[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33116-33122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11210]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040511147-5142-02; I.D. 042804B]


Listing Endangered and Threatened Species and Designating 
Critical Habitat: 12-Month Finding on Petition to List the Cherry Point 
Stock of Pacific Herring as an Endangered or Threatened Species

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

ACTION: Notice of 12-month petition finding.

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SUMMARY: We (NMFS) have completed an updated Endangered Species Act 
(ESA) status review of Pacific herring (Clupea pallasi), inclusive of 
the Cherry Point herring stock (Strait of Georgia, Washington). We 
initiated this status review update in response to a petition received 
on May 14, 2004, to list the Cherry Point stock of Pacific herring as a 
threatened or endangered species. We have determined that the Cherry 
Point herring stock does not qualify as a ``species'' for consideration 
under the ESA. Based upon the best available

[[Page 33117]]

scientific and commercial information, we conclude that the petitioned 
action to list the Cherry Point Pacific herring stock as a threatened 
or endangered species is not warranted. We find that the Cherry Point 
stock is part of the previously defined Georgia Basin distinct 
population segment (DPS) composed of inshore Pacific herring stocks 
from Puget Sound (Washington) and the Strait of Georgia (Washington and 
British Columbia). We have determined that the Georgia Basin DPS of 
Pacific herring is not in danger of extinction or likely to become 
endangered in the foreseeable future throughout all or a significant 
portion of its range, and therefore does not warrant ESA listing at 
this time.

DATES: The finding announced in this notice was made on June 1, 2005.

ADDRESSES: The status review update for Pacific herring and the list of 
references cited in this notice are available upon request from Chief, 
NMFS, Protected Resources Division, 1201 NE Lloyd Avenue, Suite 1100, 
Portland, OR, 97232. These materials are also available on the Internet 
at: http://www.nwr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
notice contact Garth Griffin, NMFS, Northwest Region, (503) 231-2005, 
or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    ESA Statutory Provisions and Policy Considerations
    Under the ESA, a listing determination may address a species, 
subspecies, or a DPS of any vertebrate species which interbreeds when 
mature (16 U.S.C. 1532(15)). On February 7, 1996, the U.S. Fish and 
Wildlife Service and NMFS adopted a policy to clarify the agencies' 
interpretation of the phrase ``distinct population segment of any 
species of vertebrate fish or wildlife'' (ESA section 3(15)) for the 
purposes of listing, delisting, and reclassifying a species under the 
ESA (51 FR 4722). The joint DPS policy identified two elements that 
must be considered when making DPS determinations: (1) the discreteness 
of the population segment in relation to the remainder of the species 
(or subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range,'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The statute 
lists factors that may cause a species to be threatened or endangered 
(ESA section 4(a)(1)): (a) the present or threatened destruction, 
modification, or curtailment of its habitat or range; (b) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (c) disease or predation; (d) the inadequacy of 
existing regulatory mechanisms; or (e) other natural or manmade factors 
affecting its continued existence.
    Section 4(b)(1)(A) of the ESA requires NMFS to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made to protect the species. In 
making listing determinations under the ESA we first determine whether 
a population or group of populations constitutes a DPS (i.e., whether 
the populations(s) should be considered a ``species'' within the 
meaning of the ESA), and if so we assess the level of extinction risk 
faced by the DPS and any factors that have led to its decline. If it is 
determined that the DPS' survival is at risk throughout all or a 
significant portion of its range, we then assess efforts being made to 
protect the species, determining if these efforts are adequate to 
mitigate threats to the species. Based on the foregoing information and 
the factors identified in ESA section 4(a)(1), we then make a listing 
determination of whether the species is threatened, the species is 
endangered, or listing is not warranted.

