Daily Rules, Proposed Rules, and Notices of the Federal Government
On July 16, 1999, we received a petition from Mr. Sam Wright of Olympia, Washington, to list and designate critical habitat for Columbia River populations of eulachon. On November 29, 1999, we determined that while the petition indicated that eulachon catches had recently declined in the Columbia River basin, it did not present substantial scientific information indicating that the petitioned action may be warranted (64 FR 66601). That finding was based on observations that the species is likely more abundant than commercial landings indicate and, based on life history attributes (e.g., the species' high fecundity and short life span) and assumptions from catch data and anecdotal reports, has a demonstrated ability to rebound from periods of low abundance. Additionally, the petition did not provide sufficient information regarding the distinctness of eulachon populations in the Columbia River relative to the other populations in the species' range.
On November 8, 2007, we received a petition from the Cowlitz Indian Tribe requesting that we list the eulachon that spawn south of the U.S. Canada border as threatened or endangered under the ESA. We determined that this petition presented substantial information indicating that the petitioned action may be warranted and requested information to assist with a status review to determine if eulachon warranted listing under the ESA (73 FR 13185, March 12, 2008).
The steps we follow when evaluating whether a species should be listed under the ESA are to: (1) delineate the species under consideration; (2) review the status of the species; (3) consider the ESA section 4(a)(1) factors to identify threats facing the species; (4) assess whether certain protective efforts mitigate these threats; and (5) evaluate and assess the likelihood of the species' future persistence. We provide more detailed information and findings regarding each of these steps later in this notice.
To ensure that this assessment was based on the best available scientific and commercial information, we formed a Biological Review Team (BRT) comprised of Federal scientists from our Northwest, Southwest, and Alaska Fisheries Science Centers, the U.S. Fish and Wildlife Service (FWS), and the U.S. Forest Service. We asked the BRT to first determine whether eulachon warrant delineation into DPSs, using the criteria in the joint NMFS-FWS DPS policy (61 FR 4722, February 7, 1996). We also asked the BRT to assess the level of extinction risk facing the species, describing their confidence that the species is at high risk, moderate risk, or neither. We described a species with high risk as one that is at or near a level of abundance, productivity, and/or spatial structure that places its persistence in question. We described a species at moderate risk as one that exhibits a trajectory indicating that it is more likely than not to be at a high level of extinction risk in the foreseeable future, with the appropriate time horizon depending on the nature of the threats facing the species and the species' life history characteristics. The final report of the BRT deliberations (NMFS, 2010) (hereafter ''status report'') thoroughly describes eulachon biology and natural history, and assesses demographic risks, threats, limiting factors, and overall extinction risk.
On March 13, 2009, we proposed to list the southern DPS of eulachon as a threatened species under the ESA (74 FR 10857), and solicited comments and suggestions from all interested parties including the public, other governmental agencies, the government of Canada, the scientific community, industry, and environmental groups. Specifically, we requested information regarding: (1) eulachon spawning habitat within the range of the southern DPS that was present in the past, but may have been lost over time; (2) biological or other relevant data concerning any threats to the southern DPS of eulachon; (3) the range, distribution, and abundance of the southern DPS of eulachon; (4) current or planned activities within the range of the southern DPS of eulachon and their possible impact on this DPS; (5) recent observations or sampling of eulachon in Northern California rivers, including but not limited to the Klamath River, Mad River, and Redwood Creek; and (6) efforts being made to protect the southern DPS of eulachon. Subsequent to the proposed rule, the BRT produced an updated status report (NMFS, 2010; available on our website at www.nwr.noaa.gov) summarizing new and additional information that has become available since release of the draft status report, responding to substantive peer review and public comments on the draft status report (NMFS, 2008), and presenting the final BRT conclusions on the status of the southern DPS of eulachon.
We solicited public comment on the proposed listing of southern DPS eulachon for a total of 60 days. We did not receive a request for, nor did we hold, a public hearing on the proposal. Public comments were received from nine commenters, and copies of all public comments received are available online at:
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input. Similarly, a joint NMFS/FWS policy requires us to solicit independent expert review from at least
There was substantial overlap between the comments from the independent expert reviewers and the substantive public comments. The comments were sufficiently similar that we have responded to the peer reviewer's comments through our general responses below. The comments received concerning critical habitat are not germane to this listing decision and will not be addressed in this final rule. Those comments will be addressed during any subsequent rulemaking on critical habitat for the southern DPS of eulachon.
