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Endangered and Threatened Species; Take of Anadromous Fish

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Information about this document as published in the Federal Register.

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AGENCY:

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

ACTION:

Notice of final determination and discussion of underlying biological analysis.

SUMMARY:

NMFS has evaluated the joint resource management plan (RMP) for harvest of Puget Sound Chinook salmon provided by the Puget Sound Treaty Tribes and the Washington Department of Fish and Wildlife (WDFW) pursuant to the protective regulations promulgated for Puget Sound Chinook salmon under Limit 6 of the Endangered Species Act (ESA) for salmon and steelhead. The RMP specifies the future management of commercial, recreational, subsistence and Tribal salmon fisheries potentially affecting listed Puget Sound Chinook salmon from May 1, 2011, through April 30, 2014. This document serves to notify the public that NMFS, by delegated authority from the Secretary of Commerce, has determined pursuant to the Tribal rule and the government-to-Start Printed Page 35843government processes therein that implementing and enforcing the RMP from May 1, 2011, through April 30, 2014, will not appreciably reduce the likelihood of survival and recovery of the Puget Sound Chinook salmon Evolutionarily Significant Unit (ESU).

DATES:

The final determination on the RMP was made on May 27, 2011.

ADDRESSES:

Requests for copies of the final determination and underlying biological analysis should be addressed to Susan Bishop, Salmon Management Division, National Marine Fisheries Service, 7600 Sand Point Way, NE., Seattle, Washington 98115-0070, or faxed to (206) 526-6736. The document is also available on the Internet at http://www.nwr.noaa.gov/​Salmon-Harvest-Hatcheries/​-State-Tribal-Management/​PS-Chinook-RMPs.cfm.

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FOR FURTHER INFORMATION CONTACT:

Susan Bishop at phone number: 206-526-4587, Puget Sound Harvest Team Leader or e-mail: susan.bishop@noaa.gov regarding the RMP.

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SUPPLEMENTARY INFORMATION:

This notice is relevant to the Puget Sound Chinook salmon (Oncorhynchus tshawytscha) Evolutionarily Significant Unit (ESU).

Electronic Access

The full texts of NMFS' determination and the final Evaluation are available on the Internet at the NMFS, Northwest Regional Office Web site at: http://www.nwr.noaa.gov/​Salmon-Harvest-Hatcheries/​State-Tribal-Management/​PS-Chinook-RMPs.cfm.

Background

In April, 2010, the Puget Sound Treaty Tribes and the WDFW (co-managers) provided a jointly developed RMP that encompasses Strait of Juan de Fuca and Puget Sound salmon fisheries affecting the Puget Sound Chinook salmon ESU. The RMP encompasses salmon and steelhead fisheries within the area defined by the Puget Sound Chinook salmon ESU, as well as the western Strait of Juan de Fuca, which is not within the ESU. The RMP is effective from May 1, 2011, through April 30, 2014. Harvest objectives specified in the RMP account for fisheries-related mortality of Puget Sound Chinook throughout its migratory range, from Oregon and Washington to southeast Alaska. The RMP also includes implementation, monitoring and evaluation procedures designed to ensure fisheries are consistent with these objectives.

As required by § 223.203(b)(6) of the ESA 4(d) Rule, NMFS must determine pursuant to 50 CFR 223.209 (redesignated as 50 CFR 223.204) and pursuant to the government-to-government processes therein whether the RMP for Puget Sound Chinook would appreciably reduce the likelihood of survival and recovery of the Puget Sound Chinook ESU. NMFS must take comments on how the RMP addresses the criteria in § 223.203(b)(4) in making that determination.

Discussion of the Biological Analysis Underlying the Determination

The RMP provides a framework for fisheries management measures affecting 23 Chinook salmon populations. Twenty-two populations are within the Puget Sound Chinook Salmon ESU, and one population (the Hoko River) is located in the western portion of Strait of Juan de Fuca. The populations within the ESU and on which the RMP bases its management objectives are consistent with those defined by the Puget Sound Technical Recovery Team (TRT). For harvest management purposes, the RMP distributes the 23 populations among the 15 management units. These management units represent the entire range of life history types and geographic distribution that comprise the Puget Sound Chinook salmon ESU.

The RMP proposes the implementation of limits to the cumulative directed and incidental fishery-related mortality to each Puget Sound Chinook salmon population or management unit. The RMP's limits to the cumulative fishery-related mortality are expressed as: (1) An exploitation rate ceiling; (2) an upper management threshold; (3) a low abundance threshold; and (4) a critical exploitation rate ceiling. The RMP also contains a comprehensive monitoring and evaluation plan, which will maintain and improve population assessment methodologies and allow for the assessment of: Fishing-related impacts on hatchery and naturally spawning Chinook salmon populations; the abundance of hatchery and naturally spawning fish for each of the identified management units; the effectiveness of the fishing regimes and general approach; and the regulatory compliance. This information will be used to assess whether impacts on listed fish are as predicted pre-season and as anticipated in our evaluation. In addition, information from the monitoring programs will eventually be used to develop exploitation rate objectives for those management units where data are currently limited. The RMP also includes provisions for an annual report. This report will assess compliance with the RMP objectives and help validate parameters used in development of the RMP and the effectiveness of the RMP.

A more detailed discussion of NMFS' evaluation is on the NMFS Northwest Regional Office Web site (see Electronic Access, under the heading, SUPPLEMENTARY INFORMATION).

Summary of Comments Received in Response to the Proposed Evaluation and Pending Determination

NMFS published a notice in the Federal Register announcing the availability of its Proposed Evaluation and Pending Determination (PEPD) on the RMP for public review and comment on December 29, 2011 (75 FR 82213) for 30 days. NMFS reopened the comment period on February 4, 2011, to provide additional opportunity for public comment (76 FR 6401). Public comment closed February 22, 2011. Eleven commenters provided comments to NMFS on the PEPD during this public comment period. NMFS has reviewed the comments received and discussed the substantive issues with the co-managers. Several of the comments were addressed and reflected in NMFS' final Evaluation and Recommended Determination (ERD). The co-managers made no modifications to the RMP based on public comments received on NMFS' PEPD. NMFS appreciates the time and effort of the persons and organizations who submitted comments on our PEPD and seeks to respond with clarity to those comments. We have grouped comments that are similar and responded to the reviewer's comments through our responses below. Comments received in response to the NMFS announcement of the PEPD for review are summarized as follows:

Comment 1—Several commenters expressed diverging opinions on the use of the Population Recovery Approach (PRA) in NMFS' evaluation of the Puget Sound Chinook RMP. Two commenters recommended that NMFS not use the PRA in its evaluation of the RMP pending further review of its technical basis and discussion with the broader community involved with recovery planning. One of these comments noted that the PRA appears to be inconsistent with the terms of the NMFS recovery plan for Puget Sound Chinook. Two other commenters expressed support for its use as a framework to provide common guidance for NMFS in its regulatory assessment of proposed habitat, harvest and hatchery actions under the ESA across the Puget Sound Chinook Evolutionarily Significant Unit (ESU); to clarify priorities for recovery actions; and, because they view it as Start Printed Page 35844consistent with a holistic “All-H” approach to recovery.

Response: First, NMFS emphasizes the fundamental scientific and technical function served by articulating the structure of a healthy Puget Sound Chinook “family tree” for rebuilding its long-term resiliency and achieving the delisting objectives of the ESA. Puget Sound Chinook consists of a large number of independent populations distributed across Puget Sound. The NMFS Puget Sound Technical Recovery Team described 22 populations within the Puget Sound Chinook Salmon ESU (Ruckelshaus et al., 2006). In evaluating proposed actions such as those under the RMP, NMFS considers the impacts on each affected population, how those impacts affect the overall viability of each population and ultimately how the distribution of risks across populations affect the survival and recovery of the entire ESU. This is because the ESU, not the individual populations within the ESU, is listed under the ESA. As a scientific matter, not all of the 22 Puget Sound Chinook salmon populations or their watersheds will serve the same role in recovery of the ESU under the ESA (NMFS 2006a). Different populations will be able to tolerate different levels of risk while still contributing to the overall healthy “family tree” that comprises the ESU. This assessment of different risks to individual populations within their context to the ESU is explicit in several of the ESA 4(d) criteria used to evaluate the RMP under the ESA and envisions the use of a PRA-like structure. In fact, in its Supplement to the Puget Sound Salmon Recovery Plan, NMFS called for a systematic approach to identify those Chinook salmon populations that should receive the highest priority for recovery activities, with the overarching goal of meeting ESU delisting criteria. Key considerations identified in the Supplement were the uniqueness, status, and physical location of the population, the present condition of the population's freshwater, estuarine and adjacent nearshore habitats, and the likelihood for preserving and restoring those habitats given present and likely future condition.

NMFS did not suggest that any populations or watersheds should be neglected. Although a “preserve and restore the best” strategy is sensible, all populations and watersheds will still need to be sufficiently protected to enable the production of sustainable anadromous salmon populations. NMFS has followed through on this commitment by developing the PRA, basing the framework on the key considerations identified in the Supplement.

