[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85178-85184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26852]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 231201-0285; RTID 0648-XR129]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Chinook Salmon on the Washington Coast as Threatened or 
Endangered Under the Endangered Species Act

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

ACTION: 90-Day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list 
spring-run Chinook salmon (Oncorhynchus tshawytscha) on the Washington 
Coast (WC) as threatened or endangered under the Endangered Species Act 
(ESA) or, alternatively, list the existing WC Chinook salmon 
Evolutionarily Significant Unit (ESU) as currently defined (inclusive 
of all run types) as threatened or endangered under the ESA. The 
petition also requests that we designate critical habitat concurrently 
with the listing. We find that the petition presents substantial 
scientific or commercial information indicating the petitioned action 
to list may be warranted. We will conduct an ESU analysis and status 
review to determine whether the petitioned action is warranted. To 
ensure that the status review is comprehensive, we are

[[Page 85179]]

soliciting scientific and commercial data, including traditional 
ecological knowledge pertaining to Chinook salmon that spawn north of 
the Columbia River and west of the Elwha River from any interested 
party.

DATES: Scientific and commercial data pertinent to the petitioned 
action must be received by February 5, 2024.

ADDRESSES: You may submit scientific and commercial data relevant to 
our review of the status of Chinook salmon on the WC, identified by 
``Washington Coast Chinook Salmon Petition'' or by the docket number 
NOAA-NMFS-2023-0148, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2023-0148 in the Search box 
(note: copying and pasting the FDMS Docket Number directly from this 
document may not yield search results). Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments.
     Mail or Hand-Delivery: Protected Resources Division, West 
Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR 
97232. Attn: Shivonne Nesbit.
    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 
https://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 related 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: Shivonne Nesbit, NMFS West Coast 
Region, at [email protected], (503) 231-6741; or Margaret 
Miller, NMFS Office of Protected Resources, at 
[email protected], (301) 427-8457.

SUPPLEMENTARY INFORMATION: 

Background

    On July 17, 2023, the Secretary of Commerce received a petition 
from the Center for Biological Diversity and Pacific Rivers (hereafter, 
the Petitioners) to list the spring-run Chinook salmon on the WC as a 
threatened or endangered ESU under the ESA or, alternatively, list WC 
Chinook salmon (inclusive of all run types) as a threatened or 
endangered ESU. The Petitioners also request the designation of 
critical habitat concurrent with ESA listing.
    Previously, in 1999, we identified the WC Chinook salmon ESU as 
comprised of coastal populations of spring-, summer- and fall-run 
Chinook salmon spawning north of the Columbia River and west of the 
Elwha River and determined that the ESU did not warrant listing as 
threatened or endangered under the ESA (63 FR 14308, March 24, 1999). 
The Petitioners are requesting that spring-run Chinook salmon on the WC 
be considered as a separate ESU and listed as threatened or endangered. 
The Petitioners assert that new research into the genomic basis for 
premature migration in salmonids demonstrates that significant genetic 
differences underlie the spring- and fall-run life history types, and 
that the unique evolutionary lineage of spring-run Chinook salmon 
warrants their listing as a separate ESU. The petition includes an 
overview of new research into the genomic basis for premature migration 
in salmonids, as well as general biological information about spring-
run Chinook salmon on the WC including their distribution and range, 
life history characteristics, habitat requirements, as well as basin-
level population status and trends and factors contributing to the 
populations' status. The Petitioners assert that spring-run Chinook 
salmon are facing existential threats, and therefore, if NMFS does not 
delineate and list the spring-run WC Chinook salmon population as 
threatened and endangered under the ESA, the current WC Chinook salmon 
ESU that includes spring-, summer- and fall-run populations should be 
listed as threatened or endangered under the ESA. Copies of the 
petition are available as described above (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 makes a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned during which we will 
conduct a comprehensive review of the best available scientific and 
commercial data. In such cases, we conclude the review with a finding 
as to whether the petitioned action is warranted within 12 months of 
receipt of the petition. Because the finding at the 12-month stage is 
based on a more thorough review of the available information, as 
compared to the narrow scope of review at the 90-day stage, a ``may be 
warranted'' finding does not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). In 1991, we 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), which explains 
that Pacific salmon populations will be considered a DPS, and hence a 
``species'' under the ESA, if it represents an ``evolutionarily 
significant unit'' 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. The ESU Policy was 
used to define the WC Chinook salmon ESU in 1999 (64 FR 50394, 
September 16, 1999), and we use it exclusively for defining DPSs of 
Pacific salmon. A joint NMFS-U.S. Fish and Wildlife Service (USFWS) 
(jointly, ``the Services'') policy clarifies the Services' 
interpretation of the phrase ``distinct population segment'' for the 
purposes of listing, delisting, and reclassifying a species under the 
ESA (DPS Policy; 61 FR 4722, February 7, 1996). In announcing this 
policy, the Services indicated that the ESU Policy for Pacific salmon 
was consistent with the DPS Policy and that NMFS would continue to use 
the ESU Policy for 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

