[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Notices]
[Pages 40782-40789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13277]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 230613-0148; RTID 0648-XR128]


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

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

ACTION: Notice; 90-day petition finding.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
bull kelp (Nereocystis luetkeana) as threatened or endangered under the 
Endangered Species Act (ESA) and to designate critical habitat 
concurrent with the listing. We have reviewed the information presented 
in the petition as well as information readily available in our files 
and find that the petition does not present substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted. Therefore, we are denying this petition.

ADDRESSES: Interested persons may obtain a copy of the petition online 
at the NMFS website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings.

FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS West Coast 
Region, Protected Resources Division, (562) 481-4594, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On September 1, 2022, we received a petition from the Center for 
Biological Diversity to list the bull kelp (Nereocystis luetkeana) as a 
threatened or endangered species under the ESA and to designate 
critical habitat concurrent with the listing. The petition asserts that 
the bull kelp is threatened by all of the ESA section 4(a)(1) factors: 
(1) the present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; and 
(5) other natural or manmade factors affecting its continued existence. 
The petition is available online (see ADDRESSES).

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 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 data. 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-
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 distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). 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 (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 its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; and (5) other natural or manmade 
factors affecting its continued existence (16 U.S.C. 1533(a)(1); 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and the U.S. 
Fish and

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Wildlife Service (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 petitioner'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 90-day finding on the 
petition, we considered the information described in sections 50 CFR 
424.14(c) and (d).
    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 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 (50 CFR 424.14(h)(1)(ii)). 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 
(50 CFR 424.14(h)(1)(iii)). 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, a 90-day not-substantial finding, or a 12-
month not-warranted finding--a petition will generally not be 
considered to present substantial scientific and commercial information 
indicating that the petitioned action may be warranted unless the 
petition provides new information or analysis not previously 
considered. 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 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 a 
threatened or endangered species, 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 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 whether the petition presents 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 whether the petition presents 
information suggesting 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. We then 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

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other organizations or made under other Federal or State statutes may 
be informative, but such classification alone may not provide the 
rationale 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.

Taxonomy

    Bull kelp, Nereocystis luetkeana, is a large brown alga in the 
kingdom Chromista (single-celled and multicellular eukaryotes with 
photosynthetic plastid organelles), phylum Gyrista, class Phaeophyceae 
(brown algae), and order Laminariales (the true kelps). Laminariales 
contains three families: Alariaceae, Laminariaceae, and Lessoniaceae. 
Traditional taxonomy, largely based on sporophyte morphology, was used 
to differentiate the brown algae and resulted in the placement of bull 
kelp into the family Lessoniaceae (Springer et al. 2007). In recent 
years, molecular techniques and resulting genetic data have challenged 
traditional taxonomy within the order resulting in a taxonomic revision 
at the family level based on evolutionary relationships (Lane et al. 
2006). Bull kelp is now in the family Laminariaceae, not Lessoniaceae 
as the petitioner stated, and it is the only species within its genus, 
Nereocystis.

Distribution, Habitat, and Life History

    Bull kelp is an annual marine macroalgal species that attaches to 
rocky substrates using its holdfast in intertidal and subtidal coastal 
habitats in the Northeastern Pacific Ocean from the Aleutian Islands, 
Alaska, to Santa Barbara County, California (Springer et al. 2010). 
Bull kelp typically occupies turbulent habitats between 3-20 m depth, 
and it can co-occur with other large brown kelps including dragon kelp 
(Eularia fistulosa) and giant kelp (Macrocystis pyrifera). It is 
considered to be a foundational species because it provides habitat for 
a variety of other marine organisms.
    Bull kelp reproduces sexually. Adults, also known as sporophytes, 
become mature during the summer or fall seasons at which time patches 
of spores, called sori, form on the kelp blades. Sori are shed around 
dawn and are negatively buoyant, causing them to sink. The sori release 
individual spores into the water column as they sink and upon reaching 
the substrate for up to approximately four hours. During this stage, 
both sori and spores have the capacity for dispersal, but the temporal 
and spatial scale of dispersal has not been quantified to date 
(Springer et al. 2010). Spores have limited ability to photosynthesize 
and therefore are likely not adapted for a long planktonic life. Given 
the suspected limited dispersal distances, spores are thought to settle 
near adults. Individual sporophytes have the ability to produce and 
release sori in pulses that occur every 4-6 days with a periodicity 
that varies by geographic location.
    Spores that successfully settle germinate into microscopic, 
sessile, male or female gametophytes. It is uncertain how long the 
gametophyte stage persists and the length of the stage is likely 
affected by abiotic conditions such as light, nutrients, and storm 
events (Springer et al. 2007). Based on laboratory studies, gamete 
production by gametophytes occurs at water temperatures between 5-15 
[deg]C, but when temperatures are sustained at greater than 20 [deg]C, 
morphological abnormalities in gametophytes and gametes are observed 
(Vadas 1972). Prevailing knowledge suggests that male gametophytes 
fertilize the female gametophytes in the winter. Increased proximity of 
male and female gametophytes increases fertilization success as does a 
pheromone released by female gametophytes known as lamoxirene. 
Fertilized eggs begin to grow into sporophytes in the spring as 
sunlight hours increase (Maier and Muller 1986). As the spring growing 
season progresses, macroscopic sporophytes can grow between 6-15 cm per 
day until the blades reach the water surface during the summer months 
(Springer et al. 2010 referencing Scagel 1946, Lindeberg and Lindstrom 
2010). At this point, growth slows and the sporophyte diverts its 
energy to producing spores. Typically, the life of an individual 
sporophyte ends at this point, but Springer (2010) referring to 
(Chenelot et al. 2001) points out that individuals produced late in the 
season in shallow water or wave-protected areas may successfully 
overwinter and survive a second year.

