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, 7816-7873 [08-552]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 28 (Monday, February 11, 2008)]
[Rules and Regulations]
[Pages 7816-7873]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-552]




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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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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

Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / 
Rules and Regulations

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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.

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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 https://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.

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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

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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