[Federal Register Volume 66, Number 29 (Monday, February 12, 2001)]
[Proposed Rules]
[Pages 9808-9813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3545]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 010118020-1020-01; I.D. 010801A]
RIN 0648-AO86
Endangered and Threatened Species: Threatened Status for One
Evolutionarily Significant Unit of Steelhead in California and Oregon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS' completed Endangered Species Act (ESA) status reviews
for steelhead (Oncorhynchus mykiss) populations in Washington, Oregon,
Idaho, and California resulted in proposed listings for several
steelhead Evolutionarily Significant Units (ESUs), including a Klamath
Mountains Province (KMP) steelhead ESU. Steelhead in this ESU inhabit
coastal river basins between the Elk River in Oregon and the Klamath
River in California, inclusive. After reviewing additional information,
including biological data on the species' status and an assessment of
protective efforts, NMFS concluded in 1998 that this ESU did not
warrant listing. However, the U.S. District Court for the Northern
District of California (Court) recently overturned that decision and
remanded the rule to the agency. The District Court concluded that NMFS
erred in relying on the expected effects of future conservation
measures when making its final listing determination. In light of the
Court's order and of the need to formally solicit any new information
regarding the status of KMP steelhead, the agency now re-proposes to
list the KMP steelhead ESU as a threatened species under the ESA.
DATES: Public hearings on this proposal will be held on February 22,
2001, in Gold Beach, OR, and Eureka, CA. Comments on this proposal must
be received no later than 5 p.m. Pacific time, on March 5, 2001.
Comments will not be accepted if submitted via e-mail or the Internet.
ADDRESSES: Two public hearings on this proposal will be held: (1) on
Thursday, February 22, 2001, from 6:30 p.m. to 9 p.m at the Gold Beach
City Hall, City Council Chambers, 29592 Ellensburg Avenue, Gold Beach,
OR; and (2) on Thursday, February 22, 2001, from 6:30 p.m. to 9 p.m. at
the Eureka Inn, 518 7th Street, Eureka, CA.
Comments on this proposed rule and requests for reference materials
should be sent to the Chief, Protected Resources Division, NMFS,
Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-
2737. Comments may also be sent via facsimile (fax) to (503) 230-5435,
but will not be accepted if submitted via e-mail or the Internet.
FOR FURTHER INFORMATION CONTACT: Garth Griffin, 503-231-2005, Craig
Wingert, 562-980-4021, or Chris Mobley, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Previous Federal ESA Actions Related to West Coast Steelhead
The first petition to address steelhead in the Klamath Mountains
Province or ``KMP'' (named after a geological province in southwest
Oregon and northwest California) was received on May 5, 1992, and dealt
with winter steelhead in the Illinois River, a tributary to Oregon's
Rogue River. The agency conducted a status review of this population
(NMFS, 1993) and published a May 20, 1993, determination (58 FR 29390)
wherein NMFS concluded that Illinois River winter steelhead did not
warrant listing because they did not represent a ``species'' under the
ESA. However, NMFS recognized that this population was part of a larger
ESU whose extent had not yet been determined, but whose status might
warrant listing because of declining trends in steelhead abundance
observed in several southern Oregon streams.
In its May 20, 1993, finding regarding Illinois River winter
steelhead, NMFS announced that it would conduct an expanded status
review to identify all coastal steelhead ESUs within California,
Oregon, and Washington and to determine whether any identified ESUs
warranted listing under the ESA (58 FR 29390). Subsequently, on
February 16, 1994, NMFS received a petition from the Oregon Natural
Resources Council and from 15 co-petitioners to list all steelhead (or
specific ESUs, races, or stocks) within the States of California,
Oregon, Washington, and Idaho. In response to this petition, NMFS
announced the expansion of its status review of steelhead to include
inland steelhead populations occurring in eastern Washington and Oregon
and the State of Idaho (59 FR 27527, May 27, 1994).
