Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Proposed Rules 51415 

74 5 U.S.C. 603(c)(1)–(c)(4). 

75See 47 CFR 74.802(a). 76See NPRM at para. 14. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

48. The RFA requires an agency to 

describe any significant, specifically 

small business alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) the establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) and exemption from 

coverage of the rule, or any part thereof, 

for small entities.’’ 74

49. The NPRM tentatively concludes 

to amend the Commission’s rules to 

make clear that the operation of low 

power auxiliary stations within the 700 

MHz Band will no longer be permitted 

after the end of the DTV transition 

because such operations could cause 

harmful interference to new wireless 

services in the band, particularly public 

safety operations. Although the NPRM 

tentatively concludes that the 

Commission will modify licenses so as 

not to permit operations past February 

17, 2009, it makes this tentative 

conclusion because the Commission is 

concerned that continued use of this 

spectrum by existing licensees of low 

power auxiliary stations may be 

disruptive to new public safety and 

other wireless operations in the 700 

MHz Band, and because of the ready 

availability of other means that those 

licensees have under the Commission’s 

rules for obtaining access to various 

other spectrum frequencies in which to 

operate low power auxiliary stations. 

Moreover, such stations will continue to 

be permitted access to more than 300 

megahertz of spectrum.75

50. The Commission also seeks 

comment on alternatives to modifying 

current licenses so as not to permit such 

operations in the 700 MHz Band after 

February 17, 2009. The Commission 

seeks comment on whether license 

terms should be reduced so as to 

terminate at some other date, e.g., one 

year after February 17, 2009, or not 

reduced at all. 

51. Along with prohibiting low power 

auxiliary devices within the 700 MHz 

Band after the end of the DTV 

transition, the Commission also 

proposes to prohibit the manufacture, 

import, sale, offer for sale, or shipment 

of devices that operate as low power 

auxiliary stations in the 700 MHz Band 

after the end of the DTV transition. The 

Commission tentatively concludes that 

this proposed prohibition will help 

facilitate the DTV transition by helping 

to address possible concerns about 

significant unauthorized operation of 

wireless microphones in the 700 MHz 

Band, and therefore help minimize the 

likelihood that additional unauthorized 

use would occur after the end of the 

DTV transition.76 The Commission 

seeks comment on its tentative 

conclusions to prohibit the 

manufacture, import, sale, offer for sale, 

or shipment of low power auxiliary 

station devices that operate in the 700 

MHz Band, and to have the prohibition 

take effect on the effective date of the 

revised rules. 

52. To minimize significant economic 

impact to the firms, including small 

entities, that are or will become low 

power auxiliary station licensees or that 

manufacture, import, sell, or ship 

devices that operate as low power 

auxiliary stations in the 700 MHz Band, 

the NPRM seeks comment on the impact 

that such changes would have on small 

entities. The Commission will continue 

to examine alternatives in the future 

with the objective of eliminating 

unnecessary regulations and minimizing 

significant impact on small entities. 

Toward that end, the Commission seeks 

comment on alternatives commenters 

believe the Commission should adopt. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

53. None. 

Ordering Clauses 

54. Accordingly, it is ordered, 

pursuant to sections 1, 2, 4(i), 4(j), 301, 

302, 303, 304, 307, 308, 309, 316, 332, 

336, and 337 of the Communications 

Act of 1934, as amended, 47 U.S.C. 151, 

152, 154(i), 154(j), 301, 302a, 303, 304, 

307, 308, 309, 316, 332, 336, and 337 

that this Notice of Proposed Rulemaking 

and Order in WT Docket No. 08–166 

and WT Docket No. 08–167 is hereby 

adopted. 

55. It is further ordered that pursuant 

to applicable procedures set forth in 

sections 1.415 and 1.419 of the 

Commission’s Rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments on the Notice of Proposed 

Rulemaking on or before October 3, 

2008, and reply comments on or before 

October 20, 2008. 

56. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking and 

Order, including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary. 

[FR Doc. E8–20502 Filed 9–2–08; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF INTERIOR 

United States Fish and Wildlife Service 

50 CFR Part 17 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 0808191116–81126–01] 

RIN 0648–XJ93 

Endangered and Threatened Species; 

Proposed Endangered Status for the 

Gulf of Maine Distinct Population 

Segment of Atlantic Salmon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce; United States Fish and 

Wildlife Service (USFWS), Interior. 

ACTION: Proposed rule; 12–month 

petition finding; request for comments. 

SUMMARY: We (NMFS and USFWS) have 

determined that naturally spawned and 

conservation hatchery populations of 

Atlantic salmon within the range of the 

Gulf of Maine (GOM) distinct 

population segment (DPS), including 

those that were already listed in 

November 2000, constitute a new GOM 

DPS and hence a ‘‘species’’ for listing as 

endangered or threatened consideration 

under the Endangered Species Act 

(ESA). This also constitutes a 12–month 

finding on a petition to list Atlantic 

salmon in the Kennebec River as 

endangered. We will propose to 

designate critical habitat for the GOM 

DPS in a subsequent Federal Register 

notice. 

DATES: Comments on this proposal must 

be received by December 2, 2008. Public 

hearing requests must be received by 

November 17, 2008. 


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ADDRESSES: You may submit comments, 

identified by the RIN 0648–AW02, by 

any of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

FederaleRulemaking Portal http:// 

www.regulations.gov 

• Mail: Assistant Regional 

Administrator, NMFS, Northeast 

Regional Office, Protected Resources 

Division, One Blackburn Drive, 

Gloucester, MA 01930 

• Fax: To the attention of Jessica 

Pruden at (978) 281–9394. 

Instructions: All comments received 

are a part of the public record and will 

generally beposted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

The proposed rule and status review 

report are also available electronically at 

the NMFS website at http:// 

www.nero.noaa.gov/protlres/ 

altsalmon/. 

FOR FURTHER INFORMATION CONTACT: Rory 

Saunders, NMFS, at (207)866–4049; 

Jessica Pruden, NMFS, at (978)281–9300 

ext. 6532; Lori Nordstrom, USFWS, at 

(207)827–5938 ext. 13; or Marta 

Nammack, NMFS, at (301)713–1401. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We solicit public comment on this 

proposed listing determination. We 

anticipate holding up to three public 

hearings on the proposed rule. Any 

public hearings will be announced in a 

separate Federal Register notice. 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible and 

informed by the best available scientific 

and commercial information. Therefore, 

we request comments or information 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) Information on the effects of 

conservation hatchery supplementation 

in reducing the risk of extinction of the 

GOM DPS. As described in ‘‘Status of 

the Species’’ and ‘‘Factor E’’, the high 

numbers of fish stocked through the 

conservation hatchery program reduce 

the risk of extinction for the GOM DPS; 

however, the numbers of naturallyreared spawning adults in the GOM DPS 

are extremely low (less than 150). 

Numbers of naturally-reared spawning 

adults are an important measure of 

improved status or recovery. Because of 

the reduction in extinction risk 

provided by conservation hatchery 

supplementation, we seek additional 

information on the appropriate weight 

that should be given to the conservation 

hatchery program in evaluating the 

status of the GOM DPS; 

(2) Information concerning the 

viability of and/or threats to Atlantic 

salmon in the GOM DPS; and 

(3) Efforts being made to protect 

Atlantic salmon in the GOM DPS. 

Background 

We issued a final rule listing the GOM 

DPS of Atlantic salmon as endangered 

on November 17, 2000 (65 FR 69469). 

The GOM DPS was defined as 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. In the 

final rule listing the GOM DPS, we did 

not include fish that inhabit the 

mainstem and tributaries of the 

Penobscot River above the site of the 

former Bangor Dam, the upper 

Kennebec River, or the Androscoggin 

River within the GOM DPS (65 FR 

69469; November 17, 2000). 

In late 2003, we assembled the 2005 

Biological Review Team (BRT) 

comprised of biologists from the Maine 

Atlantic Salmon Commission, the 

Penobscot Indian Nation (PIN), and both 

Services. The 2005 BRT was charged 

with reviewing and evaluating all 

relevant scientific information relating 

to the current DPS delineation 

(including a detailed genetic 

characterization of the Penobscot 

population and data relevant to the 

appropriateness of including the upper 

Kennebec and Androscoggin rivers as 

part of the DPS), determining the 

conservation status of the populations 

not included in GOM DPS listed in 

2000, and assessing their relationship to 

that GOM DPS (the GOM DPS that is 

currently listed). The findings of the 

2005 BRT, which are detailed in the 

2006 Status Review for Anadromous 

Atlantic Salmon in the United States 

(Fay et al., 2006), addressed: the DPS 

delineation, including whether 

populations that were not included in 

the 2000 listing should be included in 

the GOM DPS; the extinction risks to the 

species; and the threats to the species. 

The 2006 Status Review (Fay et al., 

2006) underwent peer review by experts 

in the fields of Atlantic salmon biology 

and genetics to ensure that it was based 

on the best available science. Each peer 

reviewer independently affirmed the 

major conclusions presented in Fay et 

al. (2006). 

We received a petition to list the 

‘‘Kennebec River population of 

anadromous Atlantic salmon’’ as an 

endangered species under the ESA on 

May 11, 2005. NMFS published a notice 

in the Federal Register on November 14, 

2006 (71 FR 66298), concluding that the 

petitioners (Timothy Watts, Douglas 

Watts, the Friends of Merrymeeting Bay, 

and the Maine Toxics Action Coalition) 

presented substantial scientific 

information indicating that a listing may 

be warranted. 

This Federal Register notice 

announces our finding regarding the 

ESA listing status of the GOM DPS and 

12–month finding on the petition to list 

Atlantic salmon in the Kennebec River 

as endangered. 

Policies for Delineating Species Under 

the ESA 

Section 3 of the ESA defines 

‘‘species’’ as including ‘‘any subspecies 

of fish or wildlife or plants, and any 

distinct population segment of any 

species of vertebrate fish or wildlife 

which interbreeds when mature.’’ The 

term ‘‘distinct population segment’’ is 

not recognized in the scientific 

literature. Therefore, the Services 

adopted a joint policy for recognizing 

DPSs under the ESA (DPS Policy; 61 FR 

4722) on February 7, 1996. The DPS 

policy requires the consideration of two 

elements when evaluating whether a 

vertebrate population segment qualifies 

as a DPS under the ESA: (1) the 

discreteness of the population segment 

in relation to the remainder of the 

species or subspecies to which it 

belongs; and (2) the significance of the 

population segment to the species or 

subspecies to which it belongs. 

A population segment of a vertebrate 

species may be considered discrete if it 

satisfies either one of the following 

conditions: (1) it is markedly separated 

from other populations of the same 

taxon (an organism or group of 

organisms) as a consequence of 

physical, physiological, ecological, or 

behavioral factors. Quantitative 

measures of genetic or morphological 

discontinuity may provide evidence of 

this separation; or (2) it is delimited by 

international governmental boundaries 


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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 

(i.e., inadequate regulatory 

mechanisms). 

If a population segment is found to be 

discrete under one or more of the above 

conditions, its biological and ecological 

significance to the taxon to which it 

belongs is evaluated. This consideration 

may include, but is not limited to: (1) 

persistence of the discrete population 

segment in an ecological setting unusual 

or unique for the taxon; (2) evidence 

that the 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; 

and (4) evidence that the discrete 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics. 

Listing Determinations Under the ESA 

The ESA defines an endangered 

species as one that is in danger of 

extinction throughout all or a significant 

portion of its range, and a threatened 

species as one that is likely to become 

endangered in the foreseeable future 

throughout all or a significant portion of 

its range (sections 3(6) and 3(20), 

respectively). The statute requires us to 

determine whether any species is 

endangered or threatened because of 

any of the following five factors: (1) the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) the inadequacy of existing 

regulatory mechanisms; or (5) other 

natural or manmade factors affecting its 

continued existence (section 4(a)(1)(AE)). We are to make this determination 

based solely on the best available 

scientific and commercial data available 

after conducting a review of the status 

of the species and taking into account 

any efforts being made by states or 

foreign governments to protect the 

species. 

Atlantic Salmon Life History 

Anadromous Atlantic salmon are a 

wide ranging species with a complex 

life history. The historic range of 

Atlantic salmon occurred on both sides 

of the North Atlantic: from Connecticut 

to Ungava Bay in the western Atlantic 

and from Portugal to Russia’s White Sea 

in the Eastern Atlantic, including the 

Baltic Sea. 

For Atlantic salmon in the United 

States, juveniles typically spend 2 years 

rearing in freshwater. Freshwater 

ecosystems provide spawning habitat 

and thermal refuge for adult Atlantic 

salmon; overwintering and rearing areas 

for eggs, fry, and parr; and migration 

corridors for smolts and adults 

(Bardonnet and Bagliniere, 2000). Adult 

Atlantic salmon typically spawn in 

early November. The eggs hatch in late 

March or April. At this stage, they are 

referred to as alevin or sac fry. Alevins 

remain in the redd for about 6 more 

weeks and are nourished by their yolk 

sac until they emerge from the gravel in 

mid-May. At this time, they begin active 

feeding and are termed fry. Within days, 

the fry enter the parr stage, indicated by 

vertical bars (parr marks) on their sides 

that act as camouflage. Atlantic salmon 

parr are territorial; thus, most juvenile 

mortality is thought to be density 

dependent and mediated by habitat 

limitation (Gee et al., 1978; Legault, 

2005). In particular, suitable 

overwintering habitat may limit the 

abundance of large parr prior to 

smoltification (Cunjak et al., 1998). 

Smoltification (the physiological and 

behavioral changes required for the 

transition to salt water) usually occurs 

at age 2 for most Atlantic salmon in 

Maine. The smolt emigration period is 

rather short and lasts only 2 to 3 weeks 

for each individual. During this brief 

emigration window, smolts must 

contend with rapidly changing 

osmoregulatory requirements 

(McCormick et al., 1998) and predator 

assemblages (Mather, 1998). The 

freshwater stages in the life cycle of the 

Atlantic salmon have been well studied; 

however, much less information is 

available on Atlantic salmon at sea 

(Klemetsen et al., 2003). 

Gulf of Maine Atlantic salmon migrate 

vast distances in the open ocean to 

reach feeding areas in the Davis Strait 

between Labrador and Greenland, a 

distance over 4,000 km from their natal 

rivers (Danie et al., 1984; Meister, 1984). 

During their time at sea, Atlantic salmon 

undergo a period of rapid growth until 

they reach maturity and return to their 

natal river. Most Atlantic salmon (about 

90 percent) from the Gulf of Maine 

return after spending two winters at sea; 

usually less than 10 percent return after 

spending one winter at sea; roughly 1 

percent of returning salmon are either 

repeat spawners or have spent three 

winters at sea (three sea winter 3SW 

salmon) (Baum, 1997). 

In addition to anadromous Atlantic 

salmon, landlocked Atlantic salmon 

have been introduced to many lakes and 

rivers in Maine, though they are only 

native to four watersheds in the State: 

the Union, including Green Lake in 

Hancock County; the St. Croix, 

including West Grand Lake in 

Washington County; the Presumpscot, 

including Sebago Lake in Cumberland 

County; and the Penobscot, including 

Sebec Lake in Piscataquis County 

(Warner and Havey, 1985). There are 

certain lakes and rivers in Maine where 

landlocked salmon and anadromous 

salmon co-exist. Recent genetic surveys 

have confirmed that little genetic 

exchange occurs between these two life 

history types (Spidle et al., 2003, NMFS 

unpublished data). 

