[Federal Register Volume 88, Number 28 (Friday, February 10, 2023)]
[Proposed Rules]
[Pages 8774-8785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02849]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 28 / Friday, February 10, 2023 / 
Proposed Rules  

[[Page 8774]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 230206-0036; RTID 0648-XR124]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Olympic Peninsula Steelhead as Threatened or Endangered Under 
the Endangered Species Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), 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 
Olympic Peninsula (OP) steelhead (Oncorhynchus mykiss) as a threatened 
or endangered distinct population segment (DPS) under the Endangered 
Species Act (ESA) and to designate critical habitat concurrently with 
the listing. We find that the petition presents substantial scientific 
and commercial information indicating the listing may be warranted. We 
will conduct a status review of OP steelhead to determine whether 
listing 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 April 11, 2023.

ADDRESSES: You may submit data and information relevant to our review 
of the status of Olympic Peninsula Steelhead, identified by ``Olympic 
Peninsula Steelhead Petition (NOAA-NMFS-2022-0137),'' by either of the 
following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0137 in the Search box. 
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, 7600 Sand Point Way NE, Seattle, WA 98115. Attn: 
Laura Koehn.
    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 received are a part of the 
public record and will generally be posted for public viewing on 
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. NMFS 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 
from the NMFS website at https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act.

FOR FURTHER INFORMATION CONTACT: Laura Koehn, NMFS West Coast Region, 
at [email protected], (206) 300-8127; or John Rippe, NMFS Office of 
Protected Resources, at [email protected], (301) 427-8467.

SUPPLEMENTARY INFORMATION: 

Background

    On August 1, 2022, the Secretary of Commerce received a petition 
from The Conservation Angler and Wild Fish Conservancy (hereafter, the 
Petitioners) to list the OP Steelhead DPS as threatened or endangered 
under the ESA. The Petitioners also request the designation of critical 
habitat concurrent with ESA listing. Copies of the petition are 
available as described above (see ADDRESSES, above).

ESA Statutory, Regulatory, and 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 shall 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)). 
If NMFS finds 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 best available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``positive 90'' 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)). In 1991, NMFS issued the Policy on Applying the 
Definition of Species Under the Endangered Species Act to Pacific 
Salmon (ESU Policy; 56 FR 58612, November 20, 1991). Under this policy, 
Pacific salmon populations are considered a DPS, and hence a 
``species'' under the ESA, if it represents an ``evolutionarily 
significant unit'' (ESU) of the biological species. The two criteria 
for delineating an ESU are: (1) It is substantially reproductively 
isolated from other conspecific populations, and (2) it represents an 
important component in the evolutionary legacy of the species. On 
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS) 
adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 
61 FR 4722). The DPS Policy adopted criteria similar to those in the 
ESU Policy for determining when a group of vertebrates constitutes a 
DPS: the group must be discrete from other populations; and it must be 
significant to its taxon. A group of organisms is discrete if it is

[[Page 8775]]

``markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, and behavioral 
factors.'' Significance is measured with respect to the taxon (species 
or subspecies).
    NMFS used the ESU Policy to define the OP steelhead ESU in 1996 (61 
FR 41541, August 9, 1996). In 2006, NMFS changed its previous practice 
of applying the ESU Policy to delineate species of O. mykiss, however, 
and instead applied the joint DPS Policy (71 FR 834, January 5, 2006). 
NMFS determined that the use of the ESU Policy--originally intended for 
Pacific salmon--should not continue to be extended to O. mykiss, a type 
of salmonid with characteristics not typically exhibited by Pacific 
salmon.
    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: (1) 
the present or threatened destruction, modification, or curtailment of 
the species' habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms to 
address identified threats; (5) or any other natural or manmade factors 
affecting the species' continued existence (16 U.S.C. 1533(a)(1), 50 
CFR 424.11(c)).
    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 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 will depend 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 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 may 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, letters from authorities). See 50 CFR 
424.14(c)(6), 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 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 petition 
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. See 50 CFR 424.14(h)(1)(iii).
    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 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 conducting an impartial scientific 
review would conclude it supports the petitioners' assertions. In other 
words, conclusive information indicating that 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

[[Page 8776]]

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, alone, 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 for 
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 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'' (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). 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.

Distribution, Habitat, and Life History of West Coast O. mykiss

    Steelhead is the name commonly applied to the anadromous form of 
the biological species O. mykiss. The present distribution of steelhead 
extends from Kamchatka in Asia, east to Alaska, and down to the U.S. 
Mexico border (Busby et al., 1996; 67 FR 21586, May 1, 2002). O. mykiss 
exhibit perhaps the most complex suite of life history traits of any 
species of Pacific salmonid. They can be anadromous (``steelhead''), or 
freshwater residents (``rainbow or redband trout''), and under some 
circumstances yield offspring of the opposite life-history form. Those 
that are anadromous can spend up to 7 years in freshwater prior to 
smoltification (the physiological and behavioral changes required for 
the transition to salt water), and then spend up to 3 years in salt 
water prior to first spawning. O. mykiss is also iteroparous (meaning 
individuals may spawn more than once), whereas the Pacific salmon 
species are principally semelparous (meaning individuals generally 
spawn once and die). Within the range of West Coast steelhead, spawning 
migrations occur throughout the year, with seasonal peaks of activity. 
In a given river basin there may be one or more peaks in migration 
activity; since these ``runs'' are usually named for the season in 
which the peak occurs, some rivers may have runs known as winter, 
spring, summer, or fall steelhead.
    Steelhead can be divided into two basic reproductive ecotypes, 
based on the state of sexual maturity at the time of river entry and 
duration of spawning migration (Burgner et al., 1992). The summer or 
``stream-maturing'' type enters fresh water in a sexually immature 
condition between May and October, and requires several months to 
mature and spawn. The winter or ``ocean-maturing'' type enters fresh 
water between November and April with well-developed gonads and spawns 
shortly thereafter. In basins with both summer and winter steelhead 
runs, the summer run generally occurs where habitat is not fully 
utilized by the winter run, or where a temporal hydrologic barrier 
separates them, such as a waterfall. Summer steelhead usually spawn 
farther upstream than winter steelhead (Withler, 1966; Roelofs, 1983; 
Behnke, 1992; Myers et al., 2015).

