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[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Rules and Regulations]
[Pages 19552-19563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7860]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 100323162-2182-03]
RIN 0648-XV30

Endangered and Threatened Species; Range Extension for Endangered 
Central California Coast Coho Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing 
a final rule under the Endangered Species Act (ESA) of 1973, as 
amended, that redefines the geographic range of the endangered Central 
California Coast (CCC) coho salmon (Oncorhynchus kisutch) 
Evolutionarily Significant Unit (ESU) to include all naturally spawned 
populations of coho salmon that occur in Soquel and Aptos creeks. 
Information supporting this boundary change includes recent 
observations of coho salmon in Soquel Creek, genetic analysis of these 
fish indicating they are derived from other nearby populations in the 
ESU, and the presence of freshwater habitat conditions and watershed 
processes in Soquel and Aptos Creeks that are similar to those found in 
closely adjacent watersheds that support coho salmon populations that 
are part of the ESU. We have also reassessed the status of this ESU 
throughout its redefined range and conclude that it continues to be 
endangered.

DATES: Effective June 1, 2012.

ADDRESSES: Assistant Regional Administrator, Protected Resources 
Division, Attn: Craig Wingert, Southwest Region, National Marine 
Fisheries Service, 501 W. Ocean Blvd., Suite 5200, Long Beach, CA, 
90802-4213.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region, 
(562) 980-4021; or Dwayne Meadows, NMFS, Office of Protected Resources, 
(301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    The Central California Coast (CCC) coho salmon Evolutionarily 
Significant Unit (ESU) was listed as a threatened species on October 
31, 1996 (61 FR 56138) and subsequently reclassified as an endangered 
species on June 28, 2005 (70 FR 37160). At the time it was reclassified 
as endangered in 2005, the ESU was defined to include all naturally 
spawning populations of coho salmon found in coastal watersheds from 
Punta Gorda in northern California southward to and including the San 
Lorenzo River in central California, as well as four artificially 
propagated stocks of coho salmon. For more information on the status, 
biology, and habitat of this coho salmon ESU, see ``Endangered and 
Threatened Species: Final Listing Determinations for 16 ESUs of West 
Coast Salmonids and Final 4(d) Protective Regulations for Threatened 
Salmonid ESUs; Final Rule'' (70 FR 37160; June 28, 2005) and ``Final 
Rule Endangered and Threatened Species; Threatened Status for Central 
California Coast Coho Salmon Evolutionarily Significant Unit (ESU)'' 
(61 FR 56138; October 31, 1996).
    The geographic boundaries of west coast coho salmon ESUs ranging 
from British Columbia to central California were originally delineated 
as part of a west coast status review for the species (Weitkamp et al., 
1995). In defining ESU boundaries for west coast coho salmon, NMFS 
considered a wide range of information including genetic and life 
history information for natural and hatchery populations, and 
environmental and habitat information for those watersheds that 
supported coho salmon either historically or at the time of the review. 
Based on a consideration of the best available information at that 
time, Weitkamp et al. (1995) concluded that the southern boundary of 
the CCC coho salmon ESU was the San Lorenzo River in Santa Cruz County, 
California. Weitkamp et al. (1995) also recognized that coho salmon 
could also occur in watersheds south of the San Lorenzo River and, 
therefore, concluded that any fish found spawning south of the San 
Lorenzo River that were not the result of non-native stock transfers 
from outside the ESU should be considered part of the ESU.
    In 2003, NMFS received a petition to delist those populations of 
the CCC coho salmon ESU that spawn in coastal streams south of the 
entrance to San Francisco Bay. The petition was eventually accepted by 
NMFS (75 FR 16745; April 2, 2010), which triggered a formal status 
review focused on determining whether the populations south of the 
entrance to San Francisco Bay were part of the ESU, what the 
appropriate southern boundary of the ESU should be, and the biological 
status of any revised ESU. In conducting this status review, new 
information became available indicating that the range of the ESU 
should be extended southward (Spence et al., 2011). This information 
included observations of coho salmon in Soquel Creek in 2008, genetic 
analysis of tissue samples indicating that the fish from Soquel Creek 
were closely related to nearby coho salmon populations in the ESU, and 
the ecological similarity of Soquel and Aptos creeks with other nearby 
creeks that support coho salmon. Based on this information, a review of 
the biological status of coho salmon populations within this ESU 
(Spence and Williams, 2011), and a consideration of the five factors 
listed under Section 4(a)(1) of the ESA, we proposed moving the 
southern boundary of the ESU south from the San Lorenzo River to 
include any coho salmon found in Soquel and Aptos creeks (76 FR 6383; 
February 4, 2011).

Summary of Peer Review and Public Comments on Proposed CCC Coho Salmon 
ESU Range Extension

Peer Review Comments
    In December 2004, the Office of Management (OMB) issued a Final 
Information Quality Bulletin for Peer Review establishing minimum 
standards for peer review. Similarly, a joint NMFS/U.S. Fish and 
Wildlife Service (FWS) Policy for Peer Review in Endangered Species Act 
Activities (59 FR 34270; July 1, 1994) requires us to solicit 
independent expert review from at least three qualified specialists on 
proposed listing determinations. Accordingly, we solicited reviews from 
three scientific peer reviewers having expertise with coho salmon in 
California and received comments from all three reviewers. We carefully 
reviewed the peer review comments and have addressed them as 
appropriate in this final rule. A summary of the peer review comments 
and our responses follow below.
Issue: Proposed ESU Range Extension
    Comment 1: Two of the peer reviewers fully supported our proposal 
to extend the southern boundary of the CCC coho salmon ESU to include 
coho salmon populations in Soquel and Aptos creeks. The reviewers cited 
information referenced in the proposed

[[Page 19553]]