In characterizing the numerous populations which currently comprise the Puget Sound Chinook ESU, the Puget Sound Technical Recovery Team also noted the loss of a significant number of populations in the Sound—sixteen in fact—and stressed the importance of preserving all of the remaining populations in order to retain the resiliency of the ESU as a whole in the face of changing and highly variable conditions. The PRA does not detract from this objective for any populations, as suggested by some commenters, even for Tier 3 populations.

In light of the twin objectives of meeting the ESA 4(d) criteria and maintaining all existing populations, NMFS responds to related comments by emphasizing the function of the PRA: It is to use the best available information on the relative structure, condition and distribution of individual populations “to develop a biologically sound process for identifying which populations, watersheds and associated nearshore areas most need immediate protection and restoration investments” (NMFS, 2006a), while at the same time emphasizing the need to preserve all of the historical legacy of the wild Chinook possible.

In a closely related matter, NMFS acknowledges that the recovery plan for Puget Sound Chinook that was developed by the Shared Strategy in Puget Sound and ultimately was adopted by NMFS did not distinguish among the roles of various Chinook populations. This approach, which essentially assumes all populations would be recovered to equal and low risk of extinction, certainly meets ESA recovery criteria—in fact, it exceeds it in the sense that more risk to certain populations within the ESU is acceptable for ESA recovery than the recovery plan envisions. NMFS has deferred to Puget Sound recovery planners in taking this approach because it also encompasses other public policies beyond those articulated in the ESA, not the least of which supports treaty Indian fishing rights, the rebuilding of the ecological productivity of the individual watersheds across Puget Sound, and the broader water quality and ecological goals of Puget Sound recovery.

NMFS is currently reviewing public comments received on the PRA and will continue to refine and update the PRA as new information becomes available. However, the PRA currently represents the best available information against which to assess the distribution of identified risks across populations to the survival and recovery of the ESU for the purposes of evaluating the RMP under the ESA 4(d) criteria. If subsequent revision to the PRA substantially changes NMFS' conclusions regarding the risk to the ESU, NMFS can ask the co-managers to make the necessary adjustments to the RMP or invoke the process leading to the withdrawal the ESA 4(d) Rule determination.

We emphasize that the concepts underlying the PRA apply most directly when we exercise certain specific authorities under the ESA as a general matter, and in particular as relating to those ESU population-specific activities such as managing the near-term effects of harvests and hatchery production. In other contexts, including the long-term rebuilding of productive riverine and estuarine habitats, we will continue to emphasize the importance of achieving broad sense recovery of all populations in Puget Sound and Washington's coast, to support Tribal treaty rights and recreational and commercial fishing goals, and to contribute to the broader habitat-related goals for rebuilding the health and productivity of Puget Sound. NMFS acknowledges that consultations among Tribal, state and local governments and others interested in the PRA will be ongoing.

Comment 2—Four commenters stated that NMFS did not adequately follow, apply, and is inconsistent with the recommendations and goals of the Hatchery Scientific Review Group (HSRG) in its consideration of hatchery-origin Chinook salmon effects and protective management actions needed in the PEPD document. The HSRG itself commented that the NMFS proposed analysis failed to adequately address the negative impacts of hatchery-origin spawners on these spawning grounds.

Response: The proposed action triggering the PEPD is the harvest management plan proposed by the co-managers that is designed to meet the criteria in the ESA 4(d) Rule. The RMP is being evaluated under Limit 6 of the 4(d) Rule that applies to jointly-developed state and Tribal harvest management plans. In addressing the requirements of Limit 6, the RMP must adequately address 11 criteria under section (b)(4)(i) in Limit 4 of the Endangered Species Act of 1973 (ESA) section 4(d) Rule for listed Puget Sound Chinook salmon (Table 1 in PEPD). Although these criteria are specific to harvest management plans rather than hatchery production programs, they require NMFS to assess the effects of the RMP on VSP criteria of natural populations within the Puget Sound Chinook salmon ESU including Start Printed Page 35845diversity. Therefore, NMFS evaluated the effects on genetic diversity of hatchery fish that might escape fisheries implemented under the RMP and interbreed with fish from natural populations.

That harvest plan does not include specific harvest measures—such as fisheries that selectively harvest hatchery fish and release natural-origin fish—to address directly the effects of hatchery origin fish on natural origin spawners. Salmon abundance is highly variable from year to year, both among Chinook populations and other salmon species, requiring managers to formulate fisheries (i.e., location, duration, timing, gear type) to respond to the population abundance conditions particular to that year. Rather, the RMP provides the framework and objectives against which the co-managers must develop annual action-specific fishing regimes to protect Puget Sound Chinook salmon and meet other management objectives. It should be noted, however, that the plan does not preclude such measures either. The prior harvest management plan also did not include such measures, yet mark-selective recreational Chinook fisheries are implemented extensively throughout Puget Sound.

If the effects of hatchery production on wild stocks are not addressed in the RMP, then where are they addressed? The structure of the entire ESA 4(d) Rule is key to understanding the answer to this question. Limit 5 speaks to the effects of hatchery programs on listed salmon, including the effects of hatchery-origin fish on natural spawning grounds, in the development and approval of Hatchery Genetic Management Plans (HGMPs). Among other things, Limit 5 states that:

“(E) The HGMP * * * account for the * * * program's genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by the straying of hatchery fish.”

“(F) The HGMP describes interrelationships and interdependencies with fisheries management” (Emphasis added).

NMFS's expectation, which it believes is shared by the co-managers, is that the suite of issues associated with the (direct and indirect) effects of hatchery stocks on the productivity of natural origin spawners will be addressed in the HGMPs now under development for all Chinook hatchery programs in Puget Sound. NMFS furthermore fully encourages the integration of those hatchery strategies with the other relevant “Hs”, undertaken on a watershed-by-watershed basis, and thereby allowing for a tight integration of hatchery strategies, harvest strategies, including local strategies for managing stray rates, and habitat protection and restoration strategies on a place-based basis.

The Hatchery Scientific Review Group (HSRG) was originally formed to provide recommendations for consideration and potential application by the Puget Sound Treaty Tribes and WDFW (the co-managers) in their implementation, as the U.S. v. Washington fish resource management agencies, of salmon and steelhead hatchery programs within the Puget Sound and Washington Coastal regions. In fulfilling that role, the HSRG provided recommendations to the co-managers regarding potential hatchery management and operational methods that could reduce the risk of adverse effects on natural-origin salmonid populations, while meeting the co-managers' specific hatchery production objectives for the programs. These recommendations were to be applied at the discretion of the co-managers, with the acknowledgement that there may be other measures, beyond those developed by the HSRG, which also could be implemented to meet the objectives of the hatchery programs. The Puget Sound co-managers have implemented the HSRG's recommendations in many of their hatchery programs (Washington Recreation and Conservation Office 2011), and are in the process of implementing more as funding allows, and as agreed by WDFW and Tribal managers for each watershed.

NMFS strongly supports the work of the HSRG that focuses on adverse effects of interbreeding hatchery-origin and natural-origin fish. We anticipate that its work will figure prominently in HGMPs that are being developed under Limit 5 of the ESA 4(d) Rule. Even though most HGMPs in Puget Sound are in development, hatcheries producing most of the Chinook subject to harvest under the RMP already have been adjusted and are continuing to be adjusted, following HSRG and other best-science-related findings and recommendations.

NMFS considers the HSRG's findings and recommendations important to the advancement and implementation of measures needed to reduce the risk of adverse hatchery-related risks to natural-origin salmon populations. These recommendations are not formal ESA standards nor will they constitute the sole source of information considered by NMFS to render ESA determinations regarding harvest and hatchery actions. However, NMFS considers the HSRG's contributions to hatchery-risk related science regarding hatchery-origin fish spawning proportions to be valuable to our review work. As such, the HSRG's recommendations will be fully considered with other best-science-directed information in NMFS' ESA 4(d) Rule evaluation and determination documents addressing Puget Sound hatchery programs operated by the co-managers that affect listed Puget Sound Chinook salmon, Puget Sound steelhead, and Hood Canal summer-run chum salmon. As mentioned, because of the way Limit 5 of the 4(d) Rule has been structured, the ESA hatchery effects review process is the appropriate venue for addressing the hatchery effects-related issues under the ESA.

The HSRG stated the group's belief that Puget Sound Chinook salmon populations will continue to exhibit low productivity unless “the proportion of hatchery-origin fish is taken into account, regardless of the rate of recovery of habitat” and that failing to control hatchery-origin fish spawning will “retard productivity improvement and progress toward rebuilding natural Chinook populations no matter what the current or future condition of habitat”. Two other commenters reiterated an assertion attributed to the HSRG that “by reforming hatchery broodstock practices and limiting the proportion of hatchery fish reaching the spawning grounds, the science indicates that wild salmon production in many river and streams could actually double”.

The weight of available scientific information suggests that any artificial breeding and rearing is likely to result in genetic change and fitness reduction in hatchery fish and in the progeny of naturally spawning hatchery fish relative to desired levels of diversity and productivity for natural populations. There remain uncertainties associated with the degree or extent of that change. Nevertheless, those risks should be reduced where possible. Although NMFS believes further research is necessary to quantify the effects of interbreeding, circumstances may exist where the commenters' assertion of a “doubling” of productivity could result.

