[Federal Register Volume 84, Number 77 (Monday, April 22, 2019)]
[Proposed Rules]
[Pages 16632-16636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07995]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 190130032-9324-01]
RIN 0648-XG758
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List Summer-Run Steelhead in Northern California as Threatened or
Endangered Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: 90-day petition finding, request for information, and
initiation of status review.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, announce a 90-day finding on a petition to list
Northern California (NC) summer-run steelhead (Oncorhynchus mykiss) as
an Endangered distinct population segment (DPS) under the Endangered
Species Act (ESA). We find that the petition presents substantial
scientific information indicating the petitioned action may be
warranted. We will conduct a status review of NC summer-run steelhead
to determine if the petitioned action is warranted. To ensure that the
status review is comprehensive, we are soliciting scientific and
commercial information pertaining to this species from any interested
party.
DATES: Scientific and commercial information pertinent to the
petitioned action must be received by June 21, 2019.
ADDRESSES: You may submit comments on this document, identified by
``Northern California summer-run steelhead Petition (NOAA-NMFS-2019-
0003),'' by either of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0003, click the ``Comment Now'' icon,
complete the required fields, and enter or attach your comments.
Mail or hand-delivery: Protected Resources Division, West
Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR
97232. Attn: Gary Rule.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments
[[Page 16633]]
received are a part of the public record and will generally be posted
for public viewing on http://www.regulations.gov without change. All
personal identifying information (e.g., name, address, etc.),
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. We
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous).
Electronic copies of the petition and other materials are available
on the NMFS West Coast Region website at
www.westcoast.fisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Gary Rule, NMFS West Coast Region, at
[email protected], (503) 230-5424; or Heather Austin, NMFS Office of
Protected Resources, at [email protected], (301) 427-8422.
SUPPLEMENTARY INFORMATION:
Background
On November 15, 2018, the Secretary of Commerce received a petition
from the Friends of the Eel River (hereafter, the Petitioner) to list
NC summer-run steelhead as an endangered DPS under the ESA. Currently,
NC summer-run steelhead are part of the NC steelhead DPS that combines
winter-run and summer-run steelhead and is listed as threatened under
the ESA (71 FR 833; January 5, 2006). The Petitioner is requesting that
NC summer-run steelhead be considered as a separate DPS and listed as
endangered. Copies of the petition are available as described above
(see FOR FURTHER INFORMATION CONTACT).
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 positive 90-day 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 DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'')
policy clarifies the Services' interpretation of the phrase ``distinct
population segment'' for the purposes of listing, delisting, and
reclassifying a species under the ESA (DPS Policy; 61 FR 4722; February
7, 1996). A species, subspecies, or DPS 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 ESA section 4(a)(1) factors: The
present or threatened destruction, modification, or curtailment of the
species' habitat or range; overutilization for commercial,
recreational, scientific, or educational purposes; disease or
predation; the inadequacy of existing regulatory mechanisms; or other
natural or manmade factors affecting the species' continued existence
(16 U.S.C. 1533(a)(1)(A)-(E), 50 CFR 424.11(c)(1)-(5)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50
CFR 424.14(h)(1)(i)) define ``substantial scientific or commercial
information'' in the context of reviewing a petition to list, delist,
or reclassify a species as ``credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted.'' Conclusions
drawn in the petition without the support of credible scientific or
commercial information will not be considered ``substantial
information.'' In reaching the initial 90-day finding on the petition,
we consider the information described in sections 50 CFR 424.14(c),
(d), and (g) (if applicable).
Our determination as to whether the petition provides substantial
scientific or commercial information indicating that the petitioned
action may be warranted depends in part on the degree to which the
petition includes the following types of information: (1) Information
on current population status and trends and estimates of current
population sizes and distributions, both in captivity and the wild, if
available; (2) identification of the factors under section 4(a)(1) of
the ESA that may affect the species and where these factors are acting
upon the species; (3) whether and to what extent any or all of the
factors alone or in combination identified in section 4(a)(1) of the
ESA may cause the species to be an endangered species or threatened
species (i.e., the species is currently in danger of extinction or is
likely to become so within the foreseeable future), and, if so, how
high in magnitude and how imminent the threats to the species and its
habitat are; (4) information on the adequacy of regulatory protections
and effectiveness of conservation activities by States as well as other
parties, that have been initiated or that are ongoing, that may protect
the species or its habitat; and (5) a complete, balanced representation
of the relevant facts, including information that may contradict claims
in the petition. See 50 CFR 424.14(d).
If the petitioner provides supplemental information before the
initial finding is made and states that it is part of the petition, the
new information, along with the previously submitted information, is
treated as a new petition that supersedes the original petition, and
the statutory timeframes will begin when such supplemental information
is received. See 50 CFR 424.14(g).
We also consider information readily available at the time the
determination is made. We are not required to consider any supporting
materials cited by the petitioner if the petitioner does not provide
electronic or hard copies, to the extent permitted by U.S. copyright
law, or appropriate excerpts or quotations from those materials (e.g.,
publications, maps, reports, and letters from authorities). See 50 CFR
424.14(h)(1)(ii).
