Endangered and Threatened Species; Proposed Endangered Status for a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo salar) in the Gulf of Maine

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 991108299-9299-01; I.D. 102299A]

RIN 0648-XA39

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF80

Endangered and Threatened Species; Proposed Endangered Status for

a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo

salar) in the Gulf of Maine

AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic

and Atmospheric Administration (NOAA), Commerce; Fish and Wildlife

Service (FWS), Interior.

ACTION: Proposed Rule, notice of public hearing.

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SUMMARY: NMFS and FWS (the Services) have completed a status review of

U.S. Atlantic salmon populations and have determined that a distinct

population segment (DPS) of Atlantic salmon in the Gulf of Maine is in

danger of extinction. The Services have reviewed the status of the

species and the efforts being made to protect the species and are

proposing to place the Gulf of Maine DPS of Atlantic salmon on the list

of endangered species under the Endangered Species Act of 1973, as

amended (ESA). The Services have determined that the species' status

has declined since the December 1997 determination that listing was not

warranted. Specifically, documented adult returns have remained low

despite projections of increased marine survival, presmolt survival has

been found to be lower than previously estimated, the detection of a

new disease led to the destruction of the Pleasant River broodstock, a

disease from Europe has affected the Canadian aquaculture industry and

spread toward the U.S. border, the use of non-North American strains of

Atlantic salmon in the U.S. aquaculture industry has increased,

aquaculture escapees continue to be detected in the wild, and salmon

habitat continues to be threatened by water withdrawal and

sedimentation. If this proposed listing is finalized, the protective

measures of the ESA will extend to the Gulf of Maine DPS of Atlantic

salmon, and a recovery plan will be prepared and implemented.

DATES: Comments on this proposal and on the July 1999 Status Review

announced in the October 19, 1999, Federal Register (64 FR 56297) must

be received by February 15, 2000. A public hearing will be held at 6:00

pm on January 19, 2000.

ADDRESSES: Send all comments and materials concerning this proposed

rule and the 1999 Status Review to the Chief, Division of Endangered

Species, U.S. Fish and Wildlife Service, 300 Westgate Center Drive,

Hadley, Massachusetts 01035, or the Endangered Species Program

Coordinator, National Marine Fisheries Service, 1 Blackburn Drive,

Gloucester, Massachusetts 01930. The public hearing location is in the

cafeteria of Ellsworth Middle School, 20 Forrest Avenue, Ellsworth,

Maine 04605. The 1999 Status Review may be obtained by contacting

either of the above individuals or downloaded from the following site:

http://news.fws.gov/salmon/asalmon.html. Please note that electronic

mail or internet site comments will not be accepted.

FOR FURTHER INFORMATION CONTACT: Mary Colligan, NMFS, at the address

above (978-281-9116) or Paul Nickerson, FWS, at the address above (413-

253-8615).

SUPPLEMENTARY INFORMATION:

Background

In 1991, the FWS designated Atlantic salmon in five rivers in

``Downeast'' Maine (the Narraguagus, Pleasant, Machias, East Machias

and Dennys Rivers) as Category 2 candidate species under the ESA (56 FR

58804, November 21, 1991). This designation simply indicated that the

FWS had determined that listing was possibly appropriate but that

further biological information was needed to support a proposed rule to

list the species. The FWS then began working more vigorously with the

NMFS as well as with the State of Maine and private agencies to reverse

the decline in salmon abundance. During that same period, the NMFS was

conducting an exhaustive 5-year study of the Narraguagus River,

demonstrating that spawning and nursery habitat appeared suitable and

should produce more fish given adequate escapement levels.

The Services received identical petitions in October and November

of 1993 to list the Atlantic salmon (Salmo salar) throughout its

historical range in the contiguous United States under the ESA. The

Services found on January 20, 1994 (59 FR 3067), that the petition

presented substantial scientific

[[Page 62628]]

information indicating that a listing may be warranted. A biological

review team (BRT) consisting of three members from each Service was

appointed to review the petition and prepare a formal status review.

The Services completed a status review of the species in January

1995 and concluded that the available biological evidence indicated

that the species described in the petition, that is, Atlantic salmon

throughout its range in the United States, did not meet the definition

of ``species'' under the ESA. Therefore, the Services concluded that

the petitioned action to list Atlantic salmon throughout its historic

U.S. range was not warranted (60 FR 14410, March 17, 1995). In the same

notice, the Services determined that a DPS that consists of populations

in seven rivers (the Dennys, East Machias, Machias, Pleasant,

Narraguagus, Ducktrap and Sheepscot Rivers) was in danger of

extinction. On September 29, 1995, after reviewing the information in

the status review, as well as State and foreign efforts to protect the

species, the Services proposed to list the seven rivers DPS as a

threatened species under the ESA (60 FR 50530, September 29, 1995). The

proposed rule contained a special rule under section 4(d) of the ESA,

which would have allowed for a State plan, approved by the Services, to

define the manner in which certain activities could be conducted

without violating the ESA.

Immediately following the publication of the proposed rule, the

Governor of Maine created a Task Force to draft a conservation plan for

the species. The Task Force had subgroups focusing on agriculture,

aquaculture, forestry, and recreational fishing. The Task Force created

a draft conservation plan and held public hearings to gain additional

input from the public. In March of 1997, the State submitted its

Atlantic Salmon Conservation Plan for Seven Maine Rivers (Conservation

Plan) to the Services.

Subsequent to the publication of the listing proposal, the Services

received several requests for public hearings but were unable to

conduct them because of Federal furloughs and legislative and funding

restrictions. Once the restrictions were lifted in 1996, three hearings

on the proposed rule were held in Augusta, Ellsworth, and Machias,

Maine, on September 17, 18 and 19, 1996, respectively.

On May 23, 1997, the Services reopened the public comment period on

the proposed listing rule for 30 days to solicit public input on the

Conservation Plan (62 FR 28413). The intent was to ensure that the

public had opportunity for input during all phases of the listing

process. The Conservation Plan represented new information not

previously considered.

The Services reviewed information submitted from the public and

current information on population levels and, on December 18, 1997,

withdrew the proposed rule to list the seven rivers DPS of Atlantic

salmon as threatened under the ESA (62 FR 66325). In that withdrawal

notice, the Services redefined the species under analysis as the Gulf

of Maine DPS to acknowledge the possibility that other populations of

Atlantic salmon could be added to the DPS if they were found to be

naturally reproducing and to have historical, river-specific

characteristics. The Services stated that they had considered the

current status of the Gulf of Maine DPS of Atlantic salmon and had

taken into account those efforts being made to protect the species,

including development of the Conservation Plan, the extent of

implementation of the Conservation Plan to date, private and Federal

actions to restore the species, and international efforts to control

ocean harvest through the North Atlantic Salmon Conservation

Organization (NASCO). Based on this review, the Services determined

that the Gulf of Maine DPS was not likely to become endangered in the

foreseeable future and that, therefore, an ESA listing was not

warranted.

In the 1997 withdrawal notice, the Services outlined three

circumstances under which the process for listing the Gulf of Maine DPS

of Atlantic salmon under the ESA would be reinitiated: (1) An emergency

which poses a significant risk to the well-being of the Gulf of Maine

DPS is identified and not immediately and adequately addressed; (2) the

biological status of the Gulf of Maine DPS is such that the DPS is in

danger of extinction throughout all or a significant portion of its

range; or (3) the biological status of the Gulf of Maine DPS is such

that the DPS is likely to become endangered in the foreseeable future

throughout all or a significant portion of its range.

The Services received the State of Maine 1998 Annual Progress

Report on implementation of the Conservation Plan in January 1999. This

first annual report was made available for public review and comment on

January 20, 1999, and the comment period remained open until March 8,

1999 (64 FR 3067). The Services reviewed all comments submitted by the

public and provided a summary of those, along with their own comments,

to the State of Maine in March 1999. The Services received a response

to the comments from the State of Maine on April 13, 1999.

In order to conduct a comprehensive review of the status of the

species and protective measures in place, the BRT was reconvened to

update the January 1995 Status Review for Atlantic salmon. Significant

developments since the 1995 status review and the 1997 determination

include the following: detection of Salmon Swimbladder Sarcoma Virus

(SSSV) which resulted in destruction of an entire broodstock for the

Pleasant River and the destruction of excess broodstock for other

rivers; continued decline in numbers of documented adult returns;

finding that juvenile survival was previously overestimated;

documentation of high mortality of outmigrating smolts; continuation of

a directed catch and release fishery despite scientific advice to the

contrary; current absence of water use management plans and State

regulations for all water withdrawals from the rivers in which the DPS

is or may be present; continued documented escapement from aquaculture

marine cages and freshwater hatcheries and the apparent increase in the

prevalence of reproductively viable non-North American strains of

Atlantic salmon; and the detection and spread of Infectious Salmon

Anemia (ISA) in Canada.

The 1999 Status Review was made available on October 19, 1999 (64

FR 56297). The findings of the 1999 Status Review have been accepted by

the Services and are summarized below. The Status Review contains a

more comprehensive discussion and complete literature citations for the

information summarized in this proposed rule.

Consideration as a ``species'' under the Endangered Species Act

The ESA defines species as ``any species of fish or wildlife or

plants, and any distinct population segment [DPS] of any species of

vertebrate fish or wildlife that interbreeds when mature.'' 16 U.S.C.

1532(15). This definition allows for the recognition of distinct

population segments at levels below taxonomically recognized species or

subspecies. To qualify as a DPS, a population (or group of populations)

of indigenous Atlantic salmon must be reproductively isolated from

conspecific populations and must be biologically significant.

Anadromous salmonines have a strong homing capability that fosters the

formation of discrete populations (stocks) exhibiting important

adaptations to local riverine ecosystems.

On February 7, 1996, the Services published a policy (61 FR 4722)

to

[[Page 62629]]

clarify the phrase ``distinct population segment'' for the purposes of

listing, delisting and reclassifying species under the ESA. This policy

(DPS Policy) identifies three elements to be considered in a decision

regarding the status of a possible DPS as endangered or threatened

under the ESA: (1) The discreteness of the population segment in

relation to the remainder of the species or subspecies to which it

belongs; (2) the significance of the population segment to the species

or subspecies to which it belongs; and (3) the conservation status of

the population segment in relation to ESA listing standards. The

conservation status for of this DPS will be discussed in relation to

the ESA listing factors.

According to the DPS Policy, a population segment may be considered

discrete if it satisfies one of the following two conditions: (1) it is

markedly separated from other populations of the same taxon as a

consequence of physical, physiological, ecological, or behavioral

factors; or (2) it is delimited by international governmental

boundaries across which there is a significant difference in control of

exploitation, management of habitat, or conservation status.

