[Federal Register Volume 72, Number 91 (Friday, May 11, 2007)]
[Rules and Regulations]
[Pages 26722-26735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9089]



[[Page 26722]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070123015-7086-02; I.D. 031006D]
RIN 0648-AU43


Endangered and Threatened Species: Final Listing Determination 
for Puget Sound Steelhead

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are issuing a final determination to list the 
distinct population segment (DPS) of steelhead (Oncorhynchus mykiss) in 
Puget Sound, Washington, as a threatened species under the Endangered 
Species Act (ESA). We intend to issue final protective regulations and 
propose critical habitat for this DPS in separate rulemakings.

DATES: The effective date of this rule is June 11, 2007.

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

FOR FURTHER INFORMATION CONTACT:  Steve Stone, NMFS, Northwest Region, 
at (503) 231-2317; or Marta Nammack, NMFS, Office of Protected 
Resources, at (301) 713 1401. Reference materials regarding these 
determinations are available upon request or on the Internet at http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

Steelhead Life History

    Steelhead is the name commonly applied to the anadromous form of 
the biological species O. mykiss. The present distribution of steelhead 
extends from Kamchatka in Asia, east to Alaska, and south along the 
Pacific coast to the U.S.-Mexico border (Busby et al., 1996; 67 FR 
21586; May 1, 2002). O. mykiss exhibit the most complex life-history of 
any species of Pacific salmonid. O. mykiss can be anadromous 
(``steelhead'') or freshwater residents (``rainbow'' or ``redband'' 
trout), and under some circumstances, they can yield offspring of the 
alternate life-history form. Anadromous O. mykiss can spend up to 7 
years in fresh water prior to smoltification (the physiological and 
behavioral changes required for the transition to salt water), and then 
spend up to 3 years in salt water prior to migrating back to their 
natal streams to spawn. O. mykiss may spawn more than once during their 
life span (iteroparous), whereas the Pacific salmon species generally 
spawn once and die (semelparous).
    Within the range of West Coast steelhead, spawning migrations occur 
throughout the year, with seasonal peaks of activity. In a given river 
basin there may be one or more peaks in migration activity, and these 
``runs'' are usually named for the season in which the peak occurs 
(e.g., winter, spring, summer, or fall steelhead). Steelhead can be 
divided into two basic reproductive ecotypes, based on the state of 
sexual maturity at the time of river entry and duration of spawning 
migration (Burgner et al., 1992). The summer or ``stream-maturing'' 
type enters fresh water in a sexually immature condition between May 
and October, and requires several months to mature and spawn. The 
winter or ``ocean-maturing'' type enters fresh water between November 
and April with well-developed gonads and spawns shortly thereafter. In 
basins with both summer and winter steelhead runs, the summer run 
generally occurs where habitat is not fully utilized by the winter run, 
or where an ephemeral hydrologic barrier separates them, such as a 
seasonal velocity barrier at a waterfall. Summer steelhead usually 
spawn farther upstream than winter steelhead (Withler, 1966; Roelofs, 
1983; Behnke, 1992).
    The Puget Sound steelhead DPS includes more than 50 stocks of 
summer- and winter-run fish, the latter being the most widespread and 
numerous of the two run types (Washington Department of Fish and 
Wildlife (WDFW), 2002). Hatchery steelhead production in Puget Sound is 
widespread and focused primarily on the propagation of winter-run fish 
derived from a stock of domesticated, mixed-origin steelhead (the 
Chambers Creek Hatchery stock) originally native to a small Puget Sound 
stream that is now extirpated from the wild. Hatchery summer-run 
steelhead are also produced in Puget Sound; these fish are derived from 
the Skamania River in the Columbia River Basin. The majority of 
hatchery stocks are not considered part of this DPS because they are 
more than moderately diverged from the local native populations (NMFS, 
2005). Resident O. mykiss occur within the range of Puget Sound 
steelhead but are not part of the DPS due to marked differences in 
physical, physiological, ecological, and behavioral characteristics (71 
FR 15666; March 29, 2006).

Listing Determinations Under the ESA

    We exercise ESA jurisdiction over most marine and anadromous 
fishes, and are responsible for determining whether West Coast salmon 
and steelhead warrant listing as threatened or endangered species under 
the ESA (16 U.S.C. 1531 et seq.). Section 3 of the ESA defines 
``species'' as including ``any subspecies of fish or wildlife or 
plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature.'' The term 
``distinct population segment'' is not recognized in the scientific 
literature. On February 7, 1996, we and the U.S. Fish and Wildlife 
Service adopted a joint policy for recognizing DPSs under the ESA (DPS 
Policy; 61 FR 4722). As described in our proposed rule (71 FR 15666; 
March 29, 2006), we apply the DPS policy in delineating species of West 
Coast O. mykiss for consideration under the ESA. The policy adopts 
criteria for determining when a group of vertebrates constitutes a DPS: 
the group must be discrete from other populations and it must be 
significant to its taxon. A group of organisms is discrete if it is 
``markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, and behavioral 
factors.'' Significance is evaluated with respect to the taxon (species 
or subspecies). See 70 FR 67132 (November 4, 2005; ``Proposed 
Evaluation of Significance under the DPS Policy''), and 71 FR 836 
(January 5, 2006; ``General Comments on the Consideration of Resident 
O. Mykiss: Determination of Species'')
    On June 28, 2005, we published a new policy for the consideration 
of hatchery-origin fish in ESA listing determinations (``Hatchery 
Listing Policy;'' 70 FR 37204). Under the Hatchery Listing Policy, 
hatchery stocks are considered part of a DPS if they exhibit a level of 
genetic divergence relative to the local natural population(s) that is 
no more than what occurs within the DPS (70 FR at 37215; June 28, 
2005). If a DPS as a whole warrants listing as threatened or 
endangered, the hatchery stocks considered part of the DPS will be 
included in the listing determination.
    The ESA requires us to determine whether any species is endangered 
or threatened because of any of the following five factors: (1) The 
present or threatened destruction, modification or curtailment of its 
habitat or range; (2)

[[Page 26723]]

overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence (section 4(a)(1)(A)-(E)). 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 endangered in the foreseeable 
future throughout all or a significant portion of its range. We are to 
make ESA listing determinations based solely on the best available 
scientific 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.
    When evaluating the ESA section 4(a)(1) factors we focus on whether 
and to what extent a given factor represents a threat to the future 
survival of the species. When we consider protective efforts we assess 
whether and to what extent they address the identified threats and so 
ameliorate a species' risk of extinction. The overall steps we follow 
in implementing this statutory scheme 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) predict the species' future persistence.
    As noted above, as part of our listing determinations we must 
consider efforts being made to protect a species, and whether these 
efforts ameliorate the threats facing the species and reduce risks to 
its survival. Some protective efforts may be fully implemented, and 
empirical information may be available demonstrating their level of 
effectiveness in conserving the species. Other protective efforts are 
new, not yet implemented, or have not demonstrated effectiveness. We 
evaluate such efforts using the criteria outlined in the Policy for 
Evaluating Conservation Efforts (``PECE''; 68 FR 15100; March 28, 2003) 
to determine their certainty of implementation and effectiveness.

Previous ESA Reviews and Findings

    In 1996 we reviewed the status of West Coast steelhead. As part of 
this review we determined that steelhead in Puget Sound did not warrant 
listing under the ESA (61 FR 41541; August 9, 1996). Subsequently we 
received and accepted a petition to re-evaluate the status of Puget 
Sound steelhead (70 FR 17223; April 5, 2005). We reviewed the new 
information and on March 29, 2006, published a proposed rule to list 
the Puget Sound steelhead DPS as threatened under the ESA (71 FR 
15666). The DPS was proposed to include all naturally spawned 
anadromous winter-run and summer-run steelhead populations, in streams 
in the river basins of the Strait of Juan de Fuca, Puget Sound, and 
Hood Canal, Washington, bounded to the west by the Elwha River 
(inclusive) and to the north by the Nooksack River and Dakota Creek 
(inclusive), as well as the Green River natural and Hamma Hamma winter-
run steelhead hatchery stocks. This proposal was informed by the 
conclusions of scientists on the Biological Review Team (BRT) who 
assessed the overall viability of this DPS. Based on this assessment, 
the BRT concluded that Puget Sound steelhead are likely to become 
endangered within the foreseeable future throughout all of their range. 
We also concluded that, at present, protective efforts in Puget Sound 
do not substantially mitigate the factors threatening the DPS's future 
viability, nor do they ameliorate the BRT's assessment of extinction 
risk. Additional details pertaining to these findings and the 
information reviewed for this DPS can be found in the documents cited 
above as well as agency status reviews (Busby et al., 1996; NMFS, 
2005).
    On February 7, 2007 (72 FR 5648), we proposed to issue protective 
regulations for Puget Sound steelhead under section 4(d) of the ESA. 
For species listed as threatened, section 4(d) of the ESA requires the 
Secretary of Commerce (Secretary) to issue such regulations as are 
deemed necessary and advisable to provide for the conservation of the 
species. Such 4(d) protective regulations may prohibit, with respect to 
threatened species, some or all of the acts that section 9(a) of the 
ESA prohibits with respect to endangered species. Both the section 9(a) 
prohibitions and section 4(d) regulations apply to all individuals, 
organizations, and agencies subject to U.S. jurisdiction. The 4(d) 
regulations we proposed are contingent on a final listing decision, and 
any finalized 4(d) rule may prohibit the take of Puget Sound steelhead 
except for specified categories of activities determined to be 
adequately protective of these fish.

