29344 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

DEPARTMENT OF INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 0808191116–9709–02] 

RIN 0648–XJ93 

Endangered and Threatened Species; 

Determination of 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: Final rule. 

SUMMARY: We (NMFS and USFWS, 

collectively referred to as the Services) 

have determined that naturally spawned 

and conservation hatchery populations 

of anadromous Atlantic salmon (Salmo 

salar) whose freshwater range occurs in 

the watersheds from the Androscoggin 

River northward along the Maine coast 

to the Dennys River, including those 

that were already listed in November 

2000, constitute a distinct population 

segment (DPS) and hence a ‘‘species’’ 

for listing. We have determined that the 

Gulf of Maine (GOM) DPS warrants 

listing as endangered under the 

Endangered Species Act (ESA). Critical 

habitat for the GOM DPS will be 

designated in a subsequent Federal 

Register notice. 

DATES: This rule is effective July 20, 

2009. 

ADDRESSES: Comments and materials 

received, as well as supporting scientific 

information used in the preparation of 

this rule, will be available for public 

inspection, by appointment, during 

normal business hours at: National 

Marine Fisheries Service, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester MA 01930. An 

electronic copy of this final rule is 

available at: http://www.nero.noaa.gov/ 

prot_res/altsalmon/. Public comments 

received can be viewed at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Rory 

Saunders, NMFS, at (207) 866–4049; 

Jessica Pruden, NMFS, at (978) 282– 

8482; Marta Nammack, NMFS, at (301) 

713–1401; Lori Nordstrom, USFWS, at 

(207) 827–5938 ext. 13. Persons who use 

a Telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

1–800–877–8339, 24 hours a day, 7 days 

a week. 

SUPPLEMENTARY INFORMATION: 

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) 

composed of biologists from the Maine 

Atlantic Salmon Commission (now the 

Maine Department of Marine Resources 

Bureau of Sea-run Fisheries and Habitat 

(MDMR)), the Penobscot Indian Nation, 

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 

the GOM DPS as it was listed in 2000. 

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). 

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 may be 

considered 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 

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. 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29345 

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)(A– 

E)). 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. During spawning, the 

female uses its tail to scour or dig a 

series of nests in the gravel where the 

eggs are deposited; this series of nests is 

called a redd. The eggs remain in the 

redd until they 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 2 winters at sea; 

usually less than ten percent return after 

spending 1 winter at sea; roughly one 

percent of returning salmon are either 

repeat spawners or have spent 3 winters 

at sea (3 sea winter, or 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). 

Delineation of the Gulf of Maine Distinct 

Population Segment 

Fay et al. (2006) concluded that the 

DPS delineation 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 the 

previous listing determination (Section 

6.2.4 of Fay et al., 2006). 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 

occur in the same zoogeographic region 

(section 6.3 of Fay et al., 2006). 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) 

(section 6.3.1.4 and 6.3.2.4) concluded 

that this group of populations 

(population segment) met both the 

discreteness and significance criteria of 

the DPS Policy and, therefore should be 

considered a DPS. Fay et al. (2006) 

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 Hatchery (CBNFH). 

Delineating Geographic Boundaries 

Determining the precise boundary of 

the GOM DPS is difficult. In the case of 

the GOM DPS, we use a wide array of 

independent sources of information to 

make this determination. These sources 

of information include recent genetic 

analyses, life history, and zoogeography, 

among others. Recent genetic analyses, 

in particular, have clarified these 

distinctions, and we rely on them 

heavily in the following analysis. When 

using genetic data to make these 

delineations, it is important to note that 

extant populations must exist in order 

to make meaningful comparisons. In the 

case of determining the northern 

boundary of the GOM DPS, extant 

populations were used in genetic 

analyses and thus inform the 

determination. However, in the case of 

the determination of the southern 

boundary of the GOM DPS, many 

populations south of the Androscoggin 

are extirpated, and thus there are no 

genetic data available to make these 

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29346 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

comparisons. For this reason we rely on 

additional information to delineate the 

southern boundary of the GOM DPS 

below. 

We relied on genetic data to inform 

our determination on the northern 

terminus of the GOM DPS. At a broad 

scale, it is clear that there are substantial 

differences in genetic structure between 

U.S. and Canadian populations of 

Atlantic salmon (Spidle et al., 2003). 

However, 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 

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. 

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). Therefore, we find 

that the northern terminus of the GOM 

DPS is the Dennys River watershed, 

rather than the St. Croix. 

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 on which to base genetic analyses 

as one moves southward. Due to the 

combination of low numbers of Atlantic 

salmon in some rivers (e.g., 

Androscoggin) and the complete 

extirpation of the native stock in other 

rivers to the south (e.g., Merrimack), 

complete genetic data are not and may 

never be available for the Services to be 

able to genetically characterize these 

populations. In the absence of clear 

genetic data, we used ecological factors 

to define the southern boundary of the 

GOM DPS. The Androscoggin River lies 

within the Penobscot-KennebecAndroscoggin Ecological Drainage Unit 

(EDU) (Olivero, 2003) and the 

Laurentian Mixed Forest Province 

(Bailey, 1995), which separates it from 

more southern rivers that were 

historically occupied by Atlantic 

salmon. EDUs are aggregations of 

watersheds with similar zoogeographic 

history, physiographic conditions, 

climatic characteristics, and basic 

geography (Olivero, 2003). The 

substantial changes in physiographic 

conditions south of the Androscoggin 

drainage are reflected in the southern 

terminus of both the Laurentian Mixed 

Forest Province and the Penobscot— 

Kennebec—Androscoggin EDU 

occurring in that area. Basin geography, 

climate, groundwater temperatures, 

hydrography, and zoogeographic 

differences between the Penobscot— 

Kennebec—Androscoggin EDU and the 

EDUs to the south (e.g., SacoMerrimack-Charles, Lower Connecticut, 

Middle Connecticut, and Upper 

Connecticut) likely had a strong effect 

upon Atlantic salmon ecology and 

production. These differences would 

influence the structure and function of 

aquatic ecosystems (Vannote et al., 

1980; Cushing et al., 1983; Minshall et 

al., 1983; Cummins et al., 1984; 

Minshall et al., 1985; Waters, 1995) and 

create a different environment for the 

development of local adaptations than 

rivers, such as the Saco and Merrimack, 

to the south. 

In the proposed rule, we proposed to 

include the entire Androscoggin, 

Kennebec, and Penobscot Watersheds 

within the GOM DPS boundary. Some 

comments from the public appropriately 

highlighted several impassable falls that 

limited the upstream extent to which 

anadromous salmon inhabited the rivers 

of Maine. NMFS also evaluated 

historical occupancy at the watershed 

scale for the process of proposing 

critical habitat for the GOM DPS. There 

is also considerable information 

provided in the 2006 Status Review 

pertaining to impassable falls as well. 

We are, therefore, using these 

information sources (and others cited 

therein) to delimit the upstream extent 

of anadromy for GOM salmon in this 

final rule. 

We have identified seven impassable 

falls that substantially limited the 

upstream extent of the freshwater range 

of GOM salmon. These include Rumford 

Falls in the town of Rumford on the 

Androscoggin River, Snow Falls in the 

town of West Paris on the Little 

Androscoggin River, Grand Falls in 

Township 3 Range 4 BKP WKR, on the 

Dead River in the Kennebec Basin; the 

un-named falls (impounded by Indian 

Pond Dam) immediately above the 

Kennebec River Gorge in the town of 

Indian Stream Township on the 

Kennebec River; Big Niagara Falls on 

Nesowadnehunk Stream in Township 3 

Range 10 WELS in the Penobscot Basin; 

Grand Pitch Falls on Webster Brook in 

Trout Brook Township in the Penobscot 

Basin; and Grand Falls on the 

Passadumkeag River in Grand Falls 

Township in the Penobscot Basin (Table 

1). 

TABLE 1—IMPASSABLE FALLS THAT LIMIT THE UPSTREAM EXTENT OF THE FRESHWATER RANGE OF GOM SALMON

Name of falls Town River Basin 

Rumford Falls ........................................... Rumford .................................................. Androscoggin River ................................. Androscoggin. 

Snow Falls ................................................ West Paris ............................................... Little Androscoggin River ........................ Androscoggin. 

Grand Falls ............................................... Township 3 Range 4 BKP WKR ............. Dead River .............................................. Kennebec. 

Un-named ................................................. Indian Stream Township ......................... Kennebec River ...................................... Kennebec. 

Big Niagara Falls ...................................... Township 3 Range 10 WELS ................. Nesowadnehunk Stream ......................... Penobscot. 

Grand Pitch .............................................. Trout Brook Township ............................. Webster Brook ........................................ Penobscot. 

Grand Falls ............................................... Grand Falls Township ............................. Passadumkeag River .............................. Penobscot. 

As a result, we have modified the 

geographic boundaries of the freshwater 

range of GOM salmon in the 

Androscoggin, Kennebec, and Penobscot 

Basins in the following ways: all 

freshwater bodies in the Androscoggin 

Basin are included up to Rumford Falls 

on the Androscoggin River and up to 

Snow Falls on the Little Androscoggin 

River; all freshwater bodies in the 

Kennebec Basin are included up to 

Grand Falls on the Dead River and the 

unnamed falls (currently impounded by 

Indian Pond Dam) immediately above 

the Kennebec River Gorge; and all 

freshwater bodies in the Penobscot 

Basin are included up to Big Niagara 

Falls on Nesowadnehunk Stream, Grand 

Pitch on Webster Brook, and Grand 

Falls on the Passadumkeag River. 

We recognize that many other 

potentially impassable waterfalls exist 

throughout the range of GOM salmon. 

While other impassable falls may exist 

throughout the range, we did not 

exclude any other areas (other than the 

areas above the seven falls mentioned 

above) for the following reasons: (1) 

Their occurrence is typically in 

headwater areas that preclude access 

from relatively small portions of a given 

watershed; (2) identifying every 

impassable falls is impractical given 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29347 

current information; and (3) no other 

impassable falls were brought to our 

attention during the public comment 

period. 

In addition, we recognize that within 

every watershed, there is an upstream 

extent of anadromy. However, it is 

impossible to define that specific point 

in every watershed. The upstream 

extent of anadromy is ultimately limited 

by the incremental narrowing of a given 

river or stream. While a stream may be 

too small for an adult salmon to swim 

up any further, juveniles may ascend 

further than that point in search of 

suitable rearing habitat. In fact, 

upstream movement of even fry can be 

quite substantial. As such, we include 

all the freshwater bodies as part of the 

freshwater range of GOM salmon unless 

above one of the impassable falls 

mentioned in the text above. 

Discreteness and Significance of the 

GOM DPS 

With respect to the ‘‘discreteness’’ of 

this population segment, section 6.3.1 of 

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 GOM rivers to 

spawn (a process called homing), which 

leads to the separation in stocks that has 

been observed between the Gulf of 

Maine and other segments of the taxon. 

River-specific adaptation is an 

important mechanism that allows 

anadromous salmon to occupy diverse 

environments throughout their range. 

River-specific adaptation is facilitated 

by 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. As described below, these strong 

homing tendencies have led to the 

formation and maintenance of riverspecific adaptations for GOM salmon as 

well. 

Ecologically, GOM 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 EDU 

(Olivero, 2003) and the Laurentian 

Mixed Forest Province (Bailey, 1995). 

These environmental conditions have 

shaped life history characteristics of 

GOM salmon. In particular, GOM 

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 (called 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 GOM 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). Smolt ages from naturallyreared returning adults in rivers south of 

the Penobscot-Kennebec-Androscoggin 

EDU are also dominated by river age 2 

smolts with some emigrating at river age 

3, but a substantial proportion of river 

age 1 smolts are also present (See Table 

6.3.1.1 in Fay et al., 2006). 

The strongest evidence that GOM 

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 GOM 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 GOM 

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 that there are three 

attributes which are described as 

evidence for ‘‘significance’’ in the DPS 

policy that are applicable to the GOM 

DPS (section 6.3.2 of Fay et al., 2006). 

Fay et al. (2006) (section 6.3.2.1) 

concluded that this population segment 

has persisted in an ecological setting 

unusual or unique to the taxon for 

several reasons. First, GOM salmon live 

in and migrate through a unique marine 

environment. The marine migration 

corridor for GOM salmon begins in the 

GOM 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 

GOM, described above, make the 

oceanic life history of the GOM DPS 

quite different from those of other stocks 

(ICES, 2008). In addition, the core of the 

riverine habitat of this population 

segment lies within the PenobscotKennebec-Androscoggin EDU (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. 

Fay et al. (2006) also concluded that 

the loss of this population segment 

would result in a significant gap or 

constriction in the range of the taxon 

(Section 6.3.2.2 of Fay et al., 2006). 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 GOM 

rivers) using Canadian-origin fish failed. 

This further illustrates the importance 

of conserving native, river-specific 

populations and the difficulties of 

restoration if they are lost. 

Fay et al. (2006) concluded that this 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics (Section 

6.3.2.3 of Fay et al., 2006). 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 

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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. Based on this 

information related to significance, Fay 

et al. (2006) concluded that this 

population segment is significant to the 

Atlantic salmon species, and therefore, 

qualifies as a DPS (the new GOM DPS) 

under the provisions of the DPS Policy. 

Fay et al. (2006) (section 6.3.4) 

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 

genetic 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 little evidence of 

introgression from Canadian-origin 

populations; and (4) there is minimal 

introgression from aquaculture fish 

because of a rigorous genetic screening 

program in the hatchery. Because the 

level of divergence is minimal, in 

Section 6.3.4 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, genetic risks from hatcheries 

include artificial selection, inbreeding 

depression, and outbreeding depression, 

in addition to other risks such as the 

potential for disease outbreaks, loss of 

funding, or other catastrophic failure at 

one or more hatcheries. The reader is 

directed to ‘‘Population Status of the 

GOM DPS’’ section of this final rule and 

Section 8.5.1 of Fay et al. (2006) for an 

in depth discussion of these risks. 

For the reasons described in Section 

6 of Fay et al. (2006), we conclude that 

the GOM DPS as described above 

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 River northward along 

the Maine coast to the Dennys River, 

including all associated conservation 

hatchery populations used to 

supplement these natural populations; 

currently, such populations are 

maintained at GLNFH and CBNFH. We 

consider the conservation hatchery 

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 freshwater 

range of the GOM DPS includes all 

freshwater bodies in the watersheds 

from the Androscoggin to the Dennys, 

except those watersheds excluded 

because of natural barrier falls as 

described in the ‘‘Delineating 

Geographic Boundaries’’ section of this 

final rule. The most substantial 

difference between the GOM DPS as 

listed in 2000 and the GOM DPS 

described in this final rule is the 

inclusion of the majority of the 

Androscoggin, Kennebec, and Penobscot 

Basins as well as the associated 

conservation hatchery population at 

GLNFH. 

Several rivers outside the range of the 

GOM DPS in Long Island Sound and 

Central New England contain Atlantic 

salmon (Fay et al., 2006; section 6.4). 

The native Atlantic salmon of these 

areas south of the GOM DPS were 

extirpated in the 1800s (Fay et al., 

2006). 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 range of GOM DPS 

do not interbreed with salmon within 

the GOM DPS, are not considered a part 

of the GOM DPS, and are not protected 

under the ESA. 

Population Status of the GOM DPS 

In evaluating the status of Atlantic 

salmon, we considered four basic 

attributes that contribute to a viable 

population: abundance, productivity, 

genetic diversity, and spatial 

distribution. The importance of 

considering each of these factors is 

briefly described below. However, it is 

important to note that our ability to 

conduct such analyses for Atlantic 

salmon is often limited by the 

availability of sufficient data. It is also 

important to note that the most recent 

data available at the time of writing of 

this final rule was from 2007. We 

consider the U.S. Atlantic Salmon 

Assessment Committee (USASAC) 

reports to be the data of record with 

respect to Atlantic salmon counts. 

USASAC reports are generally not 

available until several weeks after their 

annual meeting in March. Thus, 2008 

data are considered only preliminary at 

the time of writing this final rule. 

Considering abundance levels of a 

given species is critical to evaluating 

extinction risks. All else being equal, 

small populations are at greater risk of 

extinction than larger populations 

because, generally, larger populations 

are better able to withstand the effects 

of environmental variation, genetic 

processes, demographic stochasticity, 

ecological feedback, and catastrophes 

(Shaffer, 1981). 

Population growth rate (productivity) 

provides information regarding how a 

population is performing in the habitat 

it occupies. In evaluating extinction 

risks, we ideally measure average 

productivity at different life stages and 

estimates of variance to describe the 

level of uncertainty inherent in the 

measurements. An example of life stagespecific data could be smolt emigration 

estimates which represent: (a) The 

population’s potential to increase or (b) 

the population’s ability to weather 

periods of poor marine conditions. 

Measuring productivity rates over time 

is quite difficult and resource intensive. 

Therefore, simple measures such as 

spawner population size and 

replacement rates may be used to 

provide more rapid detection of changes 

in conditions affecting population 

growth rates. 

For small populations, spatial 

distribution is important to reduce 

extinction risks from genetic risks and 

demographic stochasticity. A 

population’s spatial distribution 

depends on habitat quality (including 

accessibility), population dynamics, and 

dispersal characteristics of individuals 

in the population. Analysis of spatial 

distribution focuses primarily on 

spawning group distribution (even 

though spatial distribution is important 

at all life stages) and connectivity of 

populations. Since freshwater habitat is 

often quite heterogeneous, spawning 

habitat may be distributed as discrete 

patches. Straying is an important 

component contributing to spatial 

distribution and, typically, straying 

rates are higher at smaller scales (e.g., 

occurring within subpopulations rather 

than between populations (Quinn, 

1997)). 

Genetic diversity allows species to 

adapt to a variety of environments that 

provide for the needs of the species and 

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protects against short-term 

environmental change while also 

providing the raw genetic material 

necessary to survive long-term 

environmental change. Natural 

demographic and evolutionary 

processes (patterns of mutation, 

selection, drift, recombination, 

migration, etc.) are important to 

maintaining a species’ genetic diversity. 

The influence of hatcheries on the 

GOM DPS must be carefully considered 

in evaluating the status of the species. 

The influence of hatcheries can be both 

positive and negative; we describe these 

effects in some detail below in this 

section of this final rule. It is important, 

however, to first describe the general 

operation of conservation hatcheries in 

Maine. 

The USFWS operates two hatcheries 

in support of Atlantic salmon recovery 

efforts in Maine. Together, Green Lake 

National Fish Hatchery (GLNFH) and 

Craig Brook National Fish Hatchery 

(CBNFH) raise and stock over 600,000 

smolts and 3.5 million fry annually 

within the range of the GOM Atlantic 

salmon DPS. The primary focus of the 

conservation hatchery program for the 

GOM Atlantic salmon DPS is to 

conserve the genetic legacy of Atlantic 

salmon in Maine until habitats can 

support natural, self-sustaining 

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 river-specific 

broodstock and stocking program was 

implemented for rivers in Maine 

(Bartron et al., 2006). This strategy 

complies with the North Atlantic 

Salmon Conservation Organization 

(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 are designed to 

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 in East Orland, Maine. These 

populations are augmented by annual 

collections of parr from their respective 

natal river; this program is described in 

detail by Bartron et al. (2006). 

Additionally, returning adult Atlantic 

salmon are trapped at the Veazie Dam 

on the Penobscot River throughout the 

duration of the run, transferred to 

CBNFH, and held until spawning in the 

fall of each year. In addition, domestic 

adults (i.e., offspring of the sea-run 

adults representing all sea-run spawned 

families) from the Penobscot River are 

maintained at GLNFH in the event that 

insufficient sea-run adults return to the 

Veazie trap or in the event of a fish loss 

at CBNFH. Adult Atlantic salmon (with 

the exception of the Penobscot River) 

are maintained in one of six riverspecific broodstock rooms at CBNFH. 

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,’’ are 

implemented when the recovery of parr 

from the river environment is expected 

to be too 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 while maintaining a broad 

representation of the genetic diversity 

observed in the broodstock. 

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 richness are 

monitored within the hatchery 

broodstocks according to the CBNFH 

Broodstock Management Plan (Bartron 

et al., 2006). Estimates of allelic 

richness within each broodstock have 

thus far, revealed consistent estimates 

over the brief time series available 

(generally 1994 to 2004; Bartron et al., 

2007). Information from genetic 

monitoring is used to evaluate 

management practices to reduce the 

potential for artificially reducing overall 

genetic diversity. Further details of 

annual genetic monitoring are described 

by Bartron et al. (2007). 

The current low abundance of adult 

returns, integration of the majority of 

adult returns into the hatchery for the 

Penobscot, and recapture of parr from 

the wild for broodstock makes the wild 

and hatchery populations interwoven. 

In the following sections of this final 

rule, we describe the four population 

attributes of interest (abundance, 

productivity, spatial structure, and 

genetic diversity) and attempt to apply 

them first to the wild population and 

then discuss the impact the hatchery 

has on that attribute. For the reasons 

noted above, however, it is rarely 

possible to completely separate the wild 

and hatchery population in this 

analysis. 

Abundance 

The abundance of Atlantic salmon 

within the range of the GOM DPS has 

been generally declining since the 1800s 

(Fay et al., 2006). Data sets tracking 

adult abundance are not available 

throughout this entire time period; 

however, Fay et al. (2006) in Figure 

7.3.1 present a comprehensive time 

series of adult returns to the GOM DPS 

dating back to 1967. It is important to 

note that contemporary abundance 

levels of Atlantic salmon within the 

GOM DPS are several orders of 

magnitude lower than historical 

abundance estimates. For example, 

Foster and Atkins (1869) estimated that 

roughly 100,000 adult salmon returned 

to the Penobscot River alone before the 

river was dammed, whereas 

contemporary estimates of abundance 

for the entire GOM DPS have rarely 

exceeded 5,000 individuals in any given 

year since 1967 (Fay et al., 2006). 

Contemporary abundance estimates 

are informative in considering the 

conservation status of the GOM DPS 

today. After a period of population 

growth in the 1970s, adult returns of 

salmon in the GOM DPS have been 

steadily declining since the early 1980s 

and appear to have stabilized at low 

levels since 2000 (Figure 1). The 

population growth observed in the 

1970s is likely attributable to favorable 

marine survival and increases in 

hatchery capacity, particularly at 

GLNFH, which was constructed in 1974. 

Marine survival remained relatively 

high throughout the 1980s, and salmon 

populations in the GOM DPS remained 

relatively stable until the early 1990s 

when marine survival rates decreased, 

leading to the declining trend in adult 

abundance observed in the early 1990s. 

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Adult returns to the GOM DPS have 

been very low for many years and 

remain extremely low in terms of adult 

abundance in the wild. Further, the 

majority of all adults return to a single 

river, the Penobscot, which accounted 

for 91 percent of all adult returns to the 

GOM DPS in 2007 (Table 2). As 

illustrated by Table 3, of the 925 adult 

returns to the Penobscot in 2007, 802 

were the result of smolt stocking and 

only the remaining 123 were naturallyreared. The term ‘‘naturally-reared’’ 

includes fish originating from natural 

spawning and hatchery fry (USASAC, 

2008). Hatchery fry are included 

because hatchery fry are not marked; 

therefore, they cannot be distinguished 

from fish produced from natural 

spawning. Because of the extensive 

amount of fry stocking that takes place 

in an effort to recover the GOM DPS, it 

is likely that a substantial number of 

fish counted as naturally-reared were 

actually stocked as fry. The term 

‘‘hatchery-origin’’ includes those fish 

stocked as either parr or smolt from 

either CBNFH or GLNFH. 

The proportion of naturally reared 

fish that is attributed to fry stocking 

cannot be determined. Preliminary adult 

return data for 2008 (http:// 

www.maine.gov/dmr/searunfish/ 

trapcounts.html) indicated higher 

returns than in previous years, but 

remain well below conservation 

spawning escapement (CSE) goals that 

are widely used (e.g., 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, and this 

can be indicative of a population 

decline. For all rivers in Maine, current 

Atlantic salmon populations (including 

hatchery contributions) are well below 

CSE levels required to sustain 

themselves (Fay et al., 2006) (section 

7.1), which is further indication of their 

poor population status. Furthermore, 

calculation of returns relative to CSE for 

Atlantic salmon include salmon of frystocked origin; because these fish are 

not spawned in the wild, displaying 

returns as a percentage of CSE 

overestimates the degree to which the 

population is achieving selfsustainability. 

TABLE 2—ADULT RETURNS TO THE SMALL COASTAL RIVERS, THE PENOBSCOT RIVER, THE KENNEBEC RIVER, AND THE

ANDROSCOGGIN RIVER FROM 2001 TO 2007. THESE DATA ARE SUMMARIZED FROM TABLE 3.2.1.2 AND TABLE 16 IN

THE UNITED STATES ATLANTIC SALMON ASSESSMENT COMMITTEE REPORT (USASAC, 2008) 

Year Small coastal 

rivers 

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 


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TABLE 2—ADULT RETURNS TO THE SMALL COASTAL RIVERS, THE PENOBSCOT RIVER, THE KENNEBEC RIVER, AND THE

ANDROSCOGGIN RIVER FROM 2001 TO 2007. THESE DATA ARE SUMMARIZED FROM TABLE 3.2.1.2 AND TABLE 16 IN

THE UNITED STATES ATLANTIC SALMON ASSESSMENT COMMITTEE REPORT (USASAC, 2008)—Continued 

Year Small coastal 

rivers 

Penobscot River 

trap count 

Kennebec River 

trap count a

Androscoggin 

River trap count 

Total known 

returns 

2007 ................................................................. 53 925 16 20 1014 

a Counts not conducted on the Kennebec until 2006. 

