United States: National Marine Fisheries Service Seeks Comments on West Coast O. mykiss

By Thomas M. Berliner and Karen L. Donovan

NMFS to Apply DPS Policy and List Only West Coast Steelhead Anadromous Forms

On Friday, November 4, 2005, the National Marine Fisheries Service (NMFS) issued a notice seeking additional comments on the listing of ten Evolutionarily Significant Units (ESUs) of West Coast O. mykiss. 70 Fed. Reg. 67130 (Nov. 4, 2005). In the notice, NMFS states that it is reconsidering the decision to apply the 1991 Policy on the Definition of Species Under the Endangered Species Act (ESU Policy) to the O. mykiss stocks and is instead considering applying the 1994 joint NMFS/USFWS Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy). The upshot of this decision is that NMFS is better able to justify listing only the anadromous populations previously listed over the course of several years. The agency is proposing to exclude resident fish from the listings.

This notice is a continuation of the debate over whether the O. mykiss listings should include both anadromous fish, also referred to as steelhead, and resident fish, also referred to as rainbow trout. The agency and others have also been debating which fish should be part of the listing if the resident fish are included. For several years, NMFS has expressed uncertainty regarding the relationship of the resident and anadromous forms of O. mykiss. Some believe that the two forms are indistinguishable genetically, particularly in areas where they co-occur, while others argue that there are relevant distinctions. For years, the agency has excluded resident O. mykiss, whether above or below impassable barriers, in part because of assertions by the U.S. Fish and Wildlife Service (USFWS) that the fish fall within that agency's jurisdiction and should be listed consistent with that agency's policies and determinations.

In 2001, the U.S. District Court in Oregon set aside the threatened listing of Oregon Coast coho because the court found that NMFS had not adequately justified its decision to exclude ten hatchery stocks determined to be part of the threatened Oregon Coast coho ESU. Alsea Valley Alliance v. Evans, 161 F.Supp.2d 1154 (D.Or. 2001). The court was not persuaded that NMFS had adequately set forth a basis for distinguishing the wild and hatchery stocks, and it ruled that once the agency had determined that the coho ESU was a distinct population segment for purposes of a listing determination, the ESA did not permit the listing of a subset of that distinct population segment. Section 3 of the ESA defines a species to include "any subspecies of fish or wildlife of plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. §1532. The court found that when an agency is considering listing a species as threatened or endangered, the Act does not allow for species to be broken into categories any smaller than a distinct population segment.

In response to the Oregon court decision, NMFS announced that it would conduct an updated status review of 27 West Coast salmonid ESUs, including the ten listed steelhead ESUs, looking in particular at whether hatchery fish should be included as part of these listings and whether resident O. mykiss should be included. On June 14, 2004, NMFS proposed to continue applying the ESU Policy to the delineation of population segments of O. mykiss and to list the original ten O. mykiss ESUs, including the resident fish that co-occur with anadromous forms below impassable barriers. 69 Fed. Reg. 33102 (June 14, 2004). After an initial public comment period of 90 days, the agency twice extended the comment period, seeking comment in particular on the listing of resident forms of O. mykiss. USFWS and others sent comments expressing their concerns about the factual and legal basis for making the determination. Subsequently, on June 28, 2005, NMFS published a notice announcing a six-month extension of the final listing determination in order to resolve the disagreement regarding the sufficiency or accuracy of the data on O. mykiss.

In the new notice issued on November 4, NMFS follows the suggestion of USFWS that the agency ensure that the O. mykiss listing determinations conform to the DPS Policy. NMFS, therefore, is discontinuing the use of the ESU Policy for O. mykiss and is instead using the DPS Policy. The DPS Policy adopts similar but slightly different criteria from the ESU Policy for determining when a group of organisms constitutes a distinct population segment. According to the ESU Policy, which historically has applied to all species determinations for Pacific salmonids, a population segment is considered an evolutionarily significant unit if it is substantially reproductively isolated from other conspecific populations, and it represents an important component in the evolutionary legacy of the biological species.

The DPS Policy states that a group of organisms constitutes a distinct population segment if it is discrete from other populations, and it is significant to its taxon. For a group of organisms to be discrete, it must be "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, and behavioral factors." Alternatively, it can be "delimited by international governmental boundaries across which there is a significant difference in exploitation control, habitat management or conservation status." 61 Fed. Reg. 4722 (Feb. 7, 1996).

In the notice, NMFS reverses the decision reached last year and announces its determination that co-occurring anadromous and resident life forms of O. mykiss are discrete and do not warrant inclusion in the same DPS. NMFS notes that despite the apparent reproductive exchange between the resident and anadromous forms, the life forms are markedly separated physically, physiologically, ecologically, and behaviorally. The agency observes, for example, that adult size and fecundity of the forms vary, along with preferred prey and migratory strategy. Based on these differences, NMFS concludes that steelhead populations satisfy the discreteness criterion under the DPS Policy.

NMFS also concludes that the ten West Coast steelhead population segments are also significant to the taxon to which they belong, based on facts including evidence that the loss of the discrete population segment would cause a significant gap in the taxon's range. Based on these determinations and other criteria relevant to listing determinations, NMFS states that it will likely list the proposed Southern California DPS as endangered and list the proposed South-Central California, Central California Coast, California Central Valley, Northern California, Upper Willamette River, and Snake River Basin steelhead DPSs as threatened. The decision is largely in keeping with the prior listing determinations made before the Alsea decision.

NMFS is seeking comments on its decision to apply the DPS Policy to the delineation of O. mykiss DPSs. In particular, NMFS seeks comment on alternative approaches to delineate and list steelhead-only DPSs. NMFS also seeks comment on: 1) the use of the DPS Policy as the basis for listing determinations with respect to O. mykiss; 2) the proposed determination under the DPS Policy that the proposed steelhead DPSs are discrete from other population groups; 3) the finding that the anadromous and resident life forms are discrete and would not warrant delineation within the same DPS; and 4) the finding that, under the DPS Policy, the proposed steelhead DPSs are significant to the O. mykiss species.

Comments are due by December 5, 2005, and may be submitted electronically, by mail, or by hand delivery.

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