Summary of Comments Received in Response to the Proposed Rule

    We solicited public comment on the proposed listing of Puget Sound 
steelhead for a total of 238 days and held one public hearing in 
Seattle, Washington (71 FR 15666, March 29, 2006; 71 FR 28294, May 16, 
2006). We also sought technical review of the scientific information 
underlying the proposed listing determination from seven independent 
experts. In response to the proposed listing we received over 30 
comments by fax, standard mail, and e-mail. The majority of comments 
received were from interested individuals who submitted e-mails or 
letters. Comments were also submitted by federal, state and tribal 
natural resource agencies, fishing groups, environmental organizations, 
conservation organizations, and individuals with expertise in Pacific 
salmonids. The vast majority of respondents supported listing Puget 
Sound steelhead under the ESA. We also received comments from four of 
the independent experts from whom we had requested technical review of 
the scientific information underlying the March 2006 proposed listing 
determination. Copies of the full text of comments received are 
available upon request (see ADDRESSES and FOR FURTHER INFORMATION 
CONTACT).
    Below we address the comments received that pertain to the listing 
determination for Puget Sound steelhead. The issues raised and our 
responses are organized into six general categories: (1) General 
Comments; (2) Comments on the Consideration of Hatchery Steelhead; (3) 
Comments on the Consideration of Resident O. mykiss; (4) Comments on 
the Assessment of Extinction Risk; (5) Comments on the Factors 
Affecting the Species; and (6) Comments on the Consideration of 
Protective Efforts/Mitigating Factors.

General Comments and Comments on Process

    Comment 1: Most commenters supported listing Puget Sound steelhead 
under the ESA, and many expressed concern over the species' decline and 
the potential impacts of that decline on business and recreation. Some 
comments expressed concern over the fact that the current status review 
for Puget Sound steelhead was completed only 10 years after the 
previous review which found that a listing determination was not 
warranted.
    Response: The BRT status review describes the various types of new 
information that are available since the review by Busby et al. (1996). 
In addition, there have been considerable scientific findings and 
policy development regarding the role of resident and hatchery O. 
mykiss in steelhead DPSs (see 70 FR 37204, June 28, 2005; 70 FR 67131, 
November 4, 2005; 71 FR 834, January 5, 2006). All of these 
considerations have been factored into this updated status review and 
support our determination that

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Puget Sound steelhead now warrant listing as a threatened species under 
the ESA.
    We recognize that steelhead are a prized gamefish in Puget Sound 
and that their decline has affected businesses and recreational 
pursuits. We will work with all stakeholders to help ensure that 
recovery planning proceeds apace so that Puget Sound steelhead continue 
to provide the spectrum of ecological, cultural, and economic benefits 
that underscore their status as the state fish of Washington.
    Comment 2: Two commenters argued against listing steelhead at this 
time and instead recommended that we make a finding that listing is 
warranted but precluded or classify this DPS as a species of concern. 
One contended that because other ESA-listed species in Puget Sound 
(e.g., Chinook salmon) share habitat with this DPS, an additional 
listing in the region would add another layer of regulation with little 
resultant benefit to the species. Additionally, this commenter believed 
that listing steelhead would divert resources away from implementing a 
recovery plan for Chinook salmon.
    Response: Our decision to list Puget Sound steelhead is based on 
the required assessments identified in section 4 of the ESA and guided 
by agency policies such as the PECE (68 FR 15100; March 28, 2003). Once 
a species has been proposed for listing, section 4(b)(6)(A) of the ESA 
does not allow us to issue a warranted but precluded finding. Such a 
finding is only permissible at the time of a proposed rule (see section 
4(b)(3)(B)), not a final rule. Species of concern are those about which 
we have concerns regarding status and threats, but for which 
insufficient information is available to indicate a need to list the 
species under the ESA. This is not the case for Puget Sound steelhead, 
as evidenced by the findings of the BRT, and our assessment of the 
factors contributing to the decline of steelhead and efforts being made 
to protect the species.
    We recognize that steelhead and threatened Puget Sound Chinook 
salmon share many streams and that actions benefitting one species 
would in many cases benefit the other. However, this fact did not alter 
our conclusions based upon our analysis of the threats facing West 
Coast steelhead under section 4(a)(1) of the ESA. Also, the species' 
overlap is not complete and there are a substantial number of 
independent streams, and upstream and tributary habitats in major river 
systems where only steelhead reside. In addition, steelhead use 
habitats differently and at different times than other salmonids. As 
noted elsewhere in this final rule, we expect that the recently adopted 
recovery plan for Puget Sound Chinook (Shared Strategy Development 
Committee, 2007) will accrue benefits to steelhead as well as expedite 
recovery planning for this DPS. Listing steelhead could divert some 
resources in the short term; however, comments and information received 
from WDFW, Indian tribes, and other co-managers and stakeholders have 
made it clear that there is a strong commitment to improving steelhead 
populations and their management in Puget Sound and statewide. We too 
are committed to helping find and provide the resources needed to help 
foster active recovery planning for all Puget Sound salmonids.
    Comment 3: One commenter suggested that the final rule would be 
more useful if it used a different format addressing the DPS's historic 
condition, current status with respect to viable salmonid population 
(VSP) parameters (McElhany et al., 2000), management action impacts 
(past and projected), and which management actions are needed to 
improve DPS viability. This commenter believed that this would provide 
a more accurate and informative discussion of issues that are 
fundamental to developing any eventual recovery plan.
    Response: Because this final rule is a listing determination and 
not a recovery plan, we have chosen instead to structure this rule in a 
manner that is consistent with the statutory framework and previous ESA 
listing decisions for West Coast salmonids. However, in our listing 
analysis we have identified current threats to the species' viability 
and considered the efficacy of efforts being made to protect the 
species. This has given us and Puget Sound stakeholders, many of whom 
actively participated in developing the recovery plan for Puget Sound 
Chinook (Shared Strategy Development Committee, 2007), a head start on 
recovery planning for Puget Sound steelhead. We also understand that 
the watershed-based resource management plans for steelhead currently 
under development in Puget Sound (WDFW, 2007) will incorporate VSP 
parameters and provide the detail required to identify management 
actions needed to promote recovery of steelhead.
    Comment 4: One commenter recommended that we solicit the views of 
the British Columbia Ministry of Environment.
    Response: We notified the British Columbia Ministry of Environment 
of the proposed ESA listing of Puget Sound steelhead but did not 
receive comments or information from them. However, one of the peer 
reviewers of the BRT's status review is a fisheries scientist with 
British Columbia's Ministry of Water, Land and Air Protection and an 
expert on steelhead biology.
    Comment 5: One commenter felt that the proposed listing fails to 
fully consider the tribes' role as managers and overlooks the 
significant costs on tribal resource management agencies and harvest 
opportunities associated with listing Puget Sound steelhead under the 
ESA.
    Response: We recognize that the tribes have longstanding cultural 
ties to steelhead and steelhead fisheries, and that a number of tribes 
have treaty-based co-management rights and responsibilities. And we 
acknowledge that steelhead are of economic importance to Indian people 
and embody cultural, ceremonial, and social dimensions of tribal life 
to the degree that the species is a significant symbol of tribal 
identity (NMFS, 2004). We also understand that an ESA listing of Puget 
Sound steelhead may impact some tribal fisheries and resource 
management agencies, at least in the short term. Steelhead recovery 
will only succeed with the active involvement of affected tribes. We 
will continue to recognize the tribes as vital co-managers of this 
important resource in the hope that steelhead runs can be restored as 
quickly as possible to meet treaty obligations and the needs of present 
and future generations.
    Comment 6: A peer reviewer and several commenters expressed concern 
about the lack of reliable data for this DPS. Another commenter 
expressed concerns about the adequacy of the peer review process as 
well as the lack of a co-manager review of the BRT's report.
    Response: While more data would help resolve some areas of 
uncertainty, we have sufficient data to assess the ESA status of Puget 
Sound steelhead. Moreover, as required by section 4(b)(1)(A) of the 
ESA, we have relied on the best scientific and commercial data 
available to make this listing determination. We requested and received 
such data from a variety of interested parties, including state and 
tribal co-managers. These data and other information are cited in this 
final rule, agency status reviews (Busby et al., 1996; NMFS, 2005), our 
proposed rule (71 FR 15666; March 29, 2006), and in the comments 
received on the latter and contained in our agency files (available for 
public inspection; see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
    Several of the 13 BRT members are acknowledged experts on steelhead

