Endangered and threatened species: Designated critical habitats— Snake River spring/summer chinook salmon,

[Federal Register: June 2, 1999 (Volume 64, Number 105)]

[Proposed Rules]

[Page 29618-29622]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02jn99-30]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 990525143-9143-01; I.D. 120197A]

RIN 0648-AM41

Designated Critical Habitat; Proposed Revision of Critical Habitat for Snake River Spring/Summer Chinook Salmon

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

ACTION: Proposed rule; request for comments.

SUMMARY: NMFS proposes to revise critical habitat for Snake River spring/summer chinook salmon (Oncorhynchus tshawytscha), pursuant to the Endangered Species Act (ESA) of 1973. After a review of the best available scientific information, NMFS concludes that Napias Creek Falls constitutes a naturally impassable migrational barrier for Snake River spring/summer chinook salmon. Therefore, NMFS proposes to exclude areas above Napias Creek Falls from designated critical habitat because such areas are outside the species' current and historic range.

DATES: Comments must be received by August 2, 1999. Requests for additional public hearings must be received by July 19, 1999.

ADDRESSES: Requests for information concerning this action should be submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon Street, Suite 500, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, Protected Resources Division, Northwest Region, (503) 231-2005 or Chris Mobley, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

On June 27, 1991, NMFS proposed the listing of Snake River spring/ summer chinook salmon as a threatened species under the ESA (56 FR 29542). The final determination listing Snake River spring/summer chinook salmon as a threatened species was published on April 22, 1992 (57 FR 14653), and corrected on June 3, 1992 (57 FR 23458). Critical habitat was designated on December 28, 1993 (58 FR 68543). In that document, NMFS designated all river reaches presently or historically accessible to listed spring/summer chinook salmon (except river reaches above impassable natural falls, and Dworshak and Hells Canyon Dams) in various hydrologic units as critical habitat (58 FR 68543). Napias Creek, the area in question, occurs within one of these designated hydrologic units (Middle Salmon-Panther, USGS Hydrologic Unit 17060203).

On January 6, 1997, the Secretary of Commerce (Secretary) received a petition from Meridian Gold Company (Meridian) to revise critical habitat for Snake River spring/summer chinook salmon in Napias Creek, a tributary to Panther Creek which flows into the Salmon River in central Idaho. In accordance with section 4(b)(3)(D) of the ESA, NMFS issued a determination on April 28, 1997, that the petition presented substantial scientific information indicating that a revision may be warranted (62 FR 22903). In that document, NMFS solicited information and comments from interested parties concerning the petitioned action.

On September 16, 1997, Meridian submitted additional information in support of its petition. Specifically, Meridian submitted three new reports entitled: (1) ``Ability of Salmon and Steelhead to Pass Napias Creek Falls''; (2) ``Investigation of Physical Conditions at Napias Creek Falls''; and (3) ``Historical and Ethnographic Analysis of Salmon Presence in the Leesburg Basin, Lemhi County, Idaho.'' This new information was added to the administrative record and was considered by NMFS in its 12-month determination published on January 30, 1998 (63 FR 4615).

On January 30, 1998, NMFS determined the petitioned action was not warranted since available information indicated the falls was likely passable to chinook salmon at some flows and that the presence of relict indicator species indicated historical usage by anadromous species (63 FR 4615). NMFS also concluded that habitat above Napias Creek Falls contained unique features that may aid in the conservation and recovery of listed salmonid species (63 FR 4615). However, NMFS did not address the question of whether or not habitat above the falls was essential for recovery of the species since it concluded that the area was within the species' current range (63 FR 4615; see also 50 CFR 424.12(e) which states that areas outside of the

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species' current range shall be designated only when the species' current range is inadequate for conservation purposes).

Subsequent to NMFS' January 30, 1998, determination, Meridian submitted a ``petition for reconsideration,'' providing additional data and analyses concerning the likelihood that Napias Creek Falls constitutes a naturally impassable barrier to anadromous salmonid migration (Meridian 1998a, 1998b; Chapman 1998). While NMFS' ESA implementing regulations do not provide a process for reconsidering findings on petitions, NMFS nonetheless agreed in a letter dated July 31, 1998, to consider Meridian's new information and provide Meridian with a written determination regarding its findings (NMFS, 1998a; Meridian, 1998d). On October 30, 1998, NMFS staff met with Meridian representatives to discuss the new technical information and its interpretations (NMFS, 1998b).

