Listing Endangered and Threatened Species: Notification of Finding on a Petition to List Pacific Eulachon as an Endangered or Threatened Species under the Endangered Species Act, 13185-13189 [E8-4957]

Download as PDF Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / Proposed Rules To address increased risk of a maximum allowable operating pressure based on higher stress levels in the following areas: (10) Conducting periodic assessments of integrity. rmajette on PROD1PC64 with PROPOSALS (11) Making repairs ............................................. (e) Is there any change in overpressure protection associated with operating at the alternative maximum allowable operating pressure? Notwithstanding the required capacity of pressure relieving and limiting stations otherwise required by § 192.201, if an operator establishes a maximum allowable operating pressure for a segment in accordance with paragraph (a) of this section, an operator must: (1) Provide overpressure protection that limits mainline pressure to a maximum of 104 percent of the maximum allowable operating pressure; and (2) Develop and follow a procedure for establishing and maintaining accurate set points for the supervisory control and data acquisition system. VerDate Aug<31>2005 15:18 Mar 11, 2008 Jkt 214001 13185 Take the following additional step: (ii) Except as provided in paragraph (d)(9)(iii) of this section, for an existing segment, do a baseline internal assessment using a geometry tool and a high resolution magnetic flux tool before, but within two years prior to, raising pressure as allowed under this section. (iii) If headers, mainline valve by-passes, compressor station piping, meter station piping, or other short portion of a segment cannot accommodate a geometry tool and a high resolution magnetic flux tool, use direct assessment to assess that portion. (i) Determine a frequency for subsequent periodic inspections as if the segments were covered by subpart O of this part. (ii) Conduct periodic internal inspections using a high resolution magnetic flux tool on the frequency determined under paragraph (d)(10)(i) of this section. (iii) Use direct assessment for periodic assessment of a portion of a segment to the extent permitted for a baseline assessment under paragraph (d)(9)(iii) of this section. (i) Do the following when evaluating an anomaly: (A) Use the most conservative calculation for determining remaining strength or an alternative validated calculation based on pipe diameter, wall thickness, grade, operating pressure, operating stress level, and operating temperature: and (B) Take into account the tolerances of the tools used for the inspection. (ii) Repair a defect immediately if any of the following apply: (A) The defect is a dent discovered during the baseline assessment for integrity under paragraph (d)(9) of this section and the defect meets the criteria for immediate repair in § 192.309(b). (B) The defect meets the criteria for immediate repair in § 192.933(d). (C) The maximum allowable operating pressure was based on a design factor of 0.67 under paragraph (a) of this section and the failure pressure is less than 1.25 times the maximum allowable operating pressure. (D) The maximum allowable operating pressure was based on a design factor of 0.56 under paragraph (a) of this section and the failure pressure is less than or equal to 1.4 times the maximum allowable operating pressure. (iii) If paragraph (d)(11)(ii) of this section does not require immediate repair, repair a defect within one year if any of the following apply: (A) The defect meets the criteria for repair within one year in § 192.933(d). (B) The maximum allowable operating pressure was based on a design factor of 0.80 under paragraph (a) of this section and the failure pressure is less than 1.25 times the maximum allowable operating pressure. (C) The maximum allowable operating pressure was based on a design factor of 0.67 under paragraph (a) of this section and the failure pressure is less than 1.50 times the maximum allowable operating pressure. (D) The maximum allowable operating pressure was based on a design factor of 0.56 under paragraph (a) of this section and the failure pressure is less than or equal to 1.80 times the maximum allowable operating pressure. (iv) Evaluate any defect not required to be repaired under paragraph (d)(11)(ii) or (iii) of this section to determine its growth rate, set the maximum interval for repair or re-inspection, and repair or re-inspect within that interval. Issued in Washington, DC, on March 4, 2008. Jeffrey D. Wiese, Associate Administrator for Pipeline Safety. [FR Doc. E8–4656 Filed 3–11–08; 8:45 am] DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 BILLING CODE 4910–60–P PO 00000 [Docket No. 080229343–8368–01] RIN 0648–XF87 Listing Endangered and Threatened Species: Notification of Finding on a Petition to List Pacific Eulachon as an Endangered or Threatened Species under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notification of finding; request for information, and initiation of status review. AGENCY: Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\12MRP1.SGM 12MRP1 rmajette on PROD1PC64 with PROPOSALS 13186 Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / Proposed Rules SUMMARY: On November 8, 2007, we, NMFS, received a petition to list populations of Pacific eulachon (Thaleichthys pacificus) in Washington, Oregon, and California as a threatened or endangered species under the Endangered Species Act (ESA). We find that the petition presents substantial scientific and commercial information indicating that the petitioned action may be warranted. Accordingly, we will initiate a status review of the species. To ensure that the status review is complete and based upon the best available scientific and commercial information, we solicit information regarding the population structure and status of Pacific eulachon throughout their range in Alaska, British Columbia, Washington, Oregon, and California. DATES: Information and comments on the subject action must be received by May 12, 2008. ADDRESSES: You may submit data, information, comments, identified by the code 0648–XF87, addressed to: Chief, NMFS, Protected Resources Division, by any of the following methods: • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal at http:// www.regulations.gov • Facsimile (fax): 503–230–5441 • Mail: 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232. • Hand delivery: You may handdeliver written comments to our office during normal business hours at the street address given above. Instructions: All comments received are a part of the public record and will generally be posted to http:// www.regulations.gov without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word or Excel, Corel WordPerfect, or Adobe pdf file formats only. FOR FURTHER INFORMATION CONTACT: For further information regarding this notice contact Garth Griffin, NMFS, Northwest Region, (503) 231–2005; John Clancy, Southwest Region, (707) 825–5175; or Dwayne Meadows, NMFS, Office of Protected Resources, (301) 713–1401. SUPPLEMENTARY INFORMATION: Background On November 08, 2007, NMFS received a petition from the Cowlitz VerDate Aug<31>2005 15:18 Mar 11, 2008 Jkt 214001 Indian Tribe to list southern eulachon (populations in Washington, Oregon, and California) as a threatened or endangered species under the ESA. Copies of the petition are available from NMFS via the Internet (http:// www.nwr.noaa.gov/Other-MarineSpecies/index.cfm) or by request (See ADDRESSES section, above). ESA