Olympic Peninsula Steelhead and Previous ESA Status Review

    In 1996, NMFS completed a comprehensive status review of coastal 
and inland steelhead populations in Washington, Oregon, Idaho, and 
California (Busby et al., 1996). As part of this review, NMFS 
identified an OP steelhead ESU which ``occupies river basins of the 
Olympic Peninsula, Washington, west of the Elwha River and south to, 
but not including, the rivers that flow into Grays Harbor on the 
Washington coast.'' The OP steelhead ESU is primarily made up of 
winter-run steelhead but includes several summer-run steelhead 
populations as well (Busby et al., 1996). NMFS also generally included 
the resident O. mykiss in the ESUs described because of the opportunity 
for resident to interbreed with anadromous life history forms.
    NMFS concluded that the OP steelhead ESU was not in danger of 
extinction or likely to become endangered in the foreseeable future 
(Busby et al., 1996). However, NMFS was concerned about the overall 
health of the ESU and specific populations. Although the majority of 
abundance trends for winter-run OP steelhead were upward at the time, 
including for three of the four largest populations, several other 
populations had downward trends and for three populations this decline 
was statistically significant. No data were available for adult summer-
run OP steelhead trends. NMFS also noted concerns that hatchery fish 
were widespread, and interbreeding between natural and hatchery fish 
could reduce the genetic diversity of natural-origin OP steelhead. The 
estimated proportion of hatchery stocks on natural spawning grounds 
ranged from 16 to 44 percent, but this proportion was lowest for the 
two rivers with the largest production of natural-origin steelhead 
(Queets and Quillayute). Finally, NMFS noted that there was a great 
deal of uncertainty about the overall health of the ESU because there 
was little information known about summer steelhead stocks in the 
Olympic Peninsula and the amount of interaction between hatchery and 
natural stocks. Informed by the status review (Busby et al., 1996), 
NMFS concluded that the OP steelhead ESU did not warrant listing under 
the ESA (61 FR 41541, August 9, 1996).
    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.

[[Page 8777]]

mykiss, was not allowed under the ESA. Because of this court ruling, 
NMFS conducted updated status reviews for ESA-listed 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 (71 FR 833, January 5, 2006). OP steelhead were not 
addressed in the 2005 status review (Good et al., 2005) or subsequent 
listings (71 FR 833, January 5, 2006).

Analysis of Petition and Information Readily Available in NMFS Files

    The Petitioners request that NMFS list OP steelhead as a DPS and 
present information about the life history of the anadromous form of O. 
mykiss. We interpret the Petitioner's request as asking that NMFS list 
the anadromous form of O. mykiss within the Olympic Peninsula region as 
a DPS. The petition refers to information from the NMFS 1996 status 
review indicating that OP steelhead are substantially isolated from 
steelhead in other regions of western Washington, and are characterized 
by different habitat, climate, and zoogeography relative to adjacent 
steelhead populations. Based on the information provided and referenced 
in the petition, we conclude there is substantial scientific 
information that OP steelhead may qualify as a DPS pursuant to our DPS 
Policy. The reader is also referred to previously published Federal 
Register notices for further discussion of the delineation of O. mykiss 
DPSs under the joint DPS Policy (70 FR 67131, November 4, 2005; 71 FR 
834, January 5, 2006).
    In the sections that follow, we provide a synopsis of our analysis 
of the information provided in the petition and readily available in 
our files regarding OP steelhead status and trends and whether and to 
what extent factors identified in section 4(a)(1) of the ESA may cause 
OP steelhead to be an endangered or threatened species.

Status and Population Trends

    The Washington Department of Fish and Wildlife (WDFW) and tribal 
co-managers describe the population structure of OP steelhead for their 
Salmonid Stock Inventory (SaSI). The Petitioners note that WDFW (in 
Cram et al., (2018)) describes OP steelhead as consisting of 7 summer-
run and 24 winter-run steelhead populations and the Petitioners present 
information based on this population structure. Most of the information 
the Petitioners present focuses on the four largest winter-run OP 
steelhead populations: Queets, Hoh, Quillayute, and Quinault Rivers, 
but they also present data for summer-run OP steelhead populations in 
these systems and some smaller winter-run OP steelhead populations.
    In support of their claim that OP steelhead are likely to become 
endangered in the foreseeable future, the Petitioners provide 
information on the four demographic descriptors that NMFS uses to 
assess demographic risk in status reviews: abundance, productivity, 
diversity, and spatial structure (McElhany et al., 2000).
    The Petitioners assert that chronic declining trends in abundance 
and recent sharp declines indicate that OP steelhead are at risk of 
extinction more so now than at the time of NMFS's 1996 status review 
(Busby et al., 1996). To support this, the Petitioners summarize 
multiple past stock assessments for various winter-run OP steelhead 
populations conducted by WDFW, NMFS, North Olympic Peninsula Lead 
Entity for Salmon (NOPLE), and the Hatchery Scientific Review Group 
(HSRG). According to Cram et al. (2018), only 20 percent of the 
populations of winter-run OP steelhead have an increasing trend for 
populations where trends could be assessed. The Petitioners note that 
contemporary summer-run OP steelhead abundance information is lacking, 
with the exception of snorkel surveys for some summer-run populations.
    The Petitioners assert that most winter-run OP steelhead 
populations have declined from historical abundance relative to present 
day trends, presenting data from multiple sources. McMillan et al. 
(2022) applied multiple approaches using tribal and sport catch data, 
catch per unit effort, and watershed size (as a proxy for basin 
capacity) to generate multiple estimates of historical abundance (for 
the period 1948-1960). They calculated the mean among these estimates 
to determine historical abundance for Hoh, Quillayute, Queets, and 
Quinault Rivers winter-run steelhead. McMillan et al. (2022) estimated 
a historical abundance of 13,505 winter-run steelhead for Hoh River, 
21,843 for Quillayute River, 16,897 for Quinault River, and 15,191 for 
Queets River. McMillan et al. (2022) also examined cannery records from 
1923 to estimate the abundance of Queets River winter-run steelhead to 
be 32,223 (ranging from 27,829-43,732, assuming a range of exploitation 
rates). The Petitioners assert that current mean annual run sizes 
(averaged from 1978-2020 or 1980-2020) of winter-run OP steelhead 
populations are 4,117 for Hoh, 13,064 for Quillayute, 5,883 for 
Quinault, and 7,648 for Queets.
    The Petitioners also summarize recently reported trends in 
abundance from Cram et al. (2018) and McMillan et al. (2022). 
Specifically, Cram et al. (2018) estimated trends in abundance between 
1978 to 2013 of negative 6 percent for the Quillayute River, negative 
69 percent for the lower Quinault River, positive 24 percent for the 
upper Quinault River, negative 29 percent for the Queets River, and 
negative 16 percent for the Hoh River winter-run steelhead population. 
McMillan et al. (2022) estimated trends for 1980-2017 and found no 
trend for the Quillayute, a 44 percent declining trend for the lower 
and upper Quinault combined, a 45 percent declining trend for the 
Queets, and a 37 percent declining trend for the Hoh River winter-run 
steelhead populations (Table 1). By comparison, the Petitioners 
summarize that NMFS's earlier review (Busby et al., 1996) reported 
percent annual change positive trends of 0.2 percent for the Hoh River, 
positive 0.9 percent for Queets River, positive 1.8 percent for the 
Upper Quinault River, negative 2.6 percent trend for Quinault River/
Lake Quinault, and a negative 0.2 percent trend for Quillayute/
Bogachiel River.
    The Petitioners report larger declines in abundance for winter-run 
OP steelhead comparing older historical estimates (1948-1960) to the 
more recent time frame (since 1978) versus the more recent time frame 
alone. The Petitioners report estimated historical abundance from 
McMillan et al. (2022) for years 1948-1960 based on an ensemble of 
approaches and associated catch data, and compare this to contemporary 
estimates for years 1978-2017 and 2016-2020. The Quillayute River 
winter-run steelhead population had a 38 percent decline from 
historical (1948-1960) to 1978-2017 and 61 percent decline from 
historical to 2016-2020. The Quinault River winter-run steelhead 
populations (lower and upper) declines across the two time ranges were 
63 percent and 80 percent, respectively. Hoh River winter-run steelhead 
declines were 69 and 79 percent, respectively. And the Queets River 
winter-run steelhead population declines were 50 and 69 percent, 
respectively. Declines were greater if using cannery data to estimate 
historical abundance.