Review of Species Delineation 

Fay et al. (2006) concluded that the 

DPS delineation as proposed by the 

previous BRT that resulted in the 2000 

listing designation (65 FR 69469; 

November 17, 2000) was largely 

appropriate, except in the case of large 

rivers that were excluded in previous 

listing determinations. As described 

below in the analyses of discreteness 

and significance of the population 

segment, Fay et al. (2006) concluded 

that the salmon currently inhabiting the 

larger rivers (Androscoggin, Kennebec, 

and Penobscot) are genetically similar to 

the rivers included in the GOM DPS as 

listed in 2000 (Spidle et al., 2003), have 

similar life history characteristics, and/ 

or occur in the same zoogeographic 

region. Further, the salmon populations 

inhabiting the large and small rivers 

from the Androscoggin River northward 

to the Dennys River differ genetically 

and in important life history 

characteristics from Atlantic salmon in 

adjacent portions of Canada (Spidle et 

al., 2003; Fay et al., 2006). Thus, Fay et 

al. (2006) concluded that this group of 

populations (population segment) met 

both the discreteness and significance 

criteria of the DPS Policy and, therefore, 

recommended that the new GOM DPS 

include all anadromous Atlantic salmon 

whose freshwater range occurs in the 

watersheds from the Androscoggin 

River northward along the Maine coast 

to the Dennys River, including all 

associated conservation hatchery 

populations used to supplement these 

natural populations; currently, such 

conservation hatchery populations are 

maintained at Green Lake National Fish 

Hatchery (GLNFH) and Craig Brook 

National Fish Hatcheries (CBNFH). 

The precise genetic boundary between 

Atlantic salmon in the United States 

and Canada is difficult to determine 

because there are no genetic data on the 

wild salmon that once occurred in the 

St. Croix watershed along the U.S.- 

Canada border. As listed in 2000, the 


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northern terminus of the GOM DPS was 

the U.S.-Canada border at the St. Croix 

River, but as described on page 54 of 

Fay et al. (2006), the best available 

science suggests that the St. Croix 

groups with other Canadian rivers. 

Therefore, we find that the northern 

terminus of the GOM DPS is the Dennys 

River watershed, rather than the St. 

Croix, because genetic analyses found 

that salmon in the Dennys River are 

more similar to populations in the 

United States than to Canadian salmon 

populations that are geographically 

proximate to the Dennys (Spidle et al., 

2003). 

We determined the southern terminus 

of the GOM DPS to be the Androscoggin 

River based on zoogeography rather 

than genetics because there are 

extremely few Atlantic salmon in the 

rivers as one moves southward on 

which to base genetic analyses. The 

Androscoggin River lies within the 

Penobscot-Kennebec-Androscoggin 

Ecological Drainage Unit (Olivero, 2003) 

and the Laurentian Mixed Forest 

Province (Bailey, 1995), which separates 

it from more southern rivers that were 

historically occupied by Atlantic 

salmon. 

With respect to the ‘‘discreteness’’ of 

this population segment, Fay et al. 

(2006) considered ecological, 

behavioral, and genetic factors under 

the first discreteness criterion of the 

DPS Policy to examine the degree to 

which it is separate from other Atlantic 

salmon populations. Gulf of Maine 

salmon are behaviorally and 

physiologically discrete from other 

members of the taxon because they 

return to their natal Gulf of Maine rivers 

to spawn, which leads to the separation 

in stocks that has been observed 

between the Gulf of Maine and other 

segments of the taxon. This 

phenomenon is known as homing and is 

characteristic of all other anadromous 

salmonids (Klemetsen et al., 2003; Utter 

et al., 2004). Baum and Spencer (1990) 

found that roughly 98 percent of all 

tagged salmon returned to their natal 

rivers to spawn. 

Ecologically, Gulf of Maine salmon 

are discrete from other members of the 

taxon. The core of the riverine habitat of 

this population segment lies within the 

Penobscot-Kennebec-Androscoggin 

Ecological Drainage Unit (Olivero, 2003) 

and the Laurentian Mixed Forest 

Province (Bailey, 1995). In particular, 

Gulf of Maine salmon life history 

strategies are dominated by age 2 smolts 

and 2SW adults whereas populations to 

the north of this population segment are 

generally dominated by age 3, or older, 

smolts and 1SW adults (i.e., grilse). 

Smolt age reflects growth rate 

(Klemetsen et al., 2003), with faster 

growing parr emigrating as smolts 

earlier than slower growing ones 

(Metcalfe et al., 1990). Smolt age is 

largely influenced by temperature 

(Symons, 1979; Forseth et al., 2001) and 

can therefore be used to compare and 

contrast growing conditions across 

rivers (Metcalfe and Thorpe, 1990). For 

Gulf of Maine populations, smolt ages 

are quite similar across rivers with 

naturally-reared (result of either wild 

spawning or fry stocking) returning 

adults predominantly emigrating at river 

age 2 (88 to 100 percent) with the 

remainder emigrating at river age 3 (Fay 

et al., 2006). 

The strongest evidence that Gulf of 

Maine salmon are discrete from other 

members of the taxon is genetic. Fay et 

al. (2006) described genetic structure of 

this population segment and other 

stocks in detail in section 6.3.1.3. In 

summary, three primary genetic groups 

of North American populations (Spidle 

et al., 2003; Spidle et al., 2004; Verspoor 

et al., 2005) are evident. These include 

the anadromous Gulf of Maine 

populations (including salmon in the 

Kennebec and Penobscot Rivers) (Spidle 

et al., 2003), non-anadromous Maine 

populations (Spidle et al., 2003), and 

Canadian populations (Verspoor et al., 

2005). 

Because of these behavioral, 

physiological, ecological and genetic 

factors, we conclude that the Gulf of 

Maine anadromous population is 

discrete from other Atlantic salmon 

populations under the provisions of the 

DPS Policy. 

With respect to the ‘‘significance’’ of 

this population segment, Fay et al. 

(2006) found three of the four 

‘‘significance’’ factors described in the 

DPS policy applicable to the GOM DPS. 

Under the first ‘‘significance’’ factor, 

Fay et al. (2006) concluded that this 

population segment has persisted in an 

ecological setting unusual or unique to 

the taxon for several reasons. First, Gulf 

of Maine salmon live in and migrate 

through a unique marine environment. 

The marine migration corridor for Gulf 

of Maine salmon begins in the Gulf of 

Maine that is known for unique 

circulation patterns, thermal regimes, 

and predator assemblages (Townsend et 

al., 2006). Gulf of Maine salmon 

undertake extremely long marine 

migrations to feeding grounds off the 

west coast of Greenland because the 

riverine habitat they occupy is at the 

southern extreme of the current North 

American range. While such vast marine 

migrations are more common for stocks 

on the northeast side of the Atlantic, the 

combination of the long migration 

distances and the unique setting of the 

Gulf of Maine, described above, make 

the oceanic life history of the GOM DPS 

quite unique from those of other stocks. 

In addition, the core of the riverine 

habitat of this population segment lies 

within the Penobscot-KennebecAndroscoggin Ecological Drainage Unit 

(Olivero, 2003) and the Laurentian 

Mixed Forest Province (Bailey, 1995). 

The importance of this setting is 

evidenced by the tremendous 

production potential of its juvenile 

nursery habitat that allows production 

of proportionately younger smolts than 

Canadian rivers to the north (Myers, 

1986; Baum, 1997; Hutchings and Jones, 

1998). Thus, the combination of the 

unique rearing conditions in the 

freshwater portion of its range combined 

with the unique marine migration 

corridor led Fay et al. (2006) to 

conclude that this population segment 

has persisted in an ecological setting 

unusual or unique to the taxon. 

Under the second ‘‘significance’’ 

factor, Fay et al. (2006) concluded that 

the loss of this population segment 

would result in a significant gap or 

constriction in the range of the taxon. 

The extirpation of this population 

segment would represent a significant 

range reduction for the entire taxon 

Salmo salar because this population 

segment represents the southernmost 

native Atlantic salmon population in 

the western Atlantic; the temperature 

regimes in these southern rivers made 

possible the tremendous growth and 

production potential which resulted in 

the historically very large populations 

in these areas. Historic attempts to 

enhance salmon populations (in Gulf of 

Maine rivers) using Canadian-origin fish 

failed. This further illustrates the 

importance of conserving native 

populations and the difficulties of 

restoration if they are lost. 

Under the third ‘‘significance’’ factor, 

Fay et al. (2006) concluded that this 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics. While genetic 

differences were used to examine the 

‘‘discreteness’’ of this population 

segment, Fay et al. (2006) suggested that 

the ‘‘significance’’ of these observed 

genetic differences is that they provide 

evidence of local adaptation. That is, 

low returns of exogenous smolts (i.e., 

Canadian-origin smolts stocked in 

Maine) and lower survival of smolts 

from these Maine rivers stocked outside 

their native geographic range (e.g., into 

the Merrimack River) indicate that this 

population segment is adapted to its 

native environment. 

These three factors led Fay et al. 

(2006) to conclude that this population 

segment is significant to the Atlantic 


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salmon species, and therefore, qualifies 

as a DPS (the new GOM DPS) under the 

provisions of the DPS Policy. 

Fay et al. (2006) explicitly considered 

whether to include hatchery 

populations in the GOM DPS and 

concluded that all conservation 

hatchery populations (currently 

maintained at GLNFH and CBNFH) 

should be included in the GOM DPS. 

This determination was based on the 

fact that there is a low level of 

divergence between conservation 

hatchery populations and the rest of the 

GOM DPS because: (1) the river-specific 

hatchery programs collect wild parr or 

sea-run adults annually (when possible) 

for inclusion into the broodstock 

programs; (2) broodstocks are used to 

stock fry and other life stages into the 

river of origin, and, in some instances, 

hatchery-origin individuals represent 

the primary origin of Atlantic salmon 

due to low adult returns; (3) there is no 

evidence of introgression from 

Canadian-origin populations; and (4) 

there is minimal introgression from 

aquaculture fish because of a rigorous 

genetic screening program. Because the 

level of divergence is minimal, Fay et al. 

(2006) suggested that hatchery 

populations should be considered part 

of the GOM DPS. However, Fay et al. 

(2006) also noted the dangers of reliance 

on hatcheries. In short, these risks 

include artificial selection, inbreeding 

depression, and outbreeding depression. 

The reader is directed to ‘‘Artificial 

Propagation’’ in ‘‘Factor E’’ of this 

Federal Register document and Section 

8.5.1 of the 2006 Status Review report 

for an in depth discussion of these risks. 

We concur with the findings and 

application of the DPS policy described 

in Fay et al. (2006) and therefore 

conclude that the GOM DPS warrants 

delineation as a DPS (i.e., it is discrete 

and significant). Specifically, we 

conclude that the GOM DPS is 

comprised of all anadromous Atlantic 

salmon whose freshwater range occurs 

in the watersheds from the 

Androscoggin northward along the 

Maine coast to the Dennys, including all 

associated conservation hatchery 

populations used to supplement these 

natural populations; currently, such 

populations are maintained at GLNFH 

and CBNFH. We consider the hatcherydependent populations that are 

maintained at CBNFH and GLNFH 

essential for recovery of the GOM DPS 

because the hatchery populations 

contain a high proportion of the genetic 

diversity remaining in the GOM DPS 

(Bartron et al., 2006). Excluded are 

those salmon raised in commercial 

hatcheries for aquaculture and 

landlocked salmon because they are 

genetically distinguishable from the 

GOM DPS. The marine range of the 

GOM DPS extends from the Gulf of 

Maine to feeding grounds off Greenland. 

The most substantial difference between 

the GOM DPS as listed in 2000 and the 

GOM DPS as proposed in this rule is the 

inclusion of the entire Androscoggin, 

Kennebec and Penobscot basins. 

Several rivers outside the range of the 

GOM DPS in Long Island Sound and 

Central New England contain Atlantic 

salmon (Fay et al., 2006). The native 

Atlantic salmon of these areas south of 

the GOM DPS were extirpated in the 

1800s (Fay et al., 2006). However, 

efforts to restore Atlantic salmon to 

these areas (e.g., Connecticut, 

Merrimack, and Saco Rivers) involve 

stocking Atlantic salmon that were 

originally derived from the GOM DPS. 

Atlantic salmon whose freshwater range 

occurs outside the GOM DPS do not 

interbreed with salmon within the GOM 

DPS and are not considered a part of the 

GOM DPS and are not being considered 

for protection under the ESA. 

Status of the GOM DPS 

Since the listing of the GOM DPS of 

Atlantic salmon in 2000, the numbers of 

returning adults (both naturally-reared 

and conservation hatchery stocked) 

have remained low (Table 1). Of greatest 

concern is the extremely low number of 

naturally-reared adults in the GOM DPS. 

In 2006 (the most recent year for which 

complete data is available at the time of 

writing), approximately 1,144 adult 

salmon returned to rivers within the 

freshwater range of the GOM DPS. Of 

these, only 117 were naturally-reared; 

91 percent (1,044) of the adult salmon 

returned to the Penobscot, 95 percent 

(996) of which were stocked through 

conservation hatchery programs as 

smolt (Table 2). The remainder was 

predominantly naturally-reared salmon 

that returned to smaller rivers such as 

the Narraguagus, Pleasant, and 

Sheepscot Rivers (Table 2). 

Conservation spawning escapement 

(CSE) goals are widely used (e.g., 

International Council for the 

Exploration of the Sea (ICES), 2005) to 

describe the status of individual 

Atlantic salmon populations. When CSE 

goals are met, Atlantic salmon 

populations are generally selfsustaining. When CSE goals are not met 

(i.e., less than 100 percent), populations 

are not reaching full potential which 

can be indicative of a population 

decline. For all rivers in Maine, current 

Atlantic salmon populations are well 

below CSE levels required to sustain 

themselves (Fay et al., 2006), which is 

further indication of their poor 

population status. 

TABLE 1. ADULT RETURNS TO RIVERS WITHIN THE RANGE OF THE GOM DPS AS LISTED IN 2000, THE PENOBSCOT RIVER, 

THE KENNEBEC RIVER, AND THE ANDROSCOGGIN RIVER FROM 2001 TO 2006. THESE DATA ARE SUMMARIZED FROM

TABLE 3.2.1.2 AND TABLE 16 IN THE UNITED STATES ATLANTIC SALMON ASSESSMENT COMMITTEE REPORT

(USASAC, 2007). 

Year 

Rivers within the range 

of the DPS as listed in 

2000 estimate 

Penobscot River Trap 

Count 

Kennebec River Trap 

Count a

Androscoggin River 

Trap Count Total Known Returns 

2001 103 785 -- 5 893 

2002 37 780 -- 2 819 

2003 76 1112 -- 3 1191 

2004 82 1323 -- 11 1416 

2005 71 985 -- 10 1066 

2006 79 1044 15 6 1144 

a Counts not conducted on the Kennebec until 2006 


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TABLE 2. ADULT RETURNS TO RIVERS WITHIN THE FRESHWATER RANGE OF THE GOM DPS BY ORIGIN IN 2006. THESE

DATA ARE SUMMARIZED FROM TABLE 1 IN THE UNITED STATES ATLANTIC SALMON ASSESSMENT COMMITTEE REPORT

(USASAC, 2007). 

River Conservation Hatchery Naturally-reared Total 

Androscoggin 6 0 6 

Kennebec 10 5 15 

Dennys 4 2 6 

Narraguagus 0 15 15 

Other GOM DPS 11 47 58 

Penobscot 996 48 1044 

Total 1027 117 1144 

Currently, the GOM DPS of Atlantic 

salmon is largely dependent on 

conservation hatchery supplementation 

for its persistence. The ultimate goal of 

the conservation hatchery program is to 

lead to the recovery of the GOM DPS. 