On March 16, 1995, NMFS identified a KMP steelhead ESU and
published a proposed rule to list it as a threatened species under the
ESA (60 FR 14253). The proposed ESU included steelhead populations
inhabiting coastal river basins between the Elk River in Oregon and the
Klamath River in California, inclusive. Subsequent to this proposal,
the agency completed a coastwide status review of steelhead (NMFS,
1996a) that identified a total of 15 steelhead ESUs in the states of
Washington, Oregon, Idaho, and California. By August 9, 1996, the
agency had proposed 10 steelhead ESUs, including KMP steelhead, for
listing as threatened or endangered under the ESA (61 FR 41541). While
the agency had proposed listing KMP steelhead prior to the other ESUs,
unresolved issues and practical considerations made it more prudent to
consider a final determination on KMP steelhead in the context of final
listing decisions for all West Coast steelhead ESUs.
On August 18, 1997, NMFS published a final rule listing five ESUs
as threatened and endangered under the ESA (62 FR 43937). In a separate
document published on the same day, NMFS determined that substantial
scientific disagreement remained for five proposed ESUs, including the
KMP steelhead ESU (62 FR 43974, August 18, 1997). In accordance with
section 4(b)(6)(B)(i) of the ESA, NMFS deferred its decision on these
five steelhead ESUs for 6 months for the purpose of soliciting
additional data. During this 6-month period of deferral, NMFS'
scientist evaluated new information regarding the status of these
proposed steelhead ESUs. This new information resulted in the updating
of status review documents for these five ESUs (NMFS, 1997; NMFS,
1998).
[[Page 9809]]
Based on a review of the updated information for these ESUs and of
a review and evaluation of Federal, state, and local conservation
efforts being made to reduce the threats to these ESUs, NMFS issued a
final rule on March 19, 1998 (63 FR 13347) listing two ESUs as
threatened (Lower Columbia River and Central Valley California) and a
notice of determination that three ESUs (KMP, Oregon Coast, and
Northern California) did not warrant listing. The latter determination
was based on the best available scientific and commercial data that
these ESUs had been at a lower risk of extinction than they were at the
time of the proposed listing determinations. Even though the risks
confronting these ESUs had been reduced to a point at which listing was
not warranted, NMFS still expressed concerns about the status of these
three ESUs in the notice of determination and, therefore, identified
them as candidate species, which the agency would continue to monitor
and re-assess by 2002.
The Recent District Court Ruling
On October 25, 2000, the U.S. District Court for the Northern
District of California (Court) issued a finding that NMFS' March 19,
1998, determination regarding the KMP steelhead ESU was arbitrary and
capricious (Federation of Fly Fishers v. Daley, Civ. No. C-99-0981-SI).
The Court vacated NMFS' ``not warranted'' determination and remanded
the case to NMFS for further consideration. In vacating the agency's
decision, the Court held that the ESA does not allow NMFS to consider
the expected effects of future conservation actions or to rely
exclusively on voluntary conservation efforts. Hence, the Court's
finding essentially re-instates NMFS' original proposal to list KMP
steelhead as a threatened species under the ESA. Due to time
constraints imposed by the Court, NMFS will be able to accept public
comments only until March 5, 2001, on this listing re-proposal so that
new information can be efficiently evaluated and a final agency
determination be promulgated by March 31, 2001.
Life History of KMP Steelhead
Biological information for West Coast steelhead and the KMP ESU, in
particular, can be found in agency assessments conducted by NMFS (NMFS,
1993, 1994, 1996a, 1997, 1998) and in previous Federal Register
documents (60 FR 14253, March 16, 1995; 61 FR 41541, August 9, 1996).
Steelhead exhibit one of the most complex suites of life history traits
of any salmonid species. Individuals may exhibit anadromy (meaning they
migrate as juveniles from fresh water to the ocean, and then return to
spawn in fresh water) or freshwater residency (meaning they reside
their entire life in fresh water). Resident forms are usually referred
to as ``rainbow'' or ``redband'' trout, while anadromous life forms are
termed ``steelhead.'' Few detailed studies have been conducted
regarding the relationship between resident and anadromous O. mykiss,
and, as a result, the relationship between these two life forms is
poorly understood. The scientific name for the biological species that
includes both steelhead and rainbow trout has been changed from Salmo
gairdneri to O. mykiss. This change reflects the premise that all
trouts from western North America share a common lineage with Pacific
salmon. Nonanadromous O. mykiss may co-occur with the anadromous form.
