[Federal Register Volume 64, Number 93 (Friday, May 14, 1999)]
[Proposed Rules]
[Pages 26355-26357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12271]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224, and 226

[Docket No. 990504118-9118-01; I.D. 031199F]
RIN 0648-XA25


Endangered and Threatened Species; Notification of Finding on a 
Petition to List Summer Steelhead Trout in the Middle Fork of the Eel 
River, California

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

ACTION: Notification of petition finding.

-----------------------------------------------------------------------

SUMMARY: NMFS announces a finding for a petition to list summer 
steelhead trout (Oncorhynchus mykiss) and designate critical habitat in 
the Middle Fork of the Eel River, California, pursuant to the 
Endangered Species Act (ESA) of 1973. NMFS finds that the petitioner 
has not presented any new, substantial scientific or commercial 
information indicating that the petitioned action may be warranted. 
NMFS previously reviewed the data which was submitted by the petitioner 
for this population and has published its findings in a west coast 
status review for steelhead trout and subsequent Federal Register 
documents (see ``Previous Federal ESA Actions Related to West Coast 
Steelhead'').

DATES: The finding announced in this document was made on April 29, 
1999.

ADDRESSES: Requests for information concerning this petition should be 
sent to Chief, Endangered Species Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East West Highway, 
Silver Spring, MD 20910; telephone: (301)713-1401.

FOR FURTHER INFORMATION CONTACT: Craig Wingert at (562) 980-4021 or 
Chris Mobley at (301)713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C et 
seq.), requires that NMFS make a finding on whether a petition to list 
a species presents substantial scientific or commercial information to 
demonstrate that the petitioned action may be warranted. NMFS' standard 
for substantial information is stated at 50 CFR 424.14(b) as ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted.'' This 
finding is to be based on all information available to NMFS at the 
time. To the maximum extent practicable, this finding is to be made 
within 90 days of the receipt of the petition, and the finding is to be 
published promptly in the Federal Register. If the finding is positive, 
NMFS is also required to promptly commence a review of the status of 
the involved species.
    NMFS has made a 90-day finding on a petition to list summer 
steelhead trout (O. mykiss) in the Middle Fork of the Eel River, 
California, and designate critical habitat pursuant to the ESA. The 
petition, dated December 10, 1998, was submitted by Mr. David Drell, 
representing the Willits Environmental Center, and received by NMFS on 
December 15, 1998. The petitioner requested that NMFS list summer 
steelhead trout in the Middle Fork of the Eel River, California, as 
endangered on an emergency basis, and also designate critical habitat 
for that population under the ESA.

Previous Federal ESA Actions Related to West Coast Steelhead

    On May 20, 1993, NMFS announced its intent to conduct a status 
review to identify all coastal steelhead Evolutionarily Significant 
Units (ESUs) within California, Oregon, and Washington and to determine 
whether any identified ESUs warranted listing under the ESA. 
Subsequently, on February 16, 1994, NMFS received a petition from the 
Oregon Natural Resources Council and 15 co-petitioners to list all 
steelhead (or specific ESUs, races, or stocks) within the states of 
California, Oregon, Washington, and Idaho. In response to this 
petition, NMFS announced the expansion of its status review to include 
inland steelhead populations occurring in eastern Washington and Oregon 
and the State of Idaho (59 FR 27527, May 27, 1994).
    In August 1996, NMFS published the results of its status review for 
west coast steelhead (Busby et al., 1996; NOAA Technical Memorandum 
NMFS-NWFSC-27). Based on a review of the available information on 
steelhead genetics, phylogeny and life history, and environmental 
features that may affect steelhead, NMFS identified a total of 15 ESUs 
of west coast steelhead, including 12 ESUs for the coastal form and 3 
for the inland form. One of the coastal ESUs, the Northern California 
coast steelhead ESU, includes the summer steelhead population in the 
Middle Fork Eel River which is the subject of the petitioned action.
    On August 9, 1996, NMFS published a proposed rule to list 10 of 
these steelhead ESUs as threatened or endangered under the ESA and 
solicited comments on the proposal (61 FR 41541, August 9, 1996). In 
the proposed rule, NMFS determined that the Northern California coast 
ESU, which includes all summer- and winter-run steelhead populations 
from Redwood Creek in Humboldt County through the Gualala River, 
inclusive, warranted listing as a threatened species.
    On August 18, 1997, NMFS published a final rule listing five 
steelhead ESUs as threatened or endangered under the ESA (62 FR 43937). 
In a separate document also published on August 18, 1997, NMFS 
determined that substantial scientific disagreement remained for five 
proposed steelhead ESUs, including the Northern California coast 
steelhead

[[Page 26356]]

