[Federal Register Volume 65, Number 223 (Friday, November 17, 2000)]
[Rules and Regulations]
[Pages 69459-69483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29423]



[[Page 69459]]

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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF80

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 991108299-0313-02; I.D. 102299A]
RIN 0648-XA39


Endangered and Threatened Species; Final 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; U.S. Fish and Wildlife 
Service (FWS), Interior.

ACTION: Final rule.

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

SUMMARY: The National Marine Fisheries Service (NMFS) and the U.S. Fish 
and Wildlife Service (FWS) (the Services) determine endangered status 
pursuant to the Endangered Species Act of 1973 (ESA), as amended, for 
the Gulf of Maine distinct population segment (DPS) of Atlantic salmon. 
A biological review team (BRT) composed of the Services' staff 
completed a comprehensive status review of Atlantic salmon which 
resulted in the proposed listing on November 17, 1999. After reviewing 
additional information, including information submitted during the 
comment period on the proposed listing, and after considering the low 
numbers of returning adults, the lower than anticipated parr to smolt 
survival, and the serious and continuing nature of threats to the 
species, the Services conclude that the Gulf of Maine DPS warrants 
protection under the ESA. The Services have determined that the Gulf of 
Maine DPS is in danger of extinction throughout its range.

DATES: The effective date of this rule is December 18, 2000.

ADDRESSES: The complete file for this final rule is available for 
inspection, by appointment, during normal business hours at the 
National Marine Fisheries Service, One Blackburn Drive, Gloucester, 
Massachusetts 01930; or the U.S. Fish and Wildlife Service, 300 
Westgate Center Drive, Hadley, Massachusetts 01035.

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

Species Life History and Status

    A summary of the status of Atlantic salmon in Maine is included in 
this document. Additional biological information for the Gulf of Maine 
DPS of Atlantic salmon can be found in the Services' 1995 and 1999 
status reviews. The 1999 Status Review can be viewed at the following 
site: http://news.fws.gov/salmon/asalmon.html. This information is also 
summarized in previous Federal Register documents (59 FR 3067, January 
20, 1994; 60 FR 14410, March 17, 1995; 60 FR 50530, September 29, 1995; 
62 FR 66325, December 18, 1997; 64 FR 62627, November 17, 1999).

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 DPSs at levels 
below taxonomically recognized species or subspecies.
    The Services have published a policy (61 FR 4722, February 7, 1996) 
to clarify the phrase ``distinct population segment'' for the purposes 
of listing, delisting, and reclassifying species under the ESA. This 
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 the ESA listing standards. The 
conservation status for this DPS will be discussed in relation to the 
ESA's listing factors.
    A population segment may be considered discrete if it satisfies 
either 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 within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA.
    The Services examined life history, biogeographical, genetic, and 
environmental information in evaluating Atlantic salmon throughout its 
U.S. range. The Services used zoogeographic maps of boundaries between 
areas that likely exert different selective pressures on Atlantic 
salmon populations and have substantial differences in riverine-marine 
ecosystem structure and function. Key elements to these determinations 
include: (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. Atlantic salmon populations were comprised of at 
least three population segments: Long Island Sound, Central New 
England, and Gulf of Maine. As detailed in the 1999 Status Review, the 
Long Island Sound and the Central New England population segments have 
been extirpated. The following two sections on discreteness and 
significance provide the rationale for the Services' determination that 
the Gulf of Maine populations comprise a DPS.
    The Gulf of Maine DPS includes all naturally reproducing remnant 
populations of Atlantic salmon from the Kennebec River downstream of 
the former Edwards Dam site, northward to the mouth of the St. Croix 
River. The DPS includes both early- and late-run Atlantic salmon (Baum, 
1997). The river specific hatchery reared fish are also included as 
part of the DPS. However, these hatchery fish will not count toward a 
delisting until they have spawned naturally in the wild. Historically, 
the Androscoggin River delimited the range of the DPS to the south, but 
populations south of the Kennebec River have been extirpated.
    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 and Cove Brook.

Discreteness of the Gulf of Maine Population Segment of Atlantic Salmon

    The Services examined three major indicators to determine whether 
the Gulf of Maine population segment of Atlantic salmon is separate 
from other

[[Page 69460]]

populations: (1) Straying of spawning fish from their natal river; (2) 
recolonization rates outside the range of the population segment; and 
(3) genetic differences observed throughout the range of Atlantic 
salmon. The separateness analysis for the Gulf of Maine population 
segment from other Atlantic salmon populations reviewed the following: 
(1) persistence of these populations; (2) geographic segregation; (3) 
limited stocking from outside the population segment; and (4) genetic 
analyses. The Services conclude from this information that genetic and 
demographic data demonstrate the Gulf of Maine population segment is 
separate from other populations to the north.
    The Services also conclude that while it is unlikely that any 
Atlantic salmon populations in the United States 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 population segment 
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 that formerly extended from the 
Housatonic River in Connecticut to the headwaters of the Aroostook 
River in Maine.
    The northern range of the Gulf of Maine population segment is 
delimited by the natural zoogeographical constraints on local 
adaptations and 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. Therefore, 
the Services conclude that the Gulf of Maine population segment of 
Atlantic salmon satisfies both criteria for demonstrating discreteness, 
as outlined in the Services' DPS Policy. However, we note that it is 
only necessary to satisfy one of these criteria to conclude that the 
population segment is discrete from other populations.

Significance of the Gulf of Maine Population Segment 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 may include, but is not limited to, 
the following: (1) Persistence of the discrete population segment in an 
ecological setting unusual or unique for the taxon; (2) evidence that 
loss of the discrete population segment would result in a significant 
gap in the range of a taxon; (3) 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 (4) 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 population segment 
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, 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 
population segment have persisted in their native range. The loss of 
this population segment would result in a significant gap in the range 
of this taxon, moving the range of this species 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.
    We cannot ignore that artificial selection created by hatchery 
practices has had some influence upon the present genome of the Gulf of 
Maine population segment. 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 
population segment range, the Services conclude that hatchery fish have 
not substantially introgressed with the remnant populations and genomes 
of the fish that comprise the Gulf of Maine population segment. The 
majority of fish stocked into the population segment rivers came from 
the Penobscot hatchery stock, which, in turn, had originated from the 
population segment rivers earlier this century (Baum, 1997). The 
Services believe that there is an important genetic legacy remaining in 
the population segment, 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 are considered vitally 
important to the species' future survival.
    Based on a review of available information, the Services concluded 
that the Gulf of Maine population segment of Atlantic salmon meets both 
criteria for discreteness. Available data demonstrate that the 
population segment has unique life history characteristics that have a 
heritable basis and that both environmental and genetic factors make 
the Gulf of Maine population segment different from other populations 
of Atlantic salmon in their life history and ecology. Further, the 
Services conclude that the available information supports the 
conclusion that the Gulf of Maine population segment of Atlantic salmon 
is biologically and ecologically significant. The Gulf of Maine 
population segment satisfies the first two criteria of the Services' 
DPS policy because it is both discrete and significant, and therefore, 
it is a DPS. The third and final element is the conservation status of 
the population segment in relation to the ESA's standards for listing. 
The conservation status of the DPS is examined in the following 
sections which provide an overview of the habitat within the DPS, 
population abundance, and an analysis of the listing factors.

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 
the former Edwards Dam site, northward to the mouth of the St. Croix 
River. The Penobscot and its tributaries are only included downstream 
from the site of the Bangor Dam. 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. There is less known about the 
habitat and population ecology of smaller rivers, with the possible 
exception of Cove Brook (Meister, 1962; Baum, 1997).
    Broadly speaking, the watersheds within the DPS are sparsely 
populated and generally are managed for the growth and harvest of 
forest products and lowbush blueberries. The Ducktrap and Sheepscot 
River watersheds were once intensively farmed but are now mostly 
forested. The habitat within the

[[Page 69461]]

DPS range is generally characterized as being free-flowing, medium 
gradient, cool in water temperature, and suitable for spawning in 
gravel substrate areas.

Population Abundance of the Gulf of Maine DPS

    Abundance is a critical criterion in assessing the status of a 
species under the ESA. Current abundance compared to historical levels 
and analysis of recent trends were used to determine the biological 
status of Atlantic salmon of the Gulf of Maine DPS. Documented returns 
of adult Atlantic salmon within the DPS range are low relative to 
conservation escapement goals (U.S. Atlantic Salmon Assessment 
Committee (USASAC), 1999). The conservation escapement goal is defined 
as the number of returning adults needed to fully use the spawning 
habitat. The total documented natural (wild & stocked fry) spawner 
returns to the rivers of the Gulf of Maine DPS range for the past 5 
years were: 1995 (83); 1996 (74); 1997 (35); 1998 (23); 1999 (32); and 
2000 (22) (preliminary data). It must be noted that counts are provided 
only for rivers with trapping facilities and only for periods when 
those facilities were operational. Therefore, the documented count does 
not represent a complete count of adult returns to the rivers within 
the DPS range.
    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 pre-
fishery abundance is an estimate of the one sea winter fish (1SW), 
(fish that have spent one winter in the sea since leaving the river) in 
Greenland prior to the fishery and is used as a possible indicator of 
future returns to homewaters. The apparent non-response to improving 
marine habitat to date is believed to be caused, in part, by generally 
depressed spawning populations in North American home rivers and the 
resultant low number of juvenile salmon entering the ocean.
    Generally speaking, densities of young-of-the-year salmon (0+) and 
parr (1+ and 2+) remain low relative to potential carrying capacity. 
The numbers indicate how long the parr have been in the rivers 
subsequent to hatching. In Maine, most parr remain in the rivers for 2 
years. These depressed juvenile abundances, where not supplemented by 
stocking, 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. 
In addition, the NMFS and the ASC have been conducting a study on the 
Narraguagus River, monitoring the outmigration of smolts including the 
timing of migration, survival, length, weight, and the number of smolts 
from 1996 through 1999 (Kocik et al., 1998a).
    Since 1996, estimates of large parr in the Narraguagus River have 
ranged from 11,700 to 27,000, while corresponding outmigrating smolt 
estimates range from 2,800 to 3,600. Even in years with a substantial 
increase in large parr production (126 percent), smolt production has 
increased only modestly (3 percent). Total estimated smolt production 
in the Narraguagus is well below the estimated production capacity 
(18,000) and warrants further investigation. The preliminary estimate 
of the emigrant smolt population in the Narraguagus in 1999 was 3,607, 
which would represent production from the 1996-1997 spawners. Based on 
this, an average overwinter survival for 1999 was calculated to be 14.3 
percent. Overwinter survival in 1999 was significantly lower than 
observed in 1997 (24.4 percent) and not statistically significantly 
different from 1998 estimates. 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 the Narraguagus River 
for all years studied 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, smolt production from freshwater habitat is much 
lower than would be expected based on habitat surveys and prior 
estimates of survival rates. These substantially lower survival rates 
could be negatively impacting population recovery. Additionally, 
researchers found that approximately half of the 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. 
The cause for the low survival rates has not been identified.
    To determine if recent pre-smolt and marine survival estimates on 
the Narraguagus River are representative of other downeast Maine 
Atlantic salmon rivers, a similar study was conducted on the Pleasant 
River. In 1999 from April to June, 676 smolts were captured in a smolt 
trap on the Pleasant River. An additional 31 fish were captured with 
fin deformities and coloration, and body form suggesting that they were 
of hatchery origin. A commercial hatchery that raises Atlantic salmon 
smolt is located upstream of the capture site.
    Given the data reviewed and summarized 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 fact that 
spawner abundance is less than 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. Fry are being stocked to fill available habitat 
and parr abundance is increasing as a result. The number of smolts 
leaving the river, however, is not increasing at the same rate.

Conservation Hatchery Program

    Broodstock developed from wild fish from the Dennys, East Machias, 
Machias, Narraguagus and Sheepscot Rivers are held at Craig Brook 
National Fish Hatchery (CBNFH) in Orland, Maine. These captive 
broodstock increase the effective population size for these rivers and 
provide a buffer against extinction. Parr were collected from the 
Pleasant River and were transferred to the North Attleboro National 
Fish Hatchery (NANFH) in Massachusetts. These Pleasant River fish were 
later destroyed due to the presence of a newly discovered Atlantic 
salmon viral disease, Salmon Swimbladder Sarcoma Virus (SSSV). In the 
spring of 2000, program cooperators initiated a second attempt to 
rebuild a captive wild broodstock for the Pleasant River salmon 
population. This was made possible by the creation of six isolation 
bays as part of the reconstruction of the CBNFH. A trap on the Pleasant 
River at Columbia Falls captured emigrating Atlantic salmon smolts to 
help enumerate the population and to determine origin (wild or 
aquaculture). A total of 37 smolts and 24 age 2+ parr were brought into 
the CBNFH for holding until they mature for broodstock. Subsequently, 
52 age 1+ parr were collected during the summer of 2000 to augment the 
earlier smolt and parr collections.
    The response of Atlantic salmon populations to supplemental 
stocking programs can be partially evaluated based on juvenile 
production, but adult

[[Page 69462]]

returns are the ultimate evaluation measure. It takes over 4 years from 
initial fry stocking to detect a response to that stocking in terms of 
returning adults. A substantial number of fry must be stocked to 
produce significant results due to the normal high mortality of 
juvenile fish. Because stocking did not begin in some rivers until 1996 
and several year classes are necessary to present a trend, it will not 
be known until at least 2001 if fry-stocked fish will contribute a 
substantial element to all five rivers for which there is a river-
specific stocking program.
    All of the broodstock held at the CBNFH are now fitted with Passive 
Integrated Transponder (PIT) tags which allow for complete tracking and 
management of the broodstock, as well as tracking the mating and 
offspring of the broodstock. In 1999, the FWS expanded its Atlantic 
salmon genetics program to include genetic characterization of all 
broodfish used for the rehabilitation of Maine's wild populations. This 
characterization will help managers maintain the genetic integrity of 
wild and captive fish, identify appropriate management units, help 
prevent irreversible losses of genetic diversity, and evaluate the 
stocking program. Additional details on protocols used within CBNFH are 
described in the ``Response to Comments'' section of this document. In 
addition to the CBNFH program, the Maine aquaculture industry is 
participating in the supplementation program by raising fish derived 
from the broodstock. These fish were stocked in the Dennys and Machias 
Rivers as potential spawners in the fall of 2000.

