Notice of Intent To Prepare an Environmental Impact Statement for Issuance of an Incidental Take Statement Under the Endangered Species Act for Salmon Fisheries in Southeast Alaska Subject to the Pacific Salmon Treaty, 68572-68575 [2023-21913]
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Notices
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Krisa M. Arzayus,
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Observing System Office, National Ocean
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[FR Doc. 2023–22090 Filed 10–3–23; 8:45 am]
BILLING CODE 3510–JE–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD392]
Notice of Intent To Prepare an
Environmental Impact Statement for
Issuance of an Incidental Take
Statement Under the Endangered
Species Act for Salmon Fisheries in
Southeast Alaska Subject to the
Pacific Salmon Treaty
National Marine Fisheries
Service (NMFS), Alaska Regional Office
(AKR), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; intent to prepare an
environmental impact statement;
request for written comments.
AGENCY:
NMFS announces its intent to
prepare an Environmental Impact
Statement (EIS), in accordance with the
National Environmental Policy Act
(NEPA), to analyze the impacts of
alternatives related to NMFS’s issuance
of an incidental take statement (ITS) for
species listed as threatened or
endangered under the Endangered
Species Act (ESA) affected by salmon
fisheries in Southeast Alaska (SEAK)
that are managed consistent with the
provisions of the 2019 Pacific Salmon
Treaty (PST) Agreement. Compliance
with the ITS would exempt participants
in these fisheries from the ESA’s
prohibition on take of threatened and
endangered species. This notice is
necessary to inform the public of
NMFS’s intent to prepare this EIS and
to provide the public with an
opportunity to provide input for
NMFS’s consideration.
DATES: NMFS requests comments
concerning the scope of the analysis and
identification of relevant information,
studies, and analyses. All comments
must be received by 11:59 p.m. Eastern
Time on November 20, 2023.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2023–0115, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
SUMMARY:
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Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–NMFS–2023–0115 in the Search
box. Click on the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Gretchen Harrington, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Susan Meyer. Mail comments to P.O.
Box 21668, Juneau, AK 99802–1668.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on https://www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
FOR FURTHER INFORMATION CONTACT:
Bridget Mansfield, (907) 586–7228,
Bridget.Mansfield@noaa.gov.
SUPPLEMENTARY INFORMATION:
Pacific Salmon Treaty and SEAK
Salmon Fishery Management
The PST provides a framework for the
management of salmon fisheries in the
U.S. and Canada and regulates the
salmon fisheries that occur in the ocean
and inland waters of Oregon,
Washington, British Columbia, the
Yukon, and southeast Alaska, and the
rivers that flow into these waters. The
PST established fishing regimes that set
upper limits on intercepting fisheries,
defined as fisheries in one country that
harvest salmon originating in another
country, and sometimes include
provisions that apply to the
management of the Parties’ nonintercepting fisheries as well. The
overall purpose of the regimes is to
accomplish the conservation,
production, and harvest allocation
objectives set forth in the PST. These
objectives are designed to prevent
overfishing, provide for each country to
benefit from production originating in
its water, avoid undue disruption of
existing fisheries, and reduce
interceptions to the extent practicable.
Each Party to the PST must
implement the fisheries management
framework domestically. Fisheries in
both Federal and state waters off of
SEAK are managed consistent with the
2019 PST Agreement. For Federal
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Notices
increase program for Southern Resident
Killer Whales (SRKW).
In 2019, NMFS completed the
consultation and issued the 2019
Biological Opinion (BiOp) and ITS. In
the BiOp, NMFS concluded that the
actions were not likely to jeopardize the
continued existence of any of the ESAlisted species and that the actions were
not likely to destroy or adversely modify
designated critical habitat for any of the
listed species. NMFS also issued an ITS
that exempted take of ESA-listed species
incidental to the prosecution of the
SEAK fisheries.
In 2020, the Wild Fish Conservancy
(WFC), a 501(c)3 nonprofit organization,
filed a lawsuit in the U.S. District Court
for the Western District of Washington
challenging the 2019 BiOp (Wild Fish
Conservancy v. Quan, No. 2:20–CV–
417–RAJ–MLP (W.D. Wash.)). WFC
alleged NMFS violated the ESA and
NEPA. On August 8, 2022, the district
court found that NMFS violated both
the ESA and NEPA (Wild Fish
Conservancy v. Quan, No. 2:20–CV–
417–RAJ–MLP, 2021 WL 8445587 (W.D.
Wash. Sept. 27, 2021), report and
recommendation adopted, No. 2:20–CV–
417–RAJ, 2022 WL 3155784 (W.D.
