Endangered and Threatened Species: Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 5, 2006 (Volume 71, Number 3)]
[Rules and Regulations]
[Page 833-862]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja06-9]
[[Page 834]]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 051216341-5341-01; I.D. No. 052104F]
RIN 0648-AR93

Endangered and Threatened Species: Final Listing Determinations
for 10 Distinct Population Segments of West Coast Steelhead

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

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SUMMARY: We, NOAA's National Marine Fisheries Service (NMFS), are
issuing final determinations to list 10 Distinct Population Segments
(DPSs) of West Coast steelhead (Oncorhynchus mykiss) under the
Endangered Species Act (ESA) of 1973, as amended. We are listing one
steelhead DPS in California as endangered (the Southern California
steelhead DPS), and nine steelhead DPSs in California, Oregon,
Washington, and Idaho as threatened (the South-Central California
Coast, Central California Coast, California Central Valley, Northern
California, Lower Columbia River, Upper Willamette River, Middle
Columbia River, Upper Columbia River, and Snake River Basin steelhead
DPSs). All 10 of these DPSs were previously listed as threatened or
endangered species. The Upper Columbia River steelhead DPS, formerly
listed as an endangered species, is now being listed as threatened.

DATES: The effective date of this rule is February 6, 2006.

ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard,
Suite 1100, Portland, Oregon 97232.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region,
at (562) 980-4021, Dr. Scott Rumsey, NMFS, Northwest Region, Protected
Resources Division, at (503) 872-2791, and Marta Nammack, NMFS, Office
of Protected Resources, at (301) 713-1401. Reference materials
regarding these determinations are available upon request or on the
Internet at http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

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. In 1991 we issued a policy for
delineating distinct population segments of Pacific salmon (56 FR
58612; November 20, 1991). Under this policy a group of Pacific salmon
populations is considered an ``evolutionarily significant unit'' (ESU)
if it is substantially reproductively isolated from other conspecific
populations, and it represents an important component in the
evolutionary legacy of the biological species. Further, an ESU is
considered to be a ``distinct population segment'' (and thus a
``species'') under the ESA. In 1996, we and FWS adopted a joint policy
for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722; February 7,
1996). The DPS Policy adopts criteria similar to, but somewhat
different from, those in the ESU Policy for determining when a group of
vertebrates constitutes a DPS: The group must be discrete from other
populations, and it must be significant to its taxon. A group of
organisms is discrete if it is ``markedly separated from other
populations of the same taxon as a consequence of physical,
physiological, ecological, and behavioral factors.'' Significance is
measured with respect to the taxon (species or subspecies) as opposed
to the full species. Although the ESU Policy did not by its terms apply
to steelhead, the DPS Policy states that NMFS will continue to
implement the ESU Policy with respect to ``Pacific salmonids'' (which
include O. mykiss). FWS, however, does not use our ESU policy in any of
its ESA listing decisions. In a previous instance of shared
jurisdiction over a species (Atlantic salmon), we and FWS used the DPS
policy in our determination to list the Gulf of Maine DPS of Atlantic
salmon as endangered (65 FR 69459; November 17, 2000). Given our shared
jurisdiction over O. mykiss, and consistent with our approach for
Atlantic salmon, we believe application of the joint DPS policy here is
logical, reasonable, and appropriate for identifying DPSs of O. mykiss.
Moreover, use of the ESU policy--originally intended for Pacific
salmon--should not continue to be extended to O. mykiss, a type of
salmonid with characteristics not typically exhibited by Pacific
salmon. NMFS and FWS also intend to continue to evaluate application of
the statutory term ``distinct population segment'' in a process outside
the context of a species-specific listing.

Previous Federal ESA Actions Related to West Coast Steelhead

In 1996, we completed a comprehensive status review of West Coast
steelhead (Busby et al., 1996) that resulted in proposed listing
determinations for 10 steelhead ESUs, five as endangered and five as
threatened species (61 FR 41541; August 9, 1996). On August 18, 1997,
we listed five of the ESUs, two as endangered (the Southern California
and Upper Columbia River steelhead ESUs) and three as threatened (the
South-Central California Coast, Central California Coast, and Snake
River Basin steelhead ESUs) (62 FR 43937). On March 19, 1998, we listed
the California Central Valley and Lower Columbia River steelhead ESUs
as threatened. On March 25, 1999, we listed as threatened the Upper
Willamette River and Middle Columbia River steelhead ESUs (64 FR
14517). We listed the Northern California steelhead ESU as threatened
on June 7, 2000 (65 FR 36074). As a result of these listing
determinations, there are currently 10 listed steelhead ESUs, two
endangered (Southern California and Upper Columbia River) and eight
threatened (South-Central California, Central California Coast,
California Central Valley, Northern California, Upper Willamette River,
Lower Columbia River, Middle Columbia River, and Snake River Basin).
In our August 18, 1997, steelhead listing determinations, we noted
uncertainties about the relationship of resident and anadromous O.
mykiss, yet concluded that the two forms are part of a single ESU where
the resident and anadromous O. mykiss have the opportunity to
interbreed (62 FR 43937, at 43941). FWS, the agency with ESA
jurisdiction over resident O. mykiss, disagreed that resident fish
should be included in the steelhead ESUs and advised that the resident
fish not be listed (FWS, 1997; and 62 FR 43937, at 43941). Accordingly,
we listed only the anadromous O. mykiss (steelhead) at that time (62 FR
43937, at 43951). That decision was followed in each of the subsequent
steelhead listings described in the preceding paragraph.
In 2001, the U.S. District Court in Eugene, Oregon, set aside the
1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley
Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) (Alsea). In the
Oregon Coast coho listing (63 FR 42587; August 10, 1998), we did not
include 10 hatchery stocks determined to be part of the Oregon Coast
coho ESU. The court upheld our

[[Page 835]]

policy of considering an ESU to be a DPS, but ruled that once we had
delineated a DPS, the ESA did not allow listing only a subset of that
DPS. In response to the Alsea decision and several listing and
delisting petitions, we announced we would conduct an updated status
review of 27 West Coast salmonid ESUs, including the 10 listed
steelhead ESUs (67 FR 6215, February 11, 2002; 67 FR 48601, July 25,
2002; 67 FR 79898, December 31, 2002).
On June 14, 2004, we proposed to continue applying our ESU Policy
to the delineation of DPSs of O. mykiss, and to list the 10 O. mykiss
ESUs including the resident fish that co-occur with the anadromous form
(69 FR 33102). We proposed to list one ESU in California as endangered
(Southern California), and nine ESUs in California, Oregon, Washington,
and Idaho as threatened (South-Central California, Central California
Coast, California Central Valley, Northern California, Upper Willamette
River, Lower Columbia River, Middle Columbia River, Snake River Basin,
and Upper Columbia). In the proposed rule, we noted that the Alsea
decision required listing of an entire DPS (ESU), in contrast to our
prior steelhead-only listings, and stated the scientific principles and
working assumptions that we used to determine whether particular
resident groups were part of an O. mykiss ESU that included anadromous
steelhead (69 FR 33102, at 33113). We proposed that where resident
(rainbow trout) and anadromous (steelhead) O. mykiss occur in the same
stream, they are not ``substantially reproductively isolated'' from one
another and are therefore part of the same ESU.
Following an initial public comment period of 90 days, we twice
extended the public comment period for an additional 36 and 22 days (69
FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004),
respectively. During the comment period, we received numerous comments
disagreeing with our proposal to include resident populations in the O.
mykiss ESUs (in general and for specific resident populations) and
criticizing how we considered resident O. mykiss in evaluating the risk
to the continued existence of the whole ESU.
On June 7, 2005, FWS wrote to NMFS (FWS, 2005), stating its
concerns about the factual and legal bases for our proposed listing
determinations for 10 O. mykiss ESUs, specifying issues of substantial
disagreement regarding the relationship between anadromous and resident
O. mykiss. On June 28, 2005, we published a notice in the Federal
Register announcing a 6-month extension of the final listing
determinations for the subject O. mykiss ESUs to resolve the
substantial disagreement regarding the sufficiency or accuracy of the
available data relevant to the determinations (70 FR 37219). As a
result of the comments received, we re-opened the comment period on
November 4, 2005, to receive comments on a proposed alternative
approach to delineating ``species'' of West Coast O. mykiss (70 FR
67130). We proposed to depart from our past practice of applying the
ESU Policy to O. mykiss stocks, and instead proposed to apply the DPS
Policy in determining ``species'' of O. mykiss for listing
consideration. We noted that within a discrete group of O. mykiss
populations, the resident and anadromous life forms of O. mykiss remain
``markedly separated'' as a consequence of physical, physiological,
ecological, and behavioral factors, and may therefore warrant
delineation as separate DPSs. We solicited comment on whether our final
listing determinations should delineate 10 steelhead-only DPSs, list
one DPS in California as endangered (Southern California), and list the
remaining nine DPSs in California, Oregon, Washington, and Idaho as
threatened (South-Central California, Central California Coast,
California Central Valley, Northern California, Upper Willamette River,
Lower Columbia River, Middle Columbia River, Snake River Basin, and
Upper Columbia). The public comment period on this proposed alternative
approach closed on December 5, 2005.

Statutory Framework for ESA Listing Determinations

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: the present or threatened
destruction, modification or curtailment of its habitat or range;
overutilization for commercial, recreational, scientific, or
educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or 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 information
after conducting a review of the status of the species and taking into
account any efforts being made by states or foreign governments to
protect the species. The focus of our evaluation of the five statutory
factors is to evaluate whether and to what extent a given factor
represents a threat to the future survival of the species. The focus of
our consideration of protective efforts is to evaluate whether and to
what extent they address the identified threats and so ameliorate a
species' risk of extinction. In making our listing determination, we
must consider all factors that may affect the future viability of the
species, including whether regulatory and conservation programs are
inadequate and allow threats to the species to persist or worsen, or
whether these programs are likely to mitigate threats to the species
and reduce its extinction risk. The steps we follow in implementing
this statutory scheme are to: (1) Delineate the species under
consideration; (2) review the status of the species; (3) identify
threats facing the species; (4) assess whether certain protective
efforts mitigate these threats; and (5) predict the species' future
persistence.
As noted above, as part of our listing determinations we must
consider efforts being made to protect a species, and whether these
efforts ameliorate the threats facing the species and reduce risks to
its survival. Some protective efforts may be fully implemented, and
empirical information may be available demonstrating their level of
effectiveness in conserving the species. Other protective efforts are
new, not yet implemented, or have not demonstrated effectiveness. We
evaluate such unproven efforts using the criteria outlined in the
Policy for Evaluating Conservation Efforts (``PECE'' 68 FR 15100; March
28, 2003) to determine their certainties of implementation and
effectiveness.

Summary of Comments Received

We solicited public comment on the proposed listing determinations
for West Coast O. mykiss for a total of 238 days (69 FR 33102, June 14,
2004; 69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004; 70
FR 6840, February 9, 2005; 70 FR 37219, June 28, 2005; 70 FR 67130,
November 4, 2005). In addition, we held eight public hearings in the
Pacific Northwest, and six public hearings in California concerning the
June 2004 West Coast salmon and steelhead proposed listing
determinations (69 FR 53031, August 31, 2004; 69 FR 54647, September 9,
2004; 69 FR 61348, October 18, 2004). We solicited public comment again
for 30 days on our proposed alternative approach to delineating DPSs of O.

[[Page 836]]

mykiss (70 FR 67130; November 4, 2005).
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). We solicited
technical review of the scientific information underlying the June 2004
proposed listing determinations, including the proposed determinations
for West Coast O. mykiss, from over 50 independent experts selected
from the academic and scientific community, Native American tribal
groups, Federal and state agencies, and the private sector.
In December 2004 the Office of Management and Budget (OMB) issued a
Final Information Quality Bulletin for Peer Review (Peer Review
Bulletin) establishing minimum peer review standards, a transparent
process for public disclosure, and opportunities for public input. The
OMB Peer Review Bulletin, implemented under the Information Quality Act
(Public Law 106-554), is intended to ensure the quality of agency
information, analyses, and regulatory activities and provide for a more
transparent peer review process. We consider the scientific information
used by the agency in developing the subject listing determinations for
West Coast steelhead to be ``influential scientific information'' in
the context of the OMB Peer Review Bulletin.
We believe the independent expert review under the joint NMFS/FWS
peer review policy, and the comments received from several academic
societies and expert advisory panels, collectively satisfy the Peer
Review Bulletin's requirements for ``adequate [prior]
peer review.'' We
solicited technical review of the proposed hatchery listing policy and
salmon and steelhead listing determinations from over 50 independent
experts selected from the academic and scientific community, Native
American tribal groups, Federal and state agencies, and the private
sector. The individuals from whom we solicited review of the proposals
and the underlying science were selected because of their demonstrated
expertise in a variety of disciplines including: artificial
propagation; salmonid biology, taxonomy, and ecology; genetic and
molecular techniques and analyses; population demography; quantitative
methods of assessing extinction risk; fisheries management; local and
regional habitat conditions and processes; and conducting scientific
analyses in support of ESA listing determinations. The individuals
solicited represent a broad spectrum of perspectives and expertise and
include those who have been critical of past agency actions in
implementing the ESA for West Coast salmon and steelhead, as well as
those who have been supportive of these actions. These individuals were
not involved in producing the scientific information for our
determinations and were not employed by the agency producing the
documents. In addition to these solicited reviews, several independent
scientific panels and academic societies provided technical review of
the hatchery listing policy and proposed listing determinations, and
the supporting documentation. Many of the members of these panels were
individuals from whom we had solicited review. We thoroughly
considered, and, as appropriate, incorporated the review comments into
these final listing determinations.
In response to the requests for information and comments on the
June 2004 proposed listing determinations, we received over 28,250
comments by fax, standard mail, and e-mail. The majority of the
comments received were from interested individuals who submitted form
letters or form e-mails and addressed general issues not specific to a
particular ESU. Comments were also submitted by state and tribal
natural resource agencies, fishing groups, environmental organizations,
home builder associations, academic and professional societies, expert
advisory panels, farming groups, irrigation groups, and individuals
with expertise in Pacific salmonids. The majority of respondents
focused on the consideration of hatchery-origin fish in ESA listing
determinations, with only a few comments specifically addressing the O.
mykiss ESUs under review. We also received comments from four of the
independent experts from whom we had requested technical review of the
scientific information underlying the June 2004 proposed listing
determinations. The peer reviewers' comments did not specifically
address the proposed determinations for the 10 O. mykiss ESUs. We
received 14 comments in response to the 6-month extension of the final
listing determinations for the 10 O. mykiss ESUs. The comments
reflected a diversity of opinion and generally focused on whether
resident populations should be included as part of O. mykiss ESUs, and
the consideration of resident O. mykiss in assessing the extinction
risk of ESUs including both resident and anadromous populations. We
received 15 comments concerning our November 2005 proposed alternative
approach to delineate and list 10 steelhead-only DPSs of West Coast O.
mykiss. The majority of the comments were opposed to the proposed
alternative approach, though others were supportive. Copies of the full
text of comments received are available upon request (see ADDRESSES and
FOR FURTHER INFORMATION CONTACT, above).
Below we address the comments received that directly pertain to the
listing determinations for West Coast O. mykiss. The reader is referred
to our June 2005 final hatchery listing policy (70 FR 37204; June 28,
2005) for a summary and discussion of general issues concerning: the
inclusion and listing of hatchery programs as part of salmon and
steelhead ESUs; and the consideration of artificial propagation in
evaluating the extinction risk of salmon and steelhead ESUs. The reader
is referred to our June 2005 final listing determinations for 16 salmon
ESUs (70 FR 37160; June 28, 2005) for a summary and discussion of
general issues related to: the interpretation and application of the
hatchery listing policy in our review of the species' status under
review; the consideration of efforts being made to protect the species;
and amended protective regulations for threatened salmonids. The
following summary of issues raised and our responses are organized into
six general categories: (1) General comments on the consideration of
resident O. mykiss in the determination of ``species;'' (2) general
comments on the consideration of resident O. mykiss in assessing
extinction risk; (3) comments regarding a specific ESU or DPS on the
determination of species; (4) comments regarding a specific ESU or DPS
on the assessment of extinction risk; (5) comments on the consideration
of protective efforts; and (6) comments regarding public notice and
opportunities for comment.

General Comments on the Consideration of Resident O. mykiss:
Determination of Species

Comment 1: Several commenters felt that we lack sufficient site-
specific information to justify our June 2004 proposed inclusion of
resident rainbow trout as part of O. mykiss ESUs. These commenters felt
that our proposal inappropriately extrapolated a few observations
universally to all circumstances where resident and anadromous O.
mykiss have overlapping distributions. Other commenters felt that
rainbow trout and steelhead should be considered separate ESUs for
biological reasons (differences in behavior, morphology, and ecology);
or for policy or legal reasons (such as implementing the purposes of
the ESA).