Life History of Pacific Herring

    Pacific herring in the Eastern Pacific Ocean range from northern 
Baja California north to at least the Mackenzie Delta in the Beaufort 
Sea. They are also found in the Russian Arctic from the Chukchi Sea in 
the east to the White Sea in the west, although the boundary between 
Atlantic and Pacific herring is unclear in this region (Hay et al., 
2001b). In the Northwestern Pacific they are found throughout the 
Western Bering Sea, the east coast of Kamchatka, and the Sea of 
Okhotsk; on the east and west coasts of Hokkaido, Japan; and south and 
west to the Yellow Sea off the Korean Peninsula (Haegele and 
Schweigert, 1985; Hay et al., 2001b).
    Adult herring in the Eastern Pacific move inshore during winter and 
early spring and reside in holding areas before moving to adjacent 
spawning grounds (Hay, 1985). Spawning grounds are typically in 
sheltered inlets, sounds, bays, and estuaries (Haegele and Schweigert, 
1985). Pacific herring usually spawn intertidally or in shallow 
subtidal zones, depositing adhesive eggs over algae, vegetation, or 
other substrates (Hay, 1985). The location and timing of spawning for 
individual stocks are generally consistent and predictable from year to 
year (Hay et al., 1989; O'Toole et al., 2000).
    Pacific herring spawn timing varies with latitude, with earlier 
spawning (i.e., early-winter) occurring in the more southern latitudes 
of the species' range, and later spawning (i.e., mid-summer) occurring 
toward the northern limit of the species' range (Hay, 1985). In Puget 
Sound, spawning generally occurs from January to April, with peak 
spawning activity in February and March; however, Pacific herring at 
Cherry Point spawn from late-March to mid-June (Bargmann, 1998).
    Pacific herring larvae drift in ocean currents after hatching and 
are abundant in shallow nearshore waters (Lassuy, 1989; Hay and 
McCarter, 1997). After 2 to 3 months, larvae metamorphose into 
juveniles that form large schools and remain primarily in nearshore 
shallow-water areas during the first summer. After their first summer, 
juveniles may disperse to deeper offshore waters to mature or reside 
year-round in nearshore waters (Hay, 1985). For example, some herring 
are nonmigratory or resident and spend their entire life within Puget 
Sound and the Strait of Georgia, while other more migratory herring 
spend their summers in the offshore waters of Washington and southern 
British Columbia (Hay et al., 2001a; Trumble, 1983).
    Pacific herring age at first maturity ranges from age-2 to age-5 
(Hay, 1985). Along the west coast of North America, populations of 
Pacific herring exhibit a latitudinal cline in age at first maturity, 
such that herring in southern locations (i.e., California) mature at an 
earlier age and herring in the north (i.e., Bering Sea) mature at later 
ages (Hay, 1985). In Puget Sound, Pacific herring reach sexual maturity 
at age-2 to age-4 (Bargmann, 1998). Pacific herring in the Strait of 
Georgia and other major assessment areas in British Columbia reach 
sexual maturity at age-3 (Hay and McCarter, 1999). In general, 
populations of Pacific herring also exhibit a latitudinal cline in mean 
size-at-age, such that herring in southern locations (i.e., California) 
exhibit small size and herring in the north (i.e., Bering Sea) attain a 
far larger size at a similar age. Herring may spawn annually for 
several years (Hay, 1985), with overall

[[Page 33118]]

fecundity increasing as body size increases (Ware, 1985; Hay, 1985).
    In the state of Washington there are 21 documented spawning stocks: 
19 stocks in Puget Sound (including the Cherry Point stock and the 
recently re-discovered Wollochet Bay stock), and two on the Washington 
Coast (Bargmann, 1998; Stout et al., 2001). The Cherry Point Pacific 
herring stock historically spawned along the Washington coastline from 
Hale Passage (between the north end of Bellingham Bay and the east 
coast of Lummi Island), north to Cherry Point, Birch Point, Point 
Roberts, and the border with Canada (Lemberg et al., 1997). Since 1996, 
spawning of the Cherry Point stock has only occurred in the vicinity of 
Birch Point and along the Cherry Point Reach. Spawning at Cherry Point 
can begin as early as late-March and end as late as mid-June, although 
peak spawning activity occurs around May 10th (O'Toole et al., 2000). 
Spawning at all other Pacific herring locations in Puget Sound, Hood 
Canal, and the Strait of Juan de Fuca normally occurs from late-January 
through late-April (Trumble, 1983; Lemberg et al., 1997; O'Toole et 
al., 2000) with peak spawning starting the last week of February or the 
first week of March (O'Toole et al., 2000).
    Since record keeping began in 1928, British Columbia Pacific 
herring have been observed to spawn at over 1,300 locations along the 
approximately 5,200 km of coastline that is classified as herring 
spawning habitat (Hay and McCarter, 2004). In any given year, between 
450 and 600 km of the British Columbia coast receives herring spawn. 
The Canada Department of Fisheries and Oceans has identified six stock 
assessment regions and 101 sub-areas or ``Herring Sections'' 
characterized by consistent Pacific herring spawning activity. In 
general, Pacific herring spawn from January to May in southern British 
Columbia and from mid-January to June in northern British Columbia 
(Taylor, 1964; Hourston, 1980). As at Cherry Point, Pacific herring in 
several Herring Sections in British Columbia exhibit notably late spawn 
timing for their local region (e.g., Skidegate Inlet [Section 022] and 
Masset Inlet [Section 011] in the Queen Charlotte Islands Region and 
Burke Channel [Section 084] in the Central Coast Region) (Hay et al., 
1989).