rule and its supporting reports (Spence et al., 2011; Spence and 
Williams, 2011) as supporting the range extension, including: (1) The 
historic and recent occurrence of coho salmon in Soquel Creek, (2) the 
likely presence of coho salmon in Aptos Creek historically, (3) the 
similarity of freshwater habitat in Soquel and Aptos creeks to that 
found in the San Lorenzo River and other nearby streams that also 
support coho salmon or did in the past, and (4) the proximity of Soquel 
and Aptos creeks to nearby streams that support coho salmon.
    Response: We agree with the reviewers that the available evidence 
presented in the proposed rule and the supporting technical reports 
support our proposal to extend the ESU's range to include coho salmon 
populations in Soquel and Aptos creeks.
    Comment 2: One peer reviewer indicated that the streams immediately 
south of Aptos Creek, including the Pajaro, Salinas and Carmel rivers, 
are not likely to have historically supported sustainable coho salmon 
populations because: (1) Their spawning and rearing habitat is located 
much farther inland compared with Aptos and Soquel creeks (and other 
streams farther northward) making adult and juvenile migration 
difficult, (2) these habitats are likely to lose their connectivity to 
the ocean during periods of prolonged drought, and (3) coho salmon 
would therefore be unlikely to persist given their rigid 3-year life 
cycle.
    Response: We agree with the reviewer's comments and believe they 
support our decision not to include the Pajaro River in the proposed 
range extension. The reviewer's comments are also consistent with the 
rationale that led Spence et al. (2011) to conclude that the Pajaro 
River should not be included in any proposed range extension.
    Comment 3: One reviewer agreed that the available evidence supports 
extending the range of the ESU southward to include Soquel Creek, but 
contended that Aptos Creek should not be included in the proposed range 
extension because there is no evidence of recent or historic presence 
of coho salmon spawning in that watershed.
    Response: We disagree with the peer reviewer on this issue. Spence 
et al. (2011) explained at length why they concluded that both Soquel 
and Aptos creeks should be included in any range extension for this 
ESU, and their rationale was the basis for our proposal. First, they 
found there was no strong ecological reason that the distribution of 
coho salmon would have historically stopped at the San Lorenzo River 
(the current southern boundary of the ESU) because there is no 
significant ecological break along the coast before the southern edge 
of the Santa Cruz Mountains which marks the southern boundary of the 
Coast Range Ecoregion. Second, they indicated that Soquel and Aptos 
creeks are in the Coast Range Ecoregion, both are in very close 
proximity to the San Lorenzo River (approximately 7 and 10 km south, 
respectively), and both historically shared many habitat 
characteristics with the San Lorenzo and other similar sized coho 
salmon bearing streams to the north. Third, they indicated that the 
recent documentation of coho spawning in Soquel Creek suggests it is 
possible that coho salmon may also stray into Aptos Creek (as well as 
Soquel Creek) from populations in nearby watersheds to the north 
because of their close proximity.
    Based on the arguments presented in Spence et al. (2011), our 
proposal to extend the southern boundary of this ESU to include both 
Soquel and Aptos creeks was intended to ensure that any coho salmon 
found in either watershed in the future would be considered part of 
this ESU, and therefore, subject to protection under the ESA. Absent a 
formal range extension that includes Aptos Creek, we believe it would 
be difficult to ensure that any coho salmon found in that watershed 
would be protected under the ESA in the future. By formally including 
Aptos Creek in the range extension, we have provided the public and 
other entities with notice (and comment opportunity) that any coho 
salmon found there in the future will be considered part of the ESU and 
subject to protection under the ESA.
    Comment 4: The same peer reviewer that disagreed with our proposal 
to include Aptos Creek in the proposed range extension also questioned 
why Spence et al. (2011) did not recommend including the Pajaro River 
in the range extension since it may have also historically supported 
coho salmon just as was the case for Aptos Creek.
    Response: In evaluating the various alternative southern watershed 
boundaries for this ESU (e.g., San Lorenzo River, Soquel Creek, Aptos 
Creek, and the Pajaro River), Spence et al. (2011) considered three 
primary factors: (1) Evidence of historical and recent occurrence of 
coho in each watershed, (2) the historical suitability of freshwater 
habitats for coho salmon in each watershed, and (3) the geographic 
proximity of each watershed to other known populations of coho salmon. 
In making their recommendation for a southern boundary extension, 
Spence et al. (2011) weighed all of the available information related 
to these factors and concluded that the available evidence did not 
support including the Pajaro River in any range extension.
    Their reasons for not recommending inclusion of the Pajaro River in 
the range extension were: (1) The lack of recent or historical first 
hand accounts of coho salmon in the watershed, (2) the likelihood that 
environmental conditions were not favorable for coho salmon in the 
southern and eastern portions of the watershed because of habitat and 
environmental changes that occur in watersheds south of the Santa Cruz 
Mountains, (3) the high likelihood that any suitable habitat for coho 
salmon in the watershed (most likely in areas draining the Santa Cruz 
Mountains) would lose its connectivity to the ocean, unlike Soquel and 
Aptos creeks, during periods of drought, thereby precluding successful 
adult and juvenile migration to and from the ocean, and (4) the 
relatively low likelihood that coho salmon from streams to the north 
would stray into the watershed given its relative large distance from 
Aptos Creek and the San Lorenzo River (16 and 26 kilometers, 
respectively).
Issue: ESU Status and Characterization
    Comment 5: One peer reviewer commented that the long-term trend 
analysis presented by Spence and Williams (2011) for the abundance of 
several coho salmon populations in this ESU failed to emphasize the 
major decline in abundance that began for most of the populations 
starting in 2006. The peer reviewer contended that the main factor 
responsible for the population declines that began in 2006 was a 
significant reduction in ocean productivity that began in 2005 and 
adversely impacted the ocean survival of coho salmon.
    Response: We agree with the peer reviewer that the trend analysis 
presented in Spence and Williams (2011) does not reflect the 
significant population declines that were observed starting in 2006. 
Spence and Williams (2011) did note that the poor returns began in 
2006, but did not attribute the declines to any particular cause. We 
agree with the peer reviewer that these abrupt population declines 
beginning in 2006 were most likely caused by poor ocean conditions that 
started in 2005. Other salmon and steelhead populations in California 
also exhibited major declines in abundance during this period that were 
attributed to poor ocean productivity (Lindley et al., 2009), and 
therefore, it is reasonable to conclude that reductions in ocean 
productivity were the primary cause of

[[Page 19554]]

these coho salmon population declines as well.
    Comment 6: Each of the peer reviewers agreed with Spence and 
Williams (2011) that the extinction risk of this ESU has increased 
since it was last reviewed in 2005 and that our proposal to list the 
ESU as endangered was warranted.
    Response: We agree with the peer reviewers that extinction risk for 
this ESU has increased substantially since it was last reviewed in 2005 
and that the ESU therefore continues to warrant listing as an 
endangered species under the ESA.
    Comment 7: One peer reviewer felt it was inappropriate for the 
proposed rule to characterize the 2008 discovery of juvenile coho 
salmon in Soquel Creek (and the associated spawning that produced the 
juveniles) as a ``population'' of coho salmon because we do not know if 
those juveniles will produce returning adults that will successfully 
spawn in the future leading to a persistent population.
    Response: We agree with the peer reviewer that the proposed rule 
should not have characterized the observation of juvenile coho salmon 
in 2008 as a ``coho salmon population'' since this presumes that a 
persistent population of coho salmon has been established. Accordingly, 
we have revised the final rule where appropriate to indicate there is 
documented evidence of coho salmon spawning and rearing in Soquel Creek 
rather than evidence of a newly established coho salmon ``population.''
    Comment 8: One peer reviewer indicated that the technical reports 
supporting the proposed range extension (Spence et al., 2011; Spence 
and Williams, 2011) were inconsistent in how they described the number 
of spawning events that may have occurred in Soquel Creek in 2008.
    Response: The peer reviewer misinterpreted the description of how 
many spawning events occurred in Soquel Creek, and therefore, the 
reports are not inconsistent. In Spence and Williams (2011), the 
authors were referring to genetic analysis of fish collected in three 
watersheds, only one of which was Soquel Creek. The method of analysis 
used by the researchers referenced in the report can only provide a 
minimum number of spawners and for two of the streams (San Vincente and 
Alpine) the methodology indicated there had been a minimum of a single 
spawning pair. In Soquel Creek, however, the analysis indicated that 
there had been at least three individuals involved in spawning, which 
indicated that there were a minimum of two spawning events. Spence et 
al. (2011) indicate that the juveniles found in Soquel Creek were the 
product of at least two reproductive events, and therefore, the two 
reports are consistent.
Public Comments
    The proposed range extension for the CCC coho salmon ESU was 
published on February 4, 2011 (76 FR 6383) with a 60-day public comment 
period. Based on a request from one individual, we extended the public 
comment period for an additional 60 days, so the public comment period 
finally closed on June 6, 2011. Two written comment submittals were 
received on the proposed action. One set of comments was provided by 
the petitioner and largely focused on the scientific issues addressed 
in our 12-month finding on that petition as well as our scientific 
evaluation of the petition (Spence et al., 2011). The other commenter 
provided comments regarding the potential economic consequences of the 
proposed range extension. We carefully reviewed the comments to 
identify those issues that were within the scope of the rulemaking and 
have addressed those herein. A summary of those comments and NMFS' 
responses are presented below by specific issue.
Issue: Scientific Information Used To Support NMFS' 12-Month Finding 
That Coho Salmon Populations South of San Francisco Bay Are Part of the 
CCC Coho Salmon ESU and the Proposed Range Extension
    Comment 9: One commenter asserted that the available scientific 
information does not support NMFS' 12-month finding that coho salmon 
populations south of the entrance to San Francisco Bay are part of the 
CCC coho salmon ESU or our proposal to extend the geographic range of 
this ESU south to include coho salmon populations in Aptos and Soquel 
creeks. In making this assertion, the commenter argued there were gaps 
or other problems with the scientific information used by NMFS in 
making these determinations or that we somehow misinterpreted the 
available information. The scientific issues raised by the commenter in 
support of this assertion were: (1) NMFS' use of intrinsic potential 
modeling to evaluate historical habitat potential in watersheds south 
of the entrance to San Francisco Bay; (2) questions about recent fish 
surveys conducted by the Southwest Fisheries Science Center (SWFSC) in 
watersheds south of San Francisco; (3) the absence of genetic data for 
coho salmon from the San Lorenzo River; (4) inaccuracies in the 
historical hatchery stocking information for coho salmon considered by 
NMFS; (5) NMFS' interpretation of archeological data for coho salmon; 
and (6) NMFS's evaluation of coho salmon habitat suitability in areas 
south and immediately north of the entrance to San Francisco Bay. A 
general response to the commenter is provided here and each of the 
points identified in this comment to support the commenter's assertion 
are addressed in greater detail in comments 10 through 15.
    Response: We convened a biological review team (BRT) to thoroughly 
evaluate all of the information in the petition to delist coho salmon 
populations south of the entrance to San Francisco Bay, as well as all 
other relevant scientific data and information concerning the issues 
raised in the petition. Based on its review and analysis, the BRT 
concluded that: (1) Coho salmon populations south of the entrance to 
San Francisco Bay were native to the area and extant populations are 
part of the CCC coho salmon ESU; and (2) the southern boundary of the 
ESU should be moved farther south to include coho salmon populations 
occurring in Soquel and Aptos creeks (Spence et al., 2011). The BRT's 
review included an exhaustive assessment of information in the petition 
and other relevant information including: Evidence about coho salmon 
distribution in the historical literature; archeological data for coho 
salmon from native American Indian middens; the suitability of 
freshwater habitat conditions for coho salmon in coastal watersheds 
immediately north and south of San Francisco Bay; historical hatchery 
stocking information for coho salmon in watersheds south of San 
Francisco Bay; comprehensive genetic data collected for extant coho 
salmon populations throughout the range of the ESU including those 
south of San Francisco Bay; and recent information on the presence of 
coho salmon in watersheds south of San Francisco Bay including Soquel 
Creek. We believe that the BRT used the best available scientific 
information and that its conclusions regarding coho salmon populations 
south of the entrance to San Francisco Bay represent the most 
scientifically defensible interpretation of the available data. Our 12-
month finding and proposed range extension were based upon the 
scientific information and conclusions reached by the BRT, and 
therefore, we believe these decisions are scientifically defensible and 
consistent with the best available information. Responses to the issues 
upon which the commenter based his

