[Federal Register: July 14, 2000 (Volume 65, Number 136)]
[Proposed Rules]               
[Page 43730-43732]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF45

Endangered and Threatened Wildlife and Plants; Clarification of 
Take Prohibitions for Coastal Cutthroat Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; clarification.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), provide 
notice that the Endangered Species Act prohibitions against take of 
threatened species will apply to Southwestern Washington/Columbia River 
coastal cutthroat trout and will go into effect on the effective date 
of listing, if the proposed listing of this species is finalized. We 
also provide lists of actions that would, and would not, likely 
constitute a violation of section 9 of the Act and seek comment on 
those lists.

DATES: Comments from all interested parties must be received by August 
14, 2000.

ADDRESSES: Comments and materials should be sent to the U.S. Fish and 
Wildlife Service, Oregon State Office, 2600 SE 98th Avenue, Suite 100, 
Portland, Oregon 97266 (telephone 503/231-6179; facsimile 503/231-
6195), email: coastal__cutthroat@fws.gov. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address.

[[Page 43731]]

FOR FURTHER INFORMATION CONTACT: Kemper McMaster, State Supervisor, 

SUPPLEMENTARY INFORMATION: Based on questions we have received 
regarding the application of the take prohibition of section 9 of the 
Endangered Species Act of 1973, as amended (Act), to the potential 
listing of coastal cutthroat trout (Oncorhynchus clarki clarki) as 
threatened, we are providing the following clarification of our 
position relative to take prohibitions for threatened species.


    On April 5, 1999, the National Marine Fisheries Service (NMFS) and 
the Service jointly published a proposed rule (64 FR 16397) to list the 
Southwestern Washington/Columbia River coastal cutthroat trout 
evolutionarily significant unit (ESU) in Washington and Oregon as 
threatened. On November 22, 1999, we assumed sole regulatory 
jurisdiction over all life forms of coastal cutthroat trout under the 
Act (see 65 FR 21376). On April 14, 2000 (65 FR 20123), we extended by 
6 months (until October 5, 2000) the timeframe to take final action on 
the proposed rule. We needed additional time to review new information 
available since the status review was published and to examine the role 
of hatchery and above-barrier populations of the coastal cutthroat 
trout within southwest Washington and the Columbia River and their 
importance to conservation of the species in this area. Consequently, 
we will take final action on the April 5, 1999, proposed rule by 
October 5, 2000.
    Section 9 of the Act prohibits certain activities, including take, 
for endangered species. Section 4(d) of the Act allows the prohibition 
of any of these activities for threatened species, through promulgation 
of a special rule. The April 5, 1999, proposed rule included the 
stipulation that protective regulations pursuant to section 4(d) of the 
Act would be addressed in the future and that all relevant National 
Environmental Policy Act (NEPA) and Regulatory Flexibility Act (RFA) 
requirements would be met at that time. This stipulation reflects the 
approach that NMFS takes when proposing a species as threatened under 
the Act. However, the Service promulgated regulations establishing 
prohibitions for all threatened species under its jurisdiction on April 
28, 1978 (43 FR 18181), and amended these regulations on May 31, 1979 
(44 FR 31580). As a result, our regulations at 50 CFR 17.31 apply all 
of the take prohibitions for endangered species at Sec. 17.21, except 
Sec. 17.21(c)(5), to threatened wildlife. Since we now have sole 
regulatory authority for coastal cutthroat trout, these regulations 
will apply at the time of listing of any coastal cutthroat trout. 
Therefore, further action relative to NEPA and RFA requirements is not 
necessary for application of these regulations to coastal cutthroat 
trout in Southwestern Washington/Columbia River region, should the 
proposed listing be finalized.
    The regulations at 50 CFR 17.21 and 17.31 prohibit taking (to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 
collect, or attempt to engage in any such conduct) of listed species of 
fish or wildlife without a special exemption. Harm is further defined 
to include significant habitat modification or degradation that results 
in death or injury to listed species by significantly impairing 
behavioral patterns such as breeding, feeding, or sheltering. Harass is 
defined as creating the likelihood of injury to listed species to such 
an extent as to significantly disrupt normal behavior patterns, which 
include, but are not limited to, breeding, feeding, or sheltering (50 
CFR 17.3).
    We recognize that some activities that provide for the conservation 
of the species may result in harm or harassment to individual coastal 
cutthroat trout. These activities may be permitted through a section 
10(a)(1)(A) permit. In the future, we may also implement a section 4(d) 
rule to remove the prohibition against take resulting from activities 
that contribute to the conservation of the species. Such a 4(d) rule 
must go through a full regulatory process, including publication of a 
proposal in the Federal Register and a public comment period. For 
example, a section 4(d) rule could remove the prohibition against take 
resulting from State-regulated recreational fisheries or activities 
covered by local land-use planning regulations, so long as such 
activities provide for the conservation of the species. Activities that 
may result in harm or harassment to individual coastal cutthroat trout 
may also be permitted through section 10(a)(1)(B) with the development 
of a habitat conservation plan that minimizes and mitigates the impact 
to the maximum extent practical.