The Services examined genetic, life history, biogeographic, and

environmental information in evaluating Atlantic salmon throughout its

U.S. range. The Services used zoogeographic maps of boundaries between

areas that would likely have different selective pressures for Atlantic

salmon populations and substantial differences in riverine-marine

ecosystem structure and function. Key elements to these determinations

were: (1) spatial arrangements of river systems that create isolation,

and (2) watershed location within ecological provinces and subregions

that affect the productivity and ecology of riverine-marine ecosystem

complexes. Using zoogeographic maps, the Services determined that

historic U.S. salmon populations were minimally comprised of the

following three DPSs: the Long Island Sound DPS, the Central New

England DPS, and the Gulf of Maine DPS. As detailed in the 1999 Status

Review, the Long Island Sound DPS and the Central New England DPS have

been extirpated.

The Gulf of Maine DPS includes all naturally reproducing wild

populations of Atlantic salmon having historical, river-specific

characteristics found in a range north of and including tributaries of

the lower Kennebec River to, but not including, the mouth of the St.

Croix River at the US-Canada border. The DPS includes both early- and

late-run Atlantic salmon (Baum, 1997). Historically, the Androscoggin

River delimited the range of the DPS to the south, but populations

south of the Kennebec River have been extirpated. The population in the

mainstem Penobscot River, which is within the DPS range, is not

included in the DPS at this time because of the lack of a comprehensive

genetic survey of this stock that includes both hatchery and wild

returns. It would be premature to determine the status of the Penobscot

population in relationship to the Gulf of Maine DPS without

comprehensive genetic data. Sample collections, genetic analyses, and

biological information are still being collected by the FWS and will be

analyzed to make a final determination of the status of the Penobscot

River population relative to the coastal Atlantic salmon populations of

the Gulf of Maine DPS. Samples were collected in October 1999, and

analyses of these data should be completed in early 2000. The

tributaries of the lower Penobscot estuary (downstream of the Veazie

Dam) are considered within the DPS range, but the existence of

naturally reproducing Atlantic salmon with historical river-specific

characteristics must be confirmed before additional tributary

populations can be included in the DPS (the population in Cove Brook,

tributary to the lower Penobscot River, is already included in this

DPS).

There are at least eight rivers in the DPS range that still contain

functioning wild salmon populations, although at substantially reduced

abundance levels (Baum, 1997; King et al., 1999). The core of these

remnant populations is located in the Dennys, East Machias, Machias,

Pleasant, Narraguagus, Ducktrap, and Sheepscot Rivers. These river

systems contain the greatest amount of historic river habitat currently

accessible, averaging greater than 300,000 square meters (sq. m) of

juvenile production habitat (Baum, 1997). The smallest of these seven

populations is the Ducktrap River with 80,000 sq. m of juvenile

production habitat. Recent survey work also indicates that a naturally

reproducing population that is genetically distinct (alleles only found

in that population) remains in Cove Brook (Buckley, 1999; King et al.,

1999). This information demonstrates that Atlantic salmon can retain

unique genetic material in a relatively small drainage since juvenile

habitat area in Cove Brook is estimated at only 23,500 sq. m (Ed Baum,

Atlantic Salmon Authority (ASA), pers. comm., 1999). Surveys have also

identified juvenile Atlantic salmon to be present in other river

systems which have relatively limited juvenile production habitat such

as Bond, Togus, Passagassawaukeag, Eaton, Felts, South Branch Marsh,

Kenduskeag, and Pennamaquan Rivers (Buckley, 1999). Results from

genetic studies of fish from these and any other occupied rivers within

the DPS range will be used to determine the appropriateness of adding

these populations to the DPS.

Discreteness of the Gulf of Maine DPS of Atlantic Salmon

To examine whether the Gulf of Maine DPS of Atlantic salmon is

separate from other populations, the Services examined three major

indicators: straying of spawning fish from their natal river;

recolonization rates outside of the range of the DPS; and genetic

differences observed throughout the range of Atlantic salmon. Available

information supports the hypothesis that most straying documented for

U.S. Atlantic salmon stocks is limited to neighboring rivers within the

DPS range. North American Atlantic salmon stocks have been found to be

distinct from European stocks using both electrophoretic and

mitochondrial DNA analyses (Stahl, 1987; Bermingham et al., 1991;

Taggart et al., 1996). Recent data from King et al. (1999) further

support the differences between North American and European stocks, and

these scientists have provided analytical methods to distinguish

continent-of-origin with 100 percent accuracy. In all these studies,

genetic differences are strongly geographically patterned and, while

variation is low compared to freshwater fish, it is consistent with

results from other anadromous species (King et al., 1999). The genetic

differences between North American and European Atlantic salmon are

substantial enough that introgression of these stocks (the introduction

of a gene from one to the other) is likely to decrease the genetic

suitability of the wild stocks for survival in their natal habitat

(King et al., 1999). Separateness of the Gulf of Maine DPS and other

Atlantic salmon populations outside the DPS is strongly supported by

the following: (1) Persistence of these populations, (2) geographic

segregation; (3) limited stocking from outside the DPS; and (4) current

genetic analyses. The Services conclude that there are adequate genetic

and demographic data to demonstrate that an ecologically important

separation exists between the Gulf of Maine DPS and other populations

to the north; all naturally occurring populations south of the DPS

range have been extirpated.

The Services also conclude that while it is unlikely that any U.S.

Atlantic

[[Page 62630]]

salmon populations exist in a genetically pure native form, present

populations are descendants of these aboriginal stocks, and their

continued presence in indigenous habitat indicates that important

heritable local adaptations still exist. The conservation of the

populations of the Gulf of Maine DPS is essential because these

Atlantic salmon represent the remaining genetic legacy of ancestral

populations that were locally adapted to the rivers and streams of the

region. The Gulf of Maine DPS represents the remaining genetic legacy

of a U.S. Atlantic salmon resource that formerly extended from the

Housatonic River to the headwaters of the Aroostook River.

The northern range of the Gulf of Maine DPS is delimited not only

by the natural zoogeographical constraints on local adaptations but by

an international boundary. There are substantial differences in the

control of exploitation, management of habitat, conservation status,

and regulatory mechanisms of Atlantic salmon between the United States

and Canada (May, 1993; Baum, 1997). Management and conservation

programs in the United States and Canada have similar goals, but

differences in legislation and policy support the use of the United

States/Canada international boundary as a measure of discreteness for

the purposes of evaluating stock status. Based on the information

available, the Services conclude that the Gulf of Maine DPS of Atlantic

salmon satisfies both criteria for discreteness as outlined in the

Services' DPS Policy. Only one of these is needed to conclude that the

DPS is discrete from other populations.

Significance of the Gulf of Maine DPS of Atlantic Salmon

The second element of the Services' DPS Policy is the consideration

of the population segment's biological and ecological significance to

the taxon to which it belongs. This consideration may include, but is

not limited to, the following: persistence of the discrete population

segment in an ecological setting unusual or unique for the taxon;

evidence that the loss of the discrete population segment would result

in a significant gap in the range of a taxon; evidence that the

discrete population segment represents the only surviving natural

occurrence of a taxon that may be more abundant elsewhere as an

introduced population outside its historic range; or evidence that the

discrete population segment differs markedly from other populations of

the species in its genetic characteristics.

Riverine habitat occupied by the Gulf of Maine DPS of Atlantic

salmon is unique in that it is at the southern extent of the North

American range of Atlantic salmon (Saunders, 1981; Baum, 1997). To

survive at the extreme southern range of the species, U.S. Atlantic

salmon populations had to adapt to distinct physical and environmental

conditions (Saunders, 1981). The Services conclude that there is

substantial evidence that remnant populations of the Gulf of Maine DPS

have persisted in their native range. The loss of this DPS would result

in a significant gap in the range of this taxon, moving the range of

this population an additional degree of latitude to the north. The loss

of these populations would restrict the natural range of Atlantic

salmon to the region above the 45th parallel and beyond the borders of

the United States.

Taking into account all of the foregoing factors, the Services

determined that differences in life history characteristics

historically contributed to the distinctness of the Gulf of Maine DPS.

Remnant stocks have maintained the most characteristics of these

factors: smoltification at a mean age of 2 and predominant adult

returns as 2 sea winter (SW) fish (age 4). Since the proportion of 2SW

fish in an Atlantic salmon stock has a documented genetic basis (Glebe

and Saunders, 1986; Ritter et al., 1986; Hutchings and Jones, 1998),

the Services conclude that the DPS has unique life history

characteristics that have a heritable basis. The Services conclude that

both environmental and genetic factors make the Gulf of Maine DPS

markedly different from other populations of Atlantic salmon in their

life history and ecology.

The 1999 Status Review concluded that most of the recolonization of

the Gulf of Maine DPS stocks in individual rivers was achieved

naturally through processes of recolonization from within river (below

impoundment) and within DPS (neighboring river) refugia. The fact that

artificial selection created in hatchery environments has had some

influence upon the present genome of the Gulf of Maine DPS can not be

totally discounted. Given our current understanding of the genetic

composition of these stocks (Bentzen and Wright, 1992; Kornfield, 1994;

King et al., 1999), the documented persistence of native stocks

(Kendall, 1935; Baum, 1997), and the fact that most of the hatchery

stocking influences were internal to the Gulf of Maine DPS range

including the Penobscot (Baum, 1997), the Services conclude that the

influence of hatchery fish upon the DPS has not been sufficient to

completely or substantially introgress with the remnant populations and

genomes of the Gulf of Maine DPS. The Services believe that there are

components of an important genetic legacy remaining in these

populations, and the loss of these populations would negatively affect

the genetic resources of Atlantic salmon as a whole because it would

contribute to further range reduction. The genetic resources of these

most southerly stocks may be vitally important to the species' future

survival.

Description of the Habitat within the Gulf of Maine DPS

The Gulf of Maine DPS encompasses all naturally reproducing remnant

populations of Atlantic salmon from the Kennebec River downstream of

Edwards Dam northward to the mouth of the St. Croix River. The

watershed structure, available Atlantic salmon habitat, and abundance

of Atlantic salmon stocks at various life stages are best known for the

seven largest rivers with extant Atlantic salmon populations. The

habitat and population ecology of populations in smaller rivers is less

well known with the possible exception of Cove Brook (Meister, 1962;

Baum, 1997). This section focuses on the eight core rivers where the

most comprehensive and quantitative information is available.

The Dennys River originates in Lake Meddybemps in the town of

Meddybemps, Washington County, Maine. The drainage area of the Dennys

River is 34,188 hectares (ha), and it flows a distance of 32 kilometers

(km) to Cobscook Bay. In addition to Lake Meddybemps, Cathance and

Little Cathance Lakes are located in the headwaters of the drainage.

