[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Rules and Regulations]
[Pages 29344-29387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14269]



[[Page 29343]]

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

Part III





Department of the Interior





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



Fish and Wildlife Service



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





Department of Commerce





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



National Oceanic and Atmospheric Administration



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



50 CFR Parts 17 and 224



Endangered and Threatened Species; Determination of Endangered Status 
for the Gulf of Maine Distinct Population Segment of Atlantic Salmon; 
Final Rule

  Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules 
and Regulations  

[[Page 29344]]


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

DEPARTMENT OF INTERIOR

Fish and Wildlife Service

50 CFR Part 17

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0808191116-9709-02]
RIN 0648-XJ93


Endangered and Threatened Species; Determination of Endangered 
Status for the Gulf of Maine Distinct Population Segment of Atlantic 
Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce; United States Fish and 
Wildlife Service (USFWS), Interior.

ACTION: Final rule.

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

SUMMARY: We (NMFS and USFWS, collectively referred to as the Services) 
have determined that naturally spawned and conservation hatchery 
populations of anadromous Atlantic salmon (Salmo salar) whose 
freshwater range occurs in the watersheds from the Androscoggin River 
northward along the Maine coast to the Dennys River, including those 
that were already listed in November 2000, constitute a distinct 
population segment (DPS) and hence a ``species'' for listing. We have 
determined that the Gulf of Maine (GOM) DPS warrants listing as 
endangered under the Endangered Species Act (ESA). Critical habitat for 
the GOM DPS will be designated in a subsequent Federal Register notice.

DATES: This rule is effective July 20, 2009.

ADDRESSES: Comments and materials received, as well as supporting 
scientific information used in the preparation of this rule, will be 
available for public inspection, by appointment, during normal business 
hours at: National Marine Fisheries Service, Northeast Regional Office, 
55 Great Republic Drive, Gloucester MA 01930. An electronic copy of 
this final rule is available at: http://www.nero.noaa.gov/prot_res/altsalmon/. Public comments received can be viewed at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rory Saunders, NMFS, at (207) 866-
4049; Jessica Pruden, NMFS, at (978) 282-8482; Marta Nammack, NMFS, at 
(301) 713-1401; Lori Nordstrom, USFWS, at (207) 827-5938 ext. 13. 
Persons who use a Telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 
hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Background

    We issued a final rule listing the GOM DPS of Atlantic salmon as 
endangered on November 17, 2000 (65 FR 69469). The GOM DPS was defined 
as all naturally reproducing wild populations and those river-specific 
hatchery populations of Atlantic salmon having historical, river-
specific characteristics found north of and including tributaries of 
the lower Kennebec River to, but not including, the mouth of the St. 
Croix River at the U.S.-Canada border. In the final rule listing the 
GOM DPS, we did not include fish that inhabit the mainstem and 
tributaries of the Penobscot River above the site of the former Bangor 
Dam, the upper Kennebec River, or the Androscoggin River within the GOM 
DPS (65 FR 69469; November 17, 2000).
    In late 2003, we assembled the 2005 Biological Review Team (BRT) 
composed of biologists from the Maine Atlantic Salmon Commission (now 
the Maine Department of Marine Resources Bureau of Sea-run Fisheries 
and Habitat (MDMR)), the Penobscot Indian Nation, and both Services. 
The 2005 BRT was charged with reviewing and evaluating all relevant 
scientific information relating to the current DPS delineation 
(including a detailed genetic characterization of the Penobscot 
population and data relevant to the appropriateness of including the 
upper Kennebec and Androscoggin rivers as part of the DPS), determining 
the conservation status of the populations not included in GOM DPS 
listed in 2000, and assessing their relationship to the GOM DPS as it 
was listed in 2000. The findings of the 2005 BRT, which are detailed in 
the 2006 Status Review for Anadromous Atlantic Salmon in the United 
States (Fay et al., 2006), addressed: the DPS delineation, including 
whether populations that were not included in the 2000 listing should 
be included in the GOM DPS; the extinction risks to the species; and 
the threats to the species. The 2006 Status Review (Fay et al., 2006) 
underwent peer review by experts in the fields of Atlantic salmon 
biology and genetics to ensure that it was based on the best available 
science. Each peer reviewer independently affirmed the major 
conclusions presented in Fay et al. (2006).

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. Therefore, the Services 
adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 
61 FR 4722) on February 7, 1996. The DPS policy requires the 
consideration of two elements when evaluating whether a vertebrate 
population segment may be considered a DPS under the ESA: (1) The 
discreteness of the population segment in relation to the remainder of 
the species or subspecies to which it belongs; and (2) the significance 
of the population segment to the species or subspecies to which it 
belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) It 
is markedly separated from other populations of the same taxon (an 
organism or group of organisms) as a consequence of physical, 
physiological, ecological, or behavioral factors. Quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation; or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the ESA 
(i.e., inadequate regulatory mechanisms).
    If a population segment is found to be discrete under one or more 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. This consideration may 
include, but is not limited to: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that the loss of the discrete population segment 
would result in a significant gap in the range of a taxon; (3) evidence 
that the discrete population segment represents the only surviving 
natural occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historic range; and (4) evidence that 
the discrete population segment differs markedly from other populations 
of the species in its genetic characteristics.

[[Page 29345]]

Listing Determinations Under the ESA

    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: (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) the inadequacy of 
existing regulatory mechanisms; or (5) 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 
and commercial data available 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.

Atlantic Salmon Life History

    Anadromous Atlantic salmon are a wide ranging species with a 
complex life history. The historic range of Atlantic salmon occurred on 
both sides of the North Atlantic: from Connecticut to Ungava Bay in the 
western Atlantic and from Portugal to Russia's White Sea in the Eastern 
Atlantic, including the Baltic Sea.
    For Atlantic salmon in the United States, juveniles typically spend 
2 years rearing in freshwater. Freshwater ecosystems provide spawning 
habitat and thermal refuge for adult Atlantic salmon; overwintering and 
rearing areas for eggs, fry, and parr; and migration corridors for 
smolts and adults (Bardonnet and Bagliniere, 2000). Adult Atlantic 
salmon typically spawn in early November. During spawning, the female 
uses its tail to scour or dig a series of nests in the gravel where the 
eggs are deposited; this series of nests is called a redd. The eggs 
remain in the redd until they hatch in late March or April. At this 
stage, they are referred to as alevin or sac fry. Alevins remain in the 
redd for about 6 more weeks and are nourished by their yolk sac until 
they emerge from the gravel in mid-May. At this time, they begin active 
feeding and are termed fry. Within days, the fry enter the parr stage, 
indicated by vertical bars (parr marks) on their sides that act as 
camouflage. Atlantic salmon parr are territorial; thus, most juvenile 
mortality is thought to be density dependent and mediated by habitat 
limitation (Gee et al., 1978; Legault, 2005). In particular, suitable 
overwintering habitat may limit the abundance of large parr prior to 
smoltification (Cunjak et al., 1998). Smoltification (the physiological 
and behavioral changes required for the transition to salt water) 
usually occurs at age 2 for most Atlantic salmon in Maine. The smolt 
emigration period is rather short and lasts only 2 to 3 weeks for each 
individual. During this brief emigration window, smolts must contend 
with rapidly changing osmoregulatory requirements (McCormick et al., 
1998) and predator assemblages (Mather, 1998). The freshwater stages in 
the life cycle of the Atlantic salmon have been well studied; however, 
much less information is available on Atlantic salmon at sea (Klemetsen 
et al., 2003).
    Gulf of Maine Atlantic salmon migrate vast distances in the open 
ocean to reach feeding areas in the Davis Strait between Labrador and 
Greenland, a distance over 4,000 km from their natal rivers (Danie et 
al., 1984; Meister, 1984). During their time at sea, Atlantic salmon 
undergo a period of rapid growth until they reach maturity and return 
to their natal river. Most Atlantic salmon (about 90 percent) from the 
Gulf of Maine return after spending 2 winters at sea; usually less than 
ten percent return after spending 1 winter at sea; roughly one percent 
of returning salmon are either repeat spawners or have spent 3 winters 
at sea (3 sea winter, or 3SW salmon) (Baum, 1997).
    In addition to anadromous Atlantic salmon, landlocked Atlantic 
salmon have been introduced to many lakes and rivers in Maine, though 
they are only native to four watersheds in the State: The Union, 
including Green Lake in Hancock County; the St. Croix, including West 
Grand Lake in Washington County; the Presumpscot, including Sebago Lake 
in Cumberland County; and the Penobscot, including Sebec Lake in 
Piscataquis County (Warner and Havey, 1985). There are certain lakes 
and rivers in Maine where landlocked salmon and anadromous salmon co-
exist. Recent genetic surveys have confirmed that little genetic 
exchange occurs between these two life history types (Spidle et al., 
2003; NMFS unpublished data).

Delineation of the Gulf of Maine Distinct Population Segment

    Fay et al. (2006) concluded that the DPS delineation that resulted 
in the 2000 listing designation (65 FR 69469; November 17, 2000) was 
largely appropriate, except in the case of large rivers that were 
excluded in the previous listing determination (Section 6.2.4 of Fay et 
al., 2006). As described below in the analyses of discreteness and 
significance of the population segment, Fay et al. (2006) concluded 
that the salmon currently inhabiting the larger rivers (Androscoggin, 
Kennebec, and Penobscot) are genetically similar to the rivers included 
in the GOM DPS as listed in 2000 (Spidle et al., 2003), have similar 
life history characteristics, and occur in the same zoogeographic 
region (section 6.3 of Fay et al., 2006). Further, the salmon 
populations inhabiting the large and small rivers from the Androscoggin 
River northward to the Dennys River differ genetically and in important 
life history characteristics from Atlantic salmon in adjacent portions 
of Canada (Spidle et al., 2003; Fay et al., 2006). Thus, Fay et al. 
(2006) (section 6.3.1.4 and 6.3.2.4) concluded that this group of 
populations (population segment) met both the discreteness and 
significance criteria of the DPS Policy and, therefore should be 
considered a DPS. Fay et al. (2006) recommended that the new GOM DPS 
include all anadromous Atlantic salmon whose freshwater range occurs in 
the watersheds from the Androscoggin River northward along the Maine 
coast to the Dennys River, including all associated conservation 
hatchery populations used to supplement these natural populations; 
currently, such conservation hatchery populations are maintained at 
Green Lake National Fish Hatchery (GLNFH) and Craig Brook National Fish 
Hatchery (CBNFH).

Delineating Geographic Boundaries

    Determining the precise boundary of the GOM DPS is difficult. In 
the case of the GOM DPS, we use a wide array of independent sources of 
information to make this determination. These sources of information 
include recent genetic analyses, life history, and zoogeography, among 
others. Recent genetic analyses, in particular, have clarified these 
distinctions, and we rely on them heavily in the following analysis. 
When using genetic data to make these delineations, it is important to 
note that extant populations must exist in order to make meaningful 
comparisons. In the case of determining the northern boundary of the 
GOM DPS, extant populations were used in genetic analyses and thus 
inform the determination. However, in the case of the determination of 
the southern boundary of the GOM DPS, many populations south of the 
Androscoggin are extirpated, and thus there are no genetic data 
available to make these

[[Page 29346]]

comparisons. For this reason we rely on additional information to 
delineate the southern boundary of the GOM DPS below.
    We relied on genetic data to inform our determination on the 
northern terminus of the GOM DPS. At a broad scale, it is clear that 
there are substantial differences in genetic structure between U.S. and 
Canadian populations of Atlantic salmon (Spidle et al., 2003). However, 
there are no genetic data on the wild salmon that once occurred in the 
St. Croix watershed along the U.S.-Canada border. As listed in 2000, 
the northern terminus of the GOM DPS was the U.S.-Canada border at the 
St. Croix River, but as described on page 54 of Fay et al. (2006), the 
best available science suggests that the St. Croix groups with other 
Canadian rivers. Genetic analyses found that salmon in the Dennys River 
are more similar to populations in the United States than to Canadian 
salmon populations that are geographically proximate to the Dennys 
(Spidle et al., 2003). Therefore, we find that the northern terminus of 
the GOM DPS is the Dennys River watershed, rather than the St. Croix.
    We determined the southern terminus of the GOM DPS to be the 
Androscoggin River based on zoogeography rather than genetics because 
there are extremely few Atlantic salmon in the rivers on which to base 
genetic analyses as one moves southward. Due to the combination of low 
numbers of Atlantic salmon in some rivers (e.g., Androscoggin) and the 
complete extirpation of the native stock in other rivers to the south 
(e.g., Merrimack), complete genetic data are not and may never be 
available for the Services to be able to genetically characterize these 
populations. In the absence of clear genetic data, we used ecological 
factors to define the southern boundary of the GOM DPS. The 
Androscoggin River lies within the Penobscot-Kennebec-Androscoggin 
Ecological Drainage Unit (EDU) (Olivero, 2003) and the Laurentian Mixed 
Forest Province (Bailey, 1995), which separates it from more southern 
rivers that were historically occupied by Atlantic salmon. EDUs are 
aggregations of watersheds with similar zoogeographic history, 
physiographic conditions, climatic characteristics, and basic geography 
(Olivero, 2003). The substantial changes in physiographic conditions 
south of the Androscoggin drainage are reflected in the southern 
terminus of both the Laurentian Mixed Forest Province and the 
Penobscot--Kennebec--Androscoggin EDU occurring in that area. Basin 
geography, climate, groundwater temperatures, hydrography, and 
zoogeographic differences between the Penobscot--Kennebec--Androscoggin 
EDU and the EDUs to the south (e.g., Saco-Merrimack-Charles, Lower 
Connecticut, Middle Connecticut, and Upper Connecticut) likely had a 
strong effect upon Atlantic salmon ecology and production. These 
differences would influence the structure and function of aquatic 
ecosystems (Vannote et al., 1980; Cushing et al., 1983; Minshall et 
al., 1983; Cummins et al., 1984; Minshall et al., 1985; Waters, 1995) 
and create a different environment for the development of local 
adaptations than rivers, such as the Saco and Merrimack, to the south.
    In the proposed rule, we proposed to include the entire 
Androscoggin, Kennebec, and Penobscot Watersheds within the GOM DPS 
boundary. Some comments from the public appropriately highlighted 
several impassable falls that limited the upstream extent to which 
anadromous salmon inhabited the rivers of Maine. NMFS also evaluated 
historical occupancy at the watershed scale for the process of 
proposing critical habitat for the GOM DPS. There is also considerable 
information provided in the 2006 Status Review pertaining to impassable 
falls as well. We are, therefore, using these information sources (and 
others cited therein) to delimit the upstream extent of anadromy for 
GOM salmon in this final rule.
    We have identified seven impassable falls that substantially 
limited the upstream extent of the freshwater range of GOM salmon. 
These include Rumford Falls in the town of Rumford on the Androscoggin 
River, Snow Falls in the town of West Paris on the Little Androscoggin 
River, Grand Falls in Township 3 Range 4 BKP WKR, on the Dead River in 
the Kennebec Basin; the un-named falls (impounded by Indian Pond Dam) 
immediately above the Kennebec River Gorge in the town of Indian Stream 
Township on the Kennebec River; Big Niagara Falls on Nesowadnehunk 
Stream in Township 3 Range 10 WELS in the Penobscot Basin; Grand Pitch 
Falls on Webster Brook in Trout Brook Township in the Penobscot Basin; 
and Grand Falls on the Passadumkeag River in Grand Falls Township in 
the Penobscot Basin (Table 1).

         Table 1--Impassable Falls That Limit the Upstream Extent of the Freshwater Range of GOM Salmon
----------------------------------------------------------------------------------------------------------------
            Name of falls                       Town                    River                    Basin
----------------------------------------------------------------------------------------------------------------
Rumford Falls.......................  Rumford................  Androscoggin River....  Androscoggin.
Snow Falls..........................  West Paris.............  Little Androscoggin     Androscoggin.
                                                                River.
Grand Falls.........................  Township 3 Range 4 BKP   Dead River............  Kennebec.
                                       WKR.
Un-named............................  Indian Stream Township.  Kennebec River........  Kennebec.
Big Niagara Falls...................  Township 3 Range 10      Nesowadnehunk Stream..  Penobscot.
                                       WELS.
Grand Pitch.........................  Trout Brook Township...  Webster Brook.........  Penobscot.
Grand Falls.........................  Grand Falls Township...  Passadumkeag River....  Penobscot.
----------------------------------------------------------------------------------------------------------------

    As a result, we have modified the geographic boundaries of the 
freshwater range of GOM salmon in the Androscoggin, Kennebec, and 
Penobscot Basins in the following ways: all freshwater bodies in the 
Androscoggin Basin are included up to Rumford Falls on the Androscoggin 
River and up to Snow Falls on the Little Androscoggin River; all 
freshwater bodies in the Kennebec Basin are included up to Grand Falls 
on the Dead River and the unnamed falls (currently impounded by Indian 
Pond Dam) immediately above the Kennebec River Gorge; and all 
freshwater bodies in the Penobscot Basin are included up to Big Niagara 
Falls on Nesowadnehunk Stream, Grand Pitch on Webster Brook, and Grand 
Falls on the Passadumkeag River.
    We recognize that many other potentially impassable waterfalls 
exist throughout the range of GOM salmon. While other impassable falls 
may exist throughout the range, we did not exclude any other areas 
(other than the areas above the seven falls mentioned above) for the 
following reasons: (1) Their occurrence is typically in headwater areas 
that preclude access from relatively small portions of a given 
watershed; (2) identifying every impassable falls is impractical given

[[Page 29347]]

current information; and (3) no other impassable falls were brought to 
our attention during the public comment period.
    In addition, we recognize that within every watershed, there is an 
upstream extent of anadromy. However, it is impossible to define that 
specific point in every watershed. The upstream extent of anadromy is 
ultimately limited by the incremental narrowing of a given river or 
stream. While a stream may be too small for an adult salmon to swim up 
any further, juveniles may ascend further than that point in search of 
suitable rearing habitat. In fact, upstream movement of even fry can be 
quite substantial. As such, we include all the freshwater bodies as 
part of the freshwater range of GOM salmon unless above one of the 
impassable falls mentioned in the text above.

Discreteness and Significance of the GOM DPS

    With respect to the ``discreteness'' of this population segment, 
section 6.3.1 of Fay et al. (2006) considered ecological, behavioral, 
and genetic factors under the first discreteness criterion of the DPS 
Policy to examine the degree to which it is separate from other 
Atlantic salmon populations. Gulf of Maine salmon are behaviorally and 
physiologically discrete from other members of the taxon because they 
return to their natal GOM rivers to spawn (a process called homing), 
which leads to the separation in stocks that has been observed between 
the Gulf of Maine and other segments of the taxon. River-specific 
adaptation is an important mechanism that allows anadromous salmon to 
occupy diverse environments throughout their range. River-specific 
adaptation is facilitated by homing and is characteristic of all other 
anadromous salmonids (Klemetsen et al., 2003; Utter et al., 2004). Baum 
and Spencer (1990) found that roughly 98 percent of all tagged salmon 
returned to their natal rivers to spawn. As described below, these 
strong homing tendencies have led to the formation and maintenance of 
river-specific adaptations for GOM salmon as well.
    Ecologically, GOM salmon are discrete from other members of the 
taxon. The core of the riverine habitat of this population segment lies 
within the Penobscot-Kennebec-Androscoggin EDU (Olivero, 2003) and the 
Laurentian Mixed Forest Province (Bailey, 1995). These environmental 
conditions have shaped life history characteristics of GOM salmon. In 
particular, GOM salmon life history strategies are dominated by age 2 
smolts and 2SW adults, whereas populations to the north of this 
population segment are generally dominated by age 3 or older smolts and 
1SW adults (called grilse). Smolt age reflects growth rate (Klemetsen 
et al., 2003), with faster growing parr emigrating as smolts earlier 
than slower growing ones (Metcalfe et al., 1990). Smolt age is largely 
influenced by temperature (Symons, 1979; Forseth et al., 2001) and can 
therefore be used to compare and contrast growing conditions across 
rivers (Metcalfe and Thorpe, 1990). For GOM populations, smolt ages are 
quite similar across rivers with naturally-reared (result of either 
wild spawning or fry stocking) returning adults predominantly 
emigrating at river age 2 (88 to 100 percent) with the remainder 
emigrating at river age 3 (Fay et al., 2006). Smolt ages from 
naturally-reared returning adults in rivers south of the Penobscot-
Kennebec-Androscoggin EDU are also dominated by river age 2 smolts with 
some emigrating at river age 3, but a substantial proportion of river 
age 1 smolts are also present (See Table 6.3.1.1 in Fay et al., 2006).
    The strongest evidence that GOM salmon are discrete from other 
members of the taxon is genetic. Fay et al. (2006) described genetic 
structure of this population segment and other stocks in detail in 
section 6.3.1.3. In summary, three primary genetic groups of North 
American populations (Spidle et al., 2003; Spidle et al., 2004; 
Verspoor et al., 2005) are evident. These include the anadromous GOM 
populations (including salmon in the Kennebec and Penobscot Rivers) 
(Spidle et al., 2003), non-anadromous Maine populations (Spidle et al., 
2003), and Canadian populations (Verspoor et al., 2005). Because of 
these behavioral, physiological, ecological and genetic factors, we 
conclude that the GOM anadromous population is discrete from other 
Atlantic salmon populations under the provisions of the DPS Policy.
    With respect to the ``significance'' of this population segment, 
Fay et al. (2006) found that there are three attributes which are 
described as evidence for ``significance'' in the DPS policy that are 
applicable to the GOM DPS (section 6.3.2 of Fay et al., 2006). Fay et 
al. (2006) (section 6.3.2.1) concluded that this population segment has 
persisted in an ecological setting unusual or unique to the taxon for 
several reasons. First, GOM salmon live in and migrate through a unique 
marine environment. The marine migration corridor for GOM salmon begins 
in the GOM that is known for unique circulation patterns, thermal 
regimes, and predator assemblages (Townsend et al., 2006). Gulf of 
Maine salmon undertake extremely long marine migrations to feeding 
grounds off the West Coast of Greenland because the riverine habitat 
they occupy is at the southern extreme of the current North American 
range. While such vast marine migrations are more common for stocks on 
the northeast side of the Atlantic, the combination of the long 
migration distances and the unique setting of the GOM, described above, 
make the oceanic life history of the GOM DPS quite different from those 
of other stocks (ICES, 2008). In addition, the core of the riverine 
habitat of this population segment lies within the Penobscot-Kennebec-
Androscoggin EDU (Olivero, 2003) and the Laurentian Mixed Forest 
Province (Bailey, 1995). The importance of this setting is evidenced by 
the tremendous production potential of its juvenile nursery habitat 
that allows production of proportionately younger smolts than Canadian 
rivers to the north (Myers, 1986; Baum, 1997; Hutchings and Jones, 
1998). Thus, the combination of the unique rearing conditions in the 
freshwater portion of its range combined with the unique marine 
migration corridor led Fay et al. (2006) to conclude that this 
population segment has persisted in an ecological setting unusual or 
unique to the taxon.
    Fay et al. (2006) also concluded that the loss of this population 
segment would result in a significant gap or constriction in the range 
of the taxon (Section 6.3.2.2 of Fay et al., 2006). The extirpation of 
this population segment would represent a significant range reduction 
for the entire taxon Salmo salar because this population segment 
represents the southernmost native Atlantic salmon population in the 
western Atlantic. The temperature regimes in these southern rivers made 
possible the tremendous growth and production potential which resulted 
in the historically very large populations in these areas. Historic 
attempts to enhance salmon populations (in GOM rivers) using Canadian-
origin fish failed. This further illustrates the importance of 
conserving native, river-specific populations and the difficulties of 
restoration if they are lost.
    Fay et al. (2006) concluded that this population segment differs 
markedly from other populations of the species in its genetic 
characteristics (Section 6.3.2.3 of Fay et al., 2006). While genetic 
differences were used to examine the ``discreteness'' of this 
population segment, Fay et al. (2006) suggested that the 
``significance'' of these observed genetic differences is that they 
provide evidence of local adaptation. That is, low returns of exogenous 
smolts (i.e., Canadian-origin

[[Page 29348]]

smolts stocked in Maine) and lower survival of smolts from these Maine 
rivers stocked outside their native geographic range (e.g., into the 
Merrimack River) indicate that this population segment is adapted to 
its native environment. Based on this information related to 
significance, Fay et al. (2006) concluded that this population segment 
is significant to the Atlantic salmon species, and therefore, qualifies 
as a DPS (the new GOM DPS) under the provisions of the DPS Policy.
    Fay et al. (2006) (section 6.3.4) explicitly considered whether to 
include hatchery populations in the GOM DPS and concluded that all 
conservation hatchery populations (currently maintained at GLNFH and 
CBNFH) should be included in the GOM DPS. This determination was based 
on the fact that there is a low level of genetic divergence between 
conservation hatchery populations and the rest of the GOM DPS because: 
(1) The river-specific hatchery programs collect wild parr or sea-run 
adults annually (when possible) for inclusion into the broodstock 
programs; (2) broodstocks are used to stock fry and other life stages 
into the river of origin, and, in some instances, hatchery-origin 
individuals represent the primary origin of Atlantic salmon due to low 
adult returns; (3) there is little evidence of introgression from 
Canadian-origin populations; and (4) there is minimal introgression 
from aquaculture fish because of a rigorous genetic screening program 
in the hatchery. Because the level of divergence is minimal, in Section 
6.3.4 Fay et al. (2006) suggested that hatchery populations should be 
considered part of the GOM DPS. However, Fay et al. (2006) also noted 
the dangers of reliance on hatcheries. In short, genetic risks from 
hatcheries include artificial selection, inbreeding depression, and 
outbreeding depression, in addition to other risks such as the 
potential for disease outbreaks, loss of funding, or other catastrophic 
failure at one or more hatcheries. The reader is directed to 
``Population Status of the GOM DPS'' section of this final rule and 
Section 8.5.1 of Fay et al. (2006) for an in depth discussion of these 
risks.
    For the reasons described in Section 6 of Fay et al. (2006), we 
conclude that the GOM DPS as described above warrants delineation as a 
DPS (i.e., it is discrete and significant). Specifically, we conclude 
that the GOM DPS is comprised of all anadromous Atlantic salmon whose 
freshwater range occurs in the watersheds from the Androscoggin River 
northward along the Maine coast to the Dennys River, including all 
associated conservation hatchery populations used to supplement these 
natural populations; currently, such populations are maintained at 
GLNFH and CBNFH. We consider the conservation hatchery populations that 
are maintained at CBNFH and GLNFH essential for recovery of the GOM DPS 
because the hatchery populations contain a high proportion of the 
genetic diversity remaining in the GOM DPS (Bartron et al., 2006). 
Excluded are those salmon raised in commercial hatcheries for 
aquaculture and landlocked salmon because they are genetically 
distinguishable from the GOM DPS. The marine range of the GOM DPS 
extends from the Gulf of Maine to feeding grounds off Greenland. The 
freshwater range of the GOM DPS includes all freshwater bodies in the 
watersheds from the Androscoggin to the Dennys, except those watersheds 
excluded because of natural barrier falls as described in the 
``Delineating Geographic Boundaries'' section of this final rule. The 
most substantial difference between the GOM DPS as listed in 2000 and 
the GOM DPS described in this final rule is the inclusion of the 
majority of the Androscoggin, Kennebec, and Penobscot Basins as well as 
the associated conservation hatchery population at GLNFH.
    Several rivers outside the range of the GOM DPS in Long Island 
Sound and Central New England contain Atlantic salmon (Fay et al., 
2006; section 6.4). The native Atlantic salmon of these areas south of 
the GOM DPS were extirpated in the 1800s (Fay et al., 2006). Efforts to 
restore Atlantic salmon to these areas (e.g., Connecticut, Merrimack, 
and Saco Rivers) involve stocking Atlantic salmon that were originally 
derived from the GOM DPS. Atlantic salmon whose freshwater range occurs 
outside the range of GOM DPS do not interbreed with salmon within the 
GOM DPS, are not considered a part of the GOM DPS, and are not 
protected under the ESA.

