[Federal Register: February 11, 2008 (Volume 73, Number 28)] [Rules and Regulations] [Page 7815-7873] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr11fe08-13] [[Page 7815]] ----------------------------------------------------------------------- Part III Department of Commerce ----------------------------------------------------------------------- National Oceanic and Atmospheric Administration ----------------------------------------------------------------------- 50 CFR Parts 223 and 226 Endangered and Threatened Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon; Final Rule [[Page 7816]] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 226 [Docket No. 071227892-7894-01] RIN 0648-AW39 Endangered and Threatened Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We are issuing a final determination to list the Oregon Coast coho salmon (Oncorhynchus kisutch) evolutionarily significant unit (ESU) as a threatened species under the Endangered Species Act (ESA). We are also issuing final protective regulations and a final critical habitat designation for the Oregon Coast coho ESU. DATES: The listing determination, protective regulations, and designated critical habitat are effective on May 12, 2008. With respect to the protective regulations, the take prohibitions for the Oregon Coast coho ESU do not apply to research and enhancement activities specified in an application for a permit or approval under the protective regulations, provided that the application has been received by the Assistant Administrator for Fisheries (AA), NOAA, no later than June 10, 2008. This ``grace period'' for pending research and enhancement applications will remain in effect until the issuance or denial of authorization, or March 31, 2009, whichever occurs earliest. ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon 97232. FOR FURTHER INFORMATION CONTACT: Scott Rumsey, NMFS, Northwest Region, Protected Resources Division, at (503) 872-2791, or Marta Nammack, NMFS, Office of Protected Resources, at (301) 713-1401. Reference materials regarding this determination are available upon request or on the Internet at http://www.nwr.noaa.gov. SUPPLEMENTARY INFORMATION: Previous Federal ESA Actions Related to Oregon Coast Coho In 1995, we completed a comprehensive status review of West Coast coho salmon (Weitkamp et al., 1995) that resulted in proposed listing determinations for three coho ESUs, including a proposal to list the Oregon Coast coho ESU as a threatened species (60 FR 38011; July 25, 1995). On October 31, 1996, we announced a 6-month extension of the final listing determination for the ESU, pursuant to section 4(b)(6)(B)(I) of the ESA, noting substantial disagreement regarding the sufficiency and accuracy of the available data relevant to the assessment of extinction risk and the evaluation of protective efforts (61 FR 56211). On May 6, 1997, we withdrew the proposal to list the Oregon Coast coho ESU as threatened, based in part on conservation measures contained in the Oregon Coastal Salmon Restoration Initiative (later renamed the Oregon Plan for Salmon and Watersheds; hereafter referred to as the Oregon Plan) and an April 23, 1997, Memorandum of Agreement (MOA) between NMFS and the State of Oregon which further defined Oregon's commitment to salmon conservation (62 FR 24588). We concluded that implementation of harvest and hatchery reforms, and habitat protection and restoration efforts under the Oregon Plan and the MOA substantially reduced the risk of extinction faced by the Oregon Coast coho ESU. On June 1, 1998, the U.S. District Court for the District of Oregon issued an opinion finding that our May 6, 1997, determination to not list Oregon Coast coho was arbitrary and capricious (Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d 1139 (D. Or. 1998)). The Court vacated our determination to withdraw the proposed rule to list the Oregon Coast coho ESU and remanded the determination to NMFS for further consideration. On August 10, 1998, we issued a final rule listing the Oregon Coast coho ESU as threatened (63 FR 42587), basing the determination solely on the information and data contained in the 1995 status review (Weitkamp et al., 1995) and the 1997 proposed rule. In 2001 the U.S. District Court in Eugene, Oregon, set aside the 1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, (D. Or. 2001)) (Alsea). In response to the Alsea ruling and several listing and delisting petitions, we announced that we would conduct an updated status review of 27 West Coast salmonid ESUs, including the Oregon Coast coho ESU (67 FR 6215, February 11, 2002; 67 FR 48601, July 25, 2002). In 2003 we convened the Pacific Salmonid Biological Review Team (BRT) (an expert panel of scientists from several Federal agencies including NMFS, the U.S. Fish and Wildlife Service (FWS), and the U.S. Geological Survey (USGS)) to review the extinction risks of naturally spawning populations in the 27 ESUs under review, including the Oregon Coast coho ESU (Good et al., 2005; NMFS, 2003a). In making its recommendation, the BRT used a process where each member of the BRT was given 10 votes to divide among three conclusions. Members were allowed to assign votes to more than one conclusion, allowing them to express their relative degree of confidence in particular conclusions. The three options were ``In Danger of Extinction,'' ``Likely to Become Endangered,'' and ``Not Warranted.'' Fifty-six percent of the votes supported the conclusion that naturally spawning Oregon coast coho were likely to become endangered in the foreseeable future, and 44 percent supported the conclusion that naturally spawning Oregon coast coho was ``Not Warranted'' (that is, not likely to become in danger of extinction in the foreseeable future). The BRT noted considerable uncertainty regarding the future viability of the ESU given the uncertainty in predicting future ocean conditions for coho survival, as well as uncertainty in whether current freshwater habitats are of sufficient quality and quantity to support the recent high abundance levels and sustain populations during future downturns in ocean conditions. Although the BRT couched its conclusion in terms of the statutory definition of a threatened species (that is, not in danger of extinction, but likely to become endangered in the foreseeable future), the BRT's conclusion did not constitute a recommendation to list the species. Our listing determination also considered the risks and benefits from artificial propagation programs included in the ESU, efforts being made to protect the species, and the five factors listed under section 4(a)(1) of the ESA. On June 14, 2004, based primarily on the BRT voting results, we proposed to list the Oregon Coast coho ESU as a threatened species (69 FR 33102). However, the proposed listing recognized that further information would likely become available and that this information could affect the outcome of the final determination. In the proposed rule, we noted that Oregon was initiating a comprehensive assessment of the viability of the Oregon Coast coho ESU and of the adequacy of actions under the Oregon Plan for conserving Oregon Coast coho. As part of that proposed rule we proposed amendments to existing protective regulations issued under ESA section [[Page 7817]] 4(d) (``4(d) regulations'') for all threatened West Coast salmon and steelhead (50 CFR 223.203). These amendments were needed to: (1) Provide flexibility in fisheries and hatchery management; and (2) simplify and clarify the existing regulations so that they may be more efficiently and effectively accessed and interpreted by all affected parties. On December 14, 2004, we proposed designations of critical habitat for 13 ESUs of Pacific salmon and steelhead in the Pacific Northwest, including the Oregon Coast coho ESU (69 FR 74572). We proposed critical habitat in 72 of 80 occupied watersheds, contained in 13 subbasins, totaling approximately 6,665 stream miles along the Oregon Coast, south of the Columbia River and north of Cape Blanco (Oregon). The estimated economic impact of the areas proposed for critical habitat was approximately $15.7 million. Eight occupied watersheds were proposed for exclusion because the high benefits of exclusion (due to economic impacts) outweighed the low benefits of inclusion (due to the low inherent conservation value for the listed species). These excluded watersheds included approximately 134 stream miles and represented a 15 percent reduction (approximately $2.75 million) in the economic impact of the proposed designation. To assess economic impacts we measured the co-extensive impacts because, based on the existing record, we could not distinguish between the costs associated with the species' listing from the costs of separately designating critical habitat. In January 2005 the State of Oregon released a draft Oregon Coastal Coho Assessment (Oregon's Draft Viability Assessment), which (1) evaluated the current viability of the Oregon Coast coho ESU, and (2) evaluated the certainty of implementation and effectiveness of the Oregon Plan measures in addressing the factors for decline of the Oregon Coast coho ESU. The latter evaluation was intended to satisfy the joint NMFS--FWS Policy on Evaluating Conservation Efforts (``PECE''; 68 FR 15100; March 28, 2003). Oregon's Draft Viability Assessment concluded that the Oregon Coast coho ESU is currently viable and that measures under the Oregon Plan have stopped, if not reversed, the deterioration of Oregon Coast coho habitats. The Draft Viability Assessment also concluded that it is highly likely that existing monitoring efforts would detect any significant future deterioration in the ESU's viability, or degradation of environmental condition, allowing a timely and appropriate response to conserve the ESU. On February 9, 2005, we published a notice of availability of Oregon's Draft Viability Assessment for public review and comment in the Federal Register (70 FR 6840) and noted that information presented in the draft and final assessments would be considered in making the final listing determination for the Oregon Coast coho ESU. We forwarded the public comments we received on Oregon's Draft Viability Assessment, as well as our technical reviews, for Oregon's consideration in developing its final assessment. The public comments and our review highlighted areas of uncertainty or disagreement regarding the sufficiency and accuracy of Oregon's Draft Viability Assessment, including: the assumption that Oregon Coast coho populations are inherently resilient at low abundance, and that this compensatory response will prevent extinction during periods of low marine survival; the apparent de-emphasis of abundance as a useful indicator of extinction risk; assumptions regarding the duration and severity of future periods of unfavorable marine and freshwater conditions; the ability of monitoring and adaptive management efforts to detect population declines or habitat degradation, and to identify and implement necessary protective measures; and the ability of Oregon Plan measures to halt or reverse habitat degradation once detected. On May 13, 2005, Oregon issued its final Oregon Coastal Coho Assessment (Oregon's Final Viability Assessment). Oregon's Final Viability Assessment included several changes intended to address concerns raised regarding the sufficiency and accuracy of the draft assessment. Oregon's Final Viability Assessment concluded that: (1) The Oregon Coast coho ESU is viable under current conditions, and should be sustainable through a future period of adverse environmental conditions (including a prolonged period of poor ocean productivity); (2) given the assessed viability of the ESU, the quality and quantity of habitat is necessarily sufficient to support a viable ESU; and (3) the integration of laws, adaptive management programs, and monitoring efforts under the Oregon Plan will maintain and improve environmental conditions and the viability of the ESU into the foreseeable future. On June 28, 2005 (70 FR 37217), we announced a 6-month extension of the final listing determination for the Oregon Coast coho ESU, finding that ``there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination * * * for the purposes of soliciting additional data'' (section 4(b)(6)(B)(i) of the ESA). We announced a 30-day public comment period to solicit information regarding the validity of Oregon's Final Viability Assessment, particularly in light of the concerns raised with respect to Oregon's Draft Viability Assessment. In September 2005 we issued final critical habitat designations for 12 Pacific Northwest ESUs (70 FR 52685; September 2, 2005), but we did not issue a final critical habitat designation for Oregon Coast coho because it was only proposed for listing at that time. On January 19, 2006, we issued a final determination that listing the Oregon Coast coho ESU under the ESA was not warranted (71 FR 3033). As part of this determination, we withdrew the proposed ESA section 4(d) regulations and critical habitat designation for the ESU. In reaching our determination not to list Oregon Coast coho, we found that the BRT's slight majority opinion that the ESU is ``likely to become endangered'' and the conclusion of the Oregon Final Viability Assessment that the ESU is viable represented competing reasonable inferences from the available scientific information and considerable associated uncertainty. The difference of opinion centered on whether the ESU was at risk because of the ``threatened destruction, modification, or curtailment of its habitat or range.'' We conducted an analysis of current habitat status and likely future habitat trends (NMFS, 2005a) and found that: (1) The sufficiency of current habitat conditions was unknown; and (2) likely future habitat trends were mixed (i.e., some habitat elements were likely to improve, some were likely to decline, others were likely to remain in their current condition). We concluded that there was insufficient evidence to support the conclusion that the ESU was more likely than not to become an endangered species in the foreseeable future throughout all or a significant portion of its range. Our decision not to list the Oregon Coast coho ESU was challenged in Trout Unlimited. On October 9, 2007, the U.S. District Court for the District of Oregon invalidated our January 2006 decision not to list Oregon Coast coho (Trout Unlimited v. Lohn, Civ. No. 06-01493 ST (D. Oreg., October 9, 2007). The Court found that Oregon's Viability Assessment does not represent the best available science, and that we improperly considered it in reaching our final listing decision. The Court ordered us to issue a new final listing rule consistent with the ESA. This listing decision has been made in compliance with the Court's order. [[Page 7818]] ESA Statutory Provisions Listing Determinations The ESA defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future (sections 3(6) and 3(20), respectively). The statute requires us to determine whether any species is endangered or threatened because of any of five factors: the present or threatened destruction of its habitat, overexploitation, disease or predation, the inadequacy of existing regulatory mechanisms, or any other natural or manmade factors (section 4(a)(1)(A)-(E)). We are to make this determination based solely on the best available scientific information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species. The focus of our evaluation of these five factors is to evaluate whether and to what extent a given factor represents a threat to the future survival of the species. The focus of our consideration of protective efforts is to evaluate whether these efforts substantially have and will continue to address the identified threats and so ameliorate a species' risk of extinction. In making our listing determination, we must consider all factors that may affect the future viability of the species, including whether regulatory and conservation programs are inadequate and allow threats to the species to persist