[Federal Register Volume 82, Number 137 (Wednesday, July 19, 2017)]
[Notices]
[Pages 33064-33068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15065]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 150902810-7646-01]
RIN 0648-XE167


Listing Endangered or Threatened Species; 90-Day Finding on a 
Petition To List the Winter-Run Puget Sound Chum Salmon in the 
Nisqually River System and Chambers Creek as a Threatened or Endangered 
Evolutionarily Significant Unit Under the Endangered Species Act

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

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, NMFS, announce a 90-Day finding on a petition to list the 
winter-run Puget Sound chum salmon (Oncorhynchus keta) in the Nisqually 
River system and Chambers Creek as a threatened or endangered 
evolutionarily significant unit (ESU) under the Endangered Species Act 
(ESA) and to designate critical habitat concurrently with the listing. 
We find that the petition and information in our files do not present 
substantial scientific or commercial information indicating that the 
winter-run chum salmon from the Nisqually River system and Chambers 
Creek qualify as an ESU under the ESA. As such, we find that the 
petition does not present substantial scientific or commercial 
information indicating that the winter-run chum salmon in the Nisqually 
River system and Chambers Creek are a ``species'' eligible for listing 
under the ESA.

ADDRESSES: Electronic copies of the petition and other materials are 
available on the NMFS West Coast Region Web site at 
www.westcoast.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Gary Rule, NMFS West Coast Region, at 
[email protected], (503) 230-5424; or Maggie Miller, NMFS Office of 
Protected Resources, at [email protected], (301) 427-8457.

SUPPLEMENTARY INFORMATION:

Background

    On June 29, 2015, we received a petition from Mr. Sam Wright 
(Olympia, Washington) to list the winter-run Puget Sound chum salmon 
(Oncorhynchus keta) in the Nisqually River system and Chambers Creek as 
a threatened or endangered ESU under the ESA and to

[[Page 33065]]

designate critical habitat concurrently with the listing. The 
petitioner asserts that (1) the designation of these two winter-run 
chum salmon populations as an ESU is justified because these 
populations are the only known winter-run chum salmon populations in 
the world, (2) a diverging trend in abundance between the Chambers 
Creek population and the fall-run chum salmon populations in southern 
Puget Sound renders the Nisqually River population as the only viable 
winter-run population and justifies an ESA listing of the petitioner's 
proposed ESU as threatened or endangered, and (3) NMFS's ``Status 
Review of Chum Salmon from Washington, Oregon, and California (NOAA 
Technical Memorandum NMFS-NWFSC-32)'' (Johnson et al. 1997) did not 
address ``global warming'' or ``climate change.'' Copies of the 
petition are available upon request (see ADDRESSES).

ESA Statutory, Regulatory, Policy Provisions, and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). To identify the proper taxonomic unit for 
consideration in a salmon listing determination, we apply our Policy on 
Applying the Definition of Species under the ESA to Pacific Salmon (ESU 
Policy) (56 FR 58612; November 20, 1991). Under this policy, 
populations of salmon substantially reproductively isolated from other 
conspecific populations and representing an important component in the 
evolutionary legacy of the biological species are considered to be an 
ESU. In our listing determinations for Pacific salmon under the ESA, we 
have treated an ESU as constituting a DPS, and hence a ``species,'' 
under the ESA. A species, subspecies, or ESU is ``endangered'' if it is 
in danger of extinction throughout all or a significant portion of its 
range, and ``threatened'' if it is likely to become endangered within 
the foreseeable future throughout all or a significant portion of its 
range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered based on any one 
or a combination of the following five section 4(a)(1) factors: The 
present or threatened destruction, modification, or curtailment of 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and any other natural or manmade 
factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    At the 90-day finding stage, we evaluate the petitioners' request 
based upon the information in the petition including its references and 
the information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude it supports the petitioners' assertions. In other 
words, conclusive information indicating the species may meet the ESA's 
requirements for listing is not required to make a positive 90-day 
finding. We will not conclude that a lack of specific information alone 
necessitates a negative 90-day finding if a reasonable person would 
conclude that the unknown information itself suggests the species may 
be at risk of extinction presently or within the foreseeable future.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. ESA-implementing 
regulations issued jointly by NMFS and U.S. Fish and Wildlife Service 
(50 CFR 424.14(i)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as 
credible scientific information in support of the petition's claims 
such that a reasonable person conducting an impartial scientific review 
would conclude that the revision proposed in the petition may be 
warranted. Conclusions drawn in the petition without the support of 
credible scientific information will not be considered ``substantial 
information.'' The ``substantial scientific or commercial information'' 
standard must be applied in light of any prior reviews or findings we 
have made on the listing status of the species that is the subject of 
the petition. Where we have already conducted a finding on, or review 
of, the listing status of that species (whether in response to a 
petition or on our own initiative), we will evaluate any petition 
received thereafter seeking to list, delist, or reclassify that species 
to determine whether a reasonable person conducting an impartial 
scientific review would conclude that the action proposed in the 
petition may be warranted despite the previous review or finding. Where 
the prior review resulted in a final agency action, a petitioned action 
generally would not be considered to present substantial scientific and 
commercial information indicating that the action may be warranted 
unless the petition provides new information not previously considered.
    In evaluating the petition, we first evaluate whether the 
information presented in the petition, along with the information 
readily available in our files, indicates that the petitioned entity 
constitutes a ``species'' eligible for listing under the ESA. Next, we 
evaluate whether the information indicates that the species faces an 
extinction risk that is cause for concern; this may be indicated in 
information expressly discussing the species' status and

