Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69459

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF80

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 224

[Docket No. 991108299–0313–02; I.D.

102299A]

RIN 0648–XA39

Endangered and Threatened Species;

Final Endangered Status for a Distinct

Population Segment of Anadromous

Atlantic Salmon (Salmo salar) in the

Gulf of Maine

AGENCIES: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce; U.S. Fish and Wildlife

Service (FWS), Interior.

ACTION: Final rule.

SUMMARY: The National Marine

Fisheries Service (NMFS) and the U.S.

Fish and Wildlife Service (FWS) (the

Services) determine endangered status

pursuant to the Endangered Species Act

of 1973 (ESA), as amended, for the Gulf

of Maine distinct population segment

(DPS) of Atlantic salmon. A biological

review team (BRT) composed of the

Services’ staff completed a

comprehensive status review of Atlantic

salmon which resulted in the proposed

listing on November 17, 1999. After

reviewing additional information,

including information submitted during

the comment period on the proposed

listing, and after considering the low

numbers of returning adults, the lower

than anticipated parr to smolt survival,

and the serious and continuing nature of

threats to the species, the Services

conclude that the Gulf of Maine DPS

warrants protection under the ESA. The

Services have determined that the Gulf

of Maine DPS is in danger of extinction

throughout its range.

DATES: The effective date of this rule is

December 18, 2000.

ADDRESSES: The complete file for this

final rule is available for inspection, by

appointment, during normal business

hours at the National Marine Fisheries

Service, One Blackburn Drive,

Gloucester, Massachusetts 01930; or the

U.S. Fish and Wildlife Service, 300

Westgate Center Drive, Hadley,

Massachusetts 01035.

FOR FURTHER INFORMATION CONTACT:

Mary Colligan, NMFS, at the address

above (978–281–9116), or Paul

Nickerson, FWS, at the address above

(413–253–8615).

SUPPLEMENTARY INFORMATION:

Background

Species Life History and Status

A summary of the status of Atlantic

salmon in Maine is included in this

document. Additional biological

information for the Gulf of Maine DPS

of Atlantic salmon can be found in the

Services’ 1995 and 1999 status reviews.

The 1999 Status Review can be viewed

at the following site: http://

news.fws.gov/salmon/asalmon.html.

This information is also summarized in

previous Federal Register documents

(59 FR 3067, January 20, 1994; 60 FR

14410, March 17, 1995; 60 FR 50530,

September 29, 1995; 62 FR 66325,

December 18, 1997; 64 FR 62627,

November 17, 1999).

Consideration as a ‘‘Species’’ Under the

Endangered Species Act

The ESA defines species as ‘‘any

species of fish or wildlife or plants, and

any distinct population segment [DPS]

of any species of vertebrate fish or

wildlife that interbreeds when mature.’’

16 U.S.C. 1532(15). This definition

allows for the recognition of DPSs at

levels below taxonomically recognized

species or subspecies.

The Services have published a policy

(61 FR 4722, February 7, 1996) to clarify

the phrase ‘‘distinct population

segment’’ for the purposes of listing,

delisting, and reclassifying species

under the ESA. This DPS policy

identifies three elements to be

considered in a decision regarding the

status of a possible DPS as endangered

or threatened under the ESA: (1) The

discreteness of the population segment

in relation to the remainder of the

species or subspecies to which it

belongs; (2) the significance of the

population segment to the species or

subspecies to which it belongs; and (3)

the conservation status of the

population segment in relation to the

ESA listing standards. The conservation

status for this DPS will be discussed in

relation to the ESA’s listing factors.

A population segment may be

considered discrete if it satisfies either

one of the following two conditions: (1)

It is markedly separated from other

populations of the same taxon as a

consequence of physical, physiological,

ecological, or behavioral factors; or (2) it

is delimited by international

governmental boundaries within which

differences in control of exploitation,

management of habitat, conservation

status, or regulatory mechanisms exist

that are significant in light of section

4(a)(1)(D) of the ESA.

The Services examined life history,

biogeographical, genetic, and

environmental information in

evaluating Atlantic salmon throughout

its U.S. range. The Services used

zoogeographic maps of boundaries

between areas that likely exert different

selective pressures on Atlantic salmon

populations and have substantial

differences in riverine-marine

ecosystem structure and function. Key

elements to these determinations

include: (1) spatial arrangements of river

systems that create isolation, and (2)

watershed location within ecological

provinces and subregions that affect the

productivity and ecology of riverinemarine ecosystem complexes. Using

zoogeographic maps, the Services

determined that historic U.S. Atlantic

salmon populations were comprised of

at least three population segments: Long

Island Sound, Central New England,

and Gulf of Maine. As detailed in the

1999 Status Review, the Long Island

Sound and the Central New England

population segments have been

extirpated. The following two sections

on discreteness and significance provide

the rationale for the Services’

determination that the Gulf of Maine

populations comprise a DPS.

The Gulf of Maine DPS includes all

naturally reproducing remnant

populations of Atlantic salmon from the

Kennebec River downstream of the

former Edwards Dam site, northward to

the mouth of the St. Croix River. The

DPS includes both early- and late-run

Atlantic salmon (Baum, 1997). The river

specific hatchery reared fish are also

included as part of the DPS. However,

these hatchery fish will not count

toward a delisting until they have

spawned naturally in the wild.

Historically, the Androscoggin River

delimited the range of the DPS to the

south, but populations south of the

Kennebec River have been extirpated.

There are at least eight rivers in the

DPS range that still contain functioning

wild salmon populations, although at

substantially reduced abundance levels

(Baum 1997; King et al. 1999). The core

of these remnant populations is located

in the Dennys, East Machias, Machias,

Pleasant, Narraguagus, Ducktrap, and

Sheepscot Rivers and Cove Brook.

Discreteness of the Gulf of Maine

Population Segment of Atlantic Salmon

The Services examined three major

indicators to determine whether the

Gulf of Maine population segment of

Atlantic salmon is separate from other

69460 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

populations: (1) Straying of spawning

fish from their natal river; (2)

recolonization rates outside the range of

the population segment; and (3) genetic

differences observed throughout the

range of Atlantic salmon. The

separateness analysis for the Gulf of

Maine population segment from other

Atlantic salmon populations reviewed

the following: (1) persistence of these

populations; (2) geographic segregation;

(3) limited stocking from outside the

population segment; and (4) genetic

analyses. The Services conclude from

this information that genetic and

demographic data demonstrate the Gulf

of Maine population segment is separate

from other populations to the north.

The Services also conclude that while

it is unlikely that any Atlantic salmon

populations in the United States exist in

a genetically pure native form, present

populations are descendants of these

aboriginal stocks, and their continued

presence in indigenous habitat indicates

that important heritable local

adaptations still exist. The conservation

of the populations of the Gulf of Maine

population segment is essential because

these Atlantic salmon represent the

remaining genetic legacy of ancestral

populations that were locally adapted to

the rivers and streams of the region that

formerly extended from the Housatonic

River in Connecticut to the headwaters

of the Aroostook River in Maine.

The northern range of the Gulf of

Maine population segment is delimited

by the natural zoogeographical

constraints on local adaptations and an

international boundary. There are

substantial differences in the control of

exploitation, management of habitat,

conservation status, and regulatory

mechanisms of Atlantic salmon between

the United States and Canada (May,

1993; Baum, 1997). Management and

conservation programs in the United

States and Canada have similar goals,

but differences in legislation and policy

support the use of the United States/

Canada international boundary as a

measure of discreteness for the purposes

of evaluating stock status. Therefore, the

Services conclude that the Gulf of

Maine population segment of Atlantic

salmon satisfies both criteria for

demonstrating discreteness, as outlined

in the Services’ DPS Policy. However,

we note that it is only necessary to

satisfy one of these criteria to conclude

that the population segment is discrete

from other populations.

Significance of the Gulf of Maine

Population Segment of Atlantic Salmon

The second element of the Services’

DPS Policy is the consideration of the

population segment’s biological and

ecological significance to the taxon to

which it belongs. This may include, but

is not limited to, the following: (1)

Persistence of the discrete population

segment in an ecological setting unusual

or unique for the taxon; (2) evidence

that loss of the discrete population

segment would result in a significant

gap in the range of a taxon; (3) evidence

that the discrete population segment

represents the only surviving natural

occurrence of a taxon that may be more

abundant elsewhere as an introduced

population outside its historic range; or

(4) evidence that the discrete population

segment differs markedly from other

populations of the species in its genetic

characteristics.

Riverine habitat occupied by the Gulf

of Maine population segment of Atlantic

salmon is unique in that it is at the

southern extent of the North American

range of Atlantic salmon (Saunders,

1981; Baum, 1997). To survive at the

extreme southern range, U.S. Atlantic

salmon populations had to adapt to

distinct physical and environmental

conditions (Saunders, 1981). The

Services conclude that there is

substantial evidence that remnant

populations of the Gulf of Maine

population segment have persisted in

their native range. The loss of this

population segment would result in a

significant gap in the range of this

taxon, moving the range of this species

an additional degree of latitude to the

north. The loss of these populations

would restrict the natural range of

Atlantic salmon to the region above the

45th parallel and beyond the borders of

the United States.

We cannot ignore that artificial

selection created by hatchery practices

has had some influence upon the

present genome of the Gulf of Maine

population segment. Given our current

understanding of the genetic

composition of these stocks (Bentzen

and Wright, 1992; Kornfield, 1994; King

et al., 1999), the documented

persistence of native stocks (Kendall,

1935; Baum, 1997), and the fact that

most of the hatchery stocking influences

were internal to the Gulf of Maine

population segment range, the Services

conclude that hatchery fish have not

substantially introgressed with the

remnant populations and genomes of

the fish that comprise the Gulf of Maine

population segment. The majority of

fish stocked into the population

segment rivers came from the Penobscot

hatchery stock, which, in turn, had

originated from the population segment

rivers earlier this century (Baum, 1997).

The Services believe that there is an

important genetic legacy remaining in

the population segment, and the loss of

these populations would negatively

affect the genetic resources of Atlantic

salmon as a whole because it would

contribute to further range reduction.

The genetic resources of these most

southerly stocks are considered vitally

important to the species’ future survival.

Based on a review of available

information, the Services concluded

that the Gulf of Maine population

segment of Atlantic salmon meets both

criteria for discreteness. Available data

demonstrate that the population

segment has unique life history

characteristics that have a heritable

basis and that both environmental and

genetic factors make the Gulf of Maine

population segment different from other

populations of Atlantic salmon in their

life history and ecology. Further, the

Services conclude that the available

information supports the conclusion

that the Gulf of Maine population

segment of Atlantic salmon is

biologically and ecologically significant.

The Gulf of Maine population segment

satisfies the first two criteria of the

Services’ DPS policy because it is both

discrete and significant, and therefore, it

is a DPS. The third and final element is

the conservation status of the

population segment in relation to the

ESA’s standards for listing. The

conservation status of the DPS is

examined in the following sections

which provide an overview of the

habitat within the DPS, population

abundance, and an analysis of the

listing factors.

Description of the Habitat Within the

Gulf of Maine DPS

The Gulf of Maine DPS encompasses

all naturally reproducing remnant

populations of Atlantic salmon from the

Kennebec River downstream of the

former Edwards Dam site, northward to

the mouth of the St. Croix River. The

Penobscot and its tributaries are only

included downstream from the site of

the Bangor Dam. The watershed

structure, available Atlantic salmon

habitat, and abundance of Atlantic

salmon stocks at various life stages are

best known for the seven largest rivers

with extant Atlantic salmon

populations. There is less known about

the habitat and population ecology of

smaller rivers, with the possible

exception of Cove Brook (Meister, 1962;

Baum, 1997).

Broadly speaking, the watersheds

within the DPS are sparsely populated

and generally are managed for the

growth and harvest of forest products

and lowbush blueberries. The Ducktrap

and Sheepscot River watersheds were

once intensively farmed but are now

mostly forested. The habitat within the

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69461

DPS range is generally characterized as

being free-flowing, medium gradient,

cool in water temperature, and suitable

for spawning in gravel substrate areas.

Population Abundance of the Gulf of

Maine DPS

Abundance is a critical criterion in

assessing the status of a species under

the ESA. Current abundance compared

to historical levels and analysis of

recent trends were used to determine

the biological status of Atlantic salmon

of the Gulf of Maine DPS. Documented

returns of adult Atlantic salmon within

the DPS range are low relative to

conservation escapement goals (U.S.

Atlantic Salmon Assessment Committee

(USASAC), 1999). The conservation

escapement goal is defined as the

number of returning adults needed to

fully use the spawning habitat. The total

documented natural (wild & stocked fry)

spawner returns to the rivers of the Gulf

of Maine DPS range for the past 5 years

were: 1995 (83); 1996 (74); 1997 (35);

1998 (23); 1999 (32); and 2000 (22)

(preliminary data). It must be noted that

counts are provided only for rivers with

trapping facilities and only for periods

when those facilities were operational.

Therefore, the documented count does

not represent a complete count of adult

returns to the rivers within the DPS

range.

The pre-fishery abundance index of

North American salmon stocks that

migrate to the Greenland region of the

North Atlantic Ocean continues to be

low in spite of apparently improving

marine habitat conditions as reflected

by ocean surface temperature data in the

past few years (North Atlantic Salmon

Work Group (NASWG), 1999). The prefishery abundance is an estimate of the

one sea winter fish (1SW), (fish that

have spent one winter in the sea since

leaving the river) in Greenland prior to

the fishery and is used as a possible

indicator of future returns to

homewaters. The apparent non-response

to improving marine habitat to date is

believed to be caused, in part, by

generally depressed spawning

populations in North American home

rivers and the resultant low number of

juvenile salmon entering the ocean.

Generally speaking, densities of

young-of-the-year salmon (0+) and parr

(1+ and 2+) remain low relative to

potential carrying capacity. The

numbers indicate how long the parr

have been in the rivers subsequent to

hatching. In Maine, most parr remain in

the rivers for 2 years. These depressed

juvenile abundances, where not

supplemented by stocking, are a direct

result of low adult returns in recent

years. A total parr population estimate

is not available for the entire DPS.

However, the Atlantic Salmon

Commission (ASC) and NMFS have

conducted a basin-wide parr population

study on the Narraguagus River since

1991. In addition, the NMFS and the

ASC have been conducting a study on

the Narraguagus River, monitoring the

outmigration of smolts including the

timing of migration, survival, length,

weight, and the number of smolts from

1996 through 1999 (Kocik et al., 1998a).

Since 1996, estimates of large parr in

the Narraguagus River have ranged from

11,700 to 27,000, while corresponding

outmigrating smolt estimates range from

2,800 to 3,600. Even in years with a

substantial increase in large parr

production (126 percent), smolt

production has increased only modestly

(3 percent). Total estimated smolt

production in the Narraguagus is well

below the estimated production

capacity (18,000) and warrants further

investigation. The preliminary estimate

of the emigrant smolt population in the

Narraguagus in 1999 was 3,607, which

would represent production from the

1996–1997 spawners. Based on this, an

average overwinter survival for 1999

was calculated to be 14.3 percent.

Overwinter survival in 1999 was

significantly lower than observed in

1997 (24.4 percent) and not statistically

significantly different from 1998

estimates. These studies suggest that

there is a 99–percent probability that

overwinter freshwater survival from 1+

and older parr to smolt was less than 30

percent, the minimum estimate cited in

previous studies. Survival estimates in

the Narraguagus River for all years

studied are substantially lower than

estimates previously reported in

scientific literature and previously

accepted estimates for this region (Bley,

1987; Bley and Moring, 1988; Baum,

1997; Kocik et al., 1999). Thus, smolt

production from freshwater habitat is

much lower than would be expected

based on habitat surveys and prior

estimates of survival rates. These

substantially lower survival rates could

be negatively impacting population

recovery. Additionally, researchers

found that approximately half of the

emigrating smolts do not reach the Gulf

of Maine. These preliminary data led

the Services to conclude that low

overwinter and emigration survival rates

may be impeding the recovery of these

populations and are an issue of concern.

The cause for the low survival rates has

not been identified.

To determine if recent pre-smolt and

marine survival estimates on the

Narraguagus River are representative of

other downeast Maine Atlantic salmon

rivers, a similar study was conducted on

the Pleasant River. In 1999 from April

to June, 676 smolts were captured in a

smolt trap on the Pleasant River. An

additional 31 fish were captured with

fin deformities and coloration, and body

form suggesting that they were of

hatchery origin. A commercial hatchery

that raises Atlantic salmon smolt is

located upstream of the capture site.

Given the data reviewed and

summarized in this section, the Services

conclude that naturally reproducing

Atlantic salmon populations of the Gulf

of Maine DPS are at extremely low

levels of abundance. This conclusion is

based principally on the fact that

spawner abundance is less than 10

percent of the number required to

maximize juvenile production, juvenile

abundance indices are lower than

historical counts, and freshwater smolt

production is less than a third of

estimated capacity. Fry are being

stocked to fill available habitat and parr

abundance is increasing as a result. The

number of smolts leaving the river,

however, is not increasing at the same

rate.

Conservation Hatchery Program

Broodstock developed from wild fish

from the Dennys, East Machias,

Machias, Narraguagus and Sheepscot

Rivers are held at Craig Brook National

Fish Hatchery (CBNFH) in Orland,

Maine. These captive broodstock

increase the effective population size for

these rivers and provide a buffer against

extinction. Parr were collected from the

Pleasant River and were transferred to

the North Attleboro National Fish

Hatchery (NANFH) in Massachusetts.

These Pleasant River fish were later

destroyed due to the presence of a

newly discovered Atlantic salmon viral

disease, Salmon Swimbladder Sarcoma

Virus (SSSV). In the spring of 2000,

program cooperators initiated a second

attempt to rebuild a captive wild

broodstock for the Pleasant River

salmon population. This was made

possible by the creation of six isolation

bays as part of the reconstruction of the

CBNFH. A trap on the Pleasant River at

Columbia Falls captured emigrating

Atlantic salmon smolts to help

enumerate the population and to

determine origin (wild or aquaculture).

