[Federal Register Volume 64, Number 221 (Wednesday, November 17, 1999)]
[Proposed Rules]
[Pages 62627-62641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30014]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 991108299-9299-01; I.D. 102299A]
RIN 0648-XA39

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF80


Endangered and Threatened Species; Proposed Endangered Status for 
a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo 
salar) in the Gulf of Maine

AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic 
and Atmospheric Administration (NOAA), Commerce; Fish and Wildlife 
Service (FWS), Interior.

ACTION: Proposed Rule, notice of public hearing.

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

SUMMARY: NMFS and FWS (the Services) have completed a status review of 
U.S. Atlantic salmon populations and have determined that a distinct 
population segment (DPS) of Atlantic salmon in the Gulf of Maine is in 
danger of extinction. The Services have reviewed the status of the 
species and the efforts being made to protect the species and are 
proposing to place the Gulf of Maine DPS of Atlantic salmon on the list 
of endangered species under the Endangered Species Act of 1973, as 
amended (ESA). The Services have determined that the species' status 
has declined since the December 1997 determination that listing was not 
warranted. Specifically, documented adult returns have remained low 
despite projections of increased marine survival, presmolt survival has 
been found to be lower than previously estimated, the detection of a 
new disease led to the destruction of the Pleasant River broodstock, a 
disease from Europe has affected the Canadian aquaculture industry and 
spread toward the U.S. border, the use of non-North American strains of 
Atlantic salmon in the U.S. aquaculture industry has increased, 
aquaculture escapees continue to be detected in the wild, and salmon 
habitat continues to be threatened by water withdrawal and 
sedimentation. If this proposed listing is finalized, the protective 
measures of the ESA will extend to the Gulf of Maine DPS of Atlantic 
salmon, and a recovery plan will be prepared and implemented.

DATES: Comments on this proposal and on the July 1999 Status Review 
announced in the October 19, 1999, Federal Register (64 FR 56297) must 
be received by February 15, 2000. A public hearing will be held at 6:00 
pm on January 19, 2000.

ADDRESSES: Send all comments and materials concerning this proposed 
rule and the 1999 Status Review to the Chief, Division of Endangered 
Species, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, 
Hadley, Massachusetts 01035, or the Endangered Species Program 
Coordinator, National Marine Fisheries Service, 1 Blackburn Drive, 
Gloucester, Massachusetts 01930. The public hearing location is in the 
cafeteria of Ellsworth Middle School, 20 Forrest Avenue, Ellsworth, 
Maine 04605. The 1999 Status Review may be obtained by contacting 
either of the above individuals or downloaded from the following site: 
http://news.fws.gov/salmon/asalmon.html. Please note that electronic 
mail or internet site comments will not be accepted.

FOR FURTHER INFORMATION CONTACT: Mary Colligan, NMFS, at the address 
above (978-281-9116) or Paul Nickerson, FWS, at the address above (413-
253-8615).

SUPPLEMENTARY INFORMATION:

Background

    In 1991, the FWS designated Atlantic salmon in five rivers in 
``Downeast'' Maine (the Narraguagus, Pleasant, Machias, East Machias 
and Dennys Rivers) as Category 2 candidate species under the ESA (56 FR 
58804, November 21, 1991). This designation simply indicated that the 
FWS had determined that listing was possibly appropriate but that 
further biological information was needed to support a proposed rule to 
list the species. The FWS then began working more vigorously with the 
NMFS as well as with the State of Maine and private agencies to reverse 
the decline in salmon abundance. During that same period, the NMFS was 
conducting an exhaustive 5-year study of the Narraguagus River, 
demonstrating that spawning and nursery habitat appeared suitable and 
should produce more fish given adequate escapement levels.
    The Services received identical petitions in October and November 
of 1993 to list the Atlantic salmon (Salmo salar) throughout its 
historical range in the contiguous United States under the ESA. The 
Services found on January 20, 1994 (59 FR 3067), that the petition 
presented substantial scientific

[[Page 62628]]

information indicating that a listing may be warranted. A biological 
review team (BRT) consisting of three members from each Service was 
appointed to review the petition and prepare a formal status review.
    The Services completed a status review of the species in January 
1995 and concluded that the available biological evidence indicated 
that the species described in the petition, that is, Atlantic salmon 
throughout its range in the United States, did not meet the definition 
of ``species'' under the ESA. Therefore, the Services concluded that 
the petitioned action to list Atlantic salmon throughout its historic 
U.S. range was not warranted (60 FR 14410, March 17, 1995). In the same 
notice, the Services determined that a DPS that consists of populations 
in seven rivers (the Dennys, East Machias, Machias, Pleasant, 
Narraguagus, Ducktrap and Sheepscot Rivers) was in danger of 
extinction. On September 29, 1995, after reviewing the information in 
the status review, as well as State and foreign efforts to protect the 
species, the Services proposed to list the seven rivers DPS as a 
threatened species under the ESA (60 FR 50530, September 29, 1995). The 
proposed rule contained a special rule under section 4(d) of the ESA, 
which would have allowed for a State plan, approved by the Services, to 
define the manner in which certain activities could be conducted 
without violating the ESA.
    Immediately following the publication of the proposed rule, the 
Governor of Maine created a Task Force to draft a conservation plan for 
the species. The Task Force had subgroups focusing on agriculture, 
aquaculture, forestry, and recreational fishing. The Task Force created 
a draft conservation plan and held public hearings to gain additional 
input from the public. In March of 1997, the State submitted its 
Atlantic Salmon Conservation Plan for Seven Maine Rivers (Conservation 
Plan) to the Services.
    Subsequent to the publication of the listing proposal, the Services 
received several requests for public hearings but were unable to 
conduct them because of Federal furloughs and legislative and funding 
restrictions. Once the restrictions were lifted in 1996, three hearings 
on the proposed rule were held in Augusta, Ellsworth, and Machias, 
Maine, on September 17, 18 and 19, 1996, respectively.
    On May 23, 1997, the Services reopened the public comment period on 
the proposed listing rule for 30 days to solicit public input on the 
Conservation Plan (62 FR 28413). The intent was to ensure that the 
public had opportunity for input during all phases of the listing 
process. The Conservation Plan represented new information not 
previously considered.
    The Services reviewed information submitted from the public and 
current information on population levels and, on December 18, 1997, 
withdrew the proposed rule to list the seven rivers DPS of Atlantic 
salmon as threatened under the ESA (62 FR 66325). In that withdrawal 
notice, the Services redefined the species under analysis as the Gulf 
of Maine DPS to acknowledge the possibility that other populations of 
Atlantic salmon could be added to the DPS if they were found to be 
naturally reproducing and to have historical, river-specific 
characteristics. The Services stated that they had considered the 
current status of the Gulf of Maine DPS of Atlantic salmon and had 
taken into account those efforts being made to protect the species, 
including development of the Conservation Plan, the extent of 
implementation of the Conservation Plan to date, private and Federal 
actions to restore the species, and international efforts to control 
ocean harvest through the North Atlantic Salmon Conservation 
Organization (NASCO). Based on this review, the Services determined 
that the Gulf of Maine DPS was not likely to become endangered in the 
foreseeable future and that, therefore, an ESA listing was not 
warranted.
    In the 1997 withdrawal notice, the Services outlined three 
circumstances under which the process for listing the Gulf of Maine DPS 
of Atlantic salmon under the ESA would be reinitiated: (1) An emergency 
which poses a significant risk to the well-being of the Gulf of Maine 
DPS is identified and not immediately and adequately addressed; (2) the 
biological status of the Gulf of Maine DPS is such that the DPS is in 
danger of extinction throughout all or a significant portion of its 
range; or (3) the biological status of the Gulf of Maine DPS is such 
that the DPS is likely to become endangered in the foreseeable future 
throughout all or a significant portion of its range.
    The Services received the State of Maine 1998 Annual Progress 
Report on implementation of the Conservation Plan in January 1999. This 
first annual report was made available for public review and comment on 
January 20, 1999, and the comment period remained open until March 8, 
1999 (64 FR 3067). The Services reviewed all comments submitted by the 
public and provided a summary of those, along with their own comments, 
to the State of Maine in March 1999. The Services received a response 
to the comments from the State of Maine on April 13, 1999.
    In order to conduct a comprehensive review of the status of the 
species and protective measures in place, the BRT was reconvened to 
update the January 1995 Status Review for Atlantic salmon. Significant 
developments since the 1995 status review and the 1997 determination 
include the following: detection of Salmon Swimbladder Sarcoma Virus 
(SSSV) which resulted in destruction of an entire broodstock for the 
Pleasant River and the destruction of excess broodstock for other 
rivers; continued decline in numbers of documented adult returns; 
finding that juvenile survival was previously overestimated; 
documentation of high mortality of outmigrating smolts; continuation of 
a directed catch and release fishery despite scientific advice to the 
contrary; current absence of water use management plans and State 
regulations for all water withdrawals from the rivers in which the DPS 
is or may be present; continued documented escapement from aquaculture 
marine cages and freshwater hatcheries and the apparent increase in the 
prevalence of reproductively viable non-North American strains of 
Atlantic salmon; and the detection and spread of Infectious Salmon 
Anemia (ISA) in Canada.
    The 1999 Status Review was made available on October 19, 1999 (64 
FR 56297). The findings of the 1999 Status Review have been accepted by 
the Services and are summarized below. The Status Review contains a 
more comprehensive discussion and complete literature citations for the 
information summarized in this proposed rule.