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biology in the Pacific Northwest, some with direct experience with the 
species in Puget Sound. As noted elsewhere in this final rule, we 
sought technical review of the scientific information underlying the 
March 2006 proposed listing determination from seven independent 
experts. All of the experts were selected based on their knowledge of 
steelhead biology. Four of them provided us with comments that were 
subsequently considered by the BRT and reflected in the agency's status 
review (NMFS, 2005). We also received and evaluated information from 
state and tribal co-managers on the proposed rule and the BRT's report.
    Comment 7: Several commenters requested that NMFS re-open the 
public comment period after WDFW publishes an anticipated white paper 
pertaining to steelhead management. These commenters felt that the 
public should have the opportunity to review WDFW's management plan to 
determine what effect, if any, it may have on the extinction risks to 
Puget Sound steelhead and the NMFS listing of the DPS.
    Response: On August 25, 2006, we received a letter from WDFW 
requesting our review of a July 21, 2006, draft report titled 
``Oncorhynchus mykiss: Assessment of Washington State's Anadromous 
Populations and Programs'' (WDFW, 2006a). This report--commonly 
referred to as the steelhead ``white paper<gr-thn-eq>--was also made 
available to the general public for comment. We provided comments to 
WDFW on this report, noting that overall we found it to be a very 
comprehensive and useful compilation of what is known about the biology 
and management histories of Washington's steelhead populations. 
However, we did not believe that the availability of this report 
warranted re-opening the comment period on our proposed listing because 
the report was essentially a synthesis of what is known (much of which 
we had already reviewed) about Washington steelhead. In addition, the 
report was primarily designed to lay the foundation for the development 
of improved management plans.
    In our proposed rule we stated that ``[i]f WDFW completes its new 
steelhead management plan prior to the publication of the final rule we 
anticipate considering it in developing our final listing 
determination.'' However, a final Puget Sound steelhead management plan 
has not yet been developed.
    Comment 8: One letter requested clarification of named populations 
in the 2005 status review ( i.e., if references to the Lake Washington 
winter run include steelhead in the Cedar River).
    Response: Population information on Lake Washington winter run 
steelhead was provided by WDFW. Lake Washington steelhead data included 
information on fish spawning in the Cedar River, Issaquah Creek, and 
Bear Creek, with the Cedar River contribution providing the majority of 
the escapement (number of adults that return to the spawning grounds). 
The BRT also reviewed fish passage information from the Lake Washington 
Ship Canal fish ladder, which would include fish spawning throughout 
the basin. The WDFW Salmonid Stock Inventory database identifies a 
number of tributaries, including the Cedar River, in the Lake 
Washington Basin where spawning steelhead have been observed.
    Comment 9: One letter requested clarification of the location of 
``impassible barriers'' and suggested the definition include an 
approximate location.
    Response: In our status review (NMFS, 2005) we identified some of 
the major natural and manmade barriers to steelhead (e.g., Snoqualmie 
Falls and Elwha Dam), emphasizing the general role that longstanding 
barriers play in isolating the anadromous and resident life forms. 
During our review it was not possible to identify the specific 
locations of all impassable barriers, in particular natural waterfalls 
and velocity/stream gradient barriers. Our biologists (see ADDRESSES) 
or those from the tribes or state and Federal agencies can assist in 
determining whether a specific barrier is passable or not.
    Comment 10: One commenter noted that fish passage above Landsburg 
dam became possible in September 2003, not 2002 as stated in the BRT's 
report (NMFS, 2005).
    Response: The statement in the BRT report should have stated that 
``Most of the information relevant to this question is from the Cedar 
River, where research is ongoing on resident and anadromous fish below 
and above Landsburg Dam, opened to steelhead migrating upstream in 
2003, after decades of isolation.''
    Comment 11: We received one correction comment, to add the South 
Fork Tolt River to the list of rivers under the Federal Energy 
Regulatory Commission agreement for instream flow management.
    Response: The statement in the proposed rule (at 71 FR 15677; March 
29, 2006) should have read, ``Instream flows are also provided through 
agreements negotiated with the Federal Energy Regulatory Commission on 
the Skagit, Sultan, Snoqualmie, South Fork Tolt, and Nisqually 
rivers.''
    Comment 12: A few commenters provided comments and information 
relevant to making a critical habitat designation for Puget Sound 
steelhead.
    Response: We will consider this information as we prepare a 
proposal to designate critical habitat for this DPS.

Comments on the Consideration of Hatchery Steelhead

    Comment 13: Several commenters expressed strong concerns about the 
negative impacts of hatchery steelhead in this DPS, urging that much 
more aggressive steps be taken to reduce these impacts. Some commenters 
disagreed with the decision to include Green River natural and Hamma 
Hamma winter-run hatchery steelhead in the DPS. They argued that 
protecting hatchery steelhead under the ESA by listing them alongside 
wild steelhead was inappropriate, particularly because research 
suggests that hatchery fish have a negative impact on the productivity 
of wild steelhead. In contrast, one commenter recommended hatchery 
steelhead be included in the DPS if they are derived from a local wild 
stock.
    Response: On June 28, 2005, we finalized a new policy for the 
consideration of hatchery-origin fish in ESA listing determinations 
(``Hatchery Listing Policy;'' 70 FR 37204). Under the Hatchery Listing 
Policy hatchery stocks are considered part of an evolutionarily 
significant unit (ESU) if they exhibit a level of genetic divergence 
relative to the local natural population(s) that is no more than what 
occurs within the ESU (70 FR 37204; June 28, 2005, at 37215). The 
considerations that informed the Hatchery Listing Policy for ESUs are 
equally valid for steelhead DPSs. We acknowledge that hatchery fish can 
have a negative impact on naturally-produced fish, and in our proposed 
rule we noted that adverse impacts from hatchery programs may be 
contributing to the declines in natural steelhead productivity. 
However, the Hatchery Listing Policy is based in part on the 
recognition that important components of the evolutionary legacy of 
West Coast salmon and steelhead can be found in hatchery stocks, and 
that many hatchery stocks are derived from, and not significantly 
diverged from, the naturally spawning stocks. We developed a test for 
including hatchery stocks in an ESU based upon a consideration of 
``whether a particular hatchery stock reflects an ESU's 'reproductive 
isolation' and 'evolutionary legacy''' (70 FR 37204; June 28, 2005, at 
37208). Those tests are equally applicable to determining

[[Page 26726]]

whether hatchery stocks reflect the discreteness and significance of 
steelhead DPSs.
    As described in our proposed rule and consistent with recent final 
listing determinations for 16 West Coast salmon ESUs (70 FR 37160; June 
28, 2005) and for 10 West Coast steelhead DPSs (71 FR 834; January 5, 
2006), we believe it is appropriate to list two locally-derived 
hatchery steelhead populations (Green River natural and Hamma Hamma 
winter-run) along with naturally-produced steelhead in the Puget Sound 
DPS. This decision is informed by our Hatchery Listing Policy, the 
conclusions of the Salmon/Steelhead Hatchery Assessment Group (SSHAG; 
NMFS, 2005), and the deliberations of the BRT. The BRT concluded that 
these hatchery stocks meet the Hatchery Listing Policy's test for 
inclusion in the DPS.
    As a separate matter, the BRT also explicitly considered both the 
potential positive and negative effects of hatchery production on the 
viability of Puget Sound steelhead. The BRT felt that the Green River 
natural and Hamma Hamma winter-run hatchery programs have the potential 
to benefit natural steelhead populations in their respective rivers, 
but acknowledged that both programs are relatively recent and have not 
collected sufficient data to demonstrate any contributions with any 
certainty. The BRT did note that the Hamma Hamma program does appear to 
have successfully increased the number of natural spawners in the 
population (although the relative increase in natural spawners is 
large, the absolute increase in natural spawners is modest), but the 
success of the program cannot be fully evaluated until the naturally 
produced offspring of the hatchery-origin fish return and reproduce.
    Comment 14: Several commenters contended that past and present 
harvest and hatchery management have essentially eliminated the 
important early returning life-history component of wild steelhead 
populations in this DPS. They argue that, despite WDFW's intent to 
temporally separate the hatchery run from the wild run, data 
demonstrate that hatchery males overwinter, residualize (remain in 
fresh water), and ultimately breed with wild females. This commenter 
contended that we failed to adequately evaluate the association of 
steelhead hatchery programs with overutilization of Puget Sound 
steelhead. This commenter believed that any evaluation of the risks of 
adverse genetic and ecological impacts from hatchery programs on the 
distribution, productivity, and diversity of Puget Sound steelhead 
should be made in the context of that fundamental relationship between 
hatchery management and overutilization.
    Response: There is some information available on the historical 
return and spawn timing of Puget Sound steelhead, but it is limited to 
catch records and anecdotal information. The BRT was unaware of any 
documentation suggesting a spawning habitat preference exhibited by the 
early component of the winter run. The BRT was concerned about the 
decline (or elimination) of this early component to life history 
diversity, but was unable to establish the magnitude of this loss.
    The existence of an early run component of naturally-produced 
steelhead was discussed by the BRT in relation to the effects of a 
directed harvest of early run, mass-marked (adipose-clipped) hatchery 
steelhead (i.e., Chamber's Creek winter run). The BRT reviewed 
information on hatchery-wild interactions, specifically the potential 
for interbreeding between hatchery and naturally-produced fish in 
Washington coastal streams. This information was important in the BRT's 
increased concern about hatchery effects relative to the 1996 BRT 
Status Review (Busby et al., 1996).
    Comment 15: One commenter questioned the assertion that the 
Chambers Creek hatchery stock is out-of-basin for all waterways in the 
DPS. This commenter pointed out that originally, the Chambers Creek 
stock was a composite of wild fish trapped from a variety of Puget 
Sound rivers, including the Green River. Therefore, Chambers Creek 
hatchery fish may not be out-of-basin for all waterways, such as the 
south sound rivers. The commenter requested that NMFS clarify how much 
composite stock or hatchery selection is necessary for a stock to 
change to the point of being considered out-of-basin.
    Response: The commenter is correct that the Chambers Creek hatchery 
stock (actually several broodstocks derived from the original Chambers 
Creek broodstock) is technically not an ``out-of-basin'' stock. 
Crawford (1979) reviews the history of this stock, including the 
evolution of the Chambers Creek and ``egg bank'' steelhead program. But 
this does not change our conclusion that it has sufficiently diverged 
from the remainder of the DPS such that it should no longer be 
considered part of this DPS. The BRT reviewed the findings of the SSHAG 
(NMFS, 2005) for this broodstock and noted that the intentional and 
unintentional selection of life history traits was a major factor in 
the SSHAG evaluation. The advancement in run- and spawn-timing of the 
Chambers Creek winter-run steelhead (almost 2 months) and acceleration 
of the onset of smoltification (1 year instead of 2 years) have 
dramatically altered the reproductive connectivity between the 
hatchery-origin and naturally-spawning adults. Additionally, the sole 
use of hatchery-origin fish for hatchery broodstocks greatly increases 
the potential for hatchery domestication, and there is evidence that 
Chambers Creek winter-run steelhead have a poor rate of natural 
spawning success (NMFS, 2005).
    Given the paucity of information on hatchery steelhead life-history 
traits in the natural environment and their fitness effects on 
naturally-spawning populations, it is not possible to ``quantify'' a 
threshold for exclusion. This is why we convened a SSHAG to review the 
best available information and provide us with conclusions regarding 
the relationship of hatchery fish to DPS composition and viability.
    Comment 16: Several commenters raised questions about the origin of 
steelhead currently spawning naturally in the Lake Washington system, 
particularly the Cedar River and Sammamish watershed. Some of these 
commenters believe that steelhead currently spawning naturally in this 
system are derived from Chambers Creek hatchery plants and not 
naturally spawning fish native to this system.
    Response: Genetic analysis by Marshall et al. (2006) on resident 
and anadromous O. mykiss in Lake Washington indicates that there are 
significant genetic differences between native Cedar River fish and 
Chambers Creek-derived hatchery winter steelhead. We therefore consider 
the naturally spawning populations in this system to be part of the 
Puget Sound DPS.
    In their review, the BRT cautioned that although WDFW's conclusion 
that there is little overlap in spawning between natural and hatchery 
stocks of winter steelhead throughout the ESU is generally supported by 
available evidence, for many basins it is based largely on models and 
assumptions regarding run timing rather than on empirical data.
    Comment 17: One commenter provided information correlating 
increasing hatchery smolt releases with declining adult returns, 
suggesting a ``density barrier'' to population expansion. This 
commenter also expressed concerns about hatchery smolts remaining in 
fresh water rather than migrating to the ocean (residualizing), and 
preying upon or spawning with natural steelhead