The confluence of Cathance Stream, a major tributary, is located

approximately 1.0 km upstream from tidewater. The upper reach of the

river, from Lake Meddybemps to the falls, is flat and slow moving. The

reach from the falls to Cathance Stream has flat water stretches and a

few riffle areas. The estuary is large, has numerous coves and bays,

and numerous peninsulas and islands between Dennysville and the ocean

(Beland et al., 1982). Lands within the drainage are sparsely populated

and managed for the growth and harvest of forest products and lowbush

blueberries. Water quality is generally good, but logging throughout

the area has resulted in an abundance of woody debris in some reaches

of the river.

The East Machias River originates at Pocomoonshine Lake in the

towns of Princeton and Alexander in Washington County, Maine. The river

has drainage of 65,009 ha that contains 26 lakes and ponds, and over 50

named tributaries. It

[[Page 62631]]

flows a distance of 59.5 km to Machias Bay. The watershed is sparsely

settled and forested with a mix of spruce and fir. Organic materials

from wetlands and bordering lakes and ponds discolor the waters of the

river. The East Machias and Machias Rivers enter the same estuary, and

the lower 3.2 km of the estuary is common to both rivers (Dube and

Fletcher, 1982).

The Machias River drains an area of over 119,140 ha. It originates

from the five Machias lakes and flows 98 km to Machias Bay. The

watershed is located in Washington and Hancock Counties, and more than

160 tributaries and 25 lakes and ponds exist in the system. A natural

gorge at the mouth of the river in the town of Machias may impede the

passage of salmon during periods of extreme high flow. The gorge is

being studied by the State of Maine to determine if passage can be

improved as part of State rehabilitation efforts for Atlantic salmon in

that river. The Machias River headwaters are characterized by rolling

hills with forested stream valleys and a number of barren areas, with

ground cover typically consisting of shrubs. The lower portion of the

basin is composed of large forested areas (Fletcher and Meister, 1982).

The Machias and East Machias Rivers share a common estuary. The estuary

is elongate, approximately 9.6 km in length, but relatively narrow.

The Pleasant River watershed in Washington County originates above

Pleasant River Lake in Beddington and drains an area of 22,015 ha. It

flows 45 km to the head of tide in the town of Columbia Falls. There

are few lakes in the watershed, and the tributaries are a network of

small feeder streams with a combined length of 109.4 km (Dube and

Jordan, 1982). The headwaters are composed mostly of hills and ridges,

with forests of spruce, fir, and hardwoods. The river water exhibits a

high degree of red-brown coloration caused by leaching of roots,

leaves, and other organic materials that originate from extensive peat

bogs in the drainage. The bogs provide water during dry periods,

storage during wet periods, and moderate discharge in the basin (Dube

and Jordan, 1982).

The Narraguagus River originates at Eagle Lake, flows through

Washington and Hancock Counties, and drains an area of approximately

60,088 ha. The mainstem drops a total of 124 m over a distance of 69 km

to the head of tide in Cherryfield. The West Branch of the Narraguagus,

a major tributary, has a drainage area of approximately 18,100 ha and

reaches the mainstem 3.2 km upstream from the head of tide. There are

more than 402 km of streams and rivers in the drainage and about 30

lakes and ponds, with three of the lakes exceeding 162 ha in size (Baum

and Jordan, 1982). The topography of the headwaters consists of rocky

hills and ridges, and forests that are primarily a mix of spruce and

fir interspersed with hardwoods. There are large blueberry barrens in

the watershed, and lands are primarily managed for berry production and

forest products.

Cove Brook originates as a series of springs and hillside drainages

and flows northeast into the Penobscot River estuary in Penobscot

County. The watershed is approximately 2,460 ha and is composed of 16.6

km of stream and two permanent tributaries. The lower reaches of the

river have coldwater fish habitat while the upper reaches are warm,

shallow marshlands (Meister, 1962).

The Ducktrap River is relatively small compared to other Atlantic

salmon rivers in Maine. It originates in Tilden Pond in Belmont

Township, Waldo County, has a drainage area of approximately 9,324 ha,

and flows for a distance of 10.7 km to Lincolnville where it enters

Penobscot Bay. There are four ponds in the drainage and two major

tributaries. The two tributaries, Kendall and Black Brooks, enter the

mainstem in the lower portion of the drainage. The surrounding area is

sparsely settled, and former agricultural lands are either overgrown or

reverting to early successional growth. The drainage is rugged and

hilly, and in the lower portion the riverbanks rise sharply from the

stream to heights that exceed 30.5 m (Bryant, 1956).

The Sheepscot River originates as a series of hillside springs in

West Montville, Waldo County, and flows a distance of 54.7 km to the

estuary near Alna. The West Branch of the river originates at Branch

Pond in Kennebec County, flows a distance of 24 km and enters the

mainstem in Sheepscot. The Dyer River, the largest of the tributaries,

has a length of 27.3 km and flows to the estuary. The Sheepscot River

drainage includes 24 lakes and ponds and encompasses an area of 59,052

ha. The upper portion of the Sheepscot River estuary resembles a fjord,

whereas the lower portion is typical of other Gulf of Maine DPS

watersheds, with mud flats and salt marsh covering large areas.

Sheepscot Falls, located in the upper estuary, is an area composed of

ledge, and the site of a former dam (Meister, 1982). Land within the

watershed was once intensively farmed, but the majority is now

forested. Deposited glacial material provides a source of boulder,

rubble, and cobble in the drainage.

Population Abundance of the Gulf of Maine DPS

Species abundance is a critical concern in assessing the population

status of a species under the ESA. An examination of current abundance

compared to historical levels and analysis of recent trends were used

to determine the status of Atlantic salmon of the Gulf of Maine DPS.

Documented returns of adult Atlantic salmon to the DPS rivers within

the DPS range surveyed remain low relative to conservation escapement

goals (U.S. Atlantic Salmon Assessment Committee (USASAC), 1999). Total

documented natural (wild & stocked fry) Gulf of Maine DPS spawner

returns to the rivers of the Gulf of Maine DPS range for the past 5

years are: 1995 (83); 1996 (74); 1997 (35); 1998 (23); 1999 (29)

(preliminary data). It must be noted that counts are only provided for

rivers with trapping facilities and only for times that those

facilities are operational and therefore do not represent a complete

count of returns of the DPS. The pre-fishery abundance index of North

American salmon stocks that migrate to the Greenland region of the

North Atlantic Ocean continues to be low in spite of apparently

improving marine habitat conditions as reflected by ocean surface

temperature data in the past few years (North Atlantic Salmon Work

Group (NASWG), 1999). The apparent non-response to improving marine

habitat to date is believed to be due, in part, to generally depressed

spawning populations in North American home rivers and the resultant

low number of juvenile salmon entering the ocean. Based on estimates of

the pre-fishery abundance of North American salmon stocks in the West

Greenland Sea provided by the International Council for the Exploration

of the Sea (ICES), relatively low adult returns should be anticipated

in many North American salmon rivers again in 1999 (NASWG, 1999).

Generally speaking, densities of young-of-the-year salmon (0+) and

parr (1+ and 2+) remain low relative to potential carrying capacity.

These depressed juvenile abundances are a direct result of low adult

returns in recent years. A total parr population estimate is not

available for the entire DPS.

However, the Atlantic Salmon Commission (ASC) and NMFS have

conducted a basin-wide parr population study on the Narraguagus River

since 1991. The 1997 parr population estimate in the Narraguagus River

was the highest estimate in the time series of data. In 1997, the

basin-wide population

[[Page 62632]]

estimate of 1+ and older parr in the Narraguagus was 26,682, an

increase of 113 percent from the 1996 estimate (Beland and Dube, 1999).

The basin-wide population of age 1+ and older parr on the Narraguagus

River in 1998 was approximately 25,382, a 5 percent decrease from the

1997 high (USASAC, 1999).

The NMFS and the ASC in addition have been conducting a study on

the Narraguagus River monitoring outmigration of smolts by documenting

timing of migration, survival, length, weight and number of smolts from

1996 through 1999 (Kocik et al., 1998a). These studies suggest that

there is a 99 percent probability that overwinter freshwater survival

from 1+ and older parr to smolt was less than 30 percent, the minimum

estimate cited in previous studies. Survival estimates in all years are

substantially lower than estimates previously reported in scientific

literature and previously accepted estimates for this region (Bley,

1987; Bley and Moring, 1988; Baum, 1997; Kocik et al., 1999). Thus

freshwater production is below rates for full freshwater production.

These substantially lower survival rates could be negatively impacting

population recovery. It is unknown whether these overwinter freshwater

survival rates are typical for the Narraguagus River on a long-term

basis or if they are comparable to other rivers within the Gulf of

Maine DPS range. NMFS and ASC researchers illustrated that nearly 130

percent increases in 1+ and older parr production have resulted in less

than a 4 percent increase in smolt production. Additionally, these

researchers found that approximately half of these emigrating smolts do

not reach the Gulf of Maine. These preliminary data led the Services to

conclude that low overwinter and emigration survival rates may be

impeding the recovery of these populations and are an issue of concern.

Given the data reviewed in this section, the Services conclude that

naturally reproducing Atlantic salmon populations of the Gulf of Maine

DPS are at extremely low levels of abundance. This conclusion is based

principally on the facts that spawner abundance is below 10 percent of

the number required to maximize juvenile production, juvenile abundance

indices are lower than historical counts, and freshwater smolt

production is less than a third of estimated capacity.

Conservation Hatchery Programs

Broodstock for the Dennys, East Machias, Machias, Narraguagus and

Sheepscot Rivers are held at Craig Brook National Fish Hatchery

(CBNFH). These broodstock should increase the effective population size

for these rivers (wild and captive) and provide a buffer against

extinction. Parr were collected from the Pleasant River and were

transferred to the North Attleboro National Fish Hatchery. These fish

were later destroyed due to the presence of a newly discovered Atlantic

salmon disease-SSSV.

The response of Atlantic salmon populations to supplemental

stocking programs can be partially evaluated based on juvenile

production, but adult returns are the ultimate evaluation stage. It

takes about 4 years from initial stocking to evaluate population level

responses since there is a lag between removal of parr for broodstock

development, the subsequent stocking of their offspring, juvenile

assessments, and adult returns. The first opportunities to make a

comprehensive evaluation will be when adults of fry-stocked origin (as

2 SW fish) potentially contribute to the 1999 spawning run that ends in

October. The 1999 returns are from the moderately high fry stocking

levels of 1995 for the Dennys, Machias, and Narraguagus Rivers. Because

stocking began in 1996 in some rivers, it will not be known until 2001

if fry-stocked fish will contribute a substantial element to all five

rivers with river-specific stocking programs.

