Proposed Rule2023-26852
Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chinook Salmon on the Washington Coast as Threatened or Endangered Under the Endangered Species Act
Primary source
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Published
December 7, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, announce a 90-day finding on a petition to list spring-run Chinook salmon (Oncorhynchus tshawytscha) on the Washington Coast (WC) as threatened or endangered under the Endangered Species Act (ESA) or, alternatively, list the existing WC Chinook salmon Evolutionarily Significant Unit (ESU) as currently defined (inclusive of all run types) as threatened or endangered under the ESA. The petition also requests that we designate critical habitat concurrently with the listing. We find that the petition presents substantial scientific or commercial information indicating the petitioned action to list may be warranted. We will conduct an ESU analysis and status review to determine whether the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data, including traditional ecological knowledge pertaining to Chinook salmon that spawn north of the Columbia River and west of the Elwha River from any interested party.
Full Text
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<title>Federal Register, Volume 88 Issue 234 (Thursday, December 7, 2023)</title>
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[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85178-85184]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26852]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 231201-0285; RTID 0648-XR129]
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List Chinook Salmon on the Washington Coast as Threatened or
Endangered Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: 90-Day petition finding, request for information, and
initiation of status review.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list
spring-run Chinook salmon (Oncorhynchus tshawytscha) on the Washington
Coast (WC) as threatened or endangered under the Endangered Species Act
(ESA) or, alternatively, list the existing WC Chinook salmon
Evolutionarily Significant Unit (ESU) as currently defined (inclusive
of all run types) as threatened or endangered under the ESA. The
petition also requests that we designate critical habitat concurrently
with the listing. We find that the petition presents substantial
scientific or commercial information indicating the petitioned action
to list may be warranted. We will conduct an ESU analysis and status
review to determine whether the petitioned action is warranted. To
ensure that the status review is comprehensive, we are
[[Page 85179]]
soliciting scientific and commercial data, including traditional
ecological knowledge pertaining to Chinook salmon that spawn north of
the Columbia River and west of the Elwha River from any interested
party.
DATES: Scientific and commercial data pertinent to the petitioned
action must be received by February 5, 2024.
ADDRESSES: You may submit scientific and commercial data relevant to
our review of the status of Chinook salmon on the WC, identified by
``Washington Coast Chinook Salmon Petition'' or by the docket number
NOAA-NMFS-2023-0148, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2023-0148 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
<bullet> Mail or Hand-Delivery: Protected Resources Division, West
Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR
97232. Attn: Shivonne Nesbit.
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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Electronic copies of the petition and related materials are
available from the NMFS website at <a href="https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act">https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act</a>.
FOR FURTHER INFORMATION CONTACT: Shivonne Nesbit, NMFS West Coast
Region, at <a href="/cdn-cgi/l/email-protection#c4b7acadb2abaaaaa1eaaaa1b7a6adb084aaaba5a5eaa3abb2"><span class="__cf_email__" data-cfemail="f1829998879e9f9f94df9f9482939885b19f9e9090df969e87">[email protected]</span></a>, (503) 231-6741; or Margaret
Miller, NMFS Office of Protected Resources, at
<a href="/cdn-cgi/l/email-protection#b7dad6c5d0d6c5d2c399df99dadedbdbd2c5f7d9d8d6d699d0d8c1"><span class="__cf_email__" data-cfemail="dab7bba8bdbba8bfaef4b2f4b7b3b6b6bfa89ab4b5bbbbf4bdb5ac">[email protected]</span></a>, (301) 427-8457.
SUPPLEMENTARY INFORMATION:
Background
On July 17, 2023, the Secretary of Commerce received a petition
from the Center for Biological Diversity and Pacific Rivers (hereafter,
the Petitioners) to list the spring-run Chinook salmon on the WC as a
threatened or endangered ESU under the ESA or, alternatively, list WC
Chinook salmon (inclusive of all run types) as a threatened or
endangered ESU. The Petitioners also request the designation of
critical habitat concurrent with ESA listing.
Previously, in 1999, we identified the WC Chinook salmon ESU as
comprised of coastal populations of spring-, summer- and fall-run
Chinook salmon spawning north of the Columbia River and west of the
Elwha River and determined that the ESU did not warrant listing as
threatened or endangered under the ESA (63 FR 14308, March 24, 1999).
