36074 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

Source of flooding and location

# Depth in

feet above

ground.

*Elevation

in feet

(NGVD).

Maps are available for inspection at the Mineral

County Courthouse, Clerk

and Treasurer’s Office, Corner of 1st and A Street, Hawthorne, Nevada.

OKLAHOMA

Roger Mills County and Incorporated Areas (FEMA

Docket No. 7306)

White Shield Creek Tributary

‘‘B’’:

At its confluence with White

Shield Creek ...................... *1,737

Approximately 150 feet upstream of Steele Street ..... *1,778

White Shield Creek:

At State Route 34 ................. *1,702

Approximately 50 feet upstream from Steele Street *1,754

Memorial Park Tributary:

At its confluence with Sergeant Major Creek ............. *1,938

Approximately 884 feet upstream from U.S. Highway

283 (Main Street) .............. *1,977

Dry Creek:

At its confluence with Sergeant Major Creek ............. *1,941

Approximately 8,400 feet upstream of confluence with

Sergeant Major Creek ....... *1,985

Sergeant Major Creek:

At its confluence with

Washita River .................... *1,923

Approximately 8,600 feet upstream from confluence

with Dry Creek ................... *1,974

Washita River:

At State Route 34 ................. *1,703

Approximately 16,800 feet

upstream from its confluence with Sergeant

Major Creek ....................... *1,949

Maps are available for inspection at the County

Courthouse, Llmales and

Broadway Avenue, Cheyenne, Oklahoma.

Maps are available for inspection at City Hall, 714

Main Street, Hammon, Oklahoma.

Maps are available for inspection at City Hall, 317 N.

Broadway, Cheyenne, Oklahoma.

OREGON

Clackamas County (Unincorporated Areas) (FEMA

Docket No. 7302)

Tickle Creek:

Approximately 2,600 feet

downstream of Southeast

362nd Avenue ................... *672

Approximately 2,350 feet upstream of Southeast 395th

Avenue .............................. *1,011

Maps are available for inspection at the Clackamas

County Department of Transportation and Development,

902 Abernathy Road, Oregon

City, Oregon.

Source of flooding and location

# Depth in

feet above

ground.

*Elevation

in feet

(NGVD).

———

Sandy (City), Clackamas

County (FEMA Docket No.

7302)

Tickle Creek:

Approximately 1,980 feet

downstream of 362nd Avenue ..................................... *684

Approximately 1,620 feet upstream of Highway 211 ..... *946

Maps are available for inspection at the Planning and

Development Department,

39250 Pioneer Boulevard,

Sandy, Oregon.

TEXAS

Kerr County and Incorporated Areas (FEMA

Docket No. 7278)

Stream TC–1:

Approximately 2,300 feet

downstream of Interstate

Highway 10 ........................ *1,662

Just upstream of Interstate

Highway 10 ........................ *1,718

Stream QC–2:

Just downstream of State

Highway 16 ........................ *1,706

Just upstream of Interstate

Highway 10 ........................ *1,761

Stream QC–1:

Just upstream of Leslie Road *1,688

Approximately 200 feet upstream of Interstate Highway 10 ............................... *1,801

Quinlan Creek:

Just upstream of State Highway 27 ............................... *1,606

Approximately 900 feet upstream of Interstate Highway 10 ............................... *1,719

Town Creek:

Just upstream of State Highway 27 ............................... *1,624

Approximately 200 feet

downstream of Schreiner

Road .................................. *1,630

Approximately 900 feet upstream of Interstate Highway 10 ............................... *1,689

Elm Creek:

Approximately 600 feet upstream of Goat Creek

Road .................................. *1,649

Approximately 800 feet upstream of Laurel Wood

Drive .................................. *1,764

Camp Meeting Creek:

Approximately 500 feet

downstream of Preston

Trail .................................... *1,592

Approximately 2,100 feet upstream of Southway Drive *1,699

Maps are available for inspection at the Upper Guadalupe River Authority, 125

Lehmann Drive, Kerrville,

Texas.

Maps are available for inspection at the City of

Kerrville, 800 Junction Highway, Kerrville, Texas.

Source of flooding and location

# Depth in

feet above

ground.

*Elevation

in feet

(NGVD).

WASHINGTON

Clark County (Unincorporated Areas) (FEMA

Docket No. 7250)

East Fork Lewis River:

Approximately 17,000 feet

downstream of Daybreak

Road .................................. *32

Approximately 400 feet

downstream of Daybreak

Road .................................. *75

Maps are available for inspection at the Clark County

Department of Community

Development, Development

Services Division, Office of

Engineering Review, 1408

Franklin Street, Vancouver,

Washington.

(Catalog of Federal Domestic Assistance No.

83.100, ‘‘Flood Insurance.’’)

Dated: May 17, 2000.

Michael J. Armstrong,

Associate Director for Mitigation.

[FR Doc. 00–14293 Filed 6–6–00; 8:45 am]

BILLING CODE 6718–04–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 223

[Docket No. 000202022–0156–02; I.D.

012100F]

RIN 0648–AN58

Endangered and Threatened Species:

Threatened Status for One Steelhead

Evolutionarily Significant Unit (ESU) in

California

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: Following completion of a

comprehensive status review of west

coast steelhead (Oncorhynchus mykiss,

or O. mykiss) populations throughout

Washington, Oregon, Idaho, and

California, NMFS published a proposed

rule to list 10 ESUs as threatened or

endangered under the Endangered

Species Act (ESA) on August 9, 1996.

One of these steelhead ESUs, the

Northern California ESU, was proposed

for listing as a threatened species.

Because of scientific disagreements,

NMFS deferred its final listing

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36075

determination for five of these steelhead

ESUs, including the Northern California

ESU, on August 18, 1997. After

soliciting and reviewing additional

information to resolve these

disagreements, NMFS published a final

determination in March 1998 that the

Northern California ESU did not

warrant listing under the ESA because

available scientific information and

conservation measures indicated the

ESU was at a lower risk of extinction

than at the time of the proposed rule.

Because the State of California did not

implement conservation measures that

NMFS considered critically important

in its decision to not list the Northern

California steelhead ESU, NMFS

completed an updated status review for

the ESU and reassessed the State and

Federal conservation measures that

were in place to protect the ESU. Based

on this reconsideration, NMFS proposed

to list the Northern California steelhead

ESU as a threatened species under the

ESA on February 11, 2000.

After considering public comments on

the proposed determination, NMFS now

issues a final rule to list the Northern

California ESU of steelhead as a

threatened species. Within the Northern

California ESU, only naturally spawned

populations of steelhead (and their

progeny) residing below naturally

occurring and man-made impassable

barriers (e.g., impassable waterfalls and

dams) are listed. NMFS has examined

the relationship between hatchery and

natural populations of steelhead in this

ESU and concludes hatchery

populations are not essential for

recovery; therefore, no hatchery

populations are listed. At this time,

NMFS is listing only the anadromous

life forms of O. mykiss in this ESU.

NMFS intends to designate critical

habitat and promulgate protective

regulations under section 4(d) of the

ESA for this ESU in separate

rulemakings.

DATES: Effective August 7, 2000.

ADDRESSES: Assistant Regional

Administrator, Protected Resources

Division, NMFS, Southwest Region, 401

West Ocean Blvd., Suite 4200, Long

Beach, CA 90802–4213.

FOR FURTHER INFORMATION CONTACT:

Craig Wingert, 562–980-4021, or Chris

Mobley, 301–713–1401.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related

to West Coast Steelhead

The history of petitions NMFS has

received regarding west coast steelhead

is summarized in a final rule and notice

of determination for five steelhead ESUs

(Lower Columbia River; Central Valley,

California; Oregon Coast; Klamath

Mountains Province; and northern

California ESUs) that was published on

March 19, 1998 (63 FR 13347). The most

comprehensive petition was submitted

by Oregon Natural Resources Council

and 15 co-petitioners on February 16,

1994. In response to this petition, NMFS

assessed the best available scientific and

commercial data, including technical

information from Pacific Salmon

Biological Technical Committees

(PSBTCs) and interested parties in

Washington, Oregon, Idaho, and

California, and convened a Biological

Review Team (BRT), composed of staff

from NMFS’ Northwest and Southwest

Fisheries Science Centers and

Southwest Regional Office, as well as a

representative of the U.S. Geological

Survey Biological Resources Division

(formerly the National Biological

Service) to conduct a coast-wide status

review for west coast steelhead (Busby

et al., 1996).

Based on the results of the BRT’s

status review, an analysis of Federal,

State and local conservation measures,

and other information which NMFS

determined constituted the best

scientific and commercial data

available, NMFS published a proposed

listing determination (61 FR 41541,

August 9, 1996) that identified 15 ESUs

of steelhead in the states of Washington,

Oregon, Idaho, and California. Ten of

these ESUs, including the northern

California ESU, were proposed for

listing as threatened or endangered

species, four were found not warranted

for listing, and one was identified as a

candidate for listing.

On August 18, 1997, NMFS published

a final rule listing five ESUs as

threatened and endangered under the

ESA (62 FR 43937). In a separate notice

published on the same day, NMFS

determined substantial scientific

disagreement remained for five

proposed ESUs, including the northern

California steelhead ESU (62 FR 43974,

August 18, 1997). In accordance with

section 4(b)(6)(B)(i) of the ESA, NMFS

deferred its decision on these five

steelhead ESUs for 6 months for the

purpose of soliciting additional data.

During this 6-month period of deferral,

NMFS received new scientific

information regarding the status of these

proposed steelhead ESUs. This new

information was evaluated by NMFS’

BRT which prepared both an updated

status review for these five ESUs

(Memorandum to William Stelle and

William Hogarth from M. Schiewe,

December 18, 1997, Status of Deferred

and Candidate ESUs of West Coast

Steelhead (NMFS, 1997a)), and a review

of the associated hatchery populations

(Memorandum to William Stelle and

William Hogarth from Michael Schiewe,

January 13, 1998, Status Review Update

for Deferred ESUs of West Coast

Steelhead: Hatchery Populations

(NMFS, 1998a)).

Based on a review of the updated

scientific information for these ESUs, as

well as a review and evaluation of

Federal, state, and local conservation

measures reducing the threats to these

ESUs, NMFS issued a final rule (63 FR

13347, March 19, 1998) listing two ESUs

as threatened (Lower Columbia River

and Central Valley California), and a

notice of determination that three ESUs

(Oregon Coast, Klamath Mountains

Province, and Northern California) did

not warrant listing. NMFS’

determination that these three ESUs did

not warrant listing was based on the

best available scientific and commercial

data which indicated these ESUs were

at a lower risk of extinction than at the

time of the proposed listing

determination. Even though the risks

confronting these ESUs had been

reduced to a point at which listing was

not warranted, NMFS still expressed

concerns about the status of these three

ESUs in the notice of determination,

and, therefore, identified them as

candidate species which the agency

would continue to monitor.

NMFS’s March 19, 1998 (63 FR

13347), decision not to list the Northern

California steelhead ESU was based

largely on a determination that

sufficient Federal and state conservation

measures were in place to reduce threats

to the ESU such that the proposed

threatened listing was unnecessary. The

Federal and state conservation measures

upon which NMFS based this

determination included: (1)

implementation of a March 11, 1998,

Memorandum of Agreement (MOA)

between NMFS and the State of

California (NMFS/California MOA,

1998), with particular importance given

to implementation of those provisions

in the MOA which were intended to

improve non-Federal forest land

protections in the ESU (81 percent of

land ownership is non-Federal land); (2)

implementation of more restrictive inriver harvest regulations by California

which were intended to reduce

mortality and increase the viability of

naturally reproducing steelhead

populations; and (3) improved

protections to habitat and naturally

reproducing steelhead from expanded

habitat protection and restoration

efforts, improvements in the

management of hatchery steelhead

stocks, and expanded population

monitoring.

36076 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

At the time of its decision not to list

the Northern California ESU, NMFS

considered the protection and

restoration of freshwater spawning,

rearing, and migratory habitat on nonFederal lands to be essential for the

long-term survival and recovery of this

ESU because non-Federal lands

represented such a large portion of the

available habitat (63 FR 13347, March

19, 1998). Because of NMFS’ concerns

regarding the preponderance of private

timber lands and timber harvest in the

northern California ESU, the NMFS/

California MOA contained several

provisions calling for the review and

revision of California’s forest practice

rules (FPRs), and a review of their

implementation and enforcement by

January 1, 2000. NMFS considered full

implementation of these critical

provisions within the specified time

frame to be essential for achieving

properly functioning habitat conditions

for steelhead in this ESU.

In accordance with the NMFS/

California MOA, a scientific review

panel was established by the State to

review the California FPRs, including

their implementation and enforcement.

The scientific review panel completed

its review and provided the State’s

Board of Forestry (BOF) with its

findings and recommendations in June

1999. In its findings, the review panel

concluded that California’s FPRs,

including their implementation through

the existing timber harvest plan process,

do not ensure protection of anadromous

salmonid habitat and populations. To

address these shortcomings, and as

specified in the NMFS/California MOA,

the California Resources Agency and

CalEPA jointly presented the BOF with

a proposed rule change package in July

1999. Following several months of

public review, the Board of Forestry

took no action on the package in

October 1999, thereby precluding any

possibility of implementing

improvements in California’s FPRs by

January 1, 2000, as the State committed

to do in the NMFS/California MOA.

Although NMFS’ March 19, 1998,

decision not to list the northern

California ESU concluded that

improvements in steelhead harvest and

hatchery management would provide

immediate conservation benefits to this

ESU, an essential component of the

decision was based on NMFS’

expectation that changes in the State’s

FPRs would be implemented by January

1, 2000. Because these critical

conservation measures were not being

implemented by the State of California,

and therefore, were not reducing threats

to this ESU that were anticipated at the

time of its March 19, 1998, decision not

to list the ESU, NMFS determined that

a formal reconsideration of the status of

this ESU was warranted (December 3,

1999, Memorandum from Rodney R.

McInnis and William Stelle, Jr. to

Penelope D. Dalton (NMFS, 1999)).

As part of this reconsideration, the

Southwest Fisheries Science Center

(SWFSC) completed an updated status

review for the Northern California

steelhead ESU in January, 2000 which

concluded that its biological status had

changed little since NMFS’ steelhead

BRT determined in December 1997 that

the ESU was likely to become

endangered in the foreseeable future.

NMFS also conducted a re-evaluation of

Federal and state conservation measures

that were in place to protect this ESU,

including the implementation and

success of measures such as the NMFS/

California MOA that were considered

important factors in the original

decision not to list the ESU. Based on

the updated status review and reassessment of conservation measures,

NMFS concluded that the Northern

California steelhead ESU was likely to

become endangered in the foreseeable

future, and therefore, proposed to list

the ESU as a threatened species under

the ESA on February 11, 2000 (65 FR

6960).

Steelhead Life History and Background

Biological information for west coast

steelhead (Oncorhynchus mykiss) and

the northern California ESU in

particular can be found in steelhead

status assessments conducted by NMFS

(Busby et al., 1996; NMFS, 1997a;

NMFS, 2000) and in previous Federal

Register documents (61 FR 41541,

August 9, 1996; 63 FR 13347, March 19,

1998; 65 FR 6960, February 11, 2000).

A summary of steelhead life history

follows.

O. mykiss exhibits one of the most

complex suites of life history traits of

any salmonid species. Individuals may

exhibit anadromy (meaning they migrate

as juveniles from fresh water to the

ocean, and then return to spawn in fresh

water) or freshwater residency (meaning

they reside their entire life in fresh

water). Resident forms are usually

referred to as ‘‘rainbow’’ or ‘‘redband’’

trout, while anadromous life forms are

termed ‘‘steelhead.’’ Few detailed

studies have been conducted regarding

the relationship between resident and

anadromous O. mykiss and as a result,

the relationship between these two life

forms is poorly understood. The

scientific name for the biological species

that includes both steelhead and

rainbow trout has been changed from

Salmo gairdneri to O. mykiss. This

change reflects the premise that all

trouts from western North America

share a common lineage with Pacific

salmon.