A total of 37 smolts and 24 age 2+ parr

were brought into the CBNFH for

holding until they mature for

broodstock. Subsequently, 52 age 1+

parr were collected during the summer

of 2000 to augment the earlier smolt and

parr collections.

The response of Atlantic salmon

populations to supplemental stocking

programs can be partially evaluated

based on juvenile production, but adult

69462 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

returns are the ultimate evaluation

measure. It takes over 4 years from

initial fry stocking to detect a response

to that stocking in terms of returning

adults. A substantial number of fry must

be stocked to produce significant results

due to the normal high mortality of

juvenile fish. Because stocking did not

begin in some rivers until 1996 and

several year classes are necessary to

present a trend, it will not be known

until at least 2001 if fry-stocked fish will

contribute a substantial element to all

five rivers for which there is a riverspecific stocking program.

All of the broodstock held at the

CBNFH are now fitted with Passive

Integrated Transponder (PIT) tags which

allow for complete tracking and

management of the broodstock, as well

as tracking the mating and offspring of

the broodstock. In 1999, the FWS

expanded its Atlantic salmon genetics

program to include genetic

characterization of all broodfish used for

the rehabilitation of Maine’s wild

populations. This characterization will

help managers maintain the genetic

integrity of wild and captive fish,

identify appropriate management units,

help prevent irreversible losses of

genetic diversity, and evaluate the

stocking program. Additional details on

protocols used within CBNFH are

described in the ‘‘Response to

Comments’’ section of this document. In

addition to the CBNFH program, the

Maine aquaculture industry is

participating in the supplementation

program by raising fish derived from the

broodstock. These fish were stocked in

the Dennys and Machias Rivers as

potential spawners in the fall of 2000.

Previous Federal Actions

In 1991, the FWS designated Atlantic

salmon in five rivers in ‘‘Downeast’’

Maine (the Narraguagus, Pleasant,

Machias, East Machias, and Dennys

Rivers) as Category 2 candidate species

under the ESA (56 FR 58804, November

21, 1991). Both Services received

identical petitions in October and

November of 1993 to list the Atlantic

salmon (Salmo salar) throughout its

historic range in the contiguous U.S.

under the ESA. On January 20, 1994, the

Services found that the petition

presented substantial scientific

information indicating that a listing may

be warranted (59 FR 3067).

The Services conducted a joint review

of the species in January 1995, and

found that the available biological

information indicated that the species

described in the petition, Atlantic

salmon throughout its range in the

United States, did not meet the

definition of ‘‘species’’ under the ESA.

Therefore, the Services concluded that

the petitioned action to list Atlantic

salmon throughout its historic United

States range was not warranted (60 FR

14410, March 17, 1995). In the same

notice, the Services determined that a

DPS that consisted of populations in

seven rivers (the Dennys, East Machias,

Machias, Pleasant, Narraguagus,

Ducktrap, and Sheepscot Rivers) did

warrant listing under the ESA. On

September 29, 1995, after reviewing the

information in the status review, as well

as state and foreign efforts to protect the

species, the Services proposed to list the

seven rivers DPS as a threatened species

under the ESA (60 FR 50530, September

29, 1995). The proposed rule contained

a special rule under section 4(d) of the

ESA which would have allowed for a

State plan, approved by the Services, to

define the manner in which certain

activities could be conducted without

violating the ESA. In response to that

special provision in the proposed rule,

the Governor of Maine convened a task

force which developed a Conservation

Plan for Atlantic Salmon in the seven

rivers. That Conservation Plan was

submitted to the Services in March

1997.

The Services reviewed information

submitted from the public, current

information on population levels, and

assessed the adequacy of the Maine

Atlantic Salmon Conservation Plan, and

on December 18, 1997, withdrew the

proposed rule to list the seven rivers

DPS of Atlantic salmon as threatened

under the ESA (62 FR 66325). In that

withdrawal notice, the Services

redefined the species under analysis as

the Gulf of Maine DPS to acknowledge

the possibility that other populations of

Atlantic salmon could be added to the

DPS if they were found to be naturally

reproducing and to have wild stock

characteristics. NMFS maintained the

Gulf of Maine DPS as a candidate

species to acknowledge ongoing concern

over the species’ status. In the 1997

withdrawal notice, the Services outlined

three circumstances under which the

process for listing the Gulf of Maine

DPS of Atlantic salmon under the ESA

would be reinitiated: (1) An emergency

which poses a significant risk to the

well-being of the Gulf of Maine DPS is

identified and not immediately and

adequately addressed; (2) the biological

status of the Gulf of Maine DPS is such

that the DPS is in danger of extinction

throughout all or a significant portion of

its range; or (3) the biological status of

the Gulf of Maine DPS is such that the

DPS is likely to become endangered in

the foreseeable future throughout all or

a significant portion of its range.

The Services received the State of

Maine 1998 Annual Progress Report on

implementation of the Conservation

Plan in January 1999. On January 20,

1999, the Services invited comment

from the public on the first annual

report and other information on

protective measures and the status of

the species. The comment period

remained open until March 8, 1999 (64

FR 3067). The Services reviewed all

comments submitted by the public and

provided a summary of those, along

with their own comments, to the State

of Maine in March 1999. The State of

Maine responded to the Services’

comments on April 13, 1999.

In order to conduct a comprehensive

review of the protective measures in

place and the status of the species, as

was committed to in the 1997

withdrawal notice, the BRT was

reconvened to update the January 1995

Status Review for Atlantic salmon. The

1999 Status Review was made available

on October 19, 1999 (64 FR 56297). On

November 17, 1999, the Services

published a proposed rule to list as

endangered the Gulf of Maine Atlantic

salmon DPS, which includes all

naturally reproducing remnant

populations of Atlantic salmon from the

Kennebec River downstream of the

former Edwards Dam site northward to

the mouth of the St. Croix River at the

United States-Canada border. The

Services stated that to date they had

determined that these populations are

found in the Dennys, East Machias,

Machias, Pleasant, Narraguagus,

Sheepscot, and Ducktrap Rivers and in

Cove Brook, all in eastern Maine.

The proposed rule invited comment

from the public and specifically

solicited comments regarding: (1)

biological, commercial trade, or other

relevant data concerning any threat (or

lack thereof) to this DPS; (2) the location

of any additional populations of the

Gulf of Maine DPS of Atlantic salmon

within the DPS range, including, but not

limited to, Bond Brook, Togus Stream,

Passagassawaukeag River, Kenduskeag

Stream, Felts Brook, and the

Pennamaquan River; (3) additional

information concerning the range,

distribution, and population size of the

DPS; (4) current or planned activities in

the subject area and their possible

impacts on this DPS; (5) additional

efforts being made to protect naturally

reproducing populations of Atlantic

salmon; and (6) the relationship of

existing hatchery populations to natural

populations of the DPS.

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69463

Summary of Comments and

Information Received in Response to

the Proposed Rule

We have reviewed all written and oral

comments received during the comment

period and have incorporated updated

data and information into appropriate

sections of this rule. We have organized

substantive comments concerning the

proposed rule into specific issues. We

grouped comments of a similar nature or

subject matter into a number of broader

issues. These issues and our response to

each are presented in the subsections

below.

The proposed rule announced a

comment period to close on February

15, 2000. On January 7, 2000, the

Services extended the comment period

to March 15, 2000 (65 FR 1082). On

March 15, 2000, the Services further

extended the comment period to April

14, 2000 (65 FR 13935). During the 150-

day public comment period, the

Services received over 200 written

comments. Three public hearings were

held: January 29, 2000, in Machias,

Maine; January 31, 2000, in Ellsworth,

Maine; and February 1, 2000, in

Rockland, Maine (65 FR 1082). Nearly

1,000 individuals attended the three

public hearings.

In addition to soliciting and reviewing

public comments, the Services must

seek peer review of its listing proposals.

On July 1, 1994, the Services published

a series of policies regarding listings

under the ESA, including a policy for

peer review of proposed listings (59 FR

34270). In accordance with this policy,

on February 9, 2000, the Services

requested peer review of the proposed

rule. The proposed rule and status

review were sent to six reviewers and

responses were received from three of

these reviewers.

A summary of the peer review

comments and the other comments

received in response to the proposed

rule follows.

Issue 1: Peer Review

Comment 1: Some commenters voiced

objections that the proposed rule and

genetic data have not been peer

reviewed.

Response: The 1995 proposed rule,

1995 status review, 1997 genetics

reports, and the November 1999

proposed rule were subjected to

international peer reviews. Six scientists

outside the Services with no

involvement in the status review

process were asked to critically review

the proposed rule; three responded. The

three peer reviewers concluded that the

recommendation to list the population

as endangered was consistent with the

current status of the population and the

requirements of the ESA.

One peer reviewer stated that there

was insufficient evidence in support of

the Gulf of Maine DPS designation but

recommended that its conservation

status warranted special consideration.

That reviewer also stated that because

Atlantic salmon have a refined homing

instinct with minimal straying, the

status of Atlantic salmon populations in

Canada will have no bearing on the

persistence and recovery of Atlantic

salmon in Maine. That reviewer further

stated that the absence of irrevocable

evidence of genetic and ecological

discreteness, as well as significance, is

irrelevant in this context.

The second peer reviewer agreed with

the overall conclusions of the proposed

rule, but pointed out several areas of

inconsistencies in the proposed rule.

This reviewer raised concern over the

fact that Atlantic salmon aquaculture is

already well established in the DPS

range and expressed concern over the

use of weirs to identify the influence of

aquaculture-reared fish on the wild

salmon. This reviewer cautioned against

the use of hatchery stocks for

restoration, and advised that a genetic

monitoring regime should be

implemented for each hatchery stock.

Finally, this reviewer recommended a

greater discussion of the implications of

dams (both natural and artificial) and

dam removal on historic and potential

life history strategies for Atlantic

salmon.

The third peer reviewer supported

listing and found the biological

information to be well founded and

described, and concurred that the

population segment is discrete and in

danger of extinction. This reviewer cited

run timing, size of fish, strong homing

instincts, sea age at maturity, and

management differences in the United

States and Canada as evidence of a DPS.

This reviewer expressed concern over

the low numbers of adult returns and

stated that the heavy loss of smolts on

their outward migration suggested a

hypothesis related to endocrine

disrupting chemicals from chemical

spray and other endogenous sources.

This reviewer stated that the conclusion

that aquaculture practices must be

carefully controlled and regulated is

justified and cited information from

Norway and Scotland as support. This

reviewer encouraged further

investigation to discover the magnitude

and causes of at sea mortality and

encouraged consideration of the

possible effects of climate change on the

Gulf of Maine DPS.

Comment 2: Several comments were

made that the Federal stocking program

should be subjected to an external peer

review.

Response: The Services supported the

premise of a peer review of the salmon

hatchery program when it was requested

by the State of Maine in January 1999.

The Services continued to cooperate

with the State of Maine, Trout

Unlimited, and the National Fish and

Wildlife Foundation in assembling the

peer review panel and the scope of the

review. This initiative ended in late

1999, when the State of Maine withdrew

its support. The Services would again

support an external review of the state,

Federal, and private hatchery programs

in Maine.

Issue 2: Accuracy and Sufficiency of the

Scientific Data

Comment 3: Several commenters

stated that there is a lack of data on the

actual population size of the DPS and

the causes of the stated decline.

Comments specifically questioned the

exclusion of Penobscot River adult

returns from the DPS data and the

present existence of any wild salmon

populations in the Pleasant and Dennys

Rivers. It was suggested that no revision

of the earlier 1997 decision as to the

status of the DPS should be made until

all data are demonstrated to be complete

and unequivocal.

Response: The numbers reported in

the 1999 Status Review and reflected in

the proposed rule represent actual fish

counts. The Narraguagus River is the

only river with relatively complete and

accurate population data during the

period of population decline. Adult

salmon counts on the other DPS rivers

are either partial or completely lacking.

However, during the review period

there were counts of spawning redds in

those rivers that provide strong and

consistent circumstantial evidence that

the decline in adult salmon spawners

documented in the Narraguagus River

occurred simultaneously in other DPS

rivers. The implication of the redd

counts is that the entire adult salmon

population in the Gulf of Maine DPS

numbers in the low hundreds. The

number of adults counted annually at

the Veazie Trap in the Penobscot River

are the direct or indirect product of

salmon juveniles stocked from Green

Lake and CBNFH as part of the 30-year

restoration effort in that river. The

Penobscot, with the exception of Cove

Brook, which is a tributary to the

Penobscot, is not currently considered

part of the Gulf of Maine DPS. The

return numbers to the Penobscot are of

interest because they provide insight

into the marine survival of North

American stocks.

69464 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

A partial salmon trapping program

and the observation of redds in the

Dennys River and occasional

observation of wild adult salmon and

redds most years in the Pleasant River

are adequate indications that a salmon

population still exists at some level in

those rivers. Because of its proximity to

marine cages, the Dennys River is most

likely to bear the greatest impact from

aquaculture escapees. However, the

genetic analyses of individuals taken as

juveniles from the Dennys River to be

used as broodstock for the CBNFH

indicate that these fish are of wild

origin. The Pleasant River population is

probably the most at risk due to low

numbers of adults combined with

juvenile fish that escaped from or were

discharged from an aquaculture

hatchery in the watershed. We do not

believe that the failure to observe redds

for one year is evidence of extinction. In

fact, as of August 2000, three wild adult

salmon were reported at the weir site.

At any point in time, there are usually

5 or more different generations, or year

classes, of a river population in

existence. A failure of one spawning

year class does not represent extinction.

There is also the possibility that redds

were present but not observed because

of river conditions.

The data for adult salmon returns and

for juvenile salmon within rivers in the

DPS are not complete, but clearly

demonstrate that a serious population

decline has occurred over the past 10 to

15 years. The database on redd counts,

the thorough documentation of the

Narraguagus population trend, the

general sea survival trend indicated by

hatchery-based populations on the

Penobscot, the extensive database on

population trends on many Canadian

rivers and the abundance estimates of

1SW salmon off the West Greenland

feeding grounds maintained by the

International Council for the

Exploration of the Sea (ICES), all

provide evidence of the precarious state

of the Gulf of Maine DPS of Atlantic

salmon.

Comment 4: One commenter

complained that the Services failed to

provide the raw data that formed the

basis of the description of the DPS and

the conclusion that the DPS was in

danger of extinction.

Response: All data used by the

Services in the development of the

proposed rule was referenced in the

Review of the Status of Anadromous

Atlantic Salmon (Salmon salar) Under

the United States Endangered Species

Act (July 1999) and has been available

through a number of sources. The

genetics information used in the Status

Review and proposed rule is contained

in reports that present analyses of raw

genetics data developed by the USGS,

and much of it has been available on the

internet. The raw data for these genetic

reports were requested by the State of

Maine and provided by the USGS.

Because the USGS had not yet

completed compiling the most recent

raw genetics data available, there was a

delay in responding to a request for

these data. The data were provided to

the requestor as soon as processing and

quality control requirements were

completed by the laboratory. These new

data were not available for use or

consideration in the development of the

proposed rule, nor were these data

relied upon in the development of the

final rule.

Comment 5: Some commenters stated

that there was no basis in the

information available to justify revision

of the decision made relative to the 1997

withdrawal.

Response: The reasons for the

November 17, 1999, proposed listing are

specifically described on pages 62636

and 62637 of the published proposed

rule. The second paragraph on page

62637 stipulates the factors that are

primary sources of concern. Major

changes in the status of salmon

documented by data available after the

1997 decision and leading up to the

1999 proposed rule relate to new

disease and genetic threats, continuing

concerns about threats posed by

aquaculture escapees, lack of progress in

resolving concerns over existing

aquaculture practices, low juvenile inriver survival levels, continuing decline

in adult returns, and the lack of

sufficient progress in dealing with sport

fishing (at that time) and water

withdrawals.

Comment 6: Some commenters stated

that there are no data to form a basis for

the Services’ determination that the

population will go extinct rather than

recover in response to current recovery

activities.

Response: The data available from the

study of juvenile survival in the

Narraguagus River, the discovery of a

large number of aquaculture hatchery

origin juveniles in the Pleasant River, a

new and growing threat of a fatal viral

disease, Infectious Salmon Anemia

(ISA), the increasing use of European

strain salmon by the Maine aquaculture

industry, and the extremely low marine

survival indicated by data developed by

the ICES, were considered in the context

of the data and show a continued

decline of DPS adult salmon returns.

Under such circumstances, the Services

have determined that a listing of

‘‘endangered’’ is appropriate. A recovery

plan will be developed which will

contain recovery targets. When those

recovery targets are achieved, then the

Gulf of Maine DPS may be considered

for reclassification.

Issue 3: Inclusion of Other Rivers

Comment 7: Some commenters

questioned why other Atlantic salmon

rivers, such as the Penobscot, in the

geographic range of the DPS were not

included in the proposed rule.

Response: Salmon from a given river

were excluded from the DPS if

information indicated that the fish

likely did not substantially represent a

wild population that had persisted

through time. Information used to make

that determination included the

existence of a reproducing population

that historically had access to natal

spawning habitat adequate to have

persisted, and the likelihood and extent

of introgression with fish from outside

the geographic range of the DPS. This

latter factor was assessed with a variety

of data including stocking history

(number of fish, life stages, and source

population), return rates of stocked fish,

the origin of returning adults (i.e.,

hatchery vs. wild), and genetic

characterization.

Tributaries in the lower portion of the

Penobscot River (south of the Bangor

dam) were included within the

geographic range of the DPS because of

their continued historic free access to

migrating salmon, as evidenced by the

existence of at least one genetically

unique, naturally reproducing

population. A decision whether to

include or exclude fish that inhabit the

mainstem of the river or tributaries

above Bangor dam has been deferred

until further analysis has been

completed, including a detailed genetic

characterization. Samples have been

collected and are currently being

analyzed. The Services plan to make a

determination as to the appropriateness

of adding the mainstem and upper

tributaries of the river to the DPS in the

year 2001.