TABLE 3—ADULT RETURNS TO RIVERS WITHIN THE FRESHWATER RANGE OF THE GOM DPS BY ORIGIN IN 2007. THESE

DATA ARE SUMMARIZED FROM TABLE 1 IN THE UNITED STATES ATLANTIC SALMON ASSESSMENT COMMITTEE REPORT (USASAC, 2008) 

River Hatchery-origin Naturally-reared Total 

Androscoggin ................................................................................................................... 17 3 20 

Kennebec ......................................................................................................................... 9 7 16 

Dennys ............................................................................................................................. 2 1 3 

Narraguagus .................................................................................................................... 0 11 11 

Other GOM DPS .............................................................................................................. 0 39 39 

Penobscot ........................................................................................................................ 802 123 925 

Total .......................................................................................................................... 830 184 1014 

Declines in both hatchery-origin and 

naturally reared salmon are evident in 

the Penobscot River (Table 4). Declines 

in hatchery-origin adult returns are less 

sharp because of the effects of 

hatcheries. In short, hatchery 

supplementation over this time period 

has been relatively constant, generally 

fluctuating around 550,000 smolts per 

year (USASAC, 2008). In contrast, the 

number of naturally-reared smolts 

emigrating each year is likely to decline 

following poor returns of adults. 

Although it is impossible to distinguish 

truly wild salmon from those stocked as 

fry, it is likely that some portion of 

naturally reared adults are wild. Thus, 

wild smolt production would suffer 3 

years after there were low adult returns, 

because the progeny of adult returns 

typically emigrate 3 years after their 

parents return. The relatively constant 

inputs from smolt stocking coupled 

with the declining trend of naturally 

reared adults result in the apparent 

stabilization of hatchery-origin salmon 

and the decline of naturally reared 

components of the GOM DPS observed 

over the last 2 decades. 

TABLE 4—ADULT RETURNS, BY ORIGIN (HATCHERY-ORIGIN AND NATURALLY REARED) AND AGE (1SW INDICATES THE INDIVIDUAL SPENT ONE WINTER AT SEA; 2SW INDICATES THE INDIVIDUAL SPENT TWO WINTERS AT SEA; 3SW INDICATES

THE INDIVIDUAL SPENT THREE WINTERS AT SEA; AND REPEAT INDICATES THE INDIVIDUAL WAS A REPEAT SPAWNER) 

TO THE PENOBSCOT RIVER FROM 1996 TO 2007 

Year 

Hatchery-origin Naturally reared 

Total 

1sw 2sw 3sw Repeat 1sw 2sw 3sw Repeat 

1996 ............................................................... 484 1,218 6 18 11 303 3 1 2,044 

1997 ............................................................... 243 934 4 14 4 153 2 1 1,355 

1998 ............................................................... 238 793 0 10 31 133 1 4 1,210 

1999 ............................................................... 223 568 0 11 49 108 0 9 968 

2000 ............................................................... 167 265 0 15 16 69 0 2 534 

2001 ............................................................... 195 466 0 3 21 98 2 0 785 

2002 ............................................................... 363 344 0 15 14 41 1 2 780 

2003 ............................................................... 196 847 1 4 6 56 0 2 1,112 

2004 ............................................................... 276 952 10 16 5 59 3 2 1,323 

2005 ............................................................... 269 678 0 8 6 22 0 2 985 

2006 ............................................................... 338 653 1 4 15 33 0 0 1,044 

2007 ............................................................... 226 575 0 1 35 88 0 0 925 

The influence of CBNFH and GLNFH 

on abundance of the GOM DPS is 

positive, thus reducing short-term 

extinction risks to the GOM DPS. Below, 

we briefly describe the three 

mechanisms by which the conservation 

hatchery programs positively affect the 

abundance of the GOM DPS: 

1. Stocking of large numbers of smolts 

(Penobscot beginning in 1974, Dennys 

beginning in 2001, and Narraguagus 

beginning in 2008) increases adult 

returns, thus reducing demographic 

risks (i.e., extinction risks) to 

populations that would otherwise be 

smaller. 

2. Stocking large numbers of smolts 

also 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 (e.g., a large 

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

disease outbreak). 

3. Rivers without large scale fry 

stocking efforts have even fewer adult 

returns than those rivers with large scale 

stocking efforts. Further, rivers that lack 

significant hatchery contributions (fry 

stocking) have not experienced stable 

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levels of adult returns since the decline 

in marine survival in the early 1990s. 

For example, redd counts in the 

Ducktrap River (a river which is not 

stocked) have been steadily declining 

since the 1990s to a point where no 

redds were found in the Ducktrap River 

in 2007, a year with favorable 

conditions for redd counting and over 

90 percent of spawning habitat surveyed 

(USASAC, 2008). 

As illustrated by the above data, the 

abundance of Atlantic salmon in the 

GOM DPS is low and either stable or 

declining. The proportion of fish that 

are of natural origin is very small 

(approximately 10 percent) and is 

continuing to decline. The conservation 

hatchery has assisted in slowing the 

decline and helped stabilize 

populations at low levels, but has not 

contributed to an increase in the overall 

abundance of salmon and has not been 

able to halt the decline of the naturallyreared component of the GOM DPS. 

Productivity 

The historic productivity of the GOM 

DPS is unknown. Over long time frames, 

it is expected that productivity 

fluctuated widely according to a diverse 

range of biotic factors such as food 

availability and abiotic factors such as 

temperature regime and sea level. 

Contemporary productivity rates for 

the GOM DPS can be inferred from 

replacement rates. In short, populations 

with a replacement rate of 1.0 or higher 

are stable or increasing while 

populations with a replacement rate less 

than 1.0 are declining. The USASAC has 

estimated the replacement rate for the 

GOM DPS (as listed in 2000) over the 

last several years. Replacement rate for 

the GOM DPS (as listed in 2000) had 

been below 1.0 for several generations 

until 2007, when replacement rate for 

the 2002 spawning cohort was 1.47. 

This translates to on average, every 

adult returning in 2002 replacing itself 

with 1.47 adults in 2007. While this 

increase is promising, it only represents 

1 year; thus, it is premature to conclude 

that this is indicative of an increasing 

trend. 

Replacement rate is a fairly imprecise 

measurement of productivity for several 

reasons. First, tracking adult to adult 

return rates of naturally reared fish 

necessarily includes those fish that 

result from stocking. Thus, it is not true 

replacement of fish in the wild because 

each river with substantial returns of 

adults is stocked with fry, or smolts as 

in the case of the Penobscot, 

Narraguagus, and Dennys Rivers. This 

situation results in an overestimation of 

productivity (because it does not 

account for the contribution that 

stocking makes to adult returns) and 

also emphasizes the importance of 

hatcheries to the security of the GOM 

DPS. Without stocking of hatchery fry 

and smolts, adult returns would 

presumably be lower and would result 

in even lower replacement rates. 

The influence of hatcheries on 

productivity is not known with 

certainty, but overall productivity (even 

with hatchery supplementation) is quite 

low. The first goal of the captive 

broodstock program is to facilitate the 

recovery of the natural populations and 

minimize the risk of further decline or 

loss of individual populations (Bartron 

et al., 2006). Over time, more adult 

returns should successfully spawn in 

the wild and result in replacement rates 

above 1.0. However, insufficient data 

exist to determine whether adult returns 

from hatchery contributions result in 

more spawners and ultimately more 

truly wild-origin adult returns. The 

National Research Council (NRC, 2004) 

and the Sustainable Ecosystems 

Institute (SEI, 2007) identified this as a 

key limitation in available data on the 

recovery efforts for salmon in Maine. 

Without this information, it is 

impossible to estimate, with any 

certainty, the effect of hatcheries on this 

key population attribute (productivity). 

Overall, however, replacement rates less 

than 1.0 (as has been the case most years 

since the early 1990s) are indicative of 

low productivity. 

As illustrated by the above, 

productivity of the GOM DPS is low and 

has not consistently had a replacement 

rate above 1.0 such that population 

growth would be expected. There is no 

current evidence that hatcheries have 

increased or will increase productivity 

in the wild. 

Spatial Distribution 

The historic distribution of Atlantic 

salmon in Maine has been described 

extensively by Baum (1997) and Beland 

(1984), among others. In short, 

substantial populations of Atlantic 

salmon existed in nearly every river that 

was large enough to maintain a 

spawning population. The upstream 

extent of anadromy extended far into 

the headwaters of even the largest 

rivers. For example, Atlantic salmon 

were found throughout the West Branch 

of the Penobscot River as far as 

Penobscot Brook, a distance over 350 

river km inland (Atkins, 1870). In the 

Kennebec River, Atlantic salmon ranged 

as far inland as the Kennebec River 

Gorge and Grand Falls on the Dead 

River, 235 km inland (Foster and 

Atkins, 1867; Atkins, 1887). 

Today, the spatial structure of 

Atlantic salmon is limited by 

obstructions to passage and also by low 

abundance levels. Fish passage 

obstructions caused the decline of many 

salmon populations (Moring, 2005). 

Within the range of the GOM DPS, the 

Kennebec, Androscoggin, Union, and 

Penobscot Rivers contain dams that 

severely limit passage of salmon to 

significant amounts of spawning and 

rearing habitat. 

In addition, the low abundance of 

salmon within the range of the GOM 

DPS serves to concurrently limit spatial 

distribution through two mechanisms: 

(1) Lack of sufficient source 

populations, and (2) hatchery 

limitations. First, in properly 

functioning salmon populations, some 

areas have relatively abundant salmon 

populations such that they may serve as 

‘‘source’’ populations. Fish from source 

populations may seek out areas with 

fewer or no competitors. This is an 

important dispersal mechanism for all 

anadromous salmonids. Over 

evolutionary timescales, this process led 

to the colonization of nearly every river 

in Maine by Atlantic salmon. Because 

the abundance of salmon is so low 

today, this dispersal mechanism is 

likely not operating and will likely not 

operate until trends in productivity and 

abundance are reversed. Second, spatial 

distribution is limited today by hatchery 

capacity. The Penobscot River alone 

would require 12.5 million fry in order 

to properly seed all presently accessible 

rearing habitat (Trial, 2006), while 

GLNFH and CBNFH can only produce 

roughly 3.5 million fry annually (Barton 

et al., 2006). Thus, hundreds of 

thousands of otherwise suitable habitat 

units are currently unoccupied (NMFS, 

2008). The Sheepscot, Narraguagus, 

Dennys, Machias, East Machias, and 

Pleasant Rivers are usually stocked with 

as many fry as are needed to properly 

seed the habitat, although no stocking 

occurs within a 50-meter buffer around 

areas known to have spawning activity 

the previous year in order to reduce 

competition between potentially wild 

and hatchery fry (described in detail by 

Trial, 2006). Hatchery space for the 

Penobscot population is limited by 

hatchery capacity, such that only 2.5 

million fry are typically allocated and 

stocked into the Penobscot River 

annually. Other rivers within the 

freshwater range of the GOM DPS have 

been stocked to a very limited degree in 

some years, usually with Penobscotorigin fry (see section 5 of Fay et al., 

2006, for a detailed review). 

The influence of hatcheries on spatial 

structure of the GOM DPS is positive. 

Without hatchery contributions, fewer 

juveniles would inhabit the rivers of 

Maine. In section 7.2., Fay et al. (2006) 

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examined recent MDMR electrofishing 

data, which demonstrated that rivers 

with large scale stocking efforts have 

much higher juvenile densities 

compared to those rivers without large 

scale stocking efforts. The hatchery, 

therefore, has allowed for maintenance 

of the current spatial structure of the 

GOM DPS. Without the hatcheries, there 

likely would have been a greater 

reduction in spatial distribution. In 

summary, spatial distribution of the 

GOM DPS is positively influenced by 

the Atlantic salmon conservation 

hatchery supplementation program in 

the following ways: 

1. The use of captive broodstock from 

seven separate populations reduces the 

risks of random environmental and 

demographic events; 

2. Stocking maintains the spatial 

distribution of the GOM DPS; 

3. Stocking has been used to 

repopulate unoccupied areas, when 

determined to be an appropriate 

management action. 

As illustrated above, the spatial 

distribution of the GOM DPS has been 

significantly reduced from historic 

levels and is currently limited by low 

abundance of Atlantic salmon. 

However, we conclude that spatial 

distribution would have experienced 

even greater reductions without the 

influence of hatcheries. 

Genetic Diversity 

In general, large populations have 

higher levels of genetic diversity than 

small populations. As population sizes 

decrease, and the potential for mating 

related individuals increases, the threat 

of inbreeding in a population also 

increases. Inbreeding has been 

documented to decrease overall fitness 

of a population (Spielman et al., 2004; 

Lynch and O’Hely, 2001), reducing the 

long-term population viability. Thus, 

maintaining sufficient levels of genetic 

variability and structure is of utmost 

importance to endangered and 

threatened species. 

Historical salmon populations within 

the range of the GOM DPS were several 

orders of magnitude higher than they 

are today and occupied a greater 

diversity of habitats. As such, genetic 

diversity levels of the GOM DPS are 

likely to have been higher historically as 

well. Lage and Kornfield (2006) 

demonstrated significant reductions in 

diversity and effective population size 

in the Dennys River from 1963 to 2001. 

This raises concern that diversity levels 

today are lower than historical levels. 

However, results from genetic surveys 

conducted by the USFWS suggest that, 

overall, the GOM DPS is not currently 

suffering significant negative effects due 

to inbreeding. Estimates of genetic 

diversity (e.g., average heterozygosity, 

relatedness coefficients, and allelic 

diversity and frequency) within captive 

populations are evaluated within the 

hatchery broodstocks according to the 

CBNFH Broodstock Management Plan 

(Bartron et al., 2006). Broodstock 

management is evaluated annually and 

is revised as needed to minimize the 

potential for inbreeding and maintain 

genetic diversity (Bartron et al., 2006). 

The effects of hatcheries on genetic 

diversity of the GOM DPS are both 

positive and negative; however, the 

positive effects outweigh the negative 

effects at this time. Below, we describe 

the positive and negative effects of 

hatcheries on diversity levels of the 

GOM DPS. Genetic diversity of the GOM 

DPS is positively influenced by the 

Atlantic salmon conservation hatchery 

supplementation program in the 

following ways: 

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 hatchery program; 

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 pedigree lines for those 

populations most at risk reduces the 

chance of catastrophic loss of an entire 

population; 

4. 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. 

There are significant risks associated 

with the current reliance on hatcheries 

for the persistence of the GOM DPS. As 

mentioned previously, these risks 

include artificial selection, inbreeding 

depression, and outbreeding depression. 

Over the long term, artificial selection 

for the hatchery environment is 

considered a threat to survival. If parr 

are not recovered in numbers sufficient 

for broodstock and spawning 

requirements, it becomes necessary to 

establish pedigree lines, which means 

that natural selection from fry to parr 

stage may no longer be incorporated 

into the life cycle (details of pedigree 

line management are in Fay et al., 2006, 

and Bartron et al., 2006). Establishment 

of pedigree lines is only resorted to in 

instances when one of the following 

criteria is met: 

1. The number of broodstock for a 

particular population is low (less than 

collection target); 

2. There is a threat of few or no 

hatchery or wild spawned parr being 

recovered; or 

3. Loss of family variation through 

general parr collection practices is 

projected to cause appreciable losses in 

local population diversity in the near 

future. 

In recent years, pedigree lines have 

been established for broodstock from the 

Pleasant River (due to insufficient parr 

collection) and the Dennys River (due to 

a large aquaculture escape event). 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 

known 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 increases, 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 populations 

with significantly different genetic 

composition. 

Over time, these risks will increase 

and more negative effects may appear. 

At this time, however, results from 

USFWS genetic screening programs 

suggest that domestication, inbreeding 

depression, and outbreeding depression 

do not appear to be negatively 

impacting the GOM DPS. 

Summary 

In summary, all available metrics of 

abundance, productivity, spatial 

distribution, and genetic diversity are 

cause for concern for the GOM Atlantic 

salmon DPS. Contemporary abundance 

estimates of adult spawners are several 

orders of magnitude lower than 

historical abundance. Estimates of 

productivity are well below those 

required to sustain a viable population 

over the long term. The spatial 

distribution of the GOM DPS has been 

severely reduced relative to historical 

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distribution patterns. Genetic diversity 

levels, though apparently stable, are 

likely much lower than they were 

historically (Lage and Kornfield, 2006) 

and lower than more abundant 

populations in Canada (Spidle et al., 

2003). Finally, while conservation 

hatcheries positively influence several 

of these metrics, they have not yet been 

able to reverse the observed declines in 

wild adult spawners. In the following 

sections of this final rule, we use this 

information combined with recent 

population viability analyses to analyze 

the current conservation status of the 

GOM DPS. 

Population Viability Analyses 

Statistical methods can be used to 

quantitatively estimate population 

growth, and more importantly, 

extinction probabilities for a species. 

The simplest type of model to perform 

this can be referred to as a simple 

Population Viability Analysis (PVA). A 

simple PVA quantitatively estimates 

population growth and extinction 

probabilities for a single population 

(Dennis et al., 1991). A simple PVA is 

a stochastic exponential growth model 

of population size. These types of 

models are best used with census data 

where the sampling variability is small 

compared to the population or 

environmental variability (Dennis et al., 

1991). 

More complex versions of PVAs have 

been developed where life history 

characteristics, such as the age 

distribution within abundance 

measures, are accounted for within the 

model. In addition, a modified approach 

has been developed where different life 

history processes are 

compartmentalized within the model 

allowing for the incorporation of such 

things as juvenile survival rates, adult 

survival rates, habitat limitations/ 

degradation, age-specific fecundity, or 

migration rates (Brook et al., 1999; 

Marmontel, 1997; Ratner et al., 1997; 

Zhang and Wang, 1999). Other complex 

PVAs have been developed to help 

managers decide between competing 

management regimes, whereby 

population growth (or conversely 

extinction probability) can be predicted 

based on changes to survival at one or 

more life stages. Thus, PVA models can 

vary widely in complexity. 

Some general caveats are associated 

with the use and interpretation of PVAs. 

It is particularly important to recognize 

that PVAs are merely projections about 

what might happen in the future based 

on the data used to compile the model 

and assumptions made to address 

uncertainties (Ralls et al., 2002; Legault, 

2005). Because PVAs do not account for 

all potential sources of future 

environmental variation and because of 

the uncertainty inherent in predicting 

future conditions, especially over longer 

timeframes, we use PVA results 

cautiously and consider them as just 

one of the pieces of information we 

evaluate in determining a species’ 

conservation status. 

For the purpose of considering the 

risks of extinction for Atlantic salmon, 

we have two PVAs to consider: the 

simple PVA conducted by Fay et al. 

(2006), and the SalmonPVA (Legault, 

2004; Legault, 2005). Both are 

instructive in considering the relative 

extinction risks to the GOM DPS. They 

also help clarify the importance of 

marine survival and hatchery 

supplementation in considering 

extinction risks. It is important to note 

that the Services look at estimates of 

how extinction probability changes over 

multiple timeframes and not at only a 

single estimate of the extinction 

probability for a single time period. This 

is consistent with the cautions noted by 

Fay et al. (2006) and Legault (2005). 

Fay et al. (2006) used a simple PVA 

to assess the extinction risk to the GOM 

DPS as defined in this final rule. This 

PVA examined a number of different 

scenarios and provided a wide range of 

alternative outputs. In particular, it 

included three different endpoints: 1 

individual, 50 individuals, and 100 

individuals. An endpoint greater than 

zero, referred to as a quasi-extinction 

threshold or QET, reflects the point at 

which the population is considered to 

be functionally extinct, that is, nonrecoverable due to loss of fitness of 

individuals, inability of individuals to 

carry out essential population functions, 

or other problems. Compared with use 

of an extinction threshold of zero, use 

of a QET would produce a higher 

probability of extinction over the same 

time period or the same probability of 

extinction over a shorter time period. 

An extinction threshold of one 

individual, which recognizes that there 

is no longer a population to model, is 

not typically referred to as a QET; 

compared to a threshold of zero 

individuals, it will not materially affect 

a model’s results. Although a model’s 

results using different extinction 

thresholds are not directly comparable, 

they do provide useful information 

about the condition of the population 

over time. 

Fay et al. (2006) presented a range of 

estimated extinction risks for a variety 

of time horizons (0 to 100 years, with 

20-year intervals). This analysis used 

adult return data from two time series 

(1980–2004 and 1991–2004) to estimate 

population growth and extinction 

probabilities for the GOM DPS. The two 

time series were separated because of 

the regime shift in marine survival 

observed for Atlantic salmon throughout 

the North Atlantic that began in 1991 

(ICES, 2005). This regime shift 

represents a change in productivity and 

marine survival of Atlantic salmon in 

the Northwest Atlantic that has 

persisted to date. In short, projections 

for the time period 1980 to 2004 are 

more ‘‘optimistic’’ because those data 

include roughly 10 years of higher 

marine survival; projections for the time 

period 1991 to 2004 are more 

‘‘pessimistic’’ because they only include 

observations during the recent period of 

lower marine survival. Using this 

method, Fay et al. (2006) provided a 

wide range of extinction risks, but all 

scenarios considered clearly trended 

toward extinction. Comparing the two 

time series clearly shows the 

importance of marine survival; 

extinction risks are more severe for the 

1991 to 2004 time series (Figure 3) 

compared to the 1980 to 2004 time 

series (Figure 2). 

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The results of the Fay et al. (2006) 

PVA are based solely on the dynamics 

of the population during the timeframes 

examined (1980 to 2004) and are 

dependent on the following 

assumptions: (1) Hatchery 

supplementation continues into the 

future for up to 100 years 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). The Fay et al. (2006) PVA 

does not include the risk of disruptions 

to hatchery operations (e.g., due to 

disease outbreak) or the risk of genetic 

effects (such as inbreeding and 

domestication selection described 

above) of hatchery supplementation. 

The SalmonPVA (Legault, 2004) was 

developed for the GOM DPS of Atlantic 

salmon as listed in 2000 and does not 

include the Penobscot population. 

Given that smaller initial population 

sizes exacerbate the extinction process 

(Holmes, 2001), the probability of 

extinction for any given time period for 

the GOM DPS as defined in this final 

rule, which includes the Penobscot 

population, might be lower than the 

estimates produced by the model for the 

GOM DPS as listed in 2000. However, 

the Penobscot population is also in 

decline and subject to many of the same, 

as well as additional, environmental 

stressors. Thus, the model results are 

still generally instructive for this 

analysis. The SalmonPVA model was 

developed to aid in the formation of 

delisting criteria for the GOM DPS as 

listed in 2000 and to assess the efficacy 

of different management strategies 

towards this delisting goal. 

The SalmonPVA (Legault, 2004, 2005) 

incorporates all salmon life stages, 

different survival rates for each stage, 

four different marine survival scenarios, 

freshwater habitat capacity, harvest, 

straying rates, and hatchery stocking as 

inputs into the model. Extinction in the 

SalmonPVA was defined as no fish alive 

at any life stage; this model, unlike the 

Fay et al. (2006) PVA, does not use 

QETs (i.e., it does not identify an earlier 

point in decline at which the population 

would become functionally extinct). 

The SalmonPVA (Legault, 2004, 2005) 

demonstrates that current levels of 

hatchery supplementation may reduce 

extinction risk to the GOM DPS as listed 

in 2000 depending on the rate of marine 

survival. In simulations where current 

low marine survival estimates increased 

to the mean of the last 30 years, the 

SalmonPVA estimated that the 

extinction risk in the next 100 years (for 

the GOM DPS as listed in 2000) was 

approximately 1 percent in simulations 

where hatchery supplementation 

continued for 50 years, 72 percent if 

continued hatchery supplementation 

was reduced from 50 years to 30 years, 

and near 100 percent if hatchery 

supplementation ceased in 10 years. 

Furthermore, in simulations using a 

constant low marine survival scenario 

representing the current environment, 

there was a 100 percent chance of 

extinction within 100 years regardless of 

the number of years of stocking, and 

extinction occurred within 20 years of 

the last stocking event. 

Like the results of the Fay et al. (2006) 

PVA, the results of the SalmonPVA 

(Legault 2004, 2005) are dependent on 

assumptions about future conditions 

remaining the same. These assumptions 

include the level of hatchery 

supplementation (i.e., number of fish 

stocked), freshwater survival, freshwater 

carrying capacity, and straying rates of 

adult fish among rivers. Also like the 

Fay et al. (2006) PVA, the SalmonPVA 

(Legault 2004, 2005) does not include 

the risk of disruptions to hatchery 

operations (e.g., due to disease outbreak) 

or the genetic risks (such as inbreeding 

and domestication selection described 

above) of hatchery supplementation. It 

is expected that extinction would 

proceed much faster than indicated by 

the model’s simulation results if and 

when these effects become operative in 

the GOM DPS. The SalmonPVA does 

include scenarios where hatchery 

operations cease (without attributing 

that to a cause which could be lack of 

funding, disease outbreak or evidence of 

significant genetic risks), and those 

scenarios illustrate that declines rapidly 

follow the elimination of the hatchery. 

Both the Fay et al. (2006) and Legault 

(2004, 2005) PVAs assumed that 

hatchery supplementation would 

continue at its present level even when 

there were 100 or fewer returning adults 

in the Penobscot. However, hatchery 

supplementation (in particular, smolt 

stocking) could not continue at the same 

level in the future if returning adults fell 

below 150 because that is the number of 

adults necessary to make full use of the 

current conservation hatchery capacity 

for the smolt stocking program that 

currently sustains the Penobscot 

population (section 5.2.1 of Fay et al., 

2006). Smolt stocking increases the 

number of returning adults, so if the full 

number of smolts could not be produced 

and stocked, there would be fewer 

adults returning which would result in 

an even smaller population. Adult 

returns to the Penobscot constitute a 

substantial proportion of the total 

returns to the GOM DPS (Table 2). 