Population Status of the GOM DPS

    In evaluating the status of Atlantic salmon, we considered four 
basic attributes that contribute to a viable population: abundance, 
productivity, genetic diversity, and spatial distribution. The 
importance of considering each of these factors is briefly described 
below. However, it is important to note that our ability to conduct 
such analyses for Atlantic salmon is often limited by the availability 
of sufficient data. It is also important to note that the most recent 
data available at the time of writing of this final rule was from 2007. 
We consider the U.S. Atlantic Salmon Assessment Committee (USASAC) 
reports to be the data of record with respect to Atlantic salmon 
counts. USASAC reports are generally not available until several weeks 
after their annual meeting in March. Thus, 2008 data are considered 
only preliminary at the time of writing this final rule.
    Considering abundance levels of a given species is critical to 
evaluating extinction risks. All else being equal, small populations 
are at greater risk of extinction than larger populations because, 
generally, larger populations are better able to withstand the effects 
of environmental variation, genetic processes, demographic 
stochasticity, ecological feedback, and catastrophes (Shaffer, 1981).
    Population growth rate (productivity) provides information 
regarding how a population is performing in the habitat it occupies. In 
evaluating extinction risks, we ideally measure average productivity at 
different life stages and estimates of variance to describe the level 
of uncertainty inherent in the measurements. An example of life stage-
specific data could be smolt emigration estimates which represent: (a) 
The population's potential to increase or (b) the population's ability 
to weather periods of poor marine conditions. Measuring productivity 
rates over time is quite difficult and resource intensive. Therefore, 
simple measures such as spawner population size and replacement rates 
may be used to provide more rapid detection of changes in conditions 
affecting population growth rates.
    For small populations, spatial distribution is important to reduce 
extinction risks from genetic risks and demographic stochasticity. A 
population's spatial distribution depends on habitat quality (including 
accessibility), population dynamics, and dispersal characteristics of 
individuals in the population. Analysis of spatial distribution focuses 
primarily on spawning group distribution (even though spatial 
distribution is important at all life stages) and connectivity of 
populations. Since freshwater habitat is often quite heterogeneous, 
spawning habitat may be distributed as discrete patches. Straying is an 
important component contributing to spatial distribution and, 
typically, straying rates are higher at smaller scales (e.g., occurring 
within subpopulations rather than between populations (Quinn, 1997)).
    Genetic diversity allows species to adapt to a variety of 
environments that provide for the needs of the species and

[[Page 29349]]

protects against short-term environmental change while also providing 
the raw genetic material necessary to survive long-term environmental 
change. Natural demographic and evolutionary processes (patterns of 
mutation, selection, drift, recombination, migration, etc.) are 
important to maintaining a species' genetic diversity.
    The influence of hatcheries on the GOM DPS must be carefully 
considered in evaluating the status of the species. The influence of 
hatcheries can be both positive and negative; we describe these effects 
in some detail below in this section of this final rule. It is 
important, however, to first describe the general operation of 
conservation hatcheries in Maine.
    The USFWS operates two hatcheries in support of Atlantic salmon 
recovery efforts in Maine. Together, Green Lake National Fish Hatchery 
(GLNFH) and Craig Brook National Fish Hatchery (CBNFH) raise and stock 
over 600,000 smolts and 3.5 million fry annually within the range of 
the GOM Atlantic salmon DPS. The primary focus of the conservation 
hatchery program for the GOM Atlantic salmon DPS is to conserve the 
genetic legacy of Atlantic salmon in Maine until habitats can support 
natural, self-sustaining populations (Bartron et al., 2006). As such, a 
great deal of consideration is given to broodstock collection, spawning 
protocols, genetic screening for aquaculture escapees, and other 
considerations as outlined by Bartron et al. (2006). The current 
program started in 1992, when a river-specific broodstock and stocking 
program was implemented for rivers in Maine (Bartron et al., 2006). 
This strategy complies with the North Atlantic Salmon Conservation 
Organization (NASCO) guidelines for stock rebuilding (USASAC, 2005). 
The stocking program was initiated for two reasons: (1) Runs were 
declining in every river in Maine, and numerous studies indicated that 
restocking efforts are more successful when the donor population comes 
from the river to be stocked (Moring et al., 1995); and (2) the numbers 
of returning adult Atlantic salmon to the rivers were very low, and 
artificial propagation had the potential to increase the number of 
juvenile fish in the river through fry and other early life stage 
stocking.
    Current practices of fry, parr, and smolt stocking as well as 
recovery of parr for hatchery rearing are designed to ensure that 
river-specific brood stock is available for future production. Atlantic 
salmon from the Narraguagus, Pleasant, Sheepscot, Machias, East 
Machias, and Dennys populations are maintained at CBNFH in East Orland, 
Maine. These populations are augmented by annual collections of parr 
from their respective natal river; this program is described in detail 
by Bartron et al. (2006). Additionally, returning adult Atlantic salmon 
are trapped at the Veazie Dam on the Penobscot River throughout the 
duration of the run, transferred to CBNFH, and held until spawning in 
the fall of each year. In addition, domestic adults (i.e., offspring of 
the sea-run adults representing all sea-run spawned families) from the 
Penobscot River are maintained at GLNFH in the event that insufficient 
sea-run adults return to the Veazie trap or in the event of a fish loss 
at CBNFH. Adult Atlantic salmon (with the exception of the Penobscot 
River) are maintained in one of six river-specific broodstock rooms at 
CBNFH. Within each broodstock room, adults are maintained separately by 
capture year. Capture year is defined as the year parr were collected 
from a river. Each capture year may represent one to two year classes. 
In addition, fully captive lines, or ``pedigree lines,'' are 
implemented when the recovery of parr from the river environment is 
expected to be too low to ensure future spawning stock is available 
(Bartron et al., 2006). Pedigree lines are established at the time of 
stocking, where a proportional representation of each family from a 
particular river-specific broodstock is retained in the hatchery while 
the rest of the fry are stocked into the river. If parr are recovered 
from the fry stocking for the pedigree lines, individuals are screened 
to determine origin and familial representation and are integrated into 
the pedigree line to maintain some component of natural selection while 
maintaining a broad representation of the genetic diversity observed in 
the broodstock.
    The goals of the captive propagation program include maintenance of 
the unique genetic characteristics of each river-specific broodstock 
and maintenance of genetic diversity within each broodstock (Bartron et 
al., 2006). Evaluation of estimates of genetic diversity within captive 
populations, such as average heterozygosity, relatedness, and allelic 
richness are monitored within the hatchery broodstocks according to the 
CBNFH Broodstock Management Plan (Bartron et al., 2006). Estimates of 
allelic richness within each broodstock have thus far, revealed 
consistent estimates over the brief time series available (generally 
1994 to 2004; Bartron et al., 2007). Information from genetic 
monitoring is used to evaluate management practices to reduce the 
potential for artificially reducing overall genetic diversity. Further 
details of annual genetic monitoring are described by Bartron et al. 
(2007).
    The current low abundance of adult returns, integration of the 
majority of adult returns into the hatchery for the Penobscot, and 
recapture of parr from the wild for broodstock makes the wild and 
hatchery populations interwoven. In the following sections of this 
final rule, we describe the four population attributes of interest 
(abundance, productivity, spatial structure, and genetic diversity) and 
attempt to apply them first to the wild population and then discuss the 
impact the hatchery has on that attribute. For the reasons noted above, 
however, it is rarely possible to completely separate the wild and 
hatchery population in this analysis.

Abundance

    The abundance of Atlantic salmon within the range of the GOM DPS 
has been generally declining since the 1800s (Fay et al., 2006). Data 
sets tracking adult abundance are not available throughout this entire 
time period; however, Fay et al. (2006) in Figure 7.3.1 present a 
comprehensive time series of adult returns to the GOM DPS dating back 
to 1967. It is important to note that contemporary abundance levels of 
Atlantic salmon within the GOM DPS are several orders of magnitude 
lower than historical abundance estimates. For example, Foster and 
Atkins (1869) estimated that roughly 100,000 adult salmon returned to 
the Penobscot River alone before the river was dammed, whereas 
contemporary estimates of abundance for the entire GOM DPS have rarely 
exceeded 5,000 individuals in any given year since 1967 (Fay et al., 
2006).
    Contemporary abundance estimates are informative in considering the 
conservation status of the GOM DPS today. After a period of population 
growth in the 1970s, adult returns of salmon in the GOM DPS have been 
steadily declining since the early 1980s and appear to have stabilized 
at low levels since 2000 (Figure 1). The population growth observed in 
the 1970s is likely attributable to favorable marine survival and 
increases in hatchery capacity, particularly at GLNFH, which was 
constructed in 1974. Marine survival remained relatively high 
throughout the 1980s, and salmon populations in the GOM DPS remained 
relatively stable until the early 1990s when marine survival rates 
decreased, leading to the declining trend in adult abundance observed 
in the early 1990s.

[[Page 29350]]

[GRAPHIC] [TIFF OMITTED] TR19JN09.002

    Adult returns to the GOM DPS have been very low for many years and 
remain extremely low in terms of adult abundance in the wild. Further, 
the majority of all adults return to a single river, the Penobscot, 
which accounted for 91 percent of all adult returns to the GOM DPS in 
2007 (Table 2). As illustrated by Table 3, of the 925 adult returns to 
the Penobscot in 2007, 802 were the result of smolt stocking and only 
the remaining 123 were naturally-reared. The term ``naturally-reared'' 
includes fish originating from natural spawning and hatchery fry 
(USASAC, 2008). Hatchery fry are included because hatchery fry are not 
marked; therefore, they cannot be distinguished from fish produced from 
natural spawning. Because of the extensive amount of fry stocking that 
takes place in an effort to recover the GOM DPS, it is likely that a 
substantial number of fish counted as naturally-reared were actually 
stocked as fry. The term ``hatchery-origin'' includes those fish 
stocked as either parr or smolt from either CBNFH or GLNFH.
    The proportion of naturally reared fish that is attributed to fry 
stocking cannot be determined. Preliminary adult return data for 2008 
(http://www.maine.gov/dmr/searunfish/trapcounts.html) indicated higher 
returns than in previous years, but remain well below conservation 
spawning escapement (CSE) goals that are widely used (e.g., ICES, 2005) 
to describe the status of individual Atlantic salmon populations. When 
CSE goals are met, Atlantic salmon populations are generally self-
sustaining. When CSE goals are not met (i.e., less than 100 percent), 
populations are not reaching full potential, and this can be indicative 
of a population decline. For all rivers in Maine, current Atlantic 
salmon populations (including hatchery contributions) are well below 
CSE levels required to sustain themselves (Fay et al., 2006) (section 
7.1), which is further indication of their poor population status. 
Furthermore, calculation of returns relative to CSE for Atlantic salmon 
include salmon of fry-stocked origin; because these fish are not 
spawned in the wild, displaying returns as a percentage of CSE 
overestimates the degree to which the population is achieving self-
sustainability.

  Table 2--Adult Returns to the Small Coastal Rivers, the Penobscot River, the Kennebec River, and the Androscoggin River From 2001 to 2007. These Data
             are Summarized From Table 3.2.1.2 and Table 16 in the United States Atlantic Salmon Assessment Committee Report (USASAC, 2008)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Small coastal    Penobscot River   Kennebec River     Androscoggin       Total known
                             Year                                    rivers          trap count      trap count \a\   River trap count       returns
--------------------------------------------------------------------------------------------------------------------------------------------------------
2001..........................................................               103               785  ................                 5               893
2002..........................................................                37               780  ................                 2               819
2003..........................................................                76              1112  ................                 3              1191
2004..........................................................                82              1323  ................                11              1416
2005..........................................................                71               985  ................                10              1066
2006..........................................................                79              1044                15                 6              1144

[[Page 29351]]

 
2007..........................................................                53               925                16                20              1014
--------------------------------------------------------------------------------------------------------------------------------------------------------
a Counts not conducted on the Kennebec until 2006.


  Table 3--Adult Returns to Rivers Within the Freshwater Range of the GOM DPS by Origin in 2007. These Data Are
     Summarized From Table 1 in the United States Atlantic Salmon Assessment Committee Report (USASAC, 2008)
----------------------------------------------------------------------------------------------------------------
                           River                             Hatchery-origin  Naturally-reared        Total
----------------------------------------------------------------------------------------------------------------
Androscoggin..............................................                17                 3                20
Kennebec..................................................                 9                 7                16
Dennys....................................................                 2                 1                 3
Narraguagus...............................................                 0                11                11
Other GOM DPS.............................................                 0                39                39
Penobscot.................................................               802               123               925
                                                           -----------------------------------------------------
    Total.................................................               830               184              1014
----------------------------------------------------------------------------------------------------------------

    Declines in both hatchery-origin and naturally reared salmon are 
evident in the Penobscot River (Table 4). Declines in hatchery-origin 
adult returns are less sharp because of the effects of hatcheries. In 
short, hatchery supplementation over this time period has been 
relatively constant, generally fluctuating around 550,000 smolts per 
year (USASAC, 2008). In contrast, the number of naturally-reared smolts 
emigrating each year is likely to decline following poor returns of 
adults. Although it is impossible to distinguish truly wild salmon from 
those stocked as fry, it is likely that some portion of naturally 
reared adults are wild. Thus, wild smolt production would suffer 3 
years after there were low adult returns, because the progeny of adult 
returns typically emigrate 3 years after their parents return. The 
relatively constant inputs from smolt stocking coupled with the 
declining trend of naturally reared adults result in the apparent 
stabilization of hatchery-origin salmon and the decline of naturally 
reared components of the GOM DPS observed over the last 2 decades.

  Table 4--Adult returns, by origin (hatchery-origin and naturally reared) and age (1sw Indicates the Individual Spent One Winter at Sea; 2sw Indicates
   the Individual Spent Two Winters at Sea; 3sw Indicates the Individual Spent Three Winters at Sea; and Repeat Indicates the Individual was a Repeat
                                                    Spawner) to the Penobscot River from 1996 to 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Hatchery-origin                        Naturally reared
                             Year                              --------------------------------------------------------------------------------   Total
                                                                   1sw       2sw       3sw     Repeat      1sw       2sw       3sw     Repeat
--------------------------------------------------------------------------------------------------------------------------------------------------------
1996..........................................................       484     1,218         6        18        11       303         3         1     2,044
1997..........................................................       243       934         4        14         4       153         2         1     1,355
1998..........................................................       238       793         0        10        31       133         1         4     1,210
1999..........................................................       223       568         0        11        49       108         0         9       968
2000..........................................................       167       265         0        15        16        69         0         2       534
2001..........................................................       195       466         0         3        21        98         2         0       785
2002..........................................................       363       344         0        15        14        41         1         2       780
2003..........................................................       196       847         1         4         6        56         0         2     1,112
2004..........................................................       276       952        10        16         5        59         3         2     1,323
2005..........................................................       269       678         0         8         6        22         0         2       985
2006..........................................................       338       653         1         4        15        33         0         0     1,044
2007..........................................................       226       575         0         1        35        88         0         0       925
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The influence of CBNFH and GLNFH on abundance of the GOM DPS is 
positive, thus reducing short-term extinction risks to the GOM DPS. 
Below, we briefly describe the three mechanisms by which the 
conservation hatchery programs positively affect the abundance of the 
GOM DPS:
    1. Stocking of large numbers of smolts (Penobscot beginning in 
1974, Dennys beginning in 2001, and Narraguagus beginning in 2008) 
increases adult returns, thus reducing demographic risks (i.e., 
extinction risks) to populations that would otherwise be smaller.
    2. Stocking large numbers of smolts also reduces the risks of 
catastrophic loss because at least one cohort is always at sea and 
could be collected as broodstock in case of a catastrophic event in 
freshwater (e.g., a large contaminant spill) or in a hatchery (e.g., 
disease outbreak).
    3. Rivers without large scale fry stocking efforts have even fewer 
adult returns than those rivers with large scale stocking efforts. 
Further, rivers that lack significant hatchery contributions (fry 
stocking) have not experienced stable

[[Page 29352]]

levels of adult returns since the decline in marine survival in the 
early 1990s. For example, redd counts in the Ducktrap River (a river 
which is not stocked) have been steadily declining since the 1990s to a 
point where no redds were found in the Ducktrap River in 2007, a year 
with favorable conditions for redd counting and over 90 percent of 
spawning habitat surveyed (USASAC, 2008).
    As illustrated by the above data, the abundance of Atlantic salmon 
in the GOM DPS is low and either stable or declining. The proportion of 
fish that are of natural origin is very small (approximately 10 
percent) and is continuing to decline. The conservation hatchery has 
assisted in slowing the decline and helped stabilize populations at low 
levels, but has not contributed to an increase in the overall abundance 
of salmon and has not been able to halt the decline of the naturally-
reared component of the GOM DPS.

Productivity

    The historic productivity of the GOM DPS is unknown. Over long time 
frames, it is expected that productivity fluctuated widely according to 
a diverse range of biotic factors such as food availability and abiotic 
factors such as temperature regime and sea level.
    Contemporary productivity rates for the GOM DPS can be inferred 
from replacement rates. In short, populations with a replacement rate 
of 1.0 or higher are stable or increasing while populations with a 
replacement rate less than 1.0 are declining. The USASAC has estimated 
the replacement rate for the GOM DPS (as listed in 2000) over the last 
several years. Replacement rate for the GOM DPS (as listed in 2000) had 
been below 1.0 for several generations until 2007, when replacement 
rate for the 2002 spawning cohort was 1.47. This translates to on 
average, every adult returning in 2002 replacing itself with 1.47 
adults in 2007. While this increase is promising, it only represents 1 
year; thus, it is premature to conclude that this is indicative of an 
increasing trend.
    Replacement rate is a fairly imprecise measurement of productivity 
for several reasons. First, tracking adult to adult return rates of 
naturally reared fish necessarily includes those fish that result from 
stocking. Thus, it is not true replacement of fish in the wild because 
each river with substantial returns of adults is stocked with fry, or 
smolts as in the case of the Penobscot, Narraguagus, and Dennys Rivers. 
This situation results in an overestimation of productivity (because it 
does not account for the contribution that stocking makes to adult 
returns) and also emphasizes the importance of hatcheries to the 
security of the GOM DPS. Without stocking of hatchery fry and smolts, 
adult returns would presumably be lower and would result in even lower 
replacement rates.
    The influence of hatcheries on productivity is not known with 
certainty, but overall productivity (even with hatchery 
supplementation) is quite low. The first goal of the captive broodstock 
program is to facilitate the recovery of the natural populations and 
minimize the risk of further decline or loss of individual populations 
(Bartron et al., 2006). Over time, more adult returns should 
successfully spawn in the wild and result in replacement rates above 
1.0. However, insufficient data exist to determine whether adult 
returns from hatchery contributions result in more spawners and 
ultimately more truly wild-origin adult returns. The National Research 
Council (NRC, 2004) and the Sustainable Ecosystems Institute (SEI, 
2007) identified this as a key limitation in available data on the 
recovery efforts for salmon in Maine. Without this information, it is 
impossible to estimate, with any certainty, the effect of hatcheries on 
this key population attribute (productivity). Overall, however, 
replacement rates less than 1.0 (as has been the case most years since 
the early 1990s) are indicative of low productivity.
    As illustrated by the above, productivity of the GOM DPS is low and 
has not consistently had a replacement rate above 1.0 such that 
population growth would be expected. There is no current evidence that 
hatcheries have increased or will increase productivity in the wild.

Spatial Distribution

    The historic distribution of Atlantic salmon in Maine has been 
described extensively by Baum (1997) and Beland (1984), among others. 
In short, substantial populations of Atlantic salmon existed in nearly 
every river that was large enough to maintain a spawning population. 
The upstream extent of anadromy extended far into the headwaters of 
even the largest rivers. For example, Atlantic salmon were found 
throughout the West Branch of the Penobscot River as far as Penobscot 
Brook, a distance over 350 river km inland (Atkins, 1870). In the 
Kennebec River, Atlantic salmon ranged as far inland as the Kennebec 
River Gorge and Grand Falls on the Dead River, 235 km inland (Foster 
and Atkins, 1867; Atkins, 1887).
    Today, the spatial structure of Atlantic salmon is limited by 
obstructions to passage and also by low abundance levels. Fish passage 
obstructions caused the decline of many salmon populations (Moring, 
2005). Within the range of the GOM DPS, the Kennebec, Androscoggin, 
Union, and Penobscot Rivers contain dams that severely limit passage of 
salmon to significant amounts of spawning and rearing habitat.
    In addition, the low abundance of salmon within the range of the 
GOM DPS serves to concurrently limit spatial distribution through two 
mechanisms: (1) Lack of sufficient source populations, and (2) hatchery 
limitations. First, in properly functioning salmon populations, some 
areas have relatively abundant salmon populations such that they may 
serve as ``source'' populations. Fish from source populations may seek 
out areas with fewer or no competitors. This is an important dispersal 
mechanism for all anadromous salmonids. Over evolutionary timescales, 
this process led to the colonization of nearly every river in Maine by 
Atlantic salmon. Because the abundance of salmon is so low today, this 
dispersal mechanism is likely not operating and will likely not operate 
until trends in productivity and abundance are reversed. Second, 
spatial distribution is limited today by hatchery capacity. The 
Penobscot River alone would require 12.5 million fry in order to 
properly seed all presently accessible rearing habitat (Trial, 2006), 
while GLNFH and CBNFH can only produce roughly 3.5 million fry annually 
(Barton et al., 2006). Thus, hundreds of thousands of otherwise 
suitable habitat units are currently unoccupied (NMFS, 2008). The 
Sheepscot, Narraguagus, Dennys, Machias, East Machias, and Pleasant 
Rivers are usually stocked with as many fry as are needed to properly 
seed the habitat, although no stocking occurs within a 50-meter buffer 
around areas known to have spawning activity the previous year in order 
to reduce competition between potentially wild and hatchery fry 
(described in detail by Trial, 2006). Hatchery space for the Penobscot 
population is limited by hatchery capacity, such that only 2.5 million 
fry are typically allocated and stocked into the Penobscot River 
annually. Other rivers within the freshwater range of the GOM DPS have 
been stocked to a very limited degree in some years, usually with 
Penobscot-origin fry (see section 5 of Fay et al., 2006, for a detailed 
review).
    The influence of hatcheries on spatial structure of the GOM DPS is 
positive. Without hatchery contributions, fewer juveniles would inhabit 
the rivers of Maine. In section 7.2., Fay et al. (2006)

[[Page 29353]]

examined recent MDMR electrofishing data, which demonstrated that 
rivers with large scale stocking efforts have much higher juvenile 
densities compared to those rivers without large scale stocking 
efforts. The hatchery, therefore, has allowed for maintenance of the 
current spatial structure of the GOM DPS. Without the hatcheries, there 
likely would have been a greater reduction in spatial distribution. In 
summary, spatial distribution of the GOM DPS is positively influenced 
by the Atlantic salmon conservation hatchery supplementation program in 
the following ways:
    1. The use of captive broodstock from seven separate populations 
reduces the risks of random environmental and demographic events;
    2. Stocking maintains the spatial distribution of the GOM DPS;
    3. Stocking has been used to repopulate unoccupied areas, when 
determined to be an appropriate management action.
    As illustrated above, the spatial distribution of the GOM DPS has 
been significantly reduced from historic levels and is currently 
limited by low abundance of Atlantic salmon. However, we conclude that 
spatial distribution would have experienced even greater reductions 
without the influence of hatcheries.

Genetic Diversity

    In general, large populations have higher levels of genetic 
diversity than small populations. As population sizes decrease, and the 
potential for mating related individuals increases, the threat of 
inbreeding in a population also increases. Inbreeding has been 
documented to decrease overall fitness of a population (Spielman et 
al., 2004; Lynch and O'Hely, 2001), reducing the long-term population 
viability. Thus, maintaining sufficient levels of genetic variability 
and structure is of utmost importance to endangered and threatened 
species.
    Historical salmon populations within the range of the GOM DPS were 
several orders of magnitude higher than they are today and occupied a 
greater diversity of habitats. As such, genetic diversity levels of the 
GOM DPS are likely to have been higher historically as well. Lage and 
Kornfield (2006) demonstrated significant reductions in diversity and 
effective population size in the Dennys River from 1963 to 2001. This 
raises concern that diversity levels today are lower than historical 
levels.
    However, results from genetic surveys conducted by the USFWS 
suggest that, overall, the GOM DPS is not currently suffering 
significant negative effects due to inbreeding. Estimates of genetic 
diversity (e.g., average heterozygosity, relatedness coefficients, and 
allelic diversity and frequency) within captive populations are 
evaluated within the hatchery broodstocks according to the CBNFH 
Broodstock Management Plan (Bartron et al., 2006). Broodstock 
management is evaluated annually and is revised as needed to minimize 
the potential for inbreeding and maintain genetic diversity (Bartron et 
al., 2006).
    The effects of hatcheries on genetic diversity of the GOM DPS are 
both positive and negative; however, the positive effects outweigh the 
negative effects at this time. Below, we describe the positive and 
negative effects of hatcheries on diversity levels of the GOM DPS. 
Genetic diversity of the GOM DPS is positively influenced by the 
Atlantic salmon conservation hatchery supplementation program in the 
following ways:
    1. A rigorous genetic screening program reduces the risks of 
outbreeding depression that may otherwise result from aquaculture 
escapees or their progeny being integrated into the hatchery program;
    2. The effective use of spawning protocols preserves genetic 
variation inherent in each of the genetically unique river populations 
maintained at CBNFH, ensures the long-term maintenance of genetic 
variation, and minimizes the potential for inbreeding or domestication 
selection and associated reductions in fitness in the wild;
    3. The use of pedigree lines for those populations most at risk 
reduces the chance of catastrophic loss of an entire population;
    4. Stocking of juveniles into rivers significantly reduces the 
risks of catastrophic loss at CBNFH. That is, if a catastrophic loss of 
one or more captive broodstock lines occurred at CBNFH, a component of 
the genetic variability lost could be recovered by collecting parr for 
broodstock.
    There are significant risks associated with the current reliance on 
hatcheries for the persistence of the GOM DPS. As mentioned previously, 
these risks include artificial selection, inbreeding depression, and 
outbreeding depression.
    Over the long term, artificial selection for the hatchery 
environment is considered a threat to survival. If parr are not 
recovered in numbers sufficient for broodstock and spawning 
requirements, it becomes necessary to establish pedigree lines, which 
means that natural selection from fry to parr stage may no longer be 
incorporated into the life cycle (details of pedigree line management 
are in Fay et al., 2006, and Bartron et al., 2006). Establishment of 
pedigree lines is only resorted to in instances when one of the 
following criteria is met:
    1. The number of broodstock for a particular population is low 
(less than collection target);
    2. There is a threat of few or no hatchery or wild spawned parr 
being recovered; or
    3. Loss of family variation through general parr collection 
practices is projected to cause appreciable losses in local population 
diversity in the near future.
    In recent years, pedigree lines have been established for 
broodstock from the Pleasant River (due to insufficient parr 
collection) and the Dennys River (due to a large aquaculture escape 
event). Over time, this process could result in a population that is 
well adapted to the artificial environment and poorly adapted to the 
natural environment; this form of artificial selection is widely known 
as domestication selection (Hey et al., 2005).
    Both inbreeding depression and outbreeding depression are widely 
accepted as potential risks in artificial propagation programs. As 
population sizes decrease, and the potential for mating related 
individuals increases, the threat of inbreeding in a population also 
increases. Inbreeding may also decrease overall fitness of a population 
(Spielman et al., 2004; Lynch and O'Hely, 2001), reducing the long-term 
population viability and, therefore, inhibiting the success of 
restoration and recovery efforts. Of similar concern is the threat of 
outbreeding depression and decreased fitness resulting from the mating 
of individuals from populations with significantly different genetic 
composition.
    Over time, these risks will increase and more negative effects may 
appear. At this time, however, results from USFWS genetic screening 
programs suggest that domestication, inbreeding depression, and 
outbreeding depression do not appear to be negatively impacting the GOM 
DPS.

Summary

    In summary, all available metrics of abundance, productivity, 
spatial distribution, and genetic diversity are cause for concern for 
the GOM Atlantic salmon DPS. Contemporary abundance estimates of adult 
spawners are several orders of magnitude lower than historical 
abundance. Estimates of productivity are well below those required to 
sustain a viable population over the long term. The spatial 
distribution of the GOM DPS has been severely reduced relative to 
historical

[[Page 29354]]

distribution patterns. Genetic diversity levels, though apparently 
stable, are likely much lower than they were historically (Lage and 
Kornfield, 2006) and lower than more abundant populations in Canada 
(Spidle et al., 2003). Finally, while conservation hatcheries 
positively influence several of these metrics, they have not yet been 
able to reverse the observed declines in wild adult spawners. In the 
following sections of this final rule, we use this information combined 
with recent population viability analyses to analyze the current 
conservation status of the GOM DPS.

Population Viability Analyses

    Statistical methods can be used to quantitatively estimate 
population growth, and more importantly, extinction probabilities for a 
species. The simplest type of model to perform this can be referred to 
as a simple Population Viability Analysis (PVA). A simple PVA 
quantitatively estimates population growth and extinction probabilities 
for a single population (Dennis et al., 1991). A simple PVA is a 
stochastic exponential growth model of population size. These types of 
models are best used with census data where the sampling variability is 
small compared to the population or environmental variability (Dennis 
et al., 1991).
    More complex versions of PVAs have been developed where life 
history characteristics, such as the age distribution within abundance 
measures, are accounted for within the model. In addition, a modified 
approach has been developed where different life history processes are 
compartmentalized within the model allowing for the incorporation of 
such things as juvenile survival rates, adult survival rates, habitat 
limitations/degradation, age-specific fecundity, or migration rates 
(Brook et al., 1999; Marmontel, 1997; Ratner et al., 1997; Zhang and 
Wang, 1999). Other complex PVAs have been developed to help managers 
decide between competing management regimes, whereby population growth 
(or conversely extinction probability) can be predicted based on 
changes to survival at one or more life stages. Thus, PVA models can 
vary widely in complexity.
    Some general caveats are associated with the use and interpretation 
of PVAs. It is particularly important to recognize that PVAs are merely 
projections about what might happen in the future based on the data 
used to compile the model and assumptions made to address uncertainties 
(Ralls et al., 2002; Legault, 2005). Because PVAs do not account for 
all potential sources of future environmental variation and because of 
the uncertainty inherent in predicting future conditions, especially 
over longer timeframes, we use PVA results cautiously and consider them 
as just one of the pieces of information we evaluate in determining a 
species' conservation status.
    For the purpose of considering the risks of extinction for Atlantic 
salmon, we have two PVAs to consider: the simple PVA conducted by Fay 
et al. (2006), and the SalmonPVA (Legault, 2004; Legault, 2005). Both 
are instructive in considering the relative extinction risks to the GOM 
DPS. They also help clarify the importance of marine survival and 
hatchery supplementation in considering extinction risks. It is 
important to note that the Services look at estimates of how extinction 
probability changes over multiple timeframes and not at only a single 
estimate of the extinction probability for a single time period. This 
is consistent with the cautions noted by Fay et al. (2006) and Legault 
(2005).
    Fay et al. (2006) used a simple PVA to assess the extinction risk 
to the GOM DPS as defined in this final rule. This PVA examined a 
number of different scenarios and provided a wide range of alternative 
outputs. In particular, it included three different endpoints: 1 
individual, 50 individuals, and 100 individuals. An endpoint greater 
than zero, referred to as a quasi-extinction threshold or QET, reflects 
the point at which the population is considered to be functionally 
extinct, that is, non-recoverable due to loss of fitness of 
individuals, inability of individuals to carry out essential population 
functions, or other problems. Compared with use of an extinction 
threshold of zero, use of a QET would produce a higher probability of 
extinction over the same time period or the same probability of 
extinction over a shorter time period. An extinction threshold of one 
individual, which recognizes that there is no longer a population to 
model, is not typically referred to as a QET; compared to a threshold 
of zero individuals, it will not materially affect a model's results. 
Although a model's results using different extinction thresholds are 
not directly comparable, they do provide useful information about the 
condition of the population over time.
    Fay et al. (2006) presented a range of estimated extinction risks 
for a variety of time horizons (0 to 100 years, with 20-year 
intervals). This analysis used adult return data from two time series 
(1980-2004 and 1991-2004) to estimate population growth and extinction 
probabilities for the GOM DPS. The two time series were separated 
because of the regime shift in marine survival observed for Atlantic 
salmon throughout the North Atlantic that began in 1991 (ICES, 2005). 
This regime shift represents a change in productivity and marine 
survival of Atlantic salmon in the Northwest Atlantic that has 
persisted to date. In short, projections for the time period 1980 to 
2004 are more ``optimistic'' because those data include roughly 10 
years of higher marine survival; projections for the time period 1991 
to 2004 are more ``pessimistic'' because they only include observations 
during the recent period of lower marine survival. Using this method, 
Fay et al. (2006) provided a wide range of extinction risks, but all 
scenarios considered clearly trended toward extinction. Comparing the 
two time series clearly shows the importance of marine survival; 
extinction risks are more severe for the 1991 to 2004 time series 
(Figure 3) compared to the 1980 to 2004 time series (Figure 2).