Status and Population Trends

Alaska

    The petitioner cites Krumhansl et al. (2016) when stating that 
population trends of kelp are negative in the Aleutian Islands and that 
bull kelp is the primary kelp species in this region. We did not find 
evidence that Krumhansl et al. (2016) identified bull kelp as the 
primary kelp species in the ecoregion that they refer to as the 
Aleutian Islands. The authors examined an overall trend for eight 
species, including bull kelp, but did not identify species-specific 
trends. Information provided by the petitioner (PNW Herbaria Map, 
Springer et al. 2010) and readily available in our files suggests that 
bull kelp occurs in an area that constitutes less than a third of the 
Aleutian Island chain and bull kelp does not occur west of the Samalga 
Pass, a natural, historic biogeographic barrier to bull kelp 
colonization (Konar et al. 2017). Throughout the remaining two thirds 
of the Aleutian Island chain, dragon kelp, Eualaria fistulosa, is the 
dominant kelp canopy species and it was part of the species complex 
examined is the Aleutian Islands ecoregion by Krumhansl et al. (2016). 
Therefore, the petitioners are incorrect in suggesting that the long-
term trend observed for the Aleutian Island ecoregion is due to bull 
kelp declines.
    Krumhansl et al. (2016) inferred relatively high magnitude 
increases in kelp abundance for the Gulf of Alaska and the North 
American Pacific Fjordland. Bull kelp is the dominant kelp canopy 
species in these regions, occurring throughout both regions with no 
major breaks in distribution (https://www.shorezone.org/). In this 
case, it is reasonable to assume that bull kelp contributed 
significantly to increasing long-term trends observed by Krumhansl et 
al. (2016).
    In summary, the overall status of bull kelp in Alaska indicates 
that populations have increased along the portion of the coastline 
where bull kelp occurrence is consistent and known (Gulf of Alaska and 
the North American Pacific Fjordland; Krumhansl et al. 2016). In the 
Aleutian Islands, where bull kelp is not a primary kelp species and has 
only been observed in an area that comprises <33% of the ecoregion, 
long-term trends remain uncertain.

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Canada

    The literature cited in the petition and the information we have 
readily available in our files present limited evidence of bull kelp 
decline in Canadian waters based on long-term trend studies conducted 
off the West Coast of North America. Krumhansl et al. (2016) inferred 
relatively high magnitude increases in kelp abundance for the North 
American Pacific Fjordland from 1983-2012, and it is reasonable to 
assume that bull kelp contributed to this increasing trend because it 
occurs throughout the ecoregion with no breaks in its distribution. 
Schroeder et al. (2019) found limited evidence of bull kelp decline in 
British Columbia from 2004-2017, a time period that pre-dates and 
follows the marine heat wave of 2014-2016. In a shorter-term study 
along the central coast of British Columbia, Burt et al. (2018) found 
fluctuating kelp canopy cover that may have been related to predator/
prey interactions and found no evidence for kelp decline over the time 
period they examined (2006, 2012, 2014-2016).
    In a study focusing on Barkley Sound, an area that comprises ~0.3% 
of the Canadian coastline on the west coast of Vancouver Island, Starko 
et al. (2022) examined local impacts to kelp (both giant and bull kelp) 
during the 2014-2016 marine heatwave. Nearly all kelp forests persisted 
toward the cool outer coast, but extensive kelp loss was observed 
inshore where surface water temperatures were >3 [deg]C warmer. The 
authors concluded that the responses of kelp forests to warm water 
events are highly variable at local scales with areas experiencing loss 
only 2-3 km away from areas where kelp was resilient.
    In summary, long-term data suggest that bull kelp populations in 
Canada appear stable or increasing in most areas, especially on the 
outer coast. Very small areas that tend to be inshore and constitute 
<1% of the range of the species in Canada experienced declines during 
the marine heatwave of 2014-2016. These localized declines were not 
significant enough to change the outcome of longer-term studies that 
suggest stability or increases of bull kelp in Canada or across its 
range.

