[Federal Register Volume 71, Number 3 (Thursday, January 5, 2006)]
[Rules and Regulations]
[Pages 834-862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-47]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 223 and 224



Endangered and Threatened Species: Final Listing Determinations for 10 
Distinct Population Segments of West Coast Steelhead; Final Rule

  Federal Register / Vol. 71, No. 3 / Thursday, January 5, 2006 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 051216341-5341-01; I.D. No. 052104F]
RIN 0648-AR93


Endangered and Threatened Species: Final Listing Determinations 
for 10 Distinct Population Segments of West Coast Steelhead

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

ACTION: Final rule.

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SUMMARY: We, NOAA's National Marine Fisheries Service (NMFS), are 
issuing final determinations to list 10 Distinct Population Segments 
(DPSs) of West Coast steelhead (Oncorhynchus mykiss) under the 
Endangered Species Act (ESA) of 1973, as amended. We are listing one 
steelhead DPS in California as endangered (the Southern California 
steelhead DPS), and nine steelhead DPSs in California, Oregon, 
Washington, and Idaho as threatened (the South-Central California 
Coast, Central California Coast, California Central Valley, Northern 
California, Lower Columbia River, Upper Willamette River, Middle 
Columbia River, Upper Columbia River, and Snake River Basin steelhead 
DPSs). All 10 of these DPSs were previously listed as threatened or 
endangered species. The Upper Columbia River steelhead DPS, formerly 
listed as an endangered species, is now being listed as threatened.

DATES: The effective date of this rule is February 6, 2006.

ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, 
Suite 1100, Portland, Oregon 97232.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region, 
at (562) 980-4021, Dr. Scott Rumsey, NMFS, Northwest Region, Protected 
Resources Division, at (503) 872-2791, and Marta Nammack, NMFS, Office 
of Protected Resources, at (301) 713-1401. Reference materials 
regarding these determinations are available upon request or on the 
Internet at http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

Policies for Delineating Species under the ESA

    Section 3 of the ESA defines ``species'' as including ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature.'' The term ``distinct population segment'' is not 
recognized in the scientific literature. In 1991 we issued a policy for 
delineating distinct population segments of Pacific salmon (56 FR 
58612; November 20, 1991). Under this policy a group of Pacific salmon 
populations is considered an ``evolutionarily significant unit'' (ESU) 
if it is substantially reproductively isolated from other conspecific 
populations, and it represents an important component in the 
evolutionary legacy of the biological species. Further, an ESU is 
considered to be a ``distinct population segment'' (and thus a 
``species'') under the ESA. In 1996, we and FWS adopted a joint policy 
for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722; February 7, 
1996). The DPS Policy adopts criteria similar to, but somewhat 
different from, those in the ESU Policy for determining when a group of 
vertebrates constitutes a DPS: The group must be discrete from other 
populations, and it must be significant to its taxon. A group of 
organisms is discrete if it is ``markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, and behavioral factors.'' Significance is 
measured with respect to the taxon (species or subspecies) as opposed 
to the full species. Although the ESU Policy did not by its terms apply 
to steelhead, the DPS Policy states that NMFS will continue to 
implement the ESU Policy with respect to ``Pacific salmonids'' (which 
include O. mykiss). FWS, however, does not use our ESU policy in any of 
its ESA listing decisions. In a previous instance of shared 
jurisdiction over a species (Atlantic salmon), we and FWS used the DPS 
policy in our determination to list the Gulf of Maine DPS of Atlantic 
salmon as endangered (65 FR 69459; November 17, 2000). Given our shared 
jurisdiction over O. mykiss, and consistent with our approach for 
Atlantic salmon, we believe application of the joint DPS policy here is 
logical, reasonable, and appropriate for identifying DPSs of O. mykiss. 
Moreover, use of the ESU policy--originally intended for Pacific 
salmon--should not continue to be extended to O. mykiss, a type of 
salmonid with characteristics not typically exhibited by Pacific 
salmon. NMFS and FWS also intend to continue to evaluate application of 
the statutory term ``distinct population segment'' in a process outside 
the context of a species-specific listing.

Previous Federal ESA Actions Related to West Coast Steelhead

    In 1996, we completed a comprehensive status review of West Coast 
steelhead (Busby et al., 1996) that resulted in proposed listing 
determinations for 10 steelhead ESUs, five as endangered and five as 
threatened species (61 FR 41541; August 9, 1996). On August 18, 1997, 
we listed five of the ESUs, two as endangered (the Southern California 
and Upper Columbia River steelhead ESUs) and three as threatened (the 
South-Central California Coast, Central California Coast, and Snake 
River Basin steelhead ESUs) (62 FR 43937). On March 19, 1998, we listed 
the California Central Valley and Lower Columbia River steelhead ESUs 
as threatened. On March 25, 1999, we listed as threatened the Upper 
Willamette River and Middle Columbia River steelhead ESUs (64 FR 
14517). We listed the Northern California steelhead ESU as threatened 
on June 7, 2000 (65 FR 36074). As a result of these listing 
determinations, there are currently 10 listed steelhead ESUs, two 
endangered (Southern California and Upper Columbia River) and eight 
threatened (South-Central California, Central California Coast, 
California Central Valley, Northern California, Upper Willamette River, 
Lower Columbia River, Middle Columbia River, and Snake River Basin).
    In our August 18, 1997, steelhead listing determinations, we noted 
uncertainties about the relationship of resident and anadromous O. 
mykiss, yet concluded that the two forms are part of a single ESU where 
the resident and anadromous O. mykiss have the opportunity to 
interbreed (62 FR 43937, at 43941). FWS, the agency with ESA 
jurisdiction over resident O. mykiss, disagreed that resident fish 
should be included in the steelhead ESUs and advised that the resident 
fish not be listed (FWS, 1997; and 62 FR 43937, at 43941). Accordingly, 
we listed only the anadromous O. mykiss (steelhead) at that time (62 FR 
43937, at 43951). That decision was followed in each of the subsequent 
steelhead listings described in the preceding paragraph.
    In 2001, the U.S. District Court in Eugene, Oregon, set aside the 
1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley 
Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) (Alsea). In the 
Oregon Coast coho listing (63 FR 42587; August 10, 1998), we did not 
include 10 hatchery stocks determined to be part of the Oregon Coast 
coho ESU. The court upheld our

[[Page 835]]

policy of considering an ESU to be a DPS, but ruled that once we had 
delineated a DPS, the ESA did not allow listing only a subset of that 
DPS. In response to the Alsea decision and several listing and 
delisting petitions, we announced we would conduct an updated status 
review of 27 West Coast salmonid ESUs, including the 10 listed 
steelhead ESUs (67 FR 6215, February 11, 2002; 67 FR 48601, July 25, 
2002; 67 FR 79898, December 31, 2002).
    On June 14, 2004, we proposed to continue applying our ESU Policy 
to the delineation of DPSs of O. mykiss, and to list the 10 O. mykiss 
ESUs including the resident fish that co-occur with the anadromous form 
(69 FR 33102). We proposed to list one ESU in California as endangered 
(Southern California), and nine ESUs in California, Oregon, Washington, 
and Idaho as threatened (South-Central California, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, Snake River Basin, 
and Upper Columbia). In the proposed rule, we noted that the Alsea 
decision required listing of an entire DPS (ESU), in contrast to our 
prior steelhead-only listings, and stated the scientific principles and 
working assumptions that we used to determine whether particular 
resident groups were part of an O. mykiss ESU that included anadromous 
steelhead (69 FR 33102, at 33113). We proposed that where resident 
(rainbow trout) and anadromous (steelhead) O. mykiss occur in the same 
stream, they are not ``substantially reproductively isolated'' from one 
another and are therefore part of the same ESU.
    Following an initial public comment period of 90 days, we twice 
extended the public comment period for an additional 36 and 22 days (69 
FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004), 
respectively. During the comment period, we received numerous comments 
disagreeing with our proposal to include resident populations in the O. 
mykiss ESUs (in general and for specific resident populations) and 
criticizing how we considered resident O. mykiss in evaluating the risk 
to the continued existence of the whole ESU.
    On June 7, 2005, FWS wrote to NMFS (FWS, 2005), stating its 
concerns about the factual and legal bases for our proposed listing 
determinations for 10 O. mykiss ESUs, specifying issues of substantial 
disagreement regarding the relationship between anadromous and resident 
O. mykiss. On June 28, 2005, we published a notice in the Federal 
Register announcing a 6-month extension of the final listing 
determinations for the subject O. mykiss ESUs to resolve the 
substantial disagreement regarding the sufficiency or accuracy of the 
available data relevant to the determinations (70 FR 37219). As a 
result of the comments received, we re-opened the comment period on 
November 4, 2005, to receive comments on a proposed alternative 
approach to delineating ``species'' of West Coast O. mykiss (70 FR 
67130). We proposed to depart from our past practice of applying the 
ESU Policy to O. mykiss stocks, and instead proposed to apply the DPS 
Policy in determining ``species'' of O. mykiss for listing 
consideration. We noted that within a discrete group of O. mykiss 
populations, the resident and anadromous life forms of O. mykiss remain 
``markedly separated'' as a consequence of physical, physiological, 
ecological, and behavioral factors, and may therefore warrant 
delineation as separate DPSs. We solicited comment on whether our final 
listing determinations should delineate 10 steelhead-only DPSs, list 
one DPS in California as endangered (Southern California), and list the 
remaining nine DPSs in California, Oregon, Washington, and Idaho as 
threatened (South-Central California, Central California Coast, 
California Central Valley, Northern California, Upper Willamette River, 
Lower Columbia River, Middle Columbia River, Snake River Basin, and 
Upper Columbia). The public comment period on this proposed alternative 
approach closed on December 5, 2005.

Statutory Framework for ESA Listing Determinations

    The ESA defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as one that is likely to become endangered in the 
foreseeable future throughout all or a significant portion of its range 
(sections 3(6) and 3(20), respectively). The statute requires us to 
determine whether any species is endangered or threatened because of 
any of the following five factors: the present or threatened 
destruction, modification or curtailment of its habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; the inadequacy of existing 
regulatory mechanisms; or other natural or manmade factors affecting 
its continued existence (Section 4(a)(1)(A)-(E)). We are to make this 
determination based solely on the best available scientific information 
after conducting a review of the status of the species and taking into 
account any efforts being made by states or foreign governments to 
protect the species. The focus of our evaluation of the five statutory 
factors is to evaluate whether and to what extent a given factor 
represents a threat to the future survival of the species. The focus of 
our consideration of protective efforts is to evaluate whether and to 
what extent they address the identified threats and so ameliorate a 
species' risk of extinction. In making our listing determination, we 
must consider all factors that may affect the future viability of the 
species, including whether regulatory and conservation programs are 
inadequate and allow threats to the species to persist or worsen, or 
whether these programs are likely to mitigate threats to the species 
and reduce its extinction risk. The steps we follow in implementing 
this statutory scheme are to: (1) Delineate the species under 
consideration; (2) review the status of the species; (3) identify 
threats facing the species; (4) assess whether certain protective 
efforts mitigate these threats; and (5) predict the species' future 
persistence.
    As noted above, as part of our listing determinations we must 
consider efforts being made to protect a species, and whether these 
efforts ameliorate the threats facing the species and reduce risks to 
its survival. Some protective efforts may be fully implemented, and 
empirical information may be available demonstrating their level of 
effectiveness in conserving the species. Other protective efforts are 
new, not yet implemented, or have not demonstrated effectiveness. We 
evaluate such unproven efforts using the criteria outlined in the 
Policy for Evaluating Conservation Efforts (``PECE'' 68 FR 15100; March 
28, 2003) to determine their certainties of implementation and 
effectiveness.

Summary of Comments Received

    We solicited public comment on the proposed listing determinations 
for West Coast O. mykiss for a total of 238 days (69 FR 33102, June 14, 
2004; 69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004; 70 
FR 6840, February 9, 2005; 70 FR 37219, June 28, 2005; 70 FR 67130, 
November 4, 2005). In addition, we held eight public hearings in the 
Pacific Northwest, and six public hearings in California concerning the 
June 2004 West Coast salmon and steelhead proposed listing 
determinations (69 FR 53031, August 31, 2004; 69 FR 54647, September 9, 
2004; 69 FR 61348, October 18, 2004). We solicited public comment again 
for 30 days on our proposed alternative approach to delineating DPSs of 
O.

[[Page 836]]

mykiss (70 FR 67130; November 4, 2005).
    A joint NMFS/FWS policy requires us to solicit independent expert 
review from at least three qualified specialists, concurrent with the 
public comment period (59 FR 34270; July 1, 1994). We solicited 
technical review of the scientific information underlying the June 2004 
proposed listing determinations, including the proposed determinations 
for West Coast O. mykiss, from over 50 independent experts selected 
from the academic and scientific community, Native American tribal 
groups, Federal and state agencies, and the private sector.
    In December 2004 the Office of Management and Budget (OMB) issued a 
Final Information Quality Bulletin for Peer Review (Peer Review 
Bulletin) establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
OMB Peer Review Bulletin, implemented under the Information Quality Act 
(Public Law 106-554), is intended to ensure the quality of agency 
information, analyses, and regulatory activities and provide for a more 
transparent peer review process. We consider the scientific information 
used by the agency in developing the subject listing determinations for 
West Coast steelhead to be ``influential scientific information'' in 
the context of the OMB Peer Review Bulletin.
    We believe the independent expert review under the joint NMFS/FWS 
peer review policy, and the comments received from several academic 
societies and expert advisory panels, collectively satisfy the Peer 
Review Bulletin's requirements for ``adequate [prior] peer review.'' We 
solicited technical review of the proposed hatchery listing policy and 
salmon and steelhead listing determinations from over 50 independent 
experts selected from the academic and scientific community, Native 
American tribal groups, Federal and state agencies, and the private 
sector. The individuals from whom we solicited review of the proposals 
and the underlying science were selected because of their demonstrated 
expertise in a variety of disciplines including: artificial 
propagation; salmonid biology, taxonomy, and ecology; genetic and 
molecular techniques and analyses; population demography; quantitative 
methods of assessing extinction risk; fisheries management; local and 
regional habitat conditions and processes; and conducting scientific 
analyses in support of ESA listing determinations. The individuals 
solicited represent a broad spectrum of perspectives and expertise and 
include those who have been critical of past agency actions in 
implementing the ESA for West Coast salmon and steelhead, as well as 
those who have been supportive of these actions. These individuals were 
not involved in producing the scientific information for our 
determinations and were not employed by the agency producing the 
documents. In addition to these solicited reviews, several independent 
scientific panels and academic societies provided technical review of 
the hatchery listing policy and proposed listing determinations, and 
the supporting documentation. Many of the members of these panels were 
individuals from whom we had solicited review. We thoroughly 
considered, and, as appropriate, incorporated the review comments into 
these final listing determinations.
    In response to the requests for information and comments on the 
June 2004 proposed listing determinations, we received over 28,250 
comments by fax, standard mail, and e-mail. The majority of the 
comments received were from interested individuals who submitted form 
letters or form e-mails and addressed general issues not specific to a 
particular ESU. Comments were also submitted by state and tribal 
natural resource agencies, fishing groups, environmental organizations, 
home builder associations, academic and professional societies, expert 
advisory panels, farming groups, irrigation groups, and individuals 
with expertise in Pacific salmonids. The majority of respondents 
focused on the consideration of hatchery-origin fish in ESA listing 
determinations, with only a few comments specifically addressing the O. 
mykiss ESUs under review. We also received comments from four of the 
independent experts from whom we had requested technical review of the 
scientific information underlying the June 2004 proposed listing 
determinations. The peer reviewers' comments did not specifically 
address the proposed determinations for the 10 O. mykiss ESUs. We 
received 14 comments in response to the 6-month extension of the final 
listing determinations for the 10 O. mykiss ESUs. The comments 
reflected a diversity of opinion and generally focused on whether 
resident populations should be included as part of O. mykiss ESUs, and 
the consideration of resident O. mykiss in assessing the extinction 
risk of ESUs including both resident and anadromous populations. We 
received 15 comments concerning our November 2005 proposed alternative 
approach to delineate and list 10 steelhead-only DPSs of West Coast O. 
mykiss. The majority of the comments were opposed to the proposed 
alternative approach, though others were supportive. Copies of the full 
text of comments received are available upon request (see ADDRESSES and 
FOR FURTHER INFORMATION CONTACT, above).
    Below we address the comments received that directly pertain to the 
listing determinations for West Coast O. mykiss. The reader is referred 
to our June 2005 final hatchery listing policy (70 FR 37204; June 28, 
2005) for a summary and discussion of general issues concerning: the 
inclusion and listing of hatchery programs as part of salmon and 
steelhead ESUs; and the consideration of artificial propagation in 
evaluating the extinction risk of salmon and steelhead ESUs. The reader 
is referred to our June 2005 final listing determinations for 16 salmon 
ESUs (70 FR 37160; June 28, 2005) for a summary and discussion of 
general issues related to: the interpretation and application of the 
hatchery listing policy in our review of the species' status under 
review; the consideration of efforts being made to protect the species; 
and amended protective regulations for threatened salmonids. The 
following summary of issues raised and our responses are organized into 
six general categories: (1) General comments on the consideration of 
resident O. mykiss in the determination of ``species;'' (2) general 
comments on the consideration of resident O. mykiss in assessing 
extinction risk; (3) comments regarding a specific ESU or DPS on the 
determination of species; (4) comments regarding a specific ESU or DPS 
on the assessment of extinction risk; (5) comments on the consideration 
of protective efforts; and (6) comments regarding public notice and 
opportunities for comment.

General Comments on the Consideration of Resident O. mykiss: 
Determination of Species

    Comment 1: Several commenters felt that we lack sufficient site-
specific information to justify our June 2004 proposed inclusion of 
resident rainbow trout as part of O. mykiss ESUs. These commenters felt 
that our proposal inappropriately extrapolated a few observations 
universally to all circumstances where resident and anadromous O. 
mykiss have overlapping distributions. Other commenters felt that 
rainbow trout and steelhead should be considered separate ESUs for 
biological reasons (differences in behavior, morphology, and ecology); 
or for policy or legal reasons (such as implementing the purposes of 
the ESA).