or worsen, or whether these programs are likely to mitigate threats to the species and reduce its extinction risk. The steps we follow in implementing this statutory scheme are to: review the status of the species, analyze the factors listed in section 4(a)(1) of the ESA to identify threats facing the species, assess whether certain protective efforts mitigate these threats, and make our best prediction about the species' future persistence. As indicated above, the PECE provides direction for considering protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or have been implemented but have not yet demonstrated effectiveness. The policy articulates several criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determining whether a species warrants listing under the ESA. Evaluation of the certainty that an effort will be implemented includes whether: the necessary resources (e.g., funding and staffing) are available; the requisite agreements have been formalized such that the necessary authority and regulatory mechanisms are in place; there is a schedule for completion and evaluation of the stated objectives; and (for voluntary efforts) the necessary incentives are in place to ensure adequate participation. The evaluation of the certainty of an effort's effectiveness is made on the basis of whether the effort or plan: Establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; and is likely to improve the species' viability at the time of the listing determination. PECE also notes several important caveats. Satisfaction of the above mentioned criteria for implementation and effectiveness establishes a given protective effort as a candidate for consideration, but does not mean that an effort will ultimately change the risk assessment. The policy stresses that, just as listing determinations must be based on the viability of the species at the time of review, so they must be based on the state of protective efforts at the time of the listing determination. The PECE does not provide explicit guidance on how protective efforts affecting only a portion of a species' range may affect a listing determination, other than to say that such efforts will be evaluated in the context of other efforts being made and the species' overall viability. Protective Regulations ESA section 9(a) take and other prohibitions (16 U.S.C. 1538(a)(1)(B)) apply to all species listed as endangered. Hatchery stocks determined to be part of endangered ESUs are afforded all of the full section 9 protections. In the case of threatened species, ESA section 4(d) leaves it to the Secretary of Commerce's (Secretary) discretion to determine whether and to what extent regulatory requirements may be appropriate, by directing the Secretary to issue regulations determined to be necessary and advisable for the conservation of the species. We have flexibility under section 4(d) to tailor protective regulations based on the contributions of available conservation measures. The 4(d) regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. Critical Habitat Section 3 of the ESA defines critical habitat as (1) specific areas within the geographical area occupied by the species at the time of listing, on which are found those physical or biological features that are essential to the conservation of the listed species and that may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of a listed species. In designating critical habitat our regulations direct us to focus on ``primary constituent elements,'' or PCEs, in identifying these physical or biological features. Section 4 of the ESA requires us to consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. We may exclude any area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the failure to designate such an area will result in the extinction of the species. At the time of a proposed listing determination, ESA section 4(a)(3) and our regulations require us to specify critical habitat to the maximum extent ``prudent and determinable.'' Critical habitat designation is not prudent if: (1) The species is threatened by taking or other human activity and the identification of critical habitat can be expected to increase such threat(s); or (2) critical habitat designation would not be beneficial to the species. Critical habitat is not determinable if: (1) Sufficient information is lacking to perform the required analyses of the impact of the designation; or (2) the biological needs of the species are not sufficiently well known to identify an area as critical habitat. In our proposed rule to designate specific areas as critical habitat (69 FR 74572; December 14, 2004), we determined that designating critical habitat for this species is prudent and determinable. The record continues to support this determination. The ESA requires that a final regulation designating critical habitat be published concurrently with the final determination listing a species as threatened or endangered, unless: (1) It is essential to the conservation of such species that the species be listed promptly (e.g., in instances when a species is listed by emergency rule); or (2) critical habitat of such species is not [[Page 7819]] then determinable. Section 7(a)(2) of the ESA requires that each Federal agency shall, in consultation with, and with the assistance of, NMFS, ensure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of its designated critical habitat. Summary of Public and Independent Review Our regulations require that we allow a period of at least 60 days for the public to review and comment on a proposed rule to list, delist, or reclassify a species, or to designate or revise critical habitat. We may extend or reopen the comment period upon finding that there is good cause to do so by publishing notice in the Federal Register. We are required to hold at least one public hearing if any person so requests within 45 days of the publication of a proposed rule. Notice of the location and time of any hearings is published in the Federal Register. A 1994 joint NMFS-FWS policy (Independent Review Policy) requires us to solicit independent expert review from at least three qualified specialists, concurrent with the public comment period following a proposed rule (59 FR 34270; July 1, 1994). In December 2004 the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review (Peer Review Bulletin), establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input. The OMB Peer Review Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to ensure the quality of agency information, analyses, and regulatory activities and provide for a more transparent review process. Listing Determination and Protective Regulations We solicited public comment on the proposed listing determination and ESA section 4(d) regulations for the Oregon Coast coho ESU for a total of 208 days (69 FR 33102, June 14, 2004; 69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004; 70 FR 6840, February 9, 2005; 70 FR 37217, June 28, 2005). In addition, we held eight public hearings in the Pacific Northwest concerning the June 2004 West Coast salmon and steelhead proposed 4(d) regulations and proposed listing determinations, including the proposed determination for the Oregon Coast coho ESU (69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004). In compliance with the 1994 Independent Review Policy we solicited technical review of the June 2004 proposed 4(d) regulations and listing determinations, including the proposed determination for the Oregon Coast coho ESU, from over 50 independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. The individuals from whom we solicited review of the proposals and the underlying science were selected because of their demonstrated expertise in a variety of disciplines including: Artificial propagation; salmonid biology, taxonomy, and ecology; genetic and molecular techniques and analyses; population demography; quantitative methods of assessing extinction risk; fisheries management; local and regional habitat conditions and processes; and conducting