necessary under

section 4(d) of the ESA for the listed ESU in a separate rulemaking.

Even though NMFS does not now issue protective regulations for this

ESU, Federal agencies are required under section 7 to consult with NMFS

if any activity they authorize, fund, or carry out may affect listed

sockeye salmon.

DATES: Effective May 24, 1999.

ADDRESSES: Branch Chief, Protected Resources Division, NMFS, 525 NE

Oregon St., Suite 500, Portland, OR 97232-2737.

FOR FURTHER INFORMATION CONTACT: Garth Griffin (503) 231-2005, or Chris

Mobley (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

Biological information for sockeye salmon can be found in recent

species status assessments by NMFS (Gustafson et al., 1997; NMFS,

1999a), Washington Department of Fisheries (WDF), Washington Department

of Wildlife, and Western Washington Treaty Tribes (WDF et al., 1993),

in species life history summaries (Pauley et al., 1989; Burgner, 1991;

Emmett et al., 1991), and in the Federal Register document announcing

the listing proposal (63 FR 11750, March 10, 1998).

Previous Federal ESA Actions Related to West Coast Sockeye and

Petition Background

The ESA actions on sockeye salmon in the Pacific Northwest are

extensive. The history of petitions received regarding this species is

summarized in the proposed rule published on March 10, 1998 (63 FR

11750). This final determination was initiated in response to a

petition filed by Professional Resource Organization-Salmon (PRO-

Salmon) on March 14, 1994. PRO-Salmon petitioned to list Baker River

sockeye salmon as well as eight populations of other species of Pacific

salmon under the ESA. In response to this petition and to the more

general concerns about the status of Pacific salmon throughout the

region, NMFS published a document in the Federal Register on September

12, 1994 (59 FR 46808) announcing that the petition presented

substantial scientific information indicating that a listing may be

warranted and that the agency would initiate ESA status reviews for

sockeye and other species of anadromous salmonids in the Pacific

Northwest. The comprehensive review considered all populations in the

States of Washington, Idaho, and Oregon. Hence, the status review for

sockeye salmon encompassed, but was not restricted to, the population

identified in the PRO-Salmon petition.

During the coastwide sockeye salmon status review, NMFS assessed

the best available scientific and commercial data, including technical

information from Federal, state, and tribal co-managers and other

interested parties. The NMFS Biological Review Team (BRT), composed of

staff from NMFS' Northwest Fisheries Science Center, reviewed and

evaluated scientific information provided by the co-managers and other

sources and completed a coastwide status review for sockeye salmon

(Gustafson et al., 1997). Early drafts of the BRT review were

distributed to state and tribal fisheries managers and peer reviewers

who are experts in the field to ensure that NMFS' evaluation was

accurate and complete.

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

information and existing conservation measures, NMFS published a

proposed listing determination (63 FR 11750, March 10, 1998) which

identified six ESUs of sockeye salmon in Washington. The Ozette Lake

ESU was proposed for listing as a threatened species and the Baker

River ESU was classified as a candidate species. NMFS concluded that

the remaining four ESUs (Okanogan River, Lake Wenatchee, Quinault Lake,

and Lake Pleasant ESUs) did not warrant listing proposals.

During the year between the proposed rule and this final

determination, NMFS requested public comment and solicited peer and co-

manager review of the agency's proposal and received comments and new

scientific information concerning the status of the Ozette Lake and

Baker River ESUs, as well as the status of other ESUs for which listing

was deemed not warranted. NMFS also received information regarding the

relationship of existing hatchery stocks to naturally spawned

populations in the Ozette Lake ESU. This new information was evaluated

by NMFS' BRT and published in an updated status review that draws

conclusions about the delineation and risk assessment for the proposed

Ozette Lake ESU (NMFS, 1998). Based on the updated NMFS status review

and other information, NMFS now issues its final listing determination

for the Ozette Lake ESU and conclusions regarding the candidate Baker

River ESU. Copies of the NMFS status review and related documents are

available upon request (see ADDRESSES).

Summary of Comments and Information Received in Response to the

Proposed Rule

NMFS held 21 public hearings in California, Oregon, Idaho, and

Washington to solicit comments on this and other salmonid listing

proposals (63 FR 16955, April 7, 1998; 63 FR 30455, June 4, 1998).

During the 112-day public comment period, NMFS received 8 written

comments regarding the sockeye salmon proposed rule. NMFS also sought

new data and analyses from tribal and state co-managers and met with

them to formally discuss technical issues associated with the sockeye

salmon status review. Technical information was considered by NMFS' BRT

in its re-evaluation of ESU boundaries and risk assessments; this

information is discussed in the updated status review of sockeye salmon

(NMFS, 1998).

A number of comments addressed issues pertaining to the proposed

critical habitat designation for sockeye salmon. NMFS will address

these comments in a forthcoming Federal Register document announcing

the agency's conclusions about critical habitat for the listed ESU.

On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife

Service (FWS), published a series of policies regarding listings under

the ESA, including a policy for peer review of scientific data (59 FR

34270). In accordance with this policy, NMFS solicited 10 individuals

to take part in

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a peer review of its west coast sockeye salmon status review and

proposed rule. All individuals solicited are recognized experts in the

field of sockeye salmon biology, and represent a broad range of

interests, including Federal, state, and tribal resource managers, and

academia. Three of the 10 individuals took part in the peer review of

this action; comments from peer reviewers were considered by NMFS' BRT

and are summarized in the updated status review document (NMFS, 1998).

