[Federal Register Volume 64, Number 228 (Monday, November 29, 1999)]
[Proposed Rules]
[Pages 66601-66603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30915]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 991116306-9306-01; I.D. 102099C]
RIN 0648-XA40


Endangered and Threatened Wildlife and Plants; 90-Day Finding for 
a Petition to List Columbia River Eulachon (Thaleichthys pacificus) as 
Endangered or Threatened

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

ACTION: Notification of petition finding.

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SUMMARY: NMFS has received a petition to list Columbia River 
populations of eulachon (Thaleichthys pacificus) as an endangered or 
threatened species and to designate critical habitat under the 
Endangered Species Act (ESA). NMFS determines that the petition does 
not present substantial evidence to warrant the listing of eulachon at 
this time.

ADDRESSES: Requests for copies of the petition and comments regarding 
Columbia River eulachon should be submitted to Chief, Protected 
Resources Division, NMFS, 525 NE Oregon Street, Suite 500, Portland, OR 
97232. The petition and supporting data are available for public 
inspection, by appointment, Monday through Friday at this address.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, NMFS, Northwest Region, 
503/231-2005 or Marta Nammack, NMFS, Office of Protected Resources, 
301/713-1401.

SUPPLEMENTARY INFORMATION:

Background and Analysis of Petition

    Section 4 of the ESA contains provisions allowing interested 
persons to petition the Secretary of the Interior or the Secretary of 
Commerce (Secretary) to add a species to or remove a species from the 
List of Endangered and Threatened Wildlife and to designate critical 
habitat. On July 16, 1999, the Secretary of Commerce (Secretary) 
received a petition from Mr. Sam Wright of Olympia, Washington, to list 
and designate critical habitat for Columbia River populations of 
eulachon (commonly called smelt or candlefish).
    Section 4(b)(3)(A) of the Endangered Species Act (16 U.S.C. 1531-
1544) requires that the NMFS make a finding on whether a petition to 
list, delist, or reclassify a species presents substantial scientific 
or commercial information to indicate that the petitioned action may be 
warranted. In determining whether substantial information exists for a 
petition to list a species, NMFS will take into account information 
submitted with, and referenced in, the petition and all other 
information readily available in NMFS' files. To the maximum extent 
practicable, this finding is to be made within 90 days of the receipt 
of the petition, and the finding is to be published promptly in the 
Federal Register. If NMFS finds that a petition presents substantial 
information indicating that the requested action may be warranted, 
section 4(b)(3)(B) of the ESA requires NMFS to make a finding as to 
whether or not the petitioned action is warranted within 1 year of the 
receipt of the petition.
    In evaluating a petitioned action, the Secretary considers several 
factors, including whether the petition contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species (50 CFR 
424.14(b)(2)(ii)). In addition, the Secretary considers whether the 
petition provides information regarding the status of the species over 
all or a significant portion of its range (50 CFR 424.14(b)(2)(iii).
    Under the ESA, a listing determination can address a species,

[[Page 66602]]