Summary of Factors Affecting the Species

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

to implement the listing provisions of the ESA (50 CFR part 424) set

forth the procedures for adding species to the Federal list. Section 4

also requires that listing determinations be based solely on the best

scientific and commercial data available, without consideration of

possible economic or other impacts of such determinations. A species

may be determined to be endangered or threatened due to one or more of

the five factors described in section 4(a)(1) of the ESA. These factors

and their application to the Gulf of Maine DPS of Atlantic salmon are

described below.

(a) The Present or Threatened Destruction, Modification, or Curtailment

of Habitat or Range

Demonstrated and potential impacts to Atlantic salmon habitat

within the DPS watersheds result from the following causes: (1) Water

extraction; (2) sedimentation; (3) obstructions to passage including

those caused by beaver and debris dams and poorly designed road

crossings; (4) input of nutrients; (5) chronic exposure to

insecticides, herbicides, fungicides, and pesticides (in particular,

those used to control spruce budworm); (6) elevated water temperatures

from processing water discharges; and (7) removal of vegetation along

streambanks. The most obvious and immediate threat is posed by water

extraction on some rivers within the DPS range, as it has the potential

to expose or reduce salmon habitat.

The threat of blocked passage due to debris or beaver dams is an

annual event. The ASC, Project SHARE (Salmon Habitat and River

Enhancement), and the Watershed Councils have demonstrated an ability

to annually remove or reduce that threat. Impacts from chronic exposure

to chemical residues in the water are a potential threat and one that

warrants further investigation. In particular, potential impacts during

the process of smoltification should be examined. Sedimentation from a

variety of sources also warrants closer review as it may be altering

habitat and rendering it incapable of supporting Atlantic salmon. Water

temperatures in the vicinity of processing water discharges should be

monitored to determine if they make habitat unsuitable for Atlantic

salmon. Permit exemptions for agriculture practices should be evaluated

to determine if they provide adequate protection of riparian habitat.

All of these potential impacts to Atlantic salmon habitat need to

be examined in more detail for their individual and cumulative impacts.

Study results on the Narraguagus River demonstrate that full freshwater

production is not being achieved despite fry stocking efforts. These

results could mean that one or a combination of factors within the

rivers is negatively impacting freshwater habitat for Atlantic salmon.

The relationship between these factors and freshwater production and

survival of salmon needs to be studied in detail so that cause and

effect connections can be determined or ruled out. Corrective actions

can then be implemented as appropriate to enhance recovery.

Although there does not appear to be one particular habitat issue

which poses a significant threat by itself, the cumulative impacts from

habitat degradation discussed above may reduce habitat quality and

limit habitat quantity available to Gulf of Maine DPS salmon at various

stages in their life history within freshwater. Given current low

levels of abundance, it is critical that efforts be undertaken to

better understand, avoid, minimize and mitigate these factors.

[[Page 62633]]

(b) Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Atlantic salmon smolts leave their natal rivers in New England in

the spring and begin their extensive ocean migration. The migration

brings them into Newfoundland waters in the spring, along the Labrador

and Greenland coasts in summer, and on what is believed to be a return

migration back into Newfoundland waters by early fall. After their

first winter in the ocean, North American Atlantic salmon stocks have

historically been the target of marine fisheries in the Labrador Sea-

West Greenland and Atlantic Canada regions (Moller Jensen, 1986;

O'Connell et al., 1992). To put the effects of alternate harvest levels

into perspective, the combined harvest of 1 SW Atlantic salmon of U.S.

origin in the fisheries of West Greenland and Canada averaged 5,060

fish and returns to U.S. rivers averaged 2,884 fish from 1968 to 1989

(International Council for the Exploration of the Sea (ICES)-NASWG,

1993). To indicate the extent of exploitation, the ICES-NASWG

calculated the potential return to these rivers in the absence of the

West Greenland and Canada fisheries. The ICES-NASWG estimates that

returns of spawners to U.S. rivers could have potentially been

increased by 2.5 times in the absence of West Greenland and Labrador

fisheries (ICES-NASWG, 1993).

The United States joined with other North Atlantic nations in 1982

to form NASCO for the purpose of managing salmon through a cooperative

program of conservation, restoration and enhancement of North Atlantic

stocks. NASCO achieves its goals by controlling the exploitation by one

member nation of Atlantic salmon that originated within the territory

of another member nation. The United States' interest in NASCO stemmed

from its desire to ensure that interception fisheries of U.S. origin

fish did not compromise the long-term commitment by the states and

federal government to rehabilitate and restore New England Atlantic

salmon stocks. Over the past decade, only 90,000 wild 2SW Atlantic

salmon (annual average) have returned to spawn in U.S. (3 percent) and

Canadian (97 percent) rivers. Fishery managers believe that the annual

number of returning spawners needed to sustain these stocks is 184,000

(ICES-NASWG, 1999).

In 1999, as in 1998, U.S. Atlantic salmon were not subjected to a

commercial fishery during their marine migration. A minor interception

fishery was conducted off West Greenland, but it was limited to the

needs for internal Greenland consumptive use only. On February 5, 1999,

the Department of Fisheries and Oceans, Canada, announced adoption of

the precautionary approach as evidenced by a continued closure of the

commercial fishery for both Newfoundland and Labrador for an additional

3 years. (Further restrictions on Canadian recreational fisheries were

also announced, including the requirement to only use barbless hooks

for angling in Newfoundland and Labrador, and coordination with

Watershed Management groups.)

In October 1987, the New England Fishery Management Council

prepared a Fishery Management Plan (FMP) to establish U.S. management

authority over all Atlantic salmon of U.S. origin pursuant to the

Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.

1801 et seq. The FMP was intended to safeguard U.S. Atlantic salmon,

protect the U.S. investment in the State/Federal restoration program,

and strengthen the U.S. position in international negotiations. The FMP

prohibits possession of Atlantic salmon in the Exclusive Economic Zone

(EEZ).

Starting in the 1980s, as runs decreased, the Maine Atlantic Sea

Run Salmon Commission imposed increasingly restrictive regulations on

the recreational harvesting of Atlantic salmon in Maine. The allowable

annual harvest per fisherman was reduced by the State from ten salmon

in the 1980s to one grilse in 1994. In 1995, regulations were

promulgated to allow only catch and release fishing for Atlantic salmon

in Maine, closing the last remaining recreational harvest opportunities

for sea run Atlantic salmon in the United States. From the 1960s

through the early 1980s, the average exploitation rate in Maine rivers

has been estimated to range from approximately 20 percent to over 25

percent of the run (Beland, 1984; Baum, 1997). In retrospect, this

level of harvest was likely too high, especially in light of the

extensive intercept commercial harvest at that time. In 1993, the

documented sport catch of sea-run Atlantic salmon in Maine was 659

fish, with 152 killed and 507 released (USASAC, 1994). The USASAC

reported that in 1997 and 1998 there were 33 and 20 fish, respectively,

caught and released within the range of the DPS. To date, 12 Atlantic

salmon have been caught and released within the range of the DPS in

1999.

Atlantic salmon parr remain vulnerable to harvest by trout anglers,

and mortality associated with this activity has been documented. Recent

indications are that poaching activity occurs at fairly low levels on

Maine rivers. Recent low returns of wild adult salmon to Maine rivers

highlight the importance of continuing assessment of any source of

mortality that may pose a risk to the DPS.

Both commercial and recreational harvest of Atlantic salmon

historically played a role in the decline of the Gulf of Maine DPS of

Atlantic salmon. The Canadian commercial fishery in Newfoundland and

Labrador is under a moratorium for the next 3 years, and the West

Greenland commercial fishery will continue as an internal use only

fishery through the 2000 fishing season. Continuation of the internal

use fishery in Greenland poses a reduced but continuing threat to the

Gulf of Maine DPS of Atlantic salmon. The best available scientific

data support the advice of technical experts in Maine that no directed

recreational catch and release fishery should be carried out given

existing stock conditions. Continuation of the existing directed catch

and release fishery poses a threat of mortality or injury to the Gulf

of Maine DPS of Atlantic salmon. Recreational fishing targeting other

species also has the potential to result in incidental catch of various

life stages of Atlantic salmon that could result in their injury or

death. These fisheries also pose a potential threat to Atlantic salmon.

The one documented poaching event in 1998 indicates that poaching

continues to pose a potential threat to Atlantic salmon. Continued

enforcement efforts and adequate penalties are essential to minimize

this threat.

(c) Disease or Predation

Fish diseases have always represented a source of mortality to

Atlantic salmon in the wild, though the threats of major loss due to

disease are generally associated with salmon aquaculture. The level of

threat from disease has remained relatively static until the last 3

years. Three recent events that have increased our concern for disease

as a threat to the DPS are: (1) The appearance of ISA virus in 1996 on

the North American continent within the range of possible exposure of

migrant DPS salmon; (2) the discovery in 1998 of the retrovirus SSSV

within the DPS population; and (3) the new information available in

1999 on the potential impact of coldwater disease (CWD) on salmon.

Wild parr were taken from the Pleasant River, Maine, in 1995 (180),

1996 (80), and 1997 (164) and held in isolation at the North Attleboro

National

[[Page 62634]]

Fish Hatchery and a private hatchery in Deblois, Maine, for the

purposes of rearing the fish to sexual maturity, spawning them, and

returning progeny back to the Pleasant River. Mortalities associated

with tumors in the viscera (particularly the swimbladder) began to

appear in the salmon at North Attleboro in 1997 and continued in 1998.

Cornell University scientists identified the causative agent as a

retrovirus named SSSV that had never been previously documented except

once in Scotland in the 1970s. Virus-positive fish from North Attleboro

were moved to a quarantine facility at the USGS BRD facility in

Leetown, West Virginia, to obtain detailed information about the virus.

Pleasant River fish at the Deblois Hatchery were also found to be

positive for the virus, though no disease or mortality occurred.

Further testing of wild salmon held as broodstock at the Craig Brook

NFH showed that the virus was present in carrier state in 8 individuals

of over 500 tested. Some of these individuals had been in captivity for

several years, and others were only recently captured and held in

isolation. The implications are that the virus exists at some level in

wild populations and has been present at least for several years. The

virus has demonstrated its ability to cause lethal disease at least

under conditions that existed at one hatchery and therefore must be

considered as a potential threat. However, its presence in a carrier

state in two other hatcheries, some for several years, without any

clinical indication of disease, and the lack of any observation of

symptoms in wild populations suggest that the threat of disease from

SSSV is limited. Until future research or experience provides

additional information, the threat associated with this virus remains

uncertain.

