[Federal Register Volume 71, Number 219 (Tuesday, November 14, 2006)]
[Proposed Rules]
[Pages 66298-66301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19194]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 060621175-6175-01; I.D. 101805A]
Endangered and Threatened Wildlife and Plants; 90-Day Finding for
a Petition to List the Kennebec River Population of Anadromous Atlantic
Salmon as Part of the Endangered Gulf Of Maine Distinct Population
Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice of 90-day petition finding; request for information.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the
Kennebec River population of anadromous Atlantic salmon (Salmo salar)
as endangered under the Endangered Species Act (ESA) of 1973, as
amended. We find that the petition presents substantial scientific or
commercial information indicating that the petitioned action may be
warranted. This normally initiates a formal status review, but as
described below under Summary of Previous ESA Actions, in this case, we
and the U.S. Fish and Wildlife Service (USFWS) had already initiated a
status review of this and other populations, resulting in NMFS'
announcement of the completed status review report on September 22,
2006.
DATES: The finding announced in this document was made on November 14,
2006.
FOR FURTHER INFORMATION CONTACT: Mary Colligan, NMFS Northeast Region,
978-281-9116; or Marta Nammack, NMFS Office of Protected Resources,
301-713-1401, ext. 180.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the ESA requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial information to indicate that the petitioned action may be
warranted. To the maximum extent practicable, this finding is to be
made within 90 days of receipt of the petition, and the finding is to
be published promptly in the Federal Register.
In determining whether a petition contains substantial information,
we take into account information submitted with and referenced in the
petition and all other information readily available in our files. We
do not conduct additional research at this point, nor do we subject the
petition to critical review. Our ESA implementing regulations at 50 CFR
424.14(b)(1) define ``substantial information'' as the amount of
information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted. If the petition is
found to present such information, the Secretary of Commerce
(Secretary) must conduct a status review of the involved species. In
making a finding on a petition to list a species, the Secretary must
consider whether such a petition (i) clearly indicates the
administrative measure recommended and gives the scientific and any
common name of the species involved; (ii) contains detailed narrative
justification for the recommended measure, describing, based on
available information, past and present numbers and distribution of the
species involved and any threats faced by the species; (iii) provides
information regarding the status of the species over all or a
significant portion of its range; and (iv) is accompanied by the
appropriate supporting documentation in the form of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
In a petition submitted on May 11, 2005, Timothy Watts, Douglas
Watts, Ed Friedman, and Kathleen McGee requested that we and the USFWS
declare the Kennebec River population of anadromous Atlantic salmon
endangered under the ESA and presented the following three main areas
of evidence to support their request: (1) historic information on the
presence of Atlantic salmon; (2) information on other native migratory
fish populations in the Kennebec; and (3) microsatellite DNA analysis
of Atlantic salmon in the Kennebec. It is the petitioners' contention
that historic observations of Kennebec River Atlantic salmon from the
18th century to the present demonstrate that there was no period in the
19th and 20th centuries during which Atlantic salmon were absent from
the Kennebec River. The petition states that populations of native
migratory fish species have also persisted in the Kennebec despite
being subjected to the same environmental pressures as Atlantic salmon.
The petition also contends that microsatellite DNA analysis of tissue
samples from 180 wild Atlantic salmon captured in the Kennebec River by
the USFWS from 1994 to the present show that wild Kennebec River salmon
are
[[Page 66299]]
genetically distinct from other hatchery and wild populations of
Atlantic salmon in Maine.
Under the ESA, a listing determination can address a species,
subspecies, or distinct population segment (DPS) of a vertebrate
species (16 U.S.C. 1532(15)). The petition requests protecting the
Kennebec River population of Atlantic salmon in addition to the
existing Gulf of Maine (GOM) DPS that was previously delineated and
listed under the ESA as endangered. A DPS is a vertebrate population
that is discrete in relation to the remainder of the species to which
it belongs and significant to the species (61 FR 4722; February 7,
1996). We interpret the petition to request listing the Kennebec River
population as part of the existing GOM DPS.