[[Page 837]]

    Response: Those commenters who noted the lack of site-specific 
information are correct--we relied on information about the 
reproductive exchange of some specific co-occurring rainbow trout and 
steelhead to conclude generally that where the two life forms co-occur, 
they are sufficiently reproductively related to satisfy our ESU policy. 
We continue to conclude that the best available scientific information 
suggests that co-occurring steelhead and rainbow trout are part of the 
same ESU, as we defined that concept in our ESU policy. Some of the 
concerns raised by these commenters have persuaded us to alter our 
approach to delineating DPSs of O. mykiss, and rely on the DPS policy 
rather than the ESU policy. Because we have decided to alter our 
approach, we do not address these comments in further detail.
    Comment 2: Several commenters felt we failed to provide a rationale 
for departing from our long-standing practice of applying the ESU 
policy. The commenters felt that the choice to use the DPS policy 
appeared to be based on an arbitrary jurisdictional division between 
NMFS and FWS, rather than new scientific information supporting an 
alternative approach. The commenters felt that it is not appropriate to 
base species delineations on arbitrary divisions between government 
agencies and the apparent desire to preserve jurisdictional 
authorities. These commenters stressed that such determinations must be 
made based on the best available scientific information.
    Other commenters supported the use of the DPS policy in delineating 
species of O. mykiss. They felt that consistency between NMFS and FWS 
would improve the public understanding of the listing process. They 
also felt that the DPS policy provides flexibility, affording a more 
practical consideration of resident populations, particularly above 
impassable dams, that do not warrant ESA protections.
    Response: In our previous status reviews for West Coast O. mykiss 
we applied our ESU policy and concluded that, where they co-occur and 
have the opportunity to interbreed, the resident and anadromous life-
history forms are part of a single ESU. FWS disagreed that resident O. 
mykiss should be included in the steelhead ESUs and recommended that 
only the anadromous fish be listed (FWS, 1997). Accordingly, we listed 
only the steelhead portion of the ESUs. The Alsea ruling informed us 
that this approach to implementing our jurisdiction over O. mykiss was 
invalid; once we have equated an ESU with a DPS, delineated an ESU, and 
determined that it warrants listing, we must include all components of 
the DPS (ESU) in the listing. In our June 2004 proposed listing 
determinations (69 FR 33102; June 14, 2004), we proposed to continue 
applying our ESU policy in delineating species of O. mykiss for listing 
consideration, consistent with our previous practice. Informed by the 
Alsea ruling, we proposed to list entire O. mykiss ESUs, including both 
the anadromous and resident components. FWS disagreed with our DPS 
delineations under the ESU policy, and questioned whether the proposed 
delineations are consistent with the DPS policy (FWS, 2005).
    The preamble to the joint DPS policy acknowledged that ``the NMFS 
[ESU] policy is a detailed extension of this joint policy. 
Consequently, NMFS will continue to exercise its policy with respect to 
Pacific salmonids'' (61 FR 4722; February 7, 1996). FWS, however, does 
not use our ESU policy in any of its ESA listing decisions. In a 
previous instance of shared jurisdiction over a species (Atlantic 
salmon), we and FWS used the DPS policy in our determination to list 
the Gulf of Maine DPS of Atlantic salmon as endangered (65 FR 69459; 
November 17, 2000). Given our shared jurisdiction over O. mykiss, and 
consistent with our approach for Atlantic salmon, we believe 
application of the joint DPS policy here is logical, reasonable, and 
appropriate for identifying DPSs of O. mykiss. Moreover, use of the ESU 
policy--originally intended for Pacific salmon--should not continue to 
be extended to O. mykiss, a type of salmonid with characteristics not 
typically exhibited by Pacific salmon.
    Comment 3: Two commenters argued that we are required to rely on 
the taxonomic distinctions established by the scientific community in 
making our species delineations. Commenters quoted NMFS' ESA 
implementing regulations stating that we ``shall rely on standard 
taxonomic distinctions and the biological expertise of the Department 
and the scientific community regarding the relevant taxonomic group'' 
(50 CFR 424.11(a)). The commenters noted that it is well established in 
the scientific literature that the resident and anadromous life forms 
of O. mykiss are members of the same taxonomic species, and where they 
co-occur they are genetically indistinguishable and represent a life-
history polymorphism within a single interbreeding population. Several 
commenters also noted that a group of independent scientific experts 
(Hey et al., 2005) recently empaneled by NMFS concluded: ``For * * * 
populations in which anadromous and resident fish appear to be 
exchanging genes and in which some parents produce progeny exhibiting 
both life history paths, the two life-history alternatives appear as a 
form of polymorphism. In these cases there is little justification for 
putting the resident and anadromous life-history types into different 
conservation units.''
    Response: The fact that anadromous steelhead and resident rainbow 
trout are both part of the biological species taxonomists recognize as 
O. mykiss does not end the inquiry. The statute clearly contemplates 
listing subunits of species, by defining species to include 
``subspecies * * * and any distinct population segment of any species * 
* *'' The ESA does not define the term ``distinct population segment,'' 
but it is clearly a subset of a taxonomic species. Nor does the ESA 
refer to conservation units. While we agree with the Hey et al. panel's 
conclusion that co-occurring resident and anadromous O. mykiss are part 
of a larger conservation unit (which we would consider an ESU), that 
also is not the end of the inquiry. The joint DPS policy takes a 
somewhat different approach from the ESU policy to identifying 
conservation units, which may result, in some cases, in the 
identification of different conservation units. There are also other 
potential approaches to delineating a DPS for purposes of the ESA (see 
Waples, 2005, in press). For reasons described in response to Comment 
2, we are applying the DPS policy (see also the response to Comment 4 
for additional discussion).
    Comment 4: Some commenters felt that applying the DPS policy to O. 
mykiss should lead to the same result as the ESU policy, with the co-
occurring rainbow trout and steelhead being considered part of the same 
DPS. The commenters felt that our application of the DPS policy 
overemphasizes inconsistent and qualitative phenotypic characteristics, 
and ignores scientific information regarding reproductive exchange and 
genetic similarity. These commenters cited several empirical studies 
documenting that resident and anadromous O. mykiss are similar 
genetically when they co-occur with no physical barriers to migration 
or interbreeding, and that individuals can occasionally produce progeny 
of the alternate life-history form. The commenters felt that the DPS 
policy clearly contemplates considering reproductive isolation as part 
of evaluating discreteness. The commenters noted that the DPS policy 
states as part of the discreteness criterion that quantitative measures 
of

[[Page 838]]

genetic discontinuity may provide evidence of discreteness.
    The commenters also stressed that the ESA's definition of 
``species'' focuses solely on reproductive exchange. (section 3(16) of 
the ESA defines the term species as including any ``distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature''; emphasis added). The commenters argued that the 
additional considerations provided in the DPS policy (including marked 
separation as a consequence of physical, physiological, ecological, and 
behavioral factors) are supplemental to the primary consideration of 
reproductive isolation required under the ESA.
    Response: The ESA requirement that a group of organisms must 
interbreed when mature to qualify as a DPS is a necessary but not 
exclusive condition. Under the definition, although all organisms that 
belong to a DPS must interbreed when mature (at least on some time 
scale), not all organisms that share some reproductive exchange with 
members of the DPS must be included in the DPS. The DPS policy outlines 
other relevant considerations for determining whether a particular 
group should be delineated as a DPS (i.e., ``marked separation'' as a 
consequence of physical, physiological, ecological or behavioral 
factors).
    Although the DPS and ESU policies are consistent, they will not 
necessarily result in the same delineation of DPSs under the ESA. The 
statutory term ``distinct population segment'' is not used in the 
scientific literature and does not have a commonly understood meaning. 
NMFS' ESU policy and the joint DPS policy apply somewhat different 
criteria, with the result that their application may lead to different 
outcomes in some cases. The ESU policy relies on ``substantial 
reproductive isolation'' to delineate a group of organisms, and 
emphasizes the consideration of genetic and other relevant information 
in evaluating the level of reproductive exchange among potential ESU 
components. The DPS policy does not rely on reproductive isolation to 
determine ``discreteness,'' but on the marked separation of population 
groups as a consequence of biological factors.
    Despite the apparent reproductive exchange between resident and 
anadromous O. mykiss, the two life forms remain markedly separated 
physically, physiologically, ecologically, and behaviorally. Steelhead 
differ from resident rainbow trout physically in adult size and 
fecundity, physiologically by undergoing smoltification, ecologically 
in their preferred prey and principal predators, and behaviorally in 
their migratory strategy. Where the two life forms co-occur, adult 
steelhead typically range in size from 40-72 cm in length and 2-5 kg 
body mass, while adult rainbow trout typically range in size from 25-46 
cm in length and 0.5-2 kg body mass (Shapovalov and Taft, 1954; Wydoski 
and Whitney, 1979; Jones, 1984). Steelhead females produce 
approximately 2,500 to 10,000 eggs, and rainbow trout fecundity ranges 
from 700 to 4,000 eggs per female (Shapovalov and Taft, 1954; Buckley, 
1967; Moyle, 1976; McGregor, 1986; Pauley et al., 1986), with steelhead 
eggs being approximately twice the diameter of rainbow trout eggs or 
larger (Scott and Crossman, 1973; Wang, 1986; Tyler et al., 1996). 
Steelhead undergo a complex physiological change that enables them to 
make the transition from freshwater to saltwater (smoltification), 
while rainbow trout reside in freshwater throughout their entire life 
cycle. While juvenile and adult steelhead prey on euphausiid 
crustaceans, squid, herring, and other small fishes available in the 
marine environment, the diet of adult rainbow trout is primarily 
aquatic and terrestrial insects and their larvae, mollusks, amphipod 
crustaceans, fish eggs, and minnows (LeBrasseur, 1966; Scott and 
Crossman, 1973; Wydoski and Whitney, 1979). These differences in diet 
are a function of migratory behavior and the prey communities available 
to resident and anadromous O. mykiss in their respective environments. 
Finally, steelhead migrate several to hundreds of miles from their 
natal streams to the ocean, and spend up to 3 years in the ocean 
migrating thousands of miles before returning to freshwater to spawn 
(Busby et al., 1996). Some fluvial populations of rainbow trout may 
exhibit seasonal migrations of tens of kilometers outside of their 
natal watersheds, but rainbow trout generally remain associated with 
their natal drainages (Meka et al., 1999). Given the marked separation 
between the anadromous and resident life-history forms in physical, 
physiological, ecological, and behavioral factors, we conclude that the 
anadromous steelhead populations are discrete from the resident rainbow 
trout populations within the ranges of the DPSs under consideration.
    Comment 5: Several commenters were critical of the evidence we 
provided that co-occurring resident and anadromous O. mykiss are 
markedly separate (``discrete''). Commenters felt that we exaggerated 
and oversimplified the differences between anadromous and resident O. 
mykiss, and that much of the evidence presented in support of their 
``marked separation'' is not illustrative of traits unique to a given 
life-history form. The commenters felt that the majority of the 
phenotypic differences cited are inconsistent, overlap considerably 
between the two life forms, and are predominantly caused by 
environmental factors.
    Several commenters were critical of the physical factors we cited 
as evidence of marked separation between the two life forms. The 
commenters documented overlap in the size and fecundity ranges of 
resident and anadromous O. mykiss in the same watersheds, and concluded 
that our assertion that steelhead are generally larger and more fecund 
than rainbow trout does not hold true. The commenters felt that fish 
size and fecundity are largely a function of food supply, rather than 
being a trait inherent to anadromy. The commenters cited examples 
where, provided sufficient food resources, rainbow trout achieve 
similar sizes and fecundity as steelhead.
    Commenters were critical of the ecological factors we cited. The 
commenters felt that it is inappropriate to distinguish between the two 
forms on the basis of diet, as it is a function of prey availability in 
different environments rather than reflecting intrinsic differences in 
prey preference. They noted that when steelhead and rainbow trout are 
in the same freshwater environment, individuals of similar size and 
life-history stage have similar prey preferences.
    Commenters were critical of the behavioral factors we cited. The 
commenters argued that the two life forms are not ``markedly 
separated'' in terms of migratory behavior. The commenters cited 
several scientific studies documenting migratory behavior in non-
anadromous O. mykiss including: movement within a river system 
(potadromy); movement from lakes into rivers for spawning (limnodromy); 
and movement to the estuary/lagoon for growth and maturation (partial 
anadromy). Although commenters generally acknowledge that only the 
anadromous form migrates to the open ocean, they contended that this 
does not represent a truly discrete difference. The commenters 
described the life history of the O. mykiss species as a continuum of 
migratory behaviors, with anadromous and resident fish representing 
points on this continuum.
    Commenters were also critical of the physiological factors we 
cited. Commenters argued that resident and

[[Page 839]]

anadromous fish are not discrete physiologically throughout the 
majority of their life cycle, and smoltification is not entirely unique 
to anadromy. Commenters noted that some resident individuals may 
exhibit anadromy later in their life cycle, and other non-anadromous 
fish exhibit partial anadromy by migrating into estuaries for growth 
and maturation. Commenters also noted that some resident fish are 
capable of exhibiting anadromy later in their life cycle, as well as 
producing anadromous progeny that undergo smoltification.
    Response: The fact that there is an overlap between co-occurring 
steelhead and rainbow trout in the physical, ecological, behavioral and 
physiological factors does not prevent them from satisfying the 
discreteness criterion under the DPS policy. While the commenters are 
correct that O. mykiss display a continuum of traits in these 
categories, at the end of that continuum steelhead are markedly 
separate in their extreme marine migration (leading to, or resulting 
from, marked separation in the other factors). As we stated in adopting 
the DPS policy, ``the standard adopted [for discreteness] does not 
require absolute separation of a DPS from other members of its species, 
because this can rarely be demonstrated in nature for any population of 
organisms. * * * [T]he standard adopted allows for some limited 
interchange among population segments considered to be discrete, so 
that loss of an interstitial population could well have consequences 
for gene flow and demographic stability of a species as a whole'' (61 
FR 4722, at 4724; February 7, 1996).
    Similarly, the ESU policy does not require absolute reproductive 
isolation, only sufficient isolation to allow evolutionarily important 
differences to accumulate (56 FR 58612, at 58618; November 20, 1991). 
In delineating ESUs, we have recognized that straying leads to some 
reproductive exchange among ESUs (particularly among populations at the 
geographic margins between ESUs), that biological entities do not 
divide along clear lines, and that professional judgment is required in 
drawing a line at the geographic edge of an ESU. Even among well-
recognized taxonomic groupings, such as subspecies, there may be 
overlapping characteristics, and some reproductive exchange.
    In developing the DPS policy we answered concerns that discreteness 
was an inappropriate criterion for delineating DPSs: ``With regard to 
the discreteness standard, the Services believe that logic demands a 
distinct population recognized under the Act be circumscribed in some 
way that distinguishes it from other representatives of its species. 
The standard established for discreteness is simply an attempt to allow 
an entity given DPS status under the Act to be adequately defined and 
described'' (61 FR 4721, at 4724; February 7, 1996). In the case of 
steelhead, there is a group of organisms that can be clearly 
distinguished by a variety of characteristics, particularly its marine 
migration.
    With respect to the comment that resident and anadromous O. mykiss 
are genetically indistinguishable, we explained in adopting the DPS 
policy why we did not adopt genetic distinctness as the test of 
discreteness: ``The Services understand the Act to support interrelated 
goals of conserving genetic resources and maintaining natural systems 
and biodiversity over a representative portion of their historic 
occurrence. The draft policy was intended to recognize both these 
intentions, but without focusing on either to the exclusion of the 
other. Thus, evidence of genetic distinctness or of the presence of 
genetically determined traits may be important in recognizing some 
DPS's, but the draft policy was not intended to always specifically 
require this kind of evidence in order for a DPS to be recognized'' (61 
FR 4721, at 4723; February 7, 1996).
    Comment 6: Several commenters noted that in the June 2004 proposed 
listing determinations, resident populations included in O. mykiss ESUs 
were determined to have minor contributions to the viability of the 
ESUs. (In the proposed listing determinations we concluded that, 
despite the reduced risk to abundance for certain O. mykiss ESUs due to 
speculatively abundant rainbow trout populations, the collective 
contribution of the resident life-history form to the viability of an 
ESU as a whole is unknown and may not substantially reduce an ESU's 
risk of extinction (NMFS, 2004a; 69 FR 33102, June 14, 2004)). The 
commenters questioned why resident O. mykiss populations should be 
included in an ESU given that they have little, if any, contribution to 
the viability of the ESU.
    Response: Although we have concluded that resident O. mykiss should 
not be included as part of the delineated steelhead DPSs (see response 
to Comment 4), we disagree with the commenters' basic argument that DPS 
delineations should depend upon the extent to which a potential 
component population contributes to the viability of the DPS. A 
population's contribution to DPS viability meets neither the 
reproductive isolation test of the ESU policy, nor the marked 
separation test of the DPS policy. Using such a test would lead to 
illogical results given the metapopulation structure of salmon and 
steelhead, where some components of an ESU or a DPS will (on average) 
contribute more to its viability, while other components will 
contribute less. The persistence of components with comparatively 
weaker contributions to viability may even depend upon their 
connectivity with other more productive components of the delineated 
species. These weaker components may nevertheless contribute in other 
important ways such as by increasing spatial distribution and reducing 
risks due to catastrophic events, or by exhibiting important traits to 
diversity of the species and conserving its ability to adapt to future 
environmental conditions.
    Comment 7: One commenter asserted that we cannot apply the ESU 
policy in determining that resident and anadromous populations of O. 
mykiss are part of the same ESU, because NMFS does not have the legal 
jurisdiction under the ESA to list resident O. mykiss populations. The 
commenter noted that pursuant to the 1974 Memorandum of Understanding 
(MOU) regarding ESA jurisdictional responsibilities between FWS and 
NMFS, FWS has exercised ESA jurisdiction over resident O. mykiss, while 
NMFS has exercised jurisdiction over the anadromous life form.
    Response: The commenter correctly highlights the issue of shared 
NMFS-FWS jurisdiction for O. mykiss ESUs including both resident and 
anadromous populations. In its 1997 letter responding to NMFS' proposal 
to include rainbow trout in O. mykiss ESUs, FWS objected to the NMFS' 
proposal and concluded rainbow trout and steelhead should not be 
considered part of the same DPS. In its June 7, 2005, letter 
recommending that the final listing determinations for the 10 O. mykiss 
ESUs under review be extended, FWS requested that we ensure that our 
delineation of O. mykiss ESUs complies with the DPS Policy. We agree, 
in this case, that it is appropriate that we depart from our past 
practice of applying the ESU Policy to O. mykiss stocks, and instead 
apply the joint DPS Policy in determining ``species'' where we share 
jurisdiction with FWS. This is consistent with our application of the 
DPS policy to delineate species of Atlantic salmon (Salmo salar) (65 FR 
69459; November 17, 2000).
    Comment 8: Commenters felt that our proposed approach was 
inconsistent

[[Page 840]]

with previous NMFS and FWS DPS determinations for non-salmonid fish 
species, which focused on migration rates between populations, evidence 
of reproductive exchange, and genetic differences (e.g., NMFS-FWS Gulf 
of Maine DPS for Atlantic salmon, 65 FR 69459, November 17, 2000; NMFS' 
recent DPS determination for the Cherry Point stock of Pacific Herring, 
70 FR 33116, June 7, 2005). The Department of Interior (DOI) similarly 
expressed concern that the proposed approach may be inconsistent with 
its previous applications of the DPS policy for fish species under its 
jurisdiction (e.g., bull trout, Salvelinus confluentus, and coastal 
cutthroat trout O. clarki clarki). DOI offered a comparison with its 
1999 listing determination for the Coastal-Puget Sound bull trout DPS 
(50 FR 58910) in which the resident, migratory, anadromous, 
amphidromous, fluvial, and adfluvial life-history forms, despite 
exhibiting distinct life-history strategies, were not found to be 
discrete because they interbreed. DOI noted that NMFS' previous 
determinations concluded that the two life forms interbreed, and where 
they co-occur are genetically more similar than they are to the same 
life form in another basin. DOI and other commenters felt that 
regardless of any ``marked separation'' in phenotypic traits, the 
documented reproductive exchange and genetic similarity between 
anadromous and resident fish requires that they be included as parts of 
the same DPS.
    Response: The reference to our DPS determination for the Cherry 
Point stock of Pacific herring is inapposite, as we found that stock 
was discrete, but not significant. None of the commenters suggested 
that steelhead are insignificant to the O. mykiss species. 
Additionally, we disagree with the commenters that our finding 
regarding the discreteness criterion was based on evidence of 
reproductive exchange and genetic similarity rather than marked 
separation in biological factors. We determined that the Cherry Point 
herring stock was discrete despite evidence of migration and 
reproductive exchange with other herring stocks. We 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 (70 FR 33116; June 7, 
2005).
    With respect to the Atlantic salmon, bull trout, and coastal 
cutthroat trout determinations, we acknowledge that their expression of 
a range of life histories may raise some of the same issues we 
confronted in delineating an anadromous-only DPS of O. mkyiss. We 
conclude, however, that there are important differences between O. 
mykiss and these species that warrant different treatment. In addition 
to expressing anadromy (the life-history pattern in which fish spend a 
large portion of their life cycle in the ocean and return to freshwater 
to breed), bull trout and coastal cutthroat trout express amphidromy 
(migration between fresh and salt water that is for feeding and 
overwintering, as well as breeding). While the anadromous and resident 
forms of O. mykiss differ clearly in ocean-migratory behavior and 
associated biological factors (see response to Comment 4), ocean-going 
migratory behavior and associated physical, physiological, and 
ecological factors are comparatively more variable among the life-
history forms and life stages of bull trout and coastal cutthroat trout 
given their expression of amphidromy.
    Comment 9: One commenter questioned whether the alternative 
approach of delineating and listing steelhead-only DPSs was 
permissible, given that the Alsea ruling held that the ESA does not 
allow listing a subset of a DPS. The commenter observed that in the 
past we had equated an ESU with the statutory ``distinct population 
segment,'' and we included resident and anadromous O. mykiss within the 
same ESU. The commenter argued that our past practice of applying the 
ESU policy had established what constitutes a DPS of O. mykiss, and 
that our proposal to not include resident populations in the listings 
for steelhead-only DPSs would violate the ESA.
    Response: The commenter is correct that in our past listing 
determinations we made the policy choice to equate an ESU with the 
statutory term ``distinct population segment.'' The commenter is not 
correct, however, in asserting that an ESU (as that concept may be 
understood by conservation biologists) must necessarily be equated with 
the statutory term ``distinct population segment.'' We conclude that in 
the case of O. mykiss, an ESU may contain more than one DPS, because 
the different life history components display marked separation 
sufficient to justify delineating them separately for protection under 
the ESA.
    While both the ESU and DPS policies represent permissible 
interpretations of the statutory term, we have decided that the best 
approach for O. mykiss is to apply the joint DPS policy (see the 
response to Comment 2). We have concluded that the proposed steelhead-
only DPSs meet the criteria defined under our joint DPS policy (as 
outlined in the response to Comment 4) and are consistent with the ESA.
    Comment 10: Two commenters were critical of our consideration of 
hatchery stocks in delineating steelhead DPSs. The commenters 
questioned whether our review of hatchery programs under the ESU policy 
(NMFS, 2003, 2004b, 2004c) directly informs considerations of 
``discreteness'' and ``significance'' under the DPS policy. The 
commenters felt that we failed to explain how including hatchery stocks 
as part of the delineated species comports with our proposed 
application of the DPS policy. The commenters felt that under the 
proposed approach of determining discreteness based on marked 
separation in phenotypic traits, it seems reasonable that hatchery 
stocks would be considered discrete regardless of the life history and 
genetic similarities documented in our hatchery reviews.
    Response: We disagree with the suggestion that application of the 
DPS rather than the ESU policy should lead to the universal conclusion 
that hatchery fish are not part of the same DPS as naturally spawning 
fish. We recognize that hatchery stocks, under some circumstances, may 
exhibit differences in physical, behavioral, and ecological traits; 
however, conservation hatchery stocks under certain circumstances may 
exhibit few appreciable differences from the local natural 
population(s). We think it is inappropriate to make universal 
conclusions about all hatchery stocks, but think their ``discreteness'' 
relative to local natural populations needs to be evaluated on a case-
by-case basis.
    In the Final Species Determinations section below, we discuss more 
fully how our June 2004 proposed ESU delineations inform our DPS 
delineations, in terms of geographic boundaries and in terms of which 
hatchery populations are part of the DPS. We acknowledge that our 
review of hatchery programs (NMFS, 2003, 2004b, 2004c) was conducted in 
the context of the ESU policy; however, we disagree that our findings 
and the information we evaluated do not inform our considerations of 
discreteness under the DPS policy. In evaluating the ``reproductive 
isolation'' of individual