[[Page 26727]]

(particularly by residual precocious males). Another commenter echoed 
many of these concerns related to the release of millions of hatchery 
fish into this DPS, and one believed that we should have given greater 
attention to this issue in the status review and requested that at a 
minimum we do so in the final listing determination.
    Response: The BRT expressed concerned about the increasing numbers 
and overall proportion of hatchery-origin smolts released into rivers 
in this DPS; however, there is not sufficient information on behavioral 
and resource competition, predation, or other ecological interactions 
to assess the ``density barrier'' assertion. Factors such as declining 
freshwater, estuarine, and marine productivity would independently or 
in combination with hatchery effects produce the same effect. The 
myriad of factors that could produce the trends observed make it very 
difficult to associate correlated responses with causal factors. We 
will continue to address issues related to artificial propagation as we 
proceed with ESA consultations, permitting, and recovery planning in 
Puget Sound.

Comments on the Consideration of Resident O. mykiss

    Comment 18: Several commenters disagreed with our application of 
the DPS Policy criteria in separating the resident and anadromous forms 
of O. mykiss in this DPS. One commenter cited the U.S. Fish and 
Wildlife Service's (FWS) listing of bull trout (Salvelinus confluentus; 
64 FR 58910, November 1, 1999) as precedent for listing together the 
different life history forms because all are essential to the survival 
of the DPS. Another commenter felt resident fish should be considered 
in the context of protective measures for steelhead. Other commenters 
supported the listing of the two life forms separately, but encouraged 
further research to increase our understanding of the interactions 
between the two. These latter commenters encouraged NMFS to consider 
the relationship between resident and anadromous O. mykiss in the 
course of other ESA activities (e.g., recovery planning).
    Response: In our recently updated listing determinations for West 
Coast steelhead (71 FR 834; January 5, 2006), we responded to similar 
comments regarding our application of the DPS policy in delineating 
``species'' of O. mykiss under the ESA. The reader is referred to these 
determinations (see 71 FR 834; January 5, 2006, at 836 through 841) for 
more detailed information and discussion of the above and other issues 
relating to our delineation of steelhead DPSs.
    NMFS did not include resident and anadromous O. mykiss in the same 
DPS because under the DPS policy, a population or group of populations 
is considered a DPS if it is first ``discrete'' from other such 
population units, and then only if it is ``significant'' to the taxon 
as a whole. Whether a given life form contributes to the viability of 
the species does not necessarily determine whether that life form is 
``markedly separated'' from other components of the species. For 
example, a subspecies will often contribute significantly to the 
overall viability of a species but still be markedly separated from 
other subspecies.
    In its 1999 listing determination for the Coastal-Puget Sound bull 
trout DPS (64 FR 58910; November 1, 1999) the U.S. Department of the 
Interior found that the resident, migratory, anadromous, amphidromous, 
fluvial, and adfluvial life-history forms were not discrete because 
they interbreed. DOI concluded, as the commenter asserts, that 
reproductive exchange and genetic similarity between different life-
history forms requires that they be included as parts of the same DPS, 
regardless of any ``marked separation'' in phenotypic traits. While we 
acknowledge that the expression of a range of life histories in bull 
trout and other fish species (e.g., coastal cutthroat trout) may raise 
similar issues to those we confronted in delineating DPSs of O. mykiss, 
there are important differences between O. mykiss and these other 
species. In addition to expressing anadromy (the life-history pattern 
in which fish spend a large portion of their life cycle in the ocean 
and return to fresh water to breed), bull trout and coastal cutthroat 
trout express amphidromy (migration between fresh and salt water that 
is for feeding and overwintering, as well as breeding). While the 
anadromous and resident forms of O. mykiss differ clearly in ocean-
migratory behavior and associated biological factors, the migratory 
behavior and associated physical, physiological, and ecological factors 
are comparatively blurred among the life-history forms and stages of 
bull trout and coastal cutthroat trout. Accordingly, application of the 
DPS policy to these various species may very well produce different 
results due to the varying level of separation among their life-history 
forms.
    Efforts to protect resident O. mykiss could be considered in the 
context of efforts being made to protect the species, because the 
health of related resident O. mykiss populations may have a bearing on 
the viability of the anadromous populations. No information was 
presented, however, that would lead us to conclude that any protective 
efforts for rainbow trout are likely to change the steelhead DPS's risk 
of extinction.
    It is essential to improve our understanding of the interactions 
between the anadromous and resident life-history forms of O. mykiss. 
Additional scientific research could elucidate the factors affecting 
reproductive exchange between the two life forms, as well as their 
respective contributions to the viability of O. mykiss as a whole. 
These considerations may prove to be important in the context of 
recovery planning and assessing risks faced by the O. mykiss species as 
a whole. At present, there is insufficient information to evaluate 
whether, under what circumstances, and to what extent the resident form 
may contribute to the viability of steelhead over the long term (NMFS, 
2005; Recovery Science Review Panel, 2004; Good et al., 2005; 
Independent Scientific Advisory Board, 2005).
    Comment 19: One letter commented on the BRT's statement that rivers 
west of the Cascades rarely support resident rainbow trout populations 
unless the watersheds have been significantly modified, and resident 
native populations appear to be relatively rare above natural barriers. 
This commenter argued that rainbow trout are present in many rivers 
west of the Cascade Mountains in those areas where the anadromous life 
history form is not dominant, including the upper Skagit River 
tributaries and the upper Snoqualmie River. One commenter felt it might 
be appropriate to add a discussion of the unique adfluvial (migrating 
between lakes and streams) life history pattern of a portion of the 
Cedar River O. mykiss.
    Response: Rainbow trout are present in some of these western 
Washington systems, but they are rare above natural barriers to 
anadromous migration. Although there is potential for resident trout to 
function in a temporary manner to help maintain O. mykiss populations 
through extreme periods of low marine survival, this life history form 
is unlikely to maintain connections to other populations a critical 
role for the anadromous life history in contributing to the ESU's 
diversity and viability. Evidence for the level of interbreeding 
between resident and anadromous forms is limited and appears to vary 
considerably between coastal and inland O. mykiss populations, as well 
as on a basin by basin basis.
    It is possible that this interaction may provide a short-term 
demographic

[[Page 26728]]

resiliency, although loss of the anadromous form would result in a 
catastrophic decline in diversity, and probably also spatial structure. 
Ultimately, the BRT's task was assessing the longer term risk of 
extinction facing Puget Sound steelhead, and to accomplish this task it 
focused on the primary data available: trends in abundance and 
productivity of anadromous fish. Although the O. mykiss life history 
appears to be extraordinarily plastic, and resident and anadromous fish 
both may produce the alternate life history form, the extent to which 
resident fish produce anadromous adults is largely unknown. In 
addition, the freshwater ``trout niche'' in Puget Sound is already 
occupied primarily by native coastal cutthroat trout, and the extent 
that resident O. mykiss alone can maintain self-sustaining natural 
populations in direct competition with cutthroat trout is unknown.
    The adfluvial life form in the Cedar River appears to be somewhat 
unique to Puget Sound, and may be related to the highly modified nature 
of the river basin, especially its redirection into Lake Washington 
from the Green River Basin and the longstanding effects of Landsburg 
Dam in dividing the watershed.