Steelhead typically migrate to marine

waters after spending 2 years in fresh

water. They then reside in marine

waters for typically 2 or 3 years prior to

returning to their natal stream to spawn

as 4- or 5-year-olds. Unlike other Pacific

salmon, steelhead are iteroparous,

meaning they are capable of spawning

more than once before they die.

However, it is rare for steelhead to

spawn more than twice before dying;

most that do so are females. Steelhead

adults typically spawn between

December and June (Bell, 1990; Busby et

al., 1996). Depending on water

temperature, steelhead eggs may

incubate in ‘‘redds’’ (nesting gravels) for

1.5 to 4 months before hatching as

‘‘alevins’’ (a larval life stage dependent

on food stored in a yolk sac). Following

yolk sac absorption, young juveniles or

‘‘fry’’ emerge from the gravel and begin

actively feeding. Juveniles rear in fresh

water from 1 to 4 years, then migrate to

the ocean as ‘‘smolts.’’

Biologically, steelhead can be divided

into two reproductive ecotypes, based

on their state of sexual maturity at the

time of river entry and the duration of

their spawning migration. These two

ecotypes are termed ‘‘stream maturing’’

and ‘‘ocean maturing.’’ Stream maturing

steelhead enter fresh water in a sexually

immature condition and require several

months to mature and spawn. Ocean

maturing steelhead enter fresh water

with well developed gonads and spawn

shortly after river entry. These two

reproductive ecotypes are more

commonly referred to by their season of

freshwater entry (i.e., summer [stream

maturing] and winter steelhead [ocean

maturing]). The Northern California

ESU contains populations of both

winter and summer steelhead.

Two major genetic groups or

‘‘subspecies’’ of steelhead occur on the

west coast of the United States: a coastal

group and an inland group, separated in

the Fraser and Columbia River Basins

approximately by the Cascade crest

(Huzyk & Tsuyuki, 1974; Allendorf,

1975; Utter & Allendorf, 1977; Okazaki,

1984; Parkinson, 1984; Schreck et al.,

1986; Reisenbichler et al., 1992).

Behnke (1992) proposed classifying the

coastal subspecies as O. m. irideus and

the inland subspecies as O. m. gairdneri.

These genetic groupings apply to both

anadromous and nonanadromous forms

of O. mykiss. Both coastal and inland

steelhead occur in Washington and

Oregon. California is thought to have

only coastal steelhead while Idaho has

only inland steelhead. The northern

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36077

California steelhead ESU is part of the

coastal grouping.

Historically, steelhead were

distributed throughout the North Pacific

Ocean from the Kamchatka Peninsula in

Asia to the northern Baja Peninsula.

Presently, the species distribution

extends from the Kamchatka Peninsula,

east and south along the Pacific coast of

North America, to at least Malibu Creek

in southern California. There are

infrequent anecdotal reports of

steelhead occurring as far south as the

Santa Margarita River in San Diego

County (McEwan & Jackson, 1996). In

1999, juvenile O. mykiss suspected of

being the progeny of steelhead were

reported from San Mateo Creek which is

in northernmost San Diego County, just

north of the Santa Margarita River.

Historically, steelhead likely inhabited

most coastal streams in Washington,

Oregon, and California as well as many

inland streams in these states and Idaho.

However, during this century, over 23

indigenous, naturally reproducing

stocks of steelhead are believed to have

been extirpated, and many more are

thought to be in decline in numerous

coastal and inland streams in

Washington, Oregon, Idaho, and

California. Forty-three stocks have been

identified by Nehlsen et al. (1991) as

being at moderate or high risk of

extinction.

Summary of Comments Received in

Response to the Proposed Rule

Following NMFS proposal to list 10

steelhead ESUs in 1996, including the

Northern California ESU (61 FR 41541),

a total of 16 public hearings were held

in California, Oregon, Idaho, and

Washington to solicit comments on the

proposed rule. During the 90-day public

comment period, NMFS received nearly

1,000 written comments on the

proposed rule from Federal, state, and

local government agencies, Indian

tribes, non-governmental organizations,

the scientific community, and other

individuals. A number of comments

addressed specific technical issues

pertaining to a particular geographic

region or O. mykiss population. These

technical comments were considered by

NMFS’ steelhead BRT in its reevaluation of ESU definitions and

status, including the Northern California

steelhead ESU, and were discussed in

the updated status review report

(NMFS, 1997a).

During the 60-day public comment

period that followed publication of the

proposal to list this ESU (65 FR 6960),

NMFS received numerous written

comments and also held one public

hearing in Eureka, California to solicit

comments on the proposal. A total of 20

individuals presented testimony at this

public hearing, with the majority

expressing their opposition to the

proposed listing. During the 60-day

public comment period that followed

publication of the proposed rule, NMFS

received 44 written comments from

Federal, state, and local government

agencies, Indian tribes, nongovernmental organizations, and other

individuals. In contrast to the public

hearing, the majority of written

comments were supportive of the

proposal. A number of comments

addressed issues pertaining to the

designation of critical habitat which was

not proposed at the time of the listing

proposal. Several commenters requested

NMFS promulgate an ESA 4(d) rule that

would allow continued catch and

release angling opportunities in coastal

streams occurring within the Northern

California steelhead ESU. At least one

commenter resubmitted comments that

had originally been submitted to NMFS

when this ESU was first proposed for

listing in 1996.

A summary of comments received in

response to the proposed rule follows.

Issue 1: Sufficiency and Accuracy of

Scientific Information and Analysis

Comment 1: Some commenters

questioned the sufficiency and accuracy

of data NMFS employed in the listing

proposal.

Response: Section 4(b)(1)(A) of the

ESA requires that NMFS make its listing

determinations solely on the basis of the

best available scientific and commercial

data, after reviewing the status of the

species and taking into account any

efforts being made to protect such

species. NMFS believes that information

contained in the agency’s original status

review (Busby et al., 1996), together

with more recent information (NMFS,

1997a; NMFS, 1998a; NMFS, 2000),

represents the best scientific and

commercial information presently

available for the Northern California

steelhead ESU addressed in this final

rule. NMFS has made every effort to

conduct an exhaustive review of all

available information and has solicited

information and opinion from all

interested parties.

Comment 2: Some comments

suggested that the ESA does not provide

for the creation of ESUs and that ESUs

do not correspond to species,

subspecies, or distinct population

segments (DPSs) that are specifically

identified in the ESA. Further, NMFS’

use of genetic information (allozyme- or

DNA-derived information) to determine

ESU boundaries was criticized. It was

argued that allozyme-based

electrophoretic data cannot be used to

imply either evolutionary significance

or local adaptation. Some commenters

felt that information was lacking

concerning a number of ‘‘key’’ criteria

for defining the Northern California

steelhead ESU, such as phenotypic

differences, evolutionary significance,

or ecological significance of various

summer and winter steelhead

populations. Commenters contended

that NMFS did not find any life history,

habitat, or phenotypic characteristics

that were unique to any of the steelhead

populations discussed.

Response: General issues relating to

ESUs, Distinct Population Segments

(DPSs), and the ESA have been

discussed extensively in past Federal

Register documents. Regarding

application of its ESU policy, NMFS

relies on its policy describing how it

will apply the ESA definition of

‘‘species’’ to anadromous salmonid

species published in 1991 (56 FR 58612,

November 20, 1991). More recently,

NMFS and the U.S. Fish and Wildlife

Service published a joint policy, that is

consistent with NMFS’ policy, regarding

the definition of ‘‘distinct population

segments’’ (61 FR 4722, February 7,

1996). The earlier policy is more

detailed and applies specifically to

Pacific salmonids, and therefore, was

used for this determination. This policy

indicates that one or more naturally

reproducing salmonid populations will

be considered to be distinct and, hence,

a 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, does not have to be absolute

but must have been strong enough to

permit evolutionarily important

differences to occur in different

population units. The second criterion

is met if the population contributes

substantially to the ecological or genetic

diversity of the species as a whole.

Guidance on applying this policy is

contained in a NOAA Technical

Memorandum entitled ‘‘Definition of

‘Species’ Under the Endangered Species

Act: Application to Pacific Salmon’’

(Waples, 1991) and in a more recent

scientific paper by Waples (1995).

NMFS identified all west coast

steelhead ESUs including the Northern

California ESU in the original steelhead

status review, using the best available

scientific and commercial information.

As discussed in the original status

review, genetic data were used

primarily to evaluate the criterion

36078 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

regarding reproductive isolation, not

evolutionary significance. In some

cases, there was a considerable degree of

confidence in the ESU determinations.

The west coast steelhead status review

describes a variety of characteristics that

support the ESU delineations for this

species, including ecological and life

history parameters.

Comment 3: Some commenters

suggested that listing of the Klamath

Mountains Province (KMP) steelhead

ESU was also warranted based on the

rationale NMFS provided for its

decision to propose listing the Northern

California steelhead ESU.

Response: NMFS’ decision not to

reconsider the KMP steelhead ESU for

listing is based on the determination

that there are sufficient Federal and

state conservation measures in place to

reduce the threats to the ESU such that

listing is not warranted. The Federal

and state conservation measures which

NMFS bases this determination on

include: (1) the large portion of Federal

land ownership in the ESU (64 percent

for the entire ESU and 80 percent in the

California portion of the ESU) coupled

with successful implementation of the

Northwest Forest Plan on Federal lands

which reduced habitat risks; (2)

substantial changes to the management

of recreational fisheries and artificial

propagation programs by the states of

Oregon and California which are

reducing impacts to steelhead; and (3)

general improvements to habitat

conditions throughout the ESU resulting

from state-wide conservation strategies

and monitoring efforts in both Oregon

and California. In California, these

efforts include implementation of the

California Department of Fish and

Game’s (DFG) strategic management

plan for KMP steelhead ESU, the State’s

Watershed Protection Program which

includes an ongoing habitat restoration

program, and the NMFS/California

MOA which assures implementation of

steelhead angling regulation changes,

changes in the management of hatchery

steelhead programs, habitat protections

on non-Federal land, and expanded

steelhead monitoring. In Oregon, these

efforts include the implementation of

conservation measures contained in the

Oregon Plan for Salmon and

Watersheds.

Issue 2: Status Assessment for the

Northern California Steelhead ESU

Comment 4: Some commenters

suggested that risk assessments were

made in an arbitrary manner and that

NMFS did not rely on the best available

science. Several commenters questioned

NMFS’ methodology for determining

whether the Northern California

steelhead ESU warranted listing. In

some cases, such commenters also

expressed opinions regarding whether

listing was warranted.

Response: Throughout the status

review for west coast steelhead and all

subsequent updates, NMFS has solicited

and evaluated the best available

scientific and commercial data for the

species. NMFS believes that these

reviews, coupled with considerable

input from the public, co-managers,

peer reviewers, and other species

experts, clearly demonstrate that its

listing determinations are not arbitrary,

but instead are based on an open and

rigorous scientific assessment.

NMFS has identified a number of

factors that should be considered in

evaluating the level of risk faced by an

ESU, including: (1) absolute numbers of

fish and their spatial and temporal

distribution; (2) current abundance in

relation to historical abundance and

current carrying capacity of the habitat;

(3) trends in abundance; (4) natural and

human-influenced factors that cause

variability in survival and abundance;

(5) possible threats to genetic integrity

(e.g., from strays or outplants from

hatchery programs); and (6) recent

events (e.g., a drought or changes in

harvest management) that have

predictable short-term consequences for

abundance of the ESU. These factors

were considered by NMFS in the

original 1996 status review and all

subsequent updated reviews (NMFS,

1997a; NMFS, 2000) and served as the

basis for agency determinations

regarding the biological status of the

Northern California steelhead ESU.

Issue 3: Factors Contributing to the

Decline of Northern California

Steelhead ESU

Comment 5: Some commenters

identified factors for decline that were

either not identified in the original or

updated status reviews or which they

believed were not given sufficient

weight in the risk analysis. Other

commenters contended that recent

declines in Northern California

steelhead abundance were related to

natural factors such as predation and

changes in ocean productivity.

Furthermore, these commenters contend

that NMFS did not show how the

present declines were significantly

different from natural variability in

abundance, nor that abundances were

below the current carrying capacity of

the marine environment and freshwater

habitat.

Response: The status review did not

attempt to exhaustively identify factors

for decline, except insofar as they

contributed directly to the risk analysis.

Nevertheless, NMFS agrees that a

multitude of factors, past and present,

have contributed to the decline of west

coast steelhead. Many of the identified

risk factors were specifically cited in

NMFS’ original west coast steelhead

status review (Busby et al., 1996) and

subsequent listing notices (61 FR 41541;

63 FR 13347; 65 FR 6960). In addition,

NMFS has prepared a report that

summarizes the factors leading to the

decline of steelhead on the west coast

entitled: ‘‘Factors for Decline: A

supplement to the notice of

determination for west coast steelhead’’

(NMFS, 1996). This report concludes

that all of the factors identified in

section 4(a)(1) of the ESA have played

a role in the decline of the species. The

report identifies destruction and

modification of habitat, overutilization

for recreational purposes, and natural

and human-made factors as being the

primary causes for the decline of

steelhead on the west coast. NMFS

recognizes that natural environmental

fluctuations have likely played a role in

the species’ recent declines as well.

However, NMFS believes other humaninduced impacts (e.g., harvest in certain

fisheries, artificial propagation, and

widespread habitat modification) have

played an equally significant role in the

decline of steelhead.

NMFS’ 1996 status review briefly

addressed the impact of adverse marine

conditions and climate change, but

concluded that there is considerable

uncertainty regarding the role of these

factors in steelhead abundance. At this

time, we do not know whether these

climate conditions represent a long-term

shift in conditions that will continue

into the future or short-term

environmental fluctuations that can be

expected to reverse soon (NMFS, 1996).

A recent review by Hare et al. (1999)

suggests that these conditions could be

part of an alternating 20- to 30-year

regime pattern. These authors

concluded that although at-risk salmon

stocks may benefit from a reversal in the

current climate/ocean regime, fisheries

management should continue to focus

on reducing impacts from harvest and

artificial propagation and improving

freshwater and estuarine habitats.

NMFS believes there is ample

evidence to suggest that the elimination

and degradation of freshwater habitats

have contributed to the decline of this

steelhead ESU (NMFS, 1996). Many of

the identified risks and conclusions

apply specifically to Northern California

steelhead populations. Examples of

habitat alterations affecting steelhead

include: water withdrawal, conveyance,

storage, and flood control (resulting in

insufficient flows, stranding, juvenile

entrainment, and increased stream

temperatures); and logging and

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36079

agriculture (resulting in loss of large

woody debris, sedimentation, loss of

riparian vegetation, and habitat

simplification) (NMFS, 1996; Spence et

al., 1996; Busby et al., 1996). These

human-induced impacts in freshwater

ecosystems have likely reduced the

species’ resiliency to natural factors for

decline such as drought and poor ocean

conditions. A critical next step in

restoring listed steelhead will be

identifying and ameliorating specific

factors for decline at both the ESU and

population level.

With respect to predation impacts on

steelhead, NMFS has recently published

reports describing the impacts of

California sea lions and Pacific harbor

seals upon salmonids and on the coastal

ecosystems of Washington, Oregon, and

California (NMFS, 1997 and 1999b).

These reports conclude that in certain

cases where pinniped populations cooccur with depressed salmonid

populations, salmonid populations may

experience severe impacts due to

predation. An example of such a

situation is at the 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 may be sufficient to warrant

actions to remove pinnipeds in areas of

co-occurrence where pinnipeds prey on

depressed salmonid populations

(NMFS, 1997 and 1999b).