Consideration as a ``species'' under the Endangered Species Act

    The ESA defines species as ``any species of fish or wildlife or 
plants, and any distinct population segment [DPS] of any species of 
vertebrate fish or wildlife that interbreeds when mature.'' 16 U.S.C. 
1532(15). This definition allows for the recognition of distinct 
population segments at levels below taxonomically recognized species or 
subspecies. To qualify as a DPS, a population (or group of populations) 
of indigenous Atlantic salmon must be reproductively isolated from 
conspecific populations and must be biologically significant. 
Anadromous salmonines have a strong homing capability that fosters the 
formation of discrete populations (stocks) exhibiting important 
adaptations to local riverine ecosystems.
    On February 7, 1996, the Services published a policy (61 FR 4722) 
to

[[Page 62629]]

clarify the phrase ``distinct population segment'' for the purposes of 
listing, delisting and reclassifying species under the ESA. This policy 
(DPS Policy) identifies three elements to be considered in a decision 
regarding the status of a possible DPS as endangered or threatened 
under the ESA: (1) The discreteness of the population segment in 
relation to the remainder of the species or subspecies to which it 
belongs; (2) the significance of the population segment to the species 
or subspecies to which it belongs; and (3) the conservation status of 
the population segment in relation to ESA listing standards. The 
conservation status for of this DPS will be discussed in relation to 
the ESA listing factors.
    According to the DPS Policy, a population segment may be considered 
discrete if it satisfies one of the following two conditions: (1) it is 
markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors; or (2) it is delimited by international governmental 
boundaries across which there is a significant difference in control of 
exploitation, management of habitat, or conservation status.
    The Services examined genetic, life history, biogeographic, and 
environmental information in evaluating Atlantic salmon throughout its 
U.S. range. The Services used zoogeographic maps of boundaries between 
areas that would likely have different selective pressures for Atlantic 
salmon populations and substantial differences in riverine-marine 
ecosystem structure and function. Key elements to these determinations 
were: (1) spatial arrangements of river systems that create isolation, 
and (2) watershed location within ecological provinces and subregions 
that affect the productivity and ecology of riverine-marine ecosystem 
complexes. Using zoogeographic maps, the Services determined that 
historic U.S. salmon populations were minimally comprised of the 
following three DPSs: the Long Island Sound DPS, the Central New 
England DPS, and the Gulf of Maine DPS. As detailed in the 1999 Status 
Review, the Long Island Sound DPS and the Central New England DPS have 
been extirpated.
    The Gulf of Maine DPS includes all naturally reproducing wild 
populations of Atlantic salmon having historical, river-specific 
characteristics found in a range north of and including tributaries of 
the lower Kennebec River to, but not including, the mouth of the St. 
Croix River at the US-Canada border. The DPS includes both early- and 
late-run Atlantic salmon (Baum, 1997). Historically, the Androscoggin 
River delimited the range of the DPS to the south, but populations 
south of the Kennebec River have been extirpated. The population in the 
mainstem Penobscot River, which is within the DPS range, is not 
included in the DPS at this time because of the lack of a comprehensive 
genetic survey of this stock that includes both hatchery and wild 
returns. It would be premature to determine the status of the Penobscot 
population in relationship to the Gulf of Maine DPS without 
comprehensive genetic data. Sample collections, genetic analyses, and 
biological information are still being collected by the FWS and will be 
analyzed to make a final determination of the status of the Penobscot 
River population relative to the coastal Atlantic salmon populations of 
the Gulf of Maine DPS. Samples were collected in October 1999, and 
analyses of these data should be completed in early 2000. The 
tributaries of the lower Penobscot estuary (downstream of the Veazie 
Dam) are considered within the DPS range, but the existence of 
naturally reproducing Atlantic salmon with historical river-specific 
characteristics must be confirmed before additional tributary 
populations can be included in the DPS (the population in Cove Brook, 
tributary to the lower Penobscot River, is already included in this 
DPS).
    There are at least eight rivers in the DPS range that still contain 
functioning wild salmon populations, although at substantially reduced 
abundance levels (Baum, 1997; King et al., 1999). The core of these 
remnant populations is located in the Dennys, East Machias, Machias, 
Pleasant, Narraguagus, Ducktrap, and Sheepscot Rivers. These river 
systems contain the greatest amount of historic river habitat currently 
accessible, averaging greater than 300,000 square meters (sq. m) of 
juvenile production habitat (Baum, 1997). The smallest of these seven 
populations is the Ducktrap River with 80,000 sq. m of juvenile 
production habitat. Recent survey work also indicates that a naturally 
reproducing population that is genetically distinct (alleles only found 
in that population) remains in Cove Brook (Buckley, 1999; King et al., 
1999). This information demonstrates that Atlantic salmon can retain 
unique genetic material in a relatively small drainage since juvenile 
habitat area in Cove Brook is estimated at only 23,500 sq. m (Ed Baum, 
Atlantic Salmon Authority (ASA), pers. comm., 1999). Surveys have also 
identified juvenile Atlantic salmon to be present in other river 
systems which have relatively limited juvenile production habitat such 
as Bond, Togus, Passagassawaukeag, Eaton, Felts, South Branch Marsh, 
Kenduskeag, and Pennamaquan Rivers (Buckley, 1999). Results from 
genetic studies of fish from these and any other occupied rivers within 
the DPS range will be used to determine the appropriateness of adding 
these populations to the DPS.

Discreteness of the Gulf of Maine DPS of Atlantic Salmon

    To examine whether the Gulf of Maine DPS of Atlantic salmon is 
separate from other populations, the Services examined three major 
indicators: straying of spawning fish from their natal river; 
recolonization rates outside of the range of the DPS; and genetic 
differences observed throughout the range of Atlantic salmon. Available 
information supports the hypothesis that most straying documented for 
U.S. Atlantic salmon stocks is limited to neighboring rivers within the 
DPS range. North American Atlantic salmon stocks have been found to be 
distinct from European stocks using both electrophoretic and 
mitochondrial DNA analyses (Stahl, 1987; Bermingham et al., 1991; 
Taggart et al., 1996). Recent data from King et al. (1999) further 
support the differences between North American and European stocks, and 
these scientists have provided analytical methods to distinguish 
continent-of-origin with 100 percent accuracy. In all these studies, 
genetic differences are strongly geographically patterned and, while 
variation is low compared to freshwater fish, it is consistent with 
results from other anadromous species (King et al., 1999). The genetic 
differences between North American and European Atlantic salmon are 
substantial enough that introgression of these stocks (the introduction 
of a gene from one to the other) is likely to decrease the genetic 
suitability of the wild stocks for survival in their natal habitat 
(King et al., 1999). Separateness of the Gulf of Maine DPS and other 
Atlantic salmon populations outside the DPS is strongly supported by 
the following: (1) Persistence of these populations, (2) geographic 
segregation; (3) limited stocking from outside the DPS; and (4) current 
genetic analyses. The Services conclude that there are adequate genetic 
and demographic data to demonstrate that an ecologically important 
separation exists between the Gulf of Maine DPS and other populations 
to the north; all naturally occurring populations south of the DPS 
range have been extirpated.
    The Services also conclude that while it is unlikely that any U.S. 
Atlantic

[[Page 62630]]

salmon populations exist in a genetically pure native form, present 
populations are descendants of these aboriginal stocks, and their 
continued presence in indigenous habitat indicates that important 
heritable local adaptations still exist. The conservation of the 
populations of the Gulf of Maine DPS is essential because these 
Atlantic salmon represent the remaining genetic legacy of ancestral 
populations that were locally adapted to the rivers and streams of the 
region. The Gulf of Maine DPS represents the remaining genetic legacy 
of a U.S. Atlantic salmon resource that formerly extended from the 
Housatonic River to the headwaters of the Aroostook River.
    The northern range of the Gulf of Maine DPS is delimited not only 
by the natural zoogeographical constraints on local adaptations but by 
an international boundary. There are substantial differences in the 
control of exploitation, management of habitat, conservation status, 
and regulatory mechanisms of Atlantic salmon between the United States 
and Canada (May, 1993; Baum, 1997). Management and conservation 
programs in the United States and Canada have similar goals, but 
differences in legislation and policy support the use of the United 
States/Canada international boundary as a measure of discreteness for 
the purposes of evaluating stock status. Based on the information 
available, the Services conclude that the Gulf of Maine DPS of Atlantic 
salmon satisfies both criteria for discreteness as outlined in the 
Services' DPS Policy. Only one of these is needed to conclude that the 
DPS is discrete from other populations.

Significance of the Gulf of Maine DPS of Atlantic Salmon

    The second element of the Services' DPS Policy is the consideration 
of the population segment's biological and ecological significance to 
the taxon to which it belongs. This consideration may include, but is 
not limited to, the following: persistence of the discrete population 
segment in an ecological setting unusual or unique for the taxon; 
evidence that the loss of the discrete population segment would result 
in a significant gap in the range of a taxon; evidence that the 
discrete population segment represents the only surviving natural 
occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historic range; or evidence that the 
discrete population segment differs markedly from other populations of 
the species in its genetic characteristics.
    Riverine habitat occupied by the Gulf of Maine DPS of Atlantic 
salmon is unique in that it is at the southern extent of the North 
American range of Atlantic salmon (Saunders, 1981; Baum, 1997). To 
survive at the extreme southern range of the species, U.S. Atlantic 
salmon populations had to adapt to distinct physical and environmental 
conditions (Saunders, 1981). The Services conclude that there is 
substantial evidence that remnant populations of the Gulf of Maine DPS 
have persisted in their native range. The loss of this DPS would result 
in a significant gap in the range of this taxon, moving the range of 
this population an additional degree of latitude to the north. The loss 
of these populations would restrict the natural range of Atlantic 
salmon to the region above the 45th parallel and beyond the borders of 
the United States.
    Taking into account all of the foregoing factors, the Services 
determined that differences in life history characteristics 
historically contributed to the distinctness of the Gulf of Maine DPS. 
Remnant stocks have maintained the most characteristics of these 
factors: smoltification at a mean age of 2 and predominant adult 
returns as 2 sea winter (SW) fish (age 4). Since the proportion of 2SW 
fish in an Atlantic salmon stock has a documented genetic basis (Glebe 
and Saunders, 1986; Ritter et al., 1986; Hutchings and Jones, 1998), 
the Services conclude that the DPS has unique life history 
characteristics that have a heritable basis. The Services conclude that 
both environmental and genetic factors make the Gulf of Maine DPS 
markedly different from other populations of Atlantic salmon in their 
life history and ecology.
    The 1999 Status Review concluded that most of the recolonization of 
the Gulf of Maine DPS stocks in individual rivers was achieved 
naturally through processes of recolonization from within river (below 
impoundment) and within DPS (neighboring river) refugia. The fact that 
artificial selection created in hatchery environments has had some 
influence upon the present genome of the Gulf of Maine DPS can not be 
totally discounted. Given our current understanding of the genetic 
composition of these stocks (Bentzen and Wright, 1992; Kornfield, 1994; 
King et al., 1999), the documented persistence of native stocks 
(Kendall, 1935; Baum, 1997), and the fact that most of the hatchery 
stocking influences were internal to the Gulf of Maine DPS range 
including the Penobscot (Baum, 1997), the Services conclude that the 
influence of hatchery fish upon the DPS has not been sufficient to 
completely or substantially introgress with the remnant populations and 
genomes of the Gulf of Maine DPS. The Services believe that there are 
components of an important genetic legacy remaining in these 
populations, and the loss of these populations would negatively affect 
the genetic resources of Atlantic salmon as a whole because it would 
contribute to further range reduction. The genetic resources of these 
most southerly stocks may be vitally important to the species' future 
survival.