Statutory, Regulatory, and Policy Provisions Section 4(b)(3) of the ESA contains provisions concerning petitions from interested persons requesting the Secretary of Commerce (Secretary) to list species under the Endangered Species Act (ESA) (16 U.S.C. 1533(b)(3)(A)). Section 4(b)(3)(A) requires that, to the maximum extent practicable, within 90 days after receiving such a petition, the Secretary make a finding whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Joint NOAA-U.S. Fish and Wildlife Service (USFWS) ESA implementing regulations define Asubstantial information@ as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted (50 CFR 424.14(b)(1)). In evaluating a petitioned action, the Secretary considers whether the petition contains a detailed narrative justification for the recommended measure, including: past and present numbers and distribution of the species involved, and any threats faced by the species (50 CFR 424.14(b)(2)(ii)); and information regarding the status of the species throughout all or a significant portion of its range (50 CFR 424.14(b)(2)(iii)). In addition to the information presented in a petition, we review other data and publications readily available to our scientists (i.e., currently within agency files). When it is found that substantial information is presented in the petition, we are required to promptly commence a review of the status of the species concerned. Within 1 year of receipt of the petition, we shall issue one of the following findings: (1) the petitioned action is not warranted; (2) the petitioned action is warranted, in which case we must promptly publish a propped listing determination; or (3) the petitioned action is warranted but that a proposed listing is precluded by pending rulemaking for other species. Under the ESA, a listing determination may address a species, subspecies, or a distinct population segment (DPS) of any vertebrate species which interbreeds when mature (16 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 U.S.C. 1532(16)). A joint NOAA-USFWS policy clarifies the agencies’ interpretation of the phrase ‘‘distinct population segment’’ of any species of vertebrate fish or wildlife (ESA section 3(16)) for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722, February 7, 1996) (joint DPS policy). The joint DPS policy established two criteria that must be met for a population or group of populations to be considered a DPS: (1) the population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the population segment must be significant to the remainder of the species (or subspecies) to which it belongs. A population segment may be considered discrete if it satisfies either one of the following conditions: (1) it is markedly separated from other populations of the same biological taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries across which differences exist in exploitation control, habitat management, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. If a population is determined to be discrete, the agency must then consider whether it is significant to the taxon to which it belongs. Considerations in evaluating the significance of a discrete population include: (1) persistence of the discrete population in an unusual or unique ecological setting for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the taxon’s range; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere outside its historical geographic range; or (4) evidence that the discrete population has marked genetic differences from other populations of the species. A species, subspecies, or DPS is ‘‘endangered’’ if it is in danger of extinction throughout all or a significant portion of its range, or ‘‘threatened’’ if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA Sections 3(6) and 3(20), respectively). Under section 4(a)(1) of the ESA, a species can be determined to be threatened or endangered based on any of the following factors: (1) the present or threatened destruction, modification, or curtailment of a species’ habitat or E:\FR\FM\12MRP1.SGM 12MRP1 Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / Proposed Rules rmajette on PROD1PC64 with PROPOSALS range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting the species’ continuing existence. Listing determinations are based solely on the best available scientific and commercial data after taking into account any efforts being made by any state or foreign nation to protect the species (16 U.S.C. 1533(b)(1)(A)). Distribution and Life History of Eulachon Eulachon (commonly called smelt, candlefish, or hooligan) are endemic to the eastern Pacific Ocean ranging from northern California to southwest Alaska and into the southeastern Bering Sea. Eulachon typically spend 3–5 years in saltwater before returning to freshwater to spawn from late winter through mid spring. Spawning grounds are typically in the lower reaches of larger snowmeltfed rivers (Hay and McCarter, 2000). In the portion of the species’ range that lies south of the U.S. Canada border, most eulachon production originates in the Columbia River Basin. Other river basins in the U.S. where eulachon have been documented include: the Sacramento River, Russian River, Humboldt Bay and several nearby smaller coastal rivers (e.g., Mad River), and the Klamath River in California; the Rogue River and Umpqua Rivers in Oregon; and infrequently in coastal rivers and tributaries to Puget Sound in Washington (Emmett et al., 1991; Musick et al., 2000). Within the Columbia River Basin, the major and most consistent spawning runs occur in the mainstem of the Columbia River (from just upstream of the estuary, river mile (RM) 25, to immediately downstream of Bonneville Dam, RM 146) and in the Cowlitz River. Periodic spawning also occurs in the Grays, Skamokawa, Elochoman, Kalama, Lewis, and Sandy rivers (tributaries to the Columbia River)(Emmett et al., 1991; Musick et al., 2000). Throughout the species’ range, spawning occurs consistently in the Klamath River, Columbia and Cowlitz Rivers, and the Fraser and Nass rivers (British Columbia), and may occur rarely or intermittently in other coastal river systems from California to Alaska (Wilson et al., 2004). Spawning occurs in the lower sections of rivers at temperatures from 4 to 10 degrees C (Washington, 2001). Spawning occurs over sand or coarse gravel substrates. Eggs are fertilized in the water column, sink, and adhere to the river bottom typically in areas of VerDate Aug<31>2005 15:18 Mar 11, 2008 Jkt 214001 13187 gravel and coarse sand. Most eulachon adults die after spawning. Eulachon eggs hatch in 20–40 days. The larvae are carried downstream and are dispersed by estuarine and ocean currents shortly after hatching. Juvenile eulachon move from shallow nearshore areas to mid-depth midshore areas. Typically eulachon spend 3–5 years in saltwater before returning to freshwater to spawn. presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Specifically, we evaluated whether: (1) the species may warrant delineation into one or more DPSs; and (2) the species, or a putative DPS, may be in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. 