[[Page 19555]]

assertion are provided in comments 10 through 15.
    Comment 10: The commenter criticized NMFS' use of an intrinsic 
habitat model to estimate potential coho salmon habitat capacity in 
streams south of the entrance to San Francisco Bay. The commenter 
argued that the model assumptions were unrealistic and that the model 
was not properly calibrated for stream habitat and coho salmon 
populations south of San Francisco Bay. For these reasons, the 
commenter asserted that use of this modeling resulted in an inaccurate 
characterization of coho salmon population structure south of San 
Francisco Bay, an overestimation of the historical habitat and 
abundance of coho salmon populations in streams south of San Francisco 
Bay, and an underestimate of the extinction risk of the populations 
south of San Francisco Bay.
    Response: In developing the draft recovery plan for the CCC coho 
salmon ESU, NMFS established a technical recovery team (TRT) to develop 
a scientific foundation for the recovery planning analysis. As part of 
its work, the TRT used an intrinsic potential habitat model to estimate 
habitat that would potentially be available to support individual coho 
salmon populations that are part of this ESU if the habitat was 
properly functioning (Agrawal et al., 2005; Bjorkstedt et al., 2005). 
The results of this analysis were then used in the historical 
population structure analysis and in estimating adult spawner abundance 
levels that could have been supported by the habitat. This information 
was used to develop viability criteria or recovery targets for the ESU 
as a whole. The TRT stated its working assumptions in using this model 
and evaluated those assumptions and the overall modeling approach by 
comparing available historical adult spawner estimates with adult 
abundance estimates that were derived from the intrinsic potential 
habitat modeling (Spence et al., 2008). The TRT noted that there was a 
high degree of uncertainty regarding available historical estimates of 
adult abundance, but they noted these estimates provided the only basis 
for assessing whether the estimates derived from the modeling were 
within a plausible range for this and other ESUs that were similarly 
evaluated (Bjorkstedt et al., 2005). A comparison of projected adult 
abundance levels derived from the modeling with adult abundance levels 
estimated in a 1965 statewide coho salmon abundance assessment 
(California Department of Fish and Game (CDFG), 1965) led the TRT to 
conclude that the habitat model predicted abundance levels that were 
plausible (Spence et al., 2008).
    For the area south of the entrance to San Francisco Bay, the TRT 
compared intrinsic habitat modeling population estimates with coho 
salmon abundance data collected by Shapovalov and Taft (1954) in 
Waddell Creek. Shapovalov and Taft (1954) estimated adult abundance of 
coho salmon in Waddell Creek over a nine year period covering the 
spawning seasons from 1933-1942. The average annual adult run size for 
coho salmon during that period was estimated to be 313 fish (range 111-
748). In comparison, the intrinsic habitat modeling for the smallest 
independent population in the area south of San Francisco Bay yielded 
an estimate of 365 potential adult spawners. Because the habitat 
conditions in Waddell Creek at the time of the study were less than 
pristine due to heavy timber harvest in the past, the TRT concluded the 
modeled adult abundance projection was realistic and not an 
overestimate. Based on these and other results presented by the TRT 
(Agrawal et al., 2005; Bjorkstedt et al., 2005), we believe the use of 
intrinsic habitat modeling for streams south of the entrance to San 
Francisco Bay is a valid tool for assessing population structure and 
developing population viability criteria for coho salmon. For these 
reasons we disagree with the commenter that the intrinsic potential 
habitat modeling overestimated historic abundance levels and 
underestimated extinction risk for watersheds south of San Francisco 
Bay.
    Comment 11: The commenter indicated that coho salmon survey 
information collected by the SWFSC in streams south of San Francisco 
Bay from 2006-2008 and discussed in the BRT's report on the coho salmon 
delisting petition (Spence et al., 2011) was incomplete and difficult 
to interpret because the survey objectives, methods and detailed 
results were not presented. The commenter argued this information was 
relevant for evaluating the status of coho populations south of the 
entrance to San Francisco Bay and determining whether they were part of 
the CCC coho salmon ESU.
    Response: The objectives of the SWFSC 's surveys from 2006-2008 
were three-fold: (1) To evaluate methods for defining an appropriate 
sampling protocol for species' presence in areas where it is known to 
be in low abundance or patchily distributed; (2) to develop statistical 
methods for estimating occupancy rates of species under such 
circumstances; and (3) to develop a short time series on the status of 
coho salmon in the area south of San Francisco between San Gregorio and 
Aptos creeks, a range which spanned three brood cycles. The genetic 
analysis and the surveys completed in connection with this study are 
final and documented with detailed results; the surveys and genetic 
analysis were completed using standard NMFS methodology but have not 
yet been published (SWFSC, unpublished). As such, we do not believe 
that the information relied upon was incomplete or difficult to 
interpret. Furthermore, the information derived from these completed 
aspects of the study is scientifically credible and represents the best 
available information on the status and geographic range of coho salmon 
south of San Francisco Bay. This final, scientifically credible 
information documents the presence of coho salmon in Soquel Creek and 
the analysis of genetic data from these fish. This information was 
considered by the BRT and was an important factor in their 
recommendation to extend the southern boundary of the CCC coho salmon 
ESU to include Soquel and Aptos creeks (Spence et al., 2011). This 
information was also considered by Spence and Williams (2011) in their 
updated assessment of the status of this ESU. Information collected on 
the status of coho salmon in these streams was considered by the BRT 
and did provide important information regarding the southern boundary 
of the CCC coho salmon ESU, as well as the current status of coho 
salmon in the streams south of San Francisco Bay (Spence and Williams, 
2011). As such, we believe that our determination to extend the 
geographic boundary of the ESU southward to include Soquel and Aptos 
creeks was founded on the best scientific information available.
    Comment 12: The commenter asserted the BRT (Spence et al., 2011) 
failed to report microsatellite DNA results for coho salmon from the 
San Lorenzo River and that the genetic database for the CCC coho salmon 
ESU was therefore incomplete. The commenter further argued that NMFS' 
conclusions regarding the origin and ancestry of coho salmon south of 
the entrance to San Francisco Bay could be in error because the genetic 
database did not include data for fish from the San Lorenzo River.
    Response: We do not have any genetic data for coho salmon from the 
San Lorenzo River, and therefore, it could not be included in the 
genetic data sets analyzed by the BRT (Spence et al., 2011). Coho 
salmon are rarely observed in the San Lorenzo River, which has 
contributed to the lack of genetic