A summary of comments received in response to the proposed rule is

presented here.

Issue 1: Sockeye Salmon Biology and Ecology

Comments: Several commenters and peer reviewers asserted that

resident sockeye salmon (kokanee) should be included in the listed

anadromous sockeye salmon ESU. Several commenters also stated that NMFS

should address how the presence of kokanee populations may ameliorate

risks facing anadromous populations within the listed ESU. A peer

reviewer emphasized his belief that Ozette Lake kokanee should be made

part of the Ozette Lake sockeye salmon ESU, despite the very large

genetic distance between beach-spawning Ozette Lake sockeye salmon and

Ozette Lake kokanee. This reviewer also stated, that given sufficient

time and selective pressures, Ozette Lake kokanee will reintroduce the

anadromous form of Oncorhynchus nerka (O. nerka) to Ozette Lake. The

reviewer argued that kokanee represent the remaining tributary-spawning

gene pool, and that without them, anadromous production will not expand

beyond what the limited beach habitat can produce. On the other hand,

another peer reviewer agreed with both the separate ESU designation for

Ozette Lake sockeye salmon and with the exclusion of kokanee from this

ESU, based on information presented in the status review. This reviewer

also provided information (unpublished mtDNA data) on genetic

relationships between the Ozette Lake ESU and selected O. nerka

populations in Washington and British Columbia.

Response: While conclusive evidence does not yet exist regarding

the relationship of resident and anadromous forms of O. nerka, NMFS

believes available evidence suggests that resident sockeye and kokanee

should not be included in listed sockeye ESUs in cases where the

strength and duration of reproductive isolation would provide the

opportunity for adaptive divergence in sympatry. This is demonstrated

by the very large genetic differences between Ozette Lake sockeye

salmon and Ozette Lake kokanee. However, where resident ``kokanee-

sized'' O. nerka (potential ``residual sockeye salmon'') are observed

spawning with, or adjacent to, sockeye salmon on spawning beaches in

Ozette Lake, they are to be considered part of the Ozette Lake sockeye

salmon ESU.

Several lines of evidence support comments that kokanee may produce

anadromous offspring, and thus, represent a valuable life form for

anadromous sockeye salmon. Under certain conditions, anadromous and

resident O. nerka are capable of having offspring that express the

alternate life history form; that is, anadromous fish can produce

nonanadromous offspring, and vice versa (Ricker, 1938; Fulton and

Pearson, 1981; Scott, 1984; Chapman et al., 1995). However, the number

of outmigrants that successfully return as adults is typically quite

low. In Ozette Lake, where access to and from the ocean is relatively

easy and the energetic costs of migration to and from the ocean are

negligible, the sockeye salmon morphology has not been reported to

occur on the tributary spawning grounds of kokanee (prior to the recent

sockeye salmon stocking efforts in these tributaries). If Ozette Lake

kokanee were producing anadromous outmigrants that were surviving to

adulthood, individuals expressing the sockeye salmon morphology would

most likely have been seen on the kokanee spawning grounds.

NMFS believes resident fish can help buffer extinction risks to an

anadromous population by mitigating depensatory effects in spawning

populations, by providing offspring that migrate to the ocean and enter

the breeding population of sockeye salmon, and by providing a

``reserve'' gene pool in fresh water that may persist through times of

unfavorable conditions for anadromous fish. In spite of these potential

benefits, presence of resident populations is not a substitute for

conservation of anadromous populations. A particular concern is

isolation of resident populations by human-caused barriers to

migration. This interrupts normal population dynamics and population

genetic processes and can lead to loss of a genetically based trait

(anadromy). As discussed in NMFS' ``species identification'' paper

(Waples, 1991), the potential loss of anadromy in distinct population

segments may, in and of itself, warrant listing the ESU as a whole.

Issue 2: Description and Status of Sockeye Salmon ESUs

Comment: Several general comments were received about the overall

analytical process for delineating sockeye salmon ESUs. One peer

reviewer stated that the sockeye salmon status review is incomplete

because it is limited to the anadromous form only and does not include

designation of kokanee ESUs. One commenter criticized NMFS' ESU

concept, arguing that the ESA does not require a Distinct Population

Segment (DPS) to be reproductively isolated from other conspecific

populations, that it is not possible to determine evolutionary

significance of an ESU with genetic data, and that the ESU concept does

not properly address the ecological significance of a DPS.

Additionally, a peer reviewer stated that his unpublished analysis of

mtDNA haplotype data for several populations of sockeye salmon in

Washington does not, in general, support the ``decision to define ESUs

at the lake level'' although he recognized the observed genetic

differentiation of sockeye salmon in Washington, as shown by allozyme

data.