subspecies, or distinct population segment (DPS) of a species (16 
U.S.C. 1532(15)). The petitioner requested listing the ``population, 
stock, or evolutionarily significant unit that is found in the Columbia 
River system and its tributaries.'' He further identified these 
entities as ``an important, existing (but severely depressed) 
indigenous fish resource which is currently at risk (threatened or 
endangered) and has no reasonable expectation of being able to recover 
over time by itself and/or from the surplus production of an adjacent 
or nearby population of the same species.'' Such a definition is not 
used in the ESA and it is important to note that the term 
evolutionarily significant unit or ``ESU'' is currently defined only 
for DPSs of Pacific salmonids (see 56 FR 58612, November 20, 1991). For 
other species such as the eulachon, NMFS would instead rely on the DPS 
framework described in a NMFS/U.S. Fish and Wildlife Service policy 
regarding the identification of distinct vertebrate population segments 
(61 FR 4722, February 7, 1996). Since the petitioner focused on stocks 
within the Columbia River basin (rather than the entire species), NMFS 
considered the petition in the context of defining DPSs in this area 
that may warrant listing under the ESA.
    NMFS evaluated whether the information provided or cited in the 
petition met the ESA's standard for ``substantial information.'' The 
agency also reviewed other information readily available to NMFS 
scientists (i.e., currently within agency files) and consulted with 
fisheries experts from Washington and Oregon about this species to 
determine if there was general agreement on issues related to the 
uniqueness, distribution, abundance, and threats to the petitioned 
species/populations. With respect to uniqueness, NMFS assessed whether 
the petitioner's and otherwise available information might support the 
identification of DPSs that may warrant listing under the ESA.
    The petitioner accurately identified the major Columbia River 
tributaries known to have spawning runs of eulachon. However, the 
species' distribution ranges from northern California to Alaska and the 
petitioner did not describe why Columbia River eulachon are distinct 
from other coastal populations. In fact, the petitioner acknowledged 
that eulachon originating from the Columbia River appear to make 
spawning runs into other coastal streams, including the Chehalis, 
Quinault, Quillayute, and Queets Rivers. Washington state and tribal 
sources substantiate the species' occurrence in these rivers as well as 
Willapa Bay (J. DeVore, Washington Department of Fisheries, pers. 
comm.) and the Moclips River (S. Ellis, Northwest Indian Fisheries 
Commission, pers. comm.). Such behavior may not support the contention 
that the Columbia River basin is a DPS for this species. Additionally, 
NMFS reviewed recent genetic data from McLean et al. (in press) 
indicating that there is little genetic differentiation between 
eulachon stocks from Alaska, Oregon, Washington, and British Columbia. 
These authors contrast this lack of population structure to the more 
distinct subdivisions seen in other anadromous fish, notably Pacific 
salmon. McLean et al. (in press) also cite reports of significant 
recent declines in British Columbia eulachon populations, but assert 
that genetic data suggest that the long term adaptive potential of this 
species has likely remained unharmed. The petitioner similarly noted 
some of the genetic findings in McLean et al. (in press), but failed to 
refute them or provide evidence that the Columbia River populations may 
be an entity (DPS) suitable for listing under the ESA.
    Environmental conditions also appear to play a major role in the 
choice of spawning areas, as reflected in the opportunistic selection 
of spawning sites and in the lack of genetic differences between areas. 
The petitioner cited information indicating a correlation between water 
temperature and migration timing, noting that ``eulachon strayed to a 
number of Washington coastal areas in 1993 due to the cold water 
temperature in the Columbia River system.'' Hence there is evidence 
indicating that eulachon originating from the Columbia River basin are 
not necessarily distinct from other coastal populations.
    NMFS also assessed whether the petitioner accurately reflected any 
known trends in abundance or threats to the species, and moreover, 
whether these trends/threats would lead a reasonable person to believe 
that the species was threatened or endangered under the ESA. Section 3 
of the ESA defines the term ``endangered species'' as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range.'' The term ``threatened species'' is defined as 
``any species which is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range.''
    The petitioner provided data summarizing the commercial catch of 
eulachon in the Columbia River and five tributaries from 1938-1999. 
These data suggest that eulachon catches are currently at a historic 
low. However, a closer examination underscores that caution is needed 
before interpreting these data as a good estimator of actual population 
abundance. For example, the data clearly show that catches of zero fish 
are not necessarily indicative of a population that, as asserted by the 
petitioner, has ``no reasonable expectation of being able to recover 
over time by itself and/or from the surplus production of an adjacent 
or nearby population of the same species.'' All of the tributary catch 
records presented in the petition contain at least 2 consecutive years 
when eulachon landings were nonexistent (and as many as 16 consecutive 
years). Of significance is that several of these ``disappearances'' 
have occurred over a period longer than the species' reported life 
span. Also, zero catch years are not a recent phenomenon; the petition 
contains data indicating that zero landings were reported in at least 
one of the major tributaries as early as 1938 and possibly decades 
earlier.
    Eulachon have been a commercially important species for more than 
100 years. As noted by the petitioner, variable market demand for the 
species resulted in annual run sizes that ``were often much larger and 
varied much more from year to year than the catches indicated.'' Still, 
these data do allow for a qualitative approximation of run strength 
which has evidently been much weaker in recent years. Aside from market 
effects, there have been considerable changes in harvest management for 
this species during the past 40 years. These changes have generally 
resulted in more restrictive fisheries (e.g., prompted by suspected 
population declines), hence catch data in more recent years are not 
directly comparable to historic data and, moreover, may not accurately 
reflect recent run strength. While this species' population dynamics 
are not well understood, even the low harvests seen during 1993-1998 
(1999 estimates are probably four times higher than those cited in the 
petition; J. DeVore, Washington Department of Fisheries, pers. comm.) 
equate to an average of well over one million eulachon returning to the 
Columbia River basin in recent years. This figure could be a 
considerable underestimate as it does not account for additional fish 
that are harvested by sport fishers as well as fish that escape the 
fisheries but are unsurveyed.
    It is generally believed that this species has a highly variable or 
possibly cyclical run size. In fact, the petitioner cites a 1959 report 
by the Washington

[[Page 66603]]