Previous Federal Actions

    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). Both Services received identical petitions 
in October and November of 1993 to list the Atlantic salmon (Salmo 
salar) throughout its historic range in the contiguous U.S. under the 
ESA. On January 20, 1994, the Services found that the petition 
presented substantial scientific information indicating that a listing 
may be warranted (59 FR 3067).
    The Services conducted a joint review of the species in January 
1995, and found that the available biological information indicated 
that the species described in the petition, 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 
United States range was not warranted (60 FR 14410, March 17, 1995). In 
the same notice, the Services determined that a DPS that consisted of 
populations in seven rivers (the Dennys, East Machias, Machias, 
Pleasant, Narraguagus, Ducktrap, and Sheepscot Rivers) did warrant 
listing under the ESA. 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. In response to that special 
provision in the proposed rule, the Governor of Maine convened a task 
force which developed a Conservation Plan for Atlantic Salmon in the 
seven rivers. That Conservation Plan was submitted to the Services in 
March 1997.
    The Services reviewed information submitted from the public, 
current information on population levels, and assessed the adequacy of 
the Maine Atlantic Salmon Conservation Plan, 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 wild stock characteristics. NMFS 
maintained the Gulf of Maine DPS as a candidate species to acknowledge 
ongoing concern over the species' status. 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. On 
January 20, 1999, the Services invited comment from the public on the 
first annual report and other information on protective measures and 
the status of the species. 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 State of Maine 
responded to the Services' comments on April 13, 1999.
    In order to conduct a comprehensive review of the protective 
measures in place and the status of the species, as was committed to in 
the 1997 withdrawal notice, the BRT was reconvened to update the 
January 1995 Status Review for Atlantic salmon. The 1999 Status Review 
was made available on October 19, 1999 (64 FR 56297). On November 17, 
1999, the Services published a proposed rule to list as endangered the 
Gulf of Maine Atlantic salmon DPS, which includes all naturally 
reproducing remnant populations of Atlantic salmon from the Kennebec 
River downstream of the former Edwards Dam site northward to the mouth 
of the St. Croix River at the United States-Canada border. The Services 
stated that to date they had determined that these populations are 
found in the Dennys, East Machias, Machias, Pleasant, Narraguagus, 
Sheepscot, and Ducktrap Rivers and in Cove Brook, all in eastern Maine.
    The proposed rule invited comment from the public and specifically 
solicited comments 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 the DPS; (4) current or planned activities in the 
subject area and their possible impacts on this DPS; (5) additional 
efforts being made to protect naturally reproducing populations of 
Atlantic salmon; and (6) the relationship of existing hatchery 
populations to natural populations of the DPS.

[[Page 69463]]

Summary of Comments and Information Received in Response to the 
Proposed Rule

    We have reviewed all written and oral comments received during the 
comment period and have incorporated updated data and information into 
appropriate sections of this rule. We have organized substantive 
comments concerning the proposed rule into specific issues. We grouped 
comments of a similar nature or subject matter into a number of broader 
issues. These issues and our response to each are presented in the 
subsections below.
    The proposed rule announced a comment period to close on February 
15, 2000. On January 7, 2000, the Services extended the comment period 
to March 15, 2000 (65 FR 1082). On March 15, 2000, the Services further 
extended the comment period to April 14, 2000 (65 FR 13935). During the 
150-day public comment period, the Services received over 200 written 
comments. Three public hearings were held: January 29, 2000, in 
Machias, Maine; January 31, 2000, in Ellsworth, Maine; and February 1, 
2000, in Rockland, Maine (65 FR 1082). Nearly 1,000 individuals 
attended the three public hearings.
    In addition to soliciting and reviewing public comments, the 
Services must seek peer review of its listing proposals. On July 1, 
1994, the Services published a series of policies regarding listings 
under the ESA, including a policy for peer review of proposed listings 
(59 FR 34270). In accordance with this policy, on February 9, 2000, the 
Services requested peer review of the proposed rule. The proposed rule 
and status review were sent to six reviewers and responses were 
received from three of these reviewers.
    A summary of the peer review comments and the other comments 
received in response to the proposed rule follows.

Issue 1: Peer Review

    Comment 1: Some commenters voiced objections that the proposed rule 
and genetic data have not been peer reviewed.
    Response: The 1995 proposed rule, 1995 status review, 1997 genetics 
reports, and the November 1999 proposed rule were subjected to 
international peer reviews. Six scientists outside the Services with no 
involvement in the status review process were asked to critically 
review the proposed rule; three responded. The three peer reviewers 
concluded that the recommendation to list the population as endangered 
was consistent with the current status of the population and the 
requirements of the ESA.
    One peer reviewer stated that there was insufficient evidence in 
support of the Gulf of Maine DPS designation but recommended that its 
conservation status warranted special consideration. That reviewer also 
stated that because Atlantic salmon have a refined homing instinct with 
minimal straying, the status of Atlantic salmon populations in Canada 
will have no bearing on the persistence and recovery of Atlantic salmon 
in Maine. That reviewer further stated that the absence of irrevocable 
evidence of genetic and ecological discreteness, as well as 
significance, is irrelevant in this context.
    The second peer reviewer agreed with the overall conclusions of the 
proposed rule, but pointed out several areas of inconsistencies in the 
proposed rule. This reviewer raised concern over the fact that Atlantic 
salmon aquaculture is already well established in the DPS range and 
expressed concern over the use of weirs to identify the influence of 
aquaculture-reared fish on the wild salmon. This reviewer cautioned 
against the use of hatchery stocks for restoration, and advised that a 
genetic monitoring regime should be implemented for each hatchery 
stock. Finally, this reviewer recommended a greater discussion of the 
implications of dams (both natural and artificial) and dam removal on 
historic and potential life history strategies for Atlantic salmon.
    The third peer reviewer supported listing and found the biological 
information to be well founded and described, and concurred that the 
population segment is discrete and in danger of extinction. This 
reviewer cited run timing, size of fish, strong homing instincts, sea 
age at maturity, and management differences in the United States and 
Canada as evidence of a DPS. This reviewer expressed concern over the 
low numbers of adult returns and stated that the heavy loss of smolts 
on their outward migration suggested a hypothesis related to endocrine 
disrupting chemicals from chemical spray and other endogenous sources. 
This reviewer stated that the conclusion that aquaculture practices 
must be carefully controlled and regulated is justified and cited 
information from Norway and Scotland as support. This reviewer 
encouraged further investigation to discover the magnitude and causes 
of at sea mortality and encouraged consideration of the possible 
effects of climate change on the Gulf of Maine DPS.
    Comment 2: Several comments were made that the Federal stocking 
program should be subjected to an external peer review.
    Response: The Services supported the premise of a peer review of 
the salmon hatchery program when it was requested by the State of Maine 
in January 1999. The Services continued to cooperate with the State of 
Maine, Trout Unlimited, and the National Fish and Wildlife Foundation 
in assembling the peer review panel and the scope of the review. This 
initiative ended in late 1999, when the State of Maine withdrew its 
support. The Services would again support an external review of the 
state, Federal, and private hatchery programs in Maine.

Issue 2: Accuracy and Sufficiency of the Scientific Data

    Comment 3: Several commenters stated that there is a lack of data 
on the actual population size of the DPS and the causes of the stated 
decline. Comments specifically questioned the exclusion of Penobscot 
River adult returns from the DPS data and the present existence of any 
wild salmon populations in the Pleasant and Dennys Rivers. It was 
suggested that no revision of the earlier 1997 decision as to the 
status of the DPS should be made until all data are demonstrated to be 
complete and unequivocal.
    Response: The numbers reported in the 1999 Status Review and 
reflected in the proposed rule represent actual fish counts. The 
Narraguagus River is the only river with relatively complete and 
accurate population data during the period of population decline. Adult 
salmon counts on the other DPS rivers are either partial or completely 
lacking. However, during the review period there were counts of 
spawning redds in those rivers that provide strong and consistent 
circumstantial evidence that the decline in adult salmon spawners 
documented in the Narraguagus River occurred simultaneously in other 
DPS rivers. The implication of the redd counts is that the entire adult 
salmon population in the Gulf of Maine DPS numbers in the low hundreds. 
The number of adults counted annually at the Veazie Trap in the 
Penobscot River are the direct or indirect product of salmon juveniles 
stocked from Green Lake and CBNFH as part of the 30-year restoration 
effort in that river. The Penobscot, with the exception of Cove Brook, 
which is a tributary to the Penobscot, is not currently considered part 
of the Gulf of Maine DPS. The return numbers to the Penobscot are of 
interest because they provide insight into the marine survival of North 
American stocks.

[[Page 69464]]

    A partial salmon trapping program and the observation of redds in 
the Dennys River and occasional observation of wild adult salmon and 
redds most years in the Pleasant River are adequate indications that a 
salmon population still exists at some level in those rivers. Because 
of its proximity to marine cages, the Dennys River is most likely to 
bear the greatest impact from aquaculture escapees. However, the 
genetic analyses of individuals taken as juveniles from the Dennys 
River to be used as broodstock for the CBNFH indicate that these fish 
are of wild origin. The Pleasant River population is probably the most 
at risk due to low numbers of adults combined with juvenile fish that 
escaped from or were discharged from an aquaculture hatchery in the 
watershed. We do not believe that the failure to observe redds for one 
year is evidence of extinction. In fact, as of August 2000, three wild 
adult salmon were reported at the weir site. At any point in time, 
there are usually 5 or more different generations, or year classes, of 
a river population in existence. A failure of one spawning year class 
does not represent extinction. There is also the possibility that redds 
were present but not observed because of river conditions.
    The data for adult salmon returns and for juvenile salmon within 
rivers in the DPS are not complete, but clearly demonstrate that a 
serious population decline has occurred over the past 10 to 15 years. 
The database on redd counts, the thorough documentation of the 
Narraguagus population trend, the general sea survival trend indicated 
by hatchery-based populations on the Penobscot, the extensive database 
on population trends on many Canadian rivers and the abundance 
estimates of 1SW salmon off the West Greenland feeding grounds 
maintained by the International Council for the Exploration of the Sea 
(ICES), all provide evidence of the precarious state of the Gulf of 
Maine DPS of Atlantic salmon.
    Comment 4: One commenter complained that the Services failed to 
provide the raw data that formed the basis of the description of the 
DPS and the conclusion that the DPS was in danger of extinction.
    Response: All data used by the Services in the development of the 
proposed rule was referenced in the Review of the Status of Anadromous 
Atlantic Salmon (Salmon salar) Under the United States Endangered 
Species Act (July 1999) and has been available through a number of 
sources. The genetics information used in the Status Review and 
proposed rule is contained in reports that present analyses of raw 
genetics data developed by the USGS, and much of it has been available 
on the internet. The raw data for these genetic reports were requested 
by the State of Maine and provided by the USGS. Because the USGS had 
not yet completed compiling the most recent raw genetics data 
available, there was a delay in responding to a request for these data. 
The data were provided to the requestor as soon as processing and 
quality control requirements were completed by the laboratory. These 
new data were not available for use or consideration in the development 
of the proposed rule, nor were these data relied upon in the 
development of the final rule.
    Comment 5: Some commenters stated that there was no basis in the 
information available to justify revision of the decision made relative 
to the 1997 withdrawal.
    Response: The reasons for the November 17, 1999, proposed listing 
are specifically described on pages 62636 and 62637 of the published 
proposed rule. The second paragraph on page 62637 stipulates the 
factors that are primary sources of concern. Major changes in the 
status of salmon documented by data available after the 1997 decision 
and leading up to the 1999 proposed rule relate to new disease and 
genetic threats, continuing concerns about threats posed by aquaculture 
escapees, lack of progress in resolving concerns over existing 
aquaculture practices, low juvenile in-river survival levels, 
continuing decline in adult returns, and the lack of sufficient 
progress in dealing with sport fishing (at that time) and water 
withdrawals.
    Comment 6: Some commenters stated that there are no data to form a 
basis for the Services' determination that the population will go 
extinct rather than recover in response to current recovery activities.
    Response: The data available from the study of juvenile survival in 
the Narraguagus River, the discovery of a large number of aquaculture 
hatchery origin juveniles in the Pleasant River, a new and growing 
threat of a fatal viral disease, Infectious Salmon Anemia (ISA), the 
increasing use of European strain salmon by the Maine aquaculture 
industry, and the extremely low marine survival indicated by data 
developed by the ICES, were considered in the context of the data and 
show a continued decline of DPS adult salmon returns. Under such 
circumstances, the Services have determined that a listing of 
``endangered'' is appropriate. A recovery plan will be developed which 
will contain recovery targets. When those recovery targets are 
achieved, then the Gulf of Maine DPS may be considered for 
reclassification.

Issue 3: Inclusion of Other Rivers

    Comment 7: Some commenters questioned why other Atlantic salmon 
rivers, such as the Penobscot, in the geographic range of the DPS were 
not included in the proposed rule.
    Response: Salmon from a given river were excluded from the DPS if 
information indicated that the fish likely did not substantially 
represent a wild population that had persisted through time. 
Information used to make that determination included the existence of a 
reproducing population that historically had access to natal spawning 
habitat adequate to have persisted, and the likelihood and extent of 
introgression with fish from outside the geographic range of the DPS. 
This latter factor was assessed with a variety of data including 
stocking history (number of fish, life stages, and source population), 
return rates of stocked fish, the origin of returning adults (i.e., 
hatchery vs. wild), and genetic characterization.
    Tributaries in the lower portion of the Penobscot River (south of 
the Bangor dam) were included within the geographic range of the DPS 
because of their continued historic free access to migrating salmon, as 
evidenced by the existence of at least one genetically unique, 
naturally reproducing population. A decision whether to include or 
exclude fish that inhabit the mainstem of the river or tributaries 
above Bangor dam has been deferred until further analysis has been 
completed, including a detailed genetic characterization. Samples have 
been collected and are currently being analyzed. The Services plan to 
make a determination as to the appropriateness of adding the mainstem 
and upper tributaries of the river to the DPS in the year 2001.

