Endangered and Threatened Wildlife and Plants: Threatened Status for Southern Distinct Population Segment of Eulachon, 13012-13024 [2010-5996]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 52 (Thursday, March 18, 2010)]
[Rules and Regulations]
[Pages 13012-13024]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5996]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 080229343-0039-03]
RIN 0648-XF87


Endangered and Threatened Wildlife and Plants: Threatened Status 
for Southern Distinct Population Segment of Eulachon

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

ACTION: Final rule.

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SUMMARY: We, the NMFS, issue a final determination to list the southern 
Distinct Population Segment (DPS) of Pacific eulachon (Thaleichthys 
pacificus; hereafter ``eulachon'') as a threatened species under the 
Endangered Species Act (ESA). We intend to consider protective 
regulations and critical habitat for this DPS in separate rulemaking.

DATES: This final rule is effective on May 17, 2010.

ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Blvd., 
Suite 1100, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Marc Romano at the address above or at 
(503) 231 2200, or Dwayne Meadows, Office of Protected Resources, 
Silver Spring, MD (301) 713-1401. The final rule, references and other 
materials relating to this determination can be found on our website at 
www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    On July 16, 1999, we received a petition from Mr. Sam Wright of 
Olympia, Washington, to list and designate critical habitat for 
Columbia River populations of eulachon. On November 29, 1999, we 
determined that while the petition indicated that eulachon catches had 
recently declined in the Columbia River basin, it did not present 
substantial scientific information indicating that the petitioned 
action may be warranted (64 FR 66601). That finding was based on 
observations that the species is likely more abundant than commercial 
landings indicate and, based on life history attributes (e.g., the 
species' high fecundity and short life span) and assumptions from catch 
data and anecdotal reports, has a demonstrated ability to rebound from 
periods of low abundance. Additionally, the petition did not provide 
sufficient information regarding the distinctness of eulachon 
populations in the Columbia River relative to the other populations in 
the species' range.
    On November 8, 2007, we received a petition from the Cowlitz Indian 
Tribe requesting that we list the eulachon that spawn south of the U.S. 
Canada border as threatened or endangered under the ESA. We determined 
that this petition presented substantial information indicating that 
the petitioned action may be warranted and requested information to 
assist with a status review to determine if eulachon warranted listing 
under the ESA (73 FR 13185, March 12, 2008).
    The steps we follow when evaluating whether a species should be 
listed under the ESA are to: (1) delineate the species under 
consideration; (2) review the status of the species; (3) consider the 
ESA section 4(a)(1) factors to identify threats facing the species; (4) 
assess whether certain protective efforts mitigate these threats; and 
(5) evaluate and assess the likelihood of the species' future 
persistence. We provide more detailed information and findings 
regarding each of these steps later in this notice.
    To ensure that this assessment was based on the best available 
scientific and commercial information, we formed a Biological Review 
Team (BRT) comprised of Federal scientists from our Northwest, 
Southwest, and Alaska Fisheries Science Centers, the U.S. Fish and 
Wildlife Service (FWS), and the U.S. Forest Service. We asked the BRT 
to first determine whether eulachon warrant delineation into DPSs, 
using the criteria in the joint NMFS-FWS DPS policy (61 FR 4722, 
February 7, 1996). We also asked the BRT to assess the level of 
extinction risk facing the species, describing their confidence that 
the species is at high risk, moderate risk, or neither. We described a 
species with high risk as one that is at or near a level of abundance, 
productivity, and/or spatial structure that places its persistence in 
question. We described a species at moderate risk as one that exhibits 
a trajectory indicating that it is more likely than not to be at a high 
level of extinction risk in the foreseeable future, with the 
appropriate time horizon depending on the nature of the threats facing 
the species and the species' life history characteristics. The final 
report of the BRT deliberations (NMFS, 2010) (hereafter ''status 
report'') thoroughly describes eulachon biology and natural history, 
and assesses demographic risks, threats, limiting factors, and overall 
extinction risk.
    On March 13, 2009, we proposed to list the southern DPS of eulachon 
as a threatened species under the ESA (74 FR 10857), and solicited 
comments and suggestions from all interested parties including the 
public, other governmental agencies, the government of Canada, the 
scientific community, industry, and environmental groups. Specifically, 
we requested information regarding: (1) eulachon spawning habitat 
within the range of the southern DPS that was present in the past, but 
may have been lost over time; (2) biological or other relevant data 
concerning any threats to the southern DPS of eulachon; (3) the range, 
distribution, and abundance of the southern DPS of eulachon; (4) 
current or planned activities within the range of the southern DPS of 
eulachon and their possible impact on this DPS; (5) recent observations 
or sampling of eulachon in Northern California rivers, including but 
not limited to the Klamath River, Mad River, and Redwood Creek; and (6) 
efforts being made to protect the southern DPS of eulachon. Subsequent 
to the proposed rule, the BRT produced an updated status report (NMFS, 
2010; available on our website at www.nwr.noaa.gov) summarizing new and 
additional information that has become available since release of the 
draft status report, responding to substantive peer review and public 
comments on the draft status report (NMFS, 2008), and presenting the 
final BRT conclusions on the status of the southern DPS of eulachon.

Summary of Comments Received in Response to the Proposed Rule

    We solicited public comment on the proposed listing of southern DPS 
eulachon for a total of 60 days. We did not receive a request for, nor 
did we hold, a public hearing on the proposal. Public comments were 
received from nine commenters, and copies of all public comments 
received are available online at: https://www.regulations.gov/search/Regs/home.html#docketDetail?R=NOAA-NMFS-2009-0074. Summaries of the 
substantive comments received, and our responses, are provided below, 
organized by category.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure, and opportunities for public input. Similarly, a joint 
NMFS/FWS policy requires us to solicit independent expert review from 
at least

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three qualified specialists, concurrent with the public comment period 
(59 FR 34270, July 1, 1994). In accordance with these policies, we 
solicited technical review of the draft status report (NMFS, 2008) from 
five independent experts selected from the academic and scientific 
community. Each of these reviewers is an expert in either eulachon/
forage fish biology or marine fish risk assessment methodology. 
Comments were received from all five of the independent experts. The 
reviewers were generally supportive of the scientific principles 
underlying the DPS determination and proposed listing determination. 
However, one reviewer did not agree with the delineation of the 
southern DPS of eulachon and argued that genetic and demographic 
evidence supports a much finer DPS structure for eulachon in this 
region. This same reviewer also pointed out a lack of information on 
eulachon marine distributions off of the U.S. West Coast.
    There was substantial overlap between the comments from the 
independent expert reviewers and the substantive public comments. The 
comments were sufficiently similar that we have responded to the peer 
reviewer's comments through our general responses below. The comments 
received concerning critical habitat are not germane to this listing 
decision and will not be addressed in this final rule. Those comments 
will be addressed during any subsequent rulemaking on critical habitat 
for the southern DPS of eulachon.