Comments on the Assessment of Extinction Risk

    Comment 20: Most commenters supported a listing of Puget Sound 
steelhead as a threatened species, although one recommended endangered 
status due to concerns about efforts being made to protect the species. 
One commenter provided data for five steelhead populations that 
indicate the largest populations of winter-run steelhead have 
experienced a period of pronounced decline in abundance, recruitment, 
and productivity beginning around 1989 and continuing to the present. 
One commenter suspected that the declines are likely to be DPS-wide. 
This commenter expressed concern that there is no information on the 
productivity of summer populations within the DPS and that this lack of 
information supports an endangered listing.
    Response: We have reviewed the comments and new information 
provided by commenters and believe that Puget Sound steelhead do 
warrant listing as a threatened species. The BRT was presented with 
information received during the comment period and concluded that there 
was no basis for changing their conclusion that Puget Sound steelhead 
are likely to become endangered within the foreseeable future 
throughout all of their range. Nor was the BRT aware of any new or 
forthcoming information that would warrant a reassessment of this 
conclusion. Consistent with the commenter's concern about DPS-wide 
declines, we note that the BRT stated that ``marked declines in natural 
run size are evident in all areas a pattern that reflects widespread 
reduced productivity of natural steelhead'' (NMFS, 2005).
    Comment 21: A peer reviewer noted that the BRT's risk assessment 
was based on expert opinion due to the lack of sufficient empirical 
data. This reviewer noted that such data constraints limit the review 
and its veracity but acknowledged that the BRT's methods cannot be 
faulted. He noted that several times ``there was the mention of 
negative impact of hatchery fish on wild, and that hatchery fish have 
apparently made no contribution to wild adult returns. I suspect this 
is largely speculation, albeit accurate in my view.'' He also made 
several specific recommendations: (1) Explaining how data were obtained 
and any uncertainties with the data; (2) including an analysis from 
WDFW's Snow Creek studies (especially with respect to post-smolt 
migration pathways); (3) including the cited report by Light (1987) in 
the references; (4) evaluating cutthroat hybridization with steelhead; 
and (5) including an assessment of how climate change may affect Puget 
Sound steelhead. The latter recommendation was also made by another 
commenter, noting that the decline in steelhead abundance has coincided 
with a period of high hydrological variability during which fish are 
vulnerable to closely timed high and low flow events.
    Response: The BRT relied heavily on catch and escapement data 
provided by WDFW for its risk analyses; this information constitutes 
the best available data, but there is still considerable uncertainty in 
the data, particularly for some populations.
    The commenter is correct that our knowledge regarding the 
contribution of hatchery fish to natural steelhead reproduction in 
Puget Sound is limited. The conclusion that hatchery programs threaten 
the viability of Puget Sound steelhead is based on several steelhead 
studies in the Pacific Northwest published between 1977 and 2007, all 
of which show a depression in the reproductive performance of 
domesticated or out-of-basin hatchery steelhead spawning in the wild. 
The BRT concluded that efforts by hatchery managers to prevent natural 
spawning by Chambers Creek winter-run and Skamania summer-run hatchery 
fish were unlikely to be completely effective, with potentially adverse 
consequences. The BRT concluded that opportunities for genetic and 
ecological interactions between hatchery and wild steelhead in Puget 
Sound were substantial, with significant potential to reduce natural 
productivity. Moreover, the fixed March 15 threshold used by WDFW to 
separate spawning censuses of hatchery and wild fish confounds 
evaluations of those potential hatchery fish effects (i.e., spawning 
hatchery and wild fish may overlap later than that date), thus 
increasing scientific uncertainties. Until studies more clearly 
identify the effects of interbreeding between hatchery and wild 
steelhead, prudent management would reduce the opportunity for 
interaction between hatchery and wild fish (e.g., by eliminating 
``outplanting'' and by using hatchery broodstocks genetically and 
phenotypically similar to local wild fish).
    Available research on Snow Creek winter-run steelhead represents 
one of Puget Sound's longest term, watershed-scale studies on this 
species. However, the BRT did not formally include Snow Creek winter-
run steelhead in its analysis of DPS risk because this population 
exhibits some sharp differences from other steelhead on the Olympic 
Peninsula and Puget Sound. The BRT concluded that the Snow Creek system 
is not representative of the level of human development seen in many 
other Puget Sound streams. The watershed enters Discovery Bay, an 
eastern Strait of Juan de Fuca tributary, so steelhead do not have to 
pass through a long fjord on their way to and from their freshwater 
home as do other Puget Sound stocks. There is some development along 
Snow Creek (including one of the most extensive clear-cuts in 
Washington state), but the stream lacks the urban and industrial 
changes seen in many other areas. Additionally, Snow Creek is a 
relatively small lowland watershed, lacking many of the features and 
species interactions found in larger river basins. Based on these 
differences, the BRT members were reluctant to extrapolate trends in 
the Snow Creek steelhead population to those of southern Puget Sound, 
for example. The BRT examined Snow Creek steelhead abundance data to 
evaluate their patterns relative to other Puget Sound steelhead trends, 
and it appears that the recent trend in abundance of Snow Creek 
steelhead is similar to that observed for several Puget Sound steelhead 
populations, including some surrounding populations from the Strait of 
Juan de

[[Page 26729]]

Fuca; Snow Creek steelhead show a recent sharp decline in adult 
abundance with a very recent modest upswing.
    The BRT discussed rainbow/steelhead and cutthroat hybridization in 
its review. Although specific areas with relatively high incidences of 
hybrid fish have been identified, it is unclear how extensive this 
occurrence is. Additionally, in the absence of a historical baseline, 
it is unclear if the hybridization observed represents a natural 
process or one that is influenced by anthropogenic activities such as 
fish introductions or habitat disturbances. This topic is in need of 
concerted research before an evaluation in the listing context would be 
meaningful.
    The BRT did not specifically evaluate how climate change might 
affect Puget Sound steelhead because such an evaluation would be highly 
speculative given the state of available evidence. In the proposed 
rule, we acknowledged that variability in ocean and freshwater 
conditions can have profound impacts on the productivity of salmon and 
steelhead populations. Natural climatic conditions have at different 
times exacerbated or mitigated the problems associated with degraded 
and altered riverine and estuarine habitats. We conclude that ocean-
climate change and variability is a factor contributing considerable 
uncertainty to the viability of the Puget Sound steelhead DPS into the 
foreseeable future.
    Comment 22: One commenter presented findings indicating that 
populations in the Skagit and Snohomish have a low risk of extinction. 
This commenter contended that winter-run steelhead in the Skagit, 
Snohomish-Skykomish, Pilchuck, Snoqualmie, and Green rivers and Morse 
Creek and other Strait of Juan de Fuca streams had a relatively low 
risk of extinction (WDFW, 2006b).
    Response: The BRT did not find that extinction risk was high in the 
Skagit and Snohomish River winter-run populations; what the BRT found 
was that abundance had declined significantly in both since the 1996 
review and that declining trends were evident in recent years. This 
pattern contrasted with that evidence in the previous review of 
steelhead in Puget Sound (Busby et al., 1996), and was cause for 
concern among all BRT members. The other populations mentioned are 
small and therefore vulnerable to unpredictable events, even though 
their risk of imminent extinction is also probably low. The BRT based 
its conclusion about extinction risk for Puget Sound steelhead 
primarily on: (1) The widespread declines in adult abundance (total run 
size), despite significant reductions in harvest in recent years 
(strongly implying declining productivity of naturally spawning 
steelhead); (2) the threats to diversity posed by use of two hatchery 
stocks of steelhead inconsistent with wild stock diversity throughout 
the DPS; (3) the declining diversity in the DPS, including the 
uncertain but weak status of summer-run fish in the DPS; and (4) a 
reduction in spatial structure for steelhead in the DPS. The most 
striking difference in the BRT and WDFW reviews was the use of total 
run size by the BRT and escapement by WDFW. NMFS believes that by not 
including harvest, the WDFW analysis masks declines in overall 
productivity. The lack of a recent resurgence in abundance of Puget 
Sound steelhead since ocean conditions in the region have generally 
improved and since harvest rates have declined are key to understanding 
the factors that limit steelhead productivity in this DPS.
    Comment 23: One commenter questioned our analysis of abundance 
trends for Puget Sound steelhead, noting that it differed from recent 
analyses by WDFW (in particular for the Skagit River) (WDFW, 2006a; 
WDFW, 2006b). Several other commenters expressed concern that WDFW's 
computed escapement goals were too low and ignored historical records 
indicating that some streams supported considerably larger runs of 
steelhead. Two commenters believed that the historical run size of 
Puget Sound steelhead may have been twice that estimated by the BRT.
    Response: The BRT's risk assessment was based primarily on total 
run size, not escapement. The BRT believes that trends in run size are 
a better indicator of productivity and abundance of naturally 
reproducing fish; in addition, run size trends are independent of any 
changes in WDFW's escapement goals for Puget Sound steelhead 
populations.
    With a few exceptions, there was little information that the BRT 
could use to develop statistical trends in abundance. A form of 
population viability analysis was provided by one commenter to the BRT 
for five of the largest steelhead populations in Puget Sound. This was 
possible because relatively complete adult abundance data (in the form 
of expanded redd counts) and age structure were known for these 
populations. The BRT reviewed these analyses and concluded that they 
were useful in corroborating additional analyses of trends in 
productivity and abundance. The BRT also concluded that the utility of 
this approach was limited by the use of an average age structure taken 
from historical data to estimate recruits and by failing to account for 
errors in estimates of spawner abundance. Concerns regarding the use of 
an average age structure in evaluating recruitment relationships may be 
relatively minimal compared to other factors, but the BRT felt that the 
fact that this age structure is based on much older data than the 
spawner-recruit time series may impose undue bias on the analyses. 
Although the run size and escapement data used in the commenter's 
analysis for the five populations were recent (through 2001-2003, 
depending on the population), the age structures were not. The age 
structure data were obtained from scales and tags recovered in the late 
1980s and early 1990s, a period not coincident with the abundance data. 
Failing to account for temporal variability in age structure can bias 
estimates of productivity by overestimating recruitment in small 
cohorts and underestimating recruitment in large cohorts. Furthermore, 
and more importantly, the errors surrounding the estimates of spawner 
abundance remain unknown (but are probably quite high, e.g., the 
proportion of redds dug by hatchery-origin steelhead). Thus, the BRT 
concluded that the commenter's analysis had significant limitations. In 
its own analysis, the BRT could not avoid all these sources of bias but 
tried to minimize them by basing calculations on empirical age 
structure distributions that varied over time, where they were 
available, and identifying where this was not possible.
    The BRT also noted that the fit of the stock-recruit data in the 
commenter's analysis was not evaluated quantitatively, and the BRT 
therefore attempted to fit these data to alternative models. In 
general, the fit of the data to either Ricker or Beverton-Holt stock-
recruit models was very poor; for each of the five populations, a 
simple density-independent model such as the random-walk model with 
trend provided fits equally as good. Nevertheless, the fits to the 
random-walk model with trend were also poor.
    The BRT therefore used several analyses to look for emergent 
patterns in the abundance and productivity trends, including estimates 
of trend, population growth rates, and estimates of recruits per 
spawner. Analysis of population growth rates does not account for 
density dependent productivity; however, the BRT's ability to detect 
such factors with the available data was limited because of the 
scientific uncertainties and assumptions associated with the spawner-
recruit relationships. Nevertheless, the conclusions drawn from the 
BRT's

