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[Federal Register Volume 70, Number 213 (Friday, November 4, 2005)]
[Proposed Rules]
[Pages 67130-67134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22043]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 040525161-5274-05; I.D. No. 052104F]
RIN No. 0648-AR93

Endangered and Threatened Species: Request for Comment on 
Alternative Approach to Delineating 10 Evolutionarily Significant Units 
of West Coast Oncorhynchus mykiss

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

ACTION: Proposed rule; request for comment.

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SUMMARY: In June 2004, we (NMFS) proposed that 10 Evolutionarily 
Significant Units (ESUs) of West Coast Oncorhynchus mykiss be listed as 
endangered or threatened species under the Endangered Species Act 
(ESA). We have reconsidered the preliminary decision to apply the 
Pacific salmon ESU Policy to these stocks and seek comment on our 
proposed application of the joint NMFS/U.S. Fish and Wildlife Service 
(FWS) ``Policy Regarding the Recognition of Distinct Vertebrate 
Population Segments under the ESA'' (DPS Policy) to the delineation of 
Oncorhynchus mykiss distinct population segments (DPSs).

DATES: All comments must be received no later than 5 p.m. Pacific 
standard time on December 5, 2005.

ADDRESSES: You may submit comments and information by any of the 
following methods. Please identify submittals as pertaining to the 
``Proposed Steelhead DPSs and Listings.''
     E-mail: [email protected]. Include ``Proposed 
Steelhead DPSs and Listings'' in the subject line of the message.
     Internet: Comments may also be submitted electronically 
through the Federal e-Rulemaking portal at: http://www.regulations.gov.
     Mail: Submit written comments and information to Chief, 
NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard, Suite 
1100, Portland, Oregon 97232.
     Hand Delivery/Courier: You may hand-deliver written 
comments to our office during normal business hours at the street 
address given above.
     Fax: 503-230-5441

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region, 
(562) 980-4021, Dr. Scott Rumsey, NMFS, Northwest Region, (503) 872-
2791, or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-
1401. Copies of the Federal Register notices, additional steelhead-
related documents, and a list of all the references cited in this 
notice are available on the Internet at http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

Policies for Delineating Species under the ESA

    Section 3 of the ESA defines the term species to include ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature'' [emphasis added]. In 1991 we issued a policy for making 
species determinations for Pacific salmon (``ESU Policy;'' 56 FR 58612; 
November 20, 1991). Under this policy a group of Pacific salmon 
populations is considered an ESU if it is substantially reproductively 
isolated from other conspecific populations, and it represents an 
important component in the evolutionary legacy of the biological 
species. Under that policy, the biological ESU is considered to be a 
``distinct population segment'' and thus a ``species'' under the ESA. 
In 1996, we and FWS adopted a joint policy for recognizing DPSs under 
the ESA (DPS Policy; 61 FR 4722; February 7, 1996). The DPS Policy 
adopts similar but slightly different criteria from the ESU Policy for 
determining when a group of organisms constitutes a DPS: it must be 
discrete from other populations, and it must be significant to its 
taxon. A group of organisms is discrete if it is ``markedly separated 
from other populations of the same taxon as a consequence of physical, 
physiological, ecological, and behavioral factors.'' Although the ESU 
Policy does not specifically apply to steelhead, the DPS Policy states 
that NMFS will continue to implement the ESU Policy with respect to 
Pacific salmonids (inclusive of O. mykiss).

