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Proposed Rule

Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chinook Salmon in the Upper Klamath-Trinity Rivers Basin as Threatened or Endangered Under the Endangered Species Act

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Start Preamble

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Start Printed Page 8411Atmospheric Administration (NOAA), Department of Commerce.

ACTION:

90-Day petition finding, request for information, and initiation of status review.

SUMMARY:

We, NMFS, announce a 90-day finding on a petition to list as threatened or endangered the Upper Klamath-Trinity Rivers (UKTR) Chinook salmon Evolutionarily Significant Unit (ESU) (Oncorhynchus tshawytscha) or, alternatively, create a new ESU to describe Klamath Spring Chinook salmon and list the new ESU as threatened or endangered under the Endangered Species Act (ESA). The petition also requests that we designate critical habitat concurrently with the listing. We find that the petition presents substantial scientific information indicating the petitioned actions may be warranted. We will conduct a status review of the Chinook salmon in the UKTR Basin to determine if the petitioned actions are warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species from any interested party.

DATES:

Scientific and commercial information pertinent to the petitioned action must be received by April 30, 2018.

ADDRESSES:

You may submit comments on this document, identified by “Upper Klamath-Trinity Rivers Chinook Petition (NOAA-NMFS-2018-0002),” by either of the following methods:

  • Federal eRulemaking Portal: Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2018-0002, click the “Comment Now” icon, complete the required fields, and enter or attach your comments.
  • Mail or hand-delivery: Protected Resources Division, West Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR 97232. Attn: Gary Rule.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Electronic copies of the petition and other materials are available on the NMFS West Coast Region website at www.westcoast.fisheries.noaa.gov. Please direct other inquiries to Gary Rule, NMFS West Coast Region at gary.rule@noaa.gov, (503) 230-5424; or Maggie Miller, NMFS Office of Protected Resources at margaret.h.miller@noaa.gov, (301) 427-8457.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

On November 2, 2017, the Secretary of Commerce received a petition from the Karuk Tribe and Salmon River Restoration Council (hereafter, the Petitioners) to list as threatened or endangered the UKTR Chinook salmon ESU or, alternatively, create and list a new ESU to describe Klamath Spring Chinook salmon. In their petition, the Petitioners used various phrases as well as “Klamath Spring Chinook” to describe the area in which they are requesting that we create a new ESU for spring-run Chinook salmon. Because their request is generally made in reference to the spring-run Chinook salmon component of the UKTR ESU of Chinook salmon, we will use the description of the currently defined ESU to describe the area in which the Petitioners are requesting that we create a new spring-run Chinook salmon ESU. We will hereinafter refer to that area as the UKTR Basin. We described all Klamath River Basin populations of Chinook salmon from the Trinity River and Klamath River upstream from the confluence of the Trinity River as the UKTR ESU, which includes both spring-run and fall-run fish (63 FR 11482; March 9, 1998). The Petitioners also request designation of critical habitat concurrently with the listing. Copies of the petition are available as described above (see FOR FURTHER INFORMATION CONTACT).

ESA Statutory, Regulatory, Policy Provisions, and Evaluation Framework

Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). In 1991, we issued the Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 58612; November 20, 1991), which explains that a Pacific salmon population will be considered a DPS, and hence a “species” under the ESA, if it represents an “evolutionarily significant unit” of the biological species. The two criteria for delineating an ESU are: (1) It is substantially reproductively isolated from other conspecific populations, and (2) it represents an important component in the evolutionary legacy of the species. The ESU Policy was used to define the UKTR Chinook salmon ESU in 1998 (63 FR 11482; March 9, 1998), and we use it exclusively for defining distinct population segments of Pacific salmon. A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the Services' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (DPS Policy; 61 FR 4722; February 7, 1996). In announcing this policy, the Services indicated that the ESU Policy for Pacific salmon was consistent with the DPS Policy and that NMFS would continue to use the ESU Policy for Pacific salmon.

A species, subspecies, DPS, or ESU is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the Start Printed Page 8412ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five ESA section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms to address identified threats; or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(h)(1)(i)) define substantial scientific or commercial information in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).

Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).

If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6).

The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petitioned action will generally not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information or analyses not previously considered.

At the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information Start Printed Page 8413indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

UKTR Chinook Salmon ESU

We completed the first status review for UKTR Basin Chinook salmon in 1998 (Myers et al., 1998). Myers et al. (1998) defined the UKTR Chinook salmon ESU as including all spring-run and fall-run populations from the Trinity River and Klamath River upstream from the confluence of the Trinity River. Based on the information in the status review, we determined that the UKTR Chinook salmon ESU was not at a significant risk of extinction, nor was it likely to become endangered in the foreseeable future, and therefore did not warrant listing under the ESA (63 FR 11482; March 9, 1998). On January 28, 2011, the Secretary of Commerce received a petition from the Center for Biological Diversity (CBD), Oregon Wild, Environmental Protection Information Center, and The Larch Company, to list UKTR Chinook salmon under the ESA and designate critical habitat. We made a positive 90-day finding, conducted a status review, and made a 12-month not warranted finding on the petitioned actions (77 FR 19597; April 2, 2012). In reaching our not warranted conclusion, we confirmed our earlier finding that spring-run and fall-run Chinook salmon in the UKTR Basin constitute a single ESU and, consistent with our earlier finding, concluded that the overall extinction risk of the ESU was considered to be low over the subsequent 100 years.