Washington

    The petitioner states that bull kelp decline in Washington is 
associated with warmer water temperatures and proximity to human 
populations (Pfister et al. 2018). The information in our files 
suggests that Puget Sound bull kelp populations have experienced major 
losses since the late 1800s; population declines of 96 percent and 83 
percent were reported in the Central and West sub-basins, respectively 
(Berry et al. 2021). This pattern of decline did not hold true for the 
Strait of Juan de Fuca at the entrance to the Salish Sea where the bull 
kelp forest has generally remained stable over the last century, except 
along the eastern boundary of the Strait (Pfister et al. 2018). 
Krumhansl et al. (2016) found no directional trend over a 30-year time 
frame in the larger ecoregion they studied, which encompassed 
Washington. Furthermore, bull kelp populations on the outer coast of 
Washington have remained stable or increased since the 1990s (Pfister 
et al. 2017). Berry et al. (2021) noted that these contrasting patterns 
of adjacent sub-regions experiencing loss and stability have occurred 
in other locations globally.
    The petitioner does not comment specifically about how the bull 
kelp forests in Washington responded to the marine heat wave of 2014-
2016. Information in our files suggests that sites along Washington's 
outer coast and in the Strait of Juan de Fuca experienced a ~50 percent 
decline of their predominantly bull kelp canopy during the marine heat 
wave, but that the canopy quickly recovered and stipe density increased 
after 2015 (Tolimieri et al. 2023). In summary, long-term data suggest 
that bull kelp populations along the outer coast of Washington and in 
the Strait of Juan de Fuca (except along the eastern boundary) are 
stable or increasing following the marine heat wave, while populations 
in Puget Sound are in decline. There is no evidence presented by the 
petitioners or that we have readily available in our files that these 
small areas of decline had an impact on the status or health of the 
species in Washington or throughout its range.

Oregon

    The petitioner does not specifically mention the status of bull 
kelp populations in Oregon, where bull kelp is the dominant canopy kelp 
species. Long-term data in our files suggest variable trends between 
1984-2018 according to one study (Hamilton et al. 2020) and a 0.8 
percent decline between 1984-2021 according to another study that is in 
review (Bell et al. in review). Both studies found that the marine heat 
wave of 2014-2016 had little effect on bull kelp populations in Oregon, 
and that bull kelp beds in Oregon appear to be more resistant to the 
heat wave events compared to other areas (Hamilton et al. 2020, Bell et 
al. in review). Resilience among the kelp beds of Oregon was variable, 
but overall positive, between 2014-2016. In some areas, population 
sizes grew to higher levels compared to those recorded prior to the 
heat wave (Rogue Reef) and others remained stable (Orford Reef; 
Hamilton et al. 2020).
    In summary, long-term data suggest that bull kelp populations in 
Oregon have fluctuated over time, with periods of stability, declines, 
and increases depending on the particular area being studied. Oregon 
populations also appear to be fairly resilient to the marine heat wave 
of 2014-2016.

Northern California

    The petitioner cites a negative kelp canopy population trend in 
Northern and Central California from 1973-2012 and references Krumhansl 
et al. (2016), who do not distinguish which kelp species, of the 14 
examined, are responsible for the negative trend observed. The 
petitioner claims that a negative trend in multi-species (both canopy 
and understory) kelp decline indicates a species-specific decline in 
bull kelp within Northern and Central California. This claim is 
misleading because there are two dominant kelp canopy species along the 
Northern and Central California coasts, and they are not distributed 
evenly across this large ecoregion. Bull kelp is the predominant canopy 
forming species in Northern California, and giant kelp is the 
predominant species in Central California. Krumhansl et al. (2016) 
estimated a decline of 2% in kelp abundance per year in this large 
region that encompasses all of Northern and Central California; 
however, it is not known which species are driving the downward trend 
and it is not reasonable to assume that each canopy species contributed 
to this decline equally because they are not distributed equally across 
the entire area. Bell et al. (in review) examined trends in bull kelp-
dominated Northern California. They found no significant long-term 
trend in bull kelp abundance based on kelp canopy cover from the 1980s 
to present at 80 percent of the sites they studied. They did observe 
large fluctuations in kelp canopy in Northern California throughout the 
time period, emphasizing that high variability in abundance is 
characteristic of bull kelp populations in this region.
    The petitioner states that there have been alarming bull kelp 
population declines since 2014 following the marine heat wave in Sonoma 
and Mendocino counties where the canopy has declined by 90 percent and 
kelp have not recovered as expected (Rogers-Bennett & Catton 2019, 
Finger et al. 2021, Bell et al. in review). We have

