Endangered and Threatened Species: Threatened Status for Two ESUs of Steelhead in Washington and Oregon

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980225046-9070-03; I.D. 021098B]

RIN 0648-AK54

Endangered and Threatened Species: Threatened Status for Two ESUs

of Steelhead in Washington and Oregon

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; notice of determination.

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SUMMARY: Previously, NMFS completed a comprehensive status review of

west coast steelhead (Oncorhynchus mykiss) populations in Washington,

Oregon, Idaho, and California, and identified 15 Evolutionarily

Significant Units (ESUs) within this range. NMFS now issues a final

rule to list two ESUs as threatened under the Endangered Species Act

(ESA). The listed ESUs include the Middle Columbia River ESU located in

Washington and Oregon, and the Upper Willamette River ESU located in

Oregon.

In both threatened ESUs, only naturally spawned populations of

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

standing, natural waterfalls) are listed. NMFS examined the

relationship between hatchery and natural populations of steelhead in

these ESUs and determines none of the identified hatchery populations

are essential for recovery at this time.

At this time, NMFS is listing only anadromous life forms of O.

mykiss.

NMFS will issue any protective regulations deemed necessary under

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

Even though NMFS does not now issue protective regulations for these

ESUs, 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 steelhead.

DATES: Effective May 24, 1999.

ADDRESSES: Branch Chief, Protected Resources Division, NMFS, Northwest

Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-2737.

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

Mobley, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Electronic Access

Reference materials regarding this listing determination can also

be obtained from the internet at www.nwr.noaa.gov.

Species Background

Biological and life history information for steelhead can be found

in NMFS' recent status assessments (Busby et al., 1996; NMFS, 1999a and

1999b) and in the Federal Register notice announcing the listing

proposal (63 FR 11797, March 10, 1998).

Previous Federal ESA Actions Related to West Coast Steelhead

The history of petitions received regarding west coast steelhead is

summarized in the proposed rule published on August 9, 1996 (61 FR

41541). The most comprehensive petition was submitted by Oregon Natural

Resources Council and 15 co-petitioners on February 16, 1994. In

response to this petition, NMFS assessed the best available scientific

and commercial data, including technical information from Pacific

Salmon Biological Technical Committees (PSBTCs) and interested parties

in Washington and Oregon. The PSBTCs consisted primarily of scientists

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

industries, universities, professional societies, and public interest

groups) possessing technical expertise relevant to steelhead and their

habitats. NMFS also established a Biological Review Team (BRT),

composed of staff from NMFS' Northwest and Southwest Fisheries Science

Centers and Southwest Regional Office, as well as a representative of

the U.S. Geological Survey Biological Resources Division (formerly the

National Biological Service), which conducted a coastwide status review

for west coast steelhead (Busby et al., 1996).

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

information and existing conservation measures, NMFS published a

proposed listing determination (61 FR 41541, August 9, 1996) that

identified 15 ESUs of steelhead in the states of Washington, Oregon,

Idaho, and California. Ten of these ESUs were proposed for listing as

threatened or endangered species, four were found not warranted for

listing, and one was identified as a candidate for listing.

On August 18, 1997, NMFS published a final rule listing five ESUs

as threatened or endangered under the ESA (62 FR 43937, August 18,

1997). In a separate notice published on the same day, NMFS determined

substantial scientific disagreement remained for five proposed ESUs (62

FR 43974, August 18, 1997). In accordance with section 4(b)(6)(B)(i) of

the ESA, NMFS deferred its decision on these remaining steelhead ESUs

for 6 months, until February 9, 1998, for the purpose of soliciting

additional data. On March 19, 1998, NMFS published a final rule listing

two ESUs as threatened (63 FR 13347, March 19, 1998). In this notice

NMFS also determined the remaining three ESUs (Oregon Coast, Klamath

Mountains Province, and Northern California) did not warrant listing

(Id.).

On March 10, 1998, NMFS published a proposed listing determination

for Middle Columbia River and Upper Willamette River steelhead ESUs (63

FR

[[Page 14518]]

11798). This proposed rule was based on an updated status review

completed for previously deferred ESUs [Memorandum to William Stelle

and William Hogarth from M. Schiewe, December 18, 1997, Status of

Deferred and Candidate ESUs of West Coast Steelhead]. In response to

the proposed rule, NMFS received comments and scientific information

from affected states, tribes, and others which were recently considered

by NMFS' BRT. NMFS has now completed an updated status review that

analyzes this new information (NMFS, 1999a). Copies of this memorandum

are available upon request (see ADDRESSES). Based on this updated

review and other information, NMFS now lists the Upper Willamette River

and Middle Columbia River steelhead ESUs as threatened species under

the ESA.

Summary of Comments 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 28 written

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

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

community, and other individuals. A number of comments addressed

specific technical issues pertaining to a particular geographic region

or O. mykiss population. These technical comments were considered by

NMFS' BRT in its re-evaluation of ESU boundaries and status and are

discussed in the updated Status Review document (NMFS, 1999a).

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 a total of 35

individuals to take part in a peer review of the current and previous

west coast steelhead proposed rules. All individuals solicited are

recognized experts in the field of steelhead biology, and represent a

broad range of interests, including Federal, state, and tribal resource

managers, private industry consultants, and academia. Eight individuals

took part in the peer review of these findings; comments from peer

reviewers were considered by NMFS' BRT and are summarized in the

relevant Status Review documents (e.g., NMFS 1997a).

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

presented here.

Issue 1: Sufficiency and Accuracy of Scientific Information and

Analysis

Comment: Numerous commenters disputed the sufficiency and accuracy

of data which NMFS employed in its proposed rule to list two steelhead

ESUs as threatened under the ESA. Several commenters urged NMFS to

delay any ESA listing decisions for steelhead until additional

scientific information is available concerning this species.

Response: Section 4(b)(1)(A) of the ESA requires that NMFS make its

listing determinations solely on the basis of the best available

scientific and commercial data after reviewing the status of the

species. NMFS believes that information contained in the agency's

status review (Busby et al., 1996), together with more recent

information obtained in response to the proposed rule (NMFS, 1999a),

represents the best scientific information presently available for the

steelhead ESUs addressed in this final rule. NMFS has conducted an

exhaustive review of all available information relevant to the status

of this species. NMFS has also solicited information and opinion from

all interested parties. If, in the future, new data become available to

change these conclusions, NMFS will act accordingly.

Issue 2: Description and Status of Steelhead ESUs

Comment: Several commenters disputed NMFS' conclusions regarding

the geographic boundaries for some of the ESUs and questioned NMFS'

basis for determining these boundaries.

