Listing Endangered or Threatened Species; 90-Day Finding on a Petition To Delist the Snake River Fall-Run Chinook Salmon Evolutionarily Significant Unit
Federal Register, Volume 80 Issue 77 (Wednesday, April 22, 2015)
Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)
Proposed Rules
Pages 22468-22472
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2015-09358
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
Docket No. 150211136-5136-01
RIN 0648-XD769
Listing Endangered or Threatened Species; 90-Day Finding on a Petition To Delist the Snake River Fall-Run Chinook Salmon Evolutionarily Significant Unit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: 90-Day petition finding, request for information, and initiation of status review.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 90-day finding on a petition to delist the Snake River fall-run Chinook salmon (Oncorhynchus tshawytscha) (Snake River fall-run Chinook) Evolutionarily Significant Unit (ESU) under the Endangered Species Act (ESA). The Snake River fall-run Chinook ESU was listed as threatened under the ESA in 1992. We reviewed the status of the ESU in 2005 and again in 2011 and concluded that the ESU's classification as a threatened species remained appropriate. We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted. We hereby initiate a status review of the Snake River fall-run Chinook ESU to determine whether the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species.
DATES: Comments must be received by June 22, 2015.
ADDRESSES: You may submit comments on this document, identified by NOAA-NMFS-2015-0039, by either of the following methods:
Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
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Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0039.
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Click the ``Comment Now!'' icon, complete the required fields.
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Enter or attach your comments.
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MAIL or Hand Delivery: Submit written comments to: Protected Resources Division, West Coast Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
Instructions
Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Elizabeth Holmes Gaar, NMFS West Coast Region at (503) 230-5434; or
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Dwayne Meadows, NMFS Office of Protected Resources at (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
The Snake River fall-run Chinook ESU was listed as threatened under the ESA in 1992 (57 FR 14658; April 22, 1992). Section 4(c)(2) of the ESA requires that we conduct a review of listed species at least once every 5 years (5-year review). On the basis of such 5-year reviews, we determine under section 4(c)(2)(B) whether a species should be delisted or reclassified from endangered to threatened or from threatened to endangered. We conducted 5-year reviews for the Snake River fall-run Chinook ESU in 2005 (70 FR 37160; June 28, 2005) and again in 2011 (76 FR 50448; August 15, 2011) and determined that the ESU should remain classified as ``threatened.''
On January 16, 2015, we received a petition from the Chinook Futures Coalition to delist the Snake River fall-run Chinook ESU under the ESA. Copies of the petition are available upon request (see ADDRESSES). Separately, on February 6, 2015, we published a notice of initiation of 5-year reviews for 32 species, including Snake River fall-run Chinook salmon (80 FR 6695; February 6, 2015).
Historically, the Snake River fall-run Chinook ESU consisted of three large populations: The extant Lower Mainstem Snake River population, and two currently extirpated populations (Marsing Reach and Salmon Falls) that spawned in the upper mainstem Snake River above the current Hells Canyon Dam complex. The listed Snake River fall-run Chinook salmon ESU consists of one population, the extant Lower Mainstem Snake population, which includes all natural-origin fall-run Chinook salmon originating from the mainstem Snake River below Hells Canyon Dam (the lowest of three impassable dams that form the Hells Canyon Complex), and from the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River subbasins. The ESU also includes four artificial propagation programs: The Lyons Ferry Hatchery Program, Fall Chinook Acclimation Ponds Program, Nez Perce Tribal Hatchery Program, and Oxbow Hatchery Program.
ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to remove a species from the list of threatened or endangered species, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates that the petitioned action may be warranted (a ``positive 90-day finding''), we are required to promptly commence a review of the status of the species concerned, which includes conducting a comprehensive review of the best available scientific and commercial information. Within 12 months of receiving the petition, we must conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a significantly more thorough review of the available information, a ``may be warranted'' finding at the 90-day stage does not prejudge the outcome of the status review.
ESA-implementing regulations at 50 CFR 424.14(b) issued jointly by NMFS and the U.S. Fish and Wildlife Service (USFWS) (jointly ``the Services'') define ``substantial information'' in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) 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; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) 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)).
To make a 90-day finding on a petition to list, delist or reclassify a species, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating that the species may meet the ESA's requirements for delisting is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the lack of information itself suggests a particular extinction risk conclusion for the species at issue.
Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do ``not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act'' because NatureServe assessments ``have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.
Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint
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Services policy (DPS Policy) clarifies the agencies' interpretation of the phrase ``distinct population segment'' for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is ``endangered'' if it is in danger of extinction throughout all or a significant portion of its range, and ``threatened'' if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). For identifying stocks of Pacific salmon for listing under the ESA, we use our Policy on Applying the Definition of Species under the ESA to Pacific Salmon (ESU Policy) (56 FR 58612; November 20, 1991). Under this policy, populations of salmon that are substantially reproductively isolated from other conspecific populations and that represent an important component in the evolutionary legacy of the biological species are considered to be an ESU. In our listing determinations for Pacific salmon under the ESA, we have treated an ESU as constituting a DPS, and hence a ``species,'' under the ESA.