On December 29, 1998, Meridian expressed its desire to withdraw its ``petition for reconsideration'' stating that it interpreted NMFS' continuing treatment of the area as critical habitat as a denial of its petition (Meridian, 1998c). However, at the time of that letter, NMFS had not yet reached a conclusion regarding the additional information submitted by Meridian, nor had NMFS provided Meridian with a written determination on the matter as it had committed to do in its July 31, 1998, letter (NMFS, 1998a).

While Meridian now seeks to withdraw its additional information concerning Napias Creek Falls, NMFS concludes this information is part of the best scientific information available regarding whether this area constitutes critical habitat for the species. Therefore, in accordance with section 4(b)(1)(A) of the ESA, NMFS bases the conclusions in this proposal on Meridian's new information. NMFS likewise considered this information in its recent proposed rule to designate critical habitat for Snake River steelhead (64 FR 5740, February 5, 1999).

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) of the ESA as ``(i) the specific areas within the geographical area occupied by the species * * * on which are found those physical or 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 * * * upon a determination by the Secretary of Commerce (Secretary) that such areas are essential for the conservation of the species'' (see 16 U.S.C. 1532(5)(A)). The term ``conservation,'' as defined in section 3(3) of the ESA, means `` * * * to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary'' (see 16 U.S.C. 1532(3)).

Defining specific river reaches that constitute critical habitat for chinook salmon, and anadromous fish species in general, is difficult to do because of NMFS' imperfect understanding of the species' freshwater distribution, both current and historical, and the lack of comprehensive sampling efforts dedicated to monitoring these species. Given this scientific uncertainty, NMFS' approach to designating critical habitat for chinook salmon is to designate all areas currently and historically accessible to the species within the range of the ESU. NMFS believes this inclusive approach to designating critical habitat is appropriate because it: (1) recognizes the species' extensive use of diverse habitats and underscores the need to account for all of the habitat types supporting the species' juvenile and adult freshwater and estuarine life stages; and (2) takes into account the natural variability in the species' habitat use; and (3) recognizes data limitations and scientific uncertainty that exist concerning the distribution and habitat usage of the listed species.

Process for Defining Critical Habitat

Developing a proposed critical habitat designation involves three main considerations. First, the biological needs of the species are evaluated, and essential habitat areas and features are identified. Second, the need for special management considerations or protection of the area(s) or features identified are evaluated. Finally, the probable economic and other impacts of designating these essential areas as ``critical habitat'' are evaluated. After considering the requirements of the species, the need for special management, and the impacts of the designation, a notification of the proposed critical habitat is published in the Federal Register for comment. The final critical habitat designation, considering comments on the proposal and impacts assessment, is typically published within 1 year of the proposed rule. Final critical habitat designations may be revised as new information becomes available.

At this time, new information exists that indicates a revision in NMFS' final critical habitat designation is warranted. A discussion of this information follows.

Analysis of Available Information

Two lines of evidence indicate that areas above Napias Creek Falls do not constitute critical habitat for the listed species. This evidence includes: (1) current passage conditions at the falls; and (2) surveys of current and historic salmonid presence above the falls.

Current Passage Conditions at Napias Creek Falls

On September 16, 1997, Meridian submitted the results of several studies conducted to determine the ability of chinook salmon to migrate above Napias Creek Falls. One study evaluated the geomorphology of the falls, while another study assessed the potential for fish passage using the methods of Powers and Orsborn as described in ``Analysis of Barriers to Upstream Fish Migration'' (Bonneville Power Administration, 1984). A third study entitled ``Ability of Salmon and Steelhead to Pass Napias Creek Falls'' analyzed information and conclusions of the preceding two studies and concluded that ``Napias Creek Falls is an absolute barrier to upstream migration of salmon and steelhead in Napias Creek'' (Meridian, 1997). NMFS analyzed Meridian's studies which indicated that the falls was a historic barrier to chinook salmon passage in the January 30, 1998, determination (63 FR 4615, 4617). NMFS also conducted its own passage assessment of Napias Creek Falls.