Description of the Habitat within the Gulf of Maine DPS

    The Gulf of Maine DPS encompasses all naturally reproducing remnant 
populations of Atlantic salmon from the Kennebec River downstream of 
Edwards Dam northward to the mouth of the St. Croix River. The 
watershed structure, available Atlantic salmon habitat, and abundance 
of Atlantic salmon stocks at various life stages are best known for the 
seven largest rivers with extant Atlantic salmon populations. The 
habitat and population ecology of populations in smaller rivers is less 
well known with the possible exception of Cove Brook (Meister, 1962; 
Baum, 1997). This section focuses on the eight core rivers where the 
most comprehensive and quantitative information is available.
    The Dennys River originates in Lake Meddybemps in the town of 
Meddybemps, Washington County, Maine. The drainage area of the Dennys 
River is 34,188 hectares (ha), and it flows a distance of 32 kilometers 
(km) to Cobscook Bay. In addition to Lake Meddybemps, Cathance and 
Little Cathance Lakes are located in the headwaters of the drainage. 
The confluence of Cathance Stream, a major tributary, is located 
approximately 1.0 km upstream from tidewater. The upper reach of the 
river, from Lake Meddybemps to the falls, is flat and slow moving. The 
reach from the falls to Cathance Stream has flat water stretches and a 
few riffle areas. The estuary is large, has numerous coves and bays, 
and numerous peninsulas and islands between Dennysville and the ocean 
(Beland et al., 1982). Lands within the drainage are sparsely populated 
and managed for the growth and harvest of forest products and lowbush 
blueberries. Water quality is generally good, but logging throughout 
the area has resulted in an abundance of woody debris in some reaches 
of the river.
    The East Machias River originates at Pocomoonshine Lake in the 
towns of Princeton and Alexander in Washington County, Maine. The river 
has drainage of 65,009 ha that contains 26 lakes and ponds, and over 50 
named tributaries. It

[[Page 62631]]

flows a distance of 59.5 km to Machias Bay. The watershed is sparsely 
settled and forested with a mix of spruce and fir. Organic materials 
from wetlands and bordering lakes and ponds discolor the waters of the 
river. The East Machias and Machias Rivers enter the same estuary, and 
the lower 3.2 km of the estuary is common to both rivers (Dube and 
Fletcher, 1982).
    The Machias River drains an area of over 119,140 ha. It originates 
from the five Machias lakes and flows 98 km to Machias Bay. The 
watershed is located in Washington and Hancock Counties, and more than 
160 tributaries and 25 lakes and ponds exist in the system. A natural 
gorge at the mouth of the river in the town of Machias may impede the 
passage of salmon during periods of extreme high flow. The gorge is 
being studied by the State of Maine to determine if passage can be 
improved as part of State rehabilitation efforts for Atlantic salmon in 
that river. The Machias River headwaters are characterized by rolling 
hills with forested stream valleys and a number of barren areas, with 
ground cover typically consisting of shrubs. The lower portion of the 
basin is composed of large forested areas (Fletcher and Meister, 1982). 
The Machias and East Machias Rivers share a common estuary. The estuary 
is elongate, approximately 9.6 km in length, but relatively narrow.
    The Pleasant River watershed in Washington County originates above 
Pleasant River Lake in Beddington and drains an area of 22,015 ha. It 
flows 45 km to the head of tide in the town of Columbia Falls. There 
are few lakes in the watershed, and the tributaries are a network of 
small feeder streams with a combined length of 109.4 km (Dube and 
Jordan, 1982). The headwaters are composed mostly of hills and ridges, 
with forests of spruce, fir, and hardwoods. The river water exhibits a 
high degree of red-brown coloration caused by leaching of roots, 
leaves, and other organic materials that originate from extensive peat 
bogs in the drainage. The bogs provide water during dry periods, 
storage during wet periods, and moderate discharge in the basin (Dube 
and Jordan, 1982).
    The Narraguagus River originates at Eagle Lake, flows through 
Washington and Hancock Counties, and drains an area of approximately 
60,088 ha. The mainstem drops a total of 124 m over a distance of 69 km 
to the head of tide in Cherryfield. The West Branch of the Narraguagus, 
a major tributary, has a drainage area of approximately 18,100 ha and 
reaches the mainstem 3.2 km upstream from the head of tide. There are 
more than 402 km of streams and rivers in the drainage and about 30 
lakes and ponds, with three of the lakes exceeding 162 ha in size (Baum 
and Jordan, 1982). The topography of the headwaters consists of rocky 
hills and ridges, and forests that are primarily a mix of spruce and 
fir interspersed with hardwoods. There are large blueberry barrens in 
the watershed, and lands are primarily managed for berry production and 
forest products.
    Cove Brook originates as a series of springs and hillside drainages 
and flows northeast into the Penobscot River estuary in Penobscot 
County. The watershed is approximately 2,460 ha and is composed of 16.6 
km of stream and two permanent tributaries. The lower reaches of the 
river have coldwater fish habitat while the upper reaches are warm, 
shallow marshlands (Meister, 1962).
    The Ducktrap River is relatively small compared to other Atlantic 
salmon rivers in Maine. It originates in Tilden Pond in Belmont 
Township, Waldo County, has a drainage area of approximately 9,324 ha, 
and flows for a distance of 10.7 km to Lincolnville where it enters 
Penobscot Bay. There are four ponds in the drainage and two major 
tributaries. The two tributaries, Kendall and Black Brooks, enter the 
mainstem in the lower portion of the drainage. The surrounding area is 
sparsely settled, and former agricultural lands are either overgrown or 
reverting to early successional growth. The drainage is rugged and 
hilly, and in the lower portion the riverbanks rise sharply from the 
stream to heights that exceed 30.5 m (Bryant, 1956).
    The Sheepscot River originates as a series of hillside springs in 
West Montville, Waldo County, and flows a distance of 54.7 km to the 
estuary near Alna. The West Branch of the river originates at Branch 
Pond in Kennebec County, flows a distance of 24 km and enters the 
mainstem in Sheepscot. The Dyer River, the largest of the tributaries, 
has a length of 27.3 km and flows to the estuary. The Sheepscot River 
drainage includes 24 lakes and ponds and encompasses an area of 59,052 
ha. The upper portion of the Sheepscot River estuary resembles a fjord, 
whereas the lower portion is typical of other Gulf of Maine DPS 
watersheds, with mud flats and salt marsh covering large areas. 
Sheepscot Falls, located in the upper estuary, is an area composed of 
ledge, and the site of a former dam (Meister, 1982). Land within the 
watershed was once intensively farmed, but the majority is now 
forested. Deposited glacial material provides a source of boulder, 
rubble, and cobble in the drainage.

Population Abundance of the Gulf of Maine DPS

    Species abundance is a critical concern in assessing the population 
status of a species under the ESA. An examination of current abundance 
compared to historical levels and analysis of recent trends were used 
to determine the status of Atlantic salmon of the Gulf of Maine DPS. 
Documented returns of adult Atlantic salmon to the DPS rivers within 
the DPS range surveyed remain low relative to conservation escapement 
goals (U.S. Atlantic Salmon Assessment Committee (USASAC), 1999). Total 
documented natural (wild & stocked fry) Gulf of Maine DPS spawner 
returns to the rivers of the Gulf of Maine DPS range for the past 5 
years are: 1995 (83); 1996 (74); 1997 (35); 1998 (23); 1999 (29) 
(preliminary data). It must be noted that counts are only provided for 
rivers with trapping facilities and only for times that those 
facilities are operational and therefore do not represent a complete 
count of returns of the DPS. The pre-fishery abundance index of North 
American salmon stocks that migrate to the Greenland region of the 
North Atlantic Ocean continues to be low in spite of apparently 
improving marine habitat conditions as reflected by ocean surface 
temperature data in the past few years (North Atlantic Salmon Work 
Group (NASWG), 1999). The apparent non-response to improving marine 
habitat to date is believed to be due, in part, to generally depressed 
spawning populations in North American home rivers and the resultant 
low number of juvenile salmon entering the ocean. Based on estimates of 
the pre-fishery abundance of North American salmon stocks in the West 
Greenland Sea provided by the International Council for the Exploration 
of the Sea (ICES), relatively low adult returns should be anticipated 
in many North American salmon rivers again in 1999 (NASWG, 1999).
    Generally speaking, densities of young-of-the-year salmon (0+) and 
parr (1+ and 2+) remain low relative to potential carrying capacity. 
These depressed juvenile abundances are a direct result of low adult 
returns in recent years. A total parr population estimate is not 
available for the entire DPS.
    However, the Atlantic Salmon Commission (ASC) and NMFS have 
conducted a basin-wide parr population study on the Narraguagus River 
since 1991. The 1997 parr population estimate in the Narraguagus River 
was the highest estimate in the time series of data. In 1997, the 
basin-wide population

[[Page 62632]]

estimate of 1+ and older parr in the Narraguagus was 26,682, an 
increase of 113 percent from the 1996 estimate (Beland and Dube, 1999). 
The basin-wide population of age 1+ and older parr on the Narraguagus 
River in 1998 was approximately 25,382, a 5 percent decrease from the 
1997 high (USASAC, 1999).
    The NMFS and the ASC in addition have been conducting a study on 
the Narraguagus River monitoring outmigration of smolts by documenting 
timing of migration, survival, length, weight and number of smolts from 
1996 through 1999 (Kocik et al., 1998a). These studies suggest that 
there is a 99 percent probability that overwinter freshwater survival 
from 1+ and older parr to smolt was less than 30 percent, the minimum 
estimate cited in previous studies. Survival estimates in all years are 
substantially lower than estimates previously reported in scientific 
literature and previously accepted estimates for this region (Bley, 
1987; Bley and Moring, 1988; Baum, 1997; Kocik et al., 1999). Thus 
freshwater production is below rates for full freshwater production. 
These substantially lower survival rates could be negatively impacting 
population recovery. It is unknown whether these overwinter freshwater 
survival rates are typical for the Narraguagus River on a long-term 
basis or if they are comparable to other rivers within the Gulf of 
Maine DPS range. NMFS and ASC researchers illustrated that nearly 130 
percent increases in 1+ and older parr production have resulted in less 
than a 4 percent increase in smolt production. Additionally, these 
researchers found that approximately half of these emigrating smolts do 
not reach the Gulf of Maine. These preliminary data led the Services to 
conclude that low overwinter and emigration survival rates may be 
impeding the recovery of these populations and are an issue of concern.
    Given the data reviewed in this section, the Services conclude that 
naturally reproducing Atlantic salmon populations of the Gulf of Maine 
DPS are at extremely low levels of abundance. This conclusion is based 
principally on the facts that spawner abundance is below 10 percent of 
the number required to maximize juvenile production, juvenile abundance 
indices are lower than historical counts, and freshwater smolt 
production is less than a third of estimated capacity.

Conservation Hatchery Programs

    Broodstock for the Dennys, East Machias, Machias, Narraguagus and 
Sheepscot Rivers are held at Craig Brook National Fish Hatchery 
(CBNFH). These broodstock should increase the effective population size 
for these rivers (wild and captive) and provide a buffer against 
extinction. Parr were collected from the Pleasant River and were 
transferred to the North Attleboro National Fish Hatchery. These fish 
were later destroyed due to the presence of a newly discovered Atlantic 
salmon disease-SSSV.
    The response of Atlantic salmon populations to supplemental 
stocking programs can be partially evaluated based on juvenile 
production, but adult returns are the ultimate evaluation stage. It 
takes about 4 years from initial stocking to evaluate population level 
responses since there is a lag between removal of parr for broodstock 
development, the subsequent stocking of their offspring, juvenile 
assessments, and adult returns. The first opportunities to make a 
comprehensive evaluation will be when adults of fry-stocked origin (as 
2 SW fish) potentially contribute to the 1999 spawning run that ends in 
October. The 1999 returns are from the moderately high fry stocking 
levels of 1995 for the Dennys, Machias, and Narraguagus Rivers. Because 
stocking began in 1996 in some rivers, it will not be known until 2001 
if fry-stocked fish will contribute a substantial element to all five 
rivers with river-specific stocking programs.