Additional problems would arise if 

there were 150 or fewer adult returns to 

the Penobscot. If there were only 150 

adult returns, it is likely all of their 

production would be used for smolt 

production (M. Bartron, USFWS, pers. 

comm., 2009). Fry production for the 

Penobscot would have to come from 

domestic broodstocks. If the domestic 

broodstocks (at GLNFH and other 

sources) were not able to be sustained 

because all the adult production was 

being used for smolt production, then 

there would be no fry production for the 

Penobscot. If the total production from 

150 fish were used to produce smolts, 

and not to replenish domestic 

broodstocks, then those backup 

broodstocks for the Penobscot would no 

longer exist (M. Bartron, USFWS, pers. 

comm., 2009). Fry production in the 

other rivers (those maintained at 

CBNFH) would continue. 

If there were 150 or fewer adults in 

the Penobscot, or if smolt stocking and 

fry stocking was curtailed, there would 

be an increased risk of genetic problems 

because the rate of loss of genetic 

diversity (and the potential for 

inbreeding) is inversely proportional to 

the effective population size (number of 

individuals reproducing). As the 

number of individuals reproducing 

decreases, the rate of loss of genetic 

diversity increases, as does the potential 

for inbreeding. The potential for loss of 

genetic diversity further increases when 

populations remain low for extended 

periods of time. A faster population 

decline and genetic impacts would 

increase the probability of extinction 

beyond the predictions of the two PVAs. 

In addition to providing estimates of 

extinction probability, the Fay et al. 

(2006) and Legault (2004, 2005) PVAs 

also provide useful projections 

regarding the condition of the 

population over time. For example, the 

results of the Legault (2004, 2005) PVA 

demonstrate that, while the estimated 

extinction probability may be low under 

certain scenarios of long-term hatchery 

supplementation and improved marine 

survival, the population can continue to 

decline to extinction. For the model 

scenario producing an extinction 

probability estimate of 1 percent in 100 

years if marine survival increased to the 

30-year average and hatchery 

supplementation continued for 50 years, 

the replacement rate was still less than 

1, indicating the simulated GOM DPS 

was still in decline. Also under this 

scenario, the model predicted that three 

of the eight river populations would be 

extirpated. 

In summary, PVA results must be 

interpreted carefully. The two PVAs 

considered here do not include risks 

associated with other sources of 

environmental variation (e.g., 

aquaculture escapement and disease 

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outbreak in the wild) identified in the 

Summary of Factors Affecting the 

Species section. Because these PVAs do 

not account for all potential sources of 

future environmental variation, and 

because of the uncertainty inherent in 

predicting future conditions, especially 

over longer timeframes, we do not 

consider the numerical estimates of 

extinction probabilities in the PVA of 

Fay et al. (2006) and the SalmonPVA 

(Legault 2004, 2005) to be the actual 

extinction probabilities of the newly 

defined GOM DPS. 

We have no information to indicate 

that marine survival will significantly 

improve. We find that, based on the 

available trend information, it is most 

reasonable to assume that marine 

survival will continue at approximately 

its current low level. Therefore, we 

conclude that the results of the Fay et 

al. (2006) PVA and the Legault (2004, 

2005) PVA that are based on marine 

survival values above the current low 

level are unrealistic. 

Also, based on information on 

diseases (see Factor C in the Factors 

Affecting the Species section of this 

final rule), or concerns such as 

catastrophic loss to water supply or feed 

contamination (P. Santavy, USFWS, 

pers. comm., January 23, 2009), there is 

a risk of disruptions to hatchery 

operations. Based on the information on 

long-term hatchery operations (NRC, 

2004; Fay et al., 2006, at section 8.5.1; 

SEI, 2007), there is a risk of genetic 

problems from hatchery 

supplementation. At present, these risks 

are not quantifiable, and are therefore 

not accounted for in either PVA. 

However, we find that these risks are 

substantial in the long term because of 

the dependence on the conservation 

hatchery program. 

Because the models do not include 

the risk of disruptions to hatchery 

operations, the risk of genetic effects of 

hatchery supplementation, and risks 

associated with other sources of 

environmental variation, we conclude 

that all of the results of the Fay et al. 

(2006) PVA and the Legault (2004, 2005) 

PVA may considerably underestimate 

the probability of extinction. 

Nevertheless, the Fay et al. (2006) PVA 

and the Legault (2004, 2005) 

SalmonPVA do tell us much about 

certain factors affecting the status of the 

GOM DPS as defined in this rule, 

especially the significance of hatchery 

supplementation and marine survival, 

and we use this information to provide 

important context for evaluating threats 

in the following sections of this rule. 

Previous Federal Actions 

In 1991, the FWS designated Atlantic 

salmon in five rivers in Downeast Maine 

(the Narraguagus, Pleasant, Machias, 

East Machias, and Dennys Rivers) as 

Category 2 candidate species under the 

ESA (56 FR 58804; November 21, 1991). 

Both Services received identical 

petitions in October and November of 

1993 to list the Atlantic salmon (Salmo 

salar) throughout its historic range in 

the contiguous United States under the 

ESA. On January 20, 1994, the Services 

found that the petition presented 

substantial scientific information 

indicating that the petitioned action 

may be warranted (59 FR 3067). 

The Services conducted a joint review 

of the species in January 1995, and 

found that the available biological 

information indicated that the species 

described in the petition, Atlantic 

salmon throughout its range in the 

United States, did not meet the 

definition of ‘‘species’’ under the ESA. 

Therefore, the Services concluded that 

the petitioned action to list Atlantic 

salmon throughout its historical United 

States range was not warranted (60 FR 

14410; March 17, 1995). In the same 

notice, the Services determined that a 

DPS consisting of populations in seven 

rivers (the Dennys, East Machias, 

Machias, Pleasant, Narraguagus, 

Ducktrap, and Sheepscot Rivers) did 

warrant listing under the ESA. On 

September 29, 1995, after reviewing the 

information in the status review, as well 

as state and foreign efforts to protect the 

species, the Services proposed to list the 

seven rivers DPS as a threatened species 

under the ESA (60 FR 50530; September 

29, 1995). The proposed rule contained 

a special rule under section 4(d) of the 

ESA which would have allowed for a 

State plan, approved by the Services, to 

define the manner in which certain 

activities could be conducted without 

violating the ESA. In response to that 

special provision in the proposed rule, 

the Governor of Maine convened a task 

force that developed a Conservation 

Plan for Atlantic Salmon in the seven 

rivers. That Conservation Plan was 

submitted to the Services in March 

1997. 

The Services reviewed information 

submitted from the public, current 

information on population levels, and 

assessed the adequacy of the Maine 

Atlantic Salmon Conservation Plan, 

and, on December 18, 1997, withdrew 

the proposed rule to list the seven rivers 

DPS of Atlantic salmon as threatened 

under the ESA (62 FR 66325). In that 

withdrawal notice, the Services 

redefined the species under analysis as 

the GOM DPS to acknowledge the 

possibility that other populations of 

Atlantic salmon could be added to the 

DPS if they were found to be naturally 

reproducing and to have wild stock 

characteristics. NMFS maintained the 

GOM DPS as a candidate species to 

acknowledge ongoing concern over the 

species’ status. In the 1997 withdrawal 

notice, the Services outlined three 

circumstances under which the process 

for listing the GOM DPS of Atlantic 

salmon under the ESA would be 

reinitiated: (1) An emergency which 

poses a significant risk to the well-being 

of the GOM DPS is identified and not 

immediately and adequately addressed; 

(2) the biological status of the GOM DPS 

is such that the DPS is in danger of 

extinction throughout all or a significant 

portion of its range; or (3) the biological 

status of the GOM DPS is such that the 

DPS is likely to become endangered in 

the foreseeable future throughout all or 

a significant portion of its range. 

The Services received the State of 

Maine 1998 Annual Progress Report on 

implementation of the Conservation 

Plan in January 1999. On January 20, 

1999, the Services invited comment 

from the public on the first annual 

report and other information on 

protective measures and the status of 

the species. The comment period 

remained open until March 8, 1999 (64 

FR 3067). The Services reviewed all 

comments submitted by the public and 

provided a summary of those, along 

with their own comments, to the State 

of Maine in March 1999. The State of 

Maine responded to the Services’ 

comments on April 13, 1999. 

In order to conduct a comprehensive 

review of the protective measures in 

place and the status of the species, as 

was committed to in the 1997 

withdrawal notice, the BRT was 

reconvened to update the January 1995 

Status Review for Atlantic salmon. The 

1999 Status Review was made available 

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

November 17, 1999, the Services 

published a proposed rule to list as 

endangered the GOM Atlantic salmon 

DPS, which was defined to include all 

naturally reproducing remnant 

populations of Atlantic salmon from the 

Kennebec River downstream of the 

former Edwards Dam site northward to 

the mouth of the St. Croix River at the 

United States-Canada border. At that 

time, the Services stated that, to date, 

they had determined that these 

populations were found in the Dennys, 

East Machias, Machias, Pleasant, 

Narraguagus, Sheepscot, and Ducktrap 

Rivers and in Cove Brook, all in eastern 

Maine. On November 17, 2000 (65 FR 

69459), the Services published a final 

rule listing the GOM Atlantic salmon 

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DPS as endangered. In that final rule, 

we noted that a determination as to the 

appropriateness of adding the mainstem 

and upper tributaries of the Penobscot 

River to the DPS would be made upon 

completion of genetic analyses. 

The 2006 Status Review for 

Anadromous Atlantic Salmon (Salmo 

salar) in the United States (Fay et al., 

2006) assessed genetic and life history 

information and concluded that the 

GOM DPS as defined in 2000 should be 

redefined to encompass the Penobscot, 

Kennebec, and Androscoggin Rivers. 

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 the 

petitioned action may be warranted. 

On September 3, 2008 (73 FR 51415), 

we proposed to revise the extent of the 

GOM DPS and list the DPS as 

endangered; we also announced our 12- 

month finding that listing was 

warranted for the petition to list 

Atlantic salmon in the Kennebec River 

as endangered. On September 5, 2008 

(73 FR 51747), NMFS proposed to 

designate critical habitat for the revised 

GOM DPS of Atlantic salmon. 

The Services jointly administer the 

ESA as it applies to anadromous 

Atlantic salmon. In 2006, the USFWS 

Region 5 and NMFS Northeast Region 

entered into a Statement of Cooperation 

to divide responsibility for ESA 

implementation with respect to Atlantic 

salmon in order to enhance efficiency 

and effectiveness. Experience 

implementing this agreement, changes 

in structure of the recovery program, 

and anticipated increases in workload 

associated with this listing action 

caused the Services to revisit the 2006 

agreement. A new Statement of 

Cooperation has been signed which 

clarifies roles and responsibilities 

between the Services. The Statement of 

Cooperation assigns the following 

responsibilities to NMFS: critical habitat 

designation; section 7 consultations (for 

both the species and critical habitat) on 

activities within estuaries and marine 

waters; ESA activities and actions to 

address dams; assessment activities in 

the estuary and marine environment; 

and international science and 

management. The Statement of 

Cooperation assigns the following 

responsibilities to USFWS: 

Administrative lead for development of 

a new recovery plan; section 10 

recovery permits; section 10 habitat 

conservation plans (for all activities 

except dams); section 7 consultations 

(for both the species and critical habitat) 

on activities in freshwater (except 

dams); and the conservation hatchery 

program. 

Summary of Comments 

With the publication of the proposed 

listing determination for the GOM DPS 

on September 3, 2008, we announced a 

90-day public comment period 

extending through December 2, 2008. 

We held two public hearings at two 

different locations to provide additional 

opportunities and formats to receive 

public input as announced on October 

21, 2008 (73 FR 62459). A joint NMFS/ 

FWS policy requires us to solicit 

independent expert review from at least 

three qualified specialists, concurrent 

with the public comment period (59 FR 

34270; July 1, 1994). In December 2004, 

the Office of Management and Budget 

(OMB) issued a Final Information 

Quality Bulletin for Peer Review 

establishing minimum peer review 

standards, a transparent process for 

public disclosure, and opportunities for 

public input. The OMB Peer Review 

Bulletin, implemented under the 

Information Quality Act (Pub. L. 106– 

554), is intended to provide public 

oversight on the quality of agency 

information, analyses, and regulatory 

activities, and applies to information 

disseminated on or after June 16, 2005. 

We solicited technical review of the 

proposed listing determination from 

four independent experts, and received 

reviews from two of these experts. The 

independent expert review under the 

joint NMFS/FWS peer review policy 

collectively satisfies the requirements of 

the OMB Peer Review Bulletin and the 

joint NMFS/FWS peer review policy. 

Comments were submitted from 

interested individuals; state, Federal 

and tribal agencies; fishing groups; 

environmental organizations; industry 

groups; and peer reviewers with 

scientific expertise. The summary of 

comments and our responses below are 

organized into seven general categories: 

(1) Tribal comments (2) peer review 

comments; (3) comments on the 

delineation of the GOM DPS; (4) 

comments on the conservation status of 

the GOM DPS; (5) comments on the 

Services’ identification and 

consideration of specific threats; (6) 

comments on the consideration of 

conservation efforts in general as well as 

in relation to the conservation status of 

the GOM DPS; and (7) comments on the 

Federal management of the GOM DPS. 

During the public comment period, 

the Services met with a number of 

groups to address specific concerns and 

questions on the proposed listing 

decision. The hydropower industry, 

agriculture industry, and various state 

agencies were among the groups with 

which the Services met. These 

discussions focused on clarification of 

information in the proposed rule and 

the potential implications of the listing 

decision on Atlantic salmon 

management and the ongoing operations 

of industry. These meetings were not 

held to solicit or receive comments on 

the proposed rule, but rather to provide 

clarification. Meeting participants were 

instructed to submit comments on the 

proposed rule through the regular 

means, and those are identified and 

addressed in the comments section of 

this rule. The Services also met with 

representatives from some of the Maine 

Tribes, including the Penobscot Indian 

Nation, The Houlton Band of Maliseets, 

the Aroostook Band of Micmacs, and the 

Passamaquoddy Tribe. The Services 

appreciate the importance of our 

Federal trust responsibilities and the 

spirit of government-to-government 

consultation embodied in Secretarial 

Order 3206 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act) and Executive Order 13175 

(Consultation and Coordination with 

Indian Tribal Governments). The focus 

of the government-to-government 

consultation was on the implications of 

the listing decision on Atlantic salmon 

management and exploring options to 

further enhance our cooperation on 

Atlantic salmon recovery. 

Tribal Comments 

Comment 1: The Penobscot Indian 

Nation commented that it maintains its 

right to directly take Atlantic salmon for 

sustenance purposes. Penobscot Indian 

Nation members have not lethally taken 

an Atlantic salmon since 1988 at which 

time two Atlantic salmon were 

harvested for ceremonial purposes. The 

Penobscot Indian Nation has not 

exercised its right to take any Atlantic 

salmon for traditional purposes since 

that time based upon concerns about the 

health of the Penobscot Atlantic salmon 

population. The Penobscot Indian 

Nation stated that it will continue to 

abstain from taking any Atlantic salmon 

until the status of the Penobscot 

population is healthy enough to be able 

to sustain some level of harvest. 

Response: The Services appreciate the 

importance of Atlantic salmon to the 

Penobscot Indian Nation in particular as 

well as other Maine Tribes. The Services 

recognize both the Penobscot Indian 

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Nation’s tribal rights and the Services’ 

responsibility to implement the ESA. 

Given that Penobscot Indian Nation has 

not exercised its right to take Atlantic 

salmon since 1988 on a voluntary basis, 

the Services believe that there is no 

conflict provided the Penobscot Indian 

Nation continues to voluntarily abstain 

from taking based upon continued 

concerns about the conservation status 

of the Penobscot population. 

Comment 2: The Penobscot Indian 

Nation commented that it would not 

take any position on whether the 

species should be listed as threatened or 

endangered. The Penobscot Indian 

Nation defers to the Services’ expertise 

to make that determination. 

Response: The Services have provided 

justification for the listing decision in 

this final rule. 

Peer Review Comments 

Comment 3: Both reviewers agreed 

with the delineation of the GOM DPS of 

Atlantic salmon. However, both 

reviewers felt there were parts of the 

text that could be further clarified, 

specifically consideration of available 

genetic data for the northern and 

southern boundaries in relation to the 

zoogeographic information used. 

Response: The Services received 

comments from both peer reviewers and 

the general public regarding necessary 

clarification of the data used to support 

the southern boundary delineation in 

particular. The Services have clarified 

the text in the DPS delineation section 

of this final rule. 

Comment 4: One of the peer reviewers 

stated that the discussion of the 

population PVA was perhaps 

overemphasized and could be 

simplified while still communicating 

extinction risk. The reviewer notes that 

there are simpler deterministic 

equilibrium models that could have 

been used to more simply state 

extinction risk. 

Response: The Services have clarified 

the text of the rule addressing PVAs and 

the projections. The Services 

acknowledge that there are a number of 

different types of models that could 

have been used to project extinction risk 

or demonstrate the conservation status 

of the species. The Services chose the 

PVA models because they are useful in 

assessing extinction risks. Further, the 

Atlantic salmon conservation and 

management community in Maine are 

more familiar with them than with other 

models, given the public’s previous 

exposure to them during the recovery 

planning process and the development 

of the 2006 Status Review. We agree 

with the peer reviewer that the PVA is 

just one piece of information considered 

in the listing determination; in the text 

of this final rule, we have clarified our 

findings with respect to the PVAs and 

how they factor into the biological 

status of the species. 

Comment 5: Both reviewers noted that 

the proposed rule lacked necessary 

description for how threats were 

categorized as either primary or 

secondary threats. Neither felt that this 

was an incorrect way to communicate 

the magnitude of the threat; rather, the 

basis for this determination should be 

better explained and supported in the 

text. 

Response: The Services agree that the 

description of threats as primary or 

secondary could have been better 

explained in the proposed rule. Upon 

review, the Services decided to take a 

different approach to describing the 

magnitude of the threat and its 

influence on the conservation status of 

the GOM DPS under the ESA. Rather 

than comparing the magnitude of the 

threats to each other, we have identified 

the relative impact of each of the threats 

on the species and its habitat. The text 

has been modified accordingly. 

Comment 6: One of the reviewers had 

concerns about the discussion of 

artificial propagation under Factor E 

(Other Natural or Manmade Factors 

Affecting its Continued Existence). 

While the reviewer agrees with the 

Services’ conclusion that the 

conservation hatchery program is 

reducing the risk of extinction of the 

GOM DPS, he highlighted areas where 

the text should be clarified. Specifically, 

the short- and long-term goals of the 

conservation hatchery program should 

be better described in relation to how 

the program is currently being 

conducted. 

Response: Upon closer review and in 

response to the peer review, the 

Services have changed the way in which 

artificial propagation and specifically 

the conservation hatchery program are 

described and considered. While there 

are both positive and negative effects 

resulting from any artificial propagation 

program, the Services have determined 

that it would be more appropriate to 

move the discussion of the role of the 

conservation hatchery program and its 

influence on the current status of the 

species and recovery to the section of 

the rule describing the status of the 

species rather than describing it in the 

section pertaining to the threats. The 

Services have also revised the 

description of the program and its role 

in recovery of the GOM DPS in response 

to comments received from both peer 

reviewers and the general public. 

Comment 7: One reviewer 

recommended minor clarifications to 

the text in Factor E addressing 

diadromous fish communities, marine 

survival, and competition. 

Response: The Services have clarified 

the text in these sections to be 

responsive to comments from both peer 

reviewers and the general public. 

Comment 8: Both reviewers 

commented that the section applying 

the Policy for Evaluation of 

Conservation Efforts when making 

Listing Decisions (PECE) to conservation 

actions was unclear and seemed 

incomplete. They questioned the 

analysis of only one conservation 

initiative, the Penobscot River 

Restoration Project (PRRP). 

Response: The Services agree that 

analysis of conservation efforts under 

PECE is more transparent if a complete 

analysis of a variety of efforts is 

included in the rule. We have revised 

the section addressing analysis of 

conservation actions. 

Comment 9: Both reviewers 

commented that the determination to 

list the GOM DPS of Atlantic salmon as 

endangered was sound and only 

suggested minor clarifications to the 

text. 

Response: The Services have made 

minor changes and clarified the text in 

this section. 

Public Comments 

Comment 10: Many commenters 

believe that certain river systems, 

particularly the Androscoggin and the 

Union, should not be included within 

the GOM DPS boundaries. They argue 

that we erred in using different criteria 

(zoogeographic and genetic) to delineate 

the southern and northern boundaries of 

the DPS and that we should delay the 

decision to include the Androscoggin in 

the DPS until the naturally reared 

population in Androscoggin can be 

genetically characterized. Commenters 

also suggest that river systems where the 

species has been extirpated, such as the 

Union, should not be included within 

the DPS range. 

Response: The 1996 Interagency 

Policy Regarding the Recognition of 

Distinct Vertebrate Populations Under 

the Endangered Species Act (61 FR 

4722) (DPS Policy) states that a 

population segment may be considered 

discrete in relation to the remainder of 

the species to which it belongs if ‘‘it is 

markedly separated from other 

populations of the same taxon as a 

consequence of physical, physiological, 

ecological or behavioral factors. 

Quantitative measures of genetic or 

morphological discontinuity may 

provide evidence of this separation.’’ 

The DPS Policy does not restrict the 

Services to using only one measure to 

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define discreteness of a population 

segment. In fact, the introduction to the 

second element (significance) that must 

be met in evaluating whether a 

population qualifies as a DPS says that 

a population segment may be 

considered discrete based on ‘‘one or 

more’’ of the discreteness conditions. 

As more thoroughly described in the 

‘‘Review of Species Delineation’’ section 

of this final rule, genetic data were 

available for us to delineate the northern 

boundary of the GOM DPS. These data 

show clear genetic differentiation 

between populations inhabiting rivers 

in Maine and rivers in New Brunswick, 

with the Dennys River population 

clustering more closely with the Maine 

population and the St. Croix River 

population clustering more closely with 

populations in New Brunswick. 

Therefore, we used the Dennys 

watershed as the northern boundary of 

the DPS. However, because of the 

combination of low numbers of Atlantic 

salmon in some rivers (e.g., only three 

naturally reared adult returns to the 

Androscoggin River (Table 3)) and the 

complete extirpation of the native stock 

in other rivers (e.g., Merrimack River), 

complete genetic data are not, and may 

never be, available for us to genetically 

characterize these populations. 

In the absence of clear genetic 

information to define the southern 

boundary of the GOM DPS, we used 

ecological factors in addition to the 

genetic factors described above. In 

particular, we used the zoogeographic 

boundary (the Penobscot-KennebecAndroscoggin EDU and the Laurentian 

Mixed Forest Province) that ecologically 

separates the Androscoggin watershed 

from watersheds to the south (e.g., Saco, 

Merrimack, and Connecticut 

watersheds). EDUs, defined by Olivero 

(2003), are aggregations of watersheds 

with similar zoogeographic history, 

physiographic conditions, climatic 

characteristics, and basin geography. 

EDUs generally have similar 

physiographic and climatic conditions 

(Higgins et al., 2005). These differences 

would influence the structure and 

function of aquatic ecosystems (Vannote 

et al.,1980; Cushing et al., 1983; 

Minshall et al., 1983; Cummins et al., 

1984; Minshall et al., 1985; Waters, 

1995) and create a different 

environment for the development of 

local adaptations than rivers to the 

south. Therefore, we believe this 

zoogeographic boundary sufficiently 

satisfies the criteria to define 

discreteness for the southern edge of the 

GOM DPS. 

In listing the GOM DPS, our goal is 

ultimately to recover the species so it no 

longer requires the protection of the 

ESA. Therefore, we have delineated 

boundaries for the GOM DPS that 

include all the areas of current and 

historical occupation of Atlantic salmon 

where those salmon would be identified 

as belonging to the GOM DPS. During 

recovery planning, we will further 

evaluate the recovery needs of the GOM 

DPS. It is likely that different levels of 

attention will be paid to the recovery of 

the DPS in different watersheds, based 

in part on the threats within a particular 

watershed and the habitat potential 

within a watershed. Delineating the 

entire GOM DPS conserves this 

ecosystem for Atlantic salmon survival 

and recovery, in addition to supporting 

straying, providing refugia, and 

buffering against catastrophic events. 

Comment 11: Some commenters 

suggest that the boundaries of the DPS 

delineation should not extend into 

watersheds that were historically 

unoccupied by Atlantic salmon because 

they are upstream of historical, natural 

barriers (e.g., waterfalls). 

Response: Based on the comments 

received, analyses by NMFS (2008), and 

information contained in the 2006 

Status Review, we delimited the 

freshwater range of the GOM DPS to 

include only those areas downstream of 

substantial barrier falls. For this final 

rule, we have modified the geographic 

boundaries of the freshwater range of 

the GOM DPS in the Androscoggin, 

Kennebec, and Penobscot Basins in the 

following ways: All freshwater bodies in 

the Androscoggin Basin are included up 

to Rumford Falls on the Androscoggin 

River and up to Snow Falls on the Little 

Androscoggin River; all freshwater 

bodies in the Kennebec Basin are 

included up to Grand Falls on the Dead 

River and the un-named falls (currently 

impounded by Indian Pond Dam) 

immediately above the Kennebec River 

Gorge; and all freshwater bodies in the 

Penobscot Basin are included up to Big 

Niagara Falls on Nesowadnehunk 

Stream, Grand Pitch on Webster Brook, 

and Grand Falls on the Passadumkeag 

River. See the ‘‘Delineating Geographic 

Boundaries’’ section of this final rule. 