[[Page 40786]]

corroborated this claim based on the information provided by the 
petitioner and the information we have in our files (McPherson et al. 
2021, Ward et al. 2022). Bell et al. (in review) found low resistance 
and resilience of bull kelp populations in Northern California 
following the marine heat wave of 2014-2016, but documented signs of 
recovery began in 2021. Resistance was defined as the degree to which 
bull kelp canopy area changed during and shortly following the marine 
heat wave (2014-2016) relative to the baseline period immediately 
preceding the heatwave event (2009-2013) and resilience was defined as 
the degree to which bull kelp canopy area recovered following the 
marine heat wave (2017-2021) relative to the baseline period (Bell et 
al., in review).
    In summary, long-term data presented in the petition and/or readily 
available in our files suggest no significant trend in bull kelp 
populations in Northern California despite significant declines in 
Sonoma and Mendocino counties following the marine heat wave of 2014-
2016. In addition, there are signs of very slow recovery in Sonoma and 
Mendocino counties beginning in 2021 (Bell et al., in review). There is 
no evidence presented by the petitioners, or that we have readily 
available in our files, that the small areas of decline in Sonoma and 
Mendocino counties (~10% of the species' range) are having an impact on 
the status or health of the species in other areas of Northern 
California or throughout the bull kelp range.

Central California

    As noted above for Northern California, Krumhansl et al. (2016) 
combined Northern and Central California together as well as combining 
trends for 14 species of kelp, both canopy-forming and understory 
species, to estimate a decline of 0.02 in kelp abundance per year in 
this region between 1973-2012. It is not known which species are 
driving the downward trend. Bull kelp is not distributed evenly across 
the ecoregion that includes both Northern and Central California, and 
giant kelp is the predominant species in Central California. Bell et 
al. (in review) examined trends in kelp canopy in Central California 
from 1984-2021 and found a decline of 0.06 percent per year, but the 
authors indicate that declines in giant kelp, not bull kelp, were 
primarily responsible for driving this downward trend. Bell et al. (in 
review) found that resistance and resilience of the kelp canopy were 
relatively high following the 2014-2016 marine heat wave, but again 
there is no evidence that these metrics can be applied to bull kelp 
specifically.
    In summary, the predominant canopy-forming kelp in this region is 
giant kelp, not bull kelp, so long-term studies of kelp canopy in this 
area do not directly inform the status of bull kelp in Central 
California. The petitioners provide no evidence, and we have no 
information readily available in our files suggesting a decline in the 
status of bull kelp in Central California.

Overall Status and Trend

    While the petitioner claims that alarming declines in bull kelp 
populations are occurring throughout the species' range, they fail to 
provide substantial scientific or commercial information indicating 
that bull kelp may be declining and may warrant listing based on status 
throughout all or a significant portion of its range. Bell et al. (in 
review) conclude that long-term, continuous datasets spanning 40 years 
or more are necessary to put short-term declines in canopy kelp 
populations into the context of long-term dynamics. In addition, 
studies examining the waxing and waning of bull kelp populations at 
local scales and over short periods of time (i.e., up to several years) 
found that factors thought to be responsible for declines do not 
operate equally throughout the bull kelp range. Declines occurring in a 
small portion of the bull kelp range over short-term time frames are 
not indicative of long-term status across the species' range or in a 
significant portion of the range.
    The data that the petitioner cites and that we have in our files 
suggest stable or increasing bull kelp populations are present in the 
northern (i.e., Alaska) and southern (i.e., Northern California) 
portions of the bull kelp range, as well as many areas in between. The 
areas where bull kelp populations are stable or increasing comprise a 
large percentage of the species' range (~80%) and almost all 
populations from Alaska to Oregon appear to be resilient to marine heat 
waves, especially the most recent marine heatwave of 2014-2016. In 
Northern California, where bull kelp populations declined dramatically 
following the 2014-2016 marine heat wave, there is evidence of recovery 
beginning in 2021.
    In sum, the status of bull kelp in geographic portions of its range 
indicates that bull kelp populations are predominantly stable or 
increasing throughout the range of the species as well as within 
significant portions of its range.

Analysis of ESA Section 4(a)(1) Factors

    In the following sections, we summarize our evaluation of the 
information presented by the petition and readily available in our 
files regarding the specific ESA section 4(a)(1) factors (hereafter 
``listing factors'') that may be affecting bull kelp's risk of 
extinction.