[[Page 841]]

hatchery stocks in the context of the ESU policy, we lacked program-
specific genetic data. As reasonable indicators of reproductive 
isolation and genetic similarity we relied on information including 
hatchery broodstock origin, hatchery management practices (e.g., the 
timing and location of release), and hatchery stock life-history 
characteristics (e.g., spawn timing, the size and age at maturity) 
relative to the local natural populations. We conclude that this 
information directly informs evaluations of marked separation as a 
consequence of physical, physiological, ecological, or behavioral 
factors.
    Comment 11: Several commenters were critical of the proposed DPS 
delineations, asserting that they fail to provide a clearly 
distinguishable species delineation for the purposes of effectively and 
efficiently enforcing the ESA. The commenters were concerned that 
steelhead-only DPSs would generate confusion and have undesirable 
regulatory implications. Commenters noted that it is difficult if not 
impossible to distinguish between the two life forms throughout much of 
their life cycle when they co-occur. The commenters cited our June 2004 
proposed rule in which we state that ``no suite of morphological or 
genetic characteristics has been found that consistently distinguishes 
between the two life-history forms'' (69 FR 33102, at 33113; June 14, 
2004). Given the difficulty in distinguishing the two forms, commenters 
felt that we would either treat all juvenile resident O. mykiss as if 
they are listed, or we would deny needed protections for listed 
steelhead during the critical early life-history stages when they are 
indistinguishable from resident fish. Commenters felt that it will be 
impossible for us to quantify take of listed steelhead versus non-
listed rainbow trout, and questioned how we could analyze the impact of 
actions on listed steelhead without considering the potential 
production of steelhead progeny by resident fish. Some commenters felt 
that the lack of a clearly enforceable standard further argues that 
resident and anadromous O. mykiss are not ``markedly separated.''
    Response: As we acknowledged in our steelhead listings prior to the 
Alsea ruling, juvenile steelhead can be difficult to distinguish from 
resident rainbow trout. This does not dictate, however, that they 
should be included in the same DPS. The ESA authorizes prohibiting the 
take of an unlisted species if its appearance closely resembles that of 
a listed species (Section 4(e)). This is the tool that the ESA provides 
to deal with such situations where an unlisted species is difficult to 
distinguish from a listed one. In lieu of ``similarity of appearance'' 
protective regulations concerning resident trout that co-occur with 
listed steelhead stocks, the commenter is correct that we have presumed 
that all juvenile O. mykiss in streams where listed steelhead occur are 
listed juvenile steelhead. In a decade of implementing steelhead-only 
listings, we have confronted this issue successfully, working closely 
with state managers of rainbow trout fisheries to ensure their 
management of rainbow trout does not jeopardize steelhead. Continuing a 
listing of steelhead-only DPSs should not change that successful 
regulatory landscape.

Comments Regarding a Specific ESU or DPS: Determination of Species

Northern California and Central California Coast Steelhead
    Comment 12: Several commenters expressed support for the proposed 
clarification of the Northern California and Central California Coast 
steelhead DPS boundaries. We received no comments opposed to the 
proposed changes.
    Response: We have included these DPS boundary clarifications in the 
final species determinations (see Final Species Determinations section, 
below).
    Comment 13: Several commenters disagreed with our proposal to 
include above-barrier resident O. mykiss populations from upper Alameda 
Creek in the Central California Coast O. mykiss ESU. Other commenters 
felt that resident O. mykiss populations in the Livermore-Amador Valley 
also should not be included in the ESU. The commenters were critical of 
the genetic data and analysis upon which we based our proposal, and 
felt that genetic similarity alone was insufficient to support the 
inclusion of these above-dam resident populations in the ESU.
    Response: Under our final approach of delineating steelhead-only 
DPSs of O. mykiss, the resident populations, including those in Upper 
Alameda Creek and the Livermore-Amador Valley, are not considered part 
of the listed DPSs.
California Central Valley Steelhead
    Comment 14: The California Department of Fish and Game (CDFG) 
disagreed with the defined spatial structure of the Central Valley O. 
mykiss ESU. It argued that the ESU should be split into two parts: one 
part north of the Sacramento-San Joaquin River Delta, and a second part 
that includes the Delta and the San Joaquin Basin. CDFG based its 
alternative ESU structure in large part on habitat conditions in the 
Delta, which it contends serve to reproductively isolate fish from the 
Sacramento and San Joaquin basins.
    Comments submitted during the 6-month extension by the California-
Nevada Chapter of the American Fisheries Society (AFS) disagreed with 
CDFG's recommended species determination. AFS scientists argued that 
the purported physical barrier to reproduction between the two basins 
(low dissolved oxygen levels in the lower San Joaquin River) is 
indicative of the severely degraded habitat conditions in the San 
Joaquin river system, but represents an ephemeral distributional 
barrier and not a substantial reproductive barrier. AFS scientists 
cited a recent genetic study that found no genetic differentiation 
between populations in the two basins, and concluded that there is no 
scientific basis for recognizing a distinction between the two river 
systems.
    Response: We disagree with CDFG and believe we have correctly 
defined the spatial extent of the California Central Valley steelhead 
DPS. Previous genetic analyses indicate that Central Valley steelhead 
are distinct from coastal populations (see Busby et al., 1996). More 
recent genetic data (Nielsen et al., 2003) suggest that significant 
genetic population structure remains for steelhead populations in the 
Central Valley, but that very little of the genetic variation can be 
attributed to differences between populations in the Sacramento and San 
Joaquin river drainages. Ecologically, the Central Valley is 
substantially different from ecoregions inhabited by coastal O. mykiss 
populations, and ecological conditions in the Central Valley are 
generally similar between the Sacramento and San Joaquin river basins. 
Low dissolved oxygen conditions in the Stockton Deep Water Ship Channel 
and along other reaches of the lower San Joaquin River are problematic, 
and may serve to limit anadromous fish migration under certain 
conditions and times. However, we do not believe this ephemeral barrier 
results in reproductive isolation between populations of O. mykiss in 
the Sacramento and San Joaquin river basins, as evidenced by the 
available genetic information. In our view, the available genetic and 
ecological information indicates that steelhead populations in the 
Sacramento and San Joaquin river basins are not discrete and 
collectively are significant to the O. mykiss species, and therefore 
constitute a single DPS.

[[Page 842]]

Snake River Basin Steelhead
    Comment 15: Several commenters in Idaho disagreed with including 
the population of rainbow trout above Dworshak Dam on the North Fork 
Clearwater River (Idaho) in the Snake River Basin O. mykiss ESU. The 
commenters felt that resident O. mykiss above Dworshak Dam likely 
represent a composite of past hatchery stocking programs, hybridization 
with cutthroat trout, and native O. mykiss, and as such there is 
insufficient information to justify including the entire population of 
resident O. mykiss above Dworshak Dam in the Snake River Basin O. 
mykiss ESU.
    Response: As noted in the response to Comment 13, resident 
populations, including above Dworshak Dam, are not part of the listed 
DPS.

General Comments on the Consideration of Resident O. mykiss: Assessment 
of Extinction Risk

    Comment 16: Several commenters noted that we did not address the 
ESU membership of, or consider the potential risks and benefits to the 
viability of an ESU from, rainbow trout hatchery programs in the 
proposed listing determinations for O. mykiss ESUs. The commenters 
asserted that the vast majority of rainbow trout hatchery programs 
propagate domesticated, non-native, and in some instances genetically 
modified rainbow trout. The commenters felt that in some O. mykiss 
ESUs, such as the Snake River Basin and Upper Columbia River O. mykiss 
ESUs, the negative impacts of hatchery rainbow trout on native O. 
mykiss populations may be profound.
    Response: We agree with the commenters that resident trout hatchery 
programs were not inventoried and assessed as part of the proposed 
listing determinations. In response, we conducted an inventory and 
assessment of hatchery programs that release rainbow trout in areas 
where steelhead or co-occurring native rainbow trout might be affected 
(NMFS, 2004b, 2005a). We have found that few hatchery rainbow trout 
stocks are released in the spawning and rearing areas for the O. mykiss 
ESUs under review. State and tribal managers have adopted wild salmonid 
policies that have largely eliminated releases of hatchery-produced 
rainbow trout in waters important to wild steelhead. Since the ESA 
listings of steelhead in 1997-2000, the vast majority of hatchery 
rainbow trout releases to support recreational fisheries are restricted 
to isolated ponds and lakes. Of the hatchery rainbow trout that are 
released, none are stocks that would be considered part of the O. 
mykiss ESUs reviewed. In the few instances where domesticated or 
genetically modified rainbow trout stocks are released into anadromous 
waters to support recreational fisheries, they likely do not have 
substantial adverse impacts on the local O. mykiss populations. The 
released stocks exhibit poor survival, are subject to high harvest 
rates in the recreational fisheries, and exhibit spawn timing isolating 
them reproductively from the local natural populations. In some 
instances, sterile ``triploid'' rainbow trout are released into 
anadromous waters, thereby eliminating the possibility for reproductive 
or genetic exchange with wild fish.
    Comment 17: Some commenters contended that the District Court in 
Alsea ruled that once an ESU is defined, risk determinations should not 
discriminate among its components. The commenters described the risk of 
extinction as the chance that there will be no living representative of 
the species, and that such a consideration must not be biased toward a 
specific behavioral or life-history component. A few commenters felt 
that populations of rainbow trout have persisted in isolation over long 
periods of time, demonstrating that resident representatives of an O. 
mykiss ESU would persist in the foreseeable future, even if the 
anadromous life-history form was extirpated.
    Response: We disagree that the Alsea ruling requires a particular 
approach to assessing extinction risk. The court ruled that if it is 
determined that a DPS warrants listing, all members of the defined 
species must be included in the listing. The court did not rule on how 
the agency should determine whether the species is in danger of 
extinction or likely to become so in the foreseeable future. Because we 
are listing steelhead-only DPSs, we do not address the contention that 
rainbow trout might continue to survive in isolation even if the 
anadromous life history were extirpated.
    Comment 18: Several commenters disagreed with our conclusion that 
the Biological Review Team's (BRT's) extinction risk assessments 
directly inform risk evaluations for steelhead-only DPSs, and 
recommended that the BRT re-evaluate the extinction risk of the 
steelhead DPSs without considering resident O. mykiss. The commenters 
noted that some of the population data evaluated by the BRT included 
both life forms, particularly for the Southern California, South-
Central California Coast, and Central California Coast ESUs. One 
commenter noted that for several ESUs the BRT concluded that the 
presence of speculatively abundant resident populations buffered the 
risk of extinction somewhat. The commenter felt that the BRT's 
extinction risk assessments likely underestimate the risk for a 
steelhead-only DPS, and that some of the proposed threatened 
determinations for O. mykiss ESUs may warrant revision as endangered 
for the delineated steelhead-only DPSs.
    Response: As explained more fully in the response to Comment 19, 
the risk of extinction faced by the steelhead component of O. mykiss 
may be affected by the health and potential contributions of the 
resident component. We conclude that the BRT's risk assessments 
directly inform our determinations for steelhead-only DPSs for all 
ESUs, including the California ESUs cited by the commenters.
    Comment 19: Several commenters felt that the extinction risk 
assessments for steelhead-only DPSs must consider the resident form. 
The commenters felt that the available scientific information 
demonstrates that the two life-history forms have inseparable 
demographic risks given that they interbreed and produce progeny of the 
alternate life form. Commenters asserted that the viability of 
steelhead populations in the foreseeable future depends on the 
continued presence of the resident form to buffer against periods of 
unfavorable ocean conditions and ephemeral blockages to fish passage. 
Commenters cited a recent report (Independent Science Advisory Board 
(ISAB), 2005-2) which concluded that ``the presence of both resident 
and anadromous life-history forms is critical for conserving the 
diversity of steelhead/rainbow trout populations.'' The commenters 
concluded that both life-history forms are essential to the individual 
and collective viability of resident and anadromous populations.
    A few commenters contended that the presence of abundant co-
occurring rainbow trout confers resilience to steelhead DPSs such that 
listing may not be warranted. These commenters felt that the ability of 
the resident life-history form to produce anadromous offspring makes it 
likely that the anadromous life-history form would be reestablished if 
extirpated. These commenters cited the recent report of NMFS' Recovery 
Science Review Panel (RSRP, 2004) which discussed the preliminary 
results of a study indicating that 17 percent of anadromous adults had 
resident mothers, as well as other studies indicating that isolated 
resident populations produce anadromous progeny that successfully smolt 
and

[[Page 843]]

return to spawn (e.g., Thrower et al., 2004).
    The majority of commenters expressed skepticism that resident 
populations can maintain or re-establish declining or extirpated 
steelhead populations. These commenters cited recent expert advisory 
panel reports concluding that although the resident form is an 
important life-history strategy in some circumstances, the likelihood 
of long-term persistence is substantially compromised by the loss of 
anadromy. The commenters concluded that the best available information 
demonstrates precipitous declines and high levels of extinction risk 
for West Coast steelhead populations. One commenter cited a study 
(Nehlsen et al., 1991) identifying 23 steelhead populations that have 
been extirpated and 75 steelhead populations that are at risk of 
extirpation. The commenter concluded that these observations contradict 
assertions that co-occurring rainbow trout can sustain or reestablish 
anadromous populations and ensure the viability over the long term.
    Response: Because we have delineated steelhead-only DPSs, we do not 
directly address contentions about persistence of an entire O. mykiss 
ESU. We acknowledge, however, that in the context of steelhead-only DPS 
delineations, these comments correctly point out that we must consider 
whether and to what extent the presence of co-occurring rainbow trout 
affects the extinction risk of the steelhead DPSs under consideration. 
We conclude that available information for most of the O. mykiss under 
review does not support a conclusion that the resident populations are 
abundant. Even for those few ESUs that may have relatively abundant co-
occurring rainbow trout, we conclude that while the resident form may 
mitigate somewhat the risks to the co-occurring steelhead, they do not 
change our conclusion about the risk of extinction of the DPSs under 
consideration. We base this conclusion on the work of the BRT and on 
information provided by peer reviewers and commenters during the 
comment period. The bulk of this information and analysis specifically 
addressed the question of the viability of the larger ESU, but the 
analysis was largely focused on the steelhead-only component. That 
analysis directly informs our conclusions about the effect of co-
occurring rainbow trout on the extinction risk of the steelhead DPSs.
    The best available scientific information does not demonstrate that 
an extirpated anadromous population can be re-established by a resident 
population. There is only one published report of anadromy developing 
from a resident population (Pascual et al., 2001), and it is unclear 
whether this putative founding population was composed purely of 
resident genotypes (Behnke, 2002; Pascual et al., 2002; Rossi et al., 
2004). Evolutionary theory and empirical evidence suggest that the 
ability of residents to contribute to anadromy quickly diminishes if 
the fitness of their anadromous progeny is low (NMFS, 2004a; Thrower et 
al., 2004a, 2004b; RSRP, 2005). NMFS'' RSRP concluded that in cases 
where an anadromous run is extinct or not self-sustaining, there is no 
scientific justification for the claim that the long-term viability of 
an O. mykiss ESU or steelhead DPS could be maintained by the resident 
life-history form alone, or that a viable anadromous population could 
feasibly be reestablished from a pure resident population (RSRP, 2004). 
Moreover, for most of the O. mykiss under review, the available 
information does not suggest that the resident form is abundant (NMFS, 
2004a).
    For a variety of reasons the BRT concluded that the collective 
contribution of the resident life-history form to the persistence of a 
larger O. mykiss ESU is unknown and may not substantially reduce the 
overall extinction risks to the ESU in-total (NMFS, 2003b; 2004a). The 
two O. mykiss life-histories represent an adaptive ``bet-hedging'' 
strategy for sustaining reproductive potential despite high variability 
in physical and ecological conditions. Although the resident form can 
enable the larger O. mykiss ESU to endure short-term physical, 
environmental, and ecological barriers to anadromous migration, there 
is no evidence that resident fish can perform this function over the 
long term if the anadromous form is extirpated. It is also unclear to 
what extent resident populations depend on infusions from anadromous 
fish for their long-term persistence. The BRT's conclusion is supported 
by recent reports by the ISAB and NMFS' RSRP which recently concluded 
that anadromous O. mykiss contribute ``substantially and irreplaceably 
to any measure of O. mykiss productivity and viability'' (RSRP, 2004), 
and that ``the presence of both resident and anadromous life-history 
forms is critical for conserving the diversity of steelhead/rainbow 
trout populations and, therefore, the overall viability of ESUs'' 
(ISAB, 2005-2). The RSRP and ISAB underscored that ``resident 
populations by themselves should not be relied upon to maintain long-
term viability of an [O. mykiss] ESU'' (RSRP, 2004), and that the 
``likelihood of long-term persistence would be substantially 
compromised by the loss of anadromy in O. mykiss ESUs'' (ISAB, 2005-2).
    Comment 20: Some commenters noted that physical, ecological, 
environmental, and habitat conditions have been greatly modified by 
human activities over the past 100 years and contended that due to 
these changes, areas that historically supported anadromous O. mykiss 
populations currently favor populations of rainbow trout. These 
commenters felt that observed declines in anadromous O. mykiss 
populations reflect an adaptive shift in the relative proportion of the 
resident and anadromous life-history forms. The commenters argued that 
rainbow trout populations have expanded to successfully occupy the 
niche vacated by anadromous populations, and that O. mykiss ESUs do not 
warrant ESA listing due to this demonstrated adaptive resiliency of the 
species.
    Response: As noted in the response to Comment 19, contentions about 
persistence of an entire O. mykiss ESU are not directly relevant given 
that we have delineated steelhead-only DPSs. However, the presence of 
co-occurring rainbow trout is relevant to the extent that the resident 
life-form affects the extinction risk of the steelhead DPSs under 
consideration. The commenters do not provide data in support of their 
contention that the reduced abundance of steelhead represents an 
adaptive shift by the species to altered environmental conditions. An 
increase in the proportion of resident fish in certain O. mykiss 
populations could be the result of an adaptive life-history shift in 
response to changing environmental conditions (as suggested by the 
commenters), or the apparent increase in the prevalence of rainbow 
trout could simply be the result of declines in the abundance, 
productivity, and distribution of the anadromous form without a 
compensatory response in resident populations. The data necessary to 
evaluate the current status and trends of resident populations are 
generally lacking, and even more so are the historical data necessary 
to evaluate trends in the relative abundance and distribution of the 
two life-history forms. Even if an adaptive shift has occurred, as 
suggested by the commenters, there is insufficient information to 
support the contention that O. mykiss populations dependent upon the 
productivity of the resident life-history form are viable over the long 
term (see response to Comment 19, above). Regardless, many of the 
factors that have caused declines in

[[Page 844]]

anadromous O. mykiss populations (such as the loss/degradation of 
riparian habitat, degradation of water quality, loss/degradation of in-
stream habitat structure and complexity, etc.) likely have had 
similarly adverse effects on co-occurring resident populations. As 
noted above in the response to Comment 19, the loss of the anadromous 
life-history form may increase the extinction risk of an O. mykiss ESU 
due to increased risks from catastrophic events, decreased reproductive 
potential, diminished spatial distribution, diminished connectivity 
among discrete habitat patches, and decreased diversity in adaptive 
traits.