Comment 12: Many commenters 

stated that the Services did not 

accurately determine the conservation 

status of the GOM DPS. These 

commenters disagreed with the 

Services’ proposal that the GOM DPS 

should be listed as endangered under 

the ESA. Instead, they argued that a 

threatened listing determination was 

more appropriate. The definition of 

endangered is ‘‘in danger of extinction 

throughout all or a significant portion of 

its range.’’ Several commenters argued 

the results of the PVA conducted by 

Legault (2004, 2005) demonstrated that 

the GOM DPS had a less than one 

percent chance of extinction provided 

that hatchery supplementation 

continued into the future. Thus, some 

commenters felt that the definition of 

threatened, ‘‘likely to become 

endangered * * *’’ was more 

appropriate given the role of hatcheries 

in preventing extinction. Commenters 

also cited the success of the 

conservation hatchery program as 

evidenced by the status of rivers within 

the 2000 GOM DPS that were supported 

by hatchery supplementation versus 

those that were not. The replacement 

rate reported by the USASAC was also 

cited as evidence of the positive 

contribution of the hatchery program to 

returns within the GOM DPS. 

Response: We agree that the 

conservation hatcheries (CBNFH and 

GLNFH) provide a buffer against shortterm extinction risks. Without these 

facilities in place, the status of the GOM 

DPS would be even more dire. However, 

as described in the ‘‘Population Status 

of the GOM DPS’’ section of this final 

rule, only three of the four population 

attributes of interest (abundance, spatial 

structure, and genetic diversity) are 

enhanced by the conservation 

hatcheries. In particular, the lack of any 

evidence that hatchery fish have the 

potential to result in wild returns over 

successive generations remains a 

significant concern. While the increase 

in replacement rate reported in 2007 by 

the USASAC is a positive sign, the 

overall trend remains negative when 

taken together. Further, 1 year of 

positive population growth is 

insufficient to justify threatened status. 

The extended timeframes for 

extinction (provided that hatchery 

supplementation continues) projected 

by Legault (2005) are further evidence of 

the buffering effect of hatcheries. 

However, these projections do not 

include any consideration of the 

negative effects of reliance on hatcheries 

over successive generations. Recent 

evidence suggests that the negative 

effects of domestication, inbreeding 

depression, and outbreeding depression 

can accrue over just a few generations 

(Araki et al., 2007). While we do not 

believe these negative effects are 

substantially reducing the long-term 

viability of the GOM DPS at this time, 

each successive generation will likely 

have higher risks of reduced fitness 

because of these effects. These additive 

risks over time are not modeled or 

otherwise accounted for in the 

extinction risks scenarios described by 

Legault (2005). The PVA results of 

Legault demonstrate that extinction 

occurs quickly when the conservation 

hatchery is eliminated. This provides 

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further evidence that the wild 

population is currently in danger of 

extinction. 

Finally, the SalmonPVA (Legault 

2005) showed that at the constant low 

marine survival scenario representing 

the current environment, there was a 

100 percent chance of extinction within 

100 years regardless of the number of 

years of stocking, and extinction 

occurred within 20 years of the last 

stocking event. Legault (2005) 

demonstrated that an increase in marine 

survival substantially decreased the 

extinction probabilities. The scenario in 

which Legault found there to be a 1 

percent chance of extinction assumed 

an increase in marine survival to the 

high of the previous 30 years. 

Unfortunately, we have no information 

to indicate that marine survival will 

significantly improve; therefore, there is 

no scientifically sound basis for 

assuming there is only a one percent 

chance of the GOM DPS going extinct. 

Comment 13: One commenter felt that 

both hatchery-origin and naturally 

reared Atlantic salmon should be 

equally weighted in terms of their 

population contribution to the GOM 

DPS. This commenter felt that the 

inclusion of both hatchery-origin and 

naturally reared Atlantic salmon in the 

GOM DPS was inconsistent with the 

way in which the Services weighted the 

relative contribution of each group to 

recovery. The Services’ determination of 

the conservation status of the GOM DPS 

placed a higher weight on naturally 

reared fish in terms of their contribution 

to recovery versus hatchery origin fish 

(fish stocked as parr, smolts, or adults). 

Response: The stated purpose of the 

ESA is ‘‘to provide a means whereby the 

ecosystems upon which endangered 

species and threatened species depend 

may be conserved’’ (16 U.S.C. 

§ 1531(b)). Using captive propagation as 

a recovery tool is clearly warranted 

when necessary, as in the case of the 

GOM DPS. However, the intent of the 

ESA is quite clear: the ultimate goal of 

species recovery efforts should be 

recovery in the wild, free from human 

intervention. While CBNFH and GLNFH 

clearly reduce the immediate risk of 

extinction of the GOM DPS, they have 

not been shown to substantially 

contribute to recovery in the wild. The 

influence of hatcheries on productivity 

is not known with certainty, but overall 

productivity (even with hatchery 

supplementation) is quite low. Hatchery 

fish are included in the GOM DPS 

because they are essential to recovery, 

and the sole purpose of the conservation 

hatchery is recovery. But, recovery 

means recovery in the wild, so the goal 

of the hatchery is to, over time, increase 

the percentage of returns that are of wild 

origin to the point that the GOM DPS 

becomes self-sustaining and is no longer 

dependent on the hatchery. Over time, 

more adult returns should successfully 

spawn in the wild, resulting in 

replacement rates above 1.0. However, 

the idea that adult returns from hatchery 

contributions result in more spawners 

and, ultimately, more truly wild-origin 

adult returns, remains an untested 

hypothesis. The National Research 

Council (NRC, 2004) and the 

Sustainable Ecosystems Institute (SEI, 

2007) identified this as a key limitation 

in available data on the recovery efforts 

of salmon in Maine. Without this 

information, it is impossible to estimate, 

with any certainty, the effect of 

hatcheries on this key population 

attribute (productivity). The 

conservation hatchery has assisted in 

slowing the decline and helped stabilize 

populations at low levels, but has not 

contributed to an increase in the overall 

abundance of wild salmon. 

Comment 14: Several commenters felt 

that the Services’ listing determination 

placed too much emphasis on the 

potential for a catastrophic failure at the 

conservation hatchery facilities. 

Commenters acknowledged that this 

may have been an issue when the 

Services initially listed the GOM DPS in 

2000, given that all broodstock were 

held at CBNFH. However, the expansion 

of the GOM DPS to include the 

Penobscot and other rivers means that 

there are now several facilities that 

house broodstock (e.g., GLNFH, the 

USDA facility, and the Cooke Facility 

on the Kennebec). Thus, loss of all 

broodstock due to a catastrophic failure 

is highly unlikely. 

Response: The Services agree that the 

loss of all potential broodstock would be 

extremely unlikely. However, it would 

not take the loss of all broodstock to 

significantly jeopardize the long-term 

viability of the GOM DPS. Catastrophic 

broodstock loss or a catastrophic loss of 

fry, parr, or smolt cohorts would result 

in a decrease in effective population 

size, loss of genetic diversity, and a 

multi-year lag while life stages rebuild, 

during which time there would be 

limited or no hatchery production or 

stocking. 

Domestic broodstock for the 

Penobscot is currently maintained at 

facilities in addition to GLNFH. These 

domestic broodstocks should be viewed 

as backups. These sources are meant to 

be replenished annually (i.e., new 

domestic broodstock lines are created 

each year) for GLNFH to reduce longterm selection to the hatchery 

environment. If there was a situation 

where the numbers of adult returns 

were reduced to 150 or less, then all 

production would go toward smolt 

production and not to fry stocking or to 

replenish domestic broodstocks. These 

backup broodstocks would no longer 

exist (M. Bartron, USFWS, pers. comm., 

2009). If these domestic broodstocks 

were used to propagate future domestic 

broodstocks, there would be greater 

concerns about the decreased fitness of 

their offspring in the wild from 

successive generations of selection to 

captivity. 

The Services have concluded that the 

conservation hatcheries significantly 

contribute to the maintenance of the 

genetic diversity of the GOM DPS. 

However, there are both long-term and 

short-term risks of reliance on 

hatcheries that have been considered 

above in the ‘‘Population Status of the 

GOM DPS’’ section of this final rule. In 

addition, recent events provide 

additional evidence of the potential for 

catastrophic events to further exacerbate 

extinction risks. In January 2009, 

significant mortality occurred to eggs of 

Penobscot origin at CBNFH. Low egg 

survival rates in the Penobscot 

population required the use of the 

domestic line for smolt production 

(50,000) for the first time ever. The 

relative fitness rate of the sea-run line 

has not been compared to the domestic 

line, so the demographic effects are 

unpredictable. The cause for the low egg 

survival rate is unknown, but is being 

investigated at the time of writing of this 

rule. 

Comment 15: Several commenters felt 

that by increasing the geographic scope 

of the GOM DPS to include additional 

populations, one being the Penobscot, 

which has the highest returns to the 

DPS, the extinction risk is substantially 

reduced. Therefore, these commenters 

felt that a threatened listing 

determination is warranted. 

Response: All things being equal, 

larger populations do have lower 

extinction risks. However, the inclusion 

of the Penobscot population in the GOM 

DPS does not alter the trends in 

abundance, which are pointing toward 

extinction. The addition of the 

Penobscot population does provide 

some measure of security from 

immediate extinction risks, but does not 

reverse the long-term trend which is 

toward extinction. 

Comment 16: At least one commenter 

argued that a threatened listing 

determination could be justified based 

upon the returns to both the Penobscot 

and Downeast Salmon Habitat Recovery 

Units (SHRU). These two SHRUs, 

according to the commenter, satisfy the 

minimum recovery criteria by having at 

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least 500 (naturally reared and hatchery 

origin) salmon within each SHRU. 

Response: In developing its draft 

recovery criteria for use in the critical 

habitat designation process, NMFS 

specifically noted that in order to be 

eligible for recovery, SHRUs would not 

only need to meet a minimum 

population size of 500 individuals, but 

also show a positive population growth 

rate for at least two generations (10 

years). Further, only wild-origin salmon 

are included in these measures because 

the goal of recovery is to achieve a selfsustaining population; a population that 

relies on hatchery stocking is not selfsustaining and therefore does not 

contribute to achievement of the 

recovery criteria. These criteria have 

clearly not been met in either case given 

the long-term downward trends in 

abundance and preponderance of 

hatchery-origin salmon composing the 

GOM DPS as described throughout this 

final rule. NMFS’ draft recovery 

guidelines (2008) also state that in order 

to delist the GOM DPS, the threats 

identified at the time of listing must be 

addressed. 

Comment 17: Many commenters 

argued that the PVA results of Legault 

(2004, 2005) and Fay et al. (2006), 

coupled with low returns and poor 

marine survival, demonstrate that the 

Services are correct in their proposal to 

list the GOM DPS as endangered under 

the ESA. These commenters felt that the 

intent behind the ESA is to recover wild 

populations and that hatchery origin 

fish are only a temporary option until 

the wild population recovers. 

Response: We concur. We also 

recognize the long-term risks of reliance 

on hatcheries that are not accounted for 

in either PVA. Therefore, we are issuing 

this final rule to list the GOM DPS of 

Atlantic salmon as endangered. 

Comment 18: A small number of 

commenters argued against listing the 

expanded GOM DPS at all. They argued 

that the rivers included in the 

expansion are heavily stocked and do 

not represent self-sustaining 

populations. They also stated that 

existing regulatory mechanisms are 

sufficiently protective, and thus, listing 

under the ESA is not necessary. 

Response: Many endangered species 

are currently not self-sustaining. In fact, 

this is a key factor in determining 

whether a species should be listed; selfsustaining populations are generally less 

likely to need the protection of the ESA, 

depending on the threats facing the 

species. The Services do recognize the 

long history of stocking to support 

Atlantic salmon recovery in Maine. We 

describe both the positive and negative 

effects of hatchery supplementation in 

the ‘‘Population Status of the GOM 

DPS’’ section of this final rule. The 

weight of the available genetic, life 

history, and ecological data clearly 

indicates that the GOM DPS (including 

conservation hatchery populations used 

to supplement natural populations) 

satisfies both the discreteness and 

significance criteria of the DPS Policy, 

and therefore, is a DPS. The fact that the 

GOM DPS is not self-sustaining with the 

existing regulatory mechanisms and is 

trending toward extinction indicates it 

warrants the protection of the ESA. 

Comment 19: Several commenters felt 

that the threat posed by dams was 

overstated. Specifically, they disagree 

with the Services’ assertion that current 

fish passage technology results in a high 

level of mortality and that dams 

contribute to significant changes in fish 

assemblages and predation. One 

commenter stated that in focusing on 

the threat posed by dams, the Services 

failed to recognize hydropower as a 

clean source of energy production. 

Response: The Services disagree that 

the threat posed by dams is overstated. 

The National Research Council stated in 

2004 that the greatest impediment to 

self-sustaining Atlantic salmon 

populations in Maine is obstructed fish 

passage and degraded habitat caused by 

dams. There are many studies that 

support this conclusion that are 

reviewed and cited in Section 8 of Fay 

et al. (2006). Dams result in direct loss 

of production habitat, alteration of 

hydrology and geomorphology, 

interruption of natural sediment and 

debris transport, and changes in 

temperature regimes (Wheaton et al., 

2004). Riverine areas above 

impoundments are typically replaced by 

lacustrine habitat following 

construction. Dramatic changes to both 

upstream and downstream habitat 

directly result in changes in the 

composition of aquatic communities, 

predator/prey assemblages, and species 

composition (NRC, 2004; Fay et al., 

2006; Holbrook, 2007). Upstream 

changes in habitat are known to create 

conditions that are ideal for known 

predators of Atlantic salmon such as 

chain pickerel, smallmouth bass, and 

avian predators like double crested 

comorants (Fay et al., 2006). 

Furthermore, dams not only change 

predator-prey assemblages, but dam 

passage also negatively affects predator 

detection and avoidance in salmonids 

(Raymond, 1979; Mesa, 1994). Adults 

may also be susceptible to predation 

when they are attempting to locate and 

pass an upstream passage facility at a 

dam when stressed by higher summer 

temperatures (Power and McCleave, 

1980). 

Even highly effective passage facilities 

cause Atlantic salmon mortality. 

Passage inefficiency and delays occur at 

biologically significant levels, resulting 

in incremental losses of pre-spawn 

adults, smolts, and kelts (a life stage 

after Atlantic salmon spawn). Dams are 

known to typically injure or kill 

between 10 and 30 percent of all fish 

entrained at turbines (EPRI, 1992). With 

rivers containing multiple hydropower 

dams, these cumulative losses could 

compromise entire year classes of 

Atlantic salmon. Studies in the 

Columbia River system have shown that 

fish generally take longer to pass a dam 

on a second attempt after fallback 

compared to the first (Bjornn et al., 

1999). Thus, cumulative losses at 

passage facilities can be significant and 

are an important consideration. 

The Services do recognize that 

hydropower does not contribute to air 

pollution as do many other energy 

sources. However, dams remain a direct 

and significant threat to Atlantic 

salmon. 

Comment 20: Several commenters 

stated that existing recreational fishing 

regulations in the State of Maine are 

sufficiently protective of Atlantic 

salmon. Specifically, minimum and 

maximum length limits are cited for 

landlocked salmon and brown trout, as 

well as gear restrictions, area closures, 

and outreach programs to educate 

anglers on identification and mandatory 

regulations. Several of these 

commenters highlighted the importance 

of the support of the angling community 

to the conservation and recovery effort. 

They encouraged the Services to 

coordinate with the angling community 

prior to enacting regulations to ensure 

that unnecessary regulations are not 

enacted and that angling opportunities 

are made available when biologically 

appropriate and that any changes are 

consistent with the 1996 Policy for 

Conserving Species Listed or Proposed 

for Listing Under the ESA While 

Providing and Enhancing Recreational 

Fishing Opportunities. Several 

commenters directly stated that the 

health of the Penobscot population 

could indeed support a directed catch 

and release fishery. 

Response: There are a number of 

minimum and maximum length limits 

that help reduce the threat of take of 

juvenile and adult anadromous Atlantic 

salmon. Similarly, closures have been 

enforced in certain areas where 

anadromous Atlantic salmon may be 

particularly susceptible to take. 

However, the Services believe that many 

of these regulations are still not 

sufficiently protective of outmigrating 

smolts and of adults. Minimum and 

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maximum length limits should be 

adjusted to be more protective, 

specifically, the maximum length limit 

of 25 inches (63.5 cm) for landlocked 

salmon should be decreased to 16 

inches (40.6 cm) in certain areas. 

Closures should be prompted by the 

presence of adult Atlantic salmon in 

certain areas such as thermal refugia, 

overwintering areas, and holding pools. 

Some closures mandated by the State 

have been the result of emergency 

action following the lethal take of 

Atlantic salmon. A proactive approach 

to closures and regulation 

implementation will be more effective 

in terms of salmon recovery. 

The Services recognize that the 

angling community has lent significant 

support to the conservation and 

recovery of Atlantic salmon in the GOM 

DPS. We believe that we have been very 

inclusive and transparent with respect 

to the angling community and issues of 

concern. We invited representatives of 

angler organizations to participate as 

members of the Atlantic Salmon 

Recovery Team and have been engaged 

and participated in critical discussions 

in other forums such as the Maine 

Atlantic Salmon Technical Advisory 

Committee and NASCO. We will 

continue to coordinate and collaborate 

with the angling community as we move 

forward with recovery and management 

of the GOM DPS. We believe that we 

have been consistent with the 1996 

Policy for Conserving Species Listed or 

Proposed for Listing Under the ESA 

while Providing and Enhancing 

Recreational Fishing Opportunities in 

our communication and coordination 

with the angling community, and we 

will continue to be consistent in the 

future. 

It is not biologically appropriate, at 

this time, to allow a directed catch and 

release fishery on the Penobscot River. 

The Atlantic salmon population in the 

Penobscot River is highly dependent on 

hatchery stocking; broodstock goals 

have not been met in most recent years; 

and the population is less than 10 

percent of its spawning escapement 

target. Given these low numbers, it is 

important to meet broodstock goals and 

also to allow some returning adults to 

spawn naturally in the river. Decreasing 

the chances of reaching both of these 

goals by allowing targeted fishing on 

returning adults does not further the 

conservation of the species. There also 

are legal restrictions on targeted fishing 

for a listed species. 

Comment 21: Maine’s Department of 

Inland Fish and Wildlife (MIFW) stocks 

a variety of fish species to provide 

angling opportunities to Maine citizens. 

The bulk of the comments on MIFW 

stocking programs were submitted as 

comments on Factor B (Overutilization 

for Commercial, Recreational, Scientific 

and Educational Purposes). While 

stocking programs do cause take of 

Atlantic salmon due to angling, they 

also can have a negative impact on 

Atlantic salmon due to competition, 

particularly from non-native species. 

Factor E (Other Natural or Manmade 

Factors Affecting Its Continued 

Existence) addresses the issue of 

competition. Thus, comments related to 

stocking and potential competition 

issues are addressed in the section of 

the response to comments under Factor 

E. 

Comments that were directly related 

to the impact of stocking programs on 

Atlantic salmon as a result of the 

expansion or increase in angling 

opportunities cite coordination with the 

MDMR as evidence that measures are 

taken to minimize any harmful effects of 

stocking practices on Atlantic salmon. 

Commenters also stated that in some 

areas where the habitat is not fully 

seeded with Atlantic salmon, informal 

agreements between MDMR and MIFW 

have been reached to allow for a certain 

level of fish stocking to enhance angling 

opportunities without creating a 

significant threat to salmon that may be 

in the area. One commenter also cited 

guidelines that are in the process of 

being finalized that will be used to 

manage rainbow trout stocking. Several 

commenters disagree with the Services’ 

conclusion that these stocking programs 

are harmful to Atlantic salmon. 

Response: MIFW stocking practices 

that create more angling opportunities 

in areas occupied or used by Atlantic 

salmon contribute to the potential for 

take to occur as a result of 

misidentification, bycatch, or poaching. 

MIFW stocking programs are not 

directed to Atlantic salmon recovery or 

ecosystem restoration. They are 

intended to create and enhance angling 

opportunities, and, where these overlap 

with salmon, there is increased risk to 

salmon. MIFW currently stocks 

landlocked Atlantic salmon, brown 

trout, brook trout, rainbow trout, and 

splake in Atlantic salmon drainages, 

posing a threat to Atlantic salmon in the 

GOM DPS (Fay et al., 2006). The 

information presented by commenters 

with respect to angling regulations and 

stocking program management does not 

change our conclusion that angling and 

stocking programs associated with 

increased angling opportunities pose an 

ongoing threat to Atlantic salmon in the 

GOM DPS. While coordination may 

reduce or minimize exposure of Atlantic 

salmon to increased angling pressure, 

the fact remains that angling pressure is 

higher than it would be in the absence 

of these stocking programs. 

Comment 22: One commenter was 

concerned that the text on the threat of 

disease did not reflect the State of 

Maine’s effort to attain Class A fish 

health ratings for the hatcheries 

managed by MIFW. 

Response: The text has been changed 

to reflect the effort on behalf of the State 

of Maine to achieve the Class A fish 

health rating. With this effort, disease 

issues still pose a threat to Atlantic 

salmon as described in Factor C below. 

Comment 23: One commenter felt that 

the text in the predation threat analysis 

did not acknowledge the restoration 

efforts of the State of Maine, specifically 

the Penobscot River Multi-species 

Management Plan and the Penobscot 

Interagency Technical Committee. 

Response: The Services believe that 

these two conservation actions are more 

appropriately described and evaluated 

in the analysis of conservation efforts 

under the Policy for Evaluating 

Conservation Efforts. We have revised 

that analysis to incorporate information 

on both of these efforts. 

Comment 24: Many commenters 

disagree with the Services’ conclusion 

that the regulatory mechanisms to 

address the threat posed by dams are 

inadequate. These commenters stated 

that a number of laws directly (e.g., 

Federal Power Act (FPA)) and indirectly 

(e.g., ESA, National Environmental 

Policy Act) allow Federal resource 

agencies to influence passage issues and 

hydropower agreements. They state that 

the Federal Energy Regulatory 

Commission (FERC) process is very 

transparent and allows for public 

involvement. For non-FERC dams, 

commenters cited the oversight of the 

State of Maine Department of 

Environmental Protection (MDEP) in 

addressing fish passage, flow regimes, 

and water quality. 

Response: Notwithstanding the ESA, 

the current state and Federal regulatory 

mechanisms in place to address 

operation of dams were not designed to 

address survival or recovery of 

endangered species. The Services 

recognize that there are a number of 

laws that create a process whereby 

industry, Federal resource agencies, the 

public, state agencies and other groups 

are involved in relicensing, brokering 

settlement agreements, or prescribing 

fish passage. However, as described in 

the section of this rule that addresses 

Factor D, there are substantial 

shortcomings associated with these 

processes. First, most of these processes 

require a ‘‘balancing’’ of energy and 

environmental resources. Under the 

ESA, deference is given to the species. 

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The FERC process is extremely lengthy, 

and any contentious fishway 

prescriptions could potentially take 

years to agree on and implement. 

Furthermore, neither upstream nor 

downstream fish passage measures are 

100 percent efficient. Their limitations 

contribute to juvenile and adult injury 

and mortality, as well as habitat 

alterations that affect the health and 

survival of all life stages of Atlantic 

salmon. Sections 10(a) and 10(j) of the 

FPA could be used by the Services to 

address the impact of dams on habitat; 

however, these regulatory mechanisms 

are often discretionary and not 

necessarily required by FERC (Fay et al., 

2006). Section 4(e) of the FPA may also 

be used to recommend fisheries 

enhancements; however, this section is 

only applicable to certain Federal lands 

which are a rare occurrence in Maine 

(Fay et al., 2006). 

It is also important to recognize that, 

while settlement agreements can be a 

very useful tool to address passage 

issues, they are not necessarily 

removing the issue of passage mortality 

or in some cases, even ensuring passage 

facilities. For example, the Kennebec 

Hydro Developers Accord uses 

biological triggers to establish sequential 

upstream passage. If these biological 

triggers are not met, upstream passage 

could be suspended further into the 

future. 

The majority of dams within the GOM 

DPS range do not require a FERC license 

or water quality certificate from the 

MDEP. These non-jurisdictional dams 

are usually small, non-generating dams 

that were historically used for flood 

control, water storage, and other 

purposes. Virtually none of these dams 

have fish passage facilities, and almost 

all of them are impacting historical 

salmon habitat. While there is a process 

whereby the public can petition the 

State of Maine to set minimum flows 

and water levels, the State has no 

authority to prescribe fishery 

enhancements without public request or 

petition. To our knowledge, no fishways 

have ever been installed at any dam in 

the State of Maine using the fishway 

petition process outlined pursuant to 12 

Maine Revised Statutes Annotated 

(MRSA) § 12760. Therefore, significant 

issues are ongoing with respect to the 

current mechanisms in place to address 

the threat of both FERC and non-FERC 

licensed dams. 

While regulations exist, these 

regulations have not proven effective in 

preventing impacts or quickly 

responding to remove impacts. In fact, 

the most progress on fish passage issues 

has been accomplished by working 

outside of these regulatory mechanisms 

in the negotiation of fish passage 

agreements. Aspects of the current 

regulations we find inadequate include 

the time delays experienced, extensive 

resource requirements, and inability to 

prescribe a solution which eliminates 

the impacts from dams. 