Previous Federal Actions Relating to Pacific Herring

    We completed a status review of Pacific Herring in 2001 (Stout et 
al., 2001). This earlier review was initiated in response to a petition 
received in February 1999 to list 18 species of marine fishes in Puget 
Sound, including Pacific herring. We concluded that the Pacific herring 
stocks in Puget Sound do not constitute a DPS (and therefore do not 
qualify as a ``species'' under the ESA). We determined that these Puget 
Sound herring stocks, including the Cherry Point stock, belonged to a 
larger Georgia Basin Pacific herring DPS consisting of over 40 inshore 
stocks from Puget Sound and the Strait of Georgia in the United States 
and Canada (64 FR 17659; April 3, 2001). We concluded that the Georgia 
Basin DPS is not threatened or endangered throughout all or a 
significant portion of its range (64 FR 17659; April 3, 2001); however, 
we did note concern regarding two herring stocks within the Georgia 
Basin DPS (the Cherry Point and Discovery Bay stocks) that have shown 
marked declines in range and abundance. Although we recognized that 
these two declining stocks may be vulnerable to extirpation, we 
concluded that they represent a relatively small portion of the more 
than 40 stocks and assessment areas composing the DPS and do not confer 
significant risk to the DPS throughout all or a significant portion of 
its range.

Summary of Petitions Received

    On January 22, 2004, NMFS received a petition from the Northwest 
Ecosystem Alliance, the Center for Biological Diversity, Ocean 
Advocates, People for Puget Sound, Public Employees for Environmental 
Responsibility, Sam Wright, and the Friends of the San Juans to find 
that the Cherry Point (Washington) stock of Pacific herring qualifies 
as a DPS and warrants listing as a threatened or endangered species 
under the ESA. Subsequently, on May 14, 2004, the same petitioners 
submitted additional information including new genetic information on 
the stock structure of Pacific herring in Puget Sound and the Strait of 
Georgia (Washington) that had become available since the initial 
petition was received on January 22, 2004. We considered the 
petitioners' supplemental submission (in conjunction with the January 
22, 2004, submission) as a distinct petition received by the agency on 
May 14, 2004. On August 10, 2004, we issued our finding that the 
petition received on January 22, 2004, fails to present substantial 
scientific and commercial information indicating that the petitioned 
action may be warranted, but that the petition received on May 14, 
2004, does present substantial scientific and commercial information 
indicating that the petitioned action may be warranted (69 FR 48455).
    For a summary of the specific information presented in the two 
petitions, the reader is referred to the above mentioned Federal 
Register notice describing the petition findings. Most significantly, 
the petition received on May 14, 2004, presented new genetic 
information (Small et al., 2004) indicating that the Cherry Point 
herring stock may be ``discrete'' and ``significant'' with respect to 
the species, and may thereby qualify as a DPS for listing consideration 
under the ESA. The majority of the information provided by the 
petitioners regarding the viability of the Cherry Point herring stock 
was evaluated in our earlier 2001 status review. The Cherry Point 
herring stock has declined dramatically over the last three decades, 
with the spawning biomass in 2000 representing a 94 percent decline 
from historical observations. The 2001 status review noted that there 
was a 50 percent chance that the Cherry Point stock would decline to 1 
ton or less in 100 years (Stout et al., 2001). The petitioners also 
provided additional biomass information from 2001-2004 for the period 
since the 2001 status review.