We agree that, conceptually, it is reasonable to view stock structure of eulachon in a manner similar to that of Pacific salmonids, and our approach to DPS delineation of eulachon is consistent with our approach to DPS delineation for Pacific salmon (referred to as Evolutionary Significant Units (ESUs); 56 FR 58612, November 20, 1991) and steelhead (61 FR 4722, February 7, 1996). We have found that most Pacific salmonid DPSs consist of numerous populations occupying numerous individual drainages spread over a large geographic area. These populations are demographically independent over short time scales, but experience sufficient reproductive exchange over evolutionary timescales that they share a common evolutionary trajectory. In only a few instances (e.g., sockeye salmon) have we identified a Pacific salmonid DPS comprised of a single river basin. Pacific salmonid DPS structure is thus conceptually consistent with the structure of the proposed southern DPS of eulachon, which may be comprised of multiple sub-populations or “stocks.”
Moreover, neither the available genetic nor the demographic data provide evidence that eulachon in the Fraser and Columbia rivers are “markedly separated,” as required by the DPS policy. With regard to the genetic microsatellite DNA study of Beacham
The recent decline in eulachon escapements to rivers on the West Coast of North America are not confined to areas south of the Nass River. Although not part of the subject DPS, Returning eulachon in Southeast Alaska “have had marked declines in recent years” and “since 2004 there have been minimal returns [of eulachon] in the Burroughs Bay and Behm Canal area” of Southeast Alaska (ADFG, 2009). Commercial and subsistence eulachon fishing was closed in 2009 in Bradfield Canal and in the waters of Burroughs Bay, and the Unuk, Klahini, and Chickamin rivers (ADFG, 2009). Therefore the northern boundary of the DPS does not coincide with areas where declines in eulachon abundance have been observed.
As stated above in our response to Comment 2, the joint DPS policy (61 FR 4722, February 7, 1996) requires that a population segment must be discrete to be considered a DPS, and that the population segment may be considered discrete if it is markedly separated from other populations of the same taxon. The preponderance of available physical, physiological, ecological and behavioral data indicate that eulachon of the Klamath River are not markedly separated from other eulachon within the range of the southern DPS.
We applied the test recommended in Waples
Claims that eulachon occur in the Nooksack River are likely the result of misidentification with longfin smelt (
Eulachon are periodically noted in small numbers in several rivers and creeks on the Washington and Oregon coasts. With regard to coastal rivers of Washington State, occasional or rare occurrences of eulachon were noted in the status report (NMFS, 2008). In addition, the Oregon Department of Fish and Wildlife (ODFW) commented that “[t]he Sandy River [within the Columbia River Basin] in Oregon is the only Oregon tributary known to support a run of eulachon” (ODFW 2009). Documentation of these irregular occurrences of eulachon is usually anecdotal and it is uncertain how these fish are related demographically to eulachon in rivers such as the Fraser and Columbia, where consistent annual runs occur. In addition, eulachon identification can be difficult, and they are easily confused with other smelt species, which has led to misidentification in the past. Occasionally large runs are noticed, usually by the abundance of predatory birds and marine mammals that accompany these runs, in coastal rivers such as the Queets and Quinault. Usually these large run events are separated in time by periods greater than the generation time of eulachon. We do not know enough about the biology of eulachon to know if these eulachon run events represent self-sustaining populations or are simply stray individuals from larger eulachon systems. It is possible that these populations may exist at levels of abundance that would not be detected by the casual observer, only to become noticed in years of high abundance.
We recognize that mandated use of BRDs in offshore shrimp trawl fisheries has substantially reduced bycatch (Hannah and Jones, 2007). However, based on unpublished eulachon bycatch data in Oregon and California from the Northwest Fisheries Science Center (NWFSC) West Coast Groundfish Observer Program, we have concerns about the level of eulachon bycatch (and delayed mortality of eulachon escaping trawl gear) in ocean shrimp (
It is difficult to evaluate the true effectiveness of BRDs in a fishery without knowing the survival rate of fish that are deflected by the BRD and escape the trawl net (Broadhurst 2000; Suuronen 2005; Broadhurst
Although data on survivability of BRDs by small pelagic fishes such as eulachon are scarce, many studies on other fishes indicate that “among some species groups, such as small-sized pelagic fish, mortality may be high” and “the smallest escapees often appear the most vulnerable” (Suuronen, 2005). Results of several studies have shown a direct relationship between length and survival of fish escaping trawl nets, either with or without deflecting grids (Sangster
Our original purpose in citing Sadovy (2001) was not in regard to population resiliency of forage fish species, but in regard to Sadovy's (2001) concept that a critical density of spawning individuals must be present for fertilization to be successful and thus buffer against an Allee effect (i.e., a decrease in fitness when population density is low).