Issue 4: Consideration of Existing

Conservation Measures

Comment 6: Some commenters

expressed concerns about NMFS’

reliance and characterization of the

efficacy of the Northwest Forest Plan

(NFP), citing significant differences in

management practices between various

Federal land management agencies.

Numerous commenters noted that an

array of state and Federal conservation

measures were underway for this and

other species (particularly in northern

California) and asked that NMFS give

them more consideration in its listing

determination.

Response: In the listing proposal,

NMFS noted that the NFP requires

specific management actions on Federal

lands, including actions in key

watersheds in southern Oregon and

northern California that comply with

special standards and guidelines

designed to preserve their refugia

functions for at-risk salmonids (i.e.,

watershed analysis must be completed

prior to timber harvests and other

management actions, road miles should

be reduced, no new roads can be built

in roadless areas, and restoration

activities are prioritized). In addition,

the most significant element of the NFP

for anadromous fish is its Aquatic

Conservation Strategy (ACS), a regionalscale aquatic ecosystem conservation

strategy that includes: (1) special land

allocations (such as key watersheds,

riparian reserves, and late-successional

reserves) to provide aquatic habitat

refugia; (2) special requirements for

project planning and design in the form

of standards and guidelines; and (3) new

watershed analysis, watershed

restoration, and monitoring processes.

These ACS components collectively

ensure that Federal land management

actions achieve a set of nine ACS

objectives that strive to maintain and

restore ecosystem health at watershed

and landscape scales, to protect habitat

for fish and other riparian-dependent

species and to restore currently

degraded habitats. NMFS will continue

to support the NFP strategy and address

Federal land management issues via

ESA section 7 consultations.

Additional consideration was given to

various conservation efforts in

California that have been implemented

or are expected to be initiated. See

‘‘Efforts Being Made to Protect West

Coast steelhead’’ later in this document.

Comment 7: Several commenters

expressed their belief that current

California Forest Practice Rules (FPR’s)

were adequate to protect the Northern

California steelhead ESU. Several

comments expressed concern that

NMFS did not adequately review and

consider the interim FPR changes

adopted by the California Board of

Forestry (BOF) for anadromous

salmonids in March 2000.

Response: NMFS disagrees with the

assertion that the state’s FPRs as

currently implemented are adequate to

protect anadromous salmonids in

California. NMFS has reviewed the State

FPRs, including those interim changes

recently adopted by the Board of Foresty

and concludes that they do not

adequately protect anadromous

salmonids, including steelhead, or

provide for properly functioning habitat

conditions. In fact, the deleterious

impacts of timber harvest and other

activities have resulted in recent listings

by the Environmental Protection Agency

of many north coast California streams

as sediment and/or temperature

impaired under Section 303(d) of the

Clean Water Act.

NMFS’ March 19, 1998 (63 FR 13347),

decision not to list the Northern

California steelhead ESU was based

largely on a determination that

sufficient Federal and state conservation

measures were in place to reduce threats

to the ESU such that the proposed

threatened listing was unnecessary. The

Federal and state conservation measures

upon which NMFS based this

determination included the

implementation of a March 11, 1998,

Memorandum of Agreement (MOA)

between NMFS and the State of

California (NMFS/California MOA,

1998), with particular importance given

to implementation of those provisions

in the MOA which were intended to

improve non-Federal forest land

protections in the ESU. At the time of

NMFS’ decision not to list the Northern

California ESU in 1998, NMFS

considered the protection and

restoration of freshwater spawning,

rearing, and migratory habitat on nonFederal lands to be essential for the

long-term survival and recovery of this

ESU because non-Federal lands

represented such a large portion (81

percent) of the available habitat (63 FR

13347, March 19, 1998; 65 FR 6960,

February 11, 2000). Because of NMFS’

concerns regarding the preponderance

of private timber lands and timber

harvest in the northern California ESU,

the NMFS/California MOA contained

several provisions calling for the review

and revision of California’s FPRs, and a

review of their implementation and

enforcement by January 1, 2000. NMFS

considered full implementation of these

critical provisions within the specified

time frame to be essential for achieving

properly functioning habitat conditions

for steelhead in this ESU. In accordance

with the NMFS/California MOA, a

scientific review panel was established

by the state to review the California

FPRs, including their implementation

and enforcement. The scientific review

panel completed its review and

provided the state’s Board of Forestry

with its findings and recommendations

in June 1999. In its findings, the review

panel concluded that California’s FPRs,

including their implementation through

the existing timber harvest plan process,

do not ensure protection of anadromous

salmonid habitat and populations. To

address these shortcomings, and as

specified in the NMFS/California MOA,

the California Resources Agency and

CalEPA jointly presented the Board of

Forestry with a proposed rule change

package in July 1999. Following several

months of public review, the Board of

Forestry took no action on the package

in October 1999, thereby precluding any

possibility of implementing

improvements in California’s FPRs by

January 1, 2000, as the State committed

to do in the NMFS/California MOA.

36080 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

The California State Legislature,

purusant to Senate Bill 621, gave special

authority to BOF to adopt new rules

twice during the year 2000 for the

specific purpose of revising the State’s

FPRs to meet ESA requirements for

salmonids. Following its decision to

take no action in October 1999, BOF

continued working on revisions to the

state’s FPRs through March 2000.

During this period, NMFS and other

groups strongly urged BOF to adopt the

entire FPR package as a necessary first

step for protecting anadromous

salmonid habitat. On March 14, 2000,

(the deadline for the Board of Forestry

to exercise its authority under SB 621),

the Board only adopted a subset of rule

changes from the package. These rule

changes only apply to those harvest

plans approved between July 1, 2000,

and December 31, 2000. NMFS has

reviewed these recently adopted rule

changes and has determined that they

are inadequate to protect anadromous

salmonids or provide for properly

functioning habitat conditions. This

position is supported by the scientific

review panel report of June 1999. For a

more detailed discussion on the

adequacy of California’s FPRs, including

the recently proposed interim FPRs

changes, see ‘‘Inadequacy of Existing

Regulatory Mechanisms, Land

Management’’ later in this document.

Comment 8: Several commenters

argued that NMFS had not considered

existing conservation programs

designed to enhance steelhead stocks

within the northern California ESU.

Response: NMFS has reviewed

existing conservation efforts relevant to

the Northern California steelhead ESU

and concludes that existing

conservation efforts in these areas are

not sufficient to preclude listing of the

ESU at this time. Several of the plans

addressed in comments show promise

for ameliorating the risks facing

steelhead. However, in most cases,

measures described in comments have

not been implemented or are in their

early stages of implementation and have

not yet demonstrated success. 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.

While existing conservation plans are

unable to preclude the need for listing

at this time, they are nevertheless

valuable for improving watershed health

and restoring fishery resources. In those

cases where well-developed, reliable

conservation plans exist, NMFS may

choose to incorporate them into the

recovery planning process. In the case of

threatened species, NMFS also has

flexibility under ESA section 4(d) to

tailor section 9 take regulations based

on the contents of available

conservation measures. NMFS fully

intends to recognize local conservation

efforts to the fullest extent possible.

Issue 5: Steelhead Biology and

Ecology

Comment 9: Some commenters

believe that resident rainbow trout

should be included in the Northern

California steelhead ESU if it is listed.

Several commenters also stated that

NMFS should address how the presence

of rainbow trout populations may

ameliorate risks facing anadromous

populations within listed ESUs.

Response: In its August 9, 1996,

listing proposal, NMFS stated that based

on available genetic information, it was

the consensus of NMFS scientists, as

well as regional fishery biologists, that

resident fish should generally be

considered part of the steelhead ESUs,

but also concluded that available data

were inconclusive regarding the

relationship of resident rainbow trout

and steelhead. NMFS requested

additional data in the proposed rule to

clarify this relationship and determine if

resident rainbow trout should be

included in listed steelhead ESUs.

In response to this request for

additional information, many groups

and individuals expressed opinions

regarding this issue. In most cases these

opinions were not supported by new

information that resolves existing

uncertainty. Two state fishery

management agencies (CDFG and

WDFW) and one peer reviewer provided

comments and information supporting

the inclusion of resident rainbow trout

in listed steelhead ESUs. In general,

these parties also felt that rainbow trout

may serve as an important reservoir of

genetic material for at-risk steelhead

stocks.

While conclusive evidence does not

yet exist regarding the relationship of

resident and anadromous O. mykiss,

NMFS believes available evidence

suggests that resident rainbow trout

should be included in listed steelhead

ESUs in certain cases. Such cases

include: (1) where resident O. mykiss

have the opportunity to interbreed with

anadromous fish below natural or manmade barriers; or (2) where resident fish

of native lineage once had the ability to

interbreed with anadromous fish but no

longer do because they are currently

above human-made barriers, and they

are considered essential for recovery of

the ESU. Resident fish above longstanding natural barriers, and those that

are derived from the introduction of

non-native rainbow trout, would not be

considered part of any ESU.

NMFS believes resident fish can help

buffer extinction risks to an anadromous

population by mitigating depensatory

effects in spawning populations, by

providing offspring that migrate to the

ocean and enter the breeding population

of steelhead, and by providing a

‘‘reserve’’ gene pool in freshwater that

may persist through times of

unfavorable conditions for anadromous

fish. In spite of these potential benefits,

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 species

as a whole.

FWS and NMFS adopted a joint

policy to clarify their interpretation of

the phrase ‘‘distinct population segment

(DPS) of any species of vertebrate fish or

wildlife’’ for the purposes of listing,

delisting, and reclassifying species

under the ESA (61 FR 4722). DPSs are

‘‘species’’ pursuant to section 3(15) of

the ESA. Previously, NMFS had

developed a policy for stocks of Pacific

salmon where an ESU of a biological

species is considered ‘‘distinct’’ (and

hence a species) if (1) it is substantially

reproductively isolated from other

conspecific population units, and (2) it

represents an important component in

the evolutionary legacy of the species

(November 20, 1991, 56 FR 58612).

NMFS believes available data suggest

that resident rainbow trout are in many

cases part of steelhead ESUs. However,

the FWS, which has ESA authority for

resident fish, maintains that behavioral

forms can be regarded as separate DPSs

and that absent evidence suggesting

resident rainbow trout need ESA

protection, the FWS concludes that only

the anadromous forms of each ESU

should be listed under the ESA (DOI,

1997; FWS, 1997).

Comment 10: Commenters and some

peer reviewers questioned NMFS’

inclusion of both summer- and winterrun steelhead in the same ESU. These

commenters suggested that summerand winter-run steelhead be segregated

into individual ESUs based on life

history differences.

Response: While NMFS considers

both life history forms (summer- and

winter-run steelhead) to be important

components of diversity within the

species, new genetic data reinforce

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36081

previous conclusions that, within a

geographic area, summer- and winterrun steelhead typically are more

genetically similar to one another than

either is to populations with similar run

timing in different geographic areas.

This indicates that an ESU that included

summer-run populations from different

geographic areas but excluded winterrun populations (or vice-versa) would

be an inappropriate unit. The only

biologically meaningful way to have

summer- and winter-run steelhead

populations in separate ESUs would be

to have a very large number of ESUs,

most consisting of just one or a very few

populations. This would be inconsistent

with the approach NMFS has taken in

defining ESUs in other anadromous

Pacific salmonids. Taking these factors

into consideration, NMFS concludes

that summer- and winter-run steelhead

should be considered part of the same

ESU in geographic areas where they cooccur.

Issue 6: Consideration of ESA Section

4(d) Regulation for Recreational Angling

Comment 11: Numerous commenters

requested that if NMFS lists the

Northern California steelhead ESU as a

threatened species the agency

promulgate an ESA 4(d) rule that

provides for recreational angling

opportunities similar to what is

contained in the ESA 4(d) rule NMFS

recently proposed for other threatened

steelhead ESUs in California (64 FR

73479; December 30, 1999).

Response: The steelhead ESA 4(d)

rule that NMFS proposed on December

30, 1999, contains a limitation on the

application of the section 9 take

prohibitions that would allow

recreational angling for steelhead listed

as threatened to continue under certain

conditions, provided that the State of

California prepares a Fishery

Management and Evaluation Plan

(FMEP) meeting certain criteria and that

NMFS approves it. Because the pending

steelhead 4(d) rule will be finalized by

June 19, 2000, NMFS expects to begin

working soon with the State of

California and DFG in preparing one or

more FMEPs so that recreational angling

can continue where it is consistent with

the conservation of steelhead listed as

threatened. It is NMFS’ intent to

promulgate an ESA 4(d) rule for the

Northern California steelhead ESU

which is consistent with the 4(d) rule

that will be published on June 19, 2000

so that recreational angling which meets

appropriate conservation criteria can

continue.

Northern California Steelhead ESU

Determination

The Northern California steelhead

ESU has been described in previous

Federal Register documents (61 FR

41541, August 9, 1996; 62 FR 43937,

August 18, 1997; 63 FR 13347, March

19, 1998; 65 FR 6960, February 11,

2000) based on analyses conducted by

NMFS and summarized in the following

documents: ‘‘Status Review for West

Coast Steelhead from Washington,

Idaho, Oregon, and California’’ (Busby

et al., 1996); and ‘‘Status Review Update

for West Coast Steelhead from

Washington, Idaho, Oregon, and

California’’ (NMFS, 1997a). The

relationship between hatchery steelhead

populations and naturally spawned

steelhead within this ESU was also

assessed in: ‘‘Status Review Update for

Deferred ESUs of West Coast Steelhead:

Hatchery Populations’’ (NMFS, 1998a).

Copies of these NMFS documents are

available upon request (see ADDRESSES).

NMFS received no new scientific or

commercial information as a result of

the February 11, 2000, proposal to list

this ESU, which indicates that a change

in the Northern California ESU is

warranted.

The ESU occupies river basins from

Redwood Creek in Humboldt County,

CA, to the Gualala River, inclusive, in

Mendocino County, CA. Dominant

vegetation along the coast is the

redwood forest, whereas some interior

basins, much drier than surrounding

areas, are characterized by many

endemic species. This area includes the

extreme southern end of the contiguous

portion of the Coast Range Ecoregion

(Omernick, 1987). Elevated stream

temperatures are a factor in some of the

larger river basins (greater than 20°C),

but not to the extent that they are in

river basins further south. Precipitation

is generally higher in this geographic

area than in regions to the south,

averaging 100–200 cm of rainfall

annually (Donley et al., 1979). With the

exception of such major river basins as

the Eel, most rivers in this region have

peak flows of short duration. Strong and

consistent coastal upwelling begins at

about Cape Blanco and continues south

into central California, resulting in a

relatively productive nearshore marine

environment.

The northern California ESU includes

both winter and summer steelhead,

including what is presently considered

to be the southernmost population of

summer steelhead, in the Middle Fork

Eel River. Half-pounder juveniles also

occur in this geographic area,

specifically in the Mad and Eel Rivers.

Snyder (1925) first described the halfpounder from the Eel River; however,

Cramer et al. (1995) suggested that

adults with the half-pounder juvenile

life history may not spawn south of the

Klamath River Basin. As with the Rogue

and Klamath Rivers which are located

in the Klamath Mountains Province

ESU, some of the larger rivers in this

ESU have migrating steelhead yearround, and seasonal runs have been

named. River entry ranges from August

through June and spawning from

December through April, with peak

spawning in January in the larger basins

and late February and March in the

smaller coastal basins.