Comment 25: Some commenters 

stated that Maine’s existing water 

quality standards and criteria and its 

antidegradation policy under the Clean 

Water Act (CWA) as administered by the 

State of Maine (Maine Pollutant 

Discharge Elimination System (MPDES)) 

are sufficiently protective of all life 

stages of Atlantic salmon. Furthermore, 

commenters state that lack of requests 

by the Services to condition permits to 

avoid substantial impairment to Atlantic 

salmon is evidence that the present 

standards and criteria are protective of 

Atlantic salmon. 

Response: Maine’s water classification 

program, of which the State’s 

antidegradation policy is a part, 

provides for different water quality 

standards for different classes of waters 

(e.g., there are four classes for 

freshwater rivers, all of which are found 

within the GOM DPS range). Some 

portions of the GOM DPS are in the 

highest water quality classification 

where water quality standards are the 

most stringent. These standards become 

progressively less stringent with each 

lower water classification. These 

standards were not defined specifically 

for Atlantic salmon. Additionally, 

permits allow an area of initial dilution 

or mixing zone where water quality 

requirements are reduced. Salmon in or 

passing through such zones would be 

exposed to discharges below water 

quality standards. 

Even where water quality standards 

are believed to be sufficiently protective 

when met, there are circumstances and 

conditions where discharges do not 

meet water quality standards. There are 

documented cases where minimum 

dissolved oxygen standards were not 

met in class C waters (MDEP, 2008). 

Adequate dissolved oxygen 

concentrations are necessary for fish 

health (Decola, 1970). The observed 

incidents of low dissolved oxygen were 

potentially harmful to any salmon 

present. 

The fact that the Services have not 

requested that permits be conditioned to 

protect Atlantic salmon does not mean 

that water quality standards are 

sufficiently protective of Atlantic 

salmon. Currently, the Services review 

only permits that may affect salmon 

where listed in 2000, and the number of 

permits issued in this area has been 

relatively small. Expansion of the DPS 

as a result of this final rule will 

encompass rivers for which there are 

many more activities requiring Maine 

Pollutant Discharge Elimination System 

(MPDES) permits, and where water 

classifications and associated water 

quality standards are lower, which 

causes us to be concerned about 

potential impacts to salmon. See Factors 

A and D, below, for our analysis of the 

impact of water quality on the GOM 

DPS. 

Comment 26: Some commenters 

stated that we inaccurately emphasized 

the effects of Overboard Discharges 

(OBD) on Atlantic salmon. They explain 

that the number of OBDs, the volume of 

discharge, and the treatment 

requirements result in a negligible effect 

on water quality within the range of the 

GOM DPS. 

Response: In the proposed rule, we 

stated that we were concerned about the 

potential negative impacts of OBDs on 

water quality and identified OBDs as a 

threat to the GOM DPS. While we 

remain concerned about the potential 

for OBDs to impact Atlantic salmon, we 

have determined that we have 

insufficient information to determine 

whether OBDs are currently causing or 

will cause harm to the GOM DPS. 

Therefore, we have removed OBDs as an 

identified stressor under Factors A and 

D below. 

Comment 27: Commenters 

emphasized the importance of Maine’s 

water rule (MDEP Chapter 587 Rule) in 

protecting in-stream flows and habitat 

for aquatic life. 

Response: We agree that the Water 

Rule represents substantial progress 

toward limiting negative impacts on instream flows due to water withdrawals, 

particularly for class AA waters. 

However, there are aspects of the water 

rule that are not sufficiently protective 

of Atlantic salmon. Because the flow 

standards for class A, B, and C waters 

are based on the seasonal base flow (the 

average flow over an entire season), 

withdrawals would be allowed that 

maintain flow above the seasonal base 

flow but reduce flow below the median 

monthly flow. During times when flows 

are naturally low, allowing withdrawals 

to reduce flows further, to levels below 

the median monthly flow, would 

negatively impact Atlantic salmon. See 

Factors A and D, below, for our analysis 

of the impacts of water withdrawals 

under Maine’s water rule on the GOM 

DPS. 

Comment 28: Some commenters 

noted Maine’s forestry-related 

regulations and standards that are 

protective of Atlantic salmon. 

Response: We concur that activities 

conducted in compliance with the 

Shoreland Zoning Act, Maine Forest 

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Practices Act, Natural Resource 

Protection Act, Protection and 

Improvement of Waters Act, Erosion 

and Sedimentation Control Law, and the 

Statewide Standards for Timber 

Harvesting and Related Activities in 

Shoreland Areas reduce threats to 

Atlantic salmon from sedimentation and 

other impacts related to forestry 

activities. The State’s compliance 

monitoring and enforcement of these 

regulations and standards will assist in 

evaluating and confirming that forestryrelated impacts to salmon are 

minimized. We discuss forestry 

activities and other potential non-point 

sources of pollution under Factors A 

and D below. 

Comment 29: Several commenters 

indicated that the threat of poor marine 

survival was understated. They felt that 

considering that poor marine survival 

was characterized as one of the primary 

threats to the GOM DPS, the Services 

have failed to adequately address it in 

either the proposed rule or the 2006 

Status Review. 

Response: The Services agree and 

have incorporated additional 

information on marine survival into the 

final rule to properly reflect the 

significance of the threat of poor marine 

survival to the recovery of the GOM 

DPS. Marine survival and climate 

change are both addressed through 

analysis of the five factors specified in 

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

Comment 30: One commenter 

disagreed with the identification of 

depleted diadromous fish communities 

as a threat to the GOM DPS. The 

commenter felt that the State of Maine 

is making strides in implementing 

management actions aimed at 

restoration of diadromous fish 

communities. These programs will need 

time to achieve success; however, the 

commenter argues that the threat need 

not be considered given that there are 

programs in place to address 

diadromous fish restoration. 

Response: The Services acknowledge 

the efforts by the State of Maine at 

diadromous species restoration in the 

analysis of State protective efforts. 

While the goal of these efforts is to 

restore the full suite of diadromous 

fishes, that goal is far from being 

realized. Further, there is not a high 

level of certainty that these actions will 

be implemented and effective. It is very 

encouraging that the role of restored 

diadromous fish communities is 

recognized; however, significant 

coordination, effort, and commitment 

are necessary to achieve the goal. Thus, 

the threat of depleted diadromous fish 

communities remains. The PECE 

analysis section of this rule contains the 

Services’ evaluation of these programs 

as well as other conservation efforts. 

Comment 31: One commenter 

disagreed that MIFW sport fish stocking 

programs pose a threat to Atlantic 

salmon. These comments were 

submitted under Factor B, but in large 

part were directed at the way the 

Services characterized the threat of 

competition due to stocking under 

Factor E. The commenter stated that 

coordination between MIFW and 

MDMR is evidence that measures are 

taken to minimize any harmful effects of 

stocking practices on Atlantic salmon. 

In some areas where the habitat is not 

fully seeded with Atlantic salmon, 

informal agreements allow for a certain 

level of stocking without adversely 

affecting Atlantic salmon. The 

commenter also cited guidelines that are 

in the process of being finalized that 

will be used to manage rainbow trout 

stocking. 

Response: The Services disagree with 

the commenter that the threat posed by 

MIFW stocking programs is adequately 

addressed by the current stocking 

management program. Text has been 

added to the section of the rule that 

discusses competition to provide 

additional detail to clarify the negative 

impact current stocking programs have 

in terms of contributing to the threat of 

competition between other species and 

Atlantic salmon. The Services do 

recognize that a Memorandum of 

Understanding (MOU) exists between 

MDMR and MIFW that establishes a 

process for the management and 

stocking of freshwater salmonid fish 

species in Atlantic salmon river systems 

in Maine to ‘‘reduce the effects of 

competing finfish species on Atlantic 

salmon populations.’’ The MOU states 

that on an annual basis, at the very least, 

before April each year, biologists from 

MDMR and the MIFW will meet as a 

joint committee to: (1) Identify all 

current stocking programs for all finfish 

in identified Atlantic salmon river 

systems; (2) according to the best 

available scientific information on 

species interactions, assess the possible 

interactions between Atlantic salmon 

and inland fisheries management 

proposals; (3) identify and evaluate 

areas of concern and assess ways to 

minimize impacts; (4) implement agreed 

upon management actions or changes 

(no fish stocking or changes in 

management programs on these rivers 

shall take place other than in 

accordance with this agreement); and 

lastly, (5) develop recommendations for 

the Commissioner of Inland Fisheries & 

Wildlife and the other members of the 

Board of the Atlantic Salmon 

Commission for areas of concern that 

cannot be resolved by the joint 

committee. While this MOU does 

provide a process for managing stocking 

practices, it does not address all of the 

threats posed by the State’s stocking 

practices. Some of the issues this 

process does not address include, but 

are not limited to, the following: (1) 

Cumulative effects of repeated stockings 

and multi-species stocking on Atlantic 

salmon; (2) competition for suitable 

over-wintering areas; (3) threats from 

introduction of parasites or disease from 

stocking; (4) the threats posed by 

Atlantic salmon/brown trout hybrids; 

and (5) management of other fish 

species (smallmouth bass, chain 

pickerel, etc.). Because these and other 

issues still have not been addressed 

fully, state stocking programs continue 

to pose a threat to the GOM DPS as is 

described in this rule. 

Comment 32: Several commenters felt 

that the Services did not give enough 

consideration to ongoing conservation 

efforts in the GOM DPS. Commenters 

used specific examples, including, but 

not limited to, the Penobscot River 

Restoration Project, the Kennebec Hydro 

Agreement, and Project SHARE (Salmon 

Habitat and River Enhancement). Many 

commenters felt that the PECE was not 

appropriately applied. Commenters 

suggested that the Services may need to 

use the PECE to reevaluate projects like 

the Penobscot River Restoration Project 

for which funding and certainty of 

implementation may have changed 

since publication of the proposed rule. 

Response: The Services agree that 

analysis of conservation efforts under 

PECE is more transparent if a more 

complete analysis of major efforts is 

included in the rule. We have revised 

the section addressing analysis of 

conservation efforts. 

Comment 33: Some commenters are 

concerned that having two Federal 

agencies (NMFS and USFWS) share 

jurisdiction of Atlantic salmon is 

inefficient, which is detrimental to the 

overall conservation of Atlantic salmon. 

As a result, some recommended that 

NMFS be assigned the lead Federal 

agency for management of Atlantic 

salmon. 

Response: Joint jurisdiction of 

Atlantic salmon was first established in 

1994, when the Services worked 

together jointly to respond to a listing 

petition for Atlantic salmon. While we 

acknowledge that sharing jurisdiction 

for an endangered species is 

challenging, we believe that both 

agencies can contribute positively to 

recovery. Therefore, we will continue to 

share jurisdiction for Atlantic salmon. 

The goal of both agencies is the recovery 

of Atlantic salmon; to that end we will 

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strive to work cooperatively and 

effectively to conserve Atlantic salmon. 

To clarify roles and responsibilities of 

each agency and help resolve potential 

differences, we have developed a 

Statement of Cooperation (NMFS and 

USFWS, 2009). The preamble to this 

rule identifies how roles and 

responsibilities have been divided 

between the two agencies. 

Comment 34: Some commenters were 

concerned about the lack of resources to 

fulfill the requirements of the ESA for 

Federal agencies, the State, Tribes, or 

the regulated community as will be 

required by listing the Atlantic salmon 

in a larger area. 

Response: As required by section 

4(b)(1)(A) of the ESA, listing decisions 

are to be made solely on the basis of the 

best scientific and commercial data 

available. We fully recognize that 

resources are limited and intend, 

through our collaborative partnership 

with the State and Tribes, to make most 

efficient use of our collective resources 

to conserve and recover Atlantic 

salmon. The challenge of addressing 

high workload with limited resources is 

one of the reasons the Services have 

divided responsibility for ESA 

implementation by activity as noted in 

the response above. We will work 

within the ESA’s flexible framework to 

achieve the regulatory requirements of 

the ESA. 

Comment 35: Several commenters 

suggested that listing determinations 

should consider the likelihood of future 

cooperation and collaboration toward 

recovery. 

Response: Under the ESA, the 

Services must make each listing 

determination solely on the best 

available data on the status of the 

species, the five factors specified in 

section 4(a)(1) of the ESA, and the 

efforts being made to protect the 

species. The possibility of enhanced 

cooperation in future recovery actions is 

not one of the five statutory factors. 

While we recognize the importance of 

cooperation in achieving recovery, it is 

not one of the factors identified by the 

ESA for making listing determinations. 

Therefore, we have not considered it in 

this determination. 

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 ESA, 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 specified in 

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

In making this evaluation, we have 

carefully considered the relative 

demographic effects of each threat to the 

GOM DPS. In particular, there are large 

distinctions between marine survival 

and freshwater survival that are 

important to characterize the current 

status of the GOM DPS. From a 

demographic viewpoint, incremental 

increases in marine survival have a 

much greater impact on the population 

than do increases in freshwater survival; 

although, increases in marine survival 

may be more difficult to achieve. It is 

important to note that marine survival is 

calculated from the last time smolts are 

counted in a river until adults return to 

spawn. Thus, marine survival estimates 

may include some portion of freshwater, 

estuarine, and near-shore mortality in 

addition to open ocean mortality. 

The historical range of freshwater 

survival for U.S. populations is 

estimated to be approximately 0.13 to 

6.09 percent (Legault, 2005). These 

estimates are based on numerous 

studies on different life stages of the 

freshwater phase across a wide spatial 

and temporal scale. Current marine 

survival (smolt to adult) for U.S. 

populations is estimated to range from 

0.09 to 1.02 percent based on total smolt 

cohort return rates for the Penobscot 

(hatchery smolt returns, 1995 to 2004) 

and Narraguagus Rivers (naturally 

reared smolt returns, 1997 to 2004) 

(ICES, 2008). For the reasons mentioned 

above, marine survival estimates of 

hatchery smolts in the Penobscot also 

include dam-related mortality. 

Improvements in these survival rates 

are necessary to reach the point where 

each fish is replacing itself and to 

eventually result in population growth 

toward recovery. Increases in freshwater 

survival will enhance the probability of 

recovery; however, improvements in 

marine survival are necessary to achieve 

stability and growth. While numerous 

natural and anthropogenic factors 

during the freshwater phase influence 

Atlantic salmon populations (Baum et 

al., 1983; McCormick et al., 1998; 

Parrish et al., 1998), the effects of 

marine survival are thought to have a 

greater influence on population levels 

(Friedland et al., 2003; Jonsson and 

Jonsson, 2004; Chadwick, 1987) in part 

because the annual variation in marine 

survival is nearly four times greater than 

that in freshwater (Bley, 1987; Reddin et 

al., 1988). Thus, marine survival has a 

significant impact on adult production. 

As a result, marine survival must 

improve in order to recover the GOM 

DPS (Legault, 2005), and, thus, low 

marine survival is one of the most 

important threats contributing to the 

poor status of the species. Other factors 

affecting the freshwater stages of salmon 

within the range of the GOM DPS can 

be quite pervasive (e.g., poor 

connectivity due to improperly sized 

culverts). Below, these factors are 

described as stressors that collectively 

contribute to the poor status of the GOM 

DPS; however, those factors that affect 

later life stages (typically considered as 

marine survival) have the greatest 

demographic effect. 

Factor 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 are having the greatest 

impact on the GOM DPS. 

Dams 

Dams are among the leading causes of 

both historical declines and 

contemporary low abundance of the 

GOM DPS of Atlantic salmon (NRC, 

2004). 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 

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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 on the Kennebec is 

limited to trapping and trucking salmon 

above the first mainstem dam. 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, including both smolts and 

adults; these later life stages are 

particularly important from a 

demographic perspective as described 

above. Upstream passage effectiveness 

for anadromous fish species never 

reaches 100 percent, and substantial 

mortality and migration delays occur 

during downstream passage through 

screen impingement and turbine 

entrainment. The cumulative losses of 

smolts incrementally diminish the 

productive capacity of all freshwater 

rearing habitat above hydroelectric 

dams. The demographic consequences 

of low marine survival (described 

above) are similar to those of the 

cumulative losses of adults at 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). 

In short, dams directly and 

substantially reduce survival rates of 

salmon through the following ways: 

1. Dams directly limit access to 

otherwise suitable habitat. This has 

reduced spatial distribution of the GOM 

DPS over the last 200 years. 

2. Dams also directly kill and injure 

a significant number of salmon on both 

upstream and downstream migrations. 

Injury and mortality due to dams occurs 

at the smolt and adult life stages. These 

older life stages are particularly 

important from a demographic 

perspective (similar to marine survival) 

since slight changes in survival rates at 

older life stages can drive demographic 

trends. 

3. Dams also degrade the productive 

capacity of habitats upstream by 

inundating formerly free-flowing rivers, 

reducing water quality, and changing 

fish communities. 

Dams are also one of three primary 

factors that led to the declining 

abundance trends that began in the 

1800s. The other two factors (pollution 

and overfishing), though still operative, 

have been greatly reduced in severity 

(Moring, 2005). Dams, however, 

represent a significant threat during the 

current period of decline (1800s to 

present) and are generally more 

pervasive (over 300 within the 

freshwater range of the GOM DPS today) 

over that same time period. These 

effects have led to a situation where 

salmon abundance and distribution 

have been greatly reduced, and thus, the 

species is more vulnerable to extinction 

through processes such as demographic 

and environmental stochasticity, natural 

catastrophes, and genetic drift inherent 

in all small populations (Shaffer, 1981). 

As stated above, dams directly limit 

access to otherwise suitable habitat, 

directly kill and injure a significant 

number of salmon during both upstream 

and downstream migration, and degrade 

the productive capacity of habitats 

upstream by inundating formerly freeflowing rivers, reducing water quality, 

and changing fish communities. Dams 

affect multiple life stages in multiple 

ways, particularly by preventing or 

impeding access to spawning habitat for 

returning adult salmon; impacts at this 

late life stage have the greatest 

demographic effect. Therefore, dams 

represent a significant threat to the 

survival and recovery of the GOM DPS. 

Habitat Complexity 

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 historical timber harvest 

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 width-to-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 are 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). 

Reduced habitat complexity acts as a 

stressor on the GOM DPS by reducing 

spaces for hiding from predators and 

increasing water temperature. 

Habitat Connectivity 

Over the last 200 years, habitat 

connectivity within the freshwater range 

of the GOM DPS 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 final rule), limited 

connectivity of freshwater habitat types 

may limit the abundance of salmon 

through diminished nutrient cycling, 

and a reduction in the availability of coevolved diadromous fish species that 

provide an alternative prey source and 

serve as prey for 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 range of the GOM DPS. 

Reduced habitat connectivity is a 

stressor to the GOM DPS because it 

prevents salmon from fully using 

substantial amounts of freshwater 

habitat and changes fish community 

structure by preventing access for other 

native fish. 

Water Quantity 

Water withdrawals can directly 

impact salmon spawning and rearing 

habitat (Fay et al., 2006). Survival of 

eggs, fry, and juveniles is also mediated 

by stream flow. Low flows constrain 

available habitat and limit populations. 

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Water quantity can be affected by the 

withdrawal of water for irrigation or 

other consumptive water uses as 

described in section 8.1.1.2 of Fay et al. 

(2006). The potential for water 

withdrawals reducing in-stream flows to 

levels that may impact Atlantic salmon 

is a concern in rivers classified under 

Maine’s ‘‘In-stream flow and water level 

standards’’ as class A, B, or C. The flow 

standards for class A, B, and C waters 

are based on seasonal base flows (the 

average flow over an entire season) 

rather than median monthly flows. 

Because these flow standards are based 

on the seasonal base flow, withdrawals 

would be allowed that, while not 

reducing flow below the seasonal base 

flow, reduce flow below the median 

monthly flow. In some months, flows 

are naturally low (e.g., late summer 

months), which is stressful to fish 

because habitat is more limited, water 

temperature increases, and dissolved 

oxygen decreases. During times when 

flows are naturally low, allowing 

withdrawals to reduce flows further, to 

levels below the median monthly flow, 

would negatively impact Atlantic 

salmon. Therefore, water withdrawal 

that reduces the instream flow below 

the median monthly flow is a stressor 

on the GOM DPS because it may reduce 

habitat, increase water temperature, and 

decrease dissolved oxygen during the 

months of naturally low flow. 

Water Quality 

Atlantic salmon likely are impacted 

by degraded water quality caused by 

point and non-point source discharges. 

The MDEP administers the National 

Pollutant Discharge Elimination System 

(NPDES) program under the CWA and 

issues permits for point source 

discharges from freshwater hatcheries, 

municipal facilities, and other industrial 

facilities. Maine’s water classification 

system provides for different water 

quality standards for different classes of 

waters (e.g., there are four classes for 

freshwater rivers, all of which are found 

within the GOM DPS range); however, 

these standards were not developed 

specifically for Atlantic salmon. Some 

portions of the GOM DPS are in areas 

with the highest water quality 

classification where water quality 

standards are the most stringent. These 

standards become progressively less 

stringent with each lower water 

classification. Additionally, permits 

allow an area of initial dilution or 

mixing zone where water quality 

requirements are reduced. Salmon in or 

passing through such zones would be 

exposed to discharges below water 

quality standards. The impacts to 

salmon passing through these zones are 

unknown. We are concerned that water 

quality standards for Class A, B, and C 

waters and mixing zones may not be 

sufficiently protective of all life stages of 

Atlantic salmon, particularly the more 

sensitive salmon life stages (e.g., 

smolts). 

Even where water quality standards 

are believed to be sufficiently 

protective, there are circumstances and 

conditions where discharges do not 

meet water quality standards. For 

example, there are documented cases in 

class C waters where dissolved oxygen 

standards (the lower bound of which is 

5.0 ppm) were not met. This occurred in 

portions of the mainstem Androscoggin 

River, and in the East Branch of the 

Sebasticook River and Sabattus River 

(MDEP, 2008). When dissolved oxygen 

concentrations are less than 5.0 ppm, 

adult salmon breathing functions 

become impaired, embryonic 

development is delayed, and parr 

growth and health are impacted; 

conditions become lethal for salmon at 

dissolved oxygen concentrations less 

than 2.0 ppm (Decola, 1970). When 

water quality reaches levels that are 

harmful to salmon, it is a stressor to the 

GOM DPS. 

Non-point source discharges such as 

elevated sedimentation from forestry, 

agriculture, urbanization, and roads can 

reduce survival at several life stages, 

especially the egg stage. Sedimentation 

can alter in-stream habitat and habitat 

use patterns by filling interstitial spaces 

in spawning gravels, 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 

such as mercury, and other 

contaminants are found at varying levels 

throughout the range of the GOM DPS. 

The effects of chronic exposure of 

Atlantic salmon, particularly during 

sensitive life stages such as fry 

emergence and smoltification, to many 

contaminants is not well understood. 

Fay et al. (2006) provide a discussion of 

water quality concerns in section 8.1.3. 

For these reasons, non-point source 

pollution, particularly sedimentation 

and acid rain, is a stressor to the GOM 

DPS. 

In summary, we have determined that 

degraded water quality is a stressor on 

the GOM DPS because of the known 

situations when water quality did not 

meet standards and was at levels that 

negatively impact salmon and because 

of the impacts of non-point source 

pollution, particularly sedimentation 

and acid rain. 

Factor 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’ 

habitats, including in-river, estuarine, 

and off-shore (section 8.2 of Fay et al. 

(2006)). 

Atlantic salmon are an integral part of 

the history of Native American tribes in 

Maine, particularly the Penobscot 

Indian Nation. The species represents 

both an important resource for food, and 

perhaps more importantly, a cultural 

symbol of the deeply engrained 

connection between the Penobscot 

Indian Nation and the Penobscot River. 

In accordance with the Maine Indian 

Land Claims Settlement Act, the 

Penobscot Indian Nation retains the 

right of its members to harvest Atlantic 

salmon for sustenance purposes, and to 

self-regulate that harvest. The Penobscot 

Indian Nation harvested two salmon 

under these provisions in 1988, and has 

voluntarily chosen not to harvest any 

Atlantic salmon since then because of 

the depleted status of the species 

(Francis, Penobscot Indian Nation in 

litt., 2009). 

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 was reduced from 10 

salmon in the 1980s to one 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 all 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 experimental catch and release 

fishery was opened on the Penobscot 

River below Veazie Dam. The 30-day 

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angling season began on September 15, 

2006, and resulted in one Atlantic 

salmon being caught and released on 

September 20, 2006. This 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; 

broodstock are essential to maintaining 

current levels of conservation hatchery 

supplementation, and lack of 

broodstock would further reduce 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. 

While current state regulations for 

recreational angling do include 

minimum and maximum size limits for 

certain species (e.g., landlocked 

salmon), area closures, and outreach 

and education programs, there is still a 

threat of take of Atlantic salmon from 

recreational angling. 

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. 

Any future opportunities for 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 source of mortality 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 as 

defined in this rule, and thus, roughly 

2,519 of the 2,884 U.S. returns were 

GOM DPS fish. ICES (1993) estimated 

that adult returns to U.S. rivers could 

have potentially been increased by 2.5 

times in the absence of the West 

Greenland commercial fishery (closed in 

2001) and Labrador fisheries (closed in 

1998) during that time period. The 

United States joined with other North 

Atlantic nations in 1982 to form 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 

intercept 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). The 

West Greenland fishery has been 

restricted to an internal use fishery (i.e., 

no fish were exported) in the following 

years: 1998–2000; 2003–2008. From 

2002 to 2005, the internal-use fishery 

harvested between 19 and 25 mt 

(reported and estimated 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 U.S. 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 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 

(as defined in this rule) 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 was not included in the 

agreement. 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. 

In summary, overutilization for 

recreational and commercial purposes 

was a factor that contributed to the 

historical declines of GOM DPS. 

Intercept fisheries in West Greenland 

and St Pierre et Miquelon, bycatch in 

recreational fisheries, and poaching act 

as stressors on the GOM DPS because 

they result in direct mortality or cause 

stress reducing reproductive success 

and survival. 

