[Federal Register Volume 71, Number 219 (Tuesday, November 14, 2006)]
[Proposed Rules]
[Pages 66298-66301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19194]



National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 060621175-6175-01; I.D. 101805A]

Endangered and Threatened Wildlife and Plants; 90-Day Finding for 
a Petition to List the Kennebec River Population of Anadromous Atlantic 
Salmon as Part of the Endangered Gulf Of Maine Distinct Population 

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

ACTION: Notice of 90-day petition finding; request for information.


SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
Kennebec River population of anadromous Atlantic salmon (Salmo salar) 
as endangered under the Endangered Species Act (ESA) of 1973, as 
amended. We find that the petition presents substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. This normally initiates a formal status review, but as 
described below under Summary of Previous ESA Actions, in this case, we 
and the U.S. Fish and Wildlife Service (USFWS) had already initiated a 
status review of this and other populations, resulting in NMFS' 
announcement of the completed status review report on September 22, 

DATES: The finding announced in this document was made on November 14, 

978-281-9116; or Marta Nammack, NMFS Office of Protected Resources, 
301-713-1401, ext. 180.



    Section 4(b)(3)(A) of the ESA requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial information to indicate that the petitioned action may be 
warranted. To the maximum extent practicable, this finding is to be 
made within 90 days of receipt of the petition, and the finding is to 
be published promptly in the Federal Register.
    In determining whether a petition contains substantial information, 
we take into account information submitted with and referenced in the 
petition and all other information readily available in our files. We 
do not conduct additional research at this point, nor do we subject the 
petition to critical review. Our ESA implementing regulations at 50 CFR 
424.14(b)(1) define ``substantial information'' as the amount of 
information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted. If the petition is 
found to present such information, the Secretary of Commerce 
(Secretary) must conduct a status review of the involved species. In 
making a finding on a petition to list a species, the Secretary must 
consider whether such a petition (i) clearly indicates the 
administrative measure recommended and gives the scientific and any 
common name of the species involved; (ii) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (iii) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (iv) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    In a petition submitted on May 11, 2005, Timothy Watts, Douglas 
Watts, Ed Friedman, and Kathleen McGee requested that we and the USFWS 
declare the Kennebec River population of anadromous Atlantic salmon 
endangered under the ESA and presented the following three main areas 
of evidence to support their request: (1) historic information on the 
presence of Atlantic salmon; (2) information on other native migratory 
fish populations in the Kennebec; and (3) microsatellite DNA analysis 
of Atlantic salmon in the Kennebec. It is the petitioners' contention 
that historic observations of Kennebec River Atlantic salmon from the 
18th century to the present demonstrate that there was no period in the 
19th and 20th centuries during which Atlantic salmon were absent from 
the Kennebec River. The petition states that populations of native 
migratory fish species have also persisted in the Kennebec despite 
being subjected to the same environmental pressures as Atlantic salmon. 
The petition also contends that microsatellite DNA analysis of tissue 
samples from 180 wild Atlantic salmon captured in the Kennebec River by 
the USFWS from 1994 to the present show that wild Kennebec River salmon 

[[Page 66299]]

genetically distinct from other hatchery and wild populations of 
Atlantic salmon in Maine.
    Under the ESA, a listing determination can address a species, 
subspecies, or distinct population segment (DPS) of a vertebrate 
species (16 U.S.C. 1532(15)). The petition requests protecting the 
Kennebec River population of Atlantic salmon in addition to the 
existing Gulf of Maine (GOM) DPS that was previously delineated and 
listed under the ESA as endangered. A DPS is a vertebrate population 
that is discrete in relation to the remainder of the species to which 
it belongs and significant to the species (61 FR 4722; February 7, 
1996). We interpret the petition to request listing the Kennebec River 
population as part of the existing GOM DPS.
    We evaluated whether the information provided or cited in the 
petition met the ESA's standard for ``substantial information.'' We 
reviewed the information presented in the petition and other readily 
available biological information on anadromous Atlantic salmon in the 
Kennebec River to determine whether the petitioned action may be 