However, NMFS cautions against the utility of broad generalizations at this time and believes, at a minimum, that the effects must be analyzed on a watershed-specific basis. The extent and duration of genetic change and fitness loss and the short and long-term implications and consequences differ among species, life-history types, and for species subjected to different hatchery practices and protocols. NMFS believes that actions taken to address the risks of interbreeding must be Start Printed Page 35846considered within the context of these and other factors affecting survival and recovery of a population. Extensive habitat loss and degradation, and the on-going deterioration of natural habitat supporting the survival and productivity of salmon and steelhead in the Puget Sound region has deeply degraded the productivity of most watersheds. Too often, this habitat degradation presents its own, substantial risk that likely dominates in specific basins the factors affecting productivity. Productivity may be so low that even “doubling,” while certainly positive, would not substantially improve productivity in absolute terms, nor improve the population's viability as much as one might assume from the generalized notion of “doubling.” Often the problems with the population are compounded by demographic risk (i.e., the sheer fact that there are too few fish) which may lead to the conclusion that artificial production in the near-term is appropriate as a near-term method to “recolonize” available habitat. Therefore, relative improvements in productivity resulting from changes in the proportion of hatchery fish spawning naturally will depend on site specific circumstances and must include consideration of the existing demographic risk to the population.

NMFS believes its position has been clear throughout its listing determinations, adopted recovery plans and status reviews. Improvement in both habitat condition and hatchery practices is important to rebuilding all VSP parameters for wild Chinook populations, including productivity. We cannot recover Puget Sound Chinook by only reducing the adverse effects of hatchery production, or conversely by ignoring these adverse effects and arguing it is just about habitat. For many populations where habitat is severely degraded, circumstances are such that hatchery reforms will do little to improve overall productivity until other critically limiting factors are addressed. However, debating the relative magnitude of improvements in productivity that might occur from a given set of hatchery reforms is a distraction that can impede progress when it is already agreed that such reforms should be implemented where possible. Better science will provide better information on key questions in the future. In the mean time, recovery efforts should focus on site-specific considerations of both habitat conditions and hatchery practices and a deliberate strategy to improve the overall productivity of the population and the habitats upon which it depends.

Comment 3—Several commenters stated that the “Genetic Effects” section of the harvest PEPD document (Section 6.4.2), and the document in general, do not reflect the best available science regarding the effects of hatchery-origin Chinook salmon on the viability (in particular, the productivity) of listed natural-origin Chinook salmon populations in Puget Sound. They also indicate that the section does not effectively reflect NMFS's position regarding the issue of fitness and genetic diversity loss effects associated with natural spawning by hatchery-origin fish. Suggestions for revising the text in the section were provided.

Response: NMFS has responded to these comments by revising and clarifying the description of its understanding of the genetic effects associated with hatchery-origin spawners on the natural origin stocks. One major facet of rebuilding the long-term productivity and resiliency of listed salmon stocks under the ESA is addressing effectively adverse effects of hatchery production on naturally spawning populations. Studies are showing that interbreeding between hatchery-origin and natural-origin fish of various species and hatchery production types pass fitness reductions to naturally produced fish, thereby decreasing the overall productivity and rate of local adaptation of the naturally spawning population over time.

NMFS assembled the PEPD Section 6.4.2 to address genetic diversity and fitness loss issues to the extent that they pertain to harvest management actions evaluated in the PEPD. Our intent is to summarize the state of the science regarding hatchery fish-related fitness loss risks to natural-origin salmonids, with a focus on Chinook salmon produced in the Puget Sound region. We believe that inclusion of this section is appropriate, as the discussion is relevant to our assessment of the 2010 Puget Sound Chinook RMP to address concerns regarding hatchery fish that are not caught in the proposed co-manager fisheries designed to capture the fish, and that then bypass hatchery release sites and escape into natural spawning areas. The initial version of section 6.4.2 was modified shortly after it was released for public review. NMFS made available the modified, expanded version of the section in response to concern expressed by certain reviewers that the original section was not adequately detailed regarding the state of the science, or reflective of NMFS's position regarding fitness loss risks. Comments directed at both versions of section 6.4.2 were subsequently received through the public review process.

As indicated in the modified (second version) genetic diversity section of the PEPD, NMFS is addressing hatchery-related fitness loss concerns by seeking, in broad terms, to reduce adverse impacts associated with the interbreeding of hatchery-origin and natural-origin fish. NMFS's mechanism for evaluating and seeking measures to reduce identified effects of hatchery programs in the Puget Sound region on the viability of natural Chinook salmon populations, including fitness effects resulting from hatchery fish spawning, is a separate ESA evaluation and determination process specific for Puget Sound region hatcheries under Limit 5 of the 4(d) Rule (See response to Comment 2). Through that process, responses to fitness loss, reduced rates of local adaptation, and other genetic and environmental effects of hatchery stocks will be considered on a watershed-specific basis, taking into account the demographic strength and genetic diversity of the affected natural-origin population, the existing and projected productivity of habitat in the watershed, the effect of adjustments in hatchery production on the implementation of treaty Indian fishing rights, and other issues relevant to the viability of the natural-origin populations.

In response to public comments received about this issue, NMFS has further modified PEPD section 6.4.2. The new, revised genetic diversity section is included in the final Evaluation and Recommended Determination (ERD) document for the 2010 Puget Sound Chinook RMP. Our objectives for modifying the section were to: (1) Provide an improved explanation regarding why inclusion of a discussion about hatchery fish genetic diversity effects in the harvest evaluation document is appropriate and describe the issues of concern; (2) provide updated, expanded information regarding our view of the state of the science pertaining to hatchery fish fitness effects in general, and specific to Puget Sound Chinook salmon, relying on more detailed coverage of report findings cited in our original version of the section (e.g., RIST 2009) and data gleaned from newly available and additional studies; and, (3) more clearly state NMFS NWR's general position regarding hatchery Chinook salmon management and research actions required to appropriately address fitness loss risks over the near term, consistent with ESA and other mandates. The discussion in the revised section is Start Printed Page 35847broader than necessary to evaluate the proposed RMP under the Limit 6 criteria, but NMFS feels the additional information is important given the broader questions raised in the public comments and to put in better context the varied sources of hatchery effects compared to those related to implementation of the RMP.

Comment 4—Two commenters stated that the section addressing genetic diversity effects of hatchery-origin Chinook salmon in the Puget Sound action area (Section 6.4.2 of the PEPD) is not relevant to the NMFS evaluation of harvest plan effects and should be deleted. They indicated that there is no information presented in the co-managers' RMP regarding hatchery production levels, fisheries targeting hatchery fish, and other hatchery management issues that could be used by NMFS to allow for the review presented in Section 6.4.2. Risks to the genetic diversity should instead be addressed within the NMFS ESA consultation process specifically directed at Puget Sound region salmon and steelhead hatchery actions, and considering hatchery-specific information presented in the co-manager Puget Sound hatchery RMPs and HGMPs proposed for authorization.

Response: As stated above (See Response to Comment 3), NMFS believes that the subject genetic diversity section in the harvest plan evaluation document is appropriate because the discussion was relevant to our assessment of the 2010 Puget Sound Chinook RMP. The discussion addresses general concerns about the effects of hatchery fish that are not caught in the co-manager fisheries under review. These hatchery-origin fish will escape at varying levels and with varying effects into natural spawning areas where genetic diversity and fitness effects will be important to assess. We have included a modified version of the section 6.4.2 in the PEPD document with an improved explanation regarding the need for the discussion in the harvest plan effect evaluation document and to provide additional context for the varied sources of hatchery effects compared to those related to implementation of the RMP.

We agree with the commenters that the appropriate venue for addressing the full range of genetic diversity effects, including productivity and fitness loss risks, and other effects that may be associated with Chinook salmon hatchery programs, is the NMFS ESA consultation process under Limit 5 of the 4(d) Rule where co-manager Puget Sound hatchery RMPs and HGMPs will be reviewed (See Response to Comment 2). Included in the evaluation will be consideration of the effects of regional hatchery programs on natural-origin Puget Sound Chinook salmon population abundance, genetic diversity, fitness, and productivity.

Comment 5—Several commenters indicated that there is uncertainty regarding the degree of hatchery-related genetic diversity and fitness reduction risks, in general agreement with conclusions presented in the versions of PEPD Section 6.4.2 provided. Other commenters strongly believe that NMFS over-stated the uncertainty of current scientific findings regarding fitness loss effects associated with hatchery-origin fish straying in both versions of the section.

Response: NMFS has modified section 6.4.2 included in the final PEPD document for the co-manager harvest plan to more clearly articulate our perspective regarding the state of the science and the level of certainty pertaining to hatchery fish productivity and fitness loss effects and risks to Pacific Northwest anadromous salmonid populations in general, and Puget Sound Chinook salmon populations in particular.

Comment 6—Two commenters stated that NMFS should emphasize the essential function of hatchery production to enable the exercise of treaty-reserved fishing rights.