Summary of Factors Affecting the Species

    Section 4 of the ESA (16 U.S.C. 1533) and regulations promulgated 
to implement the listing provisions of the ESA (50 CFR part 424) set 
forth the procedures for adding species to the Federal list. Section 4 
also requires that listing determinations be based solely on the best 
scientific and commercial data available, without consideration of 
possible economic or other impacts of such determinations. A species 
may be determined to be endangered or threatened due to one or more of 
the five factors described in section 4(a)(1) of the ESA. These factors 
and their application to the Gulf of Maine DPS of Atlantic salmon are 
described below.

(a) The Present or Threatened Destruction, Modification, or Curtailment 
of Habitat or Range

     Demonstrated and potential impacts to Atlantic salmon habitat 
within the DPS watersheds result from the following causes: (1) Water 
extraction; (2) sedimentation; (3) obstructions to passage including 
those caused by beaver and debris dams and poorly designed road 
crossings; (4) input of nutrients; (5) chronic exposure to 
insecticides, herbicides, fungicides, and pesticides (in particular, 
those used to control spruce budworm); (6) elevated water temperatures 
from processing water discharges; and (7) removal of vegetation along 
streambanks. The most obvious and immediate threat is posed by water 
extraction on some rivers within the DPS range, as it has the potential 
to expose or reduce salmon habitat.
    The threat of blocked passage due to debris or beaver dams is an 
annual event. The ASC, Project SHARE (Salmon Habitat and River 
Enhancement), and the Watershed Councils have demonstrated an ability 
to annually remove or reduce that threat. Impacts from chronic exposure 
to chemical residues in the water are a potential threat and one that 
warrants further investigation. In particular, potential impacts during 
the process of smoltification should be examined. Sedimentation from a 
variety of sources also warrants closer review as it may be altering 
habitat and rendering it incapable of supporting Atlantic salmon. Water 
temperatures in the vicinity of processing water discharges should be 
monitored to determine if they make habitat unsuitable for Atlantic 
salmon. Permit exemptions for agriculture practices should be evaluated 
to determine if they provide adequate protection of riparian habitat.
    All of these potential impacts to Atlantic salmon habitat need to 
be examined in more detail for their individual and cumulative impacts. 
Study results on the Narraguagus River demonstrate that full freshwater 
production is not being achieved despite fry stocking efforts. These 
results could mean that one or a combination of factors within the 
rivers is negatively impacting freshwater habitat for Atlantic salmon. 
The relationship between these factors and freshwater production and 
survival of salmon needs to be studied in detail so that cause and 
effect connections can be determined or ruled out. Corrective actions 
can then be implemented as appropriate to enhance recovery.
    Although there does not appear to be one particular habitat issue 
which poses a significant threat by itself, the cumulative impacts from 
habitat degradation discussed above may reduce habitat quality and 
limit habitat quantity available to Gulf of Maine DPS salmon at various 
stages in their life history within freshwater. Given current low 
levels of abundance, it is critical that efforts be undertaken to 
better understand, avoid, minimize and mitigate these factors.

[[Page 62633]]

(b) Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Atlantic salmon smolts leave their natal rivers in New England in 
the spring and begin their extensive ocean migration. The migration 
brings them into Newfoundland waters in the spring, along the Labrador 
and Greenland coasts in summer, and on what is believed to be a return 
migration back into Newfoundland waters by early fall. After their 
first winter in the ocean, North American Atlantic salmon stocks have 
historically been the target of marine fisheries in the Labrador Sea-
West Greenland and Atlantic Canada regions (Moller Jensen, 1986; 
O'Connell et al., 1992). To put the effects of alternate harvest levels 
into perspective, the combined harvest of 1 SW Atlantic salmon of U.S. 
origin in the fisheries of West Greenland and Canada averaged 5,060 
fish and returns to U.S. rivers averaged 2,884 fish from 1968 to 1989 
(International Council for the Exploration of the Sea (ICES)-NASWG, 
1993). To indicate the extent of exploitation, the ICES-NASWG 
calculated the potential return to these rivers in the absence of the 
West Greenland and Canada fisheries. The ICES-NASWG estimates that 
returns of spawners to U.S. rivers could have potentially been 
increased by 2.5 times in the absence of West Greenland and Labrador 
fisheries (ICES-NASWG, 1993).
    The United States joined with other North Atlantic nations in 1982 
to form NASCO for the purpose of managing salmon through a cooperative 
program of conservation, restoration and enhancement of North Atlantic 
stocks. NASCO achieves its goals by controlling the exploitation by one 
member nation of Atlantic salmon that originated within the territory 
of another member nation. The United States' interest in NASCO stemmed 
from its desire to ensure that interception fisheries of U.S. origin 
fish did not compromise the long-term commitment by the states and 
federal government to rehabilitate and restore New England Atlantic 
salmon stocks. Over the past decade, only 90,000 wild 2SW Atlantic 
salmon (annual average) have returned to spawn in U.S. (3 percent) and 
Canadian (97 percent) rivers. Fishery managers believe that the annual 
number of returning spawners needed to sustain these stocks is 184,000 
(ICES-NASWG, 1999).
    In 1999, as in 1998, U.S. Atlantic salmon were not subjected to a 
commercial fishery during their marine migration. A minor interception 
fishery was conducted off West Greenland, but it was limited to the 
needs for internal Greenland consumptive use only. On February 5, 1999, 
the Department of Fisheries and Oceans, Canada, announced adoption of 
the precautionary approach as evidenced by a continued closure of the 
commercial fishery for both Newfoundland and Labrador for an additional 
3 years. (Further restrictions on Canadian recreational fisheries were 
also announced, including the requirement to only use barbless hooks 
for angling in Newfoundland and Labrador, and coordination with 
Watershed Management groups.)
    In October 1987, the New England Fishery Management Council 
prepared a Fishery Management Plan (FMP) to establish U.S. management 
authority over all Atlantic salmon of U.S. origin pursuant to the 
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1801 et seq. The FMP was intended to safeguard U.S. Atlantic salmon, 
protect the U.S. investment in the State/Federal restoration program, 
and strengthen the U.S. position in international negotiations. The FMP 
prohibits possession of Atlantic salmon in the Exclusive Economic Zone 
(EEZ).
    Starting in the 1980s, as runs decreased, the Maine Atlantic Sea 
Run Salmon Commission imposed increasingly restrictive regulations on 
the recreational harvesting of Atlantic salmon in Maine. The allowable 
annual harvest per fisherman was reduced by the State from ten salmon 
in the 1980s to one grilse in 1994. In 1995, regulations were 
promulgated to allow only catch and release fishing for Atlantic salmon 
in Maine, closing the last remaining recreational harvest opportunities 
for sea run Atlantic salmon in the United States. From the 1960s 
through the early 1980s, the average exploitation rate in Maine rivers 
has been estimated to range from approximately 20 percent to over 25 
percent of the run (Beland, 1984; Baum, 1997). In retrospect, this 
level of harvest was likely too high, especially in light of the 
extensive intercept commercial harvest at that time. In 1993, the 
documented sport catch of sea-run Atlantic salmon in Maine was 659 
fish, with 152 killed and 507 released (USASAC, 1994). The USASAC 
reported that in 1997 and 1998 there were 33 and 20 fish, respectively, 
caught and released within the range of the DPS. To date, 12 Atlantic 
salmon have been caught and released within the range of the DPS in 
1999.
    Atlantic salmon parr remain vulnerable to harvest by trout anglers, 
and mortality associated with this activity has been documented. Recent 
indications are that poaching activity occurs at fairly low levels on 
Maine rivers. Recent low returns of wild adult salmon to Maine rivers 
highlight the importance of continuing assessment of any source of 
mortality that may pose a risk to the DPS.
    Both commercial and recreational harvest of Atlantic salmon 
historically played a role in the decline of the Gulf of Maine DPS of 
Atlantic salmon. The Canadian commercial fishery in Newfoundland and 
Labrador is under a moratorium for the next 3 years, and the West 
Greenland commercial fishery will continue as an internal use only 
fishery through the 2000 fishing season. Continuation of the internal 
use fishery in Greenland poses a reduced but continuing threat to the 
Gulf of Maine DPS of Atlantic salmon. The best available scientific 
data support the advice of technical experts in Maine that no directed 
recreational catch and release fishery should be carried out given 
existing stock conditions. Continuation of the existing directed catch 
and release fishery poses a threat of mortality or injury to the Gulf 
of Maine DPS of Atlantic salmon. Recreational fishing targeting other 
species also has the potential to result in incidental catch of various 
life stages of Atlantic salmon that could result in their injury or 
death. These fisheries also pose a potential threat to Atlantic salmon. 
The one documented poaching event in 1998 indicates that poaching 
continues to pose a potential threat to Atlantic salmon. Continued 
enforcement efforts and adequate penalties are essential to minimize 
this threat.