The KMP steelhead ESU includes both life forms. However, only the
anadromous form is under the jurisdiction of NMFS; the U.S. Fish and
Wildlife Service (USFWS) maintains ESA authority over resident life
forms.
Historically, steelhead were distributed throughout the North
Pacific Ocean from the Kamchatka Peninsula in Asia to the northern Baja
California Peninsula. Presently, the species distribution extends from
the Kamchatka Peninsula, east and south along the Pacific coast of
North America, to at least Malibu Creek in southern California. Within
the KMP ESU, the species inhabits coastal river basins between the Elk
River in Oregon and the Klamath River in California, inclusive.
Steelhead typically migrate to marine waters after spending 2 years
in fresh water. They then reside in marine waters for typically 2 or 3
years prior to returning to their natal stream to spawn as 4- or 5-
year-olds. Unlike other Pacific salmon, steelhead are iteroparous,
meaning they are capable of spawning more than once before they die.
However, it is rare for steelhead to spawn more than twice before
dying; most that do so are females. Biologically, steelhead can be
divided into two reproductive ecotypes, based on their state of sexual
maturity at the time of river entry and the duration of their spawning
migration. These two ecotypes are termed ``stream maturing'' and
``ocean maturing.'' Stream maturing steelhead enter fresh water in a
sexually immature condition and require several months to mature and
spawn. Ocean maturing steelhead enter fresh water with well developed
gonads and spawn shortly after river entry. These two reproductive
ecotypes are more commonly referred to by their season of freshwater
entry (i.e., summer (stream maturing) and winter steelhead (ocean
maturing)). The KMP steelhead ESU contains populations of both winter
and summer steelhead. In addition, the Rogue and Klamath River Basins
are distinctive in that they are two of the few basins producing
``half-pounder'' steelhead. This life history type refers to immature
steelhead that return to fresh water after only 2-4 months in the
ocean, generally overwinter in fresh water, then outmigrate again the
following spring (Snyder, 1925; Kesner and Barnhart, 1972; Everest,
1973; Barnhart, 1986).
Consideration as a ``Species'' Under the ESA
To qualify for listing as a threatened or endangered species, the
identified populations of steelhead must be considered ``species''
under the ESA. The ESA defines ``species'' to include ``any subspecies
of fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature.'' NMFS published a policy (56 FR 58612, November 20, 1991)
describing how the agency will apply the ESA definition of ``species''
to Pacific salmonid species. This policy provides that a salmonid
population will be considered distinct, and hence a species, under the
ESA, if it represents an ESU of the biological species. A population
must satisfy two criteria to be considered an ESU: (1) It must be
reproductively isolated from other conspecific population units and (2)
it must represent an important component in the evolutionary legacy of
the biological species. The first criterion, reproductive isolation,
needs not be absolute, but must be strong enough to permit
evolutionarily important differences to accrue in different population
units. The second criterion is met if the population contributes
substantially to the ecological/genetic diversity of the species as a
whole. Guidance on the application of this policy is contained in
Waples (1991), a NOAA Technical Memorandum entitled ``Definition of
`Species' Under the Endangered Species Act: Application to Pacific
Salmon,'' which is available upon request (see ADDRESSES). The genetic,
ecological, and life history characteristics, as well as human-induced
genetic changes that NMFS assessed to identify the number and
geographic extent of steelhead ESUs on the West Coast, including the
KMP steelhead ESU, are discussed in detail in NMFS' steelhead status
reviews (NMFS, 1993, 1994, 1996a, 1997, 1998) and in
[[Page 9810]]
listing proposals (60 FR 14253, March 16, 1995; 61 FR 41541, August 9,
1996).
