[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Proposed Rules]
[Pages 54548-54553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21745]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2012-0072: 4500030113]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Eagle Lake Rainbow Trout as an Endangered or 
Threatened Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day 
finding on a petition to list the Eagle Lake rainbow trout 
(Oncorhynchus mykiss aquilarum) as an endangered or threatened species 
under the Endangered Species Act of 1973, as amended (Act). Based on 
our review, we find that the petition presents substantial scientific 
or commercial information indicating that listing the Eagle Lake 
rainbow trout may be warranted. Therefore, with the publication of this 
notice, we are initiating a review of the status of the subspecies to 
determine if listing the Eagle Lake rainbow trout is warranted. To 
ensure that this status review is comprehensive, we are requesting 
scientific and commercial data and other information regarding this 
subspecies. Based on the status review, we will issue a 12-month 
finding on the petition, which will address whether the petitioned 
action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES: We request that we receive information on or before November 5, 
2012. The deadline for submitting an electronic comment using the 
Federal eRulemaking Portal (see ADDRESSES section, below) is 11:59 p.m. 
Eastern Time on this date. After November 5, 2012, you must submit 
information directly to the Division of Policy and Directives 
Management (see ADDRESSES section below). Please note that we might not 
be able to address or incorporate information that we receive after the 
above requested date.

ADDRESSES: You may submit information by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R8-ES-
2012-0072, which is the docket number for this action. Then click on 
the Search button. You may submit a comment by clicking on ``Comment 
Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2012-0072; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept email or faxes. We will post all information we 
receive on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Request for 
Information section, below, for more details).

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, 
Sacramento Fish and Wildlife Office, telephone at 916-414-6600; or 
facsimile at 916-414-6712. If you use a telecommunications device for 
the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on Eagle 
Lake rainbow trout from governmental agencies, Native American tribes, 
the scientific community, industry, and any other interested parties. 
We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (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; and
    (e) Other natural or manmade factors affecting its continued 
existence.
    If, after the status review, we determine that listing the Eagle 
Lake rainbow trout is warranted, we will propose critical habitat (see 
definition in section 3(5)(A) of the Act) under section 4 of the Act, 
to the maximum extent prudent and determinable at the time we propose 
to list the species. Therefore, we also request data and information 
on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (2) Where these features are currently found;
    (3) Whether any of these features may require special management 
considerations or protection;
    (4) Specific areas outside the geographical area occupied by the 
species that are ``essential for the conservation of the species''; and
    (5) What, if any, critical habitat you think we should propose for 
designation if the species is proposed for listing, and why such 
habitat meets the requirements of section 4 of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in ADDRESSES. If you submit information via 
http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the Web site. If 
your submission is made via a hardcopy that includes personal 
identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public

[[Page 54549]]

review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment during normal business hours at 
the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition, and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly conduct a species status review, which we subsequently 
summarize in our 12-month finding.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will announce our 
determination as to whether a petitioned action is warranted after we 
have completed a thorough status review of the species, which is 
conducted following a substantial 90-day finding. Because the Act's 
standards for a 90-day finding and the status review conducted for a 
12-month finding on a petition are different, as described above, a 
substantial 90-day finding does not mean that our status review and 
resulting determination will result in a warranted finding.