(c) Disease or Predation

    Fish diseases have always represented a source of mortality to 
Atlantic salmon in the wild, though the threats of major loss due to 
disease are generally associated with salmon aquaculture. The level of 
threat from disease has remained relatively static until the last 3 
years. Three recent events that have increased our concern for disease 
as a threat to the DPS are: (1) The appearance of ISA virus in 1996 on 
the North American continent within the range of possible exposure of 
migrant DPS salmon; (2) the discovery in 1998 of the retrovirus SSSV 
within the DPS population; and (3) the new information available in 
1999 on the potential impact of coldwater disease (CWD) on salmon.
    Wild parr were taken from the Pleasant River, Maine, in 1995 (180), 
1996 (80), and 1997 (164) and held in isolation at the North Attleboro 
National

[[Page 62634]]

Fish Hatchery and a private hatchery in Deblois, Maine, for the 
purposes of rearing the fish to sexual maturity, spawning them, and 
returning progeny back to the Pleasant River. Mortalities associated 
with tumors in the viscera (particularly the swimbladder) began to 
appear in the salmon at North Attleboro in 1997 and continued in 1998. 
Cornell University scientists identified the causative agent as a 
retrovirus named SSSV that had never been previously documented except 
once in Scotland in the 1970s. Virus-positive fish from North Attleboro 
were moved to a quarantine facility at the USGS BRD facility in 
Leetown, West Virginia, to obtain detailed information about the virus.
    Pleasant River fish at the Deblois Hatchery were also found to be 
positive for the virus, though no disease or mortality occurred. 
Further testing of wild salmon held as broodstock at the Craig Brook 
NFH showed that the virus was present in carrier state in 8 individuals 
of over 500 tested. Some of these individuals had been in captivity for 
several years, and others were only recently captured and held in 
isolation. The implications are that the virus exists at some level in 
wild populations and has been present at least for several years. The 
virus has demonstrated its ability to cause lethal disease at least 
under conditions that existed at one hatchery and therefore must be 
considered as a potential threat. However, its presence in a carrier 
state in two other hatcheries, some for several years, without any 
clinical indication of disease, and the lack of any observation of 
symptoms in wild populations suggest that the threat of disease from 
SSSV is limited. Until future research or experience provides 
additional information, the threat associated with this virus remains 
uncertain.
    The second virus that represents a relatively new threat to the DPS 
is the causative agent of ISA. This virus causes lethal disease in 
maturing salmon held in salt water. Discovered in 1984, it was known 
only in Norway prior to 1996, when it was diagnosed in aquaculture sea 
pens in New Brunswick, Canada. The following year it was found in 
Scotland. Since the completion of the 1999 Status Review, monitoring in 
the Magaguadavic River in New Brunswick by the Atlantic Salmon 
Federation has confirmed both aquaculture escapees and wild fish 
infected with the ISA virus. There is no known control of the disease 
except removal of fish held within 5 km of an infected site. An 
extensive survey of Maine aquaculture operations found no ISA virus 
present within the United States. The New Brunswick Province has taken 
extensive actions to control the spread of the virus, but the affected 
Canadian aquaculture operations are in proximity to U.S. pen sites. 
Thus the virus does represent a potential threat if it becomes 
established in U.S. pens near the rivers and migration routes used by 
the Gulf of Maine DPS of Atlantic salmon.
    CWD, caused by the bacterium Flavobacterium psychrophilum, has 
recently been found to be a potentially serious problem to Atlantic 
salmon in New England waters. New information from ongoing studies by 
the Biological Research Division (BRD) of the U. S. Geological Service 
(USGS) at their Leetown Science Center have shown that the pathogen 
induces pathology and subsequent mortality among juvenile Atlantic 
salmon and that the pathogen is vertically transmitted from carrier 
sea-run adults to offspring via the eggs.
    Predation has always been a factor influencing salmon numbers, but 
under conditions of a healthy population, would not be expected to 
threaten the continued existence of that population. The threat of 
predation on the Gulf of Maine DPS of Atlantic salmon is significant 
today because of the very low numbers of adults returning to spawn and 
the dramatic increases in population levels of some predators. These 
include cormorants, striped bass, and several species of seals. Most 
rivers within the DPS range do not contain dams that delay and 
concentrate salmon smolts and make them more vulnerable to cormorant 
attacks. Also, the recovery of striped bass populations over the past 
decade is concentrated more in rivers south of the DPS range. 
Furthermore, cormorants and striped bass are transitory predators 
impacting migrant juveniles in the lower river and estuarine areas. 
Seals, however, have reached high population levels not reported 
before, and salmon remain vulnerable to seal predation through much of 
their range.

(d) Inadequacy of Existing Regulatory Mechanisms

    A variety of State and Federal statutes and regulations seek to 
address potential threats to Atlantic salmon and their habitat. These 
laws are complemented by international actions under NASCO and many 
interagency agreements and State-Federal cooperative efforts. 
Implementation and enforcement of these laws and regulations could be 
strengthened to further protect Atlantic salmon. The appropriate State 
and Federal agencies have established coordination mechanisms and have 
joined with private industries and landowners in partnerships for the 
protection of Atlantic salmon. These partnerships will be critical to 
the recovery of the species. Existing regulatory mechanisms either lack 
the capacity or have not been implemented adequately to decrease or 
remove the threats to wild Atlantic salmon. The discussion that follows 
will focus on those laws which are not sufficient to deal with threats, 
or, if adequate, are not being applied or enforced. Major threats 
continue to be poor marine survival, water withdrawals, recreational 
fishing mortality, disease, and aquaculture impacts, especially 
interaction with European strain and hybrid (European/North American) 
salmon.
(1) Water Withdrawals
    Maine has made substantial progress in regulating water withdrawal 
for agricultural use. The Land and Water Resource Council and the Land 
Use Regulatory Commission (LURC) must approve requests for withdrawals 
for irrigation, and can curtail withdrawals if water levels go below 
what is considered necessary for the well being of the species. In 1999 
the LURC ruled to limit the amount of water that could be drawn from 
the Pleasant, Narraguagus and Machias Rivers. The State Department of 
Environmental Protection is developing a rule to address withdrawals on 
a state-wide basis. At this point, water withdrawals in unorganized 
towns are not regulated.
(2) Recreational Fishing Mortality
    Maine currently allows catch and release salmon fishing in the DPS 
rivers. The ASC can promulgate regulations governing salmon fishing, 
and in the past its predecessor, the Atlantic Salmon Authority, reduced 
the season by closing it in July and August when water temperatures are 
normally highest and the risk of mortality is higher. In 1998, the 
Maine Atlantic Salmon Technical Advisory Committee advised that there 
should be no directed catch and release fishery for Atlantic salmon. 
Despite that advice, the fishery remains open. However, regulations to 
close the directed fishery have been proposed recently.
(3) Disease
    The European ISA virus has become established in North American 
aquaculture fish in proximity to Atlantic salmon in the DPS. Also, the 
occurrence of a heretofore unknown retrovirus, SSSV, is not yet 
specifically addressed by any regulations. These recent disease 
episodes have impacted the Services' river-specific stocking program in 
that

[[Page 62635]]

Pleasant River broodstock had to be destroyed.
(4) Aquaculture
    The risks inherent in wild stocks interacting with aquaculture 
escapees have increased significantly from 2 years ago when the 
Services believed that certain restrictions on the importation and use 
of foreign salmon stocks were in place and enforced. The Maine State 
law (PL 1991 c381 sub section 2) restricts importing of fish and eggs 
but fails to restrict importing of European milt, thus enabling 
expansion of the use of hybrids between European and North American 
salmon in aquaculture. Also, permit holders have continued to use 
European strain or hybrids in violation of their U.S. Army Corps of 
Engineers permits, which were issued in reliance on applications which 
stated that no European strain or hybrids would be placed in cages.

(e) Other Natural or Manmade Factors Affecting Its Continued Existence

    The Maine Atlantic salmon aquaculture industry is currently 
composed of 12 companies, at 33 sites with a total of 773 cages 
covering 800 leased acres of water. Farms are concentrated in Cobscook 
Bay near Eastport, Maine, but are located as far south as the Sheepscot 
River, although that site currently does not grow Atlantic salmon. The 
industry in Canada, just across the border, is approximately twice the 
size of the Maine industry.
    Atlantic salmon that escape from farms and hatcheries pose a threat 
to native Atlantic salmon populations in coastal Maine rivers. 
Escapement and resultant interactions with native stocks are expected 
to increase given the continued operation of farms and growth of the 
industry under current practices. There is a potential for escaped 
farmed salmon to disrupt redds of wild salmon, compete with wild salmon 
for food and habitat, interbreed with wild salmon, transfer disease or 
parasites to wild salmon, and/or degrade benthic habitat (Clifford, 
1997; Youngson et al., 1993; Webb et al., 1993; Windsor and Hutchinson, 
1990; Saunders, 1991). A comparison study in Canada revealed that 
survival of wild post-smolts moving from Passamaquoddy Bay to the Bay 
of Fundy was inversely related to the density of aquaculture cages 
(DFO, 1999). Finally, there has been recent concern over potential 
interactions when wild adult salmon migrate past closely spaced cages, 
creating the potential for behavioral interactions, disease transfer or 
interactions with predators (DFO, 1999; Crozier, 1993; Skaala and 
Hindar, 1997; Carr et al., 1997; Lura and Saegrov, 1991).
    Atlantic salmon that either escaped or were released from 
aquaculture facilities have been found in the St. Croix, Penobscot, 
Dennys, East Machias, and Narraguagus rivers in the United States. 
(Baum, 1991; USASAC, 1996, 1997). In 1994 and 1997, escaped farmed fish 
represented 89 percent and 100 percent, respectively, of the documented 
run for the Dennys River, and in 1995, 22 percent of the documented run 
for the Narraguagus River. Escaped farmed salmon have also been 
documented as an incidental capture in the recreational fishery, and 
observed in the Boyden, Hobart, and Pennamaquan Rivers. The first 
aquaculture escapee in the State of Maine was documented in 1990, and 
the first sexually mature escapee was documented in 1996. Escaped 
farmed fish are of great concern in Maine because even at low numbers 
they can represent a substantial portion of fish in some rivers. Also, 
populations at low levels are particularly vulnerable to genetic 
intrusion or other disturbance caused by escapees (DFO, 1999; 
Hutchings, 1991). Preliminary results from the 1999 wild smolt 
assessment project in the Pleasant River suggest that several 
outmigrating smolts were of hatchery origin based on fin condition 
(Kocik et al.,1999, unpublished data).
    Given current aquaculture practices, the Services have opposed the 
use of reproductively viable European strains (pure and hybrid) of 
Atlantic salmon within North America. This opposition is based on 
genetic studies that demonstrate that there are significant differences 
between North American and European Atlantic salmon (King et al. 1999), 
and the advice from geneticists that interbreeding among genetically 
divergent populations negatively impacts natural populations (Utter, 
1993; Verspoor, 1997; Youngson and Verspoor, 1998). The introgression 
by non-North American Atlantic salmon stocks presents a substantial 
threat of disrupting the genetic integrity of North American stocks and 
threatens fitness through outbreeding depression.
    Farm-raised Atlantic salmon can escape from both sea cages and 
freshwater hatcheries and enter rivers within the Gulf of Maine DPS 
range as sexually mature adults and precocious male parr. Available 
genetic data and visual observations indicate that aquaculture escapees 
may have successfully interbred with wild Atlantic salmon. Under 
current aquaculture practices, this problem will persist because the 
escapement of aquaculture salmon and their interactions with wild 
stocks are expected to increase with the continued operation and growth 
of the industry in the State of Maine.
    There is a significant potential for escaped aquaculture salmon to 
disrupt redds of wild salmon, compete with wild salmon for food and 
habitat, interbreed with wild salmon, and transfer disease or parasites 
to wild salmon. The threat of these interactions is considered 
critical, given the fact that wild salmon stocks within the DPS range 
are at low abundance levels, and are particularly vulnerable to 
disturbances caused by escaped aquaculture salmon.
    Studies have characterized the potential permanent effect of salmon 
escapes from farms on the genetic differentiation among wild stocks. 
Atlantic salmon populations of sizes similar to those found within the 
Gulf of Maine DPS, are the most vulnerable to immigrations from 
aquaculture escapees. These immigration events may be one of the most 
significant ways in which aquaculture salmon affect the genetic 
structure of wild populations. While natural selection may be able to 
purge wild populations of maladaptive genetic traits, regularly 
occurring genetic interaction between aquaculture salmon and wild 
populations makes this considerably less likely. Thus, scientific 
literature indicates that interactions between wild and aquaculture 
salmon may lead to decreased numbers of wild Atlantic salmon, and in 
the extreme, to extirpation of the wild stock.
    Comprehensive protective solutions to minimize the threat of 
interactions between wild and aquaculture salmon have not been 
implemented. In 1997 and 1998, the Services worked with industry and 
State representatives in an attempt to eliminate further importation of 
European stocks, remove pure European strain from marine cages, and 
phase out the holding of North American/European hybrids. These 
discussions were unsuccessful. In July of 1999 the Services initiated 
discussions directly with the Maine Department of Marine Resources (the 
State agency responsible for aquaculture industry regulation). These 
discussions were only partially successful.
    Marine survival rates continue to be low for U.S. stocks of 
Atlantic salmon, and the subsequent low abundance of salmon impedes 
recovery of the DPS. Scientists have attributed natural mortality in 
the marine environment to sources that include stress, predation, 
starvation, disease and parasites, and abiotic factors. In addition, 
scientific