Previous Federal ESA Actions Related to West Coast Steelhead

    In 1996, we completed a comprehensive status review of West Coast 
steelhead (Busby et al., 1996) that resulted in proposed listing 
determinations for 10 steelhead ESUs, 5 as endangered and 5 as 
threatened species (61 FR 41541; August 9, 1996). On August 18, 1997, 
we listed five of the ESUs, two as endangered and three as threatened 
(62 FR 43937) and announced a 6-month extension of final listing 
determinations for the other five ESUs, pursuant to section 
4(b)(6)(B)(I) of the ESA (62 FR 43974). On March 10, 1998, we proposed 
to list two additional steelhead ESUs as threatened (63 FR 11798). On 
March 19, 1998, we listed as threatened two of the steelhead ESUs that 
were deferred in August 1997 and designated the other three proposed 
ESUs as candidate species (63 FR 13347). On March 25, 1999, we listed 
as threatened the two ESUs proposed in March 1998 (64 FR 14517). On 
February 11, 2000, we proposed to list the Northern California 
steelhead ESU as threatened (65 FR 6960) and listed that ESU as 
threatened on June 7, 2000 (65 FR 36074). Under these listing 
decisions, there are currently 10 listed steelhead ESUs, two endangered 
(Southern California and Upper Columbia River) and eight threatened 
(South-Central California, Central California Coast, California Central 
Valley, Northern California, Upper Willamette River, Lower Columbia 
River, Middle Columbia River, and Snake River Basin).
    In our 1997 steelhead listings (62 FR 43937), we noted 
uncertainties about the relationship of resident and anadromous O. 
mykiss, yet concluded that the two forms are part of a single ESU where 
the resident and anadromous O. mykiss have the opportunity to 
interbreed. FWS disagreed that resident O. mykiss should be included in 
the steelhead ESUs and advised that the resident fish not be listed. 
Accordingly, we decided to list only the anadromous O. mykiss at that 
time. That decision was followed in each of the subsequent steelhead 
listings described in the preceding paragraph.
    In 2001, the U.S. District Court in Eugene, Oregon, set aside the 
1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley 
Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) (Alsea 
decision). In the Oregon Coast coho listing (63 FR 42587; August 10, 
1998), we did not include in the listing 10 hatchery stocks determined 
to be part of the Oregon Coast coho ESU. The court upheld our policy of

[[Page 67131]]

considering an ESU to be a DPS, but ruled that once we had delineated a 
DPS, the ESA did not allow listing a subset of that DPS. In response to 
the Alsea decision and several listing and delisting petitions, we 
announced we would conduct an updated status review of 27 West Coast 
salmonid ESUs, including the 10 listed steelhead ESUs (67 FR 6215, 
February 11, 2002; 67 FR 48601, July 25, 2002; 67 FR 79898, December 
31, 2002).
    On June 14, 2004, we proposed to continue applying our ESU Policy 
to the delineation of DPSs of O. mykiss, and to list the 10 O. mykiss 
ESUs including the resident fish that co-occur with the anadromous form 
(69 FR 33102). We proposed to list one ESU in California as endangered 
(Southern California), and nine ESUs in California, Oregon, Washington, 
and Idaho as threatened (South-Central California, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, Snake River Basin, 
and Upper Columbia). In the proposed rule, we noted that the Alsea 
decision required listing of an entire ESU/DPS, in contrast to our 
prior steelhead-only listings, and stated the scientific principles and 
working assumptions that we used to determine whether particular 
resident groups were part of an O. mykiss ESU that included anadromous 
steelhead (69 FR 33102). We proposed that where resident (rainbow 
trout) and anadromous (steelhead) O. mykiss occur in the same stream, 
they are not ``substantially reproductively isolated'' from one another 
and are therefore part of the same ESU.
    Following an initial public comment period of 90 days, we twice 
extended the public comment period for an additional 36 and 22 days (69 
FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004), 
respectively. During the comment period, we received numerous comments 
disagreeing with our proposal to include resident populations in the 
subject O. mykiss ESUs (in general and for specific resident 
populations) and criticizing how we considered resident O. mykiss in 
evaluating the risk to the continued existence of the whole ESU.
    On June 7, 2005, FWS wrote to NMFS (FWS, 2005), stating its 
concerns about the factual and legal bases for our proposed listing 
determinations for 10 O. mykiss ESUs, specifying issues of substantial 
disagreement regarding the relationship between anadromous and resident 
O. mykiss. On June 28, 2005, we published a notice in the Federal 
Register announcing the ESA statutory 6-month extension of the final 
listing determinations for the subject O. mykiss ESUs to resolve the 
substantial disagreement regarding the sufficiency or accuracy of the 
available data relevant to the determinations (70 FR 37219). As a 
result of these comments, we are re-opening the comment period to 
consider whether the final rule should delineate 10 steelhead-only 
DPSs, list one DPS in California as endangered (Southern California), 
and list the remaining nine DPSs in California, Oregon, Washington, and 
Idaho as threatened (South-Central California, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, Snake River Basin, 
and Upper Columbia).