NMFS assesses viability for Pacific salmon ESUs based on a common set of biological principles described in NMFS' technical memorandum, Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units (McElhany et al. 2000). Viable salmonid populations (VSPs) are defined in terms of four population parameters: Abundance, population productivity or growth rate, population spatial structure, and diversity. Abundance and productivity need to be sufficient to provide for population-level persistence in the face of year-to-year variations in environmental influences. Spatial structure of populations should provide for resilience to the potential impact of catastrophic events, and diversity should provide for patterns of phenotypic, genotypic, and life history diversity that sustains natural production across a range of conditions, allowing for adaptation to changing environmental conditions.
Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five ESA section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
Under section 4(a)(1) of the ESA and our implementing regulations at 50 CFR 424.11(d), a species may be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available and after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. Pursuant to our regulations at 50 CFR 424.11(d), a species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
(1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
(2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
(3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.
Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action may be warranted. As a general matter, these decisions hold that a petition need not establish a ``strong likelihood'' or a ``high probability'' that a species is or is not either threatened or endangered to support a positive 90-day finding.
Application of the Hatchery Listing Policy
On June 28, 2005, we announced a final policy addressing the role of artificially propagated (hatchery produced) Pacific salmon and steelhead in listing determinations under the ESA (70 FR 37204; June 28, 2005) (Hatchery Listing Policy). The Hatchery Listing Policy's purpose is to provide direction to NMFS staff for considering hatchery-
origin fish in making listing determinations for Pacific salmon and steelhead. Among other things, the Hatchery Listing Policy: (1) Establishes criteria for including hatchery stocks in ESUs and DPSs; (2) provides direction for considering hatchery fish in extinction risk assessments of ESUs and DPSs; and (3) provides that hatchery fish determined to be part of an ESU will be included in any listing of the ESU.
The Hatchery Listing Policy also provides that status determinations for Pacific salmon ESUs and steelhead DPSs will be based on the status of the entire ESU or DPS and that in assessing the status of an ESU/DPS, NMFS will apply the policy in support of the conservation of naturally-spawning salmon and the ecosystems upon which they depend, consistent with section 2(b) of the ESA. Finally, the Hatchery Listing Policy provides that hatchery fish will be included in assessing an ESU's or DPS's status in the context of their contributions to conserving natural self-sustaining populations.
Biology of Snake River Fall-Run Chinook Salmon
Snake River fall-run Chinook spend 1 to 4 years in the Pacific Ocean, depending on gender and age at the time of ocean entry. Most Snake River fall-run Chinook salmon return for reproduction to the lower Columbia River in August and September, and the adults enter the Snake River between early September and mid-October. There are presently five recognized major spawning areas for Snake River fall-run Chinook salmon: The Snake River upper reach (from the Hells Canyon Dam complex to the mouth of the Salmon River), the Snake River lower reach (from mouth of the Salmon River to Lower Granite dam Reservoir), and the lower Grande Ronde, lower Clearwater, and lower Tucannon Rivers. Adults spawn in nests (redds) from late October through early December. Emergence of young fall-run Chinook from redds typically occurs in the following April through early June. Juvenile Snake River fall-run Chinook salmon exhibit different early life history timing and growth traits in riverine habitat, depending on growth opportunity, which is often largely related to water temperature. Relatively warm temperatures produce juveniles that migrate seaward as subyearlings in May and June, whereas reaches with cooler temperatures produce juveniles that grow more slowly, over-winter and migrate seaward as yearlings.
Summary of Petition
The petition contains three parts. Part I asserts that hatchery fish must be counted when assessing the status of the ESU and must be considered in any
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delisting decision where hatchery fish are part of the ESU, as is the case for Snake River fall-run Chinook salmon. The petitioner refers to NMFS' Hatchery Listing Policy and points out its requirement that status determinations for Pacific salmon ESUs will be based on the status of the entire ESU. The petitioner disagrees with NMFS' approach used in the most recent Snake River fall-run Chinook 5-year review (NMFS 2011) to base viability criteria on natural fish.
Part II of the petition asserts that Snake River fall-run Chinook meet the standards for delisting under the ESA and presents information on the ESU's recent status and trends. It asserts that Snake River fall-run Chinook have met the four VSP criteria, and consequently that the ESU's short-term extinction risk is zero and its long-term extinction risk is less than 1 percent. The petitioner asserts that the recovery standards articulated in the last 5-year review arbitrarily redefined the ESU to exclude hatchery fish. The petitioner also reviews the 5-year review's consideration of the VSP parameters of abundance, productivity, spatial structure, and diversity. The 5-year review's VSP criteria were recommended by the Interior Columbia River Technical Recovery Team (ICTRT 2007; Ford et al. 2011). The petitioner asserts that Snake River fall-run Chinook salmon have met the abundance and productivity criteria set forth in the 2011 5-year review, and the petitioner presents abundance and productivity data made available since the 2011 5-year review, for the years 2010 through 2014. The petitioner cites data sources for updated abundance and productivity from the Pacific Fishery Management Council (PFMC 2014), Arnsberg et al. (2013, 2014) and a powerpoint presentation given in 2013 by a scientist from NMFS' Northwest Fisheries Science Center (Cooney 2013).