[[Page 837]]

Response: Those commenters who noted the lack of site-specific
information are correct--we relied on information about the
reproductive exchange of some specific co-occurring rainbow trout and
steelhead to conclude generally that where the two life forms co-occur,
they are sufficiently reproductively related to satisfy our ESU policy.
We continue to conclude that the best available scientific information
suggests that co-occurring steelhead and rainbow trout are part of the
same ESU, as we defined that concept in our ESU policy. Some of the
concerns raised by these commenters have persuaded us to alter our
approach to delineating DPSs of O. mykiss, and rely on the DPS policy
rather than the ESU policy. Because we have decided to alter our
approach, we do not address these comments in further detail.
Comment 2: Several commenters felt we failed to provide a rationale
for departing from our long-standing practice of applying the ESU
policy. The commenters felt that the choice to use the DPS policy
appeared to be based on an arbitrary jurisdictional division between
NMFS and FWS, rather than new scientific information supporting an
alternative approach. The commenters felt that it is not appropriate to
base species delineations on arbitrary divisions between government
agencies and the apparent desire to preserve jurisdictional
authorities. These commenters stressed that such determinations must be
made based on the best available scientific information.
Other commenters supported the use of the DPS policy in delineating
species of O. mykiss. They felt that consistency between NMFS and FWS
would improve the public understanding of the listing process. They
also felt that the DPS policy provides flexibility, affording a more
practical consideration of resident populations, particularly above
impassable dams, that do not warrant ESA protections.
Response: In our previous status reviews for West Coast O. mykiss
we applied our ESU policy and concluded that, where they co-occur and
have the opportunity to interbreed, the resident and anadromous life-
history forms are part of a single ESU. FWS disagreed that resident O.
mykiss should be included in the steelhead ESUs and recommended that
only the anadromous fish be listed (FWS, 1997). Accordingly, we listed
only the steelhead portion of the ESUs. The Alsea ruling informed us
that this approach to implementing our jurisdiction over O. mykiss was
invalid; once we have equated an ESU with a DPS, delineated an ESU, and
determined that it warrants listing, we must include all components of
the DPS (ESU) in the listing. In our June 2004 proposed listing
determinations (69 FR 33102; June 14, 2004), we proposed to continue
applying our ESU policy in delineating species of O. mykiss for listing
consideration, consistent with our previous practice. Informed by the
Alsea ruling, we proposed to list entire O. mykiss ESUs, including both
the anadromous and resident components. FWS disagreed with our DPS
delineations under the ESU policy, and questioned whether the proposed
delineations are consistent with the DPS policy (FWS, 2005).
The preamble to the joint DPS policy acknowledged that ``the NMFS
[ESU]
policy is a detailed extension of this joint policy.
Consequently, NMFS will continue to exercise its policy with respect to
Pacific salmonids'' (61 FR 4722; February 7, 1996). FWS, however, does
not use our ESU policy in any of its ESA listing decisions. In a
previous instance of shared jurisdiction over a species (Atlantic
salmon), we and FWS used the DPS policy in our determination to list
the Gulf of Maine DPS of Atlantic salmon as endangered (65 FR 69459;
November 17, 2000). Given our shared jurisdiction over O. mykiss, and
consistent with our approach for Atlantic salmon, we believe
application of the joint DPS policy here is logical, reasonable, and
appropriate for identifying DPSs of O. mykiss. Moreover, use of the ESU
policy--originally intended for Pacific salmon--should not continue to
be extended to O. mykiss, a type of salmonid with characteristics not
typically exhibited by Pacific salmon.
Comment 3: Two commenters argued that we are required to rely on
the taxonomic distinctions established by the scientific community in
making our species delineations. Commenters quoted NMFS' ESA
implementing regulations stating that we ``shall rely on standard
taxonomic distinctions and the biological expertise of the Department
and the scientific community regarding the relevant taxonomic group''
(50 CFR 424.11(a)). The commenters noted that it is well established in
the scientific literature that the resident and anadromous life forms
of O. mykiss are members of the same taxonomic species, and where they
co-occur they are genetically indistinguishable and represent a life-
history polymorphism within a single interbreeding population. Several
commenters also noted that a group of independent scientific experts
(Hey et al., 2005) recently empaneled by NMFS concluded: ``For * * *
populations in which anadromous and resident fish appear to be
exchanging genes and in which some parents produce progeny exhibiting
both life history paths, the two life-history alternatives appear as a
form of polymorphism. In these cases there is little justification for
putting the resident and anadromous life-history types into different
conservation units.''
Response: The fact that anadromous steelhead and resident rainbow
trout are both part of the biological species taxonomists recognize as
O. mykiss does not end the inquiry. The statute clearly contemplates
listing subunits of species, by defining species to include
``subspecies * * * and any distinct population segment of any species *
* *'' The ESA does not define the term ``distinct population segment,''
but it is clearly a subset of a taxonomic species. Nor does the ESA
refer to conservation units. While we agree with the Hey et al. panel's
conclusion that co-occurring resident and anadromous O. mykiss are part
of a larger conservation unit (which we would consider an ESU), that
also is not the end of the inquiry. The joint DPS policy takes a
somewhat different approach from the ESU policy to identifying
conservation units, which may result, in some cases, in the
identification of different conservation units. There are also other
potential approaches to delineating a DPS for purposes of the ESA (see
Waples, 2005, in press). For reasons described in response to Comment
2, we are applying the DPS policy (see also the response to Comment 4
for additional discussion).
Comment 4: Some commenters felt that applying the DPS policy to O.
mykiss should lead to the same result as the ESU policy, with the co-
occurring rainbow trout and steelhead being considered part of the same
DPS. The commenters felt that our application of the DPS policy
overemphasizes inconsistent and qualitative phenotypic characteristics,
and ignores scientific information regarding reproductive exchange and
genetic similarity. These commenters cited several empirical studies
documenting that resident and anadromous O. mykiss are similar
genetically when they co-occur with no physical barriers to migration
or interbreeding, and that individuals can occasionally produce progeny
of the alternate life-history form. The commenters felt that the DPS
policy clearly contemplates considering reproductive isolation as part
of evaluating discreteness. The commenters noted that the DPS policy
states as part of the discreteness criterion that quantitative measures of

[[Page 838]]

genetic discontinuity may provide evidence of discreteness.
The commenters also stressed that the ESA's definition of
``species'' focuses solely on reproductive exchange. (section 3(16) of
the ESA defines the term species as including any ``distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature''; emphasis added). The commenters argued that the
additional considerations provided in the DPS policy (including marked
separation as a consequence of physical, physiological, ecological, and
behavioral factors) are supplemental to the primary consideration of
reproductive isolation required under the ESA.
Response: The ESA requirement that a group of organisms must
interbreed when mature to qualify as a DPS is a necessary but not
exclusive condition. Under the definition, although all organisms that
belong to a DPS must interbreed when mature (at least on some time
scale), not all organisms that share some reproductive exchange with
members of the DPS must be included in the DPS. The DPS policy outlines
other relevant considerations for determining whether a particular
group should be delineated as a DPS (i.e., ``marked separation'' as a
consequence of physical, physiological, ecological or behavioral factors).
Although the DPS and ESU policies are consistent, they will not
necessarily result in the same delineation of DPSs under the ESA. The
statutory term ``distinct population segment'' is not used in the
scientific literature and does not have a commonly understood meaning.
NMFS' ESU policy and the joint DPS policy apply somewhat different
criteria, with the result that their application may lead to different
outcomes in some cases. The ESU policy relies on ``substantial
reproductive isolation'' to delineate a group of organisms, and
emphasizes the consideration of genetic and other relevant information
in evaluating the level of reproductive exchange among potential ESU
components. The DPS policy does not rely on reproductive isolation to
determine ``discreteness,'' but on the marked separation of population
groups as a consequence of biological factors.
Despite the apparent reproductive exchange between resident and
anadromous O. mykiss, the two life forms remain markedly separated
physically, physiologically, ecologically, and behaviorally. Steelhead
differ from resident rainbow trout physically in adult size and
fecundity, physiologically by undergoing smoltification, ecologically
in their preferred prey and principal predators, and behaviorally in
their migratory strategy. Where the two life forms co-occur, adult
steelhead typically range in size from 40-72 cm in length and 2-5 kg
body mass, while adult rainbow trout typically range in size from 25-46
cm in length and 0.5-2 kg body mass (Shapovalov and Taft, 1954; Wydoski
and Whitney, 1979; Jones, 1984). Steelhead females produce
approximately 2,500 to 10,000 eggs, and rainbow trout fecundity ranges
from 700 to 4,000 eggs per female (Shapovalov and Taft, 1954; Buckley,
1967; Moyle, 1976; McGregor, 1986; Pauley et al., 1986), with steelhead
eggs being approximately twice the diameter of rainbow trout eggs or
larger (Scott and Crossman, 1973; Wang, 1986; Tyler et al., 1996).
Steelhead undergo a complex physiological change that enables them to
make the transition from freshwater to saltwater (smoltification),
while rainbow trout reside in freshwater throughout their entire life
cycle. While juvenile and adult steelhead prey on euphausiid
crustaceans, squid, herring, and other small fishes available in the
marine environment, the diet of adult rainbow trout is primarily
aquatic and terrestrial insects and their larvae, mollusks, amphipod
crustaceans, fish eggs, and minnows (LeBrasseur, 1966; Scott and
Crossman, 1973; Wydoski and Whitney, 1979). These differences in diet
are a function of migratory behavior and the prey communities available
to resident and anadromous O. mykiss in their respective environments.
Finally, steelhead migrate several to hundreds of miles from their
natal streams to the ocean, and spend up to 3 years in the ocean
migrating thousands of miles before returning to freshwater to spawn
(Busby et al., 1996). Some fluvial populations of rainbow trout may
exhibit seasonal migrations of tens of kilometers outside of their
natal watersheds, but rainbow trout generally remain associated with
their natal drainages (Meka et al., 1999). Given the marked separation
between the anadromous and resident life-history forms in physical,
physiological, ecological, and behavioral factors, we conclude that the
anadromous steelhead populations are discrete from the resident rainbow
trout populations within the ranges of the DPSs under consideration.
Comment 5: Several commenters were critical of the evidence we
provided that co-occurring resident and anadromous O. mykiss are
markedly separate (``discrete''). Commenters felt that we exaggerated
and oversimplified the differences between anadromous and resident O.
mykiss, and that much of the evidence presented in support of their
``marked separation'' is not illustrative of traits unique to a given
life-history form. The commenters felt that the majority of the
phenotypic differences cited are inconsistent, overlap considerably
between the two life forms, and are predominantly caused by
environmental factors.
Several commenters were critical of the physical factors we cited
as evidence of marked separation between the two life forms. The
commenters documented overlap in the size and fecundity ranges of
resident and anadromous O. mykiss in the same watersheds, and concluded
that our assertion that steelhead are generally larger and more fecund
than rainbow trout does not hold true. The commenters felt that fish
size and fecundity are largely a function of food supply, rather than
being a trait inherent to anadromy. The commenters cited examples
where, provided sufficient food resources, rainbow trout achieve
similar sizes and fecundity as steelhead.
Commenters were critical of the ecological factors we cited. The
commenters felt that it is inappropriate to distinguish between the two
forms on the basis of diet, as it is a function of prey availability in
different environments rather than reflecting intrinsic differences in
prey preference. They noted that when steelhead and rainbow trout are
in the same freshwater environment, individuals of similar size and
life-history stage have similar prey preferences.
Commenters were critical of the behavioral factors we cited. The
commenters argued that the two life forms are not ``markedly
separated'' in terms of migratory behavior. The commenters cited
several scientific studies documenting migratory behavior in non-
anadromous O. mykiss including: movement within a river system
(potadromy); movement from lakes into rivers for spawning (limnodromy);
and movement to the estuary/lagoon for growth and maturation (partial
anadromy). Although commenters generally acknowledge that only the
anadromous form migrates to the open ocean, they contended that this
does not represent a truly discrete difference. The commenters
described the life history of the O. mykiss species as a continuum of
migratory behaviors, with anadromous and resident fish representing
points on this continuum.
Commenters were also critical of the physiological factors we
cited. Commenters argued that resident and

[[Page 839]]

anadromous fish are not discrete physiologically throughout the
majority of their life cycle, and smoltification is not entirely unique
to anadromy. Commenters noted that some resident individuals may
exhibit anadromy later in their life cycle, and other non-anadromous
fish exhibit partial anadromy by migrating into estuaries for growth
and maturation. Commenters also noted that some resident fish are
capable of exhibiting anadromy later in their life cycle, as well as
producing anadromous progeny that undergo smoltification.
Response: The fact that there is an overlap between co-occurring
steelhead and rainbow trout in the physical, ecological, behavioral and
physiological factors does not prevent them from satisfying the
discreteness criterion under the DPS policy. While the commenters are
correct that O. mykiss display a continuum of traits in these
categories, at the end of that continuum steelhead are markedly
separate in their extreme marine migration (leading to, or resulting
from, marked separation in the other factors). As we stated in adopting
the DPS policy, ``the standard adopted [for discreteness]
does not
require absolute separation of a DPS from other members of its species,
because this can rarely be demonstrated in nature for any population of
organisms. * * * [T]he standard adopted allows for some limited
interchange among population segments considered to be discrete, so
that loss of an interstitial population could well have consequences
for gene flow and demographic stability of a species as a whole'' (61
FR 4722, at 4724; February 7, 1996).
Similarly, the ESU policy does not require absolute reproductive
isolation, only sufficient isolation to allow evolutionarily important
differences to accumulate (56 FR 58612, at 58618; November 20, 1991).
In delineating ESUs, we have recognized that straying leads to some
reproductive exchange among ESUs (particularly among populations at the
geographic margins between ESUs), that biological entities do not
divide along clear lines, and that professional judgment is required in
drawing a line at the geographic edge of an ESU. Even among well-
recognized taxonomic groupings, such as subspecies, there may be
overlapping characteristics, and some reproductive exchange.
In developing the DPS policy we answered concerns that discreteness
was an inappropriate criterion for delineating DPSs: ``With regard to
the discreteness standard, the Services believe that logic demands a
distinct population recognized under the Act be circumscribed in some
way that distinguishes it from other representatives of its species.
The standard established for discreteness is simply an attempt to allow
an entity given DPS status under the Act to be adequately defined and
described'' (61 FR 4721, at 4724; February 7, 1996). In the case of
steelhead, there is a group of organisms that can be clearly distinguished
by a variety of characteristics, particularly its marine migration.
With respect to the comment that resident and anadromous O. mykiss
are genetically indistinguishable, we explained in adopting the DPS
policy why we did not adopt genetic distinctness as the test of
discreteness: ``The Services understand the Act to support interrelated
goals of conserving genetic resources and maintaining natural systems
and biodiversity over a representative portion of their historic
occurrence. The draft policy was intended to recognize both these
intentions, but without focusing on either to the exclusion of the
other. Thus, evidence of genetic distinctness or of the presence of
genetically determined traits may be important in recognizing some
DPS's, but the draft policy was not intended to always specifically
require this kind of evidence in order for a DPS to be recognized'' (61
FR 4721, at 4723; February 7, 1996).
Comment 6: Several commenters noted that in the June 2004 proposed
listing determinations, resident populations included in O. mykiss ESUs
were determined to have minor contributions to the viability of the
ESUs. (In the proposed listing determinations we concluded that,
despite the reduced risk to abundance for certain O. mykiss ESUs due to
speculatively abundant rainbow trout populations, the collective
contribution of the resident life-history form to the viability of an
ESU as a whole is unknown and may not substantially reduce an ESU's
risk of extinction (NMFS, 2004a; 69 FR 33102, June 14, 2004)). The
commenters questioned why resident O. mykiss populations should be
included in an ESU given that they have little, if any, contribution to
the viability of the ESU.
Response: Although we have concluded that resident O. mykiss should
not be included as part of the delineated steelhead DPSs (see response
to Comment 4), we disagree with the commenters' basic argument that DPS
delineations should depend upon the extent to which a potential
component population contributes to the viability of the DPS. A
population's contribution to DPS viability meets neither the
reproductive isolation test of the ESU policy, nor the marked
separation test of the DPS policy. Using such a test would lead to
illogical results given the metapopulation structure of salmon and
steelhead, where some components of an ESU or a DPS will (on average)
contribute more to its viability, while other components will
contribute less. The persistence of components with comparatively
weaker contributions to viability may even depend upon their
connectivity with other more productive components of the delineated
species. These weaker components may nevertheless contribute in other
important ways such as by increasing spatial distribution and reducing
risks due to catastrophic events, or by exhibiting important traits to
diversity of the species and conserving its ability to adapt to future
environmental conditions.
Comment 7: One commenter asserted that we cannot apply the ESU
policy in determining that resident and anadromous populations of O.
mykiss are part of the same ESU, because NMFS does not have the legal
jurisdiction under the ESA to list resident O. mykiss populations. The
commenter noted that pursuant to the 1974 Memorandum of Understanding
(MOU) regarding ESA jurisdictional responsibilities between FWS and
NMFS, FWS has exercised ESA jurisdiction over resident O. mykiss, while
NMFS has exercised jurisdiction over the anadromous life form.
Response: The commenter correctly highlights the issue of shared
NMFS-FWS jurisdiction for O. mykiss ESUs including both resident and
anadromous populations. In its 1997 letter responding to NMFS' proposal
to include rainbow trout in O. mykiss ESUs, FWS objected to the NMFS'
proposal and concluded rainbow trout and steelhead should not be
considered part of the same DPS. In its June 7, 2005, letter
recommending that the final listing determinations for the 10 O. mykiss
ESUs under review be extended, FWS requested that we ensure that our
delineation of O. mykiss ESUs complies with the DPS Policy. We agree,
in this case, that it is appropriate that we depart from our past
practice of applying the ESU Policy to O. mykiss stocks, and instead
apply the joint DPS Policy in determining ``species'' where we share
jurisdiction with FWS. This is consistent with our application of the
DPS policy to delineate species of Atlantic salmon (Salmo salar) (65 FR
69459; November 17, 2000).
Comment 8: Commenters felt that our proposed approach was inconsistent

[[Page 840]]

with previous NMFS and FWS DPS determinations for non-salmonid fish
species, which focused on migration rates between populations, evidence
of reproductive exchange, and genetic differences (e.g., NMFS-FWS Gulf
of Maine DPS for Atlantic salmon, 65 FR 69459, November 17, 2000; NMFS'
recent DPS determination for the Cherry Point stock of Pacific Herring,
70 FR 33116, June 7, 2005). The Department of Interior (DOI) similarly
expressed concern that the proposed approach may be inconsistent with
its previous applications of the DPS policy for fish species under its
jurisdiction (e.g., bull trout, Salvelinus confluentus, and coastal
cutthroat trout O. clarki clarki). DOI offered a comparison with its
1999 listing determination for the Coastal-Puget Sound bull trout DPS
(50 FR 58910) in which the resident, migratory, anadromous,
amphidromous, fluvial, and adfluvial life-history forms, despite
exhibiting distinct life-history strategies, were not found to be
discrete because they interbreed. DOI noted that NMFS' previous
determinations concluded that the two life forms interbreed, and where
they co-occur are genetically more similar than they are to the same
life form in another basin. DOI and other commenters felt that
regardless of any ``marked separation'' in phenotypic traits, the
documented reproductive exchange and genetic similarity between
anadromous and resident fish requires that they be included as parts of
the same DPS.
Response: The reference to our DPS determination for the Cherry
Point stock of Pacific herring is inapposite, as we found that stock
was discrete, but not significant. None of the commenters suggested
that steelhead are insignificant to the O. mykiss species.
Additionally, we disagree with the commenters that our finding
regarding the discreteness criterion was based on evidence of
reproductive exchange and genetic similarity rather than marked
separation in biological factors. We determined that the Cherry Point
herring stock was discrete despite evidence of migration and
reproductive exchange with other herring stocks. We determined that the
Cherry Point stock is markedly separated from other Pacific herring
populations as a consequence of physical, physiological, ecological, or
behavioral factors due to: (1) Its locally unique late spawn timing;
(2) the locally unusual location of its spawning habitat on an exposed
section of coastline; (3) its consistently large size-at-age and
continued growth after maturation relative to other local herring
stocks; and (4) its differential accumulation of toxic compounds
relative to other local herring stocks, indicative of different rearing
or migratory conditions for Cherry Point herring (70 FR 33116; June 7,
2005).
With respect to the Atlantic salmon, bull trout, and coastal
cutthroat trout determinations, we acknowledge that their expression of
a range of life histories may raise some of the same issues we
confronted in delineating an anadromous-only DPS of O. mkyiss. We
conclude, however, that there are important differences between O.
mykiss and these species that warrant different treatment. In addition
to expressing anadromy (the life-history pattern in which fish spend a
large portion of their life cycle in the ocean and return to freshwater
to breed), bull trout and coastal cutthroat trout express amphidromy
(migration between fresh and salt water that is for feeding and
overwintering, as well as breeding). While the anadromous and resident
forms of O. mykiss differ clearly in ocean-migratory behavior and
associated biological factors (see response to Comment 4), ocean-going
migratory behavior and associated physical, physiological, and
ecological factors are comparatively more variable among the life-
history forms and life stages of bull trout and coastal cutthroat trout
given their expression of amphidromy.
Comment 9: One commenter questioned whether the alternative
approach of delineating and listing steelhead-only DPSs was
permissible, given that the Alsea ruling held that the ESA does not
allow listing a subset of a DPS. The commenter observed that in the
past we had equated an ESU with the statutory ``distinct population
segment,'' and we included resident and anadromous O. mykiss within the
same ESU. The commenter argued that our past practice of applying the
ESU policy had established what constitutes a DPS of O. mykiss, and
that our proposal to not include resident populations in the listings
for steelhead-only DPSs would violate the ESA.
Response: The commenter is correct that in our past listing
determinations we made the policy choice to equate an ESU with the
statutory term ``distinct population segment.'' The commenter is not
correct, however, in asserting that an ESU (as that concept may be
understood by conservation biologists) must necessarily be equated with
the statutory term ``distinct population segment.'' We conclude that in
the case of O. mykiss, an ESU may contain more than one DPS, because
the different life history components display marked separation
sufficient to justify delineating them separately for protection under
the ESA.
While both the ESU and DPS policies represent permissible
interpretations of the statutory term, we have decided that the best
approach for O. mykiss is to apply the joint DPS policy (see the
response to Comment 2). We have concluded that the proposed steelhead-
only DPSs meet the criteria defined under our joint DPS policy (as
outlined in the response to Comment 4) and are consistent with the ESA.
Comment 10: Two commenters were critical of our consideration of
hatchery stocks in delineating steelhead DPSs. The commenters
questioned whether our review of hatchery programs under the ESU policy
(NMFS, 2003, 2004b, 2004c) directly informs considerations of
``discreteness'' and ``significance'' under the DPS policy. The
commenters felt that we failed to explain how including hatchery stocks
as part of the delineated species comports with our proposed
application of the DPS policy. The commenters felt that under the
proposed approach of determining discreteness based on marked
separation in phenotypic traits, it seems reasonable that hatchery
stocks would be considered discrete regardless of the life history and
genetic similarities documented in our hatchery reviews.
Response: We disagree with the suggestion that application of the
DPS rather than the ESU policy should lead to the universal conclusion
that hatchery fish are not part of the same DPS as naturally spawning
fish. We recognize that hatchery stocks, under some circumstances, may
exhibit differences in physical, behavioral, and ecological traits;
however, conservation hatchery stocks under certain circumstances may
exhibit few appreciable differences from the local natural
population(s). We think it is inappropriate to make universal
conclusions about all hatchery stocks, but think their ``discreteness''
relative to local natural populations needs to be evaluated on a case-
by-case basis.
In the Final Species Determinations section below, we discuss more
fully how our June 2004 proposed ESU delineations inform our DPS
delineations, in terms of geographic boundaries and in terms of which
hatchery populations are part of the DPS. We acknowledge that our
review of hatchery programs (NMFS, 2003, 2004b, 2004c) was conducted in
the context of the ESU policy; however, we disagree that our findings
and the information we evaluated do not inform our considerations of
discreteness under the DPS policy. In evaluating the ``reproductive
isolation'' of individual