The Petitioners are requesting that spring-run Chinook salmon on the WC
be considered as a separate ESU and listed as threatened or endangered.
The Petitioners assert that new research into the genomic basis for
premature migration in salmonids demonstrates that significant genetic
differences underlie the spring- and fall-run life history types, and
that the unique evolutionary lineage of spring-run Chinook salmon
warrants their listing as a separate ESU. The petition includes an
overview of new research into the genomic basis for premature migration
in salmonids, as well as general biological information about spring-
run Chinook salmon on the WC including their distribution and range,
life history characteristics, habitat requirements, as well as basin-
level population status and trends and factors contributing to the
populations' status. The Petitioners assert that spring-run Chinook
salmon are facing existential threats, and therefore, if NMFS does not
delineate and list the spring-run WC Chinook salmon population as
threatened and endangered under the ESA, the current WC Chinook salmon
ESU that includes spring-, summer- and fall-run populations should be
listed as threatened or endangered under the ESA. Copies of the
petition are available as described above (see ADDRESSES).
ESA Statutory, Regulatory, and 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 makes 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 data. In such cases, we conclude the review with a finding
as to whether 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 Pacific salmon populations 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 WC Chinook salmon ESU in 1999 (64 FR 50394,
September 16, 1999), and we use it exclusively for defining DPSs 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, or DPS 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
[[Page 85180]]
sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)).
Pursuant to the ESA and our implementing regulations, we determine
whether species are threatened or endangered based on any one or a
combination of the following five 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 the Services (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 petitioner'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 consider the information described in sections 50
CFR 424.14(c), (d), and (g) (if applicable), and information readily
available at the time the determination is made Sec. 424.14(h)(1)(ii).
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 (Sec. 424.14(h)(1)(ii)). 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(h)(1)(ii) and 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 analysis not previously considered. See 50 CFR
424.14(h)(1)(iii).
During 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
Petitioner's 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 petitioner's
assertions. In other words, conclusive information indicating that 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
[[Page 85181]]
warrant protection under the ESA. Broad statements about generalized
threats to the species, or identification of factors that could
negatively impact a species, alone, do not constitute substantial
information indicating that listing may be warranted. We look for
information indicating 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.
Many petitions identify risk classifications made by
nongovernmental organizations, such as the International Union for
Conservation of Nature (IUCN), the American Fisheries Society, or
NatureServe, as evidence of extinction risk for a species. Risk
classifications by such organizations or made under other Federal or
State statutes may be informative, but such classification alone may
not provide the rationale for a positive 90-day finding under the ESA.
For example, as explained by NatureServe, their assessments of a
species' conservation status do ``not constitute a recommendation by
NatureServe for listing under the U.S. Endangered Species Act'' because
NatureServe assessments ``have different criteria, evidence
requirements, purposes and taxonomic coverage than government lists of
endangered and threatened species, and therefore these two types of
lists should not be expected to coincide'' (<a href="https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories">https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories</a>). Additionally, species classifications
under IUCN and the ESA are not equivalent; data standards, criteria
used to evaluate species, and treatment of uncertainty are also not
necessarily the same. Thus, when a petition cites such classifications,
we will evaluate the source of information that the classification is
based upon in light of the standards on extinction risk and impacts or
threats discussed above.
Previous Federal Actions
On March 9, 1998, following the completion of a comprehensive
status review of Chinook salmon (Oncorhynchus tshawytscha) populations
in Washington, Oregon, Idaho, and California, we identified a total of
15 ESUs of Chinook salmon and published a proposed rule to list 7
Chinook salmon ESUs as threatened or endangered under the ESA (63 FR
11482). We also identified the WC Chinook salmon ESU as comprised of
coastal populations of spring-, summer- and fall-run Chinook salmon
spawning north of the Columbia River and west of the Elwha River. We
did not propose to list the WC ESU, concluding that the ESU is
distributed among a relatively large number of populations, most of
which are large enough to avoid serious genetic and demographic risks
associated with small populations. Thus, we made the determination that
the ESU was neither in danger of extinction nor likely to become
endangered in the foreseeable future (63 FR 11482, 11494, March 9,
1998).