Updated Status Review of Pacific Herring

    The ESA requires that, as a consequence of accepting the above 
petition, NMFS promptly commence a review of the species' status and 
make a finding within 12 months after receiving the petition, whether 
the petitioned action is warranted (ESA Section 4(b)(3)). To ensure 
that our review was based on the best available and most recent 
scientific information, we solicited information during a 60-day public 
comment period regarding the DPS structure and extinction risk of, and 
efforts being made to protect, the species (69 FR 48455; August 10, 
2004).
    We convened a Biological Review Team (BRT) (an expert panel of 
scientists from NMFS' Northwest and Alaska Fisheries Science Centers, 
and NOAA's National Ocean Service) to review the available information 
and determine: (1) the DPS structure of Pacific herring, specifically 
whether the Cherry Point herring stock qualifies as a ``species'' for 
consideration under the ESA; and (2) whether the identified DPS(s) are 
in danger of extinction or likely to become so in the foreseeable 
future throughout all or a significant portion of its range. The BRT's 
findings are presented in a January 24, 2005, memorandum ``Summary of 
Scientific Conclusions of the Status of Cherry Point Pacific Herring 
(Clupea pallasii) and Update of the Status of the Georgia

[[Page 33119]]

Basin Pacific Herring DPS,'' and are summarized briefly below.

Determination of ``Species''

    Under the joint DPS policy (51 FR 4722; February 7, 1996) a 
population segment may be considered discrete if it satisfies either 
one of the following conditions: (1) it is markedly separated from 
other populations of the same biological taxon as a consequence of 
physical, physiological, ecological, or behavioral factors 
(quantitative measures of genetic or morphological discontinuity may 
provide evidence of this separation); or (2) it is delimited by 
international governmental boundaries across which there is a 
significant difference in exploitation control, habitat management or 
conservation status. Under the joint DPS policy, if a population is 
determined to be discrete, the agency must then consider whether it is 
significant to the taxon to which it belongs. Considerations in 
evaluating the significance of a discrete population include: (1) 
persistence of the discrete population in an unusual or unique 
ecological setting for the taxon; (2) evidence that the loss of the 
discrete population segment would cause a significant gap in the 
taxon's range; (3) evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere outside its historical geographic range; or (4) 
evidence that the discrete population has marked genetic differences 
from other populations of the species.
    The BRT considered several types of information in evaluating the 
DPS structure of Pacific herring, including whether the Cherry Point 
herring stock qualifies for listing consideration as an independent 
DPS. Information considered in evaluating the discreteness of stocks 
include: (1) geographic variability in life-history characteristics and 
morphology; (2) tagging and recapture studies indicating the level of 
migration among stocks; and (3) genetic differentiation among stocks 
reflective of marked reproductive isolation.

Relationship of Stock and DPS Concepts

    Pacific herring in the vicinity of Cherry Point (Washington) are 
considered to be a stock for management purposes in the state of 
Washington (Bargmann, 1998). There is no definition of the term 
``stock'' that is generally accepted by fisheries biologists (Stout et 
al., 2001). The term stock has been used to refer to: (1) fish spawning 
in a particular place or time, separated to a substantial degree from 
fish spawning in a different place or time (Ricker, 1972); (2) a 
population sharing a common environment that is sufficiently discrete 
to warrant consideration as a self-perpetuating system that can be 
managed separately (Larkin, 1972); (3) a species group or population of 
fish that maintains and sustains itself over time in a definable area 
(Booke, 1981); and (4) an intraspecific group of randomly mating 
individuals with temporal or spatial integrity (Ihssen et al., 1981). 
None of these definitions imply that a fish stock is ecologically, 
biologically, or physiologically significant in relation to the 
biological species as a whole. Hence, information establishing a group 
of fish as a stock, such as the Cherry Point stock of Pacific herring, 
does not necessarily qualify it as a DPS. A DPS may be composed of a 
group of related stocks, or in some cases (if the evidence warrants) a 
single stock, that form(s) a discrete population and are (is) 
significant to the biological species as a whole.

