[Federal Register Volume 71, Number 12 (Thursday, January 19, 2006)]
[Proposed Rules]
[Pages 3033-3048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-502]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 051227348-5348-01; I.D. 020105C]
Endangered and Threatened Species: Withdrawal of Proposals to
List and Designate Critical Habitat for the Oregon Coast Evolutionarily
Significant Unit (ESU) of Coho Salmon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; withdrawal.
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SUMMARY: In June 2004, we (NMFS) proposed that the Oregon Coast coho
Evolutionarily Significant Unit (ESU) (Oncorhynchus kisutch) be listed
as a threatened species under the Endangered Species Act (ESA). In June
2005, we extended the 1-year deadline for the final listing
determination by 6 months in light of public comments received and an
assessment by the State of Oregon concluding that the Oregon Coast coho
ESU is viable (that is, likely to persist into the foreseeable future
under current conditions). After considering the best available
scientific and commercial information available, we have concluded that
the ESU is not in danger of extinction throughout all or a significant
portion of its range, nor is it likely to become so within the
foreseeable future. We have determined that the Oregon Coast coho ESU
does not warrant listing as an endangered or threatened species under
the ESA at this time. Therefore we have decided to withdraw the
proposed rule to list this ESU. On December 14, 2004, we proposed
critical habitat for the Oregon Coast coho ESU. Because we are
withdrawing the proposed listing determination, we are also withdrawing
the proposed rule to designate critical habitat for this ESU.
ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard,
Suite 1100, Portland, Oregon, 97232.
FOR FURTHER INFORMATION CONTACT: Dr. Scott Rumsey, NMFS, Northwest
Region, Protected Resources Division, at (503) 872-2791, or Marta
Nammack, NMFS, Office of Protected Resources, at (301) 713-1401.
Reference materials regarding this determination are available upon
request or on the Internet at http://www.nwr.noaa.gov.
SUPPLEMENTARY INFORMATION:
Previous Federal ESA Actions Related to Oregon Coast Coho
In 1995, we completed a comprehensive status review of West Coast
coho salmon (Weitkamp et al., 1995) that resulted in proposed listing
determinations for three coho ESUs, including a proposal to list the
Oregon Coast coho ESU as a threatened species (60 FR 38011; July 25,
1995). On October 31, 1996, we announced a 6-month extension of the
final listing determination for the ESU, pursuant to section
4(b)(6)(B)(i) of the ESA, noting substantial disagreement regarding the
sufficiency and accuracy of the available data relevant to the
assessment of extinction risk and the evaluation of protective efforts
(61 FR 56211). On May 6, 1997, we withdrew the proposal to list the
Oregon Coast coho ESU as threatened, based in part on conservation
measures contained in the Oregon Coastal Salmon Restoration Initiative
(later renamed the Oregon Plan for Salmon and Watersheds; hereafter
referred to as the Oregon Plan) and an April 23, 1997, Memorandum of
Agreement (MOA) between NMFS and the State of Oregon which further
defined Oregon's commitment to salmon conservation (62 FR 24588). We
concluded that implementation of harvest and hatchery reforms, and
habitat protection and restoration efforts under the Oregon Plan and
the MOA substantially reduced the risk of extinction faced by the
Oregon Coast coho ESU. On June 1, 1998, the Federal District Court for
the District of Oregon issued an opinion finding that our May 6, 1997,
determination to not list Oregon Coast coho was arbitrary and
capricious (Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d
1139 (D. Or. 1998)). The Court vacated our determination to withdraw
the proposed rule to list the Oregon Coast coho ESU and remanded the
determination to NMFS for further consideration. On August 10, 1998, we
issued a final rule listing the Oregon Coast coho ESU as threatened (63
FR 42587), basing the determination solely on the information and data
contained in the 1995 status review (Weitkamp et al., 1995) and the
1997 proposed rule (62 FR 24588; May 6, 1997).
In 2001 the U.S. District Court in Eugene, Oregon, set aside the
1998 threatened listing of the Oregon Coast
[[Page 3034]]
coho ESU (Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, (D. Or.
2001)) (Alsea decision). In response to the Alsea ruling and several
listing and delisting petitions, we announced that we would conduct an
updated status review of 27 West Coast salmonid ESUs, including the
Oregon Coast coho ESU (67 FR 6215, February 11, 2002; 67 FR 48601, July
25, 2002).
In 2003 we convened the Pacific Salmonid Biological Review Team
(BRT) (an expert panel of scientists from several Federal agencies
including NMFS, FWS, and the U.S. Geological Survey) to review the
viability and extinction risk of naturally spawning populations in the
27 ESUs under review, including the Oregon Coast coho ESU (Good et al.,
2005; NMFS, 2003b). A slight majority of the BRT concluded that the
naturally spawning populations in the Oregon Coast coho ESU were likely
to become endangered, noting that short-term risks were alleviated by
encouraging high escapements in recent years. The BRT noted
considerable uncertainty regarding the future viability of the ESU
given the uncertainty in predicting future ocean conditions for coho
survival, as well as uncertainty in whether current freshwater habitats
are of sufficient quality and quantity to support the recent high
abundance levels and sustain populations during future downturns in
ocean conditions. Although the BRT couched its conclusion in terms of
the statutory definition (that is, not in danger of extinction, likely
to become endangered in the foreseeable future), the BRT's conclusion
is not a recommendation to list species. Rather, it is information for
the decision-maker, who must also consider the risks and benefits from
artificial propagation programs included in the ESU, efforts being made
to protect the species, and any other information available to the
agency, and must then weigh that information in light of the five
factors listed under section 4(a)(1) of the ESA.
On June 14, 2004, based on the BRT report, we proposed to list the
Oregon Coast coho ESU as a threatened species (69 FR 33102). In the
proposed rule, we noted that Oregon was initiating a comprehensive
assessment of the viability of the Oregon Coast coho ESU and of the
adequacy of actions under the Oregon Plan for conserving Oregon Coast
coho (and other salmonids in Oregon). Following an initial public
comment period of 90 days, the public comment period was extended twice
for an additional 36 and 22 days, respectively (69 FR 53031, August 31,
2004; 69 FR 61348, October 18, 2004).
In January 2005 the State of Oregon released a draft Oregon Coastal
Coho Assessment (draft assessment), which (1) evaluated the current
viability of the Oregon Coast coho ESU, and (2) evaluated the certainty
of implementation and effectiveness of the Oregon Plan measures in
addressing the factors for decline of the Oregon Coast coho ESU. The
latter evaluation was intended to satisfy the joint NMFS--U.S. Fish and
Wildlife Service's Policy on Evaluating Conservation Efforts (``PECE'';
68 FR 15100, March 28, 2003). Oregon's draft assessment concluded that
the Oregon Coast coho ESU is currently viable and that measures under
the Oregon Plan have stopped, if not reversed, the deterioration of
Oregon Coast coho habitats. The draft assessment also concluded that it
is highly likely that existing monitoring efforts will detect any
significant future deterioration in the ESU's viability, or degradation
of environmental condition, allowing a timely and appropriate response
to conserve the ESU. On February 9, 2005, we published a notice of
availability of Oregon's draft assessment for public review and comment
in the Federal Register (70 FR 6840) and noted that information
presented in the draft and final assessments would be considered in
developing the final listing determination for the Oregon Coast coho
ESU. The public comment period on Oregon's draft assessment extended
through March 11, 2005.
We received 15 comments on Oregon's draft assessment, and on March
18, 2005, we forwarded these comments, as well as our technical review
(NMFS, 2005b) and that of NMFS' Northwest Fisheries Science Center
(NWFSC) (NMFS, 2005a), for Oregon's consideration in developing its
final assessment. The public comments and our review highlighted areas
of uncertainty or disagreement regarding the sufficiency and accuracy
of Oregon's draft assessment, including: the assumption that Oregon
Coast coho populations are inherently resilient at low abundance, and
that this compensatory response will prevent extinction during periods
of low marine survival; the apparent de-emphasis of abundance as a
useful indicator of extinction risk; assumptions regarding the duration
and severity of future periods of unfavorable marine and freshwater
conditions; the ability of monitoring and adaptive management efforts
to detect population declines or habitat degradation, and to identify
and implement necessary protective measures; and the ability of Oregon
Plan measures to halt or reverse habitat degradation once detected.
On May 13, 2005, Oregon issued its final Oregon Coastal Coho
Assessment (final assessment). Oregon's final assessment includes a
summary of, and response to, the comments received on the draft
assessment, and includes several substantive changes intended to
address concerns raised regarding the sufficiency and accuracy of the
draft assessment. Oregon's final assessment concludes that: (1) The
Oregon Coast coho ESU is viable under current conditions, and should be
sustainable through a future period of adverse environmental conditions
(including a prolonged period of poor ocean productivity); (2) given
the assessed viability of the ESU, the quality and quantity of habitat
is necessarily sufficient to support a viable ESU; and (3) the
integration of laws, adaptive management programs, and monitoring
efforts under the Oregon Plan will maintain and improve environmental
conditions and the viability of the ESU into the foreseeable future.
On June 28, 2005 (70 FR 37217), we announced a 6-month extension of
the final listing determination for the Oregon Coast coho ESU, finding
that ``there is substantial disagreement regarding the sufficiency or
accuracy of the available data relevant to the determination * * * for
the purposes of soliciting additional data'' (section 4(b)(6)(B)(i)).
We announced a 30-day public comment period to solicit information
regarding the validity of Oregon's final assessment, particularly in
light of the concerns raised with respect to Oregon's draft assessment.
Statutory Framework for ESA Listing Determinations
The ESA defines an endangered species as one that is in danger of
extinction throughout all or a significant portion of its range, and a
threatened species as one that is likely to become endangered in the
foreseeable future (Sections 3(6) and 3(20), respectively). The statute
requires us to determine whether any species is endangered or
threatened because of any of five factors: the present or threatened
destruction of its habitat, overexploitation, disease or predation, the
inadequacy of existing regulatory mechanisms, or any other natural or
manmade factors (Section 4(a)(1)(A)(E)). We are to make this
determination based solely on the best available scientific information
after conducting a review of the status of the species and taking into
account any efforts being made by states or foreign governments to
protect the species. The focus of our evaluation of these five
[[Page 3035]]
factors is to evaluate whether and to what extent a given factor
represents a threat to the future survival of the species. The focus of
our consideration of protective efforts is to evaluate whether these
efforts substantially have and will continue to address the identified
threats and so ameliorate a species' risk of extinction. In making our
listing determination, we must consider all factors that may affect the
future viability of the species, including whether regulatory and
conservation programs are inadequate and allow threats to the species
to persist or worsen, or whether these programs are likely to mitigate
threats to the species and reduce its extinction risk. The steps we
follow in implementing this statutory scheme are to: review the status
of the species, analyze the factors listed in section 4(a)(1) of the
ESA to identify threats facing the species, assess whether certain
protective efforts mitigate these threats, and make our best prediction
about the species' future persistence.