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Factor C. Disease or Predation 

Disease 

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 

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. 

These fish most likely 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 revealed additional detections of 

the virus in Cobscook Bay (Maine) sites 

in 2003, 2004, 2005, and 2006. 

In summary, the MIFW, MDMR, and 

the federally managed conservation 

hatcheries all must adhere to rigorous 

disease prevention and management 

regulations and protocols; despite these 

protocols there remains a risk of disease 

outbreaks. Additionally, there is a risk 

of a disease outbreak in the wild. While 

disease(s) can have devastating 

population-wide effects when they 

occur, there are efforts in place to 

prevent and manage disease outbreaks 

in conservation hatcheries and 

aquaculture facilities. Disease is not 

presently impacting the GOM DPS. 

However, the efforts in place to manage 

this risk cannot completely eliminate 

the potential for disease outbreak. 

Further, if a large outbreak were to 

occur, it could have significant impacts 

on the GOM DPS. 

Predation 

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)). Native freshwater fishes known 

to prey on Atlantic salmon include 

brook trout, burbot, American eel, 

fallfish, and common shiners. In 

estuarine and marine environments 

Atlantic salmon are prey to striped bass, 

Atlantic cod, pollock, porbeagle shark, 

Greenland shark, Atlantic halibut, and 

many other species. Many species of 

birds, mink, and several species of seal 

also prey on Atlantic salmon. Thus, 

predation levels may contribute to the 

low marine survival regimes currently 

experienced by the GOM DPS. 

Atlantic salmon have evolved a suite 

of strategies that allow them to co-exist 

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; site specific and cumulative 

delay, injury, or stress experienced 

during migration and passage over/ 

through 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. For example, 

in the estuarine environment, 

cormorants are an important predator of 

outmigrating smolts. However, the 

abundance of alternative prey sources 

such as alewives likely minimized the 

impact of cormorant predation on the 

GOM DPS historically. Similarly, 

changes in fish assemblages due to 

stocking of non-native species have 

resulted in predator species inhabiting 

many of the same areas used by Atlantic 

salmon. This is particularly true of 

smallmouth bass and brown trout (van 

de Ende, 1993; MASC and MIFW, 2002). 

The threat posed by these predator 

species is simply compounded in areas 

where Atlantic salmon are experiencing 

physiological stress due to obstructions 

to passage (Raymond, 1979; Mesa, 1994; 

Blackwell et al., 1997) and poor habitat 

quality and complexity (Cunjak, 1996; 

Blackwell and Krohn, 1997; Larinier, 

2000). 

In summary, the impact 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 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. 

Predation acts as a stressor on the GOM 

DPS because of high levels of predators 

and low numbers of Atlantic salmon. 

Factor 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. 

Dams 

As stated previously, 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 the habitat that was 

historically accessible. Even where 

salmon can presently access suitable 

habitat, they must often pass several 

dams to reach their natal spawning 

habitat. 

Hydroelectric dams: Hydroelectric 

dams in the GOM DPS are licensed by 

the FERC under the FPA. Currently, 

within the historical range of Atlantic 

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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. In the Androscoggin 

watershed 16 hydroelectric dams within 

the range of the GOM DPS are 

impassable due to the lack of fishways. 

In the Kennebec watershed, 15 dams are 

impassable, along with 12 dams in the 

Penobscot watershed. Presently, 15 

dams in the Androscoggin, 7 dams in 

the Kennebec, and 9 dams in the 

Penobscot are FERC-licensed without 

any specific fish passage requirements. 

1. Mechanisms Available at 

Hydroelectric Dams Outside of FERC 

(Re)licensing 

Several mechanisms exist within the 

framework of the FPA that could 

potentially be used to address impacts 

of dams. However, many of these 

mechanisms are only available in 

relicensing. Of the 70 dams licensed by 

FERC in Maine, 3 are currently in 

relicensing, 3 are covered by the 

Penobscot River Restoration Project 

with plans to remove them before 

expiration of their licenses, and 8 will 

be up for relicensing in the 2010s, 22 in 

the 2020s, 19 in the 2030s, 11 in the 

2040s, and 4 in the 2050s. Thus, the 

bulk of these projects will not be up for 

relicensing for 10 to 20 years or more. 

The current licenses for many, though 

by no means all, of these projects 

contain reservations of FPA section 18 

authority that could allow fishways to 

be prescribed by the Services (16 U.S.C. 

811). However, exercise of that authority 

requires administrative proceedings 

before the FERC and the Services which 

could themselves take several years, and 

the outcome is far from certain. As to 

the remainder of the projects whose 

licenses contain no reserved authority, 

reopening of these licenses may be 

dependent upon the success of a 

petition to the FERC to exercise its own 

reserved authority. This is not a 

dependable recourse as the decision to 

even consider such a petition is subject 

to FERC’s discretion. Additional 

avenues may be available, consistent 

with the Interagency Task Force Report 

on Improving Coordination of ESA 

Section 7 Consultation with the FERC 

Licensing Process, but these remain 

largely untested. 

Furthermore, lack of 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. These threats may not be 

addressed by the Services’ reserved 

authority under Section 18 of the FPA; 

the only mechanism available outside of 

relicensing is a petition to FERC to 

exercise its own discretionary authority. 

2. Mechanisms Available at 

Hydroelectric Projects in FERC 

(Re)licensing 

Even in relicensing, the regulatory 

mechanisms for protection of salmon 

are inadequate to remove the significant 

threat to the survival of the species 

posed by dams. First, fish passage may 

be addressed by the Services in 

relicensing pursuant to their mandatory 

authority under Section 18 of the FPA 

(16 U.S.C. 811). However, as noted 

above, this requires a lengthy 

administrative proceeding before the 

Services and FERC, and the outcome is 

not certain. Moreover, the result is a 

FERC license containing a requirement 

to construct and operate fish passage. 

However, a substantial amount of 

mortality and passage inefficiency may 

occur even with fishways in place, 

given that fish passage facilities are 

never 100 percent efficient. Further, 

enforcement of FERC licenses can be 

done only by FERC, is subject to 

administrative processes with uncertain 

outcome, and has frequently, in the 

Services’ view, been less than prompt 

where fish passage or fish habitat issues 

have been at stake. 

The other threats posed by dams to 

Atlantic salmon, besides lack of fish 

passage, may also be addressed in 

relicensing by the Services, via Sections 

10(a) and 10(j) of the FPA (16 U.S.C. 

sections 797 and 803). However, these 

are mechanisms for making 

recommendations to the FERC, which 

factors them into the balancing of 

factors in its public interest 

determination under Section 10(a) of the 

FPA. There is no guarantee that species 

protection would be a controlling factor 

in the FERC’s decision. In practice, such 

recommendations are often not required 

by the FERC (Black et al., 1998). 

The Services recognize that they and 

the FERC are not the only authorities 

with a role to play in protecting fish in 

hydropower relicensing. 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 CWA. The MDEP is the 

certifying agency for all hydropower 

project licensing and relicensing 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 State of 

Maine can require fish passage and 

habitat enhancements at FERC licensed 

hydroelectric projects (See S.D. Warren 

v. Maine Board of Environmental 

Protection 547 U.S. 370, 126 S.Ct. 1843 

(2006)). As with Section 18 authority, 

though section 401 authority is binding 

on the FERC, it requires administrative 

proceedings with uncertain outcomes. 

Also, it is not clear that this mechanism 

is available except in relicensing, or 

where MDEP has specifically reserved 

authority to alter the terms of its prior 

certification. Authority under section 

401 of the CWA permits the certifying 

state to certify that the discharge will 

comply with the terms of the CWA, 

including any state water quality 

standards. It is not clear that section 401 

permits regulation of conditions in the 

reservoirs above dams, except indirectly 

where the water quality of the reservoir 

is controlled by the quality of discharges 

from an upstream dam. 

Finally, in other parts of the country, 

mandatory conditioning authority under 

section 4(e) of the FPA is often used by 

the Services in relicensing to 

recommend fisheries enhancements. 

However, this authority is only available 

to a Federal agency where there are 

Federal lands under its jurisdiction 

within the project boundary, and acts as 

a mechanism to protect the 

‘‘reservation.’’ Federal lands where 

Section 4(e) could be applied are rare in 

Maine, and 4(e) does not provide an 

adequate mechanism for protection of 

Atlantic salmon throughout the GOM 

DPS. 

Non-hydroelectric dams: 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 dams are typically 

small dams historically used for a 

variety of purposes, including flood 

control, storage, and process water (for 

industries such as blueberry harvesting). 

Because they do not generate electricity, 

they are not subject to the jurisdiction 

of the FERC under the FPA. Practically 

none of these dams within the range of 

the GOM DPS have fish passage 

facilities, and all 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. Lack of 

fish passage and other impacts to 

salmon may currently be addressed only 

through the mechanisms of State law. 

Fish passage may be required by the 

State of Maine under 12 M.R.S.A section 

12760. However, this requires an 

administrative process and a hearing, if 

one is requested by the dam owner. An 

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order to construct fish passage under 

this statute requires a finding that fish 

can be restored ‘‘in substantial 

numbers’’ and that habitat above the 

dam ‘‘is sufficient and suitable to 

support a substantial commercial or 

recreational fishery.’’ These are very 

different considerations from the ESA’s 

focus on prevention of extinction. 

Furthermore, this statute has never been 

used to require fish passage at any dam 

in Maine, and, despite the one hearing 

ongoing at this time, the statute remains 

untested in the courts and at the 

administrative level. Nor, of course, 

does it address threats beyond lack of 

fish passage. 

Finally, although the MDEP can be 

petitioned by the public to set minimum 

flows and water levels at the dams not 

under FERC jurisdiction, 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. 

In summary, the inadequacy of 

existing regulatory mechanisms for 

dams significantly affects the GOM DPS 

because dams pose a significant threat. 

Existing regulatory mechanisms do not 

provide a timely and dependable means 

to eliminate the effects of dams on 

salmon and their habitat. 

Water Withdrawals 

The State of Maine has made 

substantial progress in regulating water 

withdrawals. In 2007, it finalized a new 

rule (Chapter 587 of the Code of Maine 

Rules ‘‘In-stream flow and water level 

standards’’) that establishes river and 

stream flows and lake and pond water 

levels to protect aquatic life and other 

designated uses in Maine’s waters. The 

new standards are based on maintaining 

natural variation of flows and water 

levels, but allow variances if water use 

will still be protective of applicable 

state and Federal water quality 

classifications. The flow standards are 

based on seasonal aquatic base flows. 

We believe that the water rules for class 

AA waters will be protective of Atlantic 

salmon because the flow standards are 

based on natural flows, and exceptions 

are allowed only under clearly defined 

limits. However, the flow standards for 

class A, B, and C waters are based on 

seasonal base flows, which allow 

withdrawals when flow is at or below 

median monthly flow. These standards 

are not sufficiently protective of 

Atlantic salmon because they allow 

reduced in-stream flows that reduce 

habitat, increase water temperature, and 

decrease dissolved oxygen (as described 

in Factor A, above). 

Water withdrawals that reduce flow 

below the median monthly flow are a 

stressor on the GOM DPS (see Factor A). 

These withdrawals are allowed under 

the Maine flow standards; therefore, the 

existing regulatory mechanisms for 

water quantity are inadequate. 

Water Quality 

As described above in Factor A, the 

MDEP administers the NPDES program 

under the CWA (known as the MPDES 

program). MDEP issues permits for 

point source discharges from freshwater 

hatcheries, municipal facilities, and 

other industrial facilities. Maine’s water 

classification system provides for 

different water quality standards for 

different classes of waters (e.g., there are 

four classes for freshwater rivers all of 

which are found within the GOM DPS 

range). However, these standards are not 

based on water quality requirements of 

Atlantic salmon. Also, as described 

under Factor A above, there have been 

cases when water quality did not meet 

standards and was at levels that 

negatively impact salmon. Therefore, we 

are concerned that water quality 

standards may not be sufficiently 

protective of Atlantic salmon and that 

lack of compliance with existing 

standards may continue to harm 

salmon. 

Factor A also describes concerns we 

have regarding non-point source 

discharges. Sedimentation and other 

non-point source discharges related to 

forestry activities are regulated by the 

Shoreland Zoning Act, Maine Forest 

Practices Act, Natural Resource 

Protection Act, Protection and 

Improvement of Waters Act, Erosion 

and Sedimentation Control Law, and the 

Statewide Standards for Timber 

Harvesting and Related Activities in 

Shoreland Areas. Non-compliance with 

these regulatory mechanisms has 

resulted in impacts to Atlantic salmon 

habitat and continues to pose a risk to 

the GOM DPS (Fay et al., 2006, page 83). 

In summary, the MPDES program and 

the associated water quality standards 

do not regulate all potential water 

quality problems for salmon. We have 

determined that lack of compliance with 

existing water quality standards and 

with regulations to reduce 

sedimentation from forestry activities 

may continue to impact Atlantic 

salmon. Therefore, we find that 

inadequacy of existing regulatory 

mechanisms for water quality is a 

stressor to the GOM DPS. 

Factor E. Other Natural or Manmade 

Factors Affecting Its Continued 

Existence 

Artificial Propagation 

In the proposed rule we included a 

discussion of artificial propagation 

under Factor E. However, because of the 

essential role of conservation hatcheries 

in currently sustaining the GOM DPS of 

Atlantic salmon, in this final rule we 

evaluated the positive and negative 

effects of hatcheries in the status of the 

species section. We find that, in the 

short-term, conservation hatcheries are a 

benefit to the GOM DPS. The role of the 

conservation hatchery program is 

discussed above in the ‘‘Status of the 

GOM DPS’’ section. 

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 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 can 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). 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 strain. To 

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minimize these risks, the use of nonNorth 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). 

Atlantic salmon aquaculture has 

developed and expanded in the North 

Atlantic since the early 1970s. 

Production of farmed Atlantic salmon in 

2007 was estimated at over 1.27 million 

metric tonnes worldwide, 859,103 

metric tonnes in the North Atlantic, and 

8.16 metric tonnes in Maine (ICES, 

2008). 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. Milt of Norwegian origin 

was also imported by the industry from 

Iceland (Baum, 1998). However, 

placement of reproductively viable nonNorth 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 River flows; 35 percent on 

Machias Bay and the estuary of the 

Little River, within 11.26 kilometers 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 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 

to 5 kg). Escaped aquaculture-origin 

salmon from these vandalism events 

entered the Dennys River and possibly 

other Eastern Maine rivers in 2005. The 

Services and MDMR cooperated to 

implement 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 on the GOM 

DPS. Permits issued 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; marking to 

facilitate tracing fish back to the source 

and cause of the escape; containment 

management plans and audits; and 

rigorous disease screening. 

In summary, aquaculture is a stressor 

to the GOM DPS. If the current 

regulatory measures were no longer in 

place, were less protective, or less 

effective, the threat from aquaculture 

would be much greater. 

Low Marine Survival 

As noted previously, Atlantic salmon 

leave Maine rivers as smolts, and the 

majority spend 2 years at sea before 

returning to spawn. Survival during the 

time at sea directly influences the 

number of adults that return to spawn. 

During this extensive marine migration, 

U.S. Atlantic salmon can be affected 

directly and indirectly by commercial 

fisheries (discussed in Factor B) and 

natural mortality. Given significant 

reductions in commercial intercept 

fisheries, the continued low marine 

survival rates indicate that natural 

mortality is having a significant impact. 

Natural mortality in the marine 

environment can be attributed to four 

general sources: predation (Factor C), 

starvation, disease/parasites (Factor C), 

and abiotic factors (e.g., ocean 

conditions). While our understanding of 

the marine ecology of Atlantic salmon 

has increased substantially in the past 

decade, the specific role or contribution 

of the four sources identified above 

remains unclear. 

In general, return rates for Atlantic 

salmon across North America have 

declined over the last 30 years (ICES, 

1998). Chaput et al. (2005) reported on 

the possibility of a phase (or regime) 

shift of productivity for Atlantic salmon 

in the Northwest Atlantic. A phase or 

regime shift refers to a large and sudden 

change in abundance (Beamish et al., 

1999). Evidence is presented that the 

productivity of North American Atlantic 

salmon in the Northwest Atlantic Ocean 

has decreased since the early 1990s, 

likely the result of reduced marine 

survival (Chaput et al., 2005). 

Specifically, there has been a decrease 

in the recruit-per-spawner relationship 

for these populations, which likely 

occurred over several years in the late 

1980s into the early 1990s. This has 

resulted in a similar number of lagged 

spawners (index of the parental stock 

that produced the pre-fishery 

abundance) resulting in a 2–3 fold 

decrease in the number of pre-fishery 

abundance fish (number of North 

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American 2SW salmon in the ocean at 

a specific time) when comparing preearly 1990s to post-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 the reduced 

marine survival. 

The phase shift described above 

resulting in lower survival of salmon in 

the Northwest Atlantic beginning in the 

1990s is supported by documented low 

marine survival rates since 1991 for U.S. 

stocks of Atlantic salmon, (see section 

8.5.3 of Fay et al. (2006)). For the period 

2003 to 2007, 2SW return rates for wild 

Narraguagus River smolts ranged from 

0.54 to 0.94 percent. Return rates for 

this same period for 2SW hatchery 

Penobscot River smolts ranged from 

0.11 to 0.17 percent (ICES, 2008). Data 

for 2007, which is based on the 2005 

and 2006 smolt cohorts, showed that 

1SW and 2SW adult returns for hatchery 

and wild populations in many rivers in 

Newfoundland, Quebec, Scotia-Fundy, 

and the United States were the lowest 

in the available time series (1971–2000) 

(ICES, 2008). 

North American stocks have 

experienced greater declines than 

European stocks, and southern stocks 

have experienced greater declines than 

northern stocks. Bley and Moring (1988) 

have suggested that Atlantic salmon 

with longer migration routes typically 

suffer from lower marine survival rates. 

Stock abundances and management 

regimes are highly variable throughout 

the range. The synchronous population 

declines on both sides of the North 

Atlantic despite diverse management 

regimes suggests that large scale 

processes in the common marine 

environment are affecting Atlantic 

salmon in the ocean and are at least 

partially responsible for the negative 

trends in abundance (Friedland et al., 

2003; Jonsson and Jonsson, 2004; 

Friedland et al., 2005; Spares et al., 

2007). Furthermore, sonic telemetry 

studies of emigrating smolts in southern 

European and North American rivers 

suggest that smolt mortality in estuaries, 

though variable, is broadly similar in 

both regions (ICES, 2008). Numerous 

ultrasonic tracking studies have begun 

to provide estimates of nearshore 

mortality for a number of different 

populations (Dieperink et al., 2002; 

Lacroix et al., 2005; Kocik et al., 2008), 

and it has been suggested that nearshore 

survival has a particularly large 

influence on overall marine survival 

(Ritter, 1989; Dieperink et al., 2002; 

Potter et al., 2003). These and other 

studies demonstrate that poor marine 

survival is being experienced 

throughout the Atlantic Ocean and is 

heavily influenced by nearshore 

survival in addition to open ocean 

survival and that patterns of decline are 

most evident in southern stocks (ICES, 

2008). Higher freshwater productivity in 

southern populations may offset poorer 

marine survival; however, as mentioned 

above, marine survival is much more 

variable and has a highly significant 

impact on adult production regardless 

of freshwater production. 

Efforts to understand marine survival 

are being undertaken at national and 

international levels. NMFS is 

specifically engaged in activities at the 

national level (e.g., smolt trapping and 

telemetry studies, and post-smolt trawl 

surveys) in an effort to understand 

migration/survival dynamics of smolts, 

survival estimates by ecological zone, 

smolt health and behavior during 

transition to the marine environment, 

and environmental conditions/ 

ecosystem health during smolt 

migration. Data collected from these 

studies inform salmon management at 

the national levelands contribute to 

international efforts. As stated 

previously, the United States is a 

member of NASCO, an international 

treaty organization. Through NASCO, 

the United States participates in high 

seas sampling, marine research, and the 

sampling program for the West 

Greenland fishery. NMFS is also 

currently participating in an effort 

supported by NASCO called Salmon At 

Sea (SALSEA), an initiative to develop 

international scientific collaboration to 

understand marine survival issues. 

SALSEA is geared towards 

understanding marine survival issues on 

the high seas. Ongoing SALSEA work 

includes, but is not limited to, efforts to 

merge genetics and ecology data to try 

and understand marine migration and 

distribution patterns, trawl surveys, and 

fishery sampling. 

Marine survival is thus critical to 

shaping recruitment patterns in Atlantic 

salmon, with low marine survival 

causing the low abundance of adult 

salmon; however, the mechanisms of 

the observed persistent decline in 

marine survival remain unknown. It is 

clear that marine survival has to 

improve dramatically in the future in 

order to reverse the GOM DPS decline. 

It is important to note that the above 

discussion focuses primarily on survival 

at sea, beyond the territorial waters of 

any one country. Mortality of 

outmigrating smolts in the estuaries and 

bays of the GOM DPS is also affecting 

the population. Tagging and tracking 

studies conducted by NMFS indicate 

that approximately half of the smolts 

leaving our rivers do not enter the open 

ocean. Improvements in survival in this 

transition zone could ultimately result 

in improvements in marine survival. It 

is also likely that if we are able to 

identify the factors affecting survival of 

outmigrating smolts in our estuaries and 

bays, we will have a greater chance of 

influencing those factors than the 

factors that may be affecting salmon 

survival at sea. In summary, the 

observed, persistent decline in marine 

survival is directly responsible for the 

low abundance of adult salmon. Low 

marine survival poses a significant 

threat to the GOM DPS because it is 

driving population status and 

projections for recovery. Recovery of the 

species is dependent on increases in 

marine survival. The mechanisms 

driving low marine survival remain 

unknown. 

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) hypothesized 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. A brief 

description of each mechanism is 

provided below. 

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). Thus, 

alewives were likely a substantial 

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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 mainstem 

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 (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 (Komadina-Douthwright et 

al., 1997). This movement was 

concurrent with the onset of upstream 

migrations of rainbow smelt (KomadinaDouthwright 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, from 

a demographic perspective, 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 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 

exporting 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 

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. 

Depleted diadromous fish 

communities are a stressor to the GOM 

DPS. Because diadromous fish 

populations have been significantly 

reduced, ecological benefits from 

marine derived nutrient deposition, 

prey buffering, and alternative sources 

of food for Atlantic salmon are likely 

significantly lower today compared to 

historical conditions. These impacts 

may be contributing, at some 

undetermined level, to decreased 

marine survival through the reduction 

of prey for reconditioning kelts, through 

increased predation risks for smolts in 

lower river and estuarine areas, and 

through increased predation risks to 

adults in estuarine and lower river 

areas. Although these impacts do not 

occur in the open ocean, the 

demographic impact to the species 

occurs after smolt emigration, and is 

thus a component of the marine survival 

regime. 

Competition 

Prior to 1800, the resident riverine 

fish communities in Maine were 

relatively simple, consisting of brook 

trout, cusk (burbot), 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 

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(MIFW, 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 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. MIFW 

currently stocks landlocked Atlantic 

salmon, brown trout, brook trout, 

rainbow trout and splake in Atlantic 

salmon river drainages, posing a threat 

to Atlantic salmon in the GOM DPS (Fay 

et al., 2006). The range of northern pike 

has also been expanded through 

stocking, and they now exist in at least 

16 lakes within the Kennebec and 

Androscoggin drainages as well as 

Pushaw Lake that drains into Lower 

Penobscot River (MIFW, 2001). Yellow 

perch, white perch, and chain pickerel 

were historically native to Maine, 

though their range has been expanded 

by stocking and subsequent colonization 

(MIFW, 2002). 

Brown trout, rainbow trout, and 

splake are all non-native species known 

to prey on Atlantic salmon and have 

been stocked throughout the range of 

the GOM DPS by the MIFW (Fay et al., 

2006). The species most likely to 

compete for food and habitat with 

Atlantic salmon in the GOM DPS 

include brown trout, land locked 

Atlantic salmon, brook trout, and 

smallmouth bass (Fay et al., 2006). 

Atlantic salmon and rainbow trout 

juveniles require similar resources; 

therefore, competition is expected to be 

significant in areas of overlap (Fay et al., 

2006). Rainbow trout would be 

important competitors if they 

overlapped with Atlantic salmon to a 

greater extent (Fay et al., 2006). 

Rainbow trout are present in at least 

three reaches of the Kennebec River and 

in the Androscoggin (Fay et al., 2006). 

Illegal introductions and legal stocking 

programs continue to expand their range 

(Pellerin, 2002). Atlantic salmon and 

rainbow trout juveniles require similar 

resources; therefore, competition is 

expected to be significant in areas of 

overlap (Fay et al., 2006). 

There are some areas within the range 

of the GOM DPS where landlocked 

Atlantic salmon spawn successfully and 

rear in sympatry with anadromous 

Atlantic salmon (Fay et al., 2006). For 

these populations, competitive 

interactions for food and habitat are 

expected to be very high given the 

nearly identical early life history 

requirements of the two ecotypes (Fay et 

al., 2006). Competition between brown 

trout and Atlantic salmon is expected to 

be significant in areas where they cooccur given similarities in their life 

history requirements (Fay et al., 2006). 

Brown trout currently inhabit the 

Androscoggin, Kennebec Rivers, and the 

Piscataquis River in the upper 

Penobscot watershed, as well as many 

lakes and ponds (Boland, 2001; MIFW, 

2002). Most evidence suggests that 

brown trout will displace or otherwise 

outcompete Atlantic salmon from pool 

habitats in both summer and winter 

(Kennedy and Strange, 1986; Harwood 

et al., 2001). The ability of brown trout 

to outcompete Atlantic salmon has 

significant negative effects on Atlantic 

salmon, including changes in habitat 

use and behavior that may limit salmon 

production through niche constriction 

when the two species co-occur (Hearn, 

1987; Fausch, 1988). In summary, 

competition is a stressor to the GOM 

DPS because it can exclude salmon from 

preferred habitats, reduce food 

availability, and increase predation. 