Comments Regarding a Specific ESU or DPS: Assessment of Extinction Risk

California Central Valley Steelhead
    Comment 21: In addition to disagreeing with the defined spatial 
structure of the Central Valley O. mykiss ESU, CDFG opposed our 
proposal to maintain ESA protections for this ESU. CDFG provided new 
information on the abundance of resident and hatchery O. mykiss in the 
Central Valley and argued that because of the combined high abundance, 
high productivity, broad spatial distribution, and genetic diversity of 
these populations that O. mykiss in the Sacramento River Basin do not 
warrant listing. CDFG conceded that O. mykiss in the Sacramento-San 
Joaquin Delta and San Joaquin River basin may warrant listing as 
threatened.
    In comments submitted during the 6-month extension, a few 
commenters agreed with CDFG's conclusion that Central Valley steelhead 
populations are not at risk due to the presence of abundant rainbow 
trout populations and the stability of environmental conditions. These 
commenters acknowledged that conditions are much altered from 
historical conditions by the imposition of dams and changes in flow 
regime, but concluded that the existing environment selects for the 
resident life form and supports robust rainbow trout populations.
    Other commenters argued that historical habitat loss and 
degradation remains to be addressed, and water management in the 
Sacramento-San Joaquin river systems poses significant threats to 
Central Valley O. mykiss, inclusive of both anadromous and resident 
populations. These commenters criticized CDFG's abundance estimates 
for: inappropriately extrapolating from areas above impassable dams not 
considered to be part of the ESU; inaccurately assuming a uniform 
distribution of fish within these systems by extrapolating from average 
density estimates; including an unquantifiable number of hatchery 
produced smolts in their analyses; and combining abundance estimates 
for different life-history stages. The commenters felt that CDFG's 
comments ignored that historical spawning and rearing habitats have 
been reduced in the Sacramento and San Joaquin river systems by more 
than 82 percent, and that CDFG appeared to downplay the loss of the San 
Joaquin basin as an historically important center of distribution.
    Response: Under our adopted approach of delineating steelhead-only 
DPSs, CDFG's comments regarding resident O. mykiss populations do not 
affect our risk conclusion for the Central Valley steelhead DPS. 
Regardless, we disagree with CDFG's assertion that the presence of 
resident populations in the Sacramento River Basin substantially reduce 
risks to Central Valley O. mykiss populations. We acknowledge that 
resident forms of O. mykiss are widely distributed and possibly 
abundant in the Central Valley, particularly in the Sacramento River 
Basin and that the presence of these resident populations likely 
reduces risks to population abundance. However, the BRT described 
considerable uncertainty regarding whether and to what extent the 
resident form contributes to the productivity, spatial structure and 
diversity of O. mykiss metapopulations. As discussed in the response to 
Comment 19 it is unclear how long an O. mykiss population can persist 
if dependent entirely or mostly upon the productivity of resident fish 
in a dynamic freshwater environment, even if the resident forms are 
abundant. The BRT's concerns regarding the status of Central Valley 
steelhead are not based solely on the apparent continued decline in 
abundance, but also on evidence indicating the proportion of naturally 
produced fish is declining, the loss of the vast majority of historical 
spawning areas above impassable dams, continued impediments to fish 
passage, and the severe degradation of water quality and quantity 
conditions. Although altered habitat conditions may favor the resident 
life-history form in some areas, it is unclear whether such populations 
are sustainable over the long term (see response to Comment 19, above).
Middle Columbia River Steelhead
    Comment 22: One commenter submitted an alternative viability 
analysis for Middle Columbia River steelhead that concludes that 
extinction risks are low for the wild populations throughout the Middle 
Columbia River (Cramer et al., 2003). The report emphasizes the recent 
increases in abundance in 2001-2002, and asserts that all streams in 
the DPS share similar patterns of steelhead production, that hatchery-
origin steelhead represent a small fraction of natural spawners and do 
not pose a threat to the DPS's productivity, and that rainbow trout and 
steelhead interbreed and produce progeny of the alternate life-history 
form.
    Response: The information presented in Cramer et al. (2003) 
includes information from Cramer et al. (2002) that was provided to 
NMFS on April 1, 2002, as part of public comments received in response 
to our initial solicitation of information to support the status review 
updates (67 FR 6215; February 11, 2002). Cramer et al. (2002) focused 
on the status and trends of steelhead in the Yakima River subbasin, and 
Cramer et al. (2003) represents a subsequent submission that includes 
information for other major subbasins in the DPS. The information 
presented in Cramer et al. (2002) was evaluated by the BRT and 
considered in developing the proposed listing determination for the 
ESU. The supplemental material provided in Cramer et al. (2003) does 
not provide substantive additional data to what was available to and 
considered by the BRT. The BRT's assessments of extinction risk were 
based on long-term trends. A recent short-term increase in returns does 
not alleviate concerns regarding the long-term performance of the DPS, 
nor would it address concerns regarding the spatial distribution, 
connectivity, and diversity of populations within the DPS.
    The conclusions made in the latter report are not inconsistent with 
the findings of the BRT. The report emphasizes recent increases in 
abundance and productivity, but, as noted above, the BRT concluded that 
there is insufficient certainty that the environmental conditions 
underlying recent encouraging trends will continue. The report also 
emphasizes the contributions of abundant and well distributed rainbow 
trout populations in the ESU in mitigating risks to the anadromous 
life-history form. As discussed in the response to Comment 19 (above), 
the BRT concluded that, despite the reduced risk to abundance for 
certain O. mykiss ESUs due to speculatively abundant resident fish, the 
collective contribution of the resident life-history form to the 
persistence of an O. mykiss ESU is unknown and may not substantially 
reduce the overall extinction risk to the ESU (NMFS, 2003b, 2004).

[[Page 845]]

Upper Columbia River Steelhead
    Comment 23: Several commenters opposed our proposal to change the 
listing status of the Upper Columbia River steelhead from endangered to 
threatened. The commenters noted that the majority opinion of the BRT 
(NMFS, 2003b) was that the ESU is ``in danger of extinction.'' The 
commenters disagreed with the finding of the Artificial Propagation 
Evaluation Workshop (NMFS, 2004c) (APEW) that the six hatchery programs 
in the ESU collectively mitigate the immediacy of extinction risk such 
that the ESU should be listed as threatened rather than endangered.
    Response: The slight majority opinion of the BRT was that the ESU 
is ``in danger of extinction,'' although the substantial minority 
opinion was that the ESU is ``likely to become endangered in the 
foreseeable future.'' In evaluating the risks and benefits of the six 
hatchery programs included in the ESU, we concluded that these programs 
have: (1) A high certainty of implementation due to long-term 
agreements reached by Federal, state, tribal and local entities to 
ensure funding; and (2) a high certainty of effectiveness because they 
adhere to best professional practices, include extensive monitoring and 
evaluation efforts, and minimize the potential risks of artificial 
propagation. These programs have increased the number of natural 
spawners and thereby have increased the spatial distribution of 
spawning areas being used, although as yet the programs provide 
uncertain benefits to the abundance and productivity of the naturally 
spawned populations in the DPS. The careful design and implementation 
of these programs have been effective at conserving the diversity of 
the populations within the DPS. For these reasons we conclude that the 
hatchery programs in this ESU collectively mitigate the immediacy of 
extinction risk for Upper Columbia River steelhead in the short term 
(NMFS, 2004c).

Comments on the Consideration of Protective Efforts

California Central Valley Steelhead
    Comment 24: Several commenters opposed our proposal to list 
steelhead in the California Central Valley as threatened. The 
commenters agreed with the BRT's majority opinion (NMFS, 2003b) and the 
conclusion of the APEW (NMFS, 2004c) after considering the benefits of 
hatchery programs, that the steelhead in the Central Valley are ``in 
danger of extinction.'' They disagreed that the habitat restoration 
efforts associated with the CALFED and the Central Valley Project 
Improvement Act (CVPIA) provide sufficient certainty of implementation 
and effectiveness (pursuant to PECE) to conclude that Central Valley 
steelhead should be listed as threatened rather than endangered.
    Response: We disagree with the commenters and continue to believe 
that there are many protective efforts that have been implemented 
effectively, or are in the process of being implemented, throughout the 
California Central Valley that reduce risks to the DPS and support a 
threatened listing determination. These efforts were discussed in the 
proposed rule (69 FR 33102, at 33144; June 14, 2004) and include a wide 
range of habitat restoration efforts, changes in hatchery management, 
and limits on recreational harvest. As discussed further below, habitat 
improvement and planning efforts in the Central Valley conducted under 
the auspices of Federal and State programs, primarily CALFED and CVPIA, 
recently proposed monitoring and research activities regarding 
steelhead, and recently completed ESA section 7 consultations.
    Significant Central-Valley-wide restoration efforts include the 
CALFED program and CVPIA, both comprehensive water management and 
restoration programs consisting of elements that potentially contribute 
toward ecosystem improvement and function as well as to the recovery of 
Central Valley steelhead. The CALFED program is a collaborative effort 
among 25 Federal and State agencies to improve water supplies in 
California and the health of the San Francisco Bay-Sacramento-San 
Joaquin River Delta watershed. The Ecosystem Restoration program of 
CALFED has invested more than $500 million on 415 projects aimed at 
improving and restoring ecosystems since its inception in 1997 (CALFED 
Bay-Delta Program, 2005, Annual Report: 2004). These actions include: 
fish screen and passage construction and planning projects; instream, 
floodplain, and riparian restoration projects; toxic studies and 
pollutant reduction efforts; monitoring for listed species; and 
instream flow augmentation. The CVPIA mandated changes in management of 
the Central Valley Project, particularly for the protection, 
restoration, and enhancement of fish and wildlife, and includes 
programs such as the Anadromous Fish Restoration Program, a water 
acquisition program, and a fish screen program. Wherever possible, 
CVPIA and CALFED programs are integrated to accomplish a single 
Central-Valley-wide restoration effort.
    Approximately 70 percent of water diversions greater than 250 cfs 
in the Central Valley have now been screened or are planned to be 
screened. Notable efforts include the planning and/or construction of 
facilities at: Anderson-Cottonwood Irrigation District, Glenn Colusa 
Irrigation District, Princeton, Reclamation District 108, City of 
Sacramento, and Sutter Mutual Water District on the Sacramento River; 
the Banta Carbona and Patterson Irrigation Districts on the San Joaquin 
River; and numerous other screening projects in Suisun Marsh, the 
Sacramento-San Joaquin Delta, and tributaries throughout the Central 
Valley. Passage improvements and evaluations regarding common salmonid 
barriers such as Saeltzer Dam on Clear Creek and numerous barriers on 
Sacramento and San Joaquin tributaries are underway and are 
contributing to the improvement of habitat conditions for this DPS.
    Restoration efforts such as spawning gravel augmentation, fine 
sediment removal activities, channel rehabilitation, riparian, 
floodplain, and wetland restoration have also contributed to improved 
habitat conditions for this DPS by restoring habitat function and 
quality. Watershed planning and restoration efforts are now underway in 
many of the Central Valley tributaries leading to the identification 
and potential elimination of factors limiting habitat restoration and 
population recovery. Large-scale restoration projects in Clear Creek in 
the Sacramento River Basin, and the Merced and Tuolumne Rivers in the 
San Joaquin Basin, are expected to restore ecological functions that 
benefit steelhead production. Efforts to restore spawning gravel supply 
and reduce fine sediment input in numerous Central Valley tributaries 
have likely contributed positively toward recent spawning success. 
Other elements of the CALFED program may also provide benefits to this 
DPS, although these benefits are not yet well demonstrated. These 
activities include water purchases through the Environmental Water 
Account program, efforts to reduce toxics and pollutants in Central 
Valley waters, community-based management efforts through the CALFED 
Watershed program, and improvements to channels and floodplains through 
the Conveyance and Levee programs.
    Monitoring efforts for Central Valley steelhead have been 
implemented in selected tributaries in the Sacramento and San Joaquin 
basins in an effort to better understand life-history strategies,

[[Page 846]]

as well as to provide better estimates of steelhead abundance. These 
activities include redd surveys, snorkeling, angling, rotary screen 
trapping, and beach seining. Ongoing genetic research is expected to 
provide additional information about genetic relationships of 
populations within and between rivers and basins in the Central Valley. 
This information will help define the spatial and genetic structure of 
the Central Valley steelhead DPS. The long-term juvenile fish 
monitoring program by the Interagency Ecological Program in the 
Sacramento-San Joaquin Estuary, as well as Chinook salmon monitoring 
programs by Federal and state agencies and private entities in some 
tributaries, also may provide incidental catch information. While these 
efforts do not specifically target steelhead and are not found in all 
Central Valley watersheds, they are filling information gaps regarding 
Central Valley steelhead that will likely help with recovery 
assessments and planning. Despite current monitoring and research 
efforts, additional needs include a more comprehensive monitoring 
program, better anadromous fish abundance estimating methods, and a 
better understanding of the use, needs and availability of habitat in 
the Central Valley for steelhead populations. Finally, we have 
completed ESA section 7 consultations for construction and water 
operation projects in the Central Valley that provide substantial 
benefits to steelhead.
    We believe that the protective efforts being implemented for this 
DPS provide sufficient certainty of implementation and effectiveness to 
alter the BRT's (NMFS, 2003b) and APEW's (NMFS, 2004c) assessments and 
support our conclusion that the Central Valley steelhead DPS in-total 
is not in danger of extinction, but rather is likely to become 
endangered in the foreseeable future throughout all or a significant 
portion of its range. Accordingly, we conclude that the Central Valley 
steelhead DPS continues to warrant listing as a threatened species.
Middle Columbia River O. mykiss ESU
    Comment 25: The U.S. Forest Service (FS) and the Bureau of Land 
Management (BLM) felt that implementation of existing Land and Resource 
Management Plans (LRMPs) within the range of the Middle Columbia River 
steelhead will help ensure its long-term viability. Specifically, the 
agencies assert that the following conservation programs provide 
sufficient certainty of implementation and effectiveness to mitigate 
the risk of extinction for Middle Columbia River steelhead and warrant 
a new review of its status: (1) Continued implementation of the 
Northwest Forest Plan aquatic conservation strategy under current FS 
and BLM LRMPs; (2) continued implementation of the Pacfish aquatic 
conservation strategy under current FS and BLM LRMPs; (3) continued 
participation in the Interagency Implementation Team ensuring the 
effective monitoring, evaluation, and adaptive management of actions 
under the LRMPs; (4) continued implementation of Best Management 
Practices project design criteria, and standards and guidelines as 
specified in existing ESA section 7 biological opinions and concurrence 
letters, with a strong focus on forestry, grazing, mining, and 
recreational activities; and (5) continued collaboration with regional 
partners to identify and implement high-value restoration projects. The 
FS and BLM criticized the proposed listing determination for the Middle 
Columbia River O. mykiss ESU for not considering implementation of 
their aquatic conservation strategies under their current LRMPs, for 
not articulating why these and other conservation efforts were deemed 
insufficient to ameliorate risks to the ESU, and for not detailing the 
specific conservation measures necessary to address any 
insufficiencies.
    In an April 15, 2005, letter to NMFS from the State of Oregon 
Governor's Natural Resource Office, Oregon provided additional 
information regarding efforts to protect Middle Columbia River 
steelhead in the Deschutes, John Day, and Walla Walla Rivers. Oregon 
noted changes in the management of the Wallowa Hatchery intended to 
reduce the straying of out-of-ESU hatchery fish into the Deschutes and 
lower John Day rivers. Oregon believes that, if successful, these 
management actions may substantially reduce the threat posed by 
straying hatchery fish in these basins and the resulting uncertainties 
in interpreting trends in abundance and productivity of the local 
populations. Oregon emphasized its continuing commitment to 
conservatively managing fisheries in the John Day River in support of 
conserving self-sustaining natural populations of native summer 
steelhead. Oregon also felt that commitments to improve flow management 
in the Walla Walla River Basin as part of the Oregon-Washington Walla 
Walla River Habitat Conservation Plan for steelhead and bull trout have 
resulted in improved flow conditions over the past 4 years, improved 
fish passage, and increases in available habitat. Oregon also noted 
habitat and fish passage improvement projects that have been completed 
and are being developed in the John Day River, Deschutes River, Walla 
Walla River, and Fifteenmile Creek basins. Oregon asserted that these 
and other protective efforts merit closer scrutiny under PECE before a 
final listing determination should be made for steelhead in the Middle 
Columbia River.
    Response: In the proposed listing determination we noted 
encouraging trends in the recent abundance and productivity of the ESU, 
in part due to favorable freshwater conditions and marine survival. 
However, several populations remain well below viable levels (including 
populations in the Yakima River Basin, which was historically a major 
production center), and there is insufficient certainty that the 
environmental conditions underlying recent encouraging trends will 
continue. In proposing to maintain the ESU's threatened status, we 
listed 11 conservation measures and commitments that if implemented 
might substantially address key limiting factors, ensure the viability 
over the long term, and likely bring Middle Columbia River steelhead to 
the point where the protections of the ESA are no longer necessary. To 
affect the final listing determination for Middle Columbia River 
steelhead, we expressed interest in receiving firm commitments with a 
high certainty of implementation and effectiveness, including: (1) That 
the Bonneville Power Administration (BPA) will continue its funding of 
ESU-wide riparian zone and instream habitat restoration efforts, 
consistent with its Fish and Wildlife Program's portion of the subbasin 
and recovery plans being developed; (2) that the BLM will adhere to 
best management practices for grazing, mining, and recreational 
activities ESU-wide; (3) that the FS will adhere to best management 
practices for grazing, forestry, and mining activities ESU-wide; (4) 
that Washington Department of Fish and Wildlife (WDFW) will continue to 
manage fisheries conservatively in this ESU, and develop and implement 
a long-term approach that balances natural and hatchery production 
across the ESU; (5) that Oregon Department of Fish and Wildlife (ODFW) 
will continue to manage fisheries conservatively in this ESU 
(particularly in the John Day River subbasin), develop and implement 
management approaches to reduce the straying of out-of-basin stocks 
into Deschutes and John Day spawning areas, and develop and implement a 
long-term approach that balances