1999 Eulachon Petition In 1999, Mr. Sam Wright petitioned us under the ESA to add Columbia River eulachon to the list of federally threatened and endangered species. Mr. Wright expressed concern regarding marked declines in eulachon populations in the Columbia River system, and concluded that Columbia River eulachon populations were at risk of extinction and had no reasonable expectation of recovering or being replenished by nearby populations. After reviewing the petition, as well as other information readily available to us, we concluded that the petition provided insufficient information regarding the distinctness of eulachon populations in the Columbia River relative to the other populations in the species’ range. In November 1999 we issued our finding that the petition did not present substantial scientific information indicating the petitioned action may be warranted (64 FR 66601; November 29, 1999), and, therefore, no status review was conducted. We acknowledged there was cause for concern over decline in the eulachon catch in the Columbia River to an historical low. We noted, however, that the species’ high fecundity and short life span contribute to highly variable and possibly cyclic run size, and it was therefore unclear whether the low catch levels at the time of the petition reflected natural variability in response to variable ocean conditions or an actual decline in stock status. Although we decided that a status review was not warranted, we encouraged state and tribal co-managers to improve their eulachon management and research efforts. In particular, we underscored the need to evaluate whether current harvest strategies adequately protect the species and to initiate more accurate eulachon abundance and life-history surveys. Information Regarding the DPS Structure of Eulachon The Cowlitz Indian Tribe’s petition seeks delineation of a southern eulachon DPS extending from the U.S.Canada border south to include populations in Washington, Oregon, and California. The petitioner concludes that the available genetic, meristic, and lifehistory information is inconclusive regarding the discreteness of eulachon populations. However, the petitioner argues that under the DPS policy eulachon populations in Washington, Oregon, and California are collectively ‘‘discrete’’ from more northerly populations because they are delimited by an international governmental boundary (i.e., the U.S.-Canada border between Washington and British Columbia) across which there is a significant difference in exploitation control, habitat management, or conservation status. The petitioner notes that the U.S. and Canada differ in their regulatory control of commercial, recreational and tribal eulachon harvest, and also differ in their management of eulachon habitat. The petitioner concluded that there is no assurance that the U.S. and Canada will coordinate management and regulatory efforts sufficiently to conserve eulachon and their habitat, and thus the DPS should be delineated at the border between Washington and British Columbia. The petitioner argues that the southern eulachon population segment is also ‘‘significant’’ under the DPS policy because the loss of the discrete population segment would cause a significant gap in the taxon’s range. The petitioner notes that eulachon have largely disappeared in rivers throughout the southern portion of their range, and that eulachon in the Columbia River probably represent the southernmost extant population for the species. The loss of the Columbia River eulachon population and any dependent coastal spawning populations could represent the loss of the species throughout its range in the U.S., as well as the loss of a substantial proportion of its historical range. Although the petitioner felt that the available information is inconclusive, it Analysis of the Cowlitz Indian Tribe’s Petition We reviewed the petition from the Cowlitz Indian Tribe, as well as other information readily available to our scientists (i.e., currently within our files), to determine if the petition PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\12MRP1.SGM 12MRP1 13188 Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / Proposed Rules rmajette on PROD1PC64 with PROPOSALS was noted that eulachon may be composed of several smaller DPSs differentiable on the basis of differences in run timing, meristic, and genetic characteristics. Initial mitochondrial DNA genetic information (McLean et al., 1999) and elemental analysis of eulachon otoliths (Carolsfeld and Hay, 1998) suggested that eulachon did not exhibit genetic discreteness and represented a panmictic population throughout the species’ range. Other biological data including the number of vertebrae, size at maturity, fecundity, river-specific spawning times, and population dynamics indicate that there is substantial local stock structure (Hart and McHugh, 1944; Hay and McCarter, 2000). These latter observations are consistent with the hypothesis that there is local adaptation and genetic differentiation among populations. Recent microsatellite genetic work (Beacham et al., 2005) appears to confirm the existence of significant differentiation among populations. Although the Fraser River, Columbia River mainstem, and the Cowlitz River spawning populations are genetically distinct from each other, they are more closely related to one another than to the more northerly British Columbia populations (Beacham et al., 2005). After reviewing the information presented in the petition as well as other information readily available to us (i.e., currently within NMFS files), we conclude that the Cowlitz Indian Tribe’s petition presents substantial scientific information indicating that eulachon may warrant delineation into one or more DPSs. Information Regarding Eulachon Status and Threats Although eulachon abundance exhibits considerable year-to-year variability, nearly all spawning runs from California to southeastern Alaska have declined in the past 20 years, especially since the mid 1990s (Hay and McCarter, 2000). Historically, the Columbia River has exhibited the largest returns of any spawning population throughout the species’ range. The petitioner notes that from 1938 to 1992, the median commercial catch of eulachon in the Columbia River was approximately 1.9 million pounds (861,826 kg). From 1993 to 2006, the median catch had declined to approximately 43,000 pounds, representing a 97.7 percent reduction in catch from the prior period. Although there was an increasing trend in Columbia River eulachon catch from 2000–2003, recent catches are extremely low. The preliminary catch data for the 2008 Columbia River eulachon run VerDate Aug<31>2005 15:18 Mar 11, 2008 Jkt 214001 suggest it may be the second lowest on record (i.e., since 1938) (WDFW, 2008). The petitioner also presents catch per unit effort and larval survey data (WDFW and ODFW, 2006) for the Columbia River and tributaries in Oregon and Washington that similarly reflect the depressed status of Columbia River eulachon during the 1990s, a relative increase during 2000 to 2004, and a decline back to low levels in recent years. The petitioner also notes that eulachon returns in the Fraser River and other British Columbia rivers similarly suffered severe declines in the mid– 1990s and, despite increased returns during 2001 to 2003, presently remain at very low levels (DFO, 2006). Egg and larval surveys conducted in the Fraser River since 1995 also demonstrate that, despite the implementation of fishing restrictions in British Columbia, the stock has not recovered from its mid– 1990s collapse and remains at a very low level. An offshore index of Fraser and Columbia River eulachon biomass, calculated from eulachon bycatch in the shrimp trawl fishery off the west coast of Vancouver Island, illustrates highly variable biomass over the time series since 1973, but also reflects stock declines in the mid–1990s and in recent years (DFO, 2006). With respect to eulachon populations