Based on the review of steelhead

hatchery programs in this ESU (NMFS,

1998a), NMFS’ steelhead BRT

concluded that the following steelhead

hatchery stocks are part of this ESU

because they were established from

indigenous natural populations and

there is limited impact from the

inclusion of out-of-basin fish in the

broodstock: Van Arsdale Fisheries

Station stock (Eel River), the Yager

Creek stock (Eel River tributary), Ten

Mile River stock, and North Fork

Gualala River stock. The BRT concluded

that the Mad River hatchery summer

steelhead stock is not part of the ESU

based on its origin from out-of-basin

steelhead populations combined with

the mixing of Eel River summer

steelhead in the broodstock. Rearing of

this stock was terminated at the Mad

River hatchery in 1996. The majority of

the BRT concluded that the Mad River

hatchery winter steelhead stock is not

part of this ESU although a minority of

the BRT was uncertain regarding its

relationship to the naturally spawning

population. This stock was founded

from South Fork Eel River steelhead

(within the ESU, but out of the Mad

River basin) and some local Mad River

steelhead.

Status of Northern California Steelhead

ESU

Section 3 of the ESA defines the term

‘‘endangered species’’ as ‘‘any species

which is in danger of extinction

throughout all or a significant portion of

its range.’’ The term ‘‘threatened

species’’ is defined as ‘‘any species

which is likely to become an

endangered species within the

foreseeable future throughout all or a

significant portion of its range. In its

previous status reviews for west coast

salmon and steelhead, NMFS has

identified a number of factors that

should be considered in evaluating the

level of risk faced by an ESU, including:

(1) absolute numbers of fish and their

spatial and temporal distribution; (2)

current abundance in relation to

36082 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

historical abundance and current

carrying capacity of the habitat; (3)

trends in abundance; (4) natural and

human-influenced factors that cause

variability in survival and abundance;

(5) possible threats to genetic integrity

(e.g., from strays or outplants from

hatchery programs); and (6) recent

events (e.g., a drought or changes in

harvest management) that have

predictable short-term consequences for

abundance of the ESU.

Based on these factors and the best

available scientific information, NMFS’

BRT first reviewed the status of the

northern California ESU in its original

coast-wide status review for steelhead

(Busby et al., 1996). The BRT concluded

that the northern California steelhead

ESU was likely to become endangered

in the foreseeable future. Population

abundance was determined to be very

low relative to historical estimates

(1930’s dam counts), and recent trends

were downward in most stocks for

which data were. The BRT expressed

particular concern regarding

sedimentation resulting in part from

poor land management practices and

channel restructuring due to floods. The

abundance of the pikeminnow as a

predator in the Eel River was also

identified as a significant concern. For

the Mad River, in particular, the BRT

was concerned about the influence of

hatchery stocks both in terms of genetic

introgression and the potential for

ecological interactions between

introduced stocks and native stocks.

The status of the northern California

ESU was reassessed by NMFS’ BRT in

an updated status review following the

6-month period of deferral because of

scientific disagreements (NMFS, 1997a).

Based on this updated status review,

NMFS’ BRT once again concluded that

northern California steelhead ESU was

likely to become endangered in the

foreseeable future. The BRT reported

that there was very limited abundance

data available for this ESU, particularly

for winter-run steelhead. The most

complete data set available in this ESU

is a time series of winter steelhead dam

counts on the Eel River at Cape Horn

Dam. The updated abundance data

(through 1997) showed moderately

declining long-term and short-term

trends in abundance, and the vast

majority of these fish were believed to

be of hatchery origin. These data show

a strong decline in abundance prior to

1970, but no significant trend thereafter.

Additional winter steelhead data are

available for Sweasy Dam on the Mad

River which show a significant decline,

but that data set ends in 1963. For the

seven populations where recent trend

data were available, the only runs

showing recent increases in abundance

in the ESU were the relatively small

populations of summer steelhead in the

Mad River which has had high hatchery

production, and winter steelhead in

Prairie Creek where the increase may be

due to increased monitoring or

mitigation efforts.

As in its original assessment, the BRT

continued to be concerned about the

risks associated with interactions

between naturally spawning

populations and hatchery steelhead in

this ESU. Of particular concern to the

BRT was the potentially deleterious

impact to wild steelhead from past

hatchery practices at the Mad River

hatchery, primarily from transfers of

non-indigenous Mad River hatchery fish

to other streams in the ESU and the

production of non-indigenous summer

steelhead. These potentially deleterious

hatchery practices for summer steelhead

ended in 1996.

Habitat degradation and other factors

were also of concern to the BRT in its

reassessment of the long-term risks to

this ESU. Specific factors which the

BRT identified included dams on the

upper Eel and Mad Rivers, the likely

existence of minor blockages throughout

the ESU, continuing impacts of

catastrophic flooding on the 1960s, and

reductions in riparian and instream

habitat and increased sedimentation

from timber harvest activities. The BRT

also cited poaching of summer steelhead

and predation by pikeminnow in the Eel

River as factors for concern. NMFS’

supplemental review of factors affecting

west coast steelhead also identified

water diversion and extraction,

agriculture, and mining as factors

affecting habitat conditions for

steelhead in this ESU (NMFS, 1996).

In conjunction with NMFS’

reconsideration of the Northern

California steelhead ESU, the BRT

provided a status review update for this

ESU [January 2000 Memorandum from

Pete Adams, Southwest Fisheries

Science Center [SWFSC] to Rodney R.

McInnis, Regional Administrator, SWR

(NMFS, 2000)]. Based on a review of

updated abundance and trend

information that was available for this

ESU, the SWFSC concluded that the

current status of the ESU has not

changed significantly since it was last

evaluated by NMFS’ BRT in December

1997 (NMFS, 1997a). The Eel River

winter and summer steelhead

populations, which represent the best

available data set for this ESU, are still

severely reduced from pre–1960’s

levels. Updated abundance and trend

data show small increases for winter

and summer steelhead in the Eel River,

but current abundance is still well

below estimates in the 1980s, and even

further reduced from levels in the

1960s. Redwood Creek summer

steelhead abundance remains very low.

There are no new data suggesting

substantial increases or decreases in

populations since the last updated

status review was completed. NMFS

received no new scientific or

commercial data or information as a

result of the February 11, 2000, listing

proposal which changes the conclusions

reached by the SWFSC.

Summary of Factors Affecting the

Species

Section 4(a)(1) of the ESA and NMFS’

implementing regulations (50 CFR part

424) set forth procedures for listing

species. The Secretary of Commerce

(Secretary) must determine, through the

regulatory process, 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 education

purposes; (3) disease or predation; (4)

inadequacy of existing regulatory

mechanisms; or (5) other natural or

human-made factors affecting its

continued existence.

NMFS has prepared a report that

summarizes the factors leading to the

decline of steelhead on the west coast

entitled: ‘‘Factors for Decline: A

supplement to the notice of

determination for west coast steelhead’’

(NMFS, 1996). This report, available

upon request (see ADDRESSES),

concludes that all of the factors

identified in section 4(a)(1) of the ESA

have played a role in the decline of the

species. The report identifies

destruction and modification of habitat,

overutilization for recreational

purposes, and natural and human-made

factors as being the primary causes for

the decline of steelhead on the west

coast. NMFS (1996) identified several

factors that were considered to have

contributed to its decline of the

northern California steelhead ESU

including: impacts from historic

flooding (principally in 1955 and 1964),

predation, water diversions and

extraction, minor habitat blockages,

poaching, timber harvest, agriculture,

and mining. NMFS’ steelhead BRT also

identified the potentially adverse

impacts of the release of nonindigenous, hatchery-produced

steelhead in this ESU as an important

factor, and expressed concerns

regarding the lack of reliable abundance

and trend data for assessing the status

of steelhead in this ESU (NMFS, 1997a).

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36083

Finally, NMFS was also concerned

about the impacts of recreational

angling because of the depressed status

of steelhead populations and the

uncertainty regarding the status of this

ESU (March 11, 1998, Memorandum

from William Hogarth to Rolland

Schmitten (NMFS, 1998e)). The

following discussion briefly summarizes

findings regarding factors for decline

across the range of west coast steelhead,

including the northern California ESU.

The Present or Threatened Destruction,

Modification, or Curtailment of

Steelhead Habitat or Range

Steelhead on the west coast of the

United States have experienced declines

in abundance in the past several

decades as a result of natural and

human factors. Forestry, agriculture,

mining, and urbanization have

degraded, simplified, and fragmented

habitat. Water diversions for agriculture,

flood control, domestic, and

hydropower purposes have greatly

reduced or eliminated historically

accessible habitat. Among other factors,

NMFS (1996) specifically identified

timber harvest, agriculture, mining,

habitat blockages, and water diversions

as important factors for the decline of

steelhead in the northern California

ESU. NMFS (1998a) discussed these

factors in more detail. Studies estimate

that during the last 200 years, the lower

48 states have lost approximately 53

percent of all wetlands and the majority

of the rest are severely degraded (Dahl,

1990; Tiner, 1991). Washington and

Oregon’s wetlands are estimated to have

diminished by one-third, while

California has experienced a 91 percent

loss of its wetland habitat (Dahl, 1990;

Jensen et al., 1990; Barbour et al., 1991;

Reynolds et al., 1993). Loss of habitat

complexity has also contributed to the

decline of steelhead. For example, in

national forests in Washington, there

has been a 58 percent reduction in large,

deep pools due to sedimentation and

loss of pool-forming structures such as

boulders and large woody debris

(FEMAT, 1993). Similarly, in Oregon,

the abundance of large, deep pools on

private coastal lands has decreased by

as much as 80 percent (FEMAT, 1993).

Sedimentation from land use activities

is recognized as a primary cause of

habitat degradation in the range of west

coast steelhead.

Overutilization for Commercial,

Recreational, Scientific, or Education

Purposes

Steelhead are not generally targeted in

commercial fisheries. High seas driftnet

fisheries in the past may have

contributed slightly to a decline of this

species in local areas, but could not be

solely responsible for the large declines

in abundance observed along most of

the Pacific coast over the past several

decades (NMFS, 1996).

Steelhead support an important

recreational fishery throughout most of

their range. During periods of decreased

habitat availability (e.g., drought

conditions or summer low flows when

fish are concentrated), the impacts of

recreational fishing on native

anadromous stocks may be heightened.

Although harvest of steelhead in the

Northern California ESU was not

originally identified as a major factor for

decline (NMFS, 1996), NMFS is

concerned about the impacts of

recreational angling given currently

depressed steelhead population levels

and the lack of reliable abundance and

trend data for accurately assessing the

status of individual populations and the

ESU as a whole. Because of NMFS’

concerns about recreational angling

impacts to naturally reproduced

steelhead populations in coastal

watersheds in California north of the

Russian River, the California

Department of Fish and Game (DFG)

proposed and the California Fish and

Game Commission adopted new

steelhead angling regulations in 1998 for

all watersheds in the northern California

ESU. These new regulations prohibit

retention of naturally spawned adult

steelhead; eliminate fishing for juvenile

steelhead in tributary streams; minimize

impacts on juvenile steelhead in

mainstem rearing and migratory areas

through a combination of gear

restrictions and delayed seasonal

openings; prohibit retention of summer

steelhead during their upstream

migration and prohibit fishing in their

summer holding areas; and provide for

directed harvest and retention of

hatchery-produced steelhead which are

fully marked state-wide. NMFS

(1998b,c,d) analyzed these new

regulations and concluded that they

would substantially reduce fishing effort

and reduce mortality to that associated

with catch-and-release of naturally

produced steelhead in the northern

California ESU. These regulations

remain in effect and are enforced by

DFG.

Disease or Predation

Infectious disease is one of many

factors that can influence adult and

juvenile steelhead survival. Steelhead

are exposed to numerous bacterial,

protozoan, viral, and parasitic

organisms in spawning and rearing

areas, hatcheries, migratory routes, and

the marine environment (NMFS, 1996).

Specific diseases such as bacterial

kidney disease (BKD), 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 steelhead and

salmon (Rucker et al., 1953; Wood,

1979; Leek, 1987; Foott et al., 1994;

Gould and Wedemeyer, undated). Very

little current or historical information

exists to quantify changes in infection

levels and mortality rates attributable to

these diseases for steelhead (NMFS,

1996). 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).

Introductions of non-native species

and habitat modifications have resulted

in increased predator populations in

numerous river systems, thereby

increasing the level of predation

experienced by salmonids. In the

Northern California steelhead ESU,

predation from Sacramento pikeminnow

that were released into the Eel River is

a major problem. Predation from

pikeminnow is discussed in more detail

in NMFS (1996). The DFG is currently

engaged in a program to control

pikeminnow predation in the Eel River.

Predation by marine mammals is also

of concern in some areas experiencing

dwindling steelhead run sizes. NMFS

(1997b) reviewed the available literature

concerning the impacts of California sea

lion and Pacific harbor seal predation

on west coast anadromous salmonids,

and concluded that there was

insufficient data in all but one instance

(i.e., Ballard Locks in Puget Sound) to

conclude that pinnipeds were having a

significant impact on wild salmon or

steelhead populations. For this reason,

and because of the high likelihood that

impacts might be occurring, the study

concluded that substantial additional

research was needed to address this

issue further. Based on this research

recommendation, NMFS has initiated

several field studies in coastal

watersheds on the west coast designed

to assess the magnitude of pinniped

predation on individual salmon or

steelhead populations. In California,

these studies are being conducted in the

lower Klamath River, Scott Creek, and

the San Lorenzo River.

Inadequacy of Existing Regulatory

Mechanisms

1. Federal Land and Water

Management

The Northwest Forest Plan (NFP) is a

Federal land management policy with

important benefits for west coast

steelhead. While the NFP covers a very

36084 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

large area, the overall effectiveness of

the NFP in conserving steelhead is

limited by the extent of Federal lands

and the fact that Federal land ownership

is not uniformly distributed in

watersheds that comprise individual

ESUs. The extent and distribution of

Federal lands limits the ability of the

NFP to achieve its aquatic habitat

restoration objectives at watershed and

river basin scales, and highlights the

importance of complementary salmon

habitat conservation measures on nonfederal lands within the subject ESUs.

Federal land ownership and

management in the Northern California

steelhead ESU is very limited;

representing only about 19 percent of

the total land area. Federal lands (i.e.,

Redwood National Park, portions of the

Six Rivers and Mendocino National

Forests, and the Kings Range National

Conservation Area) that do occur in this

ESU are also highly fragmented, unlike

some other steelhead ESUs (e.g.,

Klamath Mountains Province and Snake

River Basin). Although Federal lands are

limited in extent and fragmented in this

ESU, NMFS believes that

implementation of the NFP on the Six

Rivers and Mendocino National Forests

lands (upper reaches of Eel and Mad

Rivers) and implementation of other

habitat protections in Redwood National

Park (lower reach of Redwood Creek)

will provide some limited benefits to

steelhead. Nevertheless, long-term

habitat protection and the key to

achieving properly functioning habitat

conditions in this ESU continues to be

improvement in non-Federal land

management, particularly those lands

used for timber harvest.

Because threatened coho salmon

populations occur on Federal lands

located within the Northern California

steelhead ESU, NMFS routinely engages

the U.S. Forest Service (USFS), Bureau

of Land Management (BLM), and

Redwood Creek National Park in section

7 consultations to ensure that ongoing

or proposed activities do not jeopardize

coho salmon or adversely modify its

critical habitat. Through this section 7

consultation process, NMFS ensures

that the NFP and other protective

measures are fully implemented on

Federal lands that occur in this ESU.

The NFP and measures implemented as

a result of the section 7 consultations for

coho salmon also benefit steelhead.