Wash. Aug. 8, 2022)). With respect to
the ESA, the court determined the prey
increase program lacked specificity and
deadlines or otherwise enforceable
obligations and was not subject to
agency control or reasonably certain to
occur. The court also concluded that
NMFS failed to evaluate the effects of
the prey increase program on ESA-listed
Chinook salmon.
With respect to NEPA, the court
concluded NMFS failed to conduct
NEPA analyses for the issuance of the
ITS exempting take of ESA-listed
ESA Consultation and Litigation
species associated with the SEAK
History
salmon fisheries considered in the 2019
BiOp. The court also concluded that
In response to the 2019 PST
NMFS failed to conduct adequate NEPA
Agreement, NMFS consulted under
analysis for the adoption of the prey
section 7 of the ESA on three actions—
• Delegation of management authority increase program. The court remanded
to the agency to address its conclusions
over salmon fisheries in the SEAK EEZ
regarding the ESA and NEPA
to the State of Alaska on the basis of
new information regarding the effects of deficiencies.
As part of its effort to address the
the action and the contemporary status
court’s orders on remand, NMFS
of impacted ESA-listed species,
intends to conduct an ESA Section 7
• Federal funding through grants to
consultation and prepare two EISs. The
the State of Alaska for the State’s
EIS described in this Notice of Intent
management of commercial and sport
would respond specifically to the court
salmon fisheries and transboundary
order with respect to the stated failure
river enhancement necessary to
to prepare an analysis pursuant to NEPA
implement the 2019 PST Agreement,
for the issuance of the ITS for the SEAK
and
salmon fisheries. This EIS will analyze
• Federal funding of a conservation
program to support critical Puget Sound the effects of a reasonable range of
alternatives for the issuance of an ITS to
Chinook stocks and Southern Resident
exempt otherwise prohibited take of
Killer Whales (SRKW) related to the
2019 PST Agreement, one component of ESA-listed species in the SEAK salmon
fisheries under the 2019 PST
which included funding of a prey
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fisheries occurring in the Exclusive
Economic Zone (EEZ) off the coast of
SEAK, the U.S. does this through
implementation of provisions of the
Magnuson-Stevens Fishery
Conservation and Management Act and
the Fishery Management Plan for the
Salmon Fisheries in the EEZ off Alaska
(FMP). The FMP, approved in 1979 (last
amended in 2021), conserves and
manages the Pacific salmon commercial
and sport fisheries that occur in the U.S.
EEZ off Alaska. The FMP establishes
two management areas, the East Area
and the West Area, with a border at
Cape Suckling, and addresses
commercial salmon fisheries in each
area. In the East Area, the FMP delegates
management of the commercial troll and
sport salmon fisheries that occur in the
EEZ to the State of Alaska and prohibits
commercial salmon fishing with net
gear in the EEZ.
NMFS does not manage the salmon
fisheries that occur in state waters. The
State of Alaska Department of Fish and
Game (ADF&G) manages salmon troll,
net, and sport fisheries subject to the
PST’s conservation, production, and
harvest allocation objectives in state
waters (internal waters and marine
waters from shore to 3 nautical miles
(approximately 6 kilometers) offshore)
of SEAK. The SEAK commercial salmon
fisheries occurring in state waters
include troll, purse seine, drift gillnet,
and set gillnet fisheries. The State’s
management of commercial and sport
salmon fisheries, including harvest
monitoring, stock assessment, and
transboundary river enhancement
necessary to implement the 2019 PST
Agreement, is partially funded through
Federal grants dispersed by NOAA.
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Agreement. NMFS is also preparing a
separate EIS for the expenditure of
Federal funding to provide additional
prey for SRKW (88 FR 54301, August
10, 2023).
Preliminary Purpose and Need
Statement
The proposed action is the issuance of
the ITS under the ESA, per the court
orders in Wild Fish Conservancy v.
Quan directing the agency to conduct
NEPA analysis for the issuance of the
ITS. The purpose of issuing the ITS in
a BiOp is to exempt incidental take of
ESA-listed species associated with the
SEAK salmon fisheries subject to
provisions of the 2019 PST Agreement
to the level or amount as specified in
the ITS, provided the take occurs in
compliance with the ITS. NMFS issues
an ITS when NMFS concludes that an
action and associated incidental take of
ESA-listed species would not violate
ESA Section 7.
Under Section 7 of the ESA, NMFS as
the action agency must consult to
ensure that any action it authorizes,
funds, or carries out is not likely to
jeopardize the continued existence of
listed species or result in the
destruction or adverse modification of
designated critical habitat (16 U.S.C.
1536(a)(2)). As a result of that
consultation, NMFS as the consulting
agency must prepare a BiOp detailing
how the agency action affects ESA-listed
species and designated critical habitat
under its jurisdiction (16 U.S.C.
