[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Rules and Regulations]
[Pages 14528-14536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6813]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 980219043-9068-02; I.D. 011498A]
RIN 0648-AK52
Endangered and Threatened Species: Threatened Status for Ozette
Lake Sockeye Salmon in Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a
final determination that the Ozette Lake sockeye salmon (Oncorhynchus
nerka) Evolutionarily Significant Unit (ESU), located on Washington's
Olympic Peninsula, is a threatened species under
[[Page 14529]]
the Endangered Species Act (ESA) of 1973, as amended.
NMFS also reviewed the status of Baker River sockeye salmon,
previously designated as a candidate species. Based on that review,
NMFS has determined that Baker River sockeye salmon do not warrant
listing under the ESA, nor candidate status at this time. NMFS
previously determined that the Okanogan River, Lake Wenatchee, Quinault
Lake, and Lake Pleasant (all located in Washington) sockeye salmon ESUs
did not warrant listing. However, based on new information, NMFS
remains concerned about the status of the Okanogan River and Lake
Wenatchee ESUs, and will closely monitor their status.
At this time, NMFS is listing all naturally spawned populations of
Ozette Lake sockeye salmon belonging to the species' anadromous life
form. NMFS has examined the relationship between hatchery and natural
populations of sockeye salmon in this ESU and determined that none of
the hatchery populations are currently essential for recovery and,
therefore, the hatchery populations (and their progeny) are not listed.
NMFS will issue any protective regulations deemed necessary under
section 4(d) of the ESA for the listed ESU in a separate rulemaking.
Even though NMFS does not now issue protective regulations for this
ESU, Federal agencies are required under section 7 to consult with NMFS
if any activity they authorize, fund, or carry out may affect listed
sockeye salmon.
DATES: Effective May 24, 1999.
ADDRESSES: Branch Chief, Protected Resources Division, NMFS, 525 NE
Oregon St., Suite 500, Portland, OR 97232-2737.
FOR FURTHER INFORMATION CONTACT: Garth Griffin (503) 231-2005, or Chris
Mobley (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
Biological information for sockeye salmon can be found in recent
species status assessments by NMFS (Gustafson et al., 1997; NMFS,
1999a), Washington Department of Fisheries (WDF), Washington Department
of Wildlife, and Western Washington Treaty Tribes (WDF et al., 1993),
in species life history summaries (Pauley et al., 1989; Burgner, 1991;
Emmett et al., 1991), and in the Federal Register document announcing
the listing proposal (63 FR 11750, March 10, 1998).
Previous Federal ESA Actions Related to West Coast Sockeye and
Petition Background
The ESA actions on sockeye salmon in the Pacific Northwest are
extensive. The history of petitions received regarding this species is
summarized in the proposed rule published on March 10, 1998 (63 FR
11750). This final determination was initiated in response to a
petition filed by Professional Resource Organization-Salmon (PRO-
Salmon) on March 14, 1994. PRO-Salmon petitioned to list Baker River
sockeye salmon as well as eight populations of other species of Pacific
salmon under the ESA. In response to this petition and to the more
general concerns about the status of Pacific salmon throughout the
region, NMFS published a document in the Federal Register on September
12, 1994 (59 FR 46808) announcing that the petition presented
substantial scientific information indicating that a listing may be
warranted and that the agency would initiate ESA status reviews for
sockeye and other species of anadromous salmonids in the Pacific
Northwest. The comprehensive review considered all populations in the
States of Washington, Idaho, and Oregon. Hence, the status review for
sockeye salmon encompassed, but was not restricted to, the population
identified in the PRO-Salmon petition.
During the coastwide sockeye salmon status review, NMFS assessed
the best available scientific and commercial data, including technical
information from Federal, state, and tribal co-managers and other
interested parties. The NMFS Biological Review Team (BRT), composed of
staff from NMFS' Northwest Fisheries Science Center, reviewed and
evaluated scientific information provided by the co-managers and other
sources and completed a coastwide status review for sockeye salmon
(Gustafson et al., 1997). Early drafts of the BRT review were
distributed to state and tribal fisheries managers and peer reviewers
who are experts in the field to ensure that NMFS' evaluation was
accurate and complete.
Based on the results of the BRT report, and after considering other
information and existing conservation measures, NMFS published a
proposed listing determination (63 FR 11750, March 10, 1998) which
identified six ESUs of sockeye salmon in Washington. The Ozette Lake
ESU was proposed for listing as a threatened species and the Baker
River ESU was classified as a candidate species. NMFS concluded that
the remaining four ESUs (Okanogan River, Lake Wenatchee, Quinault Lake,
and Lake Pleasant ESUs) did not warrant listing proposals.
During the year between the proposed rule and this final
determination, NMFS requested public comment and solicited peer and co-
manager review of the agency's proposal and received comments and new
scientific information concerning the status of the Ozette Lake and
Baker River ESUs, as well as the status of other ESUs for which listing
was deemed not warranted. NMFS also received information regarding the
relationship of existing hatchery stocks to naturally spawned
populations in the Ozette Lake ESU. This new information was evaluated
by NMFS' BRT and published in an updated status review that draws
conclusions about the delineation and risk assessment for the proposed
Ozette Lake ESU (NMFS, 1998). Based on the updated NMFS status review
and other information, NMFS now issues its final listing determination
for the Ozette Lake ESU and conclusions regarding the candidate Baker
River ESU. Copies of the NMFS status review and related documents are
available upon request (see ADDRESSES).
Summary of Comments and Information Received in Response to the
Proposed Rule
NMFS held 21 public hearings in California, Oregon, Idaho, and
Washington to solicit comments on this and other salmonid listing
proposals (63 FR 16955, April 7, 1998; 63 FR 30455, June 4, 1998).