Response: NMFS has published a policy describing how it applies the

ESA definition of ``species'' to anadromous salmonid species (56 FR

58612; November 20, 1991). More recently, NMFS and FWS published a

joint policy, which is consistent with NMFS' policy, regarding the

definition of ``distinct population segments'' (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 indicates 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 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 distinct population segments (DPS) 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: Several commenters questioned NMFS' methodology for

determining whether a given steelhead ESU warranted listing. In most

cases, such commenters also expressed opinions regarding whether

listing was warranted for a particular steelhead ESU. A few commenters

provided substantive new information relevant to making risk

assessments.

Response: Section 3 of the ESA defines the term ``endangered

species'' as ``any species which is in danger of extinction throughout

all or a significant portion of its range.'' The term ``threatened

species'' is defined as ``any species which is likely to become an

endangered species within the foreseeable future throughout all or a

significant portion of its range.'' NMFS has identified a number of

factors that should be considered in evaluating the level of risk faced

by an ESU, including: (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

[[Page 14519]]

predictable short-term consequences for abundance of the ESU. A more

detailed discussion of status of individual ESUs is provided in this

document under ``Summary of Conclusions Regarding Listed ESUs.''

Issue 3: Factors Contributing to the Decline of West Coast

Steelhead

Comment: Many commenters identified factors they believe have

contributed to the decline of west coast steelhead. Factors identified

include overharvest by recreational fisheries, predation by pinnipeds

and piscivorous fish species, effects of artificial propagation, and

the deterioration or loss of freshwater and marine habitats.

Response: NMFS agrees that many factors, past and present, have

contributed to the decline of West Coast steelhead. NMFS also

recognizes that natural environmental fluctuations have likely played a

role in the species' recent declines. 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 natural

factors for decline such as drought and poor ocean conditions (NMFS,

1996a).

Since the time of this proposed listing, NMFS has published a

report describing the impacts of California sea lions and Pacific

harbor seals upon salmonids and on the coastal ecosystems of

Washington, Oregon, and California (NMFS, 1999c). This report concludes

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. This study further

concludes 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, 1997b). For additional information on this issue see

the ``Summary of Factors Affecting Steelhead'' later in this document.

Comment: Several commenters stated that NMFS' assessment

underestimated the significant influence of natural environmental

fluctuations on salmonid populations. Several commenters stated that

ocean conditions are one of the primary factors for decline.

Response: Environmental changes in both marine and freshwater

habitats can have important impacts on steelhead abundance. For

example, a pattern of relatively high abundance in the mid-1980s

followed by (often sharp) declines over the next decade occurred in

steelhead populations from most geographic regions of the Pacific

Northwest. This result is most plausibly explained by broad-scale

changes in ocean productivity. Similarly, 6 to 8 years of drought in

the late 1980s and early 1990s adversely affected many freshwater

habitats for steelhead throughout the region. These natural phenomena

put increasing pressure on natural populations already stressed by

anthropogenic factors such as habitat degradation, blockage of

migratory routes, and harvest (NMFS, 1996a).

Improvement of cyclic or episodic environmental conditions (for

example, increases in ocean productivity or shifts from drought to

wetter conditions) may help alleviate extinction risk to steelhead

populations. However, NMFS cannot reliably predict future environmental

conditions, making it unreasonable to assume improvements in abundance

as a result of improvements in such conditions. Furthermore, steelhead

and other species of Pacific salmon have evolved over the centuries

with such cyclical environmental stresses. This species has persisted

through time in the face of these conditions largely due to the

presence of freshwater and estuarine refugia. As these refugia are

altered and degraded, Pacific salmon species are more vulnerable to

such episodic events as shifts in ocean productivity and drought cycles

(NMFS, 1996a).

Issue 4: Consideration of Existing Conservation Measures

Comment: Several commenters argued that NMFS had not considered

existing conservation programs designed to enhance steelhead stocks

within a particular ESU. 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 two ESUs addressed in this final rule and

concludes that existing conservation efforts in some cases have helped

ameliorate risks facing the species. These conservation efforts are

discussed in detail later in this document under ``Existing

Conservation Efforts.''

While several of the plans addressed in comments show promise for

ameliorating risks facing steelhead, some of the measures described in

comments have not been implemented and are only recently proposed. 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.

Even though existing conservation efforts and plans in the listed

ESUs are not sufficient to preclude the need for listings at this time,

they are nevertheless valuable for improving watershed health and

restoring fishery resources. In those cases where well-developed,

reliable conservation plans exist, NMFS may choose to incorporate them

into the recovery planning process. In the case of threatened species,

NMFS also has flexibility under section 4(d) of the ESA to tailor the

protective regulations based on the contents of available conservation

measures. NMFS has already adopted 4(d) rules that except a limited

range of activities from section 9 take prohibitions. For example, the

interim 4(d) rule for Southern Oregon/Northern California 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 appropriate

cases, 4(d) rules could contain limited take prohibitions applicable to

such activities as forestry, agriculture, and road construction when

such activities are conducted in accordance with NMFS approved state or

tribal conservation plans.

These examples show that NMFS may apply modified ESA section 9

prohibitions where NMFS approved state or tribal conservation plans

exist. 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 of salmon or steelhead 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 the populations within it, and to the

strength of state and tribal conservation plans in place to protect

them.

Issue 5: Steelhead Biology and Ecology

Comment: Several commenters asserted that resident rainbow trout

should be included in listed steelhead ESUs. Several commenters also

stated that NMFS and FWS should address how the presence of rainbow

trout

[[Page 14520]]

populations may ameliorate risks facing anadromous populations within

listed ESUs.

Response: In its August 9, 1996, proposed rule (61 FR 41541), NMFS

stated that based on available genetic information, it was the

consensus of NMFS scientists, as well as regional fishery biologists,

that resident fish should generally be considered part of the steelhead

ESUs. However, NMFS concluded that available data were inconclusive

regarding the relationship of resident rainbow trout and steelhead.

NMFS requested additional data in the proposed rule to clarify this

relationship and determine if resident rainbow trout should be included

in listed steelhead ESUs.

In response to this request for additional information, many groups

and individuals expressed opinions regarding this issue. In most cases

these opinions were not supported by new information that resolves

existing uncertainty. Two state fishery management agencies (Washington

Department of Fish and Wildlife (WDFW) and Oregon Department of Fish

and Wildlife(ODFW)) provided comments and information supporting the

inclusion of resident rainbow trout in listed steelhead ESUs. In

general, these parties also felt that rainbow trout may serve as an

important reservoir of genetic material for at-risk steelhead stocks.

While conclusive evidence does not yet exist regarding the

relationship of resident and anadromous O. mykiss, NMFS believes

available evidence suggests that resident rainbow trout should be

included in listed steelhead ESUs in certain cases. Such cases include

(1) where resident O. mykiss have the opportunity to interbreed with

anadromous fish below natural or man-made barriers, or (2) where

resident fish of native lineage once had the ability to interbreed with

anadromous fish but no longer do because they are currently above

human-made barriers, and they are considered essential for recovery of

the ESU. Whether resident fish that exist above any particular man-made

barrier meet these criteria must be reviewed on a case-by-case basis by

NMFS. Resident fish above long-standing natural barriers and those that

are derived from the introduction of non-native rainbow trout would not

be considered part of any salmonid ESU.