Evaluation of Petition and Information Readily Available in NMFS' Files
The petition contains information and assertions in support of
listing Chinook salmon under the two alternatives requested by the
Petitioners. As discussed above, based on biological, genetic, and
ecological information compiled and reviewed as part of a previous West
Coast Chinook salmon status review (Myers et al., 1998), we included
all spring-, summer- and fall-run Chinook salmon populations in river
basins north of the Columbia River and west of the Elwha River in the
WC Chinook salmon ESU (63 FR 11482, March 9, 1998). While run-timing
was recognized as having a heritable basis, review of genetic data at
that time did not identify clear sub-groups associated with migration
timing within the WC Chinook salmon ESU. Spring- and fall-run Chinook
salmon were found to be separate ESUs in other areas (e.g., in the
upper Columbia River, Snake River, and Sacramento River drainages).
However, in coastal areas, life-history and genetic differences between
runs were found to be modest, with spring- and fall-run fish exhibiting
similar ocean distribution patterns and genetic characteristics (Myers
et al., 1998).
The Petitioners present new information on the genomics of run-
timing and assert that the spring-run populations of the WC Chinook
salmon ESU meet the two ESU criteria outlined by the above-described
ESU policy. Relying on inferred evidence from outside the WC ESU, the
Petitioners assert that spring-run Chinook salmon in the WC ESU have
been sufficiently isolated from fall-run Chinook salmon for
evolutionarily important differences to have arisen and been
maintained. The Petitioners present genetic evidence from populations
outside the WC Chinook salmon ESU to suggest the spring-run Chinook
salmon populations on the WC may qualify as a separate ESU from the
fall-run populations. The Petitioners assert that findings from
recently published articles on the evolutionary basis of premature
migration in Pacific salmon (Prince et al., 2017; Narum et al., 2018;
and Thompson et al., 2019; Koch and Narum 2020; Thompson et al., 2020;
Willis et al., 2021; Waples et al., 2022) indicate that spring-run
Chinook salmon in the WC ESU should be considered a separate ESU.
Specifically, Prince et al., (2017) reported on a survey of genetic
variation between mature (fall-run) and premature (spring- and summer-
run) migrating populations of steelhead and Chinook salmon from
California, Oregon, and Washington. Thompson et al., (2019) provide
additional information about genetic differentiation between mature-
and premature-migrating Chinook salmon in the Rogue River, Oregon, and
in the Klamath River, California, particularly in response to
anthropogenic changes. The Petitioners suggest that the results of
these studies indicate that premature migration arose from a single
evolutionary event within the species and, if lost, is not likely to
re-evolve in time frames relevant to conservation planning. Petitioners
further assert that spring-run Chinook salmon have a unique
evolutionary history that is distinct from fall-run Chinook salmon in
the same watersheds (Prince et al., 2017; Thompson et al., 2020).
The Petitioners also assert that the Chinook salmon spring-run life
history represents an important component of the evolutionary legacy of
the species. In support of this assertion, the Petitioners describe
specific ecological (Quinn et al., 2016) and evolutionary benefits of
the life history variation provided by spring-run populations within
the WC Chinook salmon ESU. The Petitioners describe how spring-run
Chinook salmon tend to spawn higher up in the watershed than fall-run
and how this adds to the spatial distribution of the species. We find
that the petition presents scientific or commercial information
indicating that spring-run Chinook salmon on the WC may qualify as an
ESU pursuant to our ESU Policy.
WC Chinook Salmon Status and Trends
The Petitioners' listing request is focused on spring-run Chinook
salmon declines in abundance, and they provide their analysis on the
viability of and threats facing spring-run populations. Less
information is provided regarding the fall-run populations.
The Petitioners assert that spring-run Chinook salmon populations
in the WC ESU have suffered significant declines in numbers from
historical abundance. The Petitioners cited findings by Nicholas and
Hankin (1989) that all spring-run Chinook salmon populations on the WC
are depressed from historical
[[Page 85182]]
population sizes. Historically, spring-run Chinook salmon were abundant
in the Chehalis, Quinault, Queets, and Hoh basins on the WC. The
Petitioners use estimated in-river run size data from the Pacific
Fishery Management Council (PFMC 2018) for the Chehalis, Queets, and
Hoh basins and unpublished data from the Quinault Indian Nation for the
Upper Quinault River. For all four basins, the data purportedly
demonstrate downward population trends for spring-run Chinook salmon.