Activities That Would Not Constitute a Violation of Section 9 of 
the Act

    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is to identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act, as stipulated in 50 CFR 17.21 and 17.31. By presenting this 
information, we hope to increase public awareness of the potential 
effects of the proposed listing on new and ongoing activities within 
the range of coastal cutthroat trout in the Southwest Washington/
Columbia River region. We believe the following actions would not be 
likely to result in a violation of section 9, provided the activities 
are carried out in accordance with all existing regulations and permit 
    (1) Actions that may affect coastal cutthroat trout and are 
authorized, funded, or carried out by a Federal agency when the action 
is conducted in accordance with an incidental take statement issued by 
us pursuant to section 7 of the Act;
    (2) State, local, and other activities for the conservation of the 
coastal cutthroat trout approved by us under section 4(d), section 
6(c)(1), or section 10(a)(1) of the Act;
    (3) The planting of native vegetation within riparian areas, using 
hand tools or mechanical auger. This does not include any site 
preparation that involves the removal of native vegetation (such as 
deciduous trees and shrubs) or that goes beyond that necessary to plant 
individual trees, shrubs, or other plants;
    (4) The installation of fences to exclude livestock impacts to the 
riparian area and stream channel. The installation of new off-channel 
livestock watering facilities and the operation and maintenance of 
existing off-channel livestock watering facilities when such facilities 
consist of low-volume pumping, gravity feed, or well systems, and 
employ in-water intakes that are screened consistent with NMFS' current 
Juvenile Fish Screen Criteria For Pump Intakes. This does not include 
the potential impacts associated with the grazing activity itself or 
negative effects attributable to depleting stream flow due to water 
    (5) The placement of human access barriers, such as gates, fences, 
boulders, logs, vegetative buffers, and signs, to limit use- and 
disturbance-associated impacts. These impacts may include timber theft, 
disturbance to wildlife, poaching, illegal dumping of waste, erosion of 
soils, and sedimentation of aquatic habitats, particularly in sensitive 
areas such as riparian habitats or geologically unstable zones. This 
does not include road maintenance or the potential impacts associated 
with the road itself;
    (6) The current operation and maintenance of fish screens on 
various water facilities that meet the current NMFS' Juvenile Fish 
Screen Criteria for

[[Page 43732]]