KMP Steelhead ESU Determination
The KMP steelhead ESU has been described in NMFS' status review
documents and Federal Register notices cited earlier; no new scientific
information has been received to indicate that the ESU should be
redefined. This ESU includes both winter and summer steelhead
inhabiting coastal river basins between the Elk River in Oregon and the
Klamath River in California, inclusive. Half-pounder juveniles
(described previously under ``Life History of KMP Steelhead'') also
occur in this geographic area. Geologically, this region includes the
Klamath Mountains Geological Province, which is not as erosive as the
Franciscan formation terrains south of the Klamath River Basin.
Dominant vegetation along the coast is redwood forest, while some
interior basins are much drier than the surrounding areas. The region
is characterized by many endemic plant species. Elevated stream
temperatures are a factor affecting steelhead and other species in some
of the larger river basins. With the exception of major river basins,
such as the Rogue and Klamath, most rivers in this region have a short
duration of peak flows. Strong and consistent coastal upwelling begins
at about Cape Blanco and continues south into the central California
coast, resulting in a relatively productive nearshore marine
environment. Protein electrophoretic analyses of coastal steelhead have
indicated genetic discontinuities between the steelhead of this region
and those to the north and south (Hatch, 1990; NMFS, 1993 and 1994).
Chromosomal studies have also identified a distinctive karyotype that
has been reported only from populations within this ESU.
The relationship between hatchery steelhead populations and
naturally spawned steelhead within this ESU was also assessed in a
NMFS' status review update (NMFS, 1998). Based on this assessment,
NMFS' steelhead Biological Review Team (BRT) concluded that seven
steelhead hatchery stocks are part of this ESU because they were
established from indigenous natural populations. In Oregon these stocks
are Applegate River, Oregon Department of Fish and Wildlife (ODFW)
stock 62 (winter run); Upper Rogue River, ODFW stock
52 (winter run); Upper Rogue River, ODFW stock 52
(summer run); and Chetco River, ODFW stock 96 (winter run). In
California, the stocks are Iron Gate Hatchery stock (winter run);
Trinity River Hatchery stock (winter run); and Rowdy Creek Hatchery
stock. The majority of the BRT also concluded that these hatchery
stocks were not likely to be essential for the recovery of the ESU
(i.e., if the ESU were listed).
Status of the KMP Steelhead ESU
Section 3 of the ESA defines the term ``endangered species'' as
``any species that is in danger of extinction throughout all or a
significant portion of its range.'' The term ``threatened species'' is
defined as ``any species that is likely to become an endangered species
within the foreseeable future throughout all or a significant portion
of its range.'' In its previous status reviews for West Coast salmon
and steelhead, 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.
Based on these factors and on the best available scientific
information, NMFS' BRT first reviewed the status of the KMP steelhead
in 1994 (NMFS, 1994) and determined that it was likely to become
endangered in the foreseeable future. The agency subsequently proposed
this ESU for listing as a threatened species (60 FR 14253, March 16,
1995), noting that available information indicated that most of the
steelhead populations in the KMP ESU were in significant decline and
not self-sustaining. After completing a coastwide status review in
1996, the agency restated its proposal to list the ESU as threatened
and highlighted concerns for summer steelhead as well as the apparent
replacement of natural fish with hatchery-produced fish. The status of
the ESU was last reassessed in a 1997 status review update (NMFS,
1997), wherein the NMFS' BRT analyzed new information and once again
concluded that the KMP ESU was likely to become endangered in the
foreseeable future. The BRT expressed concern about the lack of
reliable and recent data for many populations and the almost universal
decline of native summer steelhead populations in this ESU. Although
the percentage of naturally spawning hatchery fish was considered low
to moderate in Oregon streams in the ESU, the BRT had major concerns
regarding stray hatchery fish in the Klamath and Trinity River Basins.
In addition, the BRT cited significant risks resulting from habitat
loss and degradation (e.g., due to dams, logging, water withdrawals,
and mining) within the range of this ESU.