Issue 4: Reason for Observed Genetic Difference

    Comment 8: Some commenters questioned whether the genetic 
differences noted between the fish from the Gulf of Maine DPS and 
Canadian populations, and among populations in the DPS, could reflect 
the effects of small population size (e.g., population bottlenecks, 
genetic drift, founder effects) or introgression of non-native fish, 
rather than the existence of historical, adaptively important genetic 
differences.
    Response: Numerous studies have shown that Atlantic salmon are

[[Page 69465]]

naturally substructured into genetically differentiated populations, 
and that this structure is important to the overall fitness and 
productivity of the species. Recent analyses indicate that genetic 
structure exists among the fish in the DPS rivers. Whether this 
structure reflects the existence of adaptively important traits is 
subject to varying interpretations, although it should be noted that 
the different interpretations of the data presented are not mutually 
exclusive. Small populations can maintain important, genetically based, 
adaptive traits.
    After analysis of all available data, especially in the context of 
the DPS representing the extreme southern terminus of the present range 
of wild stocks in North America, the Services concluded that the 
remaining populations have retained unique, adaptively important 
genetic traits, the loss of which could preclude recovery of self-
sustaining populations. Hence, the Services are concerned with 
preventing irreversible changes to the genetic integrity of the 
remaining populations.
    Recognizing that there are differences in how the genetic data are 
interpreted, it should be noted that the genetic differences observed 
among wild populations within North America are not central to the 
listing decision. The Gulf of Maine DPS is delineated largely by its 
unique geographical location and ecological setting relative to other 
salmon populations.

Issue 5: Delineation of the Gulf of Maine DPS

    Comment 9: Some stated that the proposed DPS appears to have been 
contoured to coincide with the political need of the Federal restocking 
program to justify the capital and operational costs of its river-
specific breeding program.
    Response: The rivers comprising the current range of the Gulf of 
Maine DPS have long held a special designation by the State of Maine. 
In the July 1984 Management of Atlantic Salmon in the State of Maine, A 
Strategic Plan, the Maine Atlantic Sea-Run Salmon Commission designated 
seven rivers as ``Category A'', having fishable populations of wild 
Atlantic salmon. These are seven of the eight rivers that comprise the 
Gulf of Maine DPS. In 1991, in response to a continuous decline of 
these wild Atlantic salmon populations, the FWS designated them as 
Category 2 candidate species under the ESA, developed a prelisting 
recovery plan in cooperation with the Atlantic Sea-Run Salmon 
Commission, and initiated a river-specific fish culture program. The 
DPS designation and river-specific culture program for six of these 
seven rivers is the product of those events and an ESA Status Review in 
1995. Contrary to the premise of the comment, in review of the original 
petition to list Atlantic salmon throughout the U.S. range, the 
Services specifically rejected as listable entities several salmon 
populations that were the focus of five Federal hatcheries representing 
considerably greater capital and operational costs.

Issue 6: Effect of Previous Stocking

    Comment 10: Some commenters questioned how there could be a river 
specific genetic strain of fish with 128 years of stocking. Another 
commenter stated that it appeared that distinct populations of Atlantic 
salmon in the Ducktrap River and Cove Brook have persisted over time 
despite the fact that throughout history less than 100,000 fry were 
stocked in the Ducktrap and no salmon were stocked in Cove Brook.
    Response: Evidence suggests that stocking success was relatively 
poor prior to 1971. From 1971 to 1990, most stocking efforts in Maine 
used smolts rather than earlier life stages with survival much improved 
over earlier stocking efforts. Starting in 1991, all stocking within 
the Gulf of Maine DPS has been river-specific in origin.
    Recent genetic studies show that unique genetic material exists in 
the Ducktrap River and Cove Brook. Although local variability is 
present in these stocks, they appear to be more closely related to 
other DPS stocks than to either Canadian or European stocks.
    Some authors have asserted that the magnitude of past stocking 
efforts has facilitated introgression and eliminated local variability 
(Kornfield et al., 1995). While the historic isolation of stocks within 
the DPS may have been greater and supported higher levels of genetic 
difference, subtle distinctions between stocks within the DPS remain, 
and differences relative to populations outside the DPS are clear. The 
majority of Atlantic salmon stocks used for supplemental stocking 
within the Gulf of Maine DPS have been from within the DPS geographic 
range (Baum, 1997). Because the source of most stocking efforts has 
been from within the DPS, the genetic effects from stock mixing would 
be substantially less than from stocks from outside the DPS. A 
comprehensive examination of unstocked and stocked DPS rivers suggests 
that while past stocking efforts have likely increased gene flow 
between populations, this gene flow was insufficient to eliminate local 
variability (King et al., 2000a; King et al., 2000b).
    Comment 11: Some commenters believed that it is dangerous to label 
Maine's salmon populations as a DPS since there is no historical 
baseline from pre-stocking years to compare.
    Response: There are no known biological samples available for 
genetic testing prior to 1940 from Atlantic salmon of either northern 
or southern populations. It is true that having such samples from 
Atlantic salmon populations prior to stocking would be useful. However, 
the Services are required to use the best available scientific 
information upon which to base a determination. The Services believe 
that acknowledgment and protection of existing genetic diversity is 
critical to the survival of salmon within the DPS. It is also important 
to note that the Gulf of Maine DPS is delineated largely by its unique 
geographical location and ecological setting relative to other 
populations.

Issue 7: Relationship between Life History, Morphometric 
Characteristics, and Genetics

    Comment 12: Some commenters questioned the reliance on life history 
and morphometric characteristics in delineating the DPS, as they did 
not believe these are genetically based.
    Response: Life history and morphometric characteristics have been 
shown to be related to both genetics and environment and their 
interaction. The proportion of 2SW fish in Maine stocks, age at 
smoltification, and marine maturation rates of several salmonid species 
have been shown to be heritable traits.
    Differences in life history among U.S. Atlantic salmon stocks and 
those of Canada were identified as early as 1874 (Atkins, 1874). U.S. 
Atlantic salmon stocks have been composed of predominantly 2SW salmon 
(> 80 percent) from at least the late 1800s to the present (Atkins, 
1874; Kendall, 1935; and USASAC, 1999). In contrast, many Canadian 
stocks and several in Europe have a much higher grilse component with a 
concurrently lower 2SW component that is frequently less than 50 
percent (Hutchings and Jones, 1998). This life history trait is 
partially controlled by stock genetics (Bailey et al., 1980; Naevda, 
1983; Glebe and Saunders, 1986; Ritter et al., 1986; Herbinger and 
Newkirk, 1987; Hutchings and Jones, 1998; Palm and Ryman, 1999). U.S. 
stocks have a return age composition that differs from Canadian stocks, 
especially neighboring stocks in the Scotia-Fundy region. It is most 
probable that these differences are primarily due to genetic make-up. 
The sex ratios of 1SW salmon differ between

[[Page 69466]]

Maine DPS rivers and nearby Canadian rivers. Maine 1SW salmon are 
predominantly (95 percent) male (Baum, 1997) while those in the 
Miramichi River, Canada, are only about 75 percent male (Randall, 
1985). Genetic control of maturation rates in salmonids is not 
exclusive to Atlantic salmon (Naevda et al., 1981; Naevda, 1983; 
Iwamoto et al., 1984; and Burger and Chevassus, 1987).
    The migration at sea differs between Maine DPS rivers and Canadian 
rivers; Maine salmon have been shown to migrate at low percentages to 
East Greenland while Canadian salmon have not been found there (Baum, 
1997), and Maine DPS salmon return to their natal rivers earlier in the 
year than Canadian salmon (Baum, 1997). Size of adult salmon returning 
to Maine rivers differs between the Gulf of Maine DPS and the nearby 
Canadian population segment. Maine 1SW salmon are about 2.5 centimeters 
(cm) longer than Miramichi River, Canada, salmon, and Maine 3SW salmon 
are about 6.0 cm longer than those in nearby Canadian rivers (data from 
Baum, 1997 and Randall, 1985). Furthermore, the egg production of Maine 
DPS salmon is about 10 to 20 percent greater than that of Saint John 
River salmon of similar size (data from Baum and Meister, 1971 and 
Randall, 1985).
    Recent analyses of juvenile Atlantic salmon data suggest that while 
environment has a strong influence upon juvenile growth, smolt age and 
maturation (precocious parr) (Brannon, 1982), heritable differences 
between stocks also influence growth and performance (Baily, 1980; 
Hershberger et al., 1982; Iwamoto et al., 1982, 1984; Saxton et al., 
1984; Iwamoto et al., 1986; Kincaid, 1994; and Hutching and Jones, 
1998) and ultimately determine the ability of stocks to exploit their 
native habitat (Metcalfe, 1998). Though many of the distinct life 
history traits displayed by Maine salmon relative to nearby Canadian 
stocks have not been experimentally shown to have a genetic basis, it 
is unlikely that environmental factors alone can account for all of 
these differences (Baum, 2000). The combination of heritable traits and 
the unique environment in Maine constrain the scope of adaptation and 
provide pressures of natural selection that are exhibited in unique 
life history characteristics.
    Taking into account all of the foregoing factors, the Services' BRT 
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 two, different migration 
patterns and earlier run timing, predominant adult returns as 2SW fish 
(age four), low proportion of female 1SW fish, longer 1SW and 3SW fish, 
and greater egg production. Since the proportion of 2SW fish in an 
Atlantic salmon stock has a documented genetic basis (Naevda, 1983; 
Glebe and Saunders, 1986; Ritter et al., 1986; Herbinger and Newkirk, 
1987; Hutchings and Jones, 1998; and Palm and Ryman, 1999), the BRT 
concluded that the DPS has unique life history characteristics that 
have a heritable basis. The BRT also concluded 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 National Academy of Sciences will be conducting a study of Atlantic 
salmon. Upon evaluation of the final report, the Services will take 
appropriate action, if any.

Issue 8: Separateness of the DPS

    Comment 13: Some commenters questioned whether adequate data 
existed to support the contention that the Gulf of Maine DPS is 
separate from other U.S. stocks of Atlantic salmon.
    Response: Defined zoogeographical regions in New England separate 
the Gulf of Maine DPS from populations in most of the other New England 
rivers. Although biological data are lacking for these extirpated 
stocks, it is likely that populations were distinct because of 
differences in selective pressures in each region.

Issue 9: Reproductive Isolation

    Comment 14: Some commenters questioned how the Gulf of Maine DPS 
could be reproductively isolated when substantial numbers of females 
per generation migrate between the DPS rivers and the Penobscot River.
    Response: Migration rates between rivers are not large. Tagging 
studies have shown that hatchery fish (which tend to have higher 
straying rates than wild fish) stocked into Maine rivers exhibited a 
straying rate of one to two percent. In Norway, populations are 
considered discrete despite straying rates of five to eight percent. 
Additionally, studies show that although mixing of stocks has occurred, 
genetic differences between stocks exist.

Issue 10: Historic Distribution and Abundance of Atlantic Salmon in 
North America

    Comment 15: Some commenters cited studies which suggest that 
Atlantic salmon did not occur in North America before or during the 
last glacial period (approximately 70,000 to 10,000 years ago) and the 
limited documentation of these populations prior to the 1800's combined 
with sporadic records during the first half of this century raises 
questions regarding their historic abundance. In addition, some 
commenters questioned the reliance in the Status Review on four or five 
biological surveys taken in intervals of about 20 to 25 years. Since 
there were significant stocking efforts in between these time periods, 
they stated that fish documented in these surveys (once every 20 years 
or so) are not necessarily from native or wild populations.
    Response: Anadromous Atlantic salmon were native to nearly every 
major coastal river north of the Hudson River (Atkins, 1874; Kendall, 
1935). Genetic differentiation between North American and European 
stocks (Taggart et al., 1995) supports the assumption that Atlantic 
salmon were present in North America before the last glacial period and 
that they persisted over time (Behnke, 1996). However, populations may 
have migrated southward for a time while their northern range was 
covered with glacial ice (Behnke, 1996). Claims that Atlantic salmon 
did not exist in New England before or during the last glacial period 
or before 1500 are based on the fact that no salmon bones have ever 
been found in excavated regions of the area (Carlsson, 1993). These 
explanations do not take into account the acidity of the soil in Maine 
and surrounding regions which may have naturally destroyed the delicate 
bones over time (Behnke, 1996), or that genetics data suggest 
differentiation about 8,000 to 10,000 years ago. Based on the best 
available data, there were likely at least 11 U.S. coastal watersheds 
outside of Maine that historically supported wild salmon populations. 
Beland (1984) reported that at least 34 Maine Rivers held Atlantic 
salmon populations at one time. Other sources report the number to be 
28 (MacCrimmon and Gots, 1979; Kendall, 1935).

Issue 11: Importance of Genetics

    Comment 16: Some commenters questioned that if genetic differences 
were that important, then how could Atlantic salmon from the Penobscot 
River be used to successfully establish runs of wild salmon in the 
Connecticut River? Additionally, they questioned if multiple 
populations established from a donor population would differentiate 
into genetically distinct populations in 20 generations.
    Response: The loss of naturally reproducing fish in the Connecticut 
and Merrimack River drainages represented

[[Page 69467]]

nearly 40 percent of historic U.S. Atlantic salmon juvenile production 
habitat. The loss of habitat in these two southernmost rivers and their 
indigenous Atlantic salmon populations certainly had an influence on 
the genetic diversity of this species in the United States and North 
America. These rivers are currently the focus of restoration efforts 
using nonindigenous stocks mostly of Penobscot River origin. Return 
rates from stocking in the Connecticut and Merrimack Rivers have been 
poor relative to other North American stocks (Saunders, 1981; Friedland 
et al., 1993). These low return rates appear to be attributable to the 
loss of local adaptations to unique habitat characteristics associated 
with the extirpated stocks (Jones, 1978; Lindell, 1987; Saunders, 
1981). Additional research supports this hypothesis and indicates that 
when stocks are transferred to new river systems, those from nearby 
rivers typically exhibit higher return rates than stocks from rivers 
farther away (Ritter, 1975; Reisenbichler and McIntyre, 1977; Riddell 
et al., 1981; Ritter et al., 1986; and Hopley, 1989). Additionally, 
stock specific differences in susceptibility to bacterial and viral 
diseases underscore the importance of genetic variability not only to 
the viability of local stocks but as a genetic resource for 
conservation, restoration, and commercial aquaculture applications 
(Gjedrem and Gjoen, 1995). The loss of locally adapted stocks has made 
restoration more difficult in southern New England. Fortunately, some 
salmonids have shown evidence of plasticity when introduced to new 
environments, and locally adapted and genetically differentiated stocks 
have developed in less than 20 generations (MacCrimmon and Marshall, 
1968; MacCrimmon et al., 1970; MacCrimmon, 1971; and Krueger et al., 
1994). Reintroduction and range-expansion programs use this plasticity 
to create viable populations, but typically success rates are highest 
with neighboring stocks or those from similar ecosystems (Reisenbichler 
and McIntyre, 1977; Krueger et al., 1981; and Reisenbichler and Rubin, 
1999). As these restoration programs continue, their focus on the 
redevelopment of river-specific stocks should enhance the genetic 
resources of Atlantic salmon in the United States.