ESU (62 FR 43974, August 18, 1997). In accordance with section 
4(b)(6)(B)(i) of the ESA, NMFS deferred its decision on these five 
remaining steelhead ESUs for 6 months, until February 9, 1998, for the 
purpose of soliciting and analyzing additional data. By court order, 
NMFS' deadline for issuing final determinations on these five remaining 
steelhead ESUs was extended to March 13, 1998.
    During the 6-month period of deferral, NMFS received new scientific 
information concerning the status of the proposed ESUs. This new 
information was considered by NMFS' Biological Review Team (BRT) and 
incorporated into an updated status review that analyzed and summarized 
the new information [Memorandum to William Stelle and William Hogarth 
from M. Schiewe, December 18, 1997, Status of Deferred and Candidate 
ESUs of West Coast Steelhead]. In the update, NMFS re-examined and 
addressed several issues relating to ESU definitions and risk 
assessment for the deferred ESUs, which included the Northern 
California coast steelhead ESU. In addition to other issues, the re-
examination included the issue of including both summer and winter 
steelhead populations in the same ESU. Also during this period, NMFS 
assessed the status of existing hatchery stocks to determine their ESU 
status [Memorandum to William Stelle and William Hogarth from Michael 
Schiewe, January 13, 1998, Status Review Update for Deferred ESUs of 
West Coast Steelhead: Hatchery Populations]. Copies of these memoranda 
are available upon request (see ADDRESSES).
    On March 19, 1998, NMFS published a final rule to list the 
previously deferred Lower Columbia River and Central Valley steelhead 
ESUs as threatened species (63 FR 13347). In the same document, NMFS 
determined that the three other deferred steelhead ESUs, which included 
the Oregon Coast, Klamath Mountains Province (KMP), and Northern 
California coast ESUs, did not warrant listing, based on the best 
available scientific information and a review of conservation efforts 
being made. However, NMFS indicated that it remained concerned about 
the status of steelhead trout in these three ESUs, and, therefore, 
classified them as candidate species. In addition, NMFS committed to 
re-evaluate the status of these three ESUs within 4 years to determine 
whether listing was warranted at that time.

Analysis of Petition

    The petitioner requested that NMFS list summer steelhead trout in 
the Middle Fork of the Eel River, California, as endangered on an 
emergency basis and also designate critical habitat for that population 
under the ESA. In support of the petition, the petitioner submitted 
various documents and information to NMFS. The petitioner requested 
that the population be listed on an emergency basis due to a large 
landslide that was identified as severely impacting the ability of the 
population to reproduce, as well as habitat degradation from historic 
and continuing land use activities (i.e. agriculture and associated 
activities) occurring in the basin. The petitioner also cited 
continuing low returns of adults, severe poaching, and genetic 
differences between summer and winter steelhead trout as additional 
reasons to list this population.
    As noted in the preceding section of this document, NMFS has 
previously identified a coastal steelhead ESU (i.e. the Northern 
California coast steelhead ESU) which includes the Middle Fork Eel 
River summer steelhead population (Busby et al., 1996; 61 FR 41541, 
August 9, 1996; and 63 FR 13347, March 19, 1998). NMFS used its 
existing policies on how it would define ``species'' or ``distinct 
population segments'' under the ESA in reaching its determination that 
the Northern California coast steelhead ESU was the proper population 
unit to consider for listing under the ESA. These policies include 
NMFS' original November 20, 1991, policy describing how it would apply 
the ESA definition of ``species'' to anadromous salmonid species (56 FR 
58612), and a more recent joint NMFS and Fish and Wildlife Service 
policy regarding the definition of ``distinct population segments'' (61 
FR 4722, February 7, 1996).
    Under these policies, NMFS considers one or more naturally 
reproducing salmonid populations to be distinct, and therefore, a 
``species'' under the ESA, if they represent an ESU of the biological 
species. To be considered an ESU, a population must satisfy two 
criteria: (1) It must be reproductively isolated from other population 
units of the same species, and (2) it must represent an important 
component in the evolutionary legacy of the biological species. The 
first criterion, reproductive isolation, need not be absolute but must 
have been strong enough to permit evolutionarily important differences 
to occur in different population units. The second criterion is met if 
the population contributes substantially to the ecological or genetic 
diversity of the species as a whole. Guidance on applying this policy 
is contained in a NOAA Technical Memorandum entitled ``Definition of 
'Species' Under the Endangered Species Act: Application to Pacific 
Salmon'' (Waples, 1991). Copies of the policies and the Technical 
Memorandum are available upon request (see ADDRESSES).
    The Northern California coast steelhead ESU, which includes the 
Middle Fork Eel River summer steelhead population, is comprised of all 
steelhead populations that occupy coastal river basins ranging from 
Redwood Creek in Humboldt County to the Gualala River, inclusive. 
Dominant vegetation along the coast is redwood forest, while some 
interior basins are much drier than surrounding areas and are 
characterized by many endemic species. This area includes the extreme 
southern end of the contiguous portion of the Coast Range Ecoregion 
(Omernick, 1987). Elevated stream temperatures are a factor in some of 
the larger river basins (greater than 20 deg. C), but not to the extent 
that they are in river basins farther south. Precipitation is generally 
higher in this geographic area than in regions to the south, averaging 
100 to 200 centimeters of rainfall annually (Donley et al., 1979). With 
the exception of major river basins such as the Eel, most rivers in 
this region have peak flows of short duration. Strong and consistent 
coastal upwelling begins at about Cape Blanco and continues south into 
central California, resulting in a relatively productive near-shore 
marine environment.
    The Northern California coast ESU includes both winter and summer 
steelhead populations, including the Middle Fork Eel River summer 
steelhead population, which is presently considered to be the 
southernmost population of summer steelhead. Half-pounder juveniles 
also occur in this ESU, specifically in the Mad and Eel Rivers. Snyder 
(1925) first described the half-pounder from the Eel River; however, 
Cramer et al. (1995) suggested that adults with the half-pounder 
juvenile life history may not spawn south of the Klamath River Basin. 
As with the Rogue and Klamath Rivers, some of the larger rivers in this 
area have migrating steelhead year-round, and seasonal runs have been 
named. River entry ranges from August through June and spawning from 
December through April, with peak spawning in January in the larger 
basins and late February and March in the smaller coastal basins.
    The petitioner cited genetic differences between summer and winter 
run steelhead as a key factor for requesting that NMFS list the Middle 
Fork Eel River summer steelhead