General Biology and Status of the Species

    The Atlantic salmon, Salmo salar, is in the order Salmoniformes and 
family Salmonidae. Atlantic salmon is one of only two members of the 
genus Salmo found in North America. The Atlantic salmon is an 
anadromous fish, spending its first 2 to 3 years in freshwater, 
migrating to the ocean where it spends typically 2 years, and returning 
to its natal river to spawn. A non-anadromous variety (recognized in 
the past by some taxonomists as the subspecies S. salar sebago) is 
found in some lakes and rivers. The other member of the genus Salmo is 
Salmo trutta, brown trout, which was introduced from Europe.
    Atlantic salmon have a fusiform body shape (i.e., like a spindle, 
rounded, broadest in the middle and tapering at each end). The shape is 
somewhat flattened towards the sides and typical of salmonids in 
general. The head is relatively small, comprising approximately one-
fifth of body length. Ventral paired fins are prominent, especially on 
    Parr (juvenile salmon before they enter salt water) have eight to 
eleven vertical dark bars (known as ``parr marks'') on silvery sides. 
After smoltification (the physiological process that enables juvenile 
salmon to transition from freshwater to salt water and enter the sea), 
the typical silver coloration with small, dark dorsal spots of the sea-
run pre-adult predominates. Spawning adults darken to a bronze color 
after entering freshwater and darken further after spawning. They are 
often referred to as ``black salmon'' at this stage. The silver 
coloring returns after re-entering the sea.
    Outmigrating Atlantic salmon smolts in Maine average 14 to18 
centimeters (cm) in length. The size of returning adults depends on the 
time spent at sea. Grilse, young salmon returning to freshwater after 1 
winter at sea (1SW), average 50 to 60 cm and weigh 1 to 2 kilograms 
(kg) while 2SW salmon (adult salmon returning after 2 years at sea) 
range from 70 to 80 cm and 3.5 to 4.5 kg. Salmon that are 3SW (adult 
salmon returning after 3 years at sea) are 80 to 90 cm long and often 
weigh more than 7 kg (Baum, 1997).
    Historically, the geographic range of the GOM DPS within the United 
States extended from the Androscoggin River in the south of Maine, 
northward to the mouth of the St. Croix River on the United States-
Canada border (NMFS and USFWS, 1999). This delineation was based on 
examination of life history, biogeographical, genetic, and 
environmental information. Zoogeographic maps helped identify 
boundaries between areas that likely exert different selective 
pressures on Atlantic salmon populations and have substantial 
differences in riverine-marine ecosystem structure and function. Key 
elements to the delineation included: (1) spatial arrangements of river 
systems to create isolation, and (2) watershed location within 
ecological provinces and subregions that affect the productivity and 
ecology of riverine-marine ecosystem complexes (NMFS and USFWS, 1999).