Response: Treaty fishing rights stewardship is an important mandate for NMFS. The importance of meeting U.S. Federal obligations in this regard is highlighted in NMFS's ESA effects evaluation documents for Puget Sound harvest and hatchery actions. Extensive loss and degradation, and the on-going deterioration of natural habitat supporting the survival and productivity of salmon and steelhead in the Puget Sound region has deeply degraded the productivity of the system and been a major factor in the listing of Puget Sound Chinook populations under the ESA (Good et al., 2005, Myers et al., 1998, NMFS, 2005a; 2006b; 2007; Shared Strategy, 2007). NMFS acknowledges that with the existing state of salmon habitat in Puget Sound, hatchery production is essential for providing surplus fish for harvest within treaty-reserved fisheries in many watersheds. Hatchery production will continue to be needed until productivity of the natural populations increase sufficiently to support salmon and steelhead abundances necessary for sustainable fisheries. Habitat improvements and decreases in genetic, ecological, and physical effects from hatchery facility operations are important requirements to increase productivity. While hatchery production will be required for the foreseeable future, we must simultaneously take appropriate steps to reduce its adverse effects on natural-origin fish. The tension between the implementation of treaty Indian fishing rights and ESA-required conservation measures for listed ESUs of salmon was recognized in 1997 with the issuance of an order by the secretaries of the U.S. departments of Commerce and Interior (Secretarial Order 3206). Generally in this context, the Secretarial Order directs NMFS to “harmonize” the requirements of the ESA with those of treaty reserved fishing rights and outlines procedures to do so.

Comment 7—One commenter stated that certain data regarding hatchery-origin Chinook salmon mark rates and stray rates presented in the document are inaccurate (re “pages 175-176, Table 1”).

Response: The commenter appears to be addressing a table and statements included in the RMP and not the NMFS PEPD provided for public review and comment. From pages 161 and 162 of the co-manager harvest RMP (PSIT and WDFW 2010).

“Estimates of hatchery and natural contribution for Issaquah Creek are derived from sampling at the hatchery rack. An assumption that the hatchery contribution at the rack is the same as the contribution in Issaquah Creek was confirmed in 2007 by extensive carcass sampling in the creek. These estimates are conservative since juvenile hatchery Chinook mark rates are less than 100%. The estimates for mark rate in Bear Creek assume that the natural production from Issaquah Creek contributes unmarked spawners to Bear Creek in the same proportion as that in Issaquah Creek.”

We have notified the co-managers regarding these potential discrepancies in the RMP. These estimates were not integral to the evaluation in the PEPD.

Comment 8—One commenter emphasized the need for NMFS' consideration of critical habitat loss and degradation effects on natural-origin Chinook salmon ESU productivity in its evaluation, holding that those effects are much greater than possible negative genetic interactions with hatchery fish. The commenter stated that NMFS needs to consider all “H” integration in its ESA consultation processes to appropriately address all factors affecting recovery, and not just hatchery and harvest actions.

Response: NMFS concurs that habitat loss and degradation are limiting factors for the survival and productivity of Puget Sound Chinook salmon Start Printed Page 35848populations. We have acknowledged the important role of these factors in depressing salmon population viability in our species status review (e.g., Myers et al., 1998) and annual PCSRF Report to Congress documents (NMFS, 2005a; 2006b; 2007), and within the baseline environmental condition sections of our biological opinions addressing regional habitat, harvest, and hatchery actions (e.g., NMFS's recent FEMA floodplain effect biological opinion (NMFS 2008)). “State of Salmon Watersheds” documents produced by the Washington Governor's Salmon Recovery Office (e.g., Washington Recreation and Conservation Office 2011) are among the resources used by NMFS and available to the public indicating the poor condition of regional habitat for salmon, and habitat protection and restoration measures needed to benefit natural-origin salmon population recovery. We consider this information about baseline habitat conditions in forming our determinations in the Puget Sound region. In reviewing the effects of hatchery-origin Chinook salmon on natural-origin populations and determining appropriate protective measures under Limit 5 of the ESA 4(d) Rule, our intention is to take into account the existing and projected productivity of habitat in the watersheds where the hatchery-origin fish return. Appropriate integration of hatchery management with the present condition of habitat, and plans for its restoration, will be a key objective of the ESA consultation process for Puget Sound hatchery programs (See Response to Comment 2).

Comment 9—Two commenters agreed with some, or most, of the statements in Section 6.4.2 of the PEPD. They supported the need to implement studies designed to collect empirical data regarding the effects of Puget Sound sub-yearling hatchery program-origin Chinook salmon on natural populations, including gene flow levels and fitness reduction effects. They indicated that study results would show actual, likely effects, rather than relying on studies of other species with different hatchery life histories to inform needed harvest and hatchery risk mitigation measures.

Response: NMFS concurs that there is a need for additional studies to obtain gene flow and fitness loss risk data relevant for appropriately guiding risk management strategies for hatchery Chinook salmon production for the Puget Sound. A coordinated, programmatic approach, spanning regional Chinook salmon population viability and habitat conditions, will help guide development of appropriate and effective genetic diversity risk management measures for co-manager hatcheries. We have recently begun a research, monitoring and evaluation initiative in the Puget Sound region (the Puget Sound VSP (Viable Salmonid Population) Monitoring Initiative) directed at evaluation needs for hatchery programs. Studies implemented to address key data gaps may provide better information in support of managing genetic diversity risks associated with the production and escapement to natural spawning areas of Puget Sound sub-yearling hatchery-origin fish. However, NMFS believes the data and body of science is currently sufficient to warrant appropriate actions to reduce adverse effects of interbreeding when and where they can be implemented.

Comment 10—One commenter indicated that the conclusions presented in NMFS's PEPD document represent a major departure from the agency's findings in its 2005 Hatchery Listing Policy (NMFS 2005b) and the recent Mitchell Act Hatchery Draft EIS regarding the role of hatchery-origin fish in wild salmon recovery efforts. Another commenter stated that the ESA requires that hatchery-origin fish are not part of the solution for recovering natural-origin salmon populations, and alleges that NMFS is proposing to treat hatchery-origin strays to natural spawning areas at a status equivalent to natural-origin fish.

Response: NMFS disagrees with these comments and seeks through these revisions and responses to clarify its approach. NMFS's 2005 Hatchery Listing Policy identifies the role hatchery-origin fish populations may play in contributing to the viability of listed natural-origin salmon and steelhead populations (70 FR 37204, June 28, 2005). The policy clearly states that self-sustaining natural-origin fish populations are the central focus of population viability restoration efforts and recovery of listed fish species under the ESA. The policy also acknowledged that there are certain circumstances where hatchery populations that were no more than moderately diverged from donor stock natural-origin populations could contribute in certain cases positively to the abundance, diversity, spatial structure and productivity of the listed natural-origin populations. Through the hatchery population review and Hatchery Policy implementation processes, NMFS evaluated the status of all hatchery-origin Chinook salmon populations in Puget Sound, determining that fish produced in 26 hatchery programs were part of the listed ESU and protected with natural-origin fish (70 FR 37160, June 28, 2005). NMFS further evaluated the effects of the listed hatchery-origin populations on viability parameters for the natural-origin populations from which they were derived, determining that most contributed positively to the abundance of associated natural-origin populations, and many also contributed to population diversity and spatial structure (http://www.nwr.noaa.gov/​Publications/​upload/​SHIEER.pdf). These determinations are entirely consistent with the NMFS's determinations pertaining to the adverse genetic and environmental effects of certain hatchery practices, as described above. The NMFS PEPD document incorporates these previous determinations regarding the potential contribution of certain hatchery populations to natural Chinook salmon population viability. However, NMFS's clear intent is to assess effects on the natural-origin Chinook salmon populations as the paramount concern regarding population and ESU recovery. It is precisely for this reason that the recovery exploitation rates used in NMFS's harvest evaluation are therefore focused upon and derived from natural-origin production.

Regarding the issue of consistency between conclusions presented in the PEPD document and the NMFS's Draft EIS for Mitchell Act Hatchery programs, we emphasize that the former document addresses Puget Sound harvest programs, the Chinook populations affected by them, and is in response to a RMP structured to meet the requirements of the ESA 4(d) Rule. The Draft EIS is structured to meet the requirements of the National Environmental Policy Act (NEPA) and pertains to Columbia River hatchery programs and their effects on salmon and steelhead populations in the Columbia River Basin. The two documents have different purposes, and evaluate the effects of separate actions on different ESUs and DPSs, in distinct habitat settings, and under different resource management frameworks. The draft findings presented in NMFS's PEPD document reflect evaluations specific for discrete Tribal and state-managed harvest effects on Puget Sound regional Chinook salmon populations based on the criteria of Limit 6 in the salmon and steelhead 4(d) Rule, considering their status, and the condition of habitat and hatchery production types as context. The draft EIS exposes for review effects on the human environment of a broad range of alternative hatchery production and management practices in the Columbia Start Printed Page 35849River. Like hatchery programs in the Puget Sound region, hatchery fish considered in the Mitchell Act hatchery Draft EIS were evaluated by NMFS in 2005 under the Hatchery Listing Policy for inclusion with natural-origin populations as part of listed ESUs and DPSs, and many were determined through the commensurate Salmon Hatchery Inventory and Effects Evaluation Report (SHIEER) process as contributing to the abundance, diversity, and spatial structure of natural populations. The methods evaluated by NMFS for assessing the effects of harvest on Puget Sound Chinook salmon populations (i.e., RERs) are consistent with those applied to assessing the effects of harvest to Chinook salmon populations in the lower Columbia region that are affected by the hatchery programs evaluated in the Draft EIS. For these reasons, and considering the contents of the version of Section 6.4.2 provided for public review, we do not agree that the two documents are inconsistent in their treatment of the role of hatchery-origin salmon in population recovery efforts.