We use two recent analyses to inform us 

about the role of conservation hatcheries 

in reducing the risk of extinction of the 

GOM DPS given the low numbers of 

naturally-reared salmon in the GOM 

DPS. We do not use either of these 

analyses to define a point at which we 

predict the GOM DPS may go extinct or 

to analyze threats to the GOM DPS 

because of the assumptions made by 

each that make them inappropriate to 

use for such purposes. The two analyses 

are: (1) Fay et al. (2006) in which recent 

adult return data were used in a 

population viability analysis (PVA) to 

assess the extinction probabilities for 

the GOM DPS (as defined in this 

proposed rule); (2) Legault (2004 and 

2005) in which a novel population 

modeling tool (SalmonPVA) was used 

to, in part, begin examining quantitative 

recovery criteria for the GOM DPS as 

listed in 2000. 

The PVA described in section 7.3 of 

Fay et al. (2006) generally shows that 

the GOM DPS is likely to continue to 

decline in terms of adult abundance. In 

short, these PVA projections show that 

the GOM DPS is trending towards 

extinction. The Fay et al. (2006) PVA 

does, however, show the positive 

population effects of conservation 

hatcheries (i.e., reducing the risk of 

extinction). The risk of extinction 

increases over time, and varies 

depending on how extinction is defined 

(i.e., a ‘‘Quasi-Extinction Threshold’’ 

(QET) of one individual vs. 50 or 100 

individuals). Using an adult return 

dataset from a period of low marine 

survival (1991 to 2004), the likelihood 

of extinction (QET = 1) for the GOM 

DPS is 0.8 percent over a 20–year time 

frame. Even if the timeframe is extended 

to 100 years, for a QET of one individual 

the estimated extinction risk remains 

below 50 percent (37.2 percent). With a 

QET of 50 individuals, however, the 

extinction risk increases to 71.2 percent 

in 100 years. In the analyses, the 

probability of extinction increases when 

the QET is larger, and with longer 

timeframes. Without the smolt stocking 

program, the risks of extinction would 

be much greater (Fay et al., 2006). 

Legault’s PVA (Legault, 2005) 

demonstrates that current levels of 

hatchery supplementation substantially 

reduce extinction risk to the GOM DPS 

as listed in 2000. For example, in 

simulations where marine survival 

estimates were set at the mean of the 

last 30 years, Legault (2005) estimated 

that the extinction risk (in the next 100 

years) for the GOM DPS as listed in 

2000 was near 100 percent if hatchery 

supplementation ceased in 2015, 

whereas extinction risks were only 

approximately 1 percent in simulations 

where hatchery supplementation 

continued through the year 2055. These 

simulations only included those 

populations specifically named in the 

GOM DPS as listed in 2000; given that 

smaller initial population sizes 

exacerbate the extinction process 

(Holmes, 2001), adding the Penobscot 

population into the GOM DPS, as is 

proposed here, would further reduce the 

extinction risks compared to those 

presented by Legault (2005). 

Although PVAs are informative in 

assessing extinction risks, there are 

several assumptions that must be 

carefully scrutinized. In particular, the 

PVA presented by Fay et al. (2006) can 

be considered valid only if the following 

assumptions are accepted: (1) hatchery 

supplementation continues into the 

future at current levels with similar 

survival rates, and (2) similar threats to 

the species remain operative into the 

future (i.e., environmental conditions 

remain unchanged). Therefore, the PVA 

projections of extinction risk for the 

GOM DPS are not necessarily predictive 

of future conditions, especially over 

longer time frames, and caution must be 

used in interpreting results of this or 

any PVA when making a determination 

regarding a species’ conservation status. 

Importantly, all of the extinction risk 

scenarios assessed by Fay et al. (2006) 

assumed that hatchery supplementation 

would continue at its present level. The 

hatchery program, however, and 

specifically the smolt stocking program 

that currently sustains the GOM DPS, 

requires at least 150 returning adults in 

the GOM DPS. If there were less than 

150 adults, smolt production goals 

could not be met and the hatchery 

program could not continue at its 

current level; the likelihood of this 

occurring has not been determined. The 

ramifications of an adult population 

falling below 150 are that severe genetic 

and demographic problems would arise 

in the population as the result of the 

extremely low levels of abundance (Fay 

et al., 2006). The effect hatchery 

supplementation has on reducing the 

risk of extinction of the GOM DPS 

would also be lost without the smolt 

stocking program at its current levels, 

and a steep and rapid population 

decline to extinction would be expected 

if hatchery broodstock goals could not 

be met (i.e., less than 150 adults). In 

addition, because smolt stocking has a 

greater positive effect on population 

demographics than fry stocking (SEI, 

2007), the cessation of the smolt 

stocking that currently sustains the 

GOM DPS likely would exacerbate 

extinctions risks considerably more than 

if fry stocking were discontinued (as 

considered by Legault (2005)). 

In addition, there are negative 

consequences to hatchery 

supplementation that are not 


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incorporated into the PVA. Despite 

managers’ best efforts, long-term 

artificial propagation and maintenance 

of a population in captivity may result 

in negative effects resulting from small 

population size, inbreeding, and 

domestication selection that may reduce 

the long-term viability of the population 

(see Artificial Propagation in Factor E of 

this Federal Register Notice). We 

recognize that such effects may be 

difficult to detect, yet they may be 

irreversible. 

Additional risks of relying on 

hatchery supplementation that are not 

explicitly considered in either PVA are 

described below. The entire hatchery 

stock for the GOM DPS is maintained in 

two hatcheries, GLNFH and CBNFH. 

Although there are strict biosecurity 

protocols and broodstock management 

plans in place, there is the potential for 

a catastrophe to occur at either or both 

facilities (e.g., disease, loss of funding, 

loss of electricity), which could result in 

the loss of many individuals or 

potentially entire broodstock sources. In 

the event of such a catastrophe, there 

would still be two to three age classes 

at sea; however, it would be extremely 

difficult to rebuild the broodstock with 

the remaining small population and 

limited gene pool. Given the current 

dependence of the GOM DPS on 

hatchery supplementation, catastrophic 

loss of either or both hatchery stocks 

would cause a steep and rapid decline 

to extinction, potentially more severe 

than if broodstock goals cannot be met 

(as described above). Neither of the 

PVAs (Legault, 2005; nor Fay et al., 

2006) explicitly considered the risk of 

catastrophic loss of both conservation 

hatchery programs. 

To summarize the information we 

have obtained from the PVAs (Legault, 

2005; Fay et al., 2006), the GOM DPS is 

trending toward extinction though 

conservation hatchery supplementation 

buffers the extinction risk. If the number 

of returning adults falls below 150, the 

current levels of conservation hatchery 

supplementation (smolt stocking, in 

particular) would be impossible to 

maintain, resulting in a rapid and steep 

decline to extinction. This scenario was 

not modeled in either PVA; therefore, 

we are not able to predict timeframes to 

how soon extinction might occur 

without hatchery supplementation. 

To summarize the status of the GOM 

DPS, the total number of naturallyreared, spawning adult salmon 

continues to be extremely low (117 in 

2006 data summarized from USASAC, 

2007). In 2006 there were 1,027 smoltstocked adults in the GOM DPS (data 

summarized from USASAC (2007)). 

Hatchery supplementation reduces the 

risk of extinction by increasing the 

number of juveniles in the GOM DPS, 

thereby maintaining low levels of 

spawning adults returning to the 

system. However, these programs have 

not yet been successful at recovering or 

maintaining wild, self-sustaining 

populations of Atlantic salmon as 

evidenced by the low numbers of 

naturally-reared adults in the GOM DPS. 

The majority of salmon within the 

freshwater range of the GOM DPS return 

to a single river system, the Penobscot; 

of these, approximately 90 percent were 

stocked as smolts. 

Summary of Factors Affecting the GOM 

DPS 

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

and implementing regulations at 50 CFR 

part 424 set forth procedures for adding 

species to the Federal List of 

Endangered and Threatened Species. 

Under section 4(a) of the Act, we must 

determine if a species is threatened or 

endangered because of any of the 

following five factors: (A) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

We have described the effects of 

various factors leading to the decline of 

Atlantic salmon in previous listing 

determinations (60 FR 50530, 

September 29, 1995; 64 FR 62627, 

November 17, 1999; 65 FR 69459, 

November 17, 2000) and supporting 

documents (NMFS and USFWS, 1999; 

NMFS and USFWS, 2005). The reader is 

directed to section 8 of Fay et al., (2006) 

for a more detailed discussion of the 

factors affecting the GOM DPS. In 

making this finding, information 

regarding the status of the GOM DPS of 

Atlantic salmon is considered in 

relation to the five factors provided in 

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

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of its Habitat or Range 

Changes to the GOM DPS’s natural 

environment are ubiquitous. Both 

contemporary and historic land and 

water use practices such as damming of 

rivers, forestry, agriculture, 

urbanization, and water withdrawal 

have substantially altered Atlantic 

salmon habitat by: (1) eliminating and 

degrading spawning and rearing habitat, 

(2) reducing habitat complexity and 

connectivity, (3) degrading water 

quality, and (4) altering water 

temperatures. These impacts and their 

effects on salmon are described in detail 

by Fay et al. (2006). Here we summarize 

the stressors that we believe are having 

the greatest impact on the GOM DPS. 

Dams are among the leading causes of 

both historic declines and contemporary 

low abundance of the GOM DPS of 

Atlantic salmon. Dams directly limit 

access to otherwise suitable habitat. 

Prior to the construction of mainstem 

dams in the early 1800s, the upstream 

migrations of salmon extended well into 

headwaters of large and small rivers 

alike, unless a naturally impassable 

waterfall existed. For example, Atlantic 

salmon were found throughout the West 

Branch of the Penobscot River (roughly 

350 km inland) and as far as Grand Falls 

(roughly 235 km inland) on the Dead 

River in the Kennebec Drainage (Foster 

and Atkins, 1867; Atkins, 1870). Today, 

however, upstream passage for salmon 

on the West Branch of the Penobscot is 

nonexistent and limited to trapping and 

trucking salmon above the first 

mainstem dam on the Kennebec. Dams 

also change hydraulic characteristics of 

rivers. These changes, combined with 

reduced, non-existent, or poor fish 

passage, influence fish community 

structure. Specifically, dams create 

slow-moving impoundments in formerly 

free-flowing reaches. Not only are these 

altered habitats less suitable for 

spawning and rearing of Atlantic 

salmon, they may also favor nonnative 

competitors such as smallmouth bass 

(Micropterus dolomieu) over native 

species such as brook trout (Salvelinus 

fontinalis) and American shad (Alosa 

sapidissima). Fish passage inefficiency 

also leads to direct mortality of Atlantic 

salmon. Upstream passage effectiveness 

for anadromous fish species never 

reaches 100 percent, and substantial 

mortality and migration delays occur 

during downstream passage events 

through screen impingement and 

turbine entrainment. The cumulative 

losses of smolts, in particular, 

incrementally diminish the productive 

capacity of freshwater rearing habitat 

above hydroelectric dams. 

Comprehensive discussions of the 

impacts of dams are presented in 

sections 8.1, 8.3, and 8.5.4 of Fay et al. 

(2006) and NRC (2004). 

As supported by the information in 

the Status Review, we find that the 

threat of dams and their inter-related 

effects on freshwater salmon habitat is 

one of the three (in addition to the 

inadequacy of existing regulatory 

mechanisms for dams (see discussion in 

Factor D below) and the low marine 

survival, (see discussion in Factor E 

below) most influential stressors 


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negatively affecting the persistence of 

the GOM DPS. 

Some forest, agricultural, and other 

land use practices have reduced habitat 

complexity within the range of the GOM 

DPS of Atlantic salmon. Large woody 

debris (LWD) and large boulders are 

currently lacking from many rivers 

because of historic practices. When 

present, LWD and large boulders create 

and maintain a diverse variety of habitat 

types. Large trees were harvested from 

riparian areas; this reduced the supply 

of LWD to channels. In addition, any 

LWD and large boulders that were in 

river channels were often removed in 

order to facilitate log drives. Historical 

forestry and agricultural practices were 

likely the cause of currently altered 

channel characteristics, such as widthto-depth ratios (i.e., channels are wider 

and shallower today than they were 

historically). Channels with large widthto-depth ratios tend to experience more 

rapid water temperature fluctuations, 

which is stressful for salmon, 

particularly in the summer when 

temperatures are warmer. Further 

discussions of the impacts of reduced 

habitat complexity are presented in 

section 8.1.2 of Fay et al. (2006). Within 

Factor A, we find that the threat to the 

persistence of the GOM DPS from 

reduced habitat complexity is secondary 

to the significant threat posed by dams. 

Habitat connectivity has been reduced 

because of dams and poorly designed 

road crossings. Further discussions of 

the impacts of reduced habitat 

connectivity are presented in section 

8.1.2 of Fay et al. (2006). As a highly 

migratory species, Atlantic salmon 

require a diverse array of wellconnected habitat types in order to 

complete their life history. Impediments 

to movement between habitat types can 

limit access to potential habitat and, 

therefore, directly reduce survival in 

freshwater. In some instances, barriers 

to migration may also impede recovery 

of other diadromous fishes as well. For 

example, alewives (Alosa 

pseudoharengus) require free access to 

lakes to complete their life history. To 

the extent that salmon require other 

native diadromous fishes to complete 

their life history (see ‘‘Depleted 

Diadromous Communities’’ in ‘‘Factor 

E’’ of this Federal Register notice), 

limited connectivity of freshwater 

habitat types may limit the abundance 

of salmon through diminished nutrient 

cycling, and a reduction in the 

availability of co-evolved diadromous 

fish species that provide an alternative 

prey source and serve as prey to GOM 

DPS Atlantic salmon. Restoration efforts 

in the Machias, East Machias and 

Narraguagus Rivers have improved 

passage at road crossings by replacing 

poorly-sized and poorly-positioned 

culverts. However, many barriers of this 

type remain throughout the GOM DPS. 

Within Factor A, we find that the threat 

to the persistence of the GOM DPS from 

reduced habitat connectivity (resulting 

from causes other than dams) is 

secondary to the significant threat posed 

by dams. 

A number of other human-caused 

perturbations continue to negatively 

modify Atlantic salmon habitat within 

the range of the GOM DPS. Water 

withdrawals that reduce water quality 

(e.g., temperature and dissolved oxygen) 

and in-stream flows to levels that cannot 

sustain Atlantic salmon populations 

have been documented in rivers within 

the range of the GOM DPS. Elevated 

sedimentation from forestry, agriculture, 

urbanization, and roads can reduce 

survival at several life stages, most 

importantly egg survival, as well as alter 

in-stream habitat and habitat use 

patterns by filling pools, and adversely 

affect aquatic invertebrate populations 

that are an important food source for 

salmon. Acid rain reduces pH in surface 

waters with low buffering capacity, and 

reduced pH impairs osmoregulatory 

abilities and seawater tolerance of 

Atlantic salmon smolts. A variety of 

pesticides, herbicides, trace elements, 

and other contaminants are found at 

varying levels throughout the range of 

the GOM DPS. These contaminants have 

been demonstrated to cause lethal and 

sub-lethal impacts, such as impaired 

olfactory capabilities, to salmon. Fay et 

al. (2006) provide a thorough discussion 

of these habitat alterations in sections 

8.1.1 and 8.1.3. Within Factor A, we 

find that the threat to the persistence of 

the GOM DPS from poor water quality 

is secondary to the significant threat 

posed by dams. 

