The USFWS and the NMFS (collectively "the Services") received identical petitions In October and November of 1993 from RESTORE: The North Woods, Biodiversity Legal Foundation, and Jeffrey Elliot to list the Atlantic salmon (Salmo salar) throughout its historic range in the contiguous United States under the Endangered Species Act of 1973, as amended, 16 U.S.C. ยง 1531 et seq. (ESA). The Services published a notice on January 20, 1994 that the petition presented substantial scientific information indicating that a listing may be warranted and requested information from the public.
The Services concurrently initiated a study of the status of U.S. Atlantic salmon in relation to the ESA. A biological review team consisting of three members from each Service was appointed to review the petition, prepare a formal status review, and make recommendations as to the appropriate joint agency petition response. The Team evaluated the status of Atlantic salmon by analyzing trends in historic and current relative abundance and spawner escapement goals. The status of the distinct population segment was then examined in relation to the ESA which defines an endangered species as one "in danger of extinction throughout all or a significant portion of its range", and a threatened species as one "likely to become endangered in the foreseeable future." Section 4(b)(1)(a) of the ESA provides that the Secretaries of the Interior and of Commerce shall make listing determinations based 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 being made by any state or foreign nation to protect such species. A species may be determined to be threatened or endangered because of any 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) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence (ESA Section 4(a)(1)).
The Services drafted a status review in January 1995 to assist in making the 12-month petition finding. It was submitted for peer review and made available for public review. The Services denied the original petition and determined that listing the species throughout its historic range was not warranted. The January 1995 status review concluded that the DPS, comprised of Atlantic salmon 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 state and foreign efforts to protect the species, the Services proposed to list the seven rivers DPS as a threatened species under the ESA. The proposed rule contained a special rule under Section 4(d) of the ESA, which allowed for a State plan, approved by the Services, to define the manner in which certain activities could be conducted without violating the ESA.
The Governor of Maine issued an Executive Order on October 20, 1995, appointing the Maine Atlantic Salmon Task Force and charged that Task Force with preparation of a conservation plan for the protection and recovery of Atlantic salmon in the seven rivers. In the fall of 1996, the State held public hearings on the Conservation Plan and solicited and accepted comments from the public concerning the content of the Conservation Plan. In March of 1997, the Maine Atlantic Salmon Task Force submitted the Atlantic Salmon Conservation Plan for Seven Maine Rivers (Conservation Plan) to the Services.
The Services reopened the public comment period for the proposed threatened designation on May 23, 1997, to obtain public comments on the Conservation Plan and other new information which included adult returns, redd counts, fry stocking, habitat assessments, commercial fishing agreements and management measures (62 FR 28413). 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. 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 in December 1997 that the Gulf of Maine DPS was not likely to become endangered in the foreseeable future and therefore an ESA listing was not warranted.
The Governor of Maine issued Executive Orders on December 15, 1997 and April 23, 1997, charging all state agencies with implementing the Conservation Plan. The Executive Order named the Land and Water Resources Council (LWRC) as the entity responsible within the State for implementing the Plan and monitoring its progress. The LWRC is composed of the Commissioners of the Departments of Environmental Protection (DEP), Conservation (DOC), Marine Resources (DMR), Agriculture (DAFRR), Transportation (DOT), Human Services, Economic and Community Development, and Inland Fisheries and Wildlife (IF&W). The LWRC is chaired by the director of the State Planning Office (SPO). The Chair of the Atlantic Salmon Authority (ASA) is a member of the LWRC for all matters that involve or affect Atlantic salmon. To facilitate Conservation Plan implementation, the LWRC created an Atlantic Salmon Committee (LWRC ASC) which includes the Commissioners of DMR, DEP, IF&W, DAFRR, DOC, DOT, the ASA chair, SPO director and representatives from each Watershed Council (Watershed Councils for each river were formed as an outgrowth of the Conservation Plan). On December 15, 1998, the Services also entered into a Statement of Cooperation with Maine in support of implementation of he Conservation Plan.
In the December 18, 1997 Federal Register notice, the Services renamed the seven rivers DPS 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 their commitment to make the state's annual reports on implementation of the Conservation Plan available to the public for review and comments and also outlined three circumstances under which the process for listing the Gulf of Maine DPS of Atlantic salmon under the ESA would be reinitiated. The three circumstances which would lead to a reinitiation of the process for listing were as follows: (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 Maine's 1998 Annual Progress Report on Conservation Plan implementation in January 1999. As indicated in the 1997 Federal Register notice, the Services published a Federal Register notice on January 20, 1999 to request assistance from the public in determining whether the protective measures in place, including the provisions of the Conservation Plan, remained adequate to protect the species in light of current knowledge (64 FR 3067). That comment period closed on March 8, 1999. On March 24, 1999 the Services provided comments to the State on the Annual Progress Report. On April 23, 1999, the State provided the Services with a response that included amendments to the Conservation Plan.
In order to conduct a comprehensive review, the biological status review team (BRT) has updated the 1995 status review for Atlantic salmon. Current team members are as follows: from NMFS - Mary A. Colligan, Fishery Biologist, Protected Resources Division, Northeast Region, Gloucester, MA; and John F. Kocik, Research Fishery Biologist, Population Dynamics Branch, Northeast Fisheries Science Center, Woods Hole, MA; From the Fish and Wildlife Service - Dan C. Kimball, Atlantic Salmon Recovery Specialist, Region 5, Hadley, MA; Jerry Marancik, Maine Fisheries Program Coordinator, East Orland, ME; Joseph F. McKeon, Fisheries Biologist/Project Leader, Office of Fishery Assistance, Laconia, NH; and Paul R. Nickerson, Chief, Endangered Species Division, Region 5, Hadley, MA.
Acknowledgments
Relevant comments and supplemental information submitted by interested parties on the 1995 Status Review and other events since that time were reviewed by the Team and incorporated in this Review, as appropriate. The Team also acknowledges the assistance of the staff of the Maine Atlantic Salmon Authority, Dr. Russell Brown, Dr. Kevin Friedland and Ruth Haas-Castro of the NMFS Northeast Fisheries Science Center, Dr. Robin Waples of NMFS Northwest Fisheries Science Center and Dr. Tim King, USGS-BRD, Leetown Science Center. In addition, the team thanks the Services' reviewers who provided comments on the draft status review.