[[Page 29355]]

[GRAPHIC] [TIFF OMITTED] TR19JN09.003

[GRAPHIC] [TIFF OMITTED] TR19JN09.004


[[Page 29356]]


    The results of the Fay et al. (2006) PVA are based solely on the 
dynamics of the population during the timeframes examined (1980 to 
2004) and are dependent on the following assumptions: (1) Hatchery 
supplementation continues into the future for up to 100 years at 
current levels with similar survival rates, and (2) similar threats to 
the species remain operative into the future (i.e., environmental 
conditions remain unchanged). The Fay et al. (2006) PVA does not 
include the risk of disruptions to hatchery operations (e.g., due to 
disease outbreak) or the risk of genetic effects (such as inbreeding 
and domestication selection described above) of hatchery 
supplementation.
    The SalmonPVA (Legault, 2004) was developed for the GOM DPS of 
Atlantic salmon as listed in 2000 and does not include the Penobscot 
population. Given that smaller initial population sizes exacerbate the 
extinction process (Holmes, 2001), the probability of extinction for 
any given time period for the GOM DPS as defined in this final rule, 
which includes the Penobscot population, might be lower than the 
estimates produced by the model for the GOM DPS as listed in 2000. 
However, the Penobscot population is also in decline and subject to 
many of the same, as well as additional, environmental stressors. Thus, 
the model results are still generally instructive for this analysis. 
The SalmonPVA model was developed to aid in the formation of delisting 
criteria for the GOM DPS as listed in 2000 and to assess the efficacy 
of different management strategies towards this delisting goal.
    The SalmonPVA (Legault, 2004, 2005) incorporates all salmon life 
stages, different survival rates for each stage, four different marine 
survival scenarios, freshwater habitat capacity, harvest, straying 
rates, and hatchery stocking as inputs into the model. Extinction in 
the SalmonPVA was defined as no fish alive at any life stage; this 
model, unlike the Fay et al. (2006) PVA, does not use QETs (i.e., it 
does not identify an earlier point in decline at which the population 
would become functionally extinct).
    The SalmonPVA (Legault, 2004, 2005) demonstrates that current 
levels of hatchery supplementation may reduce extinction risk to the 
GOM DPS as listed in 2000 depending on the rate of marine survival. In 
simulations where current low marine survival estimates increased to 
the mean of the last 30 years, the SalmonPVA estimated that the 
extinction risk in the next 100 years (for the GOM DPS as listed in 
2000) was approximately 1 percent in simulations where hatchery 
supplementation continued for 50 years, 72 percent if continued 
hatchery supplementation was reduced from 50 years to 30 years, and 
near 100 percent if hatchery supplementation ceased in 10 years. 
Furthermore, in simulations using a constant low marine survival 
scenario representing the current environment, there was a 100 percent 
chance of extinction within 100 years regardless of the number of years 
of stocking, and extinction occurred within 20 years of the last 
stocking event.
    Like the results of the Fay et al. (2006) PVA, the results of the 
SalmonPVA (Legault 2004, 2005) are dependent on assumptions about 
future conditions remaining the same. These assumptions include the 
level of hatchery supplementation (i.e., number of fish stocked), 
freshwater survival, freshwater carrying capacity, and straying rates 
of adult fish among rivers. Also like the Fay et al. (2006) PVA, the 
SalmonPVA (Legault 2004, 2005) does not include the risk of disruptions 
to hatchery operations (e.g., due to disease outbreak) or the genetic 
risks (such as inbreeding and domestication selection described above) 
of hatchery supplementation. It is expected that extinction would 
proceed much faster than indicated by the model's simulation results if 
and when these effects become operative in the GOM DPS. The SalmonPVA 
does include scenarios where hatchery operations cease (without 
attributing that to a cause which could be lack of funding, disease 
outbreak or evidence of significant genetic risks), and those scenarios 
illustrate that declines rapidly follow the elimination of the 
hatchery.
    Both the Fay et al. (2006) and Legault (2004, 2005) PVAs assumed 
that hatchery supplementation would continue at its present level even 
when there were 100 or fewer returning adults in the Penobscot. 
However, hatchery supplementation (in particular, smolt stocking) could 
not continue at the same level in the future if returning adults fell 
below 150 because that is the number of adults necessary to make full 
use of the current conservation hatchery capacity for the smolt 
stocking program that currently sustains the Penobscot population 
(section 5.2.1 of Fay et al., 2006). Smolt stocking increases the 
number of returning adults, so if the full number of smolts could not 
be produced and stocked, there would be fewer adults returning which 
would result in an even smaller population. Adult returns to the 
Penobscot constitute a substantial proportion of the total returns to 
the GOM DPS (Table 2).
    Additional problems would arise if there were 150 or fewer adult 
returns to the Penobscot. If there were only 150 adult returns, it is 
likely all of their production would be used for smolt production (M. 
Bartron, USFWS, pers. comm., 2009). Fry production for the Penobscot 
would have to come from domestic broodstocks. If the domestic 
broodstocks (at GLNFH and other sources) were not able to be sustained 
because all the adult production was being used for smolt production, 
then there would be no fry production for the Penobscot. If the total 
production from 150 fish were used to produce smolts, and not to 
replenish domestic broodstocks, then those backup broodstocks for the 
Penobscot would no longer exist (M. Bartron, USFWS, pers. comm., 2009). 
Fry production in the other rivers (those maintained at CBNFH) would 
continue.
    If there were 150 or fewer adults in the Penobscot, or if smolt 
stocking and fry stocking was curtailed, there would be an increased 
risk of genetic problems because the rate of loss of genetic diversity 
(and the potential for inbreeding) is inversely proportional to the 
effective population size (number of individuals reproducing). As the 
number of individuals reproducing decreases, the rate of loss of 
genetic diversity increases, as does the potential for inbreeding. The 
potential for loss of genetic diversity further increases when 
populations remain low for extended periods of time. A faster 
population decline and genetic impacts would increase the probability 
of extinction beyond the predictions of the two PVAs.
    In addition to providing estimates of extinction probability, the 
Fay et al. (2006) and Legault (2004, 2005) PVAs also provide useful 
projections regarding the condition of the population over time. For 
example, the results of the Legault (2004, 2005) PVA demonstrate that, 
while the estimated extinction probability may be low under certain 
scenarios of long-term hatchery supplementation and improved marine 
survival, the population can continue to decline to extinction. For the 
model scenario producing an extinction probability estimate of 1 
percent in 100 years if marine survival increased to the 30-year 
average and hatchery supplementation continued for 50 years, the 
replacement rate was still less than 1, indicating the simulated GOM 
DPS was still in decline. Also under this scenario, the model predicted 
that three of the eight river populations would be extirpated.
    In summary, PVA results must be interpreted carefully. The two PVAs 
considered here do not include risks associated with other sources of 
environmental variation (e.g., aquaculture escapement and disease

[[Page 29357]]

outbreak in the wild) identified in the Summary of Factors Affecting 
the Species section. Because these PVAs do not account for all 
potential sources of future environmental variation, and because of the 
uncertainty inherent in predicting future conditions, especially over 
longer timeframes, we do not consider the numerical estimates of 
extinction probabilities in the PVA of Fay et al. (2006) and the 
SalmonPVA (Legault 2004, 2005) to be the actual extinction 
probabilities of the newly defined GOM DPS.
    We have no information to indicate that marine survival will 
significantly improve. We find that, based on the available trend 
information, it is most reasonable to assume that marine survival will 
continue at approximately its current low level. Therefore, we conclude 
that the results of the Fay et al. (2006) PVA and the Legault (2004, 
2005) PVA that are based on marine survival values above the current 
low level are unrealistic.
    Also, based on information on diseases (see Factor C in the Factors 
Affecting the Species section of this final rule), or concerns such as 
catastrophic loss to water supply or feed contamination (P. Santavy, 
USFWS, pers. comm., January 23, 2009), there is a risk of disruptions 
to hatchery operations. Based on the information on long-term hatchery 
operations (NRC, 2004; Fay et al., 2006, at section 8.5.1; SEI, 2007), 
there is a risk of genetic problems from hatchery supplementation. At 
present, these risks are not quantifiable, and are therefore not 
accounted for in either PVA. However, we find that these risks are 
substantial in the long term because of the dependence on the 
conservation hatchery program.
    Because the models do not include the risk of disruptions to 
hatchery operations, the risk of genetic effects of hatchery 
supplementation, and risks associated with other sources of 
environmental variation, we conclude that all of the results of the Fay 
et al. (2006) PVA and the Legault (2004, 2005) PVA may considerably 
underestimate the probability of extinction. Nevertheless, the Fay et 
al. (2006) PVA and the Legault (2004, 2005) SalmonPVA do tell us much 
about certain factors affecting the status of the GOM DPS as defined in 
this rule, especially the significance of hatchery supplementation and 
marine survival, and we use this information to provide important 
context for evaluating threats in the following sections of this rule.

Previous Federal Actions

    In 1991, the FWS designated Atlantic salmon in five rivers in 
Downeast Maine (the Narraguagus, Pleasant, Machias, East Machias, and 
Dennys Rivers) as Category 2 candidate species under the ESA (56 FR 
58804; November 21, 1991). Both Services received identical petitions 
in October and November of 1993 to list the Atlantic salmon (Salmo 
salar) throughout its historic range in the contiguous United States 
under the ESA. On January 20, 1994, the Services found that the 
petition presented substantial scientific information indicating that 
the petitioned action may be warranted (59 FR 3067).
    The Services conducted a joint review of the species in January 
1995, and found that the available biological information indicated 
that the species described in the petition, Atlantic salmon throughout 
its range in the United States, did not meet the definition of 
``species'' under the ESA. Therefore, the Services concluded that the 
petitioned action to list Atlantic salmon throughout its historical 
United States range was not warranted (60 FR 14410; March 17, 1995). In 
the same notice, the Services determined that a DPS consisting of 
populations in seven rivers (the Dennys, East Machias, Machias, 
Pleasant, Narraguagus, Ducktrap, and Sheepscot Rivers) did warrant 
listing under the ESA. On September 29, 1995, after reviewing the 
information in the status review, as well as state and foreign efforts 
to protect the species, the Services proposed to list the seven rivers 
DPS as a threatened species under the ESA (60 FR 50530; September 29, 
1995). The proposed rule contained a special rule under section 4(d) of 
the ESA which would have allowed for a State plan, approved by the 
Services, to define the manner in which certain activities could be 
conducted without violating the ESA. In response to that special 
provision in the proposed rule, the Governor of Maine convened a task 
force that developed a Conservation Plan for Atlantic Salmon in the 
seven rivers. That Conservation Plan was submitted to the Services in 
March 1997.
    The Services reviewed information submitted from the public, 
current information on population levels, and assessed the adequacy of 
the Maine Atlantic Salmon Conservation Plan, and, on December 18, 1997, 
withdrew the proposed rule to list the seven rivers DPS of Atlantic 
salmon as threatened under the ESA (62 FR 66325). In that withdrawal 
notice, the Services redefined the species under analysis as the GOM 
DPS to acknowledge the possibility that other populations of Atlantic 
salmon could be added to the DPS if they were found to be naturally 
reproducing and to have wild stock characteristics. NMFS maintained the 
GOM DPS as a candidate species to acknowledge ongoing concern over the 
species' status. In the 1997 withdrawal notice, the Services outlined 
three circumstances under which the process for listing the GOM DPS of 
Atlantic salmon under the ESA would be reinitiated: (1) An emergency 
which poses a significant risk to the well-being of the GOM DPS is 
identified and not immediately and adequately addressed; (2) the 
biological status of the GOM DPS is such that the DPS is in danger of 
extinction throughout all or a significant portion of its range; or (3) 
the biological status of the GOM DPS is such that the DPS is likely to 
become endangered in the foreseeable future throughout all or a 
significant portion of its range.
    The Services received the State of Maine 1998 Annual Progress 
Report on implementation of the Conservation Plan in January 1999. On 
January 20, 1999, the Services invited comment from the public on the 
first annual report and other information on protective measures and 
the status of the species. The comment period remained open until March 
8, 1999 (64 FR 3067). The Services reviewed all comments submitted by 
the public and provided a summary of those, along with their own 
comments, to the State of Maine in March 1999. The State of Maine 
responded to the Services' comments on April 13, 1999.
    In order to conduct a comprehensive review of the protective 
measures in place and the status of the species, as was committed to in 
the 1997 withdrawal notice, the BRT was reconvened to update the 
January 1995 Status Review for Atlantic salmon. The 1999 Status Review 
was made available on October 19, 1999 (64 FR 56297). On November 17, 
1999, the Services published a proposed rule to list as endangered the 
GOM Atlantic salmon DPS, which was defined to include all naturally 
reproducing remnant populations of Atlantic salmon from the Kennebec 
River downstream of the former Edwards Dam site northward to the mouth 
of the St. Croix River at the United States-Canada border. At that 
time, the Services stated that, to date, they had determined that these 
populations were found in the Dennys, East Machias, Machias, Pleasant, 
Narraguagus, Sheepscot, and Ducktrap Rivers and in Cove Brook, all in 
eastern Maine. On November 17, 2000 (65 FR 69459), the Services 
published a final rule listing the GOM Atlantic salmon

[[Page 29358]]

DPS as endangered. In that final rule, we noted that a determination as 
to the appropriateness of adding the mainstem and upper tributaries of 
the Penobscot River to the DPS would be made upon completion of genetic 
analyses.
    The 2006 Status Review for Anadromous Atlantic Salmon (Salmo salar) 
in the United States (Fay et al., 2006) assessed genetic and life 
history information and concluded that the GOM DPS as defined in 2000 
should be redefined to encompass the Penobscot, Kennebec, and 
Androscoggin Rivers.
    We received a petition to list the ``Kennebec River population of 
anadromous Atlantic salmon'' as an endangered species under the ESA on 
May 11, 2005. NMFS published a notice in the Federal Register on 
November 14, 2006 (71 FR 66298), concluding that the petitioners 
(Timothy Watts, Douglas Watts, the Friends of Merrymeeting Bay, and the 
Maine Toxics Action Coalition) presented substantial scientific 
information indicating that the petitioned action may be warranted.
    On September 3, 2008 (73 FR 51415), we proposed to revise the 
extent of the GOM DPS and list the DPS as endangered; we also announced 
our 12-month finding that listing was warranted for the petition to 
list Atlantic salmon in the Kennebec River as endangered. On September 
5, 2008 (73 FR 51747), NMFS proposed to designate critical habitat for 
the revised GOM DPS of Atlantic salmon.
    The Services jointly administer the ESA as it applies to anadromous 
Atlantic salmon. In 2006, the USFWS Region 5 and NMFS Northeast Region 
entered into a Statement of Cooperation to divide responsibility for 
ESA implementation with respect to Atlantic salmon in order to enhance 
efficiency and effectiveness. Experience implementing this agreement, 
changes in structure of the recovery program, and anticipated increases 
in workload associated with this listing action caused the Services to 
revisit the 2006 agreement. A new Statement of Cooperation has been 
signed which clarifies roles and responsibilities between the Services. 
The Statement of Cooperation assigns the following responsibilities to 
NMFS: critical habitat designation; section 7 consultations (for both 
the species and critical habitat) on activities within estuaries and 
marine waters; ESA activities and actions to address dams; assessment 
activities in the estuary and marine environment; and international 
science and management. The Statement of Cooperation assigns the 
following responsibilities to USFWS: Administrative lead for 
development of a new recovery plan; section 10 recovery permits; 
section 10 habitat conservation plans (for all activities except dams); 
section 7 consultations (for both the species and critical habitat) on 
activities in freshwater (except dams); and the conservation hatchery 
program.

Summary of Comments

    With the publication of the proposed listing determination for the 
GOM DPS on September 3, 2008, we announced a 90-day public comment 
period extending through December 2, 2008. We held two public hearings 
at two different locations to provide additional opportunities and 
formats to receive public input as announced on October 21, 2008 (73 FR 
62459). 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). In December 
2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review 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 (Pub. L. 106-554), is 
intended to provide public oversight on the quality of agency 
information, analyses, and regulatory activities, and applies to 
information disseminated on or after June 16, 2005. We solicited 
technical review of the proposed listing determination from four 
independent experts, and received reviews from two of these experts. 
The independent expert review under the joint NMFS/FWS peer review 
policy collectively satisfies the requirements of the OMB Peer Review 
Bulletin and the joint NMFS/FWS peer review policy.
    Comments were submitted from interested individuals; state, Federal 
and tribal agencies; fishing groups; environmental organizations; 
industry groups; and peer reviewers with scientific expertise. The 
summary of comments and our responses below are organized into seven 
general categories: (1) Tribal comments (2) peer review comments; (3) 
comments on the delineation of the GOM DPS; (4) comments on the 
conservation status of the GOM DPS; (5) comments on the Services' 
identification and consideration of specific threats; (6) comments on 
the consideration of conservation efforts in general as well as in 
relation to the conservation status of the GOM DPS; and (7) comments on 
the Federal management of the GOM DPS.
    During the public comment period, the Services met with a number of 
groups to address specific concerns and questions on the proposed 
listing decision. The hydropower industry, agriculture industry, and 
various state agencies were among the groups with which the Services 
met. These discussions focused on clarification of information in the 
proposed rule and the potential implications of the listing decision on 
Atlantic salmon management and the ongoing operations of industry. 
These meetings were not held to solicit or receive comments on the 
proposed rule, but rather to provide clarification. Meeting 
participants were instructed to submit comments on the proposed rule 
through the regular means, and those are identified and addressed in 
the comments section of this rule. The Services also met with 
representatives from some of the Maine Tribes, including the Penobscot 
Indian Nation, The Houlton Band of Maliseets, the Aroostook Band of 
Micmacs, and the Passamaquoddy Tribe. The Services appreciate the 
importance of our Federal trust responsibilities and the spirit of 
government-to-government consultation embodied in Secretarial Order 
3206 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act) and Executive Order 
13175 (Consultation and Coordination with Indian Tribal Governments). 
The focus of the government-to-government consultation was on the 
implications of the listing decision on Atlantic salmon management and 
exploring options to further enhance our cooperation on Atlantic salmon 
recovery.

Tribal Comments

    Comment 1: The Penobscot Indian Nation commented that it maintains 
its right to directly take Atlantic salmon for sustenance purposes. 
Penobscot Indian Nation members have not lethally taken an Atlantic 
salmon since 1988 at which time two Atlantic salmon were harvested for 
ceremonial purposes. The Penobscot Indian Nation has not exercised its 
right to take any Atlantic salmon for traditional purposes since that 
time based upon concerns about the health of the Penobscot Atlantic 
salmon population. The Penobscot Indian Nation stated that it will 
continue to abstain from taking any Atlantic salmon until the status of 
the Penobscot population is healthy enough to be able to sustain some 
level of harvest.
    Response: The Services appreciate the importance of Atlantic salmon 
to the Penobscot Indian Nation in particular as well as other Maine 
Tribes. The Services recognize both the Penobscot Indian

[[Page 29359]]

Nation's tribal rights and the Services' responsibility to implement 
the ESA. Given that Penobscot Indian Nation has not exercised its right 
to take Atlantic salmon since 1988 on a voluntary basis, the Services 
believe that there is no conflict provided the Penobscot Indian Nation 
continues to voluntarily abstain from taking based upon continued 
concerns about the conservation status of the Penobscot population.
    Comment 2: The Penobscot Indian Nation commented that it would not 
take any position on whether the species should be listed as threatened 
or endangered. The Penobscot Indian Nation defers to the Services' 
expertise to make that determination.
    Response: The Services have provided justification for the listing 
decision in this final rule.

Peer Review Comments

    Comment 3: Both reviewers agreed with the delineation of the GOM 
DPS of Atlantic salmon. However, both reviewers felt there were parts 
of the text that could be further clarified, specifically consideration 
of available genetic data for the northern and southern boundaries in 
relation to the zoogeographic information used.
    Response: The Services received comments from both peer reviewers 
and the general public regarding necessary clarification of the data 
used to support the southern boundary delineation in particular. The 
Services have clarified the text in the DPS delineation section of this 
final rule.
    Comment 4: One of the peer reviewers stated that the discussion of 
the population PVA was perhaps overemphasized and could be simplified 
while still communicating extinction risk. The reviewer notes that 
there are simpler deterministic equilibrium models that could have been 
used to more simply state extinction risk.
    Response: The Services have clarified the text of the rule 
addressing PVAs and the projections. The Services acknowledge that 
there are a number of different types of models that could have been 
used to project extinction risk or demonstrate the conservation status 
of the species. The Services chose the PVA models because they are 
useful in assessing extinction risks. Further, the Atlantic salmon 
conservation and management community in Maine are more familiar with 
them than with other models, given the public's previous exposure to 
them during the recovery planning process and the development of the 
2006 Status Review. We agree with the peer reviewer that the PVA is 
just one piece of information considered in the listing determination; 
in the text of this final rule, we have clarified our findings with 
respect to the PVAs and how they factor into the biological status of 
the species.
    Comment 5: Both reviewers noted that the proposed rule lacked 
necessary description for how threats were categorized as either 
primary or secondary threats. Neither felt that this was an incorrect 
way to communicate the magnitude of the threat; rather, the basis for 
this determination should be better explained and supported in the 
text.
    Response: The Services agree that the description of threats as 
primary or secondary could have been better explained in the proposed 
rule. Upon review, the Services decided to take a different approach to 
describing the magnitude of the threat and its influence on the 
conservation status of the GOM DPS under the ESA. Rather than comparing 
the magnitude of the threats to each other, we have identified the 
relative impact of each of the threats on the species and its habitat. 
The text has been modified accordingly.
    Comment 6: One of the reviewers had concerns about the discussion 
of artificial propagation under Factor E (Other Natural or Manmade 
Factors Affecting its Continued Existence). While the reviewer agrees 
with the Services' conclusion that the conservation hatchery program is 
reducing the risk of extinction of the GOM DPS, he highlighted areas 
where the text should be clarified. Specifically, the short- and long-
term goals of the conservation hatchery program should be better 
described in relation to how the program is currently being conducted.
    Response: Upon closer review and in response to the peer review, 
the Services have changed the way in which artificial propagation and 
specifically the conservation hatchery program are described and 
considered. While there are both positive and negative effects 
resulting from any artificial propagation program, the Services have 
determined that it would be more appropriate to move the discussion of 
the role of the conservation hatchery program and its influence on the 
current status of the species and recovery to the section of the rule 
describing the status of the species rather than describing it in the 
section pertaining to the threats. The Services have also revised the 
description of the program and its role in recovery of the GOM DPS in 
response to comments received from both peer reviewers and the general 
public.
    Comment 7: One reviewer recommended minor clarifications to the 
text in Factor E addressing diadromous fish communities, marine 
survival, and competition.
    Response: The Services have clarified the text in these sections to 
be responsive to comments from both peer reviewers and the general 
public.
    Comment 8: Both reviewers commented that the section applying the 
Policy for Evaluation of Conservation Efforts when making Listing 
Decisions (PECE) to conservation actions was unclear and seemed 
incomplete. They questioned the analysis of only one conservation 
initiative, the Penobscot River Restoration Project (PRRP).
    Response: The Services agree that analysis of conservation efforts 
under PECE is more transparent if a complete analysis of a variety of 
efforts is included in the rule. We have revised the section addressing 
analysis of conservation actions.
    Comment 9: Both reviewers commented that the determination to list 
the GOM DPS of Atlantic salmon as endangered was sound and only 
suggested minor clarifications to the text.
    Response: The Services have made minor changes and clarified the 
text in this section.

Public Comments

    Comment 10: Many commenters believe that certain river systems, 
particularly the Androscoggin and the Union, should not be included 
within the GOM DPS boundaries. They argue that we erred in using 
different criteria (zoogeographic and genetic) to delineate the 
southern and northern boundaries of the DPS and that we should delay 
the decision to include the Androscoggin in the DPS until the naturally 
reared population in Androscoggin can be genetically characterized. 
Commenters also suggest that river systems where the species has been 
extirpated, such as the Union, should not be included within the DPS 
range.
    Response: The 1996 Interagency Policy Regarding the Recognition of 
Distinct Vertebrate Populations Under the Endangered Species Act (61 FR 
4722) (DPS Policy) states that a population segment may be considered 
discrete in relation to the remainder of the species to which it 
belongs if ``it is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.'' The DPS Policy 
does not restrict the Services to using only one measure to

[[Page 29360]]

define discreteness of a population segment. In fact, the introduction 
to the second element (significance) that must be met in evaluating 
whether a population qualifies as a DPS says that a population segment 
may be considered discrete based on ``one or more'' of the discreteness 
conditions.
    As more thoroughly described in the ``Review of Species 
Delineation'' section of this final rule, genetic data were available 
for us to delineate the northern boundary of the GOM DPS. These data 
show clear genetic differentiation between populations inhabiting 
rivers in Maine and rivers in New Brunswick, with the Dennys River 
population clustering more closely with the Maine population and the 
St. Croix River population clustering more closely with populations in 
New Brunswick. Therefore, we used the Dennys watershed as the northern 
boundary of the DPS. However, because of the combination of low numbers 
of Atlantic salmon in some rivers (e.g., only three naturally reared 
adult returns to the Androscoggin River (Table 3)) and the complete 
extirpation of the native stock in other rivers (e.g., Merrimack 
River), complete genetic data are not, and may never be, available for 
us to genetically characterize these populations.
    In the absence of clear genetic information to define the southern 
boundary of the GOM DPS, we used ecological factors in addition to the 
genetic factors described above. In particular, we used the 
zoogeographic boundary (the Penobscot-Kennebec-Androscoggin EDU and the 
Laurentian Mixed Forest Province) that ecologically separates the 
Androscoggin watershed from watersheds to the south (e.g., Saco, 
Merrimack, and Connecticut watersheds). EDUs, defined by Olivero 
(2003), are aggregations of watersheds with similar zoogeographic 
history, physiographic conditions, climatic characteristics, and basin 
geography. EDUs generally have similar physiographic and climatic 
conditions (Higgins et al., 2005). These differences would influence 
the structure and function of aquatic ecosystems (Vannote et al.,1980; 
Cushing et al., 1983; Minshall et al., 1983; Cummins et al., 1984; 
Minshall et al., 1985; Waters, 1995) and create a different environment 
for the development of local adaptations than rivers to the south. 
Therefore, we believe this zoogeographic boundary sufficiently 
satisfies the criteria to define discreteness for the southern edge of 
the GOM DPS.
    In listing the GOM DPS, our goal is ultimately to recover the 
species so it no longer requires the protection of the ESA. Therefore, 
we have delineated boundaries for the GOM DPS that include all the 
areas of current and historical occupation of Atlantic salmon where 
those salmon would be identified as belonging to the GOM DPS. During 
recovery planning, we will further evaluate the recovery needs of the 
GOM DPS. It is likely that different levels of attention will be paid 
to the recovery of the DPS in different watersheds, based in part on 
the threats within a particular watershed and the habitat potential 
within a watershed. Delineating the entire GOM DPS conserves this 
ecosystem for Atlantic salmon survival and recovery, in addition to 
supporting straying, providing refugia, and buffering against 
catastrophic events.
    Comment 11: Some commenters suggest that the boundaries of the DPS 
delineation should not extend into watersheds that were historically 
unoccupied by Atlantic salmon because they are upstream of historical, 
natural barriers (e.g., waterfalls).
    Response: Based on the comments received, analyses by NMFS (2008), 
and information contained in the 2006 Status Review, we delimited the 
freshwater range of the GOM DPS to include only those areas downstream 
of substantial barrier falls. For this final rule, we have modified the 
geographic boundaries of the freshwater range of the GOM DPS in the 
Androscoggin, Kennebec, and Penobscot Basins in the following ways: All 
freshwater bodies in the Androscoggin Basin are included up to Rumford 
Falls on the Androscoggin River and up to Snow Falls on the Little 
Androscoggin River; all freshwater bodies in the Kennebec Basin are 
included up to Grand Falls on the Dead River and the un-named falls 
(currently impounded by Indian Pond Dam) immediately above the Kennebec 
River Gorge; and all freshwater bodies in the Penobscot Basin are 
included up to Big Niagara Falls on Nesowadnehunk Stream, Grand Pitch 
on Webster Brook, and Grand Falls on the Passadumkeag River. See the 
``Delineating Geographic Boundaries'' section of this final rule.
    Comment 12: Many commenters stated that the Services did not 
accurately determine the conservation status of the GOM DPS. These 
commenters disagreed with the Services' proposal that the GOM DPS 
should be listed as endangered under the ESA. Instead, they argued that 
a threatened listing determination was more appropriate. The definition 
of endangered is ``in danger of extinction throughout all or a 
significant portion of its range.'' Several commenters argued the 
results of the PVA conducted by Legault (2004, 2005) demonstrated that 
the GOM DPS had a less than one percent chance of extinction provided 
that hatchery supplementation continued into the future. Thus, some 
commenters felt that the definition of threatened, ``likely to become 
endangered * * *'' was more appropriate given the role of hatcheries in 
preventing extinction. Commenters also cited the success of the 
conservation hatchery program as evidenced by the status of rivers 
within the 2000 GOM DPS that were supported by hatchery supplementation 
versus those that were not. The replacement rate reported by the USASAC 
was also cited as evidence of the positive contribution of the hatchery 
program to returns within the GOM DPS.
    Response: We agree that the conservation hatcheries (CBNFH and 
GLNFH) provide a buffer against short-term extinction risks. Without 
these facilities in place, the status of the GOM DPS would be even more 
dire. However, as described in the ``Population Status of the GOM DPS'' 
section of this final rule, only three of the four population 
attributes of interest (abundance, spatial structure, and genetic 
diversity) are enhanced by the conservation hatcheries. In particular, 
the lack of any evidence that hatchery fish have the potential to 
result in wild returns over successive generations remains a 
significant concern. While the increase in replacement rate reported in 
2007 by the USASAC is a positive sign, the overall trend remains 
negative when taken together. Further, 1 year of positive population 
growth is insufficient to justify threatened status.
    The extended timeframes for extinction (provided that hatchery 
supplementation continues) projected by Legault (2005) are further 
evidence of the buffering effect of hatcheries. However, these 
projections do not include any consideration of the negative effects of 
reliance on hatcheries over successive generations. Recent evidence 
suggests that the negative effects of domestication, inbreeding 
depression, and outbreeding depression can accrue over just a few 
generations (Araki et al., 2007). While we do not believe these 
negative effects are substantially reducing the long-term viability of 
the GOM DPS at this time, each successive generation will likely have 
higher risks of reduced fitness because of these effects. These 
additive risks over time are not modeled or otherwise accounted for in 
the extinction risks scenarios described by Legault (2005). The PVA 
results of Legault demonstrate that extinction occurs quickly when the 
conservation hatchery is eliminated. This provides