further south in the species’ range, the petitioner notes that populations in the Klamath River, Mad River, Redwood Creek, and Sacramento River are likely extirpated or nearly so. The petitioner describes a number of threats facing eulachon range-wide, and facing populations in U.S. rivers in particular. The petitioner organizes this information according to the five factors described in section 4(a)(1) of the ESA: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The following paragraph provides a brief summary of the information on threats presented in the petition. The petitioner expresses concern that habitat loss and degradation threaten eulachon, particularly in the Columbia River basin. Hydroelctric dams block access to historical eulachon spawning grounds, and affect the quality of spawning substrates through flow management, altered delivery of coarse sediments, and siltation. The petitioner expressed strong concern regarding the PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 siltation of spawning substrates in the Cowlitz River due to altered flow management and the accumulation of fine sediments from the Toutle River. The petitioner believes that efforts to retain and stabilize fine sediments generated by the 1980 eruption of Mount St. Helens are inadequate. The petitioner notes that the release of fine sediments from behind a U.S. Army Corps of Engineers sediment retention structure on the Toutle River has been negatively correlated with Cowlitz River eulachon returns 3 to 4 years later. The petitioner also expressed concern that dredging activities in the Cowlitz and Columbia rivers during the eulachon spawning run may entrain and kill fish, or otherwise result in decreased spawning success. The petitioner also noted that eulachon have been shown to carry high levels of chemical pollutants (US EPA, 2002), and although it has not been demonstrated that high contaminant loads in eulachon result in increased mortality or reduced reproductive success, such effects have been shown in other fish species (Kime, 1995). The petitioner expressed concern that depressed eulachon populations are particularly susceptible to overharvest in fisheries where they are targeted or taken as bycatch. The petitioner concluded that no evidence suggests that disease currently poses a threat to eulachon, but noted information presented in the 1999 petition to list eulachon that suggested that predation by pinnipeds may be substantial. The petitioner acknowledges that eulachon harvest has been curtailed significantly in response to population declines, and that were it not for continued low levels of harvest there would be little or no status information available for some populations. However, the petitioner concludes that existing regulatory mechanisms have proven inadequate in recovering eulachon stocks, and that directed harvest and bycatch may be important factors limiting the recovery of impacted stocks. The petitioner underscores the need for further fisheryindependent monitoring and research. Finally, the petitioner concludes that global climate change is one of the greatest threats facing eulachon, particularly in the southern portion of its range where ocean warming trends may be the most pronounced. The petitioner felt that the risks facing southerly eulachon populations in Washington, Oregon, and California will be exacerbated by such a deterioration of marine conditions. These southerly populations, already exhibiting dramatic declines and impacted by E:\FR\FM\12MRP1.SGM 12MRP1 Federal Register / Vol. 73, No. 49 / Wednesday, March 12, 2008 / Proposed Rules other threats (e.g., habitat loss and degradation), might be at risk of extirpation if unfavorable marine conditions predominated in the future. The petitioner noted that the Columbia River served as the single refuge for the species during the Wisconsinan glacial period (between 10,000 and 15,000 years before present), and that the loss of the Columbia River and other southerly eulachon populations would imperil the persistence of the taxon as a whole. Petition Finding After reviewing the information contained in the petition and other information readily available in our files, we determine that the petition presents substantial scientific and commercial information indicating the petitioned action may be warranted. In accordance with section 4(b)(3)(B) of the ESA and NMFS’ implementing regulations (50 CFR 424.14(b)(2)), we will commence a review of the status of the species concerned and make a determination within 12 months of receiving the petition (i.e., by November 8, 2008) whether the petitioned action is warranted. Information Solicited DPS Structure and Extinction Risk rmajette on PROD1PC64 with PROPOSALS To ensure that the updated status review is complete and based on the best available and most recent scientific and commercial data, we solicit VerDate Aug<31>2005 15:18 Mar 11, 2008 Jkt 214001 information, and comments (see DATES and ADDRESSES) concerning the status of eulachon. We solicit pertinent information such as: (1) biological or other relevant data pertinent to determining the DPS structure of eulachon (e.g., age structure, genetics, migratory patterns, morphology, physiology); (2) the abundance and biomass, as well as the spatial and temporal distribution of eulachon; (3) trends in abundance and distribution; (4) natural and human-influenced factors that cause variability in survival, distribution, and abundance; and (5) current or planned activities and their possible impact on eulachon (e.g., harvest measures and habitat actions). Efforts Being Made to Protect Eulachon Section 4(b)(1)(A) of the ESA requires the Secretary to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of a species and after taking into account efforts being made to protect the species. Therefore, in making its listing determinations, we first assess the status of the species and identify factors that have led to the decline. We then assesses conservation measures to determine whether they ameliorate a species’ extinction risk (50 CFR 424.11(f)). In judging the efficacy of conservation efforts, NMFS considers the following: the substantive, protective, and conservation elements of such efforts; the degree of certainty that PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 13189 such efforts will reliably be implemented and the degree of certainty that such efforts will be effective in furthering the conservation of the species (68 FR 15100, March 28, 2003); and the presence of monitoring provisions that track the effectiveness of recovery efforts, and that inform iterative refinements to management as information is accrued. In some cases, conservation efforts may be relatively new or may not have had sufficient time to demonstrate their biological benefit. In such cases, provisions of adequate monitoring and funding for conservation efforts are essential to ensure that the intended conservation benefits are realized. We also encourage all parties to submit information on ongoing efforts to protect and conserve eulachon, as well as information on recently implemented or planned activities and their likely impact(s). References Copies of the petition and related materials are available on the Internet at http://www.nwr.noaa.gov/Other-MarineSpecies/index.cfm, or upon request (see ADDRESSES section above). Authority: 16 U.S.C. 1531 et seq. Dated: March 6, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8–4957 Filed 3–11–08; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\12MRP1.SGM 12MRP1