We evaluated whether the information provided or cited in the
petition met the ESA's standard for ``substantial information.'' We
reviewed the information presented in the petition and other readily
available biological information on anadromous Atlantic salmon in the
Kennebec River to determine whether the petitioned action may be
warranted.
General Biology and Status of the Species
The Atlantic salmon, Salmo salar, is in the order Salmoniformes and
family Salmonidae. Atlantic salmon is one of only two members of the
genus Salmo found in North America. The Atlantic salmon is an
anadromous fish, spending its first 2 to 3 years in freshwater,
migrating to the ocean where it spends typically 2 years, and returning
to its natal river to spawn. A non-anadromous variety (recognized in
the past by some taxonomists as the subspecies S. salar sebago) is
found in some lakes and rivers. The other member of the genus Salmo is
Salmo trutta, brown trout, which was introduced from Europe.
Atlantic salmon have a fusiform body shape (i.e., like a spindle,
rounded, broadest in the middle and tapering at each end). The shape is
somewhat flattened towards the sides and typical of salmonids in
general. The head is relatively small, comprising approximately one-
fifth of body length. Ventral paired fins are prominent, especially on
juveniles.
Parr (juvenile salmon before they enter salt water) have eight to
eleven vertical dark bars (known as ``parr marks'') on silvery sides.
After smoltification (the physiological process that enables juvenile
salmon to transition from freshwater to salt water and enter the sea),
the typical silver coloration with small, dark dorsal spots of the sea-
run pre-adult predominates. Spawning adults darken to a bronze color
after entering freshwater and darken further after spawning. They are
often referred to as ``black salmon'' at this stage. The silver
coloring returns after re-entering the sea.
Outmigrating Atlantic salmon smolts in Maine average 14 to18
centimeters (cm) in length. The size of returning adults depends on the
time spent at sea. Grilse, young salmon returning to freshwater after 1
winter at sea (1SW), average 50 to 60 cm and weigh 1 to 2 kilograms
(kg) while 2SW salmon (adult salmon returning after 2 years at sea)
range from 70 to 80 cm and 3.5 to 4.5 kg. Salmon that are 3SW (adult
salmon returning after 3 years at sea) are 80 to 90 cm long and often
weigh more than 7 kg (Baum, 1997).
Historically, the geographic range of the GOM DPS within the United
States extended from the Androscoggin River in the south of Maine,
northward to the mouth of the St. Croix River on the United States-
Canada border (NMFS and USFWS, 1999). This delineation was based on
examination of life history, biogeographical, genetic, and
environmental information. Zoogeographic maps helped identify
boundaries between areas that likely exert different selective
pressures on Atlantic salmon populations and have substantial
differences in riverine-marine ecosystem structure and function. Key
elements to the delineation included: (1) spatial arrangements of river
systems to create isolation, and (2) watershed location within
ecological provinces and subregions that affect the productivity and
ecology of riverine-marine ecosystem complexes (NMFS and USFWS, 1999).
Summary of Previous ESA Actions
In response to a petition submitted in 1993 to list Atlantic salmon
under the ESA, NMFS and the USFWS (the Services) completed a review of
the species' status in 1995 (USFWS and NMFS, 1999). The Services
concluded that the GOM DPS was likely to become endangered. Later in
1995, the Services published a proposed rule to list a GOM DPS of
Atlantic salmon in seven Maine rivers as threatened (60 FR 50530; Sept.
29, 1995). In that proposed rule, the State of Maine was invited to
prepare a plan to eliminate, minimize, and mitigate threats to Atlantic
salmon and their habitat. On December 18, 1997, the Services withdrew
the proposed rule to designate the Atlantic salmon GOM DPS as
threatened (62 FR 66325; Dec. 18, 1997). The withdrawal was based on an
evaluation of the information then known about the biological status of
the species, as well as consideration of ongoing actions by
international, State, Federal, and private entities, including the
State's Atlantic Salmon Conservation Plan for Seven Maine Rivers
(Conservation Plan) (MASCP, 1997). The Services committed to review
this decision on an annual basis.