1536(b)(3)). If NMFS as the consulting
agency concludes, among other things,
that the agency action and any
associated incidental take is not likely
to jeopardize the continued existence of
any ESA-listed species, NMFS must
issue an ITS. Compliance with the ITS
exempts the incidental take that is
reasonably certain to occur (16 U.S.C.
1536(b)(4); 50 CFR 402.14) from
prohibitions under Section 9 of the ESA.
The ITS specifies, among other
requirements: the impact of such
incidental taking on the listed species
and limits on that incidental take;
measures considered necessary or
appropriate to minimize the impact of
such take; terms and conditions
(including reporting requirements) that
implement the specified measures; and
measures needed to comply with the
Marine Mammal Protection Act, if
applicable.
When NMFS issues a BiOp and ITS in
its role as the consulting agency, the ITS
is not a permit or authorization or
otherwise a major Federal action that
triggers the requirement to comply with
NEPA. As set forth in section 7(o) of the
ESA, compliance with an ITS provides
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Notices
an exemption from the ESA’s take
prohibition (16 U.S.C. 1536(o)). There
are instances, such as this one, when
NMFS is both the consulting agency and
the action agency (prior decision to
delegate management of fisheries in the
EEZ and disbursement of Federal
funding). In those instances, NMFS as
the action agency must comply with
NEPA for the underlying Federal
actions, but NMFS does not separately
have to comply with NEPA for the
issuance of the BiOp and the ITS since
the issuance of a BiOp and ITS does not
constitute a ‘‘major Federal action.’’ San
Luis & Delta-Mendota Water Auth. v.
Jewell, 747 F.3d 581, 644–45 (9th Cir.
2014). However, because the district
court concluded that NMFS must
comply with NEPA in issuing this ITS,
we intend to prepare this EIS to respond
to the court’s orders.
Preliminary Alternatives
NMFS will evaluate a reasonable
range of alternatives regarding the
proposed issuance of the ITS for ESAlisted species associated with the SEAK
salmon fisheries subject to provisions of
the 2019 PST Agreement. Possible
alternatives could be constructed from
one or more of the following draft
alternatives in addition to those
developed through the public scoping:
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Alternative 1: Status Quo, No Action
Alternative 1 is the status quo ITS
from the 2019 BiOp. With this ITS, the
EIS would assume that the SEAK
salmon fisheries subject to the 2019 PST
Agreement would continue to be
prosecuted under the 2019 PST
Agreement and existing fishery
management measures. This alternative
would not comply with the court’s
orders, because the court identified
flaws with the 2019 BiOp.
Alternative 2: Issuance of a New ITS
With a New BiOp
Under Alternative 2, NMFS would
develop a new BiOp to respond to the
court’s finding that the 2019 BiOp did
not comply with the ESA; the new BiOp
would contain an ITS, consistent with
the requirements of 16 U.S.C. 1536, that
includes the level of take that NMFS
determines is reasonably certain to
occur for each ESA-listed species
considered in the BiOp.
With this ITS, the EIS would assume
that the SEAK salmon fisheries subject
to the 2019 PST Agreement would
continue to be prosecuted under the
2019 PST Agreement and fishery
management measures consistent with
any reasonable and prudent measures
and terms and conditions included in
the new ITS.
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Alternative 3: NMFS Would Not Issue
an ITS
Under Alternative 3, NMFS would not
develop a new BiOp and any incidental
taking of listed species by the SEAK
salmon fisheries would not be exempt
from the ESA’s prohibition of such take.
The EIS would therefore assume that the
SEAK salmon fisheries under the 2019
PST Agreement would not be
prosecuted.
This Alternative is presented
exclusively for analytical purposes
consistent with the requirements of
NEPA and implementing regulations
that NMFS analyze a range of
alternatives. It is not consistent with the
purpose and need of the action. Under
the ESA, NMFS as the consulting
agency is obligated at the conclusion of
any consultation to (1) prepare a BiOp
detailing how the agency action affects
listed species and their designated
critical habitat (16 U.S.C. 1536(b)(3));
and (2) issue an ITS for take that is
reasonably certain to occur incidental to
the action (16 U.S.C. 1536(b)(4)) if
NMFS concludes, among other things,
that the agency action and any
incidental take is not likely to
jeopardize the continued existence of
any listed species (16 U.S.C. 1536(b)(4);
50 CFR 402.14(g)(7)). Therefore, NMFS
fully intends to comply with the ESA
and the court’s orders by conducting a
new consultation and issuing a BiOp
and ITS for the Federal actions
associated with the SEAK salmon
fisheries.