Department of Fisheries noting ``the erratic behavior of these tiny 
fish and the difficulty of predicting whether or not a tributary run 
will appear.'' Such a contention is also supported by the petition's 
catch data. A case in point is the Cowlitz River which has produced the 
highest overall landings and, on average, produced over 56 percent of 
the commercial catch of eulachon since 1938. However, this fishery has 
undergone major swings in catch, ranging from zero to nearly 100 
percent of the reported landings for the entire Columbia River basin. 
Of note is a period of historically low catches in 1949 (800 lbs.; 
363.20 kg), 1950 (zero), and 1951 (zero). This 3-year low was followed 
by 3 years when landings totaled approximately 381,000 lbs. (172,974 
kg), 795,000 lbs. (360,930 kg), and 793,000 lbs (360,022 kg). Other 
data provided by the petitioner clearly demonstrate the tremendous 
variability in this species' catch record. For example, the Sandy River 
experienced 16 consecutive years of zero catches, followed by a 5-year 
period which yielded the second (1977) and fourth (1979) highest 
landings on record. Similar evidence can be seen in the catch records 
for the Grays, Kalama, and Lewis Rivers where eulachon seemed to 
disappear from the catch data for 5 or more years (i.e., greater than 
the species' reported life span) only to return to these rivers, 
sometimes in near record abundance.
    There were few data provided in the petition (or readily available 
to NMFS) on eulachon run sizes in coastal streams, aside from mention 
that some Washington coastal streams have had occasional spawning runs. 
Emmett et al. (1991) characterized adult eulachon as abundant in the 
Columbia and Klamath Rivers, common in Grays Harbor, Willapa Bay, and 
the Umpqua River, and rare in Puget Sound, the Siuslaw River, Coos Bay, 
Rogue River, and Humboldt Bay. While these characterizations may not 
reflect more recent eulachon abundances (which were of primary concern 
to the petitioner), they do indicate that there are potentially 
numerous streams - within and outside the Columbia basin - that are 
unsurveyed but still used by spawning eulachon.
    Recent sampling for larval eulachon also demonstrates that the 
commercial catch record does not represent a complete picture of the 
species' distribution and abundance. For example, zero eulachon were 
reported in the 1998 landings for the Grays, Kalama, Lewis, and Sandy 
Rivers. However, information supplied in the petition indicated that 
1998 surveys yielded larval eulachon in all of these tributaries. As 
noted previously, several large coastal streams in Washington have also 
had recent spawning runs of eulachon, and other Columbia River 
tributaries are also believed to attract spawning eulachon, but these 
populations are of unknown size and largely unsurveyed (P. Frazier, 
Oregon Department of Fish and Wildlife, pers. comm.). In summary, these 
catch data are not a reliable measure of population abundance or even 
eulachon presence/absence.
    Finally, the petitioner noted several potential factors for 
decline, including harvest (recreational, commercial, and bycatch), 
pinniped and avian predation, competition/predation from American shad 
(Alosa sapidissima), adverse environmental conditions, habitat loss, 
and productivity concerns potentially attributable to skewed sex ratios 
in the eulachon population. While much of this is speculation or based 
on correlations with little or no solid research basis, the NMFS 
concurs with information presented in the petition indicating that 
ocean conditions are probably the most important factor controlling 
eulachon abundance, and even riverine conditions (e.g., water 
temperature) play a major role in determining the species' spawning 
distribution and abundance.

Petition Finding

    After reviewing the petition, as well as information readily 
available to NMFS scientists, the NMFS determines that the petition 
does not present substantial scientific information indicating the 
petitioned action may be warranted. While the petition does indicate 
that eulachon catches have recently declined in the Columbia River 
basin, NMFS does not believe that the information is substantial enough 
to warrant a status review at this time. This finding is supported by 
observations that the species is likely more abundant than commercial 
landings indicate and, based on life history attributes (e.g., the 
species' high fecundity and short life span) and assumptions from catch 
data and anecdotal reports, has a demonstrated ability to rebound from 
periods of low abundance.
    The data provided by the petitioner and available to NMFS are far 
from robust, hence the decision to not initiate a status review relies 
heavily on the professional judgement of agency scientists. However, 
there is some cause for concern over the species' apparent decline in 
the Columbia River basin and NMFS will admonish state and tribal co-
managers to redouble efforts focusing on eulachon management and 
research. In particular, the agency will underscore the need to 
evaluate whether current harvest strategies are adequately protective 
of the species and to move apace with additional, more accurate 
eulachon abundance and life history surveys. The Washington Department 
of Fish and Wildlife has recently identified the eulachon as a 
candidate for state listing as threatened or endangered, and the 
resultant studies and status reports should yield information critical 
for determining the health of Washington eulachon stocks, including 
stocks outside the Columbia River basin but potentially related to the 
petitioned populations. If new information becomes available to suggest 
that the eulachon may in fact warrant listing under the ESA, NMFS will 
reconsider conducting a species status review.

References

    Emmett, R.L., S.A. Hinton, S.L. Stone, and M.E .Monaco. 1991. 
Distribution and abundance of fishes and invertebrates in West Coast 
estuaries, Volume II: species life history summaries. Estuarine Living 
Marine Resources Program Report No. 8. NOAA/NOS Strategic Environmental 
Assessments Division, Rockville, MD. 329 p. (Available from Protected 
Resources Division, NMFS., 525 NE. Oregon Street, Portland, OR 97232.)
    McLean, J.E., D.E. Hay, and E.B. Taylor. In Press. Marine 
population structure in an anadromous fish: life history influences 
patterns of mitochondrial DNA variation in the eulachon, Thaleichthys 
pacificus. Department of Zoology, University of British Columbia, 
Vancouver, B.C.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701; 16 U.S.C. 1361 et seq.

    Dated: November 22, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-30915 Filed 11-26-99; 8:45 am]
BILLING CODE 3510-22-F