On May 29, 1998, and dates thereafter, Meridian commented on NMFS' passage assessment and provided additional explanation of its own prior analyses (Meridian 1998a, 1998b; Chapman 1998). NMFS analyzed these comments in a memo entitled ``Analysis of Meridian Gold Company's May 29, 1998, Submittal Concerning Chinook Salmon Passage Conditions at Napias Creek Falls'' (NMFS 1998c). In this memo, NMFS concluded that while Meridian's May 29, 1998, submittal provides additional information regarding the passage issue at Napias Creek Falls, such information does not change NMFS' original conclusion reached in its November 21, 1997, analysis (NMFS, 1997). Specifically, NMFS concluded that Napias Creek Falls is likely passable to listed chinook salmon under certain flow conditions (NMFS, 1998c).

However, NMFS recognizes that it is difficult to determine whether the falls

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constitutes an ``effective'' migrational barrier to the species, thus, precluding the species from colonizing areas above the falls (see NMFS, 1999). NMFS believes that current and historic usage information is informative on the question of whether or not the falls constitutes an effective migrational barrier for the species. From such information, one can infer whether Napias Creek Falls effectively constitutes a migrational barrier for the species and, therefore, is outside the species' current and historic range.

Surveys of Current and Historic Salmonid Presence

Meridian conducted two studies to determine if, historically, chinook salmon were observed above Napias Creek Falls. The first study reviewed historical accounts of chinook salmon occurring above Napias Creek Falls (Meridian, 1997a). Meridian states that reviews of historical and independent ethnographic research document that salmon or steelhead were not observed or caught above Napias Creek Falls and, therefore, the fish were not historically present in this area. A second study reviews the genesis of Napias Creek Falls and concludes that the falls are a natural feature and not the result of development activities near the area (Meridian, 1997b).

Meridian's studies and the opinions of Federal and state resource agencies (i.e., U.S. Forest Service (USFS), and Idaho Department of Fish and Game (IDFG)) indicate that areas above Napias Creek Falls are outside the range of listed chinook salmon and do not constitute critical habitat for the species (USFS, 1996; IDFG undated); however, this conclusion is in conflict with comments from a USFS fishery biologist. In a report dated February 8, 1996, Bruce Smith, Salmon and Challis National Forest Fisheries Biologist, concludes that Napias Creek historically contained chinook salmon (Smith, 1996a). Smith also states that areas above Napias Creek Falls currently contain relict indicator species (Smith, 1996a), indicating pre-historic accessibility of this area to anadromous salmonid species (Smith, 1996b).

In its January 30, 1998, determination, NMFS found Smith's analysis persuasive on the question of the historical presence of chinook salmon above Napias Creek Falls primarily based on Smith's identification of relict indicator species above the falls (63 FR 4615; 4617). However, Meridian points out in their recently submitted study that while relict indicator species such as rainbow trout and bull trout occur above the falls, other native species (e.g., mountain whitefish, westslope cutthroat trout, scuplins, and dace) do not presently occur above the falls, indicating that salmonids in the area may have been the result of hatchery plantings or other introductions (Chapman, 1998). This explanation is supported by the presence of other nonnative fish species above the falls (i.e., brook trout), and the history of stocking activities in Napias Creek (Smith, 1996a).

Interpretation of Available Scientific Data

While NMFS concludes that Napias Creek Falls is most likely passable to chinook salmon at certain flows, it is difficult to predict the likelihood that this species would colonize areas above the falls if present in sufficient numbers in Napias Creek. The presence of relict indicator species (e.g., rainbow trout) above the falls suggests historic usage by anadromous species; however, the origin of these indicator species is uncertain. The presence of nonnative species and the absence of other common native species suggest that such indicator species may be the result of hatchery plantings or other introductions. Historical records of hatchery plantings by IDFG support this conclusion. Furthermore, historical surveys indicate that in recent history (since the 1930s), chinook salmon have not occurred above the falls, supporting the conclusion that the falls effectively constitutes a migrational barrier for the species.

After reconsidering its prior analysis in light of new information provided by Meridian, NMFS concludes that the best available scientific information indicates that habitat above Napias Creek Falls is outside the current range of listed spring/summer chinook salmon and, therefore, does not constitute critical habitat for the species. This conclusion is supported by NMFS' assessment of available scientific data and the independent opinions of other Federal and state resource agencies (USFS, 1996; IDFG, undated). The apparent lack of historic usage of this area by chinook salmon also indicates that this area is not essential for conservation of the species. This conclusion is consistent with NMFS' previous spring/summer chinook salmon critical habitat finding that the species' current range is likely adequate for conservation purposes (See 58 FR 68543, Final Designation of Critical Habitat for Snake River Spring/Summer Chinook Salmon).