Issue 12: The Role of the River Specific Stocking Program in Recovery

    Comment 17: Some commenters questioned the appropriateness and 
success of the FWS river specific stocking program.
    Response: The Atlantic salmon rehabilitation program is a 
cooperative program involving numerous State and Federal agencies, as 
well as non-governmental organizations. There has been a considerable 
amount of review, oversight, and guidance on every aspect of this 
program (fish culture, health, genetics, management, and habitat 
evaluation) since its inception in 1991. The Maine Atlantic Salmon 
Technical Advisory Committee (TAC) reviews program activities and makes 
recommendations to the Atlantic Salmon Commission (ASC), and the 
Services for final decisions. Also, the USASAC provides guidance to 
program cooperators.
    The Services supported the suggestion for a peer review of the 
river specific stocking program when it was proposed in January 1999, 
by the State of Maine, Trout Unlimited, and National Fish & Wildlife 
Foundation. This initiative was dropped when the State of Maine 
withdrew its support in the fall of 1999. The role of the river 
specific program will be examined during the development of the 
recovery plan.
    Comment 18: Some commenters voiced concern about the restoration 
program and the potential disastrous failure of that program in terms 
of interbreeding, adapting the fish to freshwater, and misplacing wild 
fry in habitat.
    Response: Although the above mentioned aspects of the stocking 
program are discussed and reviewed continually among program 
cooperators, the discussion in the Status Review did not address many 
of the concerns presented during the public comment period. These 
issues will be discussed much more comprehensively during the 
development of the recovery plan.
    The level of genetic diversity in Maine Atlantic salmon populations 
is very similar to the level found in Canada. The level of genetic 
diversity found in fish within the DPS is similar to the level of 
genetic diversity found in other North American populations, which 
indicates that the genetic diversity and variation have not been 
diminished by the river specific fish culture program. All precautions 
are being taken by cooperators in broodstock collections, management 
and spawning protocols to ensure that this genetic integrity is 
maintained. Monitoring of the river-specific Atlantic salmon broodstock 
at CBNFH show that the heterozygosity of the rivers has not been 
compromised and is sufficiently robust to maintain a viable population 
at this time. Continuous monitoring protocols are in place to ensure 
that genetic integrity is maintained.
    While it is true that the captive broodstock at CBNFH have not seen 
a marine phase, many years of adult returns from the hatchery-produced 
progeny of hatchery-reared broodstock indicate that this should not 
affect the ability of the offspring to undergo smoltification and 
emigrate to the ocean after the normal 2-year in-river juvenile phase.
    Habitat in the rivers in the DPS has been mapped during low summer 
flows by Maine ASC and FWS biologists. Efforts are made during stocking 
to target areas which have been identified as good fry habitat. Fry 
stocking is usually suspended during periods of higher than normal 
flows to prevent stocked fry from being washed out of the target 
stocking areas.
    Comment 19: Some commenters cited poor returns in 1997, 1998, and 
1999 as evidence of failure of the river-specific stocking program.
    Response: The life history of the Atlantic salmon is complex. 
Survival at all life stages is dependent upon many biological and 
physical factors in the freshwater and marine environments. The goal of 
the river-specific stocking program is to ensure that the freshwater 
rearing habitat is optimally used by genetically suitable stocks for 
the purpose of producing out-migrating smolts in spite of low returning 
adult populations. The goal is to maintain a population until those 
factors which are negatively affecting populations are lessened through 
naturally occurring forces and/or human intervention.
    Hatchery program evaluations indicate that the hatchery program, 
through both fry and broodstock releases, has increased the juvenile 
population beyond what the low number of returning adults would 
provide.
    It has taken several years to develop captive broodstock from parr 
collection in numbers sufficient to optimally use the rearing habitat. 
This level of use has been approached only within the last 4 or 5 
years. The adult returns to DPS rivers in recent years reflect releases 
of relatively small numbers of fry. It is premature to make any 
statements regarding the success or failure of the stocking program's 
contribution to adult returns since it takes four years to grow from a 
fry to adult salmon. Significant adult returns from significant numbers 
of stocked fry should begin to appear in 2001.
    The Services will continue to monitor the success of the hatchery 
program and continue to explore ways to improve hatchery releases, 
especially in light of the newly redesigned CBNFH isolation facility. 
For example, the current

[[Page 69468]]

program was recently revised to sample and track the DNA from 
individuals which comprise a mating pair. This allows the tracking of 
stocked fry and better assessment, monitoring, and management of the 
fish culture program.
    The best scientific principle, which is accepted world-wide, 
dictates that the best source to use to rebuild a fish or wildlife 
population is that same population. If this population does not exist, 
then the next best population to use is one that is nearby and similar 
biologically. The remnant populations of six of the eight rivers within 
the Gulf of Maine DPS range are being used to maintain and rebuild 
these salmon populations.
    Comprehensive DNA fingerprinting of each salmon broodstock for the 
DPS rivers indicates that the level of genetic diversity and variation 
are similar to other North American populations. This indicates that 
the river-specific program has not diminished the genetic integrity of 
these populations. All precautions are being taken by program 
cooperators in broodstock collections, management, and spawning 
protocols to ensure that this integrity is maintained. Continuous 
monitoring of the river-specific Atlantic salmon broodstock at CBNFH 
shows that the hetereozygosity of the rivers has not been compromised 
and is sufficiently robust to maintain a viable population.
    The goal of the Atlantic salmon rehabilitation program is to 
maintain a juvenile population of genetically compatible salmon while 
optimizing the use of rearing habitat to produce out-migrating smolts 
until the adult population recovers adequately to meet natural 
reproduction requirements. Monitoring studies have shown that juvenile 
populations in areas which have been stocked with fry are higher than 
would be expected from the observed levels of natural reproduction. The 
hatchery program also provides refugia for salmon populations which are 
at low levels and in danger of ceasing to exist, as is the case with 
the Gulf of Maine DPS salmon populations. The stocking program has been 
successful in these aspects of the program. Continued monitoring of the 
river-specific stocking program will be conducted to evaluate its 
impact on the recovery of the Gulf of Maine DPS. Modifications based 
upon the results of the monitoring will be made as necessary.
    Comment 20: One commenter suggested that the Services should work 
with the new ASC and direct the hatcheries to return all river-specific 
fish they have in the holding tanks to their specific rivers--return 
all to their home rivers, remove all weirs and allow the fish to move 
naturally.
    Response: Returning all hatchery broodstocks to the rivers of 
origin is an option that could be posed to the ASC for discussion 
within the Commission, and with other involved state and Federal 
agencies, and the interested public for consideration.
    The Services believe, however, that this action, under current 
environmental conditions, would pose an unacceptable risk to the small 
remnant populations in the Gulf of Maine DPS for several reasons. The 
hatchery system serves two functions. It provides a refuge for those 
remnant salmon populations which are in danger of extinction, as well 
as increasing the probability of rebuilding these populations, because 
survival at all lifestages in the hatchery is much greater than in the 
wild. This affords an opportunity to protect and maintain these 
populations until environmental conditions become more favorable to the 
survival of the salmon through natural cycles, and as a result of 
habitat protection and enhancement being conducted by agencies and 
watershed councils.
    Broodstock that are surplus to the needs of the hatchery are 
returned to their river of origin. In 1996, 503 adult fish were 
returned to their rivers, 583 in 1997, 907 in 1998, and 81 in 1999.
    Comment 21: One commenter claimed that the river specific stocking 
program has no biological basis at this time due to low population 
sizes.
    Response: The benefits and risks of a river-specific rehabilitation 
program must be considered in the context of population dynamics, 
especially population size, which can cause (1) inbreeding depression, 
(2) loss of genetic variation, and (3) outbreeding depression. If 
populations become small, the risk of inbreeding depression and loss of 
genetic variation increases. In response to this, one management option 
is the introduction of fish from outside the population; however, 
hazards such as outbreeding depression are associated with this option.
    For the salmon in question, each population is comprised of 
multiple year classes of wild and captive fish. The effective 
population size is hence much larger than the number of returning 
adults in any given year. Nonetheless, if effective population size 
becomes low, or if genetic data indicate a loss of variation within a 
population, then it would be appropriate to consider modification of 
the river-specific protocols for a given population. DNA fingerprinting 
of broodstock indicates that the levels of genetic diversity within the 
broodstocks from the DPS rivers are similar to other wild populations 
in other countries. In addition, many precautions are being taken by 
program cooperators in broodstock collections, management, and spawning 
protocols to ensure that genetic integrity is maintained.
    Comment 22: Some commenters stated that the existing stocking 
program is clearly not working, and suggested that the Services invite 
the watershed councils and sporting clubs to help redesign that 
program. They suggested that the current program be replaced with a new 
river-by-river stocking program with oversight groups that are composed 
of at least 50 percent local citizens.
    Response: The current rehabilitation program is a river-by-river 
program using remnant populations to rebuild the salmon populations. 
The redesign and reconstruction of the CBNFH has allowed cooperators to 
develop broodstocks for six of the eight DPS rivers, with no plans 
being made to develop broodstock for the Ducktrap River and Cove Brook.
    The watershed councils participate in the current program and are 
invited to provide input through Project SHARE (Salmon Habitat and 
River Enhancement), watershed council meetings, and meetings of the 
Downeast River Coalition, as well as informal discussions with the 
agencies. Watershed Councils are also encouraged to participate in 
meetings of the Maine TAC and ASC, and are actively participating in 
stocking and fish culture activities. This is an evolving process, and 
it is anticipated that the agencies and watershed councils will work 
more closely together as time goes on. For example, the Downeast River 
Coalition and various fishery agencies have cooperated in developing 
the Pleasant River Broodstock Management Plan. Additional opportunities 
for involvement will be available during the recovery planning process.

Issue 13: Fish Health

    Several comments were received on the relative risk to the DPS from 
fish diseases. These comments raised questions of three types: (1) 
Questions regarding the risk posed by aquaculture fish, specifically 
concerning ISA; (2) questions regarding the need to destroy the 
Pleasant River broodstock; and (3) questions regarding why Federal 
hatcheries are not held to the same fish health standards as private 
fish culture facilities.
    Comment 23: Some commenters stated that there is no basis to 
presume that aquaculture fish pose a special

[[Page 69469]]