Petition History and Previous Federal Actions

    On April 28, 1994, we received a petition, dated April 25, 1994, 
from Mr. John F. Bosta of Susanville, California, requesting that the 
Eagle Lake rainbow trout be listed as an endangered or threatened 
species, with critical habitat, under the Act. On August 7, 1995, we 
published our 90-day finding in the Federal Register (60 FR 40149) that 
the petition did not present substantial scientific or commercial 
information to indicate the petitioned action may be warranted. We 
based the finding on the lack of supporting information included with 
the petition, and on the existence of significant conservation efforts 
then underway.
    On August 15, 2003, we received a new petition, dated August 14, 
2003, again from Mr. John Bosta of Amargosa Valley, Nevada, requesting 
that the Eagle Lake rainbow trout be listed as an endangered or 
threatened species under the Act. The petition clearly identified 
itself as such and included the requisite identification information 
for the petitioner, as required by 50 CFR 424.14(a). On October 6, 
2003, we received a similar petition from Mr. Chuck Sanford, of Loomis, 
California, dated September 23, 2003. As explained in our 1996 Petition 
Management Guidance (Service 1996, p. 5), subsequent petitions are 
treated separately only when they are greater in scope or broaden the 
area of review of the first petition. Mr. Sanford's petition repeated 
the same information provided earlier in Mr. Bosta's August 14, 2003, 
petition and will, therefore, be treated as a comment on the first 
petition we received.
    In a February 24, 2004, letter to Mr. Bosta, we responded that we 
reviewed the information presented in the petition and determined that 
issuing an emergency regulation temporarily listing the species under 
section 4(b)(7) of the Act was not warranted. We also stated that, due 
to court orders and judicially approved settlement agreements for other 
listing and critical habitat determinations under the Act, which 
required nearly all of our listing and critical habitat funding, we 
would not be able to further address the petition at that time but 
would complete the action when workload and funding allowed. Delays in 
responding to the petition continued due to the high priority of 
responding to court orders and settlement agreements. In response to 
litigation brought on behalf of petitioned and candidate species, we 
reached two settlement agreements on May 10, 2011, and July 12, 2011, 
that establish a 6-year work schedule for reaching final listing 
determinations for all petitioned and candidate species (http://www.fws.gov/endangered/improving_ESA/listing_workplan.html). The 
agreements were approved by the Federal District Court of the District 
of Columbia on September 9, 2011 (WildEarth Guardians v. Salazar, Nos. 
10-377). This notice constitutes our 90-day finding on the August 14, 
2003, petition to list the Eagle Lake rainbow trout and is in keeping 
with the Multi-District Litigation (MDL) 6-year work schedule as 
ordered by the Court.
    In our development of this finding, we attempted to contact both 
petitioners regarding the information they presented and to obtain 
documents cited in their petitions. The petitioners did not respond to 
our requests, or we were unable to contact them due to the timeframe 
between receiving the petitions and our ability to review them, and 
thus, we were unable to confirm or clarify the intent of some of the 
petitions' claims or issues raised or to specifically review the 
information. As a result, we have used information available at the 
time of the petition in our files to assist in our review of the 
petitions.

Species Information

    The Eagle Lake rainbow trout is a recognized subspecies of rainbow 
trout (Oncorhynchus mykiss) that is native only to Eagle Lake in Lassen 
County, California (Snyder 1918; Busack et al. 1980, pp. 418-424; Moyle 
et al. 1995, p. 85; Moyle 2002, pp. 274-275). Eagle Lake, the second 
largest natural lake located entirely within California, is located 
approximately 15 miles (mi) (24 kilometers (km)) north of Susanville, 
and supports a popular recreational fishery (Moyle et al. 1995, pp. 85-
87). The Eagle Lake rainbow trout can grow to approximately 24 inches 
(in) (60 centimeters (cm)) and weigh up to 10 pounds (lbs) (4.6 
kilograms (kg)) and can tolerate high alkaline conditions (up to pH 
9.6), which is more than any other rainbow trout (Platts and Jensen 
1991, pp. 2-3; Moyle et al. 1995, p. 86; Moyle 2002, p. 277). Eagle 
Lake rainbow trout is distinguished by having 58 chromosomes, instead 
of the 60 chromosomes of most rainbow trout (Busack et al. 1980, p. 
421). The subspecies is unusually late maturing (3 years) and can be 
long-lived (up to 11 years) (Moyle 2002, p. 278), although Eagle Lake 
rainbow trout older than 5 years are rare (McAfee 1966, p. 223).
    The Eagle Lake rainbow trout's alkalinity tolerance helps it to 
survive the unusual conditions of Eagle Lake. Because the lake has no 
natural outlet,