[[Page 33066]]

trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by 
nongovernmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by such organizations or made under other Federal or 
state statutes may be informative, but such classification alone will 
not alone provide sufficient basis for a positive 90-day finding under 
the ESA. For example, as explained by NatureServe, their assessments of 
a species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/pdf/NatureServeStatusAssessmentsListing-Dec%202008.pdf). 
Additionally, species classifications under IUCN and the ESA are not 
equivalent; data standards, criteria used to evaluate species, and 
treatment of uncertainty are also not necessarily the same. Thus, when 
a petition cites such classifications, we will evaluate the source of 
information that the classification is based upon in light of the 
standards on extinction risk and impacts or threats discussed above.

Previous Reviews of Puget Sound/Strait of Georgia Chum Salmon Under the 
ESA

    On March 14, 1994, NMFS was petitioned by the Professional 
Resources Organization--Salmon (PRO--Salmon) to list Washington's Hood 
Canal, Discovery Bay, and Sequim Bay summer-run chum salmon 
(Oncorhynchus keta) as threatened or endangered species under the ESA 
(PRO--Salmon 1994). A second petition, received April 4, 1994, from the 
``Save Allison Springs'' Citizens Committee (1994), requested listing 
of fall chum salmon found in the following southern Puget Sound streams 
or bays: Allison Springs, McLane Creek, tributaries of McLane Creek 
(Swift Creek and Beatty Creek), Perry Creek, and the southern section 
of Mud Bay/Eld Inlet. A third petition, received by NMFS on May 20, 
1994, was submitted by Trout Unlimited (1994) and requested listing the 
Hood Canal summer chum. As the result of these three petitions, NMFS 
assembled a Biological Review Team (BRT) and initiated an ESA status 
review of all chum salmon populations in Washington, Oregon, and 
California. In December 1997, the status review was published as 
Johnson et al. (1997). In the status review, the BRT identified four 
ESUs--the Puget Sound/Strait of Georgia ESU, Hood Canal summer-run ESU, 
Pacific Coast ESU, and Columbia River ESU. The winter-run chum salmon 
populations in the Nisqually River system and Chambers Creek were 
identified as part of the Puget Sound/Strait of Georgia ESU. Despite 
these populations being one of the more genetically distinct 
populations in Puget Sound, the BRT (1) did not consider those 
differences distinct enough to warrant designating them as a separate 
ESU and (2) determined that these populations, along with the summer-
run Puget Sound populations, reflected patterns of diversity within a 
large and complex ESU. The BRT determined that the Puget Sound/Strait 
of Georgia chum salmon ESU was not presently at risk of extinction nor 
was it likely to become endangered in the foreseeable future throughout 
all or a significant portion of its range. The BRT found that the (1) 
the Puget Sound/Strait of Georgia chum salmon ESU's abundance was at or 
near the historical annual run levels of over one million fish, (2) the 
majority of the populations had stable or increasing population trends, 
and (3) all populations with statistically significant trends were 
increasing. The Pacific Coast chum salmon ESU, with its large 
geographic area and considerable diversity, was also not considered 
warranted for ESA listing. The BRT, however, determined that the Hood 
Canal summer-run chum salmon ESU and Columbia River chum salmon ESU are 
likely to become endangered in the foreseeable future if present 
conditions continue. NMFS listed these ESUs as threatened species under 
the ESA on March 25, 1999 (64 FR 14507).