Climate Change 

Since the 1970s there has been a 

historically significant change in 

climate (Greene et al., 2008). Climate 

warming has resulted in increased 

precipitation, river discharge, and 

glacial and sea-ice melting (Greene et 

al., 2008). The past 3 decades have 

witnessed major changes in ocean 

circulation patterns in the Arctic, and 

these were accompanied by climate 

associated changes as well (Greene et 

al., 2008). Shifts in atmospheric 

conditions have altered Arctic ocean 

circulation patterns and the export of 

freshwater to the North Atlantic (Greene 

et al., 2008; IPCC, 2006). With respect 

specifically to the North Atlantic 

Oscillation (NAO), changes in salinity 

and temperature are thought to be the 

result of changes in the earth’s 

atmosphere caused by anthropogenic 

forces (IPCC, 2006). The NAO impacts 

climate variability throughout the 

northern hemisphere (IPCC, 2006). Data 

from the 1960s through the present 

show that the NAO index has increased 

from minimum values in the 1960s to 

strongly positive index values in the 

1990s and somewhat declined since 

(IPCC, 2006). This warming extends 

over 1000 m deep and is deeper than 

anywhere in the world oceans and is 

particularly evident under the Gulf 

Stream/North Atlantic Current system 

(IPCC, 2006). On a global scale, large 

discharges of freshwater into the North 

Atlantic subarctic seas can lead to 

intense stratification of the upper water 

column and a disruption of North 

Atlantic Deepwater (NADW) formation 

(Greene et al., 2008; IPCC, 2006). There 

is evidence that the NADW has already 

freshened significantly (IPCC, 2006). 

This in turn can lead to a slowing down 

of the global ocean thermohaline (largescale circulation in the ocean that 

transforms low-density upper ocean 

waters to higher density intermediate 

and deep waters and returns those 

waters back to the upper ocean), which 

can have climatic ramifications for the 

whole earth system (Greene et al., 2008). 

The changes in freshwater export and 

circulation patterns have resulted in 

significant salinity changes (IPCC, 

2006), leading to two main ecological 

shifts (Pershing et al., 2005; Greene and 

Pershing 2007; Greene et al., 2008). The 

first major ecological shift is the 

biogeographic range expansion by 

Boreal Plankton, including trans-Arctic 

exchanges of Pacific species with the 

Atlantic (Greene et al., 2008). The 

second ecological shift had mainly 

affected the Northwest Atlantic where, 

during the early 1990s, a dramatic shift 

in shelf ecosystems occurred (Pershing 

et al., 2005; Greene and Pershing, 2007; 

Greene et al., 2008). The major shifts 

observed specifically in the GOM and 

Scotian shelf ecosystems in the early 

1990s are specifically linked to these 

changes in salinity and lower trophic 

level communities (Pershing et al., 

2005; Greene and Pershing, 2007; 

Greene et al., 2008). These changes may 

be related to changes in higher trophic 

level consumer populations as well 

(Greene et al., 2008). Shifts in ecological 

communities in the Northwest Atlantic 

include commercially harvested fish 

and crustacean populations, both of 

which underwent large changes in 

abundance during the 1990s (Frank et 

al., 2005; Pershing et al., 2005; 

Vilhjalmsson et al., 2005). While 

overfishing was the predominant cause 

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of the collapse of cod in particular, the 

cold, low-salinity Arctic waters entering 

the northern portion of the range of cod, 

seem to have hampered their 

subsequent recovery (Rose et al., 2000; 

Vilhjalmsson et al., 2005). Other 

species, such as shrimp and snow crab, 

have increased in abundance in the 

absence of cod predation (Frank et al., 

2005). 

With respect to the GOM DPS, Greene 

et al. (2008) describe that changes in 

salinity can result in more localized 

effects on ocean circulation patterns and 

climate that are confined to the North 

Atlantic basin and the adjacent 

landmasses. For example, these changes 

specifically 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, the spring 

runoff occurs earlier; water content in 

snow pack for March and April has 

decreased; and the duration of river ice 

has been reduced (Dudley and 

Hodgkins, 2002). Several studies 

indicate that small thermal changes may 

substantially alter reproductive 

performance, smolt development, 

species distribution limits, and 

community structure of fish populations 

(Van Der Kraak and Pankhurst, 1997; 

McCormick et al., 1997; Keleher and 

Rahel, 1996; McCarthy and Houlihan, 

1997; Welch et al., 1998; Schindler, 

2001). For Atlantic salmon specifically, 

Juanes et al. (2004) suggest that 

observed changes in adult run timing 

may be a response to global climate 

change. Friedland et al. (2005) 

summarized numerous studies that 

suggest that climate mediates marine 

survival for Atlantic salmon as well as 

other fish species. Recent analyses of 

bottom water temperatures found that 

negative NAO years are warmer in the 

north and cooler in the Gulf of Maine 

(Petrie, 2007). Positive NAO years are 

warmer in Gulf of Maine and colder in 

the north (north of 45° N) (Petrie, 2007). 

Strength of NAO is related to annual 

changes in diversity of potential 

predators: at southern latitudes, there 

are more species during positive NAO 

years (Fisher et al., 2008). The effect is 

system-wide where 133 species showed 

at least a 20 percent difference in 

frequency of occurrence in years with 

opposing NAO states (Fisher et al., 

2008). 

This is currently leading to different 

hypotheses regarding the effect these 

changes may be having on Atlantic 

salmon. One hypothesis is that salmon 

migrating during positive NAO years 

confront a steeper gradient of cooler to 

warmer water. This gradient may be 

resulting in changes in the composition 

of species as Atlantic salmon undertake 

their marine migration, potentially 

increasing the vulnerability of Atlantic 

salmon to predators (Gibson, 2006; 

NMFS Nearshore Workshop #2, 2009). 

Other hypotheses being explored relate 

to potential linkages between ocean 

climate and effects on wind velocities 

and nearshore wind driven currents and 

adverse impacts on post smolt 

migration, as well as the potential 

influence of air temperatures and sea 

surface temperature and potential 

impacts on migration cues (NMFS 

Nearshore Workshop #2, 2009). These 

current efforts to understand changes in 

ocean productivity are focused on 

whether environmental changes could 

be contributing, whether there are any 

other species where similar shifts in 

productivity have had negative effects, 

and whether there are correlations 

between this particular phase shift and 

population dynamics of other species. 

While some physiological changes at 

the individual level are quite 

predictable when changes in 

temperature are known, we do not 

understand how or to what degree 

climate change may affect the 

freshwater and marine environment of 

the GOM DPS. At this time, we do not 

have enough information to determine 

whether the GOM DPS is threatened or 

endangered because of the effects of 

climate change. 

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 these conservation efforts 

improve the status of the species such 

that it does not meet the ESA’s 

definition of a threatened or endangered 

species. 

In judging the efficacy of existing 

protective efforts, we rely on the 

Services’ joint ‘‘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. Evaluation of the certainty 

that an effort will be implemented 

includes whether: (1) The conservation 

effort, the party(ies) to the agreement or 

plan that will implement the effort, and 

the staffing, funding level, funding 

source, and other resources necessary to 

implement the effort are identified; (2) 

the legal authority of the party(ies) to 

the agreement or plan to implement the 

formalized conservation effort, and the 

commitment to proceed with the 

conservation effort are described; (3) the 

legal procedural requirements (e.g. 

environmental review) necessary to 

implement the effort are described, and 

information is provided indicating that 

fulfillment of these requirements does 

not preclude commitment to the effort; 

(4) authorizations (e.g., permits, 

landowner permission) necessary to 

implement the conservation effort are 

identified, and a high level of certainty 

is provided that the party(ies) to the 

agreement or plan that will implement 

the effort will obtain these 

authorizations; (5) the type and level of 

voluntary participation (e.g., number of 

landowners allowing entry to their land, 

or number of participants agreeing to 

change timber management practices 

and acreage involved) necessary to 

implement the conservation effort is 

identified, and a high level of certainty 

is provided that the party(ies) to the 

agreement or plan that will implement 

the conservation effort will obtain that 

level of voluntary participation (e.g., an 

explanation of how incentives to be 

provided will result in the necessary 

level of voluntary participation); (6) 

regulatory mechanisms (e.g., laws, 

regulations, ordinances) necessary to 

implement the conservation effort are in 

place; (7) a high level of certainty is 

provided that the party(ies) to the 

agreement or plan that will implement 

the conservation effort will obtain the 

necessary funding; (8) an 

implementation schedule (including 

incremental completion dates) for the 

conservation effort is provided; and (9) 

the conservation agreement or plan that 

includes the conservation effort is 

approved by all parties to the agreement 

or plan. The evaluation of the certainty 

of an effort’s effectiveness is made on 

the basis of whether the effort or plan 

meets the following elements: (1) The 

nature and extent of threats being 

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addressed by the conservation effort are 

described, and how the conservation 

effort reduces the threats is described; 

(2) explicit incremental objectives for 

the conservation effort and dates for 

achieving them are stated; (3) the steps 

necessary to implement the 

conservation effort are identified in 

detail; (4) quantifiable, scientifically 

valid parameters that will demonstrate 

achievement of objectives, and 

standards for these parameters by which 

progress will be measured, are 

identified; (5) provisions for monitoring 

and reporting progress on 

implementation (based on compliance 

with the implementation schedule) and 

effectiveness (based on evaluation of 

quantifiable parameters) of the 

conservation effort are provided; and (6) 

principles of adaptive management are 

incorporated. 

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 for the species. 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. 

Outlined below are current and future 

protective efforts that may minimize 

threats facing the GOM DPS. Each of 

these efforts or projects is measured 

against the PECE criteria to evaluate the 

certainty of implementation and 

effectiveness to determine the relative 

contribution of the efforts to reducing 

extinction risk. 

Fish Passage, Dams, and Hydropower 

The Services are involved in 

hydroelectric project relicensing and 

other fish passage issues. Fisheries 

agencies in Maine continue to work to 

establish and improve upstream and 

downstream fish passage, and to remove 

dams and other blockages to habitat 

connectivity. The majority of fish 

passage work in the range of the GOM 

DPS focuses on FERC licensed dams on 

the Penobscot, Kennebec, and 

Androscoggin watersheds and on 

opportunities to enhance passage 

throughout historical Atlantic salmon 

habitat. This includes participating in 

the Penobscot River Restoration Project, 

negotiating improved passage on a 

number of dams on the Kennebec River 

pursuant in part to the 1998 Lower 

Kennebec River Comprehensive 

Hydropower Settlement Accord, 

replacing culverts on highways and 

logging roads, and removing dams. The 

Services, in coordination with other 

state and Federal agencies, are also 

making efforts to improve fish passage 

on the Narraguagus and Sheepscot 

Rivers. Information regarding some of 

the most notable efforts made to 

improve passage for Atlantic salmon in 

the GOM DPS is summarized below. 

(1) Lower Kennebec River 

Comprehensive Hydropower Settlement 

Accord (KHDG Accord, May 26th, 1998): 

The KHDG Accord addresses fish 

passage issues at eight hydroelectric 

projects on the Kennebec River and 

Sebasticook River. The 1998 Accord was 

signed by various state and Federal 

fishery agencies and approved by the 

FERC. In addition, the Anson and 

Abenaki Offer of Settlement (January 30, 

2002), also signed by various state and 

Federal fishery agencies and approved 

by FERC, addresses fish passage 

provisions on two hydroelectric projects 

within the middle reaches of the 

Kennebec River (Anson and Abenaki 

Projects). On the Kennebec River, fish 

passage agreements were reached at the 

lower four hydroelectric projects 

including the Lockwood, HydroKennebec, Shawmut, and Weston as 

part of the KHDG Accord. The 

lowermost hydroelectric project, 

Edwards Dam, was removed as part of 

the KHDG Accord. On the Sebasticook 

River, fish passage agreements were 

reached on the Benton and Burnham 

Projects, and in 2008, the Fort Halifax 

dam was breached pursuant to the 

passage agreement. 

During the spring of 2006, upstream 

fish passage facilities were installed at 

the Lockwood Dam, the lowermost dam 

in the Kennebec, pursuant to the KHDG 

Accord. Fish passage at the Lockwood 

Dam currently consists of a fish lift with 

trap and truck facilities. Atlantic salmon 

captured at the Lockwood Dam are 

transported upstream to suitable habitat 

in the Sandy River. In 2006, upstream 

fish passage, in the form of a fish lift, 

was also installed at the Benton Falls 

and Burnham facilities on the 

Sebasticook River, a tributary to the 

Kennebec. Currently on the Kennebec, 

only the Lockwood Dam has upstream 

fish passage facilities for Atlantic 

salmon (FPL Energy Maine Hydro LLC, 

2008). While some salmon rearing 

habitat is now available in the restored 

reach below Lockwood, the vast 

majority of salmon habitat (nearly 90 

percent) in the Kennebec River 

watershed is located above Lockwood. 

The KHDG Accord and AnsonAbenaki Settlement contain biological 

triggers for implementing upstream 

passage on the Kennebec River. Based 

upon the KHDG biological triggers, the 

next mainstem dam upstream of 

Lockwood (Hydro-Kennebec) may not 

have upstream fish passage facilities 

installed until 2010 at the earliest, and 

the last dam with upstream habitat may 

not have fishways until 2020. The main 

biological trigger to sequential 

implementation of upstream passage at 

the remaining KHDG dams is the 

establishment of a large run of shad in 

the Kennebec that will be trapped at 

Lockwood. The shad program in the 

Kennebec is supported by stocking; 

however, that program is limited by 

funding and production capabilities. 

Funding was secured through 2008; 

however, funding for the stocking 

program for 2009 and beyond is highly 

uncertain. The KHDG Accord does offer 

one other alternative to state and 

Federal resource agencies to trigger 

fishway installation. Text in the Accord 

states the alternative approach is 

available to state and Federal resource 

agencies ‘‘should the growth of salmon 

or river herring runs make it necessary 

to adopt an alternative approach for 

triggering fishway installation.’’ 

However, this process would have to be 

handled through FERC, and the 

Licensee would have to agree to the 

proposed alternative triggers. Even after 

fish passage facilities are installed in the 

Kennebec River in accordance with this 

plan, Atlantic salmon will need to pass 

at least six mainstem dams (Lockwood, 

Hydro-Kennebec, Shawmut, Weston, 

Abenaki, and Anson). 

The KHDG Accord and AnsonAbenaki Settlement are legally binding, 

requiring all parties to fulfill their 

obligations as stated in the agreement. 

When all of the conditions in the 

Accord and Settlement have been 

fulfilled, passage on the Kennebec River 

and some of the tributaries will be 

improved, allowing Atlantic salmon and 

other diadromous species access to 

important habitat. However, neither the 

Accord nor the Settlement is likely to 

recover Atlantic salmon in the 

Kennebec watershed in the foreseeable 

future. The legal procedural 

requirements in the agreements are 

based upon biological triggers that 

currently are contingent upon the 

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success of a shad stocking program for 

which production capacity and funding 

are uncertain for 2009 and beyond. 

Therefore, the second, third and seventh 

criteria in the PECE for certainty of 

implementation are not satisfied. Under 

PECE, the effectiveness of the 

agreements to fully address passage 

issues for Atlantic salmon in the 

Kennebec River, or the entire GOM DPS, 

also can not be fully guaranteed at this 

time, given that all objectives and 

project parameters are based upon 

biological triggers that are uncertain. 

Thus, while the Accord and the 

Settlement have time tables associated 

with implementation, monitoring 

components, and project objectives 

(effectiveness criteria two, three, and 

five), these are contingent upon 

biological triggers being met. 

(2) Penobscot River Restoration 

Project (PRRP): Perhaps the most 

significant of the agreements mentioned 

above is the PRRP. 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, Inland 

Fisheries and Wildlife, MDMR), and 

several non-governmental organizations 

(NGOs; Atlantic Salmon Federation, 

American Rivers, Trout Unlimited, 

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. This initiative 

would improve habitat accessibility for 

all diadromous species. For example, 

less than 7 percent of post-project 

salmon habitat will be above four or 

more dams, and at least 43 percent of 

the habitat would require, at most, one 

dam passage in each direction with 

conventional passage facilities. At least 

15 percent of salmon habitat would 

have no intervening dams remaining, 

compared to 2.5 percent presently (see 

section 8.1 in Fay et al., 2006). 

In addition to improved habitat 

accessibility for Atlantic salmon and 

other diadromous species, the PRRP 

will also provide an opportunity to 

study the ecological linkages between 

Atlantic salmon and the 11 other 

diadromous species with which they coevolved. The linkage between other 

diadromous species and Atlantic 

salmon may be crucial to recovering 

Atlantic salmon to self-sustaining levels. 

As stated previously, this co-evolution 

likely provided ecological benefits to 

the diadromous species complex (e.g., 

marine-derived nutrient deposition and 

prey buffering), which may enhance 

Atlantic salmon survival at key life 

stages. Therefore, a full understanding 

of these benefits and a multi-species 

approach is required for the successful 

recovery of Atlantic salmon to the 

Penobscot system. 

In June 2004, the Parties to the 

negotiations signed the Penobscot 

Multiparty Settlement Agreement 

(MPA). The MPA includes a 5-year 

option period during which time the 

‘‘Penobscot River Restoration Trust’’ 

raised the necessary funds to purchase 

the dams. In addition, another $25–30M 

is required for decommissioning and 

removal. NOAA’s budget for the 2008 

fiscal year contained $10M to support 

the PRRP. 

There is a significant effort on behalf 

of the Parties to the MPA and other 

Federal and non-Federal bodies to 

secure funds for the purchase, 

decommissioning, and removal of the 

dams. However, as stated above, the 

certainty of that funding is not known 

at this time. While the necessary 

funding has been committed by the 

government and other private donors to 

achieve the purchase of the dams, a 

significant amount of money still must 

be acquired in order for the parties to 

exercise the option to decommission 

and remove the dams as well as 

construct a nature like fishway. While 

significant progress has been made in 

fundraising and permitting, staffing, 

funding level, funding source and other 

resources necessary to fully implement 

the PRRP are not identified at this time. 

There is not currently a high level of 

certainty that the necessary funding will 

be obtained. Therefore, at this time, the 

PRRP does not satisfy criteria one and 

seven in the certainty of implementation 

of the PECE. Permitting and regulatory 

requirements are also uncertain at this 

stage because they are contingent upon 

the ability of the parties to raise the full 

amount of funds necessary, FERC 

approval of the Trust’s permit to 

surrender the dams, and completion of 

required environmental review. Thus, 

the PRRP does not satisfy criterion four 

of the PECE, which requires that all 

authorizations (e.g., permits, land owner 

permission) necessary to implement the 

conservation effort are identified and 

that there is a high certainty that the 

parties to the agreement will obtain all 

necessary authorizations. If proper 

funding is acquired to fulfill the MPA 

and the project undergoes the 

appropriate environmental and 

regulatory review and permitting, 

Atlantic salmon in the Penobscot River 

will clearly benefit. However, it is not 

possible to state at this time with a high 

level of certainty that this project will be 

fully implemented, especially in light of 

the present economic conditions and 

energy issues facing the United States. 

If the removal option is not exercised, 

fishway prescriptions issued by the 

Services will be implemented. 

The PRRP provides unique 

opportunities for restoration efforts. 

Many species will benefit from the 

PRRP directly, but many other passage 

impediments exist in the basin. Some 

diadromous fish species, such as 

Atlantic salmon, alewife, and shad, may 

require additional habitat improvements 

(barrier removal, fishways, etc.) or 

stocking. Thus, additional active 

restoration measures may be required to 

realize the full potential of the PRRP. 

Due to the high profile of the project 

and the high costs involved, there is a 

need to prioritize restoration efforts in 

the basin to increase the probability for 

project success. There are many ways to 

determine what a ‘‘successful’’ PRRP 

would look like. In March 2008, the 

Penobscot Interagency Technical 

Committee (PNITC) was formed to 

develop operational management plans 

for diadromous fish within the basin. 

Members of the PNITC include 

managers and scientists from MDMR, 

MIFW, NMFS, the Penobscot Indian 

Nation, and FWS. The PNITC has been 

tasked with developing one set of 

restoration goals and priorities for the 

basin. To help facilitate this goal, we 

have begun developing an ecologicallybased GIS tool to help set goals and to 

help identify and prioritize various 

restoration efforts. The outputs of this 

tool will help to ensure that achievable 

goals are established, and that funding 

and restoration efforts are applied in the 

most appropriate manner. The PNITC, 

in conjunction with NMFS, are making 

strides towards defining the scope of 

restoration efforts and operational plans 

for diadromous species including 

Atlantic salmon. Despite these efforts, 

the effectiveness of the PRRP is still 

uncertain given that explicit 

incremental objectives and an 

implementation plan still need to be 

identified (criteria two and three); 

quantifiable, scientifically valid 

parameters by which to measure 

progress have yet to be established 

(criterion four); and provisions for 

reporting and monitoring have not been 

established (criterion five). 

(3) New England Atlantic Salmon 

Committee (NEASC): In addition to 

these efforts, NEASC requested that the 

USASAC provide a list of the top 

priority fish passage projects in New 

England. NEASC hopes to use this 

information to leverage funding from a 

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variety of sources to implement these 

projects. The prioritized list was 

developed by soliciting information 

from representatives from each of the 

New England states responsible for 

managing Atlantic salmon. NEASC 

hopes that this initiative will result in 

a large scale effort to improve passage 

and remove obstructions for salmon and 

other diadromous fish species 

throughout New England. This effort 

may result in gaining both support and 

resources for improved passage. 

However, the outcome of this effort is 

highly uncertain in terms of both 

implementation and effectiveness. 

Therefore, the NEASC effort to prioritize 

fish passage projects in hopes to 

leverage funding for implementation 

does not satisfy any of the six 

effectiveness and nine implementation 

criteria of the PECE. 

Adaptive Management Initiatives 

(1) Habitat Connectivity: In 2006, 18 

stream habitat connectivity projects 

were completed in 3 of the Downeast 

Rivers. The principal funding sources 

were Natural Resources Conservation 

Service-Wildlife Habitat Improvement 

Program, USFWS, Maine Atlantic 

Salmon Conservation PartnershipStudent Career Experience Program, 

Project Salmon Habitat and River 

Enhancement, Washington County Soil 

and Water Conservation District, and 

private landowner contributions. Four 

stream-road crossings (culverts) were 

completely removed in the Machias 

River watershed. The remaining 14 

projects replaced undersized culverts 

with open bottom arches that spanned 

1.2 times bankfull stream width in the 

Machias, Narraguagus, and East Machias 

watersheds. These restoration projects 

are effectively contributing to salmon 

recovery by improving access to habitat 

for Atlantic salmon and other 

diadromous species. These types of 

restoration initiatives are likely to 

continue; however, they are contingent 

upon the continued availability of 

funding sources, voluntary participation 

of landowners and other groups, and 

identification of specific 

implementation dates. Therefore, while 

the aforementioned projects are deemed 

to be effective, the certainty of 

implementation of additional projects is 

unknown and the future initiatives do 

not satisfy certainty of implementation 

criteria one, five, seven and eight. 

(2) Watershed Councils: Watershed 

councils are actively engaged in 

cooperative Atlantic salmon 

conservation activities. Local watershed 

councils, formed under the auspices of 

the Maine Atlantic Salmon 

Conservation Partnership, continue to 

play an important role in recovery 

activities in their respective watersheds, 

particularly the planning and 

implementation of watershed-specific 

habitat protection and restoration. 

Watershed councils have 

representatives from state and Federal 

agencies, conservation groups, 

industries, towns, landowners and other 

interested groups or individuals. These 

groups coordinate their efforts with 

those of local groups with similar goals. 

The councils continue to review the 

status of threats in each watershed and 

determine the need for continued or 

new efforts to further minimize any 

potential threat to Atlantic salmon from 

future activities present in the 

watershed. The process ensures that all 

stakeholders in the watersheds have the 

opportunity to participate in decisions 

concerning conservation actions. The 

activities of watershed councils are 

largely voluntary and vary by council, 

depending on the level of participation 

from members. Many of the efforts 

undertaken by watershed councils have 

been and continue to be extremely 

effective at contributing to salmon 

recovery. Future efforts will likely 

continue to make positive contributions 

as well, provided that voluntary 

participation within each council 

continues. There is no overarching 

management plan that outlines the 

collective work or goals of the councils 

into the future; therefore, it is uncertain 

what projects will be implemented on 

an annual basis, and whether the 

necessary resources will be available to 

implement the projects in terms of both 

funding sources and voluntary 

participation. PECE criteria one, five, 

seven and eight require a high level of 

certainty that: the necessary resources 

are identified and secured; the 

necessary voluntary participation and 

permissions to implement conservation 

plan have been obtained; and an 

implementation schedule for the project 

is provided. While past activities have 

been effective in restoring salmon 

habitat and improving access, the 

effectiveness of future efforts can not be 

evaluated in terms of the conservation 

contribution to the status of the species. 

(3) Large Woody Debris Project: 

Maine’s rivers have experienced 

dramatic changes over the last 300 

years. One of the most sweeping is the 

removal, lack of recruitment, and 

subsequent attrition of LWD. The result 

is that the rivers likely have very low 

loading of LWD, and thus, have less 

complex fish habitat compared to the 

past. LWD creates pools, retains gravel 

and nutrients, supports benthic 

macroinvertebrates, influences current 

velocities and water depth, provides 

cover, and during high water, refugia for 

fishes. The value of LWD in promoting 

productive Atlantic salmon habitat is 

undocumented. In October 2006, a 

project was implemented to enhance 

habitat at a scale that will have 

population-level benefits, with a design 

that evaluates the effects of LWD 

additions on stream geomorphology. 