The GOM DPS of Atlantic salmon is 

negatively affected by ongoing changes 

in its freshwater habitat as a result of 

land and water use practices as 

considered above in Factor A. Within 

Factor A, we find that dams and their 

inter-related effects are significant 

threats to the persistence of the GOM 

DPS; secondary threats to the 

persistence of the GOM DPS are 

stressors that reduce habitat 

connectivity (other than dams), reduce 

habitat complexity, and negatively affect 

water quality. We conclude that threats 

from dams, the inadequacy of existing 

regulatory mechanism for dams 

(described below in Factor D), and low 

marine survival (described below in 

Factor E), are the most influential 

stressors negatively affecting the 

persistence of the GOM DPS. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The GOM DPS of Atlantic salmon has 

supported important tribal, recreational, 

and commercial fisheries. In the past, 

these fisheries have been conducted 

throughout nearly all of the GOM DPS’s 

habitats, including in-river, estuarine, 

and off-shore (see section 8.2 of Fay et 

al. (2006) for additional information 

regarding Overutilization as it affects 

Atlantic salmon). 

Atlantic salmon are an integral part of 

the history of Native American tribes in 

Maine, particularly the PIN. The species 

represents both an important resource 

for food, and perhaps more importantly, 

a cultural symbol of the deeply 

engrained connection between the PIN 

and the Penobscot River. In accordance 

with the Maine Indian Land Claims 

Settlement Act, the PIN retains the right 

of its members to harvest Atlantic 

salmon for subsistence and sustenance 

purposes, and to self-regulate that 

harvest. The PIN has harvested only two 

salmon under these provisions, and has 

voluntarily decided not to harvest any 

Atlantic salmon since 1988, because of 

the depleted status of the species. 

Recreational fisheries for Atlantic 

salmon in Maine date back to the early 

to mid–1800s. Since 1880, over 25,000 

Atlantic salmon have been landed in 

Maine rivers, roughly 14,000 in the 

Penobscot River alone (Baum, 1997). 

Historically, Atlantic salmon sport 

anglers practiced very little catch and 

release. Beginning 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 angler for these rivers was 

reduced from 10 salmon in the 1980s to 

1 grilse in 1994. Angling was closed on 

the Pleasant River from 1986 to 1989. In 

1990, a one year catch and release 

fishery was allowed on the Pleasant 

River. In 1995, regulations were 

promulgated for catch and release 

fishing for sea-run Atlantic salmon 

throughout the other Maine salmon 

rivers, closing the last remaining 

recreational harvest opportunities for 

sea run Atlantic salmon in the United 

States. In 2000, all directed recreational 

fisheries for sea run Atlantic salmon in 

Maine were closed until 2006 when a 

short, highly regulated, experimental 

catch and release fishery was opened on 

the Penobscot River below Veazie Dam. 

The 30–day angling season began on 

September 15, 2006, and resulted in one 

Atlantic salmon being caught and 

released on September 20, 2006. This 


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fishery was opened again on September 

15, 2007. In 2008, the Maine Atlantic 

Salmon Commission Board authorized a 

30–day catch and release fishery for the 

spring of 2008. This fishery poses a risk 

to returning sea-run Atlantic salmon 

because it occurs at a time of year before 

broodstock have been collected, which 

is essential to maintain current levels of 

conservation hatchery supplementation, 

and would further risk the likelihood of 

achieving the scientifically sound and 

mutually-agreed goals set forth in the 

Broodstock Management Plan (P. 

Kurkul, NOAA, in litt. February 1, 

2008). 

Poaching and incidental capture 

remain concerns to the status of Atlantic 

salmon in Maine. Incidental capture of 

parr and smolts, primarily by trout 

anglers, and of adult salmon, primarily 

by striped bass anglers, has been 

documented. Targeted poaching for 

adult salmon occurs at low levels as 

well. Low returns of adult salmon to 

Maine rivers highlight the importance of 

continuing to reduce any source of 

mortality, particularly at later life stages. 

Commercial fishing for Maine 

Atlantic salmon historically occurred in 

rivers, estuaries, and on the high seas. 

While most directed commercial 

fisheries for Atlantic salmon have 

ceased, the impacts from past fisheries 

are important in explaining the present 

low abundance of the GOM DPS. Also, 

the continuation of offshore fisheries for 

Atlantic salmon, albeit at reduced 

levels, influences the current status of 

the GOM DPS. 

Nearshore fisheries for Atlantic 

salmon in Maine were quite common in 

the late 1800s. In 1888, roughly 90 

metric tons (mt) of salmon were 

harvested in the Penobscot River alone. 

As stocks continued to decline through 

the early 1900s, the Maine Atlantic Sea 

Run Salmon Commission closed the 

nearshore commercial fishery for 

Atlantic salmon after the 1947 season 

when only 40 fish (0.2 mt) were caught. 

Directed fisheries for Atlantic salmon in 

U.S. territorial waters were further 

limited by regulations implementing the 

Atlantic salmon fishery management 

plan (FMP) in 1987 (NEFMC, 1987). 

These regulations prohibit possession of 

Atlantic salmon in the U.S. exclusive 

economic zone. While nearshore 

fisheries for Atlantic salmon have 

ceased, the impacts from past fisheries 

are important in explaining the present 

low abundance of the GOM DPS. 

Directed fishing for other species has 

the potential to intercept salmon as bycatch. Beland (1984) reported that fewer 

than 100 salmon per year were caught 

incidental to other commercial fisheries 

in the coastal waters of Maine. Recent 

investigations also suggest that by-catch 

of Atlantic salmon in herring fisheries is 

not a significant mortality source for 

U.S. stocks of salmon (ICES, 2004). 

Offshore, directed fisheries for 

Atlantic salmon continue to affect the 

GOM DPS, though these fisheries have 

been substantially reduced in recent 

years. The combined harvest of 1SW 

Atlantic salmon of U.S. origin in the 

fisheries off West Greenland and Canada 

averaged 5,060 fish, and returns to U.S. 

rivers averaged 2,884 fish from 1968 to 

1989 (ICES, 1993); we estimate that 

roughly 87 percent of all U.S. adult 

returns during the time period 1968 to 

1989 originated from the GOM DPS, and 

thus roughly 2,519 of the 2,884 of the 

above returns were to the GOM DPS. 

ICES (1993) estimated that adult returns 

to U.S.rivers could have potentially 

been increased by 2.5 times in the 

absence of West Greenland and 

Labrador fisheries during that time 

period. 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 managing 

the exploitation by member nations of 

Atlantic salmon that originated within 

the territory of other member nations. 

The United States’ interest in NASCO 

stemmed from its desire to ensure that 

interception fisheries of 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. 

Since the establishment of NASCO in 

1982, commercial quotas for the West 

Greenland fishery have steadily 

declined, as has the abundance of most 

stocks that make up this mixed stock 

fishery (including the GOM DPS). 

Quotas have been restricted to an 

internal use fishery (i.e., no fish were 

sold internationally) in the following 

years: 1998–2000; 2003–2007; and 

provisionally for 2008. 

In addition, a small commercial 

fishery occurs off St. Pierre et Miquelon, 

a French territory south of 

Newfoundland. Historically, the fishery 

was very limited (2 to 3 mt per year). 

There is great interest by the United 

States and Canada in sampling this 

catch to gain more information on stock 

composition. In recent years, there has 

been a reported small increase in the 

number of fishermen participating in 

this fishery. A small sampling program 

was initiated in 2003 to obtain 

biological data and samples from the 

catch. Genetic analysis on 134 samples 

collected in 2004 indicated that all 

samples originated from North America, 

and approximately 1.9 percent were of 

U.S. origin. The 90–percent confidence 

interval around this estimate was 0–77 

U.S.-origin salmon (ICES, 2006), and 

since roughly 87 percent of all U.S. 

returns originated from the GOM DPS in 

2004 (USASAC, 2005), we estimate that 

up to 67 fish harvested in this fishery 

originated from the GOM DPS. Efforts to 

continue and increase the scope of this 

sampling program are ongoing through 

NASCO. These data are essential to 

understanding the impact of this fishery 

on the GOM DPS. 

A multi-year conservation agreement 

was established in 2002 between the 

North Atlantic Salmon Fund and the 

Organization of Hunters and Fishermen 

in Greenland, effectively buying out the 

commercial fishery for Atlantic salmon 

for a 5–year period. The internal-use 

fishery is not included in the agreement. 

From 2002 to 2005, the internal-use 

fishery harvested between 19 and 25 mt 

(reported and unreported catch) 

annually. Genetic analysis performed on 

samples obtained from the 2002 to 2004 

fisheries estimated the North American 

contribution at 64–73 percent, with the 

United States contributing between 0.1 

and 0.8 percent of the total. The 90 

percent confidence interval for the U.S. 

estimates are 0 to 141 salmon in 2002, 

5 to 132 salmon in 2003, and 0 to 64 

salmon in 2004 (ICES, 2006). In June 

2007, the agreement was extended and 

revised to cover the 2007 fishing season. 

The agreement may continue to be 

extended on an annual basis through 

2013. 

Overutilization for recreational and 

commercial purposes was a factor that 

contributed to the historic declines of 

the GOM DPS. The current low numbers 

of adult salmon in the GOM DPS 

magnify the negative population effects 

caused by any take that occurs through 

commercial, recreational, scientific or 

educational purposes; however, we find 

the threats from overutilization (Factor 

B) to the persistence of the GOM DPS 

are secondary to threats identified above 

in Factors A (dams), and below in D 

(inadequacy of existing regulatory 

mechanisms for dams) and E (low 

marine survival). 

C. Disease or Predation 

Fish diseases have always represented 

a source of mortality to Atlantic salmon 

in the wild (for a more thorough 

discussion see section 8.3.2 of Fay et al. 

(2006)). Atlantic salmon are susceptible 

to numerous bacterial, viral, and fungal 

diseases. Bacterial diseases common to 

New England waters include Bacterial 

Kidney Disease (BKD), Enteric 


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Redmouth Disease (ERM), Cold Water 

Disease (CWD), and Vibriosis (Mills, 

1971; Gaston, 1988; Olafsen and 

Roberts, 1993; Egusa, 1992). To reduce 

the likelihood of disease outbreaks or 

epizootic events, cultured salmon used 

for aquaculture purposes routinely 

receive vaccinations for these pathogens 

prior to stocking into marine sites. 

Fungal diseases such as Furunculosis 

can affect all life stages of salmon in 

both fresh and salt water, and the 

causative agent (Saprolignia spp.) is 

ubiquitous to most water bodies. The 

risk of an epizootic occurring during 

fish culture operations is greater 

because of the increased numbers of 

host animals reared at much higher 

densities than would be found in the 

wild. In addition, stressors associated 

with intensive fish culture operations 

(i.e., handling, stocking, tagging, and 

sea-lice loads) may increase 

susceptibility to infections. Disease from 

fish culture operations may be spread to 

wild salmon directly through effluent 

discharge or indirectly from either 

escapes of cultured salmon, or through 

smolts and returning adults passing 

through embayments where pathogen 

loads are increased to a level such that 

infection occurs and diseases may be 

transferred. 

A number of viral diseases that could 

affect wild populations have occurred 

during the culture of Atlantic salmon, 

such as Infectious Pancreatic Necrosis, 

Salmon Swimbladder Sarcoma Virus, 

Infectious Salmon Anemia (ISA), and 

Salmon Papilloma (Olafsen and Roberts, 

1993). In 2007, the Infectious Pancreatic 

Necrosis virus was isolated in sea run 

fish in the Connecticut River program. 

It is most likely these fish contracted the 

disease during their time at sea and it 

was detected in the hatchery due to the 

rigorous fish health monitoring and 

assessment protocols. ISA is of 

particular concern for the GOM DPS 

because of the nature of the pathogen 

and the high mortality rates associated 

with the disease. Most notably, a 2001 

outbreak of ISA in Cobscook Bay led to 

an emergency depopulation of all 

commercially cultured salmon in the 

bay. In addition to complete 

depopulation of all cultured salmon, the 

MDMR ordered all cages be thoroughly 

cleaned and disinfected, all sites be 

fallowed for 3 months, and subsequent 

re-stocking of cages occur at lower 

densities with only a single year class. 

These measures were initially 

successful; however, subsequent testing 

for ISA has revealed additional 

detections of the virus in Cobscook Bay 

(Maine) sites in 2003, 2004, 2005, and 

2006. 

Disease(s) can have devastating 

population-wide effects when they 

occur; we find that the threat from 

disease (within Factor C) to the 

persistence of the GOM DPS is 

secondary to threats identified in above 

in Factors A (dams) and below in D 

(inadequacy of existing regulatory 

mechanisms for dams), and E (low 

marine survival). 

Predation is a natural and necessary 

process in properly functioning aquatic 

ecosystems (for a comprehensive 

discussion see section 8.3.1 of Fay et al. 

(2006)). Atlantic salmon have evolved a 

suite of strategies that allow them to coexist with the numerous predators they 

encounter throughout their life cycle. 

However, natural predator-prey 

relationships in aquatic ecosystems in 

Maine have been substantially altered 

through the spread of nonnative fish 

species (e.g., smallmouth bass), habitat 

alterations (e.g., river channel 

simplification and dams), and the 

decline of other diadromous species that 

would otherwise serve as an alternative 

prey source for fish that feed on Atlantic 

salmon smolts and adults. 

The threat of predation on the GOM 

DPS of Atlantic salmon is important 

because of the imbalance between the 

very low numbers of adults returning to 

spawn and the recent increase in 

population levels of some native 

predators such as double-crested 

cormorants, striped bass, and several 

species of seals as well as non-native 

predators, such as smallmouth bass; we 

find that the threat from predation 

(within Factor C) to the persistence of 

the GOM DPS is secondary to threats 

identified above in Factors A (dams) 

and below in D (inadequacy of existing 

regulatory mechanisms for dams), and E 

(low marine survival). 

D. Inadequacy of Existing Regulatory 

Mechanisms 

A variety of state and Federal statutes 

and regulations directly or indirectly 

address potential threats to Atlantic 

salmon and their habitat. These laws are 

complemented by international actions 

under NASCO and many interagency 

agreements and state-Federal 

cooperative efforts specifically designed 

to protect Atlantic salmon. 

Implementation and enforcement of 

these laws and regulations could be 

strengthened to further protect Atlantic 

salmon. State and Federal agencies have 

established coordination mechanisms 

and 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. However, there 

are still major threats to the GOM DPS 

for which current regulatory 

mechanisms remain inadequate, such as 

dams, water withdrawals, and degraded 

water quality. For further discussion of 

these regulatory mechanisms, see 

section 8.4 of Fay et al. (2006). 

Dams 

Atlantic salmon require a diverse 

array of well connected habitat types in 

order to complete their life history. 

Present conditions within the range of 

the GOM DPS only allow salmon to 

access a fraction of river miles that were 

historically accessible. Even where 

salmon can presently access suitable 

habitat, they must often pass several 

dams to reach their natal spawning 

habitat. 

Most hydroelectric dams in the large 

watersheds of the GOM DPS (Penobscot, 

Kennebec, and Androscoggin) are 

licensed by the Federal Energy 

Regulatory Commission (FERC) under 

the Federal Power Act (FPA). Currently, 

within the historic range of Atlantic 

salmon in the GOM DPS there are 19 

hydroelectric dams in the Androscoggin 

watershed, 18 in the Kennebec 

watershed, and 23 in the Penobscot 

watershed. Although Section 18 of the 

FPA authorizes the Services to prescribe 

upstream and downstream fishways, 16 

hydroelectric dams within the range of 

the GOM DPS in the Androscoggin 

watershed are impassible due to the lack 

of fishways, along with 15 dams in the 

Kennebec, and 12 dams in the 

Penobscot. Presently, 15 dams in the 

Androscoggin, 7 dams in the Kennebec, 

and 9 dams in the Penobscot are FERClicensed without any prescribed fish 

passage requirements. In these cases, 

reservations of FPA section 18 authority 

are often in place that could allow 

fishways to be prescribed by the 

Services. However, a substantial amount 

of mortality and passage inefficiency 

would still occur even with fishways, 

given that fish passage facilities are 

never 100 percent efficient. In addition, 

implementing any new fishway 

prescriptions could take several years 

because the FERC rehearing process 

must first run its course. 