[[Page 847]]

natural and hatchery production across the ESU; (6) that the U.S. 
Bureau of Reclamation (BOR) provide passage and improve flow management 
below all its facilities in the Yakima River and the Umatilla River 
subbasins, provide fish passage into significant tributaries, and 
provide passage over at least two of its storage dams in the Yakima 
Basin; (7) that the Federal Energy Regulatory Commission (FERC) provide 
for passage in the Deschutes River subbasin above the Pelton/Round 
Butte complex, restore downstream water temperature regime to 
historical levels, and provide for upstream/downstream habitat 
enhancement and restoration; (8) that the U.S. Army Corps of Engineers 
(Corps) improve passage, screening and flow management in the Walla 
Walla River subbasin, and alter the flood operating rule for Mill Creek 
or alternatively screen the diversion into Bennington Lake; (9) that 
the Yakima Nation continue conservative hatchery and harvest management 
and adherence to best land management practices; (10) that the 
Confederated Tribes of the Umatilla Reservation continue conservative 
hatchery and harvest management; and (11) that the Confederated Tribes 
of the Warm Springs Reservation continue best land management practices 
in the Deschutes River subbasin. To date, the only items addressed are 
those summarized above by FS and BLM, the State of Oregon, and the 2003 
Pelton Round Butte Project settlement agreement to provide for fish 
passage, research, and habitat enhancement (see discussion below).
    We applaud FS' and BLM's continued commitments to implement LRMPs, 
adhere to established best management practices, and participate in 
monitoring and evaluation efforts. Although the Federal lands covered 
by the LRMPs are important components in conserving the ESU, these 
lands comprise a minority (approximately 28 percent) of the occupied 
stream reaches in the ESU. Populations in the Yakima, Klickitat, and 
Touchet Rivers remain well below their interim recovery target 
abundance levels, and in these streams Federal lands represent 
approximately 21 percent, four percent, and seven percent of the 
occupied stream reaches, respectively. Additionally, several of the key 
limiting factors within these basins (in particular fish passage and 
flow management in the Yakima River Basin) are outside FS' and BLM's 
authority to address. We are encouraged by FS' and BLM's commitment to 
continue to pursue high value restoration projects in the range of the 
DPS. However, with respect to our consideration of protective efforts, 
such general commitments lack the necessary certainty of implementation 
and effectiveness in that they do not identify specific actions and 
conservation objectives, do not include quantifiable performance 
measures, cannot guarantee the necessary funding and other resources, 
and lack sufficient authority to ensure the participation of all 
necessary parties.
    In 2003 a settlement agreement was reached among the applicants and 
21 intervenors in the FERC's relicensing of the Pelton Round Butte 
Project on the Deschutes River (central Oregon). The settlement 
agreement addresses project operations, natural resource protection, 
mitigation, and enhancement measures. The agreement will provide fish 
passage above the three-dam complex to over 150 miles (241 km) of 
spawning and rearing habitat for steelhead, as well as spring Chinook 
and sockeye salmon. Other measures include research on the augmentation 
of spawning gravels in the Lower Deschutes River, management of large 
woody debris entering the project reservoirs, altered flow management, 
and $21.5 million in funding for habitat enhancement projects. Fish 
passage is scheduled to begin in 2009, to be preceded by (as yet 
undetermined) habitat enhancement projects. If the provision of fish 
passage fails, funds that would otherwise support the operation and 
maintenance of the fish passage facility will be used for habitat 
restoration projects downstream of the project for the duration of the 
new license. The settlement agreement is reasonably certain to occur. 
However, scheduling delays have already occurred and are to be expected 
given the number of involved parties, the scale of the project, and the 
complexity of the engineering issues being addressed. We are optimistic 
that the passage improvements included in the settlement agreement will 
be effective. However, we cannot be certain that the provision of 
passage will be effective in reintroducing steelhead populations into 
currently blocked habitats in the Deschutes River. It is due to this 
uncertainty that contingencies were built into the settlement agreement 
for the potential failure of efforts to provide fish passage.
    As with the above-mentioned protective efforts, we applaud the 
conservation measures described by Oregon to reduce stray rates into 
the Deschutes and John Day Rivers, conservatively manage fisheries in 
the John Day River, improve flow conditions in the Walla Walla River, 
and continue its collaboration in developing and implementing 
restoration projects. However, as Oregon acknowledges, there is 
considerable uncertainty as to whether the management actions for the 
Wallowa Hatchery will be effective in reducing the stray rates of out-
of-DPS fish. The commitments to improve flow conditions in the Walla 
Walla River represent important contributions to addressing limiting 
factors in the subbasin; however, significant challenges remain. 
Additional water conservation measures, restoration of severely 
degraded riparian habitats, continued efforts to screen water 
diversions and improve fish passage, improvements in agricultural 
practices to benefit water quality, and hatchery reform efforts are 
needed to help ensure the conservation of the Walla Walla River 
steelhead population. As Oregon noted, the implementation of various 
habitat restoration activities is unclear given uncertainties in 
funding, technical assistance, necessary authorities, and voluntary 
participation.
    The commitments addressed above represent valuable contributions to 
the conservation and recovery of the Middle Columbia River steelhead 
DPS. However, the FS' and BLM's commitments, the Pelton Round Butte 
Project settlement agreement, and the information provided by Oregon, 
alone are insufficient to substantially ameliorate risks to the DPS to 
the point that the protections afforded under the ESA are no longer 
necessary. As noted in the proposed listing determination and 
summarized above, we feel that continued and additional conservation 
efforts are necessary beyond those addressed in the commenters' 
commitments to substantively address factors limiting the recovery of 
the Middle Columbia River steelhead DPS.

Comments Regarding Public Notice and Opportunities for Public Comment

    Comment 26: Several commenters expressed displeasure concerning the 
30-day length of the public comment period regarding the proposed 
application of the joint DPS policy and delineation of steelhead DPSs. 
The commenters felt that additional time should have been allowed to 
comment given that the proposed approach represents a significant 
departure from NMFS' established application of the ESU policy, and 
poses potentially significant implications for West Coast steelhead 
management, conservation, and recovery planning. The commenters felt 
that NMFS' public notification of the new proposal was inadequate, and 
suspected that many interested and affected individuals, organizations, 
businesses, and municipalities are not

[[Page 848]]

aware of the new proposal. Commenters noted that a short 30-day public 
comment period for such a radical change in approach stands in stark 
contrast to the more than 200 days of public comment solicited 
concerning the June 2004 proposals, which generally affirmed the 
approach NMFS has used for the last 14 years. Two commenters requested 
that public hearings be held to allow for additional explanation and 
discussion of the proposed alternative approach.
    Response: Commenters were provided extensive opportunity for 
comment from the initial publication of the proposed rule in June 2004 
until the close of the final comment period on December 5, 2005. 
Following an initial time period of 90 days, we twice extended the 
comment period, for an additional 36 and 22 days (69 FR 53031, August 
31, 2004; 69 FR 61348, October 18, 2004). During this extensive comment 
period, we received numerous comments urging us to find resident and 
anadromous O. mykiss to be separate ESUs. The comment period was then 
reopened for another 30 days on November 4, 2005, to receive comments 
on our proposed alternative approach to delineating the O. mykiss 
populations (70 FR 67130). We received 24 comments during this 30-day 
comment period, specific to the proposal to use the DPS policy. Prior 
to the reopening of the comment period on November 4, 2005, we also 
received comments on a possible change in approach to apply the DPS 
policy rather than the ESU policy. We believe that the 24 cogent, 
insightful comments we received during the 30-day comment period on our 
proposed use of the DPS policy is evidence that the time allotted for 
comment on this issue was sufficient. The approach used in this final 
rule--giving rainbow trout and steelhead separate treatment under the 
ESA--was fully vetted in the comments on the 2004 proposed rule.

Final Species Determinations

    We first must determine whether the geographic boundaries 
established for O. mykiss ESUs (see 69 FR 33102; June 14, 2004) under 
the ESU policy are the appropriate boundaries for steelhead DPSs under 
the DPS policy. We conclude they are. Under the ESU policy, we 
delineated geographic boundaries based on considerations of both 
reproductive isolation and significance. The ESU boundaries were drawn 
around population groups the BRT found to be reproductively isolated 
from other conspecific populations and significant to the evolutionary 
legacy of the species. Reproductive isolation was generally not 
conclusively demonstrated with genetic data but rather inferred from 
information about the ecology, physiology and behavior of the 
population groups. The distinctions relied on to make geographic 
delineations of the ESUs in the 2004 proposed rule are equally 
applicable to finding discrete (markedly separate) groups of steelhead 
populations. Moreover, each of the ESUs delineated under the ESU policy 
occupies a unique ecological region. Occupation of a unique ecological 
region satisfies the DPS criterion for significance. Loss of any of the 
ESUs from its geographic area would also represent a significant gap in 
the range of the species.
    Within these geographic boundaries, we further conclude that the 
anadromous life form is markedly separate from the resident life form, 
as discussed more fully in the responses to Comments. We therefore are 
delineating 10 steelhead-only DPSs, with geographic boundaries 
unchanged from those previously delineated for the West Coast O. mykiss 
ESUs (except as noted for an adjustment of the boundary between two of 
the California DPSs).
    We next must determine whether any hatchery stocks are to be 
included in the steelhead-only DPSs. On June 28, 2005, we finalized a 
new policy for the consideration of hatchery-origin fish in ESA listing 
determinations (``Hatchery Listing Policy;'' 70 FR 37204). Under the 
Hatchery Listing Policy hatchery stocks are considered part of an ESU 
if they exhibit a level of genetic divergence relative to the local 
natural population(s) that is no more than what occurs within the ESU 
(70 FR 37204, at 37215; June 28, 2005). We conclude that the 
considerations that informed the Hatchery Listing Policy for ESUs are 
equally valid for the steelhead DPSs we are now delineating under the 
DPS policy. The Hatchery Listing Policy is based in part on the 
recognition that important components of the evolutionary legacy of 
West Coast salmon and steelhead can be found in hatchery stocks, and 
that many hatchery stocks are derived from, and not significantly 
diverged from, the naturally spawning stocks. We developed a test for 
including hatchery stocks in the ESU based upon a consideration of 
``whether a particular hatchery stock reflects an ESU's `reproductive 
isolation' and `evolutionary legacy' '' (70 FR 37204, at 37208; June 
28, 2005). We believe those tests are equally applicable to determining 
whether hatchery stocks reflect the discreteness and significance of 
steelhead DPSs. Consistent with the June 14, 2004, proposed listing 
determinations (69 FR 33102) and the recent final listing 
determinations for 16 West Coast salmon ESUs (70 FR 37160; June 28, 
2005), hatchery stocks are included in a steelhead DPS if they are no 
more than moderately diverged from local, native populations in the 
watershed(s) in which they are released. The level of divergence for 
hatchery programs associated with the steelhead DPSs is reviewed in the 
2003 Salmon and Steelhead Hatchery Assessment Group Report (NMFS, 2003) 
and the 2004 Salmonid Hatchery Assessment and Inventory Report (NMFS, 
2004b). The DPS membership of hatchery programs included in the 
steelhead DPS descriptions below and summarized in Table 1 are 
unchanged from that proposed for the 10 O. mykiss ESUs (69 FR 33102; 
June 14, 2004).

Southern California Steelhead DPS

    The Southern California Steelhead DPS includes all naturally 
spawned populations of steelhead in streams from the Santa Maria River, 
San Luis Obispo County, California (inclusive) to the U.S.-Mexico 
Border (62 FR 43937, August 18, 1997; 67 FR 21586, May 1, 2002). This 
DPS does not include any artificially propagated steelhead stocks that 
reside within the historical geographic range of the DPS.

South-Central California Coast Steelhead DPS

    The South-Central California Coast steelhead DPS includes all 
naturally spawned populations of steelhead in streams from the Pajaro 
River (inclusive) to, but not including the Santa Maria River, 
California (62 FR 43937; August 18, 1997). This DPS does not include 
any artificially propagated steelhead stocks that reside within the 
historical geographic range of the DPS.

Central California Coast Steelhead DPS

    The Central California Coast steelhead ESU was previously defined 
to include all naturally spawned populations of steelhead in California 
streams from the Russian River to Aptos Creek, and the drainages of San 
Francisco and San Pablo Bays eastward to the Napa River (inclusive), 
excluding the Sacramento-San Joaquin River Basin (62 FR 43937; August 
18, 1997). Recent information, however, indicates that those portions 
of the ESU in San Francisco Bay and eastward towards the Central Valley 
were incorrectly described in the 1997 listing notice and need to be 
clarified. As part of the November 4, 2005, notice soliciting comment 
on the delineation and listing of steelhead-only DPSs (70 FR 67130), we 
proposed clarifying the definition of the Central California Coast 
steelhead DPS. We did not receive any

[[Page 849]]

comments opposing the inclusion of these streams, nor has any 
information been made available that would lead us to reconsider our 
proposal. Accordingly, we are defining the Central California Coast 
steelhead DPS to include all naturally spawned populations of steelhead 
in coastal streams from the Russian River (inclusive) to Aptos Creek 
(inclusive), and the drainages of San Francisco, San Pablo, and Suisun 
Bays eastward to Chipps Island at the confluence of the Sacramento and 
San Joaquin Rivers; and tributary streams to Suisun Marsh including 
Suisun Creek, Green Valley Creek, and an unnamed tributary to Cordelia 
Slough (commonly referred to as a Red Top Creek), exclusive of the 
Sacramento-San Joaquin River Basin of the California Central Valley.
    Two artificial propagation programs are considered to be part of 
the DPS (Table 1): the Don Clausen Fish Hatchery, and Kingfisher Flat 
Hatchery/Scott Creek (Monterey Bay Salmon and Trout Project) steelhead 
hatchery programs. We have determined that these artificially 
propagated stocks are no more divergent relative to the local natural 
population(s) than what would be expected between closely related 
natural populations within the DPS (NMFS, 2004b, 2004c).

California Central Valley Steelhead DPS

    The California Central Valley steelhead DPS includes all naturally 
spawned populations of steelhead in the Sacramento and San Joaquin 
Rivers and their tributaries, excluding steelhead from San Francisco 
and San Pablo Bays and their tributaries (63 FR13347; March 19, 1998). 
Two artificial propagation programs are considered to be part of the 
DPS (Table 1): the Coleman NFH, and Feather River Hatchery steelhead 
hatchery programs. We have determined that these artificially 
propagated stocks are no more divergent relative to the local natural 
population(s) than what would be expected between closely related 
natural populations within the DPS (NMFS, 2004b, 2004c).

Northern California Steelhead DPS

    The Northern California O. mykiss ESU was previously defined to 
include steelhead in California coastal river basins from Redwood Creek 
south to the Gualala River (inclusive) (65 FR 36074; June 7, 2000). 
Recently, however, we have discovered that there is a coastal section 
between the southern boundary of this DPS (the Gualala River) and the 
northern boundary of the Central California Coast steelhead DPS (the 
Russian River) that contains several small streams that support 
steelhead. No genetic or other information is currently available for 
determining which DPS includes these small streams. As part of the 
November 4, 2005, notice soliciting comment on the delineation and 
listing of steelhead-only DPSs (70 FR 67130), we proposed to include 
these small streams in this Northern California steelhead DPS on a 
conditional basis. We did not receive any comments opposing the 
inclusion of these streams, nor has any information been made available 
that would lead us to reconsider our proposal. Accordingly, the 
Northern California steelhead DPS is defined to include all naturally 
spawned populations of steelhead in California coastal river basins 
from Redwood Creek southward to, but not including, the Russian River.
    Two artificial propagation programs are considered part of the DPS 
(Table 1): the Yager Creek Hatchery, and North Fork Gualala River 
Hatchery (Gualala River Steelhead Project) steelhead hatchery programs. 
We have determined that these artificially propagated stocks are no 
more divergent relative to the local natural population(s) than what 
would be expected between closely related natural populations within 
the DPS (NMFS, 2004b, 2004c, 2005a).

Upper Willamette River Steelhead DPS

    The Upper Willamette River steelhead DPS includes all naturally 
spawned populations of winter-run steelhead in the Willamette River, 
Oregon, and its tributaries upstream from Willamette Falls to the 
Calapooia River (inclusive) (64 FR 14517; March 25, 1999). This DPS 
does not include any artificially propagated steelhead stocks that 
reside within the historical geographic range of the DPS. Hatchery 
summer-run steelhead occur in the Willamette Basin but are an out-of-
basin stock that is not included as part of the DPS.

Lower Columbia River Steelhead DPS

    The Lower Columbia River steelhead DPS includes all naturally 
spawned populations of steelhead in streams and tributaries to the 
Columbia River between the Cowlitz and Wind Rivers, Washington 
(inclusive), and the Willamette and Hood Rivers, Oregon (inclusive). 
Excluded are steelhead in the upper Willamette River Basin above 
Willamette Falls and steelhead from the Little and Big White Salmon 
Rivers in Washington (62 FR 43937; August 18, 1997). Ten artificial 
propagation programs are considered to be part of the DPS (Table 1): 
the Cowlitz Trout Hatchery (in the Cispus, Upper Cowlitz, Lower 
Cowlitz, and Tilton Rivers), Kalama River Wild (winter- and summer-
run), Clackamas Hatchery, Sandy Hatchery, and Hood River (winter- and 
summer-run) steelhead hatchery programs. We have determined that these 
artificially propagated stocks are no more divergent relative to the 
local natural population(s) than what would be expected between closely 
related natural populations within the DPS (NMFS, 2004b, 2004c, 2005a).

Middle Columbia River Steelhead DPS

    The Middle Columbia River steelhead DPS includes all naturally 
spawned populations of steelhead in streams from above the Wind River, 
Washington, and the Hood River, Oregon (exclusive), upstream to, and 
including, the Yakima River, Washington, excluding steelhead from the 
Snake River Basin (64 FR 14517; March 25, 1999). Seven artificial 
propagation programs are considered part of the DPS (Table 1): the 
Touchet River Endemic, Yakima River Kelt Reconditioning Program (in 
Satus Creek, Toppenish Creek, Naches River, and Upper Yakima River), 
Umatilla River, and the Deschutes River steelhead hatchery programs. We 
have determined that these artificially propagated stocks are no more 
divergent relative to the local natural population(s) than what would 
be expected between closely related natural populations within the DPS 
(NMFS, 2004b, 2004c, 2005a).

Upper Columbia River Steelhead DPS

    The Upper Columbia River steelhead DPS includes all naturally 
spawned populations of steelhead in streams in the Columbia River Basin 
upstream from the Yakima River, Washington, to the U.S.-Canada border 
(62 FR 43937; August 18, 1997). Six artificial propagation programs are 
considered part of the DPS (Table 1): the Wenatchee River, Wells 
Hatchery (in the Methow and Okanogan Rivers), Winthrop NFH, Omak Creek, 
and the Ringold steelhead hatchery programs. We have determined that 
these artificially propagated stocks are no more divergent relative to 
the local natural population(s) than what would be expected between 
closely related natural populations within the DPS (NMFS, 2004b, 2004c, 
2005a).

Snake River Basin Steelhead DPS

    The Snake River Basin steelhead DPS includes all naturally spawned 
populations of steelhead in streams in the Snake River Basin of 
southeast Washington, northeast Oregon, and Idaho (62 FR 43937; August 
18, 1997). Six artificial propagation programs are considered part of 
the DPS (Table 1): the Tucannon River, Dworshak NFH, Lolo Creek, North 
Fork Clearwater, East Fork

[[Page 850]]

Salmon River, and the Little Sheep Creek/Imnaha River Hatchery 
steelhead hatchery programs. We have determined that these artificially 
propagated stocks are no more divergent relative to the local natural 
population(s) than what would be expected between closely related 
natural populations within the DPS (NMFS, 2004b).

 Table 1.--List of Artificial Propagation Programs Included in Distinct
Population Segments (DPSs) of West Coast Steelhead (Oncorhynchus mykiss)
------------------------------------------------------------------------
    Artificial Propagation
    Program(s) Included in
 Steelhead Distinct Population      Run timing        Location (State)
        Segments (DPSs)
------------------------------------------------------------------------
                    Southern California Steelhead DPS
------------------------------------------------------------------------
n/a...........................  .................  .....................
-------------------------------
              South-Central California Coast Steelhead DPS
------------------------------------------------------------------------
n/a...........................  .................  .....................
-------------------------------
                 Central California Coast Steelhead DPS
------------------------------------------------------------------------
Scott Creek/Monterey Bay        Winter...........  Big Creek, Scott
 Salmon and Trout Project,                          Creek (California).
 Kingfisher Flat Hatchery.
Don Clausen Fish Hatchery.....  Winter...........  Russian River
                                                    (California).
-------------------------------
                 California Central Valley Steelhead DPS
------------------------------------------------------------------------
Coleman National Fish Hatchery  Winter...........  Battle Creek,
 (NFH).                                             Sacramento River
                                                    (California).
Feather River Hatchery........  Winter...........  Feather River
                                                    (California).
-------------------------------
                    Northern California Steelhead DPS
------------------------------------------------------------------------
Yager Creek Hatchery..........  Winter...........  Yager Creek, Van
                                                    Duzen River
                                                    (California).
North Fork Gualala River        Winter...........  North Fork Gualala
 Hatchery/Gualala River                             River (California).
 Steelhead Project.
-------------------------------
                  Upper Willamette River Steelhead DPS
------------------------------------------------------------------------
n/a...........................  .................  .....................
-------------------------------
                   Lower Columbia River Steelhead DPS
------------------------------------------------------------------------
Cowlitz Trout Hatchery........  Late Winter......  Cispus River
                                                    (Washington).
Cowlitz Trout Hatchery........  Late Winter......  Upper Cowlitz River
                                                    (Washington).
Cowlitz Trout Hatchery........  Late Winter......  Tilton River
                                                    (Washington).
Cowlitz Trout Hatchery........  Late Winter......  Lower Cowlitz River
                                                    (Washington).
Kalama River Wild.............  Winter...........  Kalama River
                                                    (Washington).
Kalama River Wild.............  Summer...........  Kalama River
                                                    (Washington).
Clackamas Hatchery (ODFW stock  Late Winter......  Clackamas River
 122).                                     (Oregon).
Sandy Hatchery (ODFW stock      Late Winter......  Sandy River (Oregon).
 11).
Hood River (ODFW stock 50).
Hood River (ODFW stock 50).
-------------------------------
                   Middle Columbia River Steelhead DPS
------------------------------------------------------------------------
Touchet River Endemic.........  Summer...........  Touchet River
                                                    (Washington).
Yakima River Kelt               Summer...........  Satus Creek
 Reconditioning Program.                            (Washington).
Yakima River Kelt               Summer...........  Toppenish Creek
 Reconditioning Program.                            (Washington).
Yakima River Kelt               Summer...........  Naches River
 Reconditioning Program.                            (Washington).
Yakima River Kelt               Summer...........  Upper Yakima River
 Reconditioning Program.                            (Washington).
Umatilla River (ODFW stock      Summer...........  Umatilla River
 91).                                      (Oregon).
Deschutes River (ODFW stock     Summer...........  Deschutes River
 66).                                      (Oregon).
-------------------------------
                   Upper Columbia River Steelhead DPS
------------------------------------------------------------------------
Wenatchee River Steelhead.....  Summer...........  Wenatchee River
                                                    (Washington).
Wells Hatchery Steelhead......  Summer...........  Methow River
                                                    (Washington).
Wells Hatchery Steelhead......  Summer...........  Okanogan River
                                                    (Washington).
Winthrop NFH Steelhead (Wells   Summer...........  Methow River
 Steelhead).                                        (Washington).
Omak Creek Steelhead..........  Summer...........  Okanogan River
                                                    (Washington).
Ringold Hatchery (Wells         Summer...........  Middle Columbia River
 Steelhead).                                        (Washington).
-------------------------------
                     Snake River Basin Steelhead DPS
------------------------------------------------------------------------
Tucannon River................  Summer...........  Tucannon River
                                                    (Washington).
Dworshak NFH..................  Summer...........  South Fork Clearwater
                                                    River (Idaho).
Lolo Creek....................  Summer...........  Clearwater River
                                                    (Idaho).
North Fork Clearwater.........  Summer...........  North Fork Clearwater
                                                    River (Idaho).