[[Page 19556]]

information for that watershed. The SWFSC does have a limited number of 
coho salmon tissue samples taken from the San Lorenzo River, but they 
have not been analyzed largely because of uncertainties about their 
origin.
    Although we do not have genetic data for coho salmon from the San 
Lorenzo River, there are comprehensive genetic data from coho salmon 
populations in other watersheds south of San Francisco Bay, as well as 
watersheds north of San Francisco Bay, and that information was 
carefully analyzed by the BRT (Spence et al., 2011). Based on the 
analysis of all the available genetic data for coho salmon in this ESU, 
the BRT concluded that extant populations of coho salmon south of San 
Francisco Bay are part of the ESU and not the result of stock transfers 
from populations outside the ESU (Spence et al., 2011). We believe the 
genetic data that the BRT analyzed in its review of the southern 
boundary of this ESU are scientifically credible, that they represent 
the best available information for coho salmon populations throughout 
the geographic range of this ESU including those populations south of 
San Francisco Bay, and that they support our determination to extend 
the geographic boundary of the ESU southward to include Soquel and 
Aptos creeks.
    Comment 13: The commenter asserted that, in its review of the coho 
delisting petition, the BRT did not use all available historical 
records regarding the artificial propagation and out-planting of coho 
salmon in streams south of the entrance to San Francisco Bay. The 
commenter provided information regarding the history of coho salmon 
out-planting in Waddell and Scott creeks that he asserted were in 
conflict with that reviewed by the BRT. Waddell Creek is an important 
watershed south of the entrance to San Francisco Bay in part because a 
major study on the life history of coho salmon and steelhead was 
initiated there by Shapovalov and Taft (1954) around the same time coho 
salmon were out-planted into the watershed. The commenter suggested 
coho salmon were planted in Waddell Creek in large numbers between the 
early 1920s and 1933 (citing Streig (1991) and Bryant (1994)) and by 
inference, implied that planted fish contributed to the number of 
adults observed in the Shapovalov and Taft (1954) life history study.
    Response: We reviewed the source data cited by Streig (1991) and 
Bryant (1994) as well as other sources of data, and found no evidence 
of coho salmon being out-planted into Waddell Creek during the period 
from 1911 to 1941, other than 15,000 fish that were released in 1933 
and an undetermined number that were released for an age validation 
study in 1929. Both of these plantings were considered by the BRT and 
discussed in their report (Spence et al., 2011). In evaluating the 
Streig (1991) report, which was the basis for the numbers presented in 
Bryant (1994), we found discrepancies between reported numbers and the 
original sources that were cited. If other stocking information was 
used in compiling the Streig (1991) and Bryant (1994) reports, we have 
not found that information, and therefore, believe the data and 
analysis by the BRT (Spence et al., 2011) are the most scientifically 
defensible data available for assessing the artificial propagation and 
out-planting of coho salmon in streams south of San Francisco Bay.
    Moreover, regardless of the number of fish out-planted into Waddell 
Creek or any other watershed south of San Francisco Bay, the BRT 
(Spence et al., 2011) emphasized that the out-planted coho salmon 
likely experienced very low survival rates due to the common practice 
at the time of releasing fish as fry. Because of these low survival 
rates, we believe the out-planting of artificially propagated coho 
salmon into Waddell Creek is unlikely to have contributed substantially 
to the adult coho salmon numbers reported by Shapovalov and Taft 
(1954).
    Comment 14: The commenter disagreed with the BRT's interpretation 
of archeological data from a site at A[ntilde]o Nuevo State Reserve 
that was used to support the determination that coho salmon populations 
were native to watersheds south of San Francisco Bay. The commenter 
asserted that the coho bones found there were from fish that were of 
marine origin, rather than from a stream at that site, and therefore, 
argued that these data are inconclusive and do not support the BRT's 
statement that coho salmon occurred as far south as Santa Cruz county.
    Response: The BRT reviewed the most recent available archeological 
information relevant to the southern extent of the range of coho salmon 
(Gobalet, in press), as well as earlier literature by Gobalet (Gobalet, 
1990; Gobalet and Jones, 1995; and Gobalet et al., 2004) that provide 
additional information regarding the archeological record for coho 
salmon in California. The BRT acknowledged that evidence in the 
archeological record for coho salmon in California, particularly in 
coastal areas, is sparse (Spence et al. 2011). However, the BRT 
considered the information, analysis and conclusions presented in 
Gobalet (in press) to be the best available archeological information 
relevant to determining the historical presence of coho salmon south of 
San Francisco Bay, and their conclusion that coho salmon occurred as 
far south as Santa Cruz county is based on that information. The 
commenter did not provide any new information to support his assertion 
that the coho salmon bones found at the A[ntilde]o Neuvo site were of 
marine origin or that would alter our view that these bones are from 
coho salmon and constitute significant data documenting the presence of 
coho salmon in Santa Cruz County. We believe the data presented in 
Gobalet (in press) represents the best available archeological 
information relevant to determining the historical distribution of coho 
salmon south of San Francisco Bay. In summary, we believe the available 
archeological information reviewed by the BRT is scientifically 
credible, that it represents the best available information regarding 
the historical distribution of coho salmon south of San Francisco Bay, 
and that it supports our 12-month finding that coho salmon south of San 
Francisco are part of the CCC coho salmon ESU.
    Comment 15: The commenter asserted that the BRT's conclusion that 
freshwater habitat conditions are suitable for coho salmon in 
watersheds both south and north of the entrance to San Francisco Bay 
was incorrect and that there are significant habitat differences 
between the two areas that preclude the persistence of coho salmon in 
streams south of San Francisco. The commenter provided information for 
survival rates in streams in Oregon and Washington that were published 
in 1982 and compared those data to survival rates estimated by 
Shapovalov and Taft (1954). The commenter also provided information on 
flood flows recorded during the Shapovalov and Taft (1954) study.
    Response: The BRT carefully reviewed contemporary freshwater 
habitat data for streams north and south of San Francisco Bay in its 
review of the petition to delist coho salmon south of San Francisco Bay 
(Spence et al., 2011). Their review included substantial information 
submitted by the petitioner as a supplement to the original petition. 
Following its review, the BRT concluded that historical habitat 
conditions in watersheds south of San Francisco Bay were conducive to 
the presence of persistent coho salmon populations since the freshwater 
habitat conditions south of San Francisco Bay are not appreciably 
different from those in watersheds immediately north of San Francisco 
Bay, as described in their report. The BRT also concluded that current 
habitat conditions south of San Francisco (as well as elsewhere in the