In January 1999, the Services received the State of Maine's 1998
Annual Progress Report on implementation of the Conservation Plan (ASC,
1998). After review of the Annual Report, public comments, and a 1999
Atlantic salmon status review report (NMFS and USFWS, 1999), the
Services determined that the species' status was more precarious than
indicated by the available information at the time of the December 1997
determination not to list the species (64 FR 62627). On November 17,
1999, the Services proposed to list the Atlantic salmon GOM DPS, this
time as an endangered species. After review of public comments and
consideration of the best available scientific and commercial
information and data, the Services published a final rule on November
17, 2000, listing the Atlantic salmon GOM DPS as an endangered species
(65 FR 69459).
The GOM DPS includes all naturally reproducing wild populations and
those river-specific hatchery populations of Atlantic salmon having
historical, river-specific characteristics found north of and including
tributaries of the lower Kennebec River, to, but not including, the
mouth of the St. Croix River at the United States-Canada border. The
Penobscot and its tributaries downstream from the site of the Bangor
Dam are included in the range of the GOM DPS (65 FR 69459; November 17,
2000). At the time of the listing, there were at least eight rivers
within the geographic range of the GOM DPS that still contained
functioning wild salmon populations, although at substantially reduced
abundance levels (65 FR 69459; November 17, 2000). These remnant
populations are located in the Dennys, East Machias, Machias, Pleasant,
Narraguagus, Ducktrap, and Sheepscot rivers and in Cove Brook, Maine
(65 FR 69459; November 17, 2000). Salmon from the GOM DPS taken for
hatchery rearing and broodstock purposes, and any captive progeny of
these salmon, are included as part of the GOM DPS. In the final rule
listing the Atlantic salmon GOM DPS (65 FR 69459), the Services
deferred the determination of inclusion of fish that inhabit the
mainstem and tributaries of the Penobscot River (above the site of the
former Bangor Dam (65 FR 69459 at 69464; November 17, 2000)) and other
rivers, which are outside the
[[Page 66300]]
range of the GOM DPS. The deferred decision reflected the need for
further analysis of scientific information, including a detailed
genetic characterization of the Penobscot population.
In response to the availability of new genetic data, the Services
convened a Biological Review Team (BRT) to conduct a review of that new
information and to determine the status of Atlantic salmon in the
Penobscot River, Kennebec River, and other rivers not currently
included in the GOM DPS. The BRT, consisting of biologists from the
Maine Atlantic Salmon Commission, the Penobscot Indian Nation, NMFS,
and USFWS, prepared a written draft status review report for the
Services. The information presented in the petition, along with all
other relevant scientific data, was examined by the BRT in its
preparation of a status review report. We announced the availability of
the completed status review report on September 22, 2006 (71 FR 55431),
after the draft status review report had been peer reviewed and peer
review comments had been addressed.
A status review report is an evaluation of the available
information about the biological vulnerability of a species,
subspecies, or DPS. Information considered during a status review
includes demographic information such as abundance, reproductive
success, age structure, and distribution. A status review report
considers both historical and recent trends in these parameters, to the
extent that this information is available. The status review report
must also evaluate the current and potential threats facing the species
and ongoing efforts to protect the species, subspecies, or DPS.
The Petition
The petition requested that the Services protect the Kennebec River
population of anadromous Atlantic salmon under the ESA. Although we
have already conducted a status review of this and other populations
(71 FR 55431; September 22, 2006), the ESA requires that we respond to
a petition by publishing a Federal Register notice with our finding on
the petition.
The Services examined the information contained in the petition as
well as other genetic data readily available to the Services. This
petition presents historic information to support its contention that
anadromous Atlantic salmon have persisted in the Kennebec River since
the 18th century. The information presented includes, but is not
limited to, historical newspaper reports; summaries collected by
historians on anecdotal reports pertaining to the presence of Atlantic
salmon in the drainage; historic personal diaries; historic Maine
statutes; historic petitions to the Maine legislature regarding
Atlantic salmon fisheries; and more contemporary biological studies
(Atkins, 1867; Ulrich, 1990; Havey, 1968; Foye et al., 1969; Beland,
1986; Buckley, 1998; King et al., 1999). The petition also cites
observations made by the National Academy of Sciences (NAS) in 2004
that wild Atlantic salmon are recolonizing the Kennebec mainstem. The
NAS cites National Research Council (NRC, 2002) data and associated
reports as the basis for these conclusions.