[[Page 841]]

hatchery stocks in the context of the ESU policy, we lacked program-
specific genetic data. As reasonable indicators of reproductive
isolation and genetic similarity we relied on information including
hatchery broodstock origin, hatchery management practices (e.g., the
timing and location of release), and hatchery stock life-history
characteristics (e.g., spawn timing, the size and age at maturity)
relative to the local natural populations. We conclude that this
information directly informs evaluations of marked separation as a
consequence of physical, physiological, ecological, or behavioral factors.
Comment 11: Several commenters were critical of the proposed DPS
delineations, asserting that they fail to provide a clearly
distinguishable species delineation for the purposes of effectively and
efficiently enforcing the ESA. The commenters were concerned that
steelhead-only DPSs would generate confusion and have undesirable
regulatory implications. Commenters noted that it is difficult if not
impossible to distinguish between the two life forms throughout much of
their life cycle when they co-occur. The commenters cited our June 2004
proposed rule in which we state that ``no suite of morphological or
genetic characteristics has been found that consistently distinguishes
between the two life-history forms'' (69 FR 33102, at 33113; June 14,
2004). Given the difficulty in distinguishing the two forms, commenters
felt that we would either treat all juvenile resident O. mykiss as if
they are listed, or we would deny needed protections for listed
steelhead during the critical early life-history stages when they are
indistinguishable from resident fish. Commenters felt that it will be
impossible for us to quantify take of listed steelhead versus non-
listed rainbow trout, and questioned how we could analyze the impact of
actions on listed steelhead without considering the potential
production of steelhead progeny by resident fish. Some commenters felt
that the lack of a clearly enforceable standard further argues that
resident and anadromous O. mykiss are not ``markedly separated.''
Response: As we acknowledged in our steelhead listings prior to the
Alsea ruling, juvenile steelhead can be difficult to distinguish from
resident rainbow trout. This does not dictate, however, that they
should be included in the same DPS. The ESA authorizes prohibiting the
take of an unlisted species if its appearance closely resembles that of
a listed species (Section 4(e)). This is the tool that the ESA provides
to deal with such situations where an unlisted species is difficult to
distinguish from a listed one. In lieu of ``similarity of appearance''
protective regulations concerning resident trout that co-occur with
listed steelhead stocks, the commenter is correct that we have presumed
that all juvenile O. mykiss in streams where listed steelhead occur are
listed juvenile steelhead. In a decade of implementing steelhead-only
listings, we have confronted this issue successfully, working closely
with state managers of rainbow trout fisheries to ensure their
management of rainbow trout does not jeopardize steelhead. Continuing a
listing of steelhead-only DPSs should not change that successful
regulatory landscape.

Comments Regarding a Specific ESU or DPS: Determination of Species

Northern California and Central California Coast Steelhead
Comment 12: Several commenters expressed support for the proposed
clarification of the Northern California and Central California Coast
steelhead DPS boundaries. We received no comments opposed to the
proposed changes.
Response: We have included these DPS boundary clarifications in the
final species determinations (see Final Species Determinations section,
below).
Comment 13: Several commenters disagreed with our proposal to
include above-barrier resident O. mykiss populations from upper Alameda
Creek in the Central California Coast O. mykiss ESU. Other commenters
felt that resident O. mykiss populations in the Livermore-Amador Valley
also should not be included in the ESU. The commenters were critical of
the genetic data and analysis upon which we based our proposal, and
felt that genetic similarity alone was insufficient to support the
inclusion of these above-dam resident populations in the ESU.
Response: Under our final approach of delineating steelhead-only
DPSs of O. mykiss, the resident populations, including those in Upper
Alameda Creek and the Livermore-Amador Valley, are not considered part
of the listed DPSs.
California Central Valley Steelhead
Comment 14: The California Department of Fish and Game (CDFG)
disagreed with the defined spatial structure of the Central Valley O.
mykiss ESU. It argued that the ESU should be split into two parts: one
part north of the Sacramento-San Joaquin River Delta, and a second part
that includes the Delta and the San Joaquin Basin. CDFG based its
alternative ESU structure in large part on habitat conditions in the
Delta, which it contends serve to reproductively isolate fish from the
Sacramento and San Joaquin basins.
Comments submitted during the 6-month extension by the California-
Nevada Chapter of the American Fisheries Society (AFS) disagreed with
CDFG's recommended species determination. AFS scientists argued that
the purported physical barrier to reproduction between the two basins
(low dissolved oxygen levels in the lower San Joaquin River) is
indicative of the severely degraded habitat conditions in the San
Joaquin river system, but represents an ephemeral distributional
barrier and not a substantial reproductive barrier. AFS scientists
cited a recent genetic study that found no genetic differentiation
between populations in the two basins, and concluded that there is no
scientific basis for recognizing a distinction between the two river
systems.
Response: We disagree with CDFG and believe we have correctly
defined the spatial extent of the California Central Valley steelhead
DPS. Previous genetic analyses indicate that Central Valley steelhead
are distinct from coastal populations (see Busby et al., 1996). More
recent genetic data (Nielsen et al., 2003) suggest that significant
genetic population structure remains for steelhead populations in the
Central Valley, but that very little of the genetic variation can be
attributed to differences between populations in the Sacramento and San
Joaquin river drainages. Ecologically, the Central Valley is
substantially different from ecoregions inhabited by coastal O. mykiss
populations, and ecological conditions in the Central Valley are
generally similar between the Sacramento and San Joaquin river basins.
Low dissolved oxygen conditions in the Stockton Deep Water Ship Channel
and along other reaches of the lower San Joaquin River are problematic,
and may serve to limit anadromous fish migration under certain
conditions and times. However, we do not believe this ephemeral barrier
results in reproductive isolation between populations of O. mykiss in
the Sacramento and San Joaquin river basins, as evidenced by the
available genetic information. In our view, the available genetic and
ecological information indicates that steelhead populations in the
Sacramento and San Joaquin river basins are not discrete and
collectively are significant to the O. mykiss species, and therefore
constitute a single DPS.

[[Page 842]]

Snake River Basin Steelhead
Comment 15: Several commenters in Idaho disagreed with including
the population of rainbow trout above Dworshak Dam on the North Fork
Clearwater River (Idaho) in the Snake River Basin O. mykiss ESU. The
commenters felt that resident O. mykiss above Dworshak Dam likely
represent a composite of past hatchery stocking programs, hybridization
with cutthroat trout, and native O. mykiss, and as such there is
insufficient information to justify including the entire population of
resident O. mykiss above Dworshak Dam in the Snake River Basin O.
mykiss ESU.
Response: As noted in the response to Comment 13, resident
populations, including above Dworshak Dam, are not part of the listed DPS.

General Comments on the Consideration of Resident O. mykiss: Assessment
of Extinction Risk

Comment 16: Several commenters noted that we did not address the
ESU membership of, or consider the potential risks and benefits to the
viability of an ESU from, rainbow trout hatchery programs in the
proposed listing determinations for O. mykiss ESUs. The commenters
asserted that the vast majority of rainbow trout hatchery programs
propagate domesticated, non-native, and in some instances genetically
modified rainbow trout. The commenters felt that in some O. mykiss
ESUs, such as the Snake River Basin and Upper Columbia River O. mykiss
ESUs, the negative impacts of hatchery rainbow trout on native O.
mykiss populations may be profound.
Response: We agree with the commenters that resident trout hatchery
programs were not inventoried and assessed as part of the proposed
listing determinations. In response, we conducted an inventory and
assessment of hatchery programs that release rainbow trout in areas
where steelhead or co-occurring native rainbow trout might be affected
(NMFS, 2004b, 2005a). We have found that few hatchery rainbow trout
stocks are released in the spawning and rearing areas for the O. mykiss
ESUs under review. State and tribal managers have adopted wild salmonid
policies that have largely eliminated releases of hatchery-produced
rainbow trout in waters important to wild steelhead. Since the ESA
listings of steelhead in 1997-2000, the vast majority of hatchery
rainbow trout releases to support recreational fisheries are restricted
to isolated ponds and lakes. Of the hatchery rainbow trout that are
released, none are stocks that would be considered part of the O.
mykiss ESUs reviewed. In the few instances where domesticated or
genetically modified rainbow trout stocks are released into anadromous
waters to support recreational fisheries, they likely do not have
substantial adverse impacts on the local O. mykiss populations. The
released stocks exhibit poor survival, are subject to high harvest
rates in the recreational fisheries, and exhibit spawn timing isolating
them reproductively from the local natural populations. In some
instances, sterile ``triploid'' rainbow trout are released into
anadromous waters, thereby eliminating the possibility for reproductive
or genetic exchange with wild fish.
Comment 17: Some commenters contended that the District Court in
Alsea ruled that once an ESU is defined, risk determinations should not
discriminate among its components. The commenters described the risk of
extinction as the chance that there will be no living representative of
the species, and that such a consideration must not be biased toward a
specific behavioral or life-history component. A few commenters felt
that populations of rainbow trout have persisted in isolation over long
periods of time, demonstrating that resident representatives of an O.
mykiss ESU would persist in the foreseeable future, even if the
anadromous life-history form was extirpated.
Response: We disagree that the Alsea ruling requires a particular
approach to assessing extinction risk. The court ruled that if it is
determined that a DPS warrants listing, all members of the defined
species must be included in the listing. The court did not rule on how
the agency should determine whether the species is in danger of
extinction or likely to become so in the foreseeable future. Because we
are listing steelhead-only DPSs, we do not address the contention that
rainbow trout might continue to survive in isolation even if the
anadromous life history were extirpated.
Comment 18: Several commenters disagreed with our conclusion that
the Biological Review Team's (BRT's) extinction risk assessments
directly inform risk evaluations for steelhead-only DPSs, and
recommended that the BRT re-evaluate the extinction risk of the
steelhead DPSs without considering resident O. mykiss. The commenters
noted that some of the population data evaluated by the BRT included
both life forms, particularly for the Southern California, South-
Central California Coast, and Central California Coast ESUs. One
commenter noted that for several ESUs the BRT concluded that the
presence of speculatively abundant resident populations buffered the
risk of extinction somewhat. The commenter felt that the BRT's
extinction risk assessments likely underestimate the risk for a
steelhead-only DPS, and that some of the proposed threatened
determinations for O. mykiss ESUs may warrant revision as endangered
for the delineated steelhead-only DPSs.
Response: As explained more fully in the response to Comment 19,
the risk of extinction faced by the steelhead component of O. mykiss
may be affected by the health and potential contributions of the
resident component. We conclude that the BRT's risk assessments
directly inform our determinations for steelhead-only DPSs for all
ESUs, including the California ESUs cited by the commenters.
Comment 19: Several commenters felt that the extinction risk
assessments for steelhead-only DPSs must consider the resident form.
The commenters felt that the available scientific information
demonstrates that the two life-history forms have inseparable
demographic risks given that they interbreed and produce progeny of the
alternate life form. Commenters asserted that the viability of
steelhead populations in the foreseeable future depends on the
continued presence of the resident form to buffer against periods of
unfavorable ocean conditions and ephemeral blockages to fish passage.
Commenters cited a recent report (Independent Science Advisory Board
(ISAB), 2005-2) which concluded that ``the presence of both resident
and anadromous life-history forms is critical for conserving the
diversity of steelhead/rainbow trout populations.'' The commenters
concluded that both life-history forms are essential to the individual
and collective viability of resident and anadromous populations.
A few commenters contended that the presence of abundant co-
occurring rainbow trout confers resilience to steelhead DPSs such that
listing may not be warranted. These commenters felt that the ability of
the resident life-history form to produce anadromous offspring makes it
likely that the anadromous life-history form would be reestablished if
extirpated. These commenters cited the recent report of NMFS' Recovery
Science Review Panel (RSRP, 2004) which discussed the preliminary
results of a study indicating that 17 percent of anadromous adults had
resident mothers, as well as other studies indicating that isolated
resident populations produce anadromous progeny that successfully smolt
and

[[Page 843]]

return to spawn (e.g., Thrower et al., 2004).
The majority of commenters expressed skepticism that resident
populations can maintain or re-establish declining or extirpated
steelhead populations. These commenters cited recent expert advisory
panel reports concluding that although the resident form is an
important life-history strategy in some circumstances, the likelihood
of long-term persistence is substantially compromised by the loss of
anadromy. The commenters concluded that the best available information
demonstrates precipitous declines and high levels of extinction risk
for West Coast steelhead populations. One commenter cited a study
(Nehlsen et al., 1991) identifying 23 steelhead populations that have
been extirpated and 75 steelhead populations that are at risk of
extirpation. The commenter concluded that these observations contradict
assertions that co-occurring rainbow trout can sustain or reestablish
anadromous populations and ensure the viability over the long term.
Response: Because we have delineated steelhead-only DPSs, we do not
directly address contentions about persistence of an entire O. mykiss
ESU. We acknowledge, however, that in the context of steelhead-only DPS
delineations, these comments correctly point out that we must consider
whether and to what extent the presence of co-occurring rainbow trout
affects the extinction risk of the steelhead DPSs under consideration.
We conclude that available information for most of the O. mykiss under
review does not support a conclusion that the resident populations are
abundant. Even for those few ESUs that may have relatively abundant co-
occurring rainbow trout, we conclude that while the resident form may
mitigate somewhat the risks to the co-occurring steelhead, they do not
change our conclusion about the risk of extinction of the DPSs under
consideration. We base this conclusion on the work of the BRT and on
information provided by peer reviewers and commenters during the
comment period. The bulk of this information and analysis specifically
addressed the question of the viability of the larger ESU, but the
analysis was largely focused on the steelhead-only component. That
analysis directly informs our conclusions about the effect of co-
occurring rainbow trout on the extinction risk of the steelhead DPSs.
The best available scientific information does not demonstrate that
an extirpated anadromous population can be re-established by a resident
population. There is only one published report of anadromy developing
from a resident population (Pascual et al., 2001), and it is unclear
whether this putative founding population was composed purely of
resident genotypes (Behnke, 2002; Pascual et al., 2002; Rossi et al.,
2004). Evolutionary theory and empirical evidence suggest that the
ability of residents to contribute to anadromy quickly diminishes if
the fitness of their anadromous progeny is low (NMFS, 2004a; Thrower et
al., 2004a, 2004b; RSRP, 2005). NMFS'' RSRP concluded that in cases
where an anadromous run is extinct or not self-sustaining, there is no
scientific justification for the claim that the long-term viability of
an O. mykiss ESU or steelhead DPS could be maintained by the resident
life-history form alone, or that a viable anadromous population could
feasibly be reestablished from a pure resident population (RSRP, 2004).
Moreover, for most of the O. mykiss under review, the available
information does not suggest that the resident form is abundant (NMFS,
2004a).
For a variety of reasons the BRT concluded that the collective
contribution of the resident life-history form to the persistence of a
larger O. mykiss ESU is unknown and may not substantially reduce the
overall extinction risks to the ESU in-total (NMFS, 2003b; 2004a). The
two O. mykiss life-histories represent an adaptive ``bet-hedging''
strategy for sustaining reproductive potential despite high variability
in physical and ecological conditions. Although the resident form can
enable the larger O. mykiss ESU to endure short-term physical,
environmental, and ecological barriers to anadromous migration, there
is no evidence that resident fish can perform this function over the
long term if the anadromous form is extirpated. It is also unclear to
what extent resident populations depend on infusions from anadromous
fish for their long-term persistence. The BRT's conclusion is supported
by recent reports by the ISAB and NMFS' RSRP which recently concluded
that anadromous O. mykiss contribute ``substantially and irreplaceably
to any measure of O. mykiss productivity and viability'' (RSRP, 2004),
and that ``the presence of both resident and anadromous life-history
forms is critical for conserving the diversity of steelhead/rainbow
trout populations and, therefore, the overall viability of ESUs''
(ISAB, 2005-2). The RSRP and ISAB underscored that ``resident
populations by themselves should not be relied upon to maintain long-
term viability of an [O. mykiss]
ESU'' (RSRP, 2004), and that the
``likelihood of long-term persistence would be substantially
compromised by the loss of anadromy in O. mykiss ESUs'' (ISAB, 2005-2).
Comment 20: Some commenters noted that physical, ecological,
environmental, and habitat conditions have been greatly modified by
human activities over the past 100 years and contended that due to
these changes, areas that historically supported anadromous O. mykiss
populations currently favor populations of rainbow trout. These
commenters felt that observed declines in anadromous O. mykiss
populations reflect an adaptive shift in the relative proportion of the
resident and anadromous life-history forms. The commenters argued that
rainbow trout populations have expanded to successfully occupy the
niche vacated by anadromous populations, and that O. mykiss ESUs do not
warrant ESA listing due to this demonstrated adaptive resiliency of the
species.
Response: As noted in the response to Comment 19, contentions about
persistence of an entire O. mykiss ESU are not directly relevant given
that we have delineated steelhead-only DPSs. However, the presence of
co-occurring rainbow trout is relevant to the extent that the resident
life-form affects the extinction risk of the steelhead DPSs under
consideration. The commenters do not provide data in support of their
contention that the reduced abundance of steelhead represents an
adaptive shift by the species to altered environmental conditions. An
increase in the proportion of resident fish in certain O. mykiss
populations could be the result of an adaptive life-history shift in
response to changing environmental conditions (as suggested by the
commenters), or the apparent increase in the prevalence of rainbow
trout could simply be the result of declines in the abundance,
productivity, and distribution of the anadromous form without a
compensatory response in resident populations. The data necessary to
evaluate the current status and trends of resident populations are
generally lacking, and even more so are the historical data necessary
to evaluate trends in the relative abundance and distribution of the
two life-history forms. Even if an adaptive shift has occurred, as
suggested by the commenters, there is insufficient information to
support the contention that O. mykiss populations dependent upon the
productivity of the resident life-history form are viable over the long
term (see response to Comment 19, above). Regardless, many of the
factors that have caused declines in

[[Page 844]]

anadromous O. mykiss populations (such as the loss/degradation of
riparian habitat, degradation of water quality, loss/degradation of in-
stream habitat structure and complexity, etc.) likely have had
similarly adverse effects on co-occurring resident populations. As
noted above in the response to Comment 19, the loss of the anadromous
life-history form may increase the extinction risk of an O. mykiss ESU
due to increased risks from catastrophic events, decreased reproductive
potential, diminished spatial distribution, diminished connectivity
among discrete habitat patches, and decreased diversity in adaptive traits.