Analysis of Petition and Information Readily Available in NMFS Files

    As mentioned above, in analyzing the request of the petitioner, we 
first evaluate whether the information presented in the petition, along 
with information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Because the petition specifically requests listing of an ESU, 
we evaluate whether the information indicates that the petitioned 
entities, the winter-run Puget Sound chum salmon in the Nisqually River 
system and Chambers Creek, constitute an ESU pursuant to our ESU 
Policy.
    When identifying an ESU, our ESU Policy (56 FR 58612; November 20, 
1991) stipulates two elements that must be considered: (1) It must be 
substantially reproductively isolated from other nonspecific population 
units, and (2) it must represent an important component in the 
evolutionary legacy of the species. In terms of reproductive isolation, 
the ESU Policy states that reproductive isolation does not have to be 
absolute, but it must be strong enough to permit evolutionarily 
important differences to accrue in different population units. Insights 
into the extent of reproductive isolation can be provided by movements 
of tagged fish, recolonization rates of other populations, measurements 
of genetic differences between population, and evaluations of the 
efficacy of natural barriers. In terms of evolutionary legacy of the 
species, that criterion would be met if the population contributed 
substantially to the ecological/genetic diversity of the species as a 
whole. To make that determination, the following questions are 
relevant: Is the population genetically distinct from other conspecific 
populations (genetic component)? Does the population occupy unusual or 
distinctive habitat (ecological component)? Does the population show 
evidence of unusual or distinctive adaptation to its environment (life-
history component)?
    In evaluating this petition, we looked for information to suggest 
that the

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petitioned entities, the winter-run Puget Sound chum salmon in the 
Nisqually River system and Chambers Creek populations, may qualify as 
an ESU under both the reproductive isolation and evolutionary legacy of 
the species criteria of our ESU Policy. Our evaluation is discussed 
below.

Qualification of the Winter-Run Puget Sound Chum Salmon in the 
Nisqually River System and Chambers Creek as an ESU