Issue 4: Reason for Observed Genetic

Difference

Comment 8: Some commenters

questioned whether the genetic

differences noted between the fish from

the Gulf of Maine DPS and Canadian

populations, and among populations in

the DPS, could reflect the effects of

small population size (e.g., population

bottlenecks, genetic drift, founder

effects) or introgression of non-native

fish, rather than the existence of

historical, adaptively important genetic

differences.

Response: Numerous studies have

shown that Atlantic salmon are

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69465

naturally substructured into genetically

differentiated populations, and that this

structure is important to the overall

fitness and productivity of the species.

Recent analyses indicate that genetic

structure exists among the fish in the

DPS rivers. Whether this structure

reflects the existence of adaptively

important traits is subject to varying

interpretations, although it should be

noted that the different interpretations

of the data presented are not mutually

exclusive. Small populations can

maintain important, genetically based,

adaptive traits.

After analysis of all available data,

especially in the context of the DPS

representing the extreme southern

terminus of the present range of wild

stocks in North America, the Services

concluded that the remaining

populations have retained unique,

adaptively important genetic traits, the

loss of which could preclude recovery

of self-sustaining populations. Hence,

the Services are concerned with

preventing irreversible changes to the

genetic integrity of the remaining

populations.

Recognizing that there are differences

in how the genetic data are interpreted,

it should be noted that the genetic

differences observed among wild

populations within North America are

not central to the listing decision. The

Gulf of Maine DPS is delineated largely

by its unique geographical location and

ecological setting relative to other

salmon populations.

Issue 5: Delineation of the Gulf of Maine

DPS

Comment 9: Some stated that the

proposed DPS appears to have been

contoured to coincide with the political

need of the Federal restocking program

to justify the capital and operational

costs of its river-specific breeding

program.

Response: The rivers comprising the

current range of the Gulf of Maine DPS

have long held a special designation by

the State of Maine. In the July 1984

Management of Atlantic Salmon in the

State of Maine, A Strategic Plan, the

Maine Atlantic Sea-Run Salmon

Commission designated seven rivers as

‘‘Category A’’, having fishable

populations of wild Atlantic salmon.

These are seven of the eight rivers that

comprise the Gulf of Maine DPS. In

1991, in response to a continuous

decline of these wild Atlantic salmon

populations, the FWS designated them

as Category 2 candidate species under

the ESA, developed a prelisting

recovery plan in cooperation with the

Atlantic Sea-Run Salmon Commission,

and initiated a river-specific fish culture

program. The DPS designation and

river-specific culture program for six of

these seven rivers is the product of

those events and an ESA Status Review

in 1995. Contrary to the premise of the

comment, in review of the original

petition to list Atlantic salmon

throughout the U.S. range, the Services

specifically rejected as listable entities

several salmon populations that were

the focus of five Federal hatcheries

representing considerably greater capital

and operational costs.

Issue 6: Effect of Previous Stocking

Comment 10: Some commenters

questioned how there could be a river

specific genetic strain of fish with 128

years of stocking. Another commenter

stated that it appeared that distinct

populations of Atlantic salmon in the

Ducktrap River and Cove Brook have

persisted over time despite the fact that

throughout history less than 100,000 fry

were stocked in the Ducktrap and no

salmon were stocked in Cove Brook.

Response: Evidence suggests that

stocking success was relatively poor

prior to 1971. From 1971 to 1990, most

stocking efforts in Maine used smolts

rather than earlier life stages with

survival much improved over earlier

stocking efforts. Starting in 1991, all

stocking within the Gulf of Maine DPS

has been river-specific in origin.

Recent genetic studies show that

unique genetic material exists in the

Ducktrap River and Cove Brook.

Although local variability is present in

these stocks, they appear to be more

closely related to other DPS stocks than

to either Canadian or European stocks.

Some authors have asserted that the

magnitude of past stocking efforts has

facilitated introgression and eliminated

local variability (Kornfield et al., 1995).

While the historic isolation of stocks

within the DPS may have been greater

and supported higher levels of genetic

difference, subtle distinctions between

stocks within the DPS remain, and

differences relative to populations

outside the DPS are clear. The majority

of Atlantic salmon stocks used for

supplemental stocking within the Gulf

of Maine DPS have been from within the

DPS geographic range (Baum, 1997).

Because the source of most stocking

efforts has been from within the DPS,

the genetic effects from stock mixing

would be substantially less than from

stocks from outside the DPS. A

comprehensive examination of

unstocked and stocked DPS rivers

suggests that while past stocking efforts

have likely increased gene flow between

populations, this gene flow was

insufficient to eliminate local variability

(King et al., 2000a; King et al., 2000b).

Comment 11: Some commenters

believed that it is dangerous to label

Maine’s salmon populations as a DPS

since there is no historical baseline from

pre-stocking years to compare.

Response: There are no known

biological samples available for genetic

testing prior to 1940 from Atlantic

salmon of either northern or southern

populations. It is true that having such

samples from Atlantic salmon

populations prior to stocking would be

useful. However, the Services are

required to use the best available

scientific information upon which to

base a determination. The Services

believe that acknowledgment and

protection of existing genetic diversity

is critical to the survival of salmon

within the DPS. It is also important to

note that the Gulf of Maine DPS is

delineated largely by its unique

geographical location and ecological

setting relative to other populations.

Issue 7: Relationship between Life

History, Morphometric Characteristics,

and Genetics

Comment 12: Some commenters

questioned the reliance on life history

and morphometric characteristics in

delineating the DPS, as they did not

believe these are genetically based.

Response: Life history and

morphometric characteristics have been

shown to be related to both genetics and

environment and their interaction. The

proportion of 2SW fish in Maine stocks,

age at smoltification, and marine

maturation rates of several salmonid

species have been shown to be heritable

traits.

Differences in life history among U.S.

Atlantic salmon stocks and those of

Canada were identified as early as 1874

(Atkins, 1874). U.S. Atlantic salmon

stocks have been composed of

predominantly 2SW salmon (> 80

percent) from at least the late 1800s to

the present (Atkins, 1874; Kendall,

1935; and USASAC, 1999). In contrast,

many Canadian stocks and several in

Europe have a much higher grilse

component with a concurrently lower

2SW component that is frequently less

than 50 percent (Hutchings and Jones,

1998). This life history trait is partially

controlled by stock genetics (Bailey et

al., 1980; Naevda, 1983; Glebe and

Saunders, 1986; Ritter et al., 1986;

Herbinger and Newkirk, 1987;

Hutchings and Jones, 1998; Palm and

Ryman, 1999). U.S. stocks have a return

age composition that differs from

Canadian stocks, especially neighboring

stocks in the Scotia-Fundy region. It is

most probable that these differences are

primarily due to genetic make-up. The

sex ratios of 1SW salmon differ between

69466 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

Maine DPS rivers and nearby Canadian

rivers. Maine 1SW salmon are

predominantly (95 percent) male (Baum,

1997) while those in the Miramichi

River, Canada, are only about 75 percent

male (Randall, 1985). Genetic control of

maturation rates in salmonids is not

exclusive to Atlantic salmon (Naevda et

al., 1981; Naevda, 1983; Iwamoto et al.,

1984; and Burger and Chevassus, 1987).

The migration at sea differs between

Maine DPS rivers and Canadian rivers;

Maine salmon have been shown to

migrate at low percentages to East

Greenland while Canadian salmon have

not been found there (Baum, 1997), and

Maine DPS salmon return to their natal

rivers earlier in the year than Canadian

salmon (Baum, 1997). Size of adult

salmon returning to Maine rivers differs

between the Gulf of Maine DPS and the

nearby Canadian population segment.

Maine 1SW salmon are about 2.5

centimeters (cm) longer than Miramichi

River, Canada, salmon, and Maine 3SW

salmon are about 6.0 cm longer than

those in nearby Canadian rivers (data

from Baum, 1997 and Randall, 1985).

Furthermore, the egg production of

Maine DPS salmon is about 10 to 20

percent greater than that of Saint John

River salmon of similar size (data from

Baum and Meister, 1971 and Randall,

1985).

Recent analyses of juvenile Atlantic

salmon data suggest that while

environment has a strong influence

upon juvenile growth, smolt age and

maturation (precocious parr) (Brannon,

1982), heritable differences between

stocks also influence growth and

performance (Baily, 1980; Hershberger

et al., 1982; Iwamoto et al., 1982, 1984;

Saxton et al., 1984; Iwamoto et al., 1986;

Kincaid, 1994; and Hutching and Jones,

1998) and ultimately determine the

ability of stocks to exploit their native

habitat (Metcalfe, 1998). Though many

of the distinct life history traits

displayed by Maine salmon relative to

nearby Canadian stocks have not been

experimentally shown to have a genetic

basis, it is unlikely that environmental

factors alone can account for all of these

differences (Baum, 2000). The

combination of heritable traits and the

unique environment in Maine constrain

the scope of adaptation and provide

pressures of natural selection that are

exhibited in unique life history

characteristics.

Taking into account all of the

foregoing factors, the Services’ BRT

determined that differences in life

history characteristics historically

contributed to the distinctness of the

Gulf of Maine DPS. Remnant stocks

have maintained the most

characteristics of these factors:

Smoltification at a mean age of two,

different migration patterns and earlier

run timing, predominant adult returns

as 2SW fish (age four), low proportion

of female 1SW fish, longer 1SW and

3SW fish, and greater egg production.

Since the proportion of 2SW fish in an

Atlantic salmon stock has a documented

genetic basis (Naevda, 1983; Glebe and

Saunders, 1986; Ritter et al., 1986;

Herbinger and Newkirk, 1987;

Hutchings and Jones, 1998; and Palm

and Ryman, 1999), the BRT concluded

that the DPS has unique life history

characteristics that have a heritable

basis. The BRT also concluded that both

environmental and genetic factors make

the Gulf of Maine DPS markedly

different from other populations of

Atlantic salmon in their life history and

ecology. The National Academy of

Sciences will be conducting a study of

Atlantic salmon. Upon evaluation of the

final report, the Services will take

appropriate action, if any.

Issue 8: Separateness of the DPS

Comment 13: Some commenters

questioned whether adequate data

existed to support the contention that

the Gulf of Maine DPS is separate from

other U.S. stocks of Atlantic salmon.

Response: Defined zoogeographical

regions in New England separate the

Gulf of Maine DPS from populations in

most of the other New England rivers.

Although biological data are lacking for

these extirpated stocks, it is likely that

populations were distinct because of

differences in selective pressures in

each region.

Issue 9: Reproductive Isolation

Comment 14: Some commenters

questioned how the Gulf of Maine DPS

could be reproductively isolated when

substantial numbers of females per

generation migrate between the DPS

rivers and the Penobscot River.

Response: Migration rates between

rivers are not large. Tagging studies

have shown that hatchery fish (which

tend to have higher straying rates than

wild fish) stocked into Maine rivers

exhibited a straying rate of one to two

percent. In Norway, populations are

considered discrete despite straying

rates of five to eight percent.

Additionally, studies show that

although mixing of stocks has occurred,

genetic differences between stocks exist.

Issue 10: Historic Distribution and

Abundance of Atlantic Salmon in North

America

Comment 15: Some commenters cited

studies which suggest that Atlantic

salmon did not occur in North America

before or during the last glacial period

(approximately 70,000 to 10,000 years

ago) and the limited documentation of

these populations prior to the 1800’s

combined with sporadic records during

the first half of this century raises

questions regarding their historic

abundance. In addition, some

commenters questioned the reliance in

the Status Review on four or five

biological surveys taken in intervals of

about 20 to 25 years. Since there were

significant stocking efforts in between

these time periods, they stated that fish

documented in these surveys (once

every 20 years or so) are not necessarily

from native or wild populations.

Response: Anadromous Atlantic

salmon were native to nearly every

major coastal river north of the Hudson

River (Atkins, 1874; Kendall, 1935).

Genetic differentiation between North

American and European stocks (Taggart

et al., 1995) supports the assumption

that Atlantic salmon were present in

North America before the last glacial

period and that they persisted over time

(Behnke, 1996). However, populations

may have migrated southward for a time

while their northern range was covered

with glacial ice (Behnke, 1996). Claims

that Atlantic salmon did not exist in

New England before or during the last

glacial period or before 1500 are based

on the fact that no salmon bones have

ever been found in excavated regions of

the area (Carlsson, 1993). These

explanations do not take into account

the acidity of the soil in Maine and

surrounding regions which may have

naturally destroyed the delicate bones

over time (Behnke, 1996), or that

genetics data suggest differentiation

about 8,000 to 10,000 years ago. Based

on the best available data, there were

likely at least 11 U.S. coastal watersheds

outside of Maine that historically

supported wild salmon populations.

Beland (1984) reported that at least 34

Maine Rivers held Atlantic salmon

populations at one time. Other sources

report the number to be 28

(MacCrimmon and Gots, 1979; Kendall,

1935).

Issue 11: Importance of Genetics

Comment 16: Some commenters

questioned that if genetic differences

were that important, then how could

Atlantic salmon from the Penobscot

River be used to successfully establish

runs of wild salmon in the Connecticut

River? Additionally, they questioned if

multiple populations established from a

donor population would differentiate

into genetically distinct populations in

20 generations.

Response: The loss of naturally

reproducing fish in the Connecticut and

Merrimack River drainages represented

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69467

nearly 40 percent of historic U.S.

Atlantic salmon juvenile production

habitat. The loss of habitat in these two

southernmost rivers and their

indigenous Atlantic salmon populations

certainly had an influence on the

genetic diversity of this species in the

United States and North America. These

rivers are currently the focus of

restoration efforts using nonindigenous

stocks mostly of Penobscot River origin.

Return rates from stocking in the

Connecticut and Merrimack Rivers have

been poor relative to other North

American stocks (Saunders, 1981;

Friedland et al., 1993). These low return

rates appear to be attributable to the loss

of local adaptations to unique habitat

characteristics associated with the

extirpated stocks (Jones, 1978; Lindell,

1987; Saunders, 1981). Additional

research supports this hypothesis and

indicates that when stocks are

transferred to new river systems, those

from nearby rivers typically exhibit

higher return rates than stocks from

rivers farther away (Ritter, 1975;

Reisenbichler and McIntyre, 1977;

Riddell et al., 1981; Ritter et al., 1986;

and Hopley, 1989). Additionally, stock

specific differences in susceptibility to

bacterial and viral diseases underscore

the importance of genetic variability not

only to the viability of local stocks but

as a genetic resource for conservation,

restoration, and commercial aquaculture

applications (Gjedrem and Gjoen, 1995).

The loss of locally adapted stocks has

made restoration more difficult in

southern New England. Fortunately,

some salmonids have shown evidence

of plasticity when introduced to new

environments, and locally adapted and

genetically differentiated stocks have

developed in less than 20 generations

(MacCrimmon and Marshall, 1968;

MacCrimmon et al., 1970;

MacCrimmon, 1971; and Krueger et al.,

1994). Reintroduction and rangeexpansion programs use this plasticity

to create viable populations, but

typically success rates are highest with

neighboring stocks or those from similar

ecosystems (Reisenbichler and

McIntyre, 1977; Krueger et al., 1981;

and Reisenbichler and Rubin, 1999). As

these restoration programs continue,

their focus on the redevelopment of

river-specific stocks should enhance the

genetic resources of Atlantic salmon in

the United States.

Issue 12: The Role of the River Specific

Stocking Program in Recovery

Comment 17: Some commenters

questioned the appropriateness and

success of the FWS river specific

stocking program.

Response: The Atlantic salmon

rehabilitation program is a cooperative

program involving numerous State and

Federal agencies, as well as nongovernmental organizations. There has

been a considerable amount of review,

oversight, and guidance on every aspect

of this program (fish culture, health,

genetics, management, and habitat

evaluation) since its inception in 1991.

The Maine Atlantic Salmon Technical

Advisory Committee (TAC) reviews

program activities and makes

recommendations to the Atlantic

Salmon Commission (ASC), and the

Services for final decisions. Also, the

USASAC provides guidance to program

cooperators.

The Services supported the suggestion

for a peer review of the river specific

stocking program when it was proposed

in January 1999, by the State of Maine,

Trout Unlimited, and National Fish &

Wildlife Foundation. This initiative was

dropped when the State of Maine

withdrew its support in the fall of 1999.

The role of the river specific program

will be examined during the

development of the recovery plan.

Comment 18: Some commenters

voiced concern about the restoration

program and the potential disastrous

failure of that program in terms of

interbreeding, adapting the fish to

freshwater, and misplacing wild fry in

habitat.

Response: Although the above

mentioned aspects of the stocking

program are discussed and reviewed

continually among program cooperators,

the discussion in the Status Review did

not address many of the concerns

presented during the public comment

period. These issues will be discussed

much more comprehensively during the

development of the recovery plan.

The level of genetic diversity in

Maine Atlantic salmon populations is

very similar to the level found in

Canada. The level of genetic diversity

found in fish within the DPS is similar

to the level of genetic diversity found in

other North American populations,

which indicates that the genetic

diversity and variation have not been

diminished by the river specific fish

culture program. All precautions are

being taken by cooperators in

broodstock collections, management

and spawning protocols to ensure that

this genetic integrity is maintained.

Monitoring of the river-specific Atlantic

salmon broodstock at CBNFH show that

the heterozygosity of the rivers has not

been compromised and is sufficiently

robust to maintain a viable population

at this time. Continuous monitoring

protocols are in place to ensure that

genetic integrity is maintained.

While it is true that the captive

broodstock at CBNFH have not seen a

marine phase, many years of adult

returns from the hatchery-produced

progeny of hatchery-reared broodstock

indicate that this should not affect the

ability of the offspring to undergo

smoltification and emigrate to the ocean

after the normal 2-year in-river juvenile

phase.

Habitat in the rivers in the DPS has

been mapped during low summer flows

by Maine ASC and FWS biologists.