Application of the Joint DPS Policy for Determination of Species

    In its June 7, 2005, letter recommending that the final listing 
determinations for the 10 O. mykiss ESUs under review be extended, FWS 
suggested that we ensure that our delineation of O. mykiss ESUs 
complies with the DPS Policy. We agree, in this case, that it is 
appropriate that we consider departing from our past practice of 
applying the ESU Policy to O. mykiss stocks, and instead apply the DPS 
Policy in determining ``species'' of O. mykiss for listing 
consideration. Such an approach would also be consistent with use of 
the DPS Policy by the agencies in defining DPSs of Atlantic salmon 
(Salmo salar; 65 FR 69459; November 17, 2000). The primary difference 
in the application of the two policies is that the ESU Policy relies on 
``substantial reproductive isolation'' as the primary factor in 
delineating a group of organisms, while the DPS Policy relies on 
``marked separation'' to delineate the group. Within a discrete group 
of O. mykiss populations, the resident and anadromous life forms of O. 
mykiss remain ``markedly separated'' as a consequence of physical, 
physiological, ecological, and behavioral factors. Despite the apparent 
lack of reproductive isolation between the two forms within a given 
population or group of populations, under the DPS Policy anadromous and 
resident O. mykiss may not warrant delineation as part of the same DPS.
    In order to provide sufficient notice to the public to allow for 
informed comment, we provide the following analysis of how the proposed 
application of the DPS Policy to O. mykiss stocks would affect the 
proposed listings.

Proposed Evaluation of Discreteness under the DPS Policy

    Under the DPS Policy a population segment may be considered 
discrete if it satisfies either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
biological taxon as a consequence of physical, physiological, 
ecological, or behavioral factors; or
    (2) It is delimited by international governmental boundaries across 
which there is a significant difference in exploitation control, 
habitat management or conservation status.
    The discreteness of the 10 West Coast steelhead DPSs under 
consideration relative to other population groups of the O. mykiss 
species is well documented by the previous NMFS status reviews that 
delineated steelhead ESUs (e.g., NMFS, 1997; Busby et al., 1996, 1997, 
1999; Adams, 2000; Good et al., 2005). These reviews concluded that the 
ESUs respectively are substantially reproductively isolated based on 
established phylogenetic groupings, available population genetic data, 
differences in migration and spawn timing, patterns in the duration of 
freshwater and marine residence, and geographic separation of 
populations. These traits that established the substantial reproductive 
isolation of the respective steelhead ESUs under the ESU Policy also 
satisfy the ``discreteness'' criterion of the DPS Policy. In the 
following paragraphs we address the question of whether the co-
occurring anadromous and resident life forms within these proposed 
steelhead DPSs are themselves discrete or warrant inclusion in the same 
DPS.
    Under the ESU Policy we have previously determined that where 
resident and anadromous O. mykiss co-occur there is likely to be 
interbreeding between the two life-history forms, and that co-occurring 
resident and anadromous O. mykiss below long-standing impassable 
barriers are part of the same ESU. This conclusion was based on 
empirical studies that show that resident and anadromous O. mykiss are 
similar genetically when they co-occur with no physical barriers to 
migration or interbreeding (Chilcote, 1976; Currens et al., 1987; 
Leider et al., 1995; Busby et al., 1996; Pearsons et al., 1998), and 
the observation that individuals can occasionally produce progeny of 
the alternate life-history form (Shapovalov and Taft, 1954; Burgner et 
al., 1992; Mullan et al., 1992; Zimmerman and Reeves, 2000; Kostow, 
2003; Ardren, 200; Blouin, 200; Pearsons et al., 2003; Marshal and

[[Page 67132]]