[[Page 19557]]

range of the CCC coho salmon ESU) are a challenge to coho salmon 
populations, but that currently degraded habitat conditions are mainly 
due to anthropogenic effects, rather than any inherent characteristics 
of the watersheds themselves. We believe that the freshwater habitat 
information considered by the BRT represents the best available 
information regarding the suitability of habitat for coho salmon south 
of San Francisco Bay. The survival rate information provided by the 
commenter concerned coho salmon from a different eco-region under 
different environmental conditions; furthermore, the data cited by the 
commenter were gathered in a time period different from the one 
considered in Shapalov and Taft. The data provided by the commenter do 
not represent a valid comparison of habitat conditions from areas north 
and south of San Francisco, and therefore, do not refute the 
scientifically-credible conclusions of the BRT. After considering the 
information provided by the commenter and its relevance, in addition to 
the information and analysis found in Spence et al., (2011), we believe 
that the BRT's conclusions concerning freshwater habitat suitability 
for coho salmon in watersheds both south and north of the entrance to 
San Francisco Bay were correct. The BRT's conclusions support both our 
finding that coho salmon south of San Francisco are part of the CCC 
coho salmon ESU and our proposal to move the southern boundary of the 
ESU south to include Soquel and Aptos creeks.
Issue: Viability of Coho Populations South of San Francisco Bay and 
Their Contribution to the Evolutionary Legacy of the CCC Coho Salmon 
ESU
    Comment 16: One commenter provided an analysis of data collected by 
Shapovalov and Taft (1954) and argued the results indicated coho salmon 
populations south of San Francisco were likely to go extinct and that 
these and other populations south of San Francisco are ``sink'' 
populations that are ephemeral and do not contribute to the 
evolutionary legacy of the CCC coho salmon ESU. Based on these reasons 
and the commenter's interpretation of NMFS' ESU policy, the commenter 
argues that coho salmon populations south of San Francisco Bay should 
not be part of the CCC coho salmon ESU. A similar argument was made in 
the petition to delist coho salmon populations south of San Francisco 
Bay.
    Response: The BRT that evaluated the petition to delist coho salmon 
populations south of San Francisco Bay addressed the viability of coho 
salmon populations south of San Francisco Bay and their contribution to 
the evolutionary legacy of the species (Spence et al., 2011). Based on 
the BRT's review of the best available information (especially 
Bjorkstedt et al., 2005), they concluded that populations south of San 
Francisco Bay were most likely a combination of independent and 
dependent populations that contributed to the overall functioning of 
the CCC coho salmon ESU rather than serving as``sink'' or ephemeral 
populations. The BRT also noted that even if the populations south of 
San Francisco were ``sink'' populations they could still contribute to 
the persistence of the ESU as a whole based on the current 
understanding of meta-population function. For the reasons stated in 
Spence et al. (2011), we reach the same conclusions arrived at by the 
BRT with regard to the populations south of San Francisco Bay. Lastly, 
the commenter's argument that populations south of San Francisco Bay do 
not contribute to the evolutionary legacy of the ESU, and therefore, 
should not be included in the ESU, demonstrates a lack of understanding 
of the evolutionary legacy criterion in NMFS' ESU policy for Pacific 
Salmon (56 FR 58612; November 20, 1991). The commenter is attempting to 
apply the evolutionary legacy criterion to individual populations, 
which is inappropriate. Under NMFS' ESU policy, the evolutionary legacy 
criterion is applied to the group of populations being considered as an 
ESU, rather to individual populations. Accordingly, we believe that our 
proposed redefinition of the CCC coho salmon ESU boundaries is based on 
the best available information and the proper interpretation and 
application of NMFS' ESU policy for Pacific Salmon.
Issue: Climate Change and Long-Term Sustainability of Coho Salmon 
Populations South of San Francisco Bay
    Comment 17: One commenter questioned the long-term sustainability 
or viability of the coho salmon populations in coastal streams south of 
the entrance to San Francisco Bay in light of potential future impacts 
to the species and its habitat from climate change, changes in sea 
level, changes in the California Current and its productivity, and 
other factors. Given these factors, the commenter expressed concern 
about the economic cost of maintaining suitable habitat for coho salmon 
populations in watersheds south of San Francisco Bay and questioned the 
need to include these populations in the CCC coho salmon ESU and 
provide them with protection under the ESA.
    Response: Although we recognize that ensuring the long-term 
persistence of coho salmon in streams south of San Francisco presents 
many difficulties and uncertainties due to the current extremely low 
population sizes, the poor condition of the habitat in many watersheds, 
changes in the productivity of the California Current, and the possible 
effects of climate change, coho salmon populations south of San 
Francisco Bay are critical to the long-term viability and recovery of 
the CCC coho salmon ESU as a whole, and it is both necessary and 
possible to restore these populations (NMFS, 2010). Moreover, once we 
identify an ESU that meets the criteria of our ESU policy for Pacific 
Salmon, and determine that that ESU is threatened or endangered under 
the ESA, we must list that ESU.
Issue: Economic Impacts of Proposed CCC Coho Salmon ESU Range Extension
    Comment 18: One commenter asserted the proposed range extension of 
the CCC coho salmon ESU failed to consider the potential financial 
impacts to landowners and other entities in Soquel and Aptos creeks.
    Response: Our proposal was to revise the CCC Coho ESU boundaries in 
order to formally recognize that the freshwater range of coho salmon in 
this ESU actually extends further south than was previously thought. 
Unlike critical habitat designations, section 4(b)(1)(A) of the ESA 
explicitly prohibits us from considering non-scientific information 
(including potential economic impacts) when making listing 
determinations. If we determine that the existing critical habitat 
designation for this ESU should be revised in the future to include 
freshwater habitat in Soquel and Aptos creeks, then an economic 
analysis appropriate to critical habitat designations, as stated in the 
applicable statutes, implementing regulations, and executive orders, 
will be conducted.

Revised Geographic Range of CCC Coho Salmon ESU

    The ESU boundaries for west coast coho salmon, ranging from 
southern British Columbia to Central California, were first delineated 
in a 1994 status review (Weitkamp et al., 1995). In delineating these 
ESU boundaries, a wide range of information pertaining to West Coast 
coho salmon throughout its range was considered, including geographic 
variables, ecological and habitat variables, genetic variation among 
populations, and variation in life history traits among populations. In 
the 1995 proposal to list the CCC coho

[[Page 19558]]