Furthermore, fish passage is not the 

only threat to salmon caused by 

hydroelectric dams. The effects of 

habitat degradation and the altered 

environmental features that favor 

nonnative species pose an equal or even 

greater impediment to Atlantic salmon 

recovery via reduction in production 

capacity of freshwater rearing areas 

above dams. Sections 10(a) and 10(j) of 

the FPA could be used by the Services 

to recommend measures to minimize 

these effects, but these mechanisms are 

largely discretionary and often not 


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required by the FERC (Black et al., 

1998). Section 4(e) of the FPA requires 

FERC to give equal consideration to 

developmental and nondevelopmental 

values on Federal reservations. In other 

parts of the country, section 4(e) is often 

used by the Services to recommend 

fisheries enhancements; however, 

Federal lands where Section 4(e) could 

be applied are rare in Maine. 

For a hydropower project to be 

relicensed by the FERC, the State of 

Maine must first certify that continued 

operation of the project will comply 

with Maine’s water quality standards 

pursuant to Section 401 of the Clean 

Water Act. The Maine Department of 

Environmental Protection (MDEP) is the 

certifying agency for all hydropower 

project licensing and relicensings in the 

State of Maine, except for projects in 

unorganized territories subject to 

permitting by the Land Use Regulation 

Commission (LURC). Through the water 

quality certification process, the MDEP 

can require fish passage and habitat 

enhancements at FERC licensed 

hydroelectric projects. 

The vast majority of dams within the 

range of the GOM DPS do not require 

either a FERC license or MDEP water 

quality certificate. These nonjurisdictional dams are typically small, 

non-generating dams that were 

historically used for a variety of 

purposes, including flood control, 

storage, and process water (for 

industries such as blueberry harvesting). 

Practically all of these dams within the 

range of the GOM DPS do not have fish 

passage facilities and impact historical 

Atlantic salmon habitat. Many of these 

non-jurisdictional dams are no longer 

used for their intended purposes; 

however, many smaller dams maintain 

water levels in lakes and ponds. 

Although the MDEP can be petitioned 

by the public to set minimum flows and 

water levels at these dams, the MDEP 

has no direct statutory authority under 

Maine law to require fisheries related 

enhancements without public request or 

petition. Removal of non-hydropower 

generating dams in Maine may require 

a permit under the Maine Natural 

Resources Protection Act or the Maine 

Waterway Development and 

Conservation Act. Owners of nonhydroelectric dams can petition the 

MDEP to be released from ownership; 

however, the MDEP does not have the 

authority to require dam removal 

without the consent of the owner. 

We find that the threat from the 

inadequacy of existing regulatory 

mechanisms for dams is one of the three 

most influential stressors, in addition to 

threats from dams on freshwater salmon 

habitat (see discussion in Factor A 

above) and low marine survival (see 

discussion in Factor E below), 

negatively affecting the persistence of 

the GOM DPS. 

Water Withdrawals 

Maine has made substantial progress 

in regulating water withdrawal for 

agricultural use. Requests for water 

withdrawals for irrigation in 

unorganized towns in Maine require 

approval from the LURC. In approving 

any request for water withdrawals, the 

LURC must ensure that the action does 

not cause a surface water body to be 

unsuitable for the existing and 

designated uses of the water body or 

otherwise result in a violation of state or 

Federal water quality laws. The State of 

Maine recently approved a new rule 

(Chapter 587) that establishes river and 

stream flows and lake and pond water 

levels to protect natural aquatic life and 

other designated uses in Maine’s waters. 

These rules were passed in response to 

Maine statutory requirements of Title 

38, sections 470–E and 470–H, to 

‘‘establish water use standards for 

maintaining in-stream flows and GPA 

(Great Pond Class A) lake or pond water 

levels that are protective of aquatic life 

and other uses and that establish criteria 

for designating watersheds most at risk 

from cumulative water use.’’ The new 

standards are based on natural variation 

of flows and water levels, but allow 

variances if use will still be protective 

of applicable state and Federal water 

quality classifications. In addition, in 

2002 the State of Maine enacted 

legislation (LD 1488), referred to as the 

Sustainable Water Use Policy, that 

requires the MDEP to work with state, 

regional, and local agencies to develop 

water use policies that protect the 

environment from excessive drawdown 

of water sources, including rivers, lakes, 

streams, and ground water, during low 

flow periods, and requires major water 

users to report any use that is above 

threshold levels. The Commissioner of 

the MDEP is then required to submit a 

summary report on major water uses to 

the legislature on an annual basis. It is 

unclear how many, if any, 

municipalities have developed their 

own water use policies and while these 

policies consider general effects on the 

environment; no special consideration 

is required for the protection of Atlantic 

salmon or its habitat. 

We find the threat from the 

inadequacy of existing regulatory 

mechanisms for water withdrawals to 

the persistence of the GOM DPS to be 

secondary to the significant threat posed 

by dams (within Factor A above), the 

inadequacy of existing regulatory 

mechanisms for dams (within Factor D 

below), and low marine survival (within 

Factor E below). 

Water Quality 

The MDEP issues National Pollutant 

Discharge Elimination System (NPDES) 

permits for point source discharges from 

freshwater hatcheries, municipal 

facilities, and other industrial facilities. 

Currently, we review and comment only 

on NPDES permits issued to facilities 

that discharge within the range of the 

GOM DPS as listed in 2000 (i.e., 

excluding the upper Penobscot, upper 

Kennebec, and Androscoggin). 

Therefore, MDEP could potentially be 

permitting discharges that do not 

minimize adverse effects on salmon 

populations in the larger rivers in Maine 

(e.g., Penobscot). There is currently no 

mechanism that would require MDEP to 

seek the Services’ review and comments 

on NPDES permits issued for river 

systems where populations of Atlantic 

salmon are not currently listed under 

the ESA. An overboard discharge (OBD) 

is the discharge of wastewater from 

residential, commercial, and publicly 

owned facilities to Maine’s streams, 

rivers lakes, and the ocean. OBDs will 

continue to contribute to poor water 

quality throughout the State until the 

regulatory phase-out is complete. The 

regulatory framework for the phase-out 

of OBDs includes: the OBD Grant 

Removal Program that awards partial or 

full funding to facilities to purchase an 

OBD replacement system, with priority 

given to those OBDs that occur in high 

value shellfish areas; a prohibition on 

licensure for new OBDs unless the 

discharges were in continuous existence 

12 months preceding June 1, 1987; a 

requirement that the buyers of 

properties served by OBDs obtain a 

qualified evaluation of whether the OBD 

can be replaced with a non-discharging 

alternative system prior to the sale of 

the property; and the requirement of 

proof, prior to license renewal, that the 

OBD owner had an evaluation 

completed to determine whether a 

technologically feasible replacement 

exists for an existing OBD system. 

The NMFS Habitat Conservation 

Division has the opportunity to 

comment on draft NPDES permits with 

respect to potential effects on Essential 

Fish Habitat (EFH) under the provisions 

of the Magnuson-Stevens Fishery 

Conservation and Management Act. 

Because MDEP is not required to submit 

draft NPDES permits to NMFS’ Habitat 

Conservation Division before issuing the 

final permit, however NMFS’ Habitat 

Conservation Division does not 

consistently review and comment on 

NPDES permits and potential effects on 

Atlantic salmon EFH. 


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We find the threat from the 

inadequacy of existing regulatory 

mechanisms for water quality to the 

persistence of the GOM DPS to be 

secondary to the significant threat posed 

by dams (within Factor A above), the 

inadequacy of existing regulatory 

mechanisms for dams (within Factor D), 

and low marine survival (within Factor 

E below). 

In summary, our review of state and 

national regulatory mechanisms under 

Factor D demonstrates that although 

regulatory mechanisms are in place that 

should address direct and incidental 

take of Atlantic salmon and conserve 

salmon habitat, these regulatory 

mechanisms are insufficient or are not 

being implemented effectively to 

address the needs of salmon. We find 

that the threat from the inadequacy of 

existing regulatory mechanisms for 

dams is one of the three most significant 

stressors negatively affecting the 

persistence of the GOM DPS (in 

addition to the threat from dams on 

freshwater salmon habitat (within 

Factor A) and low marine survival 

(within Factor E below). The threat to 

the persistence of the GOM DPS as a 

result of the inadequacy of regulatory 

mechanisms to address direct and 

incidental take of salmon, water 

withdrawals and water quality is 

secondary to threats from dams (within 

Factor A above), the inadequacy of 

existing regulatory mechanisms for 

dams (within Factor D), and low marine 

survival (within Factor E below). 

E. Other Natural or Manmade Factors 

Affecting its Continued Existence 

Artificial Propagation 

Hatchery supplementation through 

captive propagation and maintenance of 

broodstocks can have positive and 

negative effects on the recovery and 

conservation of naturally spawning 

salmonid populations (see section 8.5.1 

of Fay et al. (2006) for a more 

comprehensive discussion). We 

assessed the effect of the conservation 

hatchery programs in terms of the 

positive or negative contribution of the 

program to recovery and conservation of 

naturally spawning Atlantic salmon in 

the GOM DPS. From the following 

assessment, we were able to determine 

how the current conservation hatchery 

program may influence the extinction 

risk projections of the PVA. Below we 

describe several ways in which hatchery 

supplementation reduces the risk of 

extinction of the GOM DPS and also 

note several potential risks of reliance 

on the conservation hatcheries. 

The USFWS operates two hatcheries 

in support of Atlantic salmon recovery 

efforts in Maine. Together, GLNFH and 

CBNFH raise and stock over 600,000 

smolts and 3.5 million fry annually. The 

primary focus of the conservation 

hatchery program for Atlantic salmon in 

the GOM DPS is to conserve the genetic 

legacy of Atlantic salmon in Maine until 

habitats can support natural, selfsustaining populations (Bartron et al., 

2006). As such, a great deal of 

consideration is given to broodstock 

collection, spawning protocols, genetic 

screening for aquaculture escapees, and 

other considerations as outlined by 

Bartron et al. (2006). The current 

program started in 1992, when a riverspecific broodstock and stocking 

program was implemented for rivers in 

Maine (Bartron et al., 2006). This 

strategy complies with NASCO 

guidelines for stock rebuilding 

(USASAC, 2005). The stocking program 

was initiated for two reasons: (1) Runs 

were declining in every river in Maine, 

and numerous studies indicated that 

restocking efforts are more successful 

when the donor population comes from 

the river to be stocked (Moring et al., 

1995); and (2) The numbers of returning 

adult Atlantic salmon to the rivers were 

very low, and artificial propagation had 

the potential to increase the number of 

juvenile fish in the river through fry and 

other early life stage stocking. Current 

practices of fry, parr, and smolt stocking 

as well as recovery of parr for hatchery 

rearing ensure that river-specific brood 

stock is available for future production. 

Atlantic salmon from the 

Narraguagus, Pleasant, Sheepscot, 

Machias, East Machias, and Dennys 

populations are maintained at CBNFH 

(Bartron et al., 2006) in East Orland, 

Maine. Additionally, adult Atlantic 

salmon are trapped at the Veazie Dam 

on the Penobscot River, transferred to 

CBNFH, and held until spawning in the 

fall of each year. Adult Atlantic salmon 

(with the exception of the Penobscot 

River) are maintained in one of six riverspecific broodstock rooms. Within each 

broodstock room, adults are maintained 

separately by capture year. Capture year 

is defined as the year parr were 

collected from a river. Each capture year 

may represent one to two year classes. 

In addition, fully captive lines, or 

‘‘pedigree lines,’’ can be and are 

implemented when the recovery of parr 

from the river environment is expected 

to be low to ensure future spawning 

stock is available (Bartron et al., 2006). 

Pedigree lines are established at the 

time of stocking, where a proportional 

representation of each family from a 

particular river-specific broodstock is 

retained in the hatchery while the rest 

of the fry are stocked into the river. If 

parr are recovered from the fry stocking 

for the pedigree lines, individuals are 

screened to determine origin and 

familial representation and are 

integrated into the pedigree line to 

maintain some component of natural 

selection. 

The goals of the captive propagation 

program include maintenance of the 

unique genetic characteristics of each 

river-specific broodstock and 

maintenance of genetic diversity within 

each broodstock (Bartron et al., 2006). 

Evaluation of estimates of genetic 

diversity within captive populations, 

such as average heterozygosity, 

relatedness, and allelic diversity and 

frequency are monitored within the 

hatchery broodstocks according to the 

CBNFH Broodstock Management Plan 

(Bartron et al., 2006). 

In summary, hatchery 

supplementation positively influences 

extinction risk projections (i.e., reduces 

the chances of extinction) for the GOM 

DPS through the following mechanisms: 

1. A rigorous genetic screening 

program reduces the risks of 

outbreeding depression that may 

otherwise result from aquaculture 

escapees or their progeny being 

integrated into the genome of the GOM 

DPS; 

2. The effective use of spawning 

protocols preserves genetic variation 

inherent in each of the genetically 

unique river populations maintained at 

CBNFH, ensures the long-term 

maintenance of genetic variation, and 

minimizes the potential for inbreeding 

or domestication selection and 

associated reductions in fitness in the 

wild; 

3. The use of captive broodstock from 

seven separate populations reduces the 

risks of random environmental and 

demographic events; 

4. The use of pedigree lines for those 

populations most at risk reduces the 

chance of catastrophic loss of an entire 

population; 

5. Stocking of juveniles into rivers 

significantly reduces the risks of 

catastrophic loss at CBNFH. That is, if 

a catastrophic loss of one or more 

captive broodstock lines occurred at 

CBNFH, a component of the genetic 

variability lost could be recovered by 

collecting parr for broodstock; 

6. Stocking of large numbers of smolts 

(Penobscot and Narraguagus) enhances 

adult returns, thus reducing 

demographic risks; 

7. Stocking large numbers of smolts 

(Penobscot and Narraguagus) reduces 

the risks of catastrophic loss because at 

least one cohort is always at sea and 

could be collected as broodstock in case 

of a catastrophic event in freshwater 


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(e.g., a large contaminant spill) or in a 

hatchery (e.g., disease outbreak). 

In evaluating the overall effect of 

hatchery supplementation to the 

extinction risk analysis presented by 

Fay et al. (2006), the potential negative 

effects of hatchery supplementation 

must also be carefully considered. The 

potential negative effects of hatchery 

supplementation include competition, 

artificial selection, inbreeding 

depression, and outbreeding depression. 

Competition between hatchery-reared 

and wild Atlantic salmon is not well 

researched. Competition could occur 

between wild and hatchery juveniles 

(i.e., competition for food and space) or 

between wild and hatchery adults (i.e., 

competition for redd sites). To minimize 

competitive interactions that may occur 

between juveniles, fry are stocked at 

least 50 m from any known redd. At this 

time, competition for redd sites between 

wild and hatchery-reared salmon 

appears to be minimal, because there are 

substantial amounts of accessible yet 

unused spawning habitat throughout the 

range of the GOM DPS given the low 

abundance of returning adults in the 

GOM DPS. 

Over the long term, artificial selection 

for the hatchery environment is 

considered a threat to survival. As 

pedigree lines become established, 

natural selection from fry to parr stage 

may no longer be incorporated into the 

life cycle if parr are not recovered in 

numbers sufficient for broodstock and 

spawning requirements. Over time, this 

process could result in a population that 

is well adapted to the artificial 

environment and poorly adapted to the 

natural environment; this form of 

artificial selection is widely know as 

domestication selection (Hey et al., 

2005). 