Pump Intakes. This does not include the use of traps or other 
collection devices at screen installations, operation of the diversion 
structure, or negative effects attributable to depleting stream flow 
due to water diversion;
    (7) The installation, operation, and maintenance of screens where 
the existing canal or ditch is located off the main stream channel 
when: (a) The canal or ditch is dewatered prior to screen and bypass 
installation and prior to fish entering the canal or ditch; (b) 
Installed screens and bypass structures meet the current NMFS' Juvenile 
Fish Screen Criteria; and (c) Bypass is accomplished through free 
(volitional) access, with adequate velocities, construction materials, 
and stream re-entry conditions that will not result in harm or death to 
fish. This does not include the use of traps or other collection 
devices at screen installations, placement or operation of the 
diversion structure, or negative effects attributable to depleting 
stream flow due to water diversion;
    (8) The general maintenance of existing structures, such as homes, 
apartments, and commercial buildings, which may be located in close 
proximity to a stream corridor, but outside of the stream channel. This 
does not include potential impacts associated with sediment or chemical 
releases that may adversely affect coastal cutthroat trout or their 
habitat, nor does this include those activities that may degrade 
existing riparian areas or alter streambanks (such as removal of 
streamside vegetation and streambank stabilization); and
    (9) The lawful use of existing State, county, city, and private 
roads. This does not include road maintenance and the potential impacts 
associated with the road itself that may destroy or alter coastal 
cutthroat trout habitat (such as grading unimproved roads, stormwater 
and contaminant runoff from roads, failing road culverts, and road 
culverts that block fish migration), unless authorized by us through 
section 6, 7, or 10 of the Act.

Activities That Would Constitute a Violation of Section 9 of the 

    We believe that the following could result in a violation of 
section 9:
    (1) Take of coastal cutthroat trout without a permit or other 
authorization from us. Take includes harassing, harming, pursuing, 
hunting, shooting, wounding, killing, trapping, capturing, or 
collecting, or attempting any of these actions, except in accordance 
with applicable State, National Park Service, and Tribal fish and 
wildlife conservation laws and regulations;
    (2) To possess, sell, deliver, carry, transport, or ship illegally 
taken coastal cutthroat trout;
    (3) Introduction of nonnative fish species that compete or 
hybridize with, or prey on, coastal cutthroat trout;
    (4) Implementation of activities that destroy or alter coastal 
cutthroat trout habitat including, but not limited to: dredging, 
channelization or diversion; riparian vegetation removal that leads to 
reduced shade or the recruitment of large woody debris; in-stream 
vehicle operation or streambed material removal; grading unimproved 
roads; road maintenance activities such as side-casting into riparian 
zones or waterways; failure to control stormwater and contaminant 
runoff from roads or to maintain failing road culverts; and 
installation of road culverts that block fish migration; or other 
activities that result in the destruction or significant degradation of 
water quality or quantity, water temperature, cover, channel stability, 
substrate composition, turbidity, and migratory corridors used by the 
species for foraging, cover, migration, and spawning;
    (5) Discharges, release, or dumping of toxic chemicals, silt, or 
other pollutants into waters supporting coastal cutthroat trout that 
result in death or injury of individuals of the species, including 
misuse of toxic chemicals that enter the water and result in death or 
injury of individuals; and
    (6) Destruction or alteration of stream, riparian, estuarine, or 
lakeshore habitat and adjoining uplands of waters supporting coastal 
cutthroat trout by timber harvest, grazing, mining, hydropower 
development, road construction, habitat restoration, or other 
development activities that result in long- or short-term destruction 
or significant degradation of water quality or quantity, water 
temperature, cover, channel stability, substrate composition, 
turbidity, and migratory corridors used by the species for foraging, 
cover, migration, and spawning.
    We will review other activities not identified above on a case-by-
case basis to determine if a violation of section 9 of the Act may be 
likely to result from such activity. We do not consider these lists to 
be exhaustive and provide them as information to the public.

Comments Solicited

    This rulemaking action does not propose any changes to the 
regulation prohibiting take for threatened wildlife, as stipulated in 
50 CFR 17.31, or the manner in which this prohibition is applied. We 
are soliciting comments on the above list of activities that would, and 
would not, likely constitute a violation of section 9 of the Act. We 
are not soliciting comments on the application of this regulation to 
any other populations of coastal cutthroat trout that may be listed in 
the future.
    Author: The primary authors for this rulemaking action are John A. 
Young, Regional Office, Region 1, and Robin Bown, Oregon State Office 
(see ADDRESSES section).


    The authority for this action is the Endangered Species Act (16 
U.S.C. 1531 et seq.).

    Dated: July 6, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-17921 Filed 7-13-00; 8:45 am]