[[Page 8778]]



  Table 1--Abundance Trend Estimates Across Different Time Periods for the Four Largest Winter-Run OP Steelhead
                                                   Populations
----------------------------------------------------------------------------------------------------------------
                                                                                                     Abundance
                                                                                     Abundance     trend  1948-
                                                                                   trend  1948-   1960  compared
                                  Abundance  trend  1978- Abundance  trend 1980-   1960 compared   to  2016-2020
      Winter-run population       2013  from Cram et al.    2017 from  McMillan    to 1978-2017     provided by
                                      2018 (percent)       et al. 2022 (percent)   from McMillan        the
                                                                                    et al. 2022     Petitioners
                                                                                     (percent)       (percent)
 
----------------------------------------------------------------------------------------------------------------
Hoh River.......................  -16...................  -37...................             -69             -79
Quillayute River................  -6....................  No trend..............             -38             -61
Queets River....................  -29...................  -45...................             -50             -69
Quinault River..................  -69 (lower)...........  -44...................             -63             -80
                                  +24 (upper)...........
----------------------------------------------------------------------------------------------------------------

    The Petitioners also report information on how often winter-run OP 
steelhead populations have recently met escapement goals to provide 
evidence of population decline. The Petitioners state that escapement 
goals are 2,400 fish for Hoh River, 5,900 for a system-wide goal for 
Quillayute (combining Calawah River, Sol Duc River, Bogachiel and 
Quillayute River proper, and Dickey River), 1,200 fish for upper 
Quinault River (none for lower), and 4,200 or 2,500 fish for Queets 
River (first is set by WDFW, second is used by the tribe). From Cram et 
al. (2018), the Hoh and Queets Rivers only met escapement goals in 50 
percent of years while the Quinault and Quillayute Rivers met goals 100 
percent (for upper, lower Quinault has no escapement goal) and 90 
percent, respectively (for 2004-2013). Updating this for the most 
recent 10 years (2011-2020), the Petitioners state that two of the four 
largest winter-run OP steelhead populations have not met escapement 
goals in half or more of the last 10 years with recent years having low 
escapement (Queets met the escapement goal 30 percent of 10 years and 
Clearwater River met the goal 50 percent). Quillayute River on the 
other hand has met escapement goals in 9 out of 10 most recent years 
and 18 of the past 20 years. The major Quillayute tributaries of the 
Dickey and Calawah Rivers have met escapement goals in each of the past 
10 years, while Bogachiel/Quillayute and Sol Duc Rivers have met 
escapement goals in 60 percent and 70 percent of the last 10 years, 
respectively.
    The Petitioners report abundance trends from Cram et al. (2018), 
which, together with Petitioners' updates to escapement trends, provide 
evidence of declines for smaller winter-run OP steelhead populations 
(populations other than Quinault, Queets, Hoh, and Quillayute Rivers), 
as well (Table 2). The Petitioners also summarize older abundance 
trends for these smaller winter-run OP steelhead populations including 
from NMFS in 1996 that reported a negative 5.8 percent trend for Pysht 
River, negative 7.6 percent for Hoko River, negative 4.4 percent for 
Dickey River, negative 0.1 percent for Sol Duc River, negative 0.5 
percent for Clearwater River, and positive trends of 1.1 percent for 
Calawah River and 13.6 percent for Moclips River winter-run steelhead. 
From Cram et al. (2018), Goodman Creek winter-run had a negative 54 
percent long term abundance trend, Salt Creek/independent tributaries 
had a negative 43 percent trend, negative 27 percent trend for the 
Clallam River, negative 21 percent for Pysht River/Independent 
tributaries, negative 40 percent for Hoko River, negative 22 percent 
for Dickey River, negative 12 percent for Clearwater River, negative 9 
percent for Sol Duc River, and then positive trends of 50 percent and 
27 percent for Calawah and Moclips Rivers, respectively (see Table 7 in 
Cram et al., 2018). The Petitioners also assert that certain smaller 
winter-run OP steelhead populations have rarely met escapement goals in 
the past decade (see Table 3). The Petitioners assert that Goodman 
Creek has only met its escapement once in past decade (up to 2020), 
Salt Creek met its escapement once in last 10 years but the population 
may have stabilized recently, Pysht River met escapement in 70 percent 
of last 10 years, and Hoko River met escapement in 80 percent of last 
10 years (escapement goal of 400 fish). Based on all the above, the 
Petitioners assert that winter-run OP steelhead are in chronic decline 
and that the OP steelhead population is at greater risk of extinction 
now than at the time of NMFS's last review (Busby et al., 1996).

Table 2--Abundance Trend Estimates Across Different Time Periods and for
               Smaller Winter-Run OP Steelhead Populations
------------------------------------------------------------------------
                                             Abundance
                                          trend estimate     Abundance
                                             from NMFS    trend estimate
          Winter-run population           (Busby et al.,     from WDFW
                                              1996--       (Cram et al.,
                                            Appendix E)        2018)
                                             (percent)       (percent)
------------------------------------------------------------------------
Goodman Creek...........................             (*)             -54
Pysht River.............................            -5.8             -21
Salt Creek..............................             (*)             -43
Hoko River..............................            -7.6             -40
Dickey River............................            -4.4             -22
Sol Duc River...........................            -0.1              -9
Clearwater River........................            -0.5             -12

[[Page 8779]]

 
Calawah River...........................             1.1              50
Moclips River...........................            13.6              27
Clallum River...........................             (*)             -27
------------------------------------------------------------------------
* Not provided.