Both inbreeding depression and 

outbreeding depression are widely 

accepted as potential risks in artificial 

propagation programs. As population 

sizes decrease, and the potential for 

mating related individuals increase, the 

threat of inbreeding in a population also 

increases. Inbreeding may also decrease 

overall fitness of a population 

(Spielman et al., 2004; Lynch and 

O’Hely, 2001), reducing the long-term 

population viability and therefore 

inhibiting the success of restoration and 

recovery efforts. Of similar concern is 

the threat of outbreeding depression, 

and decreased fitness resulting from the 

mating of individuals from significantly 

genetically different populations. 

Although actions are implemented to 

minimize these risks (see Bartron et al., 

2006), many risks cannot be fully 

removed from the captive propagation 

program, including potential risks that 

are currently unknown or cannot be 

managed against. 

The conservation hatchery program 

for the GOM DPS Atlantic salmon in 

Maine is currently limited by capacity at 

CBNFH and GLNFH. Incorporating 

river-specific broodstocks for additional 

populations is currently limited by 

space and biosecurity constraints. 

Location of the six currently maintained 

river-specific broodstocks at a single 

facility (CBNFH) is thus considered a 

risk due to the possibility of a 

catastrophic event (such as disease, loss 

of electricity, or loss of funding for 

hatcheries), which could result in the 

loss of one or all of the river-specific 

broodstocks. 

The positive and negative effects of 

hatchery supplementation have been 

reviewed by the National Research 

Council (NRC, 2004), Fay et al. (2006), 

and the Sustainable Ecosystems 

Institute (SEI, 2007). The review by SEI 

in 2007 was rigorous, specifically 

focusing on current hatchery operations, 

protocols, and practices and whether 

these practices are being implemented 

in the most scientifically sound manner 

to support recovery of Atlantic salmon 

in the GOM DPS. The overall 

recommendation from SEI with respect 

to the current river-specific program 

was that the river-specific integrity of 

the existing salmon populations should 

be retained, and there is no reason to 

depart from the river-specific nature of 

recovery and enhancement strategies 

without further extensive research on 

the fitness consequences of any 

potential alternative (SEI, 2007). While 

SEI was supportive overall of the 

current river-specific genetic 

maintenance program, it questioned the 

role the hatcheries play in increasing 

self-sustaining populations in the wild, 

and thus the contribution of the 

program to the recovery of the GOM 

DPS of Atlantic salmon. In short, SEI 

concluded that insufficient information 

is available to conclude whether 

supplementation significantly 

contributes to recovery objectives, aside 

from preservation of genetic diversity. 

After considering both the positive 

and negative effects of hatchery 

supplementation, we conclude that the 

overall effect of the hatchery programs 

designed to conserve the genetic legacy 

of Atlantic salmon in Maine and lead to 

recovery is to reduce the extinction risk 

of the GOM DPS. Currently the GOM 

DPS is largely sustained by artificial 

propagation, therefore, artificial 

propagation through conservation 

hatcheries is essential for the 

persistence of the GOM DPS despite the 

risks from artificial propagation. The 

risks of competition between hatcheryreared and naturally-reared salmon 

appear to be minimal at this time, as do 

the risks of domestication selection, 

inbreeding depression, and outbreeding 

depression (Fay et al., 2006), although 

the historical loss of diversity cannot be 

dismissed (Lage and Kornfield, 2006). 

Further, we consider the hatcherydependent populations that are 

maintained at CBNFH and GLNFH 

essential for recovery of the GOM DPS 

because the hatchery populations 

contain a high proportion of the genetic 

diversity remaining in the GOM DPS. 

However, we believe the current 

conservation hatchery program must be 

improved to further recovery of the 

GOM DPS. We recognize that SEI (2007) 

questioned the role the hatcheries play 

in increasing self-sustaining populations 

in the wild, and thus the contribution of 

the program to the recovery of the GOM 

DPS. In particular, the program should 

be expanded to include more 

assessment and evaluation of hatchery 

fish in the wild to understand how 

hatchery-origin fish can effectively 

contribute to increasing wild 

populations. Hatchery supplementation 

of the GOM DPS is currently important 

in maintaining genetic diversity levels. 

However, even with hatchery 

supplementation, the GOM DPS remains 

at extremely low levels (less than 150 

naturally-reared spawning adults in the 

GOM DPS in 2006). 

Aquaculture 

Atlantic salmon that escape from 

farms and commercial hatcheries pose a 

threat to native Atlantic salmon 

populations (Naylor et al., 2005) 

because captive-reared fish are 

selectively bred to promote behavioral 

and physiological attributes desirable in 

captivity (Hindar et al., 1991; Utter et 

al., 1993; Hard et al., 2000); for further 

discussion of the threat of aquaculture 

see section 8.5.2 in Fay et al. (2006)). 

Experimental tests of genetic divergence 

between farmed and wild salmon 

indicate that farming generates rapid 

genetic change as a result of both 

intentional and unintentional selection 

in culture and that those changes alter 

important fitness-related traits 

(McGinnity et al., 1997; Gross, 1998). 

Consequently, aquaculture fish are often 

less fit in the wild than naturally 

produced salmon (Fleming et al., 2000). 

Annual invasions of escaped adult 

aquaculture salmon have the potential 

to disrupt local adaptations and reduce 

genetic diversity of wild populations 

(Fleming et al., 2000). Bursts of 

immigration also disrupt genetic 

differentiation among wild Atlantic 

salmon stocks, especially when wild 

populations are small (Mork, 1991). 


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Natural selection may be able to purge 

wild populations of maladaptive traits 

but may be less able to if the intrusions 

occur year after year. Under this 

scenario, population fitness is likely to 

decrease as the selection from the 

artificial culture operation overrides 

wild selection (Hindar et al., 1991; 

Fleming and Einum, 1997), a process 

called outbreeding depression. The 

threat of outbreeding depression is 

likely to be greater in North America 

where aquaculture salmon have been 

based, in part, on European Landcatch 

strain. To minimize these risks, the use 

of non-North American strains of 

salmon has been phased out in the 

United States. 

In addition to genetic effects, escaped 

farmed salmon can disrupt redds of 

wild salmon, compete with wild salmon 

for food and habitat, transfer disease or 

parasites to wild salmon, and degrade 

benthic habitat (Windsor and 

Hutchinson, 1990; Saunders, 1991; 

Youngson et al., 1993; Webb et al., 1993; 

Clifford et al., 1997). Farmed salmon 

have been documented to spawn 

successfully, but not always at the same 

time as wild salmon (Lura and Saegrov, 

1991; Jonsson et al., 1991; Webb et al., 

1991; Fleming et al., 1996). Late 

spawning aquaculture fish could limit 

wild spawning success through redd 

superimposition. There has also been 

recent concern over potential 

interactions when wild adult salmon 

migrate past closely spaced cages, 

creating the potential for behavioral 

interactions, disease transfer, or 

interactions with predators (Lura and 

Saegrov, 1991; Crozier, 1993; Skaala and 

Hindar, 1997; Carr et al., 1997; DFO, 

1999). In Canada, the survival of wild 

postsmolts moving from 

Passamaquoddy Bay to the Bay of 

Fundy was inversely related to the 

density of aquaculture cages (DFO, 

1999). 

The development and expansion of 

Atlantic salmon aquaculture has 

occurred in the North Atlantic since the 

early 1970s. Production of farmed 

Atlantic salmon in 2003 was estimated 

at over 1.1 million tons (1.1 metric tons 

(mt)) worldwide, 761,752 tons (773,976 

mt) in the North Atlantic, and 6,435 

tons (6,538 mt) in Maine (ICES, 2004). 

The Maine Atlantic salmon aquaculture 

industry is concentrated in Cobscook 

Bay near Eastport, Maine. The industry 

in Canada, just across the border, is 

approximately twice the size of the 

Maine industry. Five freshwater 

commercial hatcheries in the United 

States have provided smolts to the sea 

cages and produce up to four million 

smolts per year. 

Three primary broodstock lines have 

been used for farm production. The 

lines include fish from the Penobscot 

River, St. John River, and historically an 

industry strain from Scotland. The 

Scottish strain was imported into the 

United States in the early 1990s and is 

composed primarily of Norwegian 

strains, frequently referred to as 

Landcatch. In recent years, milt of 

Norwegian origin has been imported by 

the industry from Iceland (Baum, 1998). 

However, placement of reproductively 

viable non-North American origin 

Atlantic salmon into marine cages in the 

United States has been eliminated. 

Escaped farmed salmon are known to 

enter Maine rivers. For example, at least 

17 percent (14 of 83 fish) of the rod 

catch in the East Machias River were 

captive-reared adults in 1990. In 

addition to the frequency and 

magnitude of escape events that drive 

annual variability, returns of captivereared adults to Maine rivers are 

influenced by the amount of production 

and proximity of rearing sites in 

adjacent bays. About 60 percent of 

commercial salmon production in 

Maine occurs at sites on Cobscook and 

Passamaquoddy Bays, into which the 

Dennys and St. Croix (not a part of the 

GOM DPS) Rivers flow; 35 percent on 

Machias Bay and the estuary of the 

Little River, within seven miles of the 

Machias and East Machias Rivers; and 

the remainder on the estuaries of the 

Pleasant and Narraguagus Rivers, or 

adjacent to Blue Hill Bay. The 

percentage of captive-reared fish in 

adult returns is highest in the St. Croix 

(not a part of the GOM DPS) and Dennys 

Rivers and lowest in the Penobscot 

River (less than 0.01 percent in the years 

1994 to 2001), with the Narraguagus 

runs having low and sporadic 

proportions of captive-reared salmon. 

A large escape event also occurred in 

2005 when four marine salmon 

aquaculture sites in Western New 

Brunswick, Canada, were vandalized 

from early May through November 2005, 

resulting in approximately 136,000 

escaped farmed salmon. Most escapees 

were unmarked 1SW salmon of similar 

size (2–5 kg). Escaped aquacultureorigin salmon from these vandalism 

events entered the Dennys River and 

possibly other Eastern Maine rivers in 

2005. The Services and MDMR are 

cooperatively implementing a program 

to minimize genetic and ecological risks 

from this escape (Bean et al., 2006). 

Aquaculture escapees and resultant 

interactions with native stocks are 

expected to continue to occur within the 

range of the GOM DPS given the 

continued operation of farms. While 

recent containment protocols have 

greatly decreased the incidence of losses 

from hatcheries and pens, the risk of 

large escapes occurring is still 

significant. Escaped farmed fish are of 

great concern in Maine because, even at 

low numbers, they can represent a 

substantial portion of the returns to 

some rivers. Wild populations at low 

levels are particularly vulnerable to 

genetic intrusion or other disturbance 

caused by escapees (Hutchings, 1991; 

DFO, 1999). 

Despite the concerns with aquaculture 

described above, recent advances in 

containment and marking of 

aquaculture fish limit the negative 

impacts of aquaculture fish with the 

GOM DPS. Permit conditions required 

by the Army Corps of Engineers (ACOE) 

and MDEP require genetic screening to 

ensure that only North American strain 

salmon are used in commercial 

aquaculture, require marking to 

facilitate tracing fish back to the source 

and cause of the escape, containment 

management plans and audits, and 

rigorous disease screening. Given these 

conditions, within Factor E we find the 

threat from aquaculture to the 

persistence of the GOM DPS to be 

secondary to the significant threat posed 

by low marine survival, described 

below. If these measures were no longer 

in place or were less protective, the 

threat from aquaculture would be much 

greater. 

Low Marine Survival 

Large changes in marine survival are 

known to have occurred recently. 

Marine survival rates since 1991 

continue to be low for U.S. stocks of 

Atlantic salmon, (see section 8.5.3 of 

Fay et al. (2006)). Natural mortality in 

the marine environment can be 

attributed to four general sources: 

predation, starvation, disease/parasites, 

and abiotic factors. While our 

understanding of the marine ecology of 

Atlantic salmon has increased 

substantially in the past decade, the 

factors responsible for reduced marine 

survival remain unclear. In general, 

return rates for Atlantic salmon across 

North America have declined over the 

last 30 years (ICES 1998). Reported 

Atlantic salmon marine survival rates 

prior to the 1990s ranged from zero to 

twenty percent (Bley and Moring, 1988). 

For the period 2001 to 2005, 2SW return 

rates for wild Narraguagus River smolts 

ranged from 0.2 to 1.2 percent. Return 

rates for this same period for 2SW 

hatchery Penobscot River smolts ranged 

from 0.06 to 0.17 percent (ICES, 2006). 

Chaput et al. (2005) reported on the 

possibility of a phase (or regime) shift of 

productivity for Atlantic salmon in the 

Northwest Atlantic. Strong evidence is 


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presented to support a decrease in the 

recruit-per-spawner relationship for 

North American Atlantic salmon 

populations that likely occurred over 

several years in the late 1980s through 

early 1990s. The concept of phase shift 

has previously been documented and 

discussed for Pacific salmon 

populations (Beamish et al., 1999). 

Chaput et al. (2005) did not speculate on 

the causes of this shift. Friedland et al. 

(2005) summarized numerous studies 

that suggest that climate mediates 

marine survival for Atlantic salmon as 

well as other fish species. 

In summary, marine survival is 

critical to shaping recruitment patterns 

in Atlantic salmon and causing the 

subsequent low abundance of adult 

salmon; however, the mechanisms of 

the observed persistent decline in 

marine survival remain unknown. We 

find that low marine survival is a 

significant threat to the persistence of 

the GOM DPS. We conclude that low 

marine survival, dams and their interrelated effects (described in Factor A, 

above), and the inadequacy of existing 

regulatory mechanisms for dams (Factor 

D, above) are the most influential 

stressors negatively affecting the 

persistence of the GOM DPS. 

Depleted Diadromous Communities 

The ecological setting in which Maine 

Atlantic salmon evolved is considerably 

different than what exists today. 

Ecological changes that have occurred 

over the last 200 years are ubiquitous 

and span a wide array of spatial and 

temporal scales. Of particular concern 

for Atlantic salmon recovery efforts 

within the range of the GOM DPS is the 

dramatic decline observed in the 

diadromous fish community. At historic 

abundance levels, Fay et al. (2006) and 

Saunders et al. (2006) hypothesize that 

several of the co-evolved diadromous 

fishes may have provided substantial 

benefits to Atlantic salmon through at 

least four mechanisms: serving as an 

alternative prey source for salmon 

predators; serving as prey for salmon 

directly; depositing marine-derived 

nutrients in freshwater; and increasing 

substrate diversity of rivers. Following 

is a brief description of each 

mechanism. 

Fay et al. (2006) and Saunders et al. 