Response: Regarding the identification of ESUs, NMFS relies on a

policy describing how it will apply the ESA definition of ``species''

to anadromous salmonid species (56 FR 58612, November 20, 1991). More

recently, NMFS and FWS published a joint policy defining DPSs (61 FR

4722, February 7, 1996). The earlier policy is more detailed and

applies specifically to Pacific salmonids and, therefore, was used for

this determination. This policy states that one or more naturally

reproducing salmonid populations will be considered to be distinct and,

hence, species under the ESA, if they represent an ESU of the

biological species. To be considered an ESU, a population must satisfy

two criteria: (1) It must be reproductively isolated from other

population units of the same species, and (2) it must represent an

important component in the evolutionary legacy of the biological

species. The first criterion, reproductive isolation, need not be

absolute, but must have been strong enough to permit evolutionarily

important differences to occur in different population units. The

second criterion is met if the population contributes substantially to

the ecological or genetic diversity of the species as a whole. Guidance

on applying this policy is contained in a NOAA Technical Memorandum

entitled ``Definition of 'Species' Under the Endangered Species Act:

Application to Pacific Salmon'' (Waples, 1991) and in

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a recent scientific paper by Waples (1995).

The National Research Council (NRC) has recently addressed the

issue of defining species under the ESA (NRC, 1995). Their report found

that protecting DPSs is soundly based on scientific evidence, and

recommends applying an ``Evolutionary Unit'' (EU) approach in

describing these segments. The NRC report describes the high degree of

similarity between the EU and ESU approaches (differences being largely

a matter of application between salmon and other vertebrates), and

concluded that either approach would lead to similar DPS descriptions

most of the time.

Comment: One commenter criticized NMFS' risk assessment approach,

arguing that NMFS' evaluation of risks from artificial propagation was

arbitrary, and that the overall risk assessment is fundamentally flawed

due to an absence of references to standard conservation biology

literature (particularly that on risk assessment methods), a lack of

unambiguous criteria for risk, the lack of quantitative population

modeling, and the use of subjective opinion within the risk matrix

approach.

Response: For nearly a decade, NMFS scientists have been

conducting salmonid status reviews under the ESA using a risk

assessment approach that includes an evaluation of: (1) absolute

numbers of fish and their spatial and temporal distribution; (2)

current abundance in relation to historical abundance and current

carrying capacity of the habitat; (3) trends in abundance; (4) natural

and human-influenced factors that cause variability in survival and

abundance; (5) possible threats to genetic integrity (e.g., from strays

or outplants from hatchery programs); and (6) recent events (e.g., a

drought or changes in harvest management) that have predictable short-

term consequences for abundance of the ESU. In determining whether an

ESU is threatened or endangered, BRT scientists must make judgements

about the overall risk to the ESU based on likely interactions among,

and cumulative effects of, these various status indicators. NMFS

acknowledges that some elements of the agency's approach are inherently

subjective (e.g., forecasting effects of natural risk factors). Still,

NMFS believes that its approach to making listing determinations is

scientifically credible and invites any constructive suggestions on

ways to improve risk assessments under the ESA.

Comment: One commenter disagreed with the BRT's conclusion that the

Okanogan River and Lake Wenatchee ESUs are near historic abundance

levels. They cited evidence that total Columbia Basin sockeye salmon

run size may have exceeded 4,000,000 fish at a time when the Okanogan

Basin had 41 percent of the accessible lake rearing area in the

Columbia Basin, and suggest that historical Okanogan River escapement

was probably in excess of 1,000,000 fish (not the 12,000 fish suggested

in the status review). Further, they commented that the status of the

Wenatchee stock is of particular concern, with a recent steep decline

and very low escapements despite negligible downstream harvest. The

Okanogan stock has also exhibited a steep recent decline, and both

stocks have poor prospects for 1999 runs.

Response: Despite finding that these populations did not warrant

ESA protection at the conclusion of the initial status review for west

coast sockeye salmon, NMFS sought additional information regarding the

status of Okanogan River and Lake Wenatchee sockeye salmon ESUs in the

updated status review (NMFS, 1998). NMFS agrees that the recent trends

in abundance are of concern and the agency intends to closely monitor

these ESUs.

Comment: One commenter questioned the genetic integrity of the

Ozette Lake sockeye salmon ESU and, thus, its designation as a separate

species under the ESA. Based on the introduction of non-native sockeye

salmon (Quinault Lake sockeye salmon were stocked in 1982) and sockeye

salmon/kokanee hybrids (released in 1991 and 1992), this commenter

stated that at issue is ``whether the non-native population has bred

with the native population to such an extent that the evolutionarily

important adaptations that distinguished the original population have

been lost.'' He suggested that more research is needed to better

determine the proper limits of the Ozette Lake sockeye salmon ESU

before determining that the ESU warrants listing.

Response: The history of artificial propagation in the Ozette Lake

basin is extensive. All releases prior to 1983 were single, large,

plantings of out-of-basin sockeye. It is unlikely that these practices

resulted in the loss of genetic fitness and unique adaptations of the

historic Ozette Lake sockeye salmon population. NMFS will work with

hatchery managers in the Ozette Lake ESU to ensure that current

artificial propagation practices are conducted in a manner that will

not result in the loss of genetic characteristics or adaptive traits.

Issue 3: Factors Contributing to the Decline of West Coast Sockeye

Salmon

Comment: Many commenters identified factors they believe have

contributed to the decline of west coast sockeye salmon. Factors

identified include overharvest by commercial fisheries, predation by

pinnipeds and piscivorous fish species, effects of artificial

propagation, and the deterioration or loss of freshwater and marine

habitats. Despite concurrence with NMFS' assessment of the risk factors

facing Ozette Lake sockeye salmon, one peer reviewer questioned the

consistency of statements regarding siltation in tributaries as a cause

of sockeye salmon decline compared to statements regarding abundance of

kokanee, which would also presumably be affected by such siltation.