Policy for the Evaluation of Conservation Efforts
As noted above, the PECE provides direction for considering
protective efforts identified in conservation agreements, conservation
plans, management plans, or similar documents (developed by Federal
agencies, state and local governments, tribal governments, businesses,
organizations, and individuals) that have not yet been implemented, or
have been implemented but have not yet demonstrated effectiveness. The
policy articulates several criteria for evaluating the certainty of
implementation and effectiveness of protective efforts to aid in
determining whether a species warrants listing under the ESA.
Evaluation of the certainty that an effort will be implemented includes
whether: the necessary resources (e.g., funding and staffing) are
available; the requisite agreements have been formalized such that the
necessary authority and regulatory mechanisms are in place; there is a
schedule for completion and evaluation of the stated objectives; and
(for voluntary efforts) the necessary incentives are in place to ensure
adequate participation. The evaluation of the certainty of an effort's
effectiveness is made on the basis of whether the effort or plan:
establishes specific conservation objectives; identifies the necessary
steps to reduce threats or factors for decline; includes quantifiable
performance measures for the monitoring of compliance and
effectiveness; incorporates the principles of adaptive management; and
is likely to improve the species' viability at the time of the listing
determination.
PECE also notes several important caveats. Satisfaction of the
above mentioned criteria for implementation and effectiveness
establishes a given protective effort as a candidate for consideration,
but does not mean that an effort will ultimately change the risk
assessment. The policy stresses that, just as listing determinations
must be based on the viability of the species at the time of review, so
they must be based on the state of protective efforts at the time of
the listing determination. The PECE does not provide explicit guidance
on how protective efforts affecting only a portion of a species' range
may affect a listing determination, other than to say that such efforts
will be evaluated in the context of other efforts being made and the
species' overall viability.
Overview of the Oregon Plan
The Oregon Plan is a ``framework of state laws, rules, and
executive orders designed to enhance and protect watershed health, at-
risk species, and water quality by governing forest and agricultural
practices, water diversions, wetlands, water quality, and fish and
wildlife protections'' (Oregon Watershed Enhancement Board, OWEB,
2002). The Oregon Plan includes several pre-existing activities and
regulatory and non-regulatory programs, as well as additional
coordination, compliance, investment, monitoring, and voluntary
involvement that are provided under the umbrella of the Oregon Plan.
The mission of the Oregon Plan is to restore the watersheds of Oregon
and recover the fish and wildlife populations of those watersheds to
productive and sustainable levels in a manner that provides substantial
environmental, cultural, and economic benefits (IMST, 2002). The Oregon
Plan seeks to address factors for decline related to habitat loss and
degradation by focusing on human infrastructure and activities that can
adversely affect salmonids and their habitat (e.g., fisheries
management, hatchery practices, fish passage barriers, forestry,
agriculture, livestock grazing, water diversions and fish screens,
urbanization, permitted pollutant discharges, and removal and fill
permits). The Independent Multidisciplinary Science Team (IMST), the
independent expert panel that provides scientific oversight for the
Oregon Plan, has previously reviewed the adequacy of various elements
of the Oregon Plan in addressing historically harmful practices,
identifying and monitoring threats impeding population- and ESU-level
viability, and restoring degraded salmon habitats (e.g., IMST, 1998;
1999; 2002a; 2002b). Oregon's recent assessment is the first effort,
however, to consider the effect of actions and measures under the
Oregon Plan at an ESU scale.
Overview of Oregon's Assessment
Oregon's assessment was a comprehensive effort including all state
natural resource agencies and several Federal partners. Oregon's
assessment represents an unprecedented, rigorous analysis of the
viability of the Oregon Coast coho ESU, past and continuing threats to
coho populations and the ESU, and protective efforts under the Oregon
Plan aimed at addressing the factors associated with the ESU's decline.
Oregon's assessment includes several elements that inform our
consideration under each of the listing determination steps: reviewing
the status of the species, identifying threats facing the species,
assessing whether certain protective efforts mitigate these threats,
and making a reasonable prediction about the species' future
persistence (see the ``Statutory Framework for Making ESA Listing
Determinations'' section, above). Oregon's assessment includes a
viability analysis that directly informs our review of the status of
the species. Oregon's assessment also includes a review of a variety of
regulatory mechanisms and conservation programs under the Oregon Plan,
using PECE as a conceptual framework for its analysis. Not all aspects
of the Oregon Plan, however, are properly reviewed under PECE, which
focuses on programs not yet implemented or not yet having demonstrated
effectiveness. The information included in Oregon's ``PECE'' analysis
informs our consideration of the five ESA Section 4(a)(1) factors by
identifying present or future threats to the viability of the Oregon
Coast coho ESU. Oregon's PECE analysis also informs our consideration
of protective efforts and whether they substantially ameliorate
identified threats and reduce the ESU's risk of extinction. Some
protective efforts under the Oregon Plan are fully implemented, and
information is available demonstrating their level of effectiveness.
Other protective efforts under the Oregon Plan are new, not yet
implemented, or have not demonstrated effectiveness. We evaluate such
unproven efforts using the criteria outlined in PECE to determine their
certainties of implementation and effectiveness.
Oregon's viability analysis concluded that the Oregon Coast coho
ESU is currently viable, with the component
[[Page 3036]]
populations generally demonstrating sufficient abundance, productivity,
distribution, and diversity to be sustained under the current and
foreseeable range of future environmental conditions. Oregon based its
conclusion largely on its findings that (1) the Oregon Coast coho
populations exhibit strong density dependence conferring resilience in
periods of low population abundance, (2) there are sufficient high
quality habitats within the ESU to sustain productivity during periods
of adverse environmental conditions; (3) current harvest regulations
and hatchery reforms adequately address past harmful practices; (4) the
ESU is resilient in long periods of poor ocean survival conditions; and
(5) measures under the Oregon Plan make it unlikely that habitat
conditions will be degraded further in the future.
In assessing the threats facing the Oregon Coast coho ESU, Oregon
acknowledged in its final assessment that a number of adverse
environmental conditions could coincide posing a severe threat to the
ESU's viability. However, Oregon concluded that the ESU has
demonstrated the ability to remain viable during such a convergence of
adverse conditions, such as had occurred in the 1990s, and to rebound
quickly once conditions had moderated. Oregon concluded that the life
cycle, productivity, and spatial structure of Oregon Coast coho provide
protection and reduce the likelihood that catastrophic events would
result in the ESU not being viable in the foreseeable future. Oregon
acknowledged that ocean conditions and stream habitat complexity remain
moderate threats for the ESU, but concluded that past threats from high
harvest rates, poor hatchery practices, blockages to fish passage, and
impaired water quality and quantity have been substantially reduced
under the Oregon Plan. Oregon concluded that the significant reductions
in these threats are manifested in the present viability of the ESU.
Oregon underscored that, although the ocean environment for Oregon
Coast coho survival has improved since the 1990s, future ocean
conditions are highly uncertain.
Oregon's viability conclusion was not predicated on a finding that
specific conservation measures under the Oregon Plan provide sufficient
certainty of implementation and effectiveness to substantially
ameliorate risks facing the ESU. Rather, its conclusion was based on
the past and present biological performance of, and threats facing, the
ESU.
The difference between Oregon's conclusion that the ESU is likely
to persist into the foreseeable future, and the 2003 BRT's slight
majority conclusion that it is not, rests on two major components that
both considered: the adequacy of current habitat conditions to support
future persistence, and the uncertainty about future ocean conditions.
(In our review of Oregon's assessment, we raised concerns about two
other aspects of the analysis: (1) Assumptions in Oregon's model about
productivity at low population size; and (2) assumptions about minimum
abundance thresholds. These were not part of the 2003 BRT assessment
because the BRT did not conduct population viability modeling).
Summary of Comments Received
We solicited public comment on the proposed listing determination
for the Oregon Coast coho ESU, and on Oregon's draft and final
assessments, for 208 days (69 FR 33102, June 14, 2004; 69 FR 53031,
August 31, 2004; 69 FR 61348, October 18, 2004; 70 FR 6840, February 9,
2005; 70 FR 37217, June 28, 2005). In addition, we held eight public
hearings in the Pacific Northwest concerning the June 2004 West Coast
salmon and steelhead proposed listing determinations, including the
proposed determination for the Oregon Coast coho ESU (69 FR 53031,
August 31, 2004; 69 FR 61348, October 18, 2004).
A joint NMFS/FWS policy requires us to solicit independent expert
review from at least three qualified specialists, concurrent with the
public comment period (59 FR 34270; July 1, 1994). We solicited
technical review of the June 2004 proposed listing determinations,
including the proposed determination for the Oregon Coast coho ESU,
from over 50 independent experts selected from the academic and
scientific community, Native American tribal groups, Federal and state
agencies, and the private sector.
In December of 2004 the Office of Management and Budget (OMB)
issued a Final Information Quality Bulletin for Peer Review (Peer
Review Bulletin), establishing minimum peer review standards, a
transparent process for public disclosure, and opportunities for public
input. The OMB Peer Review Bulletin, implemented under the Information
Quality Act (Public Law 106-554), is intended to ensure the quality of
agency information, analyses, and regulatory activities and provide for
a more transparent review process. We consider the scientific
information used by the agency in determining to withdraw the proposed
listing determination and critical habitat designation for Oregon Coast
coho to be ``influential scientific information'' in the context of the
OMB Peer Review Bulletin.
We believe the independent expert review under the joint NMFS/FWS
peer review policy, and the comments received from several academic
societies and expert advisory panels, collectively satisfy the Peer
Review Bulletin's requirements for ``adequate [prior] peer review''
(NMFS, 2005h). We solicited technical review of the proposed hatchery
listing policy and salmon and steelhead listing determinations from
over 50 independent experts selected from the academic and scientific
community, Native American tribal groups, Federal and state agencies,
and the private sector. The individuals from whom we solicited review
of the proposals and the underlying science were selected because of
their demonstrated expertise in a variety of disciplines including:
artificial propagation; salmonid biology, taxonomy, and ecology;
genetic and molecular techniques and analyses; population demography;
quantitative methods of assessing extinction risk; fisheries
management; local and regional habitat conditions and processes; and
conducting scientific analyses in support of ESA listing
determinations. The individuals solicited represent a broad spectrum of
perspectives and expertise. The individuals solicited include those who
have been critical of past agency actions in implementing the ESA for
West Coast salmon and steelhead, as well as those who have been
supportive of these actions. These individuals were not involved in
producing the scientific information for our determinations and were
not employed by the agency producing the documents. In addition to
these solicited reviews, several independent scientific panels and
academic societies provided technical review of the hatchery listing
policy and proposed listing determinations, and the supporting
documentation. Many of the members of these panels were individuals
from whom we had solicited review. We thoroughly considered and, as
appropriate, incorporated the review comments into these final listing
determinations.