[[Page 54550]]

it is highly alkaline, with pH levels ranging from 8.4 to 9.6 (Platts 
and Jensen 1991, pp. 2-3; Moyle 2002, p. 277). With the exception of 
the Lahontan cutthroat trout (Oncorhynchus clarki henshawi), the Eagle 
Lake rainbow trout is the only trout that can tolerate pH levels above 
about 8.4. Similarly, the longer lifespan of this fish likely is an 
adaptation to the dry climate in which Eagle Lake is located, which 
makes natural spawning impossible during some years due to lack of 
water in the main spawning areas of Pine Creek (the primary tributary 
to Eagle Lake) and Bogard Springs Creek (an upper tributary to Pine 
Creek). Pine Creek has a total length of approximately 40 miles (Young 
1989, p. 1). Pine Creek flows into the northwestern portion of the lake 
and currently has perennial flow for only the first 5 to 10 mi (8 to 16 
km) of the 30- to 40-mi (48- to 64-km) creek (Platts and Jensen 1991, 
p. 4). The rest of the creek is intermittent, flowing in most years 
from March through about mid-June (Young 1989, p. 1).
    Historically, Eagle Lake rainbow trout spawned primarily in the 
headwaters of Pine Creek (Moyle et al. 1995, p. 86). After spending 1 
to 2 years in the headwaters of Pine Creek, juveniles made their way 
downstream to the lake, where they lived the rest of their lives except 
for spawning trips in the spring (Moyle et al. 1995, p. 86). Some 
spawning activity has also been observed along gravelly shores of Eagle 
Lake, but it is unknown if spawning has been successful or if it has 
contributed to recruitment to the population (Moyle et al. 1995, p. 
86). A riverine population also may have remained in perennial portions 
of Pine Creek, rather than migrating to the Lake (Platts and Jensen 
1991, pp. 19, 22).
    Prior to 1917, population levels of Eagle Lake rainbow trout within 
the lake were high enough to support a commercial fishery, but 
harvesting of the fish was extremely high, leading to concerns the fish 
would be driven to extinction (Snyder 1917, p. 78; Moyle et al. 1995 p. 
87). In 1917, the State of California banned commercial trout fishing 
in Eagle Lake, but the population of the Eagle Lake rainbow trout 
remained low (Moyle et al. 1995, p. 87). According to researchers, the 
probable reasons for the continued low population numbers included 
drought, water diversions, logging, heavy grazing, barriers to upstream 
and downstream movement, introduced predatory brook trout (Salvelinus 
fontinalis) in the headwaters of Pine Creek, and road and railroad 
construction across Pine Creek that restricted the creek's flow and 
channelized the streambed (Platts and Jensen 1991, p. 1; Moyle et al. 
1995, p. 87). Water from Eagle Lake was being diverted through the Bly 
Tunnel to agricultural operations south of Susanville between 1923 to 
1935; however, this diversion has been plugged and is no longer in use 
(Platts and Jensen 1991, p. 2).
    Since 1950, reproduction in the Eagle Lake rainbow trout population 
has depended largely on a hatchery program run by the California 
Department of Fish and Game (CDFG) (Platts and Jensen 1991, pp. 20-22; 
Moyle et al. 1995, p. 88). Fish are captured to collect their eggs and 
milt in order to produce offspring to release in Eagle Lake, and in 
more recent times, hatchery-produced trout have been released 
throughout the western United States and Canada for sport fishery 
purposes (Moyle et al. 1995, p. 87; Behnke 2002, p. 103; Moyle 2002, p. 
275). In the late-1940s into the mid-1950s, collection traps on Pine 
Creek as well as additional artificial barriers at the mouths of other 
creeks were constructed (Platts and Jensen 1991, p. 21; Moyle et al. 
1995, p. 87). These barriers were installed as part of an effort to 
protect the fish from being stranded in the creeks by insufficient 
flows and to assist in the collection of fish for the hatchery program.
    Between 1959 and 1994, Eagle Lake rainbow trout were known to pass 
above the weir at Pine Creek during years of high water flow. The 
structure at Pine Creek was rebuilt in 1995 to address erosion problems 
and to prevent upstream migration because some individuals were being 
stranded, resulting in their death during years of low water levels. 
Construction modifications on the weir in 1995, and installation of an 
Alaskan style fish weir at the site in 2002, have made it highly 
unlikely that fish attempting to move upstream have been able to pass 
the weir to reach the headwaters of the creek to spawn, even in high 
flow years.
    The CDFG traps fish as they enter Pine Creek from Eagle Lake. The 
fish are then collected and artificially spawned to produce 2 to 3 
million eggs, which are shipped to Crystal Lake and Darrah Springs 
State Fish Hatcheries (Platts and Jensen 1991, pp. 20-23; Moyle et al. 
1995, p. 87). Some of the collected eggs are sent to other State 
hatcheries for stocking in waters across the country (Moyle et al. 
1995, p. 87). Eggs from fish collected at the mouth of Pine Creek are 
hatched, and the hatchery-spawned trout are returned and released into 
Eagle Lake (Moyle et al. 1995, pp. 87, 88). Approximately 90,000 half-
pound fish produced at the hatcheries are released into Eagle Lake each 
fall near Pine Creek, while another 90,000 half-pound fish are released 
at the south end of the Lake annually. Another 1,000 young fish are 
also stocked in the Pine Creek headwaters, with the hope that they will 
prey on and outcompete the smaller nonnative brook trout that spawn 
there. Portions of each release group are freeze-marked to allow mark-
recapture estimates of the population in the Lake.
    In 1987, a Coordinated Resource Management Planning (CRMP) group 
met to identify goals and implement a course of action for habitat and 
ecosystem restoration for Pine Creek. The initial goals for restoring 
Pine Creek included: (1) Improve streambank stability; (2) improve 
vegetation cover in watershed; (3) raise the streambed and watertable 
in the drainage and spread out peak flows of Pine Creek; (4) restore 
the natural Eagle Lake rainbow trout fishery in Pine Creek; (5) improve 
wildlife habitat along Pine Creek; (6) reduce nutrient and sediment 
loading into Eagle Lake from Pine Creek; (7) maintain grazing and 
timber management; and (8) meet goals in a coordinated effort with all 
affected parties (Platts and Jensen 1991, p. 1). The CRMP group 
includes membership by the U.S. Forest Service (USFS), the University 
of California Cooperative Extension for Lassen County, the CDFG, and 
local landowners and interested parties. The Service has been 
occasionally involved in the planning efforts of the CRMP group since 
1995. Numerous restoration efforts have been implemented since 1987 or 
are planned for the Pine Creek watershed.