[[Page 85180]]

sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). 
Pursuant to the ESA and our implementing regulations, we determine 
whether species are threatened or endangered based on any one or a 
combination of the following five section 4(a)(1) factors: the present 
or threatened destruction, modification, or curtailment of habitat or 
range; overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; inadequacy of existing 
regulatory mechanisms to address identified threats; or any other 
natural or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by the Services (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 initial (90-day) finding 
on the petition, we consider the information described in sections 50 
CFR 424.14(c), (d), and (g) (if applicable), and information readily 
available at the time the determination is made Sec.  424.14(h)(1)(ii).
    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 (Sec.  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(h)(1)(ii) and 50 CFR 424.14(c)(6).
    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 petitioned action will generally not be considered 
to present substantial scientific and commercial information indicating 
that the action may be warranted unless the petition provides new 
information or analysis not previously considered. See 50 CFR 
424.14(h)(1)(iii).
    During the 90-day finding stage, we do not conduct additional 
research, and we do not solicit information from parties outside the 
agency to help us in evaluating the petition. We will accept the 
Petitioner's sources and characterizations of the information presented 
if they appear to be based on accepted scientific principles, unless we 
have specific information in our files that indicates the petition's 
information is incorrect, unreliable, obsolete, or otherwise irrelevant 
to the requested action. Information that is susceptible to more than 
one interpretation or that is contradicted by other available 
information will not be dismissed at the 90-day finding stage, so long 
as it is reliable and a reasonable person conducting an impartial 
scientific review would conclude it supports the petitioner's 
assertions. In other words, conclusive information indicating 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 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

[[Page 85181]]

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 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.

Previous Federal Actions

    On March 9, 1998, following the completion of a comprehensive 
status review of Chinook salmon (Oncorhynchus tshawytscha) populations 
in Washington, Oregon, Idaho, and California, we identified a total of 
15 ESUs of Chinook salmon and published a proposed rule to list 7 
Chinook salmon ESUs as threatened or endangered under the ESA (63 FR 
11482). We also identified the WC Chinook salmon ESU as comprised of 
coastal populations of spring-, summer- and fall-run Chinook salmon 
spawning north of the Columbia River and west of the Elwha River. We 
did not propose to list the WC ESU, concluding that the ESU is 
distributed among a relatively large number of populations, most of 
which are large enough to avoid serious genetic and demographic risks 
associated with small populations. Thus, we made the determination that 
the ESU was neither in danger of extinction nor likely to become 
endangered in the foreseeable future (63 FR 11482, 11494, March 9, 
1998).