Efforts are made during stocking to

target areas which have been identified

as good fry habitat. Fry stocking is

usually suspended during periods of

higher than normal flows to prevent

stocked fry from being washed out of

the target stocking areas.

Comment 19: Some commenters cited

poor returns in 1997, 1998, and 1999 as

evidence of failure of the river-specific

stocking program.

Response: The life history of the

Atlantic salmon is complex. Survival at

all life stages is dependent upon many

biological and physical factors in the

freshwater and marine environments.

The goal of the river-specific stocking

program is to ensure that the freshwater

rearing habitat is optimally used by

genetically suitable stocks for the

purpose of producing out-migrating

smolts in spite of low returning adult

populations. The goal is to maintain a

population until those factors which are

negatively affecting populations are

lessened through naturally occurring

forces and/or human intervention.

Hatchery program evaluations

indicate that the hatchery program,

through both fry and broodstock

releases, has increased the juvenile

population beyond what the low

number of returning adults would

provide.

It has taken several years to develop

captive broodstock from parr collection

in numbers sufficient to optimally use

the rearing habitat. This level of use has

been approached only within the last 4

or 5 years. The adult returns to DPS

rivers in recent years reflect releases of

relatively small numbers of fry. It is

premature to make any statements

regarding the success or failure of the

stocking program’s contribution to adult

returns since it takes four years to grow

from a fry to adult salmon. Significant

adult returns from significant numbers

of stocked fry should begin to appear in

2001.

The Services will continue to monitor

the success of the hatchery program and

continue to explore ways to improve

hatchery releases, especially in light of

the newly redesigned CBNFH isolation

facility. For example, the current

69468 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

program was recently revised to sample

and track the DNA from individuals

which comprise a mating pair. This

allows the tracking of stocked fry and

better assessment, monitoring, and

management of the fish culture program.

The best scientific principle, which is

accepted world-wide, dictates that the

best source to use to rebuild a fish or

wildlife population is that same

population. If this population does not

exist, then the next best population to

use is one that is nearby and similar

biologically. The remnant populations

of six of the eight rivers within the Gulf

of Maine DPS range are being used to

maintain and rebuild these salmon

populations.

Comprehensive DNA fingerprinting of

each salmon broodstock for the DPS

rivers indicates that the level of genetic

diversity and variation are similar to

other North American populations. This

indicates that the river-specific program

has not diminished the genetic integrity

of these populations. All precautions are

being taken by program cooperators in

broodstock collections, management,

and spawning protocols to ensure that

this integrity is maintained. Continuous

monitoring of the river-specific Atlantic

salmon broodstock at CBNFH shows

that the hetereozygosity of the rivers has

not been compromised and is

sufficiently robust to maintain a viable

population.

The goal of the Atlantic salmon

rehabilitation program is to maintain a

juvenile population of genetically

compatible salmon while optimizing the

use of rearing habitat to produce outmigrating smolts until the adult

population recovers adequately to meet

natural reproduction requirements.

Monitoring studies have shown that

juvenile populations in areas which

have been stocked with fry are higher

than would be expected from the

observed levels of natural reproduction.

The hatchery program also provides

refugia for salmon populations which

are at low levels and in danger of

ceasing to exist, as is the case with the

Gulf of Maine DPS salmon populations.

The stocking program has been

successful in these aspects of the

program. Continued monitoring of the

river-specific stocking program will be

conducted to evaluate its impact on the

recovery of the Gulf of Maine DPS.

Modifications based upon the results of

the monitoring will be made as

necessary.

Comment 20: One commenter

suggested that the Services should work

with the new ASC and direct the

hatcheries to return all river-specific

fish they have in the holding tanks to

their specific rivers—return all to their

home rivers, remove all weirs and allow

the fish to move naturally.

Response: Returning all hatchery

broodstocks to the rivers of origin is an

option that could be posed to the ASC

for discussion within the Commission,

and with other involved state and

Federal agencies, and the interested

public for consideration.

The Services believe, however, that

this action, under current

environmental conditions, would pose

an unacceptable risk to the small

remnant populations in the Gulf of

Maine DPS for several reasons. The

hatchery system serves two functions. It

provides a refuge for those remnant

salmon populations which are in danger

of extinction, as well as increasing the

probability of rebuilding these

populations, because survival at all

lifestages in the hatchery is much

greater than in the wild. This affords an

opportunity to protect and maintain

these populations until environmental

conditions become more favorable to the

survival of the salmon through natural

cycles, and as a result of habitat

protection and enhancement being

conducted by agencies and watershed

councils.

Broodstock that are surplus to the

needs of the hatchery are returned to

their river of origin. In 1996, 503 adult

fish were returned to their rivers, 583 in

1997, 907 in 1998, and 81 in 1999.

Comment 21: One commenter claimed

that the river specific stocking program

has no biological basis at this time due

to low population sizes.

Response: The benefits and risks of a

river-specific rehabilitation program

must be considered in the context of

population dynamics, especially

population size, which can cause (1)

inbreeding depression, (2) loss of

genetic variation, and (3) outbreeding

depression. If populations become

small, the risk of inbreeding depression

and loss of genetic variation increases.

In response to this, one management

option is the introduction of fish from

outside the population; however,

hazards such as outbreeding depression

are associated with this option.

For the salmon in question, each

population is comprised of multiple

year classes of wild and captive fish.

The effective population size is hence

much larger than the number of

returning adults in any given year.

Nonetheless, if effective population size

becomes low, or if genetic data indicate

a loss of variation within a population,

then it would be appropriate to consider

modification of the river-specific

protocols for a given population. DNA

fingerprinting of broodstock indicates

that the levels of genetic diversity

within the broodstocks from the DPS

rivers are similar to other wild

populations in other countries. In

addition, many precautions are being

taken by program cooperators in

broodstock collections, management,

and spawning protocols to ensure that

genetic integrity is maintained.

Comment 22: Some commenters

stated that the existing stocking program

is clearly not working, and suggested

that the Services invite the watershed

councils and sporting clubs to help

redesign that program. They suggested

that the current program be replaced

with a new river-by-river stocking

program with oversight groups that are

composed of at least 50 percent local

citizens.

Response: The current rehabilitation

program is a river-by-river program

using remnant populations to rebuild

the salmon populations. The redesign

and reconstruction of the CBNFH has

allowed cooperators to develop

broodstocks for six of the eight DPS

rivers, with no plans being made to

develop broodstock for the Ducktrap

River and Cove Brook.

The watershed councils participate in

the current program and are invited to

provide input through Project SHARE

(Salmon Habitat and River

Enhancement), watershed council

meetings, and meetings of the Downeast

River Coalition, as well as informal

discussions with the agencies.

Watershed Councils are also encouraged

to participate in meetings of the Maine

TAC and ASC, and are actively

participating in stocking and fish

culture activities. This is an evolving

process, and it is anticipated that the

agencies and watershed councils will

work more closely together as time goes

on. For example, the Downeast River

Coalition and various fishery agencies

have cooperated in developing the

Pleasant River Broodstock Management

Plan. Additional opportunities for

involvement will be available during the

recovery planning process.

Issue 13: Fish Health

Several comments were received on

the relative risk to the DPS from fish

diseases. These comments raised

questions of three types: (1) Questions

regarding the risk posed by aquaculture

fish, specifically concerning ISA; (2)

questions regarding the need to destroy

the Pleasant River broodstock; and (3)

questions regarding why Federal

hatcheries are not held to the same fish

health standards as private fish culture

facilities.

Comment 23: Some commenters

stated that there is no basis to presume

that aquaculture fish pose a special

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69469

threat to wild salmon in Maine since (a)

ISA has existed in Canada for 3 years

without appearing in any U.S. fish, (b)

there is no scientific documentation of

aquaculture fish transmitting disease to

wild fish, and (c) the disease already

exists in the wild.

Response: The Services recognize that

disease is a natural part of wild

salmon’s existence as fish pathogens are

a normal part of the aquatic

environment. However, the concern

raised in the proposed rule relates

primarily to the recent occurrence of

two disease organisms that were

previously unknown in the DPS’s

geographic area. One is the SSSV

recently discovered in Pleasant River

broodstock (see Response 13b).

The second is the occurrence of the

ISA virus in Canadian aquaculture pens,

some within the known infective range

of U.S. sea pens. The ISA virus is

extremely destructive to maturing

salmon and there is no known cure.

This virus has only been known to

cause disease in situations where fish

were artificially confined and was not

observed in the carrier state in free

ranging salmon or other species until

very recently. The ISA virus has been

found in wild salmon in Scotland, as

well as in confined rainbow trout, wild

sea trout, and eels. There is a possibility

that the virus can be spread to confined

populations (e.g. sea pens) by wild fish

of other species, but that has not yet

been demonstrated. It is known that it

is transmissible laterally between fish

pens within 5 kilometers (km) of each

other, and by the discharge of slaughter

wastes. ISA disease has, to date, only

been found in wild fish that have been

exposed to infected aquaculture fish in

New Brunswick, Canada. There are

Canadian aquaculture sites with recent

ISA infections close enough to U.S.

aquaculture sites in Cobscook Bay, the

location of Maine’s greatest

concentration of salmon aquaculture

pens, to create a significant risk of the

introduction of the virus to U.S.

aquaculture stocks. The extensive

testing and precautions that have been

taken by the Maine aquaculture industry

and the State in response to this

situation underscore this risk. A

significant portion of the adult DPS

salmon must swim near U.S. pens in

Cobscook Bay and the vicinity of the

Machias Rivers. The possible

establishment of ISA in and around U.S.

pen sites, and its presence in nearby

Canadian aquaculture sites pose a risk

to wild salmon. This may have severe

consequences and was not known to

exist during the 1995 Status Review.

The Services recognize that fish

pathogens exist in the wild, and

aquaculture operations or any other

artificially created concentration of fish

do not in themselves create pathogens

or disease. However, the effect of

concentrations of individuals on

magnifying the level of any pathogen

present and the rate and extent of any

resultant epizootic is well known

(Finlay and Falkow, 1989). Therefore,

the Services concluded that the

presence of the ISA virus in the

geographic range of the DPS, and the

existence of extensive concentrations of

net pens create a new and significant

risk directly to the DPS adults and

indirectly to the rehabilitation program

currently supplementing the DPS

juvenile population.

Comment 24: One commenter

questioned the decision to destroy the

Pleasant River broodstock.

Response: State and Federal agencies

responsible for producing fish for

release in the wild maintain extensive

fish health management programs

designed to protect the fish being

produced for the public, the facilities

used to produce them, and most

importantly, the public health and

health of other wild fish populations

and their environment. Procedures to be

followed by an agency when a fish

disease situation develops are

documented through guidelines and

policies (e.g. Fish and Wildlife Service

National Fish Health Policy and

Guidelines, New England Salmonid

Health Guidelines, and various state

regulations) which are generally based

on procedures described in the so-called

‘‘Blue Book’’ produced by the American

Fisheries Society. In general, the most

stringent counteractions to a disease

outbreak in a hatchery are called for

when the disease agent is a newly

discovered pathogen or one that had not

previously been found in the affected

geographic area. This was the case with

the disease that attacked the Pleasant

River wild broodstock being held in

captivity at the North Attleboro National

Fish Hatchery (NANFH). A retrovirus

named SSSV and believed to be the

cause of fatal symptoms that developed

in the sub-adult Pleasant River

broodstock, represented a previously

unknown salmon disease. The extent of

the threat posed to salmon was not

known but, under conditions that

existed at the NANFH, the disease was

fatal and had no known treatment. The

Massachusetts Fish and Wildlife

Department, in accordance with

customary procedures with an exotic

disease, required the FWS to remove

these fish from the hatchery which

discharges its water into state public

waters. The surviving fish were placed

in quarantine facilities available at the

USGS laboratory in West Virginia so

that research could be conducted before

destroying and disposing of these

infected fish. Subsequent testing of a

related group of Pleasant River

broodstock held at a private facility in

Maine showed these fish also carried

the virus, though there were no disease

symptoms. These fish had to be

removed in order to protect the viability

of the facility as a commercial hatchery.

No suitable quarantine facilities existed

that could safely hold the fish, thus

necessitating their destruction. Even if

quarantine facilities could have been

found and the fish never developed

symptoms, their usefulness as

broodstock was compromised. Since the

virus may be transmissible from an

infected parent to the eggs it produced,

and given the exotic nature of the virus,

any juvenile salmon produced from

those infected fish could represent a

serious threat to wild and aquaculture

fish, and could not prudently be

released into the wild.

In the spring of 2000, program

cooperators initiated a second attempt

to preserve and rebuild the Pleasant

River salmon population. This was

made possible by the reconstruction of

CBNFH and the addition of one

isolation bay. A trap on the Pleasant

River at Columbia Falls captured

outmigrating Atlantic salmon smolts to

help enumerate the population and to

determine origin (wild or aquaculture).

A total of 37 smolts and 24 age 2 parr

were brought into CBNFH for holding

until they become mature broodstock.

Subsequently, 52 age 1+ parr were

captured during the summer of 2000 to

augment these earlier smolt and parr

collections.

In the past year, the FWS and the

State of Maine have developed

procedures to manage broodstock from

populations that contain the SSSV.

Newly captured wild broodstock are

held in isolation for testing. Any carriers

of the virus are culled from the

broodstock population in the hatchery

prior to spawning, and fry are tested for

the presence of the virus prior to

release. In 1999, the FWS, in

cooperation with the Maine Fish Health

Technical Committee, developed a

‘‘Best Management Plan for SSSV’’ for

the CBNFH. All broodstock which

previously tested positive for SSSV

were removed from the spawning

population and not used in the 1999

spawning season.

Comment 25: Federal hatcheries are

not held to the same fish health

standards as private fish culture

facilities.

Response: As a matter of national

policy, a national fish hatchery abides

69470 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

by the fish health regulations of the state

in which it is located or the state to

which fish are shipped. Further,

national fish hatcheries abide by the

FWS’s Fish Health Policy and

Guidelines and, in New England, the

New England Salmonid Health

Guidelines in cases where those

requirements are more stringent than

the prevailing state requirements. In

special situations dealing with

imperiled fishes, the Service and the

appropriate state agency may develop

special procedures, especially relative to

disease testing and monitoring, if

general practices are not possible for

rare stocks.

Issue 14: Fish Stocking Policies in DPS

Rivers

Comment 26: Comments were

received that questioned how the listing

would deal with the current stocking

policies in the DPS rivers. Brook and

brown trout have been stocked in some

of the DPS rivers and landlocked

salmon are known to populate

headwater lakes of DPS rivers. Concern

was raised regarding the potential for

interbreeding, competition, and

agonistic behavior among and between

species.

Response: As noted in the Review of

the Status of Atlantic Salmon (Salmo

salar) under the U.S. Endangered

Species Act (1999), interactions between

wild Atlantic salmon and other

salmonids are mostly limited to

interactions with brook trout and brown

trout. Competition between species

likely plays an important regulatory role

and may cause Atlantic salmon, brook

and brown trout populations to

fluctuate on an annual basis. However,

it is difficult to draw conclusions

regarding the effects and magnitude of

interspecific competition or (in the case

of landlocked salmon) the extent of

interbreeding.

The Maine Department of Inland Fish

and Wildlife recently began an

evaluation to better understand the

interactions between Atlantic salmon

and other freshwater fishes. A draft

report entitled ‘‘Potential Interactions

Between Atlantic Salmon and

Freshwater Fishes’’ has been completed

with specific emphasis on DPS rivers.

The report is now being routed through

administrative channels with a copy to

the ASC for review.

Results of the draft evaluation suggest

that areas that require additional

evaluation or scrutiny include the

Sheepscot River where natural

reproduction of brown trout is known to

occur. Brown trout were once stocked in

the watershed. While they are no longer

intentionally released in the river, wild

populations will continue to be

monitored in future years. Both

landlocked and sea-run salmon are

known to spawn at the outlet of

Meddybemps Lake, the headwaters of

the Dennys River watershed.

Management measures that will include

screens at the outlet of the lake may

minimize interactions by limiting the

introduction of landlocked salmon to

the river. A proposal to rear brown and

rainbow trout, as well as a brook trout/

char crosses in an aquaculture venture

in the Sheepscot River estuary has been

approved by the U.S. Army Corps of

Engineers (ACOE). Also, surveys have

documented a resident population of

largemouth bass in the Ducktrap River.

This species was released in the

watershed in the 1960’s, and currently

there is no viable way to control the

population. It is anticipated that the

fishery resource agencies will continue

to assess and evaluate the potential for

impacts to sea-run Atlantic salmon

resulting from interactions with other

fish species. Where feasible and

appropriate, measures will be

implemented to avoid and minimize

adverse impacts to salmon.

Issue 15: Bycatch of Atlantic Salmon in

Commercial Fisheries

Comment 27: Four comments were

received concerning the issue of a

listing and its potential adverse effect on

other commercial fisheries. Specifically

there was concern that listing would

immediately result in a closure of elver

fishing and consequently limit jobs.

Response: Juvenile eels, or elvers,

begin to migrate into Gulf of Maine

watersheds in March with peak

migrations occurring in April and May.

Extended migrations sometimes

continue into June and July. The elver

migration and fishery occurs coincident

with the emigration of Atlantic salmon

smolts. The elver fishery may extend

into June, coincident with immigration

of adult salmon destined for upriver

spawning areas. Regulations of the elver

fishery include a season from March 22

to May 31, ban on harvest of elvers

upriver of the head-of-tide, limits on the

length of fyke nets that can be set in

waterways, prohibition on nets from the

middle third of any waterway, and a

requirement for finfish excluder panels

integral with nets to minimize bycatch

and mitigate adverse impacts on nontarget species. Most nets are deployed

near head-of-tide and immediately

adjacent to the shore. Entry into the

elver fishery was limited in 1999 to

reduce harvest, and in 2000, a lottery

was introduced for license acquisition.