    The Petitioners assert that almost all summer-run OP steelhead 
populations are at critically low levels, while noting that there is no 
formal analysis of summer-run OP steelhead historical catch and no 
monitoring by the co-managers. The Petitioners provide rough estimates 
of peak historical abundance for summer-run OP steelhead based on 
harvest data for the larger systems (Quinault, Hoh, Quillayute, and 
Queets). Abundance of summer-run OP steelhead in these systems ranged 
from 848 to 1,788 adult spawners from the late 1940s/early 1950s to the 
late 1970s. Using snorkel surveys, Brenkman et al. (2012) and McMillan 
(2022) estimated recent numbers of adult summer-run OP steelhead 
returning to spawn each year in several different populations (Calawah 
River system, North Fork Calawah River, South Fork Calawah River, 
Sitkum River, and South Fork Hoh River for Brenkman et al., 2012; 
Bogachiel River, Sol Duc River, South Fork Hoh River, East Fork 
Quinault River, and North Fork Quinault for McMillan, 2022). Mean 
estimates ranged from 3 to 303 individuals. The Calawah River is at the 
upper end of this range, but most of the returning adult summer-run OP 
steelhead are hatchery-origin (89 native-origin, 214 hatchery-origin). 
For the other rivers, the mean proportion of hatchery-origin spawners 
ranged from 3 to 43 percent. McMillan (2006) estimated that the Queets 
River and Clearwater River summer-run OP steelhead abundance is no more 
than 100 fish based on catch data. Based on the above information, 
Petitioners assert that summer-run OP steelhead populations are at 
critically low levels, so much so that summer-run ``could be facing 
extirpation in the near term if some are not already functionally 
extinct.''
    The Petitioners also assert that because historical estimates are 
from a period after habitat changes had already occurred and after the 
onset of fisheries and canneries, declines are likely greater than 
those presented above. Any unreported catch would also affect these 
estimates.
    The review of OP steelhead in Cram et al. (2018) assessed overall 
total population viability risk of OP steelhead populations based on 
four risk metrics (1) long-term abundance trends, (2) short-term 
decline, (3) risk of extinction, (4) failure to meet escapement goals 
(using data up to 2013) (see Table 5 in Cram et al. 2018). Out of 15 OP 
steelhead populations for which there was sufficient information to 
determine risk (out of 31 populations), one population ranked at high 
overall risk, seven at moderate overall risk, and seven at low overall 
risk. Cram et al. (2018) concluded that overall, low productivity and 
declines in abundance, ``did not appear to pose immediate or 
substantial threats to this DPS.'' However, Cram et al. (2018) noted 
substantial data gaps regarding abundance, diversity, and productivity 
for OP steelhead, which limited the risk assessment to 15 of the 31 
populations that were considered.
    The Petitioners also summarize available data on population 
productivity to support claims that productivity is in a long-term 
decline and that, in combination with depleted abundance, OP steelhead 
populations are at risk of extinction in the foreseeable future. The 
Petitioners assert that winter-run OP steelhead populations have 
increasingly failed to replace themselves based on spawner-to-spawner 
recruitment, and highlight that smolt-to-adult return rates are 
negative for at least one population (Cram et al., 2018). The 
Petitioners assert that winter-run steelhead populations in the Hoh and 
Quillayute Rivers have failed to replace themselves in 4 of the past 10 
years, note there is no clear trend in smolt-to-adult winter-run return 
for the Queets River populations, and state that for Quinault River, 
they could not find estimates of productivity (but assume fisheries co-
managers have estimates). The Petitioners also assert that declines in 
productivity could be a result of fishery, hatchery, or habitat effects 
or loss of repeat spawners. Finally, the Petitioners note that there is 
little known about productivity of the summer-run OP steelhead 
populations, as well as the smaller winter-run OP steelhead 
populations.
    The Petitioners also describe the potential loss of life history 
diversity. The Petitioners state that little information is known on 
genetic diversity for natural-origin OP steelhead. The Petitioners 
assert that declining levels of repeat spawning for winter-run OP 
steelhead indicate the potential loss of this life history and that 
this may be one of the factors contributing to declining productivity. 
The Petitioners also note potential future loss of the summer-run OP 
steelhead life form and assert the potential loss of the genetic basis 
for premature migration if these populations are lost. The Petitioners 
also cite recent work from McMillan et al. (2022) that provides 
evidence of compressed run timing in winter-run OP steelhead. McMillan 
et al. (2022) estimated that the number of days between when 25 percent 
and 75 percent of the runs had passed in each system declined by 16, 
26, and 22 days for the Quillayute, Hoh, and Queets Rivers, 
respectively, since historical periods (1948-1960 vs. 1980-2017). The 
Petitioners assert, therefore, that the population's fate is reliant on 
late-returning winter OP steelhead that may not ``keep pace'' with 
environmental factors associated with climate change. Finally, the 
Petitioners speculate on the impacts of this shift in timing as well as 
certain habitat barriers (culverts, roads; no large dams in the system) 
on the spatial structure of OP steelhead.
    In sum, while data presented in the petition and readily available 
in our files on OP steelhead abundance, diversity, and productivity is

[[Page 8780]]

incomplete, a reasonable person would conclude that the information 
presented in the petition indicates that many OP steelhead populations 
likely have declined.

Analysis of ESA Section 4(a)(1) Factors for Olympic Peninsula Steelhead

    The Petitioners assert that all five ESA section 4(a)(1) factors 
contribute to the need to list OP steelhead as threatened or 
endangered, but point to main threats of declining freshwater and 
marine habitat and recreational and commercial fishing pressure. The 
Petitioners also note that a recent WDFW review (Cram et al., 2018) 
listed key threats for OP steelhead as habitat degradation (from 
forestry practices) and potential impacts from hatchery and harvest. 
Each of the five ESA section 4(a)(1) factors is discussed in detail 
below.