Delineation of Distinct Population Segment

    Comment 1: One reviewer felt that it was not clear why there were 
only six DPS scenarios voted on by the BRT in preparing the eulachon 
status review when more might have been proposed. The same reviewer 
wondered why NMFS did not consider the option that the Columbia River 
was a DPS. Furthermore, the reviewer suggested that ``the scenario that 
each river system represents a DPS would have an approximate conceptual 
model of a river-based or stream-based salmon (Oncorhynchus) stock 
structure as a precedent.''
    Response: As described in the ``Evaluation of Discreteness and 
Significance for Eulachon'' section of the status report, ``other 
possible geographic configurations [of a DPS] that incorporated the 
petitioned unit were contemplated, but were not seriously considered by 
the BRT'' (NMFS, 2008, p. 26). The BRT did discuss during its 
deliberations whether the Columbia River was a DPS, and after examining 
the available data and applying the discreteness and significance 
criteria for delineation of a DPS, no member of the BRT advocated for 
including this scenario in the final list that was voted on. The 
inclusion of a scenario containing multiple DPSs of eulachon in 
Washington, Oregon, and California allowed BRT members to express 
support for this scenario, which was representative of a scenario where 
every river is a DPS (including the Columbia River). However, such a 
scenario received almost no support.
    We agree that, conceptually, it is reasonable to view stock 
structure of eulachon in a manner similar to that of Pacific salmonids, 
and our approach to DPS delineation of eulachon is consistent with our 
approach to DPS delineation for Pacific salmon (referred to as 
Evolutionary Significant Units (ESUs); 56 FR 58612, November 20, 1991) 
and steelhead (61 FR 4722, February 7, 1996). We have found that most 
Pacific salmonid DPSs consist of numerous populations occupying 
numerous individual drainages spread over a large geographic area. 
These populations are demographically independent over short time 
scales, but experience sufficient reproductive exchange over 
evolutionary timescales that they share a common evolutionary 
trajectory. In only a few instances (e.g., sockeye salmon) have we 
identified a Pacific salmonid DPS comprised of a single river basin. 
Pacific salmonid DPS structure is thus conceptually consistent with the 
structure of the proposed southern DPS of eulachon, which may be 
comprised of multiple sub-populations or ``stocks.''
    Comment 2: One reviewer stated that ``it is difficult to reconcile 
the conclusion of the BRT that there is one major DPS with the 
assertion that the BRT also acknowledges that finer population 
structure[s] may exist.'' This reviewer felt that spawn timing and 
genetic differences (Beacham et al., 2005) represent compelling 
evidence ``that finer structure does exist between the Fraser and 
Columbia rivers.''
    Response: The joint DPS policy (61 FR 4722, February 7, 1996) 
requires that a population segment must be discrete to be considered a 
DPS, and that the population segment may be considered discrete if it 
is markedly separated from other populations of the same taxon. There 
is no requirement that the marked separation be defined at the smallest 
possible scale, or at any other particular scale. The second criterion 
of the DPS policy that a population segment must be significant to its 
taxon often results in the identification of a DPS that is comprised of 
multiple biological populations, since in many cases a single 
population would not be considered significant to the taxon. Previously 
designated DPSs of several marine fishes include a number of 
identifiable subpopulations with numerous isolated spawning locations 
and a substantial level of life history, genetic, and ecological 
diversity (Gustafson et al., 2000; Stout et al., 2001; Gustafson et 
al., 2006; Carls et al., 2008). Similarly, application of NMFS' ESU 
policy to Pacific salmon in the contiguous United States has resulted 
in designation of 37 salmon ESUs and 15 steelhead DPSs, each of which 
is commonly comprised of numerous populations that are often 
genetically and demographically differentiated one from another. The 
FWS also frequently identifies DPSs of fish species that are comprised 
of multiple biological populations (e.g., bulltrout; 64 FR 58909, 
November 1, 1999).
    Moreover, neither the available genetic nor the demographic data 
provide evidence that eulachon in the Fraser and Columbia rivers are 
``markedly separated,'' as required by the DPS policy. With regard to 
the genetic microsatellite DNA study of Beacham et al., (2005), the BRT 
was concerned that this study compared samples between the Fraser and 
Columbia rivers taken in a single year, and thus the temporal stability 
of the genetic variation observed between these two rivers could not be 
adequately assessed. The BRT concerns with regard to temporal stability 
derive from the realization that reported year-to-year genetic 
variation within three British Columbia coastal river systems (Nass, 
Kemano, and Bella Coola rivers) in this study was as great as variation 
among the rivers (Beacham et al., 2005). This temporal genetic 
variation indicates that additional research is needed to identify 
appropriate sampling and data collection strategies to fully 
characterize genetic relationships among eulachon populations.
    Comment 3: Two commenters questioned the northern boundary of the 
DPS. One commenter stated that the northern boundary of the DPS in 
British Columbia is ''. . . debatable and not well supported by data 
and information . . . [due to] . . . the lack of sufficient genetic 
data and limited understanding of how freshwater and marine 
environments affect eulachon population structure . . . .'' The other 
commenter stated that the selection of the Nass River as the point of 
demarcation for the northern boundary of the southern DPS reveals a 
``results-oriented'' outcome because the Nass River and points north 
generate very substantial returns of eulachon.

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    Response: The proposed rule outlined the numerous factors that 
support designation of a DPS for eulachon south of the Nass River/Dixon 
Entrance on the basis of ``marked separation'' in both ecological and 
physiological features from eulachon to the north. This decision is 
based on the best scientific and commercial data available that 
indicate eulachon occurring in this area are discrete from eulachon 
occurring north of this area because of differences in spawning 
temperatures; length- and weight-at-maturity; ecological features of 
both the oceanic and freshwater environments occupied by eulachon; and 
genetic characteristics.
    The recent decline in eulachon escapements to rivers on the West 
Coast of North America are not confined to areas south of the Nass 
River. Although not part of the subject DPS, Returning eulachon in 
Southeast Alaska ``have had marked declines in recent years'' and 
``since 2004 there have been minimal returns [of eulachon] in the 
Burroughs Bay and Behm Canal area'' of Southeast Alaska (ADFG, 2009). 
Commercial and subsistence eulachon fishing was closed in 2009 in 
Bradfield Canal and in the waters of Burroughs Bay, and the Unuk, 
Klahini, and Chickamin rivers (ADFG, 2009). Therefore the northern 
boundary of the DPS does not coincide with areas where declines in 
eulachon abundance have been observed.
    Comment 4: One commenter suggested that the southern boundary of 
the DPS should be considered unknown given the absence of genetic data 
for populations south of the Columbia River. In addition, one reviewer 
stated that the possibility exists that the Klamath River population 
(and associated populations to the south) is distinct.
    Response: Although we have no genetic data for populations of 
eulachon south of the Columbia River, the weight of evidence suggests 
that eulachon spawned in large numbers in the Mad River in California 
as recently as the 1960s and 1970s. While there are records of eulachon 
in California south of the Mad River, all of these records consist of 
either a single specimen, or a small group of fish (Jennings, 1996; 
Vincik and Titus, 2007). It is unlikely that any river south of the Mad 
River supports a self-sustaining population of eulachon, and most 
authors consider the Mad River the southern limit of spawning for the 
species (Miller and Lea, 1972; Moyle et al., 1995; Sweetnam et al., 
2001; Moyle, 2002; Allen et al., 2006). Since we have no evidence that 
large numbers of eulachon spawned south of the Mad River in the recent 
past, we view the Mad River as the most likely southern boundary of the 
currently constituted DPS.
    As stated above in our response to Comment 2, the joint DPS policy 
(61 FR 4722, February 7, 1996) requires that a population segment must 
be discrete to be considered a DPS, and that the population segment may 
be considered discrete if it is markedly separated from other 
populations of the same taxon. The preponderance of available physical, 
physiological, ecological and behavioral data indicate that eulachon of 
the Klamath River are not markedly separated from other eulachon within 
the range of the southern DPS.