The Petitioners also cite catch data from Tribal gillnet fishery
records from 1953-1970 provided by the Washington Department of Fish
and Wildlife (WDFW) and assert that the spring-run populations declined
more rapidly than the fall-run populations during this time period. The
petitioners attribute this decline to a rapid rise in the ocean salmon
fisheries, both commercial and recreational. In particular, they note
the growth in the troll fisheries off the WC as a factor contributing
to the decline of all populations of WC Chinook spring-run salmon
populations. The Petitioners assert that the spatial and temporal
patterns of the fisheries (commercial, recreational, and tribal) are
likely a major factor that affected the spring-run populations of the
WC Chinook salmon.
A previous West Coast Chinook salmon status review (Myers et al.,
1998) concluded that the long-term trends for most populations in this
WC ESU were upward; however, several smaller populations (associated
run types is unclear) were experiencing sharply downward trends. The
status review concluded that fall-run populations were predominant and
tended to be at a lower risk than spring- or summer-runs. The status
review concluded that Chinook salmon in this ESU were not in danger of
extinction nor were they likely to become so in the foreseeable future.
However, it has been over 20 years since this status review was
published and recent information on its status is incomplete.
The data in our files indicates that the WC Chinook salmon ESU
consists of numerous fall-run populations and a smaller number of
spring/summer-run populations. Overall abundance has been variable over
the past several decades, but most populations do not have significant
trends. The spring/summer-run populations make up about 10 percent of
the total ESU abundance, and most populations are small with a few
hundred or fewer spawners annually. If the spring/summer runs on the WC
were to be considered a separate ESU, the extinction risk associated
with these small populations would warrant evaluation. If both spring/
summer- and fall-run were to be considered part of the same ESU, the
contribution of run-timing diversity to that ESU's viability would
warrant further evaluation based on updated science related to the
genetic basis of run-timing.
Analysis of ESA Section 4(a)(1) Factors for Washington Coast Chinook
Salmon
The Petitioners assert that all five ESA section 4(a)(1) factors
contribute to the need to list spring-run Chinook salmon on the WC or,
alternatively, the WC Chinook salmon ESU (inclusive of all run types)
as a threatened or endangered species under the ESA. While the petition
presents information on each of the ESA section 4(a)(1) factors, we
find that the information presented, including information within our
files, regarding the destruction, modification, or curtailment of the
species habitat or range; the inadequacy of existing regulatory
mechanisms; and other natural or manmade factors affecting the species
continued existence is substantial enough to make a determination that
a reasonable person would conclude that the species may warrant listing
as endangered or threatened based on these factors alone. As such, we
focus our below discussion on the evidence and present our evaluation
of the information regarding these factors and their impact on the
extinction risk of the species. Each of these factors is discussed in
further detail below.
The Present or Threatened Destruction, Modification, or Curtailment of
Its Habitat or Range
The Petitioners assert that WC Chinook salmon face numerous threats
to suitable habitat, including impacts from historical and ongoing
logging practices, road development, dams, water diversions, migration
barriers, pollutants, and channelization.
The Petitioners assert that habitat degradation due to logging and
road development alters streamflow, sediment loading, sediment
transport and deposition, channel stability and shape, substrate
composition, stream temperatures, water quality, and riparian
conditions within a watershed. This is supported by similar conclusions
in NMFS' 1998 determination for the WC chinook salmon ESU that
evaluated the status of habitat threats over an area within the range
of the WC Chinook salmon ESU and concluded that degraded habitat
conditions in this area continue to be of concern, largely related to
forestry practice (63 FR 11482, March 9, 1998). The Petitioners
specifically assert that extensive logging can be harmful to Chinook
salmon populations by causing depletion of summer and early fall
streamflows needed for adult migration, holding, spawning, and rearing.