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

    For OP steelhead habitat, most of the major river basins occupied 
by OP steelhead originate within the Olympic National Park (ONP) where 
habitat is protected from most detrimental land-use practices such as 
logging, but drainage areas for these river systems extend outside of 
the park and were or are subject to logging and other land-use 
practices. Though the Petitioners note that forest management outside 
of ONP lands has improved, including logging practices on state, 
Federal, and private lands, the Petitioners assert that habitat 
degradation is a threat to OP steelhead due to historical and ongoing 
logging and land-use practices (including road and culvert 
construction). For reference, according to the petition, 57 percent of 
the Hoh River watershed, nearly one-third of the Quillayute River 
basin, 47 percent of the Quinault River basin, and nearly all of the 
course of the Queets River (except the lower 8 miles) occur inside the 
ONP (see petition for breakdown for other rivers or areas). The 
Petitioners summarize that logging has altered stream flows and 
hydrology, road construction has led to erosion and increased 
sedimentation, and culverts have blocked access to various spawning 
grounds and habitat and impacted sedimentation and wood recruitment 
processes. Although efforts are underway to address these issues, it 
may take decades for habitat to recover (Martens et al., 2019) and 
climate change may exacerbate conditions (Wade et al., 2013). The 
Petitioners assert that climate change is and will further degrade 
habitat both inside and outside of the ONP (see section on Other 
Natural or Manmade Factors Affecting Its Continued Existence for 
discussion on climate change).
    Cram et al. (2018) stated that legacy effects of historical land-
use practices, especially past extensive clear-cut logging, continue to 
threaten natural-origin steelhead on the Peninsula. Cram et al. (2018) 
note that although many of the large rivers begin within ONP, lower 
areas are subject to logging outside of the park boundaries. Cram et 
al. (2018) also note that extensive logging coupled with construction 
has led to increased sediment loads and a reduction in large woody 
debris in the Clearwater River basin (which has headwaters outside of 
the ONP). However, improvements have been made in the Hoh River basin, 
where recent land acquisitions (approximately 90 percent of the basin 
is now owned by state and Federal government or conservation 
organizations) and subsequent efforts to restore and protect habitat 
has led to various stages of regeneration across the Hoh River valley 
rainforest (Cram et al., 2018).
    The Petitioners summarize current status of habitat for the Water 
Resource Inventory Areas (WRIAs) that overlap with OP steelhead (areas 
19-21), mainly for areas outside of the ONP. Washington State 
Department of Ecology (WDOE) developed WRIAs to delineate major 
watersheds within Washington and manage activities. The Petitioners 
summarize that in a previous review, WRIA 20 had an overall salmonid 
habitat rating of ``poor-fair,'' including ``poor'' water temperature, 
side channel floodplain, sediment quantity and quality, bank/streambed 
stability, instream woody debris, and riparian, ``fair'' road density 
and hydro high flows, and only pool habitat rated ``good'' (Smith, 
2005). The Petitioners further summarize threats within individual 
rivers within this inventory area, which include warm temperatures, low 
summer stream flows, landslides, passage blockages, flooding, increased 
fine sediment, debris flows resulting in the scouring of spawning 
gravels, and poor riparian conditions, amongst other things. For the 
portion of WRIA 21 that is outside of ONP, the Petitioners summarize 
that this area was subject to timber harvest and that there is 
excessive sedimentation, poor conditions for water temperature and 
side-channel floodplain, and fair conditions for pool habitat, instream 
large woody debris, and riparian habitat (citing multiple references). 
For WRIA 19, the Petitioners state that this area has been subject to 
logging practices and a large percent of the old growth area has been 
converted to tree farms (citing McHenry et al., 1996). Smith (2005) 
also rated multiple habitat attributes as being in ``poor'' condition 
in this WRIA. The Petitioners also describe past and current forest 
practices, including past logging within the Olympic National Forest 
(Olympic NF), and assert that though management has improved, the 
impacts of past practices are still effecting OP steelhead habitat.
    The Petitioners further assert that the impacts of past and current 
logging harm OP steelhead through increasing water temperatures and 
sedimentation, removing woody debris, altering stream flows, and 
impacting habitat connectivity. The Petitioners cite Hicks (1999), 
stating that high water temperatures can cause mortality, metabolic 
distress, alter disease susceptibility, change migration and breeding 
times, and can form temperature barriers to migrating fish. The 
Petitioners summarize that logging has resulted in increased 
sedimentation and landslides within the region, and that this can 
reduce prey availability, block habitat access, suffocate early life 
stages like eggs and fry, impact respiratory function, and increase 
water temperature (citing McHenry et al., 2016, USFWS, 2020). Also, the 
Petitioners state that loss of woody debris from logging can result in 
less habitat cover and less rearing and refuge habitat. Finally, the 
Petitioners assert that logging roads and culverts have decreased or 
blocked access to available habitat.
    According to the Petitioners, many rivers and streams in WRIA 19-21 
do not meet state temperature standards and certain rivers and streams 
also do not meet dissolved oxygen and/or pH standards (WDOE, 2016). 
Hundreds of culverts within WRIAs 19-21 also may be creating migration 
barriers, though some work is ongoing to repair or replace culverts. 
Based on information provided by the Petitioners and readily available 
in our files, we find that habitat degradation may be posing a threat 
to the continued existence of OP steelhead.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition identifies overutilization for commercial and 
recreational purposes as a main threat to OP steelhead. The fisheries 
are mainly managed through escapement goals for OP steelhead winter-
runs, which were set based on maximum sustainable harvest. According to 
WDFW's review, OP steelhead has sustained the highest harvest rate 
among Washington state steelhead populations with an annual harvest 
rate of 25.6 percent (Cram et al.,

[[Page 8781]]

2018). WDFW also notes that harvest rate estimates were only available 
for one-third of the OP steelhead populations with escapement data and 
three additional river systems with combined population escapement 
(Cram et al., 2018). The Petitioners assert that using escapement goals 
based on maximum sustainable harvest does not provide enough detail to 
``responsibly manage harvest or maintain the persistence of the 
species'' and question whether or not current management targets are 
sustainable based on high harvest rates stated in Cram et al. (2018) 
and declining abundance. Cram et al. (2018) also stated concerns about 
the high harvest rates given recent declines and limited availability 
of monitoring data. In recent years, WDFW has shortened or closed the 
recreational fishing season on winter-run OP steelhead at least in part 
due to low returns. WDFW also imposed restrictions on recreational 
angling by banning the use of boats and bait (see the following:  
https://wdfw.medium.com/changes-to-the-coastal-steelhead-season-67131dd05ba7; https://wdfw.medium.com/frequently-asked-questions-march-2022-coastal-steelhead-closure-364cfa62826f; https://www.peninsuladailynews.com/sports/fishing-olympic-national-park-to-shut-down-fishing-on-west-end-rivers/).
    The Petitioners also report results from their analysis (provided 
in the petition, Appendix A from N. Gayeski, https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act) estimating productivity and 
abundance capacity/equilibrium abundance over time in order to support 
their assertion that managing for maximum sustainable harvest or yield 
is not sustainable. Using data on spawner returns and juvenile recruits 
from WDFW and a Ricker stock-recruit model, the Petitioners estimate 
productivity and unfished equilibrium abundance overtime for Hoh River 
and Quillayute River winter-run steelhead. These analyses show fairly 
steady declines in both productivity (alpha parameter) and equilibrium 
abundance from 1986 to 2014 for both populations.
    The Petitioners further summarize current information and data on 
harvest impacts for the winter-run OP steelhead that are harvested in 
Tribal fisheries and non-Tribal recreational fisheries. The Petitioners 
report that mean harvest rates for the four largest winter-run OP 
steelhead populations (Quillayute, Hoh, Queets, and Quinault Rivers) 
between the late 1970s/early 1980s to 2020 were 28, 35, 35, and 46 
percent, respectively; and ratios of hatchery to natural-origin fish 
vary from 0.7:1 to 4.7:1 depending on the river system and specific 
fishery. Tribal fishers catch natural-origin OP steelhead throughout 
their fishing seasons. In 2016, WDFW changed the recreational fishing 
regulations to prohibit retention of natural-origin winter-run 
steelhead in OP steelhead river basins. The number of natural-origin OP 
steelhead that are captured and released is calculated by WDFW via 
creel surveys, and it is estimated that catch and release has a 10 
percent mortality rate. However, the Petitioners assert that OP 
steelhead are potentially being caught and released more than once, for 
which mortality rates are unknown.
    The Petitioners further support their assertion that the winter-run 
OP steelhead populations are over-utilized by summarizing recent 
failures to meet harvest management escapement goals. The Petitioners 
summarize the proportion of years that harvested natural-origin OP 
steelhead met their escapement goals both from Cram et al. (2018) and 
updated for more recent years, and assert that many populations are 
failing to meet escapement goals (see the Status and Population Trends 
section).
    In the case of summer-run OP steelhead, the Petitioners note that 
current tribal catch is low and that retention of natural-origin 
summer-run OP steelhead by recreational anglers has been prohibited for 
several decades (since the 1990s). Petitioners provide time-series of 
catch data for the late 1970s to 2020 for summer-run OP steelhead but 
note that in certain years, hatchery fish were not marked, making it 
difficult to distinguish between hatchery-origin and natural-origin 
fish. The Petitioners also assert that harvest of natural-origin 
summer-run OP steelhead occurred in the Quillayute River through 2006 
(based on WDFW records) though catch and release was implemented 
beginning in 1993, and the Petitioners assert that the data possibly 
represents illegal harvest but they are uncertain. Where they could 
distinguish natural-origin from hatchery-origin fish, historical 
recreational mean annual harvest of natural-origin summer-run OP 
steelhead ranged from 8 to 54 (1985-2006) across Queets, Quillayute, 
Hoh, and Quinault Rivers. Harvest of hatchery-origin summer-run OP 
steelhead ranged from 15 to 673 fish (years 1986-2016). However, the 
Petitioners assert that prior to 1986, hatchery fish were not marked 
and harvest of summer-run OP steelhead was higher in the Quillayute (in 
the low thousands), Hoh, and Queets (in the hundreds) river basins. The 
Petitioners summarize tribal summer-run OP steelhead harvest, but were 
unable to distinguish between hatchery-origin and natural-origin fish 
for Quillayute, Queets, Hoh, and Quinault Rivers. The mean annual 
harvest in those rivers was in the low hundreds, but higher for 
Quinault, although the Petitioners question if some of that harvest may 
include winter-run kelts (steelhead that survived spawning and return 
to the ocean). Though this harvest may be relatively low, the 
Petitioners emphasize that summer-run OP steelhead have less 
monitoring, low abundance, and lack escapement goals.
    Finally, the Petitioners discuss how overutilization may be 
reducing OP steelhead life history diversity, putting the population at 
further risk. Both the Petitioners and Cram et al. (2018) summarize 
that harvest may be effecting the diversity of sizes, ages, and run-
timing. Analysis of scale samples indicated that Tribal fisheries 
harvested more of the older fish, whereas the recreational fisheries 
harvested more of the younger fish (Cram et al., 2018). The Petitioners 
also assert that since the number of treaty fishing days per week 
declines throughout the season, this has resulted in greater harvest of 
the fish that return in the early part of the run (Cram et al., 2018), 
and could result in a shortened breeding season, reduced productivity, 
reduced diversity, and a reduction in the adaptive capacity with 
changing climate. Finally, the Petitioners express concern about 
fishing impacts to rates of iteroparity (rate of fish that spawn more 
than once) in OP steelhead and assert that fisheries targeting Chinook 
salmon (with incidental harvest of steelhead) and Tribal fisheries for 
steelhead in the spring and summer could be impacting kelts that might 
otherwise come back to spawn. They speculate that declines in rates of 
iteroparity are contributing to OP steelhead population declines.
    Based on information provided by the Petitioners, as well as 
information readily available in our files, we find past and future 
harvest may be posing threats to the continued existence of OP 
steelhead.