Foley, 2004; Narum et al., 2004; Seamons et al., 2004).
    The discreteness criterion of the DPS Policy, however, does not 
rely on reproductive isolation but on the marked separation of 
population groups as a consequence of biological factors. Despite the 
apparent reproductive exchange between resident and anadromous O. 
mykiss, the two life forms remain markedly separated physically, 
physiologically, ecologically, and behaviorally. Steelhead differ from 
resident rainbow trout physically in adult size and fecundity, 
physiologically by undergoing smoltification, ecologically in their 
preferred prey and principal predators, and behaviorally in their 
migratory strategy. Where the two life forms co-occur, adult steelhead 
typically range in size from 40-72 cm in length and 2-5 kg body mass, 
while adult rainbow trout typically range in size from 25-46 cm in 
length and 0.5-2 kg body mass (Shapovalov and Taft, 1954; Wydoski and 
Whitney, 1979; Jones, 1984). Steelhead females produce approximately 
2,500 to 10,000 eggs, and rainbow trout fecundity ranges from 700 to 
4,000 eggs per female (Shapovalov and Taft, 1954; Buckley, 1967; Moyle, 
1976; McGregor, 1986; Pauley et al., 1986), with steelhead eggs being 
approximately twice the diameter of rainbow trout eggs or larger (Scott 
and Crossman, 1973; Wang, 1986; Tyler et al., 1996). Steelhead undergo 
a complex physiological change that enables them to make the transition 
from freshwater to saltwater (smoltification), while rainbow trout 
reside in freshwater throughout their entire life cycle. While juvenile 
and adult steelhead prey on euphausiid crustaceans, squid, herring, and 
other small fishes in the marine environment, the diet of adult rainbow 
trout is primarily aquatic and terrestrial insects and their larvae, 
mollusks, amphipod crustaceans, fish eggs, and minnows (LeBrasseur, 
1966; Scott and Crossman, 1973; Wydoski and Whitney, 1979). Finally, 
steelhead migrate several to hundreds of miles from their natal streams 
to the ocean, and spend up to 3 years in the ocean migrating thousands 
of miles before returning to freshwater to spawn (Busby et al., 1996). 
Rainbow trout, in contrast, may exhibit seasonal migrations of tens of 
kilometers but generally remain associated with their natal drainages 
(Meka et al., 1999).
    Given the marked separation between the anadromous and resident 
life-history forms in physical, physiological, ecological, and 
behavioral factors, we may conclude that the anadromous steelhead 
populations are discrete from the resident rainbow trout populations 
within the DPSs under consideration. If so, we would conclude that the 
Southern California, South-Central California, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, Upper Columbia 
River, and Snake River Basin steelhead DPSs under consideration satisfy 
the ``discreteness'' criterion under the DPS Policy.

Proposed Evaluation of Significance under the DPS Policy

    Under the DPS Policy, if a population group is determined to be 
discrete, the agency must then consider whether it is significant to 
the taxon to which it belongs. Considerations in evaluating the 
significance of a discrete population include: (1) persistence of the 
discrete population in an unusual or unique ecological setting for the 
taxon; (2) evidence that the loss of the discrete population segment 
would cause a significant gap in the taxon's range; (3) evidence that 
the discrete population segment represents the only surviving natural 
occurrence of a taxon that may be more abundant elsewhere outside its 
historical geographic range; or (4) evidence that the discrete 
population has marked genetic differences from other populations of the 
species.
    The significance of the 10 West Coast steelhead DPSs under 
consideration to the O. mykiss species is well documented by the 
previous NMFS status reviews that delineated steelhead ESUs (e.g., 
NMFS, 1997; Busby et al., 1996, 1997, 1999; Adams, 2000; Good et al., 
2005). These reviews concluded that the steelhead population groups 
respectively represent an important component in the evolutionary 
legacy of the species based on unique or unusual life-history, genetic, 
and ecological characteristics and occupied ecoregion(s) (i.e., unique 
geographic regions defined by climatic, geologic, hydrologic, and 
floral composition characteristics; Donley et al., 1979; Jackson, 1993; 
Omernik, 1987). These traits that established the evolutionary 
importance of the respective steelhead population groups under the ESU 
Policy also satisfy the ``significance'' criterion of the DPS Policy. 
These proposed steelhead DPSs, if lost, would represent: the loss of 
unusual or unique habitats and ecosystems occupied by the species; a 
significant gap in the species' range; and/or a significant loss to the 
ecological, life-history, and genetic diversity of the taxon. We may 
conclude, based on our previous ESU determinations, that the Southern 
California, South-Central California, Central California Coast, 
California Central Valley, Northern California, Upper Willamette River, 
Lower Columbia River, Middle Columbia River, Upper Columbia River, and 
Snake River Basin steelhead DPSs under consideration satisfy the 
``significance'' criterion under the DPS Policy.