Agencies

[Federal Register Volume 73, Number 49 (Wednesday, March 12, 2008)]
[Proposed Rules]
[Pages 13185-13189]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4957]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 080229343-8368-01]
RIN 0648-XF87


Listing Endangered and Threatened Species: Notification of 
Finding on a Petition to List Pacific Eulachon as an Endangered or 
Threatened Species under the Endangered Species Act

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

ACTION: Notification of finding; request for information, and 
initiation of status review.

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[[Page 13186]]

SUMMARY:  On November 8, 2007, we, NMFS, received a petition to list 
populations of Pacific eulachon (Thaleichthys pacificus) in Washington, 
Oregon, and California as a threatened or endangered species under the 
Endangered Species Act (ESA). We find that the petition presents 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted. Accordingly, we will initiate a 
status review of the species. To ensure that the status review is 
complete and based upon the best available scientific and commercial 
information, we solicit information regarding the population structure 
and status of Pacific eulachon throughout their range in Alaska, 
British Columbia, Washington, Oregon, and California.

DATES: Information and comments on the subject action must be received 
by May 12, 2008.

ADDRESSES:  You may submit data, information, comments, identified by 
the code 0648-XF87, addressed to: Chief, NMFS, Protected Resources 
Division, by any of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal at http://www.regulations.gov
     Facsimile (fax): 503-230-5441
     Mail: 1201 NE Lloyd Boulevard, Suite 1100, Portland, 
Oregon, 97232.
     Hand delivery: You may hand-deliver written comments to 
our office during normal business hours at the street address given 
above.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personally identifiable information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, Corel WordPerfect, or Adobe pdf file 
formats only.

FOR FURTHER INFORMATION CONTACT:  For further information regarding 
this notice contact Garth Griffin, NMFS, Northwest Region, (503) 231-
2005; John Clancy, Southwest Region, (707) 825-5175; or Dwayne Meadows, 
NMFS, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On November 08, 2007, NMFS received a petition from the Cowlitz 
Indian Tribe to list southern eulachon (populations in Washington, 
Oregon, and California) as a threatened or endangered species under the 
ESA. Copies of the petition are available from NMFS via the Internet 
(http://www.nwr.noaa.gov/Other-Marine-Species/index.cfm) or by request 
(See ADDRESSES section, above).

ESA Statutory, Regulatory, and Policy Provisions

    Section 4(b)(3) of the ESA contains provisions concerning petitions 
from interested persons requesting the Secretary of Commerce 
(Secretary) to list species under the Endangered Species Act (ESA) (16 
U.S.C. 1533(b)(3)(A)). Section 4(b)(3)(A) requires that, to the maximum 
extent practicable, within 90 days after receiving such a petition, the 
Secretary make a finding whether the petition presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. Joint NOAA-U.S. Fish and Wildlife Service 
(USFWS) ESA implementing regulations define Asubstantial information@ 
as the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted (50 
CFR 424.14(b)(1)). In evaluating a petitioned action, the Secretary 
considers whether the petition contains a detailed narrative 
justification for the recommended measure, including: past and present 
numbers and distribution of the species involved, and any threats faced 
by the species (50 CFR 424.14(b)(2)(ii)); and information regarding the 
status of the species throughout all or a significant portion of its 
range (50 CFR 424.14(b)(2)(iii)). In addition to the information 
presented in a petition, we review other data and publications readily 
available to our scientists (i.e., currently within agency files). When 
it is found that substantial information is presented in the petition, 
we are required to promptly commence a review of the status of the 
species concerned. Within 1 year of receipt of the petition, we shall 
issue one of the following findings: (1) the petitioned action is not 
warranted; (2) the petitioned action is warranted, in which case we 
must promptly publish a propped listing determination; or (3) the 
petitioned action is warranted but that a proposed listing is precluded 
by pending rulemaking for other species.
    Under the ESA, a listing determination may address a species, 
subspecies, or a distinct population segment (DPS) of any vertebrate 
species which interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NOAA-USFWS policy clarifies the agencies' interpretation of the phrase 
``distinct population segment'' of any species of vertebrate fish or 
wildlife (ESA section 3(16)) for the purposes of listing, delisting, 
and reclassifying a species under the ESA (61 FR 4722, February 7, 
1996) (joint DPS policy). The joint DPS policy established two criteria 
that must be met for a population or group of populations to be 
considered a DPS: (1) the population segment must be discrete in 
relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the population segment must be significant to the 
remainder of the species (or subspecies) to which it belongs. A 
population segment may be considered discrete if it satisfies either 
one of the following conditions: (1) it is markedly separated from 
other populations of the same biological taxon as a consequence of 
physical, physiological, ecological, or behavioral factors 
(quantitative measures of genetic or morphological discontinuity may 
provide evidence of this separation); or (2) it is delimited by 
international governmental boundaries across which differences exist in 
exploitation control, habitat management, conservation status, or 
regulatory mechanisms exist that are significant in light of section 
4(a)(1)(D) of the ESA. If a population is determined to be discrete, 
the agency must then consider whether it is significant to the taxon to 
which it belongs. Considerations in evaluating the significance of a 
discrete population include: (1) persistence of the discrete population 
in an unusual or unique ecological setting for the taxon; (2) evidence 
that the loss of the discrete population segment would result in a 
significant gap in the taxon's range; (3) evidence that the discrete 
population segment represents the only surviving natural occurrence of 
a taxon that may be more abundant elsewhere outside its historical 
geographic range; or (4) evidence that the discrete population has 
marked genetic differences from other populations of the species.
    A species, subspecies, or DPS is ``endangered'' if it is in danger 
of extinction throughout all or a significant portion of its range, or 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA Sections 3(6) and 3(20), respectively). Under section 4(a)(1) of 
the ESA, a species can be determined to be threatened or endangered 
based on any of the following factors: (1) the present or threatened 
destruction, modification, or curtailment of a species' habitat or