In addition to the BRT's assessment, the agency also considered
existing and recently implemented conservation efforts focused on KMP
steelhead. Significant state efforts in Oregon and California
(including harvest restrictions, monitoring, and habitat improvements)
appeared to have reduced threats to this species. In addition, NMFS
believed that biological risks associated with habitat modification and
degradation on Federal lands had decreased as a result of the Northwest
Forest Plan (Forest Ecosystem Management Assessment Team (FEMAT),
1993). While NMFS remained concerned about habitat conditions on non-
Federal lands within the range of the ESU, the agency noted that the
majority of lands were actually under Federal ownership. After
reviewing all of the available types of information, NMFS concluded in
March 1998 that the KMP steelhead ESU did not warrant listing as a
threatened species but instead should be classified as a candidate
species and its status re-evaluated by 2002. However, the recent ruling
by the Court on October 25, 2000, states that NMFS erred in arriving at
this determination and requires the agency to re-assess this ESU.
NMFS scientists have recently conducted a preliminary survey of new
information on KMP steelhead populations that has become available
since the BRT last reviewed the species in December 1997 (NMFS, 2000).
Available new data for Oregon populations in the KMP steelhead ESU are
concentrated in the Rogue River Basin and show no major changes since
the last assessment. New information on California steelhead
populations in NMFS' possession is also very limited and consist
primarily of short-term data from creel and snorkel surveys. This
paucity of available data compels the agency to re-propose the ESU as a
threatened species at this time. However, the agency is hopeful that
data sets currently being compiled in Oregon and California, as well as
any new information received in response to this listing proposal, will
permit a more rigorous assessment prior to a final listing
determination.
[[Page 9811]]
Summary of Factors Affecting the Species
Section 4(a)(1) of the ESA and NMFS' implementing regulations (50
CFR part 424) set forth procedures for listing species. The Secretary
of Commerce (Secretary) must determine, through the regulatory process,
whether 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 education
purposes; (3) disease or predation; (4) inadequacy of existing
regulatory mechanisms; or (5) other natural or human-made factors
affecting its continued existence. The factors threatening naturally
reproducing steelhead are numerous and varied. For KMP steelhead
populations, the present depressed condition is the result of
longstanding, human-induced factors that serve to exacerbate the
adverse effects of natural environmental variability from such factors
as drought, floods, and poor ocean conditions.
NMFS has prepared a report that summarizes the factors leading to
the decline of steelhead on the West Coast (NMFS, 1996b). This report,
available upon request (see ADDRESSES section), concludes that all of
the factors identified in section 4(a)(1) of the ESA have played a role
in the decline of West Coast steelhead. The report further identifies
several factors that were considered to have contributed to the decline
of the KMP steelhead ESU, including: hatchery introgression, logging,
water diversion/extraction, habitat blockages, poaching, agriculture,
hydropower development, historic flooding, and mining. As a result of
previous listing proposals (60 FR 14253, March 16, 1995; 61 FR 41541,
August 9, 1996), NMFS has received numerous comments regarding the
relative importance of various factors contributing to the decline of
KMP steelhead. These comments will be considered along with any new
information resulting from the current listing proposal prior to the
agency making a final listing determination for this ESU.
Efforts Being Made to Protect West Coast Steelhead
Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to
make listing determinations solely on the basis of the best scientific
and commercial data available after conducting a review of the status
of the species and after taking into account efforts being made to
protect the species. Therefore, in making its listing determinations,
NMFS first assesses the status of the species and identifies factors
that have led to the decline of the species. NMFS then assesses
conservation measures to determine whether they ameliorate risks to the
species. In judging the efficacy of existing conservation efforts, NMFS
considers the following: (1) The substantive, protective, and
conservation elements of such efforts; (2) the degree of certainty such
efforts will be reliably implemented; (3) the degree of certainty such
efforts will be effective; and (4) the presence of monitoring
provisions that determine effectiveness and that permit adaptive
management. In some cases, conservation efforts may be relatively new
and may not have had time to demonstrate their biological benefit. In
such cases, provisions for adequate monitoring and funding of
conservation efforts are essential to ensure that intended conservation
benefits are realized.
