26722 Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Rules and Regulations 

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. 

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 lifehistory 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 lifehistory 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 hatcheryorigin 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) 


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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 summerrun 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≥--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 reopening 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 


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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 hatcherywild 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 outof-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 ‘‘outof-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 runand 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 


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(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 hatcheryorigin 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 


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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 selfsustaining 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, watershedscale 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 


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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 spawnerrecruit 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 stockrecruit 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 randomwalk 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 


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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 ESAlisted 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 


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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 comanagers 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 


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represent an important component in 

the evolutionary legacy of the O. mykiss 

species based on their unique lifehistory, 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 hatcheryorigin 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 


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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 


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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. 

■ For the reasons set out in the 

preamble, 50 CFR part 223 is amended 

as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart B, 

§ 223.201 also issued under 16 U.S.C. 1361 

et seq. 

■ 2. In § 223.102, paragraph (c)(23) is 

added to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

Species1

Where Listed Citation(s) for Listing Determinations 

Citation(s) for Critical Habitat Common name Scientific name 

***** 

(c) *** 


pwalker on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 91 / Friday, May 11, 2007 / Rules and Regulations 26735 

Species1

Where Listed Citation(s) for Listing Determinations 

Citation(s) for Critical Habitat Common name Scientific name 

(23) Puget Sound Steelhead Oncorhynchus 

mykiss 

U.S.A., WA, Distinct Population Segment including all naturally spawned 

anadromous O. 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. 

[Insert FEDERAL REGISTER page citation]May 

11, 2007 

NA 

* * * * * 

1Species 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 070307055–7099–02; I.D. 

022607F] 

RIN 0648–AV25 

Atlantic Highly Migratory Species 

(HMS); U.S. Atlantic Billfish 

Tournament Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule suspends 

mandatory circle hook requirements for 

participants in Atlantic billfish fishing 

tournaments through December 31, 

2007. Circle hook requirements will be 

reinstated unchanged effective 12:01 

a.m., January 1, 2008. The suspension is 

intended to increase post-release 

survival rates of Atlantic billfish in the 

long-term by providing an additional 

phase-in period during which Atlantic 

billfish tournament anglers can become 

more proficient and familiar with circle 

hooks and their ecological benefits, 

respectively. 

DATES: In this final rule, § 635.21, 

paragraph (e)(2)(iii), is suspended from 

May 11, 2007 to December 31, 2007, and 

is revised effective January 1, 2008. 

ADDRESSES: Copies of the Final 

Environmental Assessment/Regulatory 

Impact Review/Final Regulatory 

Flexibility Analysis (Final EA/RIR/ 

FRFA) are available from the Highly 

Migratory Species Management Division 

website at www.nmfs.noaa.gov/sfa/hms 

or can be obtained by contacting Russell 

Dunn or Randy Blankinship (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Russell Dunn or Randy Blankinship, by 

phone: 727–824–5399; by fax: 727–824–

5398. 

SUPPLEMENTARY INFORMATION: The U.S. 

recreational fishery for Atlantic billfish 

is managed under the Consolidated 

Highly Migratory Species (HMS) Fishery 

Management Plan (FMP). Implementing 

regulations at 50 CFR part 635 are 

issued under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) (16 U.S.C. 1801 

et seq.), and the Atlantic Tunas 

Convention Act (ATCA) (16 U.S.C. 971 

et seq). 

Background 

NMFS recently finalized a 

Consolidated HMS FMP (October 2, 

2006; 71 FR 58058) that consolidated 

and replaced previous FMPs for Atlantic 

Billfish and Atlantic Tunas, Swordfish, 

and Sharks. The Consolidated HMS 

FMP is implemented by regulations at 

50 CFR part 635. 

Prior to January 1, 2007, the 

recreational Atlantic billfish fishery was 

subject to regulations that required 

fishing permits, limited allowable gears 

to rod and reel only, established 

minimum legal size limits, specified 

landing form of retained billfish, 

mandated reporting of billfish landings, 

required registration of all recreational 

HMS fishing tournaments and reporting 

by tournaments that are selected for 

reporting, prohibited the retention of 

longbill spearfish, and prohibited sale of 

any billfish, among other measures. The 

final rule implementing the 

Consolidated HMS FMP implemented 

additional regulations that applied to 

the Atlantic recreational billfish fishery. 

Effective January 1, 2007, these 

regulations require anglers fishing from 

HMS permitted vessels and 

participating in Atlantic billfish 

tournaments to use only non-offset 

circle hooks when deploying natural 

baits or natural bait/artificial lure 

combinations. The regulations allow the 

use of J-hooks (the hook-type 

traditionally used in this fishery) with 

artificial lures in tournaments, and do 

not impose hook requirements on 

recreational fishermen fishing outside of 

Atlantic billfish tournaments. 

Additionally, the final rule limits U.S. 

landings of Atlantic blue and white 

marlin to 250 individual fish, combined, 

on an annual basis. 

In response to continuing public 

input on the Atlantic billfish 

tournament circle hook regulations, 

NMFS released a draft environmental 

assessment and published a proposed 

rule on March 15, 2007 (72 FR 12154), 

that included a preferred alternative to 

suspend Atlantic billfish tournament 

circle hook requirements through 

December 31, 2007. The EA considered 

three alternatives. Information regarding 

these alternatives was provided in the 

proposed rule and is not repeated here. 

Response to Comments 

The public comment period for the 

proposed rule was open from March 15, 

2007 to March 30, 2007. During that 

time, NMFS held three public hearings 

and received comments from 111 

individuals or organizations. A 

summary of the major comments 

received, along with NMFS’ responses 

are provided below. 


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