scientific analyses in support of ESA listing determinations. The individuals solicited represent a broad spectrum of perspectives and expertise. The individuals solicited include those who have been critical of past agency actions in implementing the ESA for West Coast salmon and steelhead, as well as those who have been supportive of these actions. These individuals were not involved in producing the scientific information for our determinations and were not employed by the agency. We received comments from four of these experts. In addition to these solicited reviews, several independent scientific panels and academic societies provided technical review of the proposals and the supporting documentation. With respect to the Peer Review Bulletin's requirements for ``adequate [prior] peer review,'' we believe the independent expert review under the 1994 Independent Review Policy, and the comments received from several academic societies and expert advisory panels, collectively satisfy the Peer Review Bulletin's requirements (NMFS, 2005b). In response to our requests for information and comments on the June 2004 proposed listing determinations, we received over 28,250 comments by fax, standard mail, and e-mail. The majority of the comments received were from interested individuals who submitted form letters or form e-mails that addressed general issues not specific to the Oregon Coast coho ESU. Comments were also submitted by state and tribal natural resource agencies, fishing groups, environmental organizations, home builder associations, academic and professional societies, expert advisory panels, farming groups, irrigation groups, and individuals with expertise in Pacific salmonids. The majority of commenters focused on the consideration of hatchery-origin fish in ESA listing determinations, with only a few comments specifically addressing the Oregon Coast coho ESU. We also received comments from 4 of the 50 independent experts from whom we had requested technical review of the scientific information underlying the June 2004 proposed listing determinations. Their comments did not specifically address the proposed determination for the Oregon Coast coho ESU. The reader is referred to the final hatchery listing policy (70 FR 37204; June 28, 2005) and the final listing determinations and ESA section 4(d) regulations for 16 salmon ESUs (70 FR 37160; June 28, 2005) for a summary and discussion of issues raised by the comments that were not specific to the Oregon Coast coho ESU. The comments addressing the proposed listing determination for the Oregon Coast coho ESU are summarized below. We did not receive any comments that addressed the proposed 4(d) regulations in the specific context of the Oregon Coast coho ESU. Critical Habitat We solicited public comment on the proposed critical habitat designation for Oregon Coast coho for a total of 105 days (69 FR 74578, December 14, 2004; 70 FR 6394; February 7, 2005). We also contacted the appropriate Federal, state, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule. To facilitate public participation, we made the proposed rule available via the Internet as soon as it was signed by the AA of NMFS (approximately 2 weeks prior to actual publication). In addition, we held four public hearings in the Pacific Northwest between January 11, 2005, and January 25, 2005. We received 5,230 written comments (5,111 of these were ``form e-mails'' with nearly identical verbiage) during the comment period on the proposed rule. Eight comments addressed specifically, or in part, the proposed critical habitat designation for the Oregon Coast coho ESU. In compliance with the Peer Review Bulletin, prior to publishing the proposed rule we submitted the initial biological assessments of our Critical Habitat Analytical Review Teams (CHARTs) to state and tribal comanagers and asked them to review those findings. These comanager reviews resulted in several changes to the CHARTs' preliminary assessments (for [[Page 7820]] example, revised fish distribution as well as conservation value ratings) and helped ensure that the CHARTs' revised findings incorporated the best available scientific data. Consistent with the 1994 Independent Review Policy, we later solicited technical review of the entire critical habitat proposal (including the underlying biological and economic reports) from 45 independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. We also solicited opinions from three individuals with economics expertise to review the draft economics analysis supporting the proposed rule. All three of the economics reviewers and three of the biological reviewers submitted written opinions on our proposal. We have determined that the independent expert review and comments received regarding the science involved in this rulemaking constitute adequate prior review under section II.2 of the OMB Peer Review Bulletin (NMFS, 2005c) and satisfy the 1994 Independent Review Policy. We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for all 13 ESUs addressed in the proposed rule. The reader is referred to the final critical habitat designations for 12 Pacific Northwest ESUs (70 FR 52685; September 2, 2005) for a summary and discussion of general issues, or issues specific to other ESUs. The comments addressing the proposed critical habitat designation for the Oregon Coast coho ESU are summarized below. Comments Specific to Oregon Coast Coho Below we address the comments received that directly pertain to: (1) The listing determination for the Oregon Coast coho ESU, and (2) the designation of critical habitat for the Oregon Coast coho ESU. (Copies of the full text of comments received are available upon request, see ADDRESSES and FOR FURTHER INFORMATION CONTACT, above.) Comments Regarding the Listing Determination Comment 1: The Oregon Department of Fish and Wildlife (ODFW) expressed concern regarding the proposed inclusion of the North Fork Nehalem River coho hatchery program in the Oregon Coast coho ESU. ODFW explained that the hatchery program propagates two different stocks: The North Fork Nehalem River hatchery coho stock (ODFW stock 32) and the Fishhawk Lake hatchery coho stock (ODFW stock 99). ODFW noted that both stocks, although founded using local natural-origin fish, are presently managed as isolated broodstocks. Although the level of divergence between these hatchery stocks and the local wild populations is not known, ODFW noted that our hatchery reviews (NMFS, 2003b, 2004a, 2004b) acknowledged that the level of divergence may be substantial. ODFW recommended that both the North Fork Nehalem River and Fishhawk Lake hatchery stocks be excluded from the ESU. ODFW also noted that the recently founded Calapooya Creek (Umpqua River basin, Oregon) hatchery coho stock was not included in our hatchery reviews. The Calapooya Creek program was a small, short-term (in operation from 2001-2003), research hatchery program conducted to evaluate the use of hatchery-reared fish in the supplementation of a wild coho population. The program is no longer releasing fish, and had adults returning through 2006. ODFW suggested that, had we included this stock in our initial evaluations, the progeny expected to return through 2006 would have been considered as part of the Oregon Coast coho ESU. Response: We agree with ODFW's comments that the North Fork Nehalem River and Fishhawk Lake stocks propagated by the Nehalem hatchery coho program are substantially reproductively isolated from the local natural populations, and diverged substantially from the evolutionary legacy of the ESU. Moreover, since our 2006 final determination these two programs have been discontinued, with the last adults returning in 2007 (NMFS, 2007a). We conclude that the North Fork Nehalem River and Fishhawk Lake hatchery coho stocks are not part of the Oregon Coast coho ESU. We did not include the Calapooya Creek coho hatchery stock in our hatchery reviews as the program is no longer collecting fish for broodstock or releasing smolts. We agree with ODFW that