Issues and Expected Impacts to be
Analyzed
The EIS will analyze a reasonable
range of alternatives developed through
the scoping process and their likely
impacts on ESA-listed species, marine
resources, and participants in the SEAK
salmon fisheries subject to the 2019 PST
Agreement. Those fisheries include the
sport salmon fisheries and the
commercial salmon troll, purse seine,
drift gillnet, and set gillnet fisheries.
Marine resources, in addition to ESAlisted species, that may be impacted by
the alternatives include non ESA-listed
salmon, other finfish, marine mammals,
seabirds, and habitat. The EIS will
consider any socio-economic impacts of
the alternatives.
The ESA-listed species designated in
an ITS, on which the impacts of the
proposed action would be analyzed in
the EIS, could include ESA-listed
Chinook salmon: Puget Sound, Lower
Columbia River, Upper Willamette
River, and Snake River fall-run
Evolutionary Significant Units (ESUs,
all threatened); Steller sea lions, western
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Distinct Population Segment (DPS)
(endangered); humpback whale, Mexico
DPS (threatened); killer whale, southern
resident DPS (SRKW) (endangered); and
their designated critical habitats.
Salmon fisheries in SEAK may have
effects on non-listed salmon. Some of
these salmon may be prey resources for
SRKW, thus the fisheries may affect
SRKW through the catch of non-ESAlisted salmon. Fishing gear interactions
occur in the SEAK salmon fisheries that
may affect the Mexico DPS of humpback
whales and the western DPS of Steller
sea lions.
Schedule for the Decision-Making
Process
NMFS intends to prepare the EIS
concurrently with the new BiOP. NMFS
anticipates issuing a Record of Decision
before November 2024.
Public Involvement
Scoping is an early and open process
for determining the scope of issues to be
addressed in an EIS and for identifying
the significant issues related to the
proposed action (40 CFR 1501.9). An
EIS is a detailed statement on a
proposed agency action, but it does not
mandate particular results or
substantive outcomes, as the purpose
and function of NEPA is satisfied if the
agency considered relevant
environmental information and the
public has been informed regarding the
decision-making process (40 CFR
1500.1(a)).
A principal objective of the scoping
and public involvement process is to
identify a range of reasonable
management alternatives that, with
adequate analysis in an EIS, will
delineate critical issues and provide a
clear basis for distinguishing among
those alternatives and informing the
selection of a preferred alternative.
Through this notice, NMFS is notifying
the public that an EIS and a decisionmaking process for this proposed action
have been initiated, so that interested or
affected people may participate and
contribute to the final decision.
NMFS is seeking written public
comments on the scope of issues,
including potential impacts,
information, analyses, and alternatives
that should be considered. Written
comments should be as specific as
possible to be the most helpful. Written
comments received during the scoping
process, including the names and
addresses of those submitting them, will
be considered part of the public record
of this proposal and will be available for
public inspection. Written comments
will be accepted at the address above
(see ADDRESSES).
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Authority: 16 U.S.C. 1801 et seq.
Dated: September 28, 2023.
Jennifer M. Wallace,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2023–21913 Filed 9–29–23; 4:15 pm]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD398]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to U.S. Navy Mole
Pier South Berth Floating Dry Dock
Project
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an incidental
harassment authorization.
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that NMFS has issued an incidental
harassment authorization (IHA) to the
U.S. Navy to incidentally harass marine
mammals during construction
associated with Mole Pier Floating Dry
Dock project at Naval Base San Diego.
DATES: This Authorization is effective
from March 1, 2024 through February
28, 2025.
ADDRESSES: Electronic copies of the
application and supporting documents,
as well as a list of the references cited
in this document, may be obtained
online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing
these documents, please call the contact
listed below.
FOR FURTHER INFORMATION CONTACT:
Steven Tucker, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
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commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
proposed or, if the taking is limited to
harassment, a notice of a proposed IHA
is provided to the public for review.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other ‘‘means of effecting the least
practicable adverse impact’’ on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of the species or stocks for
taking for certain subsistence uses
(referred to in shorthand as
‘‘mitigation’’); and requirements
pertaining to the mitigation, monitoring
and reporting of the takings are set forth.
The definitions of all applicable MMPA
statutory terms cited above are included
in the relevant sections below.
Summary of Request
On February 16, 2022, NMFS received
a request from the U.S. Navy, Navy Base
San Diego (or, the Navy) for an IHA to
take marine mammals incidental to
Mole Pier Floating Dry Dock project in
south-central San Diego Bay. The
application was deemed adequate and
complete on May 1, 2023. The Navy’s
request is for authorization to
incidentally take California sea lions,
harbor seals, and bottlenose dolphins,
by Level B harassment only. Neither the
U.S. Navy nor NMFS expect serious
injury or mortality to result from this
activity and, therefore, an IHA is
appropriate.