During the 112-day public comment period, NMFS received 8 written
comments regarding the sockeye salmon proposed rule. NMFS also sought
new data and analyses from tribal and state co-managers and met with
them to formally discuss technical issues associated with the sockeye
salmon status review. Technical information was considered by NMFS' BRT
in its re-evaluation of ESU boundaries and risk assessments; this
information is discussed in the updated status review of sockeye salmon
(NMFS, 1998).
A number of comments addressed issues pertaining to the proposed
critical habitat designation for sockeye salmon. NMFS will address
these comments in a forthcoming Federal Register document announcing
the agency's conclusions about critical habitat for the listed ESU.
On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife
Service (FWS), published a series of policies regarding listings under
the ESA, including a policy for peer review of scientific data (59 FR
34270). In accordance with this policy, NMFS solicited 10 individuals
to take part in
[[Page 14530]]
a peer review of its west coast sockeye salmon status review and
proposed rule. All individuals solicited are recognized experts in the
field of sockeye salmon biology, and represent a broad range of
interests, including Federal, state, and tribal resource managers, and
academia. Three of the 10 individuals took part in the peer review of
this action; comments from peer reviewers were considered by NMFS' BRT
and are summarized in the updated status review document (NMFS, 1998).
A summary of comments received in response to the proposed rule is
presented here.
Issue 1: Sockeye Salmon Biology and Ecology
Comments: Several commenters and peer reviewers asserted that
resident sockeye salmon (kokanee) should be included in the listed
anadromous sockeye salmon ESU. Several commenters also stated that NMFS
should address how the presence of kokanee populations may ameliorate
risks facing anadromous populations within the listed ESU. A peer
reviewer emphasized his belief that Ozette Lake kokanee should be made
part of the Ozette Lake sockeye salmon ESU, despite the very large
genetic distance between beach-spawning Ozette Lake sockeye salmon and
Ozette Lake kokanee. This reviewer also stated, that given sufficient
time and selective pressures, Ozette Lake kokanee will reintroduce the
anadromous form of Oncorhynchus nerka (O. nerka) to Ozette Lake. The
reviewer argued that kokanee represent the remaining tributary-spawning
gene pool, and that without them, anadromous production will not expand
beyond what the limited beach habitat can produce. On the other hand,
another peer reviewer agreed with both the separate ESU designation for
Ozette Lake sockeye salmon and with the exclusion of kokanee from this
ESU, based on information presented in the status review. This reviewer
also provided information (unpublished mtDNA data) on genetic
relationships between the Ozette Lake ESU and selected O. nerka
populations in Washington and British Columbia.
Response: While conclusive evidence does not yet exist regarding
the relationship of resident and anadromous forms of O. nerka, NMFS
believes available evidence suggests that resident sockeye and kokanee
should not be included in listed sockeye ESUs in cases where the
strength and duration of reproductive isolation would provide the
opportunity for adaptive divergence in sympatry. This is demonstrated
by the very large genetic differences between Ozette Lake sockeye
salmon and Ozette Lake kokanee. However, where resident ``kokanee-
sized'' O. nerka (potential ``residual sockeye salmon'') are observed
spawning with, or adjacent to, sockeye salmon on spawning beaches in
Ozette Lake, they are to be considered part of the Ozette Lake sockeye
salmon ESU.
Several lines of evidence support comments that kokanee may produce
anadromous offspring, and thus, represent a valuable life form for
anadromous sockeye salmon. Under certain conditions, anadromous and
resident O. nerka are capable of having offspring that express the
alternate life history form; that is, anadromous fish can produce
nonanadromous offspring, and vice versa (Ricker, 1938; Fulton and
Pearson, 1981; Scott, 1984; Chapman et al., 1995). However, the number
of outmigrants that successfully return as adults is typically quite
low. In Ozette Lake, where access to and from the ocean is relatively
easy and the energetic costs of migration to and from the ocean are
negligible, the sockeye salmon morphology has not been reported to
occur on the tributary spawning grounds of kokanee (prior to the recent
sockeye salmon stocking efforts in these tributaries). If Ozette Lake
kokanee were producing anadromous outmigrants that were surviving to
adulthood, individuals expressing the sockeye salmon morphology would
most likely have been seen on the kokanee spawning grounds.
NMFS believes resident fish can help buffer extinction risks to an
anadromous population by mitigating depensatory effects in spawning
populations, by providing offspring that migrate to the ocean and enter
the breeding population of sockeye salmon, and by providing a
``reserve'' gene pool in fresh water that may persist through times of
unfavorable conditions for anadromous fish. In spite of these potential
benefits, presence of resident populations is not a substitute for
conservation of anadromous populations. A particular concern is
isolation of resident populations by human-caused barriers to
migration. This interrupts normal population dynamics and population
genetic processes and can lead to loss of a genetically based trait
(anadromy). As discussed in NMFS' ``species identification'' paper
(Waples, 1991), the potential loss of anadromy in distinct population
segments may, in and of itself, warrant listing the ESU as a whole.
Issue 2: Description and Status of Sockeye Salmon ESUs
Comment: Several general comments were received about the overall
analytical process for delineating sockeye salmon ESUs. One peer
reviewer stated that the sockeye salmon status review is incomplete
because it is limited to the anadromous form only and does not include
designation of kokanee ESUs. One commenter criticized NMFS' ESU
concept, arguing that the ESA does not require a Distinct Population
Segment (DPS) to be reproductively isolated from other conspecific
populations, that it is not possible to determine evolutionary
significance of an ESU with genetic data, and that the ESU concept does
not properly address the ecological significance of a DPS.
Additionally, a peer reviewer stated that his unpublished analysis of
mtDNA haplotype data for several populations of sockeye salmon in
Washington does not, in general, support the ``decision to define ESUs
at the lake level'' although he recognized the observed genetic
differentiation of sockeye salmon in Washington, as shown by allozyme
data.