As part of its West Coast steelhead status review, NMFS reviewed an
array of protective efforts for steelhead and other salmonids, ranging
in scope from regional strategies to local watershed initiatives. NMFS
has summarized some of the major efforts in a supplement to the earlier
status reviews (NMFS, 1996c). NMFS also reviewed steelhead conservation
measures being implemented by the states of California and Oregon at
the time of its March 19, 1998, listing determination for the KMP
steelhead ESU (63 FR 13347). During the next two months, NMFS will seek
to update the current status of conservation efforts affecting KMP
steelhead and, in keeping with the recent Court order, will take into
account appropriate conservation efforts when assessing the final ESA
status of KMP steelhead. NMFS encourages all parties to submit
information on such efforts, on particularly existing conservation
efforts, or on those that have only recently been implemented (e.g.,
since 1997) but will likely ameliorate risks faced by KMP steelhead.
Proposed Determination
In keeping with an October 25, 2000, order by the U.S. District
Court for the Northern District of California, NMFS is re-proposing to
list the KMP steelhead ESU as a threatened species under the ESA. This
proposal is supported by previous agency listing proposals (60 FR
14253, March 16, 1995; 61 FR 41541, August 9, 1996) and BRT reports
(NMFS, 1994; NMFS, 1997), which concluded that steelhead in the KMP ESU
are likely to become endangered in the foreseeable future. Also, a
preliminary review of updated abundance and trend information available
for this ESU indicates that the current biological status of the ESU
has changed little since it was last evaluated by the NMFS BRT. The
agency believes that many conservation efforts have helped reduced the
risks faced by KMP steelhead. However, the recent Court ruling will
require that NMFS reconsider the manner in which these efforts factor
into a final listing determination for this ESU.
As described in agency status reviews and in the proposed listing
determination cited above, NMFS defines the KMP steelhead ESU to
include all native, naturally spawned populations of steelhead (and
their progeny) residing in streams between the Elk River (Oregon) and
Klamath River Basins (California), inclusive. NMFS scientists have
previously examined the relationship between hatchery and natural
populations of steelhead in this ESU and also assessed whether any
hatchery populations are essential for their recovery (NMFS, 1998). At
this time, NMFS does not believe any specific hatchery populations
warrant listing. Also, NMFS is proposing to list only the anadromous
life forms of O. mykiss.
Prohibitions and Protective Measures
Section 4(d) of the ESA requires NMFS to issue protective
regulations it finds necessary and advisable to provide for the
conservation of threatened species. Section 9 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 the threatened species, some or all of the acts which
section 9 of the ESA prohibits with respect to endangered species.
These section 9 prohibitions and 4(d) regulations apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
If NMFS determines that the KMP steelhead ESU warrants listing as a
threatened species, then the agency will develop and promulgate a 4(d)
protective regulation for the ESU in a separate rulemaking. 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 has flexibility under
section 4(d) to tailor the protective regulations to provide for the
conservation of the species. NMFS has recently published 4(d)
regulations for 14 threatened ESUs
[[Page 9812]]
of salmon and steelhead (65 FR 42422, July 10, 2000) that adopt an
array of limits on take prohibitions. Some of the broad categories of
activities addressed by these limits include: scientific research; fish
harvest; artificial propagation; habitat restoration; screening water
diversions; routine road maintenance; and municipal, residential,
commercial, and industrial development and redevelopment. By receiving
NMFS approval under a limit, governments and individuals obtain
assurance that their activities, when implemented in accordance with
the criteria in the 4(d) rule, do not violate ESA ``take'' prohibitions
and will not be subject to enforcement actions.
Section 7(a)(2) of the ESA requires Federal agencies to consult
with NMFS to ensure that activities they authorize, fund, or conduct
are not likely to jeopardize the continued existence of a listed
species or adversely modify critical habitat. Examples of Federal
actions likely to affect steelhead in the KMP steelhead ESU include
authorized land management activities (e.g., timber sales and harvest,
and livestock grazing) of the U.S. Forest Service and Bureau of Land
Management, operation of hydroelectric and storage projects permitted
by the Federal Energy Regulatory Commission, and activities permitted
by the U.S. Army Corps of Engineers under the Clean Water Act and River
and Harbors Act.