The second virus that represents a relatively new threat to the DPS

is the causative agent of ISA. This virus causes lethal disease in

maturing salmon held in salt water. Discovered in 1984, it was known

only in Norway prior to 1996, when it was diagnosed in aquaculture sea

pens in New Brunswick, Canada. The following year it was found in

Scotland. Since the completion of the 1999 Status Review, monitoring in

the Magaguadavic River in New Brunswick by the Atlantic Salmon

Federation has confirmed both aquaculture escapees and wild fish

infected with the ISA virus. There is no known control of the disease

except removal of fish held within 5 km of an infected site. An

extensive survey of Maine aquaculture operations found no ISA virus

present within the United States. The New Brunswick Province has taken

extensive actions to control the spread of the virus, but the affected

Canadian aquaculture operations are in proximity to U.S. pen sites.

Thus the virus does represent a potential threat if it becomes

established in U.S. pens near the rivers and migration routes used by

the Gulf of Maine DPS of Atlantic salmon.

CWD, caused by the bacterium Flavobacterium psychrophilum, has

recently been found to be a potentially serious problem to Atlantic

salmon in New England waters. New information from ongoing studies by

the Biological Research Division (BRD) of the U. S. Geological Service

(USGS) at their Leetown Science Center have shown that the pathogen

induces pathology and subsequent mortality among juvenile Atlantic

salmon and that the pathogen is vertically transmitted from carrier

sea-run adults to offspring via the eggs.

Predation has always been a factor influencing salmon numbers, but

under conditions of a healthy population, would not be expected to

threaten the continued existence of that population. The threat of

predation on the Gulf of Maine DPS of Atlantic salmon is significant

today because of the very low numbers of adults returning to spawn and

the dramatic increases in population levels of some predators. These

include cormorants, striped bass, and several species of seals. Most

rivers within the DPS range do not contain dams that delay and

concentrate salmon smolts and make them more vulnerable to cormorant

attacks. Also, the recovery of striped bass populations over the past

decade is concentrated more in rivers south of the DPS range.

Furthermore, cormorants and striped bass are transitory predators

impacting migrant juveniles in the lower river and estuarine areas.

Seals, however, have reached high population levels not reported

before, and salmon remain vulnerable to seal predation through much of

their range.

(d) Inadequacy of Existing Regulatory Mechanisms

A variety of State and Federal statutes and regulations seek to

address potential threats to Atlantic salmon and their habitat. These

laws are complemented by international actions under NASCO and many

interagency agreements and State-Federal cooperative efforts.

Implementation and enforcement of these laws and regulations could be

strengthened to further protect Atlantic salmon. The appropriate State

and Federal agencies have established coordination mechanisms and have

joined with private industries and landowners in partnerships for the

protection of Atlantic salmon. These partnerships will be critical to

the recovery of the species. Existing regulatory mechanisms either lack

the capacity or have not been implemented adequately to decrease or

remove the threats to wild Atlantic salmon. The discussion that follows

will focus on those laws which are not sufficient to deal with threats,

or, if adequate, are not being applied or enforced. Major threats

continue to be poor marine survival, water withdrawals, recreational

fishing mortality, disease, and aquaculture impacts, especially

interaction with European strain and hybrid (European/North American)

salmon.

(1) Water Withdrawals

Maine has made substantial progress in regulating water withdrawal

for agricultural use. The Land and Water Resource Council and the Land

Use Regulatory Commission (LURC) must approve requests for withdrawals

for irrigation, and can curtail withdrawals if water levels go below

what is considered necessary for the well being of the species. In 1999

the LURC ruled to limit the amount of water that could be drawn from

the Pleasant, Narraguagus and Machias Rivers. The State Department of

Environmental Protection is developing a rule to address withdrawals on

a state-wide basis. At this point, water withdrawals in unorganized

towns are not regulated.

(2) Recreational Fishing Mortality

Maine currently allows catch and release salmon fishing in the DPS

rivers. The ASC can promulgate regulations governing salmon fishing,

and in the past its predecessor, the Atlantic Salmon Authority, reduced

the season by closing it in July and August when water temperatures are

normally highest and the risk of mortality is higher. In 1998, the

Maine Atlantic Salmon Technical Advisory Committee advised that there

should be no directed catch and release fishery for Atlantic salmon.

Despite that advice, the fishery remains open. However, regulations to

close the directed fishery have been proposed recently.

(3) Disease

The European ISA virus has become established in North American

aquaculture fish in proximity to Atlantic salmon in the DPS. Also, the

occurrence of a heretofore unknown retrovirus, SSSV, is not yet

specifically addressed by any regulations. These recent disease

episodes have impacted the Services' river-specific stocking program in

that

[[Page 62635]]

Pleasant River broodstock had to be destroyed.

(4) Aquaculture

The risks inherent in wild stocks interacting with aquaculture

escapees have increased significantly from 2 years ago when the

Services believed that certain restrictions on the importation and use

of foreign salmon stocks were in place and enforced. The Maine State

law (PL 1991 c381 sub section 2) restricts importing of fish and eggs

but fails to restrict importing of European milt, thus enabling

expansion of the use of hybrids between European and North American

salmon in aquaculture. Also, permit holders have continued to use

European strain or hybrids in violation of their U.S. Army Corps of

Engineers permits, which were issued in reliance on applications which

stated that no European strain or hybrids would be placed in cages.

(e) Other Natural or Manmade Factors Affecting Its Continued Existence

The Maine Atlantic salmon aquaculture industry is currently

composed of 12 companies, at 33 sites with a total of 773 cages

covering 800 leased acres of water. Farms are concentrated in Cobscook

Bay near Eastport, Maine, but are located as far south as the Sheepscot

River, although that site currently does not grow Atlantic salmon. The

industry in Canada, just across the border, is approximately twice the

size of the Maine industry.

Atlantic salmon that escape from farms and hatcheries pose a threat

to native Atlantic salmon populations in coastal Maine rivers.

Escapement and resultant interactions with native stocks are expected

to increase given the continued operation of farms and growth of the

industry under current practices. There is a potential for escaped

farmed salmon to disrupt redds of wild salmon, compete with wild salmon

for food and habitat, interbreed with wild salmon, transfer disease or

parasites to wild salmon, and/or degrade benthic habitat (Clifford,

1997; Youngson et al., 1993; Webb et al., 1993; Windsor and Hutchinson,

1990; Saunders, 1991). A comparison study in Canada revealed that

survival of wild post-smolts moving from Passamaquoddy Bay to the Bay

of Fundy was inversely related to the density of aquaculture cages

(DFO, 1999). Finally, there has been recent concern over potential

interactions when wild adult salmon migrate past closely spaced cages,

creating the potential for behavioral interactions, disease transfer or

interactions with predators (DFO, 1999; Crozier, 1993; Skaala and

Hindar, 1997; Carr et al., 1997; Lura and Saegrov, 1991).

Atlantic salmon that either escaped or were released from

aquaculture facilities have been found in the St. Croix, Penobscot,

Dennys, East Machias, and Narraguagus rivers in the United States.

(Baum, 1991; USASAC, 1996, 1997). In 1994 and 1997, escaped farmed fish

represented 89 percent and 100 percent, respectively, of the documented

run for the Dennys River, and in 1995, 22 percent of the documented run

for the Narraguagus River. Escaped farmed salmon have also been

documented as an incidental capture in the recreational fishery, and

observed in the Boyden, Hobart, and Pennamaquan Rivers. The first

aquaculture escapee in the State of Maine was documented in 1990, and

the first sexually mature escapee was documented in 1996. Escaped

farmed fish are of great concern in Maine because even at low numbers

they can represent a substantial portion of fish in some rivers. Also,

populations at low levels are particularly vulnerable to genetic

intrusion or other disturbance caused by escapees (DFO, 1999;

Hutchings, 1991). Preliminary results from the 1999 wild smolt

assessment project in the Pleasant River suggest that several

outmigrating smolts were of hatchery origin based on fin condition

(Kocik et al.,1999, unpublished data).

Given current aquaculture practices, the Services have opposed the

use of reproductively viable European strains (pure and hybrid) of

Atlantic salmon within North America. This opposition is based on

genetic studies that demonstrate that there are significant differences

between North American and European Atlantic salmon (King et al. 1999),

and the advice from geneticists that interbreeding among genetically

divergent populations negatively impacts natural populations (Utter,

1993; Verspoor, 1997; Youngson and Verspoor, 1998). The introgression

by non-North American Atlantic salmon stocks presents a substantial

threat of disrupting the genetic integrity of North American stocks and

threatens fitness through outbreeding depression.

Farm-raised Atlantic salmon can escape from both sea cages and

freshwater hatcheries and enter rivers within the Gulf of Maine DPS

range as sexually mature adults and precocious male parr. Available

genetic data and visual observations indicate that aquaculture escapees

may have successfully interbred with wild Atlantic salmon. Under

current aquaculture practices, this problem will persist because the

escapement of aquaculture salmon and their interactions with wild

stocks are expected to increase with the continued operation and growth

of the industry in the State of Maine.

There is a significant potential for escaped aquaculture salmon to

disrupt redds of wild salmon, compete with wild salmon for food and

habitat, interbreed with wild salmon, and transfer disease or parasites

to wild salmon. The threat of these interactions is considered

critical, given the fact that wild salmon stocks within the DPS range

are at low abundance levels, and are particularly vulnerable to

disturbances caused by escaped aquaculture salmon.

Studies have characterized the potential permanent effect of salmon

escapes from farms on the genetic differentiation among wild stocks.

Atlantic salmon populations of sizes similar to those found within the

Gulf of Maine DPS, are the most vulnerable to immigrations from

aquaculture escapees. These immigration events may be one of the most

significant ways in which aquaculture salmon affect the genetic

structure of wild populations. While natural selection may be able to

purge wild populations of maladaptive genetic traits, regularly

occurring genetic interaction between aquaculture salmon and wild

populations makes this considerably less likely. Thus, scientific

literature indicates that interactions between wild and aquaculture

salmon may lead to decreased numbers of wild Atlantic salmon, and in

the extreme, to extirpation of the wild stock.

Comprehensive protective solutions to minimize the threat of

interactions between wild and aquaculture salmon have not been

implemented. In 1997 and 1998, the Services worked with industry and

State representatives in an attempt to eliminate further importation of

European stocks, remove pure European strain from marine cages, and

phase out the holding of North American/European hybrids. These

discussions were unsuccessful. In July of 1999 the Services initiated

discussions directly with the Maine Department of Marine Resources (the

State agency responsible for aquaculture industry regulation). These

discussions were only partially successful.