[[Page 29361]]

further evidence that the wild population is currently in danger of 
extinction.
    Finally, the SalmonPVA (Legault 2005) showed that at the constant 
low marine survival scenario representing the current environment, 
there was a 100 percent chance of extinction within 100 years 
regardless of the number of years of stocking, and extinction occurred 
within 20 years of the last stocking event. Legault (2005) demonstrated 
that an increase in marine survival substantially decreased the 
extinction probabilities. The scenario in which Legault found there to 
be a 1 percent chance of extinction assumed an increase in marine 
survival to the high of the previous 30 years. Unfortunately, we have 
no information to indicate that marine survival will significantly 
improve; therefore, there is no scientifically sound basis for assuming 
there is only a one percent chance of the GOM DPS going extinct.
    Comment 13: One commenter felt that both hatchery-origin and 
naturally reared Atlantic salmon should be equally weighted in terms of 
their population contribution to the GOM DPS. This commenter felt that 
the inclusion of both hatchery-origin and naturally reared Atlantic 
salmon in the GOM DPS was inconsistent with the way in which the 
Services weighted the relative contribution of each group to recovery. 
The Services' determination of the conservation status of the GOM DPS 
placed a higher weight on naturally reared fish in terms of their 
contribution to recovery versus hatchery origin fish (fish stocked as 
parr, smolts, or adults).
    Response: The stated purpose of the ESA is ``to provide a means 
whereby the ecosystems upon which endangered species and threatened 
species depend may be conserved'' (16 U.S.C. Sec.  1531(b)). Using 
captive propagation as a recovery tool is clearly warranted when 
necessary, as in the case of the GOM DPS. However, the intent of the 
ESA is quite clear: the ultimate goal of species recovery efforts 
should be recovery in the wild, free from human intervention. While 
CBNFH and GLNFH clearly reduce the immediate risk of extinction of the 
GOM DPS, they have not been shown to substantially contribute to 
recovery in the wild. The influence of hatcheries on productivity is 
not known with certainty, but overall productivity (even with hatchery 
supplementation) is quite low. Hatchery fish are included in the GOM 
DPS because they are essential to recovery, and the sole purpose of the 
conservation hatchery is recovery. But, recovery means recovery in the 
wild, so the goal of the hatchery is to, over time, increase the 
percentage of returns that are of wild origin to the point that the GOM 
DPS becomes self-sustaining and is no longer dependent on the hatchery. 
Over time, more adult returns should successfully spawn in the wild, 
resulting in replacement rates above 1.0. However, the idea that adult 
returns from hatchery contributions result in more spawners and, 
ultimately, more truly wild-origin adult returns, remains an untested 
hypothesis. The National Research Council (NRC, 2004) and the 
Sustainable Ecosystems Institute (SEI, 2007) identified this as a key 
limitation in available data on the recovery efforts of salmon in 
Maine. Without this information, it is impossible to estimate, with any 
certainty, the effect of hatcheries on this key population attribute 
(productivity). The conservation hatchery has assisted in slowing the 
decline and helped stabilize populations at low levels, but has not 
contributed to an increase in the overall abundance of wild salmon.
    Comment 14: Several commenters felt that the Services' listing 
determination placed too much emphasis on the potential for a 
catastrophic failure at the conservation hatchery facilities. 
Commenters acknowledged that this may have been an issue when the 
Services initially listed the GOM DPS in 2000, given that all 
broodstock were held at CBNFH. However, the expansion of the GOM DPS to 
include the Penobscot and other rivers means that there are now several 
facilities that house broodstock (e.g., GLNFH, the USDA facility, and 
the Cooke Facility on the Kennebec). Thus, loss of all broodstock due 
to a catastrophic failure is highly unlikely.
    Response: The Services agree that the loss of all potential 
broodstock would be extremely unlikely. However, it would not take the 
loss of all broodstock to significantly jeopardize the long-term 
viability of the GOM DPS. Catastrophic broodstock loss or a 
catastrophic loss of fry, parr, or smolt cohorts would result in a 
decrease in effective population size, loss of genetic diversity, and a 
multi-year lag while life stages rebuild, during which time there would 
be limited or no hatchery production or stocking.
    Domestic broodstock for the Penobscot is currently maintained at 
facilities in addition to GLNFH. These domestic broodstocks should be 
viewed as backups. These sources are meant to be replenished annually 
(i.e., new domestic broodstock lines are created each year) for GLNFH 
to reduce long-term selection to the hatchery environment. If there was 
a situation where the numbers of adult returns were reduced to 150 or 
less, then all production would go toward smolt production and not to 
fry stocking or to replenish domestic broodstocks. These backup 
broodstocks would no longer exist (M. Bartron, USFWS, pers. comm., 
2009). If these domestic broodstocks were used to propagate future 
domestic broodstocks, there would be greater concerns about the 
decreased fitness of their offspring in the wild from successive 
generations of selection to captivity.
    The Services have concluded that the conservation hatcheries 
significantly contribute to the maintenance of the genetic diversity of 
the GOM DPS. However, there are both long-term and short-term risks of 
reliance on hatcheries that have been considered above in the 
``Population Status of the GOM DPS'' section of this final rule. In 
addition, recent events provide additional evidence of the potential 
for catastrophic events to further exacerbate extinction risks. In 
January 2009, significant mortality occurred to eggs of Penobscot 
origin at CBNFH. Low egg survival rates in the Penobscot population 
required the use of the domestic line for smolt production (50,000) for 
the first time ever. The relative fitness rate of the sea-run line has 
not been compared to the domestic line, so the demographic effects are 
unpredictable. The cause for the low egg survival rate is unknown, but 
is being investigated at the time of writing of this rule.
    Comment 15: Several commenters felt that by increasing the 
geographic scope of the GOM DPS to include additional populations, one 
being the Penobscot, which has the highest returns to the DPS, the 
extinction risk is substantially reduced. Therefore, these commenters 
felt that a threatened listing determination is warranted.
    Response: All things being equal, larger populations do have lower 
extinction risks. However, the inclusion of the Penobscot population in 
the GOM DPS does not alter the trends in abundance, which are pointing 
toward extinction. The addition of the Penobscot population does 
provide some measure of security from immediate extinction risks, but 
does not reverse the long-term trend which is toward extinction.
    Comment 16: At least one commenter argued that a threatened listing 
determination could be justified based upon the returns to both the 
Penobscot and Downeast Salmon Habitat Recovery Units (SHRU). These two 
SHRUs, according to the commenter, satisfy the minimum recovery 
criteria by having at

[[Page 29362]]

least 500 (naturally reared and hatchery origin) salmon within each 
SHRU.
    Response: In developing its draft recovery criteria for use in the 
critical habitat designation process, NMFS specifically noted that in 
order to be eligible for recovery, SHRUs would not only need to meet a 
minimum population size of 500 individuals, but also show a positive 
population growth rate for at least two generations (10 years). 
Further, only wild-origin salmon are included in these measures because 
the goal of recovery is to achieve a self-sustaining population; a 
population that relies on hatchery stocking is not self-sustaining and 
therefore does not contribute to achievement of the recovery criteria. 
These criteria have clearly not been met in either case given the long-
term downward trends in abundance and preponderance of hatchery-origin 
salmon composing the GOM DPS as described throughout this final rule. 
NMFS' draft recovery guidelines (2008) also state that in order to 
delist the GOM DPS, the threats identified at the time of listing must 
be addressed.
    Comment 17: Many commenters argued that the PVA results of Legault 
(2004, 2005) and Fay et al. (2006), coupled with low returns and poor 
marine survival, demonstrate that the Services are correct in their 
proposal to list the GOM DPS as endangered under the ESA. These 
commenters felt that the intent behind the ESA is to recover wild 
populations and that hatchery origin fish are only a temporary option 
until the wild population recovers.
    Response: We concur. We also recognize the long-term risks of 
reliance on hatcheries that are not accounted for in either PVA. 
Therefore, we are issuing this final rule to list the GOM DPS of 
Atlantic salmon as endangered.
    Comment 18: A small number of commenters argued against listing the 
expanded GOM DPS at all. They argued that the rivers included in the 
expansion are heavily stocked and do not represent self-sustaining 
populations. They also stated that existing regulatory mechanisms are 
sufficiently protective, and thus, listing under the ESA is not 
necessary.
    Response: Many endangered species are currently not self-
sustaining. In fact, this is a key factor in determining whether a 
species should be listed; self-sustaining populations are generally 
less likely to need the protection of the ESA, depending on the threats 
facing the species. The Services do recognize the long history of 
stocking to support Atlantic salmon recovery in Maine. We describe both 
the positive and negative effects of hatchery supplementation in the 
``Population Status of the GOM DPS'' section of this final rule. The 
weight of the available genetic, life history, and ecological data 
clearly indicates that the GOM DPS (including conservation hatchery 
populations used to supplement natural populations) satisfies both the 
discreteness and significance criteria of the DPS Policy, and 
therefore, is a DPS. The fact that the GOM DPS is not self-sustaining 
with the existing regulatory mechanisms and is trending toward 
extinction indicates it warrants the protection of the ESA.
    Comment 19: Several commenters felt that the threat posed by dams 
was overstated. Specifically, they disagree with the Services' 
assertion that current fish passage technology results in a high level 
of mortality and that dams contribute to significant changes in fish 
assemblages and predation. One commenter stated that in focusing on the 
threat posed by dams, the Services failed to recognize hydropower as a 
clean source of energy production.
    Response: The Services disagree that the threat posed by dams is 
overstated. The National Research Council stated in 2004 that the 
greatest impediment to self-sustaining Atlantic salmon populations in 
Maine is obstructed fish passage and degraded habitat caused by dams. 
There are many studies that support this conclusion that are reviewed 
and cited in Section 8 of Fay et al. (2006). Dams result in direct loss 
of production habitat, alteration of hydrology and geomorphology, 
interruption of natural sediment and debris transport, and changes in 
temperature regimes (Wheaton et al., 2004). Riverine areas above 
impoundments are typically replaced by lacustrine habitat following 
construction. Dramatic changes to both upstream and downstream habitat 
directly result in changes in the composition of aquatic communities, 
predator/prey assemblages, and species composition (NRC, 2004; Fay et 
al., 2006; Holbrook, 2007). Upstream changes in habitat are known to 
create conditions that are ideal for known predators of Atlantic salmon 
such as chain pickerel, smallmouth bass, and avian predators like 
double crested comorants (Fay et al., 2006). Furthermore, dams not only 
change predator-prey assemblages, but dam passage also negatively 
affects predator detection and avoidance in salmonids (Raymond, 1979; 
Mesa, 1994). Adults may also be susceptible to predation when they are 
attempting to locate and pass an upstream passage facility at a dam 
when stressed by higher summer temperatures (Power and McCleave, 1980).
    Even highly effective passage facilities cause Atlantic salmon 
mortality. Passage inefficiency and delays occur at biologically 
significant levels, resulting in incremental losses of pre-spawn 
adults, smolts, and kelts (a life stage after Atlantic salmon spawn). 
Dams are known to typically injure or kill between 10 and 30 percent of 
all fish entrained at turbines (EPRI, 1992). With rivers containing 
multiple hydropower dams, these cumulative losses could compromise 
entire year classes of Atlantic salmon. Studies in the Columbia River 
system have shown that fish generally take longer to pass a dam on a 
second attempt after fallback compared to the first (Bjornn et al., 
1999). Thus, cumulative losses at passage facilities can be significant 
and are an important consideration.
    The Services do recognize that hydropower does not contribute to 
air pollution as do many other energy sources. However, dams remain a 
direct and significant threat to Atlantic salmon.
    Comment 20: Several commenters stated that existing recreational 
fishing regulations in the State of Maine are sufficiently protective 
of Atlantic salmon. Specifically, minimum and maximum length limits are 
cited for landlocked salmon and brown trout, as well as gear 
restrictions, area closures, and outreach programs to educate anglers 
on identification and mandatory regulations. Several of these 
commenters highlighted the importance of the support of the angling 
community to the conservation and recovery effort. They encouraged the 
Services to coordinate with the angling community prior to enacting 
regulations to ensure that unnecessary regulations are not enacted and 
that angling opportunities are made available when biologically 
appropriate and that any changes are consistent with the 1996 Policy 
for Conserving Species Listed or Proposed for Listing Under the ESA 
While Providing and Enhancing Recreational Fishing Opportunities. 
Several commenters directly stated that the health of the Penobscot 
population could indeed support a directed catch and release fishery.
    Response: There are a number of minimum and maximum length limits 
that help reduce the threat of take of juvenile and adult anadromous 
Atlantic salmon. Similarly, closures have been enforced in certain 
areas where anadromous Atlantic salmon may be particularly susceptible 
to take. However, the Services believe that many of these regulations 
are still not sufficiently protective of outmigrating smolts and of 
adults. Minimum and

[[Page 29363]]

maximum length limits should be adjusted to be more protective, 
specifically, the maximum length limit of 25 inches (63.5 cm) for 
landlocked salmon should be decreased to 16 inches (40.6 cm) in certain 
areas. Closures should be prompted by the presence of adult Atlantic 
salmon in certain areas such as thermal refugia, overwintering areas, 
and holding pools. Some closures mandated by the State have been the 
result of emergency action following the lethal take of Atlantic 
salmon. A proactive approach to closures and regulation implementation 
will be more effective in terms of salmon recovery.
    The Services recognize that the angling community has lent 
significant support to the conservation and recovery of Atlantic salmon 
in the GOM DPS. We believe that we have been very inclusive and 
transparent with respect to the angling community and issues of 
concern. We invited representatives of angler organizations to 
participate as members of the Atlantic Salmon Recovery Team and have 
been engaged and participated in critical discussions in other forums 
such as the Maine Atlantic Salmon Technical Advisory Committee and 
NASCO. We will continue to coordinate and collaborate with the angling 
community as we move forward with recovery and management of the GOM 
DPS. We believe that we have been consistent with the 1996 Policy for 
Conserving Species Listed or Proposed for Listing Under the ESA while 
Providing and Enhancing Recreational Fishing Opportunities in our 
communication and coordination with the angling community, and we will 
continue to be consistent in the future.
    It is not biologically appropriate, at this time, to allow a 
directed catch and release fishery on the Penobscot River. The Atlantic 
salmon population in the Penobscot River is highly dependent on 
hatchery stocking; broodstock goals have not been met in most recent 
years; and the population is less than 10 percent of its spawning 
escapement target. Given these low numbers, it is important to meet 
broodstock goals and also to allow some returning adults to spawn 
naturally in the river. Decreasing the chances of reaching both of 
these goals by allowing targeted fishing on returning adults does not 
further the conservation of the species. There also are legal 
restrictions on targeted fishing for a listed species.
    Comment 21: Maine's Department of Inland Fish and Wildlife (MIFW) 
stocks a variety of fish species to provide angling opportunities to 
Maine citizens. The bulk of the comments on MIFW stocking programs were 
submitted as comments on Factor B (Overutilization for Commercial, 
Recreational, Scientific and Educational Purposes). While stocking 
programs do cause take of Atlantic salmon due to angling, they also can 
have a negative impact on Atlantic salmon due to competition, 
particularly from non-native species. Factor E (Other Natural or 
Manmade Factors Affecting Its Continued Existence) addresses the issue 
of competition. Thus, comments related to stocking and potential 
competition issues are addressed in the section of the response to 
comments under Factor E.
    Comments that were directly related to the impact of stocking 
programs on Atlantic salmon as a result of the expansion or increase in 
angling opportunities cite coordination with the MDMR as evidence that 
measures are taken to minimize any harmful effects of stocking 
practices on Atlantic salmon. Commenters also stated that in some areas 
where the habitat is not fully seeded with Atlantic salmon, informal 
agreements between MDMR and MIFW have been reached to allow for a 
certain level of fish stocking to enhance angling opportunities without 
creating a significant threat to salmon that may be in the area. One 
commenter also cited guidelines that are in the process of being 
finalized that will be used to manage rainbow trout stocking. Several 
commenters disagree with the Services' conclusion that these stocking 
programs are harmful to Atlantic salmon.
    Response: MIFW stocking practices that create more angling 
opportunities in areas occupied or used by Atlantic salmon contribute 
to the potential for take to occur as a result of misidentification, 
bycatch, or poaching. MIFW stocking programs are not directed to 
Atlantic salmon recovery or ecosystem restoration. They are intended to 
create and enhance angling opportunities, and, where these overlap with 
salmon, there is increased risk to salmon. MIFW currently stocks 
landlocked Atlantic salmon, brown trout, brook trout, rainbow trout, 
and splake in Atlantic salmon drainages, posing a threat to Atlantic 
salmon in the GOM DPS (Fay et al., 2006). The information presented by 
commenters with respect to angling regulations and stocking program 
management does not change our conclusion that angling and stocking 
programs associated with increased angling opportunities pose an 
ongoing threat to Atlantic salmon in the GOM DPS. While coordination 
may reduce or minimize exposure of Atlantic salmon to increased angling 
pressure, the fact remains that angling pressure is higher than it 
would be in the absence of these stocking programs.
    Comment 22: One commenter was concerned that the text on the threat 
of disease did not reflect the State of Maine's effort to attain Class 
A fish health ratings for the hatcheries managed by MIFW.
    Response: The text has been changed to reflect the effort on behalf 
of the State of Maine to achieve the Class A fish health rating. With 
this effort, disease issues still pose a threat to Atlantic salmon as 
described in Factor C below.
    Comment 23: One commenter felt that the text in the predation 
threat analysis did not acknowledge the restoration efforts of the 
State of Maine, specifically the Penobscot River Multi-species 
Management Plan and the Penobscot Interagency Technical Committee.
    Response: The Services believe that these two conservation actions 
are more appropriately described and evaluated in the analysis of 
conservation efforts under the Policy for Evaluating Conservation 
Efforts. We have revised that analysis to incorporate information on 
both of these efforts.
    Comment 24: Many commenters disagree with the Services' conclusion 
that the regulatory mechanisms to address the threat posed by dams are 
inadequate. These commenters stated that a number of laws directly 
(e.g., Federal Power Act (FPA)) and indirectly (e.g., ESA, National 
Environmental Policy Act) allow Federal resource agencies to influence 
passage issues and hydropower agreements. They state that the Federal 
Energy Regulatory Commission (FERC) process is very transparent and 
allows for public involvement. For non-FERC dams, commenters cited the 
oversight of the State of Maine Department of Environmental Protection 
(MDEP) in addressing fish passage, flow regimes, and water quality.
    Response: Notwithstanding the ESA, the current state and Federal 
regulatory mechanisms in place to address operation of dams were not 
designed to address survival or recovery of endangered species. The 
Services recognize that there are a number of laws that create a 
process whereby industry, Federal resource agencies, the public, state 
agencies and other groups are involved in relicensing, brokering 
settlement agreements, or prescribing fish passage. However, as 
described in the section of this rule that addresses Factor D, there 
are substantial shortcomings associated with these processes. First, 
most of these processes require a ``balancing'' of energy and 
environmental resources. Under the ESA, deference is given to the 
species.

[[Page 29364]]

The FERC process is extremely lengthy, and any contentious fishway 
prescriptions could potentially take years to agree on and implement. 
Furthermore, neither upstream nor downstream fish passage measures are 
100 percent efficient. Their limitations contribute to juvenile and 
adult injury and mortality, as well as habitat alterations that affect 
the health and survival of all life stages of Atlantic salmon. Sections 
10(a) and 10(j) of the FPA could be used by the Services to address the 
impact of dams on habitat; however, these regulatory mechanisms are 
often discretionary and not necessarily required by FERC (Fay et al., 
2006). Section 4(e) of the FPA may also be used to recommend fisheries 
enhancements; however, this section is only applicable to certain 
Federal lands which are a rare occurrence in Maine (Fay et al., 2006).
    It is also important to recognize that, while settlement agreements 
can be a very useful tool to address passage issues, they are not 
necessarily removing the issue of passage mortality or in some cases, 
even ensuring passage facilities. For example, the Kennebec Hydro 
Developers Accord uses biological triggers to establish sequential 
upstream passage. If these biological triggers are not met, upstream 
passage could be suspended further into the future.
    The majority of dams within the GOM DPS range do not require a FERC 
license or water quality certificate from the MDEP. These non-
jurisdictional dams are usually small, non-generating dams that were 
historically used for flood control, water storage, and other purposes. 
Virtually none of these dams have fish passage facilities, and almost 
all of them are impacting historical salmon habitat. While there is a 
process whereby the public can petition the State of Maine to set 
minimum flows and water levels, the State has no authority to prescribe 
fishery enhancements without public request or petition. To our 
knowledge, no fishways have ever been installed at any dam in the State 
of Maine using the fishway petition process outlined pursuant to 12 
Maine Revised Statutes Annotated (MRSA) Sec.  12760. Therefore, 
significant issues are ongoing with respect to the current mechanisms 
in place to address the threat of both FERC and non-FERC licensed dams.
    While regulations exist, these regulations have not proven 
effective in preventing impacts or quickly responding to remove 
impacts. In fact, the most progress on fish passage issues has been 
accomplished by working outside of these regulatory mechanisms in the 
negotiation of fish passage agreements. Aspects of the current 
regulations we find inadequate include the time delays experienced, 
extensive resource requirements, and inability to prescribe a solution 
which eliminates the impacts from dams.
    Comment 25: Some commenters stated that Maine's existing water 
quality standards and criteria and its antidegradation policy under the 
Clean Water Act (CWA) as administered by the State of Maine (Maine 
Pollutant Discharge Elimination System (MPDES)) are sufficiently 
protective of all life stages of Atlantic salmon. Furthermore, 
commenters state that lack of requests by the Services to condition 
permits to avoid substantial impairment to Atlantic salmon is evidence 
that the present standards and criteria are protective of Atlantic 
salmon.
    Response: Maine's water classification program, of which the 
State's antidegradation policy is a part, provides for different water 
quality standards for different classes of waters (e.g., there are four 
classes for freshwater rivers, all of which are found within the GOM 
DPS range). Some portions of the GOM DPS are in the highest water 
quality classification where water quality standards are the most 
stringent. These standards become progressively less stringent with 
each lower water classification. These standards were not defined 
specifically for Atlantic salmon. Additionally, permits allow an area 
of initial dilution or mixing zone where water quality requirements are 
reduced. Salmon in or passing through such zones would be exposed to 
discharges below water quality standards.
    Even where water quality standards are believed to be sufficiently 
protective when met, there are circumstances and conditions where 
discharges do not meet water quality standards. There are documented 
cases where minimum dissolved oxygen standards were not met in class C 
waters (MDEP, 2008). Adequate dissolved oxygen concentrations are 
necessary for fish health (Decola, 1970). The observed incidents of low 
dissolved oxygen were potentially harmful to any salmon present.
    The fact that the Services have not requested that permits be 
conditioned to protect Atlantic salmon does not mean that water quality 
standards are sufficiently protective of Atlantic salmon. Currently, 
the Services review only permits that may affect salmon where listed in 
2000, and the number of permits issued in this area has been relatively 
small. Expansion of the DPS as a result of this final rule will 
encompass rivers for which there are many more activities requiring 
Maine Pollutant Discharge Elimination System (MPDES) permits, and where 
water classifications and associated water quality standards are lower, 
which causes us to be concerned about potential impacts to salmon. See 
Factors A and D, below, for our analysis of the impact of water quality 
on the GOM DPS.
    Comment 26: Some commenters stated that we inaccurately emphasized 
the effects of Overboard Discharges (OBD) on Atlantic salmon. They 
explain that the number of OBDs, the volume of discharge, and the 
treatment requirements result in a negligible effect on water quality 
within the range of the GOM DPS.
    Response: In the proposed rule, we stated that we were concerned 
about the potential negative impacts of OBDs on water quality and 
identified OBDs as a threat to the GOM DPS. While we remain concerned 
about the potential for OBDs to impact Atlantic salmon, we have 
determined that we have insufficient information to determine whether 
OBDs are currently causing or will cause harm to the GOM DPS. 
Therefore, we have removed OBDs as an identified stressor under Factors 
A and D below.
    Comment 27: Commenters emphasized the importance of Maine's water 
rule (MDEP Chapter 587 Rule) in protecting in-stream flows and habitat 
for aquatic life.
    Response: We agree that the Water Rule represents substantial 
progress toward limiting negative impacts on in-stream flows due to 
water withdrawals, particularly for class AA waters. However, there are 
aspects of the water rule that are not sufficiently protective of 
Atlantic salmon. Because the flow standards for class A, B, and C 
waters are based on the seasonal base flow (the average flow over an 
entire season), withdrawals would be allowed that maintain flow above 
the seasonal base flow but reduce flow below the median monthly flow. 
During times when flows are naturally low, allowing withdrawals to 
reduce flows further, to levels below the median monthly flow, would 
negatively impact Atlantic salmon. See Factors A and D, below, for our 
analysis of the impacts of water withdrawals under Maine's water rule 
on the GOM DPS.
    Comment 28: Some commenters noted Maine's forestry-related 
regulations and standards that are protective of Atlantic salmon.
    Response: We concur that activities conducted in compliance with 
the Shoreland Zoning Act, Maine Forest

[[Page 29365]]

Practices Act, Natural Resource Protection Act, Protection and 
Improvement of Waters Act, Erosion and Sedimentation Control Law, and 
the Statewide Standards for Timber Harvesting and Related Activities in 
Shoreland Areas reduce threats to Atlantic salmon from sedimentation 
and other impacts related to forestry activities. The State's 
compliance monitoring and enforcement of these regulations and 
standards will assist in evaluating and confirming that forestry-
related impacts to salmon are minimized. We discuss forestry activities 
and other potential non-point sources of pollution under Factors A and 
D below.
    Comment 29: Several commenters indicated that the threat of poor 
marine survival was understated. They felt that considering that poor 
marine survival was characterized as one of the primary threats to the 
GOM DPS, the Services have failed to adequately address it in either 
the proposed rule or the 2006 Status Review.
    Response: The Services agree and have incorporated additional 
information on marine survival into the final rule to properly reflect 
the significance of the threat of poor marine survival to the recovery 
of the GOM DPS. Marine survival and climate change are both addressed 
through analysis of the five factors specified in section 4(a)(1) of 
the ESA.
    Comment 30: One commenter disagreed with the identification of 
depleted diadromous fish communities as a threat to the GOM DPS. The 
commenter felt that the State of Maine is making strides in 
implementing management actions aimed at restoration of diadromous fish 
communities. These programs will need time to achieve success; however, 
the commenter argues that the threat need not be considered given that 
there are programs in place to address diadromous fish restoration.
    Response: The Services acknowledge the efforts by the State of 
Maine at diadromous species restoration in the analysis of State 
protective efforts. While the goal of these efforts is to restore the 
full suite of diadromous fishes, that goal is far from being realized. 
Further, there is not a high level of certainty that these actions will 
be implemented and effective. It is very encouraging that the role of 
restored diadromous fish communities is recognized; however, 
significant coordination, effort, and commitment are necessary to 
achieve the goal. Thus, the threat of depleted diadromous fish 
communities remains. The PECE analysis section of this rule contains 
the Services' evaluation of these programs as well as other 
conservation efforts.
    Comment 31: One commenter disagreed that MIFW sport fish stocking 
programs pose a threat to Atlantic salmon. These comments were 
submitted under Factor B, but in large part were directed at the way 
the Services characterized the threat of competition due to stocking 
under Factor E. The commenter stated that coordination between MIFW and 
MDMR is evidence that measures are taken to minimize any harmful 
effects of stocking practices on Atlantic salmon. In some areas where 
the habitat is not fully seeded with Atlantic salmon, informal 
agreements allow for a certain level of stocking without adversely 
affecting Atlantic salmon. The commenter also cited guidelines that are 
in the process of being finalized that will be used to manage rainbow 
trout stocking.
    Response: The Services disagree with the commenter that the threat 
posed by MIFW stocking programs is adequately addressed by the current 
stocking management program. Text has been added to the section of the 
rule that discusses competition to provide additional detail to clarify 
the negative impact current stocking programs have in terms of 
contributing to the threat of competition between other species and 
Atlantic salmon. The Services do recognize that a Memorandum of 
Understanding (MOU) exists between MDMR and MIFW that establishes a 
process for the management and stocking of freshwater salmonid fish 
species in Atlantic salmon river systems in Maine to ``reduce the 
effects of competing finfish species on Atlantic salmon populations.'' 
The MOU states that on an annual basis, at the very least, before April 
each year, biologists from MDMR and the MIFW will meet as a joint 
committee to: (1) Identify all current stocking programs for all 
finfish in identified Atlantic salmon river systems; (2) according to 
the best available scientific information on species interactions, 
assess the possible interactions between Atlantic salmon and inland 
fisheries management proposals; (3) identify and evaluate areas of 
concern and assess ways to minimize impacts; (4) implement agreed upon 
management actions or changes (no fish stocking or changes in 
management programs on these rivers shall take place other than in 
accordance with this agreement); and lastly, (5) develop 
recommendations for the Commissioner of Inland Fisheries & Wildlife and 
the other members of the Board of the Atlantic Salmon Commission for 
areas of concern that cannot be resolved by the joint committee. While 
this MOU does provide a process for managing stocking practices, it 
does not address all of the threats posed by the State's stocking 
practices. Some of the issues this process does not address include, 
but are not limited to, the following: (1) Cumulative effects of 
repeated stockings and multi-species stocking on Atlantic salmon; (2) 
competition for suitable over-wintering areas; (3) threats from 
introduction of parasites or disease from stocking; (4) the threats 
posed by Atlantic salmon/brown trout hybrids; and (5) management of 
other fish species (smallmouth bass, chain pickerel, etc.). Because 
these and other issues still have not been addressed fully, state 
stocking programs continue to pose a threat to the GOM DPS as is 
described in this rule.
    Comment 32: Several commenters felt that the Services did not give 
enough consideration to ongoing conservation efforts in the GOM DPS. 
Commenters used specific examples, including, but not limited to, the 
Penobscot River Restoration Project, the Kennebec Hydro Agreement, and 
Project SHARE (Salmon Habitat and River Enhancement). Many commenters 
felt that the PECE was not appropriately applied. Commenters suggested 
that the Services may need to use the PECE to reevaluate projects like 
the Penobscot River Restoration Project for which funding and certainty 
of implementation may have changed since publication of the proposed 
rule.
    Response: The Services agree that analysis of conservation efforts 
under PECE is more transparent if a more complete analysis of major 
efforts is included in the rule. We have revised the section addressing 
analysis of conservation efforts.
    Comment 33: Some commenters are concerned that having two Federal 
agencies (NMFS and USFWS) share jurisdiction of Atlantic salmon is 
inefficient, which is detrimental to the overall conservation of 
Atlantic salmon. As a result, some recommended that NMFS be assigned 
the lead Federal agency for management of Atlantic salmon.
    Response: Joint jurisdiction of Atlantic salmon was first 
established in 1994, when the Services worked together jointly to 
respond to a listing petition for Atlantic salmon. While we acknowledge 
that sharing jurisdiction for an endangered species is challenging, we 
believe that both agencies can contribute positively to recovery. 
Therefore, we will continue to share jurisdiction for Atlantic salmon. 
The goal of both agencies is the recovery of Atlantic salmon; to that 
end we will

[[Page 29366]]

strive to work cooperatively and effectively to conserve Atlantic 
salmon. To clarify roles and responsibilities of each agency and help 
resolve potential differences, we have developed a Statement of 
Cooperation (NMFS and USFWS, 2009). The preamble to this rule 
identifies how roles and responsibilities have been divided between the 
two agencies.
    Comment 34: Some commenters were concerned about the lack of 
resources to fulfill the requirements of the ESA for Federal agencies, 
the State, Tribes, or the regulated community as will be required by 
listing the Atlantic salmon in a larger area.
    Response: As required by section 4(b)(1)(A) of the ESA, listing 
decisions are to be made solely on the basis of the best scientific and 
commercial data available. We fully recognize that resources are 
limited and intend, through our collaborative partnership with the 
State and Tribes, to make most efficient use of our collective 
resources to conserve and recover Atlantic salmon. The challenge of 
addressing high workload with limited resources is one of the reasons 
the Services have divided responsibility for ESA implementation by 
activity as noted in the response above. We will work within the ESA's 
flexible framework to achieve the regulatory requirements of the ESA.
    Comment 35: Several commenters suggested that listing 
determinations should consider the likelihood of future cooperation and 
collaboration toward recovery.
    Response: Under the ESA, the Services must make each listing 
determination solely on the best available data on the status of the 
species, the five factors specified in section 4(a)(1) of the ESA, and 
the efforts being made to protect the species. The possibility of 
enhanced cooperation in future recovery actions is not one of the five 
statutory factors. While we recognize the importance of cooperation in 
achieving recovery, it is not one of the factors identified by the ESA 
for making listing determinations. Therefore, we have not considered it 
in this determination.

