[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Rules and Regulations]
[Pages 35979-35995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15370]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2009-0050; 92220-1113-0000-C3]
RIN 1018-AW60
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Bull Trout in the Clackamas
River Subbasin, OR
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), jointly with
the State of Oregon, and in cooperation with the U.S. Forest Service,
Mt. Hood National Forest (USFS), National Marine Fisheries Service
(NMFS), and Confederated Tribes of the Warm Springs Reservation of
Oregon (CTWSRO), will establish a nonessential experimental population
(NEP) of bull trout (Salvelinus confluentus) in the Clackamas River and
its tributaries in Clackamas and Multnomah Counties, Oregon, under
section 10(j) of the Endangered Species Act of 1973, as amended (Act).
The geographic boundaries of the NEP include the entire Clackamas River
subbasin as well as the mainstem Willamette River, from Willamette
Falls to its points of confluence with the Columbia River, including
Multnomah Channel. The best available data indicate that reintroduction
of bull trout to the Clackamas River subbasin is biologically feasible
and will promote the conservation of the species.
DATES: This rule is effective June 21, 2011.
ADDRESSES: This final rule, along with the public comments,
Environmental Assessment (EA), and Finding of No Significant Impact
(FONSI), is available on the Internet at http://www.regulations.gov.
Comments and materials received, as well as supporting documentation
used in the preparation of this final rule, are also available for
inspection, by appointment, during normal business hours, at the U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE.
98th Avenue, Suite 100, Portland, Oregon 97266; (telephone 503-231-
6179).
FOR FURTHER INFORMATION CONTACT: Chris Allen at the address listed
above. If you use a telecommunication device for the deaf (TDD), call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Statutory and Regulatory Framework
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j) which allows for the designation of
reintroduced populations of listed species as ``experimental
populations.'' Under section 10(j) of the Act and our regulations at 50
CFR 17.81, the Service may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable natural habitat outside the species' current
natural range (but within its probable historical range, absent a
finding by the Director of the Service in the extreme case that the
primary habitat of the species has been unsuitably and irreversibly
altered or destroyed).
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find, by
regulation, that such release will further the conservation of the
species. In making such a finding, the Service uses the best scientific
and commercial data available to consider: (1) Any possible adverse
effects on extant populations of a species as a result of removal of
individuals, eggs, or propagules for introduction elsewhere; (2) the
likelihood that any such experimental population will become
established and survive in the foreseeable future; (3) the relative
effects that establishment of an experimental population will have on
the recovery of the species; and (4) the extent to which the introduced
population may be affected by existing or anticipated Federal or State
actions or
[[Page 35980]]
private activities within or adjacent to the experimental population
area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s); (2) a finding, based solely on the best scientific and
commercial data available, and the supporting factual basis, on whether
the experimental population is, or is not, essential to the continued
existence of the species in the wild; (3) management restrictions,
protective measures, or other special management concerns of that
population, which may include but are not limited to, measures to
isolate and/or contain the experimental population designated in the
regulation from natural populations; and (4) a process for periodic
review and evaluation of the success or failure of the release and the
effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate
State fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners in developing and
implementing experimental population rules. To the maximum extent
practicable, section 10(j) rules represent an agreement between the
Service, the affected State and Federal agencies, and persons holding
any interest in land which may be affected by the establishment of an
experimental population.
Under 50 CFR 17.81(f), the Secretary of the Interior (Secretary)
may designate critical habitat as defined in section 3(5)(A) of the Act
for an essential experimental population. In those situations where a
portion or all of an essential experimental population overlaps with a
natural population of the species during certain periods of the year,
no critical habitat will be designated for the area of overlap unless
implemented as a revision to critical habitat of the natural population
for reasons unrelated to the overlap itself. No designation of critical
habitat will be made for nonessential experimental populations.
Any population determined by the Secretary to be an experimental
population will be treated as if it were listed as a threatened species
for purposes of establishing protective regulations with respect to
that population. The protective regulations adopted for an experimental
population will contain applicable prohibitions, as appropriate, and
exceptions for that population.
Any experimental population designated for a listed species (1)
determined not to be essential to the survival of that species and (2)
not occurring within the National Park System or the National Wildlife
Refuge System, will be treated for purposes of section 7 (other than
subsection (a)(1) thereof) as a species proposed to be listed under the
Act as a threatened species.
Any experimental population designated for a listed species that
either (1) has been determined to be essential to the survival of that
species, or (2) occurs within the National Park System or the National
Wildlife Refuge System as now or hereafter constituted, will be treated
for purposes of section 7 of the Act as a threatened species.
Notwithstanding the foregoing, any biological opinion prepared pursuant
to section 7(b) of the Act and any agency determination made pursuant
to section 7(a) of the Act will consider any experimental and
nonexperimental populations to constitute a single listed species for
the purposes of conducting the analyses under such sections.