[[Page 62636]]

studies indicate that year-to-year variation in return rates of U.S. 
salmon stocks is generally synchronous with other North Atlantic 
stocks. This information suggests that the trend in return rates is the 
result of factors that occur when the stocks are in the North Atlantic, 
particularly the Labrador Sea. Scientists have concluded that a 
significant proportion of the variation in recruitment or return rate 
is attributed to post-smolt survival. However, the factors responsible 
for reduced post-smolt survival are not well understood.

Basis for Determination

    Section 4(b)(1)(A) of the ESA (16 U.S.C. 1533(b)(1)(A)) states that 
determinations required by the ESA will be made solely on the basis of 
the best scientific and commercial data available after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect such 
species, whether by predator control, protection of habitat and food 
supply, or other conservation practices, within any area under its 
jurisdiction, or on the high seas.
    The Gulf of Maine DPS of Atlantic salmon is discrete and 
significant and therefore satisfies the Services' criteria for 
distinctness as outlined in the Services' DPS policy. There was a 
dramatic decline in spawner abundance in the mid 1980s, and the number 
of returning adult Gulf of Maine DPS of Atlantic salmon remains low. 
Critically low adult returns make the DPS especially vulnerable and 
genetically susceptible to threats. Early juvenile abundance has 
increased due to fry and broodstock stocking, but based on results in 
the Narraguagus River, this increase does not directly translate into 
commensurate increases in abundance of smolts. Marine survival rates 
continue to be low for U.S. stocks of Atlantic salmon, and the low 
abundance of naturally spawning Atlantic salmon impedes recovery of the 
DPS. The Gulf of Maine DPS of Atlantic salmon has persisted in a unique 
setting in the United States, and its loss as the only naturally 
spawning stock in the United States would be a significant loss. The 
existence and genetic integrity of the DPS must be preserved so that 
the DPS can naturally adapt to changing future conditions in the 
freshwater and marine environment.
    Under the first listing factor, present or threatened destruction, 
modification, or curtailment of habitat or range, the following threats 
to Atlantic salmon habitat within the DPS watersheds were identified: 
(1) Water extraction; (2) sedimentation; (3) obstructions to passage 
caused by beaver and debris dams, poorly designed road crossings, and 
dams; (4) input of nutrients; (5) chronic exposure to insecticides, 
herbicides, fungicides, and pesticides; (6) elevated water temperatures 
from processing water discharges; and (7) removal of vegetation along 
streambanks.
    Efforts are underway to better understand and balance the needs of 
Atlantic salmon and the water use needs of the agriculture industry. 
Until this process is completed, the threat of excessive or unregulated 
water withdrawal remains. Sedimentation from a variety of sources also 
warrants closer review as it may alter habitat and render habitat 
incapable of supporting optimum Atlantic salmon production, resulting 
in reduced survival of one or more age classes. Recent studies indicate 
that full freshwater production potential is not being achieved despite 
fry stocking efforts. These results suggest that a factor or factors 
within the rivers may be negatively impacting freshwater habitat for 
Atlantic salmon. Although it is difficult to isolate and evaluate the 
impact of individual threats to habitat, the available information 
indicates that cumulative impacts of these threats pose a significant 
threat to Atlantic salmon stocks.
    Under the second listing factor, both commercial and recreational 
harvest of Atlantic salmon historically played an important role in the 
decline of the DPS of Atlantic salmon. Continuation of the internal use 
fishery in Greenland poses a reduced but continuing threat to Atlantic 
salmon in the DPS. Continuation of the existing directed catch and 
release fishery may cause mortality or injury to the Gulf of Maine DPS 
of Atlantic salmon. Recreational fishing targeting other species also 
may result in incidental catch of Atlantic salmon in various stages of 
their life cycle. Mortality from fishing increases the threat to 
Atlantic salmon survival.
    The impact of predation and disease was examined under the third 
listing factor and was found to have increased since the 1995 Status 
Review. Predation has always been a factor influencing salmon numbers, 
but would not be expected to threaten the continued existence of a 
healthy population. The threat to the DPS of predation is significant 
today because of the very low numbers of adults returning to spawn and 
the dramatic increases in population levels of some predators known to 
prey on salmon. These include cormorants, sea birds, striped bass, and 
several species of seals.
    Fish diseases have always represented a source of mortality to 
Atlantic salmon in the wild, though the threats of major loss due to 
disease are generally associated with salmon aquaculture. Three recent 
events, occurring during the last 2 years, have increased the concern 
for disease as a threat to the DPS: (1) The appearance of ISA virus in 
1996 on the North American continent within the range of the possible 
exposure of migrant DPS salmon; (2) the discovery in 1998 of the 
retrovirus SSSV within a DPS population; and (3) the new information 
available in 1999 on the potential impact of CWD on salmon. The nature 
of these three specific developments in terms of direct loss to the DPS 
from disease in the wild is extremely difficult to assess.
    Observations to date suggest that direct mortality may not be the 
major threat to the DPS from these diseases. However, there is an 
indirect threat through the impact of these diseases on the river-
specific fish culture program implemented on six rivers to enhance 
maintenance and recovery of these imperiled populations. The impacts of 
ISA, SSSV, and CWD appear to be magnified when fish are held in culture 
environments. Diseases significantly degrade the effectiveness of fish 
culture techniques as a recovery tool and strategy for stock 
enhancement. The level of threat to the perpetuation and recovery of 
the DPS from salmon disease has significantly increased in the past 2 
years.
    Under the fourth listing factor, the Services examined regulatory 
mechanisms for their ability to protect the Gulf of Maine DPS. A 
variety of State and Federal environmental statutes and regulations are 
in place to address potential threats to Atlantic salmon and their 
habitat. These laws are complemented by international actions under 
NASCO and many interagency agreements and State-Federal cooperative 
efforts. Implementation and enforcement of these laws and regulations 
must be strengthened to adequately protect Atlantic salmon.
    Aquaculture practices were examined under the fifth listing factor, 
other natural or manmade factors affecting the continued existence of 
the DPS. Aquaculture Atlantic salmon escape during freshwater rearing, 
transport, or sea cage grow out and enter rivers within the Gulf of 
Maine DPS range. Available genetic data and visual observations 
indicate that aquaculture escapees may have successfully interbred with 
wild Atlantic salmon. Under current aquaculture practices, this problem 
will persist because the escape of aquaculture salmon, and their

[[Page 62637]]

interactions with wild stocks, is expected to increase with the 
continued growth of the aquaculture industry in the State of Maine. 
Escaped aquaculture salmon have been documented to disrupt redds of 
wild salmon, compete with wild salmon for food and habitat, interbreed 
with wild salmon, and transfer disease or parasites to wild salmon. 
This interaction is of grave concern, particularly when the escapees 
are not of North American origin. The expanding use of reproductively 
viable European strain of Atlantic salmon by the aquaculture industry 
has greatly increased the level of risk of negative consequences from 
introgression of aquaculture stock into wild populations. The 
scientific literature indicates that interactions between wild and 
aquaculture salmon in the DPS range may lead to decreased numbers of 
the Gulf of Maine DPS of Atlantic salmon, and in the extreme, to 
extirpation of the wild stock. There are no comprehensive protective 
solutions in place to minimize the threat of interactions between wild 
and aquaculture salmon. The threat created by these interactions is 
considered critical, given that the Gulf of Maine DPS of Atlantic 
salmon is at low abundance levels and is vulnerable to genetic 
introgression and habitat disturbances caused by escaped aquaculture 
salmon.
    Under current circumstances, the Gulf of Maine DPS of Atlantic 
salmon is in danger of extinction. Atlantic salmon of the Gulf of Maine 
DPS exhibit critically low spawner abundance and poor marine survival. 
These two key recovery factors are further compromised by the increased 
presence of threats that have been documented. Currently these threats 
include artificially reduced water levels, diseases, recreational and 
commercial fisheries, sedimentation, and genetic intrusion by Atlantic 
salmon raised for aquaculture.
    A second step in the review of the status of the species is to 
examine protective measures in place. We particularly highlight changes 
since the determination was made in December 1997 that listing was not 
warranted. These protective measures in combination with the species' 
status information are examined to determine if listing as threatened 
or endangered is warranted and if there is a need for an emergency 
listing. Efforts to Protect Maine Atlantic Salmon
    Actions underway include the following:

(a) River-specific stock rehabilitation

    There is agreement among scientists that additional research should 
be conducted to better understand the processes or mechanisms 
responsible for reduced post-smolt survival, and such research is being 
pursued. There is also consensus that action necessary to ensure 
survival of salmon stocks and to rebuild stocks within the DPS includes 
hatchery propagation. The Atlantic salmon river-specific recovery 
program has been identified as an essential component of the strategy 
to rebuild salmon stocks in the DPS. This program has been designed and 
implemented to maintain the genetic diversity and distinctness of the 
DPS. Because the abundance of wild salmon stocks of the Gulf of Maine 
DPS is very low, hatchery propagation through a river-specific stocking 
program is considered an important tool to maximize the production of 
wild smolts with genetic traits necessary for survival of the species. 
The river-specific stocking program is a strategy consisting of 
removing juvenile wild salmon from a DPS river population, rearing 
those juveniles to sexual maturity in a hatchery, artificially spawning 
them, and returning the offspring to the same river of origin of the 
parental stock. This should greatly increase the effective population 
size of the parental generation contributing to a particular year class 
of juveniles, increase the size of that year class, and act to maintain 
the genetic integrity of that river population. The goal of the program 
is to ensure the immediate survival of and accelerate the long-term 
recovery of the DPS salmon of that river.