Summary of Factors Affecting the GOM DPS

    Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations 
at 50 CFR part 424 set forth procedures for adding species to the 
Federal List of Endangered and Threatened Species. Under section 4(a) 
of the ESA, we must determine if a species is threatened or endangered 
because of any of the following five factors: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    We have described the effects of various factors leading to the 
decline of Atlantic salmon in previous listing determinations (60 FR 
50530, September 29, 1995; 64 FR 62627, November 17, 1999; 65 FR 69459, 
November 17, 2000) and supporting documents (NMFS and USFWS, 1999; NMFS 
and USFWS, 2005). The reader is directed to section 8 of Fay et al. 
(2006) for a more detailed discussion of the factors affecting the GOM 
DPS. In making this finding, information regarding the status of the 
GOM DPS of Atlantic salmon is considered in relation to the five 
factors specified in section 4(a)(1) of the ESA.
    In making this evaluation, we have carefully considered the 
relative demographic effects of each threat to the GOM DPS. In 
particular, there are large distinctions between marine survival and 
freshwater survival that are important to characterize the current 
status of the GOM DPS. From a demographic viewpoint, incremental 
increases in marine survival have a much greater impact on the 
population than do increases in freshwater survival; although, 
increases in marine survival may be more difficult to achieve. It is 
important to note that marine survival is calculated from the last time 
smolts are counted in a river until adults return to spawn. Thus, 
marine survival estimates may include some portion of freshwater, 
estuarine, and near-shore mortality in addition to open ocean 
mortality.
    The historical range of freshwater survival for U.S. populations is 
estimated to be approximately 0.13 to 6.09 percent (Legault, 2005). 
These estimates are based on numerous studies on different life stages 
of the freshwater phase across a wide spatial and temporal scale. 
Current marine survival (smolt to adult) for U.S. populations is 
estimated to range from 0.09 to 1.02 percent based on total smolt 
cohort return rates for the Penobscot (hatchery smolt returns, 1995 to 
2004) and Narraguagus Rivers (naturally reared smolt returns, 1997 to 
2004) (ICES, 2008). For the reasons mentioned above, marine survival 
estimates of hatchery smolts in the Penobscot also include dam-related 
mortality.
    Improvements in these survival rates are necessary to reach the 
point where each fish is replacing itself and to eventually result in 
population growth toward recovery. Increases in freshwater survival 
will enhance the probability of recovery; however, improvements in 
marine survival are necessary to achieve stability and growth. While 
numerous natural and anthropogenic factors during the freshwater phase 
influence Atlantic salmon populations (Baum et al., 1983; McCormick et 
al., 1998; Parrish et al., 1998), the effects of marine survival are 
thought to have a greater influence on population levels (Friedland et 
al., 2003; Jonsson and Jonsson, 2004; Chadwick, 1987) in part because 
the annual variation in marine survival is nearly four times greater 
than that in freshwater (Bley, 1987; Reddin et al., 1988). Thus, marine 
survival has a significant impact on adult production. As a result, 
marine survival must improve in order to recover the GOM DPS (Legault, 
2005), and, thus, low marine survival is one of the most important 
threats contributing to the poor status of the species. Other factors 
affecting the freshwater stages of salmon within the range of the GOM 
DPS can be quite pervasive (e.g., poor connectivity due to improperly 
sized culverts). Below, these factors are described as stressors that 
collectively contribute to the poor status of the GOM DPS; however, 
those factors that affect later life stages (typically considered as 
marine survival) have the greatest demographic effect.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Changes to the GOM DPS's natural environment are ubiquitous. Both 
contemporary and historic land and water use practices such as damming 
of rivers, forestry, agriculture, urbanization, and water withdrawal 
have substantially altered Atlantic salmon habitat by: (1) Eliminating 
and degrading spawning and rearing habitat, (2) reducing habitat 
complexity and connectivity, (3) degrading water quality, and (4) 
altering water temperatures. These impacts and their effects on salmon 
are described in detail by Fay et al. (2006). Here, we summarize the 
stressors that are having the greatest impact on the GOM DPS.
Dams
    Dams are among the leading causes of both historical declines and 
contemporary low abundance of the GOM DPS of Atlantic salmon (NRC, 
2004). Dams directly limit access to otherwise suitable habitat. Prior 
to the construction of mainstem dams in the early 1800s, the upstream 
migrations of salmon extended well into headwaters

[[Page 29367]]

of large and small rivers alike, unless a naturally impassable 
waterfall existed. For example, Atlantic salmon were found throughout 
the West Branch of the Penobscot River (roughly 350 km inland) and as 
far as Grand Falls (roughly 235 km inland) on the Dead River in the 
Kennebec Drainage (Foster and Atkins, 1867; Atkins, 1870). Today, 
however, upstream passage for salmon on the West Branch of the 
Penobscot is nonexistent and on the Kennebec is limited to trapping and 
trucking salmon above the first mainstem dam. Dams also change 
hydraulic characteristics of rivers. These changes, combined with 
reduced, non-existent, or poor fish passage, influence fish community 
structure. Specifically, dams create slow-moving impoundments in 
formerly free-flowing reaches. Not only are these altered habitats less 
suitable for spawning and rearing of Atlantic salmon, they may also 
favor nonnative competitors such as smallmouth bass (Micropterus 
dolomieu) over native species such as brook trout (Salvelinus 
fontinalis) and American shad (Alosa sapidissima). Fish passage 
inefficiency also leads to direct mortality of Atlantic salmon, 
including both smolts and adults; these later life stages are 
particularly important from a demographic perspective as described 
above. Upstream passage effectiveness for anadromous fish species never 
reaches 100 percent, and substantial mortality and migration delays 
occur during downstream passage through screen impingement and turbine 
entrainment. The cumulative losses of smolts incrementally diminish the 
productive capacity of all freshwater rearing habitat above 
hydroelectric dams. The demographic consequences of low marine survival 
(described above) are similar to those of the cumulative losses of 
adults at dams. Comprehensive discussions of the impacts of dams are 
presented in sections 8.1, 8.3, and 8.5.4 of Fay et al. (2006) and NRC 
(2004).
    In short, dams directly and substantially reduce survival rates of 
salmon through the following ways:
    1. Dams directly limit access to otherwise suitable habitat. This 
has reduced spatial distribution of the GOM DPS over the last 200 
years.
    2. Dams also directly kill and injure a significant number of 
salmon on both upstream and downstream migrations. Injury and mortality 
due to dams occurs at the smolt and adult life stages. These older life 
stages are particularly important from a demographic perspective 
(similar to marine survival) since slight changes in survival rates at 
older life stages can drive demographic trends.
    3. Dams also degrade the productive capacity of habitats upstream 
by inundating formerly free-flowing rivers, reducing water quality, and 
changing fish communities.
    Dams are also one of three primary factors that led to the 
declining abundance trends that began in the 1800s. The other two 
factors (pollution and overfishing), though still operative, have been 
greatly reduced in severity (Moring, 2005). Dams, however, represent a 
significant threat during the current period of decline (1800s to 
present) and are generally more pervasive (over 300 within the 
freshwater range of the GOM DPS today) over that same time period. 
These effects have led to a situation where salmon abundance and 
distribution have been greatly reduced, and thus, the species is more 
vulnerable to extinction through processes such as demographic and 
environmental stochasticity, natural catastrophes, and genetic drift 
inherent in all small populations (Shaffer, 1981).
    As stated above, dams directly limit access to otherwise suitable 
habitat, directly kill and injure a significant number of salmon during 
both upstream and downstream migration, and degrade the productive 
capacity of habitats upstream by inundating formerly free-flowing 
rivers, reducing water quality, and changing fish communities. Dams 
affect multiple life stages in multiple ways, particularly by 
preventing or impeding access to spawning habitat for returning adult 
salmon; impacts at this late life stage have the greatest demographic 
effect. Therefore, dams represent a significant threat to the survival 
and recovery of the GOM DPS.
Habitat Complexity
    Some forest, agricultural, and other land use practices have 
reduced habitat complexity within the range of the GOM DPS of Atlantic 
salmon. Large woody debris (LWD) and large boulders are currently 
lacking from many rivers because of historical timber harvest 
practices. When present, LWD and large boulders create and maintain a 
diverse variety of habitat types. Large trees were harvested from 
riparian areas; this reduced the supply of LWD to channels. In 
addition, any LWD and large boulders that were in river channels were 
often removed in order to facilitate log drives. Historical forestry 
and agricultural practices were likely the cause of currently altered 
channel characteristics, such as width-to-depth ratios (i.e., channels 
are wider and shallower today than they were historically). Channels 
with large width-to-depth ratios tend to experience more rapid water 
temperature fluctuations, which are stressful for salmon, particularly 
in the summer when temperatures are warmer. Further discussions of the 
impacts of reduced habitat complexity are presented in section 8.1.2 of 
Fay et al. (2006). Reduced habitat complexity acts as a stressor on the 
GOM DPS by reducing spaces for hiding from predators and increasing 
water temperature.
Habitat Connectivity
    Over the last 200 years, habitat connectivity within the freshwater 
range of the GOM DPS has been reduced because of dams and poorly 
designed road crossings. Further discussions of the impacts of reduced 
habitat connectivity are presented in section 8.1.2 of Fay et al. 
(2006). As a highly migratory species, Atlantic salmon require a 
diverse array of well-connected habitat types in order to complete 
their life history. Impediments to movement between habitat types can 
limit access to potential habitat and, therefore, directly reduce 
survival in freshwater. In some instances, barriers to migration may 
also impede recovery of other diadromous fishes as well. For example, 
alewives (Alosa pseudoharengus) require free access to lakes to 
complete their life history. To the extent that salmon require other 
native diadromous fishes to complete their life history (see ``Depleted 
Diadromous Communities'' in ``Factor E'' of this final rule), limited 
connectivity of freshwater habitat types may limit the abundance of 
salmon through diminished nutrient cycling, and a reduction in the 
availability of co-evolved diadromous fish species that provide an 
alternative prey source and serve as prey for GOM DPS Atlantic salmon. 
Restoration efforts in the Machias, East Machias, and Narraguagus 
Rivers have improved passage at road crossings by replacing poorly-
sized and poorly-positioned culverts. However, many barriers of this 
type remain throughout the range of the GOM DPS. Reduced habitat 
connectivity is a stressor to the GOM DPS because it prevents salmon 
from fully using substantial amounts of freshwater habitat and changes 
fish community structure by preventing access for other native fish.
Water Quantity
    Water withdrawals can directly impact salmon spawning and rearing 
habitat (Fay et al., 2006). Survival of eggs, fry, and juveniles is 
also mediated by stream flow. Low flows constrain available habitat and 
limit populations.

[[Page 29368]]

Water quantity can be affected by the withdrawal of water for 
irrigation or other consumptive water uses as described in section 
8.1.1.2 of Fay et al. (2006). The potential for water withdrawals 
reducing in-stream flows to levels that may impact Atlantic salmon is a 
concern in rivers classified under Maine's ``In-stream flow and water 
level standards'' as class A, B, or C. The flow standards for class A, 
B, and C waters are based on seasonal base flows (the average flow over 
an entire season) rather than median monthly flows. Because these flow 
standards are based on the seasonal base flow, withdrawals would be 
allowed that, while not reducing flow below the seasonal base flow, 
reduce flow below the median monthly flow. In some months, flows are 
naturally low (e.g., late summer months), which is stressful to fish 
because habitat is more limited, water temperature increases, and 
dissolved oxygen decreases. During times when flows are naturally low, 
allowing withdrawals to reduce flows further, to levels below the 
median monthly flow, would negatively impact Atlantic salmon. 
Therefore, water withdrawal that reduces the instream flow below the 
median monthly flow is a stressor on the GOM DPS because it may reduce 
habitat, increase water temperature, and decrease dissolved oxygen 
during the months of naturally low flow.
Water Quality
    Atlantic salmon likely are impacted by degraded water quality 
caused by point and non-point source discharges. The MDEP administers 
the National Pollutant Discharge Elimination System (NPDES) program 
under the CWA and issues permits for point source discharges from 
freshwater hatcheries, municipal facilities, and other industrial 
facilities. Maine's water classification system provides for different 
water quality standards for different classes of waters (e.g., there 
are four classes for freshwater rivers, all of which are found within 
the GOM DPS range); however, these standards were not developed 
specifically for Atlantic salmon. Some portions of the GOM DPS are in 
areas with the highest water quality classification where water quality 
standards are the most stringent. These standards become progressively 
less stringent with each lower water classification. Additionally, 
permits allow an area of initial dilution or mixing zone where water 
quality requirements are reduced. Salmon in or passing through such 
zones would be exposed to discharges below water quality standards. The 
impacts to salmon passing through these zones are unknown. We are 
concerned that water quality standards for Class A, B, and C waters and 
mixing zones may not be sufficiently protective of all life stages of 
Atlantic salmon, particularly the more sensitive salmon life stages 
(e.g., smolts).
    Even where water quality standards are believed to be sufficiently 
protective, there are circumstances and conditions where discharges do 
not meet water quality standards. For example, there are documented 
cases in class C waters where dissolved oxygen standards (the lower 
bound of which is 5.0 ppm) were not met. This occurred in portions of 
the mainstem Androscoggin River, and in the East Branch of the 
Sebasticook River and Sabattus River (MDEP, 2008). When dissolved 
oxygen concentrations are less than 5.0 ppm, adult salmon breathing 
functions become impaired, embryonic development is delayed, and parr 
growth and health are impacted; conditions become lethal for salmon at 
dissolved oxygen concentrations less than 2.0 ppm (Decola, 1970). When 
water quality reaches levels that are harmful to salmon, it is a 
stressor to the GOM DPS.
    Non-point source discharges such as elevated sedimentation from 
forestry, agriculture, urbanization, and roads can reduce survival at 
several life stages, especially the egg stage. Sedimentation can alter 
in-stream habitat and habitat use patterns by filling interstitial 
spaces in spawning gravels, and adversely affect aquatic invertebrate 
populations that are an important food source for salmon. Acid rain 
reduces pH in surface waters with low buffering capacity, and reduced 
pH impairs osmoregulatory abilities and seawater tolerance of Atlantic 
salmon smolts. A variety of pesticides, herbicides, trace elements such 
as mercury, and other contaminants are found at varying levels 
throughout the range of the GOM DPS. The effects of chronic exposure of 
Atlantic salmon, particularly during sensitive life stages such as fry 
emergence and smoltification, to many contaminants is not well 
understood. Fay et al. (2006) provide a discussion of water quality 
concerns in section 8.1.3. For these reasons, non-point source 
pollution, particularly sedimentation and acid rain, is a stressor to 
the GOM DPS.
    In summary, we have determined that degraded water quality is a 
stressor on the GOM DPS because of the known situations when water 
quality did not meet standards and was at levels that negatively impact 
salmon and because of the impacts of non-point source pollution, 
particularly sedimentation and acid rain.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The GOM DPS of Atlantic salmon has supported important tribal, 
recreational, and commercial fisheries. In the past, these fisheries 
have been conducted throughout nearly all of the GOM DPS' habitats, 
including in-river, estuarine, and off-shore (section 8.2 of Fay et al. 
(2006)).
    Atlantic salmon are an integral part of the history of Native 
American tribes in Maine, particularly the Penobscot Indian Nation. The 
species represents both an important resource for food, and perhaps 
more importantly, a cultural symbol of the deeply engrained connection 
between the Penobscot Indian Nation and the Penobscot River. In 
accordance with the Maine Indian Land Claims Settlement Act, the 
Penobscot Indian Nation retains the right of its members to harvest 
Atlantic salmon for sustenance purposes, and to self-regulate that 
harvest. The Penobscot Indian Nation harvested two salmon under these 
provisions in 1988, and has voluntarily chosen not to harvest any 
Atlantic salmon since then because of the depleted status of the 
species (Francis, Penobscot Indian Nation in litt., 2009).
    Recreational fisheries for Atlantic salmon in Maine date back to 
the early to mid-1800s. Since 1880, over 25,000 Atlantic salmon have 
been landed in Maine rivers, roughly 14,000 in the Penobscot River 
alone (Baum, 1997). Historically, Atlantic salmon sport anglers 
practiced very little catch and release. Beginning in the 1980s as runs 
decreased, the Maine Atlantic Sea Run Salmon Commission imposed 
increasingly restrictive regulations on the recreational harvesting of 
Atlantic salmon in Maine. The allowable annual harvest per angler was 
reduced from 10 salmon in the 1980s to one grilse in 1994. Angling was 
closed on the Pleasant River from 1986 to 1989. In 1990, a one-year 
catch and release fishery was allowed on the Pleasant River. In 1995, 
regulations were promulgated for catch and release fishing for sea-run 
Atlantic salmon throughout all other Maine salmon rivers, closing the 
last remaining recreational harvest opportunities for sea run Atlantic 
salmon in the United States. In 2000, all directed recreational 
fisheries for sea run Atlantic salmon in Maine were closed until 2006 
when a short experimental catch and release fishery was opened on the 
Penobscot River below Veazie Dam. The 30-day

[[Page 29369]]

angling season began on September 15, 2006, and resulted in one 
Atlantic salmon being caught and released on September 20, 2006. This 
fishery was opened again on September 15, 2007. In 2008, the Maine 
Atlantic Salmon Commission Board authorized a 30-day catch and release 
fishery for the spring of 2008. This fishery poses a risk to returning 
sea-run Atlantic salmon because it occurs at a time of year before 
broodstock have been collected; broodstock are essential to maintaining 
current levels of conservation hatchery supplementation, and lack of 
broodstock would further reduce the likelihood of achieving the 
scientifically sound and mutually-agreed goals set forth in the 
Broodstock Management Plan (P. Kurkul, NOAA, in litt. February 1, 
2008).
    Poaching and incidental capture remain concerns to the status of 
Atlantic salmon in Maine. Incidental capture of parr and smolts, 
primarily by trout anglers, and of adult salmon, primarily by striped 
bass anglers, has been documented. Targeted poaching for adult salmon 
occurs at low levels as well. Low returns of adult salmon to Maine 
rivers highlight the importance of continuing to reduce any source of 
mortality, particularly at later life stages. While current state 
regulations for recreational angling do include minimum and maximum 
size limits for certain species (e.g., landlocked salmon), area 
closures, and outreach and education programs, there is still a threat 
of take of Atlantic salmon from recreational angling.
    Commercial fishing for Maine Atlantic salmon historically occurred 
in rivers, estuaries, and on the high seas. While most directed 
commercial fisheries for Atlantic salmon have ceased, the impacts from 
past fisheries are important in explaining the present low abundance of 
the GOM DPS. Also, the continuation of offshore fisheries for Atlantic 
salmon, albeit at reduced levels, influences the current status of the 
GOM DPS.
    Nearshore fisheries for Atlantic salmon in Maine were quite common 
in the late 1800s. In 1888, roughly 90 metric tons (mt) of salmon were 
harvested in the Penobscot River alone. As stocks continued to decline 
through the early 1900s, the Maine Atlantic Sea Run Salmon Commission 
closed the nearshore commercial fishery for Atlantic salmon after the 
1947 season when only 40 fish (0.2 mt) were caught. Any future 
opportunities for directed fisheries for Atlantic salmon in U.S. 
territorial waters were further limited by regulations implementing the 
Atlantic Salmon Fishery Management Plan (FMP) in 1987 (NEFMC, 1987). 
These regulations prohibit possession of Atlantic salmon in the U.S. 
Exclusive Economic Zone. While nearshore fisheries for Atlantic salmon 
have ceased, the impacts from past fisheries are important in 
explaining the present low abundance of the GOM DPS.
    Directed fishing for other species has the potential to intercept 
salmon as by-catch. Beland (1984) reported that fewer than 100 salmon 
per year were caught incidental to other commercial fisheries in the 
coastal waters of Maine. Recent investigations also suggest that by-
catch of Atlantic salmon in herring fisheries is not a significant 
source of mortality for U.S. stocks of salmon (ICES, 2004).
    Offshore, directed fisheries for Atlantic salmon continue to affect 
the GOM DPS, though these fisheries have been substantially reduced in 
recent years. The combined harvest of 1SW Atlantic salmon of U.S. 
origin in the fisheries off West Greenland and Canada averaged 5,060 
fish, and returns to U.S. rivers averaged 2,884 fish from 1968 to 1989 
(ICES, 1993). We estimate that roughly 87 percent of all U.S. adult 
returns during the time period 1968 to 1989 originated from the GOM DPS 
as defined in this rule, and thus, roughly 2,519 of the 2,884 U.S. 
returns were GOM DPS fish. ICES (1993) estimated that adult returns to 
U.S. rivers could have potentially been increased by 2.5 times in the 
absence of the West Greenland commercial fishery (closed in 2001) and 
Labrador fisheries (closed in 1998) during that time period. The United 
States joined with other North Atlantic nations in 1982 to form NASCO 
for the purpose of managing salmon through a cooperative program of 
conservation, restoration, and enhancement of North Atlantic stocks. 
NASCO achieves its goals by managing the exploitation by member nations 
of Atlantic salmon that originated within the territory of other member 
nations. The United States' interest in NASCO stemmed from its desire 
to ensure that intercept fisheries of U.S. origin fish did not 
compromise the long-term commitment by the states and Federal 
government to rehabilitate and restore New England Atlantic salmon 
stocks. Since the establishment of NASCO in 1982, commercial quotas for 
the West Greenland fishery have steadily declined, as has the abundance 
of most stocks that make up this mixed stock fishery (including the GOM 
DPS). The West Greenland fishery has been restricted to an internal use 
fishery (i.e., no fish were exported) in the following years: 1998-
2000; 2003-2008. From 2002 to 2005, the internal-use fishery harvested 
between 19 and 25 mt (reported and estimated unreported catch) 
annually. Genetic analysis performed on samples obtained from the 2002 
to 2004 fisheries estimated the North American contribution at 64-73 
percent, with the U.S. contributing between 0.1 and 0.8 percent of the 
total. The 90 percent confidence interval for the U.S. estimates are 0 
to 141 salmon in 2002, 5 to 132 salmon in 2003, and 0 to 64 salmon in 
2004 (ICES, 2006).
    In addition, a small commercial fishery occurs off St. Pierre et 
Miquelon, a French territory south of Newfoundland. Historically, the 
fishery was very limited (2 to 3 mt per year). There is great interest 
by the United States and Canada in sampling this catch to gain more 
information on stock composition. In recent years, there has been a 
reported small increase in the number of fishermen participating in 
this fishery. A small sampling program was initiated in 2003 to obtain 
biological data and samples from the catch. Genetic analysis on 134 
samples collected in 2004 indicated that all samples originated from 
North America, and approximately 1.9 percent were of U.S. origin. The 
90-percent confidence interval around this estimate was 0-77 U.S.-
origin salmon (ICES, 2006), and since roughly 87 percent of all U.S. 
returns originated from the GOM DPS (as defined in this rule) in 2004 
(USASAC, 2005), we estimate that up to 67 fish harvested in this 
fishery originated from the GOM DPS. Efforts to continue and increase 
the scope of this sampling program are ongoing through NASCO. These 
data are essential to understanding the impact of this fishery on the 
GOM DPS.
    A multi-year conservation agreement was established in 2002 between 
the North Atlantic Salmon Fund and the Organization of Hunters and 
Fishermen in Greenland, effectively buying out the commercial fishery 
for Atlantic salmon for a 5-year period. The internal-use fishery was 
not included in the agreement. In June 2007, the agreement was extended 
and revised to cover the 2007 fishing season. The agreement may 
continue to be extended on an annual basis through 2013.
    In summary, overutilization for recreational and commercial 
purposes was a factor that contributed to the historical declines of 
GOM DPS. Intercept fisheries in West Greenland and St Pierre et 
Miquelon, bycatch in recreational fisheries, and poaching act as 
stressors on the GOM DPS because they result in direct mortality or 
cause stress reducing reproductive success and survival.

[[Page 29370]]

Factor C. Disease or Predation

Disease
    Fish diseases have always represented a source of mortality to 
Atlantic salmon in the wild (for a more thorough discussion see section 
8.3.2 of Fay et al. (2006)). Atlantic salmon are susceptible to 
numerous bacterial, viral, and fungal diseases. Bacterial diseases 
common to New England waters include Bacterial Kidney Disease (BKD), 
Enteric Redmouth Disease (ERM), Cold Water Disease (CWD), and Vibriosis 
(Mills, 1971; Gaston, 1988; Olafsen and Roberts, 1993; Egusa, 1992). To 
reduce the likelihood of disease outbreaks or epizootic events, 
cultured salmon used for aquaculture purposes routinely receive 
vaccinations for these pathogens prior to stocking into marine sites. 
Fungal diseases such as furunculosis can affect all life stages of 
salmon in both fresh and salt water, and the causative agent 
(Saprolignia spp.) is ubiquitous to most water bodies. The risk of an 
epizootic occurring during fish culture operations is greater because 
of the increased numbers of host animals reared at much higher 
densities than would be found in the wild. In addition, stressors 
associated with intensive fish culture operations (i.e., handling, 
stocking, tagging, and sea-lice loads) may increase susceptibility to 
infections. Disease from fish culture operations may be spread to wild 
salmon directly through effluent discharge or indirectly from either 
escapes of cultured salmon, or through smolts and returning adults 
passing through embayments where pathogen loads are increased to a 
level such that infection occurs and diseases may be transferred.
    A number of viral diseases that could affect wild populations have 
occurred during the culture of Atlantic salmon, such as Infectious 
Pancreatic Necrosis, Salmon Swimbladder Sarcoma Virus, Infectious 
Salmon Anemia (ISA), and Salmon Papilloma (Olafsen and Roberts, 1993). 
In 2007, the Infectious Pancreatic Necrosis virus was isolated in sea 
run fish in the Connecticut River program. These fish most likely 
contracted the disease during their time at sea, and it was detected in 
the hatchery due to the rigorous fish health monitoring and assessment 
protocols. ISA is of particular concern for the GOM DPS because of the 
nature of the pathogen and the high mortality rates associated with the 
disease. Most notably, a 2001 outbreak of ISA in Cobscook Bay led to an 
emergency depopulation of all commercially cultured salmon in the Bay. 
In addition to complete depopulation of all cultured salmon, the MDMR 
ordered all cages be thoroughly cleaned and disinfected, all sites be 
fallowed for 3 months, and subsequent re-stocking of cages occur at 
lower densities with only a single year class. These measures were 
initially successful; however, subsequent testing for ISA revealed 
additional detections of the virus in Cobscook Bay (Maine) sites in 
2003, 2004, 2005, and 2006.
    In summary, the MIFW, MDMR, and the federally managed conservation 
hatcheries all must adhere to rigorous disease prevention and 
management regulations and protocols; despite these protocols there 
remains a risk of disease outbreaks. Additionally, there is a risk of a 
disease outbreak in the wild. While disease(s) can have devastating 
population-wide effects when they occur, there are efforts in place to 
prevent and manage disease outbreaks in conservation hatcheries and 
aquaculture facilities. Disease is not presently impacting the GOM DPS. 
However, the efforts in place to manage this risk cannot completely 
eliminate the potential for disease outbreak. Further, if a large 
outbreak were to occur, it could have significant impacts on the GOM 
DPS.
Predation
    Predation is a natural and necessary process in properly 
functioning aquatic ecosystems (for a comprehensive discussion see 
section 8.3.1 of Fay et al. (2006)). Native freshwater fishes known to 
prey on Atlantic salmon include brook trout, burbot, American eel, 
fallfish, and common shiners. In estuarine and marine environments 
Atlantic salmon are prey to striped bass, Atlantic cod, pollock, 
porbeagle shark, Greenland shark, Atlantic halibut, and many other 
species. Many species of birds, mink, and several species of seal also 
prey on Atlantic salmon. Thus, predation levels may contribute to the 
low marine survival regimes currently experienced by the GOM DPS.
    Atlantic salmon have evolved a suite of strategies that allow them 
to co-exist with the numerous predators they encounter throughout their 
life cycle. However, natural predator-prey relationships in aquatic 
ecosystems in Maine have been substantially altered through the spread 
of nonnative fish species (e.g., smallmouth bass); habitat alterations; 
site specific and cumulative delay, injury, or stress experienced 
during migration and passage over/through dams; and the decline of 
other diadromous species that would otherwise serve as an alternative 
prey source for fish that feed on Atlantic salmon smolts and adults. 
For example, in the estuarine environment, cormorants are an important 
predator of outmigrating smolts. However, the abundance of alternative 
prey sources such as alewives likely minimized the impact of cormorant 
predation on the GOM DPS historically. Similarly, changes in fish 
assemblages due to stocking of non-native species have resulted in 
predator species inhabiting many of the same areas used by Atlantic 
salmon. This is particularly true of smallmouth bass and brown trout 
(van de Ende, 1993; MASC and MIFW, 2002). The threat posed by these 
predator species is simply compounded in areas where Atlantic salmon 
are experiencing physiological stress due to obstructions to passage 
(Raymond, 1979; Mesa, 1994; Blackwell et al., 1997) and poor habitat 
quality and complexity (Cunjak, 1996; Blackwell and Krohn, 1997; 
Larinier, 2000).
    In summary, the impact of predation on the GOM DPS of Atlantic 
salmon is important because of the imbalance between the very low 
numbers of adults returning to spawn and the increase in population 
levels of some native predators such as double-crested cormorants, 
striped bass, and several species of seals as well as non-native 
predators, such as smallmouth bass. Predation acts as a stressor on the 
GOM DPS because of high levels of predators and low numbers of Atlantic 
salmon.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    A variety of state and Federal statutes and regulations directly or 
indirectly address potential threats to Atlantic salmon and their 
habitat. These laws are complemented by international actions under 
NASCO and many interagency agreements and state-Federal cooperative 
efforts specifically designed to protect Atlantic salmon. 
Implementation and enforcement of these laws and regulations could be 
strengthened to further protect Atlantic salmon.
Dams
    As stated previously, Atlantic salmon require a diverse array of 
well connected habitat types in order to complete their life history. 
Present conditions within the range of the GOM DPS only allow salmon to 
access a fraction of the habitat that was historically accessible. Even 
where salmon can presently access suitable habitat, they must often 
pass several dams to reach their natal spawning habitat.
    Hydroelectric dams: Hydroelectric dams in the GOM DPS are licensed 
by the FERC under the FPA. Currently, within the historical range of 
Atlantic