Proposed Alternative Species Determinations for Steelhead DPSs

    If we were to apply the DPS Policy to West Coast O. mykiss, based 
on the considerations discussed above, the previously proposed species 
determinations for 10 West Coast O. mykiss ESUs (see 69 FR 33102; June 
14, 2004) may be revised to consist of these steelhead-only DPSs. As 
noted above, the consideration of substantial reproductive isolation 
for the previously defined steelhead ESUs directly informs the 
delineation of discrete steelhead-only population units under the DPS 
Policy. Under this alternative approach the geographic boundaries for 
the steelhead-only DPSs would not change from those previously 
delineated for the steelhead or O. mykiss ESUs. The steelhead-only DPSs 
under consideration would include ``all naturally spawned populations 
of anadromous O. mykiss (steelhead)'' within the geographic boundaries 
of a given DPS.
    On June 28, 2005, we finalized a new policy for the consideration 
of hatchery-origin fish in ESA listing determinations (``Hatchery 
Listing Policy;'' 70 FR 37204). Under the Hatchery Listing Policy 
hatchery stocks are considered part of an ESU if they exhibit a level 
of genetic divergence relative to the local natural population(s) that 
is no more than what occurs within the ESU (70 FR at 37215; June 28, 
2005). Consistent with the June 14, 2004, proposed listing 
determinations (69 FR 33102; June 14, 2004) and the recent final 
listing determinations for 16 West Coast salmon ESUs (70 FR 37160; June 
28, 2005), hatchery stocks would be included in a steelhead DPS if they 
are no more than moderately diverged from local, native populations in 
the watershed(s) in which they are released. The level of divergence 
for hatchery programs associated with the subject steelhead DPSs is 
reviewed in the 2003 Salmon and Steelhead Hatchery Assessment Group 
Report (NMFS, 2003), and the 2004 Salmonid Hatchery Assessment and 
Inventory Report (NMFS, 2004b). Were we to apply the DPS Policy, the 
DPS membership of hatchery programs included in the steelhead DPSs 
would be unchanged from that proposed for the 10 O. mykiss

[[Page 67133]]

ESUs (see Table 2, 69 FR at 33120; June 14, 2004).
    Below we discuss proposed clarifying changes to the proposed 
Central California Coast and Northern California steelhead DPSs. These 
proposed clarifying changes are relevant whether we continue to use O. 
mykiss ESUs inclusive of anadromous and resident life forms, or instead 
we take action on steelhead-only DPSs.

Proposed Central California Coast Steelhead DPS

    The Central California Coast steelhead ESU previously included all 
naturally spawned populations of steelhead in California streams from 
the Russian River to Aptos Creek, and the drainages of San Francisco 
and San Pablo Bays eastward to the Napa River (inclusive), excluding 
the Sacramento-San Joaquin River Basin (62 FR 43937; August 18, 1997). 
Recent information, however, indicates that those portions of the ESU 
in San Francisco Bay and eastward towards the Central Valley were 
incorrectly described in the 1997 listing notice and need to be 
clarified. Accordingly, the specification of a proposed Central 
California Coast steelhead DPS would include all naturally spawned 
populations of anadromous O. mykiss (steelhead) in coastal streams from 
the Russian River (inclusive) to Aptos Creek (inclusive), and the 
drainages of San Francisco, San Pablo, and Suisun Bays eastward to 
Chipps Island at the confluence of the Sacramento and San Joaquin 
Rivers and in tributary streams to Suisun Marsh including Suisun Creek, 
Green Valley Creek, and an unnamed tributary to Cordelia Slough 
(commonly referred to as Red Top Creek), exclusive of the Sacramento-
San Joaquin River Basin of the California Central Valley.