returns from Calapooya Creek hatchery stock, having been derived from local natural- origin fish, likely were no more than moderately diverged from the local natural populations. However, given that the program has been terminated, and 2006 was the last year of returns, the Calapooya Creek hatchery stock will not be considered part of the Oregon Coast coho ESU. At the time of the 2004 proposed rule and our January 2006 final determination not to list the ESU, Cow Creek (ODFW stock 37), the North Umpqua River (ODFW stock 18), the Coos Basin (ODFW stock 37), and the Coquille River (ODFW stock 44) hatchery coho programs were considered part of the Oregon Coast coho ESU. The latter three of these programs have been discontinued since our 2006 final determination (NMFS, 2007a). The last year of returns for these programs is 2007. Given that the North Umpqua River, Coos Basin, and Coquille River hatchery programs have been terminated, and this winter (2007) is the last year of returns, these stocks will not be considered part of the Oregon Coast coho ESU. Comment 2: A comment submitted by the Pacific Rivers Council (PRC) included a July 2003 report investigating the potential benefits of a modeled conservation hatchery program in supplementing Oregon Coast coho (Oosterhout and Huntington, 2003). PRC asserted that the report supports their position that hatchery fish should be considered as only a threat to wild salmonid populations, and that any potential short- term benefits of artificial propagation are outweighed by the long-term damaging genetic and ecological effects on wild populations. The Oosterhout and Huntington (2003) report modeled an ``idealized conservation hatchery'' program and evaluated the success of supplementation efforts under different scenarios of habitat quality and marine survival. The authors conclude from their modeling study that supplementation, even under optimized model assumptions, poses long-term ecological and genetic risks, and any short-term gains in salmon abundance are temporary. Response: The use of artificial propagation represents a broad spectrum of hatchery practices and facilities, as well as a variety of ecological settings into which hatchery-origin fish are released. For this reason it is essential to assess hatchery programs on a case-by- case basis. Our assessment of the benefits, risks, and uncertainties of artificial propagation concluded that the specific hatchery programs considered to be part of the Oregon Coast coho ESU collectively do not substantially reduce the extinction risk of the ESU in-total (NMFS, 2004b). We noted that these hatchery programs likely contribute to an increased abundance of total natural spawners in the short term, although their contribution to the productivity of the supplemented populations is unknown. Our assessment is consistent with the findings of Oosterhout and Huntington (2003). The findings of scientific studies, such as the subject study on simulated conservation hatchery [[Page 7821]] programs and their impacts on natural coho populations, inform our consideration of the benefits and risks to be expected from artificial propagation. However, it would be inappropriate to rely on theoretical conclusions about the effectiveness of hatchery programs while ignoring program-specific information regarding broodstock origin, hatchery practices, and performance of hatchery- and natural-origin fish. Comment 3: Douglas County Board of Commissioners (Oregon) submitted a report (Cramer et al., 2004) that concludes that NMFS' earlier viability analyses overstate the risks to Oregon Coast coho populations, and that the 2003 BRT's findings warrant reconsideration. The Cramer et al. (2004) report asserts that previous viability assessments failed to adequately consider connectivity among spawner aggregations, underestimated juvenile over-winter survival in smaller stream reaches, and underestimated coho population stability. The report asserts that sharp reductions in ocean harvest rates since 1994, declining influence of hatchery-origin fish, and improved monitoring and evaluation under the Oregon Plan confer a very low risk of extinction even if future marine survival rates are low and remain low. Response: The Cramer et al. (2004) report does not present any substantial new information, other than including an additional year of abundance data that was not available to the BRT. The report emphasizes selective aspects of the available data including: reduction of threats by changes in fishery and harvest management; and improved biological status evidenced by increasing spawning escapements and successful juvenile rearing throughout the ESU. These observations and analyses were fully considered in the BRT's review (Good et al., 2005; NMFS, 2003a). The Cramer et al. (2004) report does not, by itself, add to our consideration of the BRT's findings. Comment 4: Several commenters felt that effective regulatory controls and monitoring programs are in place to ensure that harvest and hatchery practices no longer threaten the ESU. Response: Many noteworthy and important regulatory changes have been made that adequately address historically harmful practices. Changes in ocean and freshwater fisheries management have resulted in sharp reductions in fishing mortality in Oregon Coast coho populations, and likely have contributed to recent population increases. It is unlikely that those harvest controls will weaken in the future, in light of Federal management of ocean fisheries. Reforms in hatchery management practices have limited the potential for adverse ecological interactions between hatchery-origin and natural fish, and have markedly reduced risks to the genetic diversity and reproductive fitness for the majority of naturally spawned populations in the ESU. It is also unlikely those reforms will be weakened in the future. Comment 5: One commenter was critical of the Oregon Forest Practices Act, and argued that it is inadequate to prevent the future degradation of riparian habitats, particularly on private non- industrial forestlands. The commenter noted that the Forest Practices Act applies only to the commercial harvest of trees, and that non- commercial land owners may cut riparian trees without restriction if they do not sell the wood. The commenter noted that this unregulated practice is particularly evident in areas with increased rural residential development along streambanks. Other commenters doubted whether regulations, restoration programs, and other protective efforts would improve habitat conditions in the foreseeable future. One commenter noted that there is an insufficient data record to evaluate the success of protective efforts aimed at restoring riparian habitats, particularly in increasing the recruitment of large woody debris. Several other commenters doubted whether forest management under the Oregon Plan has resulted, or will result, in an increased amount of large-diameter trees (important for the recruitment of large woody debris in coho rearing areas). The commenters argued that the shorter rotations being implemented on private industrial forest lands reduce the size of trees delivered to streams in landslides, and thus may result in diminished stream complexity in important coho rearing habitats. Response: Our review suggests that there are likely to be improvements in some aspects of habitat condition, declines in others, and a continuation of current conditions in still others (NMFS, 2005a). For example, the Northwest Forest Plan instituted riparian habitat buffers and other measures on Federal lands that improved many of the historical forestry practices that led to the loss and degradation of riparian habitats. Development and implementation of Total Maximum Daily Loads under the Federal Clean Water Act are likely to result in improved water quality. Restoration efforts have treated approximately seven percent of the stream miles within the range of the ESU over the last 7 years with the intent of restoring stream complexity and riparian