The petitioner asserts that the Snake River fall-run Chinook salmon ESU also meets criteria from the 5-year review for spatial distribution and diversity. For spatial distribution, the Interior Columbia Technical Recovery Team recommended that for the Snake River fall-run Chinook ESU to be considered at low extinction risk, there should be another population, in addition to the extant Lower Mainstem Snake River population. We included that criterion in the 2011 5-year review. The petitioner points to redd count data in the Clearwater River from Arnsberg et al. (2014) and concludes that the spawning aggregation in the Clearwater River satisfies the spatial structure criterion for a second population of Snake River fall-run Chinook. The petitioner further asserts, however, that establishing another population of Snake River fall-run Chinook salmon to lower the risk of extinction is not relevant when all other delisting criteria have been met. The petitioner disagrees with NMFS' approach to diversity criteria, which evaluates diversity within the ESU. The petitioner asserts that Pacific salmon are diverse because they are composed of two or more ESUs, and that the only means for increasing diversity is to increase the abundance of spawners in an ESU. The petitioner points out that this increase in abundance has happened for the Snake River fall Chinook ESU.
Part III of the petition evaluates the statutory standards for delisting and asserts that the extinction risk of Snake River fall-run Chinook is at or approaching zero, and that the delisting standards are met individually and collectively. The petitioner also provides an evaluation of each of the five ESA section 4(a)(1) listing factors. The petitioner concludes that: (1) There is no destruction, modification, or curtailment of the Snake River fall-run Chinook habitat or range that justifies continued listing; (2) that there is no overutilization of Snake River fall-run Chinook; (3) predation and disease are not present factors, and predation is less of a factor today than when the species was listed; (4) existing regulatory mechanisms are adequate as evidenced by the demonstrated increasing numbers of Snake River fall-
run Chinook; and (5) while drought might be a consideration for other natural or manmade factors, the operation of the Federal Columbia River Power System, the Hells Canyon Dam Complex, and Dworshak Dam ensures that sufficient waters will be available for Snake River fall-run Chinook in the future.
Petition Analysis and Finding
As described above, the standard for determining whether a petition includes substantial information is whether the amount of information presented provides a basis for us to find that it would lead a reasonable person to believe that the measure proposed in the petition may be warranted. We find the analysis of additional data presented and referenced in the petition regarding the abundance and productivity of Snake River fall-run Chinook since the last status review in 2011 meets this standard, and that it presents substantial scientific evidence indicating that the petitioned action may be warranted.
Information Solicited
As a result of this 90-day finding, we will commence a status review of the Snake River fall-run Chinook ESU to determine whether delisting the species is warranted. To ensure that our review of Snake River fall-run Chinook is informed by the best available scientific and commercial information, we are opening a 60-day public comment period to solicit information to support our 12-month finding on this petition. We note that on February 6, 2015, we announced the initiation of 5-year reviews of 32 species, including Snake River fall-run Chinook, and requested information that has become available since the species' statuses were last updated. In the case of Snake River fall-
run Chinook, the last update was in 2011 (NMFS 2011). We will consider all information submitted through that solicitation, as well as information submitted in response to this finding and request for information, to inform our status review and 12-month finding. There is no need to resubmit information that has already been submitted in response to our 5-year review solicitation notice. We are opening a 60-
day public comment period to solicit additional information beyond that provided for the 5-year review process in response to our finding on this petition.
Specifically, we request new information that has become available since the 2011 5-year status review of Snake River fall-run Chinook salmon regarding: (1) Population abundance; (2) population productivity; (3) changes in species distribution or population spatial structure; (4) patterns of phenotypic, genotypic, and life history diversity; (5) changes in habitat conditions and associated limiting factors and threats; (6) conservation measures that have been implemented that benefit the species, including monitoring data demonstrating the effectiveness of such measures in addressing identified limiting factors or threats; (7) information on the adequacy of regulatory mechanisms to conserve the species in the event it were delisted; (8) data concerning the status and trends of identified limiting factors or threats; (9) information that may affect determinations regarding the composition of the ESU; (10) information on changes to hatchery programs that may affect determinations regarding the ESU membership or contribution to recovery of natural populations; (11) information on targeted harvest (commercial, tribal, and recreational) and bycatch of the species; and (12) other new information, data, or
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corrections including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information in the previous listing determination, and improved analytical methods for evaluating extinction risk.
We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.
References Cited
The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/salmon_and_steelhead_listings/chinook/snake_river_fall/snake_river_fall_run_chinook.html.
Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: April 17, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
FR Doc. 2015-09358 Filed 4-21-15; 8:45 am
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