Comments Regarding a Specific ESU or DPS: Assessment of Extinction Risk

California Central Valley Steelhead
Comment 21: In addition to disagreeing with the defined spatial
structure of the Central Valley O. mykiss ESU, CDFG opposed our
proposal to maintain ESA protections for this ESU. CDFG provided new
information on the abundance of resident and hatchery O. mykiss in the
Central Valley and argued that because of the combined high abundance,
high productivity, broad spatial distribution, and genetic diversity of
these populations that O. mykiss in the Sacramento River Basin do not
warrant listing. CDFG conceded that O. mykiss in the Sacramento-San
Joaquin Delta and San Joaquin River basin may warrant listing as
threatened.
In comments submitted during the 6-month extension, a few
commenters agreed with CDFG's conclusion that Central Valley steelhead
populations are not at risk due to the presence of abundant rainbow
trout populations and the stability of environmental conditions. These
commenters acknowledged that conditions are much altered from
historical conditions by the imposition of dams and changes in flow
regime, but concluded that the existing environment selects for the
resident life form and supports robust rainbow trout populations.
Other commenters argued that historical habitat loss and
degradation remains to be addressed, and water management in the
Sacramento-San Joaquin river systems poses significant threats to
Central Valley O. mykiss, inclusive of both anadromous and resident
populations. These commenters criticized CDFG's abundance estimates
for: inappropriately extrapolating from areas above impassable dams not
considered to be part of the ESU; inaccurately assuming a uniform
distribution of fish within these systems by extrapolating from average
density estimates; including an unquantifiable number of hatchery
produced smolts in their analyses; and combining abundance estimates
for different life-history stages. The commenters felt that CDFG's
comments ignored that historical spawning and rearing habitats have
been reduced in the Sacramento and San Joaquin river systems by more
than 82 percent, and that CDFG appeared to downplay the loss of the San
Joaquin basin as an historically important center of distribution.
Response: Under our adopted approach of delineating steelhead-only
DPSs, CDFG's comments regarding resident O. mykiss populations do not
affect our risk conclusion for the Central Valley steelhead DPS.
Regardless, we disagree with CDFG's assertion that the presence of
resident populations in the Sacramento River Basin substantially reduce
risks to Central Valley O. mykiss populations. We acknowledge that
resident forms of O. mykiss are widely distributed and possibly
abundant in the Central Valley, particularly in the Sacramento River
Basin and that the presence of these resident populations likely
reduces risks to population abundance. However, the BRT described
considerable uncertainty regarding whether and to what extent the
resident form contributes to the productivity, spatial structure and
diversity of O. mykiss metapopulations. As discussed in the response to
Comment 19 it is unclear how long an O. mykiss population can persist
if dependent entirely or mostly upon the productivity of resident fish
in a dynamic freshwater environment, even if the resident forms are
abundant. The BRT's concerns regarding the status of Central Valley
steelhead are not based solely on the apparent continued decline in
abundance, but also on evidence indicating the proportion of naturally
produced fish is declining, the loss of the vast majority of historical
spawning areas above impassable dams, continued impediments to fish
passage, and the severe degradation of water quality and quantity
conditions. Although altered habitat conditions may favor the resident
life-history form in some areas, it is unclear whether such populations
are sustainable over the long term (see response to Comment 19, above).
Middle Columbia River Steelhead
Comment 22: One commenter submitted an alternative viability
analysis for Middle Columbia River steelhead that concludes that
extinction risks are low for the wild populations throughout the Middle
Columbia River (Cramer et al., 2003). The report emphasizes the recent
increases in abundance in 2001-2002, and asserts that all streams in
the DPS share similar patterns of steelhead production, that hatchery-
origin steelhead represent a small fraction of natural spawners and do
not pose a threat to the DPS's productivity, and that rainbow trout and
steelhead interbreed and produce progeny of the alternate life-history
form.
Response: The information presented in Cramer et al. (2003)
includes information from Cramer et al. (2002) that was provided to
NMFS on April 1, 2002, as part of public comments received in response
to our initial solicitation of information to support the status review
updates (67 FR 6215; February 11, 2002). Cramer et al. (2002) focused
on the status and trends of steelhead in the Yakima River subbasin, and
Cramer et al. (2003) represents a subsequent submission that includes
information for other major subbasins in the DPS. The information
presented in Cramer et al. (2002) was evaluated by the BRT and
considered in developing the proposed listing determination for the
ESU. The supplemental material provided in Cramer et al. (2003) does
not provide substantive additional data to what was available to and
considered by the BRT. The BRT's assessments of extinction risk were
based on long-term trends. A recent short-term increase in returns does
not alleviate concerns regarding the long-term performance of the DPS,
nor would it address concerns regarding the spatial distribution,
connectivity, and diversity of populations within the DPS.
The conclusions made in the latter report are not inconsistent with
the findings of the BRT. The report emphasizes recent increases in
abundance and productivity, but, as noted above, the BRT concluded that
there is insufficient certainty that the environmental conditions
underlying recent encouraging trends will continue. The report also
emphasizes the contributions of abundant and well distributed rainbow
trout populations in the ESU in mitigating risks to the anadromous
life-history form. As discussed in the response to Comment 19 (above),
the BRT concluded that, despite the reduced risk to abundance for
certain O. mykiss ESUs due to speculatively abundant resident fish, the
collective contribution of the resident life-history form to the
persistence of an O. mykiss ESU is unknown and may not substantially
reduce the overall extinction risk to the ESU (NMFS, 2003b, 2004).

[[Page 845]]

Upper Columbia River Steelhead
Comment 23: Several commenters opposed our proposal to change the
listing status of the Upper Columbia River steelhead from endangered to
threatened. The commenters noted that the majority opinion of the BRT
(NMFS, 2003b) was that the ESU is ``in danger of extinction.'' The
commenters disagreed with the finding of the Artificial Propagation
Evaluation Workshop (NMFS, 2004c) (APEW) that the six hatchery programs
in the ESU collectively mitigate the immediacy of extinction risk such
that the ESU should be listed as threatened rather than endangered.
Response: The slight majority opinion of the BRT was that the ESU
is ``in danger of extinction,'' although the substantial minority
opinion was that the ESU is ``likely to become endangered in the
foreseeable future.'' In evaluating the risks and benefits of the six
hatchery programs included in the ESU, we concluded that these programs
have: (1) A high certainty of implementation due to long-term
agreements reached by Federal, state, tribal and local entities to
ensure funding; and (2) a high certainty of effectiveness because they
adhere to best professional practices, include extensive monitoring and
evaluation efforts, and minimize the potential risks of artificial
propagation. These programs have increased the number of natural
spawners and thereby have increased the spatial distribution of
spawning areas being used, although as yet the programs provide
uncertain benefits to the abundance and productivity of the naturally
spawned populations in the DPS. The careful design and implementation
of these programs have been effective at conserving the diversity of
the populations within the DPS. For these reasons we conclude that the
hatchery programs in this ESU collectively mitigate the immediacy of
extinction risk for Upper Columbia River steelhead in the short term
(NMFS, 2004c).

Comments on the Consideration of Protective Efforts

California Central Valley Steelhead
Comment 24: Several commenters opposed our proposal to list
steelhead in the California Central Valley as threatened. The
commenters agreed with the BRT's majority opinion (NMFS, 2003b) and the
conclusion of the APEW (NMFS, 2004c) after considering the benefits of
hatchery programs, that the steelhead in the Central Valley are ``in
danger of extinction.'' They disagreed that the habitat restoration
efforts associated with the CALFED and the Central Valley Project
Improvement Act (CVPIA) provide sufficient certainty of implementation
and effectiveness (pursuant to PECE) to conclude that Central Valley
steelhead should be listed as threatened rather than endangered.
Response: We disagree with the commenters and continue to believe
that there are many protective efforts that have been implemented
effectively, or are in the process of being implemented, throughout the
California Central Valley that reduce risks to the DPS and support a
threatened listing determination. These efforts were discussed in the
proposed rule (69 FR 33102, at 33144; June 14, 2004) and include a wide
range of habitat restoration efforts, changes in hatchery management,
and limits on recreational harvest. As discussed further below, habitat
improvement and planning efforts in the Central Valley conducted under
the auspices of Federal and State programs, primarily CALFED and CVPIA,
recently proposed monitoring and research activities regarding
steelhead, and recently completed ESA section 7 consultations.
Significant Central-Valley-wide restoration efforts include the
CALFED program and CVPIA, both comprehensive water management and
restoration programs consisting of elements that potentially contribute
toward ecosystem improvement and function as well as to the recovery of
Central Valley steelhead. The CALFED program is a collaborative effort
among 25 Federal and State agencies to improve water supplies in
California and the health of the San Francisco Bay-Sacramento-San
Joaquin River Delta watershed. The Ecosystem Restoration program of
CALFED has invested more than $500 million on 415 projects aimed at
improving and restoring ecosystems since its inception in 1997 (CALFED
Bay-Delta Program, 2005, Annual Report: 2004). These actions include:
fish screen and passage construction and planning projects; instream,
floodplain, and riparian restoration projects; toxic studies and
pollutant reduction efforts; monitoring for listed species; and
instream flow augmentation. The CVPIA mandated changes in management of
the Central Valley Project, particularly for the protection,
restoration, and enhancement of fish and wildlife, and includes
programs such as the Anadromous Fish Restoration Program, a water
acquisition program, and a fish screen program. Wherever possible,
CVPIA and CALFED programs are integrated to accomplish a single
Central-Valley-wide restoration effort.
Approximately 70 percent of water diversions greater than 250 cfs
in the Central Valley have now been screened or are planned to be
screened. Notable efforts include the planning and/or construction of
facilities at: Anderson-Cottonwood Irrigation District, Glenn Colusa
Irrigation District, Princeton, Reclamation District 108, City of
Sacramento, and Sutter Mutual Water District on the Sacramento River;
the Banta Carbona and Patterson Irrigation Districts on the San Joaquin
River; and numerous other screening projects in Suisun Marsh, the
Sacramento-San Joaquin Delta, and tributaries throughout the Central
Valley. Passage improvements and evaluations regarding common salmonid
barriers such as Saeltzer Dam on Clear Creek and numerous barriers on
Sacramento and San Joaquin tributaries are underway and are
contributing to the improvement of habitat conditions for this DPS.
Restoration efforts such as spawning gravel augmentation, fine
sediment removal activities, channel rehabilitation, riparian,
floodplain, and wetland restoration have also contributed to improved
habitat conditions for this DPS by restoring habitat function and
quality. Watershed planning and restoration efforts are now underway in
many of the Central Valley tributaries leading to the identification
and potential elimination of factors limiting habitat restoration and
population recovery. Large-scale restoration projects in Clear Creek in
the Sacramento River Basin, and the Merced and Tuolumne Rivers in the
San Joaquin Basin, are expected to restore ecological functions that
benefit steelhead production. Efforts to restore spawning gravel supply
and reduce fine sediment input in numerous Central Valley tributaries
have likely contributed positively toward recent spawning success.
Other elements of the CALFED program may also provide benefits to this
DPS, although these benefits are not yet well demonstrated. These
activities include water purchases through the Environmental Water
Account program, efforts to reduce toxics and pollutants in Central
Valley waters, community-based management efforts through the CALFED
Watershed program, and improvements to channels and floodplains through
the Conveyance and Levee programs.
Monitoring efforts for Central Valley steelhead have been
implemented in selected tributaries in the Sacramento and San Joaquin
basins in an effort to better understand life-history strategies,

[[Page 846]]

as well as to provide better estimates of steelhead abundance. These
activities include redd surveys, snorkeling, angling, rotary screen
trapping, and beach seining. Ongoing genetic research is expected to
provide additional information about genetic relationships of
populations within and between rivers and basins in the Central Valley.
This information will help define the spatial and genetic structure of
the Central Valley steelhead DPS. The long-term juvenile fish
monitoring program by the Interagency Ecological Program in the
Sacramento-San Joaquin Estuary, as well as Chinook salmon monitoring
programs by Federal and state agencies and private entities in some
tributaries, also may provide incidental catch information. While these
efforts do not specifically target steelhead and are not found in all
Central Valley watersheds, they are filling information gaps regarding
Central Valley steelhead that will likely help with recovery
assessments and planning. Despite current monitoring and research
efforts, additional needs include a more comprehensive monitoring
program, better anadromous fish abundance estimating methods, and a
better understanding of the use, needs and availability of habitat in
the Central Valley for steelhead populations. Finally, we have
completed ESA section 7 consultations for construction and water
operation projects in the Central Valley that provide substantial
benefits to steelhead.
We believe that the protective efforts being implemented for this
DPS provide sufficient certainty of implementation and effectiveness to
alter the BRT's (NMFS, 2003b) and APEW's (NMFS, 2004c) assessments and
support our conclusion that the Central Valley steelhead DPS in-total
is not in danger of extinction, but rather is likely to become
endangered in the foreseeable future throughout all or a significant
portion of its range. Accordingly, we conclude that the Central Valley
steelhead DPS continues to warrant listing as a threatened species.
Middle Columbia River O. mykiss ESU
Comment 25: The U.S. Forest Service (FS) and the Bureau of Land
Management (BLM) felt that implementation of existing Land and Resource
Management Plans (LRMPs) within the range of the Middle Columbia River
steelhead will help ensure its long-term viability. Specifically, the
agencies assert that the following conservation programs provide
sufficient certainty of implementation and effectiveness to mitigate
the risk of extinction for Middle Columbia River steelhead and warrant
a new review of its status: (1) Continued implementation of the
Northwest Forest Plan aquatic conservation strategy under current FS
and BLM LRMPs; (2) continued implementation of the Pacfish aquatic
conservation strategy under current FS and BLM LRMPs; (3) continued
participation in the Interagency Implementation Team ensuring the
effective monitoring, evaluation, and adaptive management of actions
under the LRMPs; (4) continued implementation of Best Management
Practices project design criteria, and standards and guidelines as
specified in existing ESA section 7 biological opinions and concurrence
letters, with a strong focus on forestry, grazing, mining, and
recreational activities; and (5) continued collaboration with regional
partners to identify and implement high-value restoration projects. The
FS and BLM criticized the proposed listing determination for the Middle
Columbia River O. mykiss ESU for not considering implementation of
their aquatic conservation strategies under their current LRMPs, for
not articulating why these and other conservation efforts were deemed
insufficient to ameliorate risks to the ESU, and for not detailing the
specific conservation measures necessary to address any insufficiencies.
In an April 15, 2005, letter to NMFS from the State of Oregon
Governor's Natural Resource Office, Oregon provided additional
information regarding efforts to protect Middle Columbia River
steelhead in the Deschutes, John Day, and Walla Walla Rivers. Oregon
noted changes in the management of the Wallowa Hatchery intended to
reduce the straying of out-of-ESU hatchery fish into the Deschutes and
lower John Day rivers. Oregon believes that, if successful, these
management actions may substantially reduce the threat posed by
straying hatchery fish in these basins and the resulting uncertainties
in interpreting trends in abundance and productivity of the local
populations. Oregon emphasized its continuing commitment to
conservatively managing fisheries in the John Day River in support of
conserving self-sustaining natural populations of native summer
steelhead. Oregon also felt that commitments to improve flow management
in the Walla Walla River Basin as part of the Oregon-Washington Walla
Walla River Habitat Conservation Plan for steelhead and bull trout have
resulted in improved flow conditions over the past 4 years, improved
fish passage, and increases in available habitat. Oregon also noted
habitat and fish passage improvement projects that have been completed
and are being developed in the John Day River, Deschutes River, Walla
Walla River, and Fifteenmile Creek basins. Oregon asserted that these
and other protective efforts merit closer scrutiny under PECE before a
final listing determination should be made for steelhead in the Middle
Columbia River.
Response: In the proposed listing determination we noted
encouraging trends in the recent abundance and productivity of the ESU,
in part due to favorable freshwater conditions and marine survival.
However, several populations remain well below viable levels (including
populations in the Yakima River Basin, which was historically a major
production center), and there is insufficient certainty that the
environmental conditions underlying recent encouraging trends will
continue. In proposing to maintain the ESU's threatened status, we
listed 11 conservation measures and commitments that if implemented
might substantially address key limiting factors, ensure the viability
over the long term, and likely bring Middle Columbia River steelhead to
the point where the protections of the ESA are no longer necessary. To
affect the final listing determination for Middle Columbia River
steelhead, we expressed interest in receiving firm commitments with a
high certainty of implementation and effectiveness, including: (1) That
the Bonneville Power Administration (BPA) will continue its funding of
ESU-wide riparian zone and instream habitat restoration efforts,
consistent with its Fish and Wildlife Program's portion of the subbasin
and recovery plans being developed; (2) that the BLM will adhere to
best management practices for grazing, mining, and recreational
activities ESU-wide; (3) that the FS will adhere to best management
practices for grazing, forestry, and mining activities ESU-wide; (4)
that Washington Department of Fish and Wildlife (WDFW) will continue to
manage fisheries conservatively in this ESU, and develop and implement
a long-term approach that balances natural and hatchery production
across the ESU; (5) that Oregon Department of Fish and Wildlife (ODFW)
will continue to manage fisheries conservatively in this ESU
(particularly in the John Day River subbasin), develop and implement
management approaches to reduce the straying of out-of-basin stocks
into Deschutes and John Day spawning areas, and develop and implement a
long-term approach that balances