Marine survival rates continue to be low for U.S. stocks of

Atlantic salmon, and the subsequent low abundance of salmon impedes

recovery of the DPS. Scientists have attributed natural mortality in

the marine environment to sources that include stress, predation,

starvation, disease and parasites, and abiotic factors. In addition,

scientific

[[Page 62636]]

studies indicate that year-to-year variation in return rates of U.S.

salmon stocks is generally synchronous with other North Atlantic

stocks. This information suggests that the trend in return rates is the

result of factors that occur when the stocks are in the North Atlantic,

particularly the Labrador Sea. Scientists have concluded that a

significant proportion of the variation in recruitment or return rate

is attributed to post-smolt survival. However, the factors responsible

for reduced post-smolt survival are not well understood.

Basis for Determination

Section 4(b)(1)(A) of the ESA (16 U.S.C. 1533(b)(1)(A)) states that

determinations required by the ESA will be made solely on the basis of

the best scientific and commercial data available after conducting a

review of the status of the species and after taking into account those

efforts, if any, being made by any State or foreign nation, or any

political subdivision of a State or foreign nation, to protect such

species, whether by predator control, protection of habitat and food

supply, or other conservation practices, within any area under its

jurisdiction, or on the high seas.

The Gulf of Maine DPS of Atlantic salmon is discrete and

significant and therefore satisfies the Services' criteria for

distinctness as outlined in the Services' DPS policy. There was a

dramatic decline in spawner abundance in the mid 1980s, and the number

of returning adult Gulf of Maine DPS of Atlantic salmon remains low.

Critically low adult returns make the DPS especially vulnerable and

genetically susceptible to threats. Early juvenile abundance has

increased due to fry and broodstock stocking, but based on results in

the Narraguagus River, this increase does not directly translate into

commensurate increases in abundance of smolts. Marine survival rates

continue to be low for U.S. stocks of Atlantic salmon, and the low

abundance of naturally spawning Atlantic salmon impedes recovery of the

DPS. The Gulf of Maine DPS of Atlantic salmon has persisted in a unique

setting in the United States, and its loss as the only naturally

spawning stock in the United States would be a significant loss. The

existence and genetic integrity of the DPS must be preserved so that

the DPS can naturally adapt to changing future conditions in the

freshwater and marine environment.

Under the first listing factor, present or threatened destruction,

modification, or curtailment of habitat or range, the following threats

to Atlantic salmon habitat within the DPS watersheds were identified:

(1) Water extraction; (2) sedimentation; (3) obstructions to passage

caused by beaver and debris dams, poorly designed road crossings, and

dams; (4) input of nutrients; (5) chronic exposure to insecticides,

herbicides, fungicides, and pesticides; (6) elevated water temperatures

from processing water discharges; and (7) removal of vegetation along

streambanks.

Efforts are underway to better understand and balance the needs of

Atlantic salmon and the water use needs of the agriculture industry.

Until this process is completed, the threat of excessive or unregulated

water withdrawal remains. Sedimentation from a variety of sources also

warrants closer review as it may alter habitat and render habitat

incapable of supporting optimum Atlantic salmon production, resulting

in reduced survival of one or more age classes. Recent studies indicate

that full freshwater production potential is not being achieved despite

fry stocking efforts. These results suggest that a factor or factors

within the rivers may be negatively impacting freshwater habitat for

Atlantic salmon. Although it is difficult to isolate and evaluate the

impact of individual threats to habitat, the available information

indicates that cumulative impacts of these threats pose a significant

threat to Atlantic salmon stocks.

Under the second listing factor, both commercial and recreational

harvest of Atlantic salmon historically played an important role in the

decline of the DPS of Atlantic salmon. Continuation of the internal use

fishery in Greenland poses a reduced but continuing threat to Atlantic

salmon in the DPS. Continuation of the existing directed catch and

release fishery may cause mortality or injury to the Gulf of Maine DPS

of Atlantic salmon. Recreational fishing targeting other species also

may result in incidental catch of Atlantic salmon in various stages of

their life cycle. Mortality from fishing increases the threat to

Atlantic salmon survival.

The impact of predation and disease was examined under the third

listing factor and was found to have increased since the 1995 Status

Review. Predation has always been a factor influencing salmon numbers,

but would not be expected to threaten the continued existence of a

healthy population. The threat to the DPS of predation is significant

today because of the very low numbers of adults returning to spawn and

the dramatic increases in population levels of some predators known to

prey on salmon. These include cormorants, sea birds, striped bass, and

several species of seals.

Fish diseases have always represented a source of mortality to

Atlantic salmon in the wild, though the threats of major loss due to

disease are generally associated with salmon aquaculture. Three recent

events, occurring during the last 2 years, have increased the concern

for disease as a threat to the DPS: (1) The appearance of ISA virus in

1996 on the North American continent within the range of the possible

exposure of migrant DPS salmon; (2) the discovery in 1998 of the

retrovirus SSSV within a DPS population; and (3) the new information

available in 1999 on the potential impact of CWD on salmon. The nature

of these three specific developments in terms of direct loss to the DPS

from disease in the wild is extremely difficult to assess.

Observations to date suggest that direct mortality may not be the

major threat to the DPS from these diseases. However, there is an

indirect threat through the impact of these diseases on the river-

specific fish culture program implemented on six rivers to enhance

maintenance and recovery of these imperiled populations. The impacts of

ISA, SSSV, and CWD appear to be magnified when fish are held in culture

environments. Diseases significantly degrade the effectiveness of fish

culture techniques as a recovery tool and strategy for stock

enhancement. The level of threat to the perpetuation and recovery of

the DPS from salmon disease has significantly increased in the past 2

years.

Under the fourth listing factor, the Services examined regulatory

mechanisms for their ability to protect the Gulf of Maine DPS. A

variety of State and Federal environmental statutes and regulations are

in place to address potential threats to Atlantic salmon and their

habitat. These laws are complemented by international actions under

NASCO and many interagency agreements and State-Federal cooperative

efforts. Implementation and enforcement of these laws and regulations

must be strengthened to adequately protect Atlantic salmon.

Aquaculture practices were examined under the fifth listing factor,

other natural or manmade factors affecting the continued existence of

the DPS. Aquaculture Atlantic salmon escape during freshwater rearing,

transport, or sea cage grow out and enter rivers within the Gulf of

Maine DPS range. Available genetic data and visual observations

indicate that aquaculture escapees may have successfully interbred with

wild Atlantic salmon. Under current aquaculture practices, this problem

will persist because the escape of aquaculture salmon, and their

[[Page 62637]]

interactions with wild stocks, is expected to increase with the

continued growth of the aquaculture industry in the State of Maine.

Escaped aquaculture salmon have been documented to disrupt redds of

wild salmon, compete with wild salmon for food and habitat, interbreed

with wild salmon, and transfer disease or parasites to wild salmon.

This interaction is of grave concern, particularly when the escapees

are not of North American origin. The expanding use of reproductively

viable European strain of Atlantic salmon by the aquaculture industry

has greatly increased the level of risk of negative consequences from

introgression of aquaculture stock into wild populations. The

scientific literature indicates that interactions between wild and

aquaculture salmon in the DPS range may lead to decreased numbers of

the Gulf of Maine DPS of Atlantic salmon, and in the extreme, to

extirpation of the wild stock. There are no comprehensive protective

solutions in place to minimize the threat of interactions between wild

and aquaculture salmon. The threat created by these interactions is

considered critical, given that the Gulf of Maine DPS of Atlantic

salmon is at low abundance levels and is vulnerable to genetic

introgression and habitat disturbances caused by escaped aquaculture

salmon.

Under current circumstances, the Gulf of Maine DPS of Atlantic

salmon is in danger of extinction. Atlantic salmon of the Gulf of Maine

DPS exhibit critically low spawner abundance and poor marine survival.

These two key recovery factors are further compromised by the increased

presence of threats that have been documented. Currently these threats

include artificially reduced water levels, diseases, recreational and

commercial fisheries, sedimentation, and genetic intrusion by Atlantic

salmon raised for aquaculture.

A second step in the review of the status of the species is to

examine protective measures in place. We particularly highlight changes

since the determination was made in December 1997 that listing was not

warranted. These protective measures in combination with the species'

status information are examined to determine if listing as threatened

or endangered is warranted and if there is a need for an emergency

listing. Efforts to Protect Maine Atlantic Salmon

Actions underway include the following:

(a) River-specific stock rehabilitation

There is agreement among scientists that additional research should

be conducted to better understand the processes or mechanisms

responsible for reduced post-smolt survival, and such research is being

pursued. There is also consensus that action necessary to ensure

survival of salmon stocks and to rebuild stocks within the DPS includes

hatchery propagation. The Atlantic salmon river-specific recovery

program has been identified as an essential component of the strategy

to rebuild salmon stocks in the DPS. This program has been designed and

implemented to maintain the genetic diversity and distinctness of the

DPS. Because the abundance of wild salmon stocks of the Gulf of Maine

DPS is very low, hatchery propagation through a river-specific stocking

program is considered an important tool to maximize the production of

wild smolts with genetic traits necessary for survival of the species.

The river-specific stocking program is a strategy consisting of

removing juvenile wild salmon from a DPS river population, rearing

those juveniles to sexual maturity in a hatchery, artificially spawning

them, and returning the offspring to the same river of origin of the

parental stock. This should greatly increase the effective population

size of the parental generation contributing to a particular year class

of juveniles, increase the size of that year class, and act to maintain

the genetic integrity of that river population. The goal of the program

is to ensure the immediate survival of and accelerate the long-term

recovery of the DPS salmon of that river.

(b) Maine Conservation Plan

On April 23, 1999, the State of Maine responded to the Services'

comments on the 1998 Annual Review of Conservation Plan implementation

and provided amendments to the Conservation Plan and workplans prepared

by each involved State agency. Responsibility for implementation of the

Conservation Plan has recently been moved from the Land and Water

Resources Council to the ASC. Many of the actions proposed or underway

are discussed under other sections of this rule. Implementation of the

Conservation Plan as a State initiative remains an important tool for

recovery of the Gulf of Maine DPS of Atlantic salmon and its habitat.

(c) Narraguagus Study

NMFS and ASC have continued their intensive study of smolt

production and outmigration in the Narraguagus River. As part of this

study, the parr population is estimated and the outmigration of smolts

is monitored by documenting the timing of migration, survival, length,

weight and number of smolts. This study has provided insights into

overwinter survival from large parr to smolt and smolt migration out of

the river and estuary. The results of this study will improve our

ability to target protective measures.

(d) Project SHARE

Project SHARE is a private sector initiative designed to improve

salmon habitat and consequently increase the likelihood of the species'

survival. Project SHARE began with timber and agriculture interests in

eastern Maine and has served as an excellent focal point to direct

private conservation efforts on the rivers in the DPS range. Numerous

projects and information exchange sessions have occurred as a result of

Project SHARE, and the Watershed Councils forming for the five rivers

in eastern Maine have been assisted in development by Project SHARE

members.