Several lines of evidence exist to support this conclusion. Under

certain conditions, anadromous and resident O. mykiss are apparently

capable not only of interbreeding, but also of having offspring that

express the alternate life history form, that is, anadromous fish can

produce nonanadromous offspring, and vice versa (Shapovalov and Taft,

1954; Burgner et al., 1992). Mullan et al. (1992) found evidence that

in very cold streams, juvenile steelhead had difficulty attaining

``mean threshold size for smoltification'' and concluded that ``Most

fish here [Methow River, Washington] that do not emigrate downstream

early in life are thermally-fated to a resident life history regardless

of whether they were the progeny of anadromous or resident parents.''

Additionally, Shapovalov and Taft (1954) reported evidence of O. mykiss

maturing in fresh water and spawning prior to their first ocean

migration; this life history variation has also been found in cutthroat

trout (O. clarki) and Atlantic salmon (Salmo salar).

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 steelhead, and by providing a ``reserve''

gene pool in freshwater that may persist through times of unfavorable

conditions for anadromous fish. In spite of these potential benefits,

the 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.

On February 7, 1996, FWS and NMFS adopted a joint policy to clarify

their interpretation of the phrase ``distinct population segment of any

species of vertebrate fish or wildlife'' (DPS) for the purposes of

listing, delisting, and reclassifying species under the ESA (61 FR

4722). DPSs are ``species'' pursuant to section 3(15) of the ESA.

Previously, NMFS had developed a policy for stocks of Pacific salmon

where an ESU of a biological species is considered to be a DPS if (1)

it is substantially reproductively isolated from other conspecific

population units, and (2) it represents an important component in the

evolutionary legacy of the species (56 FR 58612, November 20, 1991).

NMFS believes available data suggest that resident rainbow trout are,

in many cases, part of steelhead ESUs. However, FWS, which has ESA

authority for resident fish, maintains that behavioral forms can be

regarded as separate DPSs (e.g., as when the agency listed coastal, but

not interior, populations of the western snowy plover).

In its review of West Coast steelhead, NMFS' BRT stated that

rainbow trout and steelhead in the same area may share a common gene

pool, at least over evolutionary time periods (NMFS, 1997a). The

importance of any recovery action is measured in terms of its ability

to recover the listed species in the foreseeable future. The FWS

believes that steelhead recovery will not rely on the intermittent

exchange of genetic material between resident and anadromous forms

(FWS, 1997). As a result, without a clear demonstration of any risks to

resident rainbow trout or the need to protect rainbow trout to recover

steelhead in the foreseeable future, the FWS concludes that only the

anadromous forms of O. mykiss should be included in the listed

steelhead ESUs at this time (Department of the Interior, 1997; FWS,

1997).

Comment: Several commenters questioned NMFS' inclusion of both

summer- and winter-run steelhead in the same ESU. These commenters

suggested that summer- and winter-run steelhead be segregated into

individual ESUs based on life history differences.

Response: While NMFS considers both life history forms (summer and

winter steelhead) to be important components of diversity within the

species, new genetic data reinforces previous conclusions that within a

geographic area, summer and winter steelhead typically are more

genetically similar to one another than either is to populations with

similar run timing in different geographic areas. This indicates that

an ESU that included summer-run populations from different geographic

areas but excluded winter-run populations (or vice-versa) would be an

inappropriate unit. The only biologically meaningful way to have summer

and winter steelhead populations in separate ESUs would be to have a

very large number of ESUs, most consisting of just one or a very few

populations. This would be inconsistent with the approach NMFS has

taken in defining ESUs in other anadromous Pacific salmonids. Taking

these factors into consideration, NMFS concludes that summer and winter

steelhead should be considered part of the same ESU in geographic areas

where they co-occur.

Summary of Steelhead ESU Determinations

The following is a summary of NMFS' ESU determinations for the

species. A more detailed discussion of ESU determinations is presented

in the

[[Page 14521]]

``Status Review Update for Deferred and Candidate ESUs of West Coast

Steelhead'' (NMFS, 1997a) and ``Updated Review of the Status of the

Upper Willamette River and Middle Columbia River ESUs of Steelhead''

(NMFS, 1999a). Copies of these documents are available upon request

(see ADDRESSES).

NMFS also evaluated the relationship between hatchery and natural

populations of steelhead in these ESUs (NMFS, 1999b). 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.

(1) Upper Willamette River ESU

This steelhead ESU occupies the Willamette River and its

tributaries, upstream from Willamette Falls to the Calapooia River,

inclusive. This is a revision of the proposed ESU boundary in that NMFS

now refines the range of this ESU to exclude rivers upstream of the

Calapooia River.

The Willamette River Basin is zoogeographically complex. In

addition to its connection to the Columbia River, the Willamette River

historically has had connections with coastal basins through stream

capture and headwater transfer events (Minckley et al., 1986).

Steelhead from the upper Willamette River are genetically distinct

from those in the lower river. Reproductive isolation from lower river

populations may have been facilitated by Willamette Falls, which is

known to be a migration barrier to some anadromous salmonids. For

example, winter steelhead and spring chinook salmon (O. tshawytscha)

occurred historically above the falls, but summer steelhead, fall

chinook salmon, and coho salmon did not (PGE, 1994).

The native steelhead of this basin are late-migrating winter

steelhead, entering fresh water primarily in March and April (Howell et

al., 1985), whereas most other populations of west coast winter

steelhead enter fresh water beginning in November or December. As early

as 1885, fish ladders were constructed at Willamette Falls to aid the

passage of anadromous fish. The ladders have been modified and rebuilt,

most recently in 1971, as technology has improved (Bennett, 1987; PGE,

1994). These fishways facilitated successful introduction of Skamania

stock summer steelhead and early-migrating Big Creek stock winter

steelhead to the upper basin. Another effort to expand the steelhead

production in the upper Willamette River was the stocking of native

steelhead in tributaries not historically used by that species. Native

steelhead primarily used tributaries on the east side of the basin,

with cutthroat trout predominating in streams draining the west side of

the basin.

Resident O. mykiss are known to occupy the Upper Willamette River

Basin; however, most of these populations occur above natural and

manmade barriers (Kostow, 1995). Historically, spawning by Upper

Willamette River steelhead was concentrated in the North and Middle

Santiam River Basins (Fulton, 1970). These areas are now largely

blocked to fish passage by dams, and steelhead spawning is now

distributed throughout more of the Upper Willamette River Basin than in

the past (Fulton, 1970). Due to introductions of non-native steelhead

stocks and transplantation of native stocks within the basin, it is

difficult to formulate a clear picture of the present distribution of

native Upper Willamette River steelhead, and their relationship to

nonanadromous and possibly residualized O. mykiss within the basin.