NMFS recognizes that scientific uncertainty remains regarding its conclusion that areas above Napias Creek Falls do not constitute critical habitat for listed spring/summer chinook salmon. Specifically, uncertainty remains regarding whether chinook salmon could establish a naturally reproducing population above the falls if they were present in sufficient numbers in Napias Creek, or if chinook salmon historically inhabited areas above Napias Creek Falls. To resolve remaining uncertainties, NMFS requests comments and information regarding its proposed determination (See Public Comments Solicited).

Even though scientific uncertainty remains regarding NMFS' conclusion, chinook salmon do not now occur in Napias Creek and, therefore, habitat above the falls would not likely be used by the species in the near-term even if it were accessible. Therefore, if this proposal is finalized, the long-term risk of harm to the species is lessened by the fact that NMFS may revise its determination in the future if additional information indicates that areas above Napias Creek Falls constitute critical habitat for the species.

While NMFS concludes that areas above Napias Creek Falls do not constitute critical habitat for chinook salmon, NMFS believes that Napias Creek constitutes an important source of dilution water within the Panther Creek system (63 FR 4615 and 4618, January 30, 1998). Any degradation of dilution flows from Napias Creek would likely hinder efforts to reestablish anadromous species in Panther Creek (63 FR 4615 and 4618, January 30, 1998). Consequently, NMFS intends to carefully evaluate any proposed impacts on Napias Creek water quality to ensure that the survival and recovery of listed species are not jeopardized.

Expected Economic Impacts

Section 4(b)(2) of the ESA requires NMFS to consider the economic impact of specifying any particular areas as critical habitat. However, section 4(b)(1)(A) of the ESA prohibits NMFS from considering economic impacts associated with species listings. Consequently, when designating critical habitat, NMFS considers only the incremental economic impacts associated with the designation above the economic impacts attributable to the listing of the species or authorities other than the ESA. Incremental impacts result from special management activities in those areas, if any, outside the present distribution of the listed species that NMFS has determined to be essential for the conservation of the species.

For this Evolutionarily Significant Unit (ESU), NMFS determines that the

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present geographic extent of the species' freshwater and estuarine range is likely sufficient to provide for conservation of the species. Since NMFS believes that virtually all ``adverse modification'' determinations pertaining to critical habitat would also result in ``jeopardy'' conclusions under section 7 consultations of the ESA (i.e., as a result of the species being listed), the designation of critical habitat is not expected to result in significant incremental restrictions on Federal agency activities. Critical habitat designation will, therefore, result in few, if any, additional economic effects beyond those that may be attributable to the listing and other statutes.

The USFS and U.S. Army Corp of Engineers (COE) manage areas of critical habitat for this ESU, both as it is now designated and as proposed for revision. COE and other Federal agencies that may be involved with funding or permits for projects in critical habitat areas may also be affected by this designation. Since the proposed revision will result in eliminating areas above Napias Creek Falls from designated critical habitat, the impact of this action on these Federal agencies should be minimal.

Proposed Determination

After reconsidering its prior analysis and analyzing new information and analyses submitted by Meridian, NMFS concludes that Napias Creek Falls constitutes a naturally impassable migrational barrier for Snake River spring/summer chinook salmon and, therefore, is outside the species' range. While the falls may be passable to chinook salmon at certain flows, available historical evidence suggests that this species has not navigated this falls in the recent past, nor is it likely do so in the future. NMFS specifically requests data and analyses to address remaining scientific uncertainty associated with this conclusion (See Public Comments Solicited).

Public Comments Solicited

To ensure that NMFS' final determination is based on the best available scientific data as required by the ESA, NMFS solicits comments from the public, other governmental agencies, the scientific community, industry, and any other interested parties on the following issues: (1) The sufficiency of the evidence supporting NMFS' determination that Napias Creek Falls constitutes a naturally impassable migrational barrier for chinook salmon; (2) the existence of any evidence that may address the potential for fish passage above the falls, such as historic accounts indicating chinook salmon or other anadromous salmonids occurred above Napias Creek Falls, data or reports analyzing the likelihood that chinook salmon or other anadromous salmonids would migrate above Napias Creek Falls if present in Napias Creek, or information pertaining to the origin of rainbow trout or other residualized anadromous species above Napias Creek Falls (e.g., hatchery stocking records); and (3) other information indicating whether areas above Napias Creek Falls do or do not constitute critical habitat for the species. NMFS will analyze all comments and information received prior to issuing a final determination.