On December 9, 2009, the Service published: (1) A proposed rule in
the Federal Register to establish a nonessential experimental
population of bull trout in the Clackamas River subbasin, Oregon (74 FR
65045); and (2) a draft environmental assessment (EA) in accordance
with the National Environmental Policy Act of 1969, as amended (NEPA)
(74 FR 65045). This document analyzed the potential environmental
impacts associated with the proposed reintroduction. We contacted
interested parties including Federal and State agencies, local
governments, scientific organizations, interest groups, and private
landowners through a press release and related fact sheets, and e-
mails. In addition, we notified the public and invited comments through
news releases to local media outlets. The public comment period for the
proposed rule and the draft EA closed on February 8, 2010.
Biological Information
The bull trout is a large native char found in the coastal and
intermountain west of North America and is one of five species in the
genus Salvelinus found in the United States (Bond 1992, p. 1). Bull
trout have a slightly forked tail; yellow or cream-colored spots on
their back; yellow, orange, or pink spots on their side; and no black
spots on their dorsal fin. Migratory adults commonly reach 24 inches
(61 centimeters) or more (Goetz 1989, pp. 29-30; Pratt 1992, p. 8). The
largest known specimen weighed 32 pounds (14.5 kilograms) (Simpson and
Wallace 1982, p. 95).
The historical range of bull trout in the coterminous United States
extended from the Canadian border south to the Jarbidge River in
northern Nevada and from the Pacific Ocean inland to the Clark Fork
River in western Montana and the Little Lost River in central Idaho.
Genetic analyses have shown that bull trout in the coterminous United
States are divided into major genetically differentiated (e.g.,
evolutionary) groups or lineages (Spruell et al. 2003, p. 21; Ardren et
al. 2010, In Press, p. 13; Taylor et al. 1999, p. 1162). At a coarse
scale, these assessments have identified the existence of two distinct
lineages: A ``coastal'' lineage and a ``interior'' lineage. The
``coastal'' lineage includes the Deschutes River and all of the
Columbia River drainage downstream (including the Willamette Basin), as
well as coastal streams in Washington, Oregon, and British Columbia.
The ``interior'' lineage includes tributaries of the Columbia River
upstream from the John Day River, including major river basins in
northeastern Oregon, eastern Washington, Idaho, and northwestern
Montana.
In a finer-scale analysis, the Service recently identified
additional genetic units within the coastal and interior lineages
(Ardren et al. 2010, In Press, p. 18). Based on a recommendation in the
Service's 5-year review of the species' status (USFWS 2008, p. 45), the
Service reanalyzed the 27 recovery units identified in the draft bull
trout recovery plan (USFWS 2002) by utilizing, in part, genetic
information from this finer-scale genetic analysis. In this
examination, the Service applied relevant factors from the joint
Service and NMFS Distinct Population Segment (DPS) policy (61 FR 4722;
February 7, 1996) and subsequently identified six draft recovery units
that contain assemblages of core areas that retain genetic and
ecological integrity across the range of bull trout in the coterminous
United States. These six draft recovery units were used to inform
designation of critical habitat for bull trout by providing a context
for deciding what habitats are essential for recovery (75 FR 63898;
October 18, 2010). The six draft recovery units identified for bull
trout in the coterminous United States include: Coastal, Klamath, Mid-
Columbia, Columbia Headwaters, Saint Mary, and Upper Snake.
[[Page 35981]]
Bull trout exhibit both resident and migratory life-history
strategies, although bull trout in the ``coastal'' lineage are largely
migratory. Migratory bull trout spawn in tributary streams where
juvenile fish rear for 1 to 4 years before migrating to either a lake
(adfluvial form), river (fluvial form) (Fraley and Shepard 1989, pp.
138-139; Goetz 1989, p. 24), or saltwater (anadromous form) to rear as
subadults and to live as adults (Cavender 1978, p. 139; McPhail and
Baxter 1996, p. 14; Washington Department of Fish and Wildlife (WDFW)
et al. 1998, p. 2). Bull trout normally reach sexual maturity between
age 4 and 7, and may live longer than 12 years. They are iteroparous
(spawning more than once in a lifetime). Both consecutive-year and
alternate-year spawning have been reported (Fraley and Shepard 1989, p.
135). Preferred habitat consists of cold water, complex cover, stable
channels, loose and clean gravel, and migratory corridors (Fraley and
Shepard 1989, pp. 137-139; Goetz, 1989, pp. 16-25).
The current distribution of bull trout in the lower Columbia River
portion of the ``coastal'' lineage includes populations in the
Deschutes, Hood, Lewis, Klickitat, and upper Willamette rivers.
Throughout much of its historical range, the decline of bull trout has
been attributed to habitat degradation and fragmentation, the blockage
of migratory corridors, poor water quality, angler harvest, entrainment
(the incidental withdrawal of fish and other aquatic organisms in water
diverted out-of-stream for various purposes) into diversion channels
and dams, and introduced nonnative species. Specific land and water
management activities that may negatively impact bull trout populations
and habitat, if not implemented in accordance with best management
practices, include the operation of dams and other diversion
structures, forest management practices, livestock grazing,
agriculture, agricultural diversions, road construction and
maintenance, mining, and urban and rural development (Beschta et al.