Perry and Jones (2017) found that after an initial delay, base
streamflows were substantially decreased for decades in logged areas as
compared to streamflows under pre-logging conditions.
The Petitioners further assert that large and small dams, water
diversions, and other migration barriers impact WC Chinook salmon by
significantly reducing the amount of spawning and rearing habitat,
altering downstream river flows and temperature regimes, and delaying
and impeding migration. Petitioners specifically describe dams in the
Chehalis River that were built without fish passage and that have
blocked access to historical habitats.
The Petitioners also highlight other ongoing anthropogenic
disturbances that may cause habitat degradation including pollutants
and channelization. The Petitioners cite numerous studies (Sedell and
Froggatt 1984, Hulse et al., 2002, and Lestelle et al., 2005) that
describe habitat impacts including decreased habitat complexity,
decreased summer flows and water quality, and increased water
temperatures.
The Petitioners cite Myers et al., (1998), noting that all basins
in the ESU were affected by habitat degradation, largely related to
forestry practices, and that only the Queets and Quinault River basins
were determined not to have substantial habitat problems. While the
Petitioners provide general descriptions of ongoing habitat degradation
from various sources, they do not provide specific information that
would suggest that habitat conditions overall have markedly
deteriorated since our last review in the 1990s. In fact, while we know
that individual instances of habitat modification have taken place
since the 1990s, over the past couple of decades conditions may have
improved as a result of new forest harvest regulations, fish passage
requirements, and habitat restoration efforts. However, it is
reasonable to assume that the persistence of degraded habitat
conditions may be exerting sustained negative effects on Chinook salmon
on the WC, and disproportionately so on spring-run populations.
Consequently, changes in overall habitat condition and distribution are
inconclusive and may be open to interpretation.
Inadequacy of Existing Regulatory Mechanisms
The Petitioners assert that existing international, Federal and
State regulatory mechanisms are not
[[Page 85183]]
sufficient to protect and ensure recovery of spring-run Chinook salmon
occurring on the WC and their habitat. With respect to international
regulatory mechanisms, the Petitioners assert that the Pacific Salmon
Treaty does not require consideration of the condition of individual
populations or the impacts on spring-run Chinook salmon populations
from the WC in the determination of harvest allocations. The
Petitioners state that, at the Federal level, the National
Environmental Policy Act (NEPA), the ESA, the National Forest
Management Act and Northwest Forest Plan, Olympic National Park, the
Clean Water Act (CWA), and the Federal Energy Regulatory Commission
(FERC) do not adequately protect spring-run Chinook salmon on the WC.
Petitioners note that although the NEPA process requires Federal
agencies to identify potential environmental impacts, NEPA analyses do
not prohibit agencies from choosing project alternatives that may
adversely affect spring-run Chinook salmon on the WC or their habitats.
As a result, Petitioners assert that the NEPA process often affords
little to no protections or alternatives to avoid harm to spring-run
Chinook salmon. The Petitioners cite a proposed new dam on the mainstem
of the Chehalis River as an example of a project that may adversely
affect spring-run Chinook salmon on the WC. The proposed dam is
designed to hold back flows and create a temporary reservoir when flows
exceed a threshold level to ameliorate flooding downstream. When
formed, the temporary reservoir would inundate more than 6 miles of the
upper mainstem Chehalis River and the lower reaches of several major
tributaries. The area of inundation would encompass historical spring-
run Chinook salmon spawning grounds in the upper river (Phinney and
Bucknell 1975; Weyerhaeuser 1994; Lestelle et al., 2019). The
Petitioners note that, under section 404 of the Clean Water Act, the
U.S. Army Corps of Engineers determined that the proposed dam project
may have significant impacts on the environment and released a draft
environmental impact statement (EIS) on the proposed dam project in
2020. The draft EIS used an Ecosystem Diagnosis and Treatment model
(McConnaha et al., 2017; ACOE 2020) to analyze the potential impacts of
the proposed dam and concluded that during the 5-year construction
period Chinook salmon returning to the upper mainstem river could be
reduced by up to 80 percent. The draft EIS also concluded that impacts
from the proposed dam at a basin-wide scale were predicted to be
minimal for most modeled species and that habitat in the upper
watershed above Crim Creek is currently beneficial salmonid habitat
that can provide a buffer against future potential degradation (ACOE
2020). The final EIS has not been completed.