Comment 11—Several commenters raised concerns that harvest actions like those within the RMP are evaluated independently of hatchery, habitat, and recovery plan actions. They expressed the view that all management actions (hatcheries, harvest and habitat) should be assessed together. One commenter suggested that existing and planned management actions should be reviewed and revised based upon their ability to meet necessary conservation and harvest goals for each Puget Sound Chinook stock over several time frames: short (potential), mid-term (delisting), and long-term (i.e., recovery).

Response: NMFS understands the sentiment underlying these comments and the desirability of linking explicitly strategies for managing habitats, hatchery practices and harvest practices in an integrated fashion. NMFS furthermore anticipates that the HGMPs will serve as an important vehicle by which to undertake such integration on a watershed-by-watershed basis, and at a level of specificity that far exceeds that which is pertinent to the evaluation of this harvest RMP. NMFS must evaluate the RMP that is provided by the co-managers against the criteria under Limit 6 in the ESA 4(d) Rule. In its PEPD, NMFS evaluated the co-managers plan using the best available information regarding the expectation of conditions over the proposed duration of the plan, and evaluated the anticipated outcome against NMFS' standards for listed Puget Sound Chinook salmon. Under Limit 6 of the 4(d) Rule, NMFS focuses its inquiry on whether the RMP meets the criteria of Limit 6 and will not appreciably reduce the likelihood of survival and recovery.

NMFS' proposed evaluation of the RMP discusses a subset of hatchery related effects in Section 6.4.2 Genetic Diversity of the PEPD and takes into account the effect of habitat and environmental conditions in determining stock status and in deriving the standards it uses to assess the RMP (see Appendix 1 in the PEPD). As required by the ESA, the biological opinion associated with NMFS' determination under the ESA 4(d) Rule considers the effects of the proposed RMP in the context of other past, present and future habitat, harvest and hatchery actions that affect the status and environmental baseline of the listed species.

The commenters describe an integrated approach in the context of long-term recovery planning. NMFS agrees with the commenters that survival and recovery of the Puget Sound Chinook Salmon ESU will depend, over the long term, on necessary actions in all H sectors. The Puget Sound Salmon Recovery Plan describes the types of actions in each sector for each Puget Sound watershed that must occur to achieve a positive trajectory toward recovery for the ESU and emphasizes the need for an integrated approach. If implemented, these actions will have a positive effect on Puget Sound Chinook. In order for this to happen, the entities with regulatory authority and jurisdiction to implement the actions in the various H sectors must work together. The watershed planning efforts currently on-going under the aegis of the Puget Sound Partnership, state, Tribal and local governments are striving to bring together the necessary regulatory authorities to develop integrated approaches to recovery planning. NMFS supports these efforts as the best opportunity to succeed with integrating habitat, hatchery and harvest actions.

In the meantime, NMFS has taken a precautionary approach to its evaluation of the RMP. Unlike harvest actions that are implemented, effective and assessed in a matter of days to several years, certain habitat and hatchery actions may take much longer to implement and generally decades to assess. This timeframe is well outside the duration of the 2010 Puget Sound Chinook RMP. Their pace of implementation is highly uncertain. Incorporating assumed benefits in the near-term for the purposes of evaluating the RMP under Limit 6 of the ESA 4(d) Rule given such uncertainty could result in overly risky projections of future production. Therefore, in its evaluation NMFS assessed the performance of populations in the ESU under recent productivity conditions, i.e., assuming that the impacts of hatchery and habitat management actions remain consistent with current practices.

Finally, the previous RMP was adopted as the harvest component of the Puget Sound Salmon Recovery Plan (NMFS, 2006a) and so is integral to the overall approach to recover Puget Sound Chinook. If determined to be consistent with the requirements of the ESA salmon and steelhead 4(d) Rule, the 2010 Puget Sound Chinook RMP will replace the previous RMP as the harvest component of the Puget Sound Salmon Recovery Plan.

Comment 12—Several commenters expressed the view that the processes for development of the RMP and NMFS' evaluation of it were not transparent. One commenter requested peer review of the RMP and NMFS' analysis in the evaluation.

Response: As noted above, NMFS recognizes the complexities of these analyses and has sought through this notice and comment period to provide a meaningful opportunity for the public to review and comment on our draft analysis. NMFS is evaluating the RMP that is provided by the co-managers against the criteria under Limit 6 in the ESA 4(d) Rule. As required under Limit 6 of the 4(d) Rule, NMFS published its proposed determination on the RMP along “ * * * with a discussion of the biological analysis underlying that determination,” i.e., its proposed evaluation, for 30 days in the Federal Register. Based on requests from the public for additional time to review and comment on the proposed evaluation, NMFS extended public review by an additional 25 days. NMFS requested public comment on its PEPD in order to (1) seek input from the public on its proposed decision; (2) provide transparency in explaining the basis of its proposed decision; and, (3) provide the opportunity for review of its data, analysis and conclusions from the science community, local, state, Tribal governments, non-governmental organizations as well as the general public. Although no detailed technical comments were received in this case, we have received substantive technical comments as a result of public review on previous evaluations of RMPs and through similar processes for other listed species. We acknowledge that both the proposed action and the information used to analyze the potential effects of its implementation are extremely complex and Start Printed Page 35850understandably difficult for the average lay-person to understand. Where internal or external review has highlighted areas needing clarification we have attempted to provide further explanation. Aside from the results, analysis and conclusions presented in the PEPD, Appendices 1 and 2 provide additional technical information and methodology descriptions to help the reviewer understand in more depth the rationale underlying our approach and the derivations of the standards NMFS used in the PEPD. In Section 2 and throughout the PEPD (e.g., pages 47 and 136-141), we describe further the our key assumptions used in the analysis, uncertainties or limitations in aspects of the data and modeling tools and how we take them into account in our evaluation.

NMFS' relationship to the RMP is to assess the effects of the RMP against the specific criteria of the ESA 4(d) Rule as requested by the co-managers when they submitted it to NMFS for evaluation under Limit 6 of the 4(d) Rule. The RMP framework and objectives consider a broader range of resource use objectives, legal obligations and other provisions than is within the scope of NMFS' assessment of the criteria under the 4(d) Rule. The co-managers may seek a broader peer review of the RMP if they choose, but it is not NMFS' responsibility to do so as part of its evaluation under the 4(d) Rule. Peer review of the PEPD, while it could further validate the science, is not required under the 4(d) Rule and could not be accomplished without delaying the determination beyond the 2011 fishing season. NMFS relied on peer reviewed sources in its scientific analysis such as Puget Sound TRT documents, the Viable Salmonid Populations document (McElhaney, et al., 2000), scientific literature cited in the PEPD and collaboration with Northwest Fisheries Science Center staff in the development of RERs and escapement thresholds.

Comment 13: Several commenters suggested the increased use of mark-selective fisheries as a tool for reducing the level of hatchery fish on the spawning grounds and avoiding by-catch of other species.

Response: As discussed in response to Comment 2 above, the RMP does not preclude mark-selective fisheries (many are currently in use), but does not require them. Nor do the criteria in the ESA 4(d) Rule require their inclusion. The PEPD evaluated the effects of implementing the RMP's management thresholds and exploitation rates—from whatever harvest regime—on natural-origin populations, to the extent information was available. The anticipated results of implementing the RMP were compared against the criteria outlined under Limit 6 of the ESA 4(d) Rule. Through its evaluation of the RMP, NMFS concluded that the RMP adequately addressed all the criteria outlined in the ESA 4(d) Rule, including implementing and enforcing the RMP, and would not appreciably reduce the likelihood of survival and recovery of the Puget Sound Chinook Salmon ESU.

The RMP does not include specific details of an annual fishing regime, for example where and when fisheries occur; what gear will be used; or how harvest is allocated among gears, areas, or fishermen. Salmon abundance is highly variable from year to year, both among Chinook populations and other salmon species, requiring managers to formulate fisheries (i.e., location, duration, timing, gear type) to respond to the population abundance conditions particular to that year. Rather, the RMP provides the framework and objectives against which the co-managers must develop annual action-specific fishing regimes to protect Puget Sound Chinook salmon and meet other management objectives. Alternative fishing techniques such as mark-selective fisheries are not specifically addressed in the RMP since the use of the appropriate management measure is dependent on the annual circumstances. Even though not addressed in the RMP, many gear-related measures, including mark-selective fisheries, have been and would be implemented in Puget Sound fisheries that extend fishing opportunity, reduce mortality on released animals (including Chinook salmon), or reduce such encounters (as with seabirds).