In response to the requests for information and comments on the
June 2004 proposed listing determinations, we received over 28,250
comments by fax, standard mail, and e-mail. The majority of the
comments received were from interested individuals who submitted form
letters or form e-mails and addressed general issues not specific to
the Oregon Coast coho ESU.
[[Page 3037]]
Comments were also submitted by state and tribal natural resource
agencies, fishing groups, environmental organizations, home builder
associations, academic and professional societies, expert advisory
panels, farming groups, irrigation groups, and individuals with
expertise in Pacific salmonids. The majority of respondents focused on
the consideration of hatchery-origin fish in ESA listing
determinations, with only a few comments specifically addressing the
Oregon Coast Coho ESU. We also received comments from four of the
independent experts from whom we had requested technical review of the
scientific information underlying the June 2004 proposed listing
determinations. Their comments did not specifically address the
proposed determination for the Oregon Coast coho ESU. The reader is
referred to the final hatchery listing policy (70 FR 37204; June 28,
2005) and final listing determinations for 16 salmon ESUs (70 FR 37160;
June 28, 2005) for a summary and discussion of general issues raised by
the comments received.
Below we address the comments received that directly pertain to the
listing determination for the Oregon Coast coho ESU and Oregon's
assessment. We received many substantive comments of a detailed and
technical nature, particularly concerning Oregon's assessment report.
Below we confine our summary of the comments received to those issues
with the potential to influence the final listing determination.
(Copies of the full text of comments received are available upon
request, see ADDRESSES and FOR FURTHER INFORMATION CONTACT, above.) The
following summary of comments and our responses are organized into four
general categories: (1) The consideration of hatchery origin fish in
delineating the Oregon Coast coho ESU and evaluating its viability; (2)
Oregon's modeling of the viability of the Oregon Coast coho ESU; (3)
the consideration of threats facing, and efforts being made to protect,
the species; and (4) the applicable standard(s) under the ESA for
making a final listing determination of the Oregon Coast coho ESU.
Comments on the Consideration of Hatchery-Origin Fish
Comment 1: The Oregon Department of Fish and Wildlife (ODFW)
expressed concern regarding the proposed inclusion of the North Fork
Nehalem River coho hatchery program in the Oregon Coast coho ESU. ODFW
explained that the hatchery program propagates two different stocks:
the North Fork Nehalem River hatchery coho stock (ODFW stock
32), and the Fishhawk Lake hatchery coho stock (ODFW stock
99). ODFW noted that both stocks, although founded using local
natural-origin fish, are presently managed as isolated broodstocks.
Although the level of divergence between these hatchery stocks and the
local wild populations is not known, ODFW noted that our hatchery
reviews (NMFS, 2003a, 2004b, 2004c) acknowledged that the level of
divergence may be substantial. ODFW recommended that both the North
Fork Nehalem River and Fishhawk Lake hatchery stocks should be excluded
from the ESU.
ODFW also noted that the recently founded Calapooya Creek (Umpqua
River basin, Oregon) hatchery coho stock was not included in our
hatchery reviews. The Calapooya Creek program was a small, short-term
(in operation from 2001-2003), research hatchery program conducted to
evaluate the use of hatchery-reared fish in the supplementation of a
wild coho population. The program is no longer releasing fish, but will
have returning adults through 2006. ODFW suggested that had we included
this stock in our initial evaluations, the progeny expected to return
through 2006 would have been considered as part of the Oregon Coast
coho ESU.
Response: We agree with ODFW's comments that the North Fork Nehalem
River and Fishhawk Lake stocks propagated by the Nehalem hatchery coho
program should be excluded from the ESU. Although both of these stocks
were originally founded from the local natural populations, they have
not since 1986 regularly incorporated natural fish into their
broodstock. Additionally, the two hatchery stocks have not been managed
in a way to assure that they remain separate and conserve their
respective genetic resources. In 2 of every 3 years, the Nehalem
hatchery program releases the North Fork Nehalem hatchery coho stock,
and in the third year it releases the Fishhawk Lake stock. Since adult
coho return at different ages, it is highly likely that mixing has
occurred between the two stocks. Although the North Fork Nehalem and
Fishhawk Lake hatchery stocks cluster genetically with other stocks
that are part of the Oregon Coast coho ESU (Weitkamp et al., 1995), the
stocks are managed in such a way that they are substantially
reproductively isolated from the local natural populations, and it is
likely that they have substantially diverged from the evolutionary
legacy of the ESU.
We did not include the Calapooya Creek coho hatchery stock in our
hatchery reviews as the program is no longer collecting fish for
broodstock or releasing smolts. However, we agree with ODFW that
returns from Calapooya Creek hatchery stock, having been recently
derived from local natural-origin fish, are likely no more than
moderately diverged from the local natural populations and so will be
considered part of the Oregon Coast coho ESU.
Comment 2: A comment submitted by the Pacific Rivers Council (PRC)
included a July 2003 report investigating the potential benefits of a
modeled conservation hatchery program in supplementing Oregon Coast
coho (Oosterhout and Huntington, 2003). PRC asserted that the report
supports their position that hatchery fish should be considered as only
a threat to wild salmonid populations, and that any potential short-
term benefits of artificial propagation are outweighed by the long-term
damaging genetic and ecological effects on wild populations. The
Oosterhout and Huntington (2003) report modeled an ``idealized
conservation hatchery'' program and evaluated the success of
supplementation efforts under different scenarios of habitat quality
and marine survival. The authors conclude from their modeling study
that supplementation, even under optimized model assumptions, poses
long-term ecological and genetic risks, and any short-term gains in
salmon abundance are temporary.
Response: The use of artificial propagation represents a broad
spectrum of hatchery practices and facilities, as well as a variety of
ecological settings into which hatchery-origin fish are released. For
this reason it is essential to assess hatchery programs on a case-by-
case basis. Our assessment of the benefits, risks, and uncertainties of
artificial propagation concluded that the specific hatchery programs
considered to be part of the Oregon Coast coho ESU collectively do not
substantially reduce the extinction risk of the ESU in-total (NMFS,
2004c). We noted that these hatchery programs likely contribute to an
increased abundance of total natural spawners in the short term,
although their contribution to the productivity of the supplemented
populations is unknown. Our assessment is consistent with the findings
of Oosterhout and Huntington (2003). The findings of scientific
studies, such as the subject study on simulated conservation hatchery
programs and their impacts on natural coho populations, inform our
consideration of the benefits and risks to be expected from artificial
propagation.
[[Page 3038]]
However, it would be inappropriate to rely on theoretical conclusions
about the effectiveness of hatchery programs and not consider program-
specific information regarding broodstock origin, hatchery practices,
and performance of hatchery- and natural-origin fish.
Comments on Oregon's Modeling of ESU Viability
Comment 3: Douglas County Board of Commissioners (Oregon) submitted
a report (Cramer et al., 2004) that concludes that NMFS' earlier
viability analyses overstate the risks to Oregon Coast coho
populations, and that the 2003 BRT's findings warrant reconsideration.
The Cramer et al. (2004) report asserts that previous viability
assessments failed to adequately consider connectivity among spawner
aggregations, underestimated juvenile over-winter survival in smaller
stream reaches, and underestimated coho population stability. The
report asserts that sharp reductions in ocean harvest rates since 1994,
declining influence of hatchery-origin fish, and improved monitoring
and evaluation under the Oregon Plan confer a very low risk of
extinction even if future marine survival rates are low and remain low.
Response: The Cramer et al. (2004) report does not present any
substantial new information, other than including an additional year of
abundance data that was not available to the BRT. The report emphasizes
selective aspects of the available data including: reduction of threats
by changes in fishery and harvest management; and improved biological
status evidenced by increasing spawning escapements and successful
juvenile rearing throughout the ESU. These observations and analyses
were fully considered in the BRT's review (Good et al., 2005; NMFS,
2003b), and Oregon's assessment. The Cramer et al. (2004) report does
not, by itself, add to our consideration of the BRT's or Oregon's
findings.
Comment 4: Several commenters expressed concern that the conclusion
of Oregon's assessment does not represent a balanced consideration of
the available information and associated uncertainties. The commenters
felt that the conclusion focused largely on the supporting evidence,
and did not adequately address uncertainties and underlying
assumptions.
Response: In our March 18, 2005, letter to Oregon detailing our
comments on its draft assessment (NMFS, 2005b) we recommended
clarifying a number of explicit and implicit assumptions made in
Oregon's analyses. We, as well as several other reviewers, suggested
specific areas where additional information could be evaluated or
alternative analyses explored to more transparently test the validity
of Oregon's assumptions and to evaluate the sensitivity of the
viability model results. Oregon made considerable improvements to the
final assessment by including new information and analyses, and
acknowledging many of the underlying assumptions and associated
uncertainties. It is to be expected that an analysis of the scope of
Oregon's assessment cannot address all uncertainties, fully explore the
validity of all the assumptions made, or explore all alternative model
formulations. The challenge for such a comprehensive assessment is for
the authors to clearly state the assumptions being made, to consider
the implications of such assumptions, and to disclose any associated
uncertainties that may substantively affect the model results. We
believe Oregon's viability assessment transparently addresses these
issues such that the technical reader can adequately appraise the
reliability of, and uncertainties associated with, the report's
findings. Oregon's IMST, in its comments on the draft assessment
report, concluded that the assumptions and analyses underpinning the
State's coho assessment are valid. Our review noted that there are
conclusory statements in Oregon's draft assessment that overstate the
confidence with which the viability of the Oregon Coast coho ESU can be
assessed. However, the ``Additional Considerations'' section of
Oregon's final viability assessment discusses the uncertainties and
risks associated with the analyses conducted and provides essential
context to the report's conclusions.
Comment 5: Several commenters expressed doubt with respect to the
coho population structure posited in Oregon's viability analyses. The
commenters noted that uncertainties regarding the ESU's population
structure contribute to biases in the assessment of population-level
and ESU-level extinction risks. These commenters advised that Oregon's
assessment should include a discussion of how the report's conclusions
might be affected if the presumed population structure proved to be
incorrect. One commenter asserted that preliminary results from recent
microsatellite DNA genetic analyses indicate that there is substantive
population structure for the Oregon Coast coho ESU on a smaller spatial
scale than is reflected by Oregon's delineation of independent and
dependent populations. The commenter felt that the preliminary genetic
data called into question Oregon's assumptions regarding the magnitude
and frequency of migration among populations, thereby affecting
projections of population persistence and ESU viability.