Evaluation of Information for This Finding

    Section 4 of the Act and its implementing regulations at 50 CFR 424 
set forth the procedures for adding a species to, or removing a species 
from, the Federal Lists of Endangered and Threatened Wildlife and 
Plants. A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1) of the Act:
    (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.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the

[[Page 54551]]

factor to determine whether the species responds to the factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor, but no response, or only a positive response, that factor is 
not a threat. If there is exposure and the species responds negatively, 
the factor may be a threat and we then attempt to determine how 
significant a threat it is. If the threat is significant, it may drive 
or contribute to the risk of extinction of the species such that the 
species may warrant listing as an endangered or threatened species as 
those terms are defined by the Act. This does not necessarily require 
empirical proof of a threat. The combination of exposure and some 
corroborating evidence of how the species is likely impacted could 
suffice. The mere identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that listing may 
be warranted. The information shall contain evidence sufficient to 
suggest that these factors may be operative threats that act on the 
species to the point that the species may meet the definition of 
endangered or threatened under the Act.
    In making this 90-day finding, we evaluated whether information 
regarding the threats to the Eagle Lake rainbow trout, as presented in 
the petition and other information available in our files at the time 
the petition was received, is substantial, thereby indicating that the 
petitioned action may be warranted. Our evaluation of this information 
is presented below.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    Information Provided in the Petition: The petition asserts that 
past habitat modification, coupled with uncompleted habitat restoration 
projects, and the establishment of a barrier (weir) on Pine Creek for 
fish collection and hatchery purposes has eliminated natural spawning 
for the Eagle Lake rainbow trout and that the CRMP group established to 
coordinate habitat improvement efforts has not met in over 2 years 
(prior to 2003) and should be considered a failure.
    Evaluation of Information Provided in the Petition and Available in 
Service Files: Under the guidance of the CRMP group, numerous habitat 
improvement projects for Pine Creek were completed or were nearing 
completion at the time the petition was received. The restoration 
efforts that had been implemented by 2003 within the Pine Creek 
watershed by the CRMP group included but were not limited to actions 
such as stream fencing, old channel restoration, and removal of 
upstream barriers (Highway 44 and the Burlington Northern Railroad 
crossing) (Platts and Jensen 1991, pp. 1-2; Moyle 2002, p. 282). In 
addition, the grazing regimes along Pine Creek were modified and 
channel restoration projects were completed to encourage increased 
flows over longer time periods and to improve stream bank conditions. 
However, access to Pine Creek and its spawning grounds by Eagle Lake 
rainbow trout have been for the most part blocked since the late 1950's 
by a barrier (weir). The barrier was initially established to assist 
spawning as a result of low population numbers and to prevent fish from 
becoming stranded in Pine Creek during low flow periods. Even though 
some experts have stated that the trapping and collection of fish at 
the barrier most likely prevented the species from becoming extinct, 
the petitioners expressed concern with the hatchery program because 
fish in the early life-history stages are gradually being selected for 
survival in a hatchery environment, rather than in the wild (Moyle et 
al. 1995, p. 88), and this may increase the difficulty of 
reestablishing a naturally spawning population (Moyle 2002, p. 282). 
Fortunately, the present management strategy for Eagle Lake rainbow 
trout by the CDFG is to reestablish a self-sustaining wild population, 
but this has not yet occurred and hatchery operations are regarded as 
being an ongoing necessity in maintaining the trophy fishery for Eagle 
Lake (Platts and Jensen 1991, pp. 19-25; Moyle et al. 1995, p. 88).
    Factor A Summary: Available information in our files (Platts and 
Jensen 1991; Moyle et al. 1995; Moyle 2002) indicates that the CRMP 
group had been and continues to make appreciable progress in addressing 
past habitat alterations and detrimental land use practices including 
the restoration of Pine Creek habitat and streamflows and development 
of plans for fish passage within Pine Creek. However, the presence of 
the weir on Pine Creek was preventing fish passage and access to 
spawning grounds and therefore, has most likely prevented and continues 
to prevent any natural spawning from occurring. As a result, we find 
that the present or threatened destruction, modification, or 
curtailment of the species' habitat or range may be a threat. We will 
further investigate the threatened destruction, modification, or 
curtailment of the species' habitat or range in our status review for 
this subspecies.

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

    The information provided in the petition and in our files does not 
indicate that any impact from overutilization is occurring to Eagle 
Lake rainbow trout. Commercial fishing for the fish was stopped in 1917 
(Snyder 1917, p. 78). However, we will further investigate 
overutilization for commercial, recreational, scientific, or 
educational purposes in our status review for this subspecies.