[[Page 851]]

 
East Fork Salmon River........  Summer...........  East Fork Salmon
                                                    River (Idaho).
Little Sheep Creek/Imnaha       Summer...........  Imnaha River
 River Hatchery (ODFW stock                         (Oregon).
  29).
------------------------------------------------------------------------

Assessment of Species' Status

    NMFS's Pacific Salmonid BRT (an expert panel of scientists from 
several Federal agencies including NMFS, FWS, and the U.S. Geological 
Survey) reviewed the viability and extinction risk of naturally 
spawning populations in the 10 steelhead DPSs that are the subject of 
this final rule (Good et al., 2005). Although the ESUs reviewed by the 
BRT included co-occurring populations of resident O. mykiss, little or 
no population data are available for most resident O. mykiss 
populations. The BRT's findings regarding extinction risk are based on 
the status of the steelhead populations in the ESUs reviewed. Where 
available, the BRT incorporated information about resident populations 
into their analyses of extinction risk, and in some instances the BRT 
noted the presence of speculatively abundant resident populations. 
However, the BRT concluded that the contribution of the resident life-
history form to the viability of an O. mykiss ESU in-total is unknown 
and may not substantially reduce extinction risks to an ESU in-total. 
Therefore, the BRT's extinction risk findings directly inform 
evaluations of extinction risk for the steelhead DPSs under 
consideration.
    We assessed effects of hatchery programs on the extinction risk of 
a DPS in-total on the basis of the factors that the BRT determined are 
currently limiting the DPS (e.g., abundance, productivity, spatial 
structure, and diversity) and how artificial propagation efforts within 
the DPS affect those factors. The APEW (NMFS, 2004c) reviewed the BRT's 
findings (NMFS, 2003; Good et al., 2005), evaluated the Salmonid 
Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and 
assessed the overall extinction risk of DPSs with associated hatchery 
stocks. Below we summarize the status information for the steelhead 
DPSs under consideration. The reader is referred to the BRT's report 
(Good et al., 2005), the Salmonid Hatchery Inventory and Effects 
Evaluation Report (NMFS, 2004b), and the APEW Report (NMFS, 2004c) for 
more detailed descriptions of the viability of individual natural 
populations and hatchery stocks within these DPSs.
    In its analysis of the status of the O. mykiss ESUs, the BRT voted 
on whether each was ``in danger of extinction,'' ``likely to become 
endangered in the foreseeable future,'' or ``not warranted.'' While 
these categories correspond to the statutory definitions of 
``endangered'' or ``threatened,'' they do not amount to an agency 
determination that any of the entities under consideration are an 
endangered species or a threatened species under the ESA. To make the 
ESA determination, we also considered the extent to which hatchery 
populations affect the extinction risk assessed by the BRT as well as 
the effect of any protective efforts being made by any state or foreign 
nation.

Southern California Steelhead DPS

    Assessing the extinction risk for Southern California steelhead is 
made difficult by the general lack of historical or recent data for 
this DPS, and the uncertainty generated by this paucity of information. 
The historical steelhead run for four of the major river systems within 
the range of the DPS is estimated to have been between 32,000 and 
46,000 adults. Recent run size for the same four systems, however, has 
been estimated to be fewer than 500 total adults. Run sizes in river 
systems within the DPS are believed to range between less than five 
anadromous adults per year, to less than 100 anadromous adults per 
year. The available data are insufficient to estimate abundance levels 
or trends in productivity. Of 65 river drainages where steelhead are 
known to have occurred historically, between 26 and 52 percent are 
still occupied (uncertainty in this estimate is the result of the 
inaccessibility of 17 basins to population surveys). Colonization 
events of steelhead were documented during 1996-2002 in Topanga and San 
Mateo Creeks. These colonization events were represented by a few 
spawning adults or the observation of a single individual. Twenty-two 
basins are considered vacant, extirpated, or nearly extirpated due to 
dewatering or the establishment of impassable barriers below all 
spawning habitats. Except for the colonization of a small population in 
San Mateo Creek in northern San Diego County, steelhead appear to have 
been completely extirpated from nearly all systems in the southern 
portion of the range of the DPS from Malibu Creek to the Mexican 
border. Recently, documentation of the presence and spawning of 
steelhead in two streams south of Malibu Creek (in Topanga and San 
Mateo Creeks) prompted the extension of the DPS's boundaries to the 
U.S.-Mexico border in 2002 (67 FR 21586; May 1, 2002).
    The BRT found extremely high risks to the abundance, productivity, 
spatial structure, and diversity of the DPS. Informed by this 
assessment, the strong majority opinion of the BRT was that the 
Southern California steelhead DPS is ``in danger of extinction.'' The 
minority opinion was that the DPS is ``likely to become endangered 
within the foreseeable future.'' There are no artificially propagated 
stocks of steelhead that mitigate the BRT's assessment that the DPS is 
``in danger of extinction.''

South-Central California Coast Steelhead DPS

    There is a paucity of abundance information for the South-Central 
California Coast steelhead DPS. Data are not available for the two 
largest river systems within the range of the DPS, the Pajaro and 
Salinas basins. These systems are much degraded and are expected to 
have steelhead runs reduced in size from historical levels. Data 
available for the Carmel River underscore the population's 
vulnerability to drought conditions, as well as its dependence on the 
intensive management of the river system. The most recent 5-year mean 
abundance of fish in the Carmel River is approximately 600 adults. 
Despite observed and inferred declines in abundance, the current 
spatial distribution of steelhead populations in the DPS does not 
appear to be much reduced from what occurred historically. Steelhead 
are present in approximately 86 to 95 percent of historically occupied 
streams (the uncertainty in the estimated occupancy is due to three 
streams that could not be accessed for population surveys). The BRT was 
concerned, however, that the larger Pajaro and Salinas basins are

[[Page 852]]

spatially and ecologically distinct from other populations in the DPS, 
such that further degradation of these areas will negatively impact the 
DPS's spatial structure and diversity. The BRT found high risks to the 
abundance, productivity, and the diversity of the DPS, and expressed 
concern particularly for the DPS's connectivity and spatial structure. 
Informed by this assessment, the strong majority opinion of the BRT was 
that the South-Central Coast steelhead DPS is ``likely to become 
endangered within the foreseeable future.'' The minority opinion was 
that the DPS is ``in danger of extinction.'' There are no artificially 
propagated stocks of steelhead that mitigate the BRT's assessment that 
the DPS is ``likely to become endangered within the foreseeable 
future.''

Central California Coast Steelhead DPS

    There are no time series of population abundance data for the 
naturally spawning component of the Central California Coast steelhead 
DPS. The naturally spawning population in the largest river system in 
the DPS, the Russian River, is believed to have declined seven-fold 
since the mid-1960s. Juvenile density information is available for five 
``representative'' populations, and each exhibits a decline in juvenile 
density over the last 8 years of available data. Predation by 
increasing numbers of California sea lions at river mouths and during 
the ocean phase was noted as a recent development also posing 
significant risk. Juvenile O. mykiss have been observed in 
approximately 82 percent of historically occupied streams, indicating 
that the DPS continues to be spatially well distributed. However, 
impassable dams have cut off substantial portions of spawning habitat 
in some basins, generating concern about the spatial structure of the 
naturally spawning component of the DPS. The BRT found moderately high 
risk to the abundance and productivity of the DPS, and comparatively 
less risk for the DPS's spatial structure and diversity. Informed by 
this risk assessment, the majority opinion of the BRT was that the 
naturally spawned component of the Central California Coast steelhead 
DPS is ``likely to become endangered within the foreseeable future.'' 
The minority opinion was that the DPS is ``in danger of extinction.''
    Two artificial propagation programs are considered to be part of 
the Central California Coast steelhead DPS (Table 1; NMFS, 2004b, 
2005a). Our assessment of the effects of these two artificial 
propagation programs on the viability of the DPS concluded that they 
decrease risk to some degree by contributing to increased abundance, 
but have neutral or uncertain effects on productivity, spatial 
structure or diversity of the DPS. Informed by the BRT's findings (Good 
et al., 2005) and our assessment of the effects of artificial 
propagation programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded 
that the Central California Coast steelhead DPS in-total is ``likely to 
become endangered in the foreseeable future'' (NMFS, 2004c).

California Central Valley Steelhead DPS

    Little information is available regarding the viability of the 
naturally spawning component of the California Central Valley steelhead 
DPS. Steelhead spawning above the Red Bluff Diversion Dam (RBDD) have a 
small population size (the most recent 5-year mean is less than 2,000 
adults) and exhibit strongly negative trends in abundance and 
productivity. However, there have not been any escapement estimates 
made for the area above RBDD since the mid 1990s. The only recent DPS-
level estimate of abundance is a crude extrapolation from the 
incidental catch of out-migrating juvenile steelhead captured in a 
midwater-trawl sampling program for juvenile Chinook salmon below the 
confluence of the Sacramento and San Joaquin Rivers. The extrapolated 
abundance of naturally spawning female steelhead involves broad 
assumptions about female fecundity (number of eggs produced per female) 
and egg-to-smolt survival rates. Based on this extrapolation, it is 
estimated that on average during 1998-2000, approximately 181,000 
juvenile steelhead were produced naturally each year in the Central 
Valley by approximately 3,600 spawning female steelhead. It is 
estimated that there were 1 to 2 million spawners in the Central Valley 
prior to 1850, and approximately 40,000 spawners in the 1960s. Although 
it appears that steelhead remain widely distributed in Sacramento River 
tributaries, the vast majority of historical spawning areas are 
currently above impassable dams. The BRT also expressed concern about 
the effects of significant production of out-of-DPS hatchery steelhead 
in the American (Nimbus Hatchery) and Mokelumne (Mokelumne River 
Hatchery) Rivers. The BRT found high risks to the abundance, 
productivity, and spatial structure of the DPS, and moderately high 
risk for the DPS's diversity. Informed by this risk assessment, the 
majority opinion of the BRT was that the naturally spawned component of 
the California Central Valley steelhead DPS is ``in danger of 
extinction.'' The minority opinion was that the naturally spawned 
component of the DPS is ``likely to become endangered within the 
foreseeable future.''
    There are two artificial propagation programs considered to be part 
of the Central Valley steelhead DPS. Our assessment of the effects of 
these artificial propagation programs on the viability of the DPS 
concluded that they decrease risk to some degree by contributing to 
increased abundance of the DPS, but have a neutral or uncertain effect 
on the productivity, spatial structure and diversity of the DPS (NMFS, 
2004b, 2004c, 2005a). Informed by the BRT's findings (Good et al., 
2005) and our assessment of the effects of artificial propagation 
programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded that the 
presence of hatchery populations does not alter the BRT's conclusion 
that the California Central Valley steelhead DPS is ``in danger of 
extinction'' (NMFS, 2004c).

Northern California Steelhead DPS

    There is little historical abundance information for the naturally 
spawning portion of the Northern California steelhead DPS. However, the 
available data (dam counts on the Eel and Mad Rivers) indicate a 
substantial decline from the abundance levels of the 1930s. The three 
available summer steelhead data sets exhibit recent 5-year mean 
abundance levels from three to 418 adults, and exhibit downward short- 
and long-term trends. The short- and long-term abundance trends for the 
one current winter steelhead data series show a slightly positive 
trend. However, the recent 5-year mean abundance level is extremely low 
(32 adults). The juvenile density data for six of 10 (putative) 
independent populations exhibit declining trends. Despite low abundance 
and downward trends, steelhead appear to be still widely distributed 
throughout this ESU. The BRT expressed concern about the DPS's 
diversity due to the low effective population sizes in the DPS, and 
concern over interactions with the Mad River Hatchery stock that is not 
considered to be part of the DPS. This hatchery program was terminated 
in 2004. Thus, potential genetic risks associated with propagation of 
this non-DPS stock will decline in the future. The BRT found high risk 
to the DPS's abundance, and moderately high risk for productivity. The 
DPS's spatial structure and diversity were of comparatively lower 
concern. Informed by this assessment, the majority opinion of the BRT 
was that the naturally spawned component of the Northern California 
steelhead DPS is ``likely to

[[Page 853]]

become endangered within the foreseeable future.'' The minority BRT 
opinion was split between the ``in danger of extinction'' and ``not in 
danger of extinction or likely to become endangered within the 
foreseeable future'' categories.
    There are two small artificial propagation programs producing 
steelhead considered to be part of the Northern California steelhead 
DPS (Table 1; NMFS, 2004b, 2005a). Our assessment of the effects of 
these two artificial propagation programs on the viability of the DPS 
concluded that they may decrease risk to some degree by contributing to 
increased abundance of the DPS, but have a neutral or uncertain effect 
on the DPS's productivity, spatial structure and diversity (NMFS, 
2004b, 2004c, 2005a). Informed by the BRT's findings (Good et al., 
2005) and our assessment of the effects of artificial propagation 
programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded that the 
presence of the hatchery populations does not alter the BRT's 
conclusion that the Northern California steelhead DPS is ``likely to 
become endangered in the foreseeable future'' (NMFS, 2004c).

Upper Willamette River Steelhead DPS

    The BRT was encouraged by significant increases in adult returns 
(exceeding 10,000 total fish) in 2001 and 2002 for the Upper Willamette 
River steelhead DPS. The recent 5-year mean abundance, however, remains 
low for an entire DPS (5,819 adults), and individual populations remain 
at low abundance. Long-term trends in abundance are negative for all 
populations in the DPS, reflecting a decade of consistently low returns 
during the 1990s. Short-term trends, buoyed by recent strong returns, 
are positive. Approximately one-third of the DPS's historically 
accessible spawning habitat is now blocked. Notwithstanding the lost 
spawning habitat, the DPS continues to be spatially well distributed, 
occupying each of the four major subbasins (the Mollala, North Santiam, 
South Santiam, and Calapooia Rivers). There is some uncertainty about 
the historical occurrence of O. mykiss in the Oregon Coastal Range 
drainages. Coastal cutthroat trout is a dominant species in the 
Willamette Basin, and thus O. mykiss is not expected to have been as 
abundant or widespread in this DPS as it is east of the Cascade 
Mountains. The BRT considered the cessation of the ``early'' winter-run 
hatchery program a positive sign in reducing risks to the DPS's 
diversity, but remained concerned that releases of non-native summer 
hatchery steelhead continue. The BRT found moderate risks to the DPS's 
abundance, productivity, spatial structure, and diversity. Based on 
this risk assessment, the majority opinion of the BRT was that the 
Upper Willamette River steelhead DPS is ``likely to become endangered 
within the foreseeable future.'' The minority BRT opinion was that the 
DPS is ``not in danger of extinction or likely to become endangered 
within the foreseeable future.'' There are no artificially propagated 
stocks of steelhead that mitigate the BRT's assessment that the DPS is 
``likely to become endangered in the foreseeable future.''

Lower Columbia River Steelhead DPS

    Some steelhead populations in the Lower Columbia River DPS, 
particularly summer-run populations, have shown encouraging increases 
in abundance in recent years. However, population abundance levels 
remain small (no population has a recent 5-year mean abundance greater 
than 750 spawners). The BRT could not conclusively identify a single 
population that is naturally viable. A number of populations have a 
substantial fraction of hatchery-origin spawners and are hypothesized 
to be sustained largely by hatchery production. Long-term trends in 
spawner abundance are negative for seven of nine populations for which 
there are sufficient data, and short-term trends are negative for five 
of seven populations. It is estimated that four historical populations 
have been extirpated or nearly extirpated, and only one-half of 23 
historical populations currently exhibit appreciable natural 
production. Although approximately 35 percent of historical habitat has 
been lost within the range of this DPS due to the construction of dams 
or other impassable barriers, the DPS exhibits a broad spatial 
distribution in a variety of watersheds and habitat types. The BRT was 
particularly concerned about the impact on DPS diversity of the high 
proportion of hatchery-origin spawners in the DPS, the disproportionate 
declines in the summer steelhead life history, and the release of non-
native hatchery summer steelhead in the Cowlitz, Toutle, Sandy, Lewis, 
Elochoman, Kalama, Wind, and Clackamas Rivers. The BRT found moderate 
risks to the ESU's abundance, productivity, spatial structure, and 
diversity. Informed by this assessment the majority opinion of the BRT 
was that the naturally spawned component of the Lower Columbia River 
steelhead DPS is ``likely to become endangered within the foreseeable 
future.'' The minority opinion was that the DPS is ``not in danger of 
extinction or likely to become endangered within the foreseeable 
future.''
    There are 10 artificial propagation programs releasing hatchery 
steelhead that are considered to be part of this DPS (Table 1). Our 
assessment of the effects of artificial propagation concluded that 
these hatchery programs collectively do not substantially reduce the 
extinction risk of the DPS (NMFS, 2004b, 2004c, 2005a). Non-DPS 
hatchery programs in the Lower Columbia River remain a threat to the 
DPS's diversity. Collectively, artificial propagation programs may 
provide a slight beneficial effect to the DPS's abundance, spatial 
structure, and diversity, but uncertain effects to the DPS's 
productivity. Informed by the BRT's findings (Good et al., 2005) and 
our assessment of the effects of artificial propagation programs on the 
viability of the DPS (NMFS, 2004b, 2004c, 2005a), the APEW concluded 
that the presence of the hatchery populations does not alter the BRT's 
conclusion that the Lower Columbia River steelhead DPS is ``likely to 
become endangered in the foreseeable future'' (NMFS, 2004c).