NMFS previously issued an IHA to
the U.S. Navy for similar work (87 FR
65578, October 31, 2022). The U.S. Navy
has complied with all the requirements
(e.g., mitigation, monitoring, and
reporting) of the previous IHA, and
information regarding their monitoring
results is publicly available at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-constructionactivities.
Description of Activity
Overview
The U.S. Navy request is associated
with demolition and construction
activities related to partial demolition
and construction of a floating dry dock
and related facilities at Mole Pier, Navy
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68575
Base San Diego. The purpose of the
Mole Pier South Berth Floating Dry
Dock (FDD) Project is to overcome
current shortfall in dry dock availability
for repair and maintenance of vessels at
Navy Base San Diego. The planned
activity remedies some of the
constraints resulting from aging or
obsolete facilities.
Activities that may result in Level B
harassment include removal of existing
piles and installation of new piles to
support facilities that are necessary for
repair and maintenance of vessels in
furtherance of the U.S. Navy’s
Congressionally mandated
responsibilities under 10 U.S.C. 5062.
The specified activity also includes
dredging and demolition of the existing
deck at the mooring wharf, installation
of mooring attachments, installation of a
steel floating dry dock and construction
of a ramp and pier. Demolition activities
include vibratory removal or clipping of
up to fifty-four 24 x 24-inch square
concrete piles and seven 24-inch
octagonal concrete piles. Pile driving
and extraction activities will take place
during 33 days of in-water work at the
Mole Pier mooring wharf and the ramp.
The Test Pile Program (TPP) described
in the notice of proposed authorization
(88 FR 47111, July 21, 2023) will not be
undertaken. Permanent pile
installations, expected to occur via
impact hammer and/or jetting, consist of
eighty 24-inch octagonal concrete piles
at the mooring wharf and twenty-one
24-inch octagonal piles for the Ramp
Pier and access to the FDD.
Dates and Duration
The U.S. Navy requested that the IHA
be effective for a period of 1 year, from
March 1, 2024 through February 28,
2025. During this period, the Navy
expects to complete the pile driving and
removal portions of the project during
59 workdays that may be nonconsecutive, with all in-water activities
conducted during daylight hours. Pile
driving and removal activities may
occur at any time during the proposed
1-year period of effectiveness.
Specific Geographic Region
The activities would occur in the
south-central portion of San Diego Bay.
San Diego Bay (the Bay) is a narrow,
crescent-shaped natural embayment
oriented northwest-southeast with an
approximate length of 24 kilometers
(km) and a total area of roughly 4 km2
(11,000 acres; Port of San Diego, 2007).
The width of the Bay ranges from 300
meters to 5.800 meters and depths range
from 23 meters Mean Lower Low Water
(MLLW) near the tip of Ballast Point to
less than 1.2 meters at the southern end
E:\FR\FM\04OCN1.SGM
04OCN1
]]>Agencies
[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Notices]
[Pages 68572-68575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21913]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD392]
Notice of Intent To Prepare an Environmental Impact Statement for
Issuance of an Incidental Take Statement Under the Endangered Species
Act for Salmon Fisheries in Southeast Alaska Subject to the Pacific
Salmon Treaty
AGENCY: National Marine Fisheries Service (NMFS), Alaska Regional
Office (AKR), National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; intent to prepare an environmental impact statement;
request for written comments.
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SUMMARY: NMFS announces its intent to prepare an Environmental Impact
Statement (EIS), in accordance with the National Environmental Policy
Act (NEPA), to analyze the impacts of alternatives related to NMFS's
issuance of an incidental take statement (ITS) for species listed as
threatened or endangered under the Endangered Species Act (ESA)
affected by salmon fisheries in Southeast Alaska (SEAK) that are
managed consistent with the provisions of the 2019 Pacific Salmon
Treaty (PST) Agreement. Compliance with the ITS would exempt
participants in these fisheries from the ESA's prohibition on take of
threatened and endangered species. This notice is necessary to inform
the public of NMFS's intent to prepare this EIS and to provide the
public with an opportunity to provide input for NMFS's consideration.
DATES: NMFS requests comments concerning the scope of the analysis and
identification of relevant information, studies, and analyses. All
comments must be received by 11:59 p.m. Eastern Time on November 20,
2023.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2023-0115, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2023-0115 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
Mail: Submit written comments to Gretchen Harrington,
Assistant Regional Administrator, Sustainable Fisheries Division,
Alaska Region NMFS, Attn: Susan Meyer. Mail comments to P.O. Box 21668,
Juneau, AK 99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, (907) 586-7228,
[email protected].