threat to wild salmon in Maine since (a) ISA has existed in Canada for 
3 years without appearing in any U.S. fish, (b) there is no scientific 
documentation of aquaculture fish transmitting disease to wild fish, 
and (c) the disease already exists in the wild.
    Response: The Services recognize that disease is a natural part of 
wild salmon's existence as fish pathogens are a normal part of the 
aquatic environment. However, the concern raised in the proposed rule 
relates primarily to the recent occurrence of two disease organisms 
that were previously unknown in the DPS's geographic area. One is the 
SSSV recently discovered in Pleasant River broodstock (see Response 
13b).
    The second is the occurrence of the ISA virus in Canadian 
aquaculture pens, some within the known infective range of U.S. sea 
pens. The ISA virus is extremely destructive to maturing salmon and 
there is no known cure. This virus has only been known to cause disease 
in situations where fish were artificially confined and was not 
observed in the carrier state in free ranging salmon or other species 
until very recently. The ISA virus has been found in wild salmon in 
Scotland, as well as in confined rainbow trout, wild sea trout, and 
eels. There is a possibility that the virus can be spread to confined 
populations (e.g. sea pens) by wild fish of other species, but that has 
not yet been demonstrated. It is known that it is transmissible 
laterally between fish pens within 5 kilometers (km) of each other, and 
by the discharge of slaughter wastes. ISA disease has, to date, only 
been found in wild fish that have been exposed to infected aquaculture 
fish in New Brunswick, Canada. There are Canadian aquaculture sites 
with recent ISA infections close enough to U.S. aquaculture sites in 
Cobscook Bay, the location of Maine's greatest concentration of salmon 
aquaculture pens, to create a significant risk of the introduction of 
the virus to U.S. aquaculture stocks. The extensive testing and 
precautions that have been taken by the Maine aquaculture industry and 
the State in response to this situation underscore this risk. A 
significant portion of the adult DPS salmon must swim near U.S. pens in 
Cobscook Bay and the vicinity of the Machias Rivers. The possible 
establishment of ISA in and around U.S. pen sites, and its presence in 
nearby Canadian aquaculture sites pose a risk to wild salmon. This may 
have severe consequences and was not known to exist during the 1995 
Status Review. The Services recognize that fish pathogens exist in the 
wild, and aquaculture operations or any other artificially created 
concentration of fish do not in themselves create pathogens or disease. 
However, the effect of concentrations of individuals on magnifying the 
level of any pathogen present and the rate and extent of any resultant 
epizootic is well known (Finlay and Falkow, 1989). Therefore, the 
Services concluded that the presence of the ISA virus in the geographic 
range of the DPS, and the existence of extensive concentrations of net 
pens create a new and significant risk directly to the DPS adults and 
indirectly to the rehabilitation program currently supplementing the 
DPS juvenile population.
    Comment 24: One commenter questioned the decision to destroy the 
Pleasant River broodstock.
    Response: State and Federal agencies responsible for producing fish 
for release in the wild maintain extensive fish health management 
programs designed to protect the fish being produced for the public, 
the facilities used to produce them, and most importantly, the public 
health and health of other wild fish populations and their environment. 
Procedures to be followed by an agency when a fish disease situation 
develops are documented through guidelines and policies (e.g. Fish and 
Wildlife Service National Fish Health Policy and Guidelines, New 
England Salmonid Health Guidelines, and various state regulations) 
which are generally based on procedures described in the so-called 
``Blue Book'' produced by the American Fisheries Society. In general, 
the most stringent counteractions to a disease outbreak in a hatchery 
are called for when the disease agent is a newly discovered pathogen or 
one that had not previously been found in the affected geographic area. 
This was the case with the disease that attacked the Pleasant River 
wild broodstock being held in captivity at the North Attleboro National 
Fish Hatchery (NANFH). A retrovirus named SSSV and believed to be the 
cause of fatal symptoms that developed in the sub-adult Pleasant River 
broodstock, represented a previously unknown salmon disease. The extent 
of the threat posed to salmon was not known but, under conditions that 
existed at the NANFH, the disease was fatal and had no known treatment. 
The Massachusetts Fish and Wildlife Department, in accordance with 
customary procedures with an exotic disease, required the FWS to remove 
these fish from the hatchery which discharges its water into state 
public waters. The surviving fish were placed in quarantine facilities 
available at the USGS laboratory in West Virginia so that research 
could be conducted before destroying and disposing of these infected 
fish. Subsequent testing of a related group of Pleasant River 
broodstock held at a private facility in Maine showed these fish also 
carried the virus, though there were no disease symptoms. These fish 
had to be removed in order to protect the viability of the facility as 
a commercial hatchery. No suitable quarantine facilities existed that 
could safely hold the fish, thus necessitating their destruction. Even 
if quarantine facilities could have been found and the fish never 
developed symptoms, their usefulness as broodstock was compromised. 
Since the virus may be transmissible from an infected parent to the 
eggs it produced, and given the exotic nature of the virus, any 
juvenile salmon produced from those infected fish could represent a 
serious threat to wild and aquaculture fish, and could not prudently be 
released into the wild.
    In the spring of 2000, program cooperators initiated a second 
attempt to preserve and rebuild the Pleasant River salmon population. 
This was made possible by the reconstruction of CBNFH and the addition 
of one isolation bay. A trap on the Pleasant River at Columbia Falls 
captured outmigrating Atlantic salmon smolts to help enumerate the 
population and to determine origin (wild or aquaculture). A total of 37 
smolts and 24 age 2 parr were brought into CBNFH for holding until they 
become mature broodstock. Subsequently, 52 age 1+ parr were captured 
during the summer of 2000 to augment these earlier smolt and parr 
collections.
    In the past year, the FWS and the State of Maine have developed 
procedures to manage broodstock from populations that contain the SSSV. 
Newly captured wild broodstock are held in isolation for testing. Any 
carriers of the virus are culled from the broodstock population in the 
hatchery prior to spawning, and fry are tested for the presence of the 
virus prior to release. In 1999, the FWS, in cooperation with the Maine 
Fish Health Technical Committee, developed a ``Best Management Plan for 
SSSV'' for the CBNFH. All broodstock which previously tested positive 
for SSSV were removed from the spawning population and not used in the 
1999 spawning season.
    Comment 25: Federal hatcheries are not held to the same fish health 
standards as private fish culture facilities.
    Response: As a matter of national policy, a national fish hatchery 
abides

[[Page 69470]]

by the fish health regulations of the state in which it is located or 
the state to which fish are shipped. Further, national fish hatcheries 
abide by the FWS's Fish Health Policy and Guidelines and, in New 
England, the New England Salmonid Health Guidelines in cases where 
those requirements are more stringent than the prevailing state 
requirements. In special situations dealing with imperiled fishes, the 
Service and the appropriate state agency may develop special 
procedures, especially relative to disease testing and monitoring, if 
general practices are not possible for rare stocks.

Issue 14: Fish Stocking Policies in DPS Rivers

    Comment 26: Comments were received that questioned how the listing 
would deal with the current stocking policies in the DPS rivers. Brook 
and brown trout have been stocked in some of the DPS rivers and 
landlocked salmon are known to populate headwater lakes of DPS rivers. 
Concern was raised regarding the potential for interbreeding, 
competition, and agonistic behavior among and between species.
    Response: As noted in the Review of the Status of Atlantic Salmon 
(Salmo salar) under the U.S. Endangered Species Act (1999), 
interactions between wild Atlantic salmon and other salmonids are 
mostly limited to interactions with brook trout and brown trout. 
Competition between species likely plays an important regulatory role 
and may cause Atlantic salmon, brook and brown trout populations to 
fluctuate on an annual basis. However, it is difficult to draw 
conclusions regarding the effects and magnitude of interspecific 
competition or (in the case of landlocked salmon) the extent of 
interbreeding.
    The Maine Department of Inland Fish and Wildlife recently began an 
evaluation to better understand the interactions between Atlantic 
salmon and other freshwater fishes. A draft report entitled ``Potential 
Interactions Between Atlantic Salmon and Freshwater Fishes'' has been 
completed with specific emphasis on DPS rivers. The report is now being 
routed through administrative channels with a copy to the ASC for 
review.
    Results of the draft evaluation suggest that areas that require 
additional evaluation or scrutiny include the Sheepscot River where 
natural reproduction of brown trout is known to occur. Brown trout were 
once stocked in the watershed. While they are no longer intentionally 
released in the river, wild populations will continue to be monitored 
in future years. Both landlocked and sea-run salmon are known to spawn 
at the outlet of Meddybemps Lake, the headwaters of the Dennys River 
watershed. Management measures that will include screens at the outlet 
of the lake may minimize interactions by limiting the introduction of 
landlocked salmon to the river. A proposal to rear brown and rainbow 
trout, as well as a brook trout/char crosses in an aquaculture venture 
in the Sheepscot River estuary has been approved by the U.S. Army Corps 
of Engineers (ACOE). Also, surveys have documented a resident 
population of largemouth bass in the Ducktrap River. This species was 
released in the watershed in the 1960's, and currently there is no 
viable way to control the population. It is anticipated that the 
fishery resource agencies will continue to assess and evaluate the 
potential for impacts to sea-run Atlantic salmon resulting from 
interactions with other fish species. Where feasible and appropriate, 
measures will be implemented to avoid and minimize adverse impacts to 
salmon.

Issue 15: Bycatch of Atlantic Salmon in Commercial Fisheries

    Comment 27: Four comments were received concerning the issue of a 
listing and its potential adverse effect on other commercial fisheries. 
Specifically there was concern that listing would immediately result in 
a closure of elver fishing and consequently limit jobs.
    Response: Juvenile eels, or elvers, begin to migrate into Gulf of 
Maine watersheds in March with peak migrations occurring in April and 
May. Extended migrations sometimes continue into June and July. The 
elver migration and fishery occurs coincident with the emigration of 
Atlantic salmon smolts. The elver fishery may extend into June, 
coincident with immigration of adult salmon destined for upriver 
spawning areas. Regulations of the elver fishery include a season from 
March 22 to May 31, ban on harvest of elvers upriver of the head-of-
tide, limits on the length of fyke nets that can be set in waterways, 
prohibition on nets from the middle third of any waterway, and a 
requirement for finfish excluder panels integral with nets to minimize 
bycatch and mitigate adverse impacts on non-target species. Most nets 
are deployed near head-of-tide and immediately adjacent to the shore. 
Entry into the elver fishery was limited in 1999 to reduce harvest, and 
in 2000, a lottery was introduced for license acquisition. American 
eels are managed by an interstate fishery management plan under the 
Atlantic States Marine Fisheries Commission. As long as the member 
states are in compliance with the fishery management plan, there will 
be no closures or changes in the state program.
    Elvers are often evenly distributed throughout the water column 
when moving upriver on the flood tide but near head-of-tide they are 
found along the shore. Maine Department of Marine Resources (DMR) 
biological staff in recent years have not observed or documented 
incidental bycatch of either juvenile or adult Atlantic salmon in elver 
nets. Fish species that have been captured in small numbers include 
smelt, pollock, stickleback, pipefish, and mummichog. Fishing effort 
for elvers has decreased in the last 3 years because of restricted 
license issuance and the fact that market price has decreased 
considerably. It is not likely that there will be fishery closures or 
loss of jobs in this fishery, nor a significant decrease in license 
issuance when the Gulf of Maine DPS of Atlantic salmon is listed as an 
endangered species.

Issue 16: Poaching

    Comment 28: Some commenters were concerned that a reduction of 
recreational angler presence on DPS rivers would increase poaching.
    Response: Measures continue to be implemented by resource agencies 
to minimize and eliminate the illegal take of salmon on DPS and other 
salmon rivers in the State of Maine. Funds were made available through 
grants to support two State seasonal enforcement staff on DPS rivers in 
years 1998 and 1999, and residual grant funds have been used to 
purchase surveillance equipment in the year 2000. While funding for 
enhanced fishery enforcement efforts on DPS rivers diminished in 2000, 
resource agency personnel are keenly aware of the need to advise 
recreational anglers and the public that protection of Atlantic salmon 
is a high priority. The DMR is posting signs on salmon rivers that 
advise of the presence of salmon and the need for their protection. In 
addition, the DMR has employed a seasonal Marine Patrol Officer to 
promote and enforce recreational fishing regulations.
    While all waters in the State of Maine are closed to angling for 
sea-run salmon, other protective measures are also being implemented on 
an as-needed basis. In late June 2000, a reach of the Penobscot River 
immediately downstream from the Veazie Dam was closed to all angling to 
eliminate the accidental capture of salmon. The ban on fishing was 
needed because striped bass anglers were catching salmon in that area. 
This reach

[[Page 69471]]

of river downstream of the dam is a location where both salmon and 
striped bass congregate. The reported bycatch of salmon by anglers 
fishing for American shad on the Narraguagus River prompted an increase 
in enforcement personnel presence on the river during spring 2000. In 
addition, resource personnel involved in scientific studies on the 
Narraguagus River have kept enforcement staff advised of angler 
activity and have continued to advise anglers and the public of the 
need to protect all life stages of salmon.
    A unique initiative involving the release of mature salmon in the 
Dennys River and the Machias River estuary in fall 2000, is expected to 
foster cooperation among anglers and residents of these watersheds for 
the protection of salmon. This cooperative venture involving the 
aquaculture industry and fishery resource agencies will place a full 
complement of adult salmon on the spawning grounds in the Dennys River 
and adult fish in the lower Machias River. Interest in this initiative 
is high among stakeholders, and it is anticipated that this interest 
will offer increased protection for salmon in the watersheds. This 
program will be evaluated to determine the utility of this approach in 
a recovery effort.

Issue 17: Aquaculture

    Comment 29: The concern has been raised that fish being used in 
aquaculture have not been removed from the wild for a sufficient amount 
of time to become genetically distinct from wild stocks. As a result, 
these fish should not pose a threat to wild resident populations should 
they escape from captivity.
    Response: A large percentage of the fish being used in aquaculture 
currently are of European origin and, therefore, are genetically 
different from the native North American strains. North American 
strains used by the industry are genetically different from wild North 
American strain due to changes introduced through domestication. The 
industry selects fish best suited to grow in captivity, which would 
likely select for different traits and characteristics than those most 
suited for survival in the wild.
    Comment 30: One commenter suggested that farm raised fish should be 
introduced into the rivers to allow fishing for everybody and improve 
the economy.
    Response: The goal of the Maine Atlantic salmon rehabilitation 
program is to enhance and protect the eight remnant populations of 
Atlantic salmon in the rivers which comprise the Gulf of Maine DPS. The 
Services are using river-specific remnant populations and rebuilding 
them to the spawning escapement level needed to sustain the population. 
This is to achieve both human and environmental benefits, so that 
people will be able to fish for these salmon in the future, as they 
have done in the past.
    Farm fish releases for sport fishing are inappropriate, 
particularly at a time when the salmon runs are so endangered. Recovery 
of wild runs and permanent habitat protection are the objectives of 
conservation for the Gulf of Maine DPS. Sport fishing can be considered 
once the other objectives are attained.
    Comment 31: One commenter questioned the decision not to stock some 
river-specific fish from aquaculture facilities into the rivers due to 
fish health concerns.
    Response: River-specific Atlantic salmon being raised by the 
aquaculture industry in net pens located in Machias Bay will be 
released into appropriate rivers after passing a comprehensive fish 
health survey. These releases are part of an evaluation program being 
overseen by the TAC to rebuild the salmon populations in these rivers, 
evaluate the impacts of these releases on juvenile populations, and set 
a direction for future cooperative programs with the aquaculture 
industry. The TAC is created by a Cooperative Agreement and is composed 
of state and Federal representatives who advise the Federal and state 
resource agencies on any technical matters relative to the Atlantic 
salmon restoration and rehabilitation programs in Maine.
    The river-specific fish held in Cobscook Bay will not be released 
based on the recommendation of the Maine Fish Health Technical 
Committee. This recommendation was made as a result of the risk of 
spreading ISA to wild salmon populations and aquaculture facilities in 
the United States. This ``quarantine'' procedure is consistent with 
protocols adopted in Canada to prevent the spread of this virus in an 
effort to protect both the wild and aquaculture stocks of Atlantic 
salmon. ISA is already present in the Canadian side of Cobscook Bay.
    Comment 32: Some commenters questioned the evidence regarding 
numbers of escapees in rivers or actual impact on wild stocks in Maine 
from aquaculture, including any impacts from the use of European 
stocks.
    Response: Since the aquaculture industry began in the Canadian 
Maritime Provinces in 1979, escapees from sea pens and hatcheries have 
been documented in 14 rivers in New Brunswick and Nova Scotia, Canada. 
The Magaguadavic River is the only river in the Maine/Maritime area 
that has been monitored closely for interactions between wild and 
farmed fish. That monitoring began in 1992. Adult salmon of farmed 
origin have outnumbered wild salmon in that river since 1994 and 
exceeded 80 percent for three of the five years between 1994 and 1998. 
Analysis of eggs taken from the Magaguadavic River in 1993 revealed 
that at least 20 percent of the redds were constructed by females of 
farm or cultured origin, and another 35 percent were of possible 
cultured origin (Carr et al., 1997). In addition, emigrating smolts in 
1996 were 51 to 67 percent farm-origin and those exiting the river in 
1998 were 82 percent farm-origin and cited as evidence of leakage of 
juveniles from aquaculture facilities on the watershed (Canadian 
Department of Fisheries and Oceans (DFO), 1999).
    The U.S. aquaculture industry is newer and smaller than the 
Canadian industry, but has been growing rapidly. Occurrences of adult 
escapees in Maine Rivers are increasing commensurately. Maine 
production increased from less than 500,000 smolt stocked and 2,000 
metric tons produced annually before 1990 to over four million smolt 
stocked and up to 15,000 metric tons (mt) produced annually by 1998. 
There is a standing crop of about six million sub-adult salmon in pens 
in eastern Maine (Baum, 2000). Since documented escapees in Maine 
rivers were listed through 1997 in the 1999 Status Review, Baum (2000) 
has provided documentation of 143 more adult escapees observed for the 
St. Croix, Dennys, Narraguagus, and Union Rivers for 1997-1999. Though 
the St. Croix and Union Rivers are not DPS rivers, they serve to 
demonstrate the relation between increasing numbers of salmon in net 
pens and the increasing occurrence of escapees in nearby rivers. In 
evaluating the extent of escapes, it must be remembered that these are 
observed escapees and represent only a portion of actual escapees.
    Intensive studies of genetic interaction between wild salmon and 
aquaculture escapees in Northwest Ireland rivers have clearly 
demonstrated that escaped juvenile salmon have completed their entire 
life cycle in the wild, including accurate homing to natal rivers and 
interbreeding with wild salmon (Clifford et al., 1998). It has been 
demonstrated that escapees are present in some of the DPS rivers, and 
many have been observed to be sexually mature (Baum, 2000). There is 
recent observation of circumstantial evidence of a female aquaculture 
escapee successfully spawning in the Dennys River (personal 
communication, Ed