habitats and improving water quality, though it is unclear how much restoration is likely to occur in the future, given funding uncertainties. Forest practices on state and private land include some improvements over historically harmful practices, such as the establishment of riparian management areas under revisions to Oregon forest practice rules in the 1990s. However, there are also offsetting practices that are expected to degrade habitat conditions and complexity, such as shorter harvest rotations, road construction, and logging on unstable slopes and along debris flow paths (NMFS, 2005a). For agricultural lands, riparian management is governed by agricultural water quality management plans under Oregon Senate Bill 1010, as well as by subsequently developed riparian rules which synthesize elements of individual Senate Bill 1010 plans for a given basin. These agricultural plans and rules do not specify the vegetation composition or size of the riparian areas to be established. The lack of specificity of these agricultural plans makes the enforcement and effectiveness of these plans uncertain (NMFS, 2005a). Any modest improvements in riparian vegetation on agricultural lands under current rules that might be expected may be offset by habitat declines resulting from urban and rural development (NMFS, 2005a). On balance, habitat conditions on agricultural lands are not likely to show significant improvement or decline. Future urbanization and development within the range of the ESU is projected at approximately 20 percent population growth, representing slightly more than 30,000 people over the next 40 years (NMFS, 2005a). Most of this development is expected to be concentrated in lowland areas with high intrinsic potential for rearing coho. Current urban or rural growth boundaries encompass approximately nine percent of high intrinsic potential riparian habitat areas, so future urbanization and development activities could have significant implications for some coho populations. The degree of potential impacts on coho habitat (both positive and negative) is highly uncertain and depends largely on the spatial distribution of future urbanization and development activities, their proximity to riparian areas, and the kinds of development activities undertaken and the land management practices used. Comment 6: Several commenters expressed concern that inadequate funding has limited the ability of many [[Page 7822]] Oregon agencies to monitor non-permitted habitat-affecting activities, effectively enforce regulations, and ensure proper reporting of permitted activities. The commenters felt that these inadequacies should be considered evidence of uncertainty that some as yet, unproven elements under the Oregon Plan will be implemented. Response: The commenters are correct that the availability of necessary funding and staffing resources is an important consideration in evaluating how likely it is that a given protective effort will be implemented. Our review has noted that funding declines have led to the loss of staff at the Oregon Department of Environmental Quality, Department of Forestry, and ODFW (NMFS, 2005a). The reduced funding has slowed the completion of Total Maximum Daily Load water quality standards, and reduced the ability to monitor water quality, habitat structure and complexity, and fish populations. Comments Regarding the Designation of Critical Habitat Comment 7: One Federal commenter provided information recommending changes to designated stream reaches in several watersheds due to errors in interpreting existing salmon distribution maps, recent field surveys, and the location of impassible barriers. This commenter also questioned the inclusion of Jackson and Josephine counties as within the range of areas designated as critical habitat for Oregon Coast coho salmon. Response: In light of the specific comments received, we have reviewed all the data regarding habitat areas occupied by coho salmon and the location of impassible barriers. This review included discussions with local ODFW biologists familiar with the areas in question. The majority of suggested revisions were found to be warranted, and, as a result, we have updated the endpoints delineating areas occupied by coho salmon, including those designated as critical habitat, in ten watersheds (see ``Summary of Changes from the Proposed Critical Habitat Designation''). We have also removed Josephine and Jackson counties from the relevant critical habitat table in our regulations. These counties overlap slightly with upland areas in watersheds occupied by Oregon Coast coho salmon, but they do not contain stream reaches designated as critical habitat for this ESU. Comment 8: Two commenters questioned the ``medium'' conservation- value rating assigned by the CHART to the habitat area for Devils Lake coho. These areas are within a larger Devils Lake/Moolack Frontal watershed. The commenters cited recent genetic data establishing that coho from Rock Creek/Devils Lake are genetically distinct from other populations in the ESU. The commenters believed that the coho in Devils Lake possess a unique and distinct genetic heritage warranting a ``high'' conservation value rating. Response: The CHART considered these comments along with recent population identification work (Lawson et al., 2007) and genetic analyses by Johnson and Banks (2007). The team maintained that the Devils Lake/Moolack Frontal watershed (which contains Devils Lake) was still of medium conservation value, noting that Devil's Lake coho are one of ten small and dependent populations in this watershed and appear to be most closely related to coho in the nearby Siletz River. The team acknowledged that Devils Lake was the most productive of these ten populations but that the overall watershed did not warrant a high conservation value relative to other adjacent watersheds with more extensive habitat areas and functionally independent populations (e.g., the Siletz River and Yaquina River watersheds). Regardless, Devils Lake and all other habitat areas in the Devils Lake/Moolack Frontal watershed are designated as critical habitat for Oregon Coast coho salmon. Comment 9: One tribal government expressed support of the proposed exclusion of Indian lands from the area eligible for critical habitat designation. The tribe agreed with our proposal that designating Indian lands as critical habitat would adversely impact tribal partnerships with us and limit the benefits that result from collaboration. Additionally, the tribe felt that the proposal to not designate Indian lands as critical habitat appropriately acknowledges tribal sovereignty and authority in managing natural resources on their lands. Response: This final rule maintains the exclusion of Indian lands for the reasons described in the Exclusions Based on Impacts to Tribes section below. Comment 10: Several commenters argued that the conservation benefits provided by certain conservation measures on non-Federal lands provide sufficient protections so that there would be minimal benefit of designating the affected areas as critical habitat. One commenter felt that existing forest protections under the Oregon Forest Protection Act and associated best management practices adequately protect the PCEs found on private and state forest lands in the State of Oregon. Another commenter felt that protections under the Oregon Plan have demonstrated conservation benefits that warrant the exclusion of affected areas from designation as critical habitat. Another commenter felt that existing regulatory and other mechanisms under these conservation measures are inadequate to protect the ESU and its habitats. The commenter argued that it is essential to designate critical habitat in these areas where existing regulatory mechanisms do not prevent or alter certain activities that would adversely modify habitat. Response: The comments imply that if an area is covered by a management plan, it either does not meet the ESA section 3(5)(a) definition of critical habitat or it must