[[Page 847]]

natural and hatchery production across the ESU; (6) that the U.S.
Bureau of Reclamation (BOR) provide passage and improve flow management
below all its facilities in the Yakima River and the Umatilla River
subbasins, provide fish passage into significant tributaries, and
provide passage over at least two of its storage dams in the Yakima
Basin; (7) that the Federal Energy Regulatory Commission (FERC) provide
for passage in the Deschutes River subbasin above the Pelton/Round
Butte complex, restore downstream water temperature regime to
historical levels, and provide for upstream/downstream habitat
enhancement and restoration; (8) that the U.S. Army Corps of Engineers
(Corps) improve passage, screening and flow management in the Walla
Walla River subbasin, and alter the flood operating rule for Mill Creek
or alternatively screen the diversion into Bennington Lake; (9) that
the Yakima Nation continue conservative hatchery and harvest management
and adherence to best land management practices; (10) that the
Confederated Tribes of the Umatilla Reservation continue conservative
hatchery and harvest management; and (11) that the Confederated Tribes
of the Warm Springs Reservation continue best land management practices
in the Deschutes River subbasin. To date, the only items addressed are
those summarized above by FS and BLM, the State of Oregon, and the 2003
Pelton Round Butte Project settlement agreement to provide for fish
passage, research, and habitat enhancement (see discussion below).
We applaud FS' and BLM's continued commitments to implement LRMPs,
adhere to established best management practices, and participate in
monitoring and evaluation efforts. Although the Federal lands covered
by the LRMPs are important components in conserving the ESU, these
lands comprise a minority (approximately 28 percent) of the occupied
stream reaches in the ESU. Populations in the Yakima, Klickitat, and
Touchet Rivers remain well below their interim recovery target
abundance levels, and in these streams Federal lands represent
approximately 21 percent, four percent, and seven percent of the
occupied stream reaches, respectively. Additionally, several of the key
limiting factors within these basins (in particular fish passage and
flow management in the Yakima River Basin) are outside FS' and BLM's
authority to address. We are encouraged by FS' and BLM's commitment to
continue to pursue high value restoration projects in the range of the
DPS. However, with respect to our consideration of protective efforts,
such general commitments lack the necessary certainty of implementation
and effectiveness in that they do not identify specific actions and
conservation objectives, do not include quantifiable performance
measures, cannot guarantee the necessary funding and other resources,
and lack sufficient authority to ensure the participation of all
necessary parties.
In 2003 a settlement agreement was reached among the applicants and
21 intervenors in the FERC's relicensing of the Pelton Round Butte
Project on the Deschutes River (central Oregon). The settlement
agreement addresses project operations, natural resource protection,
mitigation, and enhancement measures. The agreement will provide fish
passage above the three-dam complex to over 150 miles (241 km) of
spawning and rearing habitat for steelhead, as well as spring Chinook
and sockeye salmon. Other measures include research on the augmentation
of spawning gravels in the Lower Deschutes River, management of large
woody debris entering the project reservoirs, altered flow management,
and $21.5 million in funding for habitat enhancement projects. Fish
passage is scheduled to begin in 2009, to be preceded by (as yet
undetermined) habitat enhancement projects. If the provision of fish
passage fails, funds that would otherwise support the operation and
maintenance of the fish passage facility will be used for habitat
restoration projects downstream of the project for the duration of the
new license. The settlement agreement is reasonably certain to occur.
However, scheduling delays have already occurred and are to be expected
given the number of involved parties, the scale of the project, and the
complexity of the engineering issues being addressed. We are optimistic
that the passage improvements included in the settlement agreement will
be effective. However, we cannot be certain that the provision of
passage will be effective in reintroducing steelhead populations into
currently blocked habitats in the Deschutes River. It is due to this
uncertainty that contingencies were built into the settlement agreement
for the potential failure of efforts to provide fish passage.
As with the above-mentioned protective efforts, we applaud the
conservation measures described by Oregon to reduce stray rates into
the Deschutes and John Day Rivers, conservatively manage fisheries in
the John Day River, improve flow conditions in the Walla Walla River,
and continue its collaboration in developing and implementing
restoration projects. However, as Oregon acknowledges, there is
considerable uncertainty as to whether the management actions for the
Wallowa Hatchery will be effective in reducing the stray rates of out-
of-DPS fish. The commitments to improve flow conditions in the Walla
Walla River represent important contributions to addressing limiting
factors in the subbasin; however, significant challenges remain.
Additional water conservation measures, restoration of severely
degraded riparian habitats, continued efforts to screen water
diversions and improve fish passage, improvements in agricultural
practices to benefit water quality, and hatchery reform efforts are
needed to help ensure the conservation of the Walla Walla River
steelhead population. As Oregon noted, the implementation of various
habitat restoration activities is unclear given uncertainties in
funding, technical assistance, necessary authorities, and voluntary
participation.
The commitments addressed above represent valuable contributions to
the conservation and recovery of the Middle Columbia River steelhead
DPS. However, the FS' and BLM's commitments, the Pelton Round Butte
Project settlement agreement, and the information provided by Oregon,
alone are insufficient to substantially ameliorate risks to the DPS to
the point that the protections afforded under the ESA are no longer
necessary. As noted in the proposed listing determination and
summarized above, we feel that continued and additional conservation
efforts are necessary beyond those addressed in the commenters'
commitments to substantively address factors limiting the recovery of
the Middle Columbia River steelhead DPS.

Comments Regarding Public Notice and Opportunities for Public Comment

Comment 26: Several commenters expressed displeasure concerning the
30-day length of the public comment period regarding the proposed
application of the joint DPS policy and delineation of steelhead DPSs.
The commenters felt that additional time should have been allowed to
comment given that the proposed approach represents a significant
departure from NMFS' established application of the ESU policy, and
poses potentially significant implications for West Coast steelhead
management, conservation, and recovery planning. The commenters felt
that NMFS' public notification of the new proposal was inadequate, and
suspected that many interested and affected individuals, organizations,
businesses, and municipalities are not

[[Page 848]]

aware of the new proposal. Commenters noted that a short 30-day public
comment period for such a radical change in approach stands in stark
contrast to the more than 200 days of public comment solicited
concerning the June 2004 proposals, which generally affirmed the
approach NMFS has used for the last 14 years. Two commenters requested
that public hearings be held to allow for additional explanation and
discussion of the proposed alternative approach.
Response: Commenters were provided extensive opportunity for
comment from the initial publication of the proposed rule in June 2004
until the close of the final comment period on December 5, 2005.
Following an initial time period of 90 days, we twice extended the
comment period, for an additional 36 and 22 days (69 FR 53031, August
31, 2004; 69 FR 61348, October 18, 2004). During this extensive comment
period, we received numerous comments urging us to find resident and
anadromous O. mykiss to be separate ESUs. The comment period was then
reopened for another 30 days on November 4, 2005, to receive comments
on our proposed alternative approach to delineating the O. mykiss
populations (70 FR 67130). We received 24 comments during this 30-day
comment period, specific to the proposal to use the DPS policy. Prior
to the reopening of the comment period on November 4, 2005, we also
received comments on a possible change in approach to apply the DPS
policy rather than the ESU policy. We believe that the 24 cogent,
insightful comments we received during the 30-day comment period on our
proposed use of the DPS policy is evidence that the time allotted for
comment on this issue was sufficient. The approach used in this final
rule--giving rainbow trout and steelhead separate treatment under the
ESA--was fully vetted in the comments on the 2004 proposed rule.

Final Species Determinations

We first must determine whether the geographic boundaries
established for O. mykiss ESUs (see 69 FR 33102; June 14, 2004) under
the ESU policy are the appropriate boundaries for steelhead DPSs under
the DPS policy. We conclude they are. Under the ESU policy, we
delineated geographic boundaries based on considerations of both
reproductive isolation and significance. The ESU boundaries were drawn
around population groups the BRT found to be reproductively isolated
from other conspecific populations and significant to the evolutionary
legacy of the species. Reproductive isolation was generally not
conclusively demonstrated with genetic data but rather inferred from
information about the ecology, physiology and behavior of the
population groups. The distinctions relied on to make geographic
delineations of the ESUs in the 2004 proposed rule are equally
applicable to finding discrete (markedly separate) groups of steelhead
populations. Moreover, each of the ESUs delineated under the ESU policy
occupies a unique ecological region. Occupation of a unique ecological
region satisfies the DPS criterion for significance. Loss of any of the
ESUs from its geographic area would also represent a significant gap in
the range of the species.
Within these geographic boundaries, we further conclude that the
anadromous life form is markedly separate from the resident life form,
as discussed more fully in the responses to Comments. We therefore are
delineating 10 steelhead-only DPSs, with geographic boundaries
unchanged from those previously delineated for the West Coast O. mykiss
ESUs (except as noted for an adjustment of the boundary between two of
the California DPSs).
We next must determine whether any hatchery stocks are to be
included in the steelhead-only DPSs. On June 28, 2005, we finalized a
new policy for the consideration of hatchery-origin fish in ESA listing
determinations (``Hatchery Listing Policy;'' 70 FR 37204). Under the
Hatchery Listing Policy hatchery stocks are considered part of an ESU
if they exhibit a level of genetic divergence relative to the local
natural population(s) that is no more than what occurs within the ESU
(70 FR 37204, at 37215; June 28, 2005). We conclude that the
considerations that informed the Hatchery Listing Policy for ESUs are
equally valid for the steelhead DPSs we are now delineating under the
DPS policy. The Hatchery Listing Policy is based in part on the
recognition that important components of the evolutionary legacy of
West Coast salmon and steelhead can be found in hatchery stocks, and
that many hatchery stocks are derived from, and not significantly
diverged from, the naturally spawning stocks. We developed a test for
including hatchery stocks in the ESU based upon a consideration of
``whether a particular hatchery stock reflects an ESU's `reproductive
isolation' and `evolutionary legacy' '' (70 FR 37204, at 37208; June
28, 2005). We believe those tests are equally applicable to determining
whether hatchery stocks reflect the discreteness and significance of
steelhead DPSs. Consistent with the June 14, 2004, proposed listing
determinations (69 FR 33102) and the recent final listing
determinations for 16 West Coast salmon ESUs (70 FR 37160; June 28,
2005), hatchery stocks are included in a steelhead DPS if they are no
more than moderately diverged from local, native populations in the
watershed(s) in which they are released. The level of divergence for
hatchery programs associated with the steelhead DPSs is reviewed in the
2003 Salmon and Steelhead Hatchery Assessment Group Report (NMFS, 2003)
and the 2004 Salmonid Hatchery Assessment and Inventory Report (NMFS,
2004b). The DPS membership of hatchery programs included in the
steelhead DPS descriptions below and summarized in Table 1 are
unchanged from that proposed for the 10 O. mykiss ESUs (69 FR 33102;
June 14, 2004).

Southern California Steelhead DPS

The Southern California Steelhead DPS includes all naturally
spawned populations of steelhead in streams from the Santa Maria River,
San Luis Obispo County, California (inclusive) to the U.S.-Mexico
Border (62 FR 43937, August 18, 1997; 67 FR 21586, May 1, 2002). This
DPS does not include any artificially propagated steelhead stocks that
reside within the historical geographic range of the DPS.

South-Central California Coast Steelhead DPS

The South-Central California Coast steelhead DPS includes all
naturally spawned populations of steelhead in streams from the Pajaro
River (inclusive) to, but not including the Santa Maria River,
California (62 FR 43937; August 18, 1997). This DPS does not include
any artificially propagated steelhead stocks that reside within the
historical geographic range of the DPS.

Central California Coast Steelhead DPS

The Central California Coast steelhead ESU was previously defined
to include all naturally spawned populations of steelhead in California
streams from the Russian River to Aptos Creek, and the drainages of San
Francisco and San Pablo Bays eastward to the Napa River (inclusive),
excluding the Sacramento-San Joaquin River Basin (62 FR 43937; August
18, 1997). Recent information, however, indicates that those portions
of the ESU in San Francisco Bay and eastward towards the Central Valley
were incorrectly described in the 1997 listing notice and need to be
clarified. As part of the November 4, 2005, notice soliciting comment
on the delineation and listing of steelhead-only DPSs (70 FR 67130), we
proposed clarifying the definition of the Central California Coast
steelhead DPS. We did not receive any

[[Page 849]]

comments opposing the inclusion of these streams, nor has any
information been made available that would lead us to reconsider our
proposal. Accordingly, we are defining the Central California Coast
steelhead DPS to include all naturally spawned populations of steelhead
in coastal streams from the Russian River (inclusive) to Aptos Creek
(inclusive), and the drainages of San Francisco, San Pablo, and Suisun
Bays eastward to Chipps Island at the confluence of the Sacramento and
San Joaquin Rivers; and tributary streams to Suisun Marsh including
Suisun Creek, Green Valley Creek, and an unnamed tributary to Cordelia
Slough (commonly referred to as a Red Top Creek), exclusive of the
Sacramento-San Joaquin River Basin of the California Central Valley.
Two artificial propagation programs are considered to be part of
the DPS (Table 1): the Don Clausen Fish Hatchery, and Kingfisher Flat
Hatchery/Scott Creek (Monterey Bay Salmon and Trout Project) steelhead
hatchery programs. We have determined that these artificially
propagated stocks are no more divergent relative to the local natural
population(s) than what would be expected between closely related
natural populations within the DPS (NMFS, 2004b, 2004c).

California Central Valley Steelhead DPS

The California Central Valley steelhead DPS includes all naturally
spawned populations of steelhead in the Sacramento and San Joaquin
Rivers and their tributaries, excluding steelhead from San Francisco
and San Pablo Bays and their tributaries (63 FR13347; March 19, 1998).
Two artificial propagation programs are considered to be part of the
DPS (Table 1): the Coleman NFH, and Feather River Hatchery steelhead
hatchery programs. We have determined that these artificially
propagated stocks are no more divergent relative to the local natural
population(s) than what would be expected between closely related
natural populations within the DPS (NMFS, 2004b, 2004c).

Northern California Steelhead DPS

The Northern California O. mykiss ESU was previously defined to
include steelhead in California coastal river basins from Redwood Creek
south to the Gualala River (inclusive) (65 FR 36074; June 7, 2000).
Recently, however, we have discovered that there is a coastal section
between the southern boundary of this DPS (the Gualala River) and the
northern boundary of the Central California Coast steelhead DPS (the
Russian River) that contains several small streams that support
steelhead. No genetic or other information is currently available for
determining which DPS includes these small streams. As part of the
November 4, 2005, notice soliciting comment on the delineation and
listing of steelhead-only DPSs (70 FR 67130), we proposed to include
these small streams in this Northern California steelhead DPS on a
conditional basis. We did not receive any comments opposing the
inclusion of these streams, nor has any information been made available
that would lead us to reconsider our proposal. Accordingly, the
Northern California steelhead DPS is defined to include all naturally
spawned populations of steelhead in California coastal river basins
from Redwood Creek southward to, but not including, the Russian River.
Two artificial propagation programs are considered part of the DPS
(Table 1): the Yager Creek Hatchery, and North Fork Gualala River
Hatchery (Gualala River Steelhead Project) steelhead hatchery programs.
We have determined that these artificially propagated stocks are no
more divergent relative to the local natural population(s) than what
would be expected between closely related natural populations within
the DPS (NMFS, 2004b, 2004c, 2005a).

Upper Willamette River Steelhead DPS

The Upper Willamette River steelhead DPS includes all naturally
spawned populations of winter-run steelhead in the Willamette River,
Oregon, and its tributaries upstream from Willamette Falls to the
Calapooia River (inclusive) (64 FR 14517; March 25, 1999). This DPS
does not include any artificially propagated steelhead stocks that
reside within the historical geographic range of the DPS. Hatchery
summer-run steelhead occur in the Willamette Basin but are an out-of-
basin stock that is not included as part of the DPS.

Lower Columbia River Steelhead DPS

The Lower Columbia River steelhead DPS includes all naturally
spawned populations of steelhead in streams and tributaries to the
Columbia River between the Cowlitz and Wind Rivers, Washington
(inclusive), and the Willamette and Hood Rivers, Oregon (inclusive).
Excluded are steelhead in the upper Willamette River Basin above
Willamette Falls and steelhead from the Little and Big White Salmon
Rivers in Washington (62 FR 43937; August 18, 1997). Ten artificial
propagation programs are considered to be part of the DPS (Table 1):
the Cowlitz Trout Hatchery (in the Cispus, Upper Cowlitz, Lower
Cowlitz, and Tilton Rivers), Kalama River Wild (winter- and summer-
run), Clackamas Hatchery, Sandy Hatchery, and Hood River (winter- and
summer-run) steelhead hatchery programs. We have determined that these
artificially propagated stocks are no more divergent relative to the
local natural population(s) than what would be expected between closely
related natural populations within the DPS (NMFS, 2004b, 2004c, 2005a).

Middle Columbia River Steelhead DPS

The Middle Columbia River steelhead DPS includes all naturally
spawned populations of steelhead in streams from above the Wind River,
Washington, and the Hood River, Oregon (exclusive), upstream to, and
including, the Yakima River, Washington, excluding steelhead from the
Snake River Basin (64 FR 14517; March 25, 1999). Seven artificial
propagation programs are considered part of the DPS (Table 1): the
Touchet River Endemic, Yakima River Kelt Reconditioning Program (in
Satus Creek, Toppenish Creek, Naches River, and Upper Yakima River),
Umatilla River, and the Deschutes River steelhead hatchery programs. We
have determined that these artificially propagated stocks are no more
divergent relative to the local natural population(s) than what would
be expected between closely related natural populations within the DPS
(NMFS, 2004b, 2004c, 2005a).

Upper Columbia River Steelhead DPS

The Upper Columbia River steelhead DPS includes all naturally
spawned populations of steelhead in streams in the Columbia River Basin
upstream from the Yakima River, Washington, to the U.S.-Canada border
(62 FR 43937; August 18, 1997). Six artificial propagation programs are
considered part of the DPS (Table 1): the Wenatchee River, Wells
Hatchery (in the Methow and Okanogan Rivers), Winthrop NFH, Omak Creek,
and the Ringold steelhead hatchery programs. We have determined that
these artificially propagated stocks are no more divergent relative to
the local natural population(s) than what would be expected between
closely related natural populations within the DPS (NMFS, 2004b, 2004c,
2005a).

Snake River Basin Steelhead DPS

The Snake River Basin steelhead DPS includes all naturally spawned
populations of steelhead in streams in the Snake River Basin of
southeast Washington, northeast Oregon, and Idaho (62 FR 43937; August
18, 1997). Six artificial propagation programs are considered part of
the DPS (Table 1): the Tucannon River, Dworshak NFH, Lolo Creek, North
Fork Clearwater, East Fork

[[Page 850]]

Salmon River, and the Little Sheep Creek/Imnaha River Hatchery
steelhead hatchery programs. We have determined that these artificially
propagated stocks are no more divergent relative to the local natural
population(s) than what would be expected between closely related
natural populations within the DPS (NMFS, 2004b).