Response: We conclude that the population structure used in
Oregon's assessment represents a reasonable synthesis of the best
available scientific information. It is consistent with, and largely
derived from, the preliminary historical populations identified by
NOAA's Technical Recovery Team (TRT) for the Northern California and
Oregon Coasts (Lawson et al., 2004) (although it is unclear whether the
population structure used in Oregon's viability analysis is intended to
represent the historical or current population structure). The TRT
evaluated the spatial relationships of 67 historical populations of
Oregon Coast coho, principally on the basis of the geographical and
ecological characteristics of the Oregon coastal landscape. The TRT
preliminarily identified nine historical populations as functionally
independent, nine as potentially independent, and 48 populations as
dependent populations. These 67 populations are grouped into geographic
strata that (1) serve as a means of defining important geographic,
genetic, and ecological diversity within the ESU, and (2) distinguish
independent populations that will be the focus of rigorous viability
analyses, monitoring, and restoration efforts. The TRT did not attempt
to define current populations or to predict what future populations
might look like. The likely historical structure of populations
provides a framework for comparing the historical and present status of
populations, identifying the changes that have affected them, and
prioritizing restoration actions. The TRT notes that the preliminarily
defined historical population structure may change in the future as
viability analyses progress and as new information becomes available.
It is expected that new genetic information (particularly from
studies using newer genetic techniques with improved resolution over
previous studies) will suggest population spatial structure that is
different from that identified by Oregon and the TRT. The genetic
structure within an ESU is dynamic, and is influenced by temporal
variability in gene flow, genetic drift, and adaptation among
populations. These processes will be particularly pronounced for
smaller dependent populations on short temporal scales, resulting in
genetic population structure on finer spatial scales than that
identified for larger independent
[[Page 3039]]
populations over evolutionary time scales. We assume that the
historical template was sustainable, while noting the uncertainty in
this assumption, given that present habitats and environmental
conditions have been substantially altered.
Comment 6: Several commenters agreed strongly with Oregon's
assessment, and supported the conclusion that the Oregon Coast coho ESU
is viable. The commenters noted that Oregon's assessment represents the
first effort to synthesize the large quantity of biological and habitat
information available for the ESU. The commenters cited recent years of
strong returns, reduced harvest rates, improved hatchery management,
and an ongoing commitment to conservation measures under the Oregon
Plan, as evidence that the ESU is currently viable and measures are in
place to ensure it remains so for the foreseeable future.
Response: Oregon's assessment represents an impressive aggregation,
analysis and synthesis of population, hatchery, harvest, and habitat
data from many state and Federal agencies, and at multiple spatial and
temporal scales. We agree with the commenters that Oregon's assessment
represents an unprecedented effort for any West Coast ESU of salmon or
steelhead, and that it is sufficiently robust that it causes us to
reconsider our proposed determination that the ESU is likely to become
endangered in the foreseeable future. The findings of Oregon's
assessment need to be considered in the context of all the available
information, particularly in the context of other viability analyses
and the many technical reviews of Oregon's analyses. NMFS' BRT included
in its analysis of ESU viability the recent improvements in the ESU's
abundance and productivity, improvements in hatchery practices, and
sharp reductions in harvest rates. As summarized above, the BRT's
findings reflect its considerable uncertainty regarding the threats
facing the ESU, particularly in predicting future ocean conditions and
determining whether current freshwater habitat conditions are of
sufficient quantity and quality to sustain viable populations in the
foreseeable future. Oregon's assessment, as well as other information
received during the public comment periods, further inform our
evaluation of the ESU's status, threats, and related uncertainties.
Comment 7: Several commenters criticized the assertion made in
Oregon's viability analysis that Oregon Coast coho populations are
inherently resilient at low levels of abundance due to strong
productivity compensation at low spawner density (the ``low abundance
paradigm''). Commenters noted that: (1) There is little empirical
evidence in the scientific literature to support this claim; (2)
Oregon's low abundance paradigm has not been thoroughly peer reviewed
or tested with other coho data sets; and (3) any conclusions that rest
heavily on a new and unverified paradigm are tenuous at best.
Commenters observed that the failure of the 1997-1999 brood years to
replace themselves on the spawning grounds, despite relatively low
abundance levels, appears to contradict Oregon's low abundance
paradigm. The commenters argued that Oregon's analyses of data that
arguably demonstrate their low abundance paradigm are uncompelling and
statistically invalid. Commenters felt that the apparent resilience
indicated by the recent increased abundance of Oregon Coast coho is
attributable to favorable ocean conditions and substantially reduced
harvest rates, rather than a strong compensatory demographic response.
The commenters argued that had the favorable ocean conditions and
reduced harvest been absent, it is unlikely that the quick increase in
coho abundance would have occurred.
Response: We shared many of these concerns with Oregon as part of
our comments on its draft assessment report (NMFS, 2005a, 2005b). The
data presented by Oregon in support of the low abundance paradigm
suffer from low sample size, potentially substantial measurement error,
and the fact that Oregon did not adequately analyze whether increased
productivity is attributable to a strong compensatory response or is
better explained by interannual variability. Although there are data
points for a few populations within a given brood year that suggest
high productivity at low spawner abundances, there are contrary
examples for the same population in different years, or for different
populations in the same brood year. Occasional large spikes in
productivity are expected when evaluating such recruitment data sets.
We believe that single data points are not very informative with regard
to assessing extinction risk. The more relevant consideration is
whether mean productivity is at or above replacement over the long term
through periods of favorable and unfavorable environmental conditions.
Oregon candidly acknowledges these issues in the report's technical
sections, although overly broad statements in the reports' executive
summary and synthesis sections may be misleading.
Oregon responded to our comments by including an alternate
recruitment model to test the sensitivity of the model results to the
low abundance paradigm (i.e., the assumption that the number of
recruits per spawner will increase with decreasing numbers of
spawners). Oregon concluded that the removal of this assumption of
strong productivity compensation at low spawner densities from the
recruitment model did not substantially alter its overall status
determination for the ESU. Oregon's additional sensitivity analysis
lends support to a conclusion that the ESU is currently viable, even if
the low abundance paradigm is insufficiently supported (NMFS, 2005d).
However, the small samples sizes and the effects of measurement error
continue to contribute to uncertainty in its assessment..
Comment 8: Several commenters were critical of Oregon's assumptions
that the current habitat conditions are adequate to support viability.
When environmental conditions are unfavorable and population abundances
are low, the populations tend to occupy a small range of core habitats.
When environmental conditions improve, the populations expand into
additional habitat. Oregon's assessment of ESU viability assumes that
both the core and expansion habitats are of sufficient quantity and
quality to support the populations through poor ocean conditions and to
take advantage of favorable ocean conditions. These and other
commenters were concerned that the recent few years of improved coho
returns during strongly favorable ocean conditions do not provide
adequate support for the assumption that current habitat conditions are
sufficient to sustain these recent increases.
Response: Oregon acknowledges that current habitat conditions are
generally poor, and that relative scarcity of high quality overwinter
coho rearing habitat is of concern. Oregon's assessment notes that coho
streams within the range of the ESU currently are characterized by a
general scarcity of instream large woody debris, a lack of large
conifers in riparian areas, reduced connectivity with off-channel
habitats and flood plains, and the presence of fine sediments in
spawning gravels (Oregon, 2005-3B). However, Oregon reasons that the
ESU's demonstrated ability to rebound rapidly from the unfavorable
environmental conditions of the 1990s strongly indicates that currently
available freshwater habitats are of sufficient quantity and quality to
support increased population
[[Page 3040]]
productivity, increased population abundance, and increased spatial
distribution of populations, and sustain populations through any future
downturns in ocean conditions.
In contrast, the slight majority opinion of the 2003 BRT was that
the ESU is likely to become endangered, based largely on concerns
regarding ability of current habitat conditions to sustain populations
during future periods of poor ocean productivity. The BRT noted that
habitat quality was generally poor, and habitat capacity was
significantly reduced from historical levels. Given the competing
reasonable inferences regarding ESU status from limited data we cannot
conclude that the ESU is likely to become endangered in the foreseeable
because of the ``destruction, modification, or curtailment of its
habitat or range.'' This issue is discussed in more detail in the
Consideration of ESA section 4(a)(1) Factors section below.
Comment 9: Several commenters were critical of Oregon's
consideration of ocean conditions. In Oregon's draft assessment report,
Oregon assumed that future unfavorable ocean conditions would be no
more severe than those observed in the past. Commenters noted the
extreme uncertainty associated with predicting ocean conditions,
projected that future ocean conditions may be worse in intensity and
longer in duration than that observed in the 1990s, and recommended
that Oregon include more severe scenarios of unfavorable ocean
conditions in its model simulations.
Response: The commenters are correct that Oregon's assessment
assumed that past ocean conditions serve as a reasonable approximation
of future ocean conditions. This assumption was clearly stated in
Oregon's assessment report, and represents a reasonable formulation of
its model to address the question of whether Oregon Coast coho
populations are likely to become an endangered species in the
foreseeable future, given current and past variability in marine
survival rates. As the commenters note, predictions of future ocean
conditions are highly uncertain given uncertainties in decadal cycles
in ocean-climate conditions and global climate change. Thus any
projections of the viability of coho population in the foreseeable
future are similarly associated with uncertainty. In our comments on
Oregon's draft assessment report, we encouraged Oregon to include model
scenarios that contemplate downturns in ocean conditions of greater
severity and longer duration than was observed in the 1990s (NMFS,
2005b) to better inform considerations of whether Oregon Coast coho
populations are likely to be threatened with extinction in the
foreseeable future. Oregon included a sensitivity analysis in its final
assessment report with scenarios in which marine survival conditions
observed in the 1990s persisted for different lengths of time into the
future. The result was that the ESU remained viable even under those
conditions where very low marine survival persisted for 24 years. This
additional analysis was very informative, providing some of the best
support for Oregon's argument that the ESU is viable (NMFS, 2005d).
Comment 10: Several commenters expressed concern that Oregon's
assessment does not contemplate the potential cumulative impact of
coincident detrimental habitat trends and catastrophic events.
Commenters felt that Oregon's assessment was dismissive of the
likelihood that such scenarios might occur in the future.
Response: Oregon noted in the final assessment that there is the
real possibility that a number of adverse environmental conditions
could converge and create a catastrophic threat to the ESU's viability.
Oregon argued that such a worst-case scenario occurred in the 1990s,
when drought, extreme floods, and the worst marine survival conditions
observed in five decades converged. Although the impacts were dramatic,
the ESU persisted through this period and rebounded quickly once
conditions moderated. Oregon concluded that the life cycle of coho
salmon, its population structure and dynamics, and its broad geographic
distribution all provide protection and reduce the likelihood that
catastrophic events or the convergence of multiple adverse
environmental conditions would result in the Oregon Coast coho ESU not
being viable in the foreseeable future.
Comment 11: Several commenters were critical of the abundance and
productivity criteria applied in Oregon's viability assessment.