be excluded from critical habitat under ESA section 4(b)(2). Neither assertion is correct. Section 3(5)(a) of the ESA defines critical habitat as occupied areas containing physical or biological features that are (1) essential to the conservation of the species and (2) which may require special management considerations or protections. Consistent with the statute, in identifying areas meeting the definition of critical habitat for this ESU, we identified the physical or biological features essential to the conservation of the ESU, identified the occupied areas where these features are present, and then determined whether these features in each area may require special management considerations and protections. The bases for these conclusions are described further below and in a separate report (NMFS, 2007b). Section 4(b)(2) of the ESA gives the Secretary discretion to exclude areas from critical habitat if he determines that benefits of exclusion outweigh the benefits of designation. Exercising the discretion to exclude an area from critical habitat requires evidence of a benefit of exclusion. Section 4(b)(2) and the supporting legislative history make clear that the consideration and weight given to impacts are within the Secretary's (H.R. 95-1625) discretion and that exclusion is not required even when the benefits of exclusion outweigh the benefits of designation. In other critical habitat designations for Pacific salmon and steelhead, the Secretary excluded areas from critical habitat on private lands covered by habitat conservation plans because there was evidence in the record that exclusion would enhance the relationship between the landowner and the agency. That improved relationship was expected to result in improved implementation of the plan and incentives for the development of other [[Page 7823]] plans, increasing conservation benefits for fish (70 FR 52630; September 2, 2005). Regarding private and state lands subject to Oregon's forest practice laws, there is no conservation agreement in place between landowners and NMFS, nor any evidence in the record supporting a conclusion that conservation actions of landowners subject to these laws would improve as a result of exclusion. The same is true for lands generally covered by the Oregon Plan. Based on our review of available information, we found there were insufficient data and analysis to conclude that there is a benefit of exclusion. Absent evidence of a benefit of exclusion, we could not conclude that the benefits of exclusion outweigh the benefits of inclusion. Comment 11: Two Federal commenters felt that all Federal lands merited exclusion from designation as critical habitat. They contended that conservation benefits under PACFISH, the Northwest Forest Plan, and National Forest Land and Resource Management Plans (LRMPs) provide necessary protection and special management that eliminates the need to designate habitats on Federal lands as critical. These commenters contended that designating critical habitat on these Federal lands was unnecessarily duplicative of existing ESA section 7 consultation processes, inefficient (e.g., citing costs of re-initiating consultation), while offering no additional conservation benefit to the listed species. They believed that excluding Federal lands would be consistent with our exclusion of military lands that are subject to Integrated Natural Resource Management Plans, which they felt contain similar provisions for the protection and restoration of listed species. Response: ESA section 4(b)(2) provides the Secretary with discretion to exclude areas from the designation of critical habitat if the Secretary determines that the benefits of exclusion outweigh the benefits of designation, and the Secretary finds that exclusion of the area will not result in extinction of the species. In the proposed rule, and the reports supporting it, we explained the policies that guided us and provided supporting analysis for a number of proposed exclusions. We also noted a number of additional potential exclusions, including those associated with the Oregon Coast coho salmon due to conservation measures within the Northwest Forest Plan on Federal lands, explaining that we were considering them because the Secretary of the Interior had recently made similar exclusions in designating critical habitat for the bull trout. In the final rule designating critical habitat for 12 Pacific Northwest ESUs (70 FR 52630; September 2, 2005), we considered extensive comments supporting and opposing the exclusion of Federal lands, as well as comments concerning alternative approaches for assessing the benefits of exclusion versus inclusion of lands as critical habitat. That final rule also stated the following with regard to the potential exclusion of Federal lands and alternative approaches to designation: We will continue to study this issue and alternative approaches in future rulemakings designating critical habitat. In particular, we intend to analyze the planning and management framework for each of the ownership categories proposed for consideration for exclusion. In each case, we envision that the planning and management framework would be evaluated against a set of criteria, which could include at least some or all of the following: 1. Whether the land manager has specific written policies that create a commitment to protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead. 2. Whether the land manager has geographically specific goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA- listed salmon and steelhead. 3. Whether the land manager has guidance for land management activities designed to achieve goals for protection or appropriate management of the physical or biological features essential to long- term conservation of ESA-listed salmon and steelhead. 4. Whether the land manager has an effective monitoring system to evaluate progress toward goals for protection or appropriate management of the physical or biological features essential to long- term conservation of ESA-listed salmon and steelhead. 5. Whether the land manager has a management framework that will adjust ongoing management to respond to monitoring results and/or external review and validation of progress toward goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead. 6. Whether the land manager has effective arrangements in place for periodic and timely communications with NOAA on the effectiveness of the planning and management framework in reaching mutually agreed goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead. NMFS has continued dialogue with the Federal land management agencies since that time. Although we have not yet developed the type of information that would allow us to exclude Federal lands at this time, we will work with the land management agencies to develop the information and consider exclusion of Federal lands, as well as alternative approaches to designation, where the analysis provides appropriate support. We anticipate that further analyses using principles such as those above can result in additional data to inform the ESA Section 4(b)(2) analysis regarding possible exclusion of Federal lands from critical habitat designations. Comment 12: One commenter and a peer reviewer expressed concern that the economic analysis failed to consider the full range of economic benefits of salmon habitat conservation and, therefore, provided a distorted picture of the economic consequences of designating versus excluding eligible habitat areas. The commenter expressed concern that the economic impact of not designating particular areas would impede recovery efforts, and this cost should be considered in the economic analysis. The commenter cited the lack of consideration in the economic analysis of the potential benefits of critical habitat designation to: (1) Other aquatic and riparian species; (2) water quality; (3) recreation; and (4) increased recreational, commercial, and tribal harvest opportunities that would be available with recovery. Response: As