Table 1.--List of Artificial Propagation Programs Included in Distinct
Population Segments (DPSs) of West Coast Steelhead (Oncorhynchus mykiss)
------------------------------------------------------------------------
Artificial Propagation
Program(s) Included in
Steelhead Distinct Population Run timing Location (State)
Segments (DPSs)
------------------------------------------------------------------------
Southern California Steelhead DPS
------------------------------------------------------------------------
n/a........................... ................. .....................
-------------------------------
South-Central California Coast Steelhead DPS
------------------------------------------------------------------------
n/a........................... ................. .....................
-------------------------------
Central California Coast Steelhead DPS
------------------------------------------------------------------------
Scott Creek/Monterey Bay Winter........... Big Creek, Scott
Salmon and Trout Project, Creek (California).
Kingfisher Flat Hatchery.
Don Clausen Fish Hatchery..... Winter........... Russian River
(California).
-------------------------------
California Central Valley Steelhead DPS
------------------------------------------------------------------------
Coleman National Fish Hatchery Winter........... Battle Creek,
(NFH). Sacramento River
(California).
Feather River Hatchery........ Winter........... Feather River
(California).
-------------------------------
Northern California Steelhead DPS
------------------------------------------------------------------------
Yager Creek Hatchery.......... Winter........... Yager Creek, Van
Duzen River
(California).
North Fork Gualala River Winter........... North Fork Gualala
Hatchery/Gualala River River (California).
Steelhead Project.
-------------------------------
Upper Willamette River Steelhead DPS
------------------------------------------------------------------------
n/a........................... ................. .....................
-------------------------------
Lower Columbia River Steelhead DPS
------------------------------------------------------------------------
Cowlitz Trout Hatchery........ Late Winter...... Cispus River
(Washington).
Cowlitz Trout Hatchery........ Late Winter...... Upper Cowlitz River
(Washington).
Cowlitz Trout Hatchery........ Late Winter...... Tilton River
(Washington).
Cowlitz Trout Hatchery........ Late Winter...... Lower Cowlitz River
(Washington).
Kalama River Wild............. Winter........... Kalama River
(Washington).
Kalama River Wild............. Summer........... Kalama River
(Washington).
Clackamas Hatchery (ODFW stock Late Winter...... Clackamas River
#122). (Oregon).
Sandy Hatchery (ODFW stock Late Winter...... Sandy River (Oregon).
#11).
Hood River (ODFW stock < greek- Winter........... Hood River (Oregon).
i>50).
Hood River (ODFW stock < greek- Summer........... Hood River (Oregon).
i>50).
-------------------------------
Middle Columbia River Steelhead DPS
------------------------------------------------------------------------
Touchet River Endemic......... Summer........... Touchet River
(Washington).
Yakima River Kelt Summer........... Satus Creek
Reconditioning Program. (Washington).
Yakima River Kelt Summer........... Toppenish Creek
Reconditioning Program. (Washington).
Yakima River Kelt Summer........... Naches River
Reconditioning Program. (Washington).
Yakima River Kelt Summer........... Upper Yakima River
Reconditioning Program. (Washington).
Umatilla River (ODFW stock Summer........... Umatilla River
#91). (Oregon).
Deschutes River (ODFW stock Summer........... Deschutes River
#66). (Oregon).
-------------------------------
Upper Columbia River Steelhead DPS
------------------------------------------------------------------------
Wenatchee River Steelhead..... Summer........... Wenatchee River
(Washington).
Wells Hatchery Steelhead...... Summer........... Methow River
(Washington).
Wells Hatchery Steelhead...... Summer........... Okanogan River
(Washington).
Winthrop NFH Steelhead (Wells Summer........... Methow River
Steelhead). (Washington).
Omak Creek Steelhead.......... Summer........... Okanogan River
(Washington).
Ringold Hatchery (Wells Summer........... Middle Columbia River
Steelhead). (Washington).
-------------------------------
Snake River Basin Steelhead DPS
------------------------------------------------------------------------
Tucannon River................ Summer........... Tucannon River
(Washington).
Dworshak NFH.................. Summer........... South Fork Clearwater
River (Idaho).
Lolo Creek.................... Summer........... Clearwater River
(Idaho).
North Fork Clearwater......... Summer........... North Fork Clearwater
River (Idaho).

[[Page 851]]

East Fork Salmon River........ Summer........... East Fork Salmon
River (Idaho).
Little Sheep Creek/Imnaha Summer........... Imnaha River
River Hatchery (ODFW stock (Oregon).
# 29).
------------------------------------------------------------------------

Assessment of Species' Status

NMFS's Pacific Salmonid BRT (an expert panel of scientists from
several Federal agencies including NMFS, FWS, and the U.S. Geological
Survey) reviewed the viability and extinction risk of naturally
spawning populations in the 10 steelhead DPSs that are the subject of
this final rule (Good et al., 2005). Although the ESUs reviewed by the
BRT included co-occurring populations of resident O. mykiss, little or
no population data are available for most resident O. mykiss
populations. The BRT's findings regarding extinction risk are based on
the status of the steelhead populations in the ESUs reviewed. Where
available, the BRT incorporated information about resident populations
into their analyses of extinction risk, and in some instances the BRT
noted the presence of speculatively abundant resident populations.
However, the BRT concluded that the contribution of the resident life-
history form to the viability of an O. mykiss ESU in-total is unknown
and may not substantially reduce extinction risks to an ESU in-total.
Therefore, the BRT's extinction risk findings directly inform
evaluations of extinction risk for the steelhead DPSs under consideration.
We assessed effects of hatchery programs on the extinction risk of
a DPS in-total on the basis of the factors that the BRT determined are
currently limiting the DPS (e.g., abundance, productivity, spatial
structure, and diversity) and how artificial propagation efforts within
the DPS affect those factors. The APEW (NMFS, 2004c) reviewed the BRT's
findings (NMFS, 2003; Good et al., 2005), evaluated the Salmonid
Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and
assessed the overall extinction risk of DPSs with associated hatchery
stocks. Below we summarize the status information for the steelhead
DPSs under consideration. The reader is referred to the BRT's report
(Good et al., 2005), the Salmonid Hatchery Inventory and Effects
Evaluation Report (NMFS, 2004b), and the APEW Report (NMFS, 2004c) for
more detailed descriptions of the viability of individual natural
populations and hatchery stocks within these DPSs.
In its analysis of the status of the O. mykiss ESUs, the BRT voted
on whether each was ``in danger of extinction,'' ``likely to become
endangered in the foreseeable future,'' or ``not warranted.'' While
these categories correspond to the statutory definitions of
``endangered'' or ``threatened,'' they do not amount to an agency
determination that any of the entities under consideration are an
endangered species or a threatened species under the ESA. To make the
ESA determination, we also considered the extent to which hatchery
populations affect the extinction risk assessed by the BRT as well as
the effect of any protective efforts being made by any state or foreign
nation.

Southern California Steelhead DPS

Assessing the extinction risk for Southern California steelhead is
made difficult by the general lack of historical or recent data for
this DPS, and the uncertainty generated by this paucity of information.
The historical steelhead run for four of the major river systems within
the range of the DPS is estimated to have been between 32,000 and
46,000 adults. Recent run size for the same four systems, however, has
been estimated to be fewer than 500 total adults. Run sizes in river
systems within the DPS are believed to range between less than five
anadromous adults per year, to less than 100 anadromous adults per
year. The available data are insufficient to estimate abundance levels
or trends in productivity. Of 65 river drainages where steelhead are
known to have occurred historically, between 26 and 52 percent are
still occupied (uncertainty in this estimate is the result of the
inaccessibility of 17 basins to population surveys). Colonization
events of steelhead were documented during 1996-2002 in Topanga and San
Mateo Creeks. These colonization events were represented by a few
spawning adults or the observation of a single individual. Twenty-two
basins are considered vacant, extirpated, or nearly extirpated due to
dewatering or the establishment of impassable barriers below all
spawning habitats. Except for the colonization of a small population in
San Mateo Creek in northern San Diego County, steelhead appear to have
been completely extirpated from nearly all systems in the southern
portion of the range of the DPS from Malibu Creek to the Mexican
border. Recently, documentation of the presence and spawning of
steelhead in two streams south of Malibu Creek (in Topanga and San
Mateo Creeks) prompted the extension of the DPS's boundaries to the
U.S.-Mexico border in 2002 (67 FR 21586; May 1, 2002).
The BRT found extremely high risks to the abundance, productivity,
spatial structure, and diversity of the DPS. Informed by this
assessment, the strong majority opinion of the BRT was that the
Southern California steelhead DPS is ``in danger of extinction.'' The
minority opinion was that the DPS is ``likely to become endangered
within the foreseeable future.'' There are no artificially propagated
stocks of steelhead that mitigate the BRT's assessment that the DPS is
``in danger of extinction.''

South-Central California Coast Steelhead DPS

There is a paucity of abundance information for the South-Central
California Coast steelhead DPS. Data are not available for the two
largest river systems within the range of the DPS, the Pajaro and
Salinas basins. These systems are much degraded and are expected to
have steelhead runs reduced in size from historical levels. Data
available for the Carmel River underscore the population's
vulnerability to drought conditions, as well as its dependence on the
intensive management of the river system. The most recent 5-year mean
abundance of fish in the Carmel River is approximately 600 adults.
Despite observed and inferred declines in abundance, the current
spatial distribution of steelhead populations in the DPS does not
appear to be much reduced from what occurred historically. Steelhead
are present in approximately 86 to 95 percent of historically occupied
streams (the uncertainty in the estimated occupancy is due to three
streams that could not be accessed for population surveys). The BRT was
concerned, however, that the larger Pajaro and Salinas basins are

[[Page 852]]

spatially and ecologically distinct from other populations in the DPS,
such that further degradation of these areas will negatively impact the
DPS's spatial structure and diversity. The BRT found high risks to the
abundance, productivity, and the diversity of the DPS, and expressed
concern particularly for the DPS's connectivity and spatial structure.
Informed by this assessment, the strong majority opinion of the BRT was
that the South-Central Coast steelhead DPS is ``likely to become
endangered within the foreseeable future.'' The minority opinion was
that the DPS is ``in danger of extinction.'' There are no artificially
propagated stocks of steelhead that mitigate the BRT's assessment that
the DPS is ``likely to become endangered within the foreseeable future.''

Central California Coast Steelhead DPS

There are no time series of population abundance data for the
naturally spawning component of the Central California Coast steelhead
DPS. The naturally spawning population in the largest river system in
the DPS, the Russian River, is believed to have declined seven-fold
since the mid-1960s. Juvenile density information is available for five
``representative'' populations, and each exhibits a decline in juvenile
density over the last 8 years of available data. Predation by
increasing numbers of California sea lions at river mouths and during
the ocean phase was noted as a recent development also posing
significant risk. Juvenile O. mykiss have been observed in
approximately 82 percent of historically occupied streams, indicating
that the DPS continues to be spatially well distributed. However,
impassable dams have cut off substantial portions of spawning habitat
in some basins, generating concern about the spatial structure of the
naturally spawning component of the DPS. The BRT found moderately high
risk to the abundance and productivity of the DPS, and comparatively
less risk for the DPS's spatial structure and diversity. Informed by
this risk assessment, the majority opinion of the BRT was that the
naturally spawned component of the Central California Coast steelhead
DPS is ``likely to become endangered within the foreseeable future.''
The minority opinion was that the DPS is ``in danger of extinction.''
Two artificial propagation programs are considered to be part of
the Central California Coast steelhead DPS (Table 1; NMFS, 2004b,
2005a). Our assessment of the effects of these two artificial
propagation programs on the viability of the DPS concluded that they
decrease risk to some degree by contributing to increased abundance,
but have neutral or uncertain effects on productivity, spatial
structure or diversity of the DPS. Informed by the BRT's findings (Good
et al., 2005) and our assessment of the effects of artificial
propagation programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded
that the Central California Coast steelhead DPS in-total is ``likely to
become endangered in the foreseeable future'' (NMFS, 2004c).

California Central Valley Steelhead DPS

Little information is available regarding the viability of the
naturally spawning component of the California Central Valley steelhead
DPS. Steelhead spawning above the Red Bluff Diversion Dam (RBDD) have a
small population size (the most recent 5-year mean is less than 2,000
adults) and exhibit strongly negative trends in abundance and
productivity. However, there have not been any escapement estimates
made for the area above RBDD since the mid 1990s. The only recent DPS-
level estimate of abundance is a crude extrapolation from the
incidental catch of out-migrating juvenile steelhead captured in a
midwater-trawl sampling program for juvenile Chinook salmon below the
confluence of the Sacramento and San Joaquin Rivers. The extrapolated
abundance of naturally spawning female steelhead involves broad
assumptions about female fecundity (number of eggs produced per female)
and egg-to-smolt survival rates. Based on this extrapolation, it is
estimated that on average during 1998-2000, approximately 181,000
juvenile steelhead were produced naturally each year in the Central
Valley by approximately 3,600 spawning female steelhead. It is
estimated that there were 1 to 2 million spawners in the Central Valley
prior to 1850, and approximately 40,000 spawners in the 1960s. Although
it appears that steelhead remain widely distributed in Sacramento River
tributaries, the vast majority of historical spawning areas are
currently above impassable dams. The BRT also expressed concern about
the effects of significant production of out-of-DPS hatchery steelhead
in the American (Nimbus Hatchery) and Mokelumne (Mokelumne River
Hatchery) Rivers. The BRT found high risks to the abundance,
productivity, and spatial structure of the DPS, and moderately high
risk for the DPS's diversity. Informed by this risk assessment, the
majority opinion of the BRT was that the naturally spawned component of
the California Central Valley steelhead DPS is ``in danger of
extinction.'' The minority opinion was that the naturally spawned
component of the DPS is ``likely to become endangered within the
foreseeable future.''
There are two artificial propagation programs considered to be part
of the Central Valley steelhead DPS. Our assessment of the effects of
these artificial propagation programs on the viability of the DPS
concluded that they decrease risk to some degree by contributing to
increased abundance of the DPS, but have a neutral or uncertain effect
on the productivity, spatial structure and diversity of the DPS (NMFS,
2004b, 2004c, 2005a). Informed by the BRT's findings (Good et al.,
2005) and our assessment of the effects of artificial propagation
programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded that the
presence of hatchery populations does not alter the BRT's conclusion
that the California Central Valley steelhead DPS is ``in danger of
extinction'' (NMFS, 2004c).

Northern California Steelhead DPS

There is little historical abundance information for the naturally
spawning portion of the Northern California steelhead DPS. However, the
available data (dam counts on the Eel and Mad Rivers) indicate a
substantial decline from the abundance levels of the 1930s. The three
available summer steelhead data sets exhibit recent 5-year mean
abundance levels from three to 418 adults, and exhibit downward short-
and long-term trends. The short- and long-term abundance trends for the
one current winter steelhead data series show a slightly positive
trend. However, the recent 5-year mean abundance level is extremely low
(32 adults). The juvenile density data for six of 10 (putative)
independent populations exhibit declining trends. Despite low abundance
and downward trends, steelhead appear to be still widely distributed
throughout this ESU. The BRT expressed concern about the DPS's
diversity due to the low effective population sizes in the DPS, and
concern over interactions with the Mad River Hatchery stock that is not
considered to be part of the DPS. This hatchery program was terminated
in 2004. Thus, potential genetic risks associated with propagation of
this non-DPS stock will decline in the future. The BRT found high risk
to the DPS's abundance, and moderately high risk for productivity. The
DPS's spatial structure and diversity were of comparatively lower
concern. Informed by this assessment, the majority opinion of the BRT
was that the naturally spawned component of the Northern California
steelhead DPS is ``likely to

[[Page 853]]

become endangered within the foreseeable future.'' The minority BRT
opinion was split between the ``in danger of extinction'' and ``not in
danger of extinction or likely to become endangered within the
foreseeable future'' categories.
There are two small artificial propagation programs producing
steelhead considered to be part of the Northern California steelhead
DPS (Table 1; NMFS, 2004b, 2005a). Our assessment of the effects of
these two artificial propagation programs on the viability of the DPS
concluded that they may decrease risk to some degree by contributing to
increased abundance of the DPS, but have a neutral or uncertain effect
on the DPS's productivity, spatial structure and diversity (NMFS,
2004b, 2004c, 2005a). Informed by the BRT's findings (Good et al.,
2005) and our assessment of the effects of artificial propagation
programs (NMFS, 2004b, 2004c, 2005a), the APEW concluded that the
presence of the hatchery populations does not alter the BRT's
conclusion that the Northern California steelhead DPS is ``likely to
become endangered in the foreseeable future'' (NMFS, 2004c).

Upper Willamette River Steelhead DPS

The BRT was encouraged by significant increases in adult returns
(exceeding 10,000 total fish) in 2001 and 2002 for the Upper Willamette
River steelhead DPS. The recent 5-year mean abundance, however, remains
low for an entire DPS (5,819 adults), and individual populations remain
at low abundance. Long-term trends in abundance are negative for all
populations in the DPS, reflecting a decade of consistently low returns
during the 1990s. Short-term trends, buoyed by recent strong returns,
are positive. Approximately one-third of the DPS's historically
accessible spawning habitat is now blocked. Notwithstanding the lost
spawning habitat, the DPS continues to be spatially well distributed,
occupying each of the four major subbasins (the Mollala, North Santiam,
South Santiam, and Calapooia Rivers). There is some uncertainty about
the historical occurrence of O. mykiss in the Oregon Coastal Range
drainages. Coastal cutthroat trout is a dominant species in the
Willamette Basin, and thus O. mykiss is not expected to have been as
abundant or widespread in this DPS as it is east of the Cascade
Mountains. The BRT considered the cessation of the ``early'' winter-run
hatchery program a positive sign in reducing risks to the DPS's
diversity, but remained concerned that releases of non-native summer
hatchery steelhead continue. The BRT found moderate risks to the DPS's
abundance, productivity, spatial structure, and diversity. Based on
this risk assessment, the majority opinion of the BRT was that the
Upper Willamette River steelhead DPS is ``likely to become endangered
within the foreseeable future.'' The minority BRT opinion was that the
DPS is ``not in danger of extinction or likely to become endangered
within the foreseeable future.'' There are no artificially propagated
stocks of steelhead that mitigate the BRT's assessment that the DPS is
``likely to become endangered in the foreseeable future.''

Lower Columbia River Steelhead DPS

Some steelhead populations in the Lower Columbia River DPS,
particularly summer-run populations, have shown encouraging increases
in abundance in recent years. However, population abundance levels
remain small (no population has a recent 5-year mean abundance greater
than 750 spawners). The BRT could not conclusively identify a single
population that is naturally viable. A number of populations have a
substantial fraction of hatchery-origin spawners and are hypothesized
to be sustained largely by hatchery production. Long-term trends in
spawner abundance are negative for seven of nine populations for which
there are sufficient data, and short-term trends are negative for five
of seven populations. It is estimated that four historical populations
have been extirpated or nearly extirpated, and only one-half of 23
historical populations currently exhibit appreciable natural
production. Although approximately 35 percent of historical habitat has
been lost within the range of this DPS due to the construction of dams
or other impassable barriers, the DPS exhibits a broad spatial
distribution in a variety of watersheds and habitat types. The BRT was
particularly concerned about the impact on DPS diversity of the high
proportion of hatchery-origin spawners in the DPS, the disproportionate
declines in the summer steelhead life history, and the release of non-
native hatchery summer steelhead in the Cowlitz, Toutle, Sandy, Lewis,
Elochoman, Kalama, Wind, and Clackamas Rivers. The BRT found moderate
risks to the ESU's abundance, productivity, spatial structure, and
diversity. Informed by this assessment the majority opinion of the BRT
was that the naturally spawned component of the Lower Columbia River
steelhead DPS is ``likely to become endangered within the foreseeable
future.'' The minority opinion was that the DPS is ``not in danger of
extinction or likely to become endangered within the foreseeable future.''
There are 10 artificial propagation programs releasing hatchery
steelhead that are considered to be part of this DPS (Table 1). Our
assessment of the effects of artificial propagation concluded that
these hatchery programs collectively do not substantially reduce the
extinction risk of the DPS (NMFS, 2004b, 2004c, 2005a). Non-DPS
hatchery programs in the Lower Columbia River remain a threat to the
DPS's diversity. Collectively, artificial propagation programs may
provide a slight beneficial effect to the DPS's abundance, spatial
structure, and diversity, but uncertain effects to the DPS's
productivity. Informed by the BRT's findings (Good et al., 2005) and
our assessment of the effects of artificial propagation programs on the
viability of the DPS (NMFS, 2004b, 2004c, 2005a), the APEW concluded
that the presence of the hatchery populations does not alter the BRT's
conclusion that the Lower Columbia River steelhead DPS is ``likely to
become endangered in the foreseeable future'' (NMFS, 2004c).