Another peer reviewer argued that listing was not warranted for this

ESU because the dominant brood years in the four-year abundance cycle

(1984, 1988, 1992 and 1996) are stable, not declining. He also

commented that risk was decreasing, not increasing, so becoming

endangered in the future is not likely. As evidence of decreasing risk,

he noted that the lake is protected within Olympic National Park, the

watershed is recovering from logging in the 1960s and 1970s, lake

rearing habitat is not limiting, and there is no longer any tribal

harvest. In addition, a review panel was unable to determine which

factors were responsible for any decline in Ozette Lake sockeye salmon.

This reviewer also commented that the genetic effects of hatchery

production are misrepresented in the status review.

Response: NMFS agrees that a multitude of factors, past and

present, have contributed to the decline of west coast sockeye salmon.

NMFS also recognizes that natural environmental fluctuations have

likely played a role in the species' recent decline in abundance.

However, NMFS believes other human-induced impacts (e.g., incidental

catch in certain fisheries, hatchery practices, and habitat

modification) have played an equally significant role in this species'

decline. Moreover, these human-induced impacts have likely reduced the

species' resiliency to such natural factors for decline as drought and

poor ocean conditions (NMFS 1996a).

For the Ozette Lake ESU, risks perceived by the BRT were focused on

low current abundance and trends and variability in abundance; current

escapements average below 1,000 adults per year, implying a moderate

degree of risk from small-population genetic and demographic

variability with little room for further declines before abundances

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reach critically low levels. Other concerns include siltation of beach

spawning habitat, very low abundance now compared to harvests in the

1950s, and potential genetic effects of past interbreeding with

genetically dissimilar kokanee.

With respect to predation issues raised by some commenters, it is

worth noting that NMFS published reports recently describing the

impacts of California sea lions and Pacific harbor seals upon salmonids

on the coastal ecosystems of Washington, Oregon, and California (NMFS,

1997 and 1999). These reports conclude that in certain cases where

pinniped populations co-occur with depressed salmonid populations,

salmon populations may experience severe impacts due to predation. An

example of such a situation is Ballard Locks, Washington, where sea

lions are known to consume significant numbers of adult winter

steelhead. These reports further conclude that data regarding pinniped

predation are quite limited, and that substantial additional research

is needed to fully address this issue. Existing information on the

seriously depressed status of many salmonid stocks is sufficient to

warrant actions to remove pinnipeds in areas of co-occurrence where

pinnipeds prey on depressed salmonid populations (NMFS, 1997 and 1999).

Comment: Two commenters questioned NMFS' interpretation of

population trends, arguing that the main decline in abundance occurred

between 1948 and 1958, and that populations have not declined

substantially since then. They noted that declines cited by NMFS were

not statistically significant, and that an analysis of the four

individual brood cycles (4-year lags) shows two increasing and two

declining. They argue that there is a consistent strong run every 4

years indicating that the population is no longer declining

significantly. They also provided new information on the history of

logging in the Ozette Lake Basin, noting that the main population

declines occurred before there was substantial logging in the basin.

They argue that overharvest at sea could be a major limiting factor,

and that sockeye salmon tributary spawning may have been eliminated by

harvest practices focusing on the early part of the run. Finally, they

contended that re-establishment of tributary spawning by anadromous

fish is limited by the genetic capacity of remaining lake-spawning

fish.

Response: Although Ozette Lake sockeye salmon populations were

heavily harvested in fisheries prior to the most extensive timber

harvest activities in the watershed, the impacts of intense and

frequent timber harvest and associated road building (conducted prior

to state regulation of forest practices) in the watershed in the years

following the high fishery harvest events have been extensively

documented; these forest practice activities have no doubt contributed

to the widespread sedimentation of key portions of lake tributaries,

lakeshore spawning beaches, and outwash fans. Timber harvest and road

building may not have caused the declining sockeye salmon abundance,

but have contributed to the failure of Ozette Lake sockeye populations

to rebuild since the cessation of commercial sockeye salmon harvests in

1974 (there has been no direct sockeye harvest of any kind since 1982).

Additionally, although there is a single strong brood-year, the ESU as

a whole faces significant risks due to the weakness of the other brood-

year returns.

Issue 4: Designation of Baker River Sockeye Salmon as a Candidate

Species

Comment: One peer reviewer and a commenter contended that the Baker

River ESU should not be a candidate for listing, although their

arguments were based on different considerations. The peer reviewer

argued that because the Baker Lake spawning beaches are essentially a

hatchery, this is not a natural stock, and, therefore, is not subject

to the ESA. He also argued that although human intervention may pose a

risk to long-term evolution of the population, it will be required for

the run to continue. Alternatively, both the peer reviewer and

commenter believed that abundance and trends do not demonstrate high

risk, and that the artificial spawning beaches are highly productive,

producing very high numbers of fry per female. Finally, they commented

that water quality and disease are not serious concerns.

Response: Concerns over these issues prompted NMFS to conduct a

renewed evaluation of Baker River sockeye salmon status in the year

since publication of the proposed rule. As a result of this review,

NMFS determined that continued significant increases in abundance since

the status review eased concerns over the risks facing this population.

NMFS acknowledges that significant human intervention is required to

maintain the productivity of this ESU. Although changes in the suite of

activities could pose risks to this population, NMFS concludes that

Baker River sockeye salmon are increasing substantially and that

listing is not warranted.