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) for scientific purposes or
to enhance the propagation or survival of a listed species. NMFS has
issued section 10(a)(1)(A) research/enhancement permits for listed
salmon and steelhead for a number of activities, including trapping and
tagging, electroshocking to determine population presence and
abundance, removal of fish from irrigation ditches, and collection of
adult fish for artificial propagation programs.
Section 10(a)(1)(B) of the ESA incidental take permits may be
issued to non-Federal entities performing activities which may
incidentally take listed species, so long as the taking is incidental
to, and not the purpose of, the carrying out of an otherwise lawful
activity. The types of activities potentially requiring a section
10(a)(1)(B) incidental take permit include the operation and release of
artificially propagated fish by state or privately operated and funded
hatcheries, state or academic research not receiving Federal
authorization or funding, logging, road building, grazing, and
diverting water onto private lands.
Policies on Endangered and Threatened Fish and Wildlife
On July 1, 1994, NMFS, jointly with USFWS, published a series of
policies regarding listings under the ESA, including: (1) a policy
regarding peer review of scientific data (59 FR 34270) and (2) a policy
to identify, to the maximum extent possible, those activities that
would or would not constitute a violation of section 9 of the ESA (59
FR 34272). The intent of the first policy is to ensure that listings
are based on the best scientific and commercial data available. Prior
to a final listing and concurrent with the public comment period, NMFS
will solicit the expert opinions of at least three qualified
specialists. Independent peer reviewers will be selected from the
academic and scientific community, Native American tribal groups,
Federal and state agencies, and the private sector. The intent of the
second policy is to increase public awareness of the effect of this
listing on proposed and ongoing activities within the species' range.
If NMFS determines that the KMP steelhead ESU warrants listing as a
threatened species, the agency will identify activities that will be
considered likely to result in section 9 violations as well as specific
activities (to the extent known) that will not be considered likely to
result in section 9 violations once a 4(d) rule has been adopted.
Critical Habitat
Section 4(a)(3)(A) of the ESA requires that, to the maximum extent
prudent and determinable, NMFS designate critical habitat concurrently
with a determination that a species is endangered or threatened. While
NMFS has completed an initial analysis of the biological status of
steelhead in the KMP steelhead ESU, it has not performed the full
analysis necessary for designating critical habitat at this time. If
this ESU is listed under ESA, it is NMFS' intent to develop a critical
habitat proposal as soon as the analysis can be completed.
Public Comments Solicited
NMFS has exercised its best professional judgement in developing
this proposal to list the KMP steelhead ESU. To ensure that the final
action resulting from this proposal will be as accurate and effective
as possible, NMFS is soliciting data, comments, and suggestions from
the public, other governmental agencies, the scientific community,
industry, and any other interested parties. NMFS is interested in any
additional information concerning: (1) biological or other relevant
data concerning any threats to steelhead in this ESU; (2) the range,
distribution, and population size of steelhead in this ESU; (3) current
or planned activities in the range of the ESU and their possible impact
on KMP steelhead; (4) steelhead escapement, particularly recent
escapement data partitioned into natural and hatchery components; (5)
the proportion of naturally reproducing fish that were reared as
juveniles in a hatchery; (6) homing and straying of natural and
hatchery fish; (7) the reproductive success of naturally reproducing
hatchery fish (i.e., hatchery-produced fish that spawn in natural
habitat) and their relationship to the proposed ESU; (8) efforts being
made to protect native, naturally reproducing populations of steelhead
in this ESU; and (9) suggestions for specific regulations under section
4(d) of the ESA that should apply to steelhead in this ESU. Suggested
regulations may address activities, plans, or guidelines that, despite
their potential to result in the take of listed fish, will ultimately
promote the conservation and recovery of threatened steelhead. NMFS
will review all public comments and any additional information
regarding the status of the KMP steelhead ESU and will complete a final
rule by March 31, 2001, as required under the recent Court order.