(b) Maine Conservation Plan

    On April 23, 1999, the State of Maine responded to the Services' 
comments on the 1998 Annual Review of Conservation Plan implementation 
and provided amendments to the Conservation Plan and workplans prepared 
by each involved State agency. Responsibility for implementation of the 
Conservation Plan has recently been moved from the Land and Water 
Resources Council to the ASC. Many of the actions proposed or underway 
are discussed under other sections of this rule. Implementation of the 
Conservation Plan as a State initiative remains an important tool for 
recovery of the Gulf of Maine DPS of Atlantic salmon and its habitat.

(c) Narraguagus Study

    NMFS and ASC have continued their intensive study of smolt 
production and outmigration in the Narraguagus River. As part of this 
study, the parr population is estimated and the outmigration of smolts 
is monitored by documenting the timing of migration, survival, length, 
weight and number of smolts. This study has provided insights into 
overwinter survival from large parr to smolt and smolt migration out of 
the river and estuary. The results of this study will improve our 
ability to target protective measures.

(d) Project SHARE

    Project SHARE is a private sector initiative designed to improve 
salmon habitat and consequently increase the likelihood of the species' 
survival. Project SHARE began with timber and agriculture interests in 
eastern Maine and has served as an excellent focal point to direct 
private conservation efforts on the rivers in the DPS range. Numerous 
projects and information exchange sessions have occurred as a result of 
Project SHARE, and the Watershed Councils forming for the five rivers 
in eastern Maine have been assisted in development by Project SHARE 
members.

(e) Water Use Subcommittee

    The potential threat posed by water withdrawals to the suitability 
of habitat for Atlantic salmon has become more apparent since the 
completion of the Conservation Plan. During the past year, the Maine 
State Planning Office contracted a study to establish minimum flow 
levels within the Pleasant, Machias and Narraguagus Rivers and the 
levels needed for Atlantic salmon within those rivers. Steering 
Committees have been created to identify the current water users and to 
project future demands. Reports summarizing information obtained are in 
the process of being completed. The Plans will serve as the foundation 
for conditioning future permits for water withdrawal. The State 
Department of Environmental Conservation is currently drafting 
regulations that will allow it to regulate water withdrawals.

(f) Watershed Councils

    Watershed Councils, created under the Conservation Plan, are active 
on all seven rivers. These Councils are designed to maintain focus on 
the rivers at local levels and be certain that activities that may 
affect salmon, habitat or water quality are well thought out. The 
Watershed Councils seek grants for specific projects, recommend habitat 
protection and/or improvements, discuss problems and recommend 
solutions. Significant acreages of habitat have been permanently 
protected on several of the rivers as a result of Council activity.

(g) Habitat Protection

    Habitat protection efforts in the DPS rivers are continuing. Work 
is underway

[[Page 62638]]

to reduce livestock pollution in the Sheepscot River. Protection of 
acreage adjacent to the rivers in the DPS range is increasing. Champion 
International has imposed protective buffers along riparian zones on 
their lands along rivers in the DPS range and other streams and rivers. 
The State of Maine contracted a study to design a formula for 
determining the appropriate size buffer depending on site specific 
characteristics including slope and percent vegetative cover. Superfund 
sites are being cleaned up, obstructions to passage are being removed, 
best management practices have been developed for agriculture and 
forestry, and water withdrawals are being monitored more closely.

(h) Implementation of disease control measures

    A number of State and Federal laws exist to reduce the threats to 
both wild and cultured fish from disease. Maine has recently adopted 
stringent fish health regulations (Chapter 2.03-A Salmonid Fish Health 
Regulations; Inland Fish and Wildlife Regulations), and the FWS 
monitors hatchery fish at Craig Brook and Green Lake with extreme care. 
Cultured fish are vaccinated against various diseases and screened 
continually.

(i) Regulations for Containment of Aquaculture Fish

    The aquaculture industry in Maine adopted a Code of Practice for 
the Responsible Containment of Farmed Atlantic Salmon in Maine Waters. 
Partially in response to concerns voiced by the Services over existing 
aquaculture practices, the State of Maine indicated that it would 
promulgate regulations to implement the Code of Practice. The Services 
have had discussions with the State over the content of those 
regulations, but agreement has not been reached at this point, and the 
State has not yet promulgated draft regulations. In addition, weirs are 
now in place on two rivers (Dennys and Pleasant), and a third is being 
planned. These weirs should help reduce the likelihood that net pen 
escapees will reach the spawning grounds to breed with wild fish.

(j) Essential Fish Habitat

    The 1996 amendments to the Magnuson-Stevens Fishery Management and 
Conservation Act included a requirement for delineation of essential 
fish habitat (EFH) for all managed species (16 U.S.C. 1853(a)(7)). EFH 
is the habitat that is necessary to the species for spawning, breeding, 
feeding, or growth to maturity. Federal action agencies which fund, 
permit or carry out activities that may adversely impact EFH are 
required to consult with NMFS regarding the potential effects of their 
actions on EFH and respond in writing to the NMFS' recommendations (16 
U.S.C. 1855(b)(2)). In addition, NMFS is required to comment on any 
State agency activities that would impact EFH (16 U.S.C. 
1855(b)(4)(A)). The regulations also direct the Fishery Management 
Councils to consider a second, more limited habitat designation, 
Habitat Areas of Particular Concern (HAPCs) (50 CFR 600.815(a)(9)). 
HAPCs are rare, particularly susceptible to human-induced degradation, 
especially ecologically important, or located in an environmentally 
stressed area. Designated HAPCs are not afforded any additional 
regulatory protection; however, Federal projects with potential adverse 
impacts to HAPCs will be more carefully scrutinized during the 
consultation process. The New England Fishery Management Council has 
designated the habitat of the Dennys, Machias, East Machias, Pleasant, 
Narraguagus, Ducktrap, Sheepscot, Kennebec, Penobscot, and St. Croix 
Rivers and Tunk Stream as HAPCs.

Proposed Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range (16 
U.S.C. 1532(6)), and a threatened species as any species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range (16 U.S.C. 1532(20)). Section 
4(b)(1)(A) of the ESA requires that determinations regarding whether 
any species is threatened or endangered be based solely on the best 
scientific and commercial information available after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made by a state or foreign nation to protect 
such species (16 U.S.C. 1533(b)(1)(A)).
    The Services propose to list this DPS of anadromous Atlantic salmon 
as endangered under the ESA. At present, the DPS is known to include 
populations of Atlantic salmon in the Sheepscot, Ducktrap, Narraguagus, 
Pleasant, Machias, East Machias and Dennys Rivers and Cove Brook. Both 
the naturally reproducing populations of the Gulf of Maine DPS of 
Atlantic salmon and those river-specific hatchery populations cultured 
from them are included. In the future, DPS populations may be 
identified in additional rivers based on ongoing stream surveys and 
continuing genetic analyses.

Conservation Measures

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery actions (16 U.S.C. 1533(f)), 
Federal agency consultation requirements (16 U.S.C. 1536), and 
prohibitions on taking (16 U.S.C. 1538). Recognition of the species' 
plight through listing promotes conservation actions by Federal and 
state agencies and private groups and individuals.
    In addition to the actions identified under Efforts to Protect 
Maine Atlantic Salmon, the following general conservation measures 
could be implemented to help conserve the species. This list does not 
constitute the Services' interpretation of the entire scope of a 
recovery plan under section 4(f) of the ESA.
    (1) Ensure that water extractions and diversions for agriculture do 
not adversely affect Atlantic salmon habitat. Screen all water 
diversion intake structures available to downstream migrating Atlantic 
salmon.
    (2) For Atlantic salmon aquaculture facilities located less than 20 
km (12 mi) from the mouths of rivers known to contain DPS populations, 
use sterile fish, change broodstock origin, mark fish reared in net 
pens, and develop adequate fish containment such that interactions with 
wild fish will be prevented.
    (3) Install and maintain weirs at the mouths of rivers to exclude 
escaped aquaculture fish.
    (4) Delineate and protect Atlantic salmon habitat.
    (5) Research sterilization of commercial stock, genetic monitoring 
of wild stocks, disease control strategies, predators, and impact of 
sedimentation on habitat.
    (6) Increase law enforcement.
    (7) Increase awareness about Atlantic salmon and measures that 
could be implemented to protect them and their habitat through 
education and outreach efforts.
    Should the proposed listing be made final, protective regulations 
under the ESA would take effect and a recovery program would be 
implemented. The Services recognize that to be successful, protective 
regulations and recovery programs for Atlantic salmon will need to be 
developed in the context of conserving aquatic ecosystem health. The 
Services, the State of Maine, and the private sector must cooperate to 
conserve the listed Gulf of Maine DPS of Atlantic salmon and the 
ecosystems upon which it depends. To foster this

[[Page 62639]]

cooperation, the Conservation Plan, developed by the State with a group 
of stakeholders, could serve as a foundation for a recovery plan. The 
Services encourage non-Federal landowners to assess the impacts of 
their actions on Atlantic salmon. In particular, the Services 
acknowledge and fully support the ongoing efforts to involve 
stakeholders (industry representatives, landowner representatives, 
local and State governments and Federal biologists) through Project 
SHARE and local watershed councils.

Prohibitions and Protective Measures

    This regulation applies all ESA section 9 (16 U.S.C. 1538) 
protective measures to prohibit taking, interstate commerce, and other 
prohibitions applicable to endangered species, with the exceptions 
provided under section 10 of the ESA (16 U.S.C. 1539). Section 9 of the 
ESA and implementing regulations (50 CFR 17.21) set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. These prohibitions apply to all individuals, organizations, 
and agencies subject to U.S. jurisdiction. The prohibitions, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect; or to attempt any of these), 
import or export, ship in interstate commerce in the course of 
commercial activity, or sell or offer for sale in interstate or foreign 
commerce any listed species. It also is illegal to possess, sell, 
deliver, carry, transport, or ship any such wildlife that has been 
taken illegally.
    Section 7(a)(4) of the ESA (16 U.S.C. 1536(a)(4)) requires that 
Federal agencies confer with the Services on any actions likely to 
jeopardize the continued existence of a species proposed for listing 
and on actions likely to result in the destruction or adverse 
modification of proposed critical habitat. For listed species, section 
7(a)(2) (16 U.S.C. 1536(a)(2)) requires Federal agencies to ensure that 
activities they authorize, fund, or conduct are not likely to 
jeopardize the continued existence of a listed species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with the Services. Consultations will be 
conducted on a river-specific basis pursuant to identification of 
river-specific recovery units within the DPS.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA (16 U.S.C. 
1539(a)(1)(A) and (a)(1)(B)) provide the Services with authority to 
grant exceptions to the ESA's ``taking'' prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may be issued 
to entities (Federal and non-Federal) conducting research that involves 
a directed take of listed species. A directed take refers to the 
intentional take of listed species. The Services have issued section 
10(a)(1)(A) research/enhancement permits for other listed species for a 
number of activities.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take 
listed species. The types of activities potentially requiring a section 
10(a)(1)(B) incidental take permit include the operation and release of 
artificially propagated fish by state or privately operated and funded 
hatcheries, state or university research not receiving Federal 
authorization or funding, and the implementation of state fishing 
regulations.