salmon ESU (60 FR 38011), NMFS indicated that the southern boundary of 
the ESU was the San Lorenzo River in Santa Cruz County based on the 
best available information at that time.
    The 1994 status review (Weitkamp et al., 1995) recognized that the 
rivers draining the Santa Cruz Mountains south of San Francisco Bay 
formed a cohesive group with respect to environmental conditions, and 
therefore, concluded that the Pajaro River was likely the historical 
southern limit of coho salmon in the area. In determining where the 
southern boundary of the CCC coho salmon ESU should be placed, the 
status review analysis relied heavily on information provided in a 1993 
status review of coho salmon in Scott and Waddell creeks (Bryant, 
1994), which indicated there were no recent reports of coho salmon in 
rivers south of the San Lorenzo River. Faced with uncertainty about 
whether any coho salmon populations were present south of the San 
Lorenzo River and the uncertain origin of coho salmon in the San 
Lorenzo River, Weitkamp et al. (1995) concluded that the San Lorenzo 
River should be the southern-most basin in the ESU and that any coho 
salmon found spawning south of the San Lorenzo River that were not the 
result of non-ESU origin stock transfers should be considered part of 
the ESU.
    In reviewing the petition to delist coho salmon populations south 
of San Francisco Bay, the BRT reviewed recently collected information 
on the distribution of coho salmon in this area (Spence et al., 2011). 
Based on this new information and other information indicating that 
freshwater habitat conditions and watershed processes in Soquel and 
Aptos creeks were similar to those found in nearby watersheds within 
the ESU, the BRT recommended that the southern boundary of the CCC coho 
salmon ESU be moved southward from the San Lorenzo River to include 
coho salmon occurring in Soquel and Aptos creeks. The new information 
supporting this recommendation included: (1) Observations of juvenile 
coho salmon in Soquel Creek in 2008 and (2) genetic information 
obtained from the juvenile coho salmon observed in Soquel Creek 
indicating the fish were closely related to populations in nearby 
watersheds.
    During the summer of 2008, juvenile coho salmon were observed in 
Soquel Creek by NMFS scientists for the first time in many years. 
Soquel Creek enters the Pacific Ocean about 6.5 km south of the San 
Lorenzo River. A total of approximately 170 juvenile fish were observed 
in the East Branch of Soquel Creek and some were photographed. These 
observations demonstrated that suitable spawning and rearing habitat 
for coho salmon occurs in Soquel Creek. A total of 28 of these fish 
were captured for tissue sampling and subsequent genetic analysis. 
Genetic analyses of these samples used 18 microsatellite loci to 
genotype the fish, investigate the origins of their parents, and to 
estimate the minimum number of reproductive events that contributed to 
the observed juveniles. Standard genetic stock identification 
techniques were used with a baseline reference database that included 
representative stocks from all regional California groups of coho 
salmon. The Soquel Creek fish were compared to coho salmon from a south 
of San Francisco Bay reference population (Scott Creek in Santa Cruz 
County, California) and it was determined, with very high confidence, 
that they were closely related. This analysis demonstrated that the 
juvenile fish observed in Soquel Creek were the progeny of locally 
produced adults returning to reproduce in nearby streams, and that they 
were native to streams draining the Santa Cruz Mountains south of San 
Francisco Bay.
    Genetic analysis of tissue samples from these juveniles (Garza et 
al., unpublished as cited in Spence et al., 2011) also revealed that 
they were produced by a minimum of two reproductive events in Soquel 
Creek, rather than by a single pair of fish randomly straying into the 
watershed. The analysis only determined the minimum number of spawning 
parents, so it is possible that additional reproductive events occurred 
in Soquel Creek in 2008. This information strongly supports our 
conclusion that the fish in Soquel Creek are part of the CCC coho 
salmon ESU.
    In reviewing the ecological conditions of streams south of San 
Francisco Bay that originate from the Santa Cruz Mountains, Spence et 
al. (2011) noted that a significant ecological transition occurs 
immediately south of the Santa Cruz Mountains, with the northern edge 
of the Salinas Valley marking the boundary between an area with cool, 
wet redwood forests to the north and an area with warm, drier chaparral 
landscapes to the south where small relic redwood forests are primarily 
confined to riparian areas near the coast. The Soquel and Aptos 
watersheds occur within the Coast Range Ecoregion, which runs almost 
continuously from the Oregon border to the southern boundary of the 
Santa Cruz Mountains (the northern edge of the Pajaro River basin) and 
includes all the streams originating from the Santa Cruz Mountains 
south of San Francisco. Soquel and Aptos creeks exhibit ecological, 
climatic, and habitat attributes similar to streams historically and/or 
presently occupied by coho salmon elsewhere in this Ecoregion, 
indicating they provide habitat that is suitable for coho salmon.

Status of the CCC Coho Salmon ESU

    Status reviews by Weitkamp et al. (1995), Good et al. (2005), and 
Spence and Williams (2011) have all concluded that the CCC coho salmon 
ESU is in danger of extinction. NMFS listed this ESU as threatened in 
1996 (61 FR 56138) and reclassified its status as endangered in 2005 
(71 FR 834). The status reviews by Weitkamp et al. (1995) and Good et 
al. (2005) cited concerns over low abundance and long-term downward 
trends in abundance throughout the ESU, as well as the extirpation or 
near extirpation of populations across most of the southern two-thirds 
of the ESU's historical range, including several major river basins. 
They further cited as risk factors the potential loss of genetic 
diversity associated with the reduction in range and the loss of one or 
more brood lineages in some populations coupled with the historical 
influence of hatchery fish (Good et al., 2005).
    As part of a recent 5-year status review update for listed salmon 
and steelhead in California, Spence and Williams (2011) updated the 
biological status of the CCC coho salmon ESU, taking into consideration 
the recent discovery of coho salmon in Soquel Creek. Their review 
concluded that despite the lack of long-term data on coho salmon 
abundance, available information from recent short-term research and 
monitoring efforts demonstrates that the status of coho populations in 
this ESU has worsened since it was reviewed in 2005 (Good et al., 
2005). For all available time series, recent population trends were 
downward, in many cases significantly so, with particularly poor adult 
returns from 2006 to 2010. Based on population viability criteria that 
were developed to support preparation of the draft recovery plan for 
this ESU (Bjorkstedt et al., 2005; Spence et al., 2008), all of its 
independent populations in the ESU are well below low-risk abundance 
targets (e.g., Ten Mile River, Noyo River, Albion River), and several 
are, if not extirpated, below high-risk depensation thresholds (e.g., 
San Lorenzo River, Pescadero Creek, Gualala River). Though population-
level estimates of abundance for most independent populations are 
lacking, it does not appear that any of the five diversity strata 
identified by Bjorkstedt et al.

[[Page 19559]]

(2005) for this ESU currently support a single viable population based 
on the viability criteria developed by Spence et al. (2008). Based on a 
consideration of all new substantive information regarding the 
biological status of this ESU, including the recent discovery of 
juvenile coho salmon in Soquel Creek, Spence and Williams (2011) 
concluded that the CCC coho salmon ESU continues to be in danger of 
extinction and that its overall extinction risk has increased since 
2005. We concur.

Summary of Factors Affecting the Revised CCC Coho Salmon ESU

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat and Range

    Our review of factors affecting the CCC coho salmon ESU concluded 
that logging, agriculture, mining activities, urbanization, stream 
channelization, dams, wetland loss, water withdrawals, and unscreened 
diversions have contributed to its decline. Land-use activities 
associated with logging, road construction, urban development, mining, 
agriculture, and recreation have significantly altered coho salmon 
habitat quantity and quality (61 FR 56138, October 31, 1996; 70 FR 
37150, June 28, 2005). Impacts of these activities include alteration 
of streambank and channel morphology, alteration of ambient stream 
water temperatures, elimination of spawning and rearing habitat, 
fragmentation of available habitats, elimination of downstream 
recruitment of spawning gravels and large woody debris, removal of 
riparian vegetation resulting in increased stream bank erosion, and 
degradation of water quality (61 FR 56138, October 31, 1966; 70 FR 
37150, June 28, 2005).
    Land-use and extraction activities leading to habitat modification 
can have significant direct and indirect impacts to coho salmon 
populations. Land-use activities associated with residential and 
commercial development, road construction, use and maintenance, 
recreation, and past logging practices have significantly altered coho 
salmon freshwater habitat quantity and quality throughout this ESU, as 
well as in the Aptos and Soquel watersheds. Associated impacts of these 
activities include alteration of streambank and channel morphology, 
alteration of ambient stream water temperatures, degradation of water 
quality, elimination of spawning and rearing habitats, removal of 
instream large woody debris that forms pool habitats and overwintering 
refugia, removal of riparian vegetation resulting in increased bank 
erosion, loss of floodplain habitats and associated refugia, and 
increased sedimentation input into spawning and rearing areas resulting 
in the loss of channel complexity, pool habitat, and suitable gravel 
substrate.
    The loss and degradation of habitats and instream flow conditions 
were identified as threats to coho salmon in Soquel and Aptos creeks in 
the draft recovery plan for this ESU (NMFS, 2010). Although many 
historically harmful practices have been halted, particularly removal 
of large woody debris by Santa Cruz County, much of the historical 
damage to habitats limiting coho salmon in these watersheds remains to 
be addressed. Habitat restoration activities and threat abatement 
actions will likely require more focused effort and time to stabilize 
and improve habitat conditions in order to improve the survival of coho 
salmon in these watersheds. Additionally, some land-use practices such 
as water diversions, floodplain development, unauthorized removal of 
inchannel woody debris, quarrying, and road maintenance practices 
continue to pose risks to the survival of local coho salmon 
populations. Insufficient flow during the summer due to authorized and 
unauthorized water diversions is likely one of the most significant 
limiting factors to coho salmon, particularly on the lower mainstem of 
Soquel Creek.