LWD was added to two sites, each with 

a paired control site, in Creamer Brook, 

East Machias Drainage. Streams in the 

Narraguagus, Machias, and East Machias 

drainages were also evaluated for 

potential LWD additions. The Creamer 

Brook sites were scouted and surveyed 

for similarity and surveyed for fish 

populations immediately prior to the 

habitat work. Each site was 

electrofished using multiple pass 

depletion, and fish were weighed, 

measured, and released into their site. 

LWD was added at a rate of 

approximately 12 pieces per 100m by 

cutting trees in the riparian zone and 

adjusting their placement to achieve 

either stability or geomorphologic effect. 

In addition, all LWD (existing and 

added) in the treatment sites was tagged 

with metal numeric tags and marked 

with spray paint. The site was surveyed 

before and after LWD placements. Trees 

were also felled in the riparian zone to 

increase roughness to minimize channel 

migration as a result of the LWD 

additions. 

The LWD project directly incorporates 

the principles of adaptive management. 

The project is aimed at improving the 

complexity of fish habitat through the 

addition of LWD. The project plan lays 

out explicit objectives, qualitative and 

quantitative parameters by which 

progress will be measured, and sites to 

be monitored, fulfilling two through six 

of the PECE effectiveness criteria. The 

effectiveness of this project has not been 

demonstrated because LWD additions 

have not been shown to enhance salmon 

survival. Therefore, it is not yet clear to 

what extent the LWD project is 

addressing the threat posed by the loss 

of habitat complexity; thus, criterion 

one of the certainty of effectiveness is 

not satisfied. 

(4) The Penobscot Indian Nation 

Water Quality Monitoring Program: 

Water quality is a critical issue to the 

Penobscot Indian Nation, given that 

many of the fish and other aquatic 

species serve as an important source of 

traditional food. Industrial discharge 

has resulted in the presence of harmful 

chemicals in the waters that flow 

through reservation waters. The 

Penobscot Indian Nation has 

implemented a rigorous water quality 

testing program to: ensure that water 

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quality standards are being met and that 

licensed discharges are in compliance 

with permit conditions; upgrade river 

and tributary classifications; identify 

and remediate sources of non-point 

source pollution; and gather data 

needed to support the role of the tribe 

in hydroelectric re-licensing. The 

Penobscot Indian Nation also has a 

cooperative agreement with the MDEP 

to share water quality data and technical 

assistance. The data provided by the 

Penobscot Indian Nation has led to the 

revision of water classifications for over 

500 rivers and streams and improved 

water quality. The Penobscot Indian 

Nation’s water quality monitoring 

program satisfies all of the certainty of 

effectiveness and implementation 

criteria. While this program is very 

important in terms of improving water 

quality and the health of aquatic 

organisms, the results of the program in 

terms of threat abatement across the 

entire GOM DPS are not sufficient to 

warrant a change in the listing status of 

the GOM DPS. 

International Efforts 

(1) North Atlantic Salmon 

Conservation Organization: The 

Convention for the Conservation of 

Salmon in the North Atlantic Ocean, 

ratified by the United States in 1982, 

provides a mechanism for managing the 

international commercial fishery for 

Atlantic salmon for the purpose of 

conserving and restoring salmon stocks. 

The Convention provides a forum for 

coordination among members, 

proposing regulatory measures, and for 

making recommendations regarding 

scientific research. The Convention was 

adopted by the United States, Canada, 

Greenland (as represented by Denmark), 

Iceland, Faroes Islands, Norway, and the 

European Commission. Russia joined 

later. The NASCO was formed by this 

Convention. The United States became 

a charter member of NASCO in 1984. 

NASCO is charged with the 

international management of Atlantic 

salmon stocks on the high seas. NASCO 

is composed of three geographic 

Commissions: Northeast Atlantic, West 

Greenland, and North American. 

NASCO seeks scientific advice from the 

International Council for the 

Exploration of the Seas (ICES) on the 

status of stocks, the effectiveness of 

management measures, monitoring and 

data needs, and catch options. NASCO 

uses this scientific advice as a basis for 

formulating biologically sound 

management recommendations for the 

conservation of North Atlantic salmon 

stocks. Providing catch options for the 

fishery at West Greenland is one area 

where this advice is specifically 

applied. 

The West Greenland fishery was one 

of the last directed Atlantic salmon 

commercial fisheries in the Northwest 

Atlantic. In 2005, in recognition of the 

depressed status of the stocks and the 

fact that the resulting scientific advice 

was unchanged year-to-year, the 

NASCO Parties asked ICES for multiannual regulatory advice. Based on this 

advice, a provisional multi-annual 

regulatory measure was adopted at the 

2006 annual meeting of NASCO to 

restrict the fishery in 2006 to internal 

use only and conditionally also for 2007 

and 2008. The provisional multi-annual 

regulatory measure adopted in 2006 was 

contingent upon finalization and 

acceptance of a finalized Framework of 

Indicators (FWI). ICES provided NASCO 

with a finalized FWI for the mixed stock 

off West Greenland that all Parties 

accepted in 2007. The multi-annual 

regulatory measure agreed to in 2006 

were continued for 2007 and 2008. This 

measure, like those of recent years, 

limits harvest in West Greenland to 

internal use only (estimated to be about 

20 mt). Denmark, representing 

Greenland and the Faroe Islands, stated 

that it would accept the FWI for a fixed 

period 2006–2008 and would consider 

accepting new multi-annual catch 

advice at the 2009 Annual Meeting in 

light of further development of the FWI, 

the continued research of the mortality 

of salmon stocks, and possible 

improvement of the stocks. 

In 2001, NASCO established an 

International Atlantic Salmon Research 

Board (IASRB) to promote collaboration 

and cooperation on research on the 

causes of marine mortality of Atlantic 

salmon and the opportunities to 

counteract this mortality. The IASRB 

has made great progress in improving 

coordination of the existing research 

and supporting initiation of new 

research projects. However, there are 

still substantial gaps in our knowledge 

of what factors may be affecting salmon 

at sea. The IASRB, therefore, 

commissioned the development of an 

international program of cooperative 

research on salmon at sea (SALSEA). 

The SALSEA program has been 

developed by scientists from all 

NASCO’s Parties. The four areas on 

which SALSEA is currently focusing 

are: (1) Supporting technologies to assist 

in the genetic identification of the origin 

of salmon sampled at sea, improving 

efficiency of sampling of salmon at sea, 

and improving standardized scale 

analysis of salmon at sea; (2) studying 

early migration through the inshore 

zone: fresh waters, estuaries, and coastal 

waters to specifically understand what 

factors may be influencing marine 

mortality; (3) studying the distribution 

and migration of salmon at sea; and (4) 

improving communications and public 

relations. The United States has 

contributed $150,000 to the IASRB to 

help fund SALSEA. The United States 

has also participated in a marking 

workshop sponsored by SALSEA and 

actively participates in the West 

Greenland Sampling Program on an 

annual basis. 

The West Greenland Sampling 

Program is an international sampling 

program of the internal use fishery at 

West Greenland. Scale and tissue 

samples are taken to allow examination 

of stock origin, catch composition, and 

fish health. This sampling program has 

provided a wealth of information on the 

extent, location, and origin of the catch. 

Scale and genetic analyses have allowed 

for detailed knowledge of the 

characteristics of the catch, including 

age and continent of origin. In recent 

years, approximately 70 percent of the 

catch has been of North American origin 

and 30 percent of European origin. 

The United States intends to continue 

to participate fully in NASCO and 

associated negotiations over the West 

Greenland Fishery. The legislative 

authority, funding, authorizations, 

staffing resources, an approved plan 

(U.S. Implementation Plan) and 

associated schedule for implementation 

of actions, and legal requirements 

allowing for United States participation 

in NASCO are certain. Although 

NASCO does not have any regulatory 

authority over any of the Parties, it has 

been successful at influencing salmon 

management in member states. The 

West Greenland fishery is a prime 

example of NASCO facilitating 

negotiations and ultimately, 

management, of this fishery for the 

benefit of salmon as a whole in the 

North Atlantic Ocean. However, while 

NASCO has been successful in reducing 

the threat of directed harvest of Atlantic 

salmon in the West Greenland fishery, 

a small, but significant, portion of the 

catch continues to be Atlantic salmon of 

U.S. origin. The NASCO guidelines and 

agreements are contributing to reducing 

threats to salmon recovery (e.g., fishing, 

disease, aquaculture, habitat 

destruction, stocking practices). While 

the NASCO agreements and guidelines 

appear to have reduced the threat from 

direct harvest, the agreements and 

guidelines are not regulatory. It is 

incumbent on each Party to NASCO to 

enforce the actions identified in the 

Implementation Plan drafted by each 

country as well as report on their 

success relative to the health of salmon 

stocks. Therefore, the effectiveness of 

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specific NASCO guidelines and 

agreements is not certain. Some parties 

have failed to develop rigorous 

Implementation Plans with explicit 

incremental objectives and dates for 

achieving the action, scientific 

parameters, and ability to report under 

these plans. Thus, effectiveness criteria 

two through five are not certain at this 

time. There is also some uncertainty in 

terms of the implementation of the 

NASCO guidelines and agreements. 

There is even more uncertainty about 

the individual Implementation Plans, 

given that, in some regions, there is not 

the necessary voluntary support by 

landowners, necessary funding to 

implement the conservation measures, 

or even the necessary regulatory 

mechanisms within the jurisdiction of 

each Party to regulate certain activities. 

Thus, certainty of implementation 

criteria four to seven cannot be satisfied 

for the NASCO guidelines and 

agreements. It is also unknown to what 

extent current IASRB and SALSEA 

activities will abate the threat from poor 

marine survival. 

(2) West Greenland Conservation 

Agreement: In August 2002, a multi-year 

conservation agreement with an annual 

termination date (available to both 

parties) was established 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. 

In June 2007, the agreement was 

extended and revised to cover the 2007 

fishing season with a provision which 

allows the agreement to continue to be 

extended on an annual basis through 

2013. An implementation plan and 

schedule are already developed as well 

as the necessary authorizations and 

legal authority. However, certainty of 

implementation criteria five, seven, and 

nine cannot be satisfied, considering the 

certainty that the necessary funding has 

not been secured, and it is not known 

if all parties will agree to extend the 

Agreement. 

Summary of Protective Efforts 

The current endangered status of the 

GOM DPS as listed in 2000 and the 

desire to restore the Penobscot to a free 

flowing river have created an incentive 

for various agencies, groups, and 

individuals to carry out a number of 

efforts aimed at protecting and 

conserving salmon. These actions are 

being directed at reducing threats faced 

by Atlantic salmon and could contribute 

to the recovery and restoration of the 

GOM DPS and its ecosystem 

substantially in the future. However, 

apart from the Penobscot Indian Nation 

Water Quality Monitoring Program, 

there is still considerable uncertainty 

regarding the implementation and 

effectiveness of these efforts in the 

future. Therefore, they cannot be 

considered to affect the listing status of 

the GOM DPS. 

Finding 

As stated previously in this final rule, 

the main difference between the GOM 

DPS as listed in 2000 and the GOM DPS 

as finalized in this rule is the inclusion 

of the majority of the Androscoggin, 

Kennebec, and Penobscot River basins. 

The 2000 GOM DPS consisted of only 

small coastal rivers on either side of the 

Penobscot River. 

The small coastal rivers were subject 

to similar threats, including water 

withdrawals, aquaculture escapees, and 

habitat degradation. Although the rivers 

to the east and west of the Penobscot are 

exposed to different stressors, they have 

more threats in common with each other 

than with the larger river systems 

included in the GOM DPS as currently 

defined. Habitat degradation from poor 

water quality and water withdrawals 

still pose a threat to salmon within some 

of the small coastal rivers. For the most 

part, the small coastal rivers included 

within the 2000 GOM DPS boundaries 

are not dammed for hydroelectric 

generation (an exception would be the 

Union River), and, therefore, this threat 

was not highlighted in the 2000 listing. 

However, other barriers were identified 

in the 2000 listing as impacting habitat. 

The larger river basins face some 

additional threats compared to the small 

coastal rivers because they have higher 

human population densities, more 

development, and a significant number 

of dams and other barriers. Dams are 

present on all three of the larger rivers 

within the range of the GOM DPS and 

impact all salmon moving up and 

downstream. Given the number of 

salmon affected by dams and the 

amount of the habitat within the GOM 

DPS affected by dams, this threat is a 

significant factor in this listing 

determination. 

Poor marine survival was identified as 

one of the most significant threats in our 

2000 listing. Since then, we have 

improved our knowledge and 

understanding of the impact of marine 

survival on the GOM DPS. Survival and 

eventual recovery of the GOM DPS 

depends on an increase in marine 

survival, which is why that threat is a 

significant factor in this listing 

determination. 

There are extremely few naturallyreared, spawning adult salmon present 

in the GOM DPS (184 in 2007). 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 number of naturallyreared, spawning adults within the 

GOM DPS is extremely low and the 

majority of returning adults (whether 

naturally-reared or smolt-stocked) are 

found in the Penobscot River, despite 

the addition of other large rivers to the 

range of the DPS. In 2007, only 16 

adults returned to the Kennebec and 20 

returned to the Androscoggin. 

The GOM DPS is sustained by a 

carefully managed hatchery 

supplementation program. Hatchery 

supplementation is crucial to the 

continued existence of the GOM DPS, 

though 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, including the risk of 

disruptions to hatchery operations (e.g., 

due to disease outbreak) or the genetic 

risks (such as inbreeding and 

domestication selection). Although 

hatchery supplementation of the GOM 

DPS is currently important in 

maintaining genetic diversity levels, 

these programs have not been successful 

at recovering or maintaining wild, selfsustaining populations of Atlantic 

salmon. 

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 high. 

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., 

blocking up and downstream passage, 

entrainment, water quality effects, fish 

community effects), and the existing 

regulatory mechanisms for dams are 

inadequate. As a result, we find that low 

marine survival, dams, and the 

inadequacy of existing regulatory 

mechanisms for dams are each 

significant factors in this listing 

determination. 

We find that threats from reduced 

habitat complexity, reduced habitat 

connectivity, and reduced water 

quantity and degraded water quality 

within Factor A; overutilization within 

Factor B; disease and predation within 

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Factor C; 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 all act as 

stressors on the GOM DPS. Collectively, 

these are significant factors in this 

listing determination, contributing to 

the poor status of the GOM DPS. At this 

time, we do not have enough 

information to determine whether 

climate change (within Factor E) is a 

threat to the long-term persistence of the 

GOM DPS. 

We have considered all the above 

factors, efforts to protect the species, 

and the status of the species. We have 

concluded that the GOM DPS of 

Atlantic salmon is in danger of 

extinction. Therefore, we are listing it as 

endangered. 

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 

CWA and Clear Air Act. The ACOE may 

be required to consult on permits it 

issues under section 404 of the CWA 

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. 

The Services believe that, based on 

the best available information, the 

following actions are unlikely to result 

in a violation of section 9: 

(1) Any incidental take of GOM DPS 

Atlantic salmon resulting from an 

otherwise lawful activity conducted in 

accordance with the conditions of an 

incidental take permit issued by one of 

the Services under section 10 of the 

ESA. Examples of such actions may 

include operation of dams and fishways, 

State sport fish stocking programs, State 

recreational fishing programs for other 

species, silviculture, agriculture, State 

programs regulating water quality, and 

State programs regulating water 

withdrawals and instream flow; 

(2) Any action authorized, funded, or 

carried out by a Federal agency that is 

likely to adversely affect the GOM DPS 

of Atlantic salmon, when the action is 

conducted in accordance with the terms 

and conditions of an incidental take 

statement issued by either of the 

Services under section 7 of the ESA. 

Examples of such actions may include 

dam construction and operation, road 

construction, discharge of fill material, 

siting and operation of aquaculture 

facilities, and stream channelization or 

diversion; and 

(3) Any action carried out for 

scientific purposes or to enhance the 

propagation or survival of the species 

that is conducted in accordance with 

the conditions of a permit issued by one 

of the Services under section 10 of the 

ESA. Examples of such actions may 

include the river-specific hatchery 

conservation program at CBNFH and 

GLNFH, habitat restoration activities, 

and scientific monitoring programs. 

Activities that could lead to violation 

of section 9 prohibitions against ‘‘take’’ 

of the GOM DPS of anadromous Atlantic 

salmon include, but are not limited to, 

the following: 

(1) Unauthorized killing, collecting, 

handling, or harassing of individual 

GOM DPS Atlantic salmon. Examples of 

such actions may include targeted 

recreational or commercial fishing for 

GOM DPS salmon, and non-targeted 

recreational or commercial fishing for 

other species (bycatch), 

(2) Siting or operation of an 

aquaculture facility without adopting 

and implementing fish health practices 

that adequately protect against the 

introduction and spread of disease or 

the destruction of habitat; 

(3) Unauthorized destruction or 

alteration of spawning, rearing, or 

migration habitat. Examples of such 

activities may include erecting or 

operating structures that block 

migration routes (such as dams, 

culverts, or other barriers); instream 

dredging, rock removal, operation of 

heavy equipment, or channelization; 

riparian and in-river damage due to 

livestock; discharge of fill material; or 

manipulation of river flow; 

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29384 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

(4) Discharge or dumping of toxic 

chemicals, silt, or other pollutants (e.g., 

fertilizers, pesticides, heavy metals, oil, 

organic wastes) into the aquatic 

environment of the GOM 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. When there are 

questions about the effect of an action 

on the GOM DPS, the Services are 

available to provide technical 

assistance. We do not consider these 

lists to be exhaustive, and we provide 

them as general 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 

the Secretary 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, Pub. L. 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 Secretary of Commerce is 

designating critical habitat 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 (Pub. L. 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 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. During the public comment 

period for the proposed rule to list the 

GOM DPS of Atlantic salmon as 

endangered, the Services solicited the 

expert opinions of four qualified 

specialists. These independent 

specialists represented expertise from 

the academic and scientific community. 

Out of the four reviewers solicited, two 

individuals completed a critical review 

of the proposed rule. Peer review 

comments are summarized and 

addressed in the public comment 

section of this rule, and the text of the 

final rule has been changed where 

necessary. 

References 

A complete list of the references used 

in this final rule is available upon 

request (see ADDRESSES). 

Classification 

National Environmental Policy Act 

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 final 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.’’ Compliance of this document 

with NOAA guidelines is evaluated 

below. 

Utility: The information disseminated 

is intended to describe the species’ life 

history, population status, threats, and 

risks; management actions; and the 

effects of management actions. The 

information is intended to be useful to 

state and Federal agencies, nongovernmental organizations, industry 

groups and other interested parties so 

they can understand the listing status of 

the species. 

Integrity: No confidential data were 

used in the analysis of the impacts 

associated with this document. All 

scientific data considered in this 

document and used to analyze the 

proposed action, is considered public 

information. 

Objectivity: The NOAA Information 

Quality Guidelines require disseminated 

information to be presented in an 

accurate, clear, complete, and unbiased 

manner. This document was prepared 

with these objectives in mind. It was 

also reviewed by agency biologists, 

policy analysts, and managers and 

NOAA and Department of Commerce 

attorneys. 

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. These public notice and 

comment procedures have been 

completed in this rulemaking. 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29385 

Coastal Zone Management Act 

Section 307(c)(1) of the Federal 

Coastal Zone Management Act of 1972 

requires that all Federal activities that 

affect 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. A letter documenting NMFS’ 

determination and a copy of the 

proposed rule was sent to the coastal 

zone management program office in 

Maine. The specific state contact and a 

copy of the letter is available upon 

request. A copy of the final rule will be 

sent to the coastal zone management 

program office in Maine. 

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 provided 

notice of the action at the proposed 

rulemaking stage and requested 

comments from the appropriate 

official(s) in Maine. Comments were 

received from Senators Snowe and 

Collins, Congressman Michaud, and 

from the State of Maine. Among other 

concerns, they stated that a threatened 

listing determination could be justified 

under the ESA and advocated that the 

Services suspend a decision on the 

Androscoggin until further genetic data 

could be gathered and analyzed. These 

comments were considered by the 

Services in preparing this final 

rulemaking action and are addressed in 

the Response to Public Comments 

section above. A Federal summary 

impact statement has been prepared and 

sent to the appropriate State officials. 

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 final 

listing determination is not expected to 

have a disproportionately high effect on 

minority populations and low-income 

populations in Maine because the 

implications of this listing action do not 

adversely affect the human health of 

low-income, minority, or other 

populations or the environment in 

which these various populations live. 

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 rule does not contain a collectionof-information requirement for the 

purposes of the Paperwork Reduction 

Act. 

E.O. 13175—Consultation and 

Coordination With Indian Tribal 

Governments 

E.O. 13175 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 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. 

13175 do not apply to this final rule. 

Nonetheless, we met with tribal 

governments potentially affected by this 

listing decision and to solicit their input 

on the proposed rule. We have given 

careful consideration to all written and 

oral comments received and will 

continue our coordination and 

discussions with interested tribes as we 

move forward specifically with 

implementing this final rule as well as 

salmon recovery and management in 

general. 

List of Subjects 

50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

50 CFR Part 224 

Administrative practice and 

procedure, Endangered and threatened 

species, Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Dated: June 11, 2009. 

Samuel D. Rauch III, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

Dated: May 12, 2009. 

Stephen Guertin, 

Acting Director, U.S. Fish and Wildlife 

Service. 

■ For the reasons set out in the 

preamble, 50 CFR parts 17 and 224 are 

amended as follows: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500, unless otherwise noted. 

■ 2. 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. 

(h) * * * 

* * * * * 

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29386 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

Species 

Historic 

range Vertebrate population where endangered or threatened Status When listed 

Critical 

habitat 

Special 

Common rules 

name 

Scientific 

name 

* * * * * * * 

FISHES

* * * * * * * 

Salmon, 

Atlantic, 

Gulf of 

Maine.

Salmo 

salar.

U.S.A., 

Canada, 

Greenland, 

western 

Europe.

U.S.A., ME, Gulf of Maine Distinct Population Segment. The 

GOM DPS includes all anadromous Atlantic salmon whose 

freshwater range occurs in the watersheds from the 

Androscoggin River northward along the Maine coast to 

the Dennys River, and wherever these fish occur in the 

estuarine and marine environment. The following impassable falls delimit the upstream extent of the freshwater 

range: Rumford Falls in the town of Rumford on the 

Androscoggin River; Snow Falls in the town of West Paris 

on the Little Androscoggin River; Grand Falls in Township 

3 Range 4 BKP WKR, on the Dead River in the Kennebec 

Basin; the un-named falls (impounded by Indian Pond 

Dam) immediately above the Kennebec River Gorge in the 

town of Indian Stream Township on the Kennebec River; 

Big Niagara Falls on Nesowadnehunk Stream in Township 

3 Range 10 WELS in the Penobscot Basin; Grand Pitch 

on Webster Brook in Trout Brook Township in the Penobscot Basin; and Grand Falls on the Passadumkeag River 

in Grand Falls Township in the Penobscot Basin. The marine range of the GOM DPS extends from the Gulf of 

Maine, throughout the Northwest Atlantic Ocean, to the 

coast of Greenland. Included are 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 Hatchery (CBNFH). Excluded are landlocked salmon and those 

salmon raised in commercial hatcheries for aquaculture.

E .............. NA NA 

* * * * * * * 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 3. The authority citation for part 224 

continues to read as follows: 

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

U.S.C. 1361 et seq. 

■ 4. 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. 

* * * 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29387 

Species 1

Where listed Citation(s) for listing 

determination(s) 

Citation(s) for 

critical habitat 

Common name Scientific name designation(s) 

* * * * * * * 

Gulf of Maine Atlantic 

salmon.

Salmo salar .............. U.S.A., ME, Gulf of Maine Distinct Population Segment. The GOM DPS includes all anadromous 

Atlantic salmon whose freshwater range occurs 

in the watersheds from the Androscoggin River 

northward along the Maine coast to the Dennys 

River, and wherever these fish occur in the estuarine and marine environment. The following impassable falls delimit the upstream extent of the 

freshwater range: Rumford Falls in the town of 

Rumford on the Androscoggin River; Snow Falls 

in the town of West Paris on the Little 

Androscoggin River; Grand Falls in Township 3 

Range 4 BKP WKR, on the Dead River in the 

Kennebec Basin; the un-named falls (impounded 

by Indian Pond Dam) immediately above the 

Kennebec River Gorge in the town of Indian 

Stream Township on the Kennebec River; Big 

Niagara Falls on Nesowadnehunk Stream in 

Township 3 Range 10 WELS in the Penobscot 

Basin; Grand Pitch on Webster Brook in Trout 

Brook Township in the Penobscot Basin; and 

Grand Falls on the Passadumkeag River in 

Grand Falls Township in the Penobscot Basin. 

The marine range of the GOM DPS extends 

from the Gulf of Maine, throughout the Northwest 

Atlantic Ocean, to the coast of Greenland. Included are 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 Hatchery (CBNFH). Excluded are landlocked salmon and those salmon 

raised in commercial hatcheries for aquaculture.

65 FR 69469; November 17, 2000; 

74 FR [Insert page 

number where the 

document begins]; 

June 19, 2009.

NA 

* * * * * * * 

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 

1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 

* * * * * 

[FR Doc. E9–14269 Filed 6–18–09; 8:45 am] 

BILLING CODE 3510–22–P 

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