[[Page 29371]]

salmon in the GOM DPS there are 19 hydroelectric dams in the 
Androscoggin watershed, 18 in the Kennebec watershed, and 23 in the 
Penobscot watershed. In the Androscoggin watershed 16 hydroelectric 
dams within the range of the GOM DPS are impassable due to the lack of 
fishways. In the Kennebec watershed, 15 dams are impassable, along with 
12 dams in the Penobscot watershed. Presently, 15 dams in the 
Androscoggin, 7 dams in the Kennebec, and 9 dams in the Penobscot are 
FERC-licensed without any specific fish passage requirements.
1. Mechanisms Available at Hydroelectric Dams Outside of FERC 
(Re)licensing
    Several mechanisms exist within the framework of the FPA that could 
potentially be used to address impacts of dams. However, many of these 
mechanisms are only available in relicensing. Of the 70 dams licensed 
by FERC in Maine, 3 are currently in relicensing, 3 are covered by the 
Penobscot River Restoration Project with plans to remove them before 
expiration of their licenses, and 8 will be up for relicensing in the 
2010s, 22 in the 2020s, 19 in the 2030s, 11 in the 2040s, and 4 in the 
2050s. Thus, the bulk of these projects will not be up for relicensing 
for 10 to 20 years or more. The current licenses for many, though by no 
means all, of these projects contain reservations of FPA section 18 
authority that could allow fishways to be prescribed by the Services 
(16 U.S.C. 811). However, exercise of that authority requires 
administrative proceedings before the FERC and the Services which could 
themselves take several years, and the outcome is far from certain. As 
to the remainder of the projects whose licenses contain no reserved 
authority, reopening of these licenses may be dependent upon the 
success of a petition to the FERC to exercise its own reserved 
authority. This is not a dependable recourse as the decision to even 
consider such a petition is subject to FERC's discretion. Additional 
avenues may be available, consistent with the Interagency Task Force 
Report on Improving Coordination of ESA Section 7 Consultation with the 
FERC Licensing Process, but these remain largely untested.
    Furthermore, lack of fish passage is not the only threat to salmon 
caused by hydroelectric dams. The effects of habitat degradation and 
the altered environmental features that favor nonnative species pose an 
equal or even greater impediment to Atlantic salmon recovery via 
reduction in production capacity of freshwater rearing areas above 
dams. These threats may not be addressed by the Services' reserved 
authority under Section 18 of the FPA; the only mechanism available 
outside of relicensing is a petition to FERC to exercise its own 
discretionary authority.
2. Mechanisms Available at Hydroelectric Projects in FERC (Re)licensing
    Even in relicensing, the regulatory mechanisms for protection of 
salmon are inadequate to remove the significant threat to the survival 
of the species posed by dams. First, fish passage may be addressed by 
the Services in relicensing pursuant to their mandatory authority under 
Section 18 of the FPA (16 U.S.C. 811). However, as noted above, this 
requires a lengthy administrative proceeding before the Services and 
FERC, and the outcome is not certain. Moreover, the result is a FERC 
license containing a requirement to construct and operate fish passage. 
However, a substantial amount of mortality and passage inefficiency may 
occur even with fishways in place, given that fish passage facilities 
are never 100 percent efficient. Further, enforcement of FERC licenses 
can be done only by FERC, is subject to administrative processes with 
uncertain outcome, and has frequently, in the Services' view, been less 
than prompt where fish passage or fish habitat issues have been at 
stake.
    The other threats posed by dams to Atlantic salmon, besides lack of 
fish passage, may also be addressed in relicensing by the Services, via 
Sections 10(a) and 10(j) of the FPA (16 U.S.C. sections 797 and 803). 
However, these are mechanisms for making recommendations to the FERC, 
which factors them into the balancing of factors in its public interest 
determination under Section 10(a) of the FPA. There is no guarantee 
that species protection would be a controlling factor in the FERC's 
decision. In practice, such recommendations are often not required by 
the FERC (Black et al., 1998).
    The Services recognize that they and the FERC are not the only 
authorities with a role to play in protecting fish in hydropower 
relicensing. For a hydropower project to be relicensed by the FERC, the 
State of Maine must first certify that continued operation of the 
project will comply with Maine's water quality standards pursuant to 
Section 401 of the CWA. The MDEP is the certifying agency for all 
hydropower project licensing and relicensing in the State of Maine, 
except for projects in unorganized territories subject to permitting by 
the Land Use Regulation Commission (LURC). Through the water quality 
certification process, the State of Maine can require fish passage and 
habitat enhancements at FERC licensed hydroelectric projects (See S.D. 
Warren v. Maine Board of Environmental Protection 547 U.S. 370, 126 
S.Ct. 1843 (2006)). As with Section 18 authority, though section 401 
authority is binding on the FERC, it requires administrative 
proceedings with uncertain outcomes. Also, it is not clear that this 
mechanism is available except in relicensing, or where MDEP has 
specifically reserved authority to alter the terms of its prior 
certification. Authority under section 401 of the CWA permits the 
certifying state to certify that the discharge will comply with the 
terms of the CWA, including any state water quality standards. It is 
not clear that section 401 permits regulation of conditions in the 
reservoirs above dams, except indirectly where the water quality of the 
reservoir is controlled by the quality of discharges from an upstream 
dam.
    Finally, in other parts of the country, mandatory conditioning 
authority under section 4(e) of the FPA is often used by the Services 
in relicensing to recommend fisheries enhancements. However, this 
authority is only available to a Federal agency where there are Federal 
lands under its jurisdiction within the project boundary, and acts as a 
mechanism to protect the ``reservation.'' Federal lands where Section 
4(e) could be applied are rare in Maine, and 4(e) does not provide an 
adequate mechanism for protection of Atlantic salmon throughout the GOM 
DPS.
    Non-hydroelectric dams: The vast majority of dams within the range 
of the GOM DPS do not require either a FERC license or MDEP water 
quality certificate. These dams are typically small dams historically 
used for a variety of purposes, including flood control, storage, and 
process water (for industries such as blueberry harvesting). Because 
they do not generate electricity, they are not subject to the 
jurisdiction of the FERC under the FPA. Practically none of these dams 
within the range of the GOM DPS have fish passage facilities, and all 
impact historical Atlantic salmon habitat. Many of these non-
jurisdictional dams are no longer used for their intended purposes; 
however, many smaller dams maintain water levels in lakes and ponds. 
Lack of fish passage and other impacts to salmon may currently be 
addressed only through the mechanisms of State law.
    Fish passage may be required by the State of Maine under 12 M.R.S.A 
section 12760. However, this requires an administrative process and a 
hearing, if one is requested by the dam owner. An

[[Page 29372]]

order to construct fish passage under this statute requires a finding 
that fish can be restored ``in substantial numbers'' and that habitat 
above the dam ``is sufficient and suitable to support a substantial 
commercial or recreational fishery.'' These are very different 
considerations from the ESA's focus on prevention of extinction. 
Furthermore, this statute has never been used to require fish passage 
at any dam in Maine, and, despite the one hearing ongoing at this time, 
the statute remains untested in the courts and at the administrative 
level. Nor, of course, does it address threats beyond lack of fish 
passage.
    Finally, although the MDEP can be petitioned by the public to set 
minimum flows and water levels at the dams not under FERC jurisdiction, 
the MDEP has no direct statutory authority under Maine law to require 
fisheries related enhancements without public request or petition. 
Removal of non-hydropower generating dams in Maine may require a permit 
under the Maine Natural Resources Protection Act or the Maine Waterway 
Development and Conservation Act. Owners of non-hydroelectric dams can 
petition the MDEP to be released from ownership; however, the MDEP does 
not have the authority to require dam removal without the consent of 
the owner.
    In summary, the inadequacy of existing regulatory mechanisms for 
dams significantly affects the GOM DPS because dams pose a significant 
threat. Existing regulatory mechanisms do not provide a timely and 
dependable means to eliminate the effects of dams on salmon and their 
habitat.
Water Withdrawals
    The State of Maine has made substantial progress in regulating 
water withdrawals. In 2007, it finalized a new rule (Chapter 587 of the 
Code of Maine Rules ``In-stream flow and water level standards'') that 
establishes river and stream flows and lake and pond water levels to 
protect aquatic life and other designated uses in Maine's waters. The 
new standards are based on maintaining natural variation of flows and 
water levels, but allow variances if water use will still be protective 
of applicable state and Federal water quality classifications. The flow 
standards are based on seasonal aquatic base flows. We believe that the 
water rules for class AA waters will be protective of Atlantic salmon 
because the flow standards are based on natural flows, and exceptions 
are allowed only under clearly defined limits. However, the flow 
standards for class A, B, and C waters are based on seasonal base 
flows, which allow withdrawals when flow is at or below median monthly 
flow. These standards are not sufficiently protective of Atlantic 
salmon because they allow reduced in-stream flows that reduce habitat, 
increase water temperature, and decrease dissolved oxygen (as described 
in Factor A, above).
    Water withdrawals that reduce flow below the median monthly flow 
are a stressor on the GOM DPS (see Factor A). These withdrawals are 
allowed under the Maine flow standards; therefore, the existing 
regulatory mechanisms for water quantity are inadequate.
Water Quality
    As described above in Factor A, the MDEP administers the NPDES 
program under the CWA (known as the MPDES program). MDEP issues permits 
for point source discharges from freshwater hatcheries, municipal 
facilities, and other industrial facilities. Maine's water 
classification system provides for different water quality standards 
for different classes of waters (e.g., there are four classes for 
freshwater rivers all of which are found within the GOM DPS range). 
However, these standards are not based on water quality requirements of 
Atlantic salmon. Also, as described under Factor A above, there have 
been cases when water quality did not meet standards and was at levels 
that negatively impact salmon. Therefore, we are concerned that water 
quality standards may not be sufficiently protective of Atlantic salmon 
and that lack of compliance with existing standards may continue to 
harm salmon.
    Factor A also describes concerns we have regarding non-point source 
discharges. Sedimentation and other non-point source discharges related 
to forestry activities are regulated by the Shoreland Zoning Act, Maine 
Forest Practices Act, Natural Resource Protection Act, Protection and 
Improvement of Waters Act, Erosion and Sedimentation Control Law, and 
the Statewide Standards for Timber Harvesting and Related Activities in 
Shoreland Areas. Non-compliance with these regulatory mechanisms has 
resulted in impacts to Atlantic salmon habitat and continues to pose a 
risk to the GOM DPS (Fay et al., 2006, page 83).
    In summary, the MPDES program and the associated water quality 
standards do not regulate all potential water quality problems for 
salmon. We have determined that lack of compliance with existing water 
quality standards and with regulations to reduce sedimentation from 
forestry activities may continue to impact Atlantic salmon. Therefore, 
we find that inadequacy of existing regulatory mechanisms for water 
quality is a stressor to the GOM DPS.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

Artificial Propagation
    In the proposed rule we included a discussion of artificial 
propagation under Factor E. However, because of the essential role of 
conservation hatcheries in currently sustaining the GOM DPS of Atlantic 
salmon, in this final rule we evaluated the positive and negative 
effects of hatcheries in the status of the species section. We find 
that, in the short-term, conservation hatcheries are a benefit to the 
GOM DPS. The role of the conservation hatchery program is discussed 
above in the ``Status of the GOM DPS'' section.
Aquaculture
    Atlantic salmon that escape from farms and commercial hatcheries 
pose a threat to native Atlantic salmon populations (Naylor et al., 
2005) because captive-reared fish are selectively bred to promote 
behavioral and physiological attributes desirable in captivity (Hindar 
et al., 1991; Utter et al., 1993; Hard et al., 2000); for further 
discussion of the threat of aquaculture see section 8.5.2 in Fay et al. 
(2006)). Experimental tests of genetic divergence between farmed and 
wild salmon indicate that farming generates rapid genetic change as a 
result of both intentional and unintentional selection in culture and 
those changes alter important fitness-related traits (McGinnity et al., 
1997; Gross, 1998). Consequently, aquaculture fish are often less fit 
in the wild than naturally produced salmon (Fleming et al., 2000). 
Annual invasions of escaped adult aquaculture salmon can disrupt local 
adaptations and reduce genetic diversity of wild populations (Fleming 
et al., 2000). Bursts of immigration also disrupt genetic 
differentiation among wild Atlantic salmon stocks, especially when wild 
populations are small (Mork, 1991). Natural selection may be able to 
purge wild populations of maladaptive traits but may be less able to if 
the intrusions occur year after year. Under this scenario, population 
fitness is likely to decrease as the selection from the artificial 
culture operation overrides wild selection (Hindar et al., 1991; 
Fleming and Einum, 1997), a process called outbreeding depression. The 
threat of outbreeding depression is likely to be greater in North 
America where aquaculture salmon have been based, in part, on European 
strain. To

[[Page 29373]]

minimize these risks, the use of non-North American strains of salmon 
has been phased out in the United States.
    In addition to genetic effects, escaped farmed salmon can disrupt 
redds of wild salmon, compete with wild salmon for food and habitat, 
transfer disease or parasites to wild salmon, and degrade benthic 
habitat (Windsor and Hutchinson, 1990; Saunders, 1991; Youngson et al., 
1993; Webb et al., 1993; Clifford et al., 1997). Farmed salmon have 
been documented to spawn successfully, but not always at the same time 
as wild salmon (Lura and Saegrov, 1991; Jonsson et al., 1991; Webb et 
al., 1991; Fleming et al., 1996). Late spawning aquaculture fish could 
limit wild spawning success through redd superimposition. There has 
also been recent concern over potential interactions when wild adult 
salmon migrate past closely spaced cages, creating the potential for 
behavioral interactions, disease transfer, or interactions with 
predators (Lura and Saegrov, 1991; Crozier, 1993; Skaala and Hindar, 
1997; Carr et al., 1997; DFO, 1999). In Canada, the survival of wild 
postsmolts moving from Passamaquoddy Bay to the Bay of Fundy was 
inversely related to the density of aquaculture cages (DFO, 1999).
    Atlantic salmon aquaculture has developed and expanded in the North 
Atlantic since the early 1970s. Production of farmed Atlantic salmon in 
2007 was estimated at over 1.27 million metric tonnes worldwide, 
859,103 metric tonnes in the North Atlantic, and 8.16 metric tonnes in 
Maine (ICES, 2008). The Maine Atlantic salmon aquaculture industry is 
concentrated in Cobscook Bay near Eastport, Maine. The industry in 
Canada, just across the border, is approximately twice the size of the 
Maine industry. Five freshwater commercial hatcheries in the United 
States have provided smolts to the sea cages and produce up to four 
million smolts per year.
    Three primary broodstock lines have been used for farm production. 
The lines include fish from the Penobscot River, St. John River, and 
historically an industry strain from Scotland. The Scottish strain was 
imported into the United States in the early 1990s and is composed 
primarily of Norwegian strains, frequently referred to as Landcatch. 
Milt of Norwegian origin was also imported by the industry from Iceland 
(Baum, 1998). However, placement of reproductively viable non-North 
American origin Atlantic salmon into marine cages in the United States 
has been eliminated.
    Escaped farmed salmon are known to enter Maine rivers. For example, 
at least 17 percent (14 of 83 fish) of the rod catch in the East 
Machias River were captive-reared adults in 1990. In addition to the 
frequency and magnitude of escape events that drive annual variability, 
returns of captive-reared adults to Maine rivers are influenced by the 
amount of production and proximity of rearing sites in adjacent bays. 
About 60 percent of commercial salmon production in Maine occurs at 
sites on Cobscook and Passamaquoddy Bays, into which the Dennys River 
flows; 35 percent on Machias Bay and the estuary of the Little River, 
within 11.26 kilometers of the Machias and East Machias Rivers; and the 
remainder on the estuaries of the Pleasant and Narraguagus Rivers, or 
adjacent to Blue Hill Bay. The percentage of captive-reared fish in 
adult returns is highest in the St. Croix (not a part of the GOM DPS) 
and Dennys Rivers and lowest in the Penobscot River (less than 0.01 
percent in the years 1994 to 2001), with the Narraguagus runs having 
low and sporadic proportions of captive-reared salmon.
    A large escape event occurred in 2005 when four marine salmon 
aquaculture sites in Western New Brunswick, Canada, were vandalized 
from early May through November 2005, resulting in approximately 
136,000 escaped farmed salmon. Most escapees were unmarked 1SW salmon 
of similar size (2 to 5 kg). Escaped aquaculture-origin salmon from 
these vandalism events entered the Dennys River and possibly other 
Eastern Maine rivers in 2005. The Services and MDMR cooperated to 
implement a program to minimize genetic and ecological risks from this 
escape (Bean et al., 2006).
    Aquaculture escapees and resultant interactions with native stocks 
are expected to continue to occur within the range of the GOM DPS given 
the continued operation of farms. While recent containment protocols 
have greatly decreased the incidence of losses from hatcheries and 
pens, the risk of large escapes occurring is still significant. Escaped 
farmed fish are of great concern in Maine because, even at low numbers, 
they can represent a substantial portion of the returns to some rivers. 
Wild populations at low levels are particularly vulnerable to genetic 
intrusion or other disturbance caused by escapees (Hutchings, 1991; 
DFO, 1999).
    Despite the concerns with aquaculture described above, recent 
advances in containment and marking of aquaculture fish limit the 
negative impacts of aquaculture fish on the GOM DPS. Permits issued by 
the Army Corps of Engineers (ACOE) and MDEP require: genetic screening 
to ensure that only North American strain salmon are used in commercial 
aquaculture; marking to facilitate tracing fish back to the source and 
cause of the escape; containment management plans and audits; and 
rigorous disease screening.
    In summary, aquaculture is a stressor to the GOM DPS. If the 
current regulatory measures were no longer in place, were less 
protective, or less effective, the threat from aquaculture would be 
much greater.
Low Marine Survival
    As noted previously, Atlantic salmon leave Maine rivers as smolts, 
and the majority spend 2 years at sea before returning to spawn. 
Survival during the time at sea directly influences the number of 
adults that return to spawn. During this extensive marine migration, 
U.S. Atlantic salmon can be affected directly and indirectly by 
commercial fisheries (discussed in Factor B) and natural mortality. 
Given significant reductions in commercial intercept fisheries, the 
continued low marine survival rates indicate that natural mortality is 
having a significant impact. Natural mortality in the marine 
environment can be attributed to four general sources: predation 
(Factor C), starvation, disease/parasites (Factor C), and abiotic 
factors (e.g., ocean conditions). While our understanding of the marine 
ecology of Atlantic salmon has increased substantially in the past 
decade, the specific role or contribution of the four sources 
identified above remains unclear.
    In general, return rates for Atlantic salmon across North America 
have declined over the last 30 years (ICES, 1998). Chaput et al. (2005) 
reported on the possibility of a phase (or regime) shift of 
productivity for Atlantic salmon in the Northwest Atlantic. A phase or 
regime shift refers to a large and sudden change in abundance (Beamish 
et al., 1999). Evidence is presented that the productivity of North 
American Atlantic salmon in the Northwest Atlantic Ocean has decreased 
since the early 1990s, likely the result of reduced marine survival 
(Chaput et al., 2005). Specifically, there has been a decrease in the 
recruit-per-spawner relationship for these populations, which likely 
occurred over several years in the late 1980s into the early 1990s. 
This has resulted in a similar number of lagged spawners (index of the 
parental stock that produced the pre-fishery abundance) resulting in a 
2-3 fold decrease in the number of pre-fishery abundance fish (number 
of North

[[Page 29374]]

American 2SW salmon in the ocean at a specific time) when comparing 
pre-early 1990s to post-early 1990s. The concept of phase shift has 
previously been documented and discussed for Pacific salmon populations 
(Beamish et al., 1999). Chaput et al. (2005) did not speculate on the 
causes of the reduced marine survival.
    The phase shift described above resulting in lower survival of 
salmon in the Northwest Atlantic beginning in the 1990s is supported by 
documented low marine survival rates since 1991 for U.S. stocks of 
Atlantic salmon, (see section 8.5.3 of Fay et al. (2006)). For the 
period 2003 to 2007, 2SW return rates for wild Narraguagus River smolts 
ranged from 0.54 to 0.94 percent. Return rates for this same period for 
2SW hatchery Penobscot River smolts ranged from 0.11 to 0.17 percent 
(ICES, 2008). Data for 2007, which is based on the 2005 and 2006 smolt 
cohorts, showed that 1SW and 2SW adult returns for hatchery and wild 
populations in many rivers in Newfoundland, Quebec, Scotia-Fundy, and 
the United States were the lowest in the available time series (1971-
2000) (ICES, 2008).
    North American stocks have experienced greater declines than 
European stocks, and southern stocks have experienced greater declines 
than northern stocks. Bley and Moring (1988) have suggested that 
Atlantic salmon with longer migration routes typically suffer from 
lower marine survival rates. Stock abundances and management regimes 
are highly variable throughout the range. The synchronous population 
declines on both sides of the North Atlantic despite diverse management 
regimes suggests that large scale processes in the common marine 
environment are affecting Atlantic salmon in the ocean and are at least 
partially responsible for the negative trends in abundance (Friedland 
et al., 2003; Jonsson and Jonsson, 2004; Friedland et al., 2005; Spares 
et al., 2007). Furthermore, sonic telemetry studies of emigrating 
smolts in southern European and North American rivers suggest that 
smolt mortality in estuaries, though variable, is broadly similar in 
both regions (ICES, 2008). Numerous ultrasonic tracking studies have 
begun to provide estimates of nearshore mortality for a number of 
different populations (Dieperink et al., 2002; Lacroix et al., 2005; 
Kocik et al., 2008), and it has been suggested that nearshore survival 
has a particularly large influence on overall marine survival (Ritter, 
1989; Dieperink et al., 2002; Potter et al., 2003). These and other 
studies demonstrate that poor marine survival is being experienced 
throughout the Atlantic Ocean and is heavily influenced by nearshore 
survival in addition to open ocean survival and that patterns of 
decline are most evident in southern stocks (ICES, 2008). Higher 
freshwater productivity in southern populations may offset poorer 
marine survival; however, as mentioned above, marine survival is much 
more variable and has a highly significant impact on adult production 
regardless of freshwater production.
    Efforts to understand marine survival are being undertaken at 
national and international levels. NMFS is specifically engaged in 
activities at the national level (e.g., smolt trapping and telemetry 
studies, and post-smolt trawl surveys) in an effort to understand 
migration/survival dynamics of smolts, survival estimates by ecological 
zone, smolt health and behavior during transition to the marine 
environment, and environmental conditions/ecosystem health during smolt 
migration. Data collected from these studies inform salmon management 
at the national levelands contribute to international efforts. As 
stated previously, the United States is a member of NASCO, an 
international treaty organization. Through NASCO, the United States 
participates in high seas sampling, marine research, and the sampling 
program for the West Greenland fishery. NMFS is also currently 
participating in an effort supported by NASCO called Salmon At Sea 
(SALSEA), an initiative to develop international scientific 
collaboration to understand marine survival issues. SALSEA is geared 
towards understanding marine survival issues on the high seas. Ongoing 
SALSEA work includes, but is not limited to, efforts to merge genetics 
and ecology data to try and understand marine migration and 
distribution patterns, trawl surveys, and fishery sampling.
    Marine survival is thus critical to shaping recruitment patterns in 
Atlantic salmon, with low marine survival causing the low abundance of 
adult salmon; however, the mechanisms of the observed persistent 
decline in marine survival remain unknown. It is clear that marine 
survival has to improve dramatically in the future in order to reverse 
the GOM DPS decline.
    It is important to note that the above discussion focuses primarily 
on survival at sea, beyond the territorial waters of any one country. 
Mortality of outmigrating smolts in the estuaries and bays of the GOM 
DPS is also affecting the population. Tagging and tracking studies 
conducted by NMFS indicate that approximately half of the smolts 
leaving our rivers do not enter the open ocean. Improvements in 
survival in this transition zone could ultimately result in 
improvements in marine survival. It is also likely that if we are able 
to identify the factors affecting survival of outmigrating smolts in 
our estuaries and bays, we will have a greater chance of influencing 
those factors than the factors that may be affecting salmon survival at 
sea. In summary, the observed, persistent decline in marine survival is 
directly responsible for the low abundance of adult salmon. Low marine 
survival poses a significant threat to the GOM DPS because it is 
driving population status and projections for recovery. Recovery of the 
species is dependent on increases in marine survival. The mechanisms 
driving low marine survival remain unknown.
Depleted Diadromous Communities
    The ecological setting in which Maine Atlantic salmon evolved is 
considerably different than what exists today. Ecological changes that 
have occurred over the last 200 years are ubiquitous and span a wide 
array of spatial and temporal scales. Of particular concern for 
Atlantic salmon recovery efforts within the range of the GOM DPS is the 
dramatic decline observed in the diadromous fish community. At historic 
abundance levels, Fay et al. (2006) and Saunders et al. (2006) 
hypothesized that several of the co-evolved diadromous fishes may have 
provided substantial benefits to Atlantic salmon through at least four 
mechanisms: serving as an alternative prey source for salmon predators; 
serving as prey for salmon directly; depositing marine-derived 
nutrients in freshwater; and increasing substrate diversity of rivers. 
A brief description of each mechanism is provided below.
    Fay et al. (2006) and Saunders et al. (2006) hypothesized that the 
historically large populations of clupeids (i.e., members of the family 
Clupeidae, such as alewives, blueback herring, and American shad) 
likely provided a robust alternative forage resource (or prey buffer) 
for opportunistic native predators of salmon during a variety of events 
in the salmon's life history. First, pre-spawn adult alewives likely 
served as a prey buffer for migrating Atlantic salmon smolts. Evidence 
for this relationship includes significant spatial and temporal overlap 
of migrations, similar body size, numbers of alewives that exceeded 
salmon smolt populations by several orders of magnitude (Smith, 1898; 
Collette and Klein-MacPhee, 2002), and a higher caloric content per 
individual (Schulze, 1996). Thus, alewives were likely a substantial

[[Page 29375]]

alternative prey resource (i.e., prey buffer) that protected salmon 
smolts from native predators such as cormorants, otters, ospreys, and 
bald eagles within sympatric migratory corridors (Mather, 1998; USASAC, 
2004). Second, adult American shad likely provided a similar prey 
buffer to potential predation on Atlantic salmon adults by otters and 
seals. Pre-spawn adult shad would enter these same rivers and begin 
their upstream spawning migration at approximately the same time as 
adult salmon. Historically, shad runs were considerably larger than 
salmon runs (Atkins and Foster, 1869; Stevenson, 1898). Thus, native 
predators of medium to large size fish in the estuarine and lower river 
zones could have preyed on these 1.5 to 2.5 kg size fish readily. 
Third, juvenile shad and blueback herring may have represented a 
substantial prey buffer from potential predation on Atlantic salmon fry 
and parr by native opportunistic predators such as mergansers, herons, 
mink, and fallfish. Large populations of juvenile shad (and blueback 
herring, with similar life history and habitat preferences to shad) 
would have occupied mainstem and larger tributary river reaches through 
much of the summer and early fall. Juvenile shad and herring would 
ultimately emigrate to the ocean, along with juvenile alewives from 
adjacent lacustrine habitats, in the late summer and fall. Recognizing 
that the range and migratory corridors of these juvenile clupeids would 
not be precisely sympatric with juvenile salmon habitat, there 
nonetheless would have been a substantial spatial overlap amongst the 
habitats and populations of these various juvenile fish stocks. Even in 
reaches where sympatric occupation by juvenile salmon and juvenile 
clupeids may have been low or absent, factors such as predator mobility 
and instinct driven energetic efficiency (i.e., optimal foraging 
theory) need to be considered since the opportunity for prey switching 
would have been much greater than today, and the opportunity for prey 
switching may produce stable predator-prey systems with coexistence of 
both prey and predator populations (Krivan, 1996).
    At historical abundance levels, other diadromous species also 
represented significant supplemental foraging resources for salmon in 
sympatric habitats. In particular, anadromous rainbow smelt are known 
to be a favored spring prey item of Atlantic salmon kelts (Cunjak et 
al. 1998). A 1995 radio tag study found that Miramichi River (New 
Brunswick, Canada) kelts showed a net upstream movement shortly after 
ice break-up (Komadina-Douthwright et al., 1997). This movement was 
concurrent with the onset of upstream migrations of rainbow smelt 
(Komadina-Douthwright et al., 1997). In addition, Moore et al. (1995) 
suggested that the general availability of forage fishes shortly after 
ice break-up in the Miramichi could be critical to the rejuvenation and 
ultimate survival of kelts as they prepared to return to sea. Kelts 
surviving to become repeat spawners are especially important, from a 
demographic perspective, due to higher fecundity (Baum, 1997; NRC, 
2004). The historical availability of anadromous rainbow smelt as 
potential kelt forage in lower river zones may have been important in 
sustaining the viability of this salmon life stage. Conversely, the 
broad declines in rainbow smelt populations may be partially 
responsible for the declining occurrence of repeat spawners in Maine's 
salmon rivers.
    Historically, the upstream migrations of large populations of adult 
clupeids, sea lamprey, and salmon themselves, provided a conduit for 
the import and deposition of biomass and nutrients of marine origin 
into freshwater environments. Mechanisms of direct deposition included 
discharge of urea, discharge of gametes on the spawning grounds, and 
deposition of adult carcasses (Durbin et al., 1979). Migrations and 
other movements of mobile predators and scavengers of adult carcasses 
likely resulted in further distribution of imported nutrients 
throughout the freshwater ecosystem. Conversely, juvenile outmigrants 
of these sea-run species represented a massive annual outflux of forage 
resources for Gulf of Maine predators, while also completing the cycle 
of exporting base nutrients back to the ocean environment. These types 
of diffuse mutualism are only recently being recognized (Hay et al., 
2004). Sea lampreys also likely played a role in nutrient cycling. 
Lampreys prefer spawning habitat that is very similar (location and 
physical characteristics) to that used by spawning Atlantic salmon 
(Kircheis, 2004). Adult lampreys spawn in late spring, range in weight 
from 1 to 2 kg, and experience 100 percent post-spawning mortality on 
spawning grounds (semelparous). This results in the deposition of 
marine-origin nutrients at about the same time that salmon fry would be 
emerging from redds and beginning to occupy adjacent juvenile 
production habitats. These nutrients would likely have enhanced the 
primary production capability of these habitats for weeks or even 
months after initial deposition, and would gradually be transferred 
throughout the trophic structure of the ecosystem, including those 
components most important to juvenile salmon (e.g., macroinvertebrate 
production).
    Sea lampreys likely provide an additional benefit to Atlantic 
salmon spawning activity in sympatric reaches. In constructing their 
nests, lamprey carry stones from other locations and deposit them 
centrally in a loose pile within riffle habitat and further utilize 
body scouring to clean silt off stones already at the site (Kircheis, 
2004). Ultimately, a pile of silt-free stones as deep as 25 cm and as 
long as a meter is formed (Leim and Scott, 1966; Scott and Scott, 
1988), into which the lamprey deposit their gametes. The stones 
preferred by lampreys are generally in the same size range as those 
preferred by spawning Atlantic salmon. Thus, lamprey nests can be 
attractive spawning sites for Atlantic salmon (Kircheis, 2004). 
Kircheis (2004) also notes the lamprey's silt-cleaning activities 
during nest construction that may improve the ``quality'' of the 
surrounding environment with respect to potential diversity and 
abundance of macroinvertebrates, a primary food item of juvenile 
salmon.
    Depleted diadromous fish communities are a stressor to the GOM DPS. 
Because diadromous fish populations have been significantly reduced, 
ecological benefits from marine derived nutrient deposition, prey 
buffering, and alternative sources of food for Atlantic salmon are 
likely significantly lower today compared to historical conditions. 
These impacts may be contributing, at some undetermined level, to 
decreased marine survival through the reduction of prey for 
reconditioning kelts, through increased predation risks for smolts in 
lower river and estuarine areas, and through increased predation risks 
to adults in estuarine and lower river areas. Although these impacts do 
not occur in the open ocean, the demographic impact to the species 
occurs after smolt emigration, and is thus a component of the marine 
survival regime.
Competition
    Prior to 1800, the resident riverine fish communities in Maine were 
relatively simple, consisting of brook trout, cusk (burbot), white 
sucker, and a number of minnow species. Today, Atlantic salmon co-exist 
with a diverse array of nonnative resident fishes, including brown 
trout, largemouth bass, smallmouth bass, and northern pike