Disease or Predation

    The Petitioners assert that disease and predation pose a risk to 
natural-origin steelhead on the Olympic Peninsula. The Petitioners cite 
work by Breyta et al. (2013) summarizing detections of the genogroup 
(group of related viruses) of infectious hematopoietic necrosis virus 
(IHNV) that causes high levels of mortality in steelhead and rainbow 
trout, in the Hoh, Queets, Quinault, and

[[Page 8782]]

Quillayute river basins between 2007 to 2011. Though most detections 
were in hatchery-origin fish, Breyta et al. (2013) note that although 
natural-origin fish are less commonly sampled, there were detections of 
this virus in natural-origin fish in the Hoh and Quinault river basins. 
No IHNV was detected in 2012, but the future risk of IHNV in OP 
steelhead is unknown given known fluctuations of IHNV incidences in 
other regions (like Columbia River basin) (Breyta et al., 2013). 
Although virus outbreaks are concerning, the extent to which natural-
origin OP steelhead may be threatened by future outbreaks is not clear 
based on the information in the petition or otherwise readily 
available.
    The Petitioners assert that there is increased distribution of 
predators in the Dickey River basin likely from increased temperatures, 
citing Smith (2000), and that predation risk will likely increase with 
decreasing stream flow and increasing water temperature (citing Dalton 
et al., 2016). However, information to substantiate the extent that OP 
steelhead in particular will be threatened by increased predation is 
not provided and is not readily available in our files.

Inadequacy of Existing Regulatory Mechanisms

    The Petitioners also explain that existing regulatory mechanisms 
have inadequately protected and restored ecosystems that OP steelhead 
depend on, and is therefore a threat to OP steelhead. The Petitioners 
assert that the National Forest Management Act, including the 
associated Northwest Forest Plan and Aquatic Conservation Strategy 
(ACS) and Land and Resource Management Plan (LRMP) for the Olympic NF 
under the U.S. Forest Service (USFS), have not led to anticipated 
restored sediment regimes (under which OP steelhead evolved) and they 
could not find evidence of increased anadromous fish production, as the 
1990 USFS LRMP claimed would occur. Also, they assert that even with 
the ACS, Olympic National Forest Strategic Plan, and Road Management 
Strategy, there are still hundreds of miles of road that pose a threat 
to fish in the Olympic NF, like OP steelhead, and other aquatic 
resources (though 435 miles [700.1 km] have been decommissioned). 
Furthermore, riparian corridors have not been reestablished with 
conifers, which would contribute woody debris to adjacent stream 
channels. The Petitioners also question if USFS has included anything 
in the ACS in response to climate change, and broadly assert that the 
U.S. Government has failed to adequately address climate change. 
Finally, the Petitioners discuss how Washington is not meeting EPA 
water quality standards for many rivers and streams in OP steelhead 
habitat and assert that the Clean Water Act is failing to protect 
steelhead because discharge and runoff from logging is not being 
adequately regulated.
    The Petitioners include information on protections afforded to 
other ESA-listed species in the Olympic Peninsula region that could 
benefit OP steelhead, and assert that the current status of OP 
steelhead indicates these are not sufficient. Multiple rivers and 
streams where OP steelhead occur have been designated as bull trout 
critical habitat (75 FR 63875-63978, October 18, 2010). Listed species 
like bull trout, marbled murrelets, and Northern Spotted Owl occur on 
the peninsula, and the USFWS has conducted biological opinions for 
Federal actions in this region, including for the Forest Management 
Activities in the Olympic NF. However, the Petitioners note that even 
with conservation measures in place stemming from the biological 
opinions and recommended by USFWS, the USFWS still anticipates adverse 
effects to bull trout critical habitat.
    The Petitioners also discuss state regulatory mechanisms that can 
impact OP steelhead habitat. The Washington Department of National 
Resources Trust Lands (DNR) Habitat Conservation Plan (HCP), including 
its Riparian Forest Restoration Strategy, has habitat protections for 
riparian buffers and wetland protections, but the Petitioners assert 
that loss of woody debris and increased water temperatures is still 
occurring. The Washington State Forest Practices (FP) HCP also includes 
habitat protections from forestry impacts, but the Petitioners assert 
that NMFS and USFWS have voiced concerns that Washington Department of 
Natural Resources (WDNR) has not adequately followed water typing (not 
correctly identifying fish habitat) and monitoring described in the FP 
HCP (the Petitioners cite a Letter from Kim Kratz, Assistant Regional 
Administrator, NMFS, and Eric V. Rickerson, State Supervisor, USFWS, to 
Peter Goldmark, Commissioner of Public Lands, DNR (July 2, 2015)).
    The Petitioners also provide information on the National 
Environmental Policy Act (NEPA), which requires federal agencies to 
assess impacts of major actions and action alternatives on the 
environment. According to the Petitioners, because there is no 
requirement that Federal agencies pick the alternative with the least 
impact, NEPA is inadequate to protect OP steelhead. The State 
Environmental Policy Act (SEPA) has similar requirements at the state 
level.
    The Petitioners further assert that because OP steelhead are in 
decline, that state plans in Washington like the Statewide Steelhead 
Management Plan and Hatchery and Fishery Reform Policies, as well as 
Harvest Management Plans with the Tribes, are not adequate to protect 
OP steelhead. The Petitioners assert that the Steelhead Management Plan 
says WDFW should maintain escapement objectives above or at maximum 
sustainable harvest for populations with status of ``healthy,'' but 
they assert that assessment of status is nearly two decades old for OP 
steelhead and recent escapement data shows WDFW is not maintaining this 
escapement. They also assert that under the Steelhead Management Plan, 
more gene banks should have been established to protect populations of 
OP steelhead. In addition, the Petitioners discuss general fishery 
management by the state and the impact of fisheries to OP steelhead 
(see Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes section).
    Petitioners also discuss the inadequacy of hatchery regulatory 
mechanisms in Washington State. The Petitioners identify the 2009 
Hatchery and Fishery Reform Policy adopted by the Washington Fish and 
Wildlife Commission (WFWC), and note that after a SEPA review of this 
policy, Hatchery Action Implementation Plans were to be developed for 
each hatchery facility. The Petitioners assert that to their knowledge 
these plans were never developed or implemented. The 2009 Hatchery and 
Fishery Reform Policy outlined multiple guidelines for WDFW hatchery 
management including to ``Use the principles, standards, and 
recommendations of the Hatchery Scientific Review Group (HSRG) to guide 
the management of hatcheries operated by the Department.'' The HSRG was 
an independent scientific panel that reviewed Pacific Northwest 
hatcheries and developed recommendations for reform. The HSRG completed 
its work in 2021. Subsequent review of the 2009 policy (Murdoch and 
Marston, 2020), according to the Petitioners, found various issues, 
including that there was inadequate information to assess the policy's 
effectiveness at protecting wild salmonids, that implementation of 
certain guidelines was prevented due to lack of funding, that there is 
a lack of state-wide monitoring, and that there is missing data 
collection and analysis for adaptive management. The Petitioners state 
that the same review (Murdoch and Marston, 2020) found that little