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

    The petitioner states that climate change, specifically warming 
ocean temperatures, is the predominant threat to bull kelp across its 
range. The petitioner states that the marine heat wave of 2013 (``The 
Blob'') followed by the strong 2015/2016 El Ni[ntilde]o event resulted 
in unprecedented sea surface temperature increases that caused bull 
kelp populations to crash. The petitioner asserts that bull kelp's 
apparent failure to recover to pre-Blob levels of canopy coverage 
indicates that bull kelp lacks resilience and resistance to temperature 
increases, thus providing a snapshot into what a warmer future looks 
like as climate change worsens. However, the information provided with 
the petition and in our files suggest that as an annual species, bull 
kelp regularly undergoes boom and bust cycles as part of its life 
history, and therefore some degree of fluctuation in abundance year to 
year is expected. Furthermore, bull kelp has persisted through several 
intense El Ni[ntilde]o events historically. The marine heatwave of 
2014-2016 affected bull kelp in some areas across its range, with 
variability in response over small spatial and temporal scales.
    The petitioner did not present long-term trends in abundance or 
distribution for bull kelp across its entire range; they relied heavily 
on Bell et al. (in review), who used land-sat images to examine long-
term trends in kelp canopy cover (both N. luetkeana and M. pyrifera) in 
regions from Oregon to Baja California. This study found a strong 
latitudinal response to the heatwave event, with high spatial 
variability in recovery that included considerable small-scale (meters 
to kilometers) local effects. Overall, in this study, both resilience 
and resistance to the heat wave increased with increasing latitude; 
from Northern California to Oregon (bull kelp dominated areas) and Baja 
California Sur to Central California (giant kelp dominated areas). In 
response to the most recent heatwave event, kelp canopies in Oregon 
were highly variable, with some areas showing less than 10% recovery 
and some as high as 1,400% of baseline

[[Page 40787]]

levels. Kelp forests in Northern California exhibited historic lows 
during and post-marine heatwave (2014-2021), although no long-term 
regional decline (i.e., no trend) was detected in the overall time 
series (1984-2021). In contrast, kelp forests in Central California 
showed a significant long-term regional decline, driven by large 
decreases in canopy cover around the Monterey Peninsula, where giant 
kelp, not bull kelp, is the dominant canopy species.
    Other studies on kelp forests across latitudinal gradients found 
increasing temperatures did not change kelp canopy cover biomass, but 
instead showed temperature-driven alteration in physiological 
performance that led to the reduction of kelp bed resiliency. The 
petitioner cites Wernberg et al. (2010), who conducted disturbance 
experiments in 24 kelp forest reefs in four regions spanning 
temperatures of 2-4 [deg]C in western Australia. In this study, there 
was no significant relationship between temperature and kelp canopy 
biomass across the temperature gradients and regions, but it was found 
that kelps adjusted key metabolic processes in response to prevailing 
temperature. Physiological performance was reduced under warmer 
temperatures resulting in reduced reproduction, recruitment, and 
recruit survival compared to regions with cooler temperatures. As a 
consequence of low recruit abundance, kelp beds in northern latitudes 
(warmer water) had lower resilience to experimental perturbations 
compared to southern latitude kelp beds (colder water), suggesting 
there is an interaction between temperature regime and intensity of 
disturbance. The results of this study suggest that while kelp forest 
canopies may remain intact across latitudinal gradients, under warmer 
temperatures they may be more susceptible to other stressors like 
disease, poor water quality, reduced light levels, or physical 
disturbance, thereby diminishing their capacity for canopy regeneration 
in the long-term (Wernberg et al. 2010).
    Additional information present in our files and provided by the 
petitioner shows that microclimate and other local scale effects play 
important roles in mediating bull kelp resilience across its range. A 
study by Starko et al. (2022) in Barkley Sound, British Columbia, an 
area that comprises ~0.3% of the Canadian coastline, examined the role 
of fine-scale environmental variation (i.e., microclimate) in the 
indirect and direct effects of the 2014-2016 North Pacific heatwave on 
the persistence of the Pacific's predominant canopy-forming species, 
bull kelp and giant kelp. The authors demonstrated kelp forests went 
locally extinct as a result of the heatwave at 40 percent of the sites 
surveyed in that area, with most losses occurring at inshore sites that 
experienced the warmest temperatures. However, despite extirpation in 
these inshore areas, the authors found that kelp forests offshore 
persisted in deeper, cooler, nutrient-rich waters. This thermal refugia 
was limited by urchin grazing pressure at greater depths, but it was 
also found that some of the warmer inshore areas provided refuge from 
urchins depending on substrate type. This demonstrates how microclimate 
and grazing pressure may interact to influence kelp forest occupancy in 
a system, and despite warming waters, microhabitats that support kelp 
forests can still persist.
    Other studies support the importance of microclimates in driving 
kelp forest dynamics. For example, Schroeder et al. (2019) found that 
spatial and temporal persistence of bull kelp along the west coast of 
British Columbia varied with the local effects of current speed, 
temperature, and substrate type, with greater persistence in areas with 
higher currents and rockier substrates. Beas-Luna et al. (2020) 
examined kelp forest communities from Alaska to Baja California, 
Mexico, and found that local factors such as species composition, local 
oceanographic conditions, and human activities led to different 
patterns of kelp forest community response to climate change along the 
west coast of North America, with greater changes observed in the 
southern portions of the range, and more resilience in the central and 
northern portions where bull kelp is the dominant canopy forming 
species. In a global review, Krumhansl et al. (2016) analyzed global 
kelp forest change in ecoregions with data from the past 50 years and 
also concluded that local factors play a dominant role in driving kelp 
forest dynamics. Based on the literature in our files and provided by 
the petitioner, bull kelp population trajectories vary in direction and 
magnitude among ecoregions or microclimates rather than on broad 
spatial scales, with some areas exhibiting decline in biomass and other 
areas remaining stable or even increasing.
    In summary, the information presented by the petitioner and 
literature in our files provides evidence that warming ocean 
temperatures associated with marine heatwaves and climate change has 
resulted in bull kelp decline in some spatially limited areas. However, 
overall, bull kelp canopy recovery following warming events is 
spatially variable and often driven by a suite of local environmental 
factors. According to long-term, species-specific, ecoregional trend 
data (30+ years), the best type of data for providing insight into 
species resilience over time, bull kelp is increasing or stable in 
areas that span its extensive range, including those that have been 
impacted by warm-water induced declines. Therefore, we do not find that 
there is substantial information indicating that warm water events and 
climate change may be contributing to extinction risk for the bull kelp 
now or in the foreseeable future.

Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes

    The petitioner asserts that commercial bull kelp harvesting 
threatens the survival of bull kelp given that kelp harvest methods can 
include harvesting the upper portion of the kelp that helps keep it 
buoyant. The petitioner claims these methods can also inhibit the 
capacity for reproduction. The petitioner cites recent limits and 
closures of bull kelp harvest in California as evidence that additional 
measures are needed to protect bull kelp. Springer et al. (2010) 
outlines the regulatory framework and limitations on bull kelp 
harvesting in California, Oregon, Washington, British Columbia, and 
Alaska. There are restrictions or prohibitions on commercial harvest 
throughout the range of bull kelp, and historically there has been 
relatively limited commercial harvest (Springer et al. 2010). There are 
also restrictions on the harvest amount and/or allowable location of 
bull kelp harvest for personal, recreational, and scientific use 
throughout California, Oregon, Washington, British Columbia, and 
Alaska, including license/permit requirements for these non-commercial 
activities in most areas (Springer et al. 2010). While the petitioner 
does raise some concern about overutilization based on the general 
nature of harvest, the petitioner admits that the quantity of harvest 
is not a threat, and this factor does not appear to weigh heavily or 
factor into the petitioner's summary explanation of why bull kelp may 
warrant listing under the ESA. The information presented in the 
petition and available in our files does not indicate that harvest for 
commercial, personal, recreational, and scientific use is a threat to 
bull kelp.
    While not discussed or referenced by the petitioner, information in 
our files indicates that aquaculture production of bull kelp has 
recently developed or is

[[Page 40788]]

being actively pursued for commercial and restoration uses in 
Washington and Alaska (https://www.fisheries.noaa.gov/national/aquaculture/seaweed-aquaculture). These aquaculture activities are 
closely regulated by the states of Washington and Alaska, with 
additional federal and/or local requirements that may apply for such 
facilities and operations. Bull kelp grown in aquaculture provides some 
of the ecosystem services of wild populations such as carbon 
sequestration, nitrogen removal, providing habitat for fish, 
invertebrates, and other fauna, and dissipation of wave energy. 
Currently, NMFS does not consider kelp aquaculture to be a threat to 
wild populations of bull kelp.