Even under the prior RMP (which also does not mention mark-selective fisheries), the use of mark-selective regulations in recreational fisheries has increased both in time and areas in Puget Sound (Figures 1 and 2). However, releasing fish after being caught using nearly any gear type, including those designed for selective fishing has some associated mortality associated with it, even if it is very low (Columbia River Compact 2004; Ruggerone and June, 1996; Vander Haegen, 2002a; Vander Haegen, 2002b; Vander Haegen, 2001; Vander Haegen, 2003; also see Appendix B of the Proposed Action in DEIS Appendix A (NMFS 2004)). Because of the associated mortality on released fish, new areas opened to mark-selective fishing usually require a commensurate closure somewhere else in order to maintain acceptable or “level” impacts to wild stocks in order to meet conservation objectives. In most of Puget Sound, these impacts of concern occur to populations in critical status (e.g., Nooksack, Stillaguamish, Mid-Hood Canal, Dungeness) that have very low allowable exploitation rates. In South Puget Sound and Hood Canal, hatchery fish currently dominate the catch in areas where fisheries are open. However, the catch rates and exploitation rates in Puget Sound recreational fisheries are relatively low even when significant mark-selective fisheries are implemented. The figure below shows how use of mark selective fisheries has grown over time. The second figure shows the specific months and areas that were open to mark selective fishing in 2010. But the annual average Chinook catch per angler in Puget Sound marine sport fisheries ranges from 0.04 to 0.3 depending on the area (pers. comm. S. Theisfeld, WDFW). Although mark-selective recreational fisheries can reduce to some degree the number of hatchery fish that stray to spawning areas, to achieve significant fishery-based reductions in hatchery strays will likely require development and implementation of alternative gears that can capture large numbers of fish and provide minimal mortality to fish released. The development and progression of these alternative gears along with further expansion of mark selective recreational fisheries is part of the annual co-manager discussions during the preseason process.

Start Printed Page 35851

NMFS supports the use of mark-selective fisheries where appropriate to extend recreational fishing opportunity. However, the use of mark-selective fisheries, like any other management tools, depends on the specific circumstances and is shaped by the over-riding need to achieve conservation objectives. As the commenter points out, other methods may better achieve reductions in hatchery contribution, and the potential risks of hatchery spawners must be weighed against the specific resource use, conservation objectives and watershed characteristics in each management area.

Comment 14: One commenter suggested using confidence intervals or some other method to explain how risks are being managed in the face of uncertainty.Start Printed Page 35852

Response: In Section 2 and throughout the PEPD (e.g., pages 47 and 136-141), we describe our key assumptions in the analysis, uncertainties or limitations in aspects of the data and modeling tools and how we take them into account in our evaluation. The Fishery Regulation and Assessment Model (FRAM) that NMFS used to model the exploitation rates and escapements anticipated to result from implementation of the RMP is a static model and does not provide estimates of uncertainty. Therefore, we modeled a range of abundances and fishery scenarios as another way to capture the uncertainty in what might occur over the foreseeable future under implementation of the RMP. The Rebuilding Exploitation Rates (RERs) that NMFS uses in part to assess the effects of the RMP directly incorporate estimates of variability in the spawner-recruit parameters, environmental covariates and management error (Appendix 2 of the PEPD and NMFS, 2000) and makes conservative assumptions about future conditions. For example, we assume marine survival will continue to remain low for Puget Sound Chinook populations. NMFS will continue to work to improve ways to illustrate the uncertainty in the analyses on which it bases its decisions.

NMFS recognized that in this modeling exercise, conservative assumptions were made and that there was always the possibility that in any individual year the results could be different than the range of possibilities considered. As another way to manage uncertainty, NMFS and the co-managers regularly evaluate the performance of the RMP and build in provisions to make adjustments as new information becomes available or problems are detected. In recent years, post-season assessment of the previous RMP which is similar to the 2010 Puget Sound Chinook RMP generally showed that estimated exploitation rates were lower than pre-season projections (NMFS 2009). Generally, the 2011 pre-season modeled escapement results are within or greater than the range of predicted escapements in the PEPD. This can be, in part, attributed to the use of risk-averse modeling assumptions in modeling impacts and the resultant escapement under the RMP. The RMP contains provisions to evaluate the fishery performance under the RMP for bias and make necessary adjustments if bias is detected (Chapter 7 of the RMP).

Finally, although approval of the RMP under the ESA 4(d) Rule would authorize take consistent with the management objectives in the RMP, that approval is based on the patterns of escapement and exploitation rates resulting from NMFS' analysis, anticipated levels of abundance over the duration of the RMP and the key assumptions described in the PEPD. Based on post-season information, should actual circumstances deviate from those considered in the analysis such that the RMP is not effective in conserving listed Puget Sound Chinook, NMFS expects that the co-managers will take actions under the RMP to provide the necessary protections as per its adaptive management provisions, or NMFS may withdraw its approval as per the provisions of the 4(d) Rule (50 CFR 223.203(b)(6)(v)).

Comment 15: One commenter requested a shorter time frame of one year for the RMP rather than the five years originally proposed to reflect more recent information and broader involvement in its development.

Response: The duration of the RMP was shortened by the co-managers from an original term through April 2015 to a new term through April 2014 in response to concerns related to prey available to listed Southern Resident killer whales and the need to develop a comprehensive review of West Coast fisheries impacts on Southern Residents. However, it should be noted that this change in duration was an action taken not by NMFS, but by the co-managers following a NMFS request. It is the co-managers who decide what the duration of the proposed RMP should be, and NMFS then evaluates that RMP for a positive or negative determination under Limit 6 of the 4(d) ESA Rule. As noted in the introduction to these responses, NMFS has discussed with the co-managers comments received about the process by which the RMP was developed.

Comment 16: The commenter requested that NMFS recognize the Sammamish as important to recovery of the ESU and that all natural-origin Chinook from the WRIA 8 watershed warrant protection under the ESA.

Response: NMFS evaluated the anticipated effects of implementing the RMP on all 22 Puget Sound Chinook populations, including the Sammamish, in assessing the risk to the Puget Sound Chinook ESU. In its evaluation, NMFS determined that the Sammamish and Cedar River populations were at low risk from implementation of the RMP. The average exploitation rates under the RMP are anticipated to be below their surrogate RERs for both populations. The surrogate RER for these populations is described in Section 2.3 of the PEPD. Average escapements are expected to increase by a small amount under implementation of the RMP.

The listed Puget Sound Chinook ESU includes all runs of Chinook salmon from rivers and streams flowing into Puget Sound, including the Straits of Juan de Fuca from the Elwha River eastward, and rivers and streams flowing into Hood Canal, South Sound, North Sound, and the Strait of Georgia in Washington. Also included in the ESU are 26 artificial propagation programs. All Chinook from these areas warrant protection under the ESA. In evaluating proposed actions such as the RMP, NMFS considers the impacts on each affected population; how those impacts affect the overall viability of each population and ultimately how the distribution of risks across populations affect the survival and recovery of the entire ESU. This is because the ESU, not the individual populations within the ESU, is the listed entity under the ESA and not all of the 22 Puget Sound Chinook salmon populations or their watersheds have the same role in contributing to the recovery under the ESA of the ESU (NMFS, 2006a). This assessment of risks to individual populations within their context to the ESU is explicit in several of the 4(d) criteria used to evaluate the RMP under the ESA.

See also response to Comment 1.

Comment 17: The commenter requested that NMFS not approve the proposed change in provisions for Lake Washington Chinook. NMFS should keep the exploitation rate ceiling at a 15% rate as it was in the previous RMP for Washington fisheries that occur prior to these fish entering the Lake Washington watershed (known as “pre-terminal southern U.S. rate”) and allowing no directed fisheries on Lake Washington Chinook. (Pre-terminal southern U.S. fisheries are those that occur south of the Canadian border and before the terminal area, in this case, Lake Washington.)

Response: There is no change from the prior RMP to the anticipated total exploitation rate in southern U.S. fisheries for Chinook returning to the Lake Washington basin, although the structure of the exploitation rates is adjusted from the prior plan. NMFS' proposed evaluation indicates the management objectives proposed in the RMP would be adequately protective of Cedar River Chinook. Although the provisions are different, the 2010 RMP constrains the overall southern U.S exploitation rate to the same level as anticipated under the previous RMP. In addition, the escapement goal for the Cedar River is higher under the 2010 RMP and the allowable southern U.S. exploitation rate at very low abundances is lower. The harvest management Start Printed Page 35853objectives for the Cedar and Sammamish populations in the previous 2004 Puget Sound Chinook RMP were a 15 percent pre-terminal (i.e., areas outside of Lake Washington) southern U.S. exploitation rate ceiling with a 1,550 escapement goal (1,200 to Cedar River and 350 to Northern Lake Washington tributaries). Under the previous RMP, no directed Chinook fisheries would occur in Lake Washington. Anticipating that productivity and abundance would remain low during the term of the 2004 RMP, the co-managers committed to continuing to implement management actions in Lake Washington terminal fisheries which constrained impacts on Lake Washington natural Chinook to very low incidental levels, i.e., as if the populations were at critical levels (PSIT and WDFW, 2004). The total southern U.S. exploitation rate on Lake Washington Chinook was not anticipated to exceed 20 percent (Frank and Koenings 2004) accounting for incidental impacts in Lake Washington terminal fisheries directed at other species. At lower abundance levels, pre-terminal southern U.S. fisheries were limited to a 12 percent exploitation rate. Actual total southern U.S. exploitation rates under implementation of the 2004 RMP averaged 17 percent (2004-2008) (NMFS unpublished data).