[[Page 8783]]

progress had occurred in implementing HSRG recommendations for 
hatcheries on the Bogachiel River on the Olympic Peninsula. WDFW 
recently replaced the 2009 hatchery policy with new policy, but the 
Petitioners assert that the new plan ``abandons commitments to follow 
HSRG guidelines,'' did not undergo SEPA review, is currently under 
litigation, and is behind schedule in implementation.
    On the other hand, the Petitioners note that within the ONP, 
mechanisms like the National Park Service Organic Act, fishing 
regulations (catch and release, recent closures), and actions taken by 
the National Park Service to reduce impacts of construction and 
maintenance, have helped protect OP steelhead and their habitat. 
However, based on information provided by the Petitioners and 
information readily available in our files, we find that existing 
regulatory mechanisms for areas primarily outside of the ONP may not be 
adequate to address habitat modification and curtailment, 
overutilization, or other anthropogenic factors (hatcheries) that may 
be affecting OP steelhead.

Other Natural or Manmade Factors Affecting Its Continued Existence

    The Petitioners provide information on three other natural or 
manmade factors that they assert are affecting the continued existence 
of OP steelhead: hatcheries, climate change and ocean conditions, and 
loss of nutrients.
    The Petitioners cite concerns about potential effects of hatchery 
production on OP steelhead. In its 1996 review, NMFS noted that past 
hatchery practices and practices at the time of the review were a major 
threat to the genetic integrity of OP steelhead. The recent review of 
OP steelhead from WDFW (Cram et al., 2018) also named hatchery 
operations as ``a threat to genetic integrity of wild steelhead 
populations'' in the area occupied by OP steelhead. Cram et al. (2018) 
stated that, as of 2014, there were 11 hatchery programs on the Olympic 
Peninsula with an average annual release of 1,393,022 smolts from 2000 
to 2008 and 1,072,781 from 2009 to 2013. Most hatchery programs (10 of 
11) are used for harvest augmentation and most of these use stock from 
two steelhead populations not native to the Olympic Peninsula--Chambers 
Creek early winter and Skamania early summer (the use of which is being 
eliminated elsewhere on the West Coast due to impacts on listed 
steelhead, see Ford et al., 2022). Of the hatchery programs in the 
Olympic Peninsula, five are off-site release programs that transfer 
smolts from their natal hatchery to another watershed for release. Cram 
et al. (2018) notes that if adults from these programs are not caught 
by fisheries, they place natural-origin OP steelhead at risk 
genetically and ecologically. As of 2013, an integrated hatchery 
program was initiated in the Bogachiel River, while the program on the 
Sol Duc River ended and steelhead there are now protected from hatchery 
influence by the river's designation as a ``Wild Steelhead Gene Bank'' 
(Cram et al., 2018).
    The Petitioners assert that straying of hatchery-origin steelhead, 
and the associated interbreeding and competition between natural-origin 
and hatchery-origin steelhead on the Olympic Peninsula, are presenting 
genetic risks to natural-origin OP steelhead. The Petitioners also 
assert that the harvest of early-running hatchery-origin steelhead on 
the Olympic Peninsula is contributing to depletion of early returning 
native-origin OP steelhead. The Petitioners cite multiple studies that 
report the straying of hatchery steelhead into rivers and streams 
occupied by natural-origin OP steelhead. However, the Petitioners note 
that little data is available to quantify straying of hatchery winter-
run steelhead and assert that some of the hatcheries in the Queets 
River basin and one hatchery in the Quinault River basin do not mark 
hatchery fish, which makes it difficult to discern hatchery-origin from 
natural-origin fish. Based on snorkel surveys by Brenkman et al. (2012) 
and McMillan (2022), the Petitioners assert that there is substantial 
straying of summer hatchery-origin steelhead into summer-run OP 
steelhead watersheds that do not have hatchery programs, and straying 
within the same system of release, but outside of release location (the 
proportion of hatchery-origin fish ranged from 0 to 100 percent 
depending on the river/stream and year). Weirs and adult traps can be 
used to capture hatchery-origin fish, but the Petitioners note a lot of 
uncertainty about whether or not these are in use. The Petitioners 
conclude that straying of hatchery-origin fish threaten the genetic 
integrity of OP steelhead, and pose a great risk to summer-run OP 
steelhead given their low abundance.
    Where hatchery-origin and natural-origin steelhead co-occur on the 
Olympic Peninsula, there is concern about genetic introgression due to 
interbreeding, which NMFS stated as a risk to OP steelhead in the 1996 
status review (Busby et al., 1996). Estimates of the proportion of 
naturally spawning steelhead that were of hatchery-origin ranged from 
16 to 44 percent, but with the largest runs (Queets and Quillayute) 
having the lowest proportions of hatchery-origin spawners (Busby et 
al., 1996). The Petitioners cite the Washington Coast Sustainable 
Salmon Plan (2013) for more recent proportions of natural-origin 
winter-run OP steelhead spawners. This indicates, assuming that the 
rest are hatchery-origin, that the Sooes/Waatch Rivers, Goodman Creek, 
Quinault River estimated proportions of hatchery-origin are as much as 
50 percent. However, the Dickey River, Klalaloch Creek, Clearwater 
River, Moclips River, and Copalis River hatchery-origin steelhead 
proportions are only 0-5 percent. Additionally, a 2008 WDFW report 
cited by the Petitioners reported gene flow of Chambers Creek hatchery 
stock to Hoko, Pysht, and Sol Duc River winter-run steelhead of 5.5 to 
14.5 percent, 12 to 75 percent, and 2.5 to 6 percent, respectively. The 
Petitioners assert that offspring of hatchery-origin spawners or hybrid 
offspring may then compete with natural-origin offspring for food and 
habitat.
    The Petitioners also assert that hatchery practices have 
contributed to a compression of the run timing of winter-run OP 
steelhead. Specifically, the Petitioners note that the amount of open 
treaty fishery days per week is highest earlier on in the fishing 
season to target hatchery returning steelhead, and earlier returning 
fish remain in the system for longer periods. Thus, recreational 
fisheries (catch and release) may catch early-returners multiple times. 
This may contribute to the compressed run-timing of OP steelhead shown 
in McMillan et al. (2022). With the potential for greater early-winter 
peak flows and more intense summer temperatures in association with 
climate change, the Petitioners assert that spawning and rearing 
conditions in the future may be more ideal earlier in the season, but 
that hatchery and fishery practices with selection of late run timing 
are ``blocking the potential for adaptations in migration timing'' for 
OP steelhead.
    The Petitioners assert that climate change impacts in both the 
marine environment and in the terrestrial/freshwater environment will 
adversely impact OP steelhead. An assessment by the USFS on climate 
change impacts in the Olympic NF and ONP, indicated declines in 
freshwater habitat quantity and quality for OP steelhead (Halofsky et 
al., 2011).
    The Petitioners, citing multiple assessments, summarize the 
potential effects of climate change on freshwater habitats and 
potential impacts to OP steelhead. Specifically, the Petitioners 
summarize that climate change on the