    The petitioner asserts that (1) the designation of these two 
winter-run chum salmon populations as an ESU is justified because they 
are the only known winter-run chum salmon populations in the world, (2) 
a diverging trend in abundance between the Chambers Creek population 
and the fall-run chum salmon populations in southern Puget Sound 
renders the Nisqually River population as the only viable winter-run 
population and justifies an ESA listing of the petitioner's proposed 
ESU as threatened or endangered, and (3) Johnson et al. (1997) did not 
address ``global warming'' or ``climate change.'' To make the argument 
for identifying these two populations as an ESU, the petitioner relies 
almost exclusively on information from Johnson et al. (1997). The only 
other information that the petitioner presents is abundance data for 
the Chambers Creek (1968 through 2008) and Nisqually River (1968 
through 2013) winter-run chum salmon populations. To direct our 
decision, we will first analyze the petition's assertion that these two 
winter-run chum salmon populations are a separate ESU; and if we 
determine that to be true, we will then analyze the other two 
assertions described above.
    As stated previously, NMFS received three petitions in 1994 to list 
several populations of chum salmon in Puget Sound. In response to these 
petitions and to address general concerns about the species, NMFS 
assembled a BRT to conduct a status review of chum salmon to identify 
the ESUs and determine their statuses throughout the Pacific Northwest. 
The findings were published as Johnson et al. (1997). Based upon 
genetic, ecological, and life-history components, the BRT was able to 
analyze and group West Coast chum salmon populations into four 
different chum salmon ESUs. For these ESUs, the BRT analyzed the 
following available information.
    For the genetic component, the BRT analyzed the genetic variability 
at 39 polymorphic loci in 153 samples collected from 105 locations in 
southern British Columbia, Washington, and Oregon (Phelps et al. 1994; 
Johnson et al. 1997). Seventy-two of those 105 locations were from 
Puget Sound including the Chambers Creek and Nisqually River winter-run 
populations. From that analysis, the Hood Canal and Strait of Juan de 
Fuca summer-run chum salmon were determined to be genetically distinct 
from the other Puget Sound populations and were described as the Hood 
Canal summer-run ESU. Genetically, the remaining Puget Sound and Hood 
Canal locations were clustered together with the winter-run chum salmon 
as genetic outliers most closely related to the fall-run Hood Canal and 
northern Puget Sound populations. Additional samples and analysis 
(Phelps 1995) resulted in three distinct clusters of samples: (1) 
Summer-run chum salmon of Hood Canal and Strait of Juan de Fuca; (2) 
Puget Sound fall-run and southern Puget Sound winter- and summer-run 
chum salmon; and (3) Strait of Juan de Fuca, coastal Washington, and 
Oregon fall-run chum salmon (Johnson et al. 1997). Recently, Waples 
(2015) analyzed genetic diversity and population structure from 174 
chum salmon individuals at 10 Puget Sound/Strait of Georgia locations--
including one Hood Canal summer-run ESU location (Hamma Hamma River), 
the Nisqually River winter-run location, and eight other Puget Sound/
Strait of Georgia locations. In a FST matrix and 
phylogenetic tree analysis, the Hamma Hamma River location was most 
genetically diverse followed by the Nisqually River winter-run. A 
principle component analysis (PCA) evaluating the genetic relationships 
between the individuals from all 10 locations showed that the Hamma 
Hamma River location was the most genetically distinct with the other 
nine locations clustered together (including the Nisqually River 
winter-run). In response to this current petition, NMFS's Northwest 
Fishery Science Center (NWFSC) examined the available data concerning 
the winter-run chum salmon from the Nisqually River system and Chambers 
Creek. An analysis of these data (J. Hard, Supervisory Research Fishery 
Biologist, NWFSC, email September 2, 2015) confirmed the earlier 
conclusions from Johnson et al. (1997) that ``the winter-run fish 
cluster closely with fall-run fish in Puget Sound and Hood Canal'' and 
that ``there is no clear genetic evidence to support the idea that the 
winter-run chum salmon in Puget Sound are substantially reproductively 
isolated from other chum salmon populations in southern Puget Sound.''
    In examining the ecological component, neither the Nisqually River 
nor Chambers Creek watersheds are isolated geographically or 
reproductively from other chum salmon populations in southern Puget 
Sound; therefore, it does not qualify as an ESU. While there is no need 
to determine whether this cluster represents an important component in 
the evolutionary legacy of the species (2nd criterion of the ESU 
Policy), we include this information in order to be thorough. Both the 
Nisqually River and Chambers Creek watersheds have supported both 
summer- and fall-run chum salmon in the past, along with winter-run 
chum salmon (Johnson et al. 1997), so there is nothing unique 
preventing these watersheds from supporting multiple chum salmon runs. 
No additional ecological information was provided by the petitioner nor 
found in our files.
    For the life history component, Johnson et al. (1997) stated that 
``the distinctiveness of the winter-run populations was not sufficient 
to designate these populations as a separate ESU. Rather, the team 
concluded that these populations, along with the summer-run populations 
in southern Puget Sound, reflect patterns of diversity within a 
relatively large and complex ESU.'' No additional life history 
information was provided by the petitioner nor found in our files; 
therefore, we find the conclusions in Johnson et al. (1997) remain 
valid. We conclude that the winter-run cluster does not represent an 
important component in the evolutionary legacy of the species.
    After reviewing the genetic, ecological, and life history 
components of these two winter-run chum salmon populations, we have 
concluded that these populations are not distinct from the other 
populations within the Puget Sound/Strait of Georgia ESU and do not 
meet our criteria for identification as a separate ESU. Therefore, 
based upon the information from the petitioner and the data found in 
our files, we conclude that these populations are not a separate ESU 
and do not qualify for listing under the ESA.

Other Information Provided by the Petitioner

    The petitioner also provided additional information on abundance 
for the two winter-run chum salmon populations and climate change. 
Since we determined that these two winter-run chum salmon populations 
do not qualify as an ESU, these two items were not analyzed.

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Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, and based on the above 
analysis, we conclude that the petition does not present substantial 
scientific or commercial information indicating that the petitioned 
action of identifying the winter-run Puget Sound chum salmon 
(Oncorhynchus keta) in the Nisqually River system and Chambers Creek as 
an ESU may be warranted. As such, we find that the petition does not 
present substantial scientific or commercial information indicating 
that the winter-run Puget Sound chum salmon in the Nisqually River 
system and Chambers Creek populations are ``species'' eligible for 
listing under the ESA.

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See FOR FURTHER INFORMATION CONTACT) or 
on our Web site at: www.westcoast.fisheries.noaa.gov.

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

    Dated: July 13, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2017-15065 Filed 7-18-17; 8:45 am]
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