Middle Columbia River Steelhead DPS

    The abundance of some natural populations in the Middle Columbia 
River steelhead DPS has increased substantially in recent years. The 
Deschutes and Upper John Day Rivers have recent 5-year mean abundance 
levels in excess of their respective interim recovery target abundance 
levels (NMFS, 2002). Due to an uncertain proportion of out-of-DPS 
strays in the Deschutes River, the recent increases in this population 
are difficult to interpret. (These interim recovery targets articulate 
the geometric mean of natural-origin spawners to be sustained over a 
period of 8 years or approximately two salmonid generations, as well as 
a geometric mean natural replacement rate greater than one). The 
Umatilla River's recent mean abundance is approximately 72 percent of 
its interim recovery target abundance level. The natural populations in 
the Yakima River, Klickitat River, Touchet River, Walla Walla River, 
and Fifteenmile Creek, however, remain well below their interim 
recovery target abundance levels. Long-term trends for 11 of the 12 
production areas within the range of the DPS were negative, although it 
was observed that these downward trends are driven, at least in part, 
by a peak in returns in the middle to late 1980s, followed by 
relatively low escapement levels in the early 1990s. Short-term trends 
in the 12 production areas were mostly positive from 1990 to 2001. The

[[Page 854]]

continued low number of natural returns to the Yakima River (10 percent 
of the interim recovery target abundance level, historically a major 
production center for the DPS) generated concern among the BRT members. 
However, steelhead remain well distributed in the majority of subbasins 
within the range of the Middle Columbia River DPS. The presence of 
substantial numbers of out-of-basin (and largely out-of-DPS) natural 
spawners in the Deschutes River raised substantial concern regarding 
the genetic integrity and productivity of the native Deschutes 
population. The extent to which this straying is an historical natural 
phenomenon is unknown. The cool Deschutes River temperatures may 
attract fish migrating in the comparatively warmer Columbia River 
waters, thus inducing high stray rates. The BRT found moderate risks to 
the DPS's productivity, spatial structure, and diversity, with the 
greatest relative risk being attributed to the ESU's abundance. 
Informed by this assessment, the opinion of the BRT was closely divided 
between the ``likely to become endangered within the foreseeable 
future'' and ``not in danger of extinction or likely to become 
endangered within the foreseeable future'' categories.
    There are seven hatchery steelhead programs considered to be part 
of the Middle Columbia River steelhead DPS. Our assessment of the 
effects of artificial propagation concluded that these hatchery 
programs collectively do not substantially reduce the extinction risk 
of the DPS (NMFS, 2004b, 2004c, 2005a). Informed by the BRT's findings 
(Good et al., 2005) and our assessment of the effects of artificial 
propagation programs on the viability of the DPS (NMFS, 2004b, 2004c, 
2005a), the APEW concluded that the presence of the hatchery 
populations does not alter the BRT's conclusion that the Middle 
Columbia River steelhead DPS in-total is ``likely to become endangered 
in the foreseeable future'' (NMFS, 2004c).

Upper Columbia River Steelhead DPS

    Recent years have seen an encouraging increase in the number of 
naturally produced fish in the Upper Columbia River steelhead DPS. The 
1996-2001 average return through the Priest Rapids Dam fish ladder 
(just below the upper Columbia steelhead production areas) was 
approximately 12,900 total adults (including both hatchery and natural 
origin fish), compared to 7,800 adults for 1992-1996. However, the 
recent 5-year mean abundances for naturally spawned populations in this 
DPS are 14 to 30 percent of their interim recovery target abundance 
levels. Despite increases in total abundance in the last few years, the 
BRT was frustrated by the general lack of detailed information 
regarding the productivity of natural populations. The BRT did not find 
data to suggest that the extremely low replacement rate of naturally 
spawning fish (0.25-0.30 at the time of the last status review in 1998) 
has appreciably improved. The predominance of hatchery-origin natural 
spawners (approximately 70 to 90 percent of adult returns) is a 
significant source of concern for the DPS's diversity and generates 
uncertainty in evaluating trends in natural abundance and productivity. 
Although the natural component of the anadromous run over Priest Rapids 
Dam has increased from an average of 1,040 (1992-1996) to 2,200 (1997-
2001), this pattern is not consistent for other production areas within 
the ESU. The mean proportion of natural-origin spawners declined by 10 
percent from 1992-1996 to 1997-2001. The BRT found high risk to the 
DPS's productivity, with comparatively lower risk to the DPS's 
abundance, diversity, and spatial structure. Informed by this risk 
assessment, the slight majority BRT opinion concerning the naturally 
spawned component of the Upper Columbia River steelhead DPS was in the 
``in danger of extinction'' category, and the minority opinion was that 
the DPS is ``likely to become endangered within the foreseeable 
future.''
    Six artificial propagation programs that produce hatchery steelhead 
in the Upper Columbia River Basin are considered to be part of the 
Upper Columbia River steelhead DPS. These programs are intended to 
contribute to the recovery of the DPS by increasing the abundance of 
natural spawners, increasing spatial distribution, and improving local 
adaptation and diversity (particularly with respect to the Wenatchee 
River steelhead). Research projects to investigate the spawner 
productivity of hatchery-reared fish are being developed. Some of the 
hatchery-reared steelhead adults that return to the basin may be in 
excess of spawning population needs in years of high survival 
conditions, potentially posing a risk to the naturally spawned 
populations in the DPS. The artificial propagation programs included in 
this DPS adhere to strict protocols for the collection, rearing, 
maintenance, and mating of the captive brood populations. The programs 
include extensive monitoring and evaluation efforts to continually 
evaluate the extent and implications of any genetic and behavioral 
differences that might emerge between the hatchery and natural stocks. 
Genetic evidence suggests that these hatchery stocks remain closely 
related to the naturally-spawned populations and maintain local genetic 
distinctiveness of populations within the DPS. Habitat conservation 
plans (HCPs, with the Chelan and Douglas Public Utility Districts) and 
binding mitigation agreements ensure that these programs will have 
secure funding and will continue into the future. These hatchery 
programs have undergone ESA section 7 consultation to ensure that they 
do not jeopardize the recovery of the DPS, and they have received ESA 
section 10 permits for production through 2007. Annual reports and 
other specific information reporting requirements are used to ensure 
that the terms and conditions as specified by NMFS are followed. These 
programs, through adherence to best professional practices, have not 
experienced disease outbreaks or other catastrophic losses.
    Our assessment of the effects of artificial propagation on the 
DPS's extinction risk concluded that hatchery programs collectively 
mitigate the immediacy of extinction risk for the Upper Columbia River 
steelhead DPS in the short term, but that the contribution of these 
programs in the foreseeable future is uncertain (NMFS, 2004b, 2004c, 
2005a). The within-DPS hatchery programs substantially increase total 
DPS returns, particularly in the Methow Basin where hatchery-origin 
fish comprise on average 92 percent of all returns. The contribution of 
hatchery programs to the abundance of naturally spawning fish is 
uncertain. The contribution of DPS hatchery programs to the 
productivity of the DPS is uncertain. Large numbers of hatchery-origin 
steelhead in excess of broodstock needs and limited habitat capacity 
may decrease the DPS's overall productivity. With increasing DPS 
abundance in recent years, naturally spawning hatchery-origin fish have 
expanded the spawning areas being used. Since 1996 efforts are being 
undertaken to establish the Wenatchee Basin programs separately from 
the Wells steelhead hatchery program. These efforts are expected to 
increase the DPS's diversity over time. There is concern that the high 
proportion of Wells Hatchery steelhead spawning naturally in the Methow 
and Okanogan basins may pose risks to the DPS' diversity by decreasing 
local adaptation. The Omak Creek program, although small in size, 
likely will increase population diversity over time. There has been 
concern that the early spawning components of the Methow and Wenatchee 
hatchery programs may

[[Page 855]]

represent a risk to the DPS's diversity. The recent transfer of these 
early-run components to the Ringold Hatchery on the mainstem Columbia 
River will benefit the diversity of the tributary populations, while 
establishing a genetic reserve on the mainstem Columbia River. 
Collectively, artificial propagation programs benefit DPS abundance and 
spatial structure, but have neutral or uncertain effects on the DPS's 
productivity and diversity. Benefits of artificial propagation are more 
substantial in the Wenatchee Basin for abundance, spatial structure, 
and diversity. Informed by the BRT's findings (Good et al., 2005) and 
our assessment of the effects of artificial propagation programs (NMFS, 
2004b, 2004c, 2005a), the APEW concluded that the presence of the 
hatchery populations alters the BRT's conclusion, and that the Upper 
Columbia River steelhead DPS in-total is ``likely to become endangered 
in the foreseeable future'' (NMFS, 2004c).

Snake River Basin Steelhead DPS

    The paucity of information on adult spawning escapement for 
specific tributary production areas in the Snake River Basin steelhead 
DPS makes a quantitative assessment of viability difficult. All of the 
available data series are for Oregon populations; there are no data 
series available for the Idaho populations, which represent the 
majority of the DPS. Annual return estimates are limited to counts of 
the aggregate return over Lower Granite Dam, and spawner estimates for 
the Tucannon, Grande Ronde, and Imnaha Rivers. The 2001 Snake River 
steelhead return over Lower Granite Dam was substantially higher 
relative to the low levels seen in the 1990s; the recent 5-year mean 
abundance (14,768 natural returns) is approximately 28 percent of the 
interim recovery target level. The abundance surveyed in sections of 
the Grande Ronde, Imnaha, and Tucannon Rivers was generally improved in 
2001. However, the recent 5-year abundance and productivity trends were 
mixed. Five of the nine available data series exhibit positive long- 
and short-term trends in abundance. The majority of long-term 
population growth rate estimates for the nine available series were 
below replacement. The majority of short-term population growth rates 
were marginally above replacement, or well below replacement, depending 
upon the assumption made regarding the effectiveness of hatchery fish 
in contributing to natural production. The BRT noted that the DPS 
remains spatially well distributed in each of the six major geographic 
areas in the Snake River Basin. The BRT was concerned that the Snake 
River Basin steelhead ``B-run'' (steelhead with a 2-year ocean 
residence and larger body size that are believed to be produced only in 
the Clearwater, Middle Fork Salmon, and South Fork Salmon Rivers) was 
particularly depressed. The BRT was also concerned about the 
predominance of hatchery produced fish in this DPS, the inferred 
displacement of naturally produced fish by hatchery-origin fish, and 
the potential impacts on the DPS's diversity. High straying rates 
exhibited by some hatchery programs generated concern about the 
possible homogenization of population structure and diversity within 
the Snake River Basin DPS. Recent efforts to improve the use of local 
broodstocks and release hatchery fish away from natural production 
areas, however, are encouraging. The BRT found moderate risks to the 
DPS's abundance, productivity, and diversity, and comparatively lower 
risk to the DPS's spatial structure. Informed by this risk assessment, 
the majority opinion of the BRT was that the naturally spawned 
component of the Snake River Basin steelhead DPS is ``likely to become 
endangered within the foreseeable future.'' The minority BRT opinion 
was split between the ``in danger of extinction'' and ``not in danger 
of extinction or likely to become endangered within the foreseeable 
future'' categories.
    There are six artificial propagation programs considered to be part 
of the Snake River Basin steelhead DPS (Table 1). Our assessment of the 
effects of artificial propagation concluded that these hatchery 
programs collectively do not substantially reduce the extinction risk 
of the DPS (NMFS, 2004b, 2004c, 2005a). Informed by the BRT's findings 
(Good et al., 2005) and our assessment of the effects of artificial 
propagation programs on the DPS's viability (NMFS, 2004b, 2004c, 
2005a), the APEW concluded that the presence of the hatchery 
populations does not alter the BRT's conclusion that the Snake River 
Basin steelhead DPS is ``likely to become endangered in the foreseeable 
future'' (NMFS, 2004c).

Efforts Being Made To Protect West Coast Steelhead

    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. Therefore, in making ESA listing determinations, 
we first assess a DPS's level of extinction risk and identify factors 
that have led to its decline. We then assess existing efforts being 
made to protect the species to determine if those measures ameliorate 
the risks faced by the DPS.
    In the proposed rule addressing 10 O. mykiss ESUs, we reviewed 
protective efforts ranging in scope from regional conservation 
strategies to local watershed initiatives (see 69 FR 33102; June 14, 
2004). We conclude that protective efforts collectively do not provide 
empirical evidence or sufficient certainty of implementation and 
effectiveness to substantially ameliorate the level of assessed 
extinction risk for all but one of the steelhead DPSs under 
consideration. For the California Central Valley, we concluded that 
conservation benefits from the CALFED, State Water Project, Central 
Valley Project, and California Endangered Species Act provide 
sufficient certainty of implementation and effectiveness to mitigate 
the immediacy of extinction risk facing the Central Valley steelhead 
DPS (see the June 14, 2004, proposed rule for a summary of the relevant 
protective efforts (69 FR 33102, at 33144) benefitting the California 
Central Valley DPS and a description of the proposed finding that these 
efforts mitigate the DPS's level of extinction risk (69 FR 33102, at 
33163.))
    While we acknowledge that many of the ongoing protective efforts 
for the other DPSs are likely to promote their conservation, many 
efforts are relatively recent, have yet to indicate their 
effectiveness, and few address conservation needs at scales sufficient 
to conserve entire DPSs. We will continue to encourage these and other 
future protective efforts, and we will continue to collaborate with 
tribal, Federal, state, and local entities to promote and improve 
efforts being made to protect the species.

Final Listing Determinations

Consideration of Factors Relevant to Listing

    Section 4(a)(1) of the ESA and NMFS'' implementing regulations (50 
CFR part 424) state that we must determine if a species is endangered 
or threatened because of any one or a combination of the following 
factors: (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) overutilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or man-made factors affecting its continued 
existence. We have previously detailed the impacts of

[[Page 856]]

various factors contributing to the decline of West Coast steelhead as 
part of our prior listing determinations (65 FR 36074, June 7, 2000; 64 
FR 14517, March 25, 1999; 63 FR 42588, August 10, 1998; 63 FR 13347, 
March 19, 1998; 62 FR 43937, August 18, 1997), as well as in supporting 
technical reports (e.g., Busby et al., 1996; NMFS, 1996). There is no 
single factor solely responsible for the decline of West Coast 
steelhead stocks, and our prior listing determinations and technical 
reports concluded that all of the factors identified in section 4(a)(1) 
have played a role. Of these factors, the destruction and modification 
of habitat, overutilization for recreational purposes, and natural and 
man-made factors have been identified as the primary causes for the 
decline of West Coast steelhead. The following discussion briefly 
summarizes findings regarding threats across the range of West Coast 
steelhead. While these factors have been treated here in general terms, 
it is important to underscore that impacts from certain factors are 
more acute for specific DPSs.
1. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range
    West Coast steelhead have experienced declines in the past several 
decades as a result of forestry, agricultural, mining, and urbanization 
activities that have resulted in the loss, degradation, simplification, 
and fragmentation of habitat. Water storage, withdrawal, conveyance, 
and diversions for agriculture, flood control, domestic, and hydropower 
purposes (especially in the Columbia River and Sacramento-San Joaquin 
River Basins) have greatly reduced or eliminated historically 
accessible habitat. Modification of natural flow regimes have resulted 
in increased water temperatures, changes in fish community structures, 
depleted flow necessary for migration, spawning, rearing, flushing of 
sediments from spawning gravels, reduced gravel recruitment and the 
transport of large woody debris. In addition to these indirect effects 
from dams and other water control structures, they have also resulted 
in increased direct mortality of adult and juvenile steelhead.
    Natural resource use and extraction leading to habitat modification 
can have significant direct and indirect impacts to steelhead 
populations. Land use activities associated with logging, road 
construction, urban development, mining, agriculture, ranching, and 
recreation have significantly altered steelhead habitat quantity and 
quality. Associated impacts of these activities include: alteration of 
streambank and channel morphology; alteration of ambient stream water 
temperatures; degradation of water quality; elimination of spawning and 
rearing habitats; fragmentation of available habitats; elimination of 
downstream recruitment of spawning gravels and large woody debris; 
removal of riparian vegetation resulting in increased stream bank 
erosion; and increased sedimentation input into spawning and rearing 
areas resulting in the loss of channel complexity, pool habitat, 
suitable gravel substrate, and large woody debris. Studies indicate 
that in most western states, about 80 to 90 percent of the historic 
riparian habitat has been eliminated. Wetland and estuarine habitats 
have been reduced by approximately one-third in Washington and Oregon, 
and over 90 percent in California (Dahl, 1990; Jensen et al., 1990; 
Barbour et al., 1991; Tiner, 1991; Reynolds et al., 1993). The 
condition of the remaining wetland habitats for West Coast steelhead is 
largely degraded, with many wetland areas at continued risk of loss or 
further degradation.
    The loss and degradation of habitats and flow conditions has been 
identified as a threat to each of the 10 steelhead DPSs addressed in 
this notice. Although many historically harmful practices have been 
halted, much of the historical damage to habitats limiting West Coast 
steelhead stocks remains to be addressed, and the necessary restoration 
activities will likely require decades. Additionally, in some areas 
certain land-use practices continue to pose risks to the survival of 
local steelhead populations.
2. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes
    Steelhead have been, and continue to be, an important recreational 
fishery throughout their range. There are no commercial fisheries for 
steelhead in the ocean, and they are only rarely taken there in 
fisheries targeting other species. The primary fisheries taking 
steelhead are tribal fisheries and (public) recreational fisheries. 
More than thirty Native American tribes have guaranteed rights to fish 
for steelhead under treaties with the U.S. Government. These tribal 
fisheries serve ceremonial and subsistence and commercial purposes. 
Recreational fishing for hatchery-origin steelhead is extremely popular 
along the West Coast. These fisheries are highly selective, and only 
visibly marked surplus hatchery-origin fish may be harvested.
    As much as 50 percent of all fish in a given run can be intercepted 
in such fisheries. Mortality rates for naturally spawned fish that are 
caught and released in these fisheries are presumed to be low, but the 
actual rates are unknown, as is the level of illegal retention. In the 
Columbia River, steelhead fishing is regulated under Federal, tribal 
and state agreement. Under these agreements the total harvest rate for 
steelhead intended to spawn naturally has been limited to approximately 
10 percent, except for Idaho B run steelhead where harvest rates are 
limited to below 20 percent (NMFS, 2005b). We have previously concluded 
that harvest is a major limiting factor for three of the 10 DPSs under 
review (NMFS, 2005c): the Snake River Basin, South-Central California 
Coast, and Southern California steelhead DPSs.
3. Disease or Predation
    Infectious diseases constitute one of many factors that can 
influence adult and juvenile steelhead survival. Steelhead are exposed 
to numerous bacterial, protozoan, viral, and parasitic organisms in 
spawning and rearing areas, hatcheries, migratory routes, and marine 
environments. Specific diseases, such as bacterial kidney disease 
(BKD), ceratomyxosis, columnaris, furunculosis, infectious 
hematopoietic necrosis virus, redmouth and black spot disease, 
erythrocytic inclusion body syndrome, and whirling disease, among 
others, are present and are known to affect steelhead (Rucker et al., 
1953; Wood, 1979; Leek, 1987; Foott et al., 1994). Very little current 
or historical information exists to quantify changes in infection 
levels and mortality rates attributable to these diseases for 
steelhead. However, studies have shown that naturally spawned fish tend 
to be less susceptible to pathogens than hatchery-reared fish (Buchanon 
et al., 1983; Sanders et al., 1992). Native salmon populations have co-
evolved with specific communities of these organisms, but the 
widespread use of artificial propagation has introduced exotic 
organisms not historically present in a particular watershed. Habitat 
conditions such as low water flows and high temperatures can exacerbate 
susceptibility to infectious diseases. Aggressive hatchery reforms 
implemented in some areas have reduced the magnitude and distribution 
of hatchery fish releases, and consequently the interactions between 
hatchery- and natural-origin fish and the potential transmission of 
infectious diseases. Additionally, regulations controlling hatchery 
effluent discharges into streams have reduced the potential

[[Page 857]]

of pathogens being released into steelhead habitats.
    Introduction of non-native species and modification of habitat have 
resulted in increased predator populations and salmonid predation in 
numerous river systems. Marine predation is also of concern in some 
areas, given the dwindling steelhead run-size in recent years. In 
general, predation rates on steelhead are considered by most 
investigators to be an insignificant contribution to the large declines 
observed in west coast populations. However, predation may 
significantly influence salmonid abundance in some local populations 
when other prey are absent and physical habitat conditions lead to the 
concentration of adults and juveniles. There is insufficient available 
information to suggest that the DPSs under consideration are in danger 
of extinction, or likely to become so in the foreseeable future, 
because of disease or predation.
4. The Inadequacy of Existing Regulatory Mechanisms
    We reviewed existing regulatory mechanisms in the proposed rule as 
part of our evaluation of efforts being made to protect West Coast 
salmonids (69 FR 33102, at 33143; June 14, 2004). We noted several 
Federal, state, and local regulatory programs that have been 
successfully implemented to substantially reduce historical risks to 
West Coast steelhead DPSs (for example, the elimination of stocking 
hatchery rainbow trout in anadromous waters, and the conversion of many 
in-river recreational fisheries to catch-and-release only). The reader 
is referred to the proposed rule for a regional and state-by-state 
summary of these regulatory mechanisms. In particular, changes in 
regulations governing steelhead fisheries have significantly reduced 
the risks for many of the steelhead DPSs under consideration, although 
some DPSs continue to be harvested at significant rates. In addition, 
although there have been efforts to improve habitat conditions across 
the range of most of the DPSs under consideration, land use regulations 
across their range do not address continued threats from habitat 
degradation. Many of the DPSs are in danger of extinction, or 
threatened with endangerment, as a result of the inadequacy of existing 
regulatory mechanisms.
5. Other Natural or Manmade Factors Affecting Its Continued Existence
    Variability in natural environmental conditions has both masked and 
exacerbated the problems associated with degraded and altered riverine 
and estuarine habitats. Floods and persistent drought conditions have 
reduced already limited spawning, rearing, and migration habitats. 
Furthermore, El Nino events and periods of unfavorable ocean-climate 
conditions can threaten the survival of steelhead populations already 
reduced to low abundance levels due to the loss and degradation of 
freshwater and estuarine habitats. However, periods of favorable ocean 
productivity and high marine survival can offset poor habitat 
conditions elsewhere and result in dramatic increases in population 
abundance and productivity (as was observed for some DPSs in recent 
years).
    In an attempt to mitigate for lost habitat and reduced fisheries, 
extensive hatchery programs have been implemented throughout the range 
of steelhead on the West Coast. Most hatchery programs are designed to 
compensate for degraded habitat capacity and productivity, however, 
recently some hatcheries have been designed to assist in the 
conservation and recovery of natural populations. While some of the 
programs intended for mitigation purposes have been successful in 
providing fishing opportunities, many such programs have posed risks to 
the genetic diversity and long-term reproductive fitness of local 
natural steelhead populations. Potential threats to natural steelhead 
posed by hatchery programs include: excessive mortality of natural 
steelhead in fisheries targeting hatchery-origin steelhead; competition 
for prey and habitat; predation by hatchery-origin fish on younger 
natural fish; genetic introgression by hatchery-origin fish that spawn 
naturally and interbreed with local natural populations; disease 
transmission; degraded water quality and quantity, and impediments to 
fish passage imposed by hatchery facilities. Aggressive hatchery reform 
in some areas has halted historically harmful artificial propagation 
practices, and the use of conservation hatcheries may play an important 
role, under appropriate circumstances, in reestablishing depressed West 
Coast steelhead stocks. We have previously concluded that harmful 
hatchery practices still represent a major threat for the Southern 
California, California Central Valley, South-Central California Coast, 
Upper Willamette River, and Snake River Basin steelhead DPSs (NMFS, 
2005c).