American eels are managed by an

interstate fishery management plan

under the Atlantic States Marine

Fisheries Commission. As long as the

member states are in compliance with

the fishery management plan, there will

be no closures or changes in the state

program.

Elvers are often evenly distributed

throughout the water column when

moving upriver on the flood tide but

near head-of-tide they are found along

the shore. Maine Department of Marine

Resources (DMR) biological staff in

recent years have not observed or

documented incidental bycatch of either

juvenile or adult Atlantic salmon in

elver nets. Fish species that have been

captured in small numbers include

smelt, pollock, stickleback, pipefish,

and mummichog. Fishing effort for

elvers has decreased in the last 3 years

because of restricted license issuance

and the fact that market price has

decreased considerably. It is not likely

that there will be fishery closures or loss

of jobs in this fishery, nor a significant

decrease in license issuance when the

Gulf of Maine DPS of Atlantic salmon is

listed as an endangered species.

Issue 16: Poaching

Comment 28: Some commenters were

concerned that a reduction of

recreational angler presence on DPS

rivers would increase poaching.

Response: Measures continue to be

implemented by resource agencies to

minimize and eliminate the illegal take

of salmon on DPS and other salmon

rivers in the State of Maine. Funds were

made available through grants to

support two State seasonal enforcement

staff on DPS rivers in years 1998 and

1999, and residual grant funds have

been used to purchase surveillance

equipment in the year 2000. While

funding for enhanced fishery

enforcement efforts on DPS rivers

diminished in 2000, resource agency

personnel are keenly aware of the need

to advise recreational anglers and the

public that protection of Atlantic

salmon is a high priority. The DMR is

posting signs on salmon rivers that

advise of the presence of salmon and the

need for their protection. In addition,

the DMR has employed a seasonal

Marine Patrol Officer to promote and

enforce recreational fishing regulations.

While all waters in the State of Maine

are closed to angling for sea-run salmon,

other protective measures are also being

implemented on an as-needed basis. In

late June 2000, a reach of the Penobscot

River immediately downstream from the

Veazie Dam was closed to all angling to

eliminate the accidental capture of

salmon. The ban on fishing was needed

because striped bass anglers were

catching salmon in that area. This reach

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69471

of river downstream of the dam is a

location where both salmon and striped

bass congregate. The reported bycatch of

salmon by anglers fishing for American

shad on the Narraguagus River

prompted an increase in enforcement

personnel presence on the river during

spring 2000. In addition, resource

personnel involved in scientific studies

on the Narraguagus River have kept

enforcement staff advised of angler

activity and have continued to advise

anglers and the public of the need to

protect all life stages of salmon.

A unique initiative involving the

release of mature salmon in the Dennys

River and the Machias River estuary in

fall 2000, is expected to foster

cooperation among anglers and

residents of these watersheds for the

protection of salmon. This cooperative

venture involving the aquaculture

industry and fishery resource agencies

will place a full complement of adult

salmon on the spawning grounds in the

Dennys River and adult fish in the lower

Machias River. Interest in this initiative

is high among stakeholders, and it is

anticipated that this interest will offer

increased protection for salmon in the

watersheds. This program will be

evaluated to determine the utility of this

approach in a recovery effort.

Issue 17: Aquaculture

Comment 29: The concern has been

raised that fish being used in

aquaculture have not been removed

from the wild for a sufficient amount of

time to become genetically distinct from

wild stocks. As a result, these fish

should not pose a threat to wild resident

populations should they escape from

captivity.

Response: A large percentage of the

fish being used in aquaculture currently

are of European origin and, therefore,

are genetically different from the native

North American strains. North

American strains used by the industry

are genetically different from wild North

American strain due to changes

introduced through domestication. The

industry selects fish best suited to grow

in captivity, which would likely select

for different traits and characteristics

than those most suited for survival in

the wild.

Comment 30: One commenter

suggested that farm raised fish should

be introduced into the rivers to allow

fishing for everybody and improve the

economy.

Response: The goal of the Maine

Atlantic salmon rehabilitation program

is to enhance and protect the eight

remnant populations of Atlantic salmon

in the rivers which comprise the Gulf of

Maine DPS. The Services are using

river-specific remnant populations and

rebuilding them to the spawning

escapement level needed to sustain the

population. This is to achieve both

human and environmental benefits, so

that people will be able to fish for these

salmon in the future, as they have done

in the past.

Farm fish releases for sport fishing are

inappropriate, particularly at a time

when the salmon runs are so

endangered. Recovery of wild runs and

permanent habitat protection are the

objectives of conservation for the Gulf of

Maine DPS. Sport fishing can be

considered once the other objectives are

attained.

Comment 31: One commenter

questioned the decision not to stock

some river-specific fish from

aquaculture facilities into the rivers due

to fish health concerns.

Response: River-specific Atlantic

salmon being raised by the aquaculture

industry in net pens located in Machias

Bay will be released into appropriate

rivers after passing a comprehensive

fish health survey. These releases are

part of an evaluation program being

overseen by the TAC to rebuild the

salmon populations in these rivers,

evaluate the impacts of these releases on

juvenile populations, and set a direction

for future cooperative programs with the

aquaculture industry. The TAC is

created by a Cooperative Agreement and

is composed of state and Federal

representatives who advise the Federal

and state resource agencies on any

technical matters relative to the Atlantic

salmon restoration and rehabilitation

programs in Maine.

The river-specific fish held in

Cobscook Bay will not be released based

on the recommendation of the Maine

Fish Health Technical Committee. This

recommendation was made as a result of

the risk of spreading ISA to wild salmon

populations and aquaculture facilities in

the United States. This ‘‘quarantine’’

procedure is consistent with protocols

adopted in Canada to prevent the spread

of this virus in an effort to protect both

the wild and aquaculture stocks of

Atlantic salmon. ISA is already present

in the Canadian side of Cobscook Bay.

Comment 32: Some commenters

questioned the evidence regarding

numbers of escapees in rivers or actual

impact on wild stocks in Maine from

aquaculture, including any impacts

from the use of European stocks.

Response: Since the aquaculture

industry began in the Canadian

Maritime Provinces in 1979, escapees

from sea pens and hatcheries have been

documented in 14 rivers in New

Brunswick and Nova Scotia, Canada.

The Magaguadavic River is the only

river in the Maine/Maritime area that

has been monitored closely for

interactions between wild and farmed

fish. That monitoring began in 1992.

Adult salmon of farmed origin have

outnumbered wild salmon in that river

since 1994 and exceeded 80 percent for

three of the five years between 1994 and

1998. Analysis of eggs taken from the

Magaguadavic River in 1993 revealed

that at least 20 percent of the redds were

constructed by females of farm or

cultured origin, and another 35 percent

were of possible cultured origin (Carr et

al., 1997). In addition, emigrating smolts

in 1996 were 51 to 67 percent farmorigin and those exiting the river in

1998 were 82 percent farm-origin and

cited as evidence of leakage of juveniles

from aquaculture facilities on the

watershed (Canadian Department of

Fisheries and Oceans (DFO), 1999).

The U.S. aquaculture industry is

newer and smaller than the Canadian

industry, but has been growing rapidly.

Occurrences of adult escapees in Maine

Rivers are increasing commensurately.

Maine production increased from less

than 500,000 smolt stocked and 2,000

metric tons produced annually before

1990 to over four million smolt stocked

and up to 15,000 metric tons (mt)

produced annually by 1998. There is a

standing crop of about six million subadult salmon in pens in eastern Maine

(Baum, 2000). Since documented

escapees in Maine rivers were listed

through 1997 in the 1999 Status Review,

Baum (2000) has provided

documentation of 143 more adult

escapees observed for the St. Croix,

Dennys, Narraguagus, and Union Rivers

for 1997–1999. Though the St. Croix and

Union Rivers are not DPS rivers, they

serve to demonstrate the relation

between increasing numbers of salmon

in net pens and the increasing

occurrence of escapees in nearby rivers.

In evaluating the extent of escapes, it

must be remembered that these are

observed escapees and represent only a

portion of actual escapees.

Intensive studies of genetic

interaction between wild salmon and

aquaculture escapees in Northwest

Ireland rivers have clearly demonstrated

that escaped juvenile salmon have

completed their entire life cycle in the

wild, including accurate homing to

natal rivers and interbreeding with wild

salmon (Clifford et al., 1998). It has been

demonstrated that escapees are present

in some of the DPS rivers, and many

have been observed to be sexually

mature (Baum, 2000). There is recent

observation of circumstantial evidence

of a female aquaculture escapee

successfully spawning in the Dennys

River (personal communication, Ed

69472 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

Baum, 1996). Genetic studies (King et

al., 1999) have shown the rare

occurrence in wild (DPS) fish collected

in Maine of alleles that are common in

European stocks. This strongly suggests

that some level of introgression of

European alleles may have already

occurred. The experiences from rivers in

Canada (DFO, 1999), Ireland (Clifford et

al., 1998), and Norway (Fleming et al.,

2000 ), which are very similar to Maine

salmon rivers, and where aquaculture

has a longer history and a greater level

of investigation, provide substantial

evidence that negative impacts to the

DPS can be reasonably anticipated to

occur in Maine.

Comment 33: Some commenters

stated that the voluntary Code of

Containment combined with weirs on

some rivers provide adequate protection

of wild stocks from escapees without

any further steps needed.

Response: There were no data

collected for the Dennys, Pleasant,

Machias, East Machias, Ducktrap, or

Sheepscot rivers for sea pen escapees

during the last three years. Where data

are available (Baum, 2000), there is a

clear trend towards increasing numbers

of escapees from cages entering nearby

Maine rivers commensurate with the

rapid expansion of aquaculture in

eastern Maine. This increase is

occurring in spite of most Maine sea

pens currently implementing the

voluntary industry Code of Containment

standards.

Comment 34: One commenter

suggested that a 1– percent pen escape

rate (based on Norwegian data) and a 1–

percent survival to the river (basis of

commenter’s estimate uncertain) would

result in 600 escapees in the eastern

Maine rivers (with a standing crop of six

million). As the great bulk of salmon are

raised near the estuaries of the Dennys

and the two Machias Rivers, the

commenter supposed that annual escape

to those rivers would outnumber the

estimated DPS populations in those

rivers by several fold. Among these

rivers, a weir is present only on the

Dennys. Trapping facilities and a weir

are planned for the Machias/East

Machias respectively, but the date and

financing are undetermined. It is also

important to note that weirs are seasonal

structures and, therefore, do not trap

fish on a year-round basis. Fish barriers

can reduce the degree of threat from a

relatively large number of escapees, but

cannot be considered as adequate

protection for the DPS.

Response: Recent evidence of juvenile

escapees from an aquaculture hatchery

emigrating as smolts from the Pleasant

River (Baum, 2000) represent a threat

that Codes of Containment for sea pens

and weirs entirely fail to address. A

commercial hatchery is also located on

the East Machias River.

Issue 18: Marine Survival

Comment 35: Some commenters

questioned why the Services consider

Maine salmon populations to be on the

verge of extinction instead of simply

attributing the decline to population

cycles.

Response: Although population

dynamics of Atlantic salmon are

intimately related to and influenced by

environmental variables, threats caused

by man exacerbate the severity of the

situation. These threats are serious

enough to make a difference between

survival and extinction. It is important

to note that Atlantic salmon populations

continue to decline even with recent

increases in favorable marine

environmental variables.

Issue 19: Climate Change

Comment 36: Some commenters cited

accounts of temperature rises of one to

three degrees Celsius since the 1920s

and 1930s, and questioned whether the

remaining wild Atlantic salmon of the

Gulf of Maine DPS will be able to

survive such climatic variability.

Response: An examination of the

effect of warming climate on fishery

resources illustrates the challenges to

fish on the southern end of their range.

Climate models predict significant

warming over the next century as the

carbon dioxide content of the

atmosphere increases. Records show

that there have been periods of warming

and cooling of the North Atlantic Ocean,

but changes have not been uniform over

all areas.

Global warming can have an effect on

sea temperatures, wind currents, fresh

water input, and mixing of the ocean’s

surface layer. Fish, being poikilotherms,

maintain a body temperature almost

identical to their surrounding

environment. Thermal changes of just a

few degrees Celsius can critically affect

biological functions in salmonids such

as protein metabolism (McCarthy and

Houlihan, 1997; Somero and Hofmann,

1997; and Reid et al., 1998), response to

aquatic contaminants (Reid et al., 1997),

reproductive performance (Van Der

Kraak and Pankhurst, 1997), smolt

development (McCormick et al., 1997),

species distribution limits (McCarthy

and Houlihan, 1997; Keleher and Rahel,

1996; and Welch et al., 1998), and

community structure of fish

populations.

It has been suggested that an overall

increase in river water temperatures due

to global warming may actually benefit

certain fish populations due to greater

growth opportunity. Increased

opportunities for growth in the spring

and summer could increase the

percentage of fish that enter the upper

size distribution of a population and

smolt the following spring (Thorpe,

1977; Thorpe et al., 1980; and Thorpe,

1994). In addition, warmer rearing

temperatures during the late winter and

spring have been shown to advance the

timing of the parr-smolt transformation

in Atlantic salmon (Solbakken et al.,

1994). There is, however, an optimal

temperature range and a limit for growth

after which salmon parr will stop

feeding due to thermal stress. During

this time, protein degradation and

weight loss will increase with rising

water temperature (McCarthy and

Houlihan, 1997).

Issue 20: Threat Posed by Public

Hatchery Practices

Comment 37: Some commenters

stated that the Status Review did not

adequately address the risks posed by

public hatchery practices given their

dominant influence on Maine salmon

and the proposed extension of the ESA’s

protection to their output.

Response: It is true that a hatchery

program can have large impacts, both

positive and negative, on fish

populations. Every precaution is being

taken to ensure that the river-specific

rehabilitation program in Maine will

enhance the population in a positive

manner. Broodstock are collected in

such a manner as to maximize the

genetic material available in the

individual rivers.

The rehabilitation program is carried

out with the guidance of state and

Federal fish genetic experts, and

spawning is conducted according to

protocols developed and peer reviewed

by the Maine TAC and Assessment

Committee. Activities are guided by

program specific documents such as the

following: Broodstock Collection

Recommendations to the Maine TAC by

the Maine Atlantic Salmon Broodstock

Working Group; Management and

Spawning Protocols for Atlantic Salmon

Broodstocks at the CBNFH, October,

1997; CBNFH Interim Disease

Management Plan, Best Management

Plan for SSSV by the Lamar (PA) Fish

Health Unit, November 1999; Atlantic

Salmon Broodstock Management and

Breeding Handbook by the USFWS,

Biological Report 89 (12) July 1989; and

the CBNFH Standard Husbandry

Procedures for Biosecurity (In draft).

Activities are also guided by regional

and agency policies and guidelines

regarding fish health and management

plans such as the following: Maine

Atlantic Salmon Restoration and

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69473

Management Plan, 1995–2000, Atlantic

Sea Run Salmon Commission; Report of

the Maine Atlantic Salmon Authority to

the Joint Standing Committee on Inland

Fisheries and Wildlife; Maine Atlantic

Salmon Management Plan with

Recommendations Pertaining to Staffing

and Budget Matters, January 1997; and

Atlantic Salmon Conservation Plan for

Seven Maine Rivers, The Maine Atlantic

Salmon Task Force. March 1997.

Fish health management is conducted

in close consultation with the FWS’

Lamar Fish Health Unit, the Maine Fish

Health Technical Committee, and in

strict compliance with state, regional,

and Federal regulations, protocols, and

guidelines.

Hatchery populations are included as

part of the DPS when they are similar

to the native, naturally spawned fish,

and are listed along with the DPS when

they are determined to be essential to

the recovery of the wild population.

These hatchery populations are vital to

compensate for the prolonged period of

low adult returns, but they are not

counted as part of the recovery goal.

That goal is based upon wild spawners

returning. Since the river specific

broodstock were derived from the wild

populations, they are determined to be

similar to the naturally spawning fish.

Genetic analysis of the broodstock has

confirmed that the genetic diversity of

the wild populations is being

maintained in the captive population.

Therefore, the river-specific broodstock

and their progeny are part of the DPS.

The purpose of the river-specific

program is to facilitate recovery of these

depleted populations. The river specific

program is providing a critical role in

increasing the effective population size

of five of the populations within the

DPS, and therefore providing a buffer

against extinction. The hatchery

populations are, therefore, essential to

the survival and recovery of the wild

populations. The Services further

believe that naturally spawning Atlantic

salmon populations founded by the

hatchery populations will play an

important role in the recovery process.

The Services have issued a final

policy regarding controlled propagation

of species listed under the ESA (65 FR

56916, September 20, 2000). The policy

recognizes that, in certain

circumstances, controlled propagation is

an essential tool for the conservation

and recovery of listed species. The

policy advises that if controlled

propagation is to be used as a strategy

in the recovery of a listed species, it

must be conducted in a manner that will

minimize risk to existing populations

and preserve the genetic and ecological

distinctness of the listed species. These

have all been considerations in

designing and administering the current

hatchery program. The ongoing and

future role of the river-specific rearing

program in the overall recovery plan for

the Gulf of Maine DPS will be fully

addressed in the recovery plan to be

developed following this listing action.

Issue 21: Impact on Individuals

Comment 38: Many commenters

expressed concern that listing would

affect the conduct of their daily lives by

imposing additional restrictions upon

them once listing occurred.

Response: Unless an individual or

organization is engaged in an activity

that is likely to result in a ‘‘take’’ of

Atlantic salmon, they will not be

affected by the listing. A list of potential

take activities was provided in the

proposed rule and a revised list is being

published in this final rule. It is the

opinion of the Services that few, if any,

individual citizens will be engaged in

these activities or any others which may

cause ‘‘take’’ of salmon. The Services

remain committed to working with

individuals and industries to ensure

adequate protection is provided to

Atlantic salmon and their habitat while

minimizing effects to individuals and

businesses. The Services acknowledge

that listing the DPS may require some

modification of current practices in the

aquaculture and agriculture industries,

and the Services have been working

with the affected groups to achieve the

necessary level of protection for salmon

within the DPS. We are confident that

these changes can be accomplished with

minimal disruptions.