Joint Commerce-Interior ESA implementing regulations state that the
Secretary ``shall promptly hold at least one public hearing if any
person so requests within 45 days of publication of a proposed
regulation to list ... or to designate or revise critical habitat.''
(see 50 CFR 424.16(c)(3)). A public hearing schedule on this proposal
is contained in this notice. Public hearings will provide the
opportunity for the public to give comments and to permit an exchange
of information and opinion among interested parties. NMFS encourages
the public's involvement in such ESA matters. Written comments on the
proposed rule should be submitted to NMFS by March 5, 2001.(see
ADDRESSES and DATES).
Special Accommodations
These hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other aids
should be directed to Garth Griffin or Craig Wingert (see ADDRESSES).
[[Page 9813]]
References
A complete list of all cited references is available upon request
(see ADDRESSES).
Classification
National Environmental Policy Act
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 concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA). See NOAA Administrative Order 216-6.
Executive Order 12866 and Regulatory Flexibility Act
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 proposed rule is exempt from review under
Executive Order 12866.
Executive Order 13132-Federalism
In keeping with the intent of the Administration and Congress to
provide continuing and meaningful dialogue on issues of mutual state
and Federal interest, NMFS has conferred with state and local
government agencies in the course of assessing the status of the KMP
steelhead ESU and considered, among other things, state and local
conservation measures. State and local governments have expressed
support for the conservation of KMP steelhead and made efforts to
reduce risks faced by the ESU. The history and content of this
dialogue, as well as the basis for this proposed action, are described
in the SUPPLEMENTARY INFORMATION section of this document and in other
Federal Register documents preceding this proposed action. (See 61 FR
41541, August 9, 1996; 62 FR 43974, August 18, 1997; and 63 FR 13347,
March 19, 1998). NMFS' staff have had numerous discussions with various
governmental agency representatives regarding the status of this ESU
and have sought working relationships with agencies and others in order
to promote salmonid restoration efforts. In addition, NMFS' staff have
given presentations to interagency forums and other interested groups
considering conservation measures. As the process continues, NMFS
intends to continue engaging in informal and formal contacts with
affected state, local, or regional entities, giving careful
consideration to all written or oral comments received. As one part of
that continued process, NMFS has scheduled public hearings on this
proposed action. NMFS also intends to consult with appropriate elected
officials in consideration of a final rule.
Executive Order 13175-Consultation and Coordination With Indian Tribal
Governments
NMFS has consulted with affected tribes throughout the course of
the West Coast steelhead status review. These consultations have
included numerous presentations and discussions with tribal officials
and representatives, in particular, the Klamath River Basin tribes,
regarding the status of the KMP steelhead and conservation efforts
directed at this ESU. NMFS will continue to actively engage the
affected tribes and will seek their assistance and expertise to
complete the agency's KMP steelhead status review. Moreover, the agency
will carry out its responsibilities under the Act in a manner that
recognizes tribal sovereignty and harmonizes the agency's statutory
missions with Federal trust responsibilities to tribes and that strives
to ensure that Indian tribes do not bear a disproportionate burden for
the conservation of listed species. In keeping with E.O. 13175, NMFS
will summarize the history of consultations with affected tribes and
describe the manner in which tribal concerns were addressed at the time
of the final listing determination for KMP steelhead.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: February 7, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 223 is
proposed to be 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)(23) is added to read as follows:
Sec. 223.102 Enumeration of threatened species.
* * * * *
(a) * * *
(23) Klamath Mountains Province steelhead (Oncorhynchus mykiss).
Includes all naturally spawned populations of steelhead (and their
progeny) in coastal river basins ranging from the Elk River in Curry
County, Oregon, to the Klamath River, inclusive, in Del Norte County,
California.
* * * * *
[FR Doc. 01-3545 Filed 2-9-01; 8:45 am]
BILLING CODE 3510-22-S