Issue 5: Consideration of Existing Conservation Measures

Comment: Several commenters argued that NMFS had not considered

existing conservation programs designed to enhance sockeye salmon

stocks within particular ESUs. Some commenters provided specific

information on some of these programs to NMFS concerning the efficacy

of existing conservation plans.

Response: NMFS has reviewed existing conservation plans and

measures relevant to the ESUs addressed in this final rule and

concludes that existing conservation efforts in some cases have helped

ameliorate risks facing the species. Some of these conservation efforts

are discussed here in ``Existing Conservation Efforts.''

While several of the conservation plans addressed in the comments

received show promise for ameliorating risks facing sockeye salmon,

some of the measures described in comments have not been implemented.

Some of these measures are also geographically limited to individual

river basins or political subdivisions, thereby improving conditions

for only a small portion of the entire ESU. Some of these measures are

not mature enough to accurately measure their efficacy in protecting or

restoring the sockeye salmon populations that are the subject of this

determination.

Summary of Factors Affecting Sockeye 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 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 spawned sockeye salmon throughout

the species' range are numerous and varied. The present depressed

condition of many populations is the result of human-induced factors

(e.g., incidental harvest in certain fisheries, hatchery practices, and

habitat modification) that serve to exacerbate the adverse effects of

natural factors (e.g., competition and predation) or environmental

variability

[[Page 14533]]

from such factors as drought and poor ocean conditions.

As noted previously, the comments received regarding the relative

importance of various risk factors contributing to the decline of

sockeye salmon essentially reinforce NMFS' description of factors in

the listing proposal. A summary of these factors and their role in the

decline of the Ozette Lake ESU is presented in NMFS' March 10, 1998,

Federal Register document (63 FR 11750), as well as several documents

in the agency's west coast sockeye salmon administrative record (WDF et

al., 1993; Gustafson et al., 1997; NMFS, 1999).

Efforts Being Made to Protect West Coast Sockeye Salmon

Under section 4(b)(1)(A) of the ESA, the Secretary of Commerce is

required to make listing determinations solely on the basis of the best

scientific and commercial data available and after taking into account

efforts being made to protect a species. During the status review for

west coast sockeye salmon and for other salmonids, NMFS reviewed

protective efforts ranging in scope from regional strategies to local

watershed initiatives; some of the major efforts are summarized in the

March 10, 1998, proposed rule (63 FR 11774). Since then, NMFS has

received little new information regarding these or other efforts being

made to protect sockeye salmon. Notable efforts within the range of the

Ozette Lake ESU continue to be the Northwest Forest Plan (NFP),

Washington Wild Stock Restoration Initiative, and Washington Wild

Salmonid Policy.

In addition, a recovery planning group composed of the Makah and

Quileute Indian Tribes, the National Parks Service, and Washington

Department of Fish and Wildlife has recently initiated a collaborative

planning effort to determine how to increase the abundance of naturally

spawning Ozette Lake sockeye salmon to historic and self-sustaining

population levels. NMFS and FWS will assist this effort, and other

state agencies and interested parties will be invited to participate.

The Makah tribe, which has operated a supplementation program in Ozette

Lake since the early 1980's, is contributing a draft supplementation

plan as a starting point for the planning group.

While NMFS recognizes that many of the ongoing protective efforts

are likely to promote the conservation of Ozette Lake sockeye salmon

and other salmonids, some are very recent and few address conservation

at a scale that is adequate to protect and conserve the Ozette Lake

ESU. NMFS concludes that existing protective efforts are inadequate to

preclude a listing for this ESU. However, NMFS will continue to

encourage these and future protective efforts and will work with

Federal, state, and tribal fisheries managers to evaluate, promote, and

improve efforts to conserve sockeye and other salmon populations.

Determination

Section 3 of 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 listing determinations be based solely on the best scientific and

commercial data available, after conducting a review of the status of

the species and after taking into account those efforts, if any, being

made to protect such species.

Ozette Lake Sockeye Salmon ESU - Based on results from its

coastwide status review for sockeye salmon, and after taking into

account comments and new information described earlier, NMFS concludes

that the Ozette Lake ESU should be classified as threatened under the

ESA. The majority of the NMFS BRT concluded that this ESU is likely to

become endangered in the foreseeable future if present conditions

continue. Furthermore, NMFS concludes that current protective efforts

are insufficient to change the BRT's forecast of extinction risk.

In the listed Ozette Lake ESU, all naturally spawned populations of

sockeye salmon residing below impassable natural barriers (e.g., long-

standing, natural waterfalls) are listed as threatened. NMFS' intent in

listing only ``naturally spawned'' populations is to protect sockeye

salmon stocks that are indigenous to (i.e., part of) the ESU. In this

listing determination NMFS has identified non-indigenous populations

that co-occur with fish in the listed ESU. The agency recognizes the

difficulty of differentiating between indigenous and non-indigenous

fish, especially when the latter are not readily distinguishable with a

mark (e.g., fin clip). Also, matings in the wild of either type would

generally result in progeny that would be treated as listed fish (i.e.,

they would have been naturally spawned in the geographic range of the

listed ESU and have no distinguishing mark). Therefore, to reduce

confusion regarding which sockeye salmon are considered listed within

the ESU, NMFS will treat all naturally spawned fish as listed for

purposes of the ESA. Efforts to determine the conservation status of

the ESU would similarly focus on the contribution of indigenous fish to

the listed ESU. It should be noted that NMFS will take actions

necessary to minimize or prevent non-indigenous sockeye salmon from

spawning in the wild unless the fish are specifically part of a

recovery effort.