Issue 22: Citizen Suits

Comment 39: Some commenters

suggested that listing the DPS would

bring a rash of lawsuits pursuant to the

citizen suit provision of the ESA. The

intent of the suits would be to force

changes in land use or business

practices in Maine.

Response: Section 11(g) of the ESA

entitled ‘‘Citizen Suits’’ says, in part,

‘‘* * * any person may commence a

civil suit on his own behalf (A) to enjoin

any person, including the United States

and any other Governmental

instrumentality or agency (to the extent

permitted by the eleventh amendment

to the Constitution), who is alleged to be

in violation of any provision of this act

or regulation issued under the authority

thereof.’’

This provision of the ESA is exercised

by citizens or organizations seeking

redress in those instances where they

contend that no action, limited action,

or inappropriate action is putting listed

or petitioned, species at risk. The

individual or organization making such

claims is required to present

information to support its position.

Currently, the only salmon-related

active citizen suits under this provision

in Maine are against the Services for

accepting the State of Maine Atlantic

Salmon Conservation Plan in 1997, and

concurrently withdrawing a proposed

rule designating a seven-river DPS as

‘‘threatened.’’

Issue 23: Resources for Recovery

Comment 40: Some commenters

expressed concern that there were not

adequate resources to bring about

salmon recovery.

Response: The determination of

whether a species is ‘‘threatened’’ or

‘‘endangered’’ is a biological one and

does not consider the economic benefits

or costs of listing. The Services

acknowledge that listing does not

guarantee that additional funding will

become available, but the ‘‘endangered’’

or ‘‘threatened’’ designation raises the

level of awareness about the species’

plight, and allows the Services to spend

funds from the portions of both

Services’ budgets designated for listed

species management and protection. It

also increases the likelihood that other

involved Federal, State, and private

organizations will dedicate more funds

for salmon recovery. It is also important

to note that section 7 of the ESA

provides mandatory protection from any

Federally permitted, authorized,

funded, or carried out activities that

would cause jeopardy. In fact, the

proposal has already generated

increased involvement and funding

commitments from a number of Federal

agencies including the Environmental

Protection Agency (EPA), ACOE, and

the Natural Resource Conservation

Service. The State of Maine has also

authorized additional salmon funds in

the most recent legislative session.

Issue 24: Economic Concerns

Comment 41: Many commenters at

the public hearings orally and in writing

expressed concern that additional

regulations that accompany listing

would cause severe economic hardship,

particularly in Washington County, and

that many people could lose their jobs

as a result.

Response: Section 4(b)(1)(A) of the

ESA states, in part, that listing

determinations shall be made, ‘‘..solely

on the basis of the best scientific and

commercial data available..’’ without

weighing economic factors. The

Services acknowledge the concerns that

have been expressed and have adopted

a number of policies to make

implementation of the ESA more

69474 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

flexible and to increase the options that

affected citizens have in order to

comply with the law. These are

designed to encourage conservation by

private landowners and others and

provide them some certainty as to what

is expected in the future. These policies

include: ‘‘Safe Harbor Agreements,’’

which provide landowners who

voluntarily implement conservation

actions for listed species with

assurances that their regulatory

obligations will not increase with an

increase in these species on their lands;

‘‘habitat conservation plans’’ (HCPs) or

‘‘conservation plans,’’ which must

accompany an application for a Section

10(a)(1)(B) incidental take permit; and

‘‘No Surprises’’ under Section

10(a)(1)(B), which provides assurances

to landowners that if ‘‘unforeseen

circumstances’’ arise, there will be no

additional commitment of land, water or

financial compensation or additional

restrictions on the use of land, water, or

other natural resources beyond the level

otherwise agreed to in a properly

implemented habitat conservation plan.

Issue 25: Predation

Comment 42: Many commenters

expressed concerns that unchecked

populations of seals and cormorants

were contributing to declining salmon

populations.

Response: The FWS has begun

development of a draft Environmental

Impact Statement (EIS) and management

plan for double crested cormorants. It

will explore alternatives for managing

cormorants throughout the contiguous

United States including such options as

a hunting season, control at breeding

colonies by state agencies, and the

continued issuance of depredation

permits to private landowners. Maine

has identified salmon as one of several

issues that should be examined during

the EIS process, as required under the

National Environmental Policy Act of

1969 (NEPA).

The 2000 Annual Meeting of the

USASAC held a special session on seals

and seal predation on Atlantic salmon.

It was reported that populations of both

grey and harbor seals have experienced

steady growth since the early 1980s.

Harbor seals in the vicinity of the Maine

coast have experienced an 8.9–percent

annual increase in their population.

Populations of grey seals experienced a

7.4–percent annual growth in the Gulf

of St. Lawrence, and a 12.6–percent

increase at Sable Island. It was noted

that seals are opportunistic feeders and

will target both benthic and schooling

pelagic fish species. Primary diet items

of harbor seals include herring, cod,

pollock, squid and hake. No salmon

have been identified in harbor seal

stomachs. Grey seals feed primarily on

squid, herring, hake, and cod. There are

two documented cases of grey seal

predation on Atlantic salmon in the

Gulf of St. Lawrence. During trapping

operations in Maine incidents of

scarring and injury on adult Atlantic

salmon have been observed. The DFO

conducted a literature search on seal

predation and found that only two

Atlantic salmon were found out of 5,680

seal stomachs examined. It was noted

that if 100 percent of the Atlantic

salmon biomass in the Atlantic Ocean

were consumed by harp seals, Atlantic

salmon would account for only 0.01

percent of their annual diet. This

illustrates the difficulty in documenting

Atlantic salmon predation by seals.

Based on existing information, it

appears that additional investigation is

warranted to examine the potential for

localized seal predation on salmon at

critical concentration points and times

such as during smolt outmigration and

in the vicinity of weirs. In addition, seal

predation at marine cages is of concern

because it results in a loss in inventory

for the grower and because it increases

the potential for escape of farmed fish.

The NMFS is working with the State of

Maine to investigate these issues.

Lethal take of marine mammals is

authorized under the Marine Mammal

Protection Act (MMPA) under very

limited situations. Specifically, section

109(h)(1) of the MMPA authorizes

Federal, state, and local officials to take

marine mammals in a humane manner

in the course of their duties if such

taking is for: (A) the protection or

welfare of the mammal, (B) the

protection of the public health and

welfare, or (C) the nonlethal removal of

nuisance animals. Section 101(c)

authorizes the taking of marine

mammals if imminently necessary in

self defense or to save the life of a

person in immediate danger. Lethal

taking to protect fishing gear or catch is

prohibited by section 118(a)(5) and

101(a)(4). In the 1994 amendments to

the MMPA, Congress directed a

scientific investigation be conducted to

determine whether California sea lions

and Pacific harbor seals are having a

significant negative impact on the

recovery of salmonid fishery stocks

listed under the ESA or are having

broader impacts on the coastal

ecosystems of Washington, Oregon, and

California. The Working Group

recommended additional research in a

number of areas but found that existing

information on the seriously depressed

status of many salmonid stocks is

sufficient to warrant actions to remove

pinnipeds in areas of co-occurrence

where pinnipeds prey on depressed

salmonid populations. In February

1999, based on these working group

recommendations, NMFS submitted a

report to Congress with the following

four recommendations: implement sitespecific management for California sea

lions and Pacific harbor seals; develop

safe, effective, non-lethal deterrents;

selectively reinstate authority for

commercial fishers to kill harbor seals

and sea lions to protect their gear and

catch; and conduct additional research.

Studies on the interactions of seals with

netpens and at natural concentration

sites (weirs, falls) should be conducted.

Issue 26: Forest Practices

Comment 43: Some commenters

suggested that current forest practices

may be negatively affecting salmon.

Response: Although the Status

Review and the Maine Atlantic Salmon

Conservation Plan identify a number of

activities associated with forest

practices that have the potential to affect

salmon, the Services do not believe that

current forest practices pose a

significant threat to the well-being of the

species. However, given the precarious

status of the species even minor impacts

must be recognized and dealt with.

Consequently, the Services will

continue to work with the industry, the

Watershed Councils, and Project SHARE

to secure additional habitat protection

throughout the watersheds.

Issue 27: Agricultural Practices

Comment 44: A number of

commenters expressed concern that

agricultural activities in Maine were

negatively impacting salmon.

Response: The Services do not believe

that current agricultural practices are a

major threat to the DPS with the

exception of water withdrawals from the

Pleasant, Narraguagus, and Machias

Rivers. Pesticide sampling has been

conducted in seven of the DPS

watersheds, and hexazinone was the

only chemical detected. There is no

evidence that it is toxic to fish.

Pollution from livestock can affect water

quality, but efforts are underway to

eliminate the impacts. Livestock

husbandry is limited primarily to the

mid-coast watersheds. As noted here,

significant progress is being made to

insure that withdrawals of irrigation

water are protective of salmon, but more

work remains to be done before the

Services can consider this threat to be

eliminated. The Services will continue

to monitor forestry and agricultural

practices and their effects on salmon

during the recovery process.

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69475

Issue 28: Local Involvement

Comment 45: A number of

commenters urged the Services to be

cognizant of the critical role of local

citizens in the protection and recovery

of Atlantic salmon. Some expressed

concern that the involvement and

cooperation of such citizens would

cease with a listing action.

Response: The Services fully agree

that the successful recovery of Atlantic

salmon will depend on the cooperation

and involvement of the citizens of

Maine and in particular those who live

and work in the eight watersheds. The

ESA encourages cooperative efforts and

local involvement. As stated at the

public hearings and elsewhere, the

Services intend to draft a recovery plan

for the Gulf of Maine DPS of Atlantic

salmon by building upon the model of

the Maine Conservation Plan which

emphasizes citizen involvement. The

Services envision a large role for the

Watershed Councils in the recovery

planning process and, based on

comments provided at the public

hearing, will also involve local Soil and

Water Districts.

Summary of Factors Affecting the Gulf

of Maine DPS of Atlantic Salmon

Section 4 of the ESA (16 U.S.C. 1533)

and regulations promulgated to

implement the listing provisions of the

ESA (50 CFR part 424) set forth the

procedures for adding species to the

Federal list. Section 4 also requires that

listing determinations be based solely

on the best scientific and commercial

data available, without consideration of

possible economic or other impacts of

such determinations. A species may be

determined to be endangered or

threatened due to one or more of the

five factors described in section 4(a)(1)

of the ESA. These factors and their

application to the Gulf of Maine DPS of

Atlantic salmon are described here.

(A) The Present or Threatened

Destruction, Modification, or

Curtailment of Habitat or Range

Demonstrated and potential impacts

to Atlantic salmon habitat within the

DPS watersheds result from the

following causes: (1) Water extraction;

(2) sedimentation; (3) obstructions to

passage including those caused by

beaver and debris dams and poorly

designed road crossings; (4) input of

nutrients; (5) chronic exposure to

insecticides, herbicides, fungicides, and

pesticides (in particular, those used to

control spruce budworm); (6) elevated

water temperatures from processing

water discharges; and (7) removal of

vegetation along streambanks. The most

obvious and immediate threat is posed

by water extraction on some rivers

within the DPS range, as it has the

potential to expose or reduce salmon

habitat.

The threat of blocked passage due to

debris or beaver dams is an annual

event. The ASC, Project SHARE, and the

Watershed Councils have demonstrated

an ability to annually remove or reduce

that threat. Chronic exposure to

chemical residues in the water is a

threat that warrants further

investigation. In particular, potential

impacts during the process of

smoltification are being examined.

Sedimentation from a variety of sources

also warrants closer review as it may be

altering habitat and rendering it

incapable of supporting Atlantic

salmon. Water temperatures in the

vicinity of berry processing water

discharges should be monitored to

determine if they make habitat

unsuitable for Atlantic salmon. Permit

exemptions for agriculture practices

should be evaluated to determine if they

provide adequate protection to riparian

habitat.

All of these potential impacts to

Atlantic salmon habitat need to be

examined in more detail for their

individual and cumulative impacts.

Study results on the Narraguagus River

demonstrate that full freshwater

production is not being achieved

despite fry stocking efforts. These

results could mean that one or a

combination of factors within the rivers

is negatively impacting freshwater

habitat for Atlantic salmon. The

relationship between these factors and

freshwater production and survival of

salmon needs to be studied in detail so

that cause and effect connections can be

determined or ruled out. Corrective

actions can then be implemented as

appropriate to enhance recovery.

There does not appear to be one

particular habitat issue which poses a

significant threat to the entire DPS by

itself. Because of their indirect

relationship to habitat, agricultural

water withdrawals are discussed

separately in relation to listing factor (D)

below. Additional study will be needed

to determine whether the cumulative

impacts from habitat degradation

discussed here may reduce habitat

quality and limit habitat quantity

available to Gulf of Maine DPS salmon

at various stages in their life history

within freshwater. At present, the

scientific and commercial data available

do not show that loss of habitat is

creating a danger of extinction to the

DPS.

(B) Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

The United States joined with other

North Atlantic nations in 1982 to form

the North Atlantic Salmon Conservation

Organization (NASCO) for the purpose

of managing salmon through a

cooperative program of conservation,

restoration, and enhancement of North

Atlantic stocks. NASCO achieves its

goals by controlling the exploitation by

one member nation of Atlantic salmon

that originated within the territory of

another member nation. The U.S.’

interest in NASCO stemmed from its

desire to ensure that foreign fisheries

intercepting U.S. origin fish did not

compromise the long-term commitment

by the states and Federal government to

rehabilitate and restore New England

Atlantic salmon stocks.

On February 5, 1999, the DFO

announced adoption of the

precautionary approach by a continued

closure of the commercial Atlantic

salmon fishery for Newfoundland and

Labrador for an additional three years.

Further restrictions on Canadian

Atlantic salmon recreational fisheries

were also announced, including the

requirement to only use barbless hooks

for angling in Newfoundland and

Labrador, and coordination with

Watershed Management groups.

In 1999, the West Greenland

Commission of NASCO agreed on a

multi-year approach for conservation of

salmon stocks in Greenland, and,

therefore, for 1999 and 2000, the catch

at West Greenland in each of the years

is restricted to the amount used

internally in Greenland. The reported

catch in 1999 was 19 tons and the

unreported catch was estimated to be

approximately 10 to 15 tons. Based on

discriminant analysis of characteristics

from scales sampled in the fishery, 91

percent of fish in 1999 were of North

American origin, the highest proportion

on record. The catch at West Greenland

in 1999 was estimated to consist of 17.8

tons (5,700 salmon) of North American

origin and 1.8 tons (600 salmon) of

European origin. These values represent

an increase of 84 percent of the North

American and a reduction of 33 percent

of the European components,

respectively, from the landings in 1998.

In October 1987, the New England

Fishery Management Council prepared a

Fishery Management Plan (FMP) to

implement U.S. management authority

for all Atlantic salmon of U.S. origin

pursuant to the Magnuson-Stevens

Fishery Conservation and Management

Act, 16 U.S.C. 1801 et seq. The FMP was

intended to safeguard U.S. Atlantic

69476 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

salmon, protect the U.S. investment in

the state/Federal restoration program,

and strengthen the U.S. position in

international negotiations. The FMP

prohibits possession of Atlantic salmon

in the Exclusive Economic Zone.

Starting in the 1980s, as runs

decreased, the Maine Atlantic Sea Run

Salmon Commission imposed

increasingly restrictive regulations on

the recreational harvesting of Atlantic

salmon in Maine. The allowable annual

harvest per fisherman was reduced by

the State from ten salmon in the 1980s

to one grilse in 1994. In 1995,

regulations were promulgated to allow

only catch and release fishing for

Atlantic salmon in Maine, closing the

last remaining recreational harvest

opportunities for sea run Atlantic

salmon in the United States. From the

1960s through the early 1980s, the

average exploitation rate in Maine rivers

has been estimated to range from

approximately 20 percent to over 25

percent of the run (Beland, 1984; Baum,

1997). In retrospect, this level of harvest

was likely too high, especially in light

of the extensive commercial harvest at

that time. In 1993, the documented

sport catch of sea-run Atlantic salmon

in Maine was 659 fish, with 152 killed,

and 507 released (USASAC, 1994). The

USASAC reported that 33 fish were

caught and released within the range of

the DPS in 1997, 20 fish in 1998, and

12 in 1999. In December 1999, salmon

angling was closed statewide.

Atlantic salmon parr remain

vulnerable to harvest by trout anglers

and mortality associated with this

activity has been documented. It is

believed that poaching activity occurs at

fairly low levels in Maine rivers. The

low returns of wild adult salmon to

Maine rivers highlight the importance of

continuing assessment of all sources of

mortality that may pose a risk to the

DPS.

Both commercial and recreational

harvest of Atlantic salmon historically

played a role in the decline of the Gulf

of Maine DPS of Atlantic salmon. The

Canadian commercial fishery in

Newfoundland and Labrador is under a

moratorium for the next 3 years. The

West Greenland commercial fishery will

continue as an internal use only fishery

through the 2000 fishing season.

Continuation of the internal use fishery

in Greenland poses a reduced but

continuing concern to the Gulf of Maine

DPS of Atlantic salmon. Recreational

fishing targeting other species also has

the potential to result in the incidental

catch of Atlantic salmon at various life

stages. This could result in their injury

or death. Thus, these fisheries also pose

a threat to Atlantic salmon. There was

one documented poaching event in

1998, indicating that poaching

continues to pose a threat to Atlantic

salmon. Continued enforcement efforts

and adequate penalties are essential to

minimize this threat.

In view of elimination of the directed

fishery in Maine and changes in the

high seas fishery, the existing

commercial fishery off West Greenland

and bycatch in existing recreational

fisheries in Maine are no longer

considered as limiting the survival of

the Gulf of Maine DPS of Atlantic

salmon. Therefore, the best data

presently available do not show that

overutilization is creating a danger of

extinction.