(2006) hypothesized that the historically 

large populations of clupeids (i.e., 

members of the family Clupeidae, such 

as alewives, blueback herring, and 

American shad) likely provided a robust 

alternative forage resource (or prey 

buffer) for opportunistic native 

predators of salmon during a variety of 

events in the salmon’s life history. First, 

pre-spawn adult alewives likely served 

as a prey buffer for migrating Atlantic 

salmon smolts. Evidence for this 

relationship includes significant spatial 

and temporal overlap of migrations, 

similar body size, numbers of alewives 

that exceeded salmon smolt populations 

by several orders of magnitude (Smith, 

1898; Collette and Klein-MacPhee, 

2002), and a higher caloric content per 

individual (Schulze, 1996); alewives 

were thus likely a substantial alternative 

prey resource (i.e., prey buffer) that 

protected salmon smolts from native 

predators such as cormorants, otters, 

ospreys, and bald eagles within 

sympatric migratory corridors (Mather, 

1998; USASAC, 2004). Second, adult 

American shad likely provided a similar 

prey buffer to potential predation on 

Atlantic salmon adults by otters and 

seals. Pre-spawn adult shad would enter 

these same rivers and begin their 

upstream spawning migration at 

approximately the same time as adult 

salmon. Historically, shad runs were 

considerably larger than salmon runs 

(Atkins and Foster, 1869; Stevenson, 

1898). Thus, native predators of 

medium to large size fish in the 

estuarine and lower river zones could 

have preyed on these 1.5 to 2.5 kg size 

fish readily. Third, juvenile shad and 

blueback herring may have represented 

a substantial prey buffer from potential 

predation on Atlantic salmon fry and 

parr by native opportunistic predators 

such as mergansers, herons, mink, and 

fallfish. Large populations of juvenile 

shad (and blueback herring, with similar 

life history and habitat preferences to 

shad) would have occupied main stem 

and larger tributary river reaches 

through much of the summer and early 

fall. Juvenile shad and herring would 

ultimately emigrate to the ocean, along 

with juvenile alewives from adjacent 

lacustrine habitats, in the late summer 

and fall. Recognizing that the range and 

migratory corridors of these juvenile 

clupeids would not be precisely 

sympatric with juvenile salmon habitat, 

there nonetheless would have been a 

substantial spatial overlap amongst the 

habitats and populations of these 

various juvenile fish stocks. Even in 

reaches where sympatric occupation by 

juvenile salmon and juvenile clupeids 

may have been low or absent, factors 

such as predator mobility and instinct 

driven energetic efficiency (i.e., optimal 

foraging theory) need to be considered 

since the opportunity for prey switching 

would have been much greater than 

today, and the opportunity for prey 

switching may produce stable predatorprey systems with coexistence of both 

prey and predator populations (Krivan, 

1996). 

At historical abundance levels, other 

diadromous species also represented 

significant supplemental foraging 

resources for salmon in sympatric 

habitats. In particular, anadromous 

rainbow smelt are known to be a favored 

spring prey item of Atlantic salmon 

kelts (a life stage after Atlantic salmon 

spawn; Cunjak et al., 1998). A 1995 

radio tag study found that Miramichi 

River (New Brunswick, Canada) kelts 

showed a net upstream movement 

shortly after ice break-up (KomadinaDouthwright et al., 1997). This 

movement was concurrent with the 

onset of upstream migrations of rainbow 

smelt (Komadina-Douthwright et al., 

1997). In addition, Moore et al. (1995) 

suggested that the general availability of 

forage fishes shortly after ice break-up 

in the Miramichi could be critical to the 

rejuvenation and ultimate survival of 

kelts as they prepared to return to sea. 

Kelts surviving to become repeat 

spawners are especially important due 

to higher fecundity (Baum, 1997; NRC, 

2004). The historical availability of 

anadromous rainbow smelt as potential 

kelt forage in lower river zones may 

have been important in sustaining the 

viability of this salmon life stage. 

Conversely, the broad declines in 

rainbow smelt populations may be 

partially responsible for the declining 

occurrence of repeat spawners in 

Maine’s salmon rivers. 

Historically, the upstream migrations 

of large populations of adult clupeids, 

sea lamprey and salmon themselves, 

provided a conduit for the import and 

deposition of biomass and nutrients of 

marine origin into freshwater 

environments. Mechanisms of direct 

deposition included discharge of urea, 

discharge of gametes on the spawning 

grounds, and deposition of post-spawn 

adult carcasses (Durbin et al., 1979). 

Migrations and other movements of 

mobile predators and scavengers of 

adult carcasses likely resulted in further 

distribution of imported nutrients 

throughout the freshwater ecosystem. 

Conversely, juvenile outmigrants of 

these sea-run species represented a 

massive annual outflux of forage 

resources for Gulf of Maine predators, 

while also completing the cycle of 

importing base nutrients back to the 

ocean environment. These types of 

diffuse mutualism are only recently 

being recognized (Hay et al., 2004). Sea 

lampreys also likely played a role in 

nutrient cycling. Lampreys prefer 

spawning habitat that is very similar 

(location and physical characteristics) to 

that used by spawning Atlantic salmon 

(Kircheis, 2004). Adult lampreys spawn 

in late spring, range in weight from 1 to 


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2 kg, and experience 100 percent postspawning mortality on spawning 

grounds (semelparous). This results in 

the deposition of marine-origin 

nutrients at about the same time that 

salmon fry would be emerging from 

redds and beginning to occupy adjacent 

juvenile production habitats. These 

nutrients would likely have enhanced 

the primary production capability of 

these habitats for weeks or even months 

after initial deposition, and would 

gradually be transferred throughout the 

trophic structure of the ecosystem, 

including those components most 

important to juvenile salmon (e.g., 

macroinvertebrate production). 

Sea lampreys likely provide an 

additional benefit to Atlantic salmon 

spawning activity in sympatric reaches. 

In constructing their nests, lamprey 

carry stones from other locations and 

deposit them centrally in a loose pile 

within riffle habitat and further utilize 

body scouring to clean silt off stones 

already at the site (Kircheis, 2004). 

Ultimately, a pile of silt-free stones as 

deep as 25 cm and as long as a meter 

is formed (Leim and Scott, 1966; Scott 

and Scott, 1988), into which the 

lamprey deposit their gametes. The 

stones preferred by lampreys are 

generally in the same size range as those 

preferred by spawning Atlantic salmon. 

Thus, lamprey nests can be attractive 

spawning sites for Atlantic salmon 

(Kircheis, 2004). Kircheis (2004) also 

notes the lamprey’s silt-cleaning 

activities during nest construction that 

may improve the ‘‘quality’’ of the 

surrounding environment with respect 

to potential diversity and abundance of 

macroinvertebrates, a primary food item 

of juvenile salmon. 

Thus, depleted diadromous fish 

communities have likely played an 

important role in the continued declines 

of the GOM DPS of Atlantic salmon. 

Conversely, if diadromous populations 

can be restored, the ecological functions 

those species confer may 

simultaneously be restored. In 

summary, within Factor E, we find the 

threat from depleted diadromous fish 

communities to the persistence of the 

GOM DPS to be secondary to the 

significant threat posed by low marine 

survival, described above. 

Competition 

Prior to 1800, the resident riverine 

fish communities in Maine were 

relatively simple, consisting of brook 

trout, cusk, white sucker, and a number 

of minnow species. Today, Atlantic 

salmon co-exist with a diverse array of 

nonnative resident fishes, including 

brown trout, largemouth bass, 

smallmouth bass, and northern pike 

(MDIFW, 2002). The range expansion of 

nonnative fishes is important, given 

evidence that niche shifts may follow 

the addition or removal of other 

competing species (Fausch, 1998). For 

example, in Newfoundland, Canada, 

where fish communities are simple, 

Atlantic salmon inhabit pools and lakes 

that are generally considered atypical 

habitats in systems where there are 

more complex fish communities 

(Gibson, 1993). Use of lacustrine (or 

lake) habitat, in particular, can increase 

smolt production (Matthews et al., 

1997). Conversely, if salmon are 

excluded from these habitats through 

competitive interactions, smolt 

production may suffer (Ryan, 1993). 

Even if salmon are not completely 

excluded from a given habitat type, they 

may select different, presumably suboptimal, habitats in the presence of 

certain competitors (Fausch, 1998). 

Thus, competitive interactions may 

limit Atlantic salmon production 

through niche constriction (Hearn, 

1987). The continued range expansion 

of nonnative species (e.g., smallmouth 

bass, brown trout, and rainbow trout) is 

of particular concern since these species 

often require similar resources as 

salmon and are therefore expected to be 

competitors for food and space (for a 

comprehensive discussion of the effects 

of competition on Atlantic salmon see 

section 8.3.3 of Fay et al. (2006)). In 

summary, within Factor E, we find the 

threat from competition to the 

persistence of the GOM DPS to be 

secondary to the significant threat posed 

by low marine survival, described 

above. 

Climate Change 

Global climate change may also affect 

thermal regimes within the range of the 

GOM DPS (see section 8.1.4 of Fay et al. 

(2006)). Within the range of the GOM 

DPS, spring runoff has become earlier, 

water content in snow pack for March 

and April has decreased, and the 

duration of river ice has become shorter 

(Dudley and Hodgkins, 2002). For 

Atlantic salmon specifically, Juanes et 

al. (2004) suggest that observed changes 

in adult run timing may be a response 

to global climate change. While some 

physiological changes at the individual 

level are quite predictable when 

changes in temperature are known, the 

interactions between individuals, 

populations, and species are impossible 

to predict at this time given we do not 

understand how or to what degree 

climate change may or may not affect 

the freshwater and marine environment 

of the GOM DPS. At this time we do not 

have enough information to determine 

whether climate change is a threat to the 

persistence of the GOM DPS. 

In summary, of the threats described 

under Factor E, we find that low marine 

survival is a significant threat to the 

persistence of the GOM DPS given that 

marine survival is a vital component of 

Atlantic salmon demographics. 

Aquaculture, depleted diadromous 

communities, and competition 

(particularly with nonnative fish) are 

secondary threats to the continued 

existence of the GOM DPS; we do not 

have enough information at this time to 

evaluate how climate change may or 

may not affect the persistence of the 

GOM DPS. Artificial propagation poses 

risks to natural populations, as 

described in this proposed rule. 

However, given the low numbers of 

naturally-reared spawning adults in the 

GOM DPS, a carefully managed 

conservation hatchery program is 

essential to sustaining the GOM DPS. 

Efforts Being Made to Protect the 

Species 

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

the Secretary of Commerce to make 

listing determinations solely on the 

basis of the best scientific and 

commercial data available after taking 

into account efforts being made to 

protect a species. Therefore, in making 

a listing determination, we first assess a 

species’ level of extinction risk and 

identify factors that have led to its 

decline. We then assess existing efforts 

being made to protect the species to 

determine if those measures ameliorate 

the risks. 

In judging the efficacy of existing 

protective efforts, we rely on the joint 

NMFS-U.S. Fish and Wildlife Service 

(FWS) ‘‘Policy for Evaluation of 

Conservation Efforts When Making 

Listing Decisions’’ (‘‘PECE;’’ 68 FR 

15100; March 28, 2003). PECE provides 

direction for the consideration of 

protective efforts identified in 

conservation agreements, conservation 

plans, management plans, or similar 

documents (developed by Federal 

agencies, state and local governments, 

Tribal governments, businesses, 

organizations, and individuals) that 

have not yet been implemented, or have 

been implemented but have not yet 

demonstrated effectiveness. The policy 

articulates several criteria for evaluating 

the certainty of implementation and 

effectiveness of protective efforts to aid 

in determining whether a species 

should be listed as threatened or 

endangered. Evaluations of the certainty 

an effort will be implemented include 

whether: the necessary resources (e.g., 

funding and staffing) are available; the 

requisite agreements have been 


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formalized such that the necessary 

authority and regulatory mechanisms 

are in place; there is a schedule for 

completion and evaluation of the stated 

objectives; and (for voluntary efforts) the 

necessary incentives are in place to 

ensure adequate participation. The 

evaluation of the certainty of an effort’s 

effectiveness is made on the basis of 

whether the effort or plan: establishes 

specific conservation objectives; 

identifies the necessary steps to reduce 

threats or factors for decline; includes 

quantifiable performance measures for 

the monitoring of compliance and 

effectiveness; incorporates the 

principles of adaptive management; and 

is likely to improve the species’ viability 

at the time of the listing determination. 

PECE also notes several important 

caveats. Satisfaction of the above 

mentioned criteria for implementation 

and effectiveness establishes a given 

protective effort as a candidate for 

consideration, but does not mean that 

an effort will ultimately change the risk 

assessment. The policy stresses that just 

as listing determinations must be based 

on the viability of the species at the time 

of review, so they must be based on the 

state of protective efforts at the time of 

the listing determination. PECE does not 

provide explicit guidance on how 

protective efforts affecting only a 

portion of a species’ range may affect a 

listing determination, other than to say 

that such efforts will be evaluated in the 

context of other efforts being made and 

the species’ overall viability. There are 

circumstances where threats are so 

imminent, widespread, and/or complex 

that it may be impossible for any 

agreement or plan to include sufficient 

efforts to result in a determination that 

listing is not warranted. 

In this section, we evaluate the 

Penobscot River Restoration Project 

(PRRP), perhaps the most significant of 

recent fish passage agreements, 

pursuant to PECE. The PRRP is the 

result of many years of negotiations 

between Pennsylvania Power and Light 

(PPL), U.S. Department of the Interior 

(i.e., USFWS, Bureau of Indian Affairs, 

National Park Service), Penobscot 

Indian Nation, the State of Maine (i.e., 

Maine State Planning Office, Maine 

Department of Inland Fisheries and 

Wildlife, and Maine Department of 

Marine Resources (MDMR)), and several 

non-governmental organizations (NGOs; 

Atlantic Salmon Federation, American 

Rivers, Trout Unlimited, and Natural 

Resources Council of Maine, among 

others). If implemented, the PRRP 

would lead to the removal of the two 

lowermost mainstem dams on the 

Penobscot River (Veazie and Great 

Works) and would decommission the 

Howland Dam and construct a naturelike fishway around it (dams with 

varying levels of fish passage would still 

exist upstream of these sites). This 

initiative would improve habitat 

accessibility for all diadromous species. 

There is a significant effort on behalf of 

the Parties and other Federal and nonFederal bodies to secure funds for the 

purchase, decommissioning, and 

removal of the dams. However, the 

certainty of funding and other necessary 

actions is not known at this time. We 

strongly support the PRRP; however, at 

this time it is not possible to state with 

certainty that this project will be fully 

implemented. This protective effort 

does not as yet provide sufficient 

certainty of implementation and 

effectiveness to counter the extinction 

risk assessment conclusion that the 

species is in danger of extinction 

throughout its range. 

Finding 

Regarding the petition to list the 

Kennebec population of Atlantic 

salmon, we find that the Kennebec River 

population is a part of the GOM DPS, 

based primarily on genetics, as 

described in this proposed rule. We 

have carefully considered the best 

scientific and commercial data available 

regarding the past, present and future 

threats faced by the GOM DPS of the 

Atlantic salmon. We find that listing the 

GOM DPS of Atlantic salmon, which 

includes the Kennebec River 

population, as endangered is warranted 

for the reasons described below. 

The proposed GOM DPS is comprised 

of Atlantic salmon in larger river 

systems including the Androscoggin, 

Kennebec and Penobscot Rivers as well 

as the smaller coastal rivers 

(Narraguagus, Machias, Sheepscot, etc.) 

that were included in the DPS as listed 

in 2000 (65 FR 69459, November 17, 

2000). There are extremely few 

naturally-reared spawning adult salmon 

present in the GOM DPS (117 in 2006). 

In 2006, 1,044 sea-run salmon were 

captured in the Penobscot River, 

representing approximately only ten 

percent of the CSE goals for the 

Penobscot River; however, the vast 

majority of these adult returns were 

stocked as smolts. With the addition of 

Atlantic salmon in the Penobscot and 

other large rivers to the GOM DPS, the 

demographic security is somewhat 

increased because populations that are 

geographically widespread are less 

likely to experience spatially correlated 

catastrophes. However, the numbers of 

naturally-reared spawning adults within 

the GOM DPS as currently proposed is 

still quite low and the majority of 

returning adults (whether naturallyreared or smolt-stocked) are found in 

the Penobscot River, despite the 

addition of other large rivers to the DPS. 

In 2006, only 15 adults returned to the 

Kennebec and 6 returned to the 

Androscoggin. The PVA generally 

shows that the GOM DPS is likely to 

continue to decline in terms of adult 

abundance and projections show that 

the GOM DPS is trending towards 

extinction. 