The Pacific Gas and Electric

Company’s (PG&E) Potter Valley

hydroelectric project is a major diverter

of water from the mainstem Eel River,

which is located in the northern

California ESU. This water is diverted

into the Russian River basin to generate

hydroelectric power and provide water

for agriculture and urban uses. Pursuant

to a Federal Energy Regulatory

Commission (FERC) licensing

requirement, PG&E implemented a 10-

year monitoring program in the Eel

River for the purpose of developing

recommendations for a flow release

schedule and other project facilities

and/or operations necessary to protect

and maintain fishery resources,

including steelhead. This study was

completed in 1996, as was construction

of a $14 million dollar fish screen

facility at the Van Arsdale Dam

diversion on the Eel River. Based on the

results of the monitoring study, PG&E

has developed a preferred alternative for

project operations that, along with

several other alternatives, are the subject

of National Environmental Policy Act

(NEPA) review for ongoing FERC license

amendment proceedings. NMFS is

currently consulting with FERC

pursuant to section 7 of the ESA on

PG&E’s proposed license amendment.

On March 1, 1999, the Pacific Lumber

Company (PALCO), the State of

California, the Department of the

Interior, and the Department of

Commerce entered into a complex land

purchase, land exchange and Habitat

Conservation Plan (HCP) transaction

covering the Headwaters Forest, Elk

Head Springs Forest and the remainder

of Pacific Lumber Company’s land

holdings in Humboldt County

California. The Federal and State

governments acquired approximately

10,000 acres of conifer and hardwood

forest, over 3,000 acres of which is

ancient redwoods, with some trees over

1,000 years old. This land is now

subject to Federal and state control

under conservation easements. The

PALCO HCP addresses non-Federal

timber lands in several drainages that

occur in the northern portion of

Northern California steelhead ESU.

These include portions of several

tributaries to Humboldt Bay (Elk River,

Jacoby Creek, Freshwater Creek, and

Salmon Creek), and portions of the Van

Duzen River (including Yager Creek),

Eel River, Bear River, Salt River, and

Mattole River watersheds. The HCP

covers 211,000 acres, has a term of 50

years and covers the following federally

listed and candidate anadromous

salmonid ESUs: (1) Southern Oregon/

Northern California coho salmon

(threatened), (2) Northern California

steelhead (candidate), and (3) California

Coastal Chinook salmon (threatened).

The HCP also covers numerous

terrestrial species listed under the ESA

and California Endangered Species Act.

The HCP’s Operating Conservation

Program (Program) contains the

conservation and management measures

and prescriptions necessary to

minimize, mitigate and monitor the

impacts of take of the covered species

resulting from timber operations. The

Program incorporates specific

conservation plans for all terrestrial and

aquatic species covered under the HCP

along with measures to conserve habitat

diversity and structural components.

Monitoring for implementation,

effectiveness and trends is a critical

component of the Program. The

monitoring component includes an

independent third party HCP monitor to

determine if the provisions of the

aquatics plan are effective and whether

the aquatic habitat is responding as

expected. There is also a provision for

adaptive management if the results are

not as predicted. An Aquatics

Conservation Plan (ACP) is an integral

part of the overall Program. The goal of

the ACP is to maintain or achieve over

time properly functioning aquatic

habitat conditions, which are essential

to the long-term survival of salmonids.

The reduction in land management

impacts and habitat improvement that

will be realized through implementation

of the ACP will also benefit other

species.

NMFS believes that the conservation

measures contained in the HCP will

protect and provide for long-term

conservation of steelhead populations

occurring on PALCO lands in the

northern California ESU.

2. State Land Management

Timber Harvest. The California

Department of Forestry and Fire

Protection (CDF) enforces California’s

FPRs on non-Federal (private and State

managed forests) lands. These rules are

promulgated through the State Board of

Forestry (BOF). Timber harvest

activities have been documented to

result in adverse effects on streams and

stream side zones including the loss of

large woody debris, increased

sedimentation, loss of riparian

vegetation, and the loss of habitat

complexity and connectivity (NMFS,

1996).

The vast majority of freshwater

habitat in the northern California

steelhead ESU (approximately 81

percent of total land) is on non-Federal

lands, with the majority being privately

owned. For the major river basins in this

ESU (i.e., Redwood Creek, Mad River,

Eel River, Mattole River, Ten Mile River,

Noyo River, Big River, Albion River,

Navarro River, Garcia River, and Gualala

River), private forest lands average

about 75 percent of the total acreage,

with a range of 42 percent (Eel River) to

94 (Gualala River ) percent.

NMFS reviewed the California FPRs

in conjunction with its determination to

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36085

not list the Northern California

steelhead ESU in 1998 (63 FR 13347).

That review concluded that although

the FPRs mandate protection of

sensitive resources such as anadromous

salmonids, the FPRs and their

implementation and enforcement do not

accomplish this objective. Specific

problems with the FPRs include: (1)

protective provisions that are not

supported by scientific literature; (2)

provisions that are scientifically

inadequate to protect salmonids

including steelhead; (3) inadequate and

ineffective cumulative effects analyses;

(4) dependence upon registered

professional foresters (RPFs) that may

not possess the necessary level of multidisciplinary technical expertise to

develop THPs protective of salmonids;

(5) dependence by CDF on other State

agencies to review and comment on

THPs; (6) failure of CDF to incorporate

recommendations from other agencies;

and (7) inadequate enforcement due to

staffing limitations. NMFS further

concluded that until a comprehensive

scientific peer review process was

implemented and appropriate changes

to the FPRs and the THP approval

process were made, properly

functioning habitat conditions would

not exist on non-Federal lands in the

northern California steelhead ESU.

The NMFS/California MOA which

was entered into in March 1998 to

ensure the conservation of steelhead

populations in northern California (i.e.,

Northern California and KMP steelhead

ESUs) contained specific provisions to

address NMFS’ concerns over the

California FPRs. In the NMFS/California

MOA, the State committed to: (1)

conduct a scientific review of the State’s

FPRs, including their implementation

and enforcement; (2) make appropriate

changes in implementation and

enforcement of the FPRs based on this

review; and (3) make recommendations

to the BOF for changes in the FPRs if

they were found to be necessary for the

conservation of northern California

coastal anadromous salmonids. Full

implementation of these provisions in

the NMFS/California MOA, including

implementation of changes in the FPRs

by January 1, 2000, was a critical factor

in NMFS’s decision previously to not

list this ESU.

In accordance with these provisions,

a subcommittee of the State’s scientific

review panel for its Watershed

Protection Program was appointed to

undertake an independent review of the

FPRs. The subcommittee’s review and

recommendations were completed and

presented to the BOF in June 1999. The

scientific review panel concluded that

California’s FPRs, including their

implementation through the timber

harvest plan process, do not ensure

protection of anadromous salmonid

populations. Based in part on the

scientific review panel report and

findings in July 1999, the California

Resources Agency and CalEPA jointly

presented the BOF with a proposed rule

change package designed to address

shortcomings in the State’s existing

FPRs. The BOF circulated the proposed

rule package for public review, held

several meetings and two public

hearings on the proposals from July

until October 1999, but failed to take

action to adopt any of the proposed FPR

changes, thereby precluding any

possibility of implementing

improvements in California’s FPRs by

January 1, 2000, as the State committed

to do in the NMFS/California MOA.

The California State Legislature,

under Senate Bill 621, gave special

authority to the BOF to adopt new rules

twice during the year 2000 for the

specific purpose of revising the State’s

FPRs to meet ESA requirements for

salmon. Public review and revisions of

the BOF’s FPR package continued from

January 2000 to March 2000, during

which time NMFS, California

Legislature, the California Department

of Forestry, the California Department of

Fish and Game, the North Coast Water

Quality Control Board, environmental

groups and others strongly urged the

Board to adopt the package in its’

entirety as a necessary first step in

protecting anadromous salmonid

habitat. On March 14, 2000, the

deadline for the BOF to exercise its

authority under SB 621, the BOF

adopted a subset of rule changes from

the package which will only apply for

those timber harvest plans approved

between July 1 and December 31, 2000.

During this period, the BOF has

committed to work with interested

parties in the development of a

watershed analysis approach to timber

harvest planning.

The interim FPRs changes adopted by

the BOF, which sunset December 31,

2000: (1) define watersheds with

threatened and impaired values,

acknowledging they exist and need

special prescriptions; (2) direct analysis

on cumulative watershed effects to

ensure beneficial uses of water are

maintained if in good condition,

protected where threatened, and

restored where impaired, and that

riparian zones be fully protected from

site specific and cumulative impacts; (3)

require protection and maintenance of

stream flow during low water periods,

large woody debris recruitment and

shade canopy for temperature control;

(4) require no measurable increase in

sediment load, no decrease in channel

or bank stability and no measurable

blockage of aquatic migratory route; (5)

define the watercourse transition line as

2 times the bankfull depth for confined

channels and the outer edge of the

active channel boundary for unconfined

channels; (6) identify a 150 foot

minimum water and lake protection

zone for all fish-bearing streams, with

85 percent overstory shade canopy

retained post-harvest for the first 75 feet

(22.9 meters (m)), and 65 percent shade

retained for the outer 75 feet (22.9 m);

(7) require a no-cut buffer in channel

zones out to the transition line and large

woody debris standards including no

salvage logging within the water and

lake protection zone without an

approved plan; (8) request the registered

professional forester identify all active

erosion sites and provide remediation;

(9) prohibit construction of roads,

landings and skid trails during the

winter months on slopes over 40

percent; (10) provide specific road

construction provisions on slopes over

50 percent; and (11) require that all

crossings over fish-bearing streams meet

100-year flood standard and allow for

passage of all life stages of fish.

NMFS believes the interim rule

changes adopted by the Board of

Forestry constitute a good first step in

addressing many concerns raised during

the FPR review process; however, they

are currently inadequate to protect

anadromous salmonids, including

steelhead, and their habitat.

Specifically, the interim rule changes

are inadequate because they to not

address: (1) site-specific variation and

long-term riparian functions; (2) nonfishbearing perennial streams and

ephemeral streams that carry water

during the winter months; (3) rate of

timber harvest in a watershed; (4) all

other winter operations and wet weather

road and skid trail planning; (5) road

planning, construction, maintenance

and decommissioning; (6) loss of

riparian function and chronic sediment

inputs from streamside roads; (7)

unstable areas except for inner gorges;

(8) timber harvest plan preparation,

review, implementation, enforcement

and technical validity; (9) harvest plan

exemptions and (10) watershed analysis,

cumulative effects, adaptive

management and monitoring. The

adopted rules lack these, and other,

critical elements recommended by the

scientific review panel as necessary to

avoid, minimize and/or mitigate adverse

cumulative watershed impacts on

salmonid populations.

Multi-County Planning Efforts. As a

result of the listing of coho salmon in

coastal watersheds in northern

36086 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

California, the counties of Del Norte,

Siskiyou, Trinity, Humboldt and

Mendocino developed and have

implemented a multi-county, regional

approach to assessing and improving

county-controlled activities in a way

that would enhance the quality and

increase the quantity of salmonid

habitat that is potentially affected by

those county activities. NMFS and the

State of California have contributed

funding to this multi-county planning

effort.

This county-level conservation

planning approach involves a thorough

review of general plans, ordinances,

procedures, practices and policies

developed and implemented at the

county level. Through the assessment

and evaluation of these countycontrolled mechanisms, a process is

being developed that will enable the

counties to exert control at the local

level over human activities that can

adversely affect anadromous salmonid

populations and habitat. This multicounty planning effort was

memorialized in a Memorandum of

Agreement (Multi-County MOA) which

was signed by all five counties in late

1997. Under the terms of the MultiCounty MOA, the counties agreed to

embark on a cooperative planning and

restoration effort; assess the adequacy of

existing general plans, county policies

and practices, zoning and other land use

ordinances; review county management

procedures that affect anadromous

salmonid habitat in each county;

recommend changes to specific county

ordinances and/or practices as

necessary; develop a watershed-based

education and technical assistance/

training program for local agencies and

decision-makers that will foster better

understanding of the linkages between

land use and county maintenance

practices and salmonid habitat; and seek

to establish some form of regulatory

recognition at the state and/or federal

level. As an example, within the range

of the northern California steelhead

ESU, the northern five counties (Del

Norte, Humboldt, Trinity, Siskiyou, and

Mendocino Counties) Conservation

Planning Group has organized a

program to survey approximately 4700

miles of county roads to identify

existing and potential barriers to the

passage of listed salmonids in northern

California streams. These barriers,

which include undersized or failed

culverts and other types of road

crossings over streams, presently block

significant amounts of stream habitat

that could otherwise support spawning,

rearing and migration of listed salmon

and steelhead. To date, all coastal

streams in Del Norte, Humboldt and

Mendocino Counties have been

inventoried, and habitat assessment and

treatment prioritization reports are

being drafted (Pers. Comm. Mark

Lancaster, Trinity County Planning

Dept. with Miles Croom, NMFS, April

24, 2000). In the coastal streams within

Del Norte, Humboldt and Mendocino

Counties, some 81 barriers have been

identified. When removed, an

additional 77 miles of suitable salmonid

habitat will become available to listed

species. The passage barrier inventory is

part of a comprehensive aquatic habitat

conservation program being developed

by the multi-county group to improve

county-level policies and procedures in

an effort to reduce sedimentation and

erosion, protect water quality, establish

priorities for repairing problem sites,

and institutionalize the utilization of

improved practices at the county level

with the goal of conserving aquatic

habitat for the survival and recovery of

listed salmonids.

This multi-county assessment is being

used to document the effectiveness of

existing regulations. Where the

assessment identifies areas for

improvement, the planning effort will

develop alternative policies, ordinances

and practices that are suitable for

maintaining or enhancing anadromous

salmonid habitat. The assessment will

address the need to focus public works

projects on sites that improve fisheries

habitat. A watershed-based approach

will be used, even where watersheds

cross county boundaries, to ensure that

enhancement efforts are complementary

to natural ecosystem processes.

The outcome of this county-level

effort is expected to be a comprehensive

and coordinated analysis of local land

use regulations. Where it is found that

development standards such as

subdivision restrictions, zoning, and

capital improvement programs may not

adequately maintain or restore salmonid

habitat, model ordinances will be

developed for consideration by each of

the participating counties. Conversely,

innovative approaches for land use

(such as density modifications and

standards that preserve habitat

functions) or other county activities that

have been developed in some counties

will be presented as options for the

other counties. This collaborative,

regionally-based planning effort is based

on existing environmental, economic,

social and administrative concerns and

opportunities. At the same time, the

planning effort is designed to be

complementary with state and national

salmonid recovery efforts. The planning

process encourages public participation

through direct contact with interested

public agencies, landowners,

community organizations,

environmental groups, industry

representatives and others. The public

process is being implemented through

public hearings, meetings, scoping

sessions, forums and other avenues.

Agricultural Activities. Agricultural

activity has had multiple and often

severe impacts on salmonid habitat.

These include depletion of needed

flows due to irrigation withdrawals,

blocking of fish passage by diversion or

other structures, destruction of riparian

vegetation and bank stability by grazing

or cultivation practices, and

channelization resulting in loss of side

channel and wetland-related habitat

(NMFS, 1996).

Impacts from agricultural and grazing

practices have not historically been

closely regulated in California. This is

an important concern to NMFS because

a significant portion of the acreage in

the northern California ESU is

comprised of farmland. For example,

farmland constitutes approximately 25–

30 percent of the total acreage of

Humboldt and Mendocino counties

which in turn constitute much of the

northern California ESU. Private lands,

and public lands not administered by

the Federal government, are now being

addressed by the California Rangeland

Water Quality Management Program

(CRWQMP) which was adopted by the

State Water Resources Control Board

and CDF in 1995. The CRWQMP is a

water quality improvement program

based on the voluntary participation of

landowners for compliance with state

and Federal non-point source pollution

reduction requirements. The CRWQMP

was initiated as a cooperative effort

among the livestock industry,

conservation organizations and state

and Federal agencies to address the

impacts of grazing and land use

practices on water quality in streams

that flow through private property.