Appropriateness of the Scope of the Proposed Rule and Assessment

    Comment 5: One reviewer commented that ``the thoroughness of the 
[draft status report] literature review is impressive and all facets of 
life history, historical use, habitat, commercial fisheries and 
traditional uses are described.'' However, this reviewer questioned 
whether the BRT examined all available databases relevant to marine 
distribution of eulachon in waters offshore of Washington, Oregon, and 
California.
    Response: Although known marine distribution and abundance of 
eulachon was thoroughly discussed during the BRT's deliberations, we 
agree that the draft status report (NMFS, 2008) failed to present or 
summarize all available information on marine distribution of eulachon 
off the U.S. West Coast. The BRT considered this additional information 
and included it in its final report (NMFS, 2010).

Status of the Southern DPS of Eulachon

    Comment 6: One reviewer questioned the conclusion that the DPS is 
at moderate, rather than high, risk of extinction, and one commenter 
stated that the best available data should have led to an endangered 
status under the ESA.
    Response: The proposed rule described our concerns about the 
abundance and spatial structure of this DPS, but also described the 
factors that mitigate that risk and support a conclusion that the DPS 
is not presently in danger of extinction: (1) two core spawning areas 
have sufficient numbers of eulachon to support spawning, at least at 
low levels; (2) as observed in the recent past (2001-2003), a reversion 
to favorable ocean conditions could result in a rebound in abundance; 
and (3) the species likely strays at a moderate-to-high rate, so that 
depressed populations could rebuild in the presence of favorable 
environmental conditions.
    Comment 7: While agreeing with the ``conclusion that the southern 
DPS of eulachon, as defined in the [status] report, is at moderate risk 
of extinction throughout its range,'' one reviewer stated the evidence 
also ``suggests that eulachon are on the verge of extinction'' in 
California.
    Response: We have serious concerns about the long-term viability of 
eulachon in California. None of the three historical California 
spawning areas (Mad River, Redwood Creek, and Klamath River) have 
produced a documented, significant run of eulachon in many years. The 
ESA defines endangered and threatened species in terms of the level of 
extinction risk ''throughout all or a significant portion of its 
range'' (sections 3(6) and 3(20)). If it is determined that the defined 
species is not in danger of extinction throughout all of its range, but 
there are major geographic areas where the species is no longer viable, 
the statute directs that we must address whether such areas represent a 
significant portion of the species' range. Waples et al., (2007) 
proposed a biological framework for evaluating whether a given portion 
of a species' range is significant. The authors propose that an area 
constitutes a significant portion of the species' range if extirpation 
in that area ``would substantially influence extinction risk of the 
entire species'' (Waples et al., 2007). (The test proposed by Waples et 
al., (2007) only applies to the determination of whether an area is 
significant, and thus is distinct from the test that was rejected by 
the Court of Appeals for the Ninth Circuit in Defenders of Wildlife v. 
Norton, 258 F.3d 1136 (9th Cir. 2001) (Waples et al., 2007).)
    We applied the test recommended in Waples et al., (2007) to our 
review of the southern eulachon DPS. The overwhelming majority of 
production for the southern DPS of eulachon occurs in three 
subpopulations within the DPS; the Columbia River, the Fraser River and 
the British Columbia coastal rivers (NMFS, 2008). In addition, the 
majority of known spawning areas, and the most consistent spawning 
runs, within the southern DPS occur outside of California. While the 
California subpopulation of eulachon is important to the species 
biologically, if extirpation of the subpopulation occurred it would not 
substantially influence the extinction risk of the entire DPS.

Eulachon Spawning Habitat within the Range of the Southern DPS

    Comment 8: Two commenters expressed concern that the draft status 
report (NMFS, 2008) and proposed rule do not address eulachon 
populations in

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Puget Sound rivers, in the Nooksack River, and on the coast of Oregon 
and Washington.
    Response: The above mentioned areas are not known to support 
established populations of eulachon, although occasional occurrence of 
eulachon presence has been recorded (see WDFW and ODFW, 2008). NMFS 
found no record of eulachon spawning stocks occurring in rivers 
draining into Puget Sound, and information on eulachon spatial 
distribution submitted to us by the Washington Department of Fish and 
Wildlife (WDFW) provides no evidence of eulachon spawning in Puget 
Sound, now or in the past.
    Claims that eulachon occur in the Nooksack River are likely the 
result of misidentification with longfin smelt (Spirinchus 
thaleichthys). The run of ``hooligans'' into the Nooksack commonly 
occurs in November, which is outside of the normal spawn-timing period 
for eulachon, and these fish have recently been positively identified 
as longfin smelt (Greg Bargmann, WDFW, pers. comm.). Unfortunately, 
mention of the Nooksack River as a eulachon river continues to occur in 
much of the recent literature (see WDFW and ODFW, 2001; Wydoski and 
Whitney, 2003; Willson et al., 2006; Moody, 2008).
    Eulachon are periodically noted in small numbers in several rivers 
and creeks on the Washington and Oregon coasts. With regard to coastal 
rivers of Washington State, occasional or rare occurrences of eulachon 
were noted in the status report (NMFS, 2008). In addition, the Oregon 
Department of Fish and Wildlife (ODFW) commented that ``[t]he Sandy 
River [within the Columbia River Basin] in Oregon is the only Oregon 
tributary known to support a run of eulachon'' (ODFW 2009). 
Documentation of these irregular occurrences of eulachon is usually 
anecdotal and it is uncertain how these fish are related 
demographically to eulachon in rivers such as the Fraser and Columbia, 
where consistent annual runs occur. In addition, eulachon 
identification can be difficult, and they are easily confused with 
other smelt species, which has led to misidentification in the past. 
Occasionally large runs are noticed, usually by the abundance of 
predatory birds and marine mammals that accompany these runs, in 
coastal rivers such as the Queets and Quinault. Usually these large run 
events are separated in time by periods greater than the generation 
time of eulachon. We do not know enough about the biology of eulachon 
to know if these eulachon run events represent self-sustaining 
populations or are simply stray individuals from larger eulachon 
systems. It is possible that these populations may exist at levels of 
abundance that would not be detected by the casual observer, only to 
become noticed in years of high abundance.