(C) Disease or Predation

Fish diseases have always represented

a source of mortality to Atlantic salmon

in the wild, though major losses due to

disease are generally associated with

salmon aquaculture. The level of threat

from disease has remained relatively

static until the last 3 years. Three recent

events that have increased disease as a

threat to the DPS are: (1) The

appearance of the ISA virus in 1996 in

Canada, within the range of possible

exposure of migrant DPS salmon,

subsequent spreading of that disease

closer to the Maine border, and the

collection of aquaculture escapees and

wild fish testing positive for the ISA

virus; (2) the discovery in 1998 of the

retrovirus SSSV within the DPS; and (3)

new information available in 1999, on

the potential impact of coldwater

disease (CWD) on salmon.

Wild parr were taken from the

Pleasant River, Maine, in 1995 (180),

1996 (80), and 1997 (164), and held in

isolation at the NANFH and a private

hatchery in Deblois, ME for the

purposes of rearing the fish to sexual

maturity, spawning them, and returning

progeny back to the Pleasant River.

Mortalities associated with tumors in

the viscera (particularly the

swimbladder) began to appear in the

salmon at North Attleboro in 1997 and

continued in 1998. Cornell University

scientists identified the causative agent

as a retrovirus named SSSV that had

never been previously documented

except once in Scotland in the 1970s.

Virus-positive fish from North Attleboro

were moved to a quarantine facility at

the USGS facility in Leetown, WV to

obtain detailed information about the

virus.

Pleasant River fish at the Deblois

Hatchery were also found to be positive

for the virus, though no disease or

mortality occurred. Further testing of

wild salmon held as broodstock at the

CBNFH showed that the virus was

present in carrier state in eight

individuals of over 500 tested. Some of

these individuals had been in captivity

for several years, and others were only

recently captured and held in isolation.

The implications are that the virus

exists at some level in wild populations

and has been present for at least several

years. However, its presence in a carrier

state in two other hatcheries, some for

several years, without any clinical

indication of disease, and the lack of

any observation of symptoms in wild

populations suggest that the threat of

disease from SSSV is limited. Until

future research or experience provides

additional information, the threat

associated with this virus remains

uncertain. The virus has caused lethal

disease under conditions that existed at

one hatchery and, therefore, must be

considered a threat.

The second virus that represents a

relatively new threat to the DPS is the

causative agent of ISA. This virus causes

lethal disease in maturing salmon held

in salt water. Discovered in 1984, it was

known only in Norway prior to 1996,

when it was diagnosed in aquaculture

sea pens in New Brunswick, Canada.

The following year it was found in

Scotland. Monitoring in the

Magaguadavic River in New Brunswick

by the Atlantic Salmon Federation has

confirmed both aquaculture escapees

and wild fish infected with the ISA

virus. There is no known control of the

disease except removal of fish held

within 5 km of an infected site. An

extensive survey of Maine aquaculture

operations found no ISA virus present

within the United States. The Province

of New Brunswick has taken extensive

actions to control the spread of the

virus. But the effectiveness of these

actions is not assured and the affected

Canadian aquaculture operations are

near U.S. pen sites. Thus the virus

represents a serious threat because of its

potential to spread to the U.S. pens near

the rivers and migration routes used by

the Gulf of Maine DPS of Atlantic

salmon.

Cold Water Disease caused by the

bacterium Flavobacterium

psychrophilum has recently been found

to be a serious problem to Atlantic

salmon in New England waters. New

information from ongoing studies by the

Biological Resources Division of the

USGS at their Leetown Science Center,

WV has shown that the pathogen

induces pathology and subsequent

mortality among juvenile Atlantic

salmon. The pathogen is transmitted

vertically from carrier sea-run adults to

offspring via the eggs.

Predation has always been a factor

influencing salmon numbers but under

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69477

conditions of a healthy population

would not be expected to threaten the

continued existence of that population.

The threat of predation on the Gulf of

Maine DPS of Atlantic salmon is

significant today because of the very

low numbers of adults returning to

spawn and the dramatic increases in

population levels of some predators,

including cormorants, striped bass, and

several species of seals.

Most rivers within the DPS range do

not contain dams that delay and

concentrate salmon smolts and make

them more vulnerable to cormorant

attacks. Also, the recovery of striped

bass populations over the past decade is

concentrated more in rivers south of the

DPS range. Furthermore, cormorants

and striped bass are transitory predators

impacting migrant juveniles in the

lower river and estuarine areas. Seals,

however, have reached high population

levels not reported before, and salmon

remain vulnerable to seal predation

through much of their range.

In summary, the threat of disease is

escalated both by its potential impact on

Atlantic salmon in the wild and the

threat it poses to the health of the riverspecific broodstock and to the role of

the hatchery program in the recovery

effort. The best available scientific and

commercial data show that disease

presently creates a danger of extinction

to the Gulf of Maine DPS of Atlantic

salmon. There are insufficient data at

this time to show that predation creates

a danger of extinction to the DPS.

(D) Inadequacy of Existing Regulatory

Mechanisms

Major threats continue to be poor

marine survival, water withdrawals,

disease, and aquaculture impacts,

especially interaction with European

strain and hybrid (European/North

American) salmon. A variety of state

and Federal statutes and regulations

seek to address threats to Atlantic

salmon and their habitat. These laws are

complemented by international actions

under NASCO, many interagency

agreements, and state-Federal

cooperative efforts. Implementation and

enforcement of these laws and

regulations could be strengthened to

further protect Atlantic salmon. The

appropriate state and Federal agencies

have established coordination

mechanisms and have joined with

private industries and landowners in

partnerships for the protection of

Atlantic salmon. These partnerships

will be critical to the recovery of the

species. Existing regulatory mechanisms

either lack the capacity or have not been

implemented adequately to decrease or

remove the threats to wild Atlantic

salmon. The discussion that follows will

focus on those laws which have not

proven sufficient to deal with threats,

or, if adequate, are not being sufficiently

implemented or enforced.

(1) Water withdrawals

Maine has made substantial progress

in addressing the issue of agricultural

water withdrawals but regulations and

water use planning are not complete

and in place to provide sufficient

protection to the DPS. The Maine Land

and Water Resource Council and the

Maine Land Use Regulatory

Commission (LURC) must approve

requests for withdrawals for irrigation,

and can curtail withdrawals if water

levels go below what is considered

necessary for the well being of the

species. Until the water use planning is

complete, however, the allowable

surplus above that needed for salmon

has not been quantified. In 1999, the

LURC limited the amount of water that

could be drawn from the Pleasant,

Narraguagus, and Machias Rivers. The

State Department of Environmental

Protection (DEP) is developing a rule to

address withdrawals on a state-wide

basis. At this point, water withdrawals

in unorganized towns are not regulated.

The absence of completed water

management plans for all DPS rivers

subject to future agricultural water

withdrawals, and of permanent

protection for salmon flows, creates a

danger of extinction for the Gulf of

Maine DPS.

(2) Disease

The European ISA virus has become

established in North American

aquaculture fish in proximity to Atlantic

salmon in the DPS. The Services believe

that Maine’s fish health regulations may

not fully ensure testing, reporting, and

depopulation of diseased fish.

Consequently, there remains an

extremely serious possibility of ISA

disease spreading from aquaculture fish.

Also, the occurrence of a heretofore

unknown retrovirus, SSSV, is not yet

specifically addressed by any

regulations. Disease episodes have

impacted the Services’ river-specific

stocking program in that Pleasant River

broodstock had to be destroyed. Efforts

are now underway to reestablish that

broodstock. The Services thus conclude

that inadequate regulation of disease

vectors presents a serious threat to the

health of the DPS.

(3) Aquaculture

The known risks inherent in wild

stocks interacting with aquaculture

escapees have increased significantly

from 3 years ago when the Services

believed that certain restrictions on the

importation and use of foreign salmon

stocks were in place and enforced.

Available data indicate that the

percentage of European strain hybrid

fish raised in aquaculture facilities has

increased. Maine State Law (PL 1991

c381 sub section 2) restricts importing

fish and eggs, but fails to restrict

importing European milt, thus enabling

expansion of the use of hybrids between

European and North American salmon

in aquaculture. Also, permit holders

have continued to use European strains

or hybrids despite their commitment not

to when obtaining ACOE permits, which

were issued in reliance on applications

which stated that no European strains or

hybrids would be placed in cages. In

addition, permits have not been issued

by the EPA under the Clean Water Act

to limit the discharge of pollutants from

these aquaculture facilities. Thus,

existing regulatory mechanisms are not

adequate to address the threat of nonnative Atlantic salmon used in

aquaculture facilities.

Existing regulatory mechanisms are

not sufficient to remove the threat posed

by agricultural water withdrawals,

disease, and aquaculture to the Gulf of

Maine DPS of Atlantic salmon. Given

extremely low numbers of adult returns,

without adequate regulation these

threats create a danger of extinction of

the Gulf of Maine DPS of Atlantic

salmon.

(E) Other Natural or Manmade Factors

Affecting its Continued Existence

The Maine Atlantic salmon

aquaculture industry is currently

composed of 12 companies, at 33 sites,

with 773 cages covering 800 leased

acres of water. Farms are concentrated

in Cobscook Bay near Eastport, ME, but

are located as far south as the Sheepscot

River, although that site currently does

not grow Atlantic salmon. The industry

in Canada is approximately twice the

size of the Maine industry. In addition,

two freshwater hatcheries are located on

rivers within the DPS range.

Atlantic salmon that escape from

farms and hatcheries pose a threat to

native Atlantic salmon populations in

coastal Maine rivers. Escapes and

resultant interactions with native stocks

are expected to increase given the

continued operation of farms and

growth of the industry under current

practices. There is substantial

documentation that escaped farmed

salmon disrupt redds of wild salmon,

compete with wild salmon for food and

habitat, interbreed with wild salmon,

transfer disease or parasites to wild

salmon, and/or degrade benthic habitat

(Clifford, 1997; Youngson et al., 1993;

69478 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

Webb et al., 1993; Windsor and

Hutchinson, 1990; and Saunders, 1991).

A comparison study in Canada revealed

that survival of wild post-smolts moving

from Passamaquoddy Bay to the Bay of

Fundy was inversely related to the

density of aquaculture cages (DFO,

1999). In addition, there has recently

been concern over interactions when

wild adult salmon migrate past closely

spaced cages, creating the potential for

behavioral interactions, disease transfer

or interactions with predators (DFO,

1999; Crozier, 1993; Skaala and Hindar,

1997; Carr et al., 1997; and Lura and

Saegrov, 1991).

Atlantic salmon that either escaped or

were released from aquaculture facilities

have been found in the St. Croix,

Penobscot, Dennys, East Machias, and

Narraguagus Rivers in the United States

(Baum, 1991; USASAC, 1996; 1997). In

1994 and 1997, escaped farmed fish

represented 89 percent and 100 percent,

respectively, of the documented run for

the Dennys River, and in 1995, 22

percent of the documented run for the

Narraguagus River. Escaped farmed

salmon have also been documented as

an incidental capture in the recreational

fishery, and observed in the Boyden,

Hobart, and Pennamaquan Rivers. The

first aquaculture escapee in the State of

Maine was documented in 1990, and the

first sexually mature escapee was

documented in 1996. Escaped farmed

fish are of great concern in Maine

because even at low numbers they can

represent a substantial portion of fish in

some rivers. Also, populations at low

levels are particularly vulnerable to

genetic intrusion or other disturbance

caused by escapees (DFO, 1999;

Hutchings, 1991). Preliminary results

from the 1999 wild smolt assessment

project in the Pleasant River suggest that

several outmigrating smolts were of

hatchery origin based on fin condition

(Kocik et al., 1999, unpublished data).

Of the 676 outmigrating smolts that

were captured between April and May

1999, between five percent and 25

percent were estimated to be of hatchery

origin.

Given current aquaculture practices,

the Services have opposed the use of

reproductively viable European strains

(pure and hybrid) of Atlantic salmon

within North America and the

continued importation of European

gametes (milt). This opposition is based

on genetic studies that demonstrate that

there are significant differences between

North American and European Atlantic

salmon (King et al., 1999), and the

advice from geneticists that

interbreeding among genetically

divergent populations negatively

impacts natural populations (Utter,

1993; Verspoor, 1997; and Youngson

and Verspoor, 1998). The introgression

by non-North American Atlantic salmon

stocks presents a substantial threat of

disrupting the genetic integrity of North

American stocks and threatens fitness

through outbreeding depression.

Comprehensive protective solutions

to minimize the threat of interactions

between wild and aquaculture salmon

have not been implemented. The

industry voluntarily adopted a Code of

Practice in October 1998. The Services

are not aware of monitoring results of

that Code but note that escapes

continued to be documented in the DPS

in 1999 and 2000, when the Code was

in place. Weirs help minimize the

potential interaction between escapees

and wild salmon, but they are not

present on all rivers and where present

are only in place seasonally. In 1997

and 1998, the Services worked with

industry and State representatives in an

attempt to eliminate further importation

of European stocks, remove pure

European strain from marine cages,

mark all fish prior to placement in

marine cages, and phase out the holding

of North American/European hybrids.

These efforts were unsuccessful. In July

of 1999, the Services initiated

discussions directly with the Maine

DMR (the state agency responsible for

aquaculture industry regulation). These

discussions were only partially

successful because, although

information was exchanged, agreement

on timing or specific measures was not

reached.

Further, marine survival rates, as

discussed in a second threat within

factor (E), continue to be low for U.S.

stocks of Atlantic salmon, and the

subsequent low abundance of salmon

impedes recovery of the DPS. Scientists

have attributed natural mortality in the

marine environment to sources that

include stress, predation, starvation,

disease, parasites, and abiotic factors. In

addition, scientific studies indicate that

year-to-year variation in return rates of

U.S. salmon stocks is generally

synchronous with other North Atlantic

stocks. This information suggests that

the trend in return rates is, in part, the

result of factors that occur when the

stocks are in the North Atlantic,

particularly the Labrador Sea. Scientists

have concluded that a significant

proportion of the variation in

recruitment or return rate is attributed

to post-smolt survival. However, the

factors responsible for reduced postsmolt survival are not well understood.

Thus, existing aquaculture practices

and low marine survival create a danger

of extinction of the Gulf of Maine DPS

of Atlantic salmon.

State Conservation Efforts

Section 4(b)(1)(A)of the ESA requires

us, in making a listing determination, to

take into account efforts being made by

the state, foreign nations, or their

political subdivisions, to protect the

DPS of Atlantic salmon. In 1997, Maine

developed a conservation plan that

attempted to identify and address

threats to the species. The state has

implemented a number of the items

contained in the various sections of the

plan. Additional details on conservation

activities can be found in the 1999

Annual Progress Report on

implementation of the Maine Atlantic

Salmon Conservation Plan for Seven

Maine Rivers, prepared by the Maine

Atlantic Salmon Commission and

available at www.state.me.us/asa/

99AnnRpt.html. Since publication of

the proposed rule on November 17,

1999, the following accomplishments

can be noted:

a. In December 1999, the State closed

all salmon fishing until further notice,

thus eliminating this as a source of

mortality. The possibility of mortality

from bycatch still exists when trout,

striped bass, and other fish are the being

targeted.

b. The final draft of the Pleasant River

water use management plan is

scheduled for completion in the fall of

2000. Draft plans for the Narraguagus

River and a major tributary will be

available then as well. Planning efforts

have included instream flow

requirements to protect salmon, and

alternative sources of water are being

sought.

c. The State of Maine appropriated

$810,000 for Atlantic salmon in fiscal

year 2000/2001. The DEP hired a water

quality specialist dedicated to the DPS

rivers with a portion of those funds. The

Maine ASC manages the distribution of

the balance of available funds.

Watershed Councils and other groups

have submitted proposals for salmon

and salmon habitat projects to the ASC

for funding consideration.

d. Weirs constructed by the State of

Maine are in place and functioning on

the Dennys and Pleasant Rivers.

e. Acquisition and permanent

protection of a 220–acre tract of land on

the Narraguagus River was completed in

October 2000.

f. The Maine ASC and the FWS

continue to map salmon habitat in the

eight DPS rivers. Mapping and

geographic information system (GIS)

coverage will be completed for the East

Machias River this year.

In determining whether to make this

rule final, we have carefully assessed

the best scientific and commercial

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69479

information available regarding the past,

present, and future threats faced by the

Gulf of Maine DPS of Atlantic salmon,

while taking into account ongoing

conservation efforts and commitments

made by the State of Maine and other

entities. Based on our evaluation, listing

the Gulf of Maine DPS of Atlantic

salmon as endangered is warranted.

The Services are listing this DPS of

anadromous Atlantic salmon as

endangered under the ESA because of

the danger of extinction created by

factor (C) through disease; factor (D)

through inadequate regulation of

agricultural water withdrawals, disease,

and aquaculture; and factor (E) through

existing aquaculture practices and low

marine survival. These factors take on

added significance given the poor adult

returns and lower than expected parr to

smolt survival. At present, the DPS is

known to include populations of

Atlantic salmon in the Sheepscot,

Ducktrap, Narraguagus, Pleasant,

Machias, East Machias, and Dennys

Rivers, as well as Cove Brook. Both the

naturally reproducing populations of

the Gulf of Maine DPS of Atlantic

salmon and those river-specific hatchery

populations cultured from them are

included in this listing. In the future,

DPS populations may be identified in

additional rivers based on ongoing

stream surveys and continuing genetic

analyses. This could be done in a

separate notification process.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the ESA include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, state agencies, private

organizations, groups, and individuals.

The ESA provides for possible land

acquisition and cooperation with the

states and requires that recovery actions

be carried out for all listed species. The

protection required of Federal agencies

and the prohibitions against taking and

harm are discussed, in part, here.

Section 7(a) of the ESA, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is listed as endangered or

threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the ESA are codified at 50 CFR part

402. Section 7(a)(2) requires Federal

agencies to ensure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency must enter

into formal consultation with us.