The 2010 Puget Sound Chinook RMP also constrains the overall southern U.S. exploitation rate to no greater than 20 percent except where the Cedar River is expected to exceed its upper management threshold of 1,680 Chinook spawners. The Cedar River escapement goal was increased from the goal in the 2004 RMP to account for additional capacity downstream of the Landsberg Dam. At Cedar River escapements less than 1,680, directed Chinook fisheries will not occur in Lake Washington and impacts will be limited to fisheries targeted at other species and/or Tribal ceremonial and subsistence fisheries (PSIT and WDFW 2010). Under very low abundances, pre-terminal southern U.S. fisheries would be constrained more than under the 2004 RMP, i.e., 10% under the 2010 RMP compared with 12% under the 2004 RMP. If Cedar River escapements are projected to be above the 1,680 escapement goal, the RMP allows for directed Chinook fisheries in Lake Washington but only under conservative conditions. The RMP states that “Directed fisheries targeting harvestable surplus for any management unit will be implemented cautiously. Consistent forecasts of high abundance, substantially above the upper management threshold, and preferably corroborated by post-season or in-season assessment, would be necessary to initiate such fisheries. Alternatively, a terminal area inseason update with consistent performance may be used to identify abundance above the upper management threshold. In practice, a substantial harvestable surplus must be available, so that the directed fishery is of practical magnitude (i.e., there is substantial harvest opportunity and the fishery can be managed with certainty not to exceed the harvest target). The decision to implement a directed fishery will also consider the uncertainty in forecasts and fisheries mortality projections. A directed fishery would not be planned to remove a very small surplus above the UMT [Upper Management Threshold—1,680 in the case of the Cedar River]. Implementing a new directed fishery, in an area where one has not recently occurred, will require reasonable assurance that abundance has increased to the level that will support a fishery. In practice this implies that increased abundance has occurred for a period of prior years, and that forecasts are reliable, before implementing a new directed fishery.” (Page 36 of the 2010 RMP.) In addition, for the Cedar River, any Chinook-directed fisheries in Lake Washington must also be designed to result in spawning escapements above 1,680 and increase as abundance increases. Based on these conditions and past patterns in escapement, a directed Chinook fishery in Lake Washington is unlikely to occur under the 2010 RMP. Escapement has exceeded the escapement threshold of 1,680 only once since 1999. Pre-season forecasts for 2011 estimate Cedar River escapement will be lower than the escapement goal (FRAM model runs 0411 and 0611). Finally, the co-managers have not yet developed the inseason update required as a precursor to implementing Chinook-directed Lake Washington fisheries.

NMFS' proposed evaluation indicates the management objectives proposed in the 2010 RMP would be adequately protective of Cedar River Chinook. The escapement trend is increasing and growth rates are stable (Table 9 of PEPD), average exploitation rates are not anticipated to increase from those observed and anticipated average exploitation rates are below the surrogate RER even under extremely low abundance conditions (Tables 29 and 30 of PEPD). NMFS' evaluation of the Cedar River included southern U.S. exploitation rates approaching the 20 percent ceiling, i.e., 18-19%. If directed fisheries were to occur, based on the RMP requirements, resulting escapements should seed the existing habitat based on the limited information available and probe the available capacity and productivity at higher abundances. NMFS' analysis also assumed that impacts on the Sammamish population were the same as that for the Cedar River in southern U.S. fisheries, i.e., the co-managers will not target the Sammamish population in Lake Washington in isolation of management for the Cedar River Chinook population (page 46 of the PEPD). Directed Chinook fisheries within Lake Washington during the duration of the RMP will be driven by the status of the Cedar population. Given the conservative requirements in the 2010 RMP to implementing directed fisheries and the results of its evaluation, NMFS concludes the proposed management regime would not represent an undue risk to the Lake Washington populations.

See also response to Comment 18.

Comment 18: The commenter requested that the low abundance threshold and upper management thresholds in the RMP be increased for the Cedar River to better incorporate watershed-specific information reflecting improved conditions and increased capacity in the Cedar River and to be more conservative while stocks recover.

Response: NMFS concurs with the general implication of the comment that deriving abundance thresholds based upon the most recent watershed-specific data would be preferable. However, in the absence of such data, NMFS believes that the escapement thresholds are properly conservative for several reasons. Since a sufficient time series of data does not exist for the Cedar River that measures the proportion of natural-origin spawners in escapements to determine the population specific thresholds that reflects the productivity and capacity of the watershed, NMFS uses generic escapement thresholds based on guidance in the Viable Salmonid Populations (VSP) document (McElhaney et al., 2000) to evaluate the potential effect of proposed harvest actions on the Cedar River. However, this threshold is similar to or greater than rebuilding escapement thresholds that NMFS has derived from population-specific data for river systems similar to the Cedar River. Additionally, the co-managers escapement goal of 1,680 is higher than the generic rebuilding threshold of 1,250 used by NMFS. NMFS agrees that a population-specific Cedar threshold should be derived as sufficient data become available; particularly given the Start Printed Page 35854additional capacity in the upper watershed. NMFS will evaluate the feasibility of deriving a population-specific escapement threshold for the Cedar River prior to development of the next Puget Sound Chinook harvest plan.

Average productivity for the Cedar River is currently estimated as 1.7 recruits/spawner (Table 8 of PEPD) well below the recovery planning high productivity target of 3.1. The commenter asserts that more spawners are needed to achieve the recovery targets if the productivity is lower than the 3.1 target, but this assumes that the spawner-recruit curve for recovery has been achieved. It is likely that the current spawner-recruit curve is well below that which describes recovery given the actions that have been identified for the Cedar River watershed in the Puget Sound Salmon Recovery Plan (Shared Strategy, 2006). In that case, the situation would be similar to that illustrated for the North Fork Stillaguamish in Figure 6, page 69 of the PEPD and the spawner capacity would be much lower. Without sufficient data, the actual spawner level is unknown. In the meantime, NMFS' assessment based on the available information indicates the proposed management objectives would be adequately protective of Cedar River Chinook. The escapement trend is increasing and growth rates are stable (Table 9 of PEPD), average exploitation rates are not anticipated to increase from those observed and anticipated average exploitation rates are below the surrogate RER even under extremely low abundance conditions (Tables 29 and 30 of PEPD). If subsequent information substantially changes NMFS' conclusions regarding the risk to the ESU, NMFS can ask the co-managers to make the necessary adjustments to the RMP or invoke the process leading to the withdrawal the ESA 4(d) Rule determination.

Comment 19: One commenter stated that NMFS' consideration of hatchery fish in spawning escapements implied that recovery levels for the stocks of concern have already been reached or can easily be reached by adding more hatchery fish.

Response: We respectfully disagree with the commenter (see NMFS's 2005 Hatchery Listing Policy at http://www.nwr.noaa.gov/​Publications/​FR-Notices/​2005/​upload/​70FR37204.pdf). None of the documents, analysis or conclusions used in NMFS' evaluation implies that recovery levels can be reached solely on the basis of hatchery fish. The escapement thresholds that NMFS used in part to assess the effects of the Puget Sound Chinook RMP on Puget Sound Chinook represent natural-origin spawners. The RERs that NMFS uses are calculated to meet or exceed the levels of natural-origin spawners defined by the critical and rebuilding thresholds (Appendix 1: VRAP and page 47 of the PEPD). NMFS states on page 39 of the PEPD that “ * * * viable thresholds in the context of this evaluation are a level of spawning escapement associated with rebuilding to recovery, consistent with current environmental and habitat conditions. For most populations, the upper management thresholds are well below the escapement levels associated with recovery * * * but achieving these goals under current environmental and habitat conditions is a necessary step to eventual recovery when habitat and other conditions are more favorable.” Tables 8 and 9 of the PEPD compare the current estimates of total natural and natural-origin escapements against the recovery planning targets in the Puget Sound Salmon Recovery Plan; demonstrating current levels are well below recovery targets for most populations.

Comment 20: One commenter stated that the lower exploitation rates proposed in the RMP for some management units are the result of insufficient escapement under the prior plan for some watersheds and, secondly, that if escapements had decreased under the prior RMP then the harvest plans must be impeding recovery.

Response: The commenter did not specify which management units were of concern, but only two exploitation rate ceilings, those for the Nisqually and Skokomish Management Units, are lower in this RMP than under the 2004 Puget Sound Chinook RMP. However, the exploitation rates were not reduced based on insufficient escapement under the prior plan. Escapements under the previous RMP exceeded escapement goals in five of six years for the Nisqually and four of six years for the Skokomish. Average escapements for these two populations since 1999 are 50 percent and 127 percent higher than average escapements prior to listing. Escapement trends are stable or increasing for both populations (Table 9 of the PEPD). Escapement growth rates are higher than growth rates for overall abundance (Table 9 of the PEPD), indicating some stabilizing influence from harvest management constraints. Declining growth rates in natural-origin abundance for both populations indicate limitations in a broader range of factors than harvest. The proposed exploitation rates for the Nisqually management unit in the 2010 RMP were reduced to reflect new information on watershed conditions and resource use objectives (page 196 of the RMP). Management of the Skokomish Chinook population was changed from a fixed escapement goal to an exploitation rate approach, an approach which is generally considered more robust to management uncertainty (Feiberg 2004, NMFS 2004). NMFS sees these changes as responsible responses and consistent with an adaptive approach to harvest management.