[[Page 29376]]

(MIFW, 2002). The range expansion of nonnative fishes is important, 
given evidence that niche shifts may follow the addition or removal of 
other competing species (Fausch, 1998). For example, in Newfoundland, 
Canada, where fish communities are simple, Atlantic salmon inhabit 
pools and lakes that are generally considered atypical habitats in 
systems where there are more complex fish communities (Gibson, 1993). 
Use of lacustrine (or lake) habitat, in particular, can increase smolt 
production (Matthews et al., 1997). Conversely, if salmon are excluded 
from these habitats through competitive interactions, smolt production 
may suffer (Ryan, 1993). Even if salmon are not completely excluded 
from a given habitat type, they may select different, presumably sub-
optimal, habitats in the presence of certain competitors (Fausch, 
1998). Thus, competitive interactions may limit Atlantic salmon 
production through niche constriction (Hearn, 1987).
    The range expansion of nonnative species (e.g., smallmouth bass, 
brown trout, and rainbow trout) is of particular concern since these 
species often require similar resources as salmon and are, therefore, 
expected to be competitors for food and space. MIFW currently stocks 
landlocked Atlantic salmon, brown trout, brook trout, rainbow trout and 
splake in Atlantic salmon river drainages, posing a threat to Atlantic 
salmon in the GOM DPS (Fay et al., 2006). The range of northern pike 
has also been expanded through stocking, and they now exist in at least 
16 lakes within the Kennebec and Androscoggin drainages as well as 
Pushaw Lake that drains into Lower Penobscot River (MIFW, 2001). Yellow 
perch, white perch, and chain pickerel were historically native to 
Maine, though their range has been expanded by stocking and subsequent 
colonization (MIFW, 2002).
    Brown trout, rainbow trout, and splake are all non-native species 
known to prey on Atlantic salmon and have been stocked throughout the 
range of the GOM DPS by the MIFW (Fay et al., 2006). The species most 
likely to compete for food and habitat with Atlantic salmon in the GOM 
DPS include brown trout, land locked Atlantic salmon, brook trout, and 
smallmouth bass (Fay et al., 2006). Atlantic salmon and rainbow trout 
juveniles require similar resources; therefore, competition is expected 
to be significant in areas of overlap (Fay et al., 2006). Rainbow trout 
would be important competitors if they overlapped with Atlantic salmon 
to a greater extent (Fay et al., 2006). Rainbow trout are present in at 
least three reaches of the Kennebec River and in the Androscoggin (Fay 
et al., 2006). Illegal introductions and legal stocking programs 
continue to expand their range (Pellerin, 2002). Atlantic salmon and 
rainbow trout juveniles require similar resources; therefore, 
competition is expected to be significant in areas of overlap (Fay et 
al., 2006).
    There are some areas within the range of the GOM DPS where 
landlocked Atlantic salmon spawn successfully and rear in sympatry with 
anadromous Atlantic salmon (Fay et al., 2006). For these populations, 
competitive interactions for food and habitat are expected to be very 
high given the nearly identical early life history requirements of the 
two ecotypes (Fay et al., 2006). Competition between brown trout and 
Atlantic salmon is expected to be significant in areas where they co-
occur given similarities in their life history requirements (Fay et 
al., 2006). Brown trout currently inhabit the Androscoggin, Kennebec 
Rivers, and the Piscataquis River in the upper Penobscot watershed, as 
well as many lakes and ponds (Boland, 2001; MIFW, 2002). Most evidence 
suggests that brown trout will displace or otherwise outcompete 
Atlantic salmon from pool habitats in both summer and winter (Kennedy 
and Strange, 1986; Harwood et al., 2001). The ability of brown trout to 
outcompete Atlantic salmon has significant negative effects on Atlantic 
salmon, including changes in habitat use and behavior that may limit 
salmon production through niche constriction when the two species co-
occur (Hearn, 1987; Fausch, 1988). In summary, competition is a 
stressor to the GOM DPS because it can exclude salmon from preferred 
habitats, reduce food availability, and increase predation.
Climate Change
    Since the 1970s there has been a historically significant change in 
climate (Greene et al., 2008). Climate warming has resulted in 
increased precipitation, river discharge, and glacial and sea-ice 
melting (Greene et al., 2008). The past 3 decades have witnessed major 
changes in ocean circulation patterns in the Arctic, and these were 
accompanied by climate associated changes as well (Greene et al., 
2008). Shifts in atmospheric conditions have altered Arctic ocean 
circulation patterns and the export of freshwater to the North Atlantic 
(Greene et al., 2008; IPCC, 2006). With respect specifically to the 
North Atlantic Oscillation (NAO), changes in salinity and temperature 
are thought to be the result of changes in the earth's atmosphere 
caused by anthropogenic forces (IPCC, 2006). The NAO impacts climate 
variability throughout the northern hemisphere (IPCC, 2006). Data from 
the 1960s through the present show that the NAO index has increased 
from minimum values in the 1960s to strongly positive index values in 
the 1990s and somewhat declined since (IPCC, 2006). This warming 
extends over 1000 m deep and is deeper than anywhere in the world 
oceans and is particularly evident under the Gulf Stream/North Atlantic 
Current system (IPCC, 2006). On a global scale, large discharges of 
freshwater into the North Atlantic subarctic seas can lead to intense 
stratification of the upper water column and a disruption of North 
Atlantic Deepwater (NADW) formation (Greene et al., 2008; IPCC, 2006). 
There is evidence that the NADW has already freshened significantly 
(IPCC, 2006). This in turn can lead to a slowing down of the global 
ocean thermohaline (large-scale circulation in the ocean that 
transforms low-density upper ocean waters to higher density 
intermediate and deep waters and returns those waters back to the upper 
ocean), which can have climatic ramifications for the whole earth 
system (Greene et al., 2008).
    The changes in freshwater export and circulation patterns have 
resulted in significant salinity changes (IPCC, 2006), leading to two 
main ecological shifts (Pershing et al., 2005; Greene and Pershing 
2007; Greene et al., 2008). The first major ecological shift is the 
biogeographic range expansion by Boreal Plankton, including trans-
Arctic exchanges of Pacific species with the Atlantic (Greene et al., 
2008). The second ecological shift had mainly affected the Northwest 
Atlantic where, during the early 1990s, a dramatic shift in shelf 
ecosystems occurred (Pershing et al., 2005; Greene and Pershing, 2007; 
Greene et al., 2008). The major shifts observed specifically in the GOM 
and Scotian shelf ecosystems in the early 1990s are specifically linked 
to these changes in salinity and lower trophic level communities 
(Pershing et al., 2005; Greene and Pershing, 2007; Greene et al., 
2008). These changes may be related to changes in higher trophic level 
consumer populations as well (Greene et al., 2008). Shifts in 
ecological communities in the Northwest Atlantic include commercially 
harvested fish and crustacean populations, both of which underwent 
large changes in abundance during the 1990s (Frank et al., 2005; 
Pershing et al., 2005; Vilhjalmsson et al., 2005). While overfishing 
was the predominant cause

[[Page 29377]]

of the collapse of cod in particular, the cold, low-salinity Arctic 
waters entering the northern portion of the range of cod, seem to have 
hampered their subsequent recovery (Rose et al., 2000; Vilhjalmsson et 
al., 2005). Other species, such as shrimp and snow crab, have increased 
in abundance in the absence of cod predation (Frank et al., 2005).
    With respect to the GOM DPS, Greene et al. (2008) describe that 
changes in salinity can result in more localized effects on ocean 
circulation patterns and climate that are confined to the North 
Atlantic basin and the adjacent landmasses. For example, these changes 
specifically affect thermal regimes within the range of the GOM DPS 
(see section 8.1.4 of Fay et al. (2006)). Within the range of the GOM 
DPS, the spring runoff occurs earlier; water content in snow pack for 
March and April has decreased; and the duration of river ice has been 
reduced (Dudley and Hodgkins, 2002). Several studies indicate that 
small thermal changes may substantially alter reproductive performance, 
smolt development, species distribution limits, and community structure 
of fish populations (Van Der Kraak and Pankhurst, 1997; McCormick et 
al., 1997; Keleher and Rahel, 1996; McCarthy and Houlihan, 1997; Welch 
et al., 1998; Schindler, 2001). For Atlantic salmon specifically, 
Juanes et al. (2004) suggest that observed changes in adult run timing 
may be a response to global climate change. Friedland et al. (2005) 
summarized numerous studies that suggest that climate mediates marine 
survival for Atlantic salmon as well as other fish species. Recent 
analyses of bottom water temperatures found that negative NAO years are 
warmer in the north and cooler in the Gulf of Maine (Petrie, 2007). 
Positive NAO years are warmer in Gulf of Maine and colder in the north 
(north of 45[deg] N) (Petrie, 2007). Strength of NAO is related to 
annual changes in diversity of potential predators: at southern 
latitudes, there are more species during positive NAO years (Fisher et 
al., 2008). The effect is system-wide where 133 species showed at least 
a 20 percent difference in frequency of occurrence in years with 
opposing NAO states (Fisher et al., 2008).
    This is currently leading to different hypotheses regarding the 
effect these changes may be having on Atlantic salmon. One hypothesis 
is that salmon migrating during positive NAO years confront a steeper 
gradient of cooler to warmer water. This gradient may be resulting in 
changes in the composition of species as Atlantic salmon undertake 
their marine migration, potentially increasing the vulnerability of 
Atlantic salmon to predators (Gibson, 2006; NMFS Nearshore Workshop 
2, 2009). Other hypotheses being explored relate to potential 
linkages between ocean climate and effects on wind velocities and 
nearshore wind driven currents and adverse impacts on post smolt 
migration, as well as the potential influence of air temperatures and 
sea surface temperature and potential impacts on migration cues (NMFS 
Nearshore Workshop 2, 2009). These current efforts to 
understand changes in ocean productivity are focused on whether 
environmental changes could be contributing, whether there are any 
other species where similar shifts in productivity have had negative 
effects, and whether there are correlations between this particular 
phase shift and population dynamics of other species.
    While some physiological changes at the individual level are quite 
predictable when changes in temperature are known, we do not understand 
how or to what degree climate change may affect the freshwater and 
marine environment of the GOM DPS. At this time, we do not have enough 
information to determine whether the GOM DPS is threatened or 
endangered because of the effects of climate change.

Efforts Being Made To Protect the Species

    Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce 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 a listing 
determination, we first assess a species' 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 these 
conservation efforts improve the status of the species such that it 
does not meet the ESA's definition of a threatened or endangered 
species.
    In judging the efficacy of existing protective efforts, we rely on 
the Services' joint ``Policy for Evaluation of Conservation Efforts 
When Making Listing Decisions'' (``PECE;'' 68 FR 15100; March 28, 
2003). PECE provides direction for the consideration of protective 
efforts identified in conservation agreements, conservation plans, 
management plans, or similar documents (developed by Federal agencies, 
state and local governments, tribal governments, businesses, 
organizations, and individuals) that have not yet been implemented, or 
have been implemented but have not yet demonstrated effectiveness. The 
policy articulates several criteria for evaluating the certainty of 
implementation and effectiveness of protective efforts to aid in 
determining whether a species should be listed as threatened or 
endangered. Evaluation of the certainty that an effort will be 
implemented includes whether: (1) The conservation effort, the 
party(ies) to the agreement or plan that will implement the effort, and 
the staffing, funding level, funding source, and other resources 
necessary to implement the effort are identified; (2) the legal 
authority of the party(ies) to the agreement or plan to implement the 
formalized conservation effort, and the commitment to proceed with the 
conservation effort are described; (3) the legal procedural 
requirements (e.g. environmental review) necessary to implement the 
effort are described, and information is provided indicating that 
fulfillment of these requirements does not preclude commitment to the 
effort; (4) authorizations (e.g., permits, landowner permission) 
necessary to implement the conservation effort are identified, and a 
high level of certainty is provided that the party(ies) to the 
agreement or plan that will implement the effort will obtain these 
authorizations; (5) the type and level of voluntary participation 
(e.g., number of landowners allowing entry to their land, or number of 
participants agreeing to change timber management practices and acreage 
involved) necessary to implement the conservation effort is identified, 
and a high level of certainty is provided that the party(ies) to the 
agreement or plan that will implement the conservation effort will 
obtain that level of voluntary participation (e.g., an explanation of 
how incentives to be provided will result in the necessary level of 
voluntary participation); (6) regulatory mechanisms (e.g., laws, 
regulations, ordinances) necessary to implement the conservation effort 
are in place; (7) a high level of certainty is provided that the 
party(ies) to the agreement or plan that will implement the 
conservation effort will obtain the necessary funding; (8) an 
implementation schedule (including incremental completion dates) for 
the conservation effort is provided; and (9) the conservation agreement 
or plan that includes the conservation effort is approved by all 
parties to the agreement or plan. The evaluation of the certainty of an 
effort's effectiveness is made on the basis of whether the effort or 
plan meets the following elements: (1) The nature and extent of threats 
being

[[Page 29378]]

addressed by the conservation effort are described, and how the 
conservation effort reduces the threats is described; (2) explicit 
incremental objectives for the conservation effort and dates for 
achieving them are stated; (3) the steps necessary to implement the 
conservation effort are identified in detail; (4) quantifiable, 
scientifically valid parameters that will demonstrate achievement of 
objectives, and standards for these parameters by which progress will 
be measured, are identified; (5) provisions for monitoring and 
reporting progress on implementation (based on compliance with the 
implementation schedule) and effectiveness (based on evaluation of 
quantifiable parameters) of the conservation effort are provided; and 
(6) principles of adaptive management are incorporated.
    PECE also notes several important caveats. Satisfaction of the 
above mentioned criteria for implementation and effectiveness 
establishes a given protective effort as a candidate for consideration, 
but does not mean that an effort will ultimately change the risk 
assessment for the species. The policy stresses that, just as listing 
determinations must be based on the viability of the species at the 
time of review, so they must be based on the state of protective 
efforts at the time of the listing determination. PECE does not provide 
explicit guidance on how protective efforts affecting only a portion of 
a species' range may affect a listing determination, other than to say 
that such efforts will be evaluated in the context of other efforts 
being made and the species' overall viability. There are circumstances 
where threats are so imminent, widespread, and/or complex that it may 
be impossible for any agreement or plan to include sufficient efforts 
to result in a determination that listing is not warranted.
    Outlined below are current and future protective efforts that may 
minimize threats facing the GOM DPS. Each of these efforts or projects 
is measured against the PECE criteria to evaluate the certainty of 
implementation and effectiveness to determine the relative contribution 
of the efforts to reducing extinction risk.

Fish Passage, Dams, and Hydropower

    The Services are involved in hydroelectric project relicensing and 
other fish passage issues. Fisheries agencies in Maine continue to work 
to establish and improve upstream and downstream fish passage, and to 
remove dams and other blockages to habitat connectivity. The majority 
of fish passage work in the range of the GOM DPS focuses on FERC 
licensed dams on the Penobscot, Kennebec, and Androscoggin watersheds 
and on opportunities to enhance passage throughout historical Atlantic 
salmon habitat. This includes participating in the Penobscot River 
Restoration Project, negotiating improved passage on a number of dams 
on the Kennebec River pursuant in part to the 1998 Lower Kennebec River 
Comprehensive Hydropower Settlement Accord, replacing culverts on 
highways and logging roads, and removing dams. The Services, in 
coordination with other state and Federal agencies, are also making 
efforts to improve fish passage on the Narraguagus and Sheepscot 
Rivers. Information regarding some of the most notable efforts made to 
improve passage for Atlantic salmon in the GOM DPS is summarized below.
    (1) Lower Kennebec River Comprehensive Hydropower Settlement Accord 
(KHDG Accord, May 26th, 1998): The KHDG Accord addresses fish passage 
issues at eight hydroelectric projects on the Kennebec River and 
Sebasticook River. The 1998 Accord was signed by various state and 
Federal fishery agencies and approved by the FERC. In addition, the 
Anson and Abenaki Offer of Settlement (January 30, 2002), also signed 
by various state and Federal fishery agencies and approved by FERC, 
addresses fish passage provisions on two hydroelectric projects within 
the middle reaches of the Kennebec River (Anson and Abenaki Projects). 
On the Kennebec River, fish passage agreements were reached at the 
lower four hydroelectric projects including the Lockwood, Hydro-
Kennebec, Shawmut, and Weston as part of the KHDG Accord. The lowermost 
hydroelectric project, Edwards Dam, was removed as part of the KHDG 
Accord. On the Sebasticook River, fish passage agreements were reached 
on the Benton and Burnham Projects, and in 2008, the Fort Halifax dam 
was breached pursuant to the passage agreement.
    During the spring of 2006, upstream fish passage facilities were 
installed at the Lockwood Dam, the lowermost dam in the Kennebec, 
pursuant to the KHDG Accord. Fish passage at the Lockwood Dam currently 
consists of a fish lift with trap and truck facilities. Atlantic salmon 
captured at the Lockwood Dam are transported upstream to suitable 
habitat in the Sandy River. In 2006, upstream fish passage, in the form 
of a fish lift, was also installed at the Benton Falls and Burnham 
facilities on the Sebasticook River, a tributary to the Kennebec. 
Currently on the Kennebec, only the Lockwood Dam has upstream fish 
passage facilities for Atlantic salmon (FPL Energy Maine Hydro LLC, 
2008). While some salmon rearing habitat is now available in the 
restored reach below Lockwood, the vast majority of salmon habitat 
(nearly 90 percent) in the Kennebec River watershed is located above 
Lockwood.
    The KHDG Accord and Anson-Abenaki Settlement contain biological 
triggers for implementing upstream passage on the Kennebec River. Based 
upon the KHDG biological triggers, the next mainstem dam upstream of 
Lockwood (Hydro-Kennebec) may not have upstream fish passage facilities 
installed until 2010 at the earliest, and the last dam with upstream 
habitat may not have fishways until 2020. The main biological trigger 
to sequential implementation of upstream passage at the remaining KHDG 
dams is the establishment of a large run of shad in the Kennebec that 
will be trapped at Lockwood. The shad program in the Kennebec is 
supported by stocking; however, that program is limited by funding and 
production capabilities. Funding was secured through 2008; however, 
funding for the stocking program for 2009 and beyond is highly 
uncertain. The KHDG Accord does offer one other alternative to state 
and Federal resource agencies to trigger fishway installation. Text in 
the Accord states the alternative approach is available to state and 
Federal resource agencies ``should the growth of salmon or river 
herring runs make it necessary to adopt an alternative approach for 
triggering fishway installation.'' However, this process would have to 
be handled through FERC, and the Licensee would have to agree to the 
proposed alternative triggers. Even after fish passage facilities are 
installed in the Kennebec River in accordance with this plan, Atlantic 
salmon will need to pass at least six mainstem dams (Lockwood, Hydro-
Kennebec, Shawmut, Weston, Abenaki, and Anson).
    The KHDG Accord and Anson-Abenaki Settlement are legally binding, 
requiring all parties to fulfill their obligations as stated in the 
agreement. When all of the conditions in the Accord and Settlement have 
been fulfilled, passage on the Kennebec River and some of the 
tributaries will be improved, allowing Atlantic salmon and other 
diadromous species access to important habitat. However, neither the 
Accord nor the Settlement is likely to recover Atlantic salmon in the 
Kennebec watershed in the foreseeable future. The legal procedural 
requirements in the agreements are based upon biological triggers that 
currently are contingent upon the

[[Page 29379]]

success of a shad stocking program for which production capacity and 
funding are uncertain for 2009 and beyond. Therefore, the second, third 
and seventh criteria in the PECE for certainty of implementation are 
not satisfied. Under PECE, the effectiveness of the agreements to fully 
address passage issues for Atlantic salmon in the Kennebec River, or 
the entire GOM DPS, also can not be fully guaranteed at this time, 
given that all objectives and project parameters are based upon 
biological triggers that are uncertain. Thus, while the Accord and the 
Settlement have time tables associated with implementation, monitoring 
components, and project objectives (effectiveness criteria two, three, 
and five), these are contingent upon biological triggers being met.
    (2) Penobscot River Restoration Project (PRRP): Perhaps the most 
significant of the agreements mentioned above is the PRRP. The PRRP is 
the result of many years of negotiations between Pennsylvania Power and 
Light (PPL), U.S. Department of the Interior (i.e., USFWS, Bureau of 
Indian Affairs, National Park Service), Penobscot Indian Nation, the 
state of Maine (i.e., Maine State Planning Office, Inland Fisheries and 
Wildlife, MDMR), and several non-governmental organizations (NGOs; 
Atlantic Salmon Federation, American Rivers, Trout Unlimited, Natural 
Resources Council of Maine, among others). If implemented, the PRRP 
would lead to the removal of the two lowermost mainstem dams on the 
Penobscot River (Veazie and Great Works) and would decommission the 
Howland Dam and construct a nature-like fishway around it. This 
initiative would improve habitat accessibility for all diadromous 
species. For example, less than 7 percent of post-project salmon 
habitat will be above four or more dams, and at least 43 percent of the 
habitat would require, at most, one dam passage in each direction with 
conventional passage facilities. At least 15 percent of salmon habitat 
would have no intervening dams remaining, compared to 2.5 percent 
presently (see section 8.1 in Fay et al., 2006).
    In addition to improved habitat accessibility for Atlantic salmon 
and other diadromous species, the PRRP will also provide an opportunity 
to study the ecological linkages between Atlantic salmon and the 11 
other diadromous species with which they co-evolved. The linkage 
between other diadromous species and Atlantic salmon may be crucial to 
recovering Atlantic salmon to self-sustaining levels. As stated 
previously, this co-evolution likely provided ecological benefits to 
the diadromous species complex (e.g., marine-derived nutrient 
deposition and prey buffering), which may enhance Atlantic salmon 
survival at key life stages. Therefore, a full understanding of these 
benefits and a multi-species approach is required for the successful 
recovery of Atlantic salmon to the Penobscot system.
    In June 2004, the Parties to the negotiations signed the Penobscot 
Multiparty Settlement Agreement (MPA). The MPA includes a 5-year option 
period during which time the ``Penobscot River Restoration Trust'' 
raised the necessary funds to purchase the dams. In addition, another 
$25-30M is required for decommissioning and removal. NOAA's budget for 
the 2008 fiscal year contained $10M to support the PRRP.
    There is a significant effort on behalf of the Parties to the MPA 
and other Federal and non-Federal bodies to secure funds for the 
purchase, decommissioning, and removal of the dams. However, as stated 
above, the certainty of that funding is not known at this time. While 
the necessary funding has been committed by the government and other 
private donors to achieve the purchase of the dams, a significant 
amount of money still must be acquired in order for the parties to 
exercise the option to decommission and remove the dams as well as 
construct a nature like fishway. While significant progress has been 
made in fundraising and permitting, staffing, funding level, funding 
source and other resources necessary to fully implement the PRRP are 
not identified at this time. There is not currently a high level of 
certainty that the necessary funding will be obtained. Therefore, at 
this time, the PRRP does not satisfy criteria one and seven in the 
certainty of implementation of the PECE. Permitting and regulatory 
requirements are also uncertain at this stage because they are 
contingent upon the ability of the parties to raise the full amount of 
funds necessary, FERC approval of the Trust's permit to surrender the 
dams, and completion of required environmental review. Thus, the PRRP 
does not satisfy criterion four of the PECE, which requires that all 
authorizations (e.g., permits, land owner permission) necessary to 
implement the conservation effort are identified and that there is a 
high certainty that the parties to the agreement will obtain all 
necessary authorizations. If proper funding is acquired to fulfill the 
MPA and the project undergoes the appropriate environmental and 
regulatory review and permitting, Atlantic salmon in the Penobscot 
River will clearly benefit. However, it is not possible to state at 
this time with a high level of certainty that this project will be 
fully implemented, especially in light of the present economic 
conditions and energy issues facing the United States. If the removal 
option is not exercised, fishway prescriptions issued by the Services 
will be implemented.
    The PRRP provides unique opportunities for restoration efforts. 
Many species will benefit from the PRRP directly, but many other 
passage impediments exist in the basin. Some diadromous fish species, 
such as Atlantic salmon, alewife, and shad, may require additional 
habitat improvements (barrier removal, fishways, etc.) or stocking. 
Thus, additional active restoration measures may be required to realize 
the full potential of the PRRP. Due to the high profile of the project 
and the high costs involved, there is a need to prioritize restoration 
efforts in the basin to increase the probability for project success. 
There are many ways to determine what a ``successful'' PRRP would look 
like. In March 2008, the Penobscot Interagency Technical Committee 
(PNITC) was formed to develop operational management plans for 
diadromous fish within the basin. Members of the PNITC include managers 
and scientists from MDMR, MIFW, NMFS, the Penobscot Indian Nation, and 
FWS. The PNITC has been tasked with developing one set of restoration 
goals and priorities for the basin. To help facilitate this goal, we 
have begun developing an ecologically-based GIS tool to help set goals 
and to help identify and prioritize various restoration efforts. The 
outputs of this tool will help to ensure that achievable goals are 
established, and that funding and restoration efforts are applied in 
the most appropriate manner. The PNITC, in conjunction with NMFS, are 
making strides towards defining the scope of restoration efforts and 
operational plans for diadromous species including Atlantic salmon. 
Despite these efforts, the effectiveness of the PRRP is still uncertain 
given that explicit incremental objectives and an implementation plan 
still need to be identified (criteria two and three); quantifiable, 
scientifically valid parameters by which to measure progress have yet 
to be established (criterion four); and provisions for reporting and 
monitoring have not been established (criterion five).
    (3) New England Atlantic Salmon Committee (NEASC): In addition to 
these efforts, NEASC requested that the USASAC provide a list of the 
top priority fish passage projects in New England. NEASC hopes to use 
this information to leverage funding from a

[[Page 29380]]

variety of sources to implement these projects. The prioritized list 
was developed by soliciting information from representatives from each 
of the New England states responsible for managing Atlantic salmon. 
NEASC hopes that this initiative will result in a large scale effort to 
improve passage and remove obstructions for salmon and other diadromous 
fish species throughout New England. This effort may result in gaining 
both support and resources for improved passage. However, the outcome 
of this effort is highly uncertain in terms of both implementation and 
effectiveness. Therefore, the NEASC effort to prioritize fish passage 
projects in hopes to leverage funding for implementation does not 
satisfy any of the six effectiveness and nine implementation criteria 
of the PECE.

Adaptive Management Initiatives

    (1) Habitat Connectivity: In 2006, 18 stream habitat connectivity 
projects were completed in 3 of the Downeast Rivers. The principal 
funding sources were Natural Resources Conservation Service-Wildlife 
Habitat Improvement Program, USFWS, Maine Atlantic Salmon Conservation 
Partnership-Student Career Experience Program, Project Salmon Habitat 
and River Enhancement, Washington County Soil and Water Conservation 
District, and private landowner contributions. Four stream-road 
crossings (culverts) were completely removed in the Machias River 
watershed. The remaining 14 projects replaced undersized culverts with 
open bottom arches that spanned 1.2 times bankfull stream width in the 
Machias, Narraguagus, and East Machias watersheds. These restoration 
projects are effectively contributing to salmon recovery by improving 
access to habitat for Atlantic salmon and other diadromous species. 
These types of restoration initiatives are likely to continue; however, 
they are contingent upon the continued availability of funding sources, 
voluntary participation of landowners and other groups, and 
identification of specific implementation dates. Therefore, while the 
aforementioned projects are deemed to be effective, the certainty of 
implementation of additional projects is unknown and the future 
initiatives do not satisfy certainty of implementation criteria one, 
five, seven and eight.
    (2) Watershed Councils: Watershed councils are actively engaged in 
cooperative Atlantic salmon conservation activities. Local watershed 
councils, formed under the auspices of the Maine Atlantic Salmon 
Conservation Partnership, continue to play an important role in 
recovery activities in their respective watersheds, particularly the 
planning and implementation of watershed-specific habitat protection 
and restoration. Watershed councils have representatives from state and 
Federal agencies, conservation groups, industries, towns, landowners 
and other interested groups or individuals. These groups coordinate 
their efforts with those of local groups with similar goals. The 
councils continue to review the status of threats in each watershed and 
determine the need for continued or new efforts to further minimize any 
potential threat to Atlantic salmon from future activities present in 
the watershed. The process ensures that all stakeholders in the 
watersheds have the opportunity to participate in decisions concerning 
conservation actions. The activities of watershed councils are largely 
voluntary and vary by council, depending on the level of participation 
from members. Many of the efforts undertaken by watershed councils have 
been and continue to be extremely effective at contributing to salmon 
recovery. Future efforts will likely continue to make positive 
contributions as well, provided that voluntary participation within 
each council continues. There is no overarching management plan that 
outlines the collective work or goals of the councils into the future; 
therefore, it is uncertain what projects will be implemented on an 
annual basis, and whether the necessary resources will be available to 
implement the projects in terms of both funding sources and voluntary 
participation. PECE criteria one, five, seven and eight require a high 
level of certainty that: the necessary resources are identified and 
secured; the necessary voluntary participation and permissions to 
implement conservation plan have been obtained; and an implementation 
schedule for the project is provided. While past activities have been 
effective in restoring salmon habitat and improving access, the 
effectiveness of future efforts can not be evaluated in terms of the 
conservation contribution to the status of the species.
    (3) Large Woody Debris Project: Maine's rivers have experienced 
dramatic changes over the last 300 years. One of the most sweeping is 
the removal, lack of recruitment, and subsequent attrition of LWD. The 
result is that the rivers likely have very low loading of LWD, and 
thus, have less complex fish habitat compared to the past. LWD creates 
pools, retains gravel and nutrients, supports benthic 
macroinvertebrates, influences current velocities and water depth, 
provides cover, and during high water, refugia for fishes. The value of 
LWD in promoting productive Atlantic salmon habitat is undocumented. In 
October 2006, a project was implemented to enhance habitat at a scale 
that will have population-level benefits, with a design that evaluates 
the effects of LWD additions on stream geomorphology. LWD was added to 
two sites, each with a paired control site, in Creamer Brook, East 
Machias Drainage. Streams in the Narraguagus, Machias, and East Machias 
drainages were also evaluated for potential LWD additions. The Creamer 
Brook sites were scouted and surveyed for similarity and surveyed for 
fish populations immediately prior to the habitat work. Each site was 
electrofished using multiple pass depletion, and fish were weighed, 
measured, and released into their site. LWD was added at a rate of 
approximately 12 pieces per 100m by cutting trees in the riparian zone 
and adjusting their placement to achieve either stability or 
geomorphologic effect. In addition, all LWD (existing and added) in the 
treatment sites was tagged with metal numeric tags and marked with 
spray paint. The site was surveyed before and after LWD placements. 
Trees were also felled in the riparian zone to increase roughness to 
minimize channel migration as a result of the LWD additions.
    The LWD project directly incorporates the principles of adaptive 
management. The project is aimed at improving the complexity of fish 
habitat through the addition of LWD. The project plan lays out explicit 
objectives, qualitative and quantitative parameters by which progress 
will be measured, and sites to be monitored, fulfilling two through six 
of the PECE effectiveness criteria. The effectiveness of this project 
has not been demonstrated because LWD additions have not been shown to 
enhance salmon survival. Therefore, it is not yet clear to what extent 
the LWD project is addressing the threat posed by the loss of habitat 
complexity; thus, criterion one of the certainty of effectiveness is 
not satisfied.
    (4) The Penobscot Indian Nation Water Quality Monitoring Program: 
Water quality is a critical issue to the Penobscot Indian Nation, given 
that many of the fish and other aquatic species serve as an important 
source of traditional food. Industrial discharge has resulted in the 
presence of harmful chemicals in the waters that flow through 
reservation waters. The Penobscot Indian Nation has implemented a 
rigorous water quality testing program to: ensure that water

[[Page 29381]]

quality standards are being met and that licensed discharges are in 
compliance with permit conditions; upgrade river and tributary 
classifications; identify and remediate sources of non-point source 
pollution; and gather data needed to support the role of the tribe in 
hydroelectric re-licensing. The Penobscot Indian Nation also has a 
cooperative agreement with the MDEP to share water quality data and 
technical assistance. The data provided by the Penobscot Indian Nation 
has led to the revision of water classifications for over 500 rivers 
and streams and improved water quality. The Penobscot Indian Nation's 
water quality monitoring program satisfies all of the certainty of 
effectiveness and implementation criteria. While this program is very 
important in terms of improving water quality and the health of aquatic 
organisms, the results of the program in terms of threat abatement 
across the entire GOM DPS are not sufficient to warrant a change in the 
listing status of the GOM DPS.