[[Page 69472]]

Baum, 1996). Genetic studies (King et al., 1999) have shown the rare 
occurrence in wild (DPS) fish collected in Maine of alleles that are 
common in European stocks. This strongly suggests that some level of 
introgression of European alleles may have already occurred. The 
experiences from rivers in Canada (DFO, 1999), Ireland (Clifford et 
al., 1998), and Norway (Fleming et al., 2000 ), which are very similar 
to Maine salmon rivers, and where aquaculture has a longer history and 
a greater level of investigation, provide substantial evidence that 
negative impacts to the DPS can be reasonably anticipated to occur in 
Maine.
    Comment 33: Some commenters stated that the voluntary Code of 
Containment combined with weirs on some rivers provide adequate 
protection of wild stocks from escapees without any further steps 
needed.
    Response: There were no data collected for the Dennys, Pleasant, 
Machias, East Machias, Ducktrap, or Sheepscot rivers for sea pen 
escapees during the last three years. Where data are available (Baum, 
2000), there is a clear trend towards increasing numbers of escapees 
from cages entering nearby Maine rivers commensurate with the rapid 
expansion of aquaculture in eastern Maine. This increase is occurring 
in spite of most Maine sea pens currently implementing the voluntary 
industry Code of Containment standards.
    Comment 34: One commenter suggested that a 1- percent pen escape 
rate (based on Norwegian data) and a 1- percent survival to the river 
(basis of commenter's estimate uncertain) would result in 600 escapees 
in the eastern Maine rivers (with a standing crop of six million). As 
the great bulk of salmon are raised near the estuaries of the Dennys 
and the two Machias Rivers, the commenter supposed that annual escape 
to those rivers would outnumber the estimated DPS populations in those 
rivers by several fold. Among these rivers, a weir is present only on 
the Dennys. Trapping facilities and a weir are planned for the Machias/
East Machias respectively, but the date and financing are undetermined. 
It is also important to note that weirs are seasonal structures and, 
therefore, do not trap fish on a year-round basis. Fish barriers can 
reduce the degree of threat from a relatively large number of escapees, 
but cannot be considered as adequate protection for the DPS.
    Response: Recent evidence of juvenile escapees from an aquaculture 
hatchery emigrating as smolts from the Pleasant River (Baum, 2000) 
represent a threat that Codes of Containment for sea pens and weirs 
entirely fail to address. A commercial hatchery is also located on the 
East Machias River.

Issue 18: Marine Survival

    Comment 35: Some commenters questioned why the Services consider 
Maine salmon populations to be on the verge of extinction instead of 
simply attributing the decline to population cycles.
    Response: Although population dynamics of Atlantic salmon are 
intimately related to and influenced by environmental variables, 
threats caused by man exacerbate the severity of the situation. These 
threats are serious enough to make a difference between survival and 
extinction. It is important to note that Atlantic salmon populations 
continue to decline even with recent increases in favorable marine 
environmental variables.

Issue 19: Climate Change

    Comment 36: Some commenters cited accounts of temperature rises of 
one to three degrees Celsius since the 1920s and 1930s, and questioned 
whether the remaining wild Atlantic salmon of the Gulf of Maine DPS 
will be able to survive such climatic variability.
    Response: An examination of the effect of warming climate on 
fishery resources illustrates the challenges to fish on the southern 
end of their range. Climate models predict significant warming over the 
next century as the carbon dioxide content of the atmosphere increases. 
Records show that there have been periods of warming and cooling of the 
North Atlantic Ocean, but changes have not been uniform over all areas.
    Global warming can have an effect on sea temperatures, wind 
currents, fresh water input, and mixing of the ocean's surface layer. 
Fish, being poikilotherms, maintain a body temperature almost identical 
to their surrounding environment. Thermal changes of just a few degrees 
Celsius can critically affect biological functions in salmonids such as 
protein metabolism (McCarthy and Houlihan, 1997; Somero and Hofmann, 
1997; and Reid et al., 1998), response to aquatic contaminants (Reid et 
al., 1997), reproductive performance (Van Der Kraak and Pankhurst, 
1997), smolt development (McCormick et al., 1997), species distribution 
limits (McCarthy and Houlihan, 1997; Keleher and Rahel, 1996; and Welch 
et al., 1998), and community structure of fish populations.
    It has been suggested that an overall increase in river water 
temperatures due to global warming may actually benefit certain fish 
populations due to greater growth opportunity. Increased opportunities 
for growth in the spring and summer could increase the percentage of 
fish that enter the upper size distribution of a population and smolt 
the following spring (Thorpe, 1977; Thorpe et al., 1980; and Thorpe, 
1994). In addition, warmer rearing temperatures during the late winter 
and spring have been shown to advance the timing of the parr-smolt 
transformation in Atlantic salmon (Solbakken et al., 1994). There is, 
however, an optimal temperature range and a limit for growth after 
which salmon parr will stop feeding due to thermal stress. During this 
time, protein degradation and weight loss will increase with rising 
water temperature (McCarthy and Houlihan, 1997).

Issue 20: Threat Posed by Public Hatchery Practices

    Comment 37: Some commenters stated that the Status Review did not 
adequately address the risks posed by public hatchery practices given 
their dominant influence on Maine salmon and the proposed extension of 
the ESA's protection to their output.
    Response: It is true that a hatchery program can have large 
impacts, both positive and negative, on fish populations. Every 
precaution is being taken to ensure that the river-specific 
rehabilitation program in Maine will enhance the population in a 
positive manner. Broodstock are collected in such a manner as to 
maximize the genetic material available in the individual rivers.
    The rehabilitation program is carried out with the guidance of 
state and Federal fish genetic experts, and spawning is conducted 
according to protocols developed and peer reviewed by the Maine TAC and 
Assessment Committee. Activities are guided by program specific 
documents such as the following: Broodstock Collection Recommendations 
to the Maine TAC by the Maine Atlantic Salmon Broodstock Working Group; 
Management and Spawning Protocols for Atlantic Salmon Broodstocks at 
the CBNFH, October, 1997; CBNFH Interim Disease Management Plan, Best 
Management Plan for SSSV by the Lamar (PA) Fish Health Unit, November 
1999; Atlantic Salmon Broodstock Management and Breeding Handbook by 
the USFWS, Biological Report 89 (12) July 1989; and the CBNFH Standard 
Husbandry Procedures for Biosecurity (In draft). Activities are also 
guided by regional and agency policies and guidelines regarding fish 
health and management plans such as the following: Maine Atlantic 
Salmon Restoration and

[[Page 69473]]

Management Plan, 1995-2000, Atlantic Sea Run Salmon Commission; Report 
of the Maine Atlantic Salmon Authority to the Joint Standing Committee 
on Inland Fisheries and Wildlife; Maine Atlantic Salmon Management Plan 
with Recommendations Pertaining to Staffing and Budget Matters, January 
1997; and Atlantic Salmon Conservation Plan for Seven Maine Rivers, The 
Maine Atlantic Salmon Task Force. March 1997.
    Fish health management is conducted in close consultation with the 
FWS' Lamar Fish Health Unit, the Maine Fish Health Technical Committee, 
and in strict compliance with state, regional, and Federal regulations, 
protocols, and guidelines.
    Hatchery populations are included as part of the DPS when they are 
similar to the native, naturally spawned fish, and are listed along 
with the DPS when they are determined to be essential to the recovery 
of the wild population. These hatchery populations are vital to 
compensate for the prolonged period of low adult returns, but they are 
not counted as part of the recovery goal. That goal is based upon wild 
spawners returning. Since the river specific broodstock were derived 
from the wild populations, they are determined to be similar to the 
naturally spawning fish. Genetic analysis of the broodstock has 
confirmed that the genetic diversity of the wild populations is being 
maintained in the captive population. Therefore, the river-specific 
broodstock and their progeny are part of the DPS. The purpose of the 
river-specific program is to facilitate recovery of these depleted 
populations. The river specific program is providing a critical role in 
increasing the effective population size of five of the populations 
within the DPS, and therefore providing a buffer against extinction. 
The hatchery populations are, therefore, essential to the survival and 
recovery of the wild populations. The Services further believe that 
naturally spawning Atlantic salmon populations founded by the hatchery 
populations will play an important role in the recovery process.
    The Services have issued a final policy regarding controlled 
propagation of species listed under the ESA (65 FR 56916, September 20, 
2000). The policy recognizes that, in certain circumstances, controlled 
propagation is an essential tool for the conservation and recovery of 
listed species. The policy advises that if controlled propagation is to 
be used as a strategy in the recovery of a listed species, it must be 
conducted in a manner that will minimize risk to existing populations 
and preserve the genetic and ecological distinctness of the listed 
species. These have all been considerations in designing and 
administering the current hatchery program. The ongoing and future role 
of the river-specific rearing program in the overall recovery plan for 
the Gulf of Maine DPS will be fully addressed in the recovery plan to 
be developed following this listing action.

Issue 21: Impact on Individuals

    Comment 38: Many commenters expressed concern that listing would 
affect the conduct of their daily lives by imposing additional 
restrictions upon them once listing occurred.
    Response: Unless an individual or organization is engaged in an 
activity that is likely to result in a ``take'' of Atlantic salmon, 
they will not be affected by the listing. A list of potential take 
activities was provided in the proposed rule and a revised list is 
being published in this final rule. It is the opinion of the Services 
that few, if any, individual citizens will be engaged in these 
activities or any others which may cause ``take'' of salmon. The 
Services remain committed to working with individuals and industries to 
ensure adequate protection is provided to Atlantic salmon and their 
habitat while minimizing effects to individuals and businesses. The 
Services acknowledge that listing the DPS may require some modification 
of current practices in the aquaculture and agriculture industries, and 
the Services have been working with the affected groups to achieve the 
necessary level of protection for salmon within the DPS. We are 
confident that these changes can be accomplished with minimal 
disruptions.

Issue 22: Citizen Suits

    Comment 39: Some commenters suggested that listing the DPS would 
bring a rash of lawsuits pursuant to the citizen suit provision of the 
ESA. The intent of the suits would be to force changes in land use or 
business practices in Maine.
    Response: Section 11(g) of the ESA entitled ``Citizen Suits'' says, 
in part,
``* * * any person may commence a civil suit on his own behalf (A) to 
enjoin any person, including the United States and any other 
Governmental instrumentality or agency (to the extent permitted by the 
eleventh amendment to the Constitution), who is alleged to be in 
violation of any provision of this act or regulation issued under the 
authority thereof.''
    This provision of the ESA is exercised by citizens or organizations 
seeking redress in those instances where they contend that no action, 
limited action, or inappropriate action is putting listed or 
petitioned, species at risk. The individual or organization making such 
claims is required to present information to support its position. 
Currently, the only salmon-related active citizen suits under this 
provision in Maine are against the Services for accepting the State of 
Maine Atlantic Salmon Conservation Plan in 1997, and concurrently 
withdrawing a proposed rule designating a seven-river DPS as 
``threatened.''

Issue 23: Resources for Recovery

    Comment 40: Some commenters expressed concern that there were not 
adequate resources to bring about salmon recovery.
    Response: The determination of whether a species is ``threatened'' 
or ``endangered'' is a biological one and does not consider the 
economic benefits or costs of listing. The Services acknowledge that 
listing does not guarantee that additional funding will become 
available, but the ``endangered'' or ``threatened'' designation raises 
the level of awareness about the species' plight, and allows the 
Services to spend funds from the portions of both Services' budgets 
designated for listed species management and protection. It also 
increases the likelihood that other involved Federal, State, and 
private organizations will dedicate more funds for salmon recovery. It 
is also important to note that section 7 of the ESA provides mandatory 
protection from any Federally permitted, authorized, funded, or carried 
out activities that would cause jeopardy. In fact, the proposal has 
already generated increased involvement and funding commitments from a 
number of Federal agencies including the Environmental Protection 
Agency (EPA), ACOE, and the Natural Resource Conservation Service. The 
State of Maine has also authorized additional salmon funds in the most 
recent legislative session.