Biological or Other Relevant Data Concerning any Threats to the 
Southern DPS of Eulachon

    Comment 9: One commenter remarked that bycatch reduction devices 
(BRDs) have been required in Washington's ocean shrimp fishery since 
1999 and that they have substantially reduced the number of eulachon 
taken in shrimp trawls. Another commenter stated that bycatch is not a 
moderate threat to eulachon and that shrimp fishery bycatch is at most 
a minor threat to eulachon. The commenter pointed out that the timing 
of the declines in the Columbia River and Fraser River eulachon 
populations (as evidenced by declines in commercial landings of 
eulachon) does not correlate in a reasonable way with effort in the 
Oregon shrimp trawl fishery (as would be expected if fishery bycatch 
were a significant factor).
    Response: We do not contend that bycatch in the ocean shrimp trawl 
fishery was the sole cause of the decline in Fraser River and Columbia 
River eulachon stocks, and thus would not have expected to see a cause 
and effect relationship between historical effort in the Oregon shrimp 
fishery and decline in eulachon landings in these subpopulations. 
Trends in historical commercial eulachon landings do not provide a 
quantitative measure of trends in spawning stock abundance, since 
harvest can reflect market and environmental conditions as well as 
population abundance. In addition, a large component of the Columbia 
River eulachon subpopulation resides as juveniles off the west coast of 
Vancouver Island (Beacham et al., 2005, DFO 2009b). As a result, the 
Oregon shrimp trawl fishery is likely to encounter only a portion of 
the Columbia River eulachon subpopulation. Since commercial landings 
only provide a relative measure of run strength and the Oregon shrimp 
trawl fishery is only likely to encounter a portion of the Columbia 
River eulachon population, it is unlikely that there would be a linkage 
between historical effort in the Oregon shrimp fishery and historical 
decline in Columbia River commercial landings.
    We recognize that mandated use of BRDs in offshore shrimp trawl 
fisheries has substantially reduced bycatch (Hannah and Jones, 2007). 
However, based on unpublished eulachon bycatch data in Oregon and 
California from the Northwest Fisheries Science Center (NWFSC) West 
Coast Groundfish Observer Program, we have concerns about the level of 
eulachon bycatch (and delayed mortality of eulachon escaping trawl 
gear) in ocean shrimp (Pandalus jordani, also known as smooth pink 
shrimp) fisheries off the U. S. West Coast and in shrimp trawl 
fisheries in British Columbia, which mainly target ocean shrimp and 
northern shrimp (P. borealis eous) (Hay et al., 1999a, 1999b; Olsen et 
al., 2000; Hannah and Jones, 2007; NWFSC, 2008; DFO, 2009a). While the 
bycatch in the ocean shrimp trawl fishery may not be a primary cause of 
the decline in Fraser River and Columbia River eulachon stocks, we 
cannot rule out the possibility that it could be a factor limiting 
their recovery. We also recognize that climate change impact on ocean 
conditions is likely the most serious threat to persistence of eulachon 
in all four sub-areas of the DPS: Klamath River, Columbia River, Fraser 
River, and British Columbia coastal rivers south of the Nass River.
    Comment 10: One commenter stated that there is conflicting 
information on the survival of fishes that pass through BRDs. Another 
commenter stated that NMFS overlooked the most appropriate study on 
survival from BRD escapement (Soldal and Engas, 1997) and 
misinterpreted the results of Suuronen et al., (1996a; 1996b) in 
applying them to BRDs in the ocean shrimp trawl fishery.
    Response: We agree that there is conflicting information on the 
survival of fishes that pass through BRDs. We also agree that the 
studies of Suuronen et al. (1996a; 1996b), which examined survival of 
herring escaping trawl nets after passing through either rigid sorting 
grids or through the codend mesh, are not applicable to the probable 
effects of BRDs in the ocean shrimp fishery off the U.S. West Coast, 
and should not have been cited as such in the proposed rule (74 FR 
10857, March 13, 2009).
    It is difficult to evaluate the true effectiveness of BRDs in a 
fishery without knowing the survival rate of fish that are deflected by 
the BRD and escape the trawl net (Broadhurst 2000; Suuronen 2005; 
Broadhurst et al., 2006). We know of no studies that have been designed 
to assess survival of small pelagic fish after they are deflected from 
the codend of a trawl net by a rigid grate BRD and exit a trawl net. 
Given that the Soldal and Engas (1997) study was designed to assess 
survival of young gadoid fishes excluded from a shrimp trawl by a rigid 
deflecting grid, and the authors state that the survival data on 
capelin (Mallotus villosus) and herring

[[Page 13016]]