Response: Regarding the identification of ESUs, NMFS relies on a
policy describing how it will apply the ESA definition of ``species''
to anadromous salmonid species (56 FR 58612, November 20, 1991). More
recently, NMFS and FWS published a joint policy defining DPSs (61 FR
4722, February 7, 1996). The earlier policy is more detailed and
applies specifically to Pacific salmonids and, therefore, was used for
this determination. This policy states that one or more naturally
reproducing salmonid populations will be considered to be distinct and,
hence, species under the ESA, if they represent an ESU of the
biological species. To be considered an ESU, a population must satisfy
two criteria: (1) It must be reproductively isolated from other
population units of the same species, and (2) it must represent an
important component in the evolutionary legacy of the biological
species. The first criterion, reproductive isolation, need not be
absolute, but must have been strong enough to permit evolutionarily
important differences to occur in different population units. The
second criterion is met if the population contributes substantially to
the ecological or genetic diversity of the species as a whole. Guidance
on applying this policy is contained in a NOAA Technical Memorandum
entitled ``Definition of 'Species' Under the Endangered Species Act:
Application to Pacific Salmon'' (Waples, 1991) and in
[[Page 14531]]
a recent scientific paper by Waples (1995).
The National Research Council (NRC) has recently addressed the
issue of defining species under the ESA (NRC, 1995). Their report found
that protecting DPSs is soundly based on scientific evidence, and
recommends applying an ``Evolutionary Unit'' (EU) approach in
describing these segments. The NRC report describes the high degree of
similarity between the EU and ESU approaches (differences being largely
a matter of application between salmon and other vertebrates), and
concluded that either approach would lead to similar DPS descriptions
most of the time.
Comment: One commenter criticized NMFS' risk assessment approach,
arguing that NMFS' evaluation of risks from artificial propagation was
arbitrary, and that the overall risk assessment is fundamentally flawed
due to an absence of references to standard conservation biology
literature (particularly that on risk assessment methods), a lack of
unambiguous criteria for risk, the lack of quantitative population
modeling, and the use of subjective opinion within the risk matrix
approach.
Response: For nearly a decade, NMFS scientists have been
conducting salmonid status reviews under the ESA using a risk
assessment approach that includes an evaluation of: (1) absolute
numbers of fish and their spatial and temporal distribution; (2)
current abundance in relation to historical abundance and current
carrying capacity of the habitat; (3) trends in abundance; (4) natural
and human-influenced factors that cause variability in survival and
abundance; (5) possible threats to genetic integrity (e.g., from strays
or outplants from hatchery programs); and (6) recent events (e.g., a
drought or changes in harvest management) that have predictable short-
term consequences for abundance of the ESU. In determining whether an
ESU is threatened or endangered, BRT scientists must make judgements
about the overall risk to the ESU based on likely interactions among,
and cumulative effects of, these various status indicators. NMFS
acknowledges that some elements of the agency's approach are inherently
subjective (e.g., forecasting effects of natural risk factors). Still,
NMFS believes that its approach to making listing determinations is
scientifically credible and invites any constructive suggestions on
ways to improve risk assessments under the ESA.
Comment: One commenter disagreed with the BRT's conclusion that the
Okanogan River and Lake Wenatchee ESUs are near historic abundance
levels. They cited evidence that total Columbia Basin sockeye salmon
run size may have exceeded 4,000,000 fish at a time when the Okanogan
Basin had 41 percent of the accessible lake rearing area in the
Columbia Basin, and suggest that historical Okanogan River escapement
was probably in excess of 1,000,000 fish (not the 12,000 fish suggested
in the status review). Further, they commented that the status of the
Wenatchee stock is of particular concern, with a recent steep decline
and very low escapements despite negligible downstream harvest. The
Okanogan stock has also exhibited a steep recent decline, and both
stocks have poor prospects for 1999 runs.
Response: Despite finding that these populations did not warrant
ESA protection at the conclusion of the initial status review for west
coast sockeye salmon, NMFS sought additional information regarding the
status of Okanogan River and Lake Wenatchee sockeye salmon ESUs in the
updated status review (NMFS, 1998). NMFS agrees that the recent trends
in abundance are of concern and the agency intends to closely monitor
these ESUs.
Comment: One commenter questioned the genetic integrity of the
Ozette Lake sockeye salmon ESU and, thus, its designation as a separate
species under the ESA. Based on the introduction of non-native sockeye
salmon (Quinault Lake sockeye salmon were stocked in 1982) and sockeye
salmon/kokanee hybrids (released in 1991 and 1992), this commenter
stated that at issue is ``whether the non-native population has bred
with the native population to such an extent that the evolutionarily
important adaptations that distinguished the original population have
been lost.'' He suggested that more research is needed to better
determine the proper limits of the Ozette Lake sockeye salmon ESU
before determining that the ESU warrants listing.
Response: The history of artificial propagation in the Ozette Lake
basin is extensive. All releases prior to 1983 were single, large,
plantings of out-of-basin sockeye. It is unlikely that these practices
resulted in the loss of genetic fitness and unique adaptations of the
historic Ozette Lake sockeye salmon population. NMFS will work with
hatchery managers in the Ozette Lake ESU to ensure that current
artificial propagation practices are conducted in a manner that will
not result in the loss of genetic characteristics or adaptive traits.
Issue 3: Factors Contributing to the Decline of West Coast Sockeye
Salmon
Comment: Many commenters identified factors they believe have
contributed to the decline of west coast sockeye salmon. Factors
identified include overharvest by commercial fisheries, predation by
pinnipeds and piscivorous fish species, effects of artificial
propagation, and the deterioration or loss of freshwater and marine
habitats. Despite concurrence with NMFS' assessment of the risk factors
facing Ozette Lake sockeye salmon, one peer reviewer questioned the
consistency of statements regarding siltation in tributaries as a cause
of sockeye salmon decline compared to statements regarding abundance of
kokanee, which would also presumably be affected by such siltation.