Service Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, the Services published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270) and a policy to identify, to the maximum 
extent possible, those activities that would or would not constitute a 
violation of section 9 of the ESA (59 FR 34272).

(a) Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. Prior to a 
final listing, the Services will solicit the expert opinions of three 
qualified specialists, concurrent with the public comment period. 
Independent peer reviewers will be selected from the academic and 
scientific community, Tribal and other native American groups, Federal 
and State agencies, and the private sector.

(b) Identification of Those Activities That Would Constitute a 
Violation of Section 9 of the ESA

    The intent of this policy is to increase public awareness of the 
effect of this listing on proposed and ongoing activities within the 
species' range. The Services will identify, to the extent known at the 
time of the final rule, specific activities that will not be considered 
likely to result in violation of section 9, as well as activities that 
will be considered likely to result in violation. Activities that the 
Services believe could result in violation of section 9 prohibitions 
against ``take'' of the Gulf of Maine DPS of anadromous Atlantic salmon 
include, but are not limited to, the following:
    (1) Targeted recreational and commercial fishing, bycatch 
associated with commercial and recreational fisheries, and poaching;
    (2) The holding of reproductively viable non-North American strain 
or non-North American hybrid Atlantic salmon in freshwater hatcheries 
within the DPS range;
    (3) The inability to contain farmed stock in marine cages or 
freshwater hatcheries such that they are found entering or existing in 
rivers within the DPS range;
    (4) Failure to adopt and implement fish health practices that 
adequately protect against the introduction and spread of disease;
    (5) Siting and/or operating aquaculture facilities in a manner that 
negatively impacts water quality and/or benthic habitat.
    (6) Discharges (point and non-point sources) or dumping of toxic 
chemicals, silt, fertilizers, pesticides, heavy metals, oil, organic 
wastes or other pollutants into waters supporting the DPS;
    (7) Blockage of migration routes;
    (8) Destruction/alteration of the species' habitat (e.g., instream 
dredging, rock removal, channelization, riparian and in-river damage 
due to livestock, discharge of fill material, operation of heavy 
equipment within the stream channel, manipulation of river flow);
    (9) Violations of discharge or water withdrawal permits that are 
protective of the DPS and its habitat;
    (10) Pesticide or herbicide applications in violation of label 
restrictions; and
    (11) Unauthorized collecting or handling of the species (permits to 
conduct these activities are available for purposes of scientific 
research or to enhance the propagation or survival of the DPS).
    The Services believe that, based on the best available information, 
the following actions will not result in a violation of section 9:
    (1) Possession of Atlantic salmon acquired lawfully by permit 
issued by the Services pursuant to section 10 of the ESA, or by the 
terms of an incidental take statement in a biological opinion pursuant 
to section 7 of the ESA; or
    (2) Federally approved projects that involve activities such as 
silviculture, agriculture, road construction, dam construction and 
operation, discharge of fill material, siting of marine cages for 
aquaculture, stream channelization or diversion for which consultation 
under section 7 of the ESA has been completed, and when such activity 
is

[[Page 62640]]

conducted in accordance with any terms and conditions given by the 
Services in an incidental take statement in a biological opinion 
pursuant to section 7 of the ESA.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, in which are found those physical or biological features (I) 
essential to the conservation of the species and (II) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at that time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the ESA is no longer necessary.
    Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires 
that, to the extent prudent and determinable, critical habitat be 
designated concurrently with the listing of a species. Designations of 
critical habitat must be based on the best scientific data available 
and must take into consideration the economic and other relevant 
impacts of specifying any particular area as critical habitat. The 
Services have determined that it is prudent to designate critical 
habitat for the Gulf of Maine DPS of Atlantic salmon and will publish a 
proposed designation in a separate rule.

Public Comments Solicited

    To ensure that the final action resulting from this proposal will 
be as accurate and effective as possible, the Services are soliciting 
comments and information from the public, other concerned governmental 
agencies, the scientific community, industry, and any other interested 
parties. Comments are encouraged on this proposal as well as on the 
1999 Status Review. Specifically, the Services are soliciting 
information regarding: (1) Biological, commercial trade, or other 
relevant data concerning any threat (or lack thereof) to this DPS; (2) 
the location of any additional populations of the Gulf of Maine DPS of 
Atlantic salmon within the DPS range, including but not limited to Bond 
Brook, Togus Stream, Passagassawaukeag River, Kenduskeag Stream, Felts 
Brook, and the Pennamaquan River; (3) additional information concerning 
the range, distribution, and population size of this DPS; (4) current 
or planned activities in the subject area and their possible impacts on 
this DPS; (5) additional efforts being made to protect native, 
naturally reproducing populations of Atlantic salmon; and (6) 
relationship of existing hatchery populations to natural populations of 
the DPS.
    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Services, and such communications may lead to a final regulation 
that differs from this proposal.

National Environmental Policy Act

    The FWS has determined that Environmental Assessments and 
Environmental Impact Statements, as defined under the authority of the 
National Environmental Policy Act of 1969 (NEPA), need not be prepared 
in connection with regulations adopted pursuant to section 4(a) of the 
ESA. The notice for this determination was published in the Federal 
Register on October 25, 1983 (48 FR 49244). NMFS has concluded that ESA 
listing actions are not subject to the environmental assessment 
requirements of the NEPA. See NOAA Administrative Order 216-6.

Classification

    The Conference Report on the 1982 amendments to the ESA notes that 
economic considerations have no relevance to determinations regarding 
the status of species, and that the Regulatory Flexibility Act is not 
applicable to the listing process. Similarly, listing actions are not 
subject to the requirements of Executive Order 12612 and are exempt 
from review under Executive Order 12866.

Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state/
Federal interest, we summarize below the efforts of the Services to 
honor this trust with respect to the listing process for Atlantic 
salmon in Maine. Shortly after publication in September 1995 of the 
proposed rule to list the Gulf of Maine DPS of Atlantic salmon as 
threatened under the ESA, representatives from both Services offered to 
work with Maine as advisers while the State developed its Atlantic 
salmon conservation plan. That offer was accepted, and the two advisers 
spent hundreds of hours reviewing sections of the plan, discussing 
options, and suggesting possible improvements. Ultimately, the Services 
accepted the Conservation Plan and withdrew the proposed rule.
    The Services also were represented on several task forces in 
appointed to resolve problems associated with specific salmon-related 
issues such as aquaculture and recreational fishing. They were also 
instrumental in encouraging the formation of Project SHARE, a private 
sector initiative designed to focus on improving salmon habitat. That 
effort is continuing to garner support and gain strength.
    Finally, the Services have recently been involved in negotiations 
with the Governor's office and the Commissioner of Marine Resources to 
resolve outstanding issues related to the impact of aquaculture fish on 
wild Atlantic salmon. Some of the issues have been resolved, while 
discussions are continuing in an effort to resolve remaining issues.

Authors

    Authors of this document are Mary Colligan of the NMFS, Paul 
Nickerson of the FWS, and Dan Kimball of the FWS.

List of Subjects

50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

Proposed Regulation Promulgation

    Accordingly, the U.S. Fish and Wildlife Service proposes to amend 
part 17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as set forth below.

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under FISHES, to the List of Endangered and 
Threatened Wildlife:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 62641]]



 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                              Vertebrate population
------------------------------------------------------    Historic range     where endangered or       Status      When listed    Critical     Special
           Common name              Scientific name                               threatened                                      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
          *                  *                  *                  *                  *                  *                  *
             Fishes
 
          *                  *                  *                  *                  *                  *                  *
Salmon, Atlantic................  Salmo salar........  U.S.A., Canada,      U.S.A., ME Gulf of     E               ...........           NA           NA
                                                        Greenland, western   Maine Atlantic
                                                        Europe.              Salmon Distinct
                                                                             Population Segment,
                                                                             which includes all
                                                                             naturally
                                                                             reproducing wild
                                                                             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 U.S.-
                                                                             Canada border. To
                                                                             date, the Services
                                                                             have determined that
                                                                             these populations
                                                                             are found in the
                                                                             Dennys, East
                                                                             Machias, Machias,
                                                                             Pleasant,
                                                                             Narraguagus,
                                                                             Sheepscot, and
                                                                             Ducktrap Rivers and
                                                                             in Cove Brook, Maine.
 
          *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    And accordingly, the National Marine Fisheries Service proposes to 
amend part 224, subchapter C of Chapter II, title 50 of the Code of 
Federal Regulations, as set forth below.

PART 224-ENDANGERED MARINE AND ANADROMOUS SPECIES

    4. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    5. In Sec. 224.101, paragraph (a) is revised to read as follows:


Sec. 224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) Marine and Anadromous Fish. Shortnose sturgeon (Acipenser 
brevirostrum); Totoaba (Cynoscian macdonaldi), Snake River sockeye 
salmon (Oncorhynchus nerka), Umpqua River cutthroat trout (Oncorhynchus 
clarki clarki); Southern California steelhead (Oncorhynchus mykiss), 
including all naturally spawned populations of steelhead (and their 
progeny) in streams from the Santa Maria River, San Luis Obispo County, 
California (inclusive) to Malibu Creek, Los Angeles County, California 
(inclusive); Upper Columbia River steelhead (Oncorhynchus mykiss), 
including the Wells Hatchery stock and all naturally spawned 
populations of steelhead (and their progeny) in streams in the Columbia 
River Basin upstream from the Yakima River, Washington, to the United 
States-Canada Border; Upper Columbia River spring-run chinook salmon 
(Oncorhynchus tshawytscha), including all naturally spawned populations 
of chinook salmon in Columbia River tributaries upstream of the Rock 
Island Dam and downstream of Chief Joseph Dam in Washington (excluding 
the Okanogan River), the Columbia River from a straight line connecting 
the west end of the Clatsop jetty (south jetty, Oregon side) and the 
west end of the Peacock jetty (north jetty, Washington side) upstream 
to Chief Joseph Dam in Washington, and the Chiwawa River (spring run), 
Methow River (spring run), Twisp River (spring run), Chewuch River 
(spring run), White River (spring run), and Nason Creek (spring run) 
hatchery stocks (and their progeny); Sacramento River winter-run 
chinook salmon (Oncorhynchus tshawytscha); Gulf of Maine Atlantic 
Salmon (Salmo salar) Distinct Population Segment, which includes all 
naturally reproducing wild 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 U.S.-Canada border (To date, the 
Services have determined that these populations are found in the 
Dennys, East Machias, Machias, Pleasant, Narraguagus, Sheepscot, and 
Ducktrap Rivers and in Cove Brook, Maine).
* * * * *

    Dated: November 10, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    Dated: November 9, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-30014 Filed 11-16-99; 8:45 am]
BILLING CODE 3510-22-P 4310-55-P