described in the economic analysis (NMFS, 2007c) and ESA section 4(b)(2) report (NMFS, 2007d), we did not have information available at the scale of this designation that would allow us to quantify the benefits of designation in terms of increased fisheries. Such an estimate would have required us to estimate the additional number of fish likely to be produced as a result of the designation, and would have required us to determine how to allocate the economic benefit from those additional fish to a particular watershed. Instead, we considered the ``benefits of designation'' in terms of conservation value ratings for each particular area (see ``Methods and Criteria Used to Designate Critical Habitat'' section below). We also lacked information to quantify and include in the economic analysis the economic benefit that might result from such things as improved water quality or flood control, or improved condition of other species. Moreover, we did not have information at the scale of this designation that would allow us to consider the relative ranking of these types of benefits on the ``benefits of designation'' side of the ESA section 4(b)(2) balancing process. Our primary focus was to determine, consider, and balance the benefits of designating these [[Page 7824]] areas to the conservation of the listed species. Given the uncertainties involved in quantifying or even ranking these ancillary types of benefits, we did not include them in our analysis. Final Species Determination The Oregon Coast coho ESU includes all naturally spawned populations of coho salmon in Oregon coastal streams south of the Columbia River and north of Cape Blanco (63 FR 42587; August 10, 1998). One hatchery stock is considered part of the ESU: The Cow Creek (ODFW stock 37) hatchery coho stock. On June 14, 2004, we proposed that five artificial propagation programs should be considered part of the ESU (69 FR 33102), including the North Fork Nehalem River (ODFW stock 32), the North Umpqua River (ODFW stock 18), Coos Basin (ODFW stock 37), and the Coquille River (ODFW stock 44) coho hatchery programs. Informed by our analysis of the comments received from ODFW, and other recently available information (see Comment 1 and response, above), we conclude that these four hatchery programs are not part of the Oregon Coast coho ESU. Assessment of the Species' Status The steps we follow in making a listing determination are to: Review the status of the species, analyze the factors listed in section 4(a)(1) of the ESA to identify threats facing the species, assess whether certain protective efforts mitigate these threats, and predict the species' future persistence. Below we summarize the information we evaluated in reviewing the status of the Oregon Coast coho ESU. We considered the information included in the record for our January 2006 determination in a manner consistent with the Court's ruling in Trout Unlimited. We also considered additional status information that was readily available since our January 2006 decision, to determine if this new information is consistent with our conclusion based on the January 2006 (as the Court has ordered us to consider it). We begin a typical listing determination for a salmon ESU by gathering the most recent available and relevant biological information and appointing a panel of Federal scientists (the BRT) familiar with the biology and population dynamics of salmon. This panel reviews the status information, considers and discusses various possible interpretations of the information, and prepares a written report containing its recommendations as well as the basis for them. In addition, the documents underlying the BRT's conclusions are made available to the decision maker for consideration. Typically, the BRT's review takes about 3-6 months to complete. At the same time, regulatory staff gather updated information about the status and trends for other related factors, including the potential contributions (both positive and negative) from hatchery programs, the condition of the habitat, and the expected implementation and effectiveness of conservation efforts. This information is considered together with the BRT's recommendations in forming a final determination and preparing a written explanation of that determination. While the above steps were conducted for Oregon Coast coho prior to the issuance of the 2004 proposed rule, the court order in Trout Unlimited requiring a final determination and the time allowed for making that final determination do not permit us to follow our typical practice anew for Oregon Coast coho. The available record contains a BRT recommendation and report made in 2003, based on status information through 2002. The information in the record about the condition of the habitat and the effectiveness of conservation efforts is also mostly data collected prior to 2003. We have also considered draft reports of the Technical Recovery Team for the Oregon Coast. These draft reports are directed primarily at the population structure of and recovery criteria for the Oregon Coast coho ESU, rather than the determination required for a listing decision. Quantitative information available to us for this determination also includes numerical information on the abundance of Oregon Coast coho through 2006, preliminary spawner survey information for 2007, and estimates of the ocean survival for coho through 2006. Comparison of the abundance of the naturally-produced coho with the marine survival index suggests the possibility that much of the variability in coho numbers over the last decade or so may be due to fluctuations in the availability of food in the near-shore ocean (NMFS, 2007k). In addition, there is some indication that juvenile survival is limited by the supply of nutrients from the carcasses of spawning adult coho (Bilby et al., 2001). It is possible that existing freshwater habitat is adequate to support a viable ESU, and that the fluctuations observed in Oregon Coast coho populations are partially driven by the supply of carcasses. The 2003 BRT did not explicitly consider the relationship between coho abundance and marine food availability, or the relationship between juvenile survival and the supply of carcasses. Our current record lacks the information and analyses necessary to assess the present status of freshwater habitat conditions and functional processes in the ESU. Oregon has aggressively implemented habitat conservation efforts, yet we lack the data necessary to resolve the benefits realized from these efforts by coho populations given the considerable variability in other environmental processes. In short, the recently available abundance information is not necessarily indicative of degraded freshwater habitat conditions, nor is it convincingly suggestive of a declining long-term trend for the ESU. Given the opportunity for further scientific review, it is possible that an improved understanding of the roles marine conditions and stream-nutrient supply play in determining coho population dynamics, might require revision of this determination. In summary, if we had been permitted to consider all the scientific information in the record, and if we had been allowed more time to do a complete scientific review of new information in a manner consistent with our typically thorough and comprehensive analytical processes, there is a reasonable possibility that we would have reached a different final listing determination. Consideration of Information in the January 2006 Record Biological Review Team Findings--The 2003 BRT considered data available through 2002. The abundance and productivity of Oregon Coast coho since the previous status review (NMFS, 1997a) represented some of the best and worst years on record. Yearly adult returns for the Oregon Coast coho ESU were in excess of 160,000 natural spawners in 2001 and 2002, far exceeding the abundance observed for the past several decades. These encouraging increases in spawner abundance in 2000-2002 were preceded, however, by three consecutive brood years