C. Disease or Predation

    Information Provided in the Petition: The petition states that 
Eagle Lake rainbow trout were subject to outbreaks of ``strawberry 
disease'' in 2000 and 2003. Strawberry disease is a skin disorder of 
unknown origin that occurs in rainbow trout and is identified by bright 
red lesions on the skin. The petition attributes these outbreaks to 
stress, and describes symptoms such as weight loss and a tube-like 
appearance. The petition cites the following items in support: (1) An 
article from the Washington Department of Fish and Wildlife; (2) two 
CDFG fish pathologist reports from 2000, one of which positively 
identifies the disease on a single fish; and (3) low-resolution 
photocopies of pictures of Eagle Lake rainbow trout with the disease.
    Evaluation of Information Provided in the Petition and Available in 
Service Files: Strawberry disease is a skin disease that occurs 
sporadically in rainbow trout (Oncorhynchus sp.) and is a subchronic, 
nondebilitating, and nonfatal disease that has been recognized since 
the late 1950s (Olsen et al. 1985, p. 104). The disease goes into 
remission when water conditions improve, and untreated fish usually 
recover in 8 weeks (Olson et al. 1985, p. 105). We were unable to 
obtain a copy of the undated Washington Department of Fish and Wildlife 
article by Oman, and as a result, could not review the document for 
this finding. We are not aware of, and the petition did not provide any 
additional information regarding, the impacts associated with disease 
to the Eagle Lake rainbow trout or the extent to which disease may 
affect the subspecies.
    The petition did not provide any information regarding predation. 
However, information in our files does include information on potential 
predation by introduced trout species. As stated in the Species 
Information section, a permanent population of Eagle Lake rainbow trout 
occupy upper

[[Page 54552]]