Proposed Northern California Steelhead DPS

    The Northern California O. mykiss ESU previously included all 
naturally spawned steelhead in California coastal river basins from 
Redwood Creek south to the Gualala River (inclusive) (65 FR 36074; June 
7, 2000). Recently, however, we have discovered that there is a coastal 
section between the southern boundary of the proposed Northern 
California DPS (the Gualala River) and the northern boundary of the 
proposed Central California Coast steelhead DPS (the Russian River) 
that contains several small streams that support steelhead. No genetic 
or other information is currently available for determining which 
proposed DPS includes these small streams. We believe that the 
geographic proximity and similarity in environmental and ecological 
conditions of these small streams suggests that they would be placed in 
the Northern California steelhead DPS. Accordingly, we would clarify 
the geographic boundaries of the Northern California steelhead DPS to 
include all naturally spawned populations of anadromous O. mykiss 
(steelhead) in California coastal river basins from Redwood Creek 
southward to, but not including, the Russian River.
    Evaluation of Species' Status
    NMFS' Pacific Salmonid Biological Review Team (BRT) (an expert 
panel of scientists from several Federal agencies including NMFS, FWS, 
and the U.S. Geological Survey) reviewed the viability and extinction 
risk of naturally spawning populations in the 10 steelhead ESUs that 
were the subject of our June 2004 proposed rule (Good et al., 2005). 
The BRT evaluated the risk of extinction faced by naturally spawning 
populations in the 10 O. mykiss ESUs corresponding to the steelhead 
DPSs addressed in this request for comment (Good et al., 2005). 
Although the ESUs reviewed by the BRT included co-occurring populations 
of resident O. mykiss, little or no population data are available for 
most resident O. mykiss populations. The BRT's findings regarding 
extinction risk are based on the status of the steelhead populations in 
the ESUs reviewed. Where available, the BRT incorporated information 
about resident populations into their analyses of extinction risk. For 
the Southern California, South-Central California Coast, Central 
California Coast, California Central Valley, Middle Columbia River, 
Upper Columbia River, and Snake River Basin O. mykiss ESUs the BRT 
noted that the presence of qualitatively abundant resident populations 
reduced risks to the ESU's abundance (see NMFS, 2004a; Good et al., 
2005). However, the BRT concluded for all the O. mykiss ESUs reviewed 
that the contribution of the resident life-history form to the 
viability of an O. mykiss ESU in-total is unknown, and may not 
substantially reduce the ESU's level of extinction risk. Therefore, the 
BRT's extinction risk findings may directly inform evaluations of 
extinction risk for the steelhead DPSs under consideration.
    Were we to apply the DPS Policy, we would assess the effects of 
hatchery programs on the extinction risk of a DPS in-total (i.e., the 
collective extinction risk of natural- and hatchery origin components 
within the DPS) on the basis of the factors that the BRT determined are 
currently limiting the DPS (e.g., abundance, productivity, spatial 
structure, and diversity), and how artificial propagation efforts 
within the DPS affect those factors. The Artificial Propagation 
Evaluation Workshop (NMFS, 2004c) reviewed the BRT's findings (NMFS, 
2003; Good et al., 2005), evaluated the Salmonid Hatchery Inventory and 
Effects Evaluation Report (NMFS, 2004b), and assessed the overall 
extinction risk of DPSs with associated hatchery stocks. The reader is 
referred to the BRT's report (Good et al., 2005), the Salmonid Hatchery 
Inventory and Effects Evaluation Report (NMFS, 2004b), and the Workshop 
Report (NMFS, 2004c) for more detailed descriptions of the viability of 
individual natural populations and hatchery stocks within these DPSs.

Analysis of Efforts Being Made to Protect Proposed West Coast Steelhead 
DPSs

    In the proposed rule addressing 10 O. mykiss ESUs we reviewed 
protective efforts ranging in scope from regional conservation 
strategies to local watershed initiatives (see 69 FR 33102; June 14, 
2004). We preliminarily concluded that protective efforts collectively 
do not provide sufficient certainty of implementation and effectiveness 
to substantially ameliorate the level of assessed extinction risk for 
all but one of the steelhead ESUs under consideration (see the June 14, 
2004, proposed rule for a summary of the relevant protective efforts 
(69 FR 33102) benefitting the California Central Valley ESU and a 
description of the proposed finding that these efforts mitigate the 
ESU's level of extinction risk (69 FR 33102)). While we acknowledge 
that many of the ongoing protective efforts are likely to promote the 
conservation of listed salmonids, most efforts are relatively recent 
and have yet to indicate their effectiveness. Also, few address 
conservation needs at scales sufficient to conserve entire ESUs. Under 
our proposed approach to apply the DPS Policy, we would likely conclude 
that existing protective efforts lack the certainty of implementation 
and effectiveness to substantially ameliorate the extinction risk of 
the steelhead DPSs under consideration (but for the proposed California 
Central Valley steelhead DPS, as noted above).

Proposed Listing Determinations

    Under our proposed approach to apply the DPS Policy, we would 
likely conclude that the steelhead DPSs under consideration warrant 
listing under the ESA, based on the BRT's findings, our analysis of the 
contributions of artificial propagation, and our evaluation of 
protective efforts. We likely would list

[[Page 67134]]

the proposed Southern California steelhead DPS as an endangered species 
and list the proposed South-Central California, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, Upper Columbia 
River, and Snake River Basin steelhead DPSs as threatened species. The 
reader is referred to the final BRT report (Good et al., 2005) and the 
previous proposed rule (69 FR 33102; June 14, 2004) for a more detailed 
description of a given DPS's status.