Pacific Herring as a Metapopulation

    A ``metapopulation'' is an aggregation of subpopulations linked by 
migration, and subject to periodic extinction and recolonization events 
(Levins, 1968, 1970). Observations of herring population structure in 
the Atlantic and Pacific are consistent with this metapopulation 
concept (McQuinn, 1997; Ware et al., 2000; Ware and Schweigert, 2001 
,2002; Ware and Tovey, 2004): (1) local herring stocks are distributed 
across spatially fragmented spawning habitat; (2) local stocks exhibit 
partially independent demographics and dynamics; (3) there is 
appreciable straying and gene flow among local populations; and (4) 
there is evidence of disappearance and recolonization events. 
Consistent with the consideration of Pacific herring as a 
metapopulation, local spawning stocks of herring may demonstrate 
distinctive demographic patterns and reproductive isolation over 
relatively short temporal scales, yet over longer time periods 
regularly exchange low levels of individuals or experience periodic 
waves of dispersal during years of abundant recruitment.

DPS Determination for the Cherry Point Stock of Pacific Herring

    The BRT concluded that the Cherry Point stock of Pacific herring 
was ``discrete'' under the DPS policy (NMFS, 2005). The BRT determined 
that the Cherry Point stock is markedly separated from other Pacific 
herring populations as a consequence of physical, physiological, 
ecological, or behavioral factors due to: (1) its locally unique late 
spawn timing; (2) the locally unusual location of its spawning habitat 
on an exposed section of coastline; (3) its consistently large size-at-
age and continued growth after maturation relative to other local 
herring stocks; and (4) its differential accumulation of toxic 
compounds relative to other local herring stocks, indicative of 
different rearing or migratory conditions for Cherry Point herring.
    Although the BRT determined that the Cherry Point stock represents 
a discrete population, the BRT concluded that the stock is not 
``significant'' to the taxon, and hence does not constitute a DPS 
(NMFS, 2005). The BRT noted that: (1) over the broad geographic range 
of Pacific herring, the local distinctiveness of the Cherry Point stock 
is not unusual; (2) the late spawn timing of the Cherry Point stock is 
not exceptional for Pacific herring, as there are other Pacific herring 
stocks with similarly exceptionally late (as well as early) spawn 
timing for their local region; (3) other Pacific herring stocks have 
spawning habitats located on exposed coastlines subject to high-energy 
wave action; and (4), given the level of genetic variability observed 
within and between herring stocks, the level of genetic differentiation 
exhibited by the Cherry Point stock was unlikely to indicate a marked 
or evolutionarily significant level of differentiation. Based on this 
information, the BRT concluded that the Cherry Point stock does not 
satisfy the applicable DPS criteria for significance: Cherry Point does 
not represent a unique or unusual ecological setting for Pacific 
herring; the loss of the Cherry Point herring stock would not result in 
a significant gap in the extensive range of Pacific herring; and the 
Cherry Point stock does not exhibit marked genetic differentiation 
relative to other Pacific herring populations.

Petition Finding

    As summarized above, the May 14, 2004, petition submitted by the 
Northwest Ecosystem Alliance and co-petitioners sought a finding that 
the Cherry Point (Washington) stock of Pacific herring qualifies as a 
DPS and warrants listing as a threatened or endangered species under 
the ESA. In a Federal Register notice published on August 10, 2004 (69 
FR 48455), we published the finding that the petition presented 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted. As described in the preceding 
section, we have determined that the Cherry Point stock of Pacific 
herring is ``discrete,'' but is not ``significant'' under the joint 
NMFS/U.S. Fish and Wildlife Service DPS policy. Thus, the

[[Page 33120]]

Cherry Point herring stock does not qualify as a DPS for listing 
consideration under the ESA. Accordingly, we find that the action 
sought by the May 14, 2004, Northwest Ecosystem Alliance et al. 
petition is not warranted.