Another peer reviewer argued that listing was not warranted for this
ESU because the dominant brood years in the four-year abundance cycle
(1984, 1988, 1992 and 1996) are stable, not declining. He also
commented that risk was decreasing, not increasing, so becoming
endangered in the future is not likely. As evidence of decreasing risk,
he noted that the lake is protected within Olympic National Park, the
watershed is recovering from logging in the 1960s and 1970s, lake
rearing habitat is not limiting, and there is no longer any tribal
harvest. In addition, a review panel was unable to determine which
factors were responsible for any decline in Ozette Lake sockeye salmon.
This reviewer also commented that the genetic effects of hatchery
production are misrepresented in the status review.
Response: NMFS agrees that a multitude of factors, past and
present, have contributed to the decline of west coast sockeye salmon.
NMFS also recognizes that natural environmental fluctuations have
likely played a role in the species' recent decline in abundance.
However, NMFS believes other human-induced impacts (e.g., incidental
catch in certain fisheries, hatchery practices, and habitat
modification) have played an equally significant role in this species'
decline. Moreover, these human-induced impacts have likely reduced the
species' resiliency to such natural factors for decline as drought and
poor ocean conditions (NMFS 1996a).
For the Ozette Lake ESU, risks perceived by the BRT were focused on
low current abundance and trends and variability in abundance; current
escapements average below 1,000 adults per year, implying a moderate
degree of risk from small-population genetic and demographic
variability with little room for further declines before abundances
[[Page 14532]]
reach critically low levels. Other concerns include siltation of beach
spawning habitat, very low abundance now compared to harvests in the
1950s, and potential genetic effects of past interbreeding with
genetically dissimilar kokanee.
With respect to predation issues raised by some commenters, it is
worth noting that NMFS published reports recently describing the
impacts of California sea lions and Pacific harbor seals upon salmonids
on the coastal ecosystems of Washington, Oregon, and California (NMFS,
1997 and 1999). These reports conclude that in certain cases where
pinniped populations co-occur with depressed salmonid populations,
salmon populations may experience severe impacts due to predation. An
example of such a situation is Ballard Locks, Washington, where sea
lions are known to consume significant numbers of adult winter
steelhead. These reports further conclude that data regarding pinniped
predation are quite limited, and that substantial additional research
is needed to fully address this issue. Existing information on the
seriously depressed status of many salmonid stocks is sufficient to
warrant actions to remove pinnipeds in areas of co-occurrence where
pinnipeds prey on depressed salmonid populations (NMFS, 1997 and 1999).
Comment: Two commenters questioned NMFS' interpretation of
population trends, arguing that the main decline in abundance occurred
between 1948 and 1958, and that populations have not declined
substantially since then. They noted that declines cited by NMFS were
not statistically significant, and that an analysis of the four
individual brood cycles (4-year lags) shows two increasing and two
declining. They argue that there is a consistent strong run every 4
years indicating that the population is no longer declining
significantly. They also provided new information on the history of
logging in the Ozette Lake Basin, noting that the main population
declines occurred before there was substantial logging in the basin.
They argue that overharvest at sea could be a major limiting factor,
and that sockeye salmon tributary spawning may have been eliminated by
harvest practices focusing on the early part of the run. Finally, they
contended that re-establishment of tributary spawning by anadromous
fish is limited by the genetic capacity of remaining lake-spawning
fish.
Response: Although Ozette Lake sockeye salmon populations were
heavily harvested in fisheries prior to the most extensive timber
harvest activities in the watershed, the impacts of intense and
frequent timber harvest and associated road building (conducted prior
to state regulation of forest practices) in the watershed in the years
following the high fishery harvest events have been extensively
documented; these forest practice activities have no doubt contributed
to the widespread sedimentation of key portions of lake tributaries,
lakeshore spawning beaches, and outwash fans. Timber harvest and road
building may not have caused the declining sockeye salmon abundance,
but have contributed to the failure of Ozette Lake sockeye populations
to rebuild since the cessation of commercial sockeye salmon harvests in
1974 (there has been no direct sockeye harvest of any kind since 1982).
Additionally, although there is a single strong brood-year, the ESU as
a whole faces significant risks due to the weakness of the other brood-
year returns.
Issue 4: Designation of Baker River Sockeye Salmon as a Candidate
Species
Comment: One peer reviewer and a commenter contended that the Baker
River ESU should not be a candidate for listing, although their
arguments were based on different considerations. The peer reviewer
argued that because the Baker Lake spawning beaches are essentially a
hatchery, this is not a natural stock, and, therefore, is not subject
to the ESA. He also argued that although human intervention may pose a
risk to long-term evolution of the population, it will be required for
the run to continue. Alternatively, both the peer reviewer and
commenter believed that abundance and trends do not demonstrate high
risk, and that the artificial spawning beaches are highly productive,
producing very high numbers of fry per female. Finally, they commented
that water quality and disease are not serious concerns.
Response: Concerns over these issues prompted NMFS to conduct a
renewed evaluation of Baker River sockeye salmon status in the year
since publication of the proposed rule. As a result of this review,
NMFS determined that continued significant increases in abundance since
the status review eased concerns over the risks facing this population.
NMFS acknowledges that significant human intervention is required to
maintain the productivity of this ESU. Although changes in the suite of
activities could pose risks to this population, NMFS concludes that
Baker River sockeye salmon are increasing substantially and that
listing is not warranted.
Issue 5: Consideration of Existing Conservation Measures
Comment: Several commenters argued that NMFS had not considered
existing conservation programs designed to enhance sockeye salmon
stocks within particular ESUs. Some commenters provided specific
information on some of these programs to NMFS concerning the efficacy
of existing conservation plans.
Response: NMFS has reviewed existing conservation plans and
measures relevant to the ESUs addressed in this final rule and
concludes that existing conservation efforts in some cases have helped
ameliorate risks facing the species. Some of these conservation efforts
are discussed here in ``Existing Conservation Efforts.''
While several of the conservation plans addressed in the comments
received show promise for ameliorating risks facing sockeye salmon,
some of the measures described in comments have not been implemented.