B. Overutilization for Commercial, Recreational, Scientific, or 
Education Purposes

    Commercial and recreational fisheries are closed for coho salmon in 
California; however, coho salmon in this ESU can still be incidentally 
captured in fisheries for other species. The impacts to coho salmon of 
this type of incidental bycatch are poorly understood, but may be 
significant in watersheds where population abundance is low. 
Recreational fishing for steelhead is allowed in Soquel and Aptos 
creeks, and coho salmon, if present, may unintentionally be caught by 
anglers targeting steelhead. The risk of unintentional capture is 
believed to be higher in these watersheds than in many other coastal 
streams with coho salmon because the current State of California 
fishing regulations allow catch and release of steelhead based on 
calendar dates regardless of river flow. Steelhead fishing season opens 
on December 1, which is a time of year when coho salmon typically begin 
their upstream migration and is typically one month before the main 
steelhead migration. Fishing for steelhead during low-flow periods may 
expose coho salmon adults to increased rates of incidental capture and 
injury.
    At the time the CCC coho salmon ESU was listed in 1996, collection 
for scientific research and educational programs was believed to have 
little or no impact on California coho salmon populations. In 
California, most scientific collection permits are issued by CDFG and 
NMFS to environmental consultants, Federal resource agencies, and 
educational institutions. Regulation of take is achieved by 
conditioning individual research permits (61 FR 56138, October 31, 
1996). Given the extremely low population levels throughout this ESU, 
but especially in watersheds south of San Francisco Bay, any 
collections could have significant impacts on local populations and 
need to be carefully controlled and monitored. In Soquel and Aptos 
creeks, two researchers are currently sampling juvenile salmonid 
populations using electrofishing as part of their sampling methodology. 
Only one researcher is authorized to capture coho salmon and the other 
must stop collections if juvenile coho salmon are detected.

C. Disease or Predation

    Relative to the effects of habitat degradation, disease and 
predation were not believed to be major factors contributing to the 
decline of West Coast coho salmon populations in general or for this 
ESU in particular. Nevertheless, disease and predation could have 
substantial adverse impacts in localized areas. Specific diseases known 
to be present in the ESU and affect salmonids are discussed in a 
previous listing determination (69 FR 33102; June 14, 2004). No 
historical or current information is available to estimate infection 
levels or mortality rates for coho salmon attributable to these 
diseases.
    Habitat conditions such as low water flows and high water 
temperatures can exacerbate susceptibility to infectious diseases (69 
FR 33102). The large quantity of water diverted from Soquel Creek, 
which results in decreased summer flows, may increase the 
susceptibility of rearing coho salmon to disease and predation. Avian 
predators have been shown to impact some juvenile salmonids in 
freshwater and near shore environments. In Scott Creek, which is near 
Soquel and Aptos creeks, NMFS staff (Hayes, personnel communication) 
have documented substantial predation impacts on out-migrating salmonid 
smolts, based on the discovery of pit tags in gull nesting areas. 
Predation may significantly influence salmonid abundance in some

[[Page 19560]]

local populations when other prey species are absent and physical 
conditions lead to the concentration of adults and juveniles (Cooper 
and Johnson, 1992). Low flow conditions in these watersheds may enhance 
predation opportunities, particularly in streams where adult coho 
salmon may congregate at the mouth of streams waiting for high flows 
for access (CDFG, 1995). These types of conditions could significantly 
impact coho salmon in Soquel Creek because of the low abundance of fish 
in that watershed. Marine predation (i.e., seals and sea lions) is a 
concern in some areas given the dwindling abundance of coho salmon 
across the range of this ESU; however, such predation is generally 
considered by most investigators and the BRT to be an insignificant 
contributor to the population declines that have been observed in 
Central California.

D. Inadequacy of Existing Regulatory Mechanisms

    At the time this ESU was originally listed, most Federal and non-
Federal regulatory efforts were not found to adequately protect coho 
salmon due to a variety of factors including uncertain funding and 
implementation, the voluntary nature of many programs, or simply their 
ineffectiveness. Detailed information on regulatory mechanisms and 
other protective efforts for coho salmon is provided in NMFS' Draft 
Recovery Plan for this ESU (NMFS, 2010) and the 1996 and 2005 final 
listing determinations for this ESU. Since the original listing 
determination for this ESU in 1996, few significant improvements in 
regulatory mechanisms have been made aside from efforts implemented 
under the ESA (i.e., NMFS' efforts under section 7 of the ESA and the 
designation of critical habitat for this ESU). A variety of State and 
Federal regulatory mechanisms exist to protect coho salmon habitat, but 
they have not been adequately implemented (61 FR 56138; October 31, 
1996). Overall, we believe that most current regulatory mechanisms and/
or other protective efforts are not sufficiently certain to be 
implemented and/or are not effective in reducing threats to coho salmon 
in this ESU (70 FR 37160; June 28, 2005).
    In Soquel and Aptos creeks, one recent beneficial regulatory change 
has been the termination of funding for Santa Cruz County's in-stream 
wood removal program in 2009. Curtailment of this program is expected 
to eventually result in improvements to summer and winter rearing 
habitat for coho salmon in the County. Problems with other regulatory 
efforts, including poor oversight and enforcement of State water law 
pertaining to permitted and unpermitted diversions, are a significant 
concern in Soquel and Aptos creeks.

E. Other Natural or Human-Made Factors Affecting Its Continued 
Existence

    Long-term trends in rainfall and marine productivity associated 
with atmospheric conditions in the North Pacific Ocean have a major 
influence on coho salmon production on the West Coast. Natural climatic 
conditions may have exacerbated or mitigated the problems associated 
with degraded and altered freshwater and estuarine habitats that coho 
salmon depend upon (69 FR 33102). Detailed discussions of these factors 
can be found the 1996 and 2005 listing determinations for this ESU (61 
FR 56138, October 31, 1996 and 70 FR 37160, June 28, 2005, 
respectively). No significant changes to this listing factor have 
occurred since the original listing, although the risk of climate 
change may well have increased.
    The best available scientific information indicates that the 
Earth's climate is warming, driven by the accumulation of greenhouse 
gasses in the atmosphere (Oreskes, 2004; Battin et al., 2007; Lindley 
et al., 2007). Because coho salmon depend upon freshwater streams and 
the ocean during their life cycle, most if not all populations in this 
ESU, including those in Soquel and Aptos creeks, are likely to be 
impacted by climate change in the decades ahead, though the type and 
magnitude of these impacts are difficult to predict at this time.

Final Determination

    Based on a consideration of the best available information, 
including new information on the presence of coho salmon in Soquel 
Creek, genetic data indicating the fish from Soquel Creek are closely 
related to fish from nearby watersheds, the similarity of habitat in 
Soquel and Aptos creeks to that in nearby watersheds presently or 
historically supporting coho salmon, and the proximity of Soquel and 
Aptos creeks to nearby watersheds supporting coho salmon, we conclude 
that the southern boundary of the CCC coho salmon ESU should be moved 
southward to include Soquel and Aptos creeks in Santa Cruz County, 
California. Based on an updated status assessment of coho salmon 
populations throughout the range of the ESU, including the recent 
discovery of juvenile coho salmon in Soquel Creek, and consideration of 
the factors affecting this species throughout the range of the ESU, we 
conclude that the redefined ESU continues to be an endangered species.