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
[[Page 16634]]
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--such as a final listing
determination, 90-day not-substantial finding, or 12-month not-
warranted finding--a petitioned action will generally not be considered
to present substantial scientific and commercial information indicating
that the action may be warranted unless the petition provides new
information or analyses not previously considered.
At the 90-day finding stage, 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 petitioner's
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 conducting an impartial
scientific review would conclude it supports the petitioner's
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 conducting an impartial scientific review 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. First, we evaluate
whether the information presented in the petition, in light of 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 such that listing, delisting, or
reclassification may be warranted; this may be indicated in information
expressly discussing the species' status and 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) of the ESA.
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.
Northern California Steelhead
Following completion of a comprehensive status review of West Coast
steelhead (O. mykiss) populations in Washington, Oregon, Idaho, and
California, NMFS published a proposed rule to list 10 Evolutionarily
Significant Units (ESUs) as threatened or endangered under the ESA on
August 9, 1996 (61 FR 41541). One of these steelhead ESUs, the NC ESU,
was proposed for listing as a threatened species. Because of scientific
disagreements, NMFS deferred its final listing determination for five
of these steelhead ESUs, including the NC ESU, on August 18, 1997 (62
FR 43937). After soliciting and reviewing additional information to
resolve these disagreements, NMFS published a final determination on
March 19, 1998 (63 FR 13347), that the NC ESU did not warrant listing
under the ESA because available scientific information and conservation
measures indicated the ESU was at a lower risk of extinction than at
the time of the proposed rule. Because the State of California did not
implement conservation measures that NMFS considered critically
important in its decision to not list the NC steelhead ESU, NMFS
completed an updated status review for the ESU and reassessed the State
and Federal conservation measures that were in place to protect the
ESU. Based on this reconsideration, NMFS proposed to list the NC
steelhead ESU as a threatened species under the ESA on February 11,
2000 (65 FR 6960). After considering public comments on the proposed
determination, NMFS issued a final rule to list the NC ESU of steelhead
as a threatened species on June 7, 2000 (65 FR 36074). Within the NC
ESU, only naturally spawned anadromous populations of steelhead (and
their progeny) residing below naturally occurring and man-made
impassable barriers (e.g., impassable waterfalls and dams) were listed.
A court ruling in 2001 (Alsea Valley Alliance v. Evans, 161 F.
Supp. 2d 1154 (D. Or. 2001)) determined that listing only a subset of a
species or ESU/DPS, such as the anadromous portion of O. mykiss, was
not allowed under the ESA. Because of this court ruling, NMFS conducted
updated status reviews for all West Coast steelhead ESUs that took into
account those non-anadromous populations below dams and other major
migration barriers that were considered to be part of the steelhead
ESUs (Good et al. 2005). Subsequently, NMFS used the joint USFWS-NMFS
DPS Policy to delineate steelhead-only DPSs rather than ESUs that
included both steelhead and the related non-anadromous forms. Using
this DPS Policy, NMFS redefined the NC steelhead ESU as a steelhead-
only DPS and reaffirmed that the NC steelhead DPS was a threatened
species under the ESA (71 FR 834; January 5, 2006). The DPS includes
both summer-run and winter-run steelhead. Since 2006, NMFS has
conducted two status reviews (76 FR 50447; August 15, 2011 and 81 FR
33468; May 26, 2016) to evaluate whether the listing classification of
NC steelhead remains accurate or should be changed. In both instances,
after reviewing the best available scientific and commercial data, we
concluded that no change in ESA-listing status for NC steelhead was
warranted.
Section 4(d) of the ESA directs NMFS to issue regulations deemed
necessary and advisable to conserve species listed as threatened. Under
section 4(d), NMFS may prohibit ``take,'' which would include any act
that kills or injures fish, and could include habitat modification.
NMFS originally promulgated 4(d) protective regulations for NC
steelhead in 2002 (67 FR 1116) and then subsequently modified those
regulations in 2005 (70 FR 37160).
[[Page 16635]]
The ESA requires NMFS to designate critical habitat for any species
it lists under the ESA. Critical habitat is defined 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 . . . that . . . are
essential for the conservation of the species. 16 U.S.C. 1532(5)(A)(i)-
(ii). NMFS designated critical habitat for NC steelhead DPS in 2005 (70
FR 52488).
Evaluation of Petition and Information Readily Available in NMFS Files
The petition contains information and arguments in support of
listing NC summer-run steelhead as an endangered DPS under the ESA.
Based on biological, genetic, and ecological information compiled and
reviewed as part of previous NC steelhead status reviews (Busby et al.