Some of these measures are also geographically limited to individual
river basins or political subdivisions, thereby improving conditions
for only a small portion of the entire ESU. Some of these measures are
not mature enough to accurately measure their efficacy in protecting or
restoring the sockeye salmon populations that are the subject of this
determination.
Summary of Factors Affecting Sockeye Salmon
Section 4(a)(1) of the ESA and NMFS listing regulations (50 CFR
part 424) set forth procedures for listing species. The Secretary of
Commerce must determine, through the regulatory process, if a species
is endangered or threatened based upon any one or a combination of the
following factors: (1) The present or threatened destruction,
modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or human-made
factors affecting its continued existence.
The factors threatening naturally spawned sockeye salmon throughout
the species' range are numerous and varied. The present depressed
condition of many populations is the result of human-induced factors
(e.g., incidental harvest in certain fisheries, hatchery practices, and
habitat modification) that serve to exacerbate the adverse effects of
natural factors (e.g., competition and predation) or environmental
variability
[[Page 14533]]
from such factors as drought and poor ocean conditions.
As noted previously, the comments received regarding the relative
importance of various risk factors contributing to the decline of
sockeye salmon essentially reinforce NMFS' description of factors in
the listing proposal. A summary of these factors and their role in the
decline of the Ozette Lake ESU is presented in NMFS' March 10, 1998,
Federal Register document (63 FR 11750), as well as several documents
in the agency's west coast sockeye salmon administrative record (WDF et
al., 1993; Gustafson et al., 1997; NMFS, 1999).
Efforts Being Made to Protect West Coast Sockeye Salmon
Under section 4(b)(1)(A) of the ESA, the Secretary of Commerce is
required to make listing determinations solely on the basis of the best
scientific and commercial data available and after taking into account
efforts being made to protect a species. During the status review for
west coast sockeye salmon and for other salmonids, NMFS reviewed
protective efforts ranging in scope from regional strategies to local
watershed initiatives; some of the major efforts are summarized in the
March 10, 1998, proposed rule (63 FR 11774). Since then, NMFS has
received little new information regarding these or other efforts being
made to protect sockeye salmon. Notable efforts within the range of the
Ozette Lake ESU continue to be the Northwest Forest Plan (NFP),
Washington Wild Stock Restoration Initiative, and Washington Wild
Salmonid Policy.
In addition, a recovery planning group composed of the Makah and
Quileute Indian Tribes, the National Parks Service, and Washington
Department of Fish and Wildlife has recently initiated a collaborative
planning effort to determine how to increase the abundance of naturally
spawning Ozette Lake sockeye salmon to historic and self-sustaining
population levels. NMFS and FWS will assist this effort, and other
state agencies and interested parties will be invited to participate.
The Makah tribe, which has operated a supplementation program in Ozette
Lake since the early 1980's, is contributing a draft supplementation
plan as a starting point for the planning group.
While NMFS recognizes that many of the ongoing protective efforts
are likely to promote the conservation of Ozette Lake sockeye salmon
and other salmonids, some are very recent and few address conservation
at a scale that is adequate to protect and conserve the Ozette Lake
ESU. NMFS concludes that existing protective efforts are inadequate to
preclude a listing for this ESU. However, NMFS will continue to
encourage these and future protective efforts and will work with
Federal, state, and tribal fisheries managers to evaluate, promote, and
improve efforts to conserve sockeye and other salmon populations.
Determination
Section 3 of the ESA defines an endangered species as any species
in danger of extinction throughout all or a significant portion of its
range, and a threatened species as any species likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. Section 4(b)(1) of the ESA requires
that listing determinations be based solely on the best scientific and
commercial data available, after conducting a review of the status of
the species and after taking into account those efforts, if any, being
made to protect such species.
Ozette Lake Sockeye Salmon ESU - Based on results from its
coastwide status review for sockeye salmon, and after taking into
account comments and new information described earlier, NMFS concludes
that the Ozette Lake ESU should be classified as threatened under the
ESA. The majority of the NMFS BRT concluded that this ESU is likely to
become endangered in the foreseeable future if present conditions
continue. Furthermore, NMFS concludes that current protective efforts
are insufficient to change the BRT's forecast of extinction risk.
In the listed Ozette Lake ESU, all naturally spawned populations of
sockeye salmon residing below impassable natural barriers (e.g., long-
standing, natural waterfalls) are listed as threatened. NMFS' intent in
listing only ``naturally spawned'' populations is to protect sockeye
salmon stocks that are indigenous to (i.e., part of) the ESU. In this
listing determination NMFS has identified non-indigenous populations
that co-occur with fish in the listed ESU. The agency recognizes the
difficulty of differentiating between indigenous and non-indigenous
fish, especially when the latter are not readily distinguishable with a
mark (e.g., fin clip). Also, matings in the wild of either type would
generally result in progeny that would be treated as listed fish (i.e.,
they would have been naturally spawned in the geographic range of the
listed ESU and have no distinguishing mark). Therefore, to reduce
confusion regarding which sockeye salmon are considered listed within
the ESU, NMFS will treat all naturally spawned fish as listed for
purposes of the ESA. Efforts to determine the conservation status of
the ESU would similarly focus on the contribution of indigenous fish to
the listed ESU. It should be noted that NMFS will take actions
necessary to minimize or prevent non-indigenous sockeye salmon from
spawning in the wild unless the fish are specifically part of a
recovery effort.