Final Conclusions Regarding ESA Listing Status

    After reviewing the public comments received, independent expert 
reviewer comments, and other data available to us, we find that there 
is no substantive information that would cause us to reconsider the 
extinction risk assessments of the BRT (Good et al., 2005) or the APEW 
Report's (NMFS, 2004c) conclusions regarding the contributions of 
hatchery programs to the viability of the subject DPSs. We conclude 
that the Southern California steelhead DPS is in danger of extinction 
throughout all or a significant portion of its range, and warrants 
listing as an endangered species. We conclude that the South-Central 
California Coast, Central California Coast, California Central Valley, 
Northern California, Lower Columbia River, Upper Willamette River, 
Middle Columbia River, Upper Columbia River, and Snake River Basin 
steelhead DPSs are likely to become endangered within the foreseeable 
future throughout all or a significant portion of their ranges. 
Accordingly, these nine ESUs warrant listing as threatened species.

Prohibitions and Protective Regulations

    ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply 
to all species listed as endangered. In the case of threatened species, 
section 4(d) of the ESA leaves it to the Secretary's discretion whether 
and to what extent to extend the statutory 9(a) ``take'' prohibitions, 
and directs the agency to issue regulations it considers necessary and 
advisable for the conservation of the species. The 4(d) protective 
regulations may prohibit, with respect to threatened species, some or 
all of the acts which section 9(a) of the ESA prohibits with respect to 
endangered species. These 9(a) prohibitions and 4(d) regulations apply 
to all individuals, organizations, and agencies subject to U.S. 
jurisdiction.
    Since 1997 we have promulgated a total of 29 ``limits'' to the ESA 
Section 9(a) ``take'' prohibitions for 19 threatened salmon and 
steelhead ESUs (62 FR 38479, July 18, 1997; 65 FR 42422, July 10, 2000; 
65 FR 42485, July 10, 2000; 67 FR 1116, January 9, 2002). On June 28, 
2005, as part of the final listing determinations for 16 West Coast 
salmon ESUs, we amended and streamlined the previously promulgated 4(d) 
protective regulations for threatened salmon and steelhead (70 FR 
37160). We finalized an amendment to provide the necessary flexibility 
to ensure that fisheries and artificial propagation programs are 
managed consistently with the conservation needs of threatened salmon 
and steelhead. Under this change the section 4(d) protections apply to 
natural and hatchery fish with an intact adipose fin, but not to listed 
hatchery fish that have

[[Page 858]]

had their adipose fin removed prior to release into the wild. 
Additionally, we made several simplifying and clarifying changes to the 
ESA 4(d) protective regulations including updating an expired limit 
(section 223.203(b)(2)) providing a temporary exemption for ongoing 
research and enhancement activities with pending applications through 
December 2005, and extending the same set of 14 limits to all 
threatened salmon and steelhead. With respect to steelhead, the amended 
June 2005 4(d) rule applies to the steelhead being listed as threatened 
in the following eight DPSs: The South-Central California, Central 
California Coast, California Central Valley, Northern California, Upper 
Willamette River, Lower Columbia River, Middle Columbia River, and 
Snake River Basin steelhead DPSs.

Protective Regulations for the Upper Columbia River Steelhead DPS

    The Upper Columbia River steelhead ESU is currently listed as 
endangered and subject to the section 9(a) take prohibitions. With the 
new listing of the Upper Columbia River steelhead DPS as a threatened 
species, the existing 4(d) protective regulations do not apply to this 
DPS. As part of the June 14, 2004, proposed threatened determination 
for the Upper Columbia River O. mykiss ESU (69 FR 33102), we also 
proposed extending to this ESU the amended 4(d) protective regulations 
that were subsequently finalized in June 2005 (70 FR 37160; June 28, 
2005). We will finalize the protective regulations for the threatened 
Upper Columbia River steelhead DPS in a subsequent Federal Register 
notice.
Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA
    We and the FWS published in the Federal Register on July 1, 1994 
(59 FR 34272), a policy that we shall identify, to the maximum extent 
practicable at the time a species is listed, those activities that 
would or would not constitute a violation of section 9 of the ESA. The 
intent of this policy is to increase public awareness of the effect of 
this listing on proposed and ongoing activities within the species' 
range. At the time of the final rule, we must identify to the extent 
known specific activities that will not be considered likely to result 
in violation of section 9, as well as activities that will be 
considered likely to result in violation. We believe that, based on the 
best available information, the following actions will not result in a 
violation of section 9:
    1. Possession of steelhead from any DPS that is listed as 
threatened or endangered that are acquired lawfully by permit issued by 
us pursuant to section 10 of the ESA, or by the terms of an incidental 
take statement issued pursuant to section 7 of the ESA; or
    2. Federally funded or approved projects that involve activities 
such as silviculture, grazing, mining, road construction, dam 
construction and operation, discharge of fill material, stream 
channelization or diversion for which section 7 consultation has been 
completed, and when activities are conducted in accordance with any 
terms and conditions provided by us in an incidental take statement 
accompanying a biological opinion.
    Activities that we believe could potentially ``harm'' steelhead 
(see 50 CFR 222.102) in the listed DPSs, and result in a violation of 
the section 9 take prohibition include, but are not limited to:
    1. Land-use activities that adversely affect steelhead habitats for 
any listed DPS (e.g., logging, grazing, farming, urban development, 
road construction in riparian areas and areas susceptible to mass 
wasting and surface erosion);
    2. Destruction/alteration of the steelhead habitats for any listed 
DPS, such as removal of large woody debris and ``'sinker logs''' or 
riparian shade canopy, dredging, discharge of fill material, draining, 
ditching, diverting, blocking, or altering stream channels or surface 
or ground water flow;
    3. Discharges or dumping of toxic chemicals or other pollutants 
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting 
listed steelhead DPSs;
    4. Violation of discharge permits;
    5. Application of pesticides affecting water quality or riparian 
areas for listed steelhead DPSs;
    6. Interstate and foreign commerce of steelhead from any of the 
listed DPSs and import/export of steelhead from any listed DPS without 
a threatened or endangered species permit;
    7. Collecting or handling of steelhead from any of the listed DPSs. 
Permits to conduct these activities are available for purposes of 
scientific research or to enhance the conservation or survival of the 
species; or
    8. Introduction of non-native species likely to prey on steelhead 
from any of the listed DPSs or displace them from their habitats.
    This list is not exhaustive. It is intended to provide some 
examples of the types of activities that might be considered by us as 
constituting a take of steelhead in any of the listed DPSs under the 
ESA and its regulations. Questions regarding whether specific 
activities will constitute a violation of the section 9 take 
prohibitions and general inquiries regarding prohibitions and permits, 
should be directed to us (see ADDRESSES).

Effective Date of the Final Listing Determinations

    Given the cultural, scientific, and recreational importance of West 
Coast steelhead, and the broad geographic range of these DPSs, we 
recognize that numerous parties may be affected by these final listing 
determinations. Therefore, to permit an orderly implementation of the 
consultation requirements associated with these determinations, the 
final listings will take effect on February 6, 2006.

Critical Habitat

    On September 2, 2005, we issued final critical habitat designations 
for 19 West Coast salmon and steelhead ESUs, including the Southern 
California, South-Central California, Central California Coast, 
California Central Valley, Northern California, Upper Willamette River, 
Lower Columbia River, Middle Columbia River, Upper Columbia River, and 
Snake River Basin steelhead ESUs (70 FR 52488 and 52630). At the time 
of these final critical habitat designations for steelhead we had 
proposed including co-occurring resident O. mykiss as part of the ESUs; 
however, a Consent Decree governing the schedule for the final 
designations required that they be completed for the ESUs as they were 
listed as of August 15, 2005. As noted above in the ``Background'' 
section, the existing listings for steelhead ESUs promulgated between 
1997-2000 include only the anadromous life-history form (for more 
detailed ESU-specific information the reader is referred to the summary 
of, and Federal Register citations for, the previous steelhead listing 
determinations provided in 69 FR 33102, June 14, 2004). Accordingly, 
the final critical habitat designations are restricted to the species' 
anadromous range, and are coextensive with the steelhead-only DPS 
delineations described in this notice. Whereas the final critical 
habitat designations may have warranted revision for the proposed O. 
mykiss ESUs including both the resident and anadromous life-history 
forms, the final critical habitat designations do not require revision 
for the proposed steelhead-only DPSs (NMFS, 2005d).

[[Page 859]]

Classification

National Environmental Policy Act (NEPA)

    ESA listing decisions are exempt from the requirements to prepare 
an environmental assessment or environmental impact statement under the 
NEPA. See NOAA Administrative Order 216-6.03(e)(1) and Pacific Legal 
Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981). Thus, we have 
determined that the final listing determinations for the West Coast 
steelhead DPSs described in this document are exempt from the 
requirements of the NEPA of 1969.

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the final listing 
determinations described in this notice. In addition, this rule is 
exempt from review under E.O. 12866. This final determination does not 
contain a collection-of-information requirement for the purposes of the 
Paperwork Reduction Act.

E.O. 13084--Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. The final listing 
determinations described in this document do not impose substantial 
direct compliance costs on the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of E.O. 
13084 do not apply to this final listing determination. Nonetheless, we 
will continue to inform potentially affected tribal governments, 
solicit their input, and coordinate on future management actions.

E.O. 13132--Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this final listing determination. In 
keeping with the intent of the Administration and Congress to provide 
continuing and meaningful dialogue on issues of mutual state and 
Federal interest, the proposed rule was provided to the relevant 
agencies in each state in which the subject species occurs, and these 
agencies were invited to comment.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES), or can be obtained from the Internet at: 
http://www.nwr.noaa.gov.

List of Subjects in 50 CFR Parts 223 and 224

    Endangered and threatened species.

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

    Dated: December 22, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 223 and 224 are 
amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.12 also 
issued under 16 U.S.C. 1361 et seq.

0
2. In Sec.  223.102, revise paragraphs (a)(14) though (a)(21) and add 
paragraph (a)(22) to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (a) * * *

----------------------------------------------------------------------------------------------------------------
                   Species \1\                                               Citation(s) for      Citation for
--------------------------------------------------      Where listed             listing        critical habitat
          Common name            Scientific name                            determination(s)      designation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(14) South-Central California   Oncorhynchus       U.S.A., CA, Distinct    62 FR 43937, Aug    70 FR 52488;
 Coast Steelhead.                mykiss.            Population Segment      18, 1997, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams from the
                                                    Pajaro River
                                                    (inclusive) to, but
                                                    not including the
                                                    Santa Maria River,
                                                    California.

[[Page 860]]

 
(15) Central California Coast   Oncorhynchus       U.S.A., CA, Distinct    62 FR 43937, Aug.   70 FR 52488;
 Steelhead.                      mykiss.            Population Segment      18, 1997, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in California streams
                                                    from the Russian
                                                    River (inclusive) to
                                                    Aptos Creek
                                                    (inclusive), and the
                                                    drainages of San
                                                    Francisco, San Pablo,
                                                    and Suisun Bays
                                                    eastward to Chipps
                                                    Island at the
                                                    confluence of the
                                                    Sacramento and San
                                                    Joaquin Rivers.
                                                    Tributary streams to
                                                    Suisun Marsh
                                                    including Suisun
                                                    Creek, Green Valley
                                                    Creek, and an unnamed
                                                    tributary to Cordelia
                                                    Slough (commonly
                                                    referred to as Red
                                                    Top Creek), excluding
                                                    the Sacramento-San
                                                    Joaquin River Basin,
                                                    as well as two
                                                    artificial
                                                    propagation programs:
                                                    the Don Clausen Fish
                                                    Hatchery, and
                                                    Kingfisher Flat
                                                    Hatchery/Scott Creek
                                                    (Monterey Bay Salmon
                                                    and Trout Project)
                                                    steelhead hatchery
                                                    programs.
(16) California Central Valley  Oncorhynchus       U.S.A., CA, Distinct    63 FR 13347; Mar.   70 FR 52488;
 Steelhead.                      mykiss.            Population Segment      19, 1998, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in the Sacramento and
                                                    San Joaquin Rivers
                                                    and their
                                                    tributaries,
                                                    excluding steelhead
                                                    from San Francisco
                                                    and San Pablo Bays
                                                    and their
                                                    tributaries, as well
                                                    as two artificial
                                                    propagation programs:
                                                    the Coleman NFH, and
                                                    Feather River
                                                    Hatchery steelhead
                                                    hatchery programs.
(17) Northern California        Oncorhynchus       U.S.A., CA, Distinct    65 FR 36074, June   70 FR 52488;
 Steelhead.                      mykiss.            Population Segment      7, 2000, Jan. 5,    September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in California coastal
                                                    river basins from
                                                    Redwood Creek
                                                    southward to, but not
                                                    including, the
                                                    Russian River, as
                                                    well as two
                                                    artificial
                                                    propagation programs:
                                                    the Yager Creek
                                                    Hatchery, and North
                                                    Fork Gualala River
                                                    Hatchery (Gualala
                                                    River Steelhead
                                                    Project) steelhead
                                                    hatchery programs.
(18) Upper Willamette River     Oncorhynchus       U.S.A., OR, Distinct    62 FR 43937, Aug.   70 FR 52630;
 Steelhead.                      mykiss.            Population Segment      18, 1997, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in the Willamette
                                                    River, Oregon, and
                                                    its tributaries
                                                    upstream from
                                                    Willamette Falls to
                                                    the Calapooia River
                                                    (inclusive).
(19) Lower Columbia River       Oncorhynchus       U.S.A., OR, WA,         63 FR 13347, Mar.   70 FR 52630;
 Steelhead.                      mykiss.            Distinct Population     19, 1998, Jan. 5,   September 2,
                                                    Segment including all   2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams and
                                                    tributaries to the
                                                    Columbia River
                                                    between the Cowlitz
                                                    and Wind Rivers,
                                                    Washington
                                                    (inclusive), and the
                                                    Willamette and Hood
                                                    Rivers, Oregon
                                                    (inclusive), as well
                                                    as ten artificial
                                                    propagation programs:
                                                    the Cowlitz Trout
                                                    Hatchery (in the
                                                    Cispus, Upper
                                                    Cowlitz, Lower
                                                    Cowlitz, and Tilton
                                                    Rivers), Kalama River
                                                    Wild (winter- and
                                                    summer-run),
                                                    Clackamas Hatchery,
                                                    Sandy Hatchery, and
                                                    Hood River (winter-
                                                    and summer-run)
                                                    steelhead hatchery
                                                    programs. Excluded
                                                    are O. mykiss
                                                    populations in the
                                                    upper Willamette
                                                    River Basin above
                                                    Willamette Falls,
                                                    Oregon, and from the
                                                    Little and Big White
                                                    Salmon Rivers,
                                                    Washington.

[[Page 861]]

 
(20) Middle Columbia River      Oncorhynchus       U.S.A., OR, WA,         57 FR 14517, Mar.   70 FR 52630;
 Steelhead.                      mykiss.            Distinct Population     25, 1999, Jan. 5,   September 2,
                                                    Segment including all   2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams from above
                                                    the Wind River,
                                                    Washington, and the
                                                    Hood River, Oregon
                                                    (exclusive), upstream
                                                    to, and including,
                                                    the Yakima River,
                                                    Washington, excluding
                                                    O. mykiss from the
                                                    Snake River Basin, as
                                                    well seven artificial
                                                    propagation programs:
                                                    the Touchet River
                                                    Endemic, Yakima River
                                                    Kelt Reconditioning
                                                    Program (in Satus
                                                    Creek, Toppenish
                                                    Creek, Naches River,
                                                    and Upper Yakima
                                                    River), Umatilla
                                                    River, and the
                                                    Deschutes River
                                                    steelhead hatchery
                                                    programs.
(21) Snake River Basin          Oncorhynchus       U.S.A., OR, WA, ID,     62 FR 43937, Aug.   70 FR 52630;
 Steelhead.                      mykiss.            Distinct Population     18, 1997, Jan. 5,   September 2,
                                                    Segment including all   2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams in the
                                                    Snake River Basin of
                                                    southeast Washington,
                                                    northeast Oregon, and
                                                    Idaho, as well six
                                                    artificial
                                                    propagation programs:
                                                    the Tucannon River,
                                                    Dworshak NFH, Lolo
                                                    Creek, North Fork
                                                    Clearwater, East Fork
                                                    Salmon River, and the
                                                    Little Sheep Creek/
                                                    Imnaha River Hatchery
                                                    steelhead hatchery
                                                    programs.
(22) Upper Columbia River       Oncorhynchus       U.S.A., WA, Distinct    62 FR 43937, Aug.   70 FR 52630;
 Steelhead.                      mykiss.            Population Segment      18, 1997, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams in the
                                                    Columbia River Basin
                                                    upstream from the
                                                    Yakima River,
                                                    Washington, to the
                                                    U.S.-Canada border,
                                                    as well six
                                                    artificial
                                                    propagation programs:
                                                    the Wenatchee River,
                                                    Wells Hatchery (in
                                                    the Methow and
                                                    Okanogan Rivers),
                                                    Winthrop NFH, Omak
                                                    Creek, and the
                                                    Ringold steelhead
                                                    hatchery programs.
----------------------------------------------------------------------------------------------------------------
\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).

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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.

0
4. Amend the table in Sec.  224.101(a) by:
0
a. Removing the row with the entry for Upper Columbia River steelhead; 
and
0
b. Revising the entry for Southern California Steelhead to read as 
follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) * * *

----------------------------------------------------------------------------------------------------------------
                   Species \1\                                               Citation(s) for      Citation for
--------------------------------------------------      Where listed             listing        critical habitat
          Common name            Scientific name                            determination(s)      designation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Southern California Steelhead.  Oncorhynchus       U.S.A., CA, Distinct    62 FR 43937, Aug.   70 FR 52488;
                                 mykiss.            Population Segment      18, 1997, Jan. 5,   September 2,
                                                    including all           2006.               2005.
                                                    naturally spawned
                                                    anadromous O. mykiss
                                                    (steelhead)
                                                    populations below
                                                    natural and manmade
                                                    impassable barriers
                                                    in streams from the
                                                    Santa Maria River,
                                                    San Luis Obispo
                                                    County, California,
                                                    (inclusive) to the
                                                    U.S.-Mexico Border.
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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 862]]

* * * * *
[FR Doc. 06-47 Filed 1-4-06; 8:45 am]
BILLING CODE 3510-22-P