Issue 24: Economic Concerns

    Comment 41: Many commenters at the public hearings orally and in 
writing expressed concern that additional regulations that accompany 
listing would cause severe economic hardship, particularly in 
Washington County, and that many people could lose their jobs as a 
result.
    Response: Section 4(b)(1)(A) of the ESA states, in part, that 
listing determinations shall be made, ``..solely on the basis of the 
best scientific and commercial data available..'' without weighing 
economic factors. The Services acknowledge the concerns that have been 
expressed and have adopted a number of policies to make implementation 
of the ESA more

[[Page 69474]]

flexible and to increase the options that affected citizens have in 
order to comply with the law. These are designed to encourage 
conservation by private landowners and others and provide them some 
certainty as to what is expected in the future. These policies include: 
``Safe Harbor Agreements,'' which provide landowners who voluntarily 
implement conservation actions for listed species with assurances that 
their regulatory obligations will not increase with an increase in 
these species on their lands; ``habitat conservation plans'' (HCPs) or 
``conservation plans,'' which must accompany an application for a 
Section 10(a)(1)(B) incidental take permit; and ``No Surprises'' under 
Section 10(a)(1)(B), which provides assurances to landowners that if 
``unforeseen circumstances'' arise, there will be no additional 
commitment of land, water or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level otherwise agreed to in a properly implemented habitat 
conservation plan.

Issue 25: Predation

    Comment 42: Many commenters expressed concerns that unchecked 
populations of seals and cormorants were contributing to declining 
salmon populations.
    Response: The FWS has begun development of a draft Environmental 
Impact Statement (EIS) and management plan for double crested 
cormorants. It will explore alternatives for managing cormorants 
throughout the contiguous United States including such options as a 
hunting season, control at breeding colonies by state agencies, and the 
continued issuance of depredation permits to private landowners. Maine 
has identified salmon as one of several issues that should be examined 
during the EIS process, as required under the National Environmental 
Policy Act of 1969 (NEPA).
    The 2000 Annual Meeting of the USASAC held a special session on 
seals and seal predation on Atlantic salmon. It was reported that 
populations of both grey and harbor seals have experienced steady 
growth since the early 1980s. Harbor seals in the vicinity of the Maine 
coast have experienced an 8.9-percent annual increase in their 
population. Populations of grey seals experienced a 7.4-percent annual 
growth in the Gulf of St. Lawrence, and a 12.6-percent increase at 
Sable Island. It was noted that seals are opportunistic feeders and 
will target both benthic and schooling pelagic fish species. Primary 
diet items of harbor seals include herring, cod, pollock, squid and 
hake. No salmon have been identified in harbor seal stomachs. Grey 
seals feed primarily on squid, herring, hake, and cod. There are two 
documented cases of grey seal predation on Atlantic salmon in the Gulf 
of St. Lawrence. During trapping operations in Maine incidents of 
scarring and injury on adult Atlantic salmon have been observed. The 
DFO conducted a literature search on seal predation and found that only 
two Atlantic salmon were found out of 5,680 seal stomachs examined. It 
was noted that if 100 percent of the Atlantic salmon biomass in the 
Atlantic Ocean were consumed by harp seals, Atlantic salmon would 
account for only 0.01 percent of their annual diet. This illustrates 
the difficulty in documenting Atlantic salmon predation by seals.
    Based on existing information, it appears that additional 
investigation is warranted to examine the potential for localized seal 
predation on salmon at critical concentration points and times such as 
during smolt outmigration and in the vicinity of weirs. In addition, 
seal predation at marine cages is of concern because it results in a 
loss in inventory for the grower and because it increases the potential 
for escape of farmed fish. The NMFS is working with the State of Maine 
to investigate these issues.
    Lethal take of marine mammals is authorized under the Marine Mammal 
Protection Act (MMPA) under very limited situations. Specifically, 
section 109(h)(1) of the MMPA authorizes Federal, state, and local 
officials to take marine mammals in a humane manner in the course of 
their duties if such taking is for: (A) the protection or welfare of 
the mammal, (B) the protection of the public health and welfare, or (C) 
the nonlethal removal of nuisance animals. Section 101(c) authorizes 
the taking of marine mammals if imminently necessary in self defense or 
to save the life of a person in immediate danger. Lethal taking to 
protect fishing gear or catch is prohibited by section 118(a)(5) and 
101(a)(4). In the 1994 amendments to the MMPA, Congress directed a 
scientific investigation be conducted to determine whether California 
sea lions and Pacific harbor seals are having a significant negative 
impact on the recovery of salmonid fishery stocks listed under the ESA 
or are having broader impacts on the coastal ecosystems of Washington, 
Oregon, and California. The Working Group recommended additional 
research in a number of areas but found that existing information on 
the seriously depressed status of many salmonid stocks is sufficient to 
warrant actions to remove pinnipeds in areas of co-occurrence where 
pinnipeds prey on depressed salmonid populations. In February 1999, 
based on these working group recommendations, NMFS submitted a report 
to Congress with the following four recommendations: implement site-
specific management for California sea lions and Pacific harbor seals; 
develop safe, effective, non-lethal deterrents; selectively reinstate 
authority for commercial fishers to kill harbor seals and sea lions to 
protect their gear and catch; and conduct additional research. Studies 
on the interactions of seals with netpens and at natural concentration 
sites (weirs, falls) should be conducted.

Issue 26: Forest Practices

    Comment 43: Some commenters suggested that current forest practices 
may be negatively affecting salmon.
    Response: Although the Status Review and the Maine Atlantic Salmon 
Conservation Plan identify a number of activities associated with 
forest practices that have the potential to affect salmon, the Services 
do not believe that current forest practices pose a significant threat 
to the well-being of the species. However, given the precarious status 
of the species even minor impacts must be recognized and dealt with. 
Consequently, the Services will continue to work with the industry, the 
Watershed Councils, and Project SHARE to secure additional habitat 
protection throughout the watersheds.

Issue 27: Agricultural Practices

    Comment 44: A number of commenters expressed concern that 
agricultural activities in Maine were negatively impacting salmon.
    Response: The Services do not believe that current agricultural 
practices are a major threat to the DPS with the exception of water 
withdrawals from the Pleasant, Narraguagus, and Machias Rivers. 
Pesticide sampling has been conducted in seven of the DPS watersheds, 
and hexazinone was the only chemical detected. There is no evidence 
that it is toxic to fish. Pollution from livestock can affect water 
quality, but efforts are underway to eliminate the impacts. Livestock 
husbandry is limited primarily to the mid-coast watersheds. As noted 
here, significant progress is being made to insure that withdrawals of 
irrigation water are protective of salmon, but more work remains to be 
done before the Services can consider this threat to be eliminated. The 
Services will continue to monitor forestry and agricultural practices 
and their effects on salmon during the recovery process.

[[Page 69475]]

Issue 28: Local Involvement

    Comment 45: A number of commenters urged the Services to be 
cognizant of the critical role of local citizens in the protection and 
recovery of Atlantic salmon. Some expressed concern that the 
involvement and cooperation of such citizens would cease with a listing 
action.
    Response: The Services fully agree that the successful recovery of 
Atlantic salmon will depend on the cooperation and involvement of the 
citizens of Maine and in particular those who live and work in the 
eight watersheds. The ESA encourages cooperative efforts and local 
involvement. As stated at the public hearings and elsewhere, the 
Services intend to draft a recovery plan for the Gulf of Maine DPS of 
Atlantic salmon by building upon the model of the Maine Conservation 
Plan which emphasizes citizen involvement. The Services envision a 
large role for the Watershed Councils in the recovery planning process 
and, based on comments provided at the public hearing, will also 
involve local Soil and Water Districts.

Summary of Factors Affecting the Gulf of Maine DPS of Atlantic 
Salmon

    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 here.

(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, and the Watershed Councils have 
demonstrated an ability to annually remove or reduce that threat. 
Chronic exposure to chemical residues in the water is a threat that 
warrants further investigation. In particular, potential impacts during 
the process of smoltification are being 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 berry 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 to 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.
    There does not appear to be one particular habitat issue which 
poses a significant threat to the entire DPS by itself. Because of 
their indirect relationship to habitat, agricultural water withdrawals 
are discussed separately in relation to listing factor (D) below. 
Additional study will be needed to determine whether the cumulative 
impacts from habitat degradation discussed here may reduce habitat 
quality and limit habitat quantity available to Gulf of Maine DPS 
salmon at various stages in their life history within freshwater. At 
present, the scientific and commercial data available do not show that 
loss of habitat is creating a danger of extinction to the DPS.

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

    The United States joined with other North Atlantic nations in 1982 
to form the North Atlantic Salmon Conservation Organization (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 U.S.' interest in NASCO stemmed from its 
desire to ensure that foreign fisheries intercepting 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.
    On February 5, 1999, the DFO announced adoption of the 
precautionary approach by a continued closure of the commercial 
Atlantic salmon fishery for Newfoundland and Labrador for an additional 
three years. Further restrictions on Canadian Atlantic salmon 
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 1999, the West Greenland Commission of NASCO agreed on a multi-
year approach for conservation of salmon stocks in Greenland, and, 
therefore, for 1999 and 2000, the catch at West Greenland in each of 
the years is restricted to the amount used internally in Greenland. The 
reported catch in 1999 was 19 tons and the unreported catch was 
estimated to be approximately 10 to 15 tons. Based on discriminant 
analysis of characteristics from scales sampled in the fishery, 91 
percent of fish in 1999 were of North American origin, the highest 
proportion on record. The catch at West Greenland in 1999 was estimated 
to consist of 17.8 tons (5,700 salmon) of North American origin and 1.8 
tons (600 salmon) of European origin. These values represent an 
increase of 84 percent of the North American and a reduction of 33 
percent of the European components, respectively, from the landings in 
1998.
    In October 1987, the New England Fishery Management Council 
prepared a Fishery Management Plan (FMP) to implement U.S. management 
authority for 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

[[Page 69476]]

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.
    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 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 33 
fish were caught and released within the range of the DPS in 1997, 20 
fish in 1998, and 12 in 1999. In December 1999, salmon angling was 
closed statewide.
    Atlantic salmon parr remain vulnerable to harvest by trout anglers 
and mortality associated with this activity has been documented. It is 
believed that poaching activity occurs at fairly low levels in Maine 
rivers. The low returns of wild adult salmon to Maine rivers highlight 
the importance of continuing assessment of all sources 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. 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 concern to the Gulf 
of Maine DPS of Atlantic salmon. Recreational fishing targeting other 
species also has the potential to result in the incidental catch of 
Atlantic salmon at various life stages. This could result in their 
injury or death. Thus, these fisheries also pose a threat to Atlantic 
salmon. There was one documented poaching event in 1998, indicating 
that poaching continues to pose a threat to Atlantic salmon. Continued 
enforcement efforts and adequate penalties are essential to minimize 
this threat.
    In view of elimination of the directed fishery in Maine and changes 
in the high seas fishery, the existing commercial fishery off West 
Greenland and bycatch in existing recreational fisheries in Maine are 
no longer considered as limiting the survival of the Gulf of Maine DPS 
of Atlantic salmon. Therefore, the best data presently available do not 
show that overutilization is creating a danger of extinction.

(C) Disease or Predation

    Fish diseases have always represented a source of mortality to 
Atlantic salmon in the wild, though major losses 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 disease as a threat to the DPS are: 
(1) The appearance of the ISA virus in 1996 in Canada, within the range 
of possible exposure of migrant DPS salmon, subsequent spreading of 
that disease closer to the Maine border, and the collection of 
aquaculture escapees and wild fish testing positive for the ISA virus; 
(2) the discovery in 1998 of the retrovirus SSSV within the DPS; and 
(3) 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 NANFH and a 
private hatchery in Deblois, ME 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 facility in Leetown, WV 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 CBNFH showed 
that the virus was present in carrier state in eight 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 for at least several years. 
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 virus has caused lethal disease under 
conditions that existed at one hatchery and, therefore, must be 
considered a threat.
    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. 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 Province of New Brunswick has 
taken extensive actions to control the spread of the virus. But the 
effectiveness of these actions is not assured and the affected Canadian 
aquaculture operations are near U.S. pen sites. Thus the virus 
represents a serious threat because of its potential to spread to the 
U.S. pens near the rivers and migration routes used by the Gulf of 
Maine DPS of Atlantic salmon.
    Cold Water Disease caused by the bacterium Flavobacterium 
psychrophilum has recently been found to be a serious problem to 
Atlantic salmon in New England waters. New information from ongoing 
studies by the Biological Resources Division of the USGS at their 
Leetown Science Center, WV has shown that the pathogen induces 
pathology and subsequent mortality among juvenile Atlantic salmon. The 
pathogen is transmitted vertically from carrier sea-run adults to 
offspring via the eggs.
    Predation has always been a factor influencing salmon numbers but 
under

[[Page 69477]]

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, including 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.
    In summary, the threat of disease is escalated both by its 
potential impact on Atlantic salmon in the wild and the threat it poses 
to the health of the river-specific broodstock and to the role of the 
hatchery program in the recovery effort. The best available scientific 
and commercial data show that disease presently creates a danger of 
extinction to the Gulf of Maine DPS of Atlantic salmon. There are 
insufficient data at this time to show that predation creates a danger 
of extinction to the DPS.