The GOM DPS is sustained by a 

carefully-managed hatchery 

supplementation program. Hatchery 

supplementation is crucial to the 

continued existence of the GOM DPS, 

although we recognize that reliance on 

artificial propagation carries risks that 

cannot be completely avoided despite 

managers’ best efforts. We have 

carefully examined both the positive 

and negative effects of hatchery 

supplementation. We have concluded 

that current hatchery supplementation 

practices reduce the risk of extinction of 

the GOM DPS. While we recognize that 

the conservation hatchery programs 

make a significant contribution to 

reducing the near term risk of 

extinction, they must continue to be 

improved. Although hatchery 

supplementation of the GOM DPS is 

currently important in maintaining 

genetic diversity levels, at this time, 

these programs have not been successful 

at recovering or maintaining wild, selfsustaining populations of Atlantic 

salmon. There is also the risk of 

catastrophic loss at either or both 

conservation hatchery facilities, despite 

managers’ best efforts to reduce these 

risks. 

Further, at the present time, there is 

no evidence to suggest that marine 

survival will increase in the near future. 

In short, without both conservation 

hatcheries continuing to operate and an 

increase in marine survival, the risk of 

extinction is quite high and would be 

even higher if and when broodstock 

goals for smolt production could not be 

met. 

As described above, the demographic 

effects of the currently low marine 

survival on the GOM DPS are severe, 

dams limit the viability of salmon 

populations through numerous and 

sometimes synergistic ways (e.g., 

entrainment, water quality effects, fish 

community effects, among others), and 

the existing regulatory mechanisms for 

dams are inadequate. As a result, we 

find that Factor E (in particular) low 

marine survival, Factor A (in particular, 

dams), and Factor D (in particular, the 

inadequacy of existing regulatory 

mechanisms for dams) are the three 

most influential factors negatively 


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affecting the persistence of the GOM 

DPS. 

We find that threats from reduced 

habitat complexity, reduced habitat 

connectivity, and poor water quality 

within Factor A; overutilization, 

disease, and predation (within Factor 

B), inadequacy of existing regulatory 

mechanisms for water withdrawals and 

water quality within Factor D; and 

aquaculture, depleted diadromous fish 

communities, and competition within 

Factor E to be secondary threats 

compared to dams (within Factor A), 

low marine survival (within Factor E) 

and the inadequacy of existing 

regulatory mechanisms for dams (within 

Factor D). At this time, we do not have 

enough information to determine 

whether climate change (within Factor 

E) is a threat to the persistence of the 

GOM DPS. Artificial propagation 

through conservation hatcheries (within 

Factor E) is vital to sustaining the GOM 

DPS at this time despite the risks from 

artificial propagation. As a result, we 

propose to list the GOM DPS of Atlantic 

salmon as endangered. 

As discussed under Efforts Being 

Made to Protect the Species, we cannot 

rely on the PRRP to offset the threats to 

the GOM DPS from dams in this 

decision regarding listing the GOM DPS; 

we also recognize that implementation 

of the PRRP would not alleviate the 

effects of dams in place on any of the 

other rivers within the GOM DPS. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the ESA include 

recovery actions, requirements for 

Federal agencies to avoid jeopardizing 

the continued existence of the species, 

and prohibitions against taking the 

species, as defined in the ESA. 

Recognition through listing may 

improve public awareness and 

encourage conservation actions by 

Federal, state, and local agencies, 

private organizations, and individuals. 

The ESA provides for possible land 

acquisition and cooperation with the 

States and provides for recovery actions 

to be carried out for listed species. The 

requirement of Federal agencies to avoid 

jeopardy and the prohibitions against 

take are discussed below. 

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 designated. 

Regulations implementing this 

interagency cooperation provision of the 

ESA are codified at 50 CFR part 402. 

Section 7(a)(4) requires Federal agencies 

to confer informally with us on any 

action that is likely to jeopardize the 

continued existence of a species 

proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

subsequently listed, 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 the species or 

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 under 

the provisions of section 7(a)(2) of the 

ESA. 

Several Federal agencies are expected 

to have involvement under section 7 of 

the ESA regarding the Atlantic salmon. 

The Environmental Protection Agency 

may be required to consult on its 

permitting oversight authority for the 

Clean Water Act and Clear Air Act. The 

ACOE may be required to consult on 

permits it issues under section 404 of 

the Clean Water Act and section 10 of 

the Rivers and Harbors Act. The FERC 

may be required to consult on licenses 

it issues for hydroelectric dams under 

the FPA. The Federal Highway 

Administration may be required to 

consult on transportation projects it 

authorizes, funds, or carries out. 

ESA section 9(a) take prohibitions (16 

U.S.C. 1538(a)(1)(B)) apply to all species 

listed as endangered. Those 

prohibitions, in part, make it illegal for 

any person subject to the jurisdiction of 

the United States to take, 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 wildlife species listed as 

endangered, except as provided in 

sections 6(g)(2) and 10 of the ESA. It is 

also illegal under ESA section 9 to 

possess, sell, deliver, carry, transport, or 

ship any such wildlife that has been 

taken illegally. Section 11 of the ESA 

provides for civil and criminal penalties 

for violation of section 9 or of 

regulations issued under the ESA. 

The ESA provides for the issuance of 

permits to authorize incidental take 

during the conduct of activities that may 

result in the take of threatened or 

endangered wildlife under certain 

circumstances. Regulations governing 

permits are codified at 50 CFR 17.22, 

17.23, and 17.32. Such permits are 

available for scientific purposes, to 

enhance the propagation or survival of 

the species, and for incidental take in 

the course of otherwise lawful activities 

provided that certain criteria are met. 

It is our policy, published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify, to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not likely constitute a violation 

of section 9 of the ESA. The intent of 

this policy is to increase public 

awareness of the effects of the listing on 

proposed and ongoing activities within 

a species’ range. With the original 

listing of the Atlantic salmon in 2000, 

the Services published lists of activities 

that we believed were unlikely and 

likely to result in a violation of section 

9 (65 FR 69459; November 17, 2000); we 

find that the activities identified in that 

listing decision continue to apply for 

the GOM DPS as proposed in this rule. 

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; 


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(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 

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. 

Critical Habitat 

Section 4(b)(2) of the ESA requires us 

to designate critical habitat for 

threatened and endangered species ‘‘on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat.’’ This 

section grants the Secretary of the 

Interior or of Commerce discretion to 

exclude an area from critical habitat if 

he determines ‘‘the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat.’’ The Secretary may not 

exclude areas if exclusion ‘‘will result in 

the extinction of the species.’’ In 

addition, the Secretary may not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan under 

Section 101 of the Sikes Act (16 U.S.C. 

670a), if the Secretary determines in 

writing that such a plan provides a 

benefit to the species for which critical 

habitat is proposed for designation (see 

section 318(a)(3) of the National Defense 

Authorization Act, Public Law 108– 

136). 

The ESA defines critical habitat under 

section 3(5)(A) as: ‘‘(i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed, 

on which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species.’’ 

Once critical habitat is designated, 

Section 7 of the ESA requires Federal 

agencies to ensure they do not fund, 

authorize, or carry out any actions that 

will destroy or adversely modify that 

habitat. This requirement is in addition 

to the other principal section 7 

requirement that Federal agencies 

ensure their actions do not jeopardize 

the continued existence of listed 

species. 

The Services jointly listed the GOM 

DPS as endangered in 2000 but have yet 

to designate critical habitat. Critical 

habitat will be proposed in a separate 

rulemaking. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review, establishing minimum 

peer review standards, a transparent 

process for public disclosure of peer 

review planning, and opportunities for 

public participation. The OMB Bulletin, 

implemented under the Information 

Quality Act (Public Law 106–554), is 

intended to enhance the quality and 

credibility of the Federal government’s 

scientific information, and applies to 

influential or highly influential 

scientific information disseminated on 

or after June 16, 2005. We obtained 

independent peer review of the 

scientific information compiled in the 

2006 Status Review (Fay et al., 2006) 

that supports this proposal to designate 

list the GOM DPS of Atlantic salmon as 

endangered. 

On July 1, 1994, the Services 

published a policy for peer review of 

scientific data (59 FR 34270). The intent 

of the peer review policy is to ensure 

that listings are based on the best 

scientific and commercial data 

available. Prior to a final listing, we will 

solicit the expert opinions of three 

qualified specialists, concurrent with 

the public comment period. 

Independent specialists will be selected 

from the academic and scientific 

community, Federal and state agencies, 

and the private sector. 

References 

A complete list of the references used 

in this proposed rule is available upon 

request (see ADDRESSES). 

Classification 

National Environmental Policy Act 

Proposed ESA listing decisions are 

exempt from the requirement to prepare 

an environmental assessment (EA) or 

environmental impact statement (EIS) 

under the National Environmental 

Policy Act of 1969 (NEPA) (NOAA 

Administrative Order 216–6.03(e)(1); 

Pacific Legal Foundation v. Andrus, 675 

F. 2d 825 (6th Cir. 1981)). Thus, we 

have determined that the proposed 

listing determination for the GOM DPS 

of Atlantic salmon described in this 

notice is exempt from the requirements 

of NEPA. 

Information Quality Act 

The Information Quality Act directed 

the Office of Management and Budget to 

issue government wide guidelines that 

‘‘provide policy and procedural 

guidance to federal agencies for 

ensuring and maximizing the quality, 

objectivity, utility, and integrity of 

information (including statistical 

information) disseminated by federal 

agencies.’’ Under the NOAA guidelines, 

this action is considered a Natural 

Resource Plan. It is a composite of 

several types of information from a 

variety of sources. Compliance of this 

document with NOAA guidelines is 

evaluated below. 

• Utility: The information 

disseminated is intended to describe a 

management action and the impacts of 

that action. The information is intended 

to be useful to state and Federal 

agencies, non-governmental 

organizations, industry groups and other 

interested parties so they can 

understand the management action, its 

effects, and its justification 

• Integrity: No confidential data were 

used in the analysis of the impacts 

associated with this document. All 

information considered in this 

document and used to analyze the 

proposed action, is considered public 

information. 

• Objectivity: The NOAA Information 

Quality Guidelines standards for 

Natural Resource Plans state that plans 

be presented in an accurate, clear, 

complete, and unbiased manner. NMFS 


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and USFWS strive to draft and present 

proposed management measures in a 

clear and easily understandable manner 

with detailed descriptions that explain 

the decision making process and the 

implications of management measures 

on natural resources in the Gulf of 

Maine and the public. This document 

was reviewed by a variety of biologists, 

policy analysts, and attorneys from 

NMFS and USFWS. 

Administrative Procedure Act 

The Federal Administrative Procedure 

Act (APA) establishes procedural 

requirements applicable to informal 

rulemaking by Federal agencies. The 

purpose of the APA is to ensure public 

access to the Federal rulemaking 

process and to give the public notice 

and an opportunity to comment before 

the agency promulgates new 

regulations. 

Coastal Zone Management Act 

Section 307(c)(1) of the Federal 

Coastal Zone Management Act of 1972 

requires that all Federal activities that 

affect the any land or water use or 

natural resource of the coastal zone be 

consistent with approved state coastal 

zone management programs to the 

maximum extent practicable. NMFS has 

determined that this action is consistent 

to the maximum extent practicable with 

the enforceable policies of approved 

Coastal Zone Management Programs of 

Maine. Letters documenting NMFS’ 

determination, along with the draft 

environmental assessment and proposed 

rule, were sent to the coastal zone 

management program office in Maine. A 

list of the specific state contacts and a 

copy of the letters are available upon 

request. 

Executive Order (E.O.) 13132 

Federalism 

E.O. 13132, otherwise known as the 

Federalism E.O., was signed by 

President Clinton on August 4, 1999, 

and published in the Federal Register 

on August 10, 1999 (64 FR 43255). This 

E.O. is intended to guide Federal 

agencies in the formulation and 

implementation of ‘‘policies that have 

federal implications.’’ Such policies are 

regulations, legislative comments or 

proposed legislation, and other policy 

statements or actions that have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. E.O. 13132 

requires Federal agencies to have a 

process to ensure meaningful and timely 

input by state and local officials in the 

development of regulatory policies that 

have federalism implications. A Federal 

summary impact statement is also 

required for rules that have federalism 

implications. Pursuant to E.O. 13132, 

the Assistant Secretary for Legislative 

and Intergovernmental Affairs will 

provide notice of the proposed action 

and request comments from the 

appropriate official(s) in Maine. 

Environmental Justice 

Executive Order 12898 requires that 

Federal actions address environmental 

justice in decision-making process. In 

particular, the environmental effects of 

the actions should not have a 

disproportionate effect on minority and 

low-income communities. The proposed 

listing determination is not expected to 

have a disproportionate effect on 

minority or low-income communities. 

E.O. 12866, Regulatory Flexibility Act, 

and Paperwork Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts shall not be 

considered when assessing the status of 

a species. Therefore, the economic 

analysis requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this rule is 

exempt from review under E.O.12866. 

This proposed rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

E.O. 13084–Consultation and 

Coordination with Indian Tribal 

Governments 

E.O. 13084 requires that, if we issue 

a regulation that significantly or 

uniquely affects the communities of 

Indian tribal governments and imposes 

substantial direct compliance costs on 

those communities, we consult with 

those governments or the Federal 

government must provide the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments. This proposed rule does 

not impose substantial direct 

compliance costs on the communities of 

Indian tribal governments. Accordingly, 

the requirements of section 3(b) of E.O. 

13084 do not apply to this proposed 

rule. Nonetheless, we intend to inform 

potentially affected tribal governments 

and to solicit their input on the 

proposed rule. We will continue to give 

careful consideration to all written and 

oral comments received on the proposed 

rule and will continue our coordination 

and discussions with interested tribes as 

we move forward toward a final rule. 

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. 

Dated: August 27, 2008. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

August 20, 2008. 

Kenneth Stansell, 

Acting Director, U.S. Fish and Wildlife 

Service. 

For the reasons set out in the 

preamble, 50 CFR parts 17 and 224 are 

proposed to be 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. In § 17.11(h) revise the entry for 

‘‘Salmon, Atlantic’’, which is in 

alphabetical order under FISHES, to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

FISHES 


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Species 

Historic Range Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules Common name Scientific name 

* * * * * * * 

Salmon, Atlantic, 

Gulf of Maine 

Salmo salar U.S.A., Canada, Greenland, western Europe. U.S.A., ME, Gulf of Maine Distinct Population Segment. Includes all anadromous Atlantic salmon 

whose freshwater range occurs in the watersheds from the Androscoggin northward along the Maine coast to the Dennys River, including all associated conservation hatchery populations used to supplement natural populations; currently, such populations are maintained at Green Lake and Craig Brook National Fish Hatcheries. Excluded are those salmon raised in commercial hatcheries for aquaculture. 

E NA NA 

* * * * * * * 


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51436 Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Proposed Rules 

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. Amend the table in § 224.101, by 

revising the entry for ‘‘Atlantic salmon’’ 

in the table in § 224.101(a) to read as 

follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(a) Marine and anadromous fish. 

* * * 

Species1

Where Listed 

Citation(s) for Listing Determination(s) 

Citation(s) for Critical Habitat Designation(s) 

Common name Scientific name 

* * * * * * * 

Gulf of Maine Atlantic salmon Salmo salar U.S.A., ME, Gulf of 

Maine Distinct Population 

Segment. Includes all 

anadromous Atlantic 

salmon whose freshwater 

range occurs in the watersheds from the 

Androscoggin northward 

along the Maine coast to 

the Dennys River, including all associated conservation hatchery populations used to supplement natural populations; 

currently, such populations are maintained at 

Green Lake and Craig 

Brook National Fish 

Hatcheries. Excluded are 

those salmon raised in 

commercial hatcheries for 

aquaculture. 

65 FR 69469; November 17, 2000 

[INSERT FR CITATION WHEN 

PUBLISHED AS 

A FINAL RULE] 

NA 

* * * * * * * 

* * * * * 

[FR Doc. E8–20412 Filed 8–28–08; 4:15 pm] 

BILLING CODE 3510–22–S 


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