Substantive comments from ODFW on this ESU addressed the boundaries

of the ESU and the relationship between the native steelhead of the

middle basin and the resident trout of the upper basin (i.e., McKenzie

and Middle Fork Willamette Rivers) (Greer, 1998). Additionally, NMFS

was able to evaluate new genetic information pertinent to this ESU.

Recently developed resident trout genetic data from the McKenzie

and Middle Fork Willamette River Basins showed no genetic continuity

with known hatchery trout (Cape Cod stock) or any Willamette River

steelhead population. Additionally, ODFW has been unable to achieve

success in their attempts to establish steelhead populations in these

subbasins. These factors combine to give credence to the theory that,

for some unidentified reason, the upper reaches of the Willamette River

Basin are not suitable to support steelhead populations, although

resident trout and chinook salmon have been successful there.

NMFS reviewed the steelhead distribution described by Fulton

(1970); however, aside from this, little new information was added to

that presented by Busby et al. (1996). NMFS concludes that this ESU was

comprised of the native late-run winter steelhead and that the historic

distribution of the ESU did not extend upstream of the Calapooia River.

NMFS also concludes that steelhead had some historic distribution in

westside tributaries to the Willamette River (e.g., Gales Creek in the

Tualatin River Basin) but that current distribution of winter-run

steelhead in westside tributaries is somewhat unclear. Based on limited

genetic analysis, the recent samples from westside tributaries do not

appear to reflect populations derived from this ESU (NMFS, 1999a).

However, information provided by the State of Oregon indicates that

winter-run steelhead may in fact presently occur in several westside

tributaries (Kostow, 1995; NMFS, 1999a).

Based on the best available scientific information, NMFS concludes

that westside tributaries to the Willamette River warrant inclusion in

this ESU at this time, although some uncertainty remains regarding this

conclusion. While westside tributaries are included in the ESU, it is

important to note that the listed ESU consists of naturally spawned,

winter-run steelhead. Where distinguishable, naturally spawned, summer-

run steelhead are not included in the listed ESU.

Hatchery Populations Pertaining to the ESU

NMFS identified three hatchery stocks associated with the Upper

Willamette River ESU (NMFS, 1999b). After reviewing the best available

information regarding the relationship between hatchery and natural

populations in this ESU, NMFS concludes that the North Santiam River

(ODFW Stock 21) hatchery stock should be considered part of the ESU.

However, the Big Creek (ODFW Stock 13) and Skamania/Foster/McKenzie

ODFW stocks are not considered part of the ESU. The listing status of

these hatchery stocks is described later in this document under

``Status of Steelhead ESUs.''

(2) Middle Columbia River ESU

This inland steelhead ESU occupies the Columbia River Basin and

tributaries from above the Wind River in Washington and the Hood River

in Oregon (exclusive), upstream to, and including, the Yakima River, in

Washington. Steelhead of the Snake River Basin are excluded. Franklin

and Dyrness (1973) placed the Yakima River Basin in the Columbia Basin

Physiographic Province, along with the Deschutes, John Day, Walla

Walla, and lower Snake River Basins. Geology within this province is

dominated by the Columbia River Basalt formation, stemming from lava

deposition in the Miocene epoch, overlain by plio-Pleistocene deposits

of glaciolacustrine origin (Franklin & Dyrness, 1973). This

intermontane region includes some of the driest areas of the Pacific

Northwest, generally receiving less than 40 centimeters of rainfall

annually (Jackson, 1993). Vegetation is of the

[[Page 14522]]

shrub-steppe province, reflecting the dry climate and harsh temperature

extremes.

Genetic differences between inland and coastal steelhead are well

established, although some uncertainty remains about the exact

geographic boundaries of the two forms in the Columbia River.

Electrophoretic and meristic data show consistent differences between

several middle Columbia River steelhead populations and Snake River

steelhead. No recent genetic data exist for natural steelhead

populations in the upper Columbia River, but recent WDFW data show that

the Wells Hatchery stock from the upper Columbia River does not have a

close genetic affinity to sampled populations from the middle Columbia

River.

All steelhead in the Columbia River Basin upstream from The Dalles

Dam are summer-run, inland steelhead (Schreck et al., 1986;

Reisenbichler et al., 1992; and Chapman et al., 1994). Steelhead in

Fifteenmile Creek, Oregon, are genetically allied with inland O.

mykiss, but are winter-run. Winter steelhead are also found in the

Klickitat and White Salmon Rivers, Washington.

Life history information for steelhead of this ESU indicates that

most middle Columbia River steelhead smolt at 2 years and spend 1 to 2

years in salt water (i.e., 1-ocean and 2-ocean fish, respectively)

prior to re-entering fresh water, where they may remain up to a year

prior to spawning (Howell et al., 1985; BPA, 1992). Within this ESU,

the Klickitat River is unusual in that it produces both summer and

winter steelhead, and the summer steelhead are dominated by 2-ocean

steelhead, whereas most other rivers in this region produce about equal

numbers of both 1- and 2-ocean steelhead.

The proposed listing of the Middle Columbia River ESU generated

substantive comments from ODFW (Greer, 1998) and the Confederated

Tribes of the Warm Springs Reservation of Oregon (CTWSRO) (Calica,

1998). These comments, while summarized here, are discussed in detail

in the status review update (NMFS, 1999a).

NMFS previously concluded that native, resident O. mykiss

populations that have the opportunity to interbreed with anadromous O.

mykiss should be included in the steelhead ESUs (Busby et al., 1996).

While ODFW and CTWSRO presented anecdotal accounts of spawning

interactions between resident trout and steelhead in the Deschutes

River (i.e., Zimmerman and Reeves, 1996; 1997; and 1998), such studies

did not provide much evidence of this. NMFS concludes that, given the

opportunity for reproductive interaction, co-occurring resident trout

are included within this steelhead ESU.

In its comments, ODFW recommended that NMFS realign the proposed

ESU to exclude winter steelhead from it; however, this recommendation

is not supported by any new scientific data. Currently available data

indicate that these are inland steelhead populations. An intensive

genetic survey of these steelhead populations might provide useful

information to further clarify the relationship between coastal and

inland steelhead. NMFS concludes that no change in the ESU boundaries

are warranted based solely on the presence of a winter-run life

history.

Recently obtained genetic data raises some question about the

boundaries of the Middle Columbia River ESU. However, NMFS concludes

that this new information is too uncertain at this stage to warrant

revising the proposed ESU boundaries. NMFS will revise these boundaries

in the future when additional data support such a revision.