Evaluation of Petition and Information Readily Available in NMFS' Files

    The petition contains information and assertions in support of 
listing Chinook salmon under the two alternatives requested by the 
Petitioners. As discussed above, based on biological, genetic, and 
ecological information compiled and reviewed as part of a previous West 
Coast Chinook salmon status review (Myers et al., 1998), we included 
all spring-, summer- and fall-run Chinook salmon populations in river 
basins north of the Columbia River and west of the Elwha River in the 
WC Chinook salmon ESU (63 FR 11482, March 9, 1998). While run-timing 
was recognized as having a heritable basis, review of genetic data at 
that time did not identify clear sub-groups associated with migration 
timing within the WC Chinook salmon ESU. Spring- and fall-run Chinook 
salmon were found to be separate ESUs in other areas (e.g., in the 
upper Columbia River, Snake River, and Sacramento River drainages). 
However, in coastal areas, life-history and genetic differences between 
runs were found to be modest, with spring- and fall-run fish exhibiting 
similar ocean distribution patterns and genetic characteristics (Myers 
et al., 1998).
    The Petitioners present new information on the genomics of run-
timing and assert that the spring-run populations of the WC Chinook 
salmon ESU meet the two ESU criteria outlined by the above-described 
ESU policy. Relying on inferred evidence from outside the WC ESU, the 
Petitioners assert that spring-run Chinook salmon in the WC ESU have 
been sufficiently isolated from fall-run Chinook salmon for 
evolutionarily important differences to have arisen and been 
maintained. The Petitioners present genetic evidence from populations 
outside the WC Chinook salmon ESU to suggest the spring-run Chinook 
salmon populations on the WC may qualify as a separate ESU from the 
fall-run populations. The Petitioners assert that findings from 
recently published articles on the evolutionary basis of premature 
migration in Pacific salmon (Prince et al., 2017; Narum et al., 2018; 
and Thompson et al., 2019; Koch and Narum 2020; Thompson et al., 2020; 
Willis et al., 2021; Waples et al., 2022) indicate that spring-run 
Chinook salmon in the WC ESU should be considered a separate ESU. 
Specifically, Prince et al., (2017) reported on a survey of genetic 
variation between mature (fall-run) and premature (spring- and summer-
run) migrating populations of steelhead and Chinook salmon from 
California, Oregon, and Washington. Thompson et al., (2019) provide 
additional information about genetic differentiation between mature- 
and premature-migrating Chinook salmon in the Rogue River, Oregon, and 
in the Klamath River, California, particularly in response to 
anthropogenic changes. The Petitioners suggest that the results of 
these studies indicate that premature migration arose from a single 
evolutionary event within the species and, if lost, is not likely to 
re-evolve in time frames relevant to conservation planning. Petitioners 
further assert that spring-run Chinook salmon have a unique 
evolutionary history that is distinct from fall-run Chinook salmon in 
the same watersheds (Prince et al., 2017; Thompson et al., 2020).
    The Petitioners also assert that the Chinook salmon spring-run life 
history represents an important component of the evolutionary legacy of 
the species. In support of this assertion, the Petitioners describe 
specific ecological (Quinn et al., 2016) and evolutionary benefits of 
the life history variation provided by spring-run populations within 
the WC Chinook salmon ESU. The Petitioners describe how spring-run 
Chinook salmon tend to spawn higher up in the watershed than fall-run 
and how this adds to the spatial distribution of the species. We find 
that the petition presents scientific or commercial information 
indicating that spring-run Chinook salmon on the WC may qualify as an 
ESU pursuant to our ESU Policy.

WC Chinook Salmon Status and Trends

    The Petitioners' listing request is focused on spring-run Chinook 
salmon declines in abundance, and they provide their analysis on the 
viability of and threats facing spring-run populations. Less 
information is provided regarding the fall-run populations.
    The Petitioners assert that spring-run Chinook salmon populations 
in the WC ESU have suffered significant declines in numbers from 
historical abundance. The Petitioners cited findings by Nicholas and 
Hankin (1989) that all spring-run Chinook salmon populations on the WC 
are depressed from historical

[[Page 85182]]