NMFS has examined the relationship between hatchery and natural

populations of sockeye salmon in this ESU, and has assessed whether any

hatchery populations are essential for their recovery. In examining

this relationship, NMFS scientists consulted with hatchery managers to

determine whether any hatchery populations are similar enough to

native, naturally spawned fish to be considered part of the biological

ESU (NMFS, 1999a). The evaluation also considered whether any hatchery

population should be considered essential for the recovery of a listed

ESU. NMFS concludes that the sockeye salmon stock reared at Umbrella

Creek Hatchery should be considered part of the Ozette Lake ESU, based

on the fact that broodstock are derived from wild beach-spawning adults

and that hatchery stock is not perpetuated by spawning fish returning

to the hatchery. NMFS also concludes that the Umbrella Creek Hatchery

stock is not essential for recovery. NMFS' opinion on this second

question was influenced by the presence of significant numbers of

sockeye salmon still spawning naturally on Olsen's Beach and in Allen's

Bay in Ozette Lake; these fish could be used in recovery efforts. NMFS

also concludes that if progeny of the sockeye salmon/kokanee hybrid

stock reared at Umbrella Creek Hatchery still exist, they should not be

considered part of the ESU. This decision was based on the wide genetic

divergence of Ozette Lake stream-spawning kokanee and beach-spawning

sockeye salmon and the likelihood that hybrids of these stocks would

resemble neither of the native O. nerka stocks in Ozette Lake.

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 conditions warrant. In this context, an ``essential''

hatchery population is one that is vital to incorporate 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.

[[Page 14534]]

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, April 5,

1993). In the case of the Umbrella Creek Hatchery stock, the protective

regulations that NMFS will issue shortly may except 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. Given

the requirement for an acceptable conservation plan as a prerequisite

for collecting broodstock, NMFS determines that it is not necessary to

consider the progeny of intentional hatchery-wild or wild-wild crosses

as listed.

In addition, NMFS believes it is desirable to incorporate naturally

spawned fish into the hatchery population to ensure that genetic and

life history characteristics do not diverge significantly from the

natural population's. 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 as part of the ESU but

not listed.

Baker River Sockeye Salmon ESU - For the reasons described in the

March 10, 1998, proposed rule (63 FR 11750) and earlier in this

document, NMFS concludes that the Baker River sockeye salmon ESU is not

presently in danger of extinction, nor is it likely to become

endangered in the foreseeable future if present conditions continue.

NMFS will no longer classify this ESU as a candidate species.

Other Sockeye Salmon ESUs - While other ESUs and populations were

not extensively reviewed at this time, NMFS did review updated trend

information for the Lake Wenatchee and Okanogan River ESUs. Based on

this new information, NMFS is concerned about the status of the

Okanogan River and Lake Wenatchee ESUs, and will continue to closely

monitor their status.

Prohibitions and Protective Measures

Section 4(d) of the ESA requires NMFS to issue protective

regulations that it finds necessary and advisable to provide for the

conservation of a threatened species. Section 9(a) of the ESA prohibits

violations of protective regulations for threatened species promulgated

under section 4(d). The 4(d) protective 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. These

9(a) prohibitions and 4(d) regulations apply to all individuals,

organizations, and agencies subject to U.S. jurisdiction. NMFS will

publish 4(d) protective regulations for the listed Ozette Lake sockeye

salmon ESU in a separate Federal Register document. The process for

completing the 4(d) rule will provide the opportunity for public

comment on the proposed protective regulations.

In the case of threatened species, NMFS also has flexibility under

section 4(d) to tailor the protective regulations based on the contents

of available conservation measures. Even though existing conservation

efforts and plans are not sufficient to preclude the need for listing

at this time, they are nevertheless valuable for improving watershed

health and restoring salmon populations. In those cases where well-

developed and reliable conservation plans exist, NMFS may choose to

incorporate them into the protective regulations and recovery plans.

NMFS has already adopted 4(d) protective regulations that excepts a

limited range of activities from general section 9 take prohibitions.

For example, the interim 4(d) rule for Southern Oregon/Northern

California Coasts coho salmon (62 FR 38479, July 18, 1997) excepts

habitat restoration activities conducted in accordance with approved

plans and fisheries conducted in accordance with an approved state

management plan. In the future, 4(d) rules may except from take

prohibitions activities identified in conservation plans governing such

activities as forestry, agriculture, and road construction when such

activities are conducted in accordance with the plans.

These are all examples where NMFS may apply modified section 9

prohibitions in light of the protections provided in a conservation

plan that is adequately protective. There may be other circumstances as

well in which NMFS would use the flexibility of section 4(d). For

example, in some cases there may be a healthy population within an

overall ESU that is listed. In such a case, it may not be necessary to

apply the full range of prohibitions available in section 9. NMFS

intends to use the flexibility of the ESA to respond appropriately to

the biological condition of each ESU and to the strength of efforts to

protect it.