DPS Determination for Pacific Herring in the Georgia Basin

    The BRT considered a number of alternative DPS configurations for 
Pacific herring incorporating the Cherry Point herring stock, ranging 
from the previously identified Georgia Basin DPS to a DPS encompassing 
Pacific herring from San Diego (California) to Sitka (Alaska). Evidence 
suggesting a DPS configuration larger than the Georgia Basin includes: 
(1) tagging studies indicating that straying among herring stocks 
occurs at spatial scales exceeding that of the Georgia Basin; (2) 
information indicating relative genetic homogeneity of Pacific herring 
stocks in the Pacific Northwest, Strait of Georgia, and British 
Columbia; and (3) evidence supporting the concept that local herring 
stocks are part of a larger Pacific herring metapopulation. 
Notwithstanding this information, the majority of the BRT favored the 
previous delineation of a Georgia Basin DPS of Pacific herring, finding 
that the available information is insufficient to warrant modification 
of the previous DPS delineation (NMFS, 2005). A variety of evidence 
supports the finding that Georgia Basin Pacific herring satisfy the 
criteria for discreteness and significance under the joint DPS policy, 
including: the similarity in age composition of herring stocks in the 
Strait of Georgia and Puget Sound supporting the discreteness of 
Georgia Basin Pacific herring, and the ecological uniqueness of the 
inshore waters of Puget Sound and the Strait of Georgia supporting the 
significance of the Pacific herring in the Georgia Basin to the taxon 
as-a-whole. (For a more detailed discussion of the information 
supporting the delineation of the Georgia Basin DPS of Pacific herring, 
the reader is referred to the Stout et al., 2001, status review). The 
BRT delineated the Georgia Basin DPS as encompassing spawning stocks of 
Pacific herring in the marine waters of Puget Sound, the Strait of 
Georgia, and eastern Strait of Juan de Fuca in the United States and 
Canada.

Review of the Species' Status

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as any species likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range. Section 4(b)(1) of the ESA requires that the 
listing determination be based solely on the best scientific and 
commercial data available, after conducting a review of the status of 
the species and taking into account those efforts, if any, being made 
to protect such species.
    The BRT considered the best available biological information to 
assess the level of extinction risk for the Georgia Basin DPS of 
Pacific herring. The BRT evaluated the DPS's extinction risk based on 
risks to its abundance, productivity, spatial structure (including 
spatial distribution and connectivity), and diversity. These four 
``Viable Salmonid Population'' (VSP; McElhany et al., 2000) criteria 
were developed to provide a consistent and logical framework for 
assessing risks to populations and DPSs of West Coast salmon and 
steelhead. Although initially developed for application to salmonid 
metapopulations, the VSP criteria are well founded in the conservation 
biology literature. Threats to a species' long-term persistence are 
manifested demographically as risks to its abundance, productivity, 
spatial structure, and productivity. These demographic risks thus 
provide the most direct and robust biological indicators of extinction 
risk. The BRT's assessment of extinction risk did not include an 
evaluation of the likely or potential contribution of efforts being 
made to protect the species, but was based solely on the available 
biological information assuming that present conditions will continue, 
and recognizing that natural demographic and environmental variability 
is an inherent feature of present conditions. Below we summarize the 
BRT's assessment of demographic risks to the Georgia Basin DPS's 
abundance, productivity, spatial structure, and diversity, as well as 
the BRT's extinction risk assessment for the DPS based on these risks.

Evaluation of Demographic Risks to the DPS

    The majority opinion of the BRT was that there is very low risk to 
the abundance of the Georgia Basin DPS, concluding that it is unlikely 
that the current trends and levels of abundance contribute 
significantly to the risk of extinction for the DPS, either by 
themselves or in combination with other factors. The BRT noted that the 
overall abundance of the DPS is at historically high levels since 
monitoring began in the 1930s, in terms of the estimated biomass (the 
recent abundance is well over 100,000 metric tons) and numbers of 
herring (estimated at more than half a billion mature herring). 
However, the BRT was concerned about the observed decline in the number 
of the Cherry Point herring spawners from an estimated 24 million fish 
in 2003 to 14 million fish in 2004.
    The majority opinion of the BRT was that there is low risk to the 
productivity of the DPS, concluding that it is unlikely to contribute 
significantly to the risk of extinction for the DPS by itself, but that 
there may be concern in combination with other factors. The BRT noted 
that the DPS as a whole is highly productive with the overall 
population trend and growth rate being highly positive. The BRT 
observed that the overall DPS appeared to be in steep decline in the 
1960s. However, some stocks have exhibited high levels of productivity 
conferring resiliency to the DPS and reflecting an apparent ability to 
rebound from past declines. The recent short-term trend for the overall 
DPS is also very positive and recruitment levels remain high, despite 
an apparent increase in adult mortality, possibly due to predation by 
seals, disease factors, and other risk factors.
    The BRT's appraisal of risk to the spatial structure of the DPS 
ranged from very low risk to increasing risk. The majority opinion of 
the BRT was that the DPS faces low risk to its spatial structure, 
concluding that it is unlikely that spatial distribution and 
connectivity contribute significantly to the risk of extinction by 
themselves, and that there is some concern that they may in combination 
with other factors. The BRT noted that the DPS remains well 
distributed, with no gaps in the geographic range of spawning within 
the DPS. All, or nearly all, of the historically occupied areas 
continue to support spawning, and moderate migration rates based on 
tagging information indicate little loss of connectivity among stocks 
within the DPS. The BRT noted that increasing trends in the DPS are not 
uniformly distributed among stocks or spawning areas, with the Central 
and Northeastern portions of the DPS exhibiting declines. The BRT was 
concerned that the bulk of the spawning distribution and abundance and 
productivity in the DPS has become spatially compacted, particularly in 
the northern half of the DPS. However, the BRT felt that declining 
trends in some parts of the DPS are not a major concern in the context 
of a herring metapopulation, particularly in light of observations of 
high connectivity among stocks, and evidence of disappearance and 
subsequent recolonization events in the