The second area of information presented in the petition to support
the petitioners' request is the persistence of other native migratory
fish species in the Kennebec River. The petition specifically discusses
Atlantic sturgeon, sea lamprey, shortnose sturgeon, striped bass, white
perch, American shad, rainbow smelt, tomcod, alewives, and blueback
herring. The petition asserts that the Kennebec River population of
anadromous Atlantic salmon must have persisted if these native
anadromous fish species have been able to persist over time while being
subjected to the same environmental pressures as native Atlantic
salmon. With respect to dams, the petition cites studies by Yoder et
al. (2004) and Squiers (1988) that demonstrate that other native
migratory fish populations have persisted despite manmade obstructions
to passage. The petition asserts that it is highly unlikely that
Atlantic salmon populations would be completely extirpated as a result
of dams when other fish species have been able to persist. The same
rationale is presented as support for the persistence of Atlantic
salmon in the Kennebec River with respect to other threats such as
degraded water quality.
Genetic analysis used to characterize Atlantic salmon in the
Kennebec River is the third area for which the petition presents
information to support the assertion that the Kennebec River population
of anadromous Atlantic salmon should be listed under the ESA as
endangered. The petition presents information from the NRC report on
the genetic status of Maine's salmon. The NRC report presents results
of genetic assignment tests that were performed on Atlantic salmon from
different Maine drainages. The petition asserts that these data show
that the salmon populations of the Kennebec drainage are more distinct
than are those of the current GOM DPS rivers. Therefore, the petition
interprets the NRC report to suggest that there is a remnant population
of wild salmon in the Kennebec that should be incorporated into any
restoration effort. The petition asserts that the data collected from
the assignment testing contradict the hypothesis that Kennebec salmon
are simply strays from the Penobscot or progeny of strays from the
Penobscot. The petition also states that ``The assignment test results
of King et al. (1999) show that the Kennebec collection is no less
distinct than any other Maine river collection studied [and that] the
Kennebec collection appears at least or more ``distinct'' as any other
Maine collection studied except for the Penobscot.'' The petition also
cites a memo from T. King to J. Marancik and Kings' genetics data from
1999 and 2000 as support for its assertion that there is a stable
reproducing population in the Kennebec that is not simply
representative of strays from the Penobscot. The petition asserts that
if the Kennebec collection was comprised solely of Penobscot strays or
their offspring, then it is likely that fish in the Kennebec would be
genetically indistinguishable from Penobscot strays.
Assessment of Petition
The primary request of the petitioners appears to be that Atlantic
salmon in the Kennebec River warrant protection under the ESA. We
interpret the petition to request listing the Kennebec River population
of anadromous Atlantic salmon as part of the existing GOM DPS,
previously listed as endangered under the ESA. The petition includes
scientific data, primarily genetic analysis regarding the Kennebec
River population, that has become available since the 1999 status
review and subsequent listing determination for the GOM DPS in 2000.
Further, the petitioners provide information that the Kennebec River
population may be part of the existing GOM DPS. We specifically
consider the genetic analysis presented in the petition to represent
substantial scientific information. After reviewing the information
contained in the petition, as well as other scientific information
readily available to us, we have determined that the petition presents
substantial scientific information indicating that the petitioned
action may be warranted.
As stated previously, the status review report prepared by the BRT
examined the information contained in the petition, along with all
other relevant scientific data. We made this status review report
available to the public on September 22, 2006 (71 FR 55431). The
Services jointly administer the ESA as it applies to anadromous
Atlantic salmon. NMFS, having received
[[Page 66301]]
the status review from the BRT, is responsible for determining and
preparing any appropriate action under the ESA. NMFS is currently
considering the information presented in the status review, the
comments from peer reviewers, and the response of the BRT to the peer
reviewers to determine if action under the ESA is warranted.
Authority
The authority for this action is the ESA, as amended (16 U.S.C.
1531 et seq.).
Dated: November 7, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E6-19194 Filed 11-13-06; 8:45 am]
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