(Clupea harengus) in this study ``should therefore not be relied on,'' 
this study does not appear to be the most appropriate study on survival 
from BRD escapement with regard to eulachon, since eulachon would most 
likely respond in a similar manner as capelin did in this study.
    Although data on survivability of BRDs by small pelagic fishes such 
as eulachon are scarce, many studies on other fishes indicate that 
``among some species groups, such as small-sized pelagic fish, 
mortality may be high'' and ``the smallest escapees often appear the 
most vulnerable'' (Suuronen, 2005). Results of several studies have 
shown a direct relationship between length and survival of fish 
escaping trawl nets, either with or without deflecting grids (Sangster 
et al., 1996; Suuronen et al., 1996a; Ingolfsson et al., 2007), 
indicating that smaller fish with their poorer swimming ability and 
endurance may be more likely to suffer greater injury and stress during 
their escape from trawl gear than larger fish (Broadhurst et al., 2006; 
Ingolfsson et al., 2007).
    Comment 11: One commenter questioned why bycatch of eulachon in 
shrimp fisheries is regarded as a high threat to Columbia River and 
British Columbia coastal populations, yet only a moderate threat to the 
Fraser River population. The same commenter stated that NMFS did not 
provide any data on bycatch of eulachon stocks off the U.S. West Coast, 
or any data from any U.S. coastal shrimp fisheries.
    Response: Neither the draft status report (NMFS, 2008) nor proposed 
rule indicate a difference in the degree of threat described by the 
commenter. During its deliberations, the BRT examined unpublished data 
collected by NMFS' West Coast Groundfish Observer Program on eulachon 
and other smelt bycatch in Oregon and California offshore ocean shrimp 
fisheries. Some of these data are now published (NWFSC, 2008). The 
draft status report (NMFS, 2008, p. 59) stated that ``eulachon by-catch 
in offshore shrimp fisheries were also ranked in the top four threats 
in all sub-areas of the DPS,'' and presented the results of its 
qualitative ranking of threats in Tables 10 13 in that document (NMFS, 
2008, p. 107 110). From the threat scores in that table it is apparent 
that the BRT considered eulachon bycatch as essentially an equal threat 
in each of these subpopulations of the DPS. In addition, the proposed 
rule (74 FR 10872, March 13, 2009) stated that ``[t]he BRT identified 
bycatch of eulachon in commercial fisheries as a moderate threat to all 
four populations.''
    Comment 12: One commenter stated that the recent range expansion of 
Humboldt squid (Dosidicus gigas, also known as jumbo squid) into the 
northeast Pacific Ocean is likely influencing eulachon abundance.
    Response: We agree that the recent and ongoing expansion of large 
numbers of jumbo squid into waters off Oregon, Washington, and British 
Columbia is likely to have a significant impact on eulachon, but the 
extent of the impacts is uncertain, and cannot be determined to be a 
cause for the eulachon population's decline. An analysis of the 
contents of jumbo squid stomachs collected in the Northern California 
Current, including 40 collected off Oregon and Washington, failed to 
record the presence of eulachon or other osmerid smelts in the jumbo 
squid diet (Field et al., 2007). The absence of eulachon in the diet of 
jumbo squid analyzed by Field et al., (2007) may be due to a 
combination of low eulachon abundance in the study area and a lack of 
significant overlap in the two species' depth range; eulachon are 
commonly found between 20 and 150 m (66 and 492 ft) deep (Hay and 
McCarter, 2000) while jumbo squid in the Field et al., (2007) study 
were mostly collected below this depth. Rapid digestion of small 
pelagic fish such as eulachon may also limit the ability to detect them 
in jumbo squid stomachs.

The Range, Distribution, and Abundance of the Southern DPS of Eulachon

    Comment 13: One commenter stated that NMFS mischaracterized the 
work of Sadovy (2001) in a manner that overstates the extinction risk 
for the southern DPS of eulachon. The commenter stated that NMFS argues 
that short lived, small-bodied, high-fecundity, high-mortality forage 
species are not resilient to large swings in population size and 
mortality rates.
    Response: We are unable to determine how our analysis in the draft 
status report (NMFS, 2008) or the proposed rule (74 FR 10857, March 13, 
2009) could be interpreted as suggesting that the Sadovy (2001) paper 
or any other part of these documents argues that short lived, small-
bodied, high-fecundity, high-mortality forage species are not resilient 
to large swings in population size and mortality rates. To the 
contrary, the draft status report (NMFS, 2008) stated the opposite with 
regard to resiliency of the species.
    Our original purpose in citing Sadovy (2001) was not in regard to 
population resiliency of forage fish species, but in regard to Sadovy's 
(2001) concept that a critical density of spawning individuals must be 
present for fertilization to be successful and thus buffer against an 
Allee effect (i.e., a decrease in fitness when population density is 
low).
    Comment 14: Two commenters felt that NMFS did not adequately 
address all of the historical information available regarding run size 
fluctuations of eulachon, particularly references that point to a 
severe downturn in eulachon abundance between approximately 1835 and 
1867 in the Cowlitz River and the Columbia River Basin.
    Response: Although we did not cite every available primary 
historical reference source (e.g., accounts of early explorers, 
surveyors, fur trappers, settlers, and naturalists) that described a 
decline in eulachon numbers on the Columbia and Cowlitz rivers during 
the 1830s to 1860s, we did cite in the draft status report (NMFS, 2008) 
the main secondary references in which this information is available. 
In addition, the BRT judged these reports to be credible scientific 
information appropriate for inclusion in its deliberations. Based on 
the available information, the BRT concluded that this information was 
likely to be accurate and indicative of a true decline in eulachon 
returns and subsequent recovery during that time period.
    Comment 15: Two commenters noted that NMFS ignored important 
ethnographic information found in a narrative collected by Franz Boas 
(1894) in which a myth regarding eulachon was recounted by a member of 
the Chinook Tribe.
    Response: ``The Gila'unalx'' in the ethnographic source, Boas 
(1894), is a tale of a Gila'unalx boy, whose guardian spirit is 
Iqamia'itx (helper of fishermen) that helps him catch smelt. This tale, 
translated from a tale told to Franz Boas by Charles Cultee (one of the 
last members of the Chinook tribe) in 1890 1891, cannot be interpreted 
as describing an absence of smelt from the Columbia River Basin, but 
does indicate that smelt fluctuated in abundance in different 
tributaries or areas of the Columbia River from year to year, and that 
Native American tribal members had to travel in some years to other 
areas of the basin to catch smelt. Similar fluctuations in smelt 
returns to individual Columbia River tributaries commonly occur today.
    Comment 16: Two commenters stated that eulachon run size 
fluctuations should have been compared to that of other forage fish, 
such as herring, sardines, and anchovies, which have all experienced 
large swings in abundance.
    Response: We recognize the long-term variability and cyclic nature 
of forage fish population abundance and

[[Page 13017]]