SUPPLEMENTARY INFORMATION:
Pacific Salmon Treaty and SEAK Salmon Fishery Management
The PST provides a framework for the management of salmon fisheries
in the U.S. and Canada and regulates the salmon fisheries that occur in
the ocean and inland waters of Oregon, Washington, British Columbia,
the Yukon, and southeast Alaska, and the rivers that flow into these
waters. The PST established fishing regimes that set upper limits on
intercepting fisheries, defined as fisheries in one country that
harvest salmon originating in another country, and sometimes include
provisions that apply to the management of the Parties' non-
intercepting fisheries as well. The overall purpose of the regimes is
to accomplish the conservation, production, and harvest allocation
objectives set forth in the PST. These objectives are designed to
prevent overfishing, provide for each country to benefit from
production originating in its water, avoid undue disruption of existing
fisheries, and reduce interceptions to the extent practicable.
Each Party to the PST must implement the fisheries management
framework domestically. Fisheries in both Federal and state waters off
of SEAK are managed consistent with the 2019 PST Agreement. For Federal
[[Page 68573]]
fisheries occurring in the Exclusive Economic Zone (EEZ) off the coast
of SEAK, the U.S. does this through implementation of provisions of the
Magnuson-Stevens Fishery Conservation and Management Act and the
Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska
(FMP). The FMP, approved in 1979 (last amended in 2021), conserves and
manages the Pacific salmon commercial and sport fisheries that occur in
the U.S. EEZ off Alaska. The FMP establishes two management areas, the
East Area and the West Area, with a border at Cape Suckling, and
addresses commercial salmon fisheries in each area. In the East Area,
the FMP delegates management of the commercial troll and sport salmon
fisheries that occur in the EEZ to the State of Alaska and prohibits
commercial salmon fishing with net gear in the EEZ.
NMFS does not manage the salmon fisheries that occur in state
waters. The State of Alaska Department of Fish and Game (ADF&G) manages
salmon troll, net, and sport fisheries subject to the PST's
conservation, production, and harvest allocation objectives in state
waters (internal waters and marine waters from shore to 3 nautical
miles (approximately 6 kilometers) offshore) of SEAK. The SEAK
commercial salmon fisheries occurring in state waters include troll,
purse seine, drift gillnet, and set gillnet fisheries. The State's
management of commercial and sport salmon fisheries, including harvest
monitoring, stock assessment, and transboundary river enhancement
necessary to implement the 2019 PST Agreement, is partially funded
through Federal grants dispersed by NOAA.
ESA Consultation and Litigation History
In response to the 2019 PST Agreement, NMFS consulted under section
7 of the ESA on three actions--
Delegation of management authority over salmon fisheries
in the SEAK EEZ to the State of Alaska on the basis of new information
regarding the effects of the action and the contemporary status of
impacted ESA-listed species,
Federal funding through grants to the State of Alaska for
the State's management of commercial and sport salmon fisheries and
transboundary river enhancement necessary to implement the 2019 PST
Agreement, and
Federal funding of a conservation program to support
critical Puget Sound Chinook stocks and Southern Resident Killer Whales
(SRKW) related to the 2019 PST Agreement, one component of which
included funding of a prey increase program for Southern Resident
Killer Whales (SRKW).
In 2019, NMFS completed the consultation and issued the 2019
Biological Opinion (BiOp) and ITS. In the BiOp, NMFS concluded that the
actions were not likely to jeopardize the continued existence of any of
the ESA-listed species and that the actions were not likely to destroy
or adversely modify designated critical habitat for any of the listed
species. NMFS also issued an ITS that exempted take of ESA-listed
species incidental to the prosecution of the SEAK fisheries.
In 2020, the Wild Fish Conservancy (WFC), a 501(c)3 nonprofit
organization, filed a lawsuit in the U.S. District Court for the
Western District of Washington challenging the 2019 BiOp (Wild Fish
Conservancy v. Quan, No. 2:20-CV-417-RAJ-MLP (W.D. Wash.)). WFC alleged
NMFS violated the ESA and NEPA. On August 8, 2022, the district court
found that NMFS violated both the ESA and NEPA (Wild Fish Conservancy
v. Quan, No. 2:20-CV-417-RAJ-MLP, 2021 WL 8445587 (W.D. Wash. Sept. 27,
2021), report and recommendation adopted, No. 2:20-CV-417-RAJ, 2022 WL
3155784 (W.D. Wash. Aug. 8, 2022)). With respect to the ESA, the court
determined the prey increase program lacked specificity and deadlines
or otherwise enforceable obligations and was not subject to agency
control or reasonably certain to occur. The court also concluded that
NMFS failed to evaluate the effects of the prey increase program on
ESA-listed Chinook salmon.