Through this Program, private

landowners will be able to maintain

rangeland productivity and enhance

landowners’ abilities to manage these

lands in a manner that protects water

quality standards necessary for the

survival and recovery of listed

salmonids.

Between 1995–1998, rangeland plans

were developed under the CRWQMP for

more than 250,000 acres on the north

coast ranging from San Francisco to the

Oregon border. The State plans to

review the implementation status of

these plans at intervals of 3, 5 and 10

years, provided resources are available.

NMFS is encouraged by these ongoing

efforts. Plans that are consistent with

this guidance are likely to meet state

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36087

water quality standards, but the program

is voluntary and it is uncertain to what

extent their implementation will

contribute to improved habitat

conditions and riparian function.

The USDA Natural Resources

Conservation Service (NRCS), NMFS,

FWS, the U.S. Environmental Protection

Agency (EPA), the California

Association of Resource Conservation

Districts (CARCD), and the State of

California (State) have recently

developed a joint approach that is

expected to encourage the voluntary use

of improved conservation management

practices for agriculture on private land.

Recognizing that recovery of listed and

other at-risk salmonid populations

depends on the willing participation of

private landowners, these agencies have

the goal of providing an incentive to

landowners to enhance the quality and

quantity of habitat needed by species of

concern. To accomplish this goal, the

agencies have agreed to support

cooperative approaches and consensusbuilding activities, foster

communication among agencies and

private landowners, share resources and

information, and establish strong,

effective working relationships that

instill trust and promote sound

stewardship.

This agreement is the subject of a

draft Memorandum of Understanding

(MOU) among the partner agencies.

Through the procedures described in

the MOU, landowners will have the

knowledge that practices contained in

the NRCS Field Office Technical Guides

(FOTG) have undergone ESA section 7

scrutiny by NMFS and FWS. For those

practices that NMFS and FWS

determine are not likely to adversely

affect listed species or critical habitat,

the landowner should have confidence

that those practices, if implemented in

accordance with the FOTG standards

and specifications, will not result in any

additional permitting requirement or

penalties under the ESA. The objective

of this MOU is to encourage the

adoption of protective land use

practices on private lands, to provide

some regulatory assurance for

landowners, to improve habitat

conditions for sensitive species, to

continue sustainable economic

production on private lands, to facilitate

better coordination among the partner

agencies and to foster better awareness

and support for conservation programs

throughout the State. The draft MOU is

under review by the State and upon

completion is expected to be formally

signed by all parties.

3. Dredge, Fill, and In-water

Construction Programs

Corps of Engineers Section 404

Program. The Army Corps of Engineers

(COE) regulates removal/fill activities

under section 404 of the Clean Water

Act (CWA), which requires that the COE

not permit a discharge that would

‘‘cause or contribute to significant

degradation of the waters of the United

States.’’ One of the factors that must be

considered in this determination is

cumulative effects. However, the COE

guidelines do not specify a methodology

for assessing cumulative effects or how

much weight to assign them in decisionmaking. Furthermore, the COE does not

have in place any process to address the

additive effects of the continued

development of waterfront, riverine,

coastal, and wetland properties.

The U.S. Army Corps of Engineers,

State, and local governments have

developed and implemented procedures

reviewing, approving and monitoring

gravel mining activities in Del Norte and

Humboldt counties which are

authorized under a Letter of Permission

(LOP) process. This process regulates

gravel mining in a substantial portion of

the Northern California steelhead ESU

(including the Mad, Eel and Van Duzen

Rivers) where listed coho salmon and

chinook salmon populations also occur.

These procedures are designed to

provide substantially improved

protection for anadromous salmonids

and their habitats, including steelhead.

Important elements of the process

include: a prohibition on gravel mining

in the active channel and on trenching

except in limited instances, a restriction

on gravel operations to the dry season,

monitoring of channel cross sections to

detect changes in channel morphology

and habitat conditions, fisheries

monitoring, and gravel mining on a

sustained yield basis. An additional

element of the process in Humboldt

County, which is located in the

Northern California ESU, is the

participation of an independent

scientific review committee which

makes annual recommendations on

gravel quantities and site design features

in order to minimize adverse impacts.

Additionally, any channel crossings

must be designed to allow for fish

passage. NMFS participated in the

development of these procedures and

has concluded, through section 7

consultation with the COE, that these

procedures will not jeopardize the

continued existence of coho salmon or

steelhead. NMFS recently reinitiated

formal consultation with the COE on the

LOP process to address the final critical

habitat designation for coho salmon and

the recent listing of California Coastal

chinook salmon as threatened.

State Streambed Alteration

Agreements. Section 1603 of the Fish

and Game Code in California requires

that any person who proposes a project

that will substantially divert or obstruct

the natural flow or substantially change

the bed, channel or river bank of any

river, stream or lake, or use materials

from a streambed, notify the DFG before

beginning any work. The authorization

for these activities under section 1603 is

called a Lake or Streambed Alteration

Agreement. Beginning May 1, 1999, the

1603 process was significantly modified

to require a higher level of review by

DFG that is in compliance with the

California Environmental Quality Act

(CEQA). Any proposed project that DFG

determines may substantially adversely

affect existing fish and wildlife

resources will need to comply with the

CEQA standard of mitigating project

impacts to the level of insignificance.

The new standard for project review has

resulted in increasing the time needed

for project approval from two weeks to

60–120 days.

Although the State has substantially

improved the level of project review

under the 1603 process to comply with

the new CEQA standard, the State has

not submitted the program to NMFS for

review to determine whether it

adequately protects anadromous

salmonids. The State currently issues

1603 streambed alteration agreements to

project applicants with the disclosure

that the applicant may need to obtain

incidental take authorization from

NMFS. In most cases, however, where a

project proposes a stream or

watercourse modification and listed

species are present, a Clean Water Act,

section 404 permit from the Army Corps

of Engineers is required. Within the

geographic area encompassing the

northern California steelhead ESU, the

presence of listed coho and chinook

salmon populations requires the Corps

to consult with NMFS under section 7

of the ESA prior to the issuance of 404

permits.

4. Water Quality Programs

Under Clean Water Act section

303(d), states, territories and authorized

Tribes are required to establish lists of

impaired water bodies, set priorities for

addressing the pollutant source, and

write pollutant control plans to achieve

and maintain water quality standards.

These plans, Total Maximum Daily

Loads (TMDLs), provide an effective

mechanism for determining the causes

of water body impairment, quantifying

the various pollutant sources, and

setting targets for reducing pollutant

discharges. Generally, states are

responsible for developing TMDLs and

related implementation plans, which are

36088 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

subject to EPA review and approval. If

the EPA disapproves a TMDL or if a

state fails to establish one, the EPA is

required to step in and establish the

TMDL. The TMDL is then implemented

through existing regulatory and nonregulatory programs to control, reduce

or eliminate pollution from both point

and non-point sources.

The TMDL process provides a flexible

assessment and planning framework for

identifying load reductions or other

actions needed to attain water quality

standards such as protection of aquatic

life, provision of safe drinking water,

etc. The TMDL should address all

significant stressors (e.g., chemicals,

temperatures, sediment loads) that

cause or threaten to cause deleterious

effects to water quality. The TMDL

assessment is the sum of the individual

waste load allocations from point

sources, load allocations from non-point

sources, allocation from natural sources,

and an appropriate margin of safety to

account for uncertainty. The TMDL may

address single or multiple pollutants but

must clearly identify the links between

the water quality impairment (or threat)

of concern, the causes of the threat or

concern and the load reductions or

conservation actions needed to remedy

or prevent the impairment.

As TMDL assessments and

implementation plans are developed

and approved, the State of California,

through the State Water Resources

Control Board and the nine Regional

Water Quality Control Boards, will

adopt and implement the TMDLs. The

TMDL contains a problem statement,

numeric targets, source analysis,

allocations of loads or controls and a

monitoring plan. The implementation

component includes descriptions of

land management practices, remediation

activities and restoration projects

necessary to attain the goals established

in the TMDL assessment. It is through

the implementation plan that necessary

controls and restoration actions are

assigned to specific parties and

attainment schedules are promulgated.

In coastal watersheds of northern

California, 38 water body segments have

been identified as impaired and have

been scheduled for development of

TMDLs. The schedule for development

of TMDLs in northern California

extends to the year 2011 (Russian River

and Lake Pillsbury). However, the

schedule in this area is driven in part by

a consent decree (Pacific Coast

Federation of Fishermen’s Associations,

et al. v. Marcus, No. 95–4474 MHP,

March 11, 1997). Under this consent

decree, EPA agreed to oversee the

development of TMDLs on eighteen

rivers on the north coast of California.

Twelve of these river basins are located

within the northern California steelhead

ESU. The consent decree establishes a

schedule for developing TMDL criteria

for listed rivers. Under this schedule,

seven river basins in the northern

California ESU would have TMDLs

developed within the next two years,

with the remaining rivers having

TMDLs developed by 2002. This legallybinding schedule is expected to result in

significant progress on improving the

beneficial uses of these watersheds,

where the beneficial use has been

identified as habitat for salmonids.

On May 28, 1998, the North Coast

Regional Water Quality Control Board

approved a TMDL for the Garcia River.

The TMDL contains the following

elements: (1) findings that the Garcia

River is impaired due to sediment and

temperature impacts resulting from land

use practices, primarily timber

operations and related activities, (2)

adoption of the Water Quality

Attainment Strategy as part of the Water

Quality Control Plan for the North Coast

Region (Basin Plan) that would

eliminate 90 percent of total

controllable road-related sediment

sources within 20 years and 50 percent

of controllable upslope sediment

sources within 40 years, (3) numeric

targets including specified numerical

values for percent fine sediments,

frequency of pools in stream habitat

profiles, and improving trends in large

woody debris, (4) an implementation

plan which specifies that either default

prescriptions be observed or a sitespecific plan be implemented that

provides assurances that source

reduction targets will be met, (5)

assurances that sediment reduction or

control goals are capable of being met

and that the concept of site-specific

planning and implementation by

landowners provides a flexible

framework, (6) a monitoring plan to

verify that conservation practices are

implemented and to measure

effectiveness.

The TMDL process provides a

flexible, adaptive management approach

that relies on substantial public input

and participation to set targets, identify

protection measures and implement and

monitor corrective practices. The

completion of the Garcia River TMDL,

and the initiation of TMDLs for the

other listed rivers, represents a

significant step forward in improving

watershed health for steelhead and

other salmonids on the north coast of

California. In the long-term, the

development and implementation of

these TMDLs should be beneficial for

steelhead; however, their development

and implementation will be difficult

and it will take many years to assess

their efficacy in protecting steelhead

habitat. Furthermore, it is essential that

the EPA consults with NMFS on the

formulation of TMDLs in waters that

contain listed salmonids. Such

consultations will help ensure TMDLs

adequately address the needs of these

species.

5. State Hatchery and Harvest

Management

Hatchery Management. In an attempt

to mitigate the loss of habitat and

enhance fishing opportunities, extensive

hatchery programs have been

implemented throughout the range of

steelhead on the west coast. While some

of these programs have succeeded in

providing fishing opportunities, the

impacts of these programs on native,

naturally-reproducing stocks are not

well understood. Competition, genetic

introgression and disease transmission

resulting from hatchery introductions

may significantly reduce the production

and survival of native, naturallyreproducing steelhead (NMFS, 1996).

Collection of native steelhead for

hatchery broodstock purposes often

harms small or dwindling natural

populations. Artificial propagation can

play an important role in steelhead

recovery through carefully controlled

supplementation programs.

In the past, non-native steelhead

stocks have been introduced as

broodstock in hatcheries and widely

transplanted in many coastal rivers and

streams in California (Bryant, 1994;

Busby et al., 1996; NMFS, 1997a).

Because of problems associated with

this practice, DFG has developed and

implemented a Salmon and Steelhead

Stock Management Policy. This policy

recognizes that mixing of non-native

stocks with native stocks is detrimental,

and seeks to maintain the genetic

integrity of all identifiable stocks of

salmon and steelhead in California, as

well as to minimize interactions

between hatchery and natural

populations.

NMFS’s BRT identified the

potentially adverse impacts of

interactions between hatchery (Mad

River hatchery) and wild steelhead as an

important concern with regard to the

northern California ESU (NMFS, 1997a).

As part of its strategic management plan

for this ESU, DFG has implemented

several changes in its hatchery

practices. In addition, DFG has

implemented several additional

measures pursuant to the 1998 NMFS/

California MOA. These hatchery

management measures include:(1)

marking of all hatchery steelhead

released from the Mad River hatchery

and all cooperative rearing facilities in

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36089

the Northern California ESU; (2)

continuation of long-standing hatchery

management practices aimed at

minimizing hatchery and wild steelhead

interactions including prohibitions on

stocking of resident trout in anadromous

waters; (3) releasing hatchery steelhead

only at times, sizes and places that

minimize impacts on naturally

produced fish; (4) only releasing

hatchery fish that are determined to be

healthy; (5) initiation of monitoring

efforts intended to measure hatchery

fish stray rates; and (6) a joint NMFS/

DFG review of the Mad River hatchery

including its stocking history, analysis

of current broodstock, and its

consistency with the strategic

management plan for the northern

California ESU.

Fisheries Management. In conjunction

with the improved hatchery

management practices, in-river sport

fisheries in the northern California ESU

now focus on harvest of marked,

hatchery-produced steelhead, and sport

fishing regulations have been modified

to protect wild adult and juvenile

steelhead.

Other Natural or Human-Made Factors

Affecting Continued Existence of

Steelhead

Natural climatic conditions have

exacerbated the problems associated

with degraded and altered riverine and

estuarine habitats. Persistent drought

conditions have reduced already limited

spawning, rearing and migration habitat.

Climatic conditions appear to have

resulted in decreased ocean

productivity which, during more

productive periods, may help offset

degraded freshwater habitat conditions

(NMFS, 1996).

Efforts Being Made to Protect West

Coast Steelhead

Section 4(b)(1)(A) of the ESA requires

the Secretary of Commerce to make

listing determinations solely on the

basis of the best scientific and

commercial data available after

conducting a review of the status of the

species and after taking into account

efforts being made to protect the

species. Therefore, in making its listing

determinations, NMFS first assesses the

status of the species and identifies

factors that have lead to the decline of

the species. NMFS then assesses

conservation measures to determine if

they ameliorate risks to the species.

In judging the efficacy of existing

conservation efforts, NMFS considers

the following: (1) the substantive,

protective, and conservation elements of

such efforts; (2) the degree of certainty

such efforts will be reliably

implemented; and (3) the presence of

monitoring provisions that determine

effectiveness and that permit adaptive

management. In some cases,

conservation efforts may be relatively

new and may not have had time to

demonstrate their biological benefit. In

such cases, provisions for adequate

monitoring and funding of conservation

efforts are essential to ensure intended

conservation benefits are realized.

As part of its west coast steelhead

status review, NMFS reviewed an array

of protective efforts for steelhead and

other salmonids, ranging in scope from

regional strategies to local watershed

initiatives. NMFS summarized some of

the major efforts in a document entitled

‘‘Steelhead Conservation Efforts: A

Supplement to the Notice of

Determination for West Coast Steelhead

under the Endangered Species Act’’

(NMFS, 1996c). NMFS also reviewed

conservation measures being

implemented by the State of California

for steelhead at the time of its final

listing determination for the northern

California, Klamath Mountains

Province, and Central Valley steelhead

ESUs (63 FR 13347, March 19, 1998).

The following sections update the

current status of the State of California’s

conservation efforts for steelhead with

particular emphasis on the northern

California steelhead ESU.

The state of California’s conservation

efforts that address steelhead in the

northern California ESU include: (1)

development of the State’s Watershed

Protection Program, which includes

funding and implementation of an

expanded watershed planning and

habitat restoration program; (2)

implementation of the DFG’s strategic

management plan for the northern

California ESU and (3) implementation

of the 1998 NMFS/California MOA

which addresses management of coastal

steelhead in northern California. The

status of these conservation efforts is

discussed in more detail below.