Hatchery Populations Pertaining to the ESU

NMFS identified two hatchery stocks associated with the Middle

Columbia River ESU (NMFS, 1999b). After reviewing the best available

information regarding the relationship between hatchery and natural

populations in this ESU, NMFS concludes that both the Deschutes River

(ODFW Stock 66) and Umatilla River (ODFW Stock 91) hatchery stocks

should be considered part of the ESU. The listing status of these

hatchery stocks is described later in this document under ``Status of

Steelhead ESUs.''

Summary of Factors Affecting Steelhead

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.

Several recent documents describe in more detail the impacts of

various factors contributing to the decline of steelhead and other

salmonids (e.g., 63 FR 11798; NMFS, 1999a). Relative to west coast

steelhead, NMFS prepared a supporting document that addresses the

factors leading to the decline of this species entitled ``Factors for

Decline: A Supplement to the Notice of Determination for West Coast

Steelhead'' (NMFS, 1996b). This report, available upon request (see

ADDRESSES), concludes that all of the factors identified in section

4(a)(1) of the ESA have played a role in the decline of the species.

The report identifies destruction and modification of habitat,

overutilization for recreational purposes, and natural and human-made

factors as being the primary reasons for the decline of west coast

steelhead.

Efforts Being Made to Protect West Coast Steelhead

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 steelhead 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 11798) as well as a document entitled

``Steelhead Conservation Efforts: A Supplement to the Notice of

Determination for West Coast Steelhead under the Endangered Species

Act'' (NMFS, 1996c). During the proposed rule period, NMFS identified

additional conservation measures in the States of Washington and

Oregon. These additional conservation measures are summarized here.

Two Federal planning efforts affect aquatic habitat on Federal

lands within the range of these ESUs. These Federal efforts in some

cases provide substantial protection for aquatic communities and are

therefore considered in NMFS' listing determination. Federal forest

lands in the Upper Willamette River ESU (and some areas of the Middle

Columbia River ESU) are managed under U.S. Forest Service (USFS) and

Bureau of Land Management (BLM) Land and Resource Management Plans or

Land Use Plans which are amended by the Northwest Forest Plan (NFP).

The NFP is a Federal interagency cooperative program that was

implemented to provide a coordinated management direction for the lands

administered by the USFS and BLM. A major part of the Plan,

implementation of an Aquatic Conservation Strategy (ACS) on Federal

land, is expected to reverse the trend of aquatic ecosystem degradation

and contribute toward fish habitat recovery. Coordination among

[[Page 14523]]

the Federal land management agencies, NMFS, the U.S. Environmental

Protection Agency (EPA), and the FWS should ensure that the ACS

objectives are achieved.

Prior to implementing the Record of Decision for the President's

Forest Plan, little or no riparian protection was afforded for the fish

and their habitat. One of the most important substantive protective

measures implemented through the Plan are riparian reserves. These are

buffered strips of land that, depending on stream class and type of

watershed, range from 300 ft (91m) on perennial streams to 50 ft (15 m)

on ephemeral streams.

Some Federal lands in the Middle Columbia River ESU are managed

under USFS and BLM Land and Resource Management Plans or Land Use Plans

which are amended by PACFISH. PACFISH provides objectives, standards

and guidelines that are applied to all Federal land management

activities such as timber harvest, road construction, mining, grazing

and recreation. The USFS and BLM implemented PACFISH in 1995 and

intended it to provide interim protection to anadromous fish habitat

while a longer term, basin scale aquatic conservation strategy was

developed in the Interior Columbia Basin, Ecosystem Managment Project

(ICBEMP). It is intended that ICBEMP will have a Final Environmental

Impact Statement and Record of Decision by early 2000.

For other ESUs already listed in the Interior Columbia Basin (Snake

River chinook, Snake River steelhead, and Upper Columbia River

steelhead), NMFS has required in section 7 consultation, several

components that are in addition to the PACFISH strategy (NMFS 1995;

NMFS 1998). NMFS, USFS, and BLM intend these additional components to

bridge the gap between interim PACFISH direction and the longterm

strategy envisioned for ICBEMP. NMFS anticipates that these components

will also be carried forward in the ICBEMP direction. These components

include (but are not limited to) implementation monitoring and

accountability, a system of watersheds that are prioritized for

protection and restoration, improved and monitored grazing systems,

road system evaluation and planning requirements, mapping and analysis

of unroaded areas, multi-year restoration strategies, and batching and

analyzing projects at the watershed scale. Given the timeframe for

ICBEMP, NMFS will likely conduct similar additional section 7

consultations for the Land and Resource Management plans within the

Middle Columbia River ESU and will then consult on ICBEMP when it is

complete.

In the range of both the Middle Columbia River and Upper Willamette

River ESUs, several notable efforts have recently been initiated.

Harvest, hatchery, and habitat protections under state control are

evolving under the Oregon Plan for Salmon and Watersheds (OPSW). The

OPSW is a long-term effort to protect all at-risk wild salmonids

through cooperation between state, local and Federal agencies, tribal

governments, industry, private organizations, and individuals. Parts of

the OPSW are already providing benefits, including an aggressive

program by the Oregon Department of Transportation to inventory,

repair, and replace road culverts that block fish from reaching

important spawning and rearing areas. The OPSW also encourages efforts

to improve conditions for salmon through non-regulatory means,

including significant efforts by local watershed councils. An

Independent Multi-disciplinary Science Team provides scientific

oversight to OPSW components and outcomes. A recent Executive Order

from Governor Kitzhaber reinforced his expectation that all state

agencies will make improved environmental health and salmon recovery

part of their mission.

Protecting and restoring fish and wildlife habitat and population

levels in the Willamette River Basin, promoting proper floodplain

management, and enhancing water quality is the focus of the recently

formed Willamette Restoration Initiative (WRI). The WRI creates a

mechanism through which residents of the basin are mounting a

concerted, collaborative effort to restore watershed health. In

addition, habitat protection and improved water quality in the

Portland/Vancouver metropolitan areas are getting unprecedented

attention from local jurisdictions. The regional government, Metro,

recently adopted an aggressive stream and floodplain protection

ordinance designed to protect functions and values of floodplains, and

natural stream and adjacent vegetated corridors. All jurisdictions in

the region must amend their land use plans and implementing ordinances

to comply with the Metro ordinance within 18 months. Metro also has a

green spaces acquisition program that addresses regional biodiversity,

and is giving protection to significant amounts of land, some of it on

the Sandy River or on tributaries to the Willamette River. The City of

Portland has identified those activities which impact salmonids and is

now using that information to reduce impacts of existing programs and

to identify potential enhancement actions. The City will shortly be

making significant improvements in its storm water management program,

a key to reducing impacts on salmonid habitat.

In the lower Columbia River, salmonid populations were seriously

depleted long before increasing predator populations posed any

significant threat to their long-term survival. Various development and

management actions have interrupted the natural balance between

predator and prey populations, and this situation now poses a risk to

struggling salmonid populations. For example, steps have already been

taken this year by the U.S. Army Corps of Engineers (COE), FWS, ODFW,

and NMFS to relocate at least 90 percent of a Caspian tern colony away

from areas in the lower Columbia where their primary food is juvenile

salmonids.