Summary of Previous ESA Actions

    In response to a petition submitted in 1993 to list Atlantic salmon 
under the ESA, NMFS and the USFWS (the Services) completed a review of 
the species' status in 1995 (USFWS and NMFS, 1999). The Services 
concluded that the GOM DPS was likely to become endangered. Later in 
1995, the Services published a proposed rule to list a GOM DPS of 
Atlantic salmon in seven Maine rivers as threatened (60 FR 50530; Sept. 
29, 1995). In that proposed rule, the State of Maine was invited to 
prepare a plan to eliminate, minimize, and mitigate threats to Atlantic 
salmon and their habitat. On December 18, 1997, the Services withdrew 
the proposed rule to designate the Atlantic salmon GOM DPS as 
threatened (62 FR 66325; Dec. 18, 1997). The withdrawal was based on an 
evaluation of the information then known about the biological status of 
the species, as well as consideration of ongoing actions by 
international, State, Federal, and private entities, including the 
State's Atlantic Salmon Conservation Plan for Seven Maine Rivers 
(Conservation Plan) (MASCP, 1997). The Services committed to review 
this decision on an annual basis.
    In January 1999, the Services received the State of Maine's 1998 
Annual Progress Report on implementation of the Conservation Plan (ASC, 
1998). After review of the Annual Report, public comments, and a 1999 
Atlantic salmon status review report (NMFS and USFWS, 1999), the 
Services determined that the species' status was more precarious than 
indicated by the available information at the time of the December 1997 
determination not to list the species (64 FR 62627). On November 17, 
1999, the Services proposed to list the Atlantic salmon GOM DPS, this 
time as an endangered species. After review of public comments and 
consideration of the best available scientific and commercial 
information and data, the Services published a final rule on November 
17, 2000, listing the Atlantic salmon GOM DPS as an endangered species 
(65 FR 69459).
    The GOM DPS includes all naturally reproducing wild populations and 
those river-specific hatchery populations of Atlantic salmon having 
historical, river-specific characteristics found north of and including 
tributaries of the lower Kennebec River, to, but not including, the 
mouth of the St. Croix River at the United States-Canada border. The 
Penobscot and its tributaries downstream from the site of the Bangor 
Dam are included in the range of the GOM DPS (65 FR 69459; November 17, 
2000). At the time of the listing, there were at least eight rivers 
within the geographic range of the GOM DPS that still contained 
functioning wild salmon populations, although at substantially reduced 
abundance levels (65 FR 69459; November 17, 2000). These remnant 
populations are located in the Dennys, East Machias, Machias, Pleasant, 
Narraguagus, Ducktrap, and Sheepscot rivers and in Cove Brook, Maine 
(65 FR 69459; November 17, 2000). Salmon from the GOM DPS taken for 
hatchery rearing and broodstock purposes, and any captive progeny of 
these salmon, are included as part of the GOM DPS. In the final rule 
listing the Atlantic salmon GOM DPS (65 FR 69459), the Services 
deferred the determination of inclusion of fish that inhabit the 
mainstem and tributaries of the Penobscot River (above the site of the 
former Bangor Dam (65 FR 69459 at 69464; November 17, 2000)) and other 
rivers, which are outside the

[[Page 66300]]

range of the GOM DPS. The deferred decision reflected the need for 
further analysis of scientific information, including a detailed 
genetic characterization of the Penobscot population.
    In response to the availability of new genetic data, the Services 
convened a Biological Review Team (BRT) to conduct a review of that new 
information and to determine the status of Atlantic salmon in the 
Penobscot River, Kennebec River, and other rivers not currently 
included in the GOM DPS. The BRT, consisting of biologists from the 
Maine Atlantic Salmon Commission, the Penobscot Indian Nation, NMFS, 
and USFWS, prepared a written draft status review report for the 
Services. The information presented in the petition, along with all 
other relevant scientific data, was examined by the BRT in its 
preparation of a status review report. We announced the availability of 
the completed status review report on September 22, 2006 (71 FR 55431), 
after the draft status review report had been peer reviewed and peer 
review comments had been addressed.
    A status review report is an evaluation of the available 
information about the biological vulnerability of a species, 
subspecies, or DPS. Information considered during a status review 
includes demographic information such as abundance, reproductive 
success, age structure, and distribution. A status review report 
considers both historical and recent trends in these parameters, to the 
extent that this information is available. The status review report 
must also evaluate the current and potential threats facing the species 
and ongoing efforts to protect the species, subspecies, or DPS.