Commenters were critical of the low abundance threshold chosen and of
Oregon's premise that the probability of extinction is largely
independent of abundance. Commenters noted that the strong correlation
between low abundance and elevated risk of extinction is well
established in the conservation biology literature. Commenters cited
studies that discuss the ``extinction vortex'' phenomenon in which
populations may appear to persist at severely reduced levels of
abundance, but lack the demographic capacity and the genetic and
ecological diversity to recover. Such populations lack the ability to
respond to environmental variability and catastrophic events and slide
irrevocably toward extinction. The commenters expressed the concern
that coho populations subjected to severe boom and bust cycles of
abundance will suffer an erosion of genetic and life-history diversity
during ``bottlenecks'' of low population abundance, and that over
multiple cycles will become reproductively less fit. The consequence,
the commenters felt, would be a gradually diminished ability to fully
re-occupy available habitat during favorable environmental conditions,
and an ever accumulating risk of population extirpation and ESU
extinction. One commenter also stressed that Oregon's minimum
population size threshold would provide insufficient nutrient
enrichment of streams from salmon carcasses to support essential
ecological functions.
Another commenter disagreed with the productivity threshold for the
average recruits per spawner during periods of low population
abundance. The commenter noted that the productivity threshold
(expressed as average recruits per spawner) allows for a 50 percent
probability that the population is actually declining when at low
abundance. The commenter recommended that a higher level of certainty
was advisable for the productivity threshold, given that the resilient
productivity at low abundance is a key component of Oregon's assessment
(i.e., Oregon's low abundance paradigm).
Response: Oregon's low abundance paradigm effectively emphasizes
population productivity and de-emphasizes the abundance parameter in
determining probabilities of population persistence. As noted above in
the response to Comment 7, we have concerns regarding the validity of
Oregon's low abundance paradigm. We agree with the commenters that
there is strong support in the scientific literature for abundance
being an important determinant of extinction risk (see McElhany et al.,
2000). However, we acknowledge that there is insufficient empirical
data demonstrating the specific abundance level at which stochastic and
depensatory demographic processes dominate and the risk of extinction
is expected to increase dramatically. Given this uncertainty, we cannot
say that Oregon's abundance threshold is unreasonable.
We agree with the commenter that the productivity thresholds should
require a higher level of certainty that the average recruits per
spawner at low population
[[Page 3041]]
abundance exceeds replacement. A population exactly meeting Oregon's
viability thresholds would be at a very low level of abundance,
susceptible to stochastic and depensatory demographic processes, and
would have a 50 percent chance that its productivity is below
replacement. Additionally, the productivity threshold does not take
into account the statistical uncertainty in estimating the number of
recruits per spawner, so the confidence with which one can conclude
that a given population is above the productivity threshold is
unspecified.
Comment 12: Several commenters felt that Oregon's consideration of
the effects of artificial propagation was insufficient. Commenters felt
that Oregon's viability analysis considered only ecological and
predation effects of supplementation with hatchery fish, and failed to
consider the negative impacts of interbreeding hatchery-origin and
natural fish on genetic diversity and reproductive fitness.
Response: The potential ecological and genetic interactions between
naturally spawning hatchery-origin and natural populations are complex,
uncertain, and influenced by site-specific and program-specific
factors. Accordingly, modeling these interactions is exceedingly
difficult. In addition to the potential negative ecological and
predation effects of hatchery supplementation, Oregon's assessment also
acknowledges the potential negative impacts on the reproductive success
and genetic diversity of natural populations. Because of the
uncertainty surrounding these issues, Oregon concluded that it was not
feasible to reliably parameterize hatchery interactions across the ESU,
based on simple assumptions regarding relative reproductive success of
naturally spawning hatchery fish and their ecological and genetic
interactions. Oregon concluded that the best index of hatchery impacts
is the resulting performance of naturally spawned fish. Accordingly,
Oregon's assessment was based upon counts of only naturally produced
recruits. If hatchery fish were responsible for an adverse impact on
the overall natural population, this effect would be evident in the
estimated productivity of the population. We believe Oregon's approach
is clearly articulated and represents a reasonable approach to
considering the effects of artificial propagation in its analyses.
Comments on Threats Facing the Species and Efforts Being Made to
Protect them
Comment 13: Several commenters felt that effective regulatory
controls and monitoring programs are in place to ensure that harvest
and hatchery practices no longer threaten the ESU.
Response: Many noteworthy and important regulatory changes have
been made that adequately address historically harmful practices.
Changes in ocean and freshwater fisheries management have resulted in
sharp reductions in fishery mortality in Oregon Coast coho populations,
and likely have contributed to recent population increases. It is
unlikely that those harvest controls will change in the future, given
that the Pacific Fishery Management Council and, ultimately the
Department of Commerce, have influence over harvest. Reforms in
hatchery management practices have limited the potential for adverse
ecological interactions between hatchery-origin and natural fish, and
have markedly reduced risks to the genetic diversity and reproductive
fitness for the majority of naturally spawned populations in the ESU.
It is unlikely those reforms will be reversed in the future.
Comment 14: Several commenters felt that Oregon's assessment did
not adequately assess the future trends of coho habitat, particularly
riparian areas. Commenters expressed concern regarding Oregon's premise
that habitat conditions will not degrade in the foreseeable future. One
commenter was critical of the Oregon Forest Practices Act, and argued
that it is inadequate to prevent the future degradation of riparian
habitats, particularly on private non-industrial forestlands. The
commenter noted that the Forest Practices Act applies only to the
commercial harvest of trees, and that non-commercial land owners may
cut riparian trees without restriction if they do not sell the wood.
The commenter noted that this unregulated practice is particularly
evident in areas with increased rural residential development along
streambanks.
Other commenters doubted whether regulations, restoration programs,
and other protective efforts would improve habitat conditions in the
foreseeable future. One commenter noted that there is an insufficient
data record to evaluate the success of protective efforts aimed at
restoring riparian habitats, particularly in increasing the recruitment
of large woody debris. Several other commenters doubted whether forest
management under the Oregon Plan has resulted, or will result, in an
increased amount of large-diameter trees (important for the recruitment
of large woody debris in coho rearing areas). The commenters argued
that the shorter rotations being implemented on private industrial
forest lands reduce the size of trees delivered to streams in
landslides, and thus may result in diminished stream complexity in
important coho rearing habitats.
Response: A review of Oregon's final assessment and other available
information suggests that habitat conditions overall are likely to
remain constant in the foreseeable future, given that there are likely
to be improvements in some aspects of habitat condition, declines in
others, and a continuation of current conditions in still others (NMFS,
2005e). For example, the Northwest Forest Plan instituted riparian
habitat buffers and other measures on Federal lands that improved many
of the historical forestry practices that led to the loss and
degradation of riparian habitats. Development and implementation of
Total Maximum Daily Loads are likely to result in slightly improved
water quality. Restoration efforts have treated approximately seven
percent of the stream miles within the range of the ESU over the last 7
years with the intent of restoring stream complexity and riparian
habitats, and improving water quality (Oregon, 2005-1) (though it is
unclear how much restoration is likely to occur in the future, given
the uncertainties regarding funding).
Forest practices on state and private land include some
improvements over historically harmful practices, such as the
establishment of riparian management areas under revisions in the 1990s
to Oregon forest practice rules (Oregon, 2005-1). However, there are
also offsetting practices that are expected to degrade habitat
conditions and complexity, such as shorter harvest rotations, and road
construction and logging on unstable slopes and along debris flow paths
(NMFS, 2005e). On balance, habitat conditions on these lands are not
likely to show significant improvement or decline.
For agricultural lands, riparian management is governed by
agricultural water quality management plans under Oregon Senate Bill
1010, as well as by subsequently developed riparian rules which
synthesize elements of individual Senate Bill 1010 plans for a given
basin. These agricultural plans and rules do not specify the vegetation
composition or size of the riparian areas to be established. The lack
of specificity of these agricultural plans makes the enforcement and
effectiveness of these plans uncertain (NMFS, 2005e). Oregon's final
assessment concludes that ``we are likely to see slow improvements in
riparian vegetation on agricultural lands under current rules with
uncertainty about how much and
[[Page 3042]]
where the changes will occur'' (Oregon, 2005-3B). As discussed further
below, any modest improvements may be offset by habitat declines
resulting from urban and rural development (NMFS, 2005e). On balance,
habitat conditions on agricultural lands are not likely to show
significant improvement or decline.
Future urbanization and development within the range of the ESU is
projected at approximately 20 percent population growth, representing
slightly more than 30,000 people over the next 40 years (OOEA, 2004).
Most of this development is expected to be concentrated in lowland
areas with high intrinsic potential for rearing coho. Current urban or
rural growth boundaries encompass approximately nine percent of high
intrinsic potential riparian habitat areas, so future urbanization and
development activities could have significant implications for some
coho populations. The degree of potential impacts on coho habitat (both
positive and negative) is highly uncertain and depends largely on the
spatial distribution of future urbanization and development activities,
their proximity to riparian areas, and the kinds of development
activities undertaken and land management practices used.
Informed by these and other considerations, we conclude that
Oregon's findings regarding the future trends of habitat conditions are
uncertain, but nonetheless consistent with the best available
information (NMFS, 2005e).
Comment 15: One commenter expressed disappointment that Oregon's
assessment did not conclude with an agency-by-agency description of
areas for improvement and list of specific action items to address
these identified deficiencies. The commenter noted that during the
planning stages of the Oregon Coast coho assessment, Oregon stated that
a principal goal of the effort was to identify specific measures needed
to improve the performance of agency actions, to ensure meeting the
Oregon Plan's objectives and the recovery needs of Oregon Coast coho.
Response: We agree that Oregon's assessment of protective efforts
under the Oregon Plan would be strengthened by describing areas for
improvement and a list of specific action items to address these
identified deficiencies. We view such an analysis as an important
component of effective adaptive management.
Comment 16: One commenter was concerned that Oregon's assessment
appeared to equate the failure to detect statistically downward trends
in habitat parameters with the absence of such a trend. The commenter
noted that Oregon acknowledged that ``our ability to detect a
significant trend is minimized by the low statistical power of our
analyzes [sic].'' The commenter offered a personal observation that in
locations where habitat conservation measures have not been
implemented, instream habitat conditions are continuing to degrade. The
commenter felt that if continued degradation of the physical habitat is
occurring, though not detected statistically by Oregon's analyses, then
the assessment's conclusions regarding ESU viability may be uncertain.
Response: As noted in our response above to Comment 4, some issues
that were candidly acknowledged in the technical sections of Oregon's
assessment were not consistently articulated in the reports' executive
summary and synthesis sections. The result is that some conclusory
statements, when not considered in the context of the entire report,
may be misleading. In the final assessment, Oregon acknowledges that
its conclusions are predicated on the assumption that freshwater
habitat and environmental conditions in the future will generally
correspond to those observed in the past several decades. Oregon
cautioned that if survival associated with marine or freshwater
conditions trend moderately downward into the future, the assessment
should be revisited and adjusted accordingly.