The State of Washington is currently in the process of developing a

statewide strategy to protect and restore wild steelhead and other

salmon and trout species. In May of 1997, Governor Gary Locke and other

state officials signed a Memorandum of Agreement creating the Joint

Natural Resources Cabinet (Joint Cabinet). This body is comprised of

state agency directors or their equivalents from a wide variety of

agencies whose activities and constituents influence Washington's

natural resources. The goal of the Joint Cabinet is to restore salmon,

steelhead, and trout populations by improving those habitats on which

the fish rely. The Joint Cabinet's current activities include

development of the Lower Columbia Steelhead Conservation Initiative

(LCSCI), which is intended to comprehensively address protection and

recovery of steelhead in the lower Columbia River area.

NMFS intends to continue working with the State of Washington and

stakeholders involved in the formulation of the LCSCI. Ultimately, when

completed, this conservation effort may help to ameliorate risks facing

many salmonid species in this region. In the near term, for steelhead

and other listed species, individual components of the conservation

effort may be recognized through section 4(d) of the ESA. In this way

activities conducted in accordance with full, matured, and implemented

conservation efforts may be excepted from take under section 9 of the

ESA.

NMFS and FWS 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 and Washington. While section

7 of the ESA addresses species protection associated

[[Page 14524]]

with Federal actions and lands, Habitat Conservation Planning under

section 10 of the ESA addresses species protection on private (non-

Federal) lands. HCPs are particularly important since significant

portions of habitat in the range of both steelhead ESUs is in non-

Federal ownership. The intent of the HCP process is to ensure that any

incidental taking of listed species will not appreciably reduce the

likelihood of survival of the species, 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.

NMFS will continue to evaluate state, tribal, and non-Federal

efforts to develop and implement measures to protect and begin the

recovery of steelhead populations within these ESUs. Because a

substantial portion of land in these ESUs is in state or private

ownership, conservation measures on these lands will be key to

protecting and recovering steelhead populations in these ESUs. NMFS

recognizes that strong conservation benefits will accrue from specific

components of many non-Federal conservation efforts.

While NMFS acknowledges that many of the ongoing protective efforts

are likely to promote the conservation of steelhead and other

salmonids, some are very recent and few address steelhead conservation

at a scale that is adequate to protect and conserve entire ESUs. NMFS

concludes that existing protective efforts are inadequate to preclude a

listing for these ESUs. 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 steelhead populations.

Status of Steelhead ESUs

Section 3 of the ESA defines the term ``endangered species'' as

``any species which is in danger of extinction throughout all or a

significant portion of its range.'' The term ``threatened species'' is

defined as ``any species which is likely to become an endangered

species within the foreseeable future throughout all or a significant

portion of its range.'' Thompson (1991) suggested that conventional

rules of thumb, analytical approaches, and simulations may all be

useful in making this determination. In previous status reviews (e.g.,

Weitkamp et al., 1995), NMFS has identified a number of factors that

should be considered in evaluating the level of risk faced by an ESU,

including: (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.

During the coastwide status review for steelhead, NMFS evaluated

both quantitative and qualitative information to determine whether any

proposed ESU is threatened or endangered according to the ESA. The

types of information used in these assessments are described in the

proposed rule, published August 9, 1996 (61 FR 41541). The assessments

also considered whether any of the hatchery populations identified in

``Summary of Steelhead ESU Determinations'' should be considered

essential for the recovery of a listed ESU. The following summaries

draw on these quantitative and qualitative assessments to describe

NMFS' conclusions regarding the status of each steelhead ESU. A more

detailed discussion of the status of these steelhead ESUs is presented

in the ``Status Review Update for Deferred and Candidate ESUs of West

Coast Steelhead'' (NMFS, 1997a) and ``Updated Review of the Status of

the Upper Willamette River and Middle Columbia River ESUs of

Steelhead'' (NMFS, 1999a). Copies of these documents are available upon

request (see ADDRESSES).

(1) Upper Willamette River ESU

Steelhead in the Upper Willamette River ESU are distributed in a

few, relatively small, natural populations. Over the past several

decades, total abundance of natural late-migrating winter steelhead

ascending the Willamette Falls fish ladder has fluctuated several times

over a range of approximately 5,000 to 20,000 spawners. However, the

last peak occurred in 1988, and this peak has been followed by a steep

and continuing decline. Abundance in each of the last 5 years has been

below 4,300 fish, and the run in 1995 was the lowest in 30 years.

Declines also have been observed in almost all natural populations,

including those with and without a substantial component of naturally

spawning hatchery fish. NMFS notes with concern the results from ODFW's

extinction assessment, which estimates that the Molalla River

population had a greater than 20 percent extinction probability in the

next 60 years, and that the upper South Santiam River population had a

greater than 5 percent extinction risk within the next 100 years

(Chilcote, 1997).

Steelhead native to the Upper Willamette River ESU are late-run

winter steelhead, but introduced hatchery stocks of summer and early-

run winter steelhead also occur in the upper Willamette River.

Estimates of the proportion of hatchery fish in natural spawning

escapements range from 5 to 25 percent. NMFS is concerned about the

potential risks associated with interactions between non-native summer

and wild winter steelhead, whose spawning areas are sympatric in some

rivers (especially in the Molalla and North and South Santiam Rivers).

The percentage of hatchery fish in natural spawning escapements is

considered relatively low in most rivers in the Upper Willamette River

Basin. Declines in winter steelhead runs, regardless of degree of

hatchery influence, suggest that causes other than artificial

propagation are primarily responsible for reduced abundances.

NMFS remains concerned about the lack of historical abundance

estimates for winter steelhead in the Upper Willamette River ESU. It

may be possible that population sizes were never large above Willamette

Falls, and that the winter steelhead in this ESU are capable of

persisting at relatively low abundance. Although not as extreme as is

the case for spring chinook salmon, the proportion and total amount of

historical steelhead spawning habitat that has been blocked by dams and

water diversions is high in the Upper Willamette River ESU. It is

possible that several consecutive years of poor ocean conditions and

recent harvest pressure in the lower Columbia River have pushed the

winter steelhead populations in the Upper Willamette River drainage to

the limit of their resiliency.

Listing Determination

Based on new information submitted by ODFW and others, NMFS

concludes Upper Willamette River steelhead warrant listing as a

threatened species. NMFS is concerned about the universally declining

trends in abundance in the relatively small-to-moderate sized runs of

winter steelhead in this ESU. Recent abundance trends indicate

naturally spawned steelhead have declined to historically low levels in

areas above Willamette Falls. This

[[Page 14525]]

low abundance, coupled with potential risks associated with

interactions between naturally spawned steelhead and hatchery stocks is

of great concern to NMFS.