[[Page 13187]]

range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting the species' continuing existence. Listing determinations are 
based solely on the best available scientific and commercial data after 
taking into account any efforts being made by any state or foreign 
nation to protect the species (16 U.S.C. 1533(b)(1)(A)).

Distribution and Life History of Eulachon

    Eulachon (commonly called smelt, candlefish, or hooligan) are 
endemic to the eastern Pacific Ocean ranging from northern California 
to southwest Alaska and into the southeastern Bering Sea. Eulachon 
typically spend 3-5 years in saltwater before returning to freshwater 
to spawn from late winter through mid spring. Spawning grounds are 
typically in the lower reaches of larger snowmelt-fed rivers (Hay and 
McCarter, 2000). In the portion of the species' range that lies south 
of the U.S. Canada border, most eulachon production originates in the 
Columbia River Basin. Other river basins in the U.S. where eulachon 
have been documented include: the Sacramento River, Russian River, 
Humboldt Bay and several nearby smaller coastal rivers (e.g., Mad 
River), and the Klamath River in California; the Rogue River and Umpqua 
Rivers in Oregon; and infrequently in coastal rivers and tributaries to 
Puget Sound in Washington (Emmett et al., 1991; Musick et al., 2000). 
Within the Columbia River Basin, the major and most consistent spawning 
runs occur in the mainstem of the Columbia River (from just upstream of 
the estuary, river mile (RM) 25, to immediately downstream of 
Bonneville Dam, RM 146) and in the Cowlitz River. Periodic spawning 
also occurs in the Grays, Skamokawa, Elochoman, Kalama, Lewis, and 
Sandy rivers (tributaries to the Columbia River)(Emmett et al., 1991; 
Musick et al., 2000). Throughout the species' range, spawning occurs 
consistently in the Klamath River, Columbia and Cowlitz Rivers, and the 
Fraser and Nass rivers (British Columbia), and may occur rarely or 
intermittently in other coastal river systems from California to Alaska 
(Wilson et al., 2004).
    Spawning occurs in the lower sections of rivers at temperatures 
from 4 to 10 degrees C (Washington, 2001). Spawning occurs over sand or 
coarse gravel substrates. Eggs are fertilized in the water column, 
sink, and adhere to the river bottom typically in areas of gravel and 
coarse sand. Most eulachon adults die after spawning.
    Eulachon eggs hatch in 20-40 days. The larvae are carried 
downstream and are dispersed by estuarine and ocean currents shortly 
after hatching. Juvenile eulachon move from shallow nearshore areas to 
mid-depth midshore areas. Typically eulachon spend 3-5 years in 
saltwater before returning to freshwater to spawn.

1999 Eulachon Petition

    In 1999, Mr. Sam Wright petitioned us under the ESA to add Columbia 
River eulachon to the list of federally threatened and endangered 
species. Mr. Wright expressed concern regarding marked declines in 
eulachon populations in the Columbia River system, and concluded that 
Columbia River eulachon populations were at risk of extinction and had 
no reasonable expectation of recovering or being replenished by nearby 
populations. After reviewing the petition, as well as other information 
readily available to us, we concluded that the petition provided 
insufficient information regarding the distinctness of eulachon 
populations in the Columbia River relative to the other populations in 
the species' range. In November 1999 we issued our finding that the 
petition did not present substantial scientific information indicating 
the petitioned action may be warranted (64 FR 66601; November 29, 
1999), and, therefore, no status review was conducted. We acknowledged 
there was cause for concern over decline in the eulachon catch in the 
Columbia River to an historical low. We noted, however, that the 
species' high fecundity and short life span contribute to highly 
variable and possibly cyclic run size, and it was therefore unclear 
whether the low catch levels at the time of the petition reflected 
natural variability in response to variable ocean conditions or an 
actual decline in stock status. Although we decided that a status 
review was not warranted, we encouraged state and tribal co-managers to 
improve their eulachon management and research efforts. In particular, 
we underscored the need to evaluate whether current harvest strategies 
adequately protect the species and to initiate more accurate eulachon 
abundance and life-history surveys.
Analysis of the Cowlitz Indian Tribe's Petition
    We reviewed the petition from the Cowlitz Indian Tribe, as well as 
other information readily available to our scientists (i.e., currently 
within our files), to determine if the petition presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. Specifically, we evaluated whether: (1) the 
species may warrant delineation into one or more DPSs; and (2) the 
species, or a putative DPS, may be in danger of extinction or likely to 
become so within the foreseeable future throughout all or a significant 
portion of its range.