Disease or Predation

    The petitioner asserts that predation by sea urchins poses a threat 
to bull kelp. The petitioner identifies trophic imbalances associated 
with the loss of urchin predators, such as the sea otter and sunflower 
sea star, as a factor that can devastate the bull kelp ecosystem and 
lead to the development of urchin barrens. Urchin barrens may form when 
urchin herbivory results in kelp deforestation and a community 
dominated by crustose coralline algae. They assert that urchin barrens 
have occurred along the North American west coast, from north of San 
Francisco to the Oregon border. Although urchin predation has been 
attributed as one of the primary stressors to kelp in Mendocino and 
Sonoma counties in Northern California, Hamilton et al. (2020) 
demonstrated that Oregon bull kelp population sizes were not 
significantly affected by the increase in urchin density that occurred 
in connection with the 2014 marine heat wave. Bull kelp have persisted 
in Oregon despite the functional extinction of sea otters and recent 
decline in sunflower sea stars (Hamilton et al. 2020). Similarly, 
Tolmieri et al. (2023) did not observe a strong, negative correlation 
between urchins and canopy kelp species in Washington.
    The petitioner asserts that urchin barrens may become alternate 
stable-states of the ecosystem in which a return to a kelp forest state 
would be difficult. Although the development of alternate stable-states 
may occur, there is significant spatiotemporal variation in the 
ecological processes that sustain such states. For example, pathogen 
induced sea urchin mortality has resulted in repeated flipping between 
kelp forests and urchin barrens in Nova Scotia. Pathogen-induced sea 
urchin mortality has also been observed in California (Steneck and 
Johnson, 2013). In addition, urchin biomass removal due to a directed 
fishery or as a kelp restoration action may shift barrens back to kelp 
forest communities (Steneck and Johnson, 2013, Williams et al. 2021, 
Eger et al. 2022).
    The petitioner also claims that sea urchin predation will be 
worsened by climate change due to reductions in kelp density associated 
with increased and stronger storm systems. They claim that a decrease 
in kelp density would increase predation from sea urchins. Although 
strong storm events have the potential to reduce the size of kelp 
forests, bull kelp has been observed to rapidly recolonize disturbed 
areas following removal of more competitively dominant algal species 
(Springer et al., 2010). Thus, in some cases, storm energy may have a 
positive effect on bull kelp abundance. In contrast to the above 
assertion, Dayton et al. (1992) noted an increase in urchin predation 
in response to the loss of drift kelp, not a decrease in kelp density.
    The petition presents credible information that predation by sea 
urchins has created barrens in some areas. However, the long-term data 
readily available in our files suggest that bull kelp is actually 
increasing or stable within regions that encompass those smaller areas 
that have been impacted by localized urchin predation. Therefore, we 
conclude that the petition does not present substantial information 
indicating that disease or predation is posing a threat to bull kelp 
such that it is contributing to extinction risk.

Inadequacy of Existing Regulatory Mechanisms

    The petitioner asserts the existing regulatory mechanisms are 
insufficient to protect bull kelp from extinction and that bull kelp 
does not currently hold protected status under any environmental law. 
The only regulatory mechanism identified by the petitioner is that 
provided by the National Marine Sanctuary System, and they assert that 
such protections are only provided in the southernmost part of the bull 
kelp habitat range. The petitioner incorrectly asserts that there are 
no National Marine Sanctuaries in Washington. To the contrary, the 
Olympic Coast National Marine Sanctuary includes 3,188 square miles of 
marine water including the nearshore waters off the Olympic Peninsula 
in the State of Washington. The petitioner does not specify particular 
threats for which existing regulatory mechanisms are inadequate and 
does not provide substantial scientific or commercial information to 
support their assertion. Given this lack of specificity, we note below 
some of the existing regulatory mechanisms that address manmade factors 
identified elsewhere in the petition.
    Although the petitioner asserts that bull kelp does not currently 
hold protected status under any environmental law, they note elsewhere 
in the petition that the California Fish and Game Commission approved a 
3-year temporary closure of bull kelp commercial harvest off Sonoma and 
Mendocino counties in California, and limited harvest off Humboldt and 
Del Norte counties. This is a regulatory mechanism designed to protect 
against an overutilization threat. We also note that the State of 
California has initiated the development of a statewide, climate-ready 
Kelp Restoration and Management Plan for California, which will include 
a harvest management framework and other fishery management plan 
elements required by the State of California's Marine Life Management 
Act, an innovative framework for ecosystem-based management of kelp 
forests, and a restoration toolkit consisting of restoration options 
available to resource managers in California. In addition, as described 
previously in Overutilization for commercial, recreational, scientific 
or educational purposes, there are management frameworks for bull kelp 
in place throughout its range that regulate the harvest and/or use of 
bull kelp for any purpose.
    The U.S. Army Corps of Engineers South Pacific Division also 
considers kelp to be a special aquatic site (40 CFR 230 Section 
404(b)(1) Guidelines). This status provides special consideration when 
evaluating permit applications for dredged or fill material pursuant to 
Section 404 of the Clean Water Act. This is a regulatory mechanism that 
can address aspects of the coastal darkening factor identified in Other 
natural or manmade factors affecting the bull kelp's continued 
existence section of the petition. In addition, canopy kelp, which 
includes bull kelp, has been designated as essential fish habitat (EFH) 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act for various federally managed fish species under the Pacific Coast 
Groundfish (PCG) and Pacific Coast Salmon (PCS) Fishery Management 
Plans (FMPs). Moreover, canopy kelp has been designated as a habitat 
area of particular concern (HAPC) for various fish species under the 
PCG and PCS FMPs. Federal agencies must consult with NMFS regarding any 
proposed action that may adversely affect EFH or a HAPC, and must 
consider NMFS's conservation recommendations to mitigate any 
environmental impacts to bull kelp