Recent conservation planning efforts by the State of Oregon may

reduce risks faced by steelhead in this ESU in the future; however,

these efforts are still in their formative stages. Specifically, the

OPSW, while substantially implemented and funded on the Oregon Coast,

has not yet reached a similar level of development in inland areas.

Furthermore, while the NFP has reduced habitat degradation on Federal

lands within this ESU, less than 20 percent of land areas in this

region are under Federal ownership and hence covered by this management

plan.

Status of Hatchery Populations

NMFS concludes that none of the hatchery steelhead stocks

identified as part of this ESU (see ``Summary of Steelhead ESU

Determinations'') should be listed since they are not currently

essential for its recovery (NMFS, 1999b).

(2) Middle Columbia River Basin ESU

Current population sizes are substantially lower than historic

levels, especially in the rivers with the largest steelhead runs in the

ESU: the John Day, Deschutes, and Yakima Rivers. At least two

extinctions of native steelhead runs in the ESU have occurred (the

Crooked and Metolius Rivers, both in the Deschutes River Basin). Trends

in natural escapement in the Yakima and Umatilla Rivers have been

highly variable since the mid-late 1970s, ranging from abundances that

indicate relatively healthy runs to those that are cause for concern

(i.e., from 2,000 to 3,000 steelhead during peaks to approximately 500

fish during the low points).

One of the most significant sources of risk to steelhead in the

Middle Columbia ESU is the recent and dramatic increase in the

percentage of hatchery fish in natural escapement in the Deschutes

River Basin. ODFW estimates that in recent years, the percentage of

hatchery strays in the Deschutes River has exceeded 70 percent, and

most of these are believed to be long-distance strays from outside the

ESU. Coincident with this increase in the percentage of strays has been

a decline in the abundance of native steelhead in the Deschutes River.

In combination with the trends in hatchery fish in the Deschutes River,

estimates of increased proportions of hatchery fish in the John Day and

Umatilla River Basins pose a risk to wild steelhead due to negative

effects of genetic and ecological interactions with hatchery fish. For

example, in recent years, most of the fish planted in the Touchet River

are from out of ESU stocks. As a result, a recent analysis of this

stock by WDFW found that it was most similar genetically to Wells

Hatchery steelhead from the Upper Columbia River ESU.

NMFS remains concerned about the widespread declines in abundance

in the steelhead populations in this ESU. The serious declines in

abundance in the John Day River Basin are especially troublesome,

because the John Day River has supported the largest populations of

naturally spawning summer steelhead in the ESU. Populations in the

Yakima River Basin are at a small fraction of historical levels, with

the majority of production coming from a single stream (Satus Creek).

The number of naturally spawning fish in the Umatilla River has been

relatively stable in recent years, but this has been accomplished with

substantial supplementation of natural spawning by hatchery-reared

fish. Naturally produced steelhead have declined precipitously in the

Deschutes River over the past decade. The most optimistic observation

that can be made for steelhead in this area is that some populations

have shown resiliency to bounce back from even more depressed levels in

the past (e.g., the late 1970s).

The continued increase of stray steelhead into the Deschutes River

Basin is also a major source of concern to NMFS. ODFW and CTWSRO

estimate that 60 to 80 percent of the naturally spawning population is

composed of strays, which greatly outnumber naturally produced fish.

Although the level of reproductive success of these stray fish has not

been evaluated, the levels are so high that major genetic and

ecological effects on natural populations are possible. Recent efforts

underway by the CTWSRO and ODFW to determine the origin of strays and

the proportion of strays that are spawning naturally in the Deschutes

River may prove useful in focusing management efforts to address this

serious issue.

ODFW argues that resident fish in the Deschutes River play a more

substantial role in overall population dynamics and abundance of O.

mykiss than is the case in other streams within this ESU or in most

other steelhead ESUs. Further, they argue that the resident populations

in the Deschutes River are robust and provide a substantial buffer

against extinction. Evaluating the role of resident fish in extinction

risk analysis for steelhead ESUs is very complex. Comprehensive

abundance information for resident fish is not available, but if the

data presented by ODFW for Nena Creek/North Junction are

representative, the overall abundance of resident fish in the Deschutes

River may be fairly high. Some spawning between resident and anadromous

fish has been observed, but there appears to be substantial

microhabitat partitioning of reproduction between the forms based on

size, timing, and location. Available information is limited, but it

does not provide evidence that resident fish contribute significantly

to anadromous returns. A tentative conclusion is that, within the

Deschutes River Basin, the two forms are closely linked over

evolutionary time frames, but the ability of the resident form to

substantially affect demographic/genetic processes in steelhead

populations in the short term is doubtful. To the extent that the

resident form has been producing steelhead offspring in this ESU, the

effect of that production has not been sufficient to stave off

continued declines in steelhead populations. Furthermore, if there is

substantial and continuing gene flow between resident and anadromous

forms, that would suggest that the high stray rates of non-native

hatchery steelhead also pose a genetic risk to resident fish in the

Deschutes River. Not enough information currently exists to determine

whether the relative abundances of the two life history forms should be

viewed positively (e.g., the relatively high abundance of the resident

form in those streams can act to buffer the anadromous form from

declines) or negatively (e.g., the resident form is outcompeting or

interbreeding with the anadromous form) in risk evaluations.

Listing Determination

NMFS concludes the Middle Columbia ESU warrants listing as a

threatened species. Continued declines in steelhead abundance and

increases in the percentage of hatchery fish in natural escapements

pose significant threats to this ESU.

Recent conservation planning efforts by the States of Washington

and Oregon may reduce risks faced by steelhead in this ESU in the

future; however, these efforts are still in their formative stages.

Federal management efforts, including the NFP, PACFISH, and forthcoming

ICEBMP, address important habitat-related risk factors for this ESU.

However, only about 24 percent of the land area within this ESU is

under Federal management and subject to these management efforts.

Status of Hatchery Populations

NMFS concludes that none of the hatchery steelhead stocks

identified as part of this ESU (see ``Summary of Steelhead ESU

Determinations'') should

[[Page 14526]]

be listed since they are not currently essential for its recovery

(NMFS, 1999b).

Determinations

Based on new information and comments received during the proposed

rule, NMFS concludes that Upper Willamette River steelhead and Middle

Columbia River steelhead warrant listing as threatened species under

the ESA. The geographic boundaries (i.e., the watersheds within which

the members of the ESU spend their freshwater residence) for these ESUs

are described under ``Summary of Steelhead ESU Determinations.''