Evaluation of Petition and Information Readily Available in NMFS Files

The petition contains information and arguments in support of listing Chinook salmon under the two alternatives requested by the Petitioners. Under the first listing alternative, the Petitioners request that we list as threatened or endangered the UKTR Chinook salmon ESU, in contrast to our previous finding in 2012 that listing this ESU was not warranted (77 FR 19597; April 2, 2012). In support of their request, the Petitioners present information about recent trends in abundance of the spring-run component of the UKTR Chinook salmon ESU, arguing that those trends indicate that the ESU should be listed. The Petitioners state that the total number of naturally spawning spring-run Chinook salmon since 1990 has averaged 9,983 spawners (range: 2,133 to 35,827); however, in recent years, the abundance of spring-run Chinook has declined. In fact, three out of the six worst years on record were in the past decade, with 4,215 spawners in 2014, 2,638 in 2015, and 2,133 in 2016. The Petitioners note that 2017 was likely to be even lower and that this trend places the ESU at risk of extinction. In our previous not warranted finding (77 FR 19597; April 2, 2012) we found that recent abundance estimates were low relative to historical abundance estimates and that this was most evident in two of the three spring-run populations units evaluated. Specifically, the Biological Review Team (BRT) that was asked to review the status of the UKTR Chinook salmon in 2011 noted concerns about the low numbers of spawners within the spring-run populations and while they concluded that these low numbers did not pose an immediate risk of extinction to the ESU, they were concerned that appropriate habitat and conditions that allow for the expression of the spring-run life history were limited (Williams et al. 2011). Given the new information presented by the Petitioners, which show a continued decline in spring-run spawners since the 2011 review, we find that a reasonable person would conclude that low spawner abundance may be impacting overall genetic diversity of the ESU to the point where the petitioned action may be warranted, and that further evaluation is necessary.

The Petitioners also present information on the threats facing the spring-run component of the UKTR Chinook salmon ESU. The Petitioners argue that all five ESA section 4(a)(1) factors contribute to the need to list the species. However, we find that they have only provided support for two of the factors: Disease and the inadequacy of existing regulatory mechanisms. The Petitioners claim that recent observations indicate high rates of disease in juvenile Chinook salmon. In 2014, 81 percent of juvenile Chinook salmon sampled were infected with the lethal parasite Ceratonova shasta. In 2015, this percentage rose to 90 percent of sampled juvenile Chinook salmon. These high rates of infection were purportedly the result of poor water quality, low flows, and prolonged absence of flushing flows necessary to scour the river bed (Hillemeier et al. 2017). While we do not have additional information in our files on disease risks to Chinook salmon, we consider infection from C. shasta to pose a significant risk to coho salmon in the Klamath River basin (NMFS 2013). In the latest 5-year review of the threatened Southern Oregon/Northern California Coast Coho Salmon ESU, we found that severe infection of juvenile coho salmon by C. shasta may contribute to declining adult coho salmon returns in the Klamath basin. Risk of mortality from infection (referred to as ceratomyxosis) was greatest at higher temperatures, and given the drought conditions that have persisted for the last four years and associated high water temperatures, we concluded that the risk from ceratomyxosis has likely been higher in the last five years than in the previous five years (NMFS 2016). Based on the information from the Petitioners, infection and associated mortality from ceratomyxosis may also be a significant threat to Chinook salmon in the Klamath, particularly given these two species' similar life histories. Considering the information indicating a declining abundance of spring-run spawners, we find that a reasonable person would conclude that additional mortality of UKTR chinook salmon from disease indicates that the petitioned action may be warranted.

The Petitioners also claim that current hatchery practices and harvest management are inadequate, with current exploitation rates of the species leading to the observed decline in the ESU. In support of their argument, the petitioners claim that the majority of the naturally spawning Chinook salmon in the Trinity basin are of hatchery origin. The Petitioners state that the high proportion of hatchery fish further supports their argument about the low number of returning spring-run Chinook salmon. The Petitioners also provide information on the inadequacy of harvest management. The Petitioners describe how fisheries managers have expressed the need to manage spring-run Chinook salmon. In 2003, the Klamath Fisheries Management Council reported to the Pacific Fisheries Management Council that they intended to develop management recommendations aimed at the conservation of spring-run Chinook salmon while preserving meaningful harvest opportunities for both ocean and river fisheries. The Petitioners claim that harvest management objectives were never set. We also do not have any information in our files to show that current regulatory mechanisms adequately address the threats identified above for spring-run Chinook salmon. Therefore, we find that a reasonable person would conclude that the inadequacy of existing regulatory measures to address threats of overutilization or disease of the UKTR Chinook salmon ESU indicate that the petitioned action may be warranted.