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) 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 likely to affect sockeye salmon in the

listed ESU include authorized land management activities (e.g., timber

sales and harvest) of the U.S. Forest Service (USFS). Federal actions,

including the Army Corps of Engineers (COE) section 404 permitting

activities under the Clean Water Act, COE permitting activities under

the River and Harbors Act, National Pollution Discharge Elimination

System permits issued by the Environmental Protection Agency, highway

projects authorized by the Federal Highway Administration, and Federal

Energy Regulatory Commission licenses for non-Federal development and

operation of hydropower, may also require consultation. These actions

will likely be subject to ESA section 7 consultation requirements that

may result in conditions designed to achieve the intended purpose of

the project and avoid or reduce impacts to sockeye salmon and its

habitat within the range of the listed ESU.

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

listed ESUs at the time these listings become effective. Therefore,

NMFS will review all ongoing actions that may affect the listed species

with Federal agencies and will complete formal or informal

consultations, where requested or necessary, for such actions 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 ``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.

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

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

Sacramento River winter-run chinook salmon) 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

[[Page 14535]]

adult fish for artificial propagation programs. NMFS is aware of

sampling efforts for sockeye in the listed ESU. These and other

research efforts could provide critical information regarding sockeye

salmon distribution and population abundance.

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

Federal entities performing activities that may incidentally take

listed species. The types of activities potentially requiring a section

10(a)(1)(B) incidental take permit include the release of artificially

propagated fish by tribal, state or privately operated and funded

hatcheries, state or university research on species other than sockeye

salmon not receiving Federal authorization or funding, the

implementation of state fishing regulations, and timber harvest

activities on non-Federal lands.

Take Guidance

On July 1, 1994, (59 FR 34272) NMFS and FWS published a policy

committing the Services to 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 a listing on

proposed and on-going activities within the species' range. NMFS

believes that, based on the best available information, the following

actions will not result in a violation of section 9: (1) Possession of

sockeye salmon from the listed ESU acquired lawfully by permit issued

by NMFS pursuant to section 10 of the ESA, or by the terms of an

incidental take statement pursuant to section 7 of the ESA; and (2)

federally funded or approved projects that involve such activities as

silviculture, grazing, mining, road construction, dam construction and

operation, discharge of fill material, stream channelization or

diversion for which a section 7 consultation has been completed, and

when such an activity is conducted in accordance with any terms and

conditions provided by NMFS in an incidental take statement accompanied

by a biological opinion pursuant to section 7 of the ESA. As described

previously in this notice, NMFS may adopt 4(d) protective regulations

that except other activities from section 9 take prohibitions for

threatened species.

Activities that NMFS believes could potentially harm, injure or

kill sockeye salmon in the listed ESU and result in a violation of

section 9 include, but are not limited to: (1) Land-use activities that

adversely affect sockeye salmon habitat in this ESU (e.g., logging,

grazing, farming, road construction in riparian areas, and areas

susceptible to mass wasting and surface erosion); (2) diverting water

through an unscreened or inadequately screened diversion at times when

juvenile sockeye salmon are present; (3) physical disturbance or

blockage of the streambed or lakeshore where spawners or redds are

present concurrent with the disturbance. The disturbance could be

mechanical disruption from creating push-up dams, gravel removal,

mining, or other work within a stream channel, trampling or smothering

of redds by livestock in the streambed, driving vehicles or equipment

across or down the streambed, and similar physical disruptions; (4)

discharges or dumping of toxic chemicals or other pollutants (e.g.,

sewage, oil, gasoline) into waters or riparian areas supporting the

listed sockeye salmon; (5) pesticide and herbicide applications; (6)

blocking fish passage through fills, dams, or impassable culverts; (7)

interstate and foreign commerce of listed sockeye salmon and import/

export of listed sockeye salmon without an ESA permit, unless the fish

were harvested pursuant to this rule; (8) collecting or handling of

listed sockeye salmon (permits to conduct these activities are

available for purposes of scientific research or to enhance the

propagation or survival of the species); and (9) introduction of non-

native species likely to prey on listed sockeye salmon or displace them

from their habitat. This list is not exhaustive. It is intended to

provide some examples of the types of activities that might or might

not be considered by NMFS as constituting a take of listed sockeye

salmon under the ESA and its regulations. Questions regarding whether

specific activities will constitute a violation of this rule, and

general inquiries regarding prohibitions and permits, should be

directed to NMFS (see ADDRESSES).

Effective Date of Final Listing

Given the cultural, scientific, and recreational importance of this

species, and the broad geographic range of this listing, NMFS

recognizes that numerous parties may be affected by this listing.

Therefore, to permit an orderly implementation of the consultation

requirements associated with this action, this final listing will take

effect May 24, 1999.

Conservation Measures

Conservation benefits are provided to species listed as endangered

or threatened under the ESA through increased recognition, recovery

actions, Federal agency consultation requirements, and prohibitions on

taking. Increased recognition through listing promotes public awareness

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

organizations, and individuals.

Several conservation efforts are underway that may reverse the

decline of west coast sockeye salmon and other salmonids. NMFS is

encouraged by these significant efforts, which could provide all

stakeholders with an approach to achieving the purposes of the ESA

(i.e., protecting and restoring native fish populations and the

ecosystems upon which they depend) that is less regulatory. NMFS will

continue to encourage and support these initiatives as important

components of recovery planning for sockeye salmon and other salmonids.

To succeed, protective regulations and recovery programs for

sockeye salmon will need to focus on conserving aquatic ecosystem

health. NMFS intends that Federal lands and Federal activities play a

primary role in preserving listed populations and the ecosystems upon

which they depend. However, throughout the range of the listed ESUs,

sockeye salmon habitat occurs and can be affected by activities on

state, tribal or private land.