Pine Creek in small numbers and may spawn (Platts and Jensen 1991, pp. 
19, 22). Pine Creek, like other streams and lakes in California, was 
stocked indiscriminately with nonnative trout in the 1940s and 1950s. 
On Pine Creek, brook trout (Salvelinus fontinalis) and other rainbow 
trout of unknown origin were stocked heavily until about 1950. 
Cutthroat trout may have also been planted in the 1940s. However, since 
the early 1950s, it appears that only Eagle Lake rainbow trout have 
been stocked in Pine Creek. Surveys in 1989 found brook trout to be 
dominant in the upper Pine Creek watershed including the Bogard Springs 
reach, Pine Valley, and Stephens Meadow. The dense brook trout 
populations most likely have had a negative effect on Eagle Lake 
rainbow trout populations in Pine Creek by keeping them unnaturally low 
(through predation of young or competition for resources) and may be 
preventing significant reestablishment (Platts and Jensen 1991, p. 24; 
Moyle et al. 1995, p. 88).
    Summary of Factor C: The information provided in the petition and 
in our files does indicate that strawberry disease may affect 
individual Eagle Lake rainbow trout, but the extent and degree of the 
impacts are most likely small, short term, and isolated in nature. 
Predation in the main spawning habitat of Pine Creek from introduced 
brook trout most likely is occurring and may be having a negative 
effect on the stream population by keeping numbers artificially low. As 
a result, we find that predation by introduced brook trout may be a 
threat. We will further investigate disease or predation in our status 
review for this subspecies.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition does not discuss or provide any information on how an 
inadequacy of existing regulatory mechanisms under Factor D may 
threaten the Eagle Lake rainbow trout, and we do not have any 
information in our files suggesting that existing regulatory mechanisms 
are inadequate. However, we will further investigate whether the 
existing regulatory mechanisms are inadequate in our status review for 
the subspecies.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition lists two potential threats relevant to Factor E: (1) 
Mortality of Eagle Lake rainbow trout in 2000 during CDFG trout-
stocking activities; and (2) hatchery practices that have reduced Eagle 
Lake rainbow trout's survival in the wild and affected their genetics 
through gene pool alteration and species contamination.
    Issue 1; Information Provided in the Petition: The petition claims 
that in November 2000, approximately 2,000 Eagle Lake rainbow trout 
were accidentally killed by CDFG when they were put into water that was 
too cold when they were stocked into Eagle Lake.
    Evaluation of Information in the Petition and Available in Service 
Files: At the time of the petition we were not aware of any fish kills 
due to stocking activities. However, the information provided in the 
petition does not indicate that the loss of approximately 2,000 Eagle 
Lake rainbow trout due to stocking operations may be a factor that 
threatens the status of the subspecies. As stated earlier in the 
Species Information section, approximately 180,000 trout are stocked 
annually in Eagle Lake. The loss of 2,000 fish during a single event 
would not significantly affect the population of Eagle Lake rainbow 
trout as a whole. However, we will further investigate whether the loss 
of fish from stocking operations is a significant loss in our status 
review for the subspecies.
    Issue 2; Information Provided in the Petition: The petition states 
that hatchery rearing is breeding out the ``wildness'' in the Eagle 
Lake rainbow trout and causing them to be less aggressive during 
spawning or be able to make the 40-mi (64-km) trip to the spawning 