1996; NMFS 1997; Adams 2000), we included all summer-run and winter-run
steelhead populations in river basins from Redwood Creek in Humboldt
County, California, south to the Gualala River, inclusive, in the NC
steelhead DPS (65 FR 36074; June 7, 2000). Busby et al. (1996) found
that the few genetic analyses that had considered this issue indicated
that summer-run and winter-run steelhead from the same river basin are
more genetically similar to each other than to the same run type in
another river basin. In our 1997 status review update (NMFS 1997), we
examined additional genetic data and reconfirmed that summer-run and
winter-run steelhead from the same geographic area typically are more
genetically similar to one another compared to populations with similar
run timing in different geographic areas.
The Petitioner presents new genetic evidence to suggest the summer-
run steelhead populations may qualify as a separate DPS from the
winter-run populations. The Petitioner contends the findings from
recently published articles on the evolutionary basis of premature
migration in Pacific salmon (Prince et al. 2017; Thompson et al. 2018)
indicate that summer-run steelhead in the NC steelhead DPS should be
considered a separate DPS. Prince et al. (2017) reported on a survey of
genetic variation between mature- and premature-migrating populations
of steelhead and Chinook salmon from California, Oregon, and
Washington. Thompson et al. (2018) provide additional information about
genetic differentiation between mature- and premature-migrating Chinook
salmon in the Rogue River, Oregon. The authors of these studies suggest
that their results indicate that premature migration (e.g., summer-run
steelhead) arose from a single evolutionary event within the species
and, if lost, are not likely to re-evolve in time frames relevant to
conservation planning. The Petitioner also asserts that Moyle et al.
(2017) provides arguments in support of delineating NC summer-run
steelhead as a DPS. Moyle et al. (2017) maintains that winter-run and
summer-run are genetically discrete and separate units of migrating
populations. Moyle et al. (2017) further asserts that NC summer-run
steelhead are distinctive in their genetic makeup, behavior, and
reproductive biology and require different conservation frameworks than
winter-run steelhead. Therefore, the Petitioner contends that the new
genetic information indicates that summer-run steelhead in the NC
steelhead DPS satisfy the criteria for a species to be considered a DPS
because it is: (1) Discrete in relation to the remainder of the species
to which it belongs; and (2) significant to the species to which it
belongs.
The Petitioner asserts that all five ESA section 4(a)(1) factors
contribute to the need to list the NC summer-run steelhead as an
endangered DPS. In support of this assertion, the Petitioner presents
information from three sources: (1) The 2016 5-Year Review: Summary &
Evaluation of California Coastal Chinook Salmon and Northern California
Steelhead (NMFS 2016b); (2) the Coastal Multispecies Recovery Plan
(CMP) (NMFS 2016a); and (3) State of Salmonids: Status of California's
Emblematic Fishes (Moyle et al. 2017). Our status review and recovery
plan describe the current status and threats facing the NC steelhead
DPS. Moyle et al. (2017) presents additional scientific and technical
information about the status of the NC summer-run steelhead
populations.
Petition Finding
After reviewing the information contained in the petition, as well
as information readily available in our files, we conclude the petition
presents substantial scientific information indicating that the
petitioned action to delineate a NC summer-run steelhead DPS may be
warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA
and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will
commence a status review to determine whether the summer-run
populations of steelhead constitute a DPS, and, if so, whether the NC
summer-run steelhead DPS is in danger of extinction throughout all or a
significant portion of its range, or likely to become so within the
foreseeable future throughout all or a significant portion of its
range. After the conclusion of the status review, we will make a
finding as to whether listing the NC summer-run steelhead DPS as
endangered or threatened is warranted as required by section 4(b)(3)(B)
of the ESA.
Information Solicited
To ensure that our status review is informed by the best available
scientific and commercial information, we are opening a 60-day public
comment period to solicit information on summer- and winter-run
steelhead in the NC steelhead DPS. We request information from the
public, concerned governmental agencies, Native American tribes, the
scientific community, agricultural and forestry groups, conservation
groups, fishing groups, industry, or any other interested parties
concerning the current and/or historical status of summer- and winter-
run steelhead in the NC steelhead DPS. Specifically, we request
information regarding: (1) Species abundance; (2) species productivity;
(3) species distribution or population spatial structure; (4) patterns
of phenotypic, genotypic, and life history diversity; (5) habitat
conditions and associated limiting factors and threats; (6) ongoing or
planned efforts to protect and restore the species and their habitats;
(7) information on the adequacy of existing regulatory mechanisms,
whether protections are being implemented, and whether they are proving
effective in conserving the species; (8) data concerning the status and
trends of identified limiting factors or threats; (9) information on
targeted harvest (commercial and recreational) and bycatch of the
species; (10) other new information, data, or corrections including,
but not limited to, taxonomic or nomenclatural changes; and (11)
information concerning the impacts of environmental variability and
climate change on survival, recruitment, distribution, and/or
extinction risk.
We request that all information be accompanied by: (1) Supporting
documentation such as maps, bibliographic references, or reprints of
pertinent publications; and (2) the submitter's name, address, and any
association, institution, or business that the person represents.
[[Page 16636]]
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 page 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: April 17, 2019.
Patricia A. Montanio,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 2019-07995 Filed 4-19-19; 8:45 am]
BILLING CODE 3510-22-P