population sizes. Historically, spring-run Chinook salmon were abundant 
in the Chehalis, Quinault, Queets, and Hoh basins on the WC. The 
Petitioners use estimated in-river run size data from the Pacific 
Fishery Management Council (PFMC 2018) for the Chehalis, Queets, and 
Hoh basins and unpublished data from the Quinault Indian Nation for the 
Upper Quinault River. For all four basins, the data purportedly 
demonstrate downward population trends for spring-run Chinook salmon. 
The Petitioners also cite catch data from Tribal gillnet fishery 
records from 1953-1970 provided by the Washington Department of Fish 
and Wildlife (WDFW) and assert that the spring-run populations declined 
more rapidly than the fall-run populations during this time period. The 
petitioners attribute this decline to a rapid rise in the ocean salmon 
fisheries, both commercial and recreational. In particular, they note 
the growth in the troll fisheries off the WC as a factor contributing 
to the decline of all populations of WC Chinook spring-run salmon 
populations. The Petitioners assert that the spatial and temporal 
patterns of the fisheries (commercial, recreational, and tribal) are 
likely a major factor that affected the spring-run populations of the 
WC Chinook salmon.
    A previous West Coast Chinook salmon status review (Myers et al., 
1998) concluded that the long-term trends for most populations in this 
WC ESU were upward; however, several smaller populations (associated 
run types is unclear) were experiencing sharply downward trends. The 
status review concluded that fall-run populations were predominant and 
tended to be at a lower risk than spring- or summer-runs. The status 
review concluded that Chinook salmon in this ESU were not in danger of 
extinction nor were they likely to become so in the foreseeable future. 
However, it has been over 20 years since this status review was 
published and recent information on its status is incomplete.
    The data in our files indicates that the WC Chinook salmon ESU 
consists of numerous fall-run populations and a smaller number of 
spring/summer-run populations. Overall abundance has been variable over 
the past several decades, but most populations do not have significant 
trends. The spring/summer-run populations make up about 10 percent of 
the total ESU abundance, and most populations are small with a few 
hundred or fewer spawners annually. If the spring/summer runs on the WC 
were to be considered a separate ESU, the extinction risk associated 
with these small populations would warrant evaluation. If both spring/
summer- and fall-run were to be considered part of the same ESU, the 
contribution of run-timing diversity to that ESU's viability would 
warrant further evaluation based on updated science related to the 
genetic basis of run-timing.

Analysis of ESA Section 4(a)(1) Factors for Washington Coast Chinook 
Salmon

    The Petitioners assert that all five ESA section 4(a)(1) factors 
contribute to the need to list spring-run Chinook salmon on the WC or, 
alternatively, the WC Chinook salmon ESU (inclusive of all run types) 
as a threatened or endangered species under the ESA. While the petition 
presents information on each of the ESA section 4(a)(1) factors, we 
find that the information presented, including information within our 
files, regarding the destruction, modification, or curtailment of the 
species habitat or range; the inadequacy of existing regulatory 
mechanisms; and other natural or manmade factors affecting the species 
continued existence is substantial enough to make a determination that 
a reasonable person would conclude that the species may warrant listing 
as endangered or threatened based on these factors alone. As such, we 
focus our below discussion on the evidence and present our evaluation 
of the information regarding these factors and their impact on the 
extinction risk of the species. Each of these factors is discussed in 
further detail below.

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

    The Petitioners assert that WC Chinook salmon face numerous threats 
to suitable habitat, including impacts from historical and ongoing 
logging practices, road development, dams, water diversions, migration 
barriers, pollutants, and channelization.
    The Petitioners assert that habitat degradation due to logging and 
road development alters streamflow, sediment loading, sediment 
transport and deposition, channel stability and shape, substrate 
composition, stream temperatures, water quality, and riparian 
conditions within a watershed. This is supported by similar conclusions 
in NMFS' 1998 determination for the WC chinook salmon ESU that 
evaluated the status of habitat threats over an area within the range 
of the WC Chinook salmon ESU and concluded that degraded habitat 
conditions in this area continue to be of concern, largely related to 
forestry practice (63 FR 11482, March 9, 1998). The Petitioners 
specifically assert that extensive logging can be harmful to Chinook 
salmon populations by causing depletion of summer and early fall 
streamflows needed for adult migration, holding, spawning, and rearing. 
Perry and Jones (2017) found that after an initial delay, base 
streamflows were substantially decreased for decades in logged areas as 
compared to streamflows under pre-logging conditions.
    The Petitioners further assert that large and small dams, water 
diversions, and other migration barriers impact WC Chinook salmon by 
significantly reducing the amount of spawning and rearing habitat, 
altering downstream river flows and temperature regimes, and delaying 
and impeding migration. Petitioners specifically describe dams in the 
Chehalis River that were built without fish passage and that have 
blocked access to historical habitats.
    The Petitioners also highlight other ongoing anthropogenic 
disturbances that may cause habitat degradation including pollutants 
and channelization. The Petitioners cite numerous studies (Sedell and 
Froggatt 1984, Hulse et al., 2002, and Lestelle et al., 2005) that 
describe habitat impacts including decreased habitat complexity, 
decreased summer flows and water quality, and increased water 
temperatures.
    The Petitioners cite Myers et al., (1998), noting that all basins 
in the ESU were affected by habitat degradation, largely related to 
forestry practices, and that only the Queets and Quinault River basins 
were determined not to have substantial habitat problems. While the 
Petitioners provide general descriptions of ongoing habitat degradation 
from various sources, they do not provide specific information that 
would suggest that habitat conditions overall have markedly 
deteriorated since our last review in the 1990s. In fact, while we know 
that individual instances of habitat modification have taken place 
since the 1990s, over the past couple of decades conditions may have 
improved as a result of new forest harvest regulations, fish passage 
requirements, and habitat restoration efforts. However, it is 
reasonable to assume that the persistence of degraded habitat 
conditions may be exerting sustained negative effects on Chinook salmon 
on the WC, and disproportionately so on spring-run populations. 
Consequently, changes in overall habitat condition and distribution are 
inconclusive and may be open to interpretation.