grounds on Pine Creek. No information is provided specifically to 
support this claim, although other information provided relevant to the 
additional genetics arguments discussed below may have been intended 
for consideration with this argument as well. The petition argues that 
hatchery rearing has genetically altered the ``Eagle Lake trout'' into 
the Eagle Lake rainbow trout, and that these changes have altered the 
fish's ability to live in the higher alkaline water of the lake. The 
petition also states that these changes, brought about or abetted by 
stocking of ``domestic'' Eagle Lake rainbow trout from the Mount Shasta 
hatchery, have changed the native ``March through May'' spawning cycle 
to June through August. The petition cites a series of papers 
indicating that hatchery-rearing affects the long-term viability of the 
subspecies by genetic selection, alterations, and lowering their 
survival in the wild (Muir and Howard 1999, pp. 13853-13856; Marchetti 
and Nevitt 2003, pp. 9-14). The petition also cites an article by Robb 
Leary and Fred Allendorf, and another by M. Walker, but the journal 
titles and publication dates were not provided. As a result, we were 
unable to review the information. However, we did find a similarly 
titled article by Robb Leary, which may have been a prepublication 
version (see further discussion below).
    Evaluation of Information in the Petition and Available in Service 
Files: Eagle Lake rainbow trout was originally called Eagle Lake trout 
(Snyder 1917, p. 77). Although the petition implies taxonomic changes 
have occurred regarding the subspecies because of hatchery operations 
and mixing with other rainbow trout, the name revision merely reflects 
a name change and not genetic manipulation or behavioral differences. 
However, Moyle et al. (1995) did cite concerns that the hatchery 
program may be resulting in fish that are gradually being selected for 
survival in the early life-history stages in a hatchery environment, 
rather than in the wild. They further state that the dependence on 
hatcheries for maintaining the Eagle Lake rainbow trout is undesirable 
because the survival of the species becomes dependent on the vagaries 
of hatchery funding and management and may be exposed to threats from 
disease and genetic disorders (Moyle et al. 1995, p. 88).
    Moyle et al. (1995, p. 86) does support the petition's assertion 
that stocking procedures at one time involved placement of 25,000 
``wild'' and 150,000 ``domestic'' fish in the lake, and also notes that 
the ``domestic'' fish came from broodstock maintained at the Mount 
Shasta Hatchery. However, they do not suggest the domestic fish 
differed in any appreciable way, and they go on to explain that the 
``domestic'' fish were marked so as to prevent their use in spawning, 
even if trapped at Pine Creek (Moyle et al. 1995, p. 86). The CDFG no 
longer stocks fish taken from broodstock maintained at the Mount Shasta 
Hatchery but only uses reproductively mature Eagle Lake rainbow trout 
that move into Pine Creek from Eagle Lake in order to spawn. The paper 
by Marchetti and Nevitt (2003) cited by the petition does not provide 
strong support for the petition's implied assertion that hatchery 
rearing may be altering the brain structure of Eagle Lake rainbow trout 
individuals. The hatchery-raised trout in the study were descended from 
a long line (50 to 90 years) of solely hatchery-reared broodstock 
(Marchetti and Nevitt 2003, p. 10). Serious genetic changes capable of 
altering brain development are much more likely under such conditions 
due to the unintentional selection of traits promoting survival under 
hatchery conditions (Marchetti and Nevitt 2003, p. 11). In contrast, 
trout stocked in Eagle Lake come from eggs collected in the