[[Page 33121]]

British Columbia portion of the DPS. The BRT also felt that the spatial 
compaction of the most abundant and productive spawning stocks may be a 
natural phenomenon.
    The majority opinion of the BRT was that there is low risk to the 
diversity of the DPS, concluding that it is unlikely that diversity 
contributes significantly to the risk of extinction for the DPS, but 
that it may in combination with other factors. The BRT noted that the 
DPS continues to exhibit diversity in spawn timing and migratory 
behavior both within and among spawning stocks. Although there is 
limited long-term data regarding the genetic diversity of the DPS, the 
BRT concluded that there has been no apparent genetic loss as compared 
to other marine species. The BRT noted concern that the life-history 
diversity of the DPS has apparently declined with the compression of 
population age structure (a much smaller proportion of older age 
classes), the decline of late-spawning herring (principally the Cherry 
Point herring stock), and an apparent decline in nonmigratory inlet 
herring stocks on the eastern side of the Strait of Georgia. The BRT 
was uncertain whether the migratory/nonmigratory life-history types are 
specific to certain populations, or are present to some degree in most 
or all spawning stocks in the Strait of Georgia and Puget Sound.

Assessment of the Risk of Extinction

    Informed by its assessment of demographic risks to the DPS, and a 
consideration of the interactions among demographic risks, the BRT 
concluded that the Georgia Basin DPS of Pacific herring is not at risk 
of extinction in all or a significant portion of its range, nor likely 
to become so in the foreseeable future. The BRT noted that the overall 
abundance of the DPS is at historically high levels, and that the 
linear extent of coastline used for spawning has been increasing. The 
BRT concluded that the available information suggests that spawning 
stocks in the Georgia Basin DPS operate as a ``mixed structure'' 
metapopulation (Harrison and Taylor, 1997) in which all subpopulations 
are connected by migration, but some are relatively discrete with 
weaker demographic linkages to other subpopulations in the DPS. It is 
expected in a viable metapopulation that some local subpopulations will 
be in decline, other subpopulations will be increasing, and some 
suitable habitat patches may be unoccupied. Accordingly, the 
observation that some local stocks are declining (principally the 
Cherry Point stock, and the nonmigratory inlet stocks in the eastern 
Strait of Georgia) is not by itself cause for concern about the long-
term viability of the DPS. Additionally, given the metapopulation 
structure of the DPS, the BRT did not feel that the low demographic 
risks (described in the previous section) collectively represent a risk 
to the long-term viability of the DPS. The few declining stocks 
represent a small proportion of the more than 40 stocks and assessment 
areas that compose the Georgia Basin DPS. Evidence of significant 
migration among stocks, high levels of gene flow, and disappearance and 
subsequent recolonization events for Georgia Basin Pacific herring 
suggest that local extirpations or stock declines confer little risk to 
the overall DPS. The specific stocks exhibiting decline, however, 
appear to exhibit greater demographic independence on generational time 
scales relative to other stocks within the DPS. It is possible, given 
their weaker connectivity with other spawning stocks in the DPS, that 
if these declining stocks were lost, recolonization might take longer 
than it might for a classical metapopulation in which subpopulations 
are connected by higher rates of exchange. Nonetheless, the BRT did not 
feel that the current risks to these declining stocks posed risks to 
the DPS as a whole, or to any significant portion of the DPS.
    The BRT considered whether recent factors have disrupted the 
function of the metapopulation such that its long-term viability is 
compromised. The BRT concluded that the patterns of abundance and 
distribution within the Georgia Basin DPS appear to be typical of what 
is seen in other herring metapopulations throughout northwestern North 
America, including metapopulations in relatively pristine areas in 
southeastern Alaska and British Columbia. The BRT noted, however, that 
if habitat areas were lost or permanently degraded to the point that 
they lacked the potential to support a spawning subpopulation, this 
could seriously impair the function of the entire metapopulation. The 
BRT concluded that the declining Cherry Point and eastern Strait of 
Georgia inlet stocks do not appear to be limited by habitat factors. 
The BRT concluded that the available evidence does not suggest unusual 
levels of risk to the DPS as a whole, nor to any significant portion of 
the DPS.