Federal activities that could occur and

impact the Gulf of Maine DPS of

Atlantic salmon include, but are not

limited to, the carrying out or the

issuance of permits for marine

aquaculture pen sites, freshwater

hatcheries, cranberry bog development,

water withdrawal projects, pesticide

registration, streambank stabilization,

and road and bridge construction. In our

experience, nearly all ESA section 7

consultations have been resolved so that

the species have been protected and the

project objectives have been met.

In addition, ESA section 7(a)(1)

requires all Federal agencies to review

the programs they administer and use

these programs in furtherance of the

purposes of the ESA. All Federal

agencies, in consultation with us, are to

carry out programs for the conservation

of endangered and threatened species

listed pursuant to section 4 of the ESA.

The Services believe that the State of

Maine’s Atlantic salmon conservation

plan can become a strong foundation for

recovery once it is revised and updated

to take current conditions, threats, and

progress into account. We will work

closely with Maine agencies,

conservation groups, and industry

participants to bring the plan up to date

and ensure effective implementation.

The ESA and its implementing

regulations found at 50 CFR 17.21 set

forth a series of general prohibitions and

exceptions that apply to all endangered

wildlife. These prohibitions, in part,

make it illegal for any person subject to

the jurisdiction of the United States to

take (includes harass, harm, pursue,

hunt, shoot, wound, kill, trap, or collect

or to attempt any of these), import or

export, ship in interstate commerce in

the course of commercial activity, or sell

or offer for sale in interstate or foreign

commerce any endangered wildlife. To

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally is also illegal.

Our policy, as published in the

Federal Register on July 1, 1994 (59 FR

34272), is to identify, to the maximum

extent practicable, those activities that

would or would not constitute a

violation of section 9 of the ESA for the

species. The intent of this policy is to

increase public awareness as to the

effects of this final listing on future and

ongoing activities within this species

range.

The Services believe that, based on

the best available information, the

following actions are unlikely to result

in a violation of section 9:

(1) Possession of Atlantic salmon

acquired lawfully by permit issued by

the Services pursuant to section 10 of

the ESA, or by the terms of an incidental

take statement in a biological opinion

pursuant to section 7 of the ESA;

(2) Federally approved projects that

involve activities such as silviculture,

agriculture, road construction, dam

construction and operation, discharge of

fill material, siting of marine cages for

aquaculture, hatchery programs, and

stream channelization or diversion for

which consultation under section 7 of

the ESA has been completed, and when

such activity is conducted in

accordance with any terms and

conditions given by the Services in an

incidental take statement in a biological

opinion pursuant to section 7 of the

ESA;

(3) Routine culture and assessment

techniques, including the FWS’ riverspecific rehabilitation program at

CBNFH; and

(4) Emergency responses to disease

outbreaks.

Activities that the Services believe

could result in violation of section 9

prohibitions against ‘‘take’’ of the Gulf

of Maine DPS of anadromous Atlantic

salmon include, but are not limited to,

the following:

(1) Targeted recreational and

commercial fishing, bycatch associated

with commercial and recreational

fisheries, and illegal harvest;

(2) The escapement of reproductively

viable non-North American strain or

non-North American hybrid Atlantic

salmon in freshwater hatcheries within

the DPS range;

(3) The escapement from marine cages

or freshwater hatcheries of domesticated

salmon such that they are found

entering or existing in rivers within the

DPS range;

(4) Failure to adopt and implement

fish health practices that adequately

protect against the introduction and

spread of disease;

(5) Siting and/or operating

aquaculture facilities in a manner that

negatively impacts water quality and/or

benthic habitat;

(6) Discharging (point and non-point

sources) or dumping toxic chemicals,

silt, fertilizers, pesticides, heavy metals,

oil, organic wastes or other pollutants

into waters supporting the DPS;

(7) Blocking migration routes;

(8) Destruction and/or alteration of

the species’ habitat (e.g., instream

dredging, rock removal, channelization,

riparian and in-river damage due to

livestock, discharge of fill material,

operation of heavy equipment within

69480 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

the stream channel, manipulation of

river flow);

(9) Violations of discharge or water

withdrawal permits that are protective

of the DPS and its habitat;

(10) Pesticide or herbicide

applications in compliance with or in

violation of label restrictions; and

(11) Unauthorized collecting or

handling of the species (permits to

conduct these activities are available for

purposes of scientific research or to

enhance the propagation or survival of

the DPS).

Other activities not identified here

will be reviewed on a case-by-case basis

to determine if violation of section 9 of

the ESA may be likely to result from

such activities. We do not consider

these lists to be exhaustive and provide

them as information to the public.

This final rule applies all ESA section

9 (16 U.S.C. 1538) protective measures

to prohibit taking, interstate commerce,

and other prohibitions applicable to

endangered species, with the exceptions

provided under section 10 of the ESA

(16 U.S.C. 1539). Section 9 of the ESA

and implementing regulations (50 CFR

17.21) set forth a series of general

prohibitions and exceptions that apply

to all endangered wildlife. These

prohibitions apply to all individuals,

organizations, and agencies subject to

U.S. jurisdiction.

For listed species, ESA section 7(a)(2)

(16 U.S.C. 1536(a)(2)) requires Federal

agencies to ensure that activities they

authorize, fund, or conduct are not

likely to jeopardize the continued

existence of a listed species or to

destroy or adversely modify its critical

habitat. If a Federal action may affect a

listed species or its critical habitat, the

responsible Federal agency must enter

into consultation with the Services.

Consultations will be conducted on a

river-specific basis pursuant to

identification of river-specific recovery

units within the DPS.

ESA sections 10(a)(1)(A) and

10(a)(1)(B) (16 U.S.C. 1539(a)(1)(A) and

(a)(1)(B)) provide the Services with

authority to grant exceptions to the

ESA’s ‘‘taking’’ prohibitions. Section

10(a)(1)(A) scientific research and

enhancement permits may be issued to

entities (Federal and non-Federal)

conducting research that involves a

directed take of listed species. A

directed take refers to the intentional

take of listed species. The Services have

issued section 10(a)(1)(A) research/

enhancement permits for other listed

species for a number of activities.

ESA section 10(a)(1)(B) incidental

take permits may be issued to nonFederal entities performing activities

that may incidentally take listed

species. The types of activities

potentially requiring a section

10(a)(1)(B) incidental take permit

include the operation and release of

artificially propagated fish by state or

privately operated and funded

hatcheries, state or university research

not receiving Federal authorization or

funding, and the implementation of

state fishing regulations.

National Environmental Policy Act

The FWS has determined that

Environmental Assessments and

Environmental Impact Statements, as

defined under the authority of the

NEPA, need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the ESA. The

notice for this determination was

published in the Federal Register on

October 25, 1983 (48 FR 49244). NMFS

has concluded that ESA listing actions

are not subject to the environmental

assessment requirements of the NEPA.

(See NOAA Administrative Order 216–

6).

Paperwork Reduction Act

This rule does not contain any new

collections of information other than

those already approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094 which expires on

February 28, 2001. An agency may not

conduct or sponsor, and a person is not

required to respond to, a collection of

information unless it displays a

currently valid control number. For

additional information concerning

permit and associated requirements for

endangered species, see 50 CFR 17.22.

References Cited

You may request a complete list of all

references cited in this document from

Paul Nickerson or Mary Colligan (see

ADDRESSES).

Classification

The Conference Report on the 1982

amendments to the ESA notes that

economic considerations have no

relevance to determinations regarding

the status of species, and that the

Regulatory Flexibility Act is not

applicable to the listing process.

Similarly, listing actions are not subject

to the requirements of Executive Order

13132 and are exempt from review

under Executive Order 12866.

Authors

The primary authors of this document

are Mary Colligan, NMFS, and Paul

Nickerson, FWS; refer to ADDRESSES

section.

List of Subjects

50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and record

keeping requirements, Transportation.

50 CFR Part 224

Administrative practice and

procedure, Endangered and threatened

species, Exports, Imports, Reporting and

record keeping requirements,

Transportation.

For the reasons set out in the

preamble, 50 CFR parts 17 and 224 are

amended as follows:

PART 17–ENDANGERED AND

THREATENED WILDLIFE AND PLANTS

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C.

1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-

625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by

adding the following entry, in

alphabetical order under FISHES, to

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic

range

Vertebrate population where endangered

or threatened

StatusWhen

listed

Critical

habitat

Special

Common name Scientific name rules

*******

FISHES

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69481

Species

Historic

range

Vertebrate population where endangered

or threatened

StatusWhen

listed

Critical

habitat

Special

Common name Scientific name rules

*******

Salmon, Atlantic ................... Salmo salar U.S.A.,

Canada,

Greenland,

western

Europe

U.S.A., ME Gulf of Maine Atlantic Salmon

Distinct Population Segment, which includes all naturally reproducing wild

populations and those river-specific

hatchery populations of Atlantic salmon

having historical, river-specific characteristics found north of and including

tributaries of the lower Kennebec River

to, but not including, the mouth of the

St. Croix River at the U.S.-Canada border. To date, the Services have determined that these populations are found

in the Dennys, East Machias, Machias,

Pleasant, Narraguagus, Sheepscot, and

Ducktrap Rivers and in Cove Brook,

Maine.

E 705 NA NA

*******

PART 224—ENDANGERED MARINE

AND ANADROMOUS SPECIES

3. The authority citation for part 224

continues to read as follows:

Authority: 16 U.S.C. 1531-1543 and 16

U.S.C. 1361 et seq.

4. In § 224.101, paragraph (a) is

revised to read as follows:

§ 224.101 Enumeration of endangered

marine and anadromous species.

* * * * *

(a) Marine and anadromous fish. The

following table lists the common and

scientific names of endangered species,

the locations where they are listed, and

the citations for the listings and critical

habitat designations.

Species1

Where listed When listed Critical habitat

Common name Scientific

Name

Shortnose sturgeonAcipenser

brevirostrum

U.S.A., northwestern Atlantic,

in river systems from the

Saint John River in New

Brunswick, Canada, to the

St. Johns River, Florida

32 FR 4001, Mar. 11,1967 NA

Southern California

steelhead

Oncorhynchus

mykiss

U.S.A., CA, including all naturally spawned populations

of steelhead (and their

progeny) in streams from

the Santa Maria River, San

Luis Obispo County, California (inclusive) to Malibu

Creek, Los Angeles County, California (inclusive)

62 FR 43937, Aug. 18, 1997 64 FR 5740, Feb. 5, 1999

Upper Columbia River

steelhead

Oncorhynchus

mykiss

U.S.A., WA, including the

Wells Hatchery stock and

all naturally spawned populations of steelhead (and

their progeny) in streams in

the Columbia River Basin

upstream from the Yakima

River, Washington, to the

U.S.—Canada Border

62 FR 43937, Aug. 18, 1997 64 FR 5740, Feb. 5, 1999

Snake River

sockeye

salmon

Oncorhynchus

nerka

U.S.A., ID, Snake River 56 FR 58619, Nov. 20, 1991 58 FR 68543, Dec. 28, 1993

69482 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

Species1

Where listed When listed Critical habitat

Common name Scientific

Name

Upper Columbia River

spring-run

chinook

salmon

Oncorhynchus

tshawytscha

U.S.A., WA, including all naturally spawned populations

of chinook salmon in Columbia River tributaries upstream of the Rock Island

Dam and downstream of

Chief Joseph Dam in

Washington (excluding the

Okanogan River), the Columbia River from a straight

line connecting the west

end of the Clatsop jetty

(south jetty, Oregon side)

and the west end of the

Peacock jetty (north jetty,

Washington side) upstream

to Chief Joseph Dam in

Washington, and the

Chiwawa River (spring run),

Methow River (spring run),

Twisp River (spring run),

Chewuch River (spring

run), White River (spring

run), and Nason Creek

(spring run) hatchery stocks

(and their progeny)

64 FR 14308, Mar. 24, 1999 65 FR 7764, Feb. 16, 2000

Sacramento

River winterrun chinook

salmon

Oncorhynchus

tshawytscha

U.S.A., CA, Sacramento River 59 FR 13836, Mar. 23, 1994 58 FR 33212, Jun. 16, 1993

Salmon, AtlanticSalmo salar U.S.A., ME Gulf of Maine Atlantic Salmon Distinct Population Segment, which includes all naturally reproducing wild populations and

those river-specific hatchery

populations of Atlantic

salmon having historical,

river-specific characteristics

found north of and including

tributaries of the lower Kennebec River to, but not including, the mouth of the

St. Croix River at the U.S.-

Canada border. To date,

the Services have determined that these populations are found in the

Dennys, East Machias,

Machias, Pleasant,

Narraguagus, Sheepscot,

and Ducktrap Rivers and in

Cove Brook, Maine.

NA

Totoaba Cynoscion

macdonaldi

Mexico, Gulf of CA 44 FR 29480, May 21, 1979 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)

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69483

Dated: November 13, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

Dated: November 8, 2000.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 00–29423 Filed 11–14–00; 4:05 pm]

BILLING CODE 3510–22–F, 4310–55–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 000831250-0250-01; 102500C]

Fisheries off West Coast States and in

the Western Pacific; Coastal Pelagic

Species Fisheries; Closure of Directed

Fishery for Pacific Mackerel;

Correction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Correction to the action closing

the directed fishery for Pacific mackerel.

SUMMARY: This document contains a

correction to the Pacific mackerel

closure which was published on

November 1, 2000.

DATES: Effective November 17, 2000.

FOR FURTHER INFORMATION CONTACT:

James J. Morgan, Southwest Region,

NMFS, 562-980-4036.

SUPPLEMENTARY INFORMATION:

Background

The directed fishery for Pacific

mackerel was closed at 12:01 a.m. on

October 27, 2000, by publication of a

document in the Federal Register on

November 1, 2000 (65 FR 65272). The

document contains an error that

requires correction.

Correction

In rule FR DOC. 00-28109, on page

65272, in the issue of Wednesday,

November 1, 2000 (65 FR 65272), make

the following correction:

On page 65272, in the third column,

under the heading SUPPLEMENTARY

INFORMATION, the last sentence is

corrected to read as follows:

‘‘For the reasons stated here and in

accordance with the FMP and its

implementing regulations at 50 CFR

660.509, the directed fishery for Pacific

mackerel will be closed October 27,

2000, after which time no more than 20

percent by weight of a landing of Pacific

sardine, northern anchovy, jack

mackerel, or market squid may consist

of Pacific mackerel.’’

Authority: 16 U.S.C. 1801 et seq.

Dated: November 9, 2000.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 00–29415 Filed 11–16–00; 8:45 am]

BILLING CODE: 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration (NOAA)

50 CFR Part 679

[Docket No. 000714206-0307-02; I.D.

061400A]

RIN 0648-AM53

Fisheries of the Exclusive Economic

Zone Off Alaska; Western Alaska

Community Development Quota

Program

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce. ACTION: Final rule.

ACTION: Final rule

SUMMARY: NMFS issues a final rule that

reduces observer experience

requirements for some catcher vessels

and reduces observer coverage

experience requirements for some

shoreside processors participating in the

Western Alaska Community

Development Quota (CDQ) fisheries.

This action is necessary to reduce costs

associated with the observer coverage

requirements in the CDQ fisheries. It is

intended to further the objectives of the

Fishery Management Plan for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands Area (FMP).

DATES: Effective December 18, 2000.

ADDRESSES: Copies of the Regulatory

Impact Review (RIR) prepared for this

action may be obtained from Sue

Salveson, Assistant Regional

Administrator, Sustainable Fisheries

Division, Alaska Region, NMFS, P.O.

Box 21668, Juneau, AK 99802-1668,

Attn: Lori Gravel, or by calling the

Alaska Region, NMFS, at 907-586-7228.

Send comments on any ambiguity or

unnecessary complexity arising from the

language used in this final rule to the

Regional Administrator at the same

address.

FOR FURTHER INFORMATION CONTACT:

Alan Kinsolving, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

NMFS manages fishing for groundfish

by U.S. vessels in the exclusive

economic zone of the Bering Sea and

Aleutian Islands management area

(BSAI) according to the FMP. The North

Pacific Fishery Management Council

(Council) prepared the FMP under

authority of the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act).

Regulations governing fishing by U.S.

vessels and implementing the FMP

appear at 50 CFR parts 600 and 679.

Through the CDQ program, NMFS

allocates a portion of the BSAI

groundfish, prohibited species, halibut,

and crab total allowable catch (TAC) to

65 eligible Western Alaska

communities. Unlike open access

fisheries, the program makes individual

vessels, processors, and CDQ groups

accountable for their catch of groundfish

and prohibited species. Because of this,

the catch monitoring observer coverage

and observer training standards are

more stringent as compared to many

other fisheries. CDQ observers receive

more training and must have more

experience than regular NMFS-certified

observers. Observer coverage levels in

the CDQ fisheries are also higher than

those for most of the non-CDQ fisheries.

In most cases, at least one of the CDQ

observers on a vessel or in a processing

plant also must be qualified as a ‘‘lead’’

CDQ observer. Lead qualification is

gear-specific and is gained by having

prior experience with the same gear

type as the CDQ vessel on which the

lead observer is deployed, or prior

experience in a shoreside plant if the

lead CDQ observer is deployed at a

shoreside plant.

NMFS has reviewed the observer

coverage and experience requirements

and determined that, in some cases, the

observer coverage or training

requirements could be reduced without

affecting the ability of NMFS to collect

the data necessary to monitor and

manage the CDQ fishery.

On July 24, 2000, NMFS published a

proposed rule to implement these

reductions (65 FR 45579). The proposed

rule included a full description of

observer coverage and training

requirements in the CDQ fisheries, and

the rationale for reducing those

requirements. The proposed rule also

solicited public comment for 30 days.

No comments were received, and NMFS

is publishing this final rule without

changing the regulatory text of the

proposed rule.

This final rule implements the

following reductions in observer

coverage and experience requirements:

1. Elimination of the requirement for

a lead CDQ observer on all catcher