Middle Columbia River Steelhead DPS

The abundance of some natural populations in the Middle Columbia
River steelhead DPS has increased substantially in recent years. The
Deschutes and Upper John Day Rivers have recent 5-year mean abundance
levels in excess of their respective interim recovery target abundance
levels (NMFS, 2002). Due to an uncertain proportion of out-of-DPS
strays in the Deschutes River, the recent increases in this population
are difficult to interpret. (These interim recovery targets articulate
the geometric mean of natural-origin spawners to be sustained over a
period of 8 years or approximately two salmonid generations, as well as
a geometric mean natural replacement rate greater than one). The
Umatilla River's recent mean abundance is approximately 72 percent of
its interim recovery target abundance level. The natural populations in
the Yakima River, Klickitat River, Touchet River, Walla Walla River,
and Fifteenmile Creek, however, remain well below their interim
recovery target abundance levels. Long-term trends for 11 of the 12
production areas within the range of the DPS were negative, although it
was observed that these downward trends are driven, at least in part,
by a peak in returns in the middle to late 1980s, followed by
relatively low escapement levels in the early 1990s. Short-term trends
in the 12 production areas were mostly positive from 1990 to 2001. The

[[Page 854]]

continued low number of natural returns to the Yakima River (10 percent
of the interim recovery target abundance level, historically a major
production center for the DPS) generated concern among the BRT members.
However, steelhead remain well distributed in the majority of subbasins
within the range of the Middle Columbia River DPS. The presence of
substantial numbers of out-of-basin (and largely out-of-DPS) natural
spawners in the Deschutes River raised substantial concern regarding
the genetic integrity and productivity of the native Deschutes
population. The extent to which this straying is an historical natural
phenomenon is unknown. The cool Deschutes River temperatures may
attract fish migrating in the comparatively warmer Columbia River
waters, thus inducing high stray rates. The BRT found moderate risks to
the DPS's productivity, spatial structure, and diversity, with the
greatest relative risk being attributed to the ESU's abundance.
Informed by this assessment, the opinion of the BRT was closely divided
between the ``likely to become endangered within the foreseeable
future'' and ``not in danger of extinction or likely to become
endangered within the foreseeable future'' categories.
There are seven hatchery steelhead programs considered to be part
of the Middle Columbia River steelhead DPS. Our assessment of the
effects of artificial propagation concluded that these hatchery
programs collectively do not substantially reduce the extinction risk
of the DPS (NMFS, 2004b, 2004c, 2005a). Informed by the BRT's findings
(Good et al., 2005) and our assessment of the effects of artificial
propagation programs on the viability of the DPS (NMFS, 2004b, 2004c,
2005a), the APEW concluded that the presence of the hatchery
populations does not alter the BRT's conclusion that the Middle
Columbia River steelhead DPS in-total is ``likely to become endangered
in the foreseeable future'' (NMFS, 2004c).

Upper Columbia River Steelhead DPS

Recent years have seen an encouraging increase in the number of
naturally produced fish in the Upper Columbia River steelhead DPS. The
1996-2001 average return through the Priest Rapids Dam fish ladder
(just below the upper Columbia steelhead production areas) was
approximately 12,900 total adults (including both hatchery and natural
origin fish), compared to 7,800 adults for 1992-1996. However, the
recent 5-year mean abundances for naturally spawned populations in this
DPS are 14 to 30 percent of their interim recovery target abundance
levels. Despite increases in total abundance in the last few years, the
BRT was frustrated by the general lack of detailed information
regarding the productivity of natural populations. The BRT did not find
data to suggest that the extremely low replacement rate of naturally
spawning fish (0.25-0.30 at the time of the last status review in 1998)
has appreciably improved. The predominance of hatchery-origin natural
spawners (approximately 70 to 90 percent of adult returns) is a
significant source of concern for the DPS's diversity and generates
uncertainty in evaluating trends in natural abundance and productivity.
Although the natural component of the anadromous run over Priest Rapids
Dam has increased from an average of 1,040 (1992-1996) to 2,200 (1997-
2001), this pattern is not consistent for other production areas within
the ESU. The mean proportion of natural-origin spawners declined by 10
percent from 1992-1996 to 1997-2001. The BRT found high risk to the
DPS's productivity, with comparatively lower risk to the DPS's
abundance, diversity, and spatial structure. Informed by this risk
assessment, the slight majority BRT opinion concerning the naturally
spawned component of the Upper Columbia River steelhead DPS was in the
``in danger of extinction'' category, and the minority opinion was that
the DPS is ``likely to become endangered within the foreseeable future.''
Six artificial propagation programs that produce hatchery steelhead
in the Upper Columbia River Basin are considered to be part of the
Upper Columbia River steelhead DPS. These programs are intended to
contribute to the recovery of the DPS by increasing the abundance of
natural spawners, increasing spatial distribution, and improving local
adaptation and diversity (particularly with respect to the Wenatchee
River steelhead). Research projects to investigate the spawner
productivity of hatchery-reared fish are being developed. Some of the
hatchery-reared steelhead adults that return to the basin may be in
excess of spawning population needs in years of high survival
conditions, potentially posing a risk to the naturally spawned
populations in the DPS. The artificial propagation programs included in
this DPS adhere to strict protocols for the collection, rearing,
maintenance, and mating of the captive brood populations. The programs
include extensive monitoring and evaluation efforts to continually
evaluate the extent and implications of any genetic and behavioral
differences that might emerge between the hatchery and natural stocks.
Genetic evidence suggests that these hatchery stocks remain closely
related to the naturally-spawned populations and maintain local genetic
distinctiveness of populations within the DPS. Habitat conservation
plans (HCPs, with the Chelan and Douglas Public Utility Districts) and
binding mitigation agreements ensure that these programs will have
secure funding and will continue into the future. These hatchery
programs have undergone ESA section 7 consultation to ensure that they
do not jeopardize the recovery of the DPS, and they have received ESA
section 10 permits for production through 2007. Annual reports and
other specific information reporting requirements are used to ensure
that the terms and conditions as specified by NMFS are followed. These
programs, through adherence to best professional practices, have not
experienced disease outbreaks or other catastrophic losses.
Our assessment of the effects of artificial propagation on the
DPS's extinction risk concluded that hatchery programs collectively
mitigate the immediacy of extinction risk for the Upper Columbia River
steelhead DPS in the short term, but that the contribution of these
programs in the foreseeable future is uncertain (NMFS, 2004b, 2004c,
2005a). The within-DPS hatchery programs substantially increase total
DPS returns, particularly in the Methow Basin where hatchery-origin
fish comprise on average 92 percent of all returns. The contribution of
hatchery programs to the abundance of naturally spawning fish is
uncertain. The contribution of DPS hatchery programs to the
productivity of the DPS is uncertain. Large numbers of hatchery-origin
steelhead in excess of broodstock needs and limited habitat capacity
may decrease the DPS's overall productivity. With increasing DPS
abundance in recent years, naturally spawning hatchery-origin fish have
expanded the spawning areas being used. Since 1996 efforts are being
undertaken to establish the Wenatchee Basin programs separately from
the Wells steelhead hatchery program. These efforts are expected to
increase the DPS's diversity over time. There is concern that the high
proportion of Wells Hatchery steelhead spawning naturally in the Methow
and Okanogan basins may pose risks to the DPS' diversity by decreasing
local adaptation. The Omak Creek program, although small in size,
likely will increase population diversity over time. There has been
concern that the early spawning components of the Methow and Wenatchee
hatchery programs may

[[Page 855]]

represent a risk to the DPS's diversity. The recent transfer of these
early-run components to the Ringold Hatchery on the mainstem Columbia
River will benefit the diversity of the tributary populations, while
establishing a genetic reserve on the mainstem Columbia River.
Collectively, artificial propagation programs benefit DPS abundance and
spatial structure, but have neutral or uncertain effects on the DPS's
productivity and diversity. Benefits of artificial propagation are more
substantial in the Wenatchee Basin for abundance, spatial structure,
and diversity. Informed by the BRT's findings (Good et al., 2005) and
our assessment of the effects of artificial propagation programs (NMFS,
2004b, 2004c, 2005a), the APEW concluded that the presence of the
hatchery populations alters the BRT's conclusion, and that the Upper
Columbia River steelhead DPS in-total is ``likely to become endangered
in the foreseeable future'' (NMFS, 2004c).

Snake River Basin Steelhead DPS

The paucity of information on adult spawning escapement for
specific tributary production areas in the Snake River Basin steelhead
DPS makes a quantitative assessment of viability difficult. All of the
available data series are for Oregon populations; there are no data
series available for the Idaho populations, which represent the
majority of the DPS. Annual return estimates are limited to counts of
the aggregate return over Lower Granite Dam, and spawner estimates for
the Tucannon, Grande Ronde, and Imnaha Rivers. The 2001 Snake River
steelhead return over Lower Granite Dam was substantially higher
relative to the low levels seen in the 1990s; the recent 5-year mean
abundance (14,768 natural returns) is approximately 28 percent of the
interim recovery target level. The abundance surveyed in sections of
the Grande Ronde, Imnaha, and Tucannon Rivers was generally improved in
2001. However, the recent 5-year abundance and productivity trends were
mixed. Five of the nine available data series exhibit positive long-
and short-term trends in abundance. The majority of long-term
population growth rate estimates for the nine available series were
below replacement. The majority of short-term population growth rates
were marginally above replacement, or well below replacement, depending
upon the assumption made regarding the effectiveness of hatchery fish
in contributing to natural production. The BRT noted that the DPS
remains spatially well distributed in each of the six major geographic
areas in the Snake River Basin. The BRT was concerned that the Snake
River Basin steelhead ``B-run'' (steelhead with a 2-year ocean
residence and larger body size that are believed to be produced only in
the Clearwater, Middle Fork Salmon, and South Fork Salmon Rivers) was
particularly depressed. The BRT was also concerned about the
predominance of hatchery produced fish in this DPS, the inferred
displacement of naturally produced fish by hatchery-origin fish, and
the potential impacts on the DPS's diversity. High straying rates
exhibited by some hatchery programs generated concern about the
possible homogenization of population structure and diversity within
the Snake River Basin DPS. Recent efforts to improve the use of local
broodstocks and release hatchery fish away from natural production
areas, however, are encouraging. The BRT found moderate risks to the
DPS's abundance, productivity, and diversity, and comparatively lower
risk to the DPS's spatial structure. Informed by this risk assessment,
the majority opinion of the BRT was that the naturally spawned
component of the Snake River Basin steelhead DPS is ``likely to become
endangered within the foreseeable future.'' The minority BRT opinion
was split between the ``in danger of extinction'' and ``not in danger
of extinction or likely to become endangered within the foreseeable
future'' categories.
There are six artificial propagation programs considered to be part
of the Snake River Basin steelhead DPS (Table 1). Our assessment of the
effects of artificial propagation concluded that these hatchery
programs collectively do not substantially reduce the extinction risk
of the DPS (NMFS, 2004b, 2004c, 2005a). Informed by the BRT's findings
(Good et al., 2005) and our assessment of the effects of artificial
propagation programs on the DPS's viability (NMFS, 2004b, 2004c,
2005a), the APEW concluded that the presence of the hatchery
populations does not alter the BRT's conclusion that the Snake River
Basin steelhead DPS is ``likely to become endangered in the foreseeable
future'' (NMFS, 2004c).

Efforts Being Made To Protect West Coast Steelhead

Section 4(b)(1)(A) of the ESA requires the Secretary to make
listing determinations solely on the basis of the best scientific and
commercial data available after taking into account efforts being made
to protect a species. Therefore, in making ESA listing determinations,
we first assess a DPS's level of extinction risk and identify factors
that have led to its decline. We then assess existing efforts being
made to protect the species to determine if those measures ameliorate
the risks faced by the DPS.
In the proposed rule addressing 10 O. mykiss ESUs, we reviewed
protective efforts ranging in scope from regional conservation
strategies to local watershed initiatives (see 69 FR 33102; June 14,
2004). We conclude that protective efforts collectively do not provide
empirical evidence or sufficient certainty of implementation and
effectiveness to substantially ameliorate the level of assessed
extinction risk for all but one of the steelhead DPSs under
consideration. For the California Central Valley, we concluded that
conservation benefits from the CALFED, State Water Project, Central
Valley Project, and California Endangered Species Act provide
sufficient certainty of implementation and effectiveness to mitigate
the immediacy of extinction risk facing the Central Valley steelhead
DPS (see the June 14, 2004, proposed rule for a summary of the relevant
protective efforts (69 FR 33102, at 33144) benefitting the California
Central Valley DPS and a description of the proposed finding that these
efforts mitigate the DPS's level of extinction risk (69 FR 33102, at
33163.))
While we acknowledge that many of the ongoing protective efforts
for the other DPSs are likely to promote their conservation, many
efforts are relatively recent, have yet to indicate their
effectiveness, and few address conservation needs at scales sufficient
to conserve entire DPSs. We will continue to encourage these and other
future protective efforts, and we will continue to collaborate with
tribal, Federal, state, and local entities to promote and improve
efforts being made to protect the species.

Final Listing Determinations

Consideration of Factors Relevant to Listing

Section 4(a)(1) of the ESA and NMFS'' implementing regulations (50
CFR part 424) state that we must determine if a species is endangered
or threatened because of any one or a combination of the following
factors: (1) The present or threatened destruction, modification, or
curtailment of its habitat or range; (2) overutilization for
commercial, recreational, scientific, or educational purposes; (3)
disease or predation; (4) inadequacy of existing regulatory mechanisms;
or (5) other natural or man-made factors affecting its continued
existence. We have previously detailed the impacts of

[[Page 856]]

various factors contributing to the decline of West Coast steelhead as
part of our prior listing determinations (65 FR 36074, June 7, 2000; 64
FR 14517, March 25, 1999; 63 FR 42588, August 10, 1998; 63 FR 13347,
March 19, 1998; 62 FR 43937, August 18, 1997), as well as in supporting
technical reports (e.g., Busby et al., 1996; NMFS, 1996). There is no
single factor solely responsible for the decline of West Coast
steelhead stocks, and our prior listing determinations and technical
reports concluded that all of the factors identified in section 4(a)(1)
have played a role. Of these factors, the destruction and modification
of habitat, overutilization for recreational purposes, and natural and
man-made factors have been identified as the primary causes for the
decline of West Coast steelhead. The following discussion briefly
summarizes findings regarding threats across the range of West Coast
steelhead. While these factors have been treated here in general terms,
it is important to underscore that impacts from certain factors are
more acute for specific DPSs.
1. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
West Coast steelhead have experienced declines in the past several
decades as a result of forestry, agricultural, mining, and urbanization
activities that have resulted in the loss, degradation, simplification,
and fragmentation of habitat. Water storage, withdrawal, conveyance,
and diversions for agriculture, flood control, domestic, and hydropower
purposes (especially in the Columbia River and Sacramento-San Joaquin
River Basins) have greatly reduced or eliminated historically
accessible habitat. Modification of natural flow regimes have resulted
in increased water temperatures, changes in fish community structures,
depleted flow necessary for migration, spawning, rearing, flushing of
sediments from spawning gravels, reduced gravel recruitment and the
transport of large woody debris. In addition to these indirect effects
from dams and other water control structures, they have also resulted
in increased direct mortality of adult and juvenile steelhead.
Natural resource use and extraction leading to habitat modification
can have significant direct and indirect impacts to steelhead
populations. Land use activities associated with logging, road
construction, urban development, mining, agriculture, ranching, and
recreation have significantly altered steelhead habitat quantity and
quality. Associated impacts of these activities include: alteration of
streambank and channel morphology; alteration of ambient stream water
temperatures; degradation of water quality; elimination of spawning and
rearing habitats; fragmentation of available habitats; elimination of
downstream recruitment of spawning gravels and large woody debris;
removal of riparian vegetation resulting in increased stream bank
erosion; and increased sedimentation input into spawning and rearing
areas resulting in the loss of channel complexity, pool habitat,
suitable gravel substrate, and large woody debris. Studies indicate
that in most western states, about 80 to 90 percent of the historic
riparian habitat has been eliminated. Wetland and estuarine habitats
have been reduced by approximately one-third in Washington and Oregon,
and over 90 percent in California (Dahl, 1990; Jensen et al., 1990;
Barbour et al., 1991; Tiner, 1991; Reynolds et al., 1993). The
condition of the remaining wetland habitats for West Coast steelhead is
largely degraded, with many wetland areas at continued risk of loss or
further degradation.
The loss and degradation of habitats and flow conditions has been
identified as a threat to each of the 10 steelhead DPSs addressed in
this notice. Although many historically harmful practices have been
halted, much of the historical damage to habitats limiting West Coast
steelhead stocks remains to be addressed, and the necessary restoration
activities will likely require decades. Additionally, in some areas
certain land-use practices continue to pose risks to the survival of
local steelhead populations.
2. Overutilization for Commercial, Recreational, Scientific or
Educational Purposes
Steelhead have been, and continue to be, an important recreational
fishery throughout their range. There are no commercial fisheries for
steelhead in the ocean, and they are only rarely taken there in
fisheries targeting other species. The primary fisheries taking
steelhead are tribal fisheries and (public) recreational fisheries.
More than thirty Native American tribes have guaranteed rights to fish
for steelhead under treaties with the U.S. Government. These tribal
fisheries serve ceremonial and subsistence and commercial purposes.
Recreational fishing for hatchery-origin steelhead is extremely popular
along the West Coast. These fisheries are highly selective, and only
visibly marked surplus hatchery-origin fish may be harvested.
As much as 50 percent of all fish in a given run can be intercepted
in such fisheries. Mortality rates for naturally spawned fish that are
caught and released in these fisheries are presumed to be low, but the
actual rates are unknown, as is the level of illegal retention. In the
Columbia River, steelhead fishing is regulated under Federal, tribal
and state agreement. Under these agreements the total harvest rate for
steelhead intended to spawn naturally has been limited to approximately
10 percent, except for Idaho B run steelhead where harvest rates are
limited to below 20 percent (NMFS, 2005b). We have previously concluded
that harvest is a major limiting factor for three of the 10 DPSs under
review (NMFS, 2005c): the Snake River Basin, South-Central California
Coast, and Southern California steelhead DPSs.
3. Disease or Predation
Infectious diseases constitute one of many factors that can
influence adult and juvenile steelhead survival. Steelhead are exposed
to numerous bacterial, protozoan, viral, and parasitic organisms in
spawning and rearing areas, hatcheries, migratory routes, and marine
environments. Specific diseases, such as bacterial kidney disease
(BKD), ceratomyxosis, columnaris, furunculosis, infectious
hematopoietic necrosis virus, redmouth and black spot disease,
erythrocytic inclusion body syndrome, and whirling disease, among
others, are present and are known to affect steelhead (Rucker et al.,
1953; Wood, 1979; Leek, 1987; Foott et al., 1994). Very little current
or historical information exists to quantify changes in infection
levels and mortality rates attributable to these diseases for
steelhead. However, studies have shown that naturally spawned fish tend
to be less susceptible to pathogens than hatchery-reared fish (Buchanon
et al., 1983; Sanders et al., 1992). Native salmon populations have co-
evolved with specific communities of these organisms, but the
widespread use of artificial propagation has introduced exotic
organisms not historically present in a particular watershed. Habitat
conditions such as low water flows and high temperatures can exacerbate
susceptibility to infectious diseases. Aggressive hatchery reforms
implemented in some areas have reduced the magnitude and distribution
of hatchery fish releases, and consequently the interactions between
hatchery- and natural-origin fish and the potential transmission of
infectious diseases. Additionally, regulations controlling hatchery
effluent discharges into streams have reduced the potential