Inadequacy of Existing Regulatory Mechanisms

    The Petitioners assert that existing international, Federal and 
State regulatory mechanisms are not

[[Page 85183]]

sufficient to protect and ensure recovery of spring-run Chinook salmon 
occurring on the WC and their habitat. With respect to international 
regulatory mechanisms, the Petitioners assert that the Pacific Salmon 
Treaty does not require consideration of the condition of individual 
populations or the impacts on spring-run Chinook salmon populations 
from the WC in the determination of harvest allocations. The 
Petitioners state that, at the Federal level, the National 
Environmental Policy Act (NEPA), the ESA, the National Forest 
Management Act and Northwest Forest Plan, Olympic National Park, the 
Clean Water Act (CWA), and the Federal Energy Regulatory Commission 
(FERC) do not adequately protect spring-run Chinook salmon on the WC. 
Petitioners note that although the NEPA process requires Federal 
agencies to identify potential environmental impacts, NEPA analyses do 
not prohibit agencies from choosing project alternatives that may 
adversely affect spring-run Chinook salmon on the WC or their habitats. 
As a result, Petitioners assert that the NEPA process often affords 
little to no protections or alternatives to avoid harm to spring-run 
Chinook salmon. The Petitioners cite a proposed new dam on the mainstem 
of the Chehalis River as an example of a project that may adversely 
affect spring-run Chinook salmon on the WC. The proposed dam is 
designed to hold back flows and create a temporary reservoir when flows 
exceed a threshold level to ameliorate flooding downstream. When 
formed, the temporary reservoir would inundate more than 6 miles of the 
upper mainstem Chehalis River and the lower reaches of several major 
tributaries. The area of inundation would encompass historical spring-
run Chinook salmon spawning grounds in the upper river (Phinney and 
Bucknell 1975; Weyerhaeuser 1994; Lestelle et al., 2019). The 
Petitioners note that, under section 404 of the Clean Water Act, the 
U.S. Army Corps of Engineers determined that the proposed dam project 
may have significant impacts on the environment and released a draft 
environmental impact statement (EIS) on the proposed dam project in 
2020. The draft EIS used an Ecosystem Diagnosis and Treatment model 
(McConnaha et al., 2017; ACOE 2020) to analyze the potential impacts of 
the proposed dam and concluded that during the 5-year construction 
period Chinook salmon returning to the upper mainstem river could be 
reduced by up to 80 percent. The draft EIS also concluded that impacts 
from the proposed dam at a basin-wide scale were predicted to be 
minimal for most modeled species and that habitat in the upper 
watershed above Crim Creek is currently beneficial salmonid habitat 
that can provide a buffer against future potential degradation (ACOE 
2020). The final EIS has not been completed.
    Petitioners assert that the spring-run Chinook salmon on the WC 
could be better protected under the ESA through Habitat Conservation 
Plans (HCP). Petitioners assert that the National Forest Management Act 
does not effectively limit the long-term impacts on salmonid habitat in 
Washington coastal watersheds from activities like logging, road-
building, and mining. In 1990, the USFS adopted a Land and Resource 
Management Plan (LRMP) for the Olympic National Forest, which aimed to 
increase fish production potential through habitat enhancement 
projects. In 1998, the LRMP was amended to be consistent with the 
Northwest Forest Plan that includes an Aquatic Conservation Strategy 
(ACS) intended to maintain and protect native fish and their habitat 
(Thomas et al., 1993; Reeves et al., 2006). The ACS included 
designation of riparian management zones, activity-specific management 