In addition, available information (e.g., disjunct spawning distribution, differences in spawn timing, genetics, life history diversity) suggests that population structure of eulachon roughly conforms to the classical concept of a metapopulation, in which local subpopulations are linked demographically by at least episodic migration, and extinction and recolonization of local subpopulations are common over ecological time frames. In this type of system, at any given point in time, some local subpopulations are expected to be increasing and some declining, and some suitable habitat patches are expected to be uninhabited. We considered whether eulachon subpopulation declines are more pervasive and more pronounced than we would expect to find in a healthy metapopulation. Currently, no subpopulation of the southern DPS of eulachon is abundant (as determined by spawning stock abundance, analysis of fishery catch, or traditional knowledge) or at levels that would be classified as normal or average over the historical time series. Eulachon are in long-term decline throughout the DPS (NMFS, 2010), and current subpopulation trajectories, with the exception of the Columbia River, are well below and out of the range of known historic patterns.
In recent years, estimated eulachon spawner abundance in the Klamath River, Bella Coola River, and Rivers Inlet have all been fewer than 50,000 individual fish and the Fraser River has averaged fewer than 500,000 fish. Thus there is concern that these rivers are below what could be considered the minimum number necessary for viability. Columbia River eulachon were not included in this list as their estimated abundance is likely above this minimum necessary for viability (i.e., > 500,000 individual eulachon).
The ESA defines species to include subspecies or a DPS of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). The FWS and NMFS have adopted a joint policy describing what constitutes a DPS of a taxonomic species (61 FR 4722, February 7, 1996). The joint DPS policy identifies two criteria for making DPS determinations: (1) the population must be discrete in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be significant to the remainder of the taxon to which it belongs.
Additionally, under the joint policy a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) “[i]t is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation”; or (2) “[i]t is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)” of the ESA (61 FR 4725).
If a population segment is found to be discrete under one or both of the above conditions, its biological and ecological significance to the taxon to which it belongs is evaluated. This consideration may include, but is not limited to: (1) “[p]ersistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) [e]vidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) [e]vidence 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; and (4) [e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.” (61 FR 4725).
The ESA defines an endangered species as one that “is in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one that “is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range” (Section 3 (6) and (20) of the ESA). Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR part 424) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or man-made factors affecting its continued existence. We are to make this determination based solely on the best available scientific and commercial information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species.
The primary factors responsible for the decline of the southern DPS of eulachon are the destruction, modification, or curtailment of habitat and inadequacy of existing regulatory mechanisms. The following discussion briefly summarizes our findings regarding threats to the southern DPS of eulachon. More details and supporting evidence can be found in the proposed listing rule (74 FR 10857, March 13, 2009) and the status report (NMFS, 2010). For analytical purposes, we identified and ranked threats for the four primary populations of this DPS: mainland British Columbia rivers south of the Nass River, Fraser River, Columbia River, and Klamath River.
We have identified changes in ocean conditions due to climate change as the most significant threat to eulachon and their habitats. We also believe that climate-induced change to freshwater habitats is a moderate threat to eulachon throughout the range of the southern DPS. There is evidence that climate change is leading to relatively rapid changes in both marine and freshwater environmental conditions that could impact eulachon. Marine, estuarine, and freshwater habitat in the Pacific Northwest has been influenced by climate change over the past 50-100 years and global patterns suggest the long-term trend is for a warmer, less productive ocean regime in the California Current and the Transitional Pacific. Climate-driven changes in stream flow timing and intensity in this area have also occurred and are likely to continue (Morrison
Analyses of temperature trends for the U.S. part of the Pacific Northwest (Mote
Eulachon are basically a cold-water species and are adapted to feed on a northern assemblage of copepods in the ocean during the critical transition period from larvae to juvenile (and much of their recent recruitment failure may be traced to mortality during this critical period). However, there have been recent shifts in the suite of copepod species available to eulachon (Mackas
Warming ocean conditions have allowed both Pacific hake (Phillips
The BRT identified dams and water diversions as moderate threats to eulachon in the Columbia and Klamath rivers where hydropower generation and flood control are major activities, and a low to moderate risk for eulachon in the Fraser and mainland British Columbia rivers where dams are fewer. Dams can slow or block eulachon migration. Water storage and flood control dams and water divisions often alter the natural hydrograph of river systems during the winter and spring months. Dams can also impede or alter bedload movement, changing the composition of river substrates important to spawning eulachon. Degraded water quality is common in some areas occupied by southern DPS eulachon. In the Columbia and Klamath systems, large-scale impoundment of water has increased winter water temperatures, potentially altering the water temperature during eulachon spawning periods (NMFS, 2010). Numerous chemical contaminants are also present in spawning rivers, but the exact effect these compounds may have on spawning and egg development is unknown (NMFS, 2010).