[[Page 857]]

of pathogens being released into steelhead habitats.
Introduction of non-native species and modification of habitat have
resulted in increased predator populations and salmonid predation in
numerous river systems. Marine predation is also of concern in some
areas, given the dwindling steelhead run-size in recent years. In
general, predation rates on steelhead are considered by most
investigators to be an insignificant contribution to the large declines
observed in west coast populations. However, predation may
significantly influence salmonid abundance in some local populations
when other prey are absent and physical habitat conditions lead to the
concentration of adults and juveniles. There is insufficient available
information to suggest that the DPSs under consideration are in danger
of extinction, or likely to become so in the foreseeable future,
because of disease or predation.
4. The Inadequacy of Existing Regulatory Mechanisms
We reviewed existing regulatory mechanisms in the proposed rule as
part of our evaluation of efforts being made to protect West Coast
salmonids (69 FR 33102, at 33143; June 14, 2004). We noted several
Federal, state, and local regulatory programs that have been
successfully implemented to substantially reduce historical risks to
West Coast steelhead DPSs (for example, the elimination of stocking
hatchery rainbow trout in anadromous waters, and the conversion of many
in-river recreational fisheries to catch-and-release only). The reader
is referred to the proposed rule for a regional and state-by-state
summary of these regulatory mechanisms. In particular, changes in
regulations governing steelhead fisheries have significantly reduced
the risks for many of the steelhead DPSs under consideration, although
some DPSs continue to be harvested at significant rates. In addition,
although there have been efforts to improve habitat conditions across
the range of most of the DPSs under consideration, land use regulations
across their range do not address continued threats from habitat
degradation. Many of the DPSs are in danger of extinction, or
threatened with endangerment, as a result of the inadequacy of existing
regulatory mechanisms.
5. Other Natural or Manmade Factors Affecting Its Continued Existence
Variability in natural environmental conditions has both masked and
exacerbated the problems associated with degraded and altered riverine
and estuarine habitats. Floods and persistent drought conditions have
reduced already limited spawning, rearing, and migration habitats.
Furthermore, El Nino events and periods of unfavorable ocean-climate
conditions can threaten the survival of steelhead populations already
reduced to low abundance levels due to the loss and degradation of
freshwater and estuarine habitats. However, periods of favorable ocean
productivity and high marine survival can offset poor habitat
conditions elsewhere and result in dramatic increases in population
abundance and productivity (as was observed for some DPSs in recent years).
In an attempt to mitigate for lost habitat and reduced fisheries,
extensive hatchery programs have been implemented throughout the range
of steelhead on the West Coast. Most hatchery programs are designed to
compensate for degraded habitat capacity and productivity, however,
recently some hatcheries have been designed to assist in the
conservation and recovery of natural populations. While some of the
programs intended for mitigation purposes have been successful in
providing fishing opportunities, many such programs have posed risks to
the genetic diversity and long-term reproductive fitness of local
natural steelhead populations. Potential threats to natural steelhead
posed by hatchery programs include: excessive mortality of natural
steelhead in fisheries targeting hatchery-origin steelhead; competition
for prey and habitat; predation by hatchery-origin fish on younger
natural fish; genetic introgression by hatchery-origin fish that spawn
naturally and interbreed with local natural populations; disease
transmission; degraded water quality and quantity, and impediments to
fish passage imposed by hatchery facilities. Aggressive hatchery reform
in some areas has halted historically harmful artificial propagation
practices, and the use of conservation hatcheries may play an important
role, under appropriate circumstances, in reestablishing depressed West
Coast steelhead stocks. We have previously concluded that harmful
hatchery practices still represent a major threat for the Southern
California, California Central Valley, South-Central California Coast,
Upper Willamette River, and Snake River Basin steelhead DPSs (NMFS, 2005c).

Final Conclusions Regarding ESA Listing Status

After reviewing the public comments received, independent expert
reviewer comments, and other data available to us, we find that there
is no substantive information that would cause us to reconsider the
extinction risk assessments of the BRT (Good et al., 2005) or the APEW
Report's (NMFS, 2004c) conclusions regarding the contributions of
hatchery programs to the viability of the subject DPSs. We conclude
that the Southern California steelhead DPS is in danger of extinction
throughout all or a significant portion of its range, and warrants
listing as an endangered species. We conclude that the South-Central
California Coast, Central California Coast, California Central Valley,
Northern California, Lower Columbia River, Upper Willamette River,
Middle Columbia River, Upper Columbia River, and Snake River Basin
steelhead DPSs are likely to become endangered within the foreseeable
future throughout all or a significant portion of their ranges.
Accordingly, these nine ESUs warrant listing as threatened species.

Prohibitions and Protective Regulations

ESA section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply
to all species listed as endangered. In the case of threatened species,
section 4(d) of the ESA leaves it to the Secretary's discretion whether
and to what extent to extend the statutory 9(a) ``take'' prohibitions,
and directs the agency to issue regulations it considers necessary and
advisable for the conservation of the species. The 4(d) protective
regulations may prohibit, with respect to threatened species, some or
all of the acts which section 9(a) of the ESA prohibits with respect to
endangered species. These 9(a) prohibitions and 4(d) regulations apply
to all individuals, organizations, and agencies subject to U.S.
jurisdiction.
Since 1997 we have promulgated a total of 29 ``limits'' to the ESA
Section 9(a) ``take'' prohibitions for 19 threatened salmon and
steelhead ESUs (62 FR 38479, July 18, 1997; 65 FR 42422, July 10, 2000;
65 FR 42485, July 10, 2000; 67 FR 1116, January 9, 2002). On June 28,
2005, as part of the final listing determinations for 16 West Coast
salmon ESUs, we amended and streamlined the previously promulgated 4(d)
protective regulations for threatened salmon and steelhead (70 FR
37160). We finalized an amendment to provide the necessary flexibility
to ensure that fisheries and artificial propagation programs are
managed consistently with the conservation needs of threatened salmon
and steelhead. Under this change the section 4(d) protections apply to
natural and hatchery fish with an intact adipose fin, but not to listed
hatchery fish that have

[[Page 858]]

had their adipose fin removed prior to release into the wild.
Additionally, we made several simplifying and clarifying changes to the
ESA 4(d) protective regulations including updating an expired limit
(section 223.203(b)(2)) providing a temporary exemption for ongoing
research and enhancement activities with pending applications through
December 2005, and extending the same set of 14 limits to all
threatened salmon and steelhead. With respect to steelhead, the amended
June 2005 4(d) rule applies to the steelhead being listed as threatened
in the following eight DPSs: The South-Central California, Central
California Coast, California Central Valley, Northern California, Upper
Willamette River, Lower Columbia River, Middle Columbia River, and
Snake River Basin steelhead DPSs.

Protective Regulations for the Upper Columbia River Steelhead DPS

The Upper Columbia River steelhead ESU is currently listed as
endangered and subject to the section 9(a) take prohibitions. With the
new listing of the Upper Columbia River steelhead DPS as a threatened
species, the existing 4(d) protective regulations do not apply to this
DPS. As part of the June 14, 2004, proposed threatened determination
for the Upper Columbia River O. mykiss ESU (69 FR 33102), we also
proposed extending to this ESU the amended 4(d) protective regulations
that were subsequently finalized in June 2005 (70 FR 37160; June 28,
2005). We will finalize the protective regulations for the threatened
Upper Columbia River steelhead DPS in a subsequent Federal Register notice.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
We and the FWS published in the Federal Register on July 1, 1994
(59 FR 34272), a policy that we shall identify, to the maximum extent
practicable at the time a species is listed, those activities that
would or would not constitute a violation of section 9 of the ESA. The
intent of this policy is to increase public awareness of the effect of
this listing on proposed and ongoing activities within the species'
range. At the time of the final rule, we must identify to the extent
known specific activities that will not be considered likely to result
in violation of section 9, as well as activities that will be
considered likely to result in violation. We believe that, based on the
best available information, the following actions will not result in a
violation of section 9:
1. Possession of steelhead from any DPS that is listed as
threatened or endangered that are acquired lawfully by permit issued by
us pursuant to section 10 of the ESA, or by the terms of an incidental
take statement issued pursuant to section 7 of the ESA; or
2. Federally funded or approved projects that involve activities
such as silviculture, grazing, mining, road construction, dam
construction and operation, discharge of fill material, stream
channelization or diversion for which section 7 consultation has been
completed, and when activities are conducted in accordance with any
terms and conditions provided by us in an incidental take statement
accompanying a biological opinion.
Activities that we believe could potentially ``harm'' steelhead
(see 50 CFR 222.102) in the listed DPSs, and result in a violation of
the section 9 take prohibition include, but are not limited to:
1. Land-use activities that adversely affect steelhead habitats for
any listed DPS (e.g., logging, grazing, farming, urban development,
road construction in riparian areas and areas susceptible to mass
wasting and surface erosion);
2. Destruction/alteration of the steelhead habitats for any listed
DPS, such as removal of large woody debris and ``'sinker logs''' or
riparian shade canopy, dredging, discharge of fill material, draining,
ditching, diverting, blocking, or altering stream channels or surface
or ground water flow;
3. Discharges or dumping of toxic chemicals or other pollutants
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting
listed steelhead DPSs;
4. Violation of discharge permits;
5. Application of pesticides affecting water quality or riparian
areas for listed steelhead DPSs;
6. Interstate and foreign commerce of steelhead from any of the
listed DPSs and import/export of steelhead from any listed DPS without
a threatened or endangered species permit;
7. Collecting or handling of steelhead from any of the listed DPSs.
Permits to conduct these activities are available for purposes of
scientific research or to enhance the conservation or survival of the
species; or
8. Introduction of non-native species likely to prey on steelhead
from any of the listed DPSs or displace them from their habitats.
This list is not exhaustive. It is intended to provide some
examples of the types of activities that might be considered by us as
constituting a take of steelhead in any of the listed DPSs under the
ESA and its regulations. Questions regarding whether specific
activities will constitute a violation of the section 9 take
prohibitions and general inquiries regarding prohibitions and permits,
should be directed to us (see ADDRESSES).

Effective Date of the Final Listing Determinations

Given the cultural, scientific, and recreational importance of West
Coast steelhead, and the broad geographic range of these DPSs, we
recognize that numerous parties may be affected by these final listing
determinations. Therefore, to permit an orderly implementation of the
consultation requirements associated with these determinations, the
final listings will take effect on February 6, 2006.

Critical Habitat

On September 2, 2005, we issued final critical habitat designations
for 19 West Coast salmon and steelhead ESUs, including the Southern
California, South-Central California, Central California Coast,
California Central Valley, Northern California, Upper Willamette River,
Lower Columbia River, Middle Columbia River, Upper Columbia River, and
Snake River Basin steelhead ESUs (70 FR 52488 and 52630). At the time
of these final critical habitat designations for steelhead we had
proposed including co-occurring resident O. mykiss as part of the ESUs;
however, a Consent Decree governing the schedule for the final
designations required that they be completed for the ESUs as they were
listed as of August 15, 2005. As noted above in the ``Background''
section, the existing listings for steelhead ESUs promulgated between
1997-2000 include only the anadromous life-history form (for more
detailed ESU-specific information the reader is referred to the summary
of, and Federal Register citations for, the previous steelhead listing
determinations provided in 69 FR 33102, June 14, 2004). Accordingly,
the final critical habitat designations are restricted to the species'
anadromous range, and are coextensive with the steelhead-only DPS
delineations described in this notice. Whereas the final critical
habitat designations may have warranted revision for the proposed O.
mykiss ESUs including both the resident and anadromous life-history
forms, the final critical habitat designations do not require revision
for the proposed steelhead-only DPSs (NMFS, 2005d).

[[Page 859]]

Classification

National Environmental Policy Act (NEPA)

ESA listing decisions are exempt from the requirements to prepare
an environmental assessment or environmental impact statement under the
NEPA. See NOAA Administrative Order 216-6.03(e)(1) and Pacific Legal
Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981). Thus, we have
determined that the final listing determinations for the West Coast
steelhead DPSs described in this document are exempt from the
requirements of the NEPA of 1969.

Executive Order (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 cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the final listing
determinations described in this notice. In addition, this rule is
exempt from review under E.O. 12866. This final determination does not
contain a collection-of-information requirement for the purposes of the
Paperwork Reduction Act.

E.O. 13084--Consultation and Coordination With Indian Tribal Governments

E.O. 13084 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. The final listing
determinations described in this document do not impose substantial
direct compliance costs on the communities of Indian tribal
governments. Accordingly, the requirements of section 3(b) of E.O.
13084 do not apply to this final listing determination. Nonetheless, we
will continue to inform potentially affected tribal governments,
solicit their input, and coordinate on future management actions.

E.O. 13132--Federalism

E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of those
circumstances is applicable to this final listing determination. In
keeping with the intent of the Administration and Congress to provide
continuing and meaningful dialogue on issues of mutual state and
Federal interest, the proposed rule was provided to the relevant
agencies in each state in which the subject species occurs, and these
agencies were invited to comment.

References

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

List of Subjects in 50 CFR Parts 223 and 224

Endangered and threatened species.

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

Dated: December 22, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.

? For the reasons set out in the preamble, 50 CFR parts 223 and 224 are
amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

? 1. The authority citation for part 223 continues to read as follows:

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.

? 2. In Sec. 223.102, revise paragraphs (a)(14) though (a)(21) and add
paragraph (a)(22) to read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *
(a) * * *

----------------------------------------------------------------------------------------------------------------
Species \1\ Citation(s) for Citation for
-------------------------------------------------- Where listed listing critical habitat
Common name Scientific name determination(s) designation
----------------------------------------------------------------------------------------------------------------

* * * * * * *
(14) South-Central California Oncorhynchus U.S.A., CA, Distinct 62 FR 43937, Aug 70 FR 52488;
Coast Steelhead. mykiss. Population Segment 18, 1997, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams from the
Pajaro River
(inclusive) to, but
not including the
Santa Maria River,
California.

[[Page 860]]

(15) Central California Coast Oncorhynchus U.S.A., CA, Distinct 62 FR 43937, Aug. 70 FR 52488;
Steelhead. mykiss. Population Segment 18, 1997, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in California streams
from the Russian
River (inclusive) to
Aptos Creek
(inclusive), and the
drainages of San
Francisco, San Pablo,
and Suisun Bays
eastward to Chipps
Island at the
confluence of the
Sacramento and San
Joaquin Rivers.
Tributary streams to
Suisun Marsh
including Suisun
Creek, Green Valley
Creek, and an unnamed
tributary to Cordelia
Slough (commonly
referred to as Red
Top Creek), excluding
the Sacramento-San
Joaquin River Basin,
as well as two
artificial
propagation programs:
the Don Clausen Fish
Hatchery, and
Kingfisher Flat
Hatchery/Scott Creek
(Monterey Bay Salmon
and Trout Project)
steelhead hatchery
programs.
(16) California Central Valley Oncorhynchus U.S.A., CA, Distinct 63 FR 13347; Mar. 70 FR 52488;
Steelhead. mykiss. Population Segment 19, 1998, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in the Sacramento and
San Joaquin Rivers
and their
tributaries,
excluding steelhead
from San Francisco
and San Pablo Bays
and their
tributaries, as well
as two artificial
propagation programs:
the Coleman NFH, and
Feather River
Hatchery steelhead
hatchery programs.
(17) Northern California Oncorhynchus U.S.A., CA, Distinct 65 FR 36074, June 70 FR 52488;
Steelhead. mykiss. Population Segment 7, 2000, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in California coastal
river basins from
Redwood Creek
southward to, but not
including, the
Russian River, as
well as two
artificial
propagation programs:
the Yager Creek
Hatchery, and North
Fork Gualala River
Hatchery (Gualala
River Steelhead
Project) steelhead
hatchery programs.
(18) Upper Willamette River Oncorhynchus U.S.A., OR, Distinct 62 FR 43937, Aug. 70 FR 52630;
Steelhead. mykiss. Population Segment 18, 1997, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in the Willamette
River, Oregon, and
its tributaries
upstream from
Willamette Falls to
the Calapooia River
(inclusive).
(19) Lower Columbia River Oncorhynchus U.S.A., OR, WA, 63 FR 13347, Mar. 70 FR 52630;
Steelhead. mykiss. Distinct Population 19, 1998, Jan. 5, September 2,
Segment including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams and
tributaries to the
Columbia River
between the Cowlitz
and Wind Rivers,
Washington
(inclusive), and the
Willamette and Hood
Rivers, Oregon
(inclusive), as well
as ten artificial
propagation programs:
the Cowlitz Trout
Hatchery (in the
Cispus, Upper
Cowlitz, Lower
Cowlitz, and Tilton
Rivers), Kalama River
Wild (winter- and
summer-run),
Clackamas Hatchery,
Sandy Hatchery, and
Hood River (winter-
and summer-run)
steelhead hatchery
programs. Excluded
are O. mykiss
populations in the
upper Willamette
River Basin above
Willamette Falls,
Oregon, and from the
Little and Big White
Salmon Rivers,
Washington.

[[Page 861]]

(20) Middle Columbia River Oncorhynchus U.S.A., OR, WA, 57 FR 14517, Mar. 70 FR 52630;
Steelhead. mykiss. Distinct Population 25, 1999, Jan. 5, September 2,
Segment including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams from above
the Wind River,
Washington, and the
Hood River, Oregon
(exclusive), upstream
to, and including,
the Yakima River,
Washington, excluding
O. mykiss from the
Snake River Basin, as
well seven artificial
propagation programs:
the Touchet River
Endemic, Yakima River
Kelt Reconditioning
Program (in Satus
Creek, Toppenish
Creek, Naches River,
and Upper Yakima
River), Umatilla
River, and the
Deschutes River
steelhead hatchery
programs.
(21) Snake River Basin Oncorhynchus U.S.A., OR, WA, ID, 62 FR 43937, Aug. 70 FR 52630;
Steelhead. mykiss. Distinct Population 18, 1997, Jan. 5, September 2,
Segment including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams in the
Snake River Basin of
southeast Washington,
northeast Oregon, and
Idaho, as well six
artificial
propagation programs:
the Tucannon River,
Dworshak NFH, Lolo
Creek, North Fork
Clearwater, East Fork
Salmon River, and the
Little Sheep Creek/
Imnaha River Hatchery
steelhead hatchery
programs.
(22) Upper Columbia River Oncorhynchus U.S.A., WA, Distinct 62 FR 43937, Aug. 70 FR 52630;
Steelhead. mykiss. Population Segment 18, 1997, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams in the
Columbia River Basin
upstream from the
Yakima River,
Washington, to the
U.S.-Canada border,
as well six
artificial
propagation programs:
the Wenatchee River,
Wells Hatchery (in
the Methow and
Okanogan Rivers),
Winthrop NFH, Omak
Creek, and the
Ringold steelhead
hatchery programs.
----------------------------------------------------------------------------------------------------------------
\1\ Species 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).

* * * * *

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 Sec. 224.101(a) by:
? a. Removing the row with the entry for Upper Columbia River steelhead;
and
? b. Revising the entry for Southern California Steelhead to read as
follows:

Sec. 224.101 Enumeration of endangered marine and anadromous species.

* * * * *
(a) * * *

* * * * * * *
Southern California Steelhead. Oncorhynchus U.S.A., CA, Distinct 62 FR 43937, Aug. 70 FR 52488;
mykiss. Population Segment 18, 1997, Jan. 5, September 2,
including all 2006. 2005.
naturally spawned
anadromous O. mykiss
(steelhead)
populations below
natural and manmade
impassable barriers
in streams from the
Santa Maria River,
San Luis Obispo
County, California,
(inclusive) to the
U.S.-Mexico Border.

* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species 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).

[[Page 862]]

* * * * *
[FR Doc. 06-47 Filed 1-4-06; 8:45 am]
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Endangered and Threatened Species: Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead

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