(e) Water Use Subcommittee

The potential threat posed by water withdrawals to the suitability

of habitat for Atlantic salmon has become more apparent since the

completion of the Conservation Plan. During the past year, the Maine

State Planning Office contracted a study to establish minimum flow

levels within the Pleasant, Machias and Narraguagus Rivers and the

levels needed for Atlantic salmon within those rivers. Steering

Committees have been created to identify the current water users and to

project future demands. Reports summarizing information obtained are in

the process of being completed. The Plans will serve as the foundation

for conditioning future permits for water withdrawal. The State

Department of Environmental Conservation is currently drafting

regulations that will allow it to regulate water withdrawals.

(f) Watershed Councils

Watershed Councils, created under the Conservation Plan, are active

on all seven rivers. These Councils are designed to maintain focus on

the rivers at local levels and be certain that activities that may

affect salmon, habitat or water quality are well thought out. The

Watershed Councils seek grants for specific projects, recommend habitat

protection and/or improvements, discuss problems and recommend

solutions. Significant acreages of habitat have been permanently

protected on several of the rivers as a result of Council activity.

(g) Habitat Protection

Habitat protection efforts in the DPS rivers are continuing. Work

is underway

[[Page 62638]]

to reduce livestock pollution in the Sheepscot River. Protection of

acreage adjacent to the rivers in the DPS range is increasing. Champion

International has imposed protective buffers along riparian zones on

their lands along rivers in the DPS range and other streams and rivers.

The State of Maine contracted a study to design a formula for

determining the appropriate size buffer depending on site specific

characteristics including slope and percent vegetative cover. Superfund

sites are being cleaned up, obstructions to passage are being removed,

best management practices have been developed for agriculture and

forestry, and water withdrawals are being monitored more closely.

(h) Implementation of disease control measures

A number of State and Federal laws exist to reduce the threats to

both wild and cultured fish from disease. Maine has recently adopted

stringent fish health regulations (Chapter 2.03-A Salmonid Fish Health

Regulations; Inland Fish and Wildlife Regulations), and the FWS

monitors hatchery fish at Craig Brook and Green Lake with extreme care.

Cultured fish are vaccinated against various diseases and screened

continually.

(i) Regulations for Containment of Aquaculture Fish

The aquaculture industry in Maine adopted a Code of Practice for

the Responsible Containment of Farmed Atlantic Salmon in Maine Waters.

Partially in response to concerns voiced by the Services over existing

aquaculture practices, the State of Maine indicated that it would

promulgate regulations to implement the Code of Practice. The Services

have had discussions with the State over the content of those

regulations, but agreement has not been reached at this point, and the

State has not yet promulgated draft regulations. In addition, weirs are

now in place on two rivers (Dennys and Pleasant), and a third is being

planned. These weirs should help reduce the likelihood that net pen

escapees will reach the spawning grounds to breed with wild fish.

(j) Essential Fish Habitat

The 1996 amendments to the Magnuson-Stevens Fishery Management and

Conservation Act included a requirement for delineation of essential

fish habitat (EFH) for all managed species (16 U.S.C. 1853(a)(7)). EFH

is the habitat that is necessary to the species for spawning, breeding,

feeding, or growth to maturity. Federal action agencies which fund,

permit or carry out activities that may adversely impact EFH are

required to consult with NMFS regarding the potential effects of their

actions on EFH and respond in writing to the NMFS' recommendations (16

U.S.C. 1855(b)(2)). In addition, NMFS is required to comment on any

State agency activities that would impact EFH (16 U.S.C.

1855(b)(4)(A)). The regulations also direct the Fishery Management

Councils to consider a second, more limited habitat designation,

Habitat Areas of Particular Concern (HAPCs) (50 CFR 600.815(a)(9)).

HAPCs are rare, particularly susceptible to human-induced degradation,

especially ecologically important, or located in an environmentally

stressed area. Designated HAPCs are not afforded any additional

regulatory protection; however, Federal projects with potential adverse

impacts to HAPCs will be more carefully scrutinized during the

consultation process. The New England Fishery Management Council has

designated the habitat of the Dennys, Machias, East Machias, Pleasant,

Narraguagus, Ducktrap, Sheepscot, Kennebec, Penobscot, and St. Croix

Rivers and Tunk Stream as HAPCs.

Proposed Determination

The ESA defines an endangered species as any species in danger of

extinction throughout all or a significant portion of its range (16

U.S.C. 1532(6)), and a threatened species as any species likely to

become an endangered species within the foreseeable future throughout

all or a significant portion of its range (16 U.S.C. 1532(20)). Section

4(b)(1)(A) of the ESA requires that determinations regarding whether

any species is threatened or endangered be based solely on the best

scientific and commercial information available after conducting a

review of the status of the species and after taking into account those

efforts, if any, being made by a state or foreign nation to protect

such species (16 U.S.C. 1533(b)(1)(A)).

The Services propose to list this DPS of anadromous Atlantic salmon

as endangered under the ESA. At present, the DPS is known to include

populations of Atlantic salmon in the Sheepscot, Ducktrap, Narraguagus,

Pleasant, Machias, East Machias and Dennys Rivers and Cove Brook. Both

the naturally reproducing populations of the Gulf of Maine DPS of

Atlantic salmon and those river-specific hatchery populations cultured

from them are included. In the future, DPS populations may be

identified in additional rivers based on ongoing stream surveys and

continuing genetic analyses.

Conservation Measures

Conservation measures provided for species listed as endangered or

threatened under the ESA include recovery actions (16 U.S.C. 1533(f)),

Federal agency consultation requirements (16 U.S.C. 1536), and

prohibitions on taking (16 U.S.C. 1538). Recognition of the species'

plight through listing promotes conservation actions by Federal and

state agencies and private groups and individuals.

In addition to the actions identified under Efforts to Protect

Maine Atlantic Salmon, the following general conservation measures

could be implemented to help conserve the species. This list does not

constitute the Services' interpretation of the entire scope of a

recovery plan under section 4(f) of the ESA.

(1) Ensure that water extractions and diversions for agriculture do

not adversely affect Atlantic salmon habitat. Screen all water

diversion intake structures available to downstream migrating Atlantic

salmon.

(2) For Atlantic salmon aquaculture facilities located less than 20

km (12 mi) from the mouths of rivers known to contain DPS populations,

use sterile fish, change broodstock origin, mark fish reared in net

pens, and develop adequate fish containment such that interactions with

wild fish will be prevented.

(3) Install and maintain weirs at the mouths of rivers to exclude

escaped aquaculture fish.

(4) Delineate and protect Atlantic salmon habitat.

(5) Research sterilization of commercial stock, genetic monitoring

of wild stocks, disease control strategies, predators, and impact of

sedimentation on habitat.

(6) Increase law enforcement.

(7) Increase awareness about Atlantic salmon and measures that

could be implemented to protect them and their habitat through

education and outreach efforts.

Should the proposed listing be made final, protective regulations

under the ESA would take effect and a recovery program would be

implemented. The Services recognize that to be successful, protective

regulations and recovery programs for Atlantic salmon will need to be

developed in the context of conserving aquatic ecosystem health. The

Services, the State of Maine, and the private sector must cooperate to

conserve the listed Gulf of Maine DPS of Atlantic salmon and the

ecosystems upon which it depends. To foster this

[[Page 62639]]

cooperation, the Conservation Plan, developed by the State with a group

of stakeholders, could serve as a foundation for a recovery plan. The

Services encourage non-Federal landowners to assess the impacts of

their actions on Atlantic salmon. In particular, the Services

acknowledge and fully support the ongoing efforts to involve

stakeholders (industry representatives, landowner representatives,

local and State governments and Federal biologists) through Project

SHARE and local watershed councils.

Prohibitions and Protective Measures

This regulation applies all ESA section 9 (16 U.S.C. 1538)

protective measures to prohibit taking, interstate commerce, and other

prohibitions applicable to endangered species, with the exceptions

provided under section 10 of the ESA (16 U.S.C. 1539). Section 9 of the

ESA and implementing regulations (50 CFR 17.21) set forth a series of

general prohibitions and exceptions that apply to all endangered

wildlife. These prohibitions apply to all individuals, organizations,

and agencies subject to U.S. jurisdiction. The prohibitions, in part,

make it illegal for any person subject to the jurisdiction of the

United States to take (includes harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect; or to attempt any of these),

import or export, ship in interstate commerce in the course of

commercial activity, or sell or offer for sale in interstate or foreign

commerce any listed species. It also is illegal to possess, sell,

deliver, carry, transport, or ship any such wildlife that has been

taken illegally.

Section 7(a)(4) of the ESA (16 U.S.C. 1536(a)(4)) requires that

Federal agencies confer with the Services on any actions likely to

jeopardize the continued existence of a species proposed for listing

and on actions likely to result in the destruction or adverse

modification of proposed critical habitat. For listed species, section

7(a)(2) (16 U.S.C. 1536(a)(2)) requires Federal agencies to ensure that

activities they authorize, fund, or conduct are not likely to

jeopardize the continued existence of a listed species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into consultation with the Services. Consultations will be

conducted on a river-specific basis pursuant to identification of

river-specific recovery units within the DPS.

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA (16 U.S.C.

1539(a)(1)(A) and (a)(1)(B)) provide the Services with authority to

grant exceptions to the ESA's ``taking'' prohibitions. Section

10(a)(1)(A) scientific research and enhancement permits may be issued

to entities (Federal and non-Federal) conducting research that involves

a directed take of listed species. A directed take refers to the

intentional take of listed species. The Services have issued section

10(a)(1)(A) research/enhancement permits for other listed species for a

number of activities.

Section 10(a)(1)(B) incidental take permits may be issued to non-

Federal entities performing activities that may incidentally take

listed species. The types of activities potentially requiring a section

10(a)(1)(B) incidental take permit include the operation and release of

artificially propagated fish by state or privately operated and funded

hatcheries, state or university research not receiving Federal

authorization or funding, and the implementation of state fishing

regulations.

Service Policies on Endangered and Threatened Fish and Wildlife

On July 1, 1994, the Services published a series of policies

regarding listings under the ESA, including a policy for peer review of

scientific data (59 FR 34270) and a policy to identify, to the maximum

extent possible, those activities that would or would not constitute a

violation of section 9 of the ESA (59 FR 34272).

(a) Role of Peer Review

The intent of the peer review policy is to ensure that listings are

based on the best scientific and commercial data available. Prior to a

final listing, the Services will solicit the expert opinions of three

qualified specialists, concurrent with the public comment period.