With respect to NEPA, the court concluded NMFS failed to conduct
NEPA analyses for the issuance of the ITS exempting take of ESA-listed
species associated with the SEAK salmon fisheries considered in the
2019 BiOp. The court also concluded that NMFS failed to conduct
adequate NEPA analysis for the adoption of the prey increase program.
The court remanded to the agency to address its conclusions regarding
the ESA and NEPA deficiencies.
As part of its effort to address the court's orders on remand, NMFS
intends to conduct an ESA Section 7 consultation and prepare two EISs.
The EIS described in this Notice of Intent would respond specifically
to the court order with respect to the stated failure to prepare an
analysis pursuant to NEPA for the issuance of the ITS for the SEAK
salmon fisheries. This EIS will analyze the effects of a reasonable
range of alternatives for the issuance of an ITS to exempt otherwise
prohibited take of ESA-listed species in the SEAK salmon fisheries
under the 2019 PST Agreement. NMFS is also preparing a separate EIS for
the expenditure of Federal funding to provide additional prey for SRKW
(88 FR 54301, August 10, 2023).
Preliminary Purpose and Need Statement
The proposed action is the issuance of the ITS under the ESA, per
the court orders in Wild Fish Conservancy v. Quan directing the agency
to conduct NEPA analysis for the issuance of the ITS. The purpose of
issuing the ITS in a BiOp is to exempt incidental take of ESA-listed
species associated with the SEAK salmon fisheries subject to provisions
of the 2019 PST Agreement to the level or amount as specified in the
ITS, provided the take occurs in compliance with the ITS. NMFS issues
an ITS when NMFS concludes that an action and associated incidental
take of ESA-listed species would not violate ESA Section 7.
Under Section 7 of the ESA, NMFS as the action agency must consult
to ensure that any action it authorizes, funds, or carries out is not
likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of designated
critical habitat (16 U.S.C. 1536(a)(2)). As a result of that
consultation, NMFS as the consulting agency must prepare a BiOp
detailing how the agency action affects ESA-listed species and
designated critical habitat under its jurisdiction (16 U.S.C.
1536(b)(3)). If NMFS as the consulting agency concludes, among other
things, that the agency action and any associated incidental take is
not likely to jeopardize the continued existence of any ESA-listed
species, NMFS must issue an ITS. Compliance with the ITS exempts the
incidental take that is reasonably certain to occur (16 U.S.C.
1536(b)(4); 50 CFR 402.14) from prohibitions under Section 9 of the
ESA. The ITS specifies, among other requirements: the impact of such
incidental taking on the listed species and limits on that incidental
take; measures considered necessary or appropriate to minimize the
impact of such take; terms and conditions (including reporting
requirements) that implement the specified measures; and measures
needed to comply with the Marine Mammal Protection Act, if applicable.
When NMFS issues a BiOp and ITS in its role as the consulting
agency, the ITS is not a permit or authorization or otherwise a major
Federal action that triggers the requirement to comply with NEPA. As
set forth in section 7(o) of the ESA, compliance with an ITS provides
[[Page 68574]]
an exemption from the ESA's take prohibition (16 U.S.C. 1536(o)). There
are instances, such as this one, when NMFS is both the consulting
agency and the action agency (prior decision to delegate management of
fisheries in the EEZ and disbursement of Federal funding). In those
instances, NMFS as the action agency must comply with NEPA for the
underlying Federal actions, but NMFS does not separately have to comply
with NEPA for the issuance of the BiOp and the ITS since the issuance
of a BiOp and ITS does not constitute a ``major Federal action.'' San
Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 644-45 (9th
Cir. 2014). However, because the district court concluded that NMFS
must comply with NEPA in issuing this ITS, we intend to prepare this
EIS to respond to the court's orders.
Preliminary Alternatives
NMFS will evaluate a reasonable range of alternatives regarding the
proposed issuance of the ITS for ESA-listed species associated with the
SEAK salmon fisheries subject to provisions of the 2019 PST Agreement.
Possible alternatives could be constructed from one or more of the
following draft alternatives in addition to those developed through the
public scoping:
Alternative 1: Status Quo, No Action
Alternative 1 is the status quo ITS from the 2019 BiOp. With this
ITS, the EIS would assume that the SEAK salmon fisheries subject to the
2019 PST Agreement would continue to be prosecuted under the 2019 PST
Agreement and existing fishery management measures. This alternative
would not comply with the court's orders, because the court identified
flaws with the 2019 BiOp.
Alternative 2: Issuance of a New ITS With a New BiOp
Under Alternative 2, NMFS would develop a new BiOp to respond to
the court's finding that the 2019 BiOp did not comply with the ESA; the
new BiOp would contain an ITS, consistent with the requirements of 16
U.S.C. 1536, that includes the level of take that NMFS determines is
reasonably certain to occur for each ESA-listed species considered in
the BiOp.