Information Regarding the DPS Structure of Eulachon

    The Cowlitz Indian Tribe's petition seeks delineation of a southern 
eulachon DPS extending from the U.S.-Canada border south to include 
populations in Washington, Oregon, and California. The petitioner 
concludes that the available genetic, meristic, and life-history 
information is inconclusive regarding the discreteness of eulachon 
populations. However, the petitioner argues that under the DPS policy 
eulachon populations in Washington, Oregon, and California are 
collectively ``discrete'' from more northerly populations because they 
are delimited by an international governmental boundary (i.e., the 
U.S.-Canada border between Washington and British Columbia) across 
which there is a significant difference in exploitation control, 
habitat management, or conservation status. The petitioner notes that 
the U.S. and Canada differ in their regulatory control of commercial, 
recreational and tribal eulachon harvest, and also differ in their 
management of eulachon habitat. The petitioner concluded that there is 
no assurance that the U.S. and Canada will coordinate management and 
regulatory efforts sufficiently to conserve eulachon and their habitat, 
and thus the DPS should be delineated at the border between Washington 
and British Columbia. The petitioner argues that the southern eulachon 
population segment is also ``significant'' under the DPS policy because 
the loss of the discrete population segment would cause a significant 
gap in the taxon's range. The petitioner notes that eulachon have 
largely disappeared in rivers throughout the southern portion of their 
range, and that eulachon in the Columbia River probably represent the 
southernmost extant population for the species. The loss of the 
Columbia River eulachon population and any dependent coastal spawning 
populations could represent the loss of the species throughout its 
range in the U.S., as well as the loss of a substantial proportion of 
its historical range.
    Although the petitioner felt that the available information is 
inconclusive, it

[[Page 13188]]

was noted that eulachon may be composed of several smaller DPSs 
differentiable on the basis of differences in run timing, meristic, and 
genetic characteristics. Initial mitochondrial DNA genetic information 
(McLean et al., 1999) and elemental analysis of eulachon otoliths 
(Carolsfeld and Hay, 1998) suggested that eulachon did not exhibit 
genetic discreteness and represented a panmictic population throughout 
the species' range. Other biological data including the number of 
vertebrae, size at maturity, fecundity, river-specific spawning times, 
and population dynamics indicate that there is substantial local stock 
structure (Hart and McHugh, 1944; Hay and McCarter, 2000). These latter 
observations are consistent with the hypothesis that there is local 
adaptation and genetic differentiation among populations. Recent 
microsatellite genetic work (Beacham et al., 2005) appears to confirm 
the existence of significant differentiation among populations. 
Although the Fraser River, Columbia River mainstem, and the Cowlitz 
River spawning populations are genetically distinct from each other, 
they are more closely related to one another than to the more northerly 
British Columbia populations (Beacham et al., 2005).
    After reviewing the information presented in the petition as well 
as other information readily available to us (i.e., currently within 
NMFS files), we conclude that the Cowlitz Indian Tribe's petition 
presents substantial scientific information indicating that eulachon 
may warrant delineation into one or more DPSs.