NMFS has examined the relationship between hatchery and natural
populations of sockeye salmon in this ESU, and has assessed whether any
hatchery populations are essential for their recovery. In examining
this relationship, NMFS scientists consulted with hatchery managers to
determine whether any hatchery populations are similar enough to
native, naturally spawned fish to be considered part of the biological
ESU (NMFS, 1999a). The evaluation also considered whether any hatchery
population should be considered essential for the recovery of a listed
ESU. NMFS concludes that the sockeye salmon stock reared at Umbrella
Creek Hatchery should be considered part of the Ozette Lake ESU, based
on the fact that broodstock are derived from wild beach-spawning adults
and that hatchery stock is not perpetuated by spawning fish returning
to the hatchery. NMFS also concludes that the Umbrella Creek Hatchery
stock is not essential for recovery. NMFS' opinion on this second
question was influenced by the presence of significant numbers of
sockeye salmon still spawning naturally on Olsen's Beach and in Allen's
Bay in Ozette Lake; these fish could be used in recovery efforts. NMFS
also concludes that if progeny of the sockeye salmon/kokanee hybrid
stock reared at Umbrella Creek Hatchery still exist, they should not be
considered part of the ESU. This decision was based on the wide genetic
divergence of Ozette Lake stream-spawning kokanee and beach-spawning
sockeye salmon and the likelihood that hybrids of these stocks would
resemble neither of the native O. nerka stocks in Ozette Lake.
The determination that a hatchery stock is not ``essential'' for
recovery does not preclude it from playing a role in recovery. Any
hatchery population that is part of the ESU is available for use in
recovery if conditions warrant. In this context, an ``essential''
hatchery population is one that is vital to incorporate into recovery
efforts (for example, if the associated natural population(s) were
extinct or at high risk of extinction). Under such circumstances, NMFS
would consider taking the administrative action of listing existing
hatchery fish.
[[Page 14534]]
NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon
Under the Endangered Species Act'' (58 FR 17573, April 5, 1993)
provides guidance on the treatment of hatchery stocks in the event of a
listing. Under this policy, ``progeny of fish from the listed species
that are propagated artificially are considered part of the listed
species and are protected under the ESA.'' (58 FR 17573, April 5,
1993). In the case of the Umbrella Creek Hatchery stock, the protective
regulations that NMFS will issue shortly may except take of naturally
spawned listed fish for use as broodstock as part of an overall
conservation program. According to the interim policy, the progeny of
these hatchery-wild or wild-wild crosses would also be listed. Given
the requirement for an acceptable conservation plan as a prerequisite
for collecting broodstock, NMFS determines that it is not necessary to
consider the progeny of intentional hatchery-wild or wild-wild crosses
as listed.
In addition, NMFS believes it is desirable to incorporate naturally
spawned fish into the hatchery population to ensure that genetic and
life history characteristics do not diverge significantly from the
natural population's. NMFS therefore concludes that it is not
inconsistent with NMFS' interim policy, nor with the policy and
purposes of the ESA, to consider these progeny as part of the ESU but
not listed.
Baker River Sockeye Salmon ESU - For the reasons described in the
March 10, 1998, proposed rule (63 FR 11750) and earlier in this
document, NMFS concludes that the Baker River sockeye salmon ESU is not
presently in danger of extinction, nor is it likely to become
endangered in the foreseeable future if present conditions continue.
NMFS will no longer classify this ESU as a candidate species.
Other Sockeye Salmon ESUs - While other ESUs and populations were
not extensively reviewed at this time, NMFS did review updated trend
information for the Lake Wenatchee and Okanogan River ESUs. Based on
this new information, NMFS is concerned about the status of the
Okanogan River and Lake Wenatchee ESUs, and will continue to closely
monitor their status.
Prohibitions and Protective Measures
Section 4(d) of the ESA requires NMFS to issue protective
regulations that it finds necessary and advisable to provide for the
conservation of a threatened species. Section 9(a) of the ESA prohibits
violations of protective regulations for threatened species promulgated
under section 4(d). The 4(d) protective regulations may prohibit, with
respect to threatened species, some or all of the acts which section
9(a) of the ESA prohibits with respect to endangered species. These
9(a) prohibitions and 4(d) regulations apply to all individuals,
organizations, and agencies subject to U.S. jurisdiction. NMFS will
publish 4(d) protective regulations for the listed Ozette Lake sockeye
salmon ESU in a separate Federal Register document. The process for
completing the 4(d) rule will provide the opportunity for public
comment on the proposed protective regulations.
In the case of threatened species, NMFS also has flexibility under
section 4(d) to tailor the protective regulations based on the contents
of available conservation measures. Even though existing conservation
efforts and plans are not sufficient to preclude the need for listing
at this time, they are nevertheless valuable for improving watershed
health and restoring salmon populations. In those cases where well-
developed and reliable conservation plans exist, NMFS may choose to
incorporate them into the protective regulations and recovery plans.
NMFS has already adopted 4(d) protective regulations that excepts a
limited range of activities from general section 9 take prohibitions.
For example, the interim 4(d) rule for Southern Oregon/Northern
California Coasts coho salmon (62 FR 38479, July 18, 1997) excepts
habitat restoration activities conducted in accordance with approved
plans and fisheries conducted in accordance with an approved state
management plan. In the future, 4(d) rules may except from take
prohibitions activities identified in conservation plans governing such
activities as forestry, agriculture, and road construction when such
activities are conducted in accordance with the plans.
These are all examples where NMFS may apply modified section 9
prohibitions in light of the protections provided in a conservation
plan that is adequately protective. There may be other circumstances as
well in which NMFS would use the flexibility of section 4(d). For
example, in some cases there may be a healthy population within an
overall ESU that is listed. In such a case, it may not be necessary to
apply the full range of prohibitions available in section 9. NMFS
intends to use the flexibility of the ESA to respond appropriately to
the biological condition of each ESU and to the strength of efforts to
protect it.
Section 7(a)(4) of the ESA requires that Federal agencies confer
with NMFS on any actions likely to jeopardize the continued existence
of a species proposed for listing and on actions likely to result in
the destruction or adverse modification of proposed critical habitat.
For listed species, section 7(a)(2) of the ESA requires Federal
agencies to ensure that activities they authorize, fund, or conduct are
not likely to jeopardize the continued existence of a listed species or
to destroy or adversely modify its critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with NMFS.