The BRT identified dredging as a low to moderate threat to eulachon in the Fraser and Columbia rivers and a low threat for eulachon in mainland British Columbia rivers due to less dredging activity here. Dredging during eulachon spawning would be particularly detrimental, as eggs associated with benthic substrates are likely to be destroyed.
Commercial harvest of eulachon in the Columbia and Fraser rivers represents a low to moderate threat. Current harvest levels are orders of magnitude lower than historic harvest levels, and a relatively small number of vessels operate in this fishery. However, it is possible that even a small harvest of the remaining stock may slow recovery. No significant commercial fishing for eulachon occurs in the Klamath River or in British Columbia rivers north of the Fraser River. The BRT ranked harvest by recreational and Tribal/First Nations fishers as a very low to low threat to eulachon in all four DPS populations. As described below, it is likely that these harvests have a negligible effect on eulachon abundance.
In Oregon, commercial fishing for eulachon is allowed in the Pacific Ocean, Columbia River, Sandy River, and Umpqua River. In the Pacific Ocean, eulachon can be harvested year-round using any method otherwise authorized to harvest food fish in the open ocean. In the Sandy River, commercial fishing with dip nets is allowed in a small portion of the lower river, year-round, 7 days a week, 24 hours a day. The last large commercial harvest of eulachon in the Sandy River occurred in 1985 (304,500 lbs. (138 metric tons)), with a moderate harvest occurring in 2003 (23,000 lbs. (10 metric tons)) (John North, ODFW, pers. comm.). In the Umpqua River, commercial fishing for eulachon is allowed year-round and 24 hours a day with dip nets and gill nets not more than 600 ft (183 m) in length and of a mesh size no larger than 2 inches (51 mm). Those areas of the Umpqua River not closed to commercial fishing for American shad (
Currently the average weekly effort in the Columbia River mainstem fishery is typically low (2.6 boats/week), with up to 18 vessels participating (ODFW, 2009). In Washington, by permanent rule, commercial fishing for eulachon in the Columbia and Cowlitz rivers is restricted. On the Columbia River, otter trawl gear may be used from 6 p.m. Monday to 6 p.m. (1) on Wednesday of each week from March 1 through March 31, or (2) for boats not exceeding 32 feet in length, 7 days per week from December 1 through March 31 of the following year. Gillnets may be used 7 days per week from December 1 through March 31 of the following year. Hand dip net gear may be used 7 days per week from December 1 of each year through March 31 of the following year. In recent years the January-March fishing periods were closed prior to January 1 by emergency rule, and specific fishing periods were adopted in accordance with the restrictions identified in the Washington and Oregon Eulachon Management Plan (WDFW and ODFW, 2001). Due to low eulachon abundance, the Department of Fisheries and Oceans Canada (DFO) did not authorize any commercial fishing for eulachon in 2008. Historically, commercial fishing for eulachon occurred at low levels in the Fraser River (as compared to the Columbia River). Since 1997, DFO has only twice allowed a commercial harvest of eulachon in the Fraser River (DFO, 2008).
The states of Oregon and Washington have modified sport fishing regulations due to declining eulachon abundance (WDFW and ODFW, 2001). During the eulachon run, the ODFW allows recreational fishers to capture 25 lb (11 kg) per day of eulachon, using a dip net. Each fisher must have his or her own container and only the first 25 lbs (11 kg) of fish captured may be retained. No angling license is required to harvest eulachon in Oregon. The WDFW currently allows harvest of eulachon by dip netting on the Cowlitz River, from 6 a.m. to 10 p.m. on Saturdays from January 1 through March 31. The daily limit on the Cowlitz River is 10 lb (4.5 kg) per person per day. In Washington, the mainstem Columbia River is open for eulachon harvest 24 hours per day and 7 days per week during the eulachon run, and the daily limit is 25 lb (11 kg) per person per day. ODFW and WDFW plan to continue authorizing eulachon sport fishing at appropriate harvest levels based on yearly predictions of eulachon run size. Under the strictest proposed regulations, harvest would be limited to less than 10 percent of the predicted run size. If run size increases beyond predicted levels, then ODFW and WDFW would consider allowing additional harvest (but these more liberal harvest rates have not been specified).
In California, the California Department of Fish and Game (CDFG) currently allows licensed recreational fishers to dipnet up to 25 lb (11 kg) of eulachon per day per person year-round (CDFG, 2008). However, in practice, little to no fishing in California occurs because so few eulachon return each year. In 2008, DFO Canada did not authorize any recreational fishing for eulachon due to low abundance. In general, interest in recreational fishing for eulachon has decreased significantly due to the difficulty of harvesting these fish at their current low abundance.
In the past, eulachon were an important food source for Canadian First Nations and many Native American tribes from northern California to Alaska. In more recent history, tr