Petitioners assert that the spring-run Chinook salmon on the WC
could be better protected under the ESA through Habitat Conservation
Plans (HCP). Petitioners assert that the National Forest Management Act
does not effectively limit the long-term impacts on salmonid habitat in
Washington coastal watersheds from activities like logging, road-
building, and mining. In 1990, the USFS adopted a Land and Resource
Management Plan (LRMP) for the Olympic National Forest, which aimed to
increase fish production potential through habitat enhancement
projects. In 1998, the LRMP was amended to be consistent with the
Northwest Forest Plan that includes an Aquatic Conservation Strategy
(ACS) intended to maintain and protect native fish and their habitat
(Thomas et al., 1993; Reeves et al., 2006). The ACS included
designation of riparian management zones, activity-specific management
standards, watershed assessments, watershed restoration, and
identification of key watersheds. Among other things, the ACS requires
the USFS to ``maintain and restore the sediment regime under which
aquatic ecosystems evolved'' (USDA 1994). The Petitioners assert that
there is little evidence to suggest that the habitat improvements
described in the LRMP or ACS have resulted in increased salmon
production.
Petitioners assert further that portions of spring-run Chinook
salmon populations spawn and rear within the Olympic National Park,
benefiting from relatively pristine aquatic habitat conditions
(Halofsky et al., 2011). However, maintenance and repair of park roads
adjacent to rivers have caused significant impacts on fish and aquatic
life. Petitioners also note that spring-run Chinook salmon habitat in
the park is still impacted by legacy effects of past logging and roads,
leading to ongoing impairment of salmonid habitat, and that logging
roads and associated channel crossings are still major issues for fish
habitat quality (Halofsky et al., 2011).
Petitioners call attention to Section 404 of the CWA as not
adequately protecting spring-run Chinook salmon on the WC, particularly
with respect to nonpoint sources of pollution like logging and farming
(WDOE 2016; NIFWC 2020). The Petitioners assert that, in many areas,
the Environmental Protection Agency-approved CWA water quality
standards are not being met. In addition, Total Maximum Daily Loads
(TMDLs) have not yet been developed and approved for many water bodies
where the salmon are found; as a result, nonpoint source pollution is
driving water quality issues in those water bodies.
Petitioners assert that FERC has provided inadequate protection for
anadromous fish during its licensing, and relicensing processes.
Petitioners use the Wynoochee Dam in the Chehalis River basin as an
example. Wynoochee Dam was constructed in 1972 for flood control,
irrigation, and industrial water storage; a powerhouse was added by
Tacoma Power for hydroelectric energy in 1994. A FERC permit was issued
for the dam in 1987, at which time there were no federally listed
species. Tacoma Power operates a fish collection facility downstream,
but the Petitioners assert that there are no requirements to ensure
adequate downstream flows or water quality for the benefit of salmonids
downstream of the dam.
The Petitioners reference several Washington state laws,
initiatives, plans, and programs. This includes Washington state laws
for salmon recovery and fish passage, the Washington Forest Practices
Act, and the Washington State Environmental Policy Act; the Salmon
Recovery Funding Board and affiliated Salmon Recovery Funding Program;
the Grays Harbor Basin Salmon Management Plan; the Chehalis Basin
Strategy; the Washington Coast Sustainable Salmon Plan; the State
Wildlife Action Plan; and the salmon monitoring program conducted by
WDFW and tribal biologists. However, the Petitioners assert that,
despite the extensive efforts of these state and tribal management
entities to protect the fisheries-related resources of the Washington
coastal river basins, the wild spring-run Chinook salmon populations in
those basins are in decline and are threatened with extinction.
We conclude that regulations are dynamic and are frequently
modified over time. In general, since the listing of multiple species
of salmon and steelhead along the West Coast in the 1990s, regulations
have been revised to better protect these anadromous species. However,
to the degree that habitat degradation can be an indicator of
regulatory inadequacy, and given that we have found above that habitat
degradation may be a threat to WC Chinook salmon, it stands to reason
that regulatory mechanisms may be inadequate to protect WC Chinook
salmon.