California Watershed Protection

Program and Implementation of SB 271

In July 1997, California’s Governor

created the State’s Watershed

Restoration and Protection Council

(WPRC) for the purpose of: (1)

overseeing all state activities aimed at

watershed protection and enhancement,

including the conservation and

restoration of anadromous salmonids in

California; and (2) directing the

development of a California Watershed

Protection Program that would provide

for the conservation of anadromous

salmonids in the state of California. A

working group of the WPRC issued a

detailed report in December, 1998

entitled ‘‘Protecting California’s

Anadromous Fisheries.’’ The Executive

Order that established this program

expired in January, 1999; however,

continued coordination of the program

is occurring under the auspices of the

California Biodiversity Council (CBC).

NMFS is encouraged that the State

initiated a comprehensive, watershedbased approach to salmon management

and restoration; however, the California

Watershed Protection Program is still

under development and has not been

implemented as originally envisioned.

To support the Governor’s WPRC and

its efforts to develop a Watershed

Protection Program, DFG implemented a

$3 million Watershed Initiative in 1997–

98 for coastal watershed projects north

of San Francisco, through its Fishery

Restoration Grants Program. These

projects focused on watershed and

riparian habitat restoration, instream

habitat restoration; watershed

evaluation, assessment, and planning;

and restoration project maintenance and

monitoring. Beginning in 1998–1999,

DFG funded additional staff positions to

assist in watershed planning efforts and

grant proposal development.

A key element of the State’s

Watershed Protection Program that is

also specified in the 1998 NMFS/

California MOA is DFG’s

implementation of an expanded habitat

restoration program for coastal

salmonids, including steelhead. In 1997,

the California legislature enacted Senate

Bill 271 which provided DFG with $43

million over six years for habitat

restoration and watershed planning to

benefit anadromous salmonids in

coastal watersheds, including the

geographic area which encompasses the

northern California steelhead ESU. The

program was initiated in 1997–98 and

has expanded since that time. Based on

the SB 271 legislation, funding is

expected to continue through at least

2002. Substantial funding from this

program has been committed to habitat

restoration, enhancement, and

watershed planning efforts within the

northern California steelhead ESU since

1997–98. Throughout Humboldt and

Mendocino counties, which constitute

much of the geographic area comprising

the northern California steelhead ESU,

DFG has funded over 200 projects

costing in excess of $7.5 million during

the past three years (1997–98 through

1999–2000). NMFS participates as an

ex-officio member of the Advisory

Committee that reviews the distribution

of SB 271 grant funding to ensure that

available funds are spent on projects

that will contribute to the conservation

of listed salmonids as well as north

coast steelhead. In addition to the

36090 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

expanded habitat restoration program

funded by SB 271, DFG has added

additional staff positions to assist in

administering the program, provide

technical support in the development of

watershed plans and habitat restoration

projects and implement a new steelhead

monitoring and adaptive management

program throughout coastal northern

California.

Northern California Steelhead ESU

Strategic Plan

In February 1998, DFG completed its

strategic management plan for steelhead

stocks in the northern California ESU

(DFG 1998). In March 1998, the State

and DFG formally committed to

implement this plan as part of the

NMFS/California MOA. The plan

describes existing and new management

measures for recreational steelhead

angling, steelhead hatchery programs,

and steelhead monitoring, assessment

and adaptive management efforts in this

ESU. In addition, the plan describes

DFG’s ongoing efforts to protect and

enhance steelhead habitat within this

ESU. These management measures were

intended to provide immediate

protection for steelhead populations in

this ESU, while longer-term measures

were implemented to protect

anadromous fish habitat on non-federal

lands through the Watershed Protection

Program and the SB 271 habitat

restoration program. The main elements

of the northern California steelhead

strategic management plan are briefly

discussed here.

1. Harvest Measures

The strategic management plan

includes several harvest management

actions which are intended to reduce

impacts on adult and juvenile steelhead

in the Northern California ESU. These

include: (1) no retention of unmarked

(i.e., naturally produced) adult and

juvenile steelhead in all rivers and

streams; (2) fishing closures in steelhead

rearing tributaries to protect juveniles;

(3) expanded closures in mainstem

rivers through May to protect

outmigrating juvenile steelhead; and (4)

various gear and bait restrictions

designed to reduce mortality associated

with incidental hooking of steelhead.

In February and March 1998, the

California Fish and Game Commission

(Commission) adopted emergency

changes to the State’s inland fishing

regulations which were intended to

implement the harvest regulation

changes contained in the northern

California steelhead strategic

management plan. In conjunction with

the final listing determination for this

ESU in March 1998 (63 FR 13347),

NMFS reviewed these regulatory

changes and concluded that they would

substantially reduce impacts to adult

and juvenile steelhead and also assist in

the conservation of the ESU (NMFS,

1998). These emergency regulations

were formally enacted by the

Commission in June 1998 following

public review and comment, and they

currently remain in place. NMFS

believes that these angling regulations

continue to provide the reduction in

impacts and conservation benefits that

were expected at the time the decision

was made not to list this ESU in March

1998.

2. Hatchery Measures

The strategic plan for the northern

California ESU contains a wide range of

existing and new hatchery management

measures that are intended to reduce the

impacts of hatchery steelhead programs

on wild steelhead populations in this

ESU. Measures incorporated into the

plan include: (1) release strategies that

require a minimum 6’’ size and release

at the hatchery rather than off-site; (2)

marking of all hatchery-produced fish

that are released and the

implementation of spawner surveys to

assess the extent to which hatchery fish

stray into natural spawning areas; (3) a

commitment to reduce hatchery releases

or implement other changes in hatchery

practices if significant straying of

hatchery fish is found to occur; (4) a cap

on hatchery production to current

levels, regular health checks during

each rearing cycle and the destruction of

diseased fish that cannot be effectively

treated; (5) a review of the existing

operating procedures for all cooperative

rearing facilities permitted by the State;

and (6) adoption of a requirement that

all cooperative facilities develop and

submit five-year management plans to

the State for approval. NMFS previously

reviewed these existing and new

hatchery management measures and

concluded that they would substantially

reduce potential impacts to wild

steelhead (NMFS, 1998d). Because of

NMFS concerns regarding the

operations of the the Mad River

Hatchery which is located in this ESU,

DFG also committed in the 1998 NMFS/

California MOA to: (1) undertake a

comprehensive review of the hatchery

program, including its stocking history

and genetic analysis of current

broodstock; and (2) develop a plan to

eliminate any adverse impacts of

hatchery operations on northern

California steelhead if necessary.

The DFG implemented a statewide

mass-marking program for its hatchery

steelhead programs beginning in 1997

which includes the hatchery steelhead

programs in the northern California

steelhead ESU. DFG is also requiring all

cooperative rearing programs that

produce steelhead in this ESU to mark

all released fish. This marking program

has continued since its implementation

in 1997 and DFG is committed to

continuing this program into the future.

The DFG and the NMFS have also

initiated a comprehensive review of

DFG’s hatchery programs in this ESU

(Mad River Hatchery and cooperative

rearing programs), with the objective of

ensuring that these programs are

compatible with the conservation of

naturally produced steelhead. This

review is expected to be completed in

2000. Comprehensive monitoring of

stray rates for hatchery produced fish

has not been implemented in this ESU,

but DFG expects to begin a north coast

steelhead monitoring program in 2000.

3. Steelhead Monitoring and Adaptive

Management

The strategic management plan for the

northern California ESU identifies

ongoing and expanded monitoring

programs to assess steelhead abundance.

A commitment to implement these

programs is contained in the 1998

NMFS/California MOA. A key element

of this monitoring program was a

commitment to establish a joint

scientific and technical team including

representatives from DFG and NMFS to

design appropriate detailed monitoring

programs for steelhead in this ESU.

NMFS considered these monitoring

efforts critically important given the

uncertain status of steelhead

populations in these ESUs, and

indicated that adequate State funding

was critical to implementing the

program (63 FR 13347, March 19, 1998).

As part of the NMFS/California MOA,

both DFG and NMFS committed to seek

adequate funding for this program. The

DFG has taken significant steps to

implement this expanded steelhead

monitoring program in the northern

California steelhead ESU, but the full

program has not been yet fully

developed or implemented. The DFG

has committed significant fiscal

resources to hire and redirect existing

staff resources to create a north coast

steelhead monitoring team and program

that will address the northern California

steelhead ESU as well as areas further

north in California, and has established

a scientific and technical team to guide

development of this effort. A set of

comprehensive monitoring proposals

have been developed which are under

review by the scientific and technical

team. NMFS expects the finalized

monitoring program for this ESU to be

implemented in early 2000.

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36091

NMFS/California Memorandum of

Agreement

NMFS evaluated a wide range of

conservation efforts that California had

adopted or was in the process of

developing in conjunction with NMFS’

decision not to list the northern

California steelhead ESU (63 FR 13347,

March 19, 1998). NMFS concluded that

DFG’s harvest and hatchery programs

for this ESU would increase adult

escapement, increase juvenile survival,

and reduce adverse impacts of hatchery

populations on wild fish. In the nearterm, NMFS expected these measures

would contribute to improved survival

and population stability for steelhead.

In addition, DFG’s monitoring and

adaptive management programs were

expected to provide State and Federal

managers with the ability to assess the

status of steelhead populations and their

response to harvest and hatchery

management changes. However, NMFS

was also concerned that California’s

habitat protection efforts, (e.g.,

development of a Watershed Protection

Program and implementation of the

expanded habitat restoration program

established by SB 271), were not

adequate to secure properly functioning

habitat conditions for this ESU over the

long-term. To address these concerns,

NMFS entered into a MOA with the

State (NMFS/California MOA, 1998).

Under the terms of the NMFS/

California MOA, the State committed to

a broad range of measures including: (1)

compliance with existing State

regulations, with particular emphasis on

the management measures contained in

the strategic management plans for

north coast steelhead; (2)

implementation of harvest and hatchery

management measures contained in the

strategic management plan for northern

California steelhead; (3) implementation

of a monitoring evaluation and adaptive

management program for steelhead,

including those elements contained in

the strategic management plan for

northern California steelhead; (4)

continued implementation of a

California Watershed Protection

Program, including the SB 271

watershed planning and habitat

restoration program in coastal

watersheds, and the joint review and

revision of the State’s forest practice

rules (FPRs) in conjunction with a

scientific review panel to ensure that

the revised FPRs were adequate to

conserve anadromous salmonids,

including steelhead. As previously

discussed, because of the

preponderance of private timber lands

and timber harvest activity in the

northern California ESU, NMFS

considered this to be a critically

important provision in the MOA.

Many of the provisions in the NMFS/

California MOA relating to the northern

California steelhead ESU have been or

are being implemented by the State;

however, critically important provisions

related to revision of the FPRs have not

been implemented. The current status of

the State’s effort to implement the MOA,

with particular regard to the Northern

California steelhead ESU, is discussed

here.

1. Compliance with existing State

regulations

In accordance with section 4 of the

NMFS/California MOA, the DFG made

recommendations to the Fish and Game

Commission to implement detailed

angling regulation changes contained in

the strategic management plan for

northern California steelhead. The

Commission adopted these

recommendations on an emergency

basis in February 1998 and permanent

regulations became effective in August

1998. Within this ESU, these regulations

specifically prohibit retention of

naturally spawned adult steelhead,

prohibit fishing for naturally produced

juvenile steelhead in tributary streams,

minimize the angling impacts on

juvenile steelhead in mainstem rearing

areas through gear/bait restrictions,

prohibit retention of summer steelhead

and prohibit fishing in their summer

holding areas and provide for the

retention of marked, hatchery-produced

steelhead.

2. Harvest and Hatchery Management

In accordance with section 6 of the

NMFS/California MOA, two provisions

have been implemented. First, the DFG

recommended and the Fish and Game

Commission adopted permanent

regulations that provide only for the

retention of non-listed, hatcheryproduced steelhead. Second, the DFG

has implemented a state wide mass

marking program for hatchery produced

steelhead. This program was initiated

with brood year 1997 steelhead released

in winter 1998, and the marking

program has continued annually since

that time. This program has resulted in

complete marking of all steelhead

produced at the Mad River Hatchery,

which is located in this ESU. In

addition, DFG is requiring that all

cooperative rearing programs that

produce steelhead mark them prior to

release.

Three additional provisions contained

in section 6 of the NMFS/California

MOA have not yet been implemented,

but are either in progress or will be

initiated shortly. To date, DFG has not

implemented a process for establishing

recovery and strategic goals for north

coast steelhead, including this ESU, nor

has it initiated a monitoring program to

measure stray rates of hatchery

produced steelhead. However, the DFG

has established a North Coast Steelhead

Monitoring Program to develop and

implement a monitoring program,

which will include the northern

California steelhead ESU, and a joint

scientific and technical team to provide

guidance to the program. DFG has

developed a preliminary monitoring

program and is consulting the joint

scientific and technical team to refine

the program and explore options for

establishing recovery and strategic goals

within this ESU. NMFS anticipates that

this program will commence in 2000.

Although the monitoring program

specified in the NMFS/California MOA

has not been fully implemented, DFG

has continued to carry out several

monitoring and research programs on

the north coast, primarily in the

Klamath Mountains Province ESU,

which have provided data useful for the

management of steelhead. Finally,

NMFS and DFG have recently

undertaken a state-wide review of the

State’s hatchery programs, including the

Mad River Hatchery which is located in

this ESU, as well as the State’s

cooperative rearing program which has

a small number of projects within this

ESU. This review is expected to be

completed by June 2000.

3. Monitoring Evaluation and

Adaptive Management

In accordance with section 7 of the

NMFS/California MOA, the DFG has

implemented, at least in part, two key

provisions. First, the DFG has

established a joint scientific and

technical team to assist it with the

development of a comprehensive

monitoring program for steelhead on the

north coast, including the northern

California ESU. The NMFS/California

MOA called for this program to be

developed by June 1998; however, as

discussed in the preceding section, DFG

has not yet completed development of

the study plan or initiated a

comprehensive monitoring program.

Second, the DFG has secured the

necessary funding to establish a north

coast steelhead monitoring program,

including the dedication of professional

staff and the acquisition of necessary

equipment and facilities. A preliminary

monitoring program plan has been

developed by the monitoring program

staff, and this plan is currently under

review by the joint scientific and

technical team.

4. California’s Watershed Protection

Program

Section 9 of the NMFS/California

MOA commits the State to continue

36092 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

development of its Watershed

Protection Program, with a specific

element addressing salmonid

conservation, and to coordinate with

NMFS in establishing a scientific review

panel that would advise the State in its

development of this program. In

addition, Section 9 commits the State to

direct personnel and fiscal resources to

implement an expanded habitat

restoration program in coastal

watersheds using SB 271 funds. Details

of the State’s Watershed Protection

Program and DFG’s efforts to implement

expanded watershed planning and

habitat restoration in coastal watersheds

were described previously (see Efforts

Being Made to Protect West Coast

Steelhead).

Section 9 of the NMFS/California

MOA contains several measures relating

to the review and revision of the State’s

FPRs because of NMFS’s concerns

regarding the effects of State-regulated

timber harvest freshwater habitat

conditions for anadromous salmonids,

including steelhead in the Northern

California ESU. Specifically, the NMFS/

California MOA calls for: (1) a joint

review of the FPRs by NMFS and the

State, including their implementation

and enforcement, (2) the State to make

appropriate changes in implementation

and enforcement, if necessary, (3) the

State, in consultation with NMFS, to

make recommendations to the BOF for

changes in the FPRs necessary to

conserve anadromous salmonids, and

(4) the BOF to complete action on the

recommended changes in the FPRs by

January 2000. Full implementation of

these NMFS/California MOA

provisions, including implementation of

changes in the FPRs by January 1, 2000,

was a critical factor in NMFS’s decision

to not list the northern California

steelhead ESU. For details of the State’s

current FPRs, including the recently

adopted interim FPR changes, see

Inadequacy of Existing Regulatory

Mechanisms.