[[Page 54553]]

wild. While it is possible that at least some of the developmental 
brain differences noted by Marchetti and Nevitt (2003) result from 
environmental factors in the hatchery rather than from genetic 
differences, the petition presents no evidence to support that idea, 
nor to demonstrate how it might apply to Eagle Lake rainbow trout. 
Eagle Lake rainbow trout seem to have retained their basic biological 
traits and their migratory life history, as evidenced by their annual 
attempt to spawn in Pine Creek.
    Muir and Howard (1999, entire) used modeling based on the Japanese 
medaka (Oryzias latipes), which were transgenic, meaning they had had 
portions of their genome deliberately spliced with genes from another 
species (genetically modified). Transgenic fish and their impacts are 
not relevant to the situation of the Eagle Lake rainbow trout.
    Because the petition did not include reference information for the 
Leary and Allendorf paper, it is difficult for us to assess its 
content. We did find a study by Leary that we believe may be the paper 
referenced by the petition (Leary 1996); however, it does not appear to 
provide strong support for the petition's conclusions. While the study 
did find differences between hatchery and naturally spawning stocks, 
the author also emphasized that the differences were of ``little or no 
biological significance'' (Leary 1996, pp. 11-13).
    Summary of Factor E: We agree that a potential genotype and 
phenotypic shift in an ongoing hatchery system due to changed selection 
pressures can be an issue of concern for wild fish populations. 
Therefore, we find that the hatchery practices may be a threat. We will 
further investigate whether the hatchery operations and any other 
natural or manmade factors have significant effects on Eagle Lake 
rainbow trout in our status review for the subspecies.

Finding

    We have reviewed the petition, literature cited in the petition, 
and information in our files and evaluated that information in relation 
to the information available to us at the time we received the 
petition. After this review and evaluation, we find that the petition 
does present substantial scientific information that listing the Eagle 
Lake rainbow trout may be warranted at this time.
    We evaluated each of the five listing factors individually, and 
because the potential threats to the Eagle Lake rainbow trout may not 
be mutually exclusive, we also evaluated the collective effect of these 
potential threats. The petition focused on three of the five listing 
factors; habitat modification (Factor A), disease (Factor C), and 
``other natural or manmade factors'' (Factor E). Based on information 
we had at the time of the petition, the placement of the weir on Pine 
Creek has all but eliminated access to the spawning grounds, and 
although habitat conditions on Pine Creek had significantly improved 
through implementation of measures by the CRMP group, habitat 
conditions were still a concern and it was uncertain if fish are able 
to traverse the distance between the lake and spawning grounds.
    The petition raised several concerns regarding potential genetic 
threats to the subspecies. Although many of these arguments were either 
unsupported, or supported by incomplete citations to articles that we 
were unable to locate, the information we did have or were able to find 
did raise concerns and supported less dependence on hatchery rearing.
    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we determine that the petition and the information in our files 
presents substantial scientific or commercial information indicating 
that listing the Eagle Lake rainbow trout throughout its range may be 
warranted. This finding is based on information provided under Factors 
A (the present or threatened destruction, modification, or curtailment 
of its habitat or range), C (predation), and E (other natural or 
manmade factors affecting the subspecies' continued existence). 
Although information provided under Factors C (disease), B 
(overutilization for commercial, recreational, scientific, or 
educational purposes), and D (inadequacy of existing regulatory 
mechanisms) do not support the petition's assertions, we will further 
consider information relating to these factors in the status review.
    Because we have found that the petition presents substantial 
information indicating that listing Eagle Lake rainbow trout may be 
warranted, we are initiating a status review to determine whether 
listing Eagle Lake rainbow trout under the Act is warranted. We will 
fully evaluate these potential threats during our status review, 
pursuant to the Act's requirement to review the best available 
scientific information when making our 12-month finding. Accordingly, 
we encourage the public to consider and submit information related to 
these and any other threats that may be operating on the Eagle Lake 
rainbow trout (see ``Request for Information'').

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Sacramento Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff member(s) of the 
Sacramento Fish and Wildlife Office (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 24, 2012.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-21745 Filed 9-4-12; 8:45 am]
BILLING CODE 4310-55-P