Conservation measures that could be implemented to help conserve

the species are listed here (the list is generalized and does not

constitute NMFS' interpretation of a recovery plan under section 4(f)

of the ESA). Progress on some of these is being made to differing

degrees in specific areas.

1. Measures could be taken to promote practices that are more

protective of (or restore) sockeye salmon habitat across a variety of

land and water management activities. Activities affecting this habitat

include timber harvest; agriculture; livestock grazing and operations;

pesticide and herbicide applications; construction and urban

development; road building and maintenance; sand and gravel mining;

stream channelization; dredging and dredged spoil disposal; dock and

marina construction; diking and bank stabilization; irrigation

withdrawal, storage, and management; mineral mining; wastewater/

pollutant discharge; wetland and floodplain alteration; habitat

restoration projects; and woody debris/structure removal from rivers

and estuaries. Each of these activities could be modified to ensure

that watersheds and specific river reaches are adequately protected in

the short- and long-terms.

2. Fish passage could be restored at barriers to migration through

the installation or modification of fish ladders, upgrade of culverts,

or removal of barriers.

[[Page 14536]]

3. Harvest regulations could be modified to protect listed sockeye

salmon populations.

4. Artificial propagation programs could be modified to minimize

negative impacts (e.g., genetic introgression, competition, disease,

etc.) upon native populations of sockeye salmon.

5. Predator control/relocation programs could be implemented in

areas where predators pose a significant threat to sockeye salmon.

6. Measures could be taken to improve monitoring of sockeye salmon

populations and their habitat.

7. Federal agencies such as the USFS, U.S. Bureau of Land

Management, Federal Energy Regulatory Commission, U.S. Army Corp of

Engineers, U.S. Department of Transportation, and U.S. Bureau of

Reclamation could review their management programs and use their

discretionary authorities to formulate conservation plans pursuant to

section 7(a)(1) of the ESA.

NMFS encourages non-Federal landowners to assess the impacts of

their actions on threatened or endangered salmonids. In particular,

NMFS encourages state and local governments to use their existing

authorities and programs, and encourages the formation of watershed

partnerships to promote conservation in accordance with ecosystem

principles. These partnerships will be successful only if state,

tribal, and local governments, landowner representatives, and Federal

and non-Federal biologists all participate and share the goal of

restoring salmon to the watersheds.

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 not more than

one additional year.

In the proposed rule (63 FR 11774, March 10, 1998), NMFS described

the areas that may constitute critical habitat for the Ozette Lake

sockeye salmon ESU. Since then, NMFS has received numerous comments

from the public concerning the process and definition of critical

habitat for sockeye salmon and other salmonids. Also, due to statutory

time limitations, NMFS has not yet consulted with affected Indian

tribes regarding the designation of critical habitat in areas that may

affect tribal trust resources, tribally owned fee lands, or the

exercise of tribal rights.

Given these remaining unresolved issues, NMFS determines at this

time that a final critical habitat designation is not determinable for

this ESU since additional time is required to complete the needed

biological assessments and evaluate special management considerations

affecting critical habitat. The agency therefore extends the deadline

for designating critical habitat for 1 year until such assessments can

be made and after appropriate consultations are completed.

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

environmental assessment requirements of the National Environmental

Policy Act (NEPA) under NOAA Administrative Order 216-6.

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

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

species. Therefore, the economic analysis requirements of the

Regulatory Flexibility Act (RFA) are not applicable to the listing

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

12866.

This rule has been determined to be major under the Congressional

Review Act (5 U.S.C. 801 et seq.)

At this time NMFS is not promulgating protective regulations

pursuant to ESA section 4(d). In the future, prior to finalizing its

4(d) regulations for the threatened sockeye salmon ESU, NMFS will

comply with all relevant NEPA and RFA requirements.

References

A complete list of all references cited herein is available upon

request (see ADDRESSES) and can also be obtained from the internet at

www.nwr.noaa.gov.

Change in Enumeration of Threatened Species

In the proposed rule issued on March 10, 1998 (63 FR 11750), Ozette

Lake sockeye salmon was designated the letter (o) in Sec. 227.4. Since

March 10, NMFS has issued a final rule consolidating and reorganizing

existing regulations regarding implementation of the ESA. In this

reorganization, Sec. 227.4 has been redesignated, as Sec. 223.102(a),

therefore, Ozette Lake sockeye salmon is designated in this final rule

as paragraph (a) (20) in Sec. 223.102(a). The regulatory text of the

proposed rule remains unchanged in this final rule.

List of Subjects in 50 CFR Part 223

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: March 15, 1999.

Andrew A. Rosenberg, Ph.D.,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth in the preamble, 50 CFR part 223 is

amended as follows:

PART 223-THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as

follows:

Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31

U.S.C. 9701.

2. In Sec. 223.102, paragraph (a)(19) is added to read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *

(a) * * *

(19) Ozette Lake sockeye salmon (Oncorhynchus nerka). Includes all

naturally spawned populations of sockeye salmon in Ozette Lake and

streams and tributaries flowing into Ozette Lake, Washington.

* * * * *

[FR Doc. 99-6813 Filed 3-24-99; 8:45 am]

BILLING CODE 3510-22-F