[[Page 26730]]

analyses were remarkably similar to those drawn from the commenter's 
analyses, despite limitations in the methods of both of them. Both the 
BRT and commenter's analyses express concern over low abundance and 
eroding productivity in even the largest and most robust populations in 
the DPS.
    Any effort to model future population trends should account for 
recurring cyclic effects (such as ocean productivity cycles caused by 
decadal oscillations and marine upwelling) and long-term trends (such 
as freshwater habitat changes). The available data do not allow us to 
identify and partition these types of effects, which led the BRT to 
employ the more conservative approach of not assuming population 
improvements as a result of potential future cyclic improvements in 
ocean productivity.
    Historical estimates of Puget Sound steelhead run size were based 
on expansions of commercial harvest (in pounds or fish) in the late 
1800s and early 1900s. Given the uncertainties in estimating the catch, 
fishing effort, and historical average size, it is not surprising that 
there would be substantial differences in estimates. Nevertheless, 
estimates derived by the BRT and those submitted by the commenters 
indicate that there has been a substantial decline in the abundance of 
naturally-produced steelhead in the last 100 years.
    Comment 24: One commenter requested that we clarify our use of the 
term ``viability'' as it pertains to salmonids.
    Response: As described in McElhany et al. (2000), a viable salmonid 
population is an independent population of any Pacific salmonid (genus 
Oncorhynchus) that has a negligible risk of extinction due to threats 
from demographic variation (random or directional), local environmental 
variation, and genetic diversity changes (random or directional) over a 
100-year time frame.
    Comment 25: One commenter presented findings indicating that the 
number of winter steelhead spawners was above the state's management 
goal in 67 percent of the watersheds assessed, the number of winter 
steelhead spawners had or were expected to increase relative to the 
review by Busby et al. (1996), or a substantial number of resident O. 
mykiss were present. In contrast, other commenters believed that state 
management goals for steelhead had been set too low and would suggest 
that Puget Sound steelhead are healthier than they really are. Two 
commenters addressed the spatial distribution of steelhead and one of 
these contended that the percentage of the historical habitat occupied 
by the Puget Sound steelhead DPS is consistent with other non-listed 
DPSs.
    Response: We have not reviewed in detail the state's management 
goals for winter steelhead and cannot assess whether the levels are 
appropriate to ensure the long-term viability of the DPS. Such a review 
should also consider summer steelhead and will need to occur in 
partnership with our state and tribal co-managers during ESA 
consultations and permitting reviews, and with all interested 
stakeholders during recovery planning. We do note that more than half 
of the watersheds identified as above management goals for winter 
steelhead have relatively small runs, each averaging 102 fish or less 
from 2002-2005 (WDFW, 2006b). We also note that the BRT did express 
concerns over reductions in escapement goals for steelhead runs in 
several watersheds, including the relatively large run in the Skagit 
River.
    The BRT reviewed the most recent abundance data for 2005 and the 
projections for 2006 (WDFW, 2006b). These data, which were not 
available prior to our proposed rule, indicate that winter steelhead 
abundance in 2005 was actually lower than the 2004 estimates in every 
watershed reviewed. Moreover, in all but one watershed, the 2006 
projections are also lower than the 1991-1994 average abundance 
considered in our earlier status review (Busby et al., 1996). These 
data do not suggest a lessening of abundance-related risk for this DPS.
    The evidence for a substantial number of resident fish appears to 
be restricted to a single watershed (Lake Washington). As noted in a 
previous response, there is insufficient information to evaluate 
whether, under what circumstances, and to what extent the resident form 
may contribute to the viability of steelhead over the long term. 
Additional scientific research is needed to more fully understand the 
roles and interactions of the anadromous and resident life forms.
    The percentage of historical habitat still occupied by Puget Sound 
steelhead is one of many parameters that we considered in making this 
final listing determination. While the data referenced by one commenter 
(WDFW, 2006a) suggest that this percentage is high relative to other 
ESA-listed DPSs, the data also indicate that watersheds with some of 
the highest production potential (e.g., the Skagit River and Green/
Duwamish River) have potentially suffered the greatest loss in habitat. 
In addition, these data do not reveal the related and significant 
decline in the quality of remaining habitat highlighted by the BRT 
(NMFS, 2005) and in our proposed rule (71 FR 15666; March 29, 2006).

Comments on the Factors Affecting the Species

    Comment 26: Several commenters agreed with our determination that 
habitat loss is a principal factor limiting the viability of the DPS. 
One commenter believed that we failed to focus on habitat limiting 
factors particular to steelhead (e.g., susceptibilities during extended 
freshwater rearing) and believed that degraded habitat exerts the 
greatest influence on steelhead survival. Other commenters believed 
that we provided a superficial treatment of the biological and 
demographic conditions of the DPS and as a result presented a poorly 
grounded conclusion that habitat modification and destruction is the 
principal limiting factor for Puget Sound steelhead. One commenter 
believed that some habitat restoration efforts are misguided (e.g., 
large woody debris placement) and actually damage the river channel.
    Response: We believe that we have accurately portrayed the role 
that habitat loss and modification have played in the decline of this 
DPS. Habitat issues were discussed at length by the BRT, and several of 
the 13 BRT members (including scientists from four Federal agencies) 
have extensive knowledge working with steelhead habitat issues in Puget 
Sound. We also base our assessment on more than 8 years of 
consultations for other ESA-listed species, namely Chinook and summer-
run chum salmon, that share many habitat areas with Puget Sound 
steelhead. The vast majority of our ESA consultations involve 
evaluating actions that affect salmonid habitat. We have also been 
actively engaged in the development of numerous ESA habitat 
conservation plans affecting dozens of Puget Sound watersheds and have 
played a significant role in the development and recent adoption of a 
recovery plan for Puget Sound Chinook. We will address issues specific 
to steelhead as we continue working with these stakeholders and co-
managers to determine what if any changes are needed to actions that 
modify salmonid habitat (including restoration efforts).
    Comment 27: Two commenters did not agree with our assessment 
regarding the overutilization of Puget Sound steelhead for commercial, 
recreational, scientific, or educational purposes. They believed that 
overutilization likely is a factor limiting the viability of this DPS 
and argued that even low mortality

[[Page 26731]]

from harvest could continue to limit the viability of the DPS. One took 
exception to the BRT report's characterization that the Skagit River 
escapement goal was recently lowered to ``support harvest'' and was 
cited as one of the reasons for the proposed listing.
    Response: We did not receive new information to support a change in 
our conclusion that overutilization for recreational purposes was a 
factor that contributed to the past decline of Puget Sound steelhead 
populations but is not believed to be a primary factor limiting the 
viability of the Puget Sound steelhead DPS into the foreseeable future. 
We will, however, actively consult with state and tribal co-managers 
under the ESA and review harvest and associated hatchery strategies for 
this DPS to ensure that they do not jeopardize its continued existence.
    The BRT acknowledged that questions regarding carrying capacity 
were a primary impetus for co-managers to reduce the escapement goals 
in the Skagit River basin. The BRT's statement reflects a general 
concern by the BRT that the Skagit River (one of the largest producers 
of steelhead in Puget Sound) may be subjected to reduced escapements at 
a time when the basin's abundance is much reduced from the past.
    Comment 28: We received a number of comments regarding the role of 
tribal netting in the overutilization of steelhead in Puget Sound. 
These commenters felt that tribal fishing is an important aspect of 
overutilization of the DPS and needs either greater oversight or a 
complete moratorium in order to protect steelhead populations. One 
commenter argued that tribal fishing is not monitored enough by 
authorities and so take numbers are higher than what is allowed.
    Response: We have not received information that would lead us to 
the conclusion that tribal fisheries overutilize Puget Sound steelhead. 
A number of Puget Sound tribes have federally-recognized treaty rights 
to fish for steelhead, and in most areas their fisheries target 
hatchery fish. The tribes in many cases have curtailed their fisheries 
or refrained from fishing to conserve salmon and steelhead. We will 
continue working with the tribes to address harvest and other issues 
that affect the long-term viability of Puget Sound steelhead and 
treaty-based fisheries.
    Comment 29: NMFS received several comments disagreeing with the 
assertion that disease and predation are not factors limiting the 
viability of the DPS. Commenters felt that this issue deserves greater 
research and requested that NMFS acknowledge uncertainty about the role 
these factors play in the decline of the DPS. One commenter claimed 
that low abundances, diversity, and distribution, limited habitat, and 
poor productivity make the DPS more vulnerable to the effects of 
disease and predation.
    Response: Additional research is needed to determine if and how 
disease and predation, in combination with other factors, may limit the 
viability of Puget Sound steelhead. It is our understanding that little 
research on steelhead is currently being undertaken in these important 
areas.
    Comment 30: There was general agreement by commenters that no 
single factor described in Section 4(a)(1) of the ESA and NMFS' 
implementing regulations (50 CFR part 424) has caused the decline of 
Puget Sound steelhead. Many commenters felt that a primary focus for 
recovery of the DPS should be an improvement of hatchery practices. 
Others believed that habitat restoration and protection are essential 
to the recovery of the DPS. In particular, some commenters felt that 
hydropower dams, floodplain development, water withdrawals, and logging 
are factors in the decline of the DPS that must be addressed in 
recovery planning.
    Response: These and other factors have contributed to the decline 
of Puget Sound steelhead and will need to be addressed in recovery 
planning for this DPS. We believe that the recent Shared Strategy for 
Puget Sound (Shared Strategy Development Committee, 2007) provides an 
excellent foundation upon which to build and address issues and risk 
factors unique to Puget Sound steelhead. We are also encouraged by 
WDFW's progress in developing statewide and regional plans for 
steelhead to promote policies, strategies, and actions that will 
improve steelhead management in Puget Sound and elsewhere.