In both threatened steelhead ESUs, NMFS is listing only naturally

spawned populations residing below impassable natural barriers (e.g.,

long-standing, natural waterfalls). NMFS' intent in listing only

``naturally spawned'' populations is to protect steelhead stocks that

are indigenous to (i.e., part of) the ESU. In this listing

determination, NMFS has identified various non-indigenous populations

that co-occur with fish in the listed ESUs. 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 steelhead are considered listed within an

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

of the ESA. Efforts to determine the conservation status of an ESU

would 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 steelhead from spawning in the wild unless the

fish are specifically part of a recovery effort.

NMFS has also evaluated the relationship between hatchery and

natural populations of steelhead in the listed ESUs (described

previously in ``Summary of Steelhead ESU Determinations'' and ``Status

of Steelhead ESUs''). None of the hatchery populations are being listed

because, while some are considered part of the ESUs, none are deemed

essential for the recovery of either ESU (NMFS, 1999b).

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.

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.'' In the case of hatchery

steelhead populations considered to be part of the Upper Willamette

River ESU or Middle Columbia River ESU, 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 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 as part of the ESU but

not listed.

At this time, NMFS is listing only anadromous life forms of O.

mykiss.

Prohibitions and Protective Measures

Section 9 of the ESA prohibits certain activities that directly or

indirectly affect endangered species. These prohibitions apply to all

individuals, organizations, and agencies subject to U.S. jurisdiction.

Section 9 prohibitions apply automatically to endangered species, as

described in the following discussion, this is not the case for

threatened species.

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

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

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

section 9 to threatened species. Section 9(a)(1)(g) also prohibits

violations of protective regulations for threatened species implemented

under section 4(d). NMFS will issue shortly protective regulations

pursuant to section 4(d) for the listed ESUs.

Section 7(a)(4) of the ESA requires that Federal agencies consult

with NMFS on any actions likely to jeopardize the continued existence

of a species proposed for listing and on actions likely to result in

the destruction or adverse modification of proposed critical habitat.

For listed species, section 7(a)(2) requires Federal agencies to ensure

that activities they authorize, fund, or conduct are not likely to

jeopardize the continued existence of a listed species or to destroy or

adversely modify its critical habitat. If a 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 steelhead in the

listed ESUs include authorized land management activities of the USFS

and BLM, as well as operation of hydroelectric and storage projects of

the Bureau of Reclamation and COE. Such activities include timber sales

and harvest, hydroelectric power generation, and flood control. Federal

actions, including the 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

EPA, highway projects authorized by the Federal Highway Administration,

Federal Energy Regulatory Commission licenses for nonfederal

development and operation of hydropower, and Federal salmon hatcheries,

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 steelhead and its habitat within the range of the

listed ESUs. It is important to note that the current listing applies

only to the anadromous form of O. mykiss; therefore, section 7

consultations will not address resident forms of O. mykiss at this

time.

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).

[[Page 14527]]

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.

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 ESA 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 adult fish for artificial propagation programs. NMFS is

aware of several sampling efforts for steelhead in the listed ESUs,

including efforts by Federal and state fishery management agencies.

These and other research efforts could provide critical information

regarding steelhead distribution and population abundance.

ESA 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 state or privately operated and funded hatcheries,

state or university research on species other than steelhead, not

receiving Federal authorization or funding, the implementation of state

fishing regulations, and timber harvest activities on nonfederal lands.

Take Guidance

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

committing the agencies 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

steelhead from the listed ESUs 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 activities such 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 steelhead in the listed ESUs and result in a violation of section

9 of the ESA include, but are not limited to: (1) land-use activities

that adversely affect steelhead habitat in this ESU (e.g., logging,

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

susceptible to mass wasting and surface erosion); (2) destruction or

alteration of steelhead habitat in the listed ESUs, such as removal of

large woody debris and ``sinker logs'' or riparian shade canopy,

dredging, discharge of fill material, draining, ditching, diverting,

blocking, or altering stream channels or surface or ground water flow;

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

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

steelhead; (4) violation of discharge permits; (5) pesticide and

herbicide applications; (6) interstate and foreign commerce of

steelhead from the listed ESUs and import/export of steelhead from

listed ESUs without an ESA permit, unless the fish were harvested

pursuant to legal exception; (7) collecting or handling of steelhead

from listed ESUs (permits to conduct these activities are available for

purposes of scientific research or to enhance the propagation or

survival of the species); and (8) introduction of non-native species

likely to prey on steelhead in these ESUs 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 steelhead 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 these listings, 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 steelhead 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-protecting and

restoring native fish populations and the ecosystems upon which they

depend that are less regulatory. NMFS will continue to encourage and

support these initiatives as important components of recovery planning

for steelhead and other salmonids.

To succeed, protective regulations and recovery programs for

steelhead 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,

steelhead 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) steelhead 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; dam construction/

operation; irrigation withdrawal,

[[Page 14528]]

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.

3. Harvest regulations could be modified to protect listed

steelhead populations affected by both directed harvest and incidental

take in other fisheries.

4. Artificial propagation programs could be modified to minimize

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

etc.) upon native populations of steelhead.

5. Predator control/relocation programs could be implemented in

areas where predators pose a significant threat to steelhead.

6. Measures could be taken to improve monitoring of steelhead

populations and their habitat.

7. Federal agencies such as the USFS, BLM, Federal Energy

Regulatory Commission, COE, 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 steelhead and salmon to the watersheds.

Critical Habitat

Section 4(b)(6)(C) of the ESA requires that, to the extent prudent,

critical habitat be designated concurrently with the listing of a

species unless such critical habitat is not determinable at that time.

On February 5, 1999, NMFS published a proposed critical habitat rule

for all listed and proposed steelhead ESUs (64 FR 5740). Copies of this

critical habitat proposed rule are available upon request (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

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. Similarly, 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 steelhead ESUs, 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.

Threatened Species Regulations Consolidation

In the proposed rule issued on March 10, 1998 (63 FR 11774), Upper

Willamette River steelhead was designated the letter (v) and Middle

Columbia River steelhead the letter (w) in Sec. 227.4. Since March 10,

1998, NMFS 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;

therefore, Upper Willamette River steelhead is designated in this final

rule as paragraph (a)(14) and Middle Columbia River steelhead as

paragraph (a)(15) of Sec. 223.102. 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,

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, paragraphs (a)(14) and (a)(15) are added to

read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *

(a) * * *

(14) Upper Willamette River steelhead (Oncorhynchus mykiss).

Includes all naturally spawned populations of winter-run steelhead in

the Willamette River, Oregon, and its tributaries upstream from

Willamette Falls to the Calapooia River, inclusive;

(15) Middle Columbia River steelhead (Oncorhynchus mykiss).

Includes all naturally spawned populations of steelhead in streams from

above the Wind River, Washington, and the Hood River, Oregon

(exclusive), upstream to, and including, the Yakima River, Washington.

Excluded are steelhead from the Snake River Basin.

* * * * *

[FR Doc. 99-6817 Filed 3-24-99; 8:45 am]

BILLING CODE 3510-22-F