International Efforts

    (1) North Atlantic Salmon Conservation Organization: The Convention 
for the Conservation of Salmon in the North Atlantic Ocean, ratified by 
the United States in 1982, provides a mechanism for managing the 
international commercial fishery for Atlantic salmon for the purpose of 
conserving and restoring salmon stocks. The Convention provides a forum 
for coordination among members, proposing regulatory measures, and for 
making recommendations regarding scientific research. The Convention 
was adopted by the United States, Canada, Greenland (as represented by 
Denmark), Iceland, Faroes Islands, Norway, and the European Commission. 
Russia joined later. The NASCO was formed by this Convention. The 
United States became a charter member of NASCO in 1984. NASCO is 
charged with the international management of Atlantic salmon stocks on 
the high seas. NASCO is composed of three geographic Commissions: 
Northeast Atlantic, West Greenland, and North American. NASCO seeks 
scientific advice from the International Council for the Exploration of 
the Seas (ICES) on the status of stocks, the effectiveness of 
management measures, monitoring and data needs, and catch options. 
NASCO uses this scientific advice as a basis for formulating 
biologically sound management recommendations for the conservation of 
North Atlantic salmon stocks. Providing catch options for the fishery 
at West Greenland is one area where this advice is specifically 
applied.
    The West Greenland fishery was one of the last directed Atlantic 
salmon commercial fisheries in the Northwest Atlantic. In 2005, in 
recognition of the depressed status of the stocks and the fact that the 
resulting scientific advice was unchanged year-to-year, the NASCO 
Parties asked ICES for multi-annual regulatory advice. Based on this 
advice, a provisional multi-annual regulatory measure was adopted at 
the 2006 annual meeting of NASCO to restrict the fishery in 2006 to 
internal use only and conditionally also for 2007 and 2008. The 
provisional multi-annual regulatory measure adopted in 2006 was 
contingent upon finalization and acceptance of a finalized Framework of 
Indicators (FWI). ICES provided NASCO with a finalized FWI for the 
mixed stock off West Greenland that all Parties accepted in 2007. The 
multi-annual regulatory measure agreed to in 2006 were continued for 
2007 and 2008. This measure, like those of recent years, limits harvest 
in West Greenland to internal use only (estimated to be about 20 mt). 
Denmark, representing Greenland and the Faroe Islands, stated that it 
would accept the FWI for a fixed period 2006-2008 and would consider 
accepting new multi-annual catch advice at the 2009 Annual Meeting in 
light of further development of the FWI, the continued research of the 
mortality of salmon stocks, and possible improvement of the stocks.
    In 2001, NASCO established an International Atlantic Salmon 
Research Board (IASRB) to promote collaboration and cooperation on 
research on the causes of marine mortality of Atlantic salmon and the 
opportunities to counteract this mortality. The IASRB has made great 
progress in improving coordination of the existing research and 
supporting initiation of new research projects. However, there are 
still substantial gaps in our knowledge of what factors may be 
affecting salmon at sea. The IASRB, therefore, commissioned the 
development of an international program of cooperative research on 
salmon at sea (SALSEA). The SALSEA program has been developed by 
scientists from all NASCO's Parties. The four areas on which SALSEA is 
currently focusing are: (1) Supporting technologies to assist in the 
genetic identification of the origin of salmon sampled at sea, 
improving efficiency of sampling of salmon at sea, and improving 
standardized scale analysis of salmon at sea; (2) studying early 
migration through the inshore zone: fresh waters, estuaries, and 
coastal waters to specifically understand what factors may be 
influencing marine mortality; (3) studying the distribution and 
migration of salmon at sea; and (4) improving communications and public 
relations. The United States has contributed $150,000 to the IASRB to 
help fund SALSEA. The United States has also participated in a marking 
workshop sponsored by SALSEA and actively participates in the West 
Greenland Sampling Program on an annual basis.
    The West Greenland Sampling Program is an international sampling 
program of the internal use fishery at West Greenland. Scale and tissue 
samples are taken to allow examination of stock origin, catch 
composition, and fish health. This sampling program has provided a 
wealth of information on the extent, location, and origin of the catch. 
Scale and genetic analyses have allowed for detailed knowledge of the 
characteristics of the catch, including age and continent of origin. In 
recent years, approximately 70 percent of the catch has been of North 
American origin and 30 percent of European origin.
    The United States intends to continue to participate fully in NASCO 
and associated negotiations over the West Greenland Fishery. The 
legislative authority, funding, authorizations, staffing resources, an 
approved plan (U.S. Implementation Plan) and associated schedule for 
implementation of actions, and legal requirements allowing for United 
States participation in NASCO are certain. Although NASCO does not have 
any regulatory authority over any of the Parties, it has been 
successful at influencing salmon management in member states. The West 
Greenland fishery is a prime example of NASCO facilitating negotiations 
and ultimately, management, of this fishery for the benefit of salmon 
as a whole in the North Atlantic Ocean. However, while NASCO has been 
successful in reducing the threat of directed harvest of Atlantic 
salmon in the West Greenland fishery, a small, but significant, portion 
of the catch continues to be Atlantic salmon of U.S. origin. The NASCO 
guidelines and agreements are contributing to reducing threats to 
salmon recovery (e.g., fishing, disease, aquaculture, habitat 
destruction, stocking practices). While the NASCO agreements and 
guidelines appear to have reduced the threat from direct harvest, the 
agreements and guidelines are not regulatory. It is incumbent on each 
Party to NASCO to enforce the actions identified in the Implementation 
Plan drafted by each country as well as report on their success 
relative to the health of salmon stocks. Therefore, the effectiveness 
of

[[Page 29382]]

specific NASCO guidelines and agreements is not certain. Some parties 
have failed to develop rigorous Implementation Plans with explicit 
incremental objectives and dates for achieving the action, scientific 
parameters, and ability to report under these plans. Thus, 
effectiveness criteria two through five are not certain at this time. 
There is also some uncertainty in terms of the implementation of the 
NASCO guidelines and agreements. There is even more uncertainty about 
the individual Implementation Plans, given that, in some regions, there 
is not the necessary voluntary support by landowners, necessary funding 
to implement the conservation measures, or even the necessary 
regulatory mechanisms within the jurisdiction of each Party to regulate 
certain activities. Thus, certainty of implementation criteria four to 
seven cannot be satisfied for the NASCO guidelines and agreements. It 
is also unknown to what extent current IASRB and SALSEA activities will 
abate the threat from poor marine survival.
    (2) West Greenland Conservation Agreement: In August 2002, a multi-
year conservation agreement with an annual termination date (available 
to both parties) was established between the North Atlantic Salmon Fund 
and the Organization of Hunters and Fishermen in Greenland, effectively 
buying out the commercial fishery for Atlantic salmon for a 5-year 
period. The internal-use fishery is not included in the agreement. In 
June 2007, the agreement was extended and revised to cover the 2007 
fishing season with a provision which allows the agreement to continue 
to be extended on an annual basis through 2013. An implementation plan 
and schedule are already developed as well as the necessary 
authorizations and legal authority. However, certainty of 
implementation criteria five, seven, and nine cannot be satisfied, 
considering the certainty that the necessary funding has not been 
secured, and it is not known if all parties will agree to extend the 
Agreement.

Summary of Protective Efforts

    The current endangered status of the GOM DPS as listed in 2000 and 
the desire to restore the Penobscot to a free flowing river have 
created an incentive for various agencies, groups, and individuals to 
carry out a number of efforts aimed at protecting and conserving 
salmon. These actions are being directed at reducing threats faced by 
Atlantic salmon and could contribute to the recovery and restoration of 
the GOM DPS and its ecosystem substantially in the future. However, 
apart from the Penobscot Indian Nation Water Quality Monitoring 
Program, there is still considerable uncertainty regarding the 
implementation and effectiveness of these efforts in the future. 
Therefore, they cannot be considered to affect the listing status of 
the GOM DPS.

Finding

    As stated previously in this final rule, the main difference 
between the GOM DPS as listed in 2000 and the GOM DPS as finalized in 
this rule is the inclusion of the majority of the Androscoggin, 
Kennebec, and Penobscot River basins. The 2000 GOM DPS consisted of 
only small coastal rivers on either side of the Penobscot River.
    The small coastal rivers were subject to similar threats, including 
water withdrawals, aquaculture escapees, and habitat degradation. 
Although the rivers to the east and west of the Penobscot are exposed 
to different stressors, they have more threats in common with each 
other than with the larger river systems included in the GOM DPS as 
currently defined. Habitat degradation from poor water quality and 
water withdrawals still pose a threat to salmon within some of the 
small coastal rivers. For the most part, the small coastal rivers 
included within the 2000 GOM DPS boundaries are not dammed for 
hydroelectric generation (an exception would be the Union River), and, 
therefore, this threat was not highlighted in the 2000 listing. 
However, other barriers were identified in the 2000 listing as 
impacting habitat.
    The larger river basins face some additional threats compared to 
the small coastal rivers because they have higher human population 
densities, more development, and a significant number of dams and other 
barriers. Dams are present on all three of the larger rivers within the 
range of the GOM DPS and impact all salmon moving up and downstream. 
Given the number of salmon affected by dams and the amount of the 
habitat within the GOM DPS affected by dams, this threat is a 
significant factor in this listing determination.
    Poor marine survival was identified as one of the most significant 
threats in our 2000 listing. Since then, we have improved our knowledge 
and understanding of the impact of marine survival on the GOM DPS. 
Survival and eventual recovery of the GOM DPS depends on an increase in 
marine survival, which is why that threat is a significant factor in 
this listing determination.
    There are extremely few naturally-reared, spawning adult salmon 
present in the GOM DPS (184 in 2007). With the addition of Atlantic 
salmon in the Penobscot and other large rivers to the GOM DPS, the 
demographic security is somewhat increased because populations that are 
geographically widespread are less likely to experience spatially-
correlated catastrophes. However, the number of naturally-reared, 
spawning adults within the GOM DPS is extremely low and the majority of 
returning adults (whether naturally-reared or smolt-stocked) are found 
in the Penobscot River, despite the addition of other large rivers to 
the range of the DPS. In 2007, only 16 adults returned to the Kennebec 
and 20 returned to the Androscoggin.
    The GOM DPS is sustained by a carefully managed hatchery 
supplementation program. Hatchery supplementation is crucial to the 
continued existence of the GOM DPS, though we recognize that reliance 
on artificial propagation carries risks that cannot be completely 
avoided despite managers' best efforts. We have carefully examined both 
the positive and negative effects of hatchery supplementation, 
including the risk of disruptions to hatchery operations (e.g., due to 
disease outbreak) or the genetic risks (such as inbreeding and 
domestication selection). Although hatchery supplementation of the GOM 
DPS is currently important in maintaining genetic diversity levels, 
these programs have not been successful at recovering or maintaining 
wild, self-sustaining populations of Atlantic salmon.
    Further, at the present time, there is no evidence to suggest that 
marine survival will increase in the near future. In short, without 
both conservation hatcheries continuing to operate and an increase in 
marine survival, the risk of extinction is high.
    As described above, the demographic effects of the currently low 
marine survival on the GOM DPS are severe, dams limit the viability of 
salmon populations through numerous and sometimes synergistic ways 
(e.g., blocking up and downstream passage, entrainment, water quality 
effects, fish community effects), and the existing regulatory 
mechanisms for dams are inadequate. As a result, we find that low 
marine survival, dams, and the inadequacy of existing regulatory 
mechanisms for dams are each significant factors in this listing 
determination.
    We find that threats from reduced habitat complexity, reduced 
habitat connectivity, and reduced water quantity and degraded water 
quality within Factor A; overutilization within Factor B; disease and 
predation within

[[Page 29383]]

Factor C; inadequacy of existing regulatory mechanisms for water 
withdrawals and water quality within Factor D; and aquaculture, 
depleted diadromous fish communities, and competition within Factor E 
all act as stressors on the GOM DPS. Collectively, these are 
significant factors in this listing determination, contributing to the 
poor status of the GOM DPS. At this time, we do not have enough 
information to determine whether climate change (within Factor E) is a 
threat to the long-term persistence of the GOM DPS.
    We have considered all the above factors, efforts to protect the 
species, and the status of the species. We have concluded that the GOM 
DPS of Atlantic salmon is in danger of extinction. Therefore, we are 
listing it as endangered.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include recovery actions, requirements for 
Federal agencies to avoid jeopardizing the continued existence of the 
species, and prohibitions against taking the species, as defined in the 
ESA. Recognition through listing may improve public awareness and 
encourage conservation actions by Federal, state, and local agencies, 
private organizations, and individuals. The ESA provides for possible 
land acquisition and cooperation with the States and provides for 
recovery actions to be carried out for listed species. The requirement 
of Federal agencies to avoid jeopardy and the prohibitions against take 
are discussed below.
    Section 7(a) of the ESA, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the ESA are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer informally with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is subsequently 
listed, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with us under the provisions of 
section 7(a)(2) of the ESA.
    Several Federal agencies are expected to have involvement under 
section 7 of the ESA regarding the Atlantic salmon. The Environmental 
Protection Agency may be required to consult on its permitting 
oversight authority for the CWA and Clear Air Act. The ACOE may be 
required to consult on permits it issues under section 404 of the CWA 
and section 10 of the Rivers and Harbors Act. The FERC may be required 
to consult on licenses it issues for hydroelectric dams under the FPA. 
The Federal Highway Administration may be required to consult on 
transportation projects it authorizes, funds, or carries out.
    ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply 
to all species listed as endangered. Those prohibitions, in part, make 
it illegal for any person subject to the jurisdiction of the United 
States to take, import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any wildlife species listed as endangered, except 
as provided in sections 6(g)(2) and 10 of the ESA. It is also illegal 
under ESA section 9 to possess, sell, deliver, carry, transport, or 
ship any such wildlife that has been taken illegally. Section 11 of the 
ESA provides for civil and criminal penalties for violation of section 
9 or of regulations issued under the ESA.
    The ESA provides for the issuance of permits to authorize 
incidental take during the conduct of activities that may result in the 
take of threatened or endangered wildlife under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.22, 17.23, and 
17.32. Such permits are available for scientific purposes, to enhance 
the propagation or survival of the species, and for incidental take in 
the course of otherwise lawful activities provided that certain 
criteria are met.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
likely constitute a violation of section 9 of the ESA. The intent of 
this policy is to increase public awareness of the effects of the 
listing on proposed and ongoing activities within a species' range.
    The Services believe that, based on the best available information, 
the following actions are unlikely to result in a violation of section 
9:
    (1) Any incidental take of GOM DPS Atlantic salmon resulting from 
an otherwise lawful activity conducted in accordance with the 
conditions of an incidental take permit issued by one of the Services 
under section 10 of the ESA. Examples of such actions may include 
operation of dams and fishways, State sport fish stocking programs, 
State recreational fishing programs for other species, silviculture, 
agriculture, State programs regulating water quality, and State 
programs regulating water withdrawals and instream flow;
    (2) Any action authorized, funded, or carried out by a Federal 
agency that is likely to adversely affect the GOM DPS of Atlantic 
salmon, when the action is conducted in accordance with the terms and 
conditions of an incidental take statement issued by either of the 
Services under section 7 of the ESA. Examples of such actions may 
include dam construction and operation, road construction, discharge of 
fill material, siting and operation of aquaculture facilities, and 
stream channelization or diversion; and
    (3) Any action carried out for scientific purposes or to enhance 
the propagation or survival of the species that is conducted in 
accordance with the conditions of a permit issued by one of the 
Services under section 10 of the ESA. Examples of such actions may 
include the river-specific hatchery conservation program at CBNFH and 
GLNFH, habitat restoration activities, and scientific monitoring 
programs.
    Activities that could lead to violation of section 9 prohibitions 
against ``take'' of the GOM DPS of anadromous Atlantic salmon include, 
but are not limited to, the following:
    (1) Unauthorized killing, collecting, handling, or harassing of 
individual GOM DPS Atlantic salmon. Examples of such actions may 
include targeted recreational or commercial fishing for GOM DPS salmon, 
and non-targeted recreational or commercial fishing for other species 
(bycatch),
    (2) Siting or operation of an aquaculture facility without adopting 
and implementing fish health practices that adequately protect against 
the introduction and spread of disease or the destruction of habitat;
    (3) Unauthorized destruction or alteration of spawning, rearing, or 
migration habitat. Examples of such activities may include erecting or 
operating structures that block migration routes (such as dams, 
culverts, or other barriers); instream dredging, rock removal, 
operation of heavy equipment, or channelization; riparian and in-river 
damage due to livestock; discharge of fill material; or manipulation of 
river flow;

[[Page 29384]]

    (4) Discharge or dumping of toxic chemicals, silt, or other 
pollutants (e.g., fertilizers, pesticides, heavy metals, oil, organic 
wastes) into the aquatic environment of the GOM DPS.
    Other activities not identified here will be reviewed on a case-by-
case basis to determine if violation of section 9 of the ESA may be 
likely to result from such activities. When there are questions about 
the effect of an action on the GOM DPS, the Services are available to 
provide technical assistance. We do not consider these lists to be 
exhaustive, and we provide them as general information to the public.

Critical Habitat

    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' This section grants the Secretary of the Interior or of 
Commerce discretion to exclude an area from critical habitat if the 
Secretary determines ``the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat.'' The 
Secretary may not exclude areas if exclusion ``will result in the 
extinction of the species.'' In addition, the Secretary may not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan under Section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such a plan provides a benefit to 
the species for which critical habitat is proposed for designation (see 
section 318(a)(3) of the National Defense Authorization Act, Pub. L. 
108-136).
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area occupied by the 
species, at the time it is listed * * *, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed * * 
*, upon a determination by the Secretary that such areas are essential 
for the conservation of the species.''
    Once critical habitat is designated, Section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is in addition to the other principal section 7 requirement 
that Federal agencies ensure their actions do not jeopardize the 
continued existence of listed species.
    The Secretary of Commerce is designating critical habitat in a 
separate rulemaking.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review, establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Pub. L. 106-554), is intended to enhance the quality and 
credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. We obtained independent peer 
review of the scientific information compiled in the 2006 Status Review 
(Fay et al., 2006) that supports this proposal to list the GOM DPS of 
Atlantic salmon as endangered.
    On July 1, 1994, the Services published a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. During the public comment period for the proposed rule 
to list the GOM DPS of Atlantic salmon as endangered, the Services 
solicited the expert opinions of four qualified specialists. These 
independent specialists represented expertise from the academic and 
scientific community. Out of the four reviewers solicited, two 
individuals completed a critical review of the proposed rule. Peer 
review comments are summarized and addressed in the public comment 
section of this rule, and the text of the final rule has been changed 
where necessary.

References

    A complete list of the references used in this final rule is 
available upon request (see ADDRESSES).

Classification

National Environmental Policy Act

    ESA listing decisions are exempt from the requirement to prepare an 
environmental assessment (EA) or environmental impact statement (EIS) 
under the National Environmental Policy Act of 1969 (NEPA) (NOAA 
Administrative Order 216-6.03(e)(1); Pacific Legal Foundation v. 
Andrus, 675 F. 2d 825 (6th Cir. 1981)). Thus, we have determined that 
the final listing determination for the GOM DPS of Atlantic salmon 
described in this notice is exempt from the requirements of NEPA.

Information Quality Act

    The Information Quality Act directed the Office of Management and 
Budget to issue government wide guidelines that ``provide policy and 
procedural guidance to Federal agencies for ensuring and maximizing the 
quality, objectivity, utility, and integrity of information (including 
statistical information) disseminated by Federal agencies.'' Compliance 
of this document with NOAA guidelines is evaluated below.
    Utility: The information disseminated is intended to describe the 
species' life history, population status, threats, and risks; 
management actions; and the effects of management actions. The 
information is intended to be useful to state and Federal agencies, 
non-governmental organizations, industry groups and other interested 
parties so they can understand the listing status of the species.
    Integrity: No confidential data were used in the analysis of the 
impacts associated with this document. All scientific data considered 
in this document and used to analyze the proposed action, is considered 
public information.
    Objectivity: The NOAA Information Quality Guidelines require 
disseminated information to be presented in an accurate, clear, 
complete, and unbiased manner. This document was prepared with these 
objectives in mind. It was also reviewed by agency biologists, policy 
analysts, and managers and NOAA and Department of Commerce attorneys.

Administrative Procedure Act

    The Federal Administrative Procedure Act (APA) establishes 
procedural requirements applicable to informal rulemaking by Federal 
agencies. The purpose of the APA is to ensure public access to the 
Federal rulemaking process and to give the public notice and an 
opportunity to comment before the agency promulgates new regulations. 
These public notice and comment procedures have been completed in this 
rulemaking.

[[Page 29385]]

Coastal Zone Management Act

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect any land or water 
use or natural resource of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. NMFS has determined that this action is consistent to the 
maximum extent practicable with the enforceable policies of approved 
Coastal Zone Management Programs of Maine. A letter documenting NMFS' 
determination and a copy of the proposed rule was sent to the coastal 
zone management program office in Maine. The specific state contact and 
a copy of the letter is available upon request. A copy of the final 
rule will be sent to the coastal zone management program office in 
Maine.

Executive Order (E.O.) 13132 Federalism

    E.O. 13132, otherwise known as the Federalism E.O., was signed by 
President Clinton on August 4, 1999, and published in the Federal 
Register on August 10, 1999 (64 FR 43255). This E.O. is intended to 
guide Federal agencies in the formulation and implementation of 
``policies that have Federal implications.'' Such policies are 
regulations, legislative comments or proposed legislation, and other 
policy statements or actions that have substantial direct effects on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. E.O. 13132 requires Federal agencies to 
have a process to ensure meaningful and timely input by state and local 
officials in the development of regulatory policies that have 
federalism implications. A Federal summary impact statement is also 
required for rules that have federalism implications.
    Pursuant to E.O. 13132, the Assistant Secretary for Legislative and 
Intergovernmental Affairs provided notice of the action at the proposed 
rulemaking stage and requested comments from the appropriate 
official(s) in Maine. Comments were received from Senators Snowe and 
Collins, Congressman Michaud, and from the State of Maine. Among other 
concerns, they stated that a threatened listing determination could be 
justified under the ESA and advocated that the Services suspend a 
decision on the Androscoggin until further genetic data could be 
gathered and analyzed. These comments were considered by the Services 
in preparing this final rulemaking action and are addressed in the 
Response to Public Comments section above. A Federal summary impact 
statement has been prepared and sent to the appropriate State 
officials.

Environmental Justice

    Executive Order 12898 requires that Federal actions address 
environmental justice in decision-making process. In particular, the 
environmental effects of the actions should not have a disproportionate 
effect on minority and low-income communities. The final listing 
determination is not expected to have a disproportionately high effect 
on minority populations and low-income populations in Maine because the 
implications of this listing action do not adversely affect the human 
health of low-income, minority, or other populations or the environment 
in which these various populations live.

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 shall not be considered when assessing the status 
of a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this rule is exempt from review under E.O. 12866. This 
rule does not contain a collection-of-information requirement for the 
purposes of the Paperwork Reduction Act.

E.O. 13175--Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13175 requires that, if we issue a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, we consult with those governments or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This rule does not 
impose substantial direct compliance costs on the communities of Indian 
tribal governments. Accordingly, the requirements of section 3(b) of 
E.O. 13175 do not apply to this final rule. Nonetheless, we met with 
tribal governments potentially affected by this listing decision and to 
solicit their input on the proposed rule. We have given careful 
consideration to all written and oral comments received and will 
continue our coordination and discussions with interested tribes as we 
move forward specifically with implementing this final rule as well as 
salmon recovery and management in general.

List of Subjects

50 CFR Part 17

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

50 CFR Part 224

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

    Dated: June 11, 2009.
Samuel D. Rauch III,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    Dated: May 12, 2009.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.


0
For the reasons set out in the preamble, 50 CFR parts 17 and 224 are 
amended as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. In Sec.  17.11(h) revise the entry for ``Salmon, Atlantic'', which 
is in alphabetical order under FISHES, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

    (h) * * *
* * * * *

[[Page 29386]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------   Historic  range        Vertebrate population where      Status     When    Critical   Special
           Common name                Scientific name                              endangered or threatened                  listed    habitat    rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Salmon, Atlantic, Gulf of Maine..  Salmo salar.........  U.S.A., Canada,      U.S.A., ME, Gulf of Maine Distinct         E  ........        NA        NA
                                                          Greenland, western   Population Segment. The GOM DPS
                                                          Europe.              includes all anadromous Atlantic
                                                                               salmon whose freshwater range
                                                                               occurs in the watersheds from the
                                                                               Androscoggin River northward
                                                                               along the Maine coast to the
                                                                               Dennys River, and wherever these
                                                                               fish occur in the estuarine and
                                                                               marine environment. The following
                                                                               impassable falls delimit the
                                                                               upstream extent of the freshwater
                                                                               range: Rumford Falls in the town
                                                                               of Rumford on the Androscoggin
                                                                               River; Snow Falls in the town of
                                                                               West Paris on the Little
                                                                               Androscoggin River; Grand Falls
                                                                               in Township 3 Range 4 BKP WKR, on
                                                                               the Dead River in the Kennebec
                                                                               Basin; the un-named falls
                                                                               (impounded by Indian Pond Dam)
                                                                               immediately above the Kennebec
                                                                               River Gorge in the town of Indian
                                                                               Stream Township on the Kennebec
                                                                               River; Big Niagara Falls on
                                                                               Nesowadnehunk Stream in Township
                                                                               3 Range 10 WELS in the Penobscot
                                                                               Basin; Grand Pitch on Webster
                                                                               Brook in Trout Brook Township in
                                                                               the Penobscot Basin; and Grand
                                                                               Falls on the Passadumkeag River
                                                                               in Grand Falls Township in the
                                                                               Penobscot Basin. The marine range
                                                                               of the GOM DPS extends from the
                                                                               Gulf of Maine, throughout the
                                                                               Northwest Atlantic Ocean, to the
                                                                               coast of Greenland. Included are
                                                                               all associated conservation
                                                                               hatchery populations used to
                                                                               supplement these natural
                                                                               populations; currently, such
                                                                               conservation hatchery populations
                                                                               are maintained at Green Lake
                                                                               National Fish Hatchery (GLNFH)
                                                                               and Craig Brook National Fish
                                                                               Hatchery (CBNFH). Excluded are
                                                                               landlocked salmon and those
                                                                               salmon raised in commercial
                                                                               hatcheries for aquaculture.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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, by revising the entry for 
``Atlantic salmon'' in the table in Sec.  224.101(a) to read as 
follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) Marine and anadromous fish. * * *

[[Page 29387]]



----------------------------------------------------------------------------------------------------------------
                  Species \1\                                                Citation(s) for    Citation(s) for
------------------------------------------------        Where listed             listing        critical habitat
         Common name            Scientific name                              determination(s)    designation(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Gulf of Maine Atlantic salmon  Salmo salar.....  U.S.A., ME, Gulf of Maine  65 FR 69469;                      NA
                                                  Distinct Population        November 17,
                                                  Segment. The GOM DPS       2000; 74 FR
                                                  includes all anadromous    [Insert page
                                                  Atlantic salmon whose      number where the
                                                  freshwater range occurs    document
                                                  in the watersheds from     begins]; June
                                                  the Androscoggin River     19, 2009.
                                                  northward along the
                                                  Maine coast to the
                                                  Dennys River, and
                                                  wherever these fish
                                                  occur in the estuarine
                                                  and marine environment.
                                                  The following impassable
                                                  falls delimit the
                                                  upstream extent of the
                                                  freshwater range:
                                                  Rumford Falls in the
                                                  town of Rumford on the
                                                  Androscoggin River; Snow
                                                  Falls in the town of
                                                  West Paris on the Little
                                                  Androscoggin River;
                                                  Grand Falls in Township
                                                  3 Range 4 BKP WKR, on
                                                  the Dead River in the
                                                  Kennebec Basin; the un-
                                                  named falls (impounded
                                                  by Indian Pond Dam)
                                                  immediately above the
                                                  Kennebec River Gorge in
                                                  the town of Indian
                                                  Stream Township on the
                                                  Kennebec River; Big
                                                  Niagara Falls on
                                                  Nesowadnehunk Stream in
                                                  Township 3 Range 10 WELS
                                                  in the Penobscot Basin;
                                                  Grand Pitch on Webster
                                                  Brook in Trout Brook
                                                  Township in the
                                                  Penobscot Basin; and
                                                  Grand Falls on the
                                                  Passadumkeag River in
                                                  Grand Falls Township in
                                                  the Penobscot Basin. The
                                                  marine range of the GOM
                                                  DPS extends from the
                                                  Gulf of Maine,
                                                  throughout the Northwest
                                                  Atlantic Ocean, to the
                                                  coast of Greenland.
                                                  Included are all
                                                  associated conservation
                                                  hatchery populations
                                                  used to supplement these
                                                  natural populations;
                                                  currently, such
                                                  conservation hatchery
                                                  populations are
                                                  maintained at Green Lake
                                                  National Fish Hatchery
                                                  (GLNFH) and Craig Brook
                                                  National Fish Hatchery
                                                  (CBNFH). Excluded are
                                                  landlocked salmon and
                                                  those salmon raised in
                                                  commercial hatcheries
                                                  for aquaculture.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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).

* * * * *
[FR Doc. E9-14269 Filed 6-18-09; 8:45 am]
BILLING CODE 3510-22-P