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Olympic Peninsula has or will increase air temperature, melt glaciers, 
reduce snowpack, decrease summer precipitation, increase precipitation 
at other times of the year, decrease summer stream flow, increase 
winter flooding, increase water temperature, and increase sediment 
pollution. Halofsky et al. (2011) stated that for steelhead, generally, 
because of their long freshwater residency, are likely more sensitive 
to climate change effects in freshwater habitats than certain other 
salmonids (like ocean-type Chinook, pink, or chum salmon). In a 
separate assessment by the Oregon Climate Change Research Institute 
(Dalton et al., 2016), the authors note that based on studies in 
western Washington, changes in water temperature and stream flow are 
the main factors associated with climate change that will impact salmon 
and steelhead (Wade et al., 2013). The Petitioners summarize multiple 
potential adverse effects to OP steelhead from these two primary 
factors due to exposure on the Olympic Peninsula. They assert (citing 
various assessments including Dalton et al., 2016 and Halofsky et al., 
2011) that low summer flows will lead to less cold water and holding 
pools for migrating adult OP steelhead and thereby potentially lowering 
reproductive success; increased winter flow that could reduce survival 
of early life stages of steelhead, displace juveniles, and reduce slow-
water habitat for juveniles (which could impact survival); and high 
water temperatures that may impact the smoltification process and 
growth. Dalton et al. (2016) also summarized work showing that water 
temperature may impact the expression of resident vs. anadromous life 
history. However, the Petitioners note that OP steelhead may also 
realize some benefits from climate change, such as increased food web 
productivity and expanded growing seasons (summarized in Halofsky et 
al., 2011).
    The Petitioners summarize that, in the marine environment, climate 
change may impact sea surface temperature, upwelling, ocean 
acidification, and dissolved oxygen (resulting in anoxic and hypoxic 
events), potentially negatively affecting steelhead survival in the 
Pacific Northwest. The Petitioners note that NMFS stated in a recent 
review (Ford, 2022) that cyclic ocean conditions will likely be 
disrupted by climate change resulting in more low productivity years 
for salmonids. In general, salmonid abundance is correlated with 
decadal-scale environmental variability. The Petitioners assert that it 
is unclear if salmonids will continue to persist with shifts in marine 
conditions in combination with other threats. The Petitioners assert 
that climate change in the marine environment will likely also reduce 
forage fish prey for steelhead generally. Finally, a study by Abdul-
Aziz et al. (2011) predicted an 8 to 43 percent contraction of 
steelhead species' marine habitat due to climate change between the 
2020s and 2080s.
    As an additional threat, the Petitioners assert that the loss of 
marine-derived nutrients from declines of other salmonids in Olympic 
Peninsula rivers is likely limiting OP steelhead productivity through 
impacts to smolt survival. Information on whether, how, and to what 
extent nutrient declines are impacting OP steelhead specifically was 
limited.
    Based on information provided by the Petitioners and information 
readily available in our files, we find that hatcheries and climate 
change may be posing threats to the continued existence of OP 
steelhead.

Petition Finding

    After reviewing the information in the petition, the literature 
cited in the petition, and other information readily available in our 
files, we find there is substantial scientific and commercial 
information indicating that the petitioned action to list OP steelhead 
as a threatened or endangered DPS under the ESA 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 OP steelhead constitute a DPS, and, 
if so, whether OP steelhead is in danger of extinction throughout all 
or a significant portion of its range, or is likely to become so within 
the foreseeable future throughout all or a significant portion of its 
range. As required by section 4(b)(3)(B) of the ESA, within 12 months 
of the receipt of the petition (August 1, 2023), we will make a finding 
as to whether listing the OP steelhead DPS as an endangered or 
threatened species is warranted. If listing is warranted, we will 
publish a proposed rule and solicit public comments before developing 
and publishing a final rule.

Information Solicited

    To ensure that our status review is informed by the best available 
scientific and commercial data, we are opening a 60-day public comment 
period to solicit comments and information on OP steelhead. 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 
OP steelhead. 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 
(tribal, commercial, and recreational) and incidental harvest of the 
species; (10) other relevant new information, data, or corrections 
including, but not limited to, taxonomic or nomenclatural changes; (11) 
information concerning the impacts of environmental variability and 
climate change on survival, recruitment, distribution, and/or 
extinction risk; and (12) information on interactions or relationships 
between different steelhead life history forms in the Olympic 
Peninsula, such as anadromous and resident steelhead, or between 
hatchery-origin and natural-origin steelhead.
    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, and any 
association, institution, or business that the person represents. 
Please send any comments in accordance with the instructions provided 
in the ADDRESSES section above. We will base our findings on a review 
of the best available scientific and commercial information available, 
including all information received during the public comment period.

References

    A complete list of all references cited herein is available upon 
request (See FOR FURTHER INFORMATION CONTACT).

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


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    Dated: February 6, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-02849 Filed 2-9-23; 8:45 am]
BILLING CODE 3510-22-P