E9-20315. Listing Endangered and Threatened Species: Change in Status for the Upper Columbia River Steelhead Distinct Population Segment

AGENCY:

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

ACTION:

Final rule; correcting amendment.

SUMMARY:

We, NMFS, announce that the Upper Columbia River steelhead is reclassified as a threatened species consistent with a recent court ruling. We also correct the table of threatened fishes to indicate that the same species is listed as threatened under the Endangered Species Act of 1973 (ESA). This species was inadvertently dropped from the table during an unrelated rulemaking.

DATES:

Effective August 24, 2009.

FOR FURTHER INFORMATION CONTACT:

For further information regarding this notice contact Eric Murray, NMFS, Northwest Region, [phone]; or Marta Nammack, NMFS, Office of Protected Resources, [phone].

SUPPLEMENTARY INFORMATION:

Background

In 1997, we completed a comprehensive status review of West Coast steelhead (Oncorhynchus mykiss) that resulted in ESA listings for Upper Columbia River (UCR) steelhead and nine other distinct population segments (DPSs) of West Coast steelhead (62 FR 43937; Busby et al., 1996). At that time, we determined that the UCR steelhead was an endangered species. In January 2006, we reclassified the UCR steelhead from endangered to threatened based on an updated review that noted increasing steelhead abundance, more widespread spawning, and artificial propagation programs aimed at improving local adaptation and diversity within the range of this DPS (71 FR 834; January 5, 2006 ). The decision to downlist UCR steelhead was also based on our application of a recent Policy on the Consideration of Hatchery-Origin Fish in Endangered species Act Listing Determinations for Pacific Salmon and Steelhead (70 FR 37204: June 28, 2005). Subsequent to this downlisting, we also published protective regulations (71 FR 5178; February 1, 2006), designated critical habitat (70 FR 52630; September 2, 2005), and adopted a recovery plan (72 FR 57303; October 10, 2007) for UCR steelhead. In April 2006, our decision to downlist UCR steelhead from endangered to threatened was challenged in the U.S. District Court for the Western District of Washington.

On June 13, 2007, the district court ruled that we had erred in downlisting UCR steelhead, concluding that we had not given appropriate consideration to self-sustaining natural populations (Trout Unlimited v. Lohn, C06-0483-JCC, 2007). The result of this ruling was to return UCR steelhead to endangered status. We appealed that decision to the U.S. Court of Appeals for the Ninth Circuit, and on March 16, 2009, that court ruled that our downlisting did not violate the ESA and that, on remand, the district court should grant NMFS' motion for summary judgment. Accordingly, on June 18, 2009, the district court revised its ruling, effectively re-instating UCR steelhead to threatened status under the ESA.

Current Status

Consistent with the Courts' rulings and our listing determination of January 5, 2006 (71 FR 834), the UCR steelhead is listed as threatened under the ESA. Critical habitat was designated for UCR steelhead on September 2, 2005 (70 FR 52630). The protective regulations issued for UCR steelhead on February 1, 2006 (71 FR 5178) are now effective. A recovery plan was adopted for UCR steelhead on October 9, 2007 (72 FR 57303).

Correcting Amendment

In the May 9, 2006, issue of the Federal Register, we published a final rule to implement our determination to list elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals as threatened species under the ESA (7l FR 26852). In the same action, we made a format change to ensure that all threatened species listed under sect;(223.102 were in table format to match the threatened fishes table. By mistake, we did not include the already listed UCR steelhead DPS in § 223.102(c). This document corrects the table in § 223.102(c) to include the UCR steelhead DPS as a threatened species.

References

Copies of previous Federal Register Notices and reference materials are available on the Internet at http://www.nwr.noaa.gov, or upon request (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 223

• Endangered and threatened species
• Exports
• Imports
• Transportation

Dated: August 17, 2009.

Samuel D. Rauch III,

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

Accordingly, 50 CFR part 223 is corrected by making the following correcting amendment:

PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as follows:

Authority: 16 U.S.C. 1531-1543.

2. In § 223.102, paragraph (c)(25) is added to the table to read as follows:

§ 223.102

Enumeration of threatened marine and anadromous species.

* * * * *

Species1		Where Listed	Citation(s) for Listing Determination(s)	Citation(s) for Critical Habitat Designation(s)
Common Name	Scientific Name
(c) * * *
(25) Upper Columbia River steelhead	Oncorhynchus mykiss	U.S.A., WA, Distinct Population Segment including all naturally spawned anadromous O. mykiss (steelhead) populations below natural and manmade impassable barriers in streams in the Columbia River Basin upstream from the Yakima River, Washington, to the U.S.-Canada border, as well as six artificial propagation programs: the Wenatchee River, Wells Hatchery (in the Methow and Okanogan Rivers), Winthrop NFH, Omak Creek, and the Ringold steelhead hatchery programs.	71 FR 834; January 5, 2006	70 FR 52630; September 2, 2005
*          *          *          *          *          *          *
1 Species includes taxonomic species, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996) and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).