Examples of Federal actions likely to affect sockeye salmon in the
listed ESU include authorized land management activities (e.g., timber
sales and harvest) of the U.S. Forest Service (USFS). Federal actions,
including the Army Corps of Engineers (COE) section 404 permitting
activities under the Clean Water Act, COE permitting activities under
the River and Harbors Act, National Pollution Discharge Elimination
System permits issued by the Environmental Protection Agency, highway
projects authorized by the Federal Highway Administration, and Federal
Energy Regulatory Commission licenses for non-Federal development and
operation of hydropower, may also require consultation. These actions
will likely be subject to ESA section 7 consultation requirements that
may result in conditions designed to achieve the intended purpose of
the project and avoid or reduce impacts to sockeye salmon and its
habitat within the range of the listed ESU.
There are likely to be Federal actions ongoing in the range of the
listed ESUs at the time these listings become effective. Therefore,
NMFS will review all ongoing actions that may affect the listed species
with Federal agencies and will complete formal or informal
consultations, where requested or necessary, for such actions pursuant
to ESA section 7(a)(2).
Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with
authority to grant exceptions to the ESA's ``take'' prohibitions.
Section 10(a)(1)(A) scientific research and enhancement permits may be
issued to entities (Federal and non-Federal) conducting research that
involves a directed take of listed species.
NMFS has issued section 10(a)(1)(A) research or enhancement permits
for other listed species (e.g., Snake River chinook salmon and
Sacramento River winter-run chinook salmon) for a number of activities,
including trapping and tagging, electroshocking to determine population
presence and abundance, removal of fish from irrigation ditches, and
collection of
[[Page 14535]]
adult fish for artificial propagation programs. NMFS is aware of
sampling efforts for sockeye in the listed ESU. These and other
research efforts could provide critical information regarding sockeye
salmon distribution and population abundance.
Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take
listed species. The types of activities potentially requiring a section
10(a)(1)(B) incidental take permit include the release of artificially
propagated fish by tribal, state or privately operated and funded
hatcheries, state or university research on species other than sockeye
salmon not receiving Federal authorization or funding, the
implementation of state fishing regulations, and timber harvest
activities on non-Federal lands.
Take Guidance
On July 1, 1994, (59 FR 34272) NMFS and FWS published a policy
committing the Services to identify, to the maximum extent practicable
at the time a species is listed, those activities that would or would
not constitute a violation of section 9 of the ESA. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and on-going activities within the species' range. NMFS
believes that, based on the best available information, the following
actions will not result in a violation of section 9: (1) Possession of
sockeye salmon from the listed ESU acquired lawfully by permit issued
by NMFS pursuant to section 10 of the ESA, or by the terms of an
incidental take statement pursuant to section 7 of the ESA; and (2)
federally funded or approved projects that involve such activities as
silviculture, grazing, mining, road construction, dam construction and
operation, discharge of fill material, stream channelization or
diversion for which a section 7 consultation has been completed, and
when such an activity is conducted in accordance with any terms and
conditions provided by NMFS in an incidental take statement accompanied
by a biological opinion pursuant to section 7 of the ESA. As described
previously in this notice, NMFS may adopt 4(d) protective regulations
that except other activities from section 9 take prohibitions for
threatened species.
Activities that NMFS believes could potentially harm, injure or
kill sockeye salmon in the listed ESU and result in a violation of
section 9 include, but are not limited to: (1) Land-use activities that
adversely affect sockeye salmon habitat in this ESU (e.g., logging,
grazing, farming, road construction in riparian areas, and areas
susceptible to mass wasting and surface erosion); (2) diverting water
through an unscreened or inadequately screened diversion at times when
juvenile sockeye salmon are present; (3) physical disturbance or
blockage of the streambed or lakeshore where spawners or redds are
present concurrent with the disturbance. The disturbance could be
mechanical disruption from creating push-up dams, gravel removal,
mining, or other work within a stream channel, trampling or smothering
of redds by livestock in the streambed, driving vehicles or equipment
across or down the streambed, and similar physical disruptions; (4)
discharges or dumping of toxic chemicals or other pollutants (e.g.,
sewage, oil, gasoline) into waters or riparian areas supporting the
listed sockeye salmon; (5) pesticide and herbicide applications; (6)
blocking fish passage through fills, dams, or impassable culverts; (7)
interstate and foreign commerce of listed sockeye salmon and import/
export of listed sockeye salmon without an ESA permit, unless the fish
were harvested pursuant to this rule; (8) collecting or handling of
listed sockeye salmon (permits to conduct these activities are
available for purposes of scientific research or to enhance the
propagation or survival of the species); and (9) introduction of non-
native species likely to prey on listed sockeye salmon or displace them
from their habitat. This list is not exhaustive. It is intended to
provide some examples of the types of activities that might or might
not be considered by NMFS as constituting a take of listed sockeye
salmon under the ESA and its regulations. Questions regarding whether
specific activities will constitute a violation of this rule, and
general inquiries regarding prohibitions and permits, should be
directed to NMFS (see ADDRESSES).
Effective Date of Final Listing
Given the cultural, scientific, and recreational importance of this
species, and the broad geographic range of this listing, NMFS
recognizes that numerous parties may be affected by this listing.
Therefore, to permit an orderly implementation of the consultation
requirements associated with this action, this final listing will take
effect May 24, 1999.
Conservation Measures
Conservation benefits are provided to species listed as endangered
or threatened under the ESA through increased recognition, recovery
actions, Federal agency consultation requirements, and prohibitions on
taking. Increased recognition through listing promotes public awareness
and conservation actions by Federal, state, and local agencies, private
organizations, and individuals.
Several conservation efforts are underway that may reverse the
decline of west coast sockeye salmon and other salmonids. NMFS is
encouraged by these significant efforts, which could provide all
stakeholders with an approach to achieving the purposes of the ESA
(i.e., protecting and restoring native fish populations and the
ecosystems upon which they depend) that is less regulatory. NMFS will
continue to encourage and support these initiatives as important
components of recovery planning for sockeye salmon and other salmonids.