[[Page 40789]]

during construction and other development.
    We conclude that the information presented in the petition and 
readily available to us does not constitute substantial information 
indicating that the inadequacies of existing regulatory mechanisms are 
posing a threat to bull kelp. To the contrary, information readily 
available to us indicates a number of existing regulatory mechanisms 
which assist in kelp protection.

Other Natural or Manmade Factors

    The petitioner asserts that chemical pollution, thermal pollution, 
coastal darkening, and oil spills pose risks to bull kelp and place the 
species at risk of extinction. For example, the petitioner expresses 
concern that thermal pollution created by power plants can jeopardize 
reproduction of bull kelp. Though there are a few coastal power plants 
that continue to discharge warm water, California has established 
regulations that are phasing out once-through cooling water for energy 
production. In addition, the Diablo Canyon power plant in central 
California is currently scheduled for decommissioning and is not 
anticipated to continue discharging warm water over the long term. San 
Onofre Nuclear Generating Station (SONGS) was the only other coastal 
power plant in California that discharged warm water in the vicinity of 
kelp habitat, but it is currently being decommissioned. Moreover, the 
California Coastal Commission required SONGS to provide compensatory 
mitigation for the adverse effects to kelp and the marine environment 
resulting in the largest artificial reef project on the West Coast of 
the United States. As such, it seems that the threat of thermal 
pollution by power plants has diminished substantially and there is no 
indication of that pattern reversing in the foreseeable future.
    Similar to thermal pollution, the petitioner claims chemical 
pollution can inhibit kelp reproduction, settlement, and survival, 
citing evidence from California and for other kelp species in South 
America. The petition specifically cites concerns around the impacts of 
hydrazine and heavy metals on bull kelp, pollutants emerging from 
coastal factories, military bases, and airports. However, the petition 
did not provide substantial scientific or commercial information to 
support these assertions, such as documentation of existing overlap 
between sources of these chemical pollutants and bull kelp populations 
and associated negative impacts.
    Coastal darkening, defined by the petitioner as a situation that 
arises when pollutants from coastal runoff physically block the sun, is 
claimed as a stressor inhibiting bull kelp photosynthesis, and thereby 
growth and maturation, as well as bull kelp recruitment. The evidence 
that coastal darkening affects photosynthesis cited by the petitioner 
is focused on a different species of kelp, although the petitioner does 
provide support for the negative impacts of turbidity on photosynthesis 
and recruitment in bull kelp specifically. Importantly, though, the 
petition does not present evidence that human activities causing 
coastal darkening within the range of bull kelp reduce photosynthesis 
and recruitment of bull kelp.
    Finally, the petitioner presents evidence from laboratory studies 
and asserts that oil spills, which can expose bull kelp to petroleum 
and polycyclic aromatic hydrocarbons (PAHs) in particular, threaten 
growth and photosynthesis, thereby increasing extinction risk. This 
concern is specific to California and Alaska bull kelp habitats where 
oil and gas development occurs. While some studies have demonstrated 
negative effects of petroleum products on bull kelp, Springer et al. 
(2010) indicate that little is known about the effects of toxicants 
such as oil on bull kelp. For example, studies focused on the Exxon 
Valdez oil spill in Alaska compared bull kelp biomass and percent cover 
between oiled and control sites in Prince William Sound and found no 
evidence of detrimental effects of oil exposure (Springer et al. 2010). 
While oil spills are a threat to coastal ecosystems, the petition fails 
to present credible scientific or commercial information indicating 
that these forms of pollution are posing a threat to bull kelp.

Petition Finding

    In conclusion, after reviewing the petition, the literature cited 
in the petition, and other information readily available in our files, 
we do not find there is substantial information indicating that bull 
kelp is declining throughout all or a significant portion of its range 
or that it is affected by threats throughout all or a significant 
portion of its range such that listing may be warranted. We therefore 
conclude the petition does not present substantial scientific or 
commercial information indicating that the petitioned action to list N. 
luetkeana as a threatened or endangered species may be warranted.

References Cited

    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.).

    Dated: June 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-13277 Filed 6-21-23; 8:45 am]
BILLING CODE 3510-22-P