Comments on the Consideration of Protective Efforts/Mitigating Factors

    Comment 31: Two commenters agreed with our determination in the 
proposed rule that existing protective efforts, including the Shared 
Strategy for Puget Sound (Shared Strategy Development Committee, 2007), 
hatchery reform efforts, and Habitat Conservation Plans, are not 
adequate to remedy the harmful factors that are depressing Puget Sound 
steelhead. Others believed that habitat protection and restoration 
provisions, including the Washington Forest Practices and Governor's 
Puget Sound Initiative, are far more substantial than those in place at 
the time of our initial status review (Busby et al., 1996). Many 
expressed concern that we would inappropriately apply our PECE policy 
and decide that listing is not warranted. Another requested 
clarification of which land-use regulations across Puget Sound do not 
adequately address the continued threats from habitat degradation and 
modification and which presently unregulated activities, require 
regulation to protect the habitat of the DPS.
    Response: We have not received information to support changing our 
conclusion that current protective efforts collectively do not provide 
sufficient certainty of implementation and effectiveness to 
substantially ameliorate the level of assessed extinction risk for 
Puget Sound steelhead. While we acknowledge that many of the ongoing 
protective efforts are more substantial than those in place when we 
originally reviewed the status of this DPS, many efforts are relatively 
recent or still under development, and as yet have insufficient 
regulatory measures and/or resources in place to assure their 
implementation and effectiveness in addressing the factors for the 
decline of and threats facing Puget Sound steelhead.
    In our proposed rule we identified a number of land use activities 
that impact Puget Sound steelhead, including forestry, agriculture, and 
urban development (71 FR 15672; March 29, 2006). In addition, the local 
watershed chapters in the recent recovery plan for Puget Sound Chinook 
(Shared Strategy Development Committee, 2007) are an excellent resource 
for understanding the myriad land use issues (and restoration 
opportunities) facing salmon and steelhead in specific watersheds 
throughout Puget Sound. Through our ESA consultations and ongoing 
recovery planning forums we will continue to collaborate with tribal, 
Federal, state, and local entities, and the public to promote and 
improve efforts being made to protect Puget Sound steelhead.

Final Species Determination

    We did not receive nor review any new information that would 
warrant revision of the proposed geographic boundaries delineating the 
Puget Sound steelhead DPS. These steelhead are markedly separated from 
other such population groups of O. mykiss as a consequence of physical, 
physiological, ecological, or behavioral factors (Busby et al., 1996; 
NMFS, 2005). Therefore, we conclude that steelhead in Puget Sound 
satisfy the ``discreteness'' criterion under the joint DPS policy. We 
also conclude that Puget Sound steelhead

[[Page 26732]]

represent an important component in the evolutionary legacy of the O. 
mykiss species based on their unique life-history, genetic, and 
ecological characteristics, as well as the unique glacial and fjord-
like characteristics of the ecoregion occupied (Busby et al., 1996). 
These traits satisfy the ``significance'' criterion of the joint DPS 
Policy. If Puget Sound steelhead DPS were lost, it would represent: (1) 
the loss of unusual or unique habitats and ecosystems occupied by the 
species; (2) a significant gap in the species' range; and (3) a 
significant loss to the ecological, life-history, and genetic diversity 
of the taxon.
    Based on the BRT's findings, our review of comments summarized 
above, and our considerations under the joint DPS policy, we conclude 
that Puget Sound steelhead warrant delineation as a DPS under the ESA. 
Consistent with our proposed rule, the geographic boundaries of the 
Puget Sound steelhead DPS continue to include winter- and summer-run 
steelhead populations in the river basins of the Strait of Juan de 
Fuca, Puget Sound, and Hood Canal, Washington, bounded to the west by 
the Elwha River (inclusive) and to the north by the Nooksack River and 
Dakota Creek (inclusive).

Final Assessment of Extinction Risk

    We did not receive any new information that would warrant revision 
of the BRT's assessment of extinction risk. As described in more detail 
in our proposed rule for this DPS (71 FR 15666;, March 29, 2006), the 
BRT assessed the risk of extinction for Puget Sound steelhead at two 
levels: first at the individual population level; and then at the 
overall DPS level. At both levels the BRT evaluated the likely 
contributions of resident and hatchery-origin fish to DPS viability. 
The BRT's DPS-level extinction risk assessment reflects professional 
scientific judgment guided by an analysis of the factors contributing 
to VSP (McElhany et al., 2000), as well as by expectations about the 
likely interactions among the individual VSP factors. Specifically, the 
BRT concluded that there is: (1) A high risk to the viability of Puget 
Sound steelhead due to declining productivity and abundance; (2) a 
moderate risk due to reduced spatial complexity of, and connectivity 
among, populations; and (3) a moderate risk due to the reduced life-
history diversity of populations and the potential threats posed by 
artificial propagation and harvest practices in Puget Sound. As a 
result, an overwhelming majority of the BRT concluded that Puget Sound 
steelhead are likely to become endangered within the foreseeable future 
throughout all of their range.
    The BRT's conclusion was expressed in terms that correspond to the 
statutory definition of a threatened species in the ESA. The BRT's 
assessment, however, did not include an evaluation of efforts being 
made to protect the species, as required under section 4(b)(1)(A) of 
the ESA. The following sections briefly summarize the likely factors 
for the decline of Puget Sound steelhead, as well as the efforts being 
made to protect steelhead and other salmonids in the Puget Sound 
region. The reader is referred to our proposed rule for more detailed 
information and discussion concerning threats and protective efforts 
affecting Puget Sound steelhead (71 FR 15666; March 29, 2006).

Summary of Factors Affecting the Species

    Section 4(a)(1) of the ESA requires that we determine whether any 
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 human-made 
factors affecting its continued existence. We have previously detailed 
the impacts of various factors contributing to the decline of Pacific 
salmon and O. mykiss in previous listing determinations (e.g., 62 FR 
43937, August 18, 1997; 57 FR 14517, March 25, 1999) and supporting 
documentation (e.g., NMFS, 1997, ``Factors Contributing to the Decline 
of Chinook Salmon An Addendum to the 1996 West Coast Steelhead Factors 
for Decline Report;'' NMFS, 1996, ``Factors for Decline A Supplement to 
the Notice of Determination for West Coast Steelhead Under the 
Endangered Species Act''). NMFS' Federal Register notices and technical 
reports conclude that all of the factors identified in section 4(a)(1) 
of the ESA have played a role in the decline of West Coast salmon and 
O. mykiss DPSs. The reader is referred to the above Federal Register 
notices and technical reports for a more detailed treatment of the 
relevant factors leading to the decline of specific DPSs.
    In the proposed rule, we evaluated those factors of specific 
relevance to steelhead in the Puget Sound area. We concluded that the 
principal factor for decline for Puget Sound steelhead is the present 
or threatened destruction, modification, or curtailment of its habitat 
or range. Barriers to fish passage and adverse effects on water quality 
and quantity resulting from dams, the loss of wetland and riparian 
habitats, and agricultural and urban development activities have 
contributed and continue to contribute to the loss and degradation of 
steelhead habitats in Puget Sound. We observed that previous harvest 
management practices likely contributed to the historical decline of 
Puget Sound steelhead, but concluded that the elimination of the direct 
harvest of wild steelhead in the mid 1990s has largely addressed this 
threat. We noted that predation by marine mammals (principally seals 
and sea lions) and birds may be of concern in some local areas 
experiencing dwindling steelhead run sizes. With respect to disease 
(e.g., infectious diseases exacerbated by some hatchery practices), we 
concluded that we lack specific current or historical information to 
determine whether it poses a significant threat to the DPS. We 
concluded that existing regulatory mechanisms inadequately protect 
steelhead habitats as evidenced by the historical and continued threat 
posed by the loss and degradation of nearshore, estuarine, and lowland 
habitats due to agricultural activities and urbanization. We concluded 
that ocean and climate conditions can have profound impacts on the 
continued existence of steelhead populations. Finally, we reiterated 
concerns regarding the extensive propagation of the Chambers Creek and 
Skamania hatchery steelhead stocks and their possible contribution to 
the observed declines in Puget Sound steelhead populations, while 
acknowledging that there is insufficient information to quantify the 
extent of potential adverse impacts.

Efforts Being Made To Protect West Coast Steelhead

    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 taking into account efforts being made 
to protect a species. Therefore, in making ESA listing determinations, 
we first assess a DPS's level of extinction risk and identify factors 
that have led to its decline. We then assess existing efforts being 
made to protect the species to determine if those measures ameliorate 
the risks faced by the DPS. In judging the efficacy of existing 
protective efforts that have not yet been implemented or demonstrated 
effectiveness, we rely on the PECE (68 FR 15100; March 28, 2003). The 
PECE articulates several criteria for evaluating the certainty of 
implementation and effectiveness of protective efforts to aid in 
determining

[[Page 26733]]

whether a species warrants listing as threatened or endangered.
    In the proposed rule, we provided an extensive review of protective 
efforts affecting Puget Sound steelhead, ranging in scope from regional 
conservation strategies to local watershed initiatives (71 FR 15666; 
March 29, 2006). We did not receive new information to support changing 
our conclusion that protective efforts collectively do not provide 
empirical evidence or sufficient certainty of implementation and 
effectiveness to substantially ameliorate the level of assessed 
extinction risk for Puget Sound steelhead. While we acknowledge that 
many of the ongoing protective efforts for this DPS, especially those 
contained in the Shared Strategy for Puget Sound (Shared Strategy 
Development Committee, 2007) and proposed in the Draft Statewide 
Steelhead Plan and regional plans (WDFW, 2007), are likely to promote 
steelhead conservation, many efforts are relatively recent or still 
under development, and as yet have insufficient regulatory measures 
and/or resources in place to assure their implementation and 
effectiveness in addressing the factors for the decline of and threats 
facing Puget Sound steelhead. We will continue to encourage these and 
other future protective efforts, and we will continue to collaborate 
with tribal, Federal, state, and local entities to promote and improve 
efforts being made to protect the species.