In its evaluation, NMFS identified some increased risk for these two populations under the exploitation rates proposed in the RMP. NMFS considered the history of habitat degradation and hatchery production in the watersheds, and the extirpation of the native Chinook runs and assessed the potential risks identified for both extant, hatchery dominated populations. We concluded that, for these populations, which are essential to recovery of the Puget Sound Chinook ESU, the focus of recovery is on improving watershed conditions, re-introduction of a locally-adapted broodstock and transition to a self-sustaining natural-origin population as the existing Green River lineage broodstock adapts to each of the Skokomish and Nisqually watersheds, and as habitat conditions improve to support natural production. The timing and magnitude of changes in harvest that occur in these watersheds will be coordinated with the pace of habitat recovery and with the implementation of hatchery actions that reduce the adverse influence of the hatchery population on the natural-origin fish. The escapement and exploitation rates anticipated to result from the likely implementation of the RMP for these populations are consistent with such a transitional strategy and would not appreciably reduce the survival and recovery of the ESU.

Comment 21: Several commenters expressed opinions that harvest management approaches negatively affect the abundance and productivity of populations; that harvest rates proposed in the RMP were too high or that reductions in harvest did not mitigate the effects of high proportions of hatchery fish spawning naturally. The commenters did not provide alternative data or analysis to support their views.

Response: NMFS has intended through this analysis to examine specifically the effects of harvest on escapements of natural-origin spawners and other factors, and seeks to explain more precisely its approach to the analysis in order to respond to this comment. Generally, the PEPD considers the RMP in light of 11 criteria under section (b)(4)(i) in Limit 4 of the Endangered Species Act of 1973 (ESA) section 4(d) Rule for listed Puget Sound Start Printed Page 35855Chinook salmon (referred hereafter as the ESA 4(d) Rule). The criteria under Limit 4 section (b)(4)(i) are summarized in Table 1, page 3 of the PEPD. Of note, requirement “C” states, in part, that “[M]anagement of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations.” Anticipated effects on the abundance and productivity of natural origin spawners are described in Sections 6.1 and 6.2 of the PEPD, to the extent data are available. The anticipated effects of implementing the exploitation rate ceiling in the RMP are described in Sections 6.1, 6.2 and 7 of the PEPD.

The RMP proposes implementation of restrictions to the fishery-related mortality of each Puget Sound Chinook salmon population or management unit. The RMP's restrictions to the cumulative fishery-related mortality are expressed as: (1) An exploitation rate; (2) an upper management threshold; (3) a low abundance threshold; and (4) a critical exploitation rate ceiling (Table 4 of the PEPD). For select management units, Appendix A: Management Unit Status Profiles of the RMP describes how these thresholds or exploitation rate limits were derived. In the PEPD, NMFS compared the proposed RMP's mortality limits, regardless of their basis, to the NMFS-derived critical and rebuilding escapement threshold standards and Rebuilding Exploitation Rates which have as their basis NMFS' ESA standards relating to the natural population. In the PEPD, NMFS modeled and evaluated the anticipated impacts of implementing the proposed RMP's exploitation rate ceilings consistent with the criteria of the 4(d) Rule.

The modeling used risk-averse assumptions in determining potential impacts and the resultant escapement as described in Appendix 1 of the PEPD. The modeling assumed a range of intercepting fisheries to include the highest Canadian harvest allowed under the 2008 Pacific Salmon Treaty Agreement, as well as those most likely to occur. The modeled range of Puget Sound Chinook salmon abundance included abundances observed over the last 15 years and a 40 percent reduction from that level for all populations. The anticipated results of implementing the RMP were compared against the criteria outlined under Limit 6 of the ESA 4(d) Rule. Through its proposed evaluation of the RMP, NMFS concluded that the RMP adequately addressed all the criteria outlined in the ESA 4(d) Rule, including implementing and enforcing the RMP, and would not appreciably reduce the likelihood of survival and recovery of the Puget Sound Chinook Salmon ESU. Information provided in the PEPD, along with the information included and available by reference, provides the reviewer the information necessary to evaluate NMFS' risk criteria used to reach this conclusion.

See also responses to Comments 2-10 related to specific concerns about hatchery fish spawning naturally.

Comment 22: One commenter stated that Chinook management activities and uses in shoreline jurisdictions must be consistent with the Shoreline Management Act and the local Shoreline Master Programs. The commenter did not provide any specific comments on aspects of the RMP that were or were not consistent with the Shoreline Management Act and the local Shoreline Master Programs.

Response: The Final EIS (NMFS, 2004) addresses all plans and policies that are related to the proposed RMP implementation in Section 1.10, Relationship to Other Plans and Appendix F, Applicable Laws, Treaties, Licenses and Permits. The Shoreline Management Act is discussed in Appendix F, along with the state Growth Management Act and Puget Sound Regional Council VISION 2020 Strategy. Additionally, discussions about related Federal legislation are found in Appendix F, including the Clean Water Act, Coastal Zone Management Act, and National Marine Sanctuaries Act. Since Shoreline Master Programs can only be implemented if they are consistent with the state Shoreline Management Act, Growth Management Act, and other applicable laws, policies, and programs, the EIS did not address each individual program in the action area, assuming instead that the broader legislations would suffice for analysis, and that each local program is in compliance with “parent” legislation.

The Council on Environmental Quality (CEQ) regulations require that an EIS identify “possible conflicts between the proposed action and objectives of Federal, regional, state, and local land use plans, policies, and controls for the area concerned” (40 CFR 1502.16(c)). The requirement to demonstrate inconsistencies is repeated at 40 CFR 1506.2(d) and in CEQ's 40 Most Asked Questions at numbers 23a and 23b. NMFS's review of the related Federal, state, and regional land use plans, policies, and “controls” within the action area did not reveal any inconsistencies between the proposed action to implement the RMP and the objectives of each of these laws, policies, or plans. If any inconsistencies were uncovered, this would have been discussed in the EIS in either Section 1.10, Relationship to Other Plans or Appendix F, Applicable Laws, Treaties, Licenses and Permits.

The Shoreline Management Act and local Shoreline Master Programs guide development of shoreline lands in a manner that will promote and enhance the public interest. The RMP does not include specific details of an annual fishing regime, for example where and when fisheries occur; what gear will be used; or how harvest is allocated among gears, areas, or fishermen, and as such does not identify specific shoreline areas that could be impacted. Salmon abundance is highly variable from year to year, both among Chinook populations and other salmon species, requiring managers to formulate fisheries (i.e., location, duration, timing, gear type) to respond to the population abundance conditions particular to that year. Rather, the RMP provides the framework and objectives against which the co-managers must develop annual action-specific fishing regimes to protect Puget Sound Chinook salmon and meet other management objectives. NMFS expects that the Washington Department of Fish and Wildlife and Puget Sound treaty Tribes will implement these annual fishing regimes consistent with any relevant provisions of the Shoreline Management Act or Shoreline Master Programs. Additionally, NMFS previously analyzed the possible environmental and socioeconomic impacts in the Final EIS (NMFS 2004), and also assumed for analysis purposes that this RMP would be in compliance with all state and other Federal laws, such as the state Shoreline Management Act.

References

A complete list of all references cited herein is available upon request (see ADDRESSES), or through the documents available on the NMFS Northwest Regional Office Web site (see Electronic Access, under the heading, SUPPLEMENTARY INFORMATION).

Authority

Under section 4(d) of the ESA, 16 U.S.C. 1533(d), NMFS, by delegated authority from the Secretary of Commerce, is required to adopt such regulations as it deems necessary and advisable for the conservation of the species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000, as amended) specifies categories of activities that contribute to the conservation of listed salmonids or are governed by a program that adequately limits impacts on listed Start Printed Page 35856salmonids, and sets out the criteria for such activities. The Rule further provides that the prohibitions of paragraph (a) of the Rule do not apply to actions undertaken in compliance with a RMP developed jointly within the continuing jurisdiction of United States v. Washington by the State of Washington and the Tribes and determined by NMFS to be in accordance with the provisions of 50 CFR 223.203(b)(6) (i.e., Limit 6 of the salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000)). In 2005, as part of the final listing determinations for sixteen Evolutionarily Significant Units of West Coast salmon, NMFS amended and streamlined the previously promulgated 4(d) protective regulations for threatened salmon and steelhead (70 FR 37160, June 28, 2005). Under these regulations, the same set of fourteen limits was applied to all threatened Pacific salmon and steelhead ESU's or DPS's.

Start Signature

Dated: June 13, 2011.

Angela Somma,

Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.

End Signature End Supplemental Information

[FR Doc. 2011-15137 Filed 6-17-11; 8:45 am]

BILLING CODE 3510-22-P