standards, watershed assessments, watershed restoration, and 
identification of key watersheds. Among other things, the ACS requires 
the USFS to ``maintain and restore the sediment regime under which 
aquatic ecosystems evolved'' (USDA 1994). The Petitioners assert that 
there is little evidence to suggest that the habitat improvements 
described in the LRMP or ACS have resulted in increased salmon 
production.
    Petitioners assert further that portions of spring-run Chinook 
salmon populations spawn and rear within the Olympic National Park, 
benefiting from relatively pristine aquatic habitat conditions 
(Halofsky et al., 2011). However, maintenance and repair of park roads 
adjacent to rivers have caused significant impacts on fish and aquatic 
life. Petitioners also note that spring-run Chinook salmon habitat in 
the park is still impacted by legacy effects of past logging and roads, 
leading to ongoing impairment of salmonid habitat, and that logging 
roads and associated channel crossings are still major issues for fish 
habitat quality (Halofsky et al., 2011).
    Petitioners call attention to Section 404 of the CWA as not 
adequately protecting spring-run Chinook salmon on the WC, particularly 
with respect to nonpoint sources of pollution like logging and farming 
(WDOE 2016; NIFWC 2020). The Petitioners assert that, in many areas, 
the Environmental Protection Agency-approved CWA water quality 
standards are not being met. In addition, Total Maximum Daily Loads 
(TMDLs) have not yet been developed and approved for many water bodies 
where the salmon are found; as a result, nonpoint source pollution is 
driving water quality issues in those water bodies.
    Petitioners assert that FERC has provided inadequate protection for 
anadromous fish during its licensing, and relicensing processes. 
Petitioners use the Wynoochee Dam in the Chehalis River basin as an 
example. Wynoochee Dam was constructed in 1972 for flood control, 
irrigation, and industrial water storage; a powerhouse was added by 
Tacoma Power for hydroelectric energy in 1994. A FERC permit was issued 
for the dam in 1987, at which time there were no federally listed 
species. Tacoma Power operates a fish collection facility downstream, 
but the Petitioners assert that there are no requirements to ensure 
adequate downstream flows or water quality for the benefit of salmonids 
downstream of the dam.
    The Petitioners reference several Washington state laws, 
initiatives, plans, and programs. This includes Washington state laws 
for salmon recovery and fish passage, the Washington Forest Practices 
Act, and the Washington State Environmental Policy Act; the Salmon 
Recovery Funding Board and affiliated Salmon Recovery Funding Program; 
the Grays Harbor Basin Salmon Management Plan; the Chehalis Basin 
Strategy; the Washington Coast Sustainable Salmon Plan; the State 
Wildlife Action Plan; and the salmon monitoring program conducted by 
WDFW and tribal biologists. However, the Petitioners assert that, 
despite the extensive efforts of these state and tribal management 
entities to protect the fisheries-related resources of the Washington 
coastal river basins, the wild spring-run Chinook salmon populations in 
those basins are in decline and are threatened with extinction.
    We conclude that regulations are dynamic and are frequently 
modified over time. In general, since the listing of multiple species 
of salmon and steelhead along the West Coast in the 1990s, regulations 
have been revised to better protect these anadromous species. However, 
to the degree that habitat degradation can be an indicator of 
regulatory inadequacy, and given that we have found above that habitat 
degradation may be a threat to WC Chinook salmon, it stands to reason 
that regulatory mechanisms may be inadequate to protect WC Chinook 
salmon.