[[Page 26357]]

population. While NMFS considers both life history forms of steelhead 
(winter and summer) to be important components of diversity within the 
species and individual ESUs, the best and most recently available 
genetic data reinforces previous conclusions that within a given 
geographic area, summer and winter steelhead typically are more 
genetically similar to one another than either is to populations with 
similar run timing in different geographic areas or ESUs (Busby et al, 
1996; Memorandum from M. Schiewe dated December 18, 1997, Status of 
Deferred and Candidate ESUs of West Coast Steelhead). These genetic 
relationships suggest that an ESU which included only summer-run 
populations (or conversely only winter-run populations) from different 
geographic areas would be an inappropriate population unit to consider 
for listing. The only biologically meaningful way to have summer and 
winter steelhead populations in separate ESUs would be to have a very 
large number of very small ESUs, most consisting of just one or a very 
few populations. This would be inconsistent with the conservative 
approach NMFS has taken in defining ESUs (i.e. distinct population 
segments) for other anadromous Pacific salmonids. Taking these factors 
into consideration, NMFS has previously determined that summer and 
winter steelhead should be considered part of the same ESU in 
geographic areas where they co-occur (Busby et al., 1996; 61 FR 41541, 
August 9, 1996; and 63 FR 13347, March 19, 1998), including the 
Northern California coast steelhead ESU.
    NMFS agrees with the petitioner that many factors, past and 
present, have contributed to the decline of steelhead in the Northern 
California coast ESU and elsewhere on the west coast. NMFS also 
recognizes that natural environmental fluctuations have likely played a 
role in the species' recent declines. For listed or candidate steelhead 
trout ESUs, the present condition of the population is a result of 
long-standing, human-induced conditions (i.e., harvest, habitat 
degradation, and artificial propagation) that serve to exacerbate the 
negative effects of adverse environmental conditions (i.e., drought and 
poor ocean conditions). These human-induced impacts have likely reduced 
the species' resiliency to such natural factors for decline as drought 
and poor ocean conditions (NMFS, 1996). Relative to west coast 
steelhead, NMFS has prepared a supporting document that addresses the 
factors leading to the decline of this species entitled ``Factors for 
Decline: A Supplement to the Notice of Determination for West Coast 
Steelhead'' (NMFS, 1996). This report, which is available upon request 
(see ADDRESSES), concludes that all of the factors identified in 
section 4(a)(1) of the ESA have played a role in the decline of the 
species. The report identifies destruction and modification of habitat, 
overutilization for recreational purposes, and natural and human-made 
factors as being the primary reasons for the decline of west coast 
steelhead.

Determination

    NMFS previously reviewed the information submitted by the 
petitioner and has published its findings in a west coast status review 
for steelhead trout and subsequent Federal Register documents (see 
``Previous Federal ESA Actions Related to West Coast Steelhead''). NMFS 
believes that information contained in its status review (Busby et al., 
1996) and other reports (NMFS, 1996; and NMFS, 1996b) for west coast 
steelhead, together with more recent information obtained in response 
to the proposed and final rules (see ``Previous Federal ESA Actions 
Related to West Coast Steelhead''), represent the best scientific 
information presently available for northern California coast 
steelhead. NMFS has conducted an exhaustive review of all available 
information relevant to the status of this species. NMFS has also 
solicited information and opinion from all interested parties, 
including peer reviewers.
    NMFS has reviewed the petition, the literature cited in the 
petition, and other available literature and information. Based on this 
review, NMFS finds that the petitioned action does not present 
substantial new information indicating that listing summer steelhead in 
the Middle Fork Eel River, California, may be warranted.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: May 10, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-12271 Filed 5-13-99; 8:45 am]
BILLING CODE 3510-22-F