Under the second recommended listing alternative, the Petitioners Start Printed Page 8414present new genetic evidence to suggest the spring-run Chinook salmon populations in the UKTR Basin may qualify as a separate ESU from the fall-run populations and request this new ESU to be listed based on the threats identified above. Based on biological, genetic, and ecological information compiled and reviewed as part of the status review for Chinook salmon (Myers et al., 1998), we included all spring-run and fall-run Chinook salmon populations in the Klamath River Basin upstream from the confluence of the Klamath and Trinity rivers in the UKTR Chinook salmon ESU (63 FR 11482; March 9, 1998). In our 2012 not warranted decision (77 FR 19597; April 2, 2012), we reconfirmed the configuration of the UKTR Chinook salmon ESU. In both cases, we found that spring-run and fall-run Chinook salmon populations in the UKTR Basin were genetically very similar and not reproductively isolated from each other. The Petitioners contend the findings from a recently published article on the evolutionary basis of premature migration in Pacific salmon (Prince et al. 2017) indicate that spring-run Chinook salmon in the UKTR Basin should be considered a separate ESU, and therefore eligible to be listed as threatened or endangered. Prince et al. (2017) suggest that their results indicate that premature migration (e.g. spring-run Chinook salmon) arose from a single evolutionary event within the species and, if lost, are not likely to re-evolve in time frames relevant to conservation planning. Therefore, the Petitioners contend that the new genetic information indicates that spring-run Chinook salmon in the UKTR Basin satisfy the criteria for a species to be considered an ESU because: (1) They are substantially reproductively isolated, and (2) they represent an important component in the evolutionary legacy of the species. We have reviewed the new genetic information and find that a reasonable person may conclude that spring-run Chinook salmon in the UKTR Basin would qualify as an ESU pursuant to our ESU Policy.

Petition Finding

After reviewing the information contained in the petition, as well as information readily available in our files, we conclude the petition presents substantial scientific information indicating the petitioned actions to list as threatened or endangered the UKTR Chinook salmon ESU or, alternatively, to create a new ESU to describe spring-run Chinook salmon in the UKTR Basin and list the new ESU as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of the UKTR Chinook salmon ESU. During our status review, we will first consider the request to designate a new ESU to describe spring-run Chinook salmon in the UKTR Basin in light of our ESU Policy (56 FR 58612; November 20, 1991). If we determine that the spring-run component qualifies as a separate ESU, then we will evaluate its status to determine whether it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. Otherwise, we will evaluate the status of the existing UKTR Chinook salmon ESU to determine if it warrants listing. As required by section 4(b)(3)(B) of the ESA, we will publish a finding as to whether listing an ESU as endangered or threatened is warranted.

Information Solicited

To ensure that our status review is informed by the best available scientific and commercial information, we are opening a 60-day public comment period to solicit information on Chinook salmon in the UKTR Basin. We also solicited information on Chinook salmon in the UKTR Basin with our 90-day finding on the previous petition (76 FR 20302; April 12, 2011). Therefore, please do not re-submit information submitted in response to that previous finding. We request information from the public, concerned governmental agencies, Native American tribes, the scientific community, agricultural and forestry groups, conservation groups, fishing groups, industry, or any other interested parties concerning the current and/or historical status of Chinook salmon in the UKTR Basin. Specifically, we request information regarding: (1) Species abundance; (2) species productivity; (3) species distribution or population spatial structure; (4) patterns of phenotypic, genotypic, and life history diversity; (5) habitat conditions and associated limiting factors and threats; (6) ongoing or planned efforts to protect and restore the species and their habitats; (7) information on the adequacy of existing regulatory mechanisms, whether protections are being implemented, and whether they are proving effective in conserving the species; (8) data concerning the status and trends of identified limiting factors or threats; (9) information on targeted harvest (commercial and recreational) and bycatch of the species; (10) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes; and (11) information concerning the impacts of environmental variability and climate change on survival, recruitment, distribution, and/or extinction risk.

We are also requesting information on areas that may qualify as critical habitat for Chinook salmon in the UKTR Basin. Please identify: Physical and biological features essential to the conservation of the species that may require special management considerations; areas occupied by the species containing those physical and biological features; and unoccupied areas essential for conservation of the species (16 U.S.C. 1533(a)(3)(A); 50 CFR 424.12).

We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

References Cited

The complete citations for the references used in this document can be obtained by contacting NMFS (See FOR FURTHER INFORMATION CONTACT) or on our web page at: www.westcoast.fisheries.noaa.gov.

Start Authority

Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

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Dated: February 21, 2018.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

End Signature End Supplemental Information

[FR Doc. 2018-03906 Filed 2-26-18; 8:45 am]

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