[[Page 85184]]

Other Natural or Manmade Factors Affecting Its Continued Existence

Climate Change and Ocean Conditions

    The Petitioners assert climate change is impacting the quantity and 
quality of habitat for WC Chinook salmon, especially spring-run 
populations, with the melting of glaciers on the Olympic Peninsula, 
changes in precipitation patterns, lower summer stream flows, higher 
water temperatures, and reduction in food due to changing ocean 
conditions. Citing the Intergovernmental Panel on Climate Change (IPCC) 
2021 report, Petitioners call out the last four decades of successive 
air temperature increases, and the projected rise in global 
temperatures. Petitioners also assert that climate change will 
profoundly affect the Pacific Northwest. With a focus on the Olympic 
Peninsula, impacts such as warming, sea level rise, erosion, and 
changes in stream flows will not be uncommon (Halofsky et al., 2011; 
Dalton et al., 2016). Petitioners state freshwater habitat changes due 
to climate change will adversely affect WC Chinook salmon, especially 
spring-run populations. Citing Halofsky et al., 2011, the Petitioners 
note it is uncertain whether salmon populations can adapt quickly 
enough to cope with the combined effects of anthropogenic climate 
change. Using a 2011 NMFS study as support, the Petitioners also assert 
that throughout the life cycle of salmon along the WC, the main 
predicted effects include warmer, drier summers, reduced snowpack, 
lower summer flows, higher summer stream temperatures, and increased 
winter floods. The Petitioners assert that climate change is altering 
offshore and nearshore habitat of the WC including warming sea surface 
temperatures (Mote and Salathe 2010; Miller et al., 2013; USFWS 2020), 
upwelling pattern changes (Miller et al., 2013), and increased 
acidification (Miller et al., 2013) leading to limited ocean 
productivity for salmon (Ford 2022).
    The Petitioners assert that ongoing threats of poor ocean 
conditions and climate change are likely to threaten the continued 
existence of WC Chinook salmon, including spring-run populations. As 
described in NMFS' 5-year reviews (Stout et al., 2012; NMFS 2016; NMFS 
2022) variability in ocean conditions in the Pacific Northwest is a 
concern for the persistence of WC salmon because it is uncertain how 
populations will fare in periods of poor ocean survival when freshwater 
and estuarine habitats are degraded. Petitioners also assert there are 
correlations between oceanic changes and salmon abundance in the 
Pacific Northwest, and concerns about how prolonged periods of poor 
marine survival due to unfavorable ocean conditions may impact the 
population abundance, productivity, spatial structure, and diversity of 
WC salmonids (Stout et al., 2010).

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude that 
substantial scientific and commercial information indicates that the 
petitioned action to list spring-run Chinook salmon on the WC as 
threatened or endangered under the ESA or, alternatively, list the WC 
Chinook salmon ESU (inclusive of all run types) as a threatened or 
endangered species under the ESA may be warranted. Therefore, in 
accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing 
regulations (50 CFR424.14(h)(2)), we will commence a status review of 
Chinook salmon on the WC. During our status review, we will include an 
ESU analysis to determine the appropriate ESU(s) and evaluate the ESU 
containing spring-run fish to determine if listing as a threatened or 
endangered species is warranted. As required by section 4(b)(3)(B) of 
the ESA, within 12 months of the receipt of the petition, we will make 
a finding as to whether listing WC Chinook salmon under the ESA is 
warranted.

Information Solicited

    To ensure that our status reviews are informed by the best 
available scientific and commercial data, we are opening a 60-day 
public comment period to solicit relevant new information since the 
1998 status review (Myers et al., 1998) or information not considered 
before on populations of Chinook salmon within the previously 
identified WC Chinook salmon ESU, which consists of Chinook salmon that 
spawn north of the Columbia River and west of the Elwha River. 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 Chinook salmon on the WC. Specifically, we request 
information regarding: (1) species abundance; (2) species productivity; 
(3) species distribution or population spatial structure; (4) patterns 
of phenotypic, genotypic, and life history diversity; (5) habitat 
conditions and associated limiting factors and threats; (6) ongoing or 
planned efforts to protect and restore the species and their habitats; 
(7) information on the adequacy of existing regulatory mechanisms, 
whether protections are being implemented, and whether they are proving 
effective in conserving the species; (8) data concerning the status and 
trends of identified limiting factors or threats; (9) information on 
targeted harvest (commercial and recreational) and bycatch of the 
species; (10) other new information, data, or corrections including, 
but not limited to, taxonomic or nomenclatural changes; and (11) 
information concerning the impacts of environmental variability and 
climate change on survival, recruitment, distribution, and/or 
extinction risk; and traditional ecological knowledge related to any of 
the previous 11 categories of information regarding this species.
    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.

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.).

    Dated: December 4, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-26852 Filed 12-6-23; 8:45 am]
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