Public Hearings

Joint Department of Commerce and Interior ESA implementing regulations state that the Secretary shall promptly hold at least one public hearing if any person so requests within 45 days of publication of a proposed regulation to list species or to designate critical habitat (50 CFR 424.16(c)(3)). Requests for public hearings must be received by July 19, 1999.

References

A complete list of all references cited herein and maps describing the range of proposed Snake River spring/summer chinook salmon are available upon request (see ADDRESSES).

Classification

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS proposes to designate only the current range of this ESU as critical habitat. This current range encompasses a wide range of habitat, including tributary streams, as well as mainstem, off-channel and estuarine areas. Areas not included in this proposed redesignation include marine habitats in the Pacific Ocean and areas above impassable natural barriers (e.g., long-standing, natural waterfalls). NMFS concludes that the currently accessible areas within the species' range are the minimum habitat necessary to ensure the species' conservation and recovery. The proposed action would revise critical habitat for the listed ESU to realign critical habitat with the current range of the ESU. Having determined that Napias Creek Falls constitutes a naturally impassable barrier for Snake River spring/summer chinook, NMFS proposes to remove the habitat above the Falls from designated critical habitat.

Since NMFS is designating the current range of the listed species as critical habitat, this designation will not impose any additional requirements or economic effects upon small entities beyond those which may accrue from section 7 of the ESA. Section 7 requires Federal agencies to insure that any action they carry out, authorize, or fund is not likely to jeopardize the continued existence of any listed species or to result in the destruction or adverse modification of critical habitat (ESA section 7(a)(2)). The consultation requirements of section 7 are nondiscretionary and are effective at the time of species' listing. Therefore, Federal agencies must consult with NMFS and ensure their actions do not jeopardize a listed species, regardless of whether critical habitat is designated.

In the future, should NMFS determine that designation of habitat areas outside the species' current range is necessary for conservation and recovery, NMFS will analyze the incremental costs of that action and assess its potential impacts on small entities, as required by the Regulatory Flexibility Act. Until that time, a more detailed analysis would be premature and would not reflect the true economic impacts of the proposed action on small businesses, organizations, and governments.

Meridian owns and operates Beartrack Mine, which is adjacent to Upper Napias Creek (Napias Creek above the Falls), within the Salmon National Forest. NMFS is not aware of any other business operating in Upper Napias Creek whose operations might adversely modify potential salmon habitat. The proposed action would reduce the ESU's critical habitat, by eliminating Upper Napias Creek from critical habitat. To the extent that Meridian may be impacted by the current designation of Upper Napias Creek as critical habitat, the proposed reduction of critical habitat would lessen Meridian's economic burden, if any, from that impact.

Accordingly, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed critical habitat designation, if adopted, would not have a significant economic impact on a substantial number of small entities, as described in the Regulatory Flexibility Act.

This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

NMFS has determined that Environmental Assessments or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared for this

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critical habitat designation. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).

List of Subjects in 50 CFR Part 226

Endangered and threatened species, Incorporation by reference.

Dated: May 26, 1999. Andrew A. Rosenberg, Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 226 is proposed to be amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

1. The authority citation for part 226 continues to read as follows:

   Authority: 16 U.S.C. 1533.

2. In Sec. 226.205, paragraph (b) is revised to read as follows:

   Sec. 226.205 Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon and Snake River spring/summer chinook salmon.

   * * * * *

   (b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha). Geographic boundaries. Critical habitat is designated to include the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) and including all Columbia River estuarine areas and river reaches proceeding upstream to the confluence of the Columbia and Snake Rivers; all Snake River reaches from the confluence of the Columbia River upstream to Hells Canyon Dam. Critical habitat also includes river reaches presently or historically accessible (except reaches above impassable natural falls (including Napias Creek Falls), and Dworshak and Hells Canyon Dams) to Snake River spring/summer chinook salmon in the following hydrologic units: Hells Canyon, Imnaha, Lemhi, Little Salmon, Lower Grande Ronde, Lower Middle Fork Salmon, Lower Salmon, Lower Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle Salmon-Panther, Pahsimeroi, South Fork Salmon, Upper Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, Wallowa. Critical habitat borders on or passes through the following counties in Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco; the following counties in Washington: Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, Blaine, Custer, Idaho, Lemhi, Lewis, Nez Perce, Valley. * * * * *

   [FR Doc. 99-13958Filed6-1-99; 8:45 am]

   BILLING CODE 3510-22-F