Comment 17: One respondent was concerned that Oregon's assessment
did not establish population- and habitat-based performance measures
that if met would automatically trigger a specific management response.
The commenter felt that without these ``management triggers'' Oregon
could not ensure that measures under the Oregon Plan will be effective
in conserving Oregon Coast coho populations under any future
conditions. The commenter was concerned that the lack of specified
management triggers in Oregon's assessment raises questions about
Oregon's ability to objectively evaluate and identify areas for
improvement and practice adaptive management. The commenter also
questioned whether Oregon's assessment can justifiably conclude that
future changes in population status will be detected in a timely
manner, thus affording the opportunity of effecting the appropriate
management response. The commenter noted that the scientific literature
indicates that it may take five generations (or approximately 15 years)
to detect statistically robust trends among populations within an ESU,
and that there are time delays in implementing necessary management
actions. Moreover, there is an additional time lag to determine whether
the expected biological response may be resolved. Given the time frames
involved, the commenter expressed doubt that a sufficient monitoring
and evaluation system with management triggers was in place to ensure
that necessary management adjustments are implemented before the status
of Oregon Coast coho is irretrievably compromised.
Response: We agree with the commenter's concern that Oregon's
assessment did not include triggers for specific management actions. In
our March 18, 2005, letter to Oregon detailing our comments on its
draft assessment report we recommended that the final report include
specific management triggers. We were disappointed that the final
report did not contemplate such management triggers.
Comment 18: Several commenters expressed concern that inadequate
funding has limited the ability of many Oregon agencies to monitor non-
permitted habitat-affecting activities, effectively enforce
regulations, and ensure proper reporting of permitted activities. The
commenters felt that these inadequacies should be considered evidence
of uncertainty that some as yet, unproven elements under the Oregon
Plan will be implemented.
Response: The commenters are correct that the availability of
necessary funding and staffing resources is an important consideration
in evaluating how likely it is that a given protective effort will be
implemented. Our review has noted that funding declines have led to the
loss of staff at the Oregon Department of Environmental Quality,
Department of Forestry, and ODFW (NMFS, 2005e). The reduced funding has
slowed the completion of Total Maximum Daily Load water quality
standards, and reduced the ability to monitor water quality, habitat
structure and complexity, and fish populations.
ESA Standards for Listing Determinations
Comment 19: Two commenters expressed concern regarding the
appropriate statutory standard that must be satisfied if we were to
issue a ``not warranted'' final listing determination for the Oregon
Coast coho ESU. One commenter stressed that the appropriate standard
for such a determination is ``recovery.'' The commenter noted that the
requirements of a recovery plan under ESA section 4(f)(1) include: (1)
A description of such site-specific management actions as may be
necessary to achieve the plan's goal for
[[Page 3043]]
the conservation and survival of the species; and (2) objective,
measurable criteria which, when met, would result in a determination
that the species be removed from the list of threatened and endangered
species. The commenter stressed that a ``not warranted'' finding for
the Oregon Coast coho ESU must be based on quantitative information
that specific management actions have been successful in addressing the
factors responsible for the ESU's decline, and on analyses
demonstrating that the improved viability of the ESU is attributable to
these actions and not fortuitous ocean conditions supporting high
marine survival. The commenter acknowledged that the Alsea ruling
effectively removed Oregon Coast coho from the protections of the ESA,
but asserted that since the ESU was listed previously we should adopt a
precautionary approach and not evaluate the ESU's listing status as if
it was being reviewed for the first time.
Response: The statutory standards for recovery planning and
delisting determinations are not applicable to the ESU. Section 4(f)
governs the adoption of recovery plans for listed species. As the
commenter noted, and as is summarized above in the Background section,
the 2001 Alsea ruling set aside the 1998 threatened listing of the
Oregon Coast coho ESU. Listing and delisting decisions under the ESA,
such as this notice, are governed under section 4(b) of the ESA which
states that we shall determine whether a species is threatened or
endangered because of any of five factors (section 4(a)(1)(A)-(E)),
solely on the basis of the best scientific and commercial data
available after reviewing the status of the species and taking into
account those efforts, if any, being made to protect the species
(section 4(b)(1(A)).
The statutory language and legislative history do not prescribe a
``precautionary'' approach as recommended by the commenter, other than
to define what qualifies as a threatened or endangered species. A
species is threatened or endangered because of five factors specified
in ESA Section 4(a)(1). ``Endangered'' is defined as ``in danger of
extinction throughout all or a significant portion of its range,'' and
``threatened'' is defined as ``likely to become an endangered species
within the foreseeable future throughout all or a significant portion
of its range.'' We interpret the term ``likely'' to mean that the best
available information must indicate that a species is more likely than
not to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.
Final Species Determination
The Oregon Coast coho ESU includes all naturally spawned
populations of coho salmon in Oregon coastal streams south of the
Columbia River and north of Cape Blanco (63 FR 42587; August 10, 1998).
We find that five hatchery stocks are part of the ESU: the North Umpqua
River (ODFW stock 18), Cow Creek (ODFW stock 37),
Coos Basin (ODFW stock 37), and the Coquille River (ODFW stock
44) coho hatchery programs, as well as the progeny of the
Calapooya Creek coho hatchery program (which is no longer in
operation).
On June 14, 2004, we proposed that five artificial propagation
programs are part of the ESU (69 FR 33102), including the North Fork
Nehalem River (ODFW stock 32) coho hatchery program, should be
considered part of the ESU. Informed by our analysis of the comments
received from ODFW (see Comment 1 and response, above), we conclude
that the North Fork Nehalem River coho hatchery stock (ODFW stock
32) is not part of the Oregon Coast coho ESU. Similarly, the
Fishhawk Lake coho hatchery stock (ODFW stock 99), also
propagated at the North Fork Nehalem Hatchery, is not part of the ESU.
In the June 14, 2004, proposed rule we did not consider hatchery coho
from the Calapooya Creek (Umpqua River Basin) artificial propagation
program because it is no longer in operation. Informed by ODFW's
comments, however, we now find that the progeny of the Calapooya Creek
coho hatchery program, propagated between 2001 and 2003, are part of
the Oregon Coast coho ESU (see Comment 1 and response, above).
Assessment of the Species' Status
As noted in the ``Statutory Framework for Making ESA Listing
Determinations'' section, above, the steps we follow in making a
listing determination are to: review the status of the species, analyze
the factors listed in section 4(a)(1) of the ESA to identify threats
facing the species, assess whether certain protective efforts mitigate
these threats, and make our best prediction about the species' future
viability. Below we summarize the information we evaluated in reviewing
the status of the Oregon Coast coho ESU.
Biological Review Team Findings
The data that became available since the previous status review on
Oregon Coast coho was conducted (NMFS, 1997a) represent some of the
best and worst years on record. Yearly adult returns for the Oregon
Coast coho ESU have been in excess of 160,000 natural spawners from
2001 through 2004, far exceeding the abundance observed for the past
several decades. These recent encouraging increases in spawner
abundance were preceded by 3 consecutive brood years (1994-1996)
exhibiting recruitment failure (recruitment failure is when a given
year class of natural spawners fails to replace itself when its
offspring return to the spawning grounds 3 years later). These 3 years
of recruitment failure are the only such instances that have been
observed in the entire 55-year abundance time series for Oregon Coast
coho salmon (although comprehensive population-level survey data have
only been available since 1980). The recent increases in natural
spawner abundance have occurred in many populations in the northern
portion of the ESU, populations that were the most depressed at the
time of the last review (NMFS, 1997a). Although the recent dramatic
increases in spawner abundance are encouraging, the long-term trends in
ESU productivity are still negative due to the low abundances observed
during the 1990s.
The majority of the BRT felt that the recent increases in coho
returns were most likely attributable to favorable ocean conditions and
reduced harvest rates. The BRT was uncertain as to whether such
favorable marine conditions would continue into the future. Despite the
likely benefits to spawner abundance levels gained by the dramatic
reduction of harvest of Oregon Coast coho populations (PFMC, 1998),
harvest cannot be significantly further reduced so as to compensate for
declining productivity due to other factors. The BRT was concerned that
if the long-term decline in productivity reflects deteriorating
conditions in freshwater habitat, this ESU could face very serious
risks of local extirpations if ocean conditions reverted back to poor
productivity conditions. Approximately 30 percent of the ESU has
suffered habitat fragmentation by culverts and thermal barriers,
generating concerns about ESU spatial structure. Additionally, the lack
of response to favorable ocean conditions for some populations in
smaller streams and the different patterns between north and south
coast populations may indicate compromised connectivity among
populations. The degradation of many lake habitats and the resultant
impacts on several lake populations in the Oregon Coast coho ESU also
pose risks to ESU diversity. The BRT noted that hatchery closures,
reductions in the number of hatchery smolt releases, and improved
marking rates of hatchery fish
[[Page 3044]]
have significantly reduced risks to diversity associated with
artificial propagation.
The BRT found high risk to the ESU's productivity, and
comparatively lower risk to the ESU's abundance, spatial structure, and
diversity. Informed by this risk assessment, a slight majority of the
BRT concluded that the naturally spawned component of the Oregon Coast
coho ESU is ``likely to become endangered within the foreseeable
future.'' However, a substantial minority of the BRT concluded that the
ESU is ``not in danger of extinction or likely to become endangered
within the foreseeable future.'' The minority felt that the large
number of spawners in 2001-2002 and the high projected abundance for
2003 demonstrate that this ESU is not ``in danger of extinction'' or
``likely to become endangered within the foreseeable future.''
Furthermore, the minority felt that recent strong returns following 3
years of recruitment failure demonstrate that populations in this ESU
exhibit considerable resilience.
Consideration of Artificial Propagation
Our review of hatchery programs that are part of the ESU concluded
that they collectively do not substantially reduce the extinction risk
of the ESU in-total (NMFS, 2005g, 2004b, 2004c; see proposed rule for a
more detailed explanation of this assessment, 69 FR 33102, June 14,
2004). Our final determination that the North Fork Nehalem coho
hatchery program is not part of the ESU does not substantially alter
our previous conclusion that artificial propagation does not contribute
appreciably to the viability of the ESU. Additionally, our inclusion of
the progeny of a small research hatchery program that is no longer in
operation (i.e., the Calapooya Creek coho hatchery program) does not
substantially affect the extinction risk of the ESU in-total.
Oregon's Viability Assessment
Oregon's viability assessment concluded that the Oregon Coast coho
ESU is viable under current habitat conditions and management
practices. Oregon also concluded that coho populations exhibit strong
productivity compensation when populations are at low abundance levels,
conferring resilience to future downturns in ocean conditions for
marine survival and/or catastrophic events. Oregon's viability
assessment is conceptually consistent with the opinion of a substantial
minority of the BRT.