[[Page 85184]]
Other Natural or Manmade Factors Affecting Its Continued Existence
Climate Change and Ocean Conditions
The Petitioners assert climate change is impacting the quantity and
quality of habitat for WC Chinook salmon, especially spring-run
populations, with the melting of glaciers on the Olympic Peninsula,
changes in precipitation patterns, lower summer stream flows, higher
water temperatures, and reduction in food due to changing ocean
conditions. Citing the Intergovernmental Panel on Climate Change (IPCC)
2021 report, Petitioners call out the last four decades of successive
air temperature increases, and the projected rise in global
temperatures. Petitioners also assert that climate change will
profoundly affect the Pacific Northwest. With a focus on the Olympic
Peninsula, impacts such as warming, sea level rise, erosion, and
changes in stream flows will not be uncommon (Halofsky et al., 2011;
Dalton et al., 2016). Petitioners state freshwater habitat changes due
to climate change will adversely affect WC Chinook salmon, especially
spring-run populations. Citing Halofsky et al., 2011, the Petitioners
note it is uncertain whether salmon populations can adapt quickly
enough to cope with the combined effects of anthropogenic climate
change. Using a 2011 NMFS study as support, the Petitioners also assert
that throughout the life cycle of salmon along the WC, the main
predicted effects include warmer, drier summers, reduced snowpack,
lower summer flows, higher summer stream temperatures, and increased
winter floods. The Petitioners assert that climate change is altering
offshore and nearshore habitat of the WC including warming sea surface
temperatures (Mote and Salathe 2010; Miller et al., 2013; USFWS 2020),
upwelling pattern changes (Miller et al., 2013), and increased
acidification (Miller et al., 2013) leading to limited ocean
productivity for salmon (Ford 2022).
The Petitioners assert that ongoing threats of poor ocean
conditions and climate change are likely to threaten the continued
existence of WC Chinook salmon, including spring-run populations. As
described in NMFS' 5-year reviews (Stout et al., 2012; NMFS 2016; NMFS
2022) variability in ocean conditions in the Pacific Northwest is a
concern for the persistence of WC salmon because it is uncertain how
populations will fare in periods of poor ocean survival when freshwater
and estuarine habitats are degraded. Petitioners also assert there are
correlations between oceanic changes and salmon abundance in the
Pacific Northwest, and concerns about how prolonged periods of poor
marine survival due to unfavorable ocean conditions may impact the
population abundance, productivity, spatial structure, and diversity of
WC salmonids (Stout et al., 2010).
Petition Finding
After reviewing the information contained in the petition, as well
as information readily available in our files, we conclude that
substantial scientific and commercial information indicates that the
petitioned action to list spring-run Chinook salmon on the WC as
threatened or endangered under the ESA or, alternatively, list the WC
Chinook salmon ESU (inclusive of all run types) as a threatened or
endangered species under the ESA may be warranted. Therefore, in
accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing
regulations (50 CFR424.14(h)(2)), we will commence a status review of
Chinook salmon on the WC. During our status review, we will include an
ESU analysis to determine the appropriate ESU(s) and evaluate the ESU
containing spring-run fish to determine if listing as a threatened or
endangered species is warranted. As required by section 4(b)(3)(B) of
the ESA, within 12 months of the receipt of the petition, we will make
a finding as to whether listing WC Chinook salmon under the ESA is
warranted.
Information Solicited
To ensure that our status reviews are informed by the best
available scientific and commercial data, we are opening a 60-day
public comment period to solicit relevant new information since the
1998 status review (Myers et al., 1998) or information not considered
before on populations of Chinook salmon within the previously
identified WC Chinook salmon ESU, which consists of Chinook salmon that
spawn north of the Columbia River and west of the Elwha River. 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 on the WC. 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; and traditional ecological knowledge related to any of
the previous 11 categories of information regarding this species.
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, and any
association, institution, or business that the person represents.
References
A complete list of all references cited herein is available upon
request (See FOR FURTHER INFORMATION CONTACT).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 4, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-26852 Filed 12-6-23; 8:45 am]
BILLING CODE 3510-22-P
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