To succeed, protective regulations and recovery programs for
sockeye salmon will need to focus on conserving aquatic ecosystem
health. NMFS intends that Federal lands and Federal activities play a
primary role in preserving listed populations and the ecosystems upon
which they depend. However, throughout the range of the listed ESUs,
sockeye salmon habitat occurs and can be affected by activities on
state, tribal or private land.
Conservation measures that could be implemented to help conserve
the species are listed here (the list is generalized and does not
constitute NMFS' interpretation of a recovery plan under section 4(f)
of the ESA). Progress on some of these is being made to differing
degrees in specific areas.
1. Measures could be taken to promote practices that are more
protective of (or restore) sockeye salmon habitat across a variety of
land and water management activities. Activities affecting this habitat
include timber harvest; agriculture; livestock grazing and operations;
pesticide and herbicide applications; construction and urban
development; road building and maintenance; sand and gravel mining;
stream channelization; dredging and dredged spoil disposal; dock and
marina construction; diking and bank stabilization; irrigation
withdrawal, storage, and management; mineral mining; wastewater/
pollutant discharge; wetland and floodplain alteration; habitat
restoration projects; and woody debris/structure removal from rivers
and estuaries. Each of these activities could be modified to ensure
that watersheds and specific river reaches are adequately protected in
the short- and long-terms.
2. Fish passage could be restored at barriers to migration through
the installation or modification of fish ladders, upgrade of culverts,
or removal of barriers.
[[Page 14536]]
3. Harvest regulations could be modified to protect listed sockeye
salmon populations.
4. Artificial propagation programs could be modified to minimize
negative impacts (e.g., genetic introgression, competition, disease,
etc.) upon native populations of sockeye salmon.
5. Predator control/relocation programs could be implemented in
areas where predators pose a significant threat to sockeye salmon.
6. Measures could be taken to improve monitoring of sockeye salmon
populations and their habitat.
7. Federal agencies such as the USFS, U.S. Bureau of Land
Management, Federal Energy Regulatory Commission, U.S. Army Corp of
Engineers, U.S. Department of Transportation, and U.S. Bureau of
Reclamation could review their management programs and use their
discretionary authorities to formulate conservation plans pursuant to
section 7(a)(1) of the ESA.
NMFS encourages non-Federal landowners to assess the impacts of
their actions on threatened or endangered salmonids. In particular,
NMFS encourages state and local governments to use their existing
authorities and programs, and encourages the formation of watershed
partnerships to promote conservation in accordance with ecosystem
principles. These partnerships will be successful only if state,
tribal, and local governments, landowner representatives, and Federal
and non-Federal biologists all participate and share the goal of
restoring salmon to the watersheds.
Critical Habitat
Section 4(a)(3)(A) of the ESA requires that, to the extent prudent
and determinable, critical habitat be designated concurrently with the
listing of a species. Section 4(b)(6)(C)(ii) provides that, where
critical habitat is not determinable at the time of final listing, NMFS
may extend the period for designating critical habitat by not more than
one additional year.
In the proposed rule (63 FR 11774, March 10, 1998), NMFS described
the areas that may constitute critical habitat for the Ozette Lake
sockeye salmon ESU. Since then, NMFS has received numerous comments
from the public concerning the process and definition of critical
habitat for sockeye salmon and other salmonids. Also, due to statutory
time limitations, NMFS has not yet consulted with affected Indian
tribes regarding the designation of critical habitat in areas that may
affect tribal trust resources, tribally owned fee lands, or the
exercise of tribal rights.
Given these remaining unresolved issues, NMFS determines at this
time that a final critical habitat designation is not determinable for
this ESU since additional time is required to complete the needed
biological assessments and evaluate special management considerations
affecting critical habitat. The agency therefore extends the deadline
for designating critical habitat for 1 year until such assessments can
be made and after appropriate consultations are completed.
Classification
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th Cir.
1981), NMFS has categorically excluded all ESA listing actions from
environmental assessment requirements of the National Environmental
Policy Act (NEPA) under NOAA Administrative Order 216-6.
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act (RFA) are not applicable to the listing
process. In addition, this final rule is exempt from review under E.O.
12866.
This rule has been determined to be major under the Congressional
Review Act (5 U.S.C. 801 et seq.)
At this time NMFS is not promulgating protective regulations
pursuant to ESA section 4(d). In the future, prior to finalizing its
4(d) regulations for the threatened sockeye salmon ESU, NMFS will
comply with all relevant NEPA and RFA requirements.
References
A complete list of all references cited herein is available upon
request (see ADDRESSES) and can also be obtained from the internet at
www.nwr.noaa.gov.
Change in Enumeration of Threatened Species
In the proposed rule issued on March 10, 1998 (63 FR 11750), Ozette
Lake sockeye salmon was designated the letter (o) in Sec. 227.4. Since
March 10, NMFS has issued a final rule consolidating and reorganizing
existing regulations regarding implementation of the ESA. In this
reorganization, Sec. 227.4 has been redesignated, as Sec. 223.102(a),
therefore, Ozette Lake sockeye salmon is designated in this final rule
as paragraph (a) (20) in Sec. 223.102(a). The regulatory text of the
proposed rule remains unchanged in this final rule.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: March 15, 1999.
Andrew A. Rosenberg, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 223 is
amended as follows:
PART 223-THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31
U.S.C. 9701.
2. In Sec. 223.102, paragraph (a)(19) is added to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(a) * * *
(19) Ozette Lake sockeye salmon (Oncorhynchus nerka). Includes all
naturally spawned populations of sockeye salmon in Ozette Lake and
streams and tributaries flowing into Ozette Lake, Washington.
* * * * *
[FR Doc. 99-6813 Filed 3-24-99; 8:45 am]
BILLING CODE 3510-22-F