Prohibitions and Protective Regulations

    In the case of threatened species, section 4(d) of the ESA leaves 
it to the Secretary's discretion whether and to what extent to extend 
the statutory 9(a) ``take'' prohibitions for endangered species, and 
directs the agency to issue regulations it considers necessary and 
advisable for the conservation of the species. On June 28, 2005, as 
part of the final listing determinations for 16 West Coast salmon ESUs 
(70 FR 37160), we amended and streamlined the previously promulgated 
4(d) protective regulations for threatened salmon and steelhead. (The 
reader is referred to the June 2005 final rule for information on the 
specific changes promulgated).
    The amended June 2005 4(d) rule applies to the eight steelhead-only 
ESUs currently listed as threatened under the ESA. Were we to apply the 
DPS Policy, the amended 4(d) rule would apply to eight of the steelhead 
DPSs under consideration: the South-Central California, Central 
California Coast, California Central Valley, Northern California, Upper 
Willamette River, Lower Columbia River, Middle Columbia River, and 
Snake River Basin steelhead DPSs. We would not make any changes in the 
protective regulations for these proposed threatened steelhead DPSs.
    The Upper Columbia River steelhead ESU is currently listed as 
endangered and subject to the section 9(a) take prohibitions. As part 
of the June 2004 proposed listing determinations, we proposed to list 
the Upper Columbia River O. mykiss ESU as threatened, and to extend to 
it the amended 4(d) protective regulations for threatened species (69 
FR 33102; June 14, 2004). Were we to apply the DPS Policy and list an 
Upper Columbia River steelhead DPS as threatened, we would extend to it 
the June 2005 amended 4(d) protective regulations. We believe that 
extending the amended 4(d) protective regulations would be necessary 
and advisable for the conservation of the steelhead in the Upper 
Columbia River. Such an extension of the 4(d) protective regulations 
would result in a reduction of the regulatory burden as the various 
4(d) limits were not previously available for activities affecting the 
endangered Upper Columbia River steelhead ESU.
    In the June 2005 amendments to the 4(d) protective regulations we 
amended the 4(d) limit that provides a temporary exemption for ongoing 
research and enhancement activities with pending applications (limit 
Sec.  223.203(b)(2)). The existing deadline associated with this limit 
will expire December 28, 2005. We believe that ongoing research and 
enhancement activities that are important to the conservation and 
recovery of listed salmon and steelhead should not be interrupted. Were 
we to apply the DPS Policy and list nine steelhead-only DPSs as 
threatened, we would amend limit Sec.  223.203(b)(2) to again provide a 
temporary exemption for ongoing research and enhancement activities 
affecting the subject steelhead DPSs.

Information Solicited

    After considering information provided by the FWS and several 
public commenters, we have reconsidered the preliminary decision to 
apply the ESU Policy to these stocks and seek comment on the proposed 
application of the DPS Policy to the delineation of O. mykiss DPSs. To 
ensure that the final action resulting from the proposed rule to list 
10 species of West Coast O. mykiss will be as accurate and effective as 
possible, and informed by the best available scientific and commercial 
information, we are re-opening the public comment period to solicit 
additional information, comments, and suggestions from the public, 
other governmental agencies, the scientific community, industry, and 
any other interested parties. We are particularly interested in 
receiving comment on the alternative approach to delineate and list 
steelhead-only DPSs of O. mykiss. Specifically, we seek comment on: the 
use of the DPS Policy as the basis for listing determinations with 
respect to O. mykiss; our proposed determination under the joint DPS 
Policy that the proposed steelhead DPSs are discrete from other such 
population groups of O. mykiss, and within these proposed DPSs that the 
anadromous and resident life forms are discrete and would not warrant 
delineation within the same DPS; our proposed determination under the 
DPS Policy that the proposed steelhead DPSs are significant to the O. 
mykiss species; our proposed conclusion that the BRT's risk assessments 
for O. mykiss ESUs directly inform the assessment of extinction risk 
for steelhead DPSs; and the proposed ESA listing determinations for the 
steelhead DPSs under consideration. Additionally, we seek comment on 
the clarifying changes to the proposed Central California Coast and 
Northern California steelhead DPSs.

References

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

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

    Dated: November 1, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 05-22043 Filed 11-3-05; 8:45 am]
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