The Petition

    The petition requested that the Services protect the Kennebec River 
population of anadromous Atlantic salmon under the ESA. Although we 
have already conducted a status review of this and other populations 
(71 FR 55431; September 22, 2006), the ESA requires that we respond to 
a petition by publishing a Federal Register notice with our finding on 
the petition.
    The Services examined the information contained in the petition as 
well as other genetic data readily available to the Services. This 
petition presents historic information to support its contention that 
anadromous Atlantic salmon have persisted in the Kennebec River since 
the 18th century. The information presented includes, but is not 
limited to, historical newspaper reports; summaries collected by 
historians on anecdotal reports pertaining to the presence of Atlantic 
salmon in the drainage; historic personal diaries; historic Maine 
statutes; historic petitions to the Maine legislature regarding 
Atlantic salmon fisheries; and more contemporary biological studies 
(Atkins, 1867; Ulrich, 1990; Havey, 1968; Foye et al., 1969; Beland, 
1986; Buckley, 1998; King et al., 1999). The petition also cites 
observations made by the National Academy of Sciences (NAS) in 2004 
that wild Atlantic salmon are recolonizing the Kennebec mainstem. The 
NAS cites National Research Council (NRC, 2002) data and associated 
reports as the basis for these conclusions.
    The second area of information presented in the petition to support 
the petitioners' request is the persistence of other native migratory 
fish species in the Kennebec River. The petition specifically discusses 
Atlantic sturgeon, sea lamprey, shortnose sturgeon, striped bass, white 
perch, American shad, rainbow smelt, tomcod, alewives, and blueback 
herring. The petition asserts that the Kennebec River population of 
anadromous Atlantic salmon must have persisted if these native 
anadromous fish species have been able to persist over time while being 
subjected to the same environmental pressures as native Atlantic 
salmon. With respect to dams, the petition cites studies by Yoder et 
al. (2004) and Squiers (1988) that demonstrate that other native 
migratory fish populations have persisted despite manmade obstructions 
to passage. The petition asserts that it is highly unlikely that 
Atlantic salmon populations would be completely extirpated as a result 
of dams when other fish species have been able to persist. The same 
rationale is presented as support for the persistence of Atlantic 
salmon in the Kennebec River with respect to other threats such as 
degraded water quality.
    Genetic analysis used to characterize Atlantic salmon in the 
Kennebec River is the third area for which the petition presents 
information to support the assertion that the Kennebec River population 
of anadromous Atlantic salmon should be listed under the ESA as 
endangered. The petition presents information from the NRC report on 
the genetic status of Maine's salmon. The NRC report presents results 
of genetic assignment tests that were performed on Atlantic salmon from 
different Maine drainages. The petition asserts that these data show 
that the salmon populations of the Kennebec drainage are more distinct 
than are those of the current GOM DPS rivers. Therefore, the petition 
interprets the NRC report to suggest that there is a remnant population 
of wild salmon in the Kennebec that should be incorporated into any 
restoration effort. The petition asserts that the data collected from 
the assignment testing contradict the hypothesis that Kennebec salmon 
are simply strays from the Penobscot or progeny of strays from the 
Penobscot. The petition also states that ``The assignment test results 
of King et al. (1999) show that the Kennebec collection is no less 
distinct than any other Maine river collection studied [and that] the 
Kennebec collection appears at least or more ``distinct'' as any other 
Maine collection studied except for the Penobscot.'' The petition also 
cites a memo from T. King to J. Marancik and Kings' genetics data from 
1999 and 2000 as support for its assertion that there is a stable 
reproducing population in the Kennebec that is not simply 
representative of strays from the Penobscot. The petition asserts that 
if the Kennebec collection was comprised solely of Penobscot strays or 
their offspring, then it is likely that fish in the Kennebec would be 
genetically indistinguishable from Penobscot strays.

Assessment of Petition

    The primary request of the petitioners appears to be that Atlantic 
salmon in the Kennebec River warrant protection under the ESA. We 
interpret the petition to request listing the Kennebec River population 
of anadromous Atlantic salmon as part of the existing GOM DPS, 
previously listed as endangered under the ESA. The petition includes 
scientific data, primarily genetic analysis regarding the Kennebec 
River population, that has become available since the 1999 status 
review and subsequent listing determination for the GOM DPS in 2000. 
Further, the petitioners provide information that the Kennebec River 
population may be part of the existing GOM DPS. We specifically 
consider the genetic analysis presented in the petition to represent 
substantial scientific information. After reviewing the information 
contained in the petition, as well as other scientific information 
readily available to us, we have determined that the petition presents 
substantial scientific information indicating that the petitioned 
action may be warranted.
    As stated previously, the status review report prepared by the BRT 
examined the information contained in the petition, along with all 
other relevant scientific data. We made this status review report 
available to the public on September 22, 2006 (71 FR 55431). The 
Services jointly administer the ESA as it applies to anadromous 
Atlantic salmon. NMFS, having received

[[Page 66301]]

the status review from the BRT, is responsible for determining and 
preparing any appropriate action under the ESA. NMFS is currently 
considering the information presented in the status review, the 
comments from peer reviewers, and the response of the BRT to the peer 
reviewers to determine if action under the ESA is warranted.


    The authority for this action is the ESA, as amended (16 U.S.C. 
1531 et seq.).

    Dated: November 7, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E6-19194 Filed 11-13-06; 8:45 am]