As discussed in the above summary of the issues raised by public
comments, many commenters are concerned about several of the
assumptions underlying Oregon's viability assessment. The most
substantive of these concerns are whether Oregon's low abundance
paradigm is valid, whether there is and will continue to be freshwater
habitat of sufficient quality and quantity to support viable coho
populations through future environmental cycles, and the uncertainty
associated with projections of future ocean-climate conditions for coho
populations. These concerns do not invalidate Oregon's conclusion that
the ESU is viable; rather, they underscore that there is considerable
uncertainty associated with any extinction risk assessment for Oregon
Coast coho.
Preliminary Results of Oregon Coast Coho Recovery Planning
NMFS' TRT for the Oregon and Northern California Coast is charged
with describing the historical population structure, developing
biological recovery criteria with which to evaluate the status of an
ESU relative to recovery, and identifying those factors limiting or
impeding recovery. The TRT recently provided a preliminary report on
its progress in developing these products for the Oregon Coast coho ESU
(NMFS, 2005f). The TRT's preliminary report underscores the uncertainty
associated with assessing the future status of the ESU. The TRT stated
that ``at this time our evaluation indicates, with a moderate degree of
uncertainty, that the ESU is persistent'' (the TRT defines a
``persistent'' ESU as one that is able to persist (i.e., not go
extinct) over a 100-year period without artificial support,'' relating
the term to ``the simple risk of extinction, which is the primary
determination of endangered status under the ESA''). The TRT further
stated that ``our evaluation of biological viability based on current
and recent past conditions shows a high degree of uncertainty with
respect to the statement that the ESU is sustainable'' (the TRT defines
a ``sustainable'' ESU as ``one that, in addition to being persistent,
is able to maintain its genetic legacy and long-term adaptive potential
for the foreseeable future ... so that risk of extinction will not
increase in the future,'' relating the term to ``threatened status
under the ESA''). The TRT's preliminary advice, subject to change upon
further testing and review, is not inconsistent with Oregon's viability
assessment.
Biological Implications of Recent Ocean-Climate Conditions
In an August 12, 2005, memorandum NMFS' NWFSC summarized the most
recent information available on West Coast ocean conditions, described
observations of impacts on marine communities, and offered predictions
of the implications of recent ocean conditions on West Coast salmon
stocks, including the Oregon Coast coho ESU (NMFS, 2005c). The
memorandum described recent observations of anomalous ocean conditions
that may portend lower returns of coho salmon for the fall of 2005 and
the next several years. The memorandum noted that indices of ocean-
climate variation are suggestive of a regime shift in ocean-climate
conditions that in the past have been associated with warmer water
temperature, poor primary productivity, and generally less favorable
conditions for coho marine survival. Recent in situ observations
confirm delayed coastal upwelling, anomalously warm sea surface
temperatures, altered zooplankton community structure, and low survey
abundances of juvenile salmon, possibly indicating low marine survival.
Strong upwelling occurred in mid-July 2005 resulting in cooler sea
surface temperatures, increased primary productivity, and generally
more favorable conditions for salmon survival. It is unclear whether
this delayed onset of coastal upwelling can compensate for earlier
unfavorable conditions which occurred during critical life-history
stages for coho salmon. The memorandum noted that model projections
indicate that fish populations that prey on juvenile coho salmon may be
reduced, possibly compensating somewhat for unfavorable marine survival
conditions for coho returns in 2006. The memorandum concluded that the
NWFSC is relatively confident that the negative biological implications
of recent ocean conditions for the Oregon Coast coho ESU may be
dramatic over the next few years. Although the memorandum predicts
conditions in the near term to be negative, it does not offer any
projections regarding ocean conditions or implications on Oregon Coast
coho in the foreseeable future.
Conclusion Regarding the Status of the Oregon Coast Coho ESU
In our June 14, 2004, proposed threatened determination for the
Oregon Coast coho ESU (69 FR 33102), we based our finding on the BRT's
slight majority's conclusion that the ESU is ``likely to become
endangered in the foreseeable future.'' We noted that the recruitment
failure observed during the 1994-1996 brood years (returning in 1997-
1999, respectively) was followed by near record recruitment for the
1997-1999 brood years (returning in 2000-2002, respectively). We noted
that the
[[Page 3045]]
recent returns are extremely encouraging but that these increases need
to be sustained through additional brood years to resolve remaining
concerns regarding the ESU's viability, due to uncertainties in future
ocean and freshwater habitat conditions. We stated that additional data
demonstrating that the freshwater habitat can support high abundances
of natural spawners and sustain recent abundance levels would help
resolve these uncertainties regarding the ESU's resilience under less
favorable ocean conditions.
In contrast, Oregon's assessment concluded that current freshwater
conditions are adequate to support the ESU's persistence, and that the
ESU is resilient to a prolonged period of poor ocean conditions. There
is considerable uncertainty regarding the adequacy of current habitat
conditions, but we find Oregon's conclusion reasonable, in light of
available information and Oregon's analysis of that information and in
light of the fact that the BRT considered this question unresolved.
Oregon's analysis indicating that the ESU is resilient to prolonged
poor ocean conditions does not resolve the uncertainties about future
ocean conditions, but it does diminish the concern created by that
uncertainty.
Based on the historical record and recent observations, we expect
ocean and freshwater habitat conditions to exhibit variability into the
future, and the abundance and productivity of coho populations to
fluctuate in response to this variability. The available information,
however, does not indicate that unfavorable ocean and freshwater
conditions are expected to predominate in the foreseeable future, or
that the average abundance and productivity trends for coho populations
over the foreseeable future is expected to be downward. The August 2005
memorandum regarding the biological implications of recent anomalous
ocean conditions concludes that we can expect reductions (of an
unspecified magnitude) in Oregon Coast coho populations returns for the
next few years, but does not prognosticate on ocean-climate conditions
or population returns into the foreseeable future (NMFS, 2005c).
Final Listing Determination
Consideration of ESA Section 4(a)(1) Factors
Section 4(a)(1) of the ESA and NMFS' implementing regulations (50
CFR part 424) states that we must determine if a species is endangered
or threatened because of 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. We have previously detailed the impacts of various factors
contributing to the decline of Pacific salmonids as part of our prior
listing determinations for 27 ESUs, as well as in supporting technical
reports (e.g., NMFS, 1997a, ``Coastal coho habitat factors for decline
and protective efforts in Oregon;'' NMFS, 1997b, ``Factors Contributing
to the Decline of Chinook Salmon--An Addendum to the 1996 West Coast
Steelhead Factors for Decline Report;'' NMFS, 1996, ``Factors for
Decline--A Supplement to the Notice of Determination for West Coast
Steelhead Under the Endangered Species Act''). Our prior listing
determinations and technical reports concluded that all of the factors
identified in section 4(a)(1) of the ESA have played a role in the
decline of West Coast salmon and steelhead. In our 1998 threatened
listing determination for the Oregon Coast coho ESU (63 FR 42588;
August 10, 1998), we concluded that the decline of Oregon Coast coho
populations is the result of several longstanding, human-induced
factors (e.g., habitat degradation, water diversions, harvest, and
artificial propagation) that exacerbate the adverse effects of natural
environmental variability (e.g., floods, drought, and poor ocean
conditions). The following discussion briefly summarizes our findings
regarding the threats currently facing the Oregon Coast coho ESU. While
these threats are treated in general terms, it is important to
underscore that impacts from certain threats are more acute for some
populations in the ESU.
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
In many Oregon coastal streams, past human activities (e.g.,
logging, agriculture, gravel mining, urbanization) have resulted in
impediments to fish passage, degradation of stream complexity,
increased sedimentation, reduced water quality and quantity, loss and
degradation of riparian habitats, and loss and degradation of lowland,
estuarine, and wetland coho rearing habitats. The relevant issues are
whether current habitat conditions are adequate to support the ESU's
persistence (that is, whether the species is endangered or threatened
because of present destruction, modification, or curtailment of its
habitat or range) and whether habitat conditions are likely to worsen
in the future (that is, whether the species is endangered or threatened
because of threatened destruction, modification, or curtailment of its
habitat or range). Regarding the first issue, Oregon concluded in its
final assessment that the current condition of coho habitats is
sufficient to support viable populations and a viable ESU, as evidenced
by the ability of populations that were depressed during unfavorable
environmental conditions during the 1990s to rebound once conditions
moderated. This conclusion is different from the conclusion of the
slight majority of the BRT, which relied on the uncertainty about the
adequacy of current conditions in support of its finding that the ESU
was likely to become an endangered species within the foreseeable
future. We have considered both the majority and minority BRT opinions,
the information and analysis in Oregon's final assessment, and the
comments of NMFS scientists and staff (NMFS, 2005e), the public, and
peer reviewers on Oregon's draft and final assessments. Based on this
consideration, we conclude that the ESU is not likely to become an
endangered species in the foreseeable future because of present
destruction, modification or curtailment of its habitat or range (see
response to Comment 8).
Regarding the second issue, the threat of future habitat declines,
we describe in the response to Comment 14 and in NMFS (2005e) that
Oregon's analysis and other available information demonstrate that
there are some habitat elements that are likely to improve, some that
are likely to decline, and others that are likely to remain in their
current condition, and that there is a high level of uncertainty
associated with projections of future habitat conditions. Based on
these considerations, we find reasonable Oregon's conclusion that
habitat conditions overall are not likely to worsen. This conclusion is
different from the conclusion of the slight majority of the BRT, which
relied in part on the uncertainty about the future habitat conditions
to support a conclusion that the ESU is likely to become an endangered
species. We have considered: (1) The BRT's majority and minority
opinions; (2) the information and analysis in Oregon's final
assessment; and (3) the comments of NMFS scientists and staff, the
public, and peer reviewers on Oregon's draft and final assessments.
Based on this consideration, we conclude that the
[[Page 3046]]
ESU is not likely to become an endangered species in the foreseeable
future because of threatened destruction, modification or curtailment
of its habitat or range information.
B. Overutilization for Commercial, Recreational, Scientific or
Educational Purposes
Harvest rates on Oregon Coast coho populations ranged between 60
and 90 percent between the 1960s and 1980s (Good et al., 2005). Modest
harvest restrictions were achieved in the late 1980s, but harvest rates
remained high until most directed coho salmon harvest was prohibited in
1994. These restrictive harvest regulations developed concurrently with
the Oregon Plan and subsequently revised through the Pacific Fisheries
Management Council (PFMC) have imposed conservative restrictions on
direct and indirect fishery mortality, and appropriately consider
marine survival conditions and the biological status of naturally
produced coho populations. Under these revised regulations, harvest
rates are stipulated to be between zero and eight percent during
critically low spawner abundance, and may increase to a maximum
exploitation rate of 45 percent under high survival and abundance
conditions (Oregon, 2005-1). Empirical data over the last 10 years show
that harvest mortality for Oregon Coast coho has been maintained below
15 percent since the adoption of the revised regulations (Oregon, 2005-
1). We agree with the BRT's finding that overutilization has been
effectively addressed for Oregon Coast coho populations. We conclude
that the ESU is not in danger of extinction or likely to become
endangered in the foreseeable future because of overutilization.