Independent peer reviewers will be selected from the academic and

scientific community, Tribal and other native American groups, Federal

and State agencies, and the private sector.

(b) Identification of Those Activities That Would 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. The Services will identify, to the extent known at the

time of the final rule, 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. Activities that the

Services believe could result in violation of section 9 prohibitions

against ``take'' of the Gulf of Maine DPS of anadromous Atlantic salmon

include, but are not limited to, the following:

(1) Targeted recreational and commercial fishing, bycatch

associated with commercial and recreational fisheries, and poaching;

(2) The holding of reproductively viable non-North American strain

or non-North American hybrid Atlantic salmon in freshwater hatcheries

within the DPS range;

(3) The inability to contain farmed stock in marine cages or

freshwater hatcheries such that they are found entering or existing in

rivers within the DPS range;

(4) Failure to adopt and implement fish health practices that

adequately protect against the introduction and spread of disease;

(5) Siting and/or operating aquaculture facilities in a manner that

negatively impacts water quality and/or benthic habitat.

(6) Discharges (point and non-point sources) or dumping of toxic

chemicals, silt, fertilizers, pesticides, heavy metals, oil, organic

wastes or other pollutants into waters supporting the DPS;

(7) Blockage of migration routes;

(8) Destruction/alteration of the species' habitat (e.g., instream

dredging, rock removal, channelization, riparian and in-river damage

due to livestock, discharge of fill material, operation of heavy

equipment within the stream channel, manipulation of river flow);

(9) Violations of discharge or water withdrawal permits that are

protective of the DPS and its habitat;

(10) Pesticide or herbicide applications in violation of label

restrictions; and

(11) Unauthorized collecting or handling of the species (permits to

conduct these activities are available for purposes of scientific

research or to enhance the propagation or survival of the DPS).

The Services believe that, based on the best available information,

the following actions will not result in a violation of section 9:

(1) Possession of Atlantic salmon acquired lawfully by permit

issued by the Services pursuant to section 10 of the ESA, or by the

terms of an incidental take statement in a biological opinion pursuant

to section 7 of the ESA; or

(2) Federally approved projects that involve activities such as

silviculture, agriculture, road construction, dam construction and

operation, discharge of fill material, siting of marine cages for

aquaculture, stream channelization or diversion for which consultation

under section 7 of the ESA has been completed, and when such activity

is

[[Page 62640]]

conducted in accordance with any terms and conditions given by the

Services in an incidental take statement in a biological opinion

pursuant to section 7 of the ESA.

Critical Habitat

Critical habitat is defined in section 3 of the ESA (16 U.S.C.

1532(3)) as: (1) The specific areas within the geographical area

occupied by a species, at the time it is listed in accordance with the

ESA, in which are found those physical or biological features (I)

essential to the conservation of the species and (II) that may require

special management considerations or protection; and (2) specific areas

outside the geographical area occupied by a species at that time it is

listed upon a determination that such areas are essential for the

conservation of the species. ``Conservation'' means the use of all

methods and procedures needed to bring the species to the point at

which listing under the ESA is no longer necessary.

Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires

that, to the extent prudent and determinable, critical habitat be

designated concurrently with the listing of a species. Designations of

critical habitat must be based on the best scientific data available

and must take into consideration the economic and other relevant

impacts of specifying any particular area as critical habitat. The

Services have determined that it is prudent to designate critical

habitat for the Gulf of Maine DPS of Atlantic salmon and will publish a

proposed designation in a separate rule.

Public Comments Solicited

To ensure that the final action resulting from this proposal will

be as accurate and effective as possible, the Services are soliciting

comments and information from the public, other concerned governmental

agencies, the scientific community, industry, and any other interested

parties. Comments are encouraged on this proposal as well as on the

1999 Status Review. Specifically, the Services are soliciting

information regarding: (1) Biological, commercial trade, or other

relevant data concerning any threat (or lack thereof) to this DPS; (2)

the location of any additional populations of the Gulf of Maine DPS of

Atlantic salmon within the DPS range, including but not limited to Bond

Brook, Togus Stream, Passagassawaukeag River, Kenduskeag Stream, Felts

Brook, and the Pennamaquan River; (3) additional information concerning

the range, distribution, and population size of this DPS; (4) current

or planned activities in the subject area and their possible impacts on

this DPS; (5) additional efforts being made to protect native,

naturally reproducing populations of Atlantic salmon; and (6)

relationship of existing hatchery populations to natural populations of

the DPS.

Final promulgation of the regulation(s) on this species will take

into consideration the comments and any additional information received

by the Services, and such communications may lead to a final regulation

that differs from this proposal.

National Environmental Policy Act

The FWS has determined that Environmental Assessments and

Environmental Impact Statements, as defined under the authority of the

National Environmental Policy Act of 1969 (NEPA), need not be prepared

in connection with regulations adopted pursuant to section 4(a) of the

ESA. The notice for this determination was published in the Federal

Register on October 25, 1983 (48 FR 49244). NMFS has concluded that ESA

listing actions are not subject to the environmental assessment

requirements of the NEPA. See NOAA Administrative Order 216-6.

Classification

The Conference Report on the 1982 amendments to the ESA notes that

economic considerations have no relevance to determinations regarding

the status of species, and that the Regulatory Flexibility Act is not

applicable to the listing process. Similarly, listing actions are not

subject to the requirements of Executive Order 12612 and are exempt

from review under Executive Order 12866.

Federalism

In keeping with the intent of the Administration and Congress to

provide continuing and meaningful dialogue on issues of mutual state/

Federal interest, we summarize below the efforts of the Services to

honor this trust with respect to the listing process for Atlantic

salmon in Maine. Shortly after publication in September 1995 of the

proposed rule to list the Gulf of Maine DPS of Atlantic salmon as

threatened under the ESA, representatives from both Services offered to

work with Maine as advisers while the State developed its Atlantic

salmon conservation plan. That offer was accepted, and the two advisers

spent hundreds of hours reviewing sections of the plan, discussing

options, and suggesting possible improvements. Ultimately, the Services

accepted the Conservation Plan and withdrew the proposed rule.

The Services also were represented on several task forces in

appointed to resolve problems associated with specific salmon-related

issues such as aquaculture and recreational fishing. They were also

instrumental in encouraging the formation of Project SHARE, a private

sector initiative designed to focus on improving salmon habitat. That

effort is continuing to garner support and gain strength.

Finally, the Services have recently been involved in negotiations

with the Governor's office and the Commissioner of Marine Resources to

resolve outstanding issues related to the impact of aquaculture fish on

wild Atlantic salmon. Some of the issues have been resolved, while

discussions are continuing in an effort to resolve remaining issues.

Authors

Authors of this document are Mary Colligan of the NMFS, Paul

Nickerson of the FWS, and Dan Kimball of the FWS.

List of Subjects

50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

50 CFR Part 224

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and record keeping requirements,

Transportation.

Proposed Regulation Promulgation

Accordingly, the U.S. Fish and Wildlife Service proposes to amend

part 17, subchapter B of chapter I, title 50 of the Code of Federal

Regulations, as set forth below.

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in

alphabetical order under FISHES, to the List of Endangered and

Threatened Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

[[Page 62641]]

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate population

------------------------------------------------------ Historic range where endangered or Status When listed Critical Special

Common name Scientific name threatened habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Fishes

* * * * * * *

Salmon, Atlantic................ Salmo salar........ U.S.A., Canada, U.S.A., ME Gulf of E ........... NA NA

Greenland, western Maine Atlantic

Europe. Salmon Distinct

Population Segment,

which includes all

naturally

reproducing wild

populations of

Atlantic salmon

having historical,

river-specific

characteristics

found north of and

including

tributaries of the

lower Kennebec River

to, but not

including, the mouth

of the St. Croix

River at the U.S.-

Canada border. To

date, the Services

have determined that

these populations

are found in the

Dennys, East

Machias, Machias,

Pleasant,

Narraguagus,

Sheepscot, and

Ducktrap Rivers and

in Cove Brook, Maine.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

And accordingly, the National Marine Fisheries Service proposes to

amend part 224, subchapter C of Chapter II, title 50 of the Code of

Federal Regulations, as set forth below.

PART 224-ENDANGERED MARINE AND ANADROMOUS SPECIES

4. 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.

5. In Sec. 224.101, paragraph (a) is revised to read as follows:

Sec. 224.101 Enumeration of endangered marine and anadromous species.

* * * * *

(a) Marine and Anadromous Fish. Shortnose sturgeon (Acipenser

brevirostrum); Totoaba (Cynoscian macdonaldi), Snake River sockeye

salmon (Oncorhynchus nerka), Umpqua River cutthroat trout (Oncorhynchus

clarki clarki); Southern California steelhead (Oncorhynchus mykiss),

including all naturally spawned populations of steelhead (and their

progeny) in streams from the Santa Maria River, San Luis Obispo County,

California (inclusive) to Malibu Creek, Los Angeles County, California

(inclusive); Upper Columbia River steelhead (Oncorhynchus mykiss),

including the Wells Hatchery stock and all naturally spawned

populations of steelhead (and their progeny) in streams in the Columbia

River Basin upstream from the Yakima River, Washington, to the United

States-Canada Border; Upper Columbia River spring-run chinook salmon

(Oncorhynchus tshawytscha), including all naturally spawned populations

of chinook salmon in Columbia River tributaries upstream of the Rock

Island Dam and downstream of Chief Joseph Dam in Washington (excluding

the Okanogan River), the Columbia River from a straight line connecting

the west end of the Clatsop jetty (south jetty, Oregon side) and the

west end of the Peacock jetty (north jetty, Washington side) upstream

to Chief Joseph Dam in Washington, and the Chiwawa River (spring run),

Methow River (spring run), Twisp River (spring run), Chewuch River

(spring run), White River (spring run), and Nason Creek (spring run)

hatchery stocks (and their progeny); Sacramento River winter-run

chinook salmon (Oncorhynchus tshawytscha); Gulf of Maine Atlantic

Salmon (Salmo salar) Distinct Population Segment, which includes all

naturally reproducing wild populations of Atlantic salmon having

historical, river-specific characteristics found north of and including

tributaries of the lower Kennebec River to, but not including, the

mouth of the St. Croix River at the U.S.-Canada border (To date, the

Services have determined that these populations are found in the

Dennys, East Machias, Machias, Pleasant, Narraguagus, Sheepscot, and

Ducktrap Rivers and in Cove Brook, Maine).

* * * * *

Dated: November 10, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

Dated: November 9, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-30014 Filed 11-16-99; 8:45 am]

BILLING CODE 3510-22-P 4310-55-P