Section 9 Take Prohibitions and Other Protections

    The CCC coho salmon ESU is an endangered species and Section 9 of 
the ESA prohibits certain activities that directly or indirectly affect 
endangered species. The section 9(a) prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Section 9 prohibitions apply automatically to endangered species such 
as the CCC coho salmon ESU, throughout its range. As a result of this 
range extension, the section 9 take prohibitions now will apply to all 
naturally produced coho salmon in Soquel and Aptos creeks.
    Section 7(a) of the ESA, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the ESA are codified at 50 CFR part 402. 
Section 7(a)(4) of the ESA requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in the destruction or adverse 
modification of proposed critical habitat. If a species is subsequently 
listed, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with us under the provisions of section 
7(a)(2). Federal agencies and actions that may be affected by the 
revision of the CCC coho salmon ESU include the U.S. Army Corps of 
Engineers and its issuance of permits under the Clean Water Act.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us 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 the affected species. NMFS 
has issued section 10(a)(1)(A) research/enhancement permits for listed 
salmonids, including CCC coho salmon, to conduct activities such as 
trapping and tagging and other research and monitoring activities.

[[Page 19561]]

    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities conducting activities that 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, but are not limited to, state-regulated angling, 
academic research not receiving Federal authorization or funding, road 
building, timber management, grazing, and diverting water onto private 
lands.

NMFS' Policies on Endangered and Threatened Fish and Wildlife

    NMFS and the FWS published a policy in the Federal Register on July 
1, 1994 (59 FR 34272) indicating that both agencies would 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. Based on the best available information, we believe 
that the following actions are unlikely to result in a violation of 
section 9 for coho salmon in this ESU, including Soquel and Aptos 
creeks:
    1. Any incidental take of listed fish from this ESU resulting from 
an otherwise lawful activity conducted in accordance with the 
conditions of an incidental take permit issued by NMFS under section 10 
of the ESA;
    2. Any action authorized, funded, or carried out by a Federal 
agency that is likely to adversely affect listed fish from this ESU 
when the action is conducted in accordance with the terms and 
conditions of an incidental take statement issued by NMFS under section 
7 of the ESA;
    3. Any action carried out for scientific purposes or to enhance the 
propagation or survival of listed fish from this ESU that is conducted 
in accordance with the conditions of a permit issued by NMFS under 
section 10 of the ESA
    Activities that are likely to result in a violation of section 9 
prohibitions against the ``taking'' of fish from this ESU include, but 
are not limited to, the following:
    1. Unauthorized killing, collecting, handling, or harassing of 
individual fish from this ESU;
    2. Land-use activities that adversely affect habitats supporting 
coho salmon, such as logging, development, road construction in 
riparian areas and in areas susceptible to mass wasting and surface 
erosion;
    3. Destruction/alteration of the habitats supporting coho salmon, 
such as removal of large woody debris and ``sinker logs'' or riparian 
shade canopy, dredging, discharge of fill material, sandbar breaching, 
draining, ditching, diverting, blocking, or altering stream channels or 
surface or ground water flow;
    4. Discharges or dumping of toxic chemicals or other pollutants 
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting 
coho salmon in the ESU;
    5. Violation of discharge permits into the ESU;
    6. Application of pesticides affecting water quality or riparian 
areas supporting coho salmon in the ESU;
    7. Introduction of non-native species likely to prey on coho salmon 
within the ESU or displace them from their habitat.
    Other activities not identified here will be reviewed on a case-by-
case basis to determine if violation of section 9 of the ESA may be 
likely to result from such activities. Questions regarding whether 
specific activities may constitute a violation of the section 9 take 
prohibition, and general inquiries regarding prohibitions and permits, 
should be directed to NMFS (see ADDRESSES). We do not consider these 
lists to be exhaustive and we provide them as general information to 
the public.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for peer review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act, is intended to enhance the quality and credibility of the 
Federal Government's scientific information and applies to influential 
or highly influential scientific information disseminated on or after 
June 16, 2005. To satisfy our requirements under the OMB Bulletin, we 
obtained independent peer review of the scientific information compiled 
in the BRT report (Spence et al., 2011) that supports the proposed 
range extension and the continued listing of the CCC coho salmon ESU as 
an endangered species. The peer reviewers provided only limited, minor 
comments which were addressed in the final BRT report.
    A joint NMFS/U.S. Fish and Wildlife policy (59 FR 34270; July 1, 
1994) requires us to solicit independent expert review from at least 
three qualified specialists on proposed listing determinations such as 
this range extension. Accordingly, we solicited reviews from three 
scientific peer reviewers having expertise with coho salmon in 
California and received comments from all three reviewers. We carefully 
reviewed the peer review comments and have addressed them as 
appropriate in this final rule (see summary of peer review comments 
above).

Critical Habitat

    Critical habitat is defined in section 3 of the ESA as: ``(i) The 
specific areas within the geographic area occupied by the species, at 
the time it is listed in accordance with the provisions of section 4 of 
this Act, on which are found those physical and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed in accordance with the provisions of section 4 of this 
Act, upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 U.S.C. 1532(5)(A)). 
Conservation means the use of all methods and procedures needed to 
bring the species to the point at which listing under the ESA is no 
longer necessary. Section 4(b)(2) requires that designation of critical 
habitat be based on the best scientific data available, after taking 
into consideration the economic, national security, and other relevant 
impacts of specifying any particular area as critical habitat.
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure that they do not fund, authorize, or carry 
out any actions that are likely to destroy or adversely modify that 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure that their actions do not jeopardize the 
continued existence of the listed species.
    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. 
Critical habitat for the CCC coho salmon ESU was designated on May 5, 
1999 (64 FR 24049) and presently includes all river reaches accessible 
to coho salmon in rivers between Punta Gorda and the San Lorenzo River. 
Within these streams, critical habitat includes all waterways, 
substrate and adjacent riparian habitat below longstanding, natural 
impassable

[[Page 19562]]

barriers and some specific dams. Critical habitat is not presently 
being proposed for designation in Soquel and Aptos creek watersheds. 
Prior to making any determination regarding the designation of critical 
habitat in these watersheds, we will complete an analysis to determine 
if habitat in Soquel and Aptos creeks should be designated and whether 
any modification of the existing critical habitat designation is 
warranted. Following completion of this analysis, NMFS may initiate 
rulemaking to designate critical habitat in these watersheds. Any such 
proposed rule will provide an opportunity for public comments and a 
public hearing, if requested.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section).

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. 2nd 829 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (See NOAA Administrative Order 216-6).

Regulatory Flexibility Act, Executive Order 12866, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 Amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the ESA listing 
process. Thus, this final rule is also exempt from review under 
Executive Order 12866. This final rule does not contain a collection-
of-information requirement for the purposes of the Paperwork Reduction 
Act.

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, development of this rule included coordination 
with the State of California through the CDFG.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: March 27, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 224 is amended 
as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority:  12 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
2. Revise the entry for ``Central California Coast coho,'' in Sec.  
224.101(a) to read as follows:

Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) * * *

----------------------------------------------------------------------------------------------------------------
                    Species \1\                                              Citation(s) for    Citations(s) for
---------------------------------------------------      Where listed            listing        critical habitat
          Common name             Scientific name                             determinations      Designations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Central California Coast coho..  Oncorhynchus       U.S.A., CA, including   [INSERT FR         64 FR 24049; May
                                  kitsutch.          all naturally           CITATION & April   5, 1999.
                                                     spawning populations    2, 2012.
                                                     of coho salmon from
                                                     Punta Gorda in
                                                     northern California
                                                     south to and
                                                     including Aptos Creek
                                                     in central
                                                     California, as well
                                                     as populations in
                                                     tributaries to San
                                                     Francisco Bay,
                                                     excluding the
                                                     Sacramento-San
                                                     Joaquin River system,
                                                     as well as three
                                                     artificial
                                                     propagation programs:
                                                     the Don Clausen Fish
                                                     Hatchery Captive
                                                     Broodstock Program,
                                                     Scott Creek/King
                                                     Fisher Flats
                                                     Conservation Program,
                                                     and the Scott Creek
                                                     Captive Broodstock
                                                     Program.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

[[Page 19563]]

* * * * *
[FR Doc. 2012-7860 Filed 3-30-12; 8:45 am]
BILLING CODE 3510-22-P
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