Listing 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 the

listing determination 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.

In December 1997, the NMFS’

steelhead BRT concluded that the

Northern California steelhead ESU was

likely to become endangered in the

foreseeable future based on a review of

the best available biological information

(NMFS, 1997). Based on a review of

updated abundance and trend

information that was available for this

ESU, NMFS’s SWFSC (NMFS, 2000)

concluded that the current biological

status of the ESU has changed little

since it was last evaluated in 1997.

Updated abundance and trend data

show small increases for winter and

summer steelhead in the Eel River, but

current abundance is well below

estimates in the 1980s and even further

reduced from levels in the 1960s.

Redwood Creek summer steelhead

abundance remains very low. There are

no new data suggesting substantial

increases or decreases in populations

since the last updated status review was

completed. The Eel River winter and

summer steelhead populations, which

represent the best available data set for

this ESU, are still severely reduced from

pre–1960s levels.

As discussed elsewhere in this final

rule, California has implemented several

of the conservation measures that NMFS

relied upon in making its decision not

to list the northern California ESU.

Specifically, the State has enacted

substantial changes to the State’s inriver angling regulations in 1998 to

protect coastal steelhead populations

including steelhead in this ESU. These

regulations, with slight modification,

remain in effect, and NMFS believes

they continue to provide the substantial

protection and conservation benefits

that were expected to occur at the time

of the decision not to list this ESU. The

State has also implemented, or begun to

implement, several other conservation

measures for this ESU, including

extensive watershed planning and/or

habitat restoration through the SB 271

program, marking of hatchery produced

steelhead and other improvements in

hatchery practices, and steelhead

monitoring. Although implementation

of some of these measures has been

delayed, as is the case for the steelhead

monitoring program, NMFS continues to

believe that these efforts will

collectively benefit steelhead in this

ESU and eventually contribute to an

improved understanding of its status.

Although these conservation efforts

are expected to benefit steelhead in this

ESU, NMFS continues to believe that

improved habitat protection and

restoration of properly functioning

freshwater habitat conditions for

spawning, rearing, and migration are

essential to the long-term survival and

recovery of this ESU. Because Federal

land ownership is both fragmented and

limited in this ESU (approximately 19

percent of ESU), the key to achieving

habitat protection and properly

functioning habitat conditions in this

ESU is the improvement of land

management activities on non-Federal

lands (approximately 81 percent of

ESU). To ensure improved protection of

habitat on non-Federal lands in this

ESU, the NMFS/California MOA

contained several provisions for the

review and modification of the State’s

FPRs. Full implementation of these

provisions, including implementation of

changes in the FPRs by January 1, 2000,

was a critical factor in NMFS’s previous

decision not to list this ESU. Because

the State has not implemented changes

in the FPRs necessary to protect

steelhead in this ESU, NMFS believes

that critically important conservation

measures are not being implemented to

reduce the threats to this ESU from

timber harvest activities on non-Federal

lands. Consequently, NMFS concludes

that existing State and Federal

conservation measures collectively fail

to provide for the attainment of properly

functioning habitat conditions necessary

to provide for the long-term protection

and conservation of this ESU.

Based on a review of the best

available information, therefore, NMFS

concludes that the Northern California

steelhead ESU warrants listing as a

threatened species at this time. In

arriving at this determination, NMFS

carefully considered the December 1997

scientific conclusions of the BRT

regarding this ESU, the results of an

updated status review for the ESU

(NMFS, 2000), the status of State and

Federal conservation efforts directed at

protecting steelhead in this ESU,

including implementation of provisions

contained in the NMFS/California

MOA.

NMFS previously examined the

relationship between hatchery and

natural populations of steelhead in this

ESU, and also assessed whether any

hatchery populations are essential for

their recovery. At this time, NMFS does

not believe any specific hatchery

populations in this ESU are essential for

recovery and therefore none are listed.

Accordingly, only naturally reproduced

populations of steelhead and their

progeny in this ESU are listed as a result

of this determination.

However, the determination that a

hatchery stock is not essential for

recovery at this time does not preclude

it from playing a role in recovery in the

future if such a conservation measure is

warranted. Any hatchery population

that is part of the ESU is potentially

Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations 36093

available for use in recovery if

circumstances warrant it. In this

context, an essential hatchery

population is one that is vital to

incorporate into recovery efforts. If in

the future any hatchery population in

this ESU is determined to be essential

for recovery and is integrated into

recovery efforts, NMFS will consider

taking the administrative action of

listing that hatchery population.

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.’’

For unlisted hatchery populations

that are part of the Northern California

ESU, NMFS believes it may be desirable

to incorporate naturally spawned, listed

fish into the broodstock to ensure that

its genetic and life history

characteristics do not diverge

significantly from natural populations.

Therefore, NMFS may allow the

collection of broodstock for this use if

it is consistent with an acceptable

conservation plan (e.g., Hatchery and

Genetic Management Plan) for the ESU.

If listed fish are used as broodstock

consistent with an acceptable

conservation plan, NMFS may

determine that it is not necessary to

consider the progeny of intentional

hatchery x listed crosses as listed fish

(except in those cases where the

hatchery population is listed as well).

NMFS believes this is consistent with

NMFS’ interim policy and with the

policy and purposes of the ESA.

At this time, NMFS is only listing the

anadromous life forms of O. mykiss.

Prohibitions and Protective Measures

Section 4(d) of the ESA requires

NMFS to issue protective regulations it

finds necessary and advisable to provide

for the conservation of threatened

species. Section 9 of the ESA prohibits

violations of protective regulations for

threatened species promulgated under

ESA section 4(d). The ESA 4(d)

protective regulations may prohibit,

with respect to the threatened species,

some or all of the acts which section 9

of the ESA prohibits with respect to

endangered species. These ESA section

9 prohibitions and 4(d) regulations

apply to all individuals, organizations,

and agencies subject to U.S. jurisdiction.

NMFS intends to develop and

promulgate an ESA 4(d) protective

regulation for the northern California

steelhead ESU in a separate rulemaking.

The process for completing the ESA 4(d)

rule will provide the opportunity for

public comment on the proposed

protective regulations.

In the case of threatened species,

NMFS has flexibility under ESA section

4(d) to tailor the protective regulations

to provide for the conservation of the

species. 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 fishery resources. In those

cases where well-developed, reliable

conservation plans exist, NMFS may

choose to incorporate them into the

recovery planning process, starting with

the protective regulations. For example,

the interim ESA 4(d) rule for the

Southern Oregon/Northern California

coho (62 FR 24588, May 7, 1997) does

not prohibit habitat restoration activities

conducted in accordance with approved

plans or fisheries under an approved

state management plan. NMFS recently

proposed ESA 4(d) regulations for 14

ESUs of steelhead and salmon (64 FR

73479). Any future ESA 4(d) protective

regulation for the Northern California

steelhead ESU is likely to be comparable

to the 4(d) regulations proposed for

steelhead, and therefore, contain

limitations on the section 9 take

prohibitions for activities such as

recreational angling, artificial

propagation, habitat restoration,

scientific research and other activities

when they are conducted in accordance

with approved conservation plans.

Sections 7(a)(2) and 7(a)(4) of the ESA

require Federal agencies to consult with

NMFS to ensure that activities they

authorize, fund, or conduct are not

likely to jeopardize the continued

existence of a listed species or a species

proposed for listing, or adversely

modify critical habitat or proposed

critical habitat. Examples of Federal

actions likely to affect steelhead in the

Northern California ESU include

authorized land management activities

of the USFS and BLM, operation of

hydroelectric and storage projects

permitted by FERC, and activities

permitted by the Corps of Engineers.

Such activities may include timber sales

and harvest, permitting livestock

grazing, hydroelectric power generation,

and flood control. Other Federal actions,

including the Corps section 404

permitting activities under the CWA

and section 10 permitting under the

Rivers and Harbors Act, and FERC

licenses for non-Federal development

and operation of hydropower may also

require consultation.

Sections 10(a)(1)(A) and 10(a)(1)(B) of

the ESA provide NMFS with authority

to grant exceptions to the ESA’s ‘‘take’’

prohibitions. Section 10(a)(1)(A)

scientific research and enhancement

permits may be issued to entities

(Federal and non-Federal) for scientific

purposes or to enhance the propagation

or survival of a listed species. NMFS has

issued section 10(a)(1)(A) research/

enhancement permits for listed chinook

salmon and steelhead for a number of

activities, including trapping and

tagging, electroshocking to determine

population presence and abundance,

removal of fish from irrigation ditches

and collection of adult fish for artificial

propagation programs.

Section 10(a)(1)(B) incidental take

permits may be issued to non-Federal

entities performing activities which may

incidentally take listed species so long

as the taking is incidental to, and not

the purpose of, the carrying out of an

otherwise lawful activity. The types of

activities potentially requiring a section

10(a)(1)(B) incidental take permit

include the operation and release of

artificially propagated fish by state or

privately operated and funded

hatcheries, state or academic research

not receiving Federal authorization or

funding, logging, road building, grazing,

and diverting water into private lands.

Take Guidance

NMFS and the FWS published in the

Federal Register on July 1, 1994 (59 FR

34272), a policy that NMFS shall

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 this listing on proposed and

ongoing activities within the species’

range. NMFS believes that the following

actions are not likely to be prohibited in

an ESA 4(d) rule and therefore will not

result in a violation of section 9:

1. Possession of steelhead from any

steelhead ESU listed as threatened

which are 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.

2. Federally funded or approved

projects that involve activities such as

silviculture, grazing, mining, road

construction, dam construction and

operation, discharge of fill material,

stream channelization or diversion for

which section 7 consultation has been

completed, and when activities are

conducted in accordance with any terms

and conditions provided by NMFS in an

incidental take statement accompanying

a biological opinion.

36094 Federal Register / Vol. 65, No. 110 / Wednesday, June 7, 2000 / Rules and Regulations

Activities that NMFS believes could

potentially harm steelhead in the

northern California ESU and, therefore,

may be prohibited in a 4(d) rule

applying section 9 take prohibitions,

include, but are not limited to:

1. Land-use activities that adversely

affect steelhead habitat in the proposed

ESU (e.g., logging, grazing, farming,

urban development, road construction

in riparian areas and areas susceptible

to mass wasting and surface erosion).

2. Destruction/alteration of the

steelhead habitat in the proposed ESU,

such as removal of large woody debris

and ‘‘sinker logs’’ or riparian shade

canopy, dredging, discharge of fill

material, draining, ditching, diverting,

blocking, or altering stream channels or

surface or ground water flow.

3. Discharges or dumping of toxic

chemicals or other pollutants (e.g.,

sewage, oil, gasoline) into waters or

riparian areas supporting steelhead in

the proposed ESU.

4. Violation of discharge permits.

5. Pesticide applications.

6. Interstate and foreign commerce of

steelhead from the listed ESU and

import/export of steelhead from any

ESU without a threatened or endangered

species permit.

7. Collecting or handling of steelhead

from the listed ESUs. Permits to conduct

these activities are available for

purposes of scientific research or to

enhance the propagation or survival of

the species.

8. Introduction of non-native species

likely to prey on steelhead in the listed

ESU or displace them from their habitat.

These lists are not exhaustive. They

are intended to provide some examples

of the types of activities that might or

might not be considered by NMFS as

constituting a take of steelhead in the

northern California ESU under the ESA

and its regulations. Questions regarding

whether specific activities will

constitute a violation of the section 9

take prohibitions, and general inquiries

regarding prohibitions and permits,

should be directed to NMFS (see

ADDRESSES).

Critical Habitat

Section 4(a)(3)(A) of the ESA requires

that, to the maximum extent prudent

and determinable, NMFS designate

critical habitat concurrently with a

determination that a species is

endangered or threatened. Pursuant to

4(b)(6)(C)(ii), if critical habitat is not

then determinable, however, NMFS may

extend the designation for up to one

year after the date of the final rule

listing the species. While NMFS has

completed its initial analysis of the

biological status of steelhead in the

Northern California ESU, it has not

performed the full analysis necessary for

designating critical habitat at this time.

Since critical habitat is not now

determinable for the Northern California

ESU, NMFS intends to develop a critical

habitat proposal for designation within

the next year.

References

A complete list of all cited references

is available upon request (see

ADDRESSES).

Classification

National Environmental Policy Act

The 1982 amendments to the ESA, in

section 4(b)(1)(A), restrict the

information that may be considered

when assessing species for listing. Based

on this limitation of criteria for a listing

decision and the opinion in Pacific

Legal Foundation v. Andrus, 675 F. 2d

825 (6th Cir. 1981), NMFS has

concluded that ESA listing actions are

not subject to the environmental

assessment requirements of the National

Environmental Policy Act (NEPA). See

NOAA Administrative Order 216–6.

Executive Order 12866 and Regulatory

Flexibility Act

As noted in the Conference Report on

the 1982 amendments to the ESA,

economic impacts cannot be considered

when assessing the status of species.

Therefore, the economic analysis

requirements of the Regulatory

Flexibility Act (RFA) are not applicable

to the listing process. In addition, this

final rule is exempt from review under

Executive Order 12866.

Executive Order 13132—Federalism

In keeping with the intent of the

Administration and Congress to provide

continuing and meaningful dialogue on

issues of mutual State and Federal

interest, NMFS has conferred with State

and local government agencies in the

course of assessing the status of the

Northern California steelhead ESU, and

considered, among other things, state

and local conservation measures. State

and local governments have expressed

support both for the conservation of the

Northern California steelhead ESU and

for activities that affect this ESU. The

history and content of this dialogue, as

well as the basis for this action, is

described in the proposed rule, and in

other Federal Register Documents

preceding this action. (See 61 FR 41541,

August 9, 1996; 62 FR 43974, August 18,

1997, and 63 FR 13347, March 19,

1998). NMFS staff have had numerous

discussions with various governmental

agency representatives regarding the

status of this ESU, and have sought

working relationships with agencies and

others in order to promote salmonid

restoration efforts. In addition, NMFS’

staff have given presentations to

interagency forums and other interested

groups considering conservation

measures. NMFS has engaged in

informal and formal contacts with

affected state, local or regional entities,

giving careful consideration to all

written or oral comments received. As

one part of that process, NMFS held

public hearings on the proposed action.

NMFS also consulted with appropriate

elected officials in the establishment of

a final rule.

At this time NMFS is not

promulgating protective regulations

pursuant to ESA section 4(d) or

proposing to designate critical habitat.

Prior to finalizing ESA 4(d) regulations

for this ESU, or proposing to designate

critical habitat, NMFS will comply with

all relevant NEPA and RFA

requirements.

List of Subjects in 50 CFR Part 223

Endangered and threatened species,

Exports, Imports, Marine mammals,

Transportation.

Dated: May 31, 2000.

Penelope D. Dalton,

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. 1531–1543; subpart B,

Section 223.102 also issued under 16 U.S.C.

1361 et seq.

2. In § 223.102, paragraph (a)(22) is

added to read as follows:

§ 223.102 Enumeration of threatened

species.

* * * * *

(a) * * *

(22) Northern California steelhead

(Oncorhynchus mykiss). Includes all

naturally spawned populations of

steelhead (and their progeny) in coastal

river basins ranging from Redwood

Creek in Humboldt County, California to

the Gualala River, inclusive, in

Mendocino County, California.

[FR Doc. 00–14196 Filed 6–6–00; 8:45 am]

BILLING CODE 3510–22–F