examined the relevance of the Pacific sardine model as it applies to 
eulachon. During times of low abundance both anchovies and sardines 
contract their range to core refuge areas where they remain common 
(Lluch-Belda et al., 1992). We were unable to identify a similar 
geographical refuge or population reservoir within the range of the 
southern DPS of eulachon, and conclude that the sardine/anchovy model 
cannot be used as a proxy for how eulachon populations will respond to 
changing ocean conditions or climate change. We noted that other 
species of smelt in the Northern California Current are undergoing 
similar long-term declining trends in abundance, that this region is on 
the southern end of the range for smelts, and that ocean warming may 
have a detrimental impact on these essentially cold-water species. In 
contrast to anadromous eulachon, purely marine forage fish such as 
anchovies, sardines, and Pacific hake (Merluccius productus) can shift 
their distribution and geographical center of spawning in response to 
environmental changes (Lluch-Belda et al., 1992; Ware and McFarlane, 
1995; Benson et al., 2002; Rodriguez-Sanchez et al., 2002). By 
contrast, eulachon show fidelity to particular spawning rivers and 
adult and larval/juvenile eulachon must respond to local changes in 
spawning and nearshore-rearing conditions, respectively.
    Comment 17: Since we know that eulachon populations have declined 
in the past, and then reversed substantially for a significant period 
of time, one commenter questioned NMFS' proposal to list if the present 
period of population decline is no different from the past.
    Response: We acknowledge that past population decline and 
subsequent recovery of eulachon in the Cowlitz and Columbia rivers is 
documented through multiple anecdotal sources. However, the present 
period of population decline is very different from past events in that 
every subpopulation of the DPS is affected simultaneously, and the 
decline is not confined to the Columbia River subpopulation. 
Ethnographic and historical references indicate that subpopulations of 
the southern DPS of eulachon north of Washington State remained healthy 
during the period of population decline in the Columbia River in the 
1830s to 1860s.
    In addition, available information (e.g., disjunct spawning 
distribution, differences in spawn timing, genetics, life history 
diversity) suggests that population structure of eulachon roughly 
conforms to the classical concept of a metapopulation, in which local 
subpopulations are linked demographically by at least episodic 
migration, and extinction and recolonization of local subpopulations 
are common over ecological time frames. In this type of system, at any 
given point in time, some local subpopulations are expected to be 
increasing and some declining, and some suitable habitat patches are 
expected to be uninhabited. We considered whether eulachon 
subpopulation declines are more pervasive and more pronounced than we 
would expect to find in a healthy metapopulation. Currently, no 
subpopulation of the southern DPS of eulachon is abundant (as 
determined by spawning stock abundance, analysis of fishery catch, or 
traditional knowledge) or at levels that would be classified as normal 
or average over the historical time series. Eulachon are in long-term 
decline throughout the DPS (NMFS, 2010), and current subpopulation 
trajectories, with the exception of the Columbia River, are well below 
and out of the range of known historic patterns.
    Comment 18: One commenter stated that NMFS' characterization of the 
spawning populations in the Columbia and Fraser rivers appearing to be 
at ``historically low levels'' is subject to dispute.
    Response: We acknowledge that, based on the historical record, this 
characterization should be modified, and that eulachon spawning 
populations have declined to what appear to be historically low levels 
in the Fraser River and nearly so in the Columbia River.
    Comment 19: One commenter stated that eulachon `` disappeared 
completely for years at a time, for approximately three decades, in the 
1800s'' and that eulachon suffered what was termed a ``three-decade 
absence,'' a ``three-decade disappearance,'' or a ``30-year 
disappearance'' from the Columbia River with a subsequent return to 
abundance.
    Response: Although numerous references indicate that eulachon 
suffered a severe decline in abundance in the Columbia River during the 
1830s 1860s, the record does not support the contention that eulachon 
``disappeared'' completely from the Columbia River during this entire 
time. A memoir written by Peter W. Crawford (Crawford, 1878) indicates 
that, prior to 1865 when Crawford records the appearance of a large run 
of eulachon on the Cowlitz River, ``The early settlers on the Lower 
Cowlitz remember having a few such little fellows in small numbers.''
    Comment 20: One commenter stated that our decision to deny the 1999 
petition to list eulachon in the Columbia River under the ESA (64 FR 
66601, November 29, 1999) was correct, and that we have not adequately 
justified our decision to now list the species as threatened.
    Response: We found that after reviewing the 1999 petition to list 
eulachon (Wright, 1999), as well as information readily available to 
NMFS scientists, the petition did not present substantial scientific 
information indicating that eulachon in the Columbia River were a DPS 
(64 FR 66601, November 29, 1999). We still agree that eulachon in the 
Columbia River are not a DPS and have proposed that the Columbia River 
subpopulation of eulachon is part of the much larger southern DPS of 
eulachon that extends from the Skeena River in British Columbia to the 
Mad River in California. We believe, for the reasons outlined in this 
determination, that the southern DPS is at risk of becoming endangered 
in the foreseeable future and thus should be listed as a threatened 
species under the ESA.
    Comment 21: One commenter stated that NMFS should provide numbers 
and the basis for minimum viable population (MVP) sizes of eulachon. 
While NMFS listed the Klamath River, Fraser River, Bella Coola River, 
and Rivers Inlet, as areas where eulachon are below what would be 
considered minimum viable population sizes, the commenter questioned 
why the Columbia River is left off this list.
    Response: We stated in the proposed rule (74 FR 10869, March 13, 
2009) that MVP sizes for a forage fish species like eulachon ``may be 
on the order of 50,000 to 500,000'' (see Dulvy et al., 2004). We 
conclude that high eulachon population sizes are necessary for 
viability because: (1) there is a critical threshold density of adult 
eulachon that must be present for successful reproduction; (2) there 
must be enough offspring to counteract high in-river egg and larval 
mortality and larval mortality in the ocean; and (3) there must be 
enough offspring to buffer against variation in local environmental 
conditions.
    In recent years, estimated eulachon spawner abundance in the 
Klamath River, Bella Coola River, and Rivers Inlet have all been fewer 
than 50,000 individual fish and the Fraser River has averaged fewer 
than 500,000 fish. Thus there is concern that these rivers are below 
what could be considered the minimum number necessary for viability. 
Columbia River eulachon were not included in this list as their 
estimated abundance is likely above this minimum necessary for 
viability (i.e., > 500,000 individual eulachon).

[[Page 13018]]

    Comment 22: One commenter stated that the Columbia River MVP 
threshold should be set at the upper limit of the best available 
estimate of approximately 700,000 fish.
    Response: We agree with the commenter that large systems like the 
Columbia River will likely require an MVP that is set at the upper 
limit of the best available estimate. The MVP sizes suggested by Dulvy 
et al., (2004) are largely theoretical and insufficient information 
currently exists to set an absolute MVP level for the Columbia River 
with any confidence. We acknowledge that part of any future Recovery 
Plan developed for the southern DPS of eulachon should include 
objective, measurable criteria will have to be established to determine 
when the DPS should be removed from the ESA.
    Comment 23: One commenter was concerned that in most samples of 
spawning eulachon, males greatly outnumber females, yet NMFS provided 
no evidence or even speculation to indicate if this is an evolved 
characteristic or if it is caused by fishery selectivity (directed or 
bycatch) and/or changing environmental conditions.
    Response: Whether male eulachon actually outnumber females in most 
rivers is a subject of controversy, and some researchers view skewed 
sex ratios to be an artifact of sampling (Hay and McCarter 2000). Sex 
ratios can vary with fishing gear type, distance upriver, distance from 
the river shoreline, time of day, and migration time (McHugh, 1939; 
Langer et al., 1977; Moffit et al., 2002; Lewis et al., 2002; Spangler 
2002; Spangler et al., 2003). Eulachon sex ratios derived from 
commercial fishery samples may also be biased in favor of the more 
marketable, firmer-bodied males (Smith and Saalfeld, 1955). 
Nevertheless, the rangewide observations of higher male to female 
ratios suggest that there may be a selective advantage to having more 
males present than females during spawning.