Information Regarding Eulachon Status and Threats

    Although eulachon abundance exhibits considerable year-to-year 
variability, nearly all spawning runs from California to southeastern 
Alaska have declined in the past 20 years, especially since the mid 
1990s (Hay and McCarter, 2000). Historically, the Columbia River has 
exhibited the largest returns of any spawning population throughout the 
species' range. The petitioner notes that from 1938 to 1992, the median 
commercial catch of eulachon in the Columbia River was approximately 
1.9 million pounds (861,826 kg). From 1993 to 2006, the median catch 
had declined to approximately 43,000 pounds, representing a 97.7 
percent reduction in catch from the prior period. Although there was an 
increasing trend in Columbia River eulachon catch from 2000-2003, 
recent catches are extremely low. The preliminary catch data for the 
2008 Columbia River eulachon run suggest it may be the second lowest on 
record (i.e., since 1938) (WDFW, 2008). The petitioner also presents 
catch per unit effort and larval survey data (WDFW and ODFW, 2006) for 
the Columbia River and tributaries in Oregon and Washington that 
similarly reflect the depressed status of Columbia River eulachon 
during the 1990s, a relative increase during 2000 to 2004, and a 
decline back to low levels in recent years.
    The petitioner also notes that eulachon returns in the Fraser River 
and other British Columbia rivers similarly suffered severe declines in 
the mid-1990s and, despite increased returns during 2001 to 2003, 
presently remain at very low levels (DFO, 2006). Egg and larval surveys 
conducted in the Fraser River since 1995 also demonstrate that, despite 
the implementation of fishing restrictions in British Columbia, the 
stock has not recovered from its mid-1990s collapse and remains at a 
very low level. An offshore index of Fraser and Columbia River eulachon 
biomass, calculated from eulachon bycatch in the shrimp trawl fishery 
off the west coast of Vancouver Island, illustrates highly variable 
biomass over the time series since 1973, but also reflects stock 
declines in the mid-1990s and in recent years (DFO, 2006). With respect 
to eulachon populations further south in the species' range, the 
petitioner notes that populations in the Klamath River, Mad River, 
Redwood Creek, and Sacramento River are likely extirpated or nearly so.
    The petitioner describes a number of threats facing eulachon range-
wide, and facing populations in U.S. rivers in particular. The 
petitioner organizes this information according to the five factors 
described in section 4(a)(1) of the ESA: (A) the present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. The following paragraph provides a 
brief summary of the information on threats presented in the petition.
    The petitioner expresses concern that habitat loss and degradation 
threaten eulachon, particularly in the Columbia River basin. 
Hydroelctric dams block access to historical eulachon spawning grounds, 
and affect the quality of spawning substrates through flow management, 
altered delivery of coarse sediments, and siltation. The petitioner 
expressed strong concern regarding the siltation of spawning substrates 
in the Cowlitz River due to altered flow management and the 
accumulation of fine sediments from the Toutle River. The petitioner 
believes that efforts to retain and stabilize fine sediments generated 
by the 1980 eruption of Mount St. Helens are inadequate. The petitioner 
notes that the release of fine sediments from behind a U.S. Army Corps 
of Engineers sediment retention structure on the Toutle River has been 
negatively correlated with Cowlitz River eulachon returns 3 to 4 years 
later. The petitioner also expressed concern that dredging activities 
in the Cowlitz and Columbia rivers during the eulachon spawning run may 
entrain and kill fish, or otherwise result in decreased spawning 
success. The petitioner also noted that eulachon have been shown to 
carry high levels of chemical pollutants (US EPA, 2002), and although 
it has not been demonstrated that high contaminant loads in eulachon 
result in increased mortality or reduced reproductive success, such 
effects have been shown in other fish species (Kime, 1995).
    The petitioner expressed concern that depressed eulachon 
populations are particularly susceptible to overharvest in fisheries 
where they are targeted or taken as bycatch. The petitioner concluded 
that no evidence suggests that disease currently poses a threat to 
eulachon, but noted information presented in the 1999 petition to list 
eulachon that suggested that predation by pinnipeds may be substantial. 
The petitioner acknowledges that eulachon harvest has been curtailed 
significantly in response to population declines, and that were it not 
for continued low levels of harvest there would be little or no status 
information available for some populations. However, the petitioner 
concludes that existing regulatory mechanisms have proven inadequate in 
recovering eulachon stocks, and that directed harvest and bycatch may 
be important factors limiting the recovery of impacted stocks. The 
petitioner underscores the need for further fishery-independent 
monitoring and research. Finally, the petitioner concludes that global 
climate change is one of the greatest threats facing eulachon, 
particularly in the southern portion of its range where ocean warming 
trends may be the most pronounced. The petitioner felt that the risks 
facing southerly eulachon populations in Washington, Oregon, and 
California will be exacerbated by such a deterioration of marine 
conditions. These southerly populations, already exhibiting dramatic 
declines and impacted by

[[Page 13189]]

other threats (e.g., habitat loss and degradation), might be at risk of 
extirpation if unfavorable marine conditions predominated in the 
future. The petitioner noted that the Columbia River served as the 
single refuge for the species during the Wisconsinan glacial period 
(between 10,000 and 15,000 years before present), and that the loss of 
the Columbia River and other southerly eulachon populations would 
imperil the persistence of the taxon as a whole.

Petition Finding

    After reviewing the information contained in the petition and other 
information readily available in our files, we determine that the 
petition presents substantial scientific and commercial information 
indicating the petitioned action may be warranted. In accordance with 
section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 
CFR 424.14(b)(2)), we will commence a review of the status of the 
species concerned and make a determination within 12 months of 
receiving the petition (i.e., by November 8, 2008) whether the 
petitioned action is warranted.

Information Solicited

DPS Structure and Extinction Risk

    To ensure that the updated status review is complete and based on 
the best available and most recent scientific and commercial data, we 
solicit information, and comments (see DATES and ADDRESSES) concerning 
the status of eulachon. We solicit pertinent information such as: (1) 
biological or other relevant data pertinent to determining the DPS 
structure of eulachon (e.g., age structure, genetics, migratory 
patterns, morphology, physiology); (2) the abundance and biomass, as 
well as the spatial and temporal distribution of eulachon; (3) trends 
in abundance and distribution; (4) natural and human-influenced factors 
that cause variability in survival, distribution, and abundance; and 
(5) current or planned activities and their possible impact on eulachon 
(e.g., harvest measures and habitat actions).

Efforts Being Made to Protect Eulachon

    Section 4(b)(1)(A) of the ESA requires the Secretary to make 
listing determinations solely on the basis of the best scientific and 
commercial data available after conducting a review of the status of a 
species and after taking into account efforts being made to protect the 
species. Therefore, in making its listing determinations, we first 
assess the status of the species and identify factors that have led to 
the decline. We then assesses conservation measures to determine 
whether they ameliorate a species' extinction risk (50 CFR 424.11(f)). 
In judging the efficacy of conservation efforts, NMFS considers the 
following: the substantive, protective, and conservation elements of 
such efforts; the degree of certainty that such efforts will reliably 
be implemented and the degree of certainty that such efforts will be 
effective in furthering the conservation of the species (68 FR 15100, 
March 28, 2003); and the presence of monitoring provisions that track 
the effectiveness of recovery efforts, and that inform iterative 
refinements to management as information is accrued. In some cases, 
conservation efforts may be relatively new or may not have had 
sufficient time to demonstrate their biological benefit. In such cases, 
provisions of adequate monitoring and funding for conservation efforts 
are essential to ensure that the intended conservation benefits are 
realized. We also encourage all parties to submit information on 
ongoing efforts to protect and conserve eulachon, as well as 
information on recently implemented or planned activities and their 
likely impact(s).

References

    Copies of the petition and related materials are available on the 
Internet at http://www.nwr.noaa.gov/Other-Marine-Species/index.cfm, or 
upon request (see ADDRESSES section above).

    Authority: 16 U.S.C. 1531 et seq.

    Dated: March 6, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-4957 Filed 3-11-08; 8:45 am]
BILLING CODE 3510-22-S