Consideration of ``Significant Portion of its Range''

    The ESA defines endangered and threatened species in terms of the 
level of extinction risk ``throughout all or a significant portion of 
its range'' (sections 3(6) and 3(20)). If it is determined that the 
defined species is not in danger of extinction or likely to become so 
throughout all of its range, but there are major geographic areas where 
the species is no longer viable, the statute directs that we must 
address whether such areas represent a significant portion of the 
species' range. As mentioned above, the BRT expressed concern regarding 
declines in the Cherry Point stock and the non-migratory inlet stocks 
in the eastern Strait of Georgia, but concluded that these stocks do 
not represent a significant portion of the Georgia Basin DPS's range. 
The BRT recognized that the Cherry Point stock is characterized by late 
spawn timing, but noted that this timing represents the tail of the 
distribution of run timing for the DPS as a whole and overlaps with the 
range of spawn timing exhibited by other stocks in the DPS. The BRT 
noted that the Cherry Point stock represents only one of about 40 
recognized herring stocks and management areas within the DPS. Although 
at peak abundance (in the early 1970s) the Cherry Point stock possibly 
represented about 11 percent of the DPS's total biomass, other 
historically large stocks were severely depressed at the time due to 
over-harvesting and poor recruitment conditions. Thus, it is 
speculative to conclude that the Cherry Point stock historically 
represented a substantial portion of the ESU's biomass. With respect to 
the declining inlet stocks in the eastern Strait of Georgia, the BRT 
concluded that it is unclear whether their nonmigratory life history 
represents a biologically significant portion of the DPS. Pentilla 
(1986) suggested that some proportion of adult herring in Puget Sound 
are nonmigratory as well. The BRT observed that it is unclear whether 
the nonmigratory life-history type is specific to certain stocks or is 
present to some degree in all herring stocks. Based on the above 
information, the BRT concluded that the declining Cherry Point and 
eastern Strait of Georgia inlet herring stocks individually and 
collectively do not represent a significant portion of the Georgia 
Basin DPS's range.

Efforts Being Made to Protect the Species

    Section 4(b)(1)(A) of the ESA requires the Secretary to make 
listing determinations solely on the basis of the best scientific and 
commercial data available after taking into account efforts being made 
to protect a species (emphasis added). Therefore, in making listing 
determinations we first assess the

[[Page 33122]]

defined species' level of extinction risk, and identify factors that 
have led to its decline. If it is determined that the species' survival 
is at risk, we then assess existing efforts being made to protect the 
species to determine if those measures ameliorate the risks faced by 
the species. As described above, the BRT concluded that the defined 
species' (the Georgia Basin DPS of Pacific herring) survival is not at 
risk. It is not necessary to assess whether protective efforts reduce 
risks to a DPS that has been determined to be viable.

Listing Determination

    Informed by NMFS' findings that: (1) the spawning stocks of Pacific 
herring in the Georgia Basin (including the marine waters of Puget 
Sound, the Strait of Georgia, and eastern Juan de Fuca Strait in the 
United States and Canada) constitute a DPS; and (2) the DPS is not in 
danger of extinction or likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range, we 
conclude that the Georgia Basin DPS of Pacific herring does not warrant 
listing as threatened or endangered under the ESA.

References

    Copies of the BRT's Status Review Update report, the petition, and 
related materials are available on the Internet at http://www.nwr.noaa.gov, or upon request (see ADDRESSES section above).

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

    Dated: June 1, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 05-11210 Filed 6-6-05; 8:45 am]
BILLING CODE 3510-22-S