Determination of Species under the ESA

    The ESA defines species to include subspecies or a DPS of any 
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). 
The FWS and NMFS have adopted a joint policy describing what 
constitutes a DPS of a taxonomic species (61 FR 4722, February 7, 
1996). The joint DPS policy identifies two criteria for making DPS 
determinations: (1) the population must be discrete in relation to the 
remainder of the taxon (species or subspecies) to which it belongs; and 
(2) the population must be significant to the remainder of the taxon to 
which it belongs.
    Additionally, under the joint policy a population segment of a 
vertebrate species may be considered discrete if it satisfies either 
one of the following conditions: (1) ``[i]t is markedly separated from 
other populations of the same 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) ``[i]t is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D)'' of the ESA 
(61 FR 4725).
    If a population segment is found to be discrete under one or both 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. This consideration may 
include, but is not limited to: (1) ``[p]ersistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) [e]vidence that the loss of the discrete population segment 
would result in a significant gap in the range of a taxon; (3) 
[e]vidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; and 
(4) [e]vidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.'' 
(61 FR 4725).
    The ESA defines an endangered species as one that ``is in danger of 
extinction throughout all or a significant portion of its range,'' and 
a threatened species as one that ``is likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range'' (Section 3 (6) and (20) of the ESA). Section 
4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR part 424) 
state that we must determine whether a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) the present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) overutilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or man-made factors affecting its continued 
existence. We are to make this determination based solely on the best 
available scientific and commercial information after conducting a 
review of the status of the species and taking into account any efforts 
being made by states or foreign governments to protect the species.

Summary of Factors Affecting the Southern Distinct Population Segment 
of Eulachon

    The primary factors responsible for the decline of the southern DPS 
of eulachon are the destruction, modification, or curtailment of 
habitat and inadequacy of existing regulatory mechanisms. The following 
discussion briefly summarizes our findings regarding threats to the 
southern DPS of eulachon. More details and supporting evidence can be 
found in the proposed listing rule (74 FR 10857, March 13, 2009) and 
the status report (NMFS, 2010). For analytical purposes, we identified 
and ranked threats for the four primary populations of this DPS: 
mainland British Columbia rivers south of the Nass River, Fraser River, 
Columbia River, and Klamath River.

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

    We have identified changes in ocean conditions due to climate 
change as the most significant threat to eulachon and their habitats. 
We also believe that climate-induced change to freshwater habitats is a 
moderate threat to eulachon throughout the range of the southern DPS. 
There is evidence that climate change is leading to relatively rapid 
changes in both marine and freshwater environmental conditions that 
could impact eulachon. Marine, estuarine, and freshwater habitat in the 
Pacific Northwest has been influenced by climate change over the past 
50-100 years and global patterns suggest the long-term trend is for a 
warmer, less productive ocean regime in the California Current and the 
Transitional Pacific. Climate-driven changes in stream flow timing and 
intensity in this area have also occurred and are likely to continue 
(Morrison et al., 2002; Pickard and Marmorek, 2007; DFO, 2008). The 
recent decline in abundance or relative abundance of eulachon in many 
systems, coupled with the probable disruption of metapopulation 
structure, may make it more difficult for eulachon to adapt to changing 
environmental conditions.
    Analyses of temperature trends for the U.S. part of the Pacific 
Northwest (Mote et al., 1999); the maritime portions of Oregon, 
Washington, and British Columbia (Mote, 2003a); and the Puget Sound-
Georgia Basin region (Mote, 2003b) have shown that air temperature

[[Page 13019]]

increases in these respective regions during the twentieth century were 
substantially greater than the global average (Mote, 2003b). This 
change in surface temperature has already modified, and is likely to 
continue to modify, freshwater and estuarine habitats of eulachon. 
These higher temperatures have led to declines in snowpack, more 
precipitation falling as rain rather than snow, and increased melting 
of glaciers, all of which affects stream flow timing and peak river 
flows. Since the majority of eulachon rivers are fed by extensive 
snowmelt or glacial runoff, elevated temperatures, changes in snow 
pack, and changes in the timing and intensity of stream flows will 
likely have impacts on eulachon. In most rivers, eulachon typically 
spawn well before the spring freshet, near the seasonal flow minimum, 
and this strategy typically results in egg hatch coinciding with peak 
spring river discharge. The expected alteration in stream flow timing 
may cause eulachon to spawn earlier or be flushed out of spawning 
rivers at an earlier date. Early emigration, together with the 
anticipated delay in the onset of coastal upwelling (see below), may 
result in a mismatch between entry of juvenile eulachon into the ocean 
and coastal upwelling, which could have a negative impact on marine 
survival of eulachon during this critical transition period.
    Eulachon are basically a cold-water species and are adapted to feed 
on a northern assemblage of copepods in the ocean during the critical 
transition period from larvae to juvenile (and much of their recent 
recruitment failure may be traced to mortality during this critical 
period). However, there have been recent shifts in the suite of copepod 
species available to eulachon (Mackas et al, 2001; Hooff and Peterson, 
2006; Mackas et al., 2007), and we are concerned that climate change 
may be contributing to a mismatch between eulachon life history and 
prey species. Increases in ocean temperatures off the coast of the 
Pacific Northwest could alter the abundance and composition of copepod 
communities, thus reducing the amount of food available for eulachon, 
particularly larval eulachon. Zamon and Welch (2005) reported these 
types of rapid shifts in zooplankton communities in the Northeast 
Pacific during recent El Nino-La Nina events. Warming ocean conditions 
may also lead to a general reduction in eulachon forage. For instance, 
Roemmich and McGowan (1995) noted an 80 percent reduction of 
macrozooplankton biomass off Southern California between 1951 and 1993. 
Eulachon survival during the critical transition period between larval 
and juvenile stages is likely linked to initial intensity and timing of 
upwelling in the Northern California Current Province. However, 
predictions under warming conditions indicate that peak upwelling could 
shift as much as one month later than normal, which would result in 
eulachon larvae entering the ocean at a time when preferred prey 
organisms are not as abundant due to a delay in upwelling. These 
conditions would likely have significant negative impacts on marine 
survival rates of eulachon.
    Warming ocean conditions have allowed both Pacific hake (Phillips 
et al., 2007) and Pacific sardine (Sardinops sagax) (Emmett et al., 
2005) to expand their distributions to the north. In contrast to 
anadromous eulachon, purely marine forage fish such as Pacific sardine 
and Pacific hake can shift their distribution and geographical center 
of spawning in response to environmental changes (Lluch-Belda et al., 
1992; Ware and McFarlane, 1995; Benson et al., 2002; Rodriguez-Sanchez 
et al., 2002). The result of these distribution shifts is increased 
predation on eulachon by Pacific hake and competition for food 
resources by both species.
    The BRT identified dams and water diversions as moderate threats to 
eulachon in the Columbia and Klamath rivers where hydropower generation 
and flood control are major activities, and a low to moderate risk for 
eulachon in the Fraser and mainland British Columbia rivers where dams 
are fewer. Dams can slow or block eulachon migration. Water storage and 
flood control dams and water divisions often alter the natural 
hydrograph of river systems during the winter and spring months. Dams 
can also impede or alter bedload movement, changing the composition of 
river substrates important to spawning eulachon. Degraded water quality 
is common in some areas occupied by southern DPS eulachon. In the 
Columbia and Klamath systems, large-scale impoundment of water has 
increased winter water temperatures, potentially altering the water 
temperature during eulachon spawning periods (NMFS, 2010). Numerous 
chemical contaminants are also present in spawning rivers, but the 
exact effect these compounds may have on spawning and egg development 
is unknown (NMFS, 2010).
    The BRT identified dredging as a low to moderate threat to eulachon 
in the Fraser and Columbia rivers and a low threat for eulachon in 
mainland British Columbia rivers due to less dredging activity here. 
Dredging during eulachon spawning would be particularly detrimental, as 
eggs associated with benthic substrates are likely to be destroyed.

Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes

    Commercial harvest of eulachon in the Columbia and Fraser rivers 
represents a low to moderate threat. Current harvest levels are orders 
of magnitude lower than historic harvest levels, and a relatively small 
number of vessels operate in this fishery. However, it is possible that 
even a small harvest of the remaining stock may slow recovery. No 
significant commercial fishing for eulachon occurs in the Klamath River 
or in British Columbia rivers north of the Fraser River. The BRT ranked 
harvest by recreational and Tribal/First Nations fishers as a very low 
to low threat to eulachon in all four DPS populations. As described 
below, it is likely that these harvests have a negligible effect on 
eulachon abundance.
Commercial Fisheries
    In Oregon, commercial fishing for eulachon is allowed in the 
Pacific Ocean, Columbia River, Sandy River, and Umpqua River. In the 
Pacific Ocean, eulachon can be harvested year-round using any method 
otherwise authorized to harvest food fish in the open ocean. In the 
Sandy River, commercial fishing with dip nets is allowed in a small 
portion of the lower river, year-round, 7 days a week, 24 hours a day. 
The last large commercial harvest of eulachon in the Sandy River 
occurred in 1985 (304,500 lbs. (138 metric tons)), with a moderate 
harvest occurring in 2003 (23,000 lbs. (10 metric tons)) (John North, 
ODFW, pers. comm.). In the Umpqua River, commercial fishing for 
eulachon is allowed year-round and 24 hours a day with dip nets and 
gill nets not more than 600 ft (183 m) in length and of a mesh size no 
larger than 2 inches (51 mm). Those areas of the Umpqua River not 
closed to commercial fishing for American shad (Alosa sapidissima) 
(upstream from approximately river mile 21 (34 km)) are open to 
commercial fishing for eulachon. However, commercial fishing for 
eulachon has not occurred for many years in the Umpqua River (John 
North, ODFW, pers. comm.). In the mainstem Columbia River, permissible 
commercial gear includes: gill nets with a mesh size no larger than 2 
inches (51 mm); dip nets having a bag frame no larger than 36 inches 
(91 cm) in diameter; and small trawl nets (Oregon Administrative Rule 
635 004 0075). Commercial fishing in the

[[Page 13020]]

Columbia River is now managed according to the joint WDFW and ODFW 
Eulachon Management Plan (WDFW and ODFW, 2001). Under this plan, three 
eulachon harvest levels can be authorized based on the strength of the 
prior years' run, resultant juvenile production estimates, and ocean 
productivity indices.
    Currently the average weekly effort in the Columbia River mainstem 
fishery is typically low (2.6 boats/week), with up to 18 vessels 
participating (ODFW, 2009). In Washington, by permanent rule, 
commercial fishing for eulachon in the Columbia and Cowlitz rivers is 
restricted. On the Columbia River, otter trawl gear may be used from 6 
p.m. Monday to 6 p.m. (1) on Wednesday of each week from March 1 
through March 31, or (2) for boats not exceeding 32 feet in length, 7 
days per week from December 1 through March 31 of the following year. 
Gillnets may be used 7 days per week from December 1 through March 31 
of the following year. Hand dip net gear may be used 7 days per week 
from December 1 of each year through March 31 of the following year. In 
recent years the January-March fishing periods were closed prior to 
January 1 by emergency rule, and specific fishing periods were adopted 
in accordance with the restrictions identified in the Washington and 
Oregon Eulachon Management Plan (WDFW and ODFW, 2001). Due to low 
eulachon abundance, the Department of Fisheries and Oceans Canada (DFO) 
did not authorize any commercial fishing for eulachon in 2008. 
Historically, commercial fishing for eulachon occurred at low levels in 
the Fraser River (as compared to the Columbia River). Since 1997, DFO 
has only twice allowed a commercial harvest of eulachon in the Fraser 
River (DFO, 2008).
Recreational Fishing
    The states of Oregon and Washington have modified sport fishing 
regulations due to declining eulachon abundance (WDFW and ODFW, 2001). 
During the eulachon run, the ODFW allows recreational fishers to 
capture 25 lb (11 kg) per day of eulachon, using a dip net. Each fisher 
must have his or her own container and only the first 25 lbs (11 kg) of 
fish captured may be retained. No angling license is required to 
harvest eulachon in Oregon. The WDFW currently allows harvest of 
eulachon by dip netting on the Cowlitz River, from 6 a.m. to 10 p.m. on 
Saturdays from January 1 through March 31. The daily limit on the 
Cowlitz River is 10 lb (4.5 kg) per person per day. In Washington, the 
mainstem Columbia River is open for eulachon harvest 24 hours per day 
and 7 days per week during the eulachon run, and the daily limit is 25 
lb (11 kg) per person per day. ODFW and WDFW plan to continue 
authorizing eulachon sport fishing at appropriate harvest levels based 
on yearly predictions of eulachon run size. Under the strictest 
proposed regulations, harvest would be limited to less than 10 percent 
of the predicted run size. If run size increases beyond predicted 
levels, then ODFW and WDFW would consider allowing additional harvest 
(but these more liberal harvest rates have not been specified).
    In California, the California Department of Fish and Game (CDFG) 
currently allows licensed recreational fishers to dipnet up to 25 lb 
(11 kg) of eulachon per day per person year-round (CDFG, 2008). 
However, in practice, little to no fishing in California occurs because 
so few eulachon return each year. In 2008, DFO Canada did not authorize 
any recreational fishing for eulachon due to low abundance. In general, 
interest in recreational fishing for eulachon has decreased 
significantly due to the difficulty of harvesting these fish at their 
current low abundance.
Tribal Subsistence Fishing
    In the past, eulachon were an important food source for Canadian 
First Nations and many Native American tribes from northern California 
to Alaska. In more recent history, tribal members in the U.S. harvest 
eulachon under recreational fishing regulations adopted by the states. 
The DFO typically authorizes a small subsistence fishery for First 
Nation members, primarily in the Fraser River. Historically, members of 
the Yurok Tribe harvested eulachon in the Klamath River in California 
for subsistence purposes. The Yurok Tribe does not have a fishery 
management plan for eulachon at this time, and eulachon abundance 
levels on the Klamath are too low to support a fishery.

Disease or Predation

    The BRT identified disease as a low risk factor for all four 
subpopulatio