Final Listing Determination

    After reviewing the public comments received, independent expert 
reviewer comments, and other data available to us, we find that there 
is no available information that would cause us to reconsider the 
extinction risk assessments by the BRT (NMFS, 2005), nor substantially 
alter our assessments of the Section 4(a)(1) listing factors and 
efforts being made to protect the species. We conclude that the Puget 
Sound steelhead DPS is likely to become endangered within the 
foreseeable future throughout all of its range, and warrants listing as 
a threatened species under the ESA.

Prohibitions and Protective Regulations

    ESA section 9(a)(1) take and other prohibitions (16 U.S.C. 
1538(a)(1)) apply to all species of fish or wildlife listed as 
endangered. In the case of threatened species, ESA section 4(d) directs 
the Secretary to issue such regulations as are determined to be 
necessary and advisable for the conservation of the species. We have 
flexibility under section 4(d) to tailor protective regulations based 
on the contributions of available conservation measures. The 4(d) 
protective regulations may prohibit, with respect to threatened 
species, some or all of the acts which section 9(a) of the ESA 
prohibits with respect to endangered species. These 9(a) prohibitions 
and 4(d) regulations apply to all persons subject to U.S. jurisdiction, 
including individuals, corporations, and government agencies and their 
employees.
    On February 7, 2007 (72 FR 5648), we proposed to issue section 4(d) 
protective regulations for Puget Sound steelhead. The proposed 
regulations would prohibit the take of Puget Sound steelhead unless a 
``limit'' applies for specified categories of activities determined to 
be adequately protective of these fish. We have received public comment 
on that proposal and will address those comments when we finalize the 
protective regulations for this DPS in a subsequent Federal Register 
notice.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    We and the FWS published in the Federal Register on July 1, 1994 
(59 FR 34272), a policy that the agencies shall identify, to the 
maximum extent practicable at the time a species is listed, those 
activities that would or would not constitute a violation of section 9 
of the ESA. The intent of this policy is to increase public awareness 
of the effect of this listing on proposed and ongoing activities within 
the species' range. As noted above, final 4(d) protective regulations 
will be issued in a subsequent Federal Register notice, and until such 
regulations are final, Puget Sound steelhead will not be subject to ESA 
take protections. If and when we issue any final 4(d) protective 
regulations, we will identify to the extent known the activities that 
will not be considered likely to result in violation of section 9, as 
well as activities that will be considered likely to result in 
violation.

Effective Date of the Final Listing Determination

    The final listing for Puget Sound steelhead will take effect on 
June 11, 2007.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, critical habitat be designated concurrently 
with the listing of a species. Section 4(b)(6)(C)(ii) provides that, 
where critical habitat is not determinable at the time of final 
listing, we may extend the period for designating critical habitat by 
not more than 1 additional year. In keeping with agency regulations at 
50 CFR 424.12, we conclude that critical habitat is not presently 
determinable for the Puget Sound steelhead DPS. Specifically, we lack 
biological, economic, and related mapping information sufficient to 
determine which areas may qualify as critical habitat for this DPS and 
to determine the economic, national security, or other relevant impacts 
of designation necessary to perform required analyses of the impacts of 
critical habitat designation . Therefore, we are proceeding with the 
final listing determination now and will propose critical habitat in a 
separate rulemaking.

Classification

National Environmental Policy Act (NEPA)

    ESA listing decisions are exempt from the requirement to prepare an 
environmental assessment or environmental impact statement under the 
NEPA. See NOAA Administrative Order 216-6.03(e)(1) and Pacific Legal 
Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981). Thus, we have 
determined that the final listing determination for the Puget Sound 
steelhead DPS described in this notice is exempt from the requirements 
of NEPA.

Regulatory Flexibility Act, Executive Order (E.O.) 12866, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when deciding on the listing 
of a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this rule is exempt from review under E.O. 12866. This 
final rule does not contain a collection-of-information requirement for 
the purposes of the Paperwork Reduction Act.

Peer Review

    A joint NMFS/FWS policy requires us to solicit independent expert 
review from at least three qualified specialists, concurrent with the 
public comment period (59 FR 34270; July 1, 1994). In December 2004 the 
Office of Management and Budget (OMB) issued a Final Information 
Quality Bulletin for Peer Review (Peer Review Bulletin) establishing 
minimum peer review standards, a transparent process for public 
disclosure, and opportunities for public input. The OMB Peer Review

[[Page 26734]]

Bulletin, implemented under the Information Quality Act (Public Law 106 
554), is intended to ensure the quality of agency information, 
analyses, and regulatory activities and provide for a more transparent 
peer review process.
    The BRT's status review for Puget Sound steelhead (NMFS, 2005) is 
the key science document underlying the decision to list Puget Sound 
steelhead as a threatened species. As described in our proposed rule, 
the BRT's status review was considered to be ``influential scientific 
information'' in the context of the OMB Peer Review Bulletin and was 
subjected to pre-dissemination peer review (60 FR 15666, March 29, 
2006). A description of the peer review plan was posted on the Internet 
in December 2005 by the U.S. Department of Commerce and is available 
at: http://www.osec.doc.gov/cio/oipr/ID47.htm. The seven experts chosen 
for this review are knowledgeable in steelhead biology, artificial 
propagation, fisheries management, and local and regional habitat 
conditions and processes. Four of the experts provided peer review and 
their comments were thoroughly considered, and, as appropriate, 
incorporated into the BRT's assessment and this final listing 
determination. We believe that adherence to the OMB Peer Review 
Bulletin is consistent with the goals of the 1994 NMFS/FWS policy ``to 
ensure the best biological and commercial information is being used in 
the decisionmaking process, as well as to ensure that reviews by 
recognized experts are incorporated into the review process of 
rulemakings'' developed in accordance with the ESA.

E.O. 13175 - Consultation and Coordination with Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175 outlines the responsibilities of the 
Federal Government in matters affecting tribal interests.
    During our status review of Puget Sound steelhead we solicited 
information from the tribes, met with several tribal governments and 
associated tribal fisheries commissions, and provided the opportunity 
for all interested tribes to comment on the proposed listing of this 
DPS and discuss any concerns they may have. Several tribes submitted 
comments during the public comment period and these were thoroughly 
considered and incorporated (e.g., see comment 5, 6, 12, 23, and 26), 
as appropriate, into our final listing determination. We will continue 
to coordinate with the tribes on management and conservation actions 
related to this species.

E.O. 13132 - Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). This rule establishes 
the protected status of Puget Sound steelhead under the ESA. It thereby 
creates obligations on Federal agencies, e.g., to consult on their 
proposed actions that may affect Puget Sound steelhead. It does not 
impose requirements for, or restrictions on, state or local 
governments. Accordingly, E.O. 13132 does not apply to this final 
listing determination. In keeping with the intent of the Administration 
and Congress to provide continuing and meaningful dialogue on issues of 
mutual tribal, state and Federal interest, we provided the proposed 
rule to the relevant agencies in each state in which the subject 
species occurs, and these agencies were invited to comment. As noted in 
the previous section and in our response to comments (e.g., see comment 
1, 2, 7, and 25), this final rule takes into account the views and 
comments received from state agencies. We will continue to consider any 
federalism impacts of regulations still under development for this DPS, 
such as our ongoing consideration of potential ESA protective 
regulations and critical habitat areas for Puget Sound steelhead.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES), or can be obtained from the Internet at: 
http://www.nwr.noaa.gov.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: May 7, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended as 
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201 also 
issued under 16 U.S.C. 1361 et seq.

0
2. In Sec.  223.102, paragraph (c)(23) is added to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

----------------------------------------------------------------------------------------------------------------
                   Species\1\                                                  Citation(s) for   Citation(s) for
-------------------------------------------------        Where Listed              Listing           Critical
          Common name            Scientific name                               Determinations        Habitat
----------------------------------------------------------------------------------------------------------------
*****                            ...............  .........................  ..................  ...............
----------------------------------------------------------------------------------------------------------------
(c) ***                          ...............  .........................  ..................  ...............
----------------------------------------------------------------------------------------------------------------

[[Page 26735]]

 
(23) Puget Sound Steelhead       Oncorhynchus     U.S.A., WA, Distinct       [Insert FEDERAL     NA
                                  mykiss           Population Segment         REGISTER page
                                                   including all naturally    citation]May 11,
                                                   spawned anadromous O.      2007
                                                   mykiss (steelhead)
                                                   populations, from
                                                   streams in the river
                                                   basins of the Strait of
                                                   Juan de Fuca, Puget
                                                   Sound, and Hood Canal,
                                                   Washington, bounded to
                                                   the west by the Elwha
                                                   River (inclusive) and to
                                                   the north by the
                                                   Nooksack River and
                                                   Dakota Creek
                                                   (inclusive), as well as
                                                   the Green River natural
                                                   and Hamma Hamma winter-
                                                   run steelhead hatchery
                                                   stocks.
----------------------------------------------------------------------------------------------------------------
* * * * *                        ...............  .........................  ..................  ...............
----------------------------------------------------------------------------------------------------------------
\1\Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991)

[FR Doc. E7-9089 Filed 5-10-07; 8:45 am]
BILLING CODE 3510-22-S