With this ITS, the EIS would assume that the SEAK salmon fisheries
subject to the 2019 PST Agreement would continue to be prosecuted under
the 2019 PST Agreement and fishery management measures consistent with
any reasonable and prudent measures and terms and conditions included
in the new ITS.
Alternative 3: NMFS Would Not Issue an ITS
Under Alternative 3, NMFS would not develop a new BiOp and any
incidental taking of listed species by the SEAK salmon fisheries would
not be exempt from the ESA's prohibition of such take. The EIS would
therefore assume that the SEAK salmon fisheries under the 2019 PST
Agreement would not be prosecuted.
This Alternative is presented exclusively for analytical purposes
consistent with the requirements of NEPA and implementing regulations
that NMFS analyze a range of alternatives. It is not consistent with
the purpose and need of the action. Under the ESA, NMFS as the
consulting agency is obligated at the conclusion of any consultation to
(1) prepare a BiOp detailing how the agency action affects listed
species and their designated critical habitat (16 U.S.C. 1536(b)(3));
and (2) issue an ITS for take that is reasonably certain to occur
incidental to the action (16 U.S.C. 1536(b)(4)) if NMFS concludes,
among other things, that the agency action and any incidental take is
not likely to jeopardize the continued existence of any listed species
(16 U.S.C. 1536(b)(4); 50 CFR 402.14(g)(7)). Therefore, NMFS fully
intends to comply with the ESA and the court's orders by conducting a
new consultation and issuing a BiOp and ITS for the Federal actions
associated with the SEAK salmon fisheries.
Issues and Expected Impacts to be Analyzed
The EIS will analyze a reasonable range of alternatives developed
through the scoping process and their likely impacts on ESA-listed
species, marine resources, and participants in the SEAK salmon
fisheries subject to the 2019 PST Agreement. Those fisheries include
the sport salmon fisheries and the commercial salmon troll, purse
seine, drift gillnet, and set gillnet fisheries. Marine resources, in
addition to ESA-listed species, that may be impacted by the
alternatives include non ESA-listed salmon, other finfish, marine
mammals, seabirds, and habitat. The EIS will consider any socio-
economic impacts of the alternatives.
The ESA-listed species designated in an ITS, on which the impacts
of the proposed action would be analyzed in the EIS, could include ESA-
listed Chinook salmon: Puget Sound, Lower Columbia River, Upper
Willamette River, and Snake River fall-run Evolutionary Significant
Units (ESUs, all threatened); Steller sea lions, western Distinct
Population Segment (DPS) (endangered); humpback whale, Mexico DPS
(threatened); killer whale, southern resident DPS (SRKW) (endangered);
and their designated critical habitats.
Salmon fisheries in SEAK may have effects on non-listed salmon.
Some of these salmon may be prey resources for SRKW, thus the fisheries
may affect SRKW through the catch of non-ESA-listed salmon. Fishing
gear interactions occur in the SEAK salmon fisheries that may affect
the Mexico DPS of humpback whales and the western DPS of Steller sea
lions.
Schedule for the Decision-Making Process
NMFS intends to prepare the EIS concurrently with the new BiOP.
NMFS anticipates issuing a Record of Decision before November 2024.
Public Involvement
Scoping is an early and open process for determining the scope of
issues to be addressed in an EIS and for identifying the significant
issues related to the proposed action (40 CFR 1501.9). An EIS is a
detailed statement on a proposed agency action, but it does not mandate
particular results or substantive outcomes, as the purpose and function
of NEPA is satisfied if the agency considered relevant environmental
information and the public has been informed regarding the decision-
making process (40 CFR 1500.1(a)).
A principal objective of the scoping and public involvement process
is to identify a range of reasonable management alternatives that, with
adequate analysis in an EIS, will delineate critical issues and provide
a clear basis for distinguishing among those alternatives and informing
the selection of a preferred alternative. Through this notice, NMFS is
notifying the public that an EIS and a decision-making process for this
proposed action have been initiated, so that interested or affected
people may participate and contribute to the final decision.
NMFS is seeking written public comments on the scope of issues,
including potential impacts, information, analyses, and alternatives
that should be considered. Written comments should be as specific as
possible to be the most helpful. Written comments received during the
scoping process, including the names and addresses of those submitting
them, will be considered part of the public record of this proposal and
will be available for public inspection. Written comments will be
accepted at the address above (see ADDRESSES).
[[Page 68575]]
Authority: 16 U.S.C. 1801 et seq.
Dated: September 28, 2023.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 2023-21913 Filed 9-29-23; 4:15 pm]
BILLING CODE 3510-22-P