C. Disease or Predation
Past species introductions and habitat modifications have resulted
in increased non-native predator populations, notably in coastal lake
habitats. Oregon's final assessment identified exotic fish species as
the primary limiting factor for three lake coho populations, although
it was not identified as a factor limiting other coho populations or
the ESU as a whole. Predation by increased populations of marine
mammals (principally sea lions) may influence salmon abundance in some
local populations when other prey species are absent and where physical
conditions lead to the concentration of adults and juveniles (e.g.,
Cooper and Johnson, 1992). However, the extent to which marine mammal
predation threatens the persistence of Oregon coast coho populations is
unknown. Although predation is a local concern for some populations, we
conclude that the ESU is not in danger of extinction or likely to
become endangered because of predation.
Infectious disease is one of many factors that can influence adult
and juvenile salmon survival. Salmonids are exposed to numerous
bacterial, protozoan, viral, and parasitic organisms in spawning and
rearing areas, hatcheries, migratory routes, and the marine
environment. Specific diseases such as bacterial kidney disease,
ceratomyxosis, columnaris, furunculosis, infectious hematopoietic
necrosis virus, redmouth and black spot disease, erythrocytic inclusion
body syndrome, and whirling disease, among others, are present and are
known to affect West Coast salmonids (Rucker et al., 1953; Wood, 1979;
Leek, 1987; Foott et al., 1994; Gould and Wedemeyer, undated). In
general, very little current or historical information exists to
quantify trends over time in infection levels and disease mortality
rates. However, studies have shown that naturally spawned fish tend to
be less susceptible to pathogens than hatchery-reared fish (Buchanon et
al., 1983; Sanders et al., 1992). Native salmon populations have co-
evolved with specific communities of these organisms, but the
widespread use of artificial propagation has introduced exotic
organisms not historically present in a particular watershed. Habitat
conditions such as low water flows and high temperatures can exacerbate
susceptibility to infectious diseases.
Aggressive hatchery reforms already implemented by Oregon efforts
have reduced the magnitude and distribution of hatchery fish releases
in the ESU, and consequently the interactions between hatchery- and
natural-origin fish and the potential transmission of infectious
diseases. Additionally, regulations controlling hatchery effluent
discharges into streams have reduced the potential of pathogens being
released into coho habitats. It is unlikely that the Oregon Coast coho
ESU is in danger of extinction or likely to become endangered because
of disease.
D. The Inadequacy of Existing Regulatory Mechanisms
Existing regulations governing coho harvest have dramatically
improved the ESU's likelihood of persistence. These regulations are
unlikely to change in the future, particularly because of the
involvement of the PFMC and NMFS. Regulations governing land use are
more problematic, as discussed in our response to comments, above. A
wide range of land uses and other activities affect salmon habitat,
some more amenable to regulation than others. In the range of Oregon
coast coho, the regulation of some activities and land uses will alter
past harmful practices, resulting in habitat improvements; the
regulation of other activities is inadequate to alter past harmful
practices, resulting in habitat conditions continuing in their present
state; and the regulation of still other activities and land uses will
lead to further degradation. Overall, we conclude that Oregon coast
coho ESU is not in danger of extinction, or likely to become endangered
in the foreseeable future, because of the inadequacy of existing
regulatory mechanisms.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Natural variability in ocean and freshwater conditions have at
different times exacerbated or mitigated the effects on Oregon Coast
coho populations of habitat limiting factors. As discussed in the
``Assessment of ESU Viability'' section above, there is considerable
uncertainty in predicting ocean-climate conditions into the foreseeable
future and their biological impacts on the Oregon Coast coho ESU. It is
likely that recent anomalous ocean conditions will result in decreased
returns for Oregon coast coho populations for the next few years (NMFS,
2005c). However, variability in ocean-climate conditions is expected,
and coho populations are similarly expected to fluctuate in response to
this natural environmental variability. It is uncertain whether
unfavorable ocean conditions will predominate in the foreseeable
future. Moreover, Oregon's final assessment tested the sensitivity of
the ESU to a prolonged period of poor ocean conditions and found it was
resilient. The slight majority of the BRT relied on uncertainty about
future ocean conditions in concluding that the ESU was likely to become
endangered in the foreseeable future. We have considered both the BRT's
majority and minority opinions; the comments of NMFS staff and
scientists, peer reviewers, and the public on Oregon's final
assessment; and the sensitivity analysis conducted by Oregon. We
conclude the ESU is not in danger of extinction or likely to become
endangered in the foreseeable future because of future poor ocean
conditions.
Prior to the 1990s, coho hatchery programs along the Oregon coast
posed substantial risks to the survival, reproductive fitness, and
diversity of natural populations. High numbers of hatchery coho were
released in most of the basins in the ESU, most programs
[[Page 3047]]
propagated non-native broodstocks, and naturally spawning hatchery-
origin strays were common in most natural production areas. Oregon's
aggressive hatchery reform efforts have resulted in substantial
reductions of this threat. Hatchery coho are released in less than half
of the populations in the ESU, and the magnitude of releases has
declined from a peak of 35 million smolts in 1981, to approximately
800,000 in 2005 (Oregon, 2005-1). Hatchery programs are currently
constrained to releasing no more than 200,000 smolts in any basin. The
reduction in the number of hatchery fish released has reduced the
potential for competition with, and predation on, natural coho. The
proportion of hatchery-origin fish on the spawning ground has been
reduced to below 10 percent in all but two populations in the ESU
(Oregon, 2005-1). All hatchery coho releases in the ESU are now marked,
affording improved monitoring and assessment of naturally produced coho
populations. Broodstock management practices have been modified to
minimize the potential for hatchery-origin fish to pose risks to the
genetic diversity of local natural populations. We conclude the ESU is
not in danger of extinction or likely to become endangered in the
foreseeable future because of hatchery practices.
Efforts Being Made to Protect the Species
Section 4(b)(1)(A) of the ESA requires the Secretary to make
listing determinations solely on the basis of the best scientific and
commercial data available after taking into account efforts being made
to protect a species. In making listing determinations we first assess
the species' level of extinction risk, identify factors that threaten
its continued existence, and assess existing efforts being made to
protect the species to determine if those measures ameliorate the risks
it faces. In our June, 14, 2004, proposed listing for the Oregon Coast
coho ESU (69 FR 33102), we evaluated relevant protective efforts and
determined that they did not substantially alter our finding that the
ESU is likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range. The reader
is referred to the June 14, 2004, proposed rule for a summary of
efforts other than those under the Oregon Plan being made to protect
Oregon Coast coho populations (69 FR 33102, at 33142). We included the
best information that was available at the time of the proposal
concerning the certainty of implementation and effectiveness of
measures under the Oregon Plan, among several other protective efforts.
We noted in our assessment of protective efforts that Oregon was in the
process of conducting a comprehensive assessment of the viability of
the Oregon Coast coho ESU and of the contributions of the Oregon Plan
in conserving the ESU.
Based on the available information we cannot conclude that habitat
conditions for this ESU will improve in the future (see the discussion
under Comment 14 above). At the same time, available evidence suggests
it is unlikely that habitat conditions for the ESU are likely to
degrade in the foreseeable future, so as to pose a risk to the survival
of the Oregon Coast coho ESU. Harvest reductions and improvements in
hatchery management have been fully implemented and their effectiveness
is manifested in the improved status of Oregon Coast coho populations.
The benefits of these noteworthy accomplishments under the Oregon Plan
were fully considered in the BRT's assessment of ESU extinction risk.
Conclusion
In making our final listing determination for the Oregon Coast coho
ESU we are making several predictions about the future. We must predict
the future persistence of the ESU assuming that current threats to the
species, as stated in Section 4(a)(1) of the ESA, continue into the
future, and next consider whether that assumption is correct--that is,
whether current natural and human-caused threats to the species are
likely to continue, grow worse, or improve in the future. We then must
predict how either the continuation or change of current threats will
affect the ESU's persistence. In our response to comments above, and in
our consideration of whether Oregon Coast coho warrant listing, we
address where the uncertainties lie, both in our assessment of the
ESU's persistence under current threats and in our projection of likely
future threats to the species, and how we have treated the
uncertainties.
The best available information on the biological status of Oregon
Coast coho indicates that the ESU is not in danger of extinction
throughout all or a significant portion of its range (i.e., the ESU
does not satisfy the definition of an endangered species under the
ESA). A species is considered ``threatened'' if it is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' As noted in the response
to Comment 19, above, we interpret the term ``likely'' to mean that the
best available information must indicate that a species is more likely
than not to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. While
acknowledging the uncertainties noted above, particularly regarding the
adequacy of current habitat conditions to support ESU viability, we
conclude from our review of information regarding factors affecting the
species that the Oregon Coast coho ESU is not likely to become
endangered in the foreseeable future as a consequence of: the loss or
degradation of its habitat or curtailment of its range;
overutilization; disease or predation; inadequacy of existing
regulatory mechanisms; or other natural or human-made factors.
Accordingly, we determine that the Oregon Coast coho ESU does not
warrant listing under the ESA at this time and therefore withdraw the
proposed listing.
Classification
National Environmental Policy Act (NEPA)
ESA listing decisions are exempt from the requirements to prepare
an environmental assessment or environmental impact statement under the
NEPA. See NOAA Administrative Order 216 6.03(e)(1) and Pacific Legal
Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981). Thus, we have
determined that the final listing determination for the Oregon Coast
coho ESU described in this notice is exempt from the requirements of
the NEPA of 1969.
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the final listing
determination described in this notice. In addition, this rule is
exempt from review under E.O. 12866. This final rule does not contain a
collection-of-information requirement for the purposes of the Paperwork
Reduction Act.
E.O. 13084--Consultation and Coordination with Indian Tribal
Governments
E.O. 13084 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
[[Page 3048]]
government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. The final listing
determination described in this notice do not impose substantial direct
compliance costs on the communities of Indian tribal governments.
Accordingly, the requirements of section 3(b) of E.O. 13084 do not
apply to this determination. Nonetheless, we will continue to inform
potentially affected tribal governments, solicit their input, and
coordinate on future management actions.
E.O. 13132--Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of those
circumstances is applicable to this determination.
Withdrawal of Proposed Critical Habitat
On December 14, 2004, we proposed critical habitat for the Oregon
Coast coho ESU (69 FR 74572). Because we are withdrawing the proposed
listing determination, we are also withdrawing the proposed critical
habitat designation.
References
A list of the referenced materials is available on the Internet at
http://www.nwr.noaa.gov, or upon request (see ADDRESSES section above).
Authority: 16 U.S.C. 1531 et seq.
Dated: January 11, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 06-502 Filed 1-18-06; 8:45 am]
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