(D) Inadequacy of Existing Regulatory Mechanisms

    Major threats continue to be poor marine survival, water 
withdrawals, disease, and aquaculture impacts, especially interaction 
with European strain and hybrid (European/North American) salmon. A 
variety of state and Federal statutes and regulations seek to address 
threats to Atlantic salmon and their habitat. These laws are 
complemented by international actions under NASCO, 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 have not proven sufficient to deal with threats, or, 
if adequate, are not being sufficiently implemented or enforced.
(1) Water withdrawals
    Maine has made substantial progress in addressing the issue of 
agricultural water withdrawals but regulations and water use planning 
are not complete and in place to provide sufficient protection to the 
DPS. The Maine Land and Water Resource Council and the Maine 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. Until the 
water use planning is complete, however, the allowable surplus above 
that needed for salmon has not been quantified. In 1999, the LURC 
limited the amount of water that could be drawn from the Pleasant, 
Narraguagus, and Machias Rivers. The State Department of Environmental 
Protection (DEP) is developing a rule to address withdrawals on a 
state-wide basis. At this point, water withdrawals in unorganized towns 
are not regulated. The absence of completed water management plans for 
all DPS rivers subject to future agricultural water withdrawals, and of 
permanent protection for salmon flows, creates a danger of extinction 
for the Gulf of Maine DPS.
(2) Disease
    The European ISA virus has become established in North American 
aquaculture fish in proximity to Atlantic salmon in the DPS. The 
Services believe that Maine's fish health regulations may not fully 
ensure testing, reporting, and depopulation of diseased fish. 
Consequently, there remains an extremely serious possibility of ISA 
disease spreading from aquaculture fish. Also, the occurrence of a 
heretofore unknown retrovirus, SSSV, is not yet specifically addressed 
by any regulations. Disease episodes have impacted the Services' river-
specific stocking program in that Pleasant River broodstock had to be 
destroyed. Efforts are now underway to reestablish that broodstock. The 
Services thus conclude that inadequate regulation of disease vectors 
presents a serious threat to the health of the DPS.
(3) Aquaculture
    The known risks inherent in wild stocks interacting with 
aquaculture escapees have increased significantly from 3 years ago when 
the Services believed that certain restrictions on the importation and 
use of foreign salmon stocks were in place and enforced. Available data 
indicate that the percentage of European strain hybrid fish raised in 
aquaculture facilities has increased. Maine State Law (PL 1991 c381 sub 
section 2) restricts importing fish and eggs, but fails to restrict 
importing 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 strains or hybrids despite their 
commitment not to when obtaining ACOE permits, which were issued in 
reliance on applications which stated that no European strains or 
hybrids would be placed in cages. In addition, permits have not been 
issued by the EPA under the Clean Water Act to limit the discharge of 
pollutants from these aquaculture facilities. Thus, existing regulatory 
mechanisms are not adequate to address the threat of non-native 
Atlantic salmon used in aquaculture facilities.
    Existing regulatory mechanisms are not sufficient to remove the 
threat posed by agricultural water withdrawals, disease, and 
aquaculture to the Gulf of Maine DPS of Atlantic salmon. Given 
extremely low numbers of adult returns, without adequate regulation 
these threats create a danger of extinction of the Gulf of Maine DPS of 
Atlantic salmon.

(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 773 cages covering 800 
leased acres of water. Farms are concentrated in Cobscook Bay near 
Eastport, ME, but are located as far south as the Sheepscot River, 
although that site currently does not grow Atlantic salmon. The 
industry in Canada is approximately twice the size of the Maine 
industry. In addition, two freshwater hatcheries are located on rivers 
within the DPS range.
    Atlantic salmon that escape from farms and hatcheries pose a threat 
to native Atlantic salmon populations in coastal Maine rivers. Escapes 
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 substantial documentation that escaped 
farmed salmon 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;

[[Page 69478]]

Webb et al., 1993; Windsor and Hutchinson, 1990; and 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). In addition, there has 
recently been concern over 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; and 
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). Of the 676 outmigrating smolts 
that were captured between April and May 1999, between five percent and 
25 percent were estimated to be of hatchery origin.
    Given current aquaculture practices, the Services have opposed the 
use of reproductively viable European strains (pure and hybrid) of 
Atlantic salmon within North America and the continued importation of 
European gametes (milt). 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; and 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.
    Comprehensive protective solutions to minimize the threat of 
interactions between wild and aquaculture salmon have not been 
implemented. The industry voluntarily adopted a Code of Practice in 
October 1998. The Services are not aware of monitoring results of that 
Code but note that escapes continued to be documented in the DPS in 
1999 and 2000, when the Code was in place. Weirs help minimize the 
potential interaction between escapees and wild salmon, but they are 
not present on all rivers and where present are only in place 
seasonally. 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, mark 
all fish prior to placement in marine cages, and phase out the holding 
of North American/European hybrids. These efforts were unsuccessful. In 
July of 1999, the Services initiated discussions directly with the 
Maine DMR (the state agency responsible for aquaculture industry 
regulation). These discussions were only partially successful because, 
although information was exchanged, agreement on timing or specific 
measures was not reached.
    Further, marine survival rates, as discussed in a second threat 
within factor (E), 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, parasites, and abiotic factors. In addition, scientific 
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, in 
part, 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.
    Thus, existing aquaculture practices and low marine survival create 
a danger of extinction of the Gulf of Maine DPS of Atlantic salmon.

State Conservation Efforts

    Section 4(b)(1)(A)of the ESA requires us, in making a listing 
determination, to take into account efforts being made by the state, 
foreign nations, or their political subdivisions, to protect the DPS of 
Atlantic salmon. In 1997, Maine developed a conservation plan that 
attempted to identify and address threats to the species. The state has 
implemented a number of the items contained in the various sections of 
the plan. Additional details on conservation activities can be found in 
the 1999 Annual Progress Report on implementation of the Maine Atlantic 
Salmon Conservation Plan for Seven Maine Rivers, prepared by the Maine 
Atlantic Salmon Commission and available at www.state.me.us/asa/99AnnRpt.html. Since publication of the proposed rule on November 17, 
1999, the following accomplishments can be noted:
    a. In December 1999, the State closed all salmon fishing until 
further notice, thus eliminating this as a source of mortality. The 
possibility of mortality from bycatch still exists when trout, striped 
bass, and other fish are the being targeted.
    b. The final draft of the Pleasant River water use management plan 
is scheduled for completion in the fall of 2000. Draft plans for the 
Narraguagus River and a major tributary will be available then as well. 
Planning efforts have included instream flow requirements to protect 
salmon, and alternative sources of water are being sought.
    c. The State of Maine appropriated $810,000 for Atlantic salmon in 
fiscal year 2000/2001. The DEP hired a water quality specialist 
dedicated to the DPS rivers with a portion of those funds. The Maine 
ASC manages the distribution of the balance of available funds. 
Watershed Councils and other groups have submitted proposals for salmon 
and salmon habitat projects to the ASC for funding consideration.
    d. Weirs constructed by the State of Maine are in place and 
functioning on the Dennys and Pleasant Rivers.
    e. Acquisition and permanent protection of a 220-acre tract of land 
on the Narraguagus River was completed in October 2000.
    f. The Maine ASC and the FWS continue to map salmon habitat in the 
eight DPS rivers. Mapping and geographic information system (GIS) 
coverage will be completed for the East Machias River this year.
    In determining whether to make this rule final, we have carefully 
assessed the best scientific and commercial

[[Page 69479]]

information available regarding the past, present, and future threats 
faced by the Gulf of Maine DPS of Atlantic salmon, while taking into 
account ongoing conservation efforts and commitments made by the State 
of Maine and other entities. Based on our evaluation, listing the Gulf 
of Maine DPS of Atlantic salmon as endangered is warranted.
    The Services are listing this DPS of anadromous Atlantic salmon as 
endangered under the ESA because of the danger of extinction created by 
factor (C) through disease; factor (D) through inadequate regulation of 
agricultural water withdrawals, disease, and aquaculture; and factor 
(E) through existing aquaculture practices and low marine survival. 
These factors take on added significance given the poor adult returns 
and lower than expected parr to smolt survival. At present, the DPS is 
known to include populations of Atlantic salmon in the Sheepscot, 
Ducktrap, Narraguagus, Pleasant, Machias, East Machias, and Dennys 
Rivers, as well as 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 
this listing. In the future, DPS populations may be identified in 
additional rivers based on ongoing stream surveys and continuing 
genetic analyses. This could be done in a separate notification 
process.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, state agencies, private organizations, 
groups, and individuals. The ESA provides for possible land acquisition 
and cooperation with the states and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm are discussed, in 
part, here.
    Section 7(a) of the ESA, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the ESA are codified at 50 CFR part 402. 
Section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a 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 
formal consultation with us.
    Federal activities that could occur and impact the Gulf of Maine 
DPS of Atlantic salmon include, but are not limited to, the carrying 
out or the issuance of permits for marine aquaculture pen sites, 
freshwater hatcheries, cranberry bog development, water withdrawal 
projects, pesticide registration, streambank stabilization, and road 
and bridge construction. In our experience, nearly all ESA section 7 
consultations have been resolved so that the species have been 
protected and the project objectives have been met.
    In addition, ESA section 7(a)(1) requires all Federal agencies to 
review the programs they administer and use these programs in 
furtherance of the purposes of the ESA. All Federal agencies, in 
consultation with us, are to carry out programs for the conservation of 
endangered and threatened species listed pursuant to section 4 of the 
ESA.
    The Services believe that the State of Maine's Atlantic salmon 
conservation plan can become a strong foundation for recovery once it 
is revised and updated to take current conditions, threats, and 
progress into account. We will work closely with Maine agencies, 
conservation groups, and industry participants to bring the plan up to 
date and ensure effective implementation.
    The ESA and its implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These 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, 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 endangered 
wildlife. To possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally is also illegal.
    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is to identify, to the maximum extent practicable, those 
activities that would or would not constitute a violation of section 9 
of the ESA for the species. The intent of this policy is to increase 
public awareness as to the effects of this final listing on future and 
ongoing activities within this species range.
    The Services believe that, based on the best available information, 
the following actions are unlikely to 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;
    (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, hatchery programs, and stream channelization or diversion 
for which consultation under section 7 of the ESA has been completed, 
and when such activity is 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;
    (3) Routine culture and assessment techniques, including the FWS' 
river-specific rehabilitation program at CBNFH; and
    (4) Emergency responses to disease outbreaks.
    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 illegal 
harvest;
    (2) The escapement of reproductively viable non-North American 
strain or non-North American hybrid Atlantic salmon in freshwater 
hatcheries within the DPS range;
    (3) The escapement from marine cages or freshwater hatcheries of 
domesticated salmon 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) Discharging (point and non-point sources) or dumping toxic 
chemicals, silt, fertilizers, pesticides, heavy metals, oil, organic 
wastes or other pollutants into waters supporting the DPS;
    (7) Blocking migration routes;
    (8) Destruction and/or 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

[[Page 69480]]

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 compliance with or 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).
    Other activities not identified here will be reviewed on a case-by-
case basis to determine if violation of section 9 of the ESA may be 
likely to result from such activities. We do not consider these lists 
to be exhaustive and provide them as information to the public.
    This final rule 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.
    For listed species, ESA 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.
    ESA sections 10(a)(1)(A) and 10(a)(1)(B) (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.
    ESA 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.

National Environmental Policy Act

    The FWS has determined that Environmental Assessments and 
Environmental Impact Statements, as defined under the authority of the 
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).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094 which expires on February 28, 2001. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid control number. For additional information concerning permit and 
associated requirements for endangered species, see 50 CFR 17.22.

References Cited

    You may request a complete list of all references cited in this 
document from Paul Nickerson or Mary Colligan (see ADDRESSES).

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 13132 and are exempt 
from review under Executive Order 12866.

Authors

    The primary authors of this document are Mary Colligan, NMFS, and 
Paul Nickerson, FWS; refer to ADDRESSES section.

List of Subjects

50 CFR Part 17

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

50 CFR Part 224

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


    For the reasons set out in the preamble, 50 CFR parts 17 and 224 
are amended as follows:

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 entry, in 
alphabetical order under FISHES, to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Species
---------------------------------------------------------------   Historic range       Vertebrate population where     Status   When   Critical  Special
             Common name                   Scientific name                              endangered or threatened               listed   habitat   rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
FISHES

[[Page 69481]]

 
 
                   *                  *                  *                  *                  *                  *                  *
Salmon, Atlantic.....................              Salmo salar  U.S.A., Canada,    U.S.A., ME Gulf of Maine Atlantic        E     705       NA       NA
                                                                 Greenland,         Salmon Distinct Population
                                                                 western Europe     Segment, which includes all
                                                                                    naturally reproducing wild
                                                                                    populations and those river-
                                                                                    specific hatchery populations of
                                                                                    Atlantic salmon having
                                                                                    historical, river-specific
                                                                                    characteristics found north of
                                                                                    and including tributaries of the
                                                                                    lower Kennebec River to, but not
                                                                                    including, the mouth of the St.
                                                                                    Croix River at the 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.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    3. 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.


    4. 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. The following table lists the 
common and scientific names of endangered species, the locations where 
they are listed, and the citations for the listings and critical 
habitat designations.

 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                               Species\1\
-------------------------------------------------------------------------                  Where listed                               When listed                      Critical habitat
               Common name                        Scientific Name
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shortnose sturgeon                         Acipenser brevirostrum         U.S.A., northwestern Atlantic, in river                   32 FR 4001, Mar. 11,1967                                  NA
                                                                           systems from the Saint John River in New
                                                                           Brunswick, Canada, to the St. Johns River,
                                                                           Florida
Southern California steelhead              Oncorhynchus mykiss            U.S.A., CA, including all naturally spawned             62 FR 43937, Aug. 18, 1997            64 FR 5740, Feb. 5, 1999
                                                                           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            U.S.A., WA, including the Wells Hatchery stock          62 FR 43937, Aug. 18, 1997            64 FR 5740, Feb. 5, 1999
                                                                           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 U.S.--Canada
                                                                           Border
Snake River sockeye salmon                 Oncorhynchus nerka             U.S.A., ID, Snake River                                 56 FR 58619, Nov. 20, 1991          58 FR 68543, Dec. 28, 1993

[[Page 69482]]

 
Upper Columbia River spring-run chinook    Oncorhynchus tshawytscha       U.S.A., WA, including all naturally spawned             64 FR 14308, Mar. 24, 1999           65 FR 7764, Feb. 16, 2000
 salmon                                                                    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        Oncorhynchus tshawytscha       U.S.A., CA, Sacramento River                            59 FR 13836, Mar. 23, 1994          58 FR 33212, Jun. 16, 1993
 salmon
Salmon, Atlantic                           Salmo salar                    U.S.A., ME Gulf of Maine Atlantic Salmon                                                                            NA
                                                                           Distinct Population Segment, which includes
                                                                           all naturally reproducing wild populations
                                                                           and those river-specific hatchery populations
                                                                           of Atlantic salmon having historical, river-
                                                                           specific characteristics found north of and
                                                                           including tributaries of the lower Kennebec
                                                                           River to, but not including, the mouth of the
                                                                           St. Croix River at the 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.
Totoaba                                    Cynoscion macdonaldi           Mexico, Gulf of CA                                       44 FR 29480, May 21, 1979                                  NA
 
                                      *                  *                  *                  *                  *                  *                  *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units
  (ESUs)(for a policy statement, see 56 FR 58612, November 20, 1991)



[[Page 69483]]

    Dated: November 13, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    Dated: November 8, 2000.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-29423 Filed 11-14-00; 4:05 pm]
BILLING CODE 3510-22-F, 4310-55-F