1987, pp. 221-224; Chamberlain et al. 1991, pp. 199-200; Furniss et al.
1991, pp. 297-302; Meehan and Bjornn 1991, pp. 483-517; Nehlsen et al.
1991, p. 16; Craig and Wissmar 1993, p. 18; Frissell 1993, p. 351;
McIntosh et al. 1994, pp. 47-48; Wissmar et al. 1994, p. 28; Montana
Bull Trout Scientific Group (MBTSG) 1995a [p. 14], 1995b [p. 10], 1995c
[p. 13], 1995d [p. 21], 1995e [p. 13], 1996a [p. 12], 1996b [p. 9],
1996c [p. 12], 1996d [p. 11], 1996e [p. 12], 1996f [p. 10]; Light et
al. 1996, pp. 9-11; U.S. Department of Agriculture (USDA) and U.S.
Department of the Interior (USDI) 1995 [pp. 70-71], 1996 [pp. 106-107,
111], 1997 [pp. 132-154]).
The historical distribution of bull trout in the Clackamas River
subbasin likely extended from the lower Clackamas River upstream to
headwater spawning and rearing areas (Shively et al. 2007, Ch. 1, pp.
10-12). It is possible that bull trout from the Clackamas River
migrated to the upper Willamette River above Willamette Falls or to
lower Columbia River tributaries (Zimmerman 1999, p. 17); however, it
is unlikely that bull trout historically occupied habitat upstream of
waterfall barriers known to impede upstream movement of anadromous
salmon and steelhead in the Clackamas River.
The last documented bull trout observation in the Clackamas River
subbasin was in 1963 (Stout 1963, p. 97). Due to geographic distance to
extant bull trout populations in other subbasins, natural
recolonization of the Clackamas River subbasin is extremely unlikely
(USFWS 2002, Ch. 5, p. 9). Extirpation was likely caused by many of the
factors that led to the decline in the species across its range,
including migration barriers from hydroelectric and diversion dams,
direct and incidental harvest in sport and commercial fisheries,
targeted eradication through bounty fisheries (currently known as
``sport reward'' programs), and habitat and water quality degradation
from forest management and agricultural activities not in accordance
with best management practices (Shively et al. 2007, Ch. 1, pp. 18-22).
Relationship of the Experimental Population to Recovery Efforts
On November 1, 1999, we published a final rule to list bull trout
within the coterminous United States as threatened under the Act (64 FR
58910). This final rule served to consolidate the five separate DPS
listings into one listing throughout the species' entire range in the
coterminous United States. We published notices of availability of
draft recovery plans for the Columbia River, Klamath River, and St.
Mary-Belly River segments on November 29, 2002 (67 FR 71439), and the
Coastal Puget Sound and Jarbidge River segments on July 1, 2004 (69 FR
39950 and 69 FR 39951, respectively). We published a revised final rule
on October 18, 2010 (75 FR 63898), designating critical habitat for
bull trout in the coterminous United States. We anticipate publishing a
draft revised recovery plan for bull trout in the coterminous United
States in 2011, and a final recovery plan in 2012. The recovery
objectives from the 2002 draft recovery plan are:
(1) Maintain current distribution of bull trout within core areas
as described in recovery unit chapters and restore distribution where
recommended in recovery unit chapters;
(2) Maintain stable or increasing trend in abundance of bull trout;
(3) Restore and maintain suitable habitat conditions for all bull
trout life-history stages and strategies; and
(4) Conserve genetic diversity and provide opportunity for genetic
exchange.
As noted above in Biological Information, new draft recovery units
were identified in the October 2010 bull trout critical habitat final
rule (75 FR 63898). We anticipate these 6 recovery units will replace
the 27 recovery units previously identified in our 2002 draft recovery
plan (67 FR 71439; November 29, 2002), and that these new units will be
incorporated into the revised draft recovery plan expected to be
published for public review and comment in 2012. The recovery criteria
specific to the 27 recovery units identified in the 2002 draft recovery
plan continue to inform demographic recovery targets at the core area
scale. Therefore, the criteria identified below for what was then
described as the Willamette River Recovery Unit in the 2002 draft
recovery plan (USFWS 2002, Ch. 5 pp. 7-8) are still relevant:
(1) Distribution criteria will be met when bull trout are
distributed among five or more local populations in the recovery unit:
four in the Upper Willamette River core area and one in the Clackamas
River core habitat.
(2) Abundance criteria will be met when an estimated abundance of
adult bull trout is from 900 to 1,500 or more individuals in the
Willamette River Recovery Unit, distributed in each core area as
follows: 600 to 1,000 in the Upper Willamette core area and 300 to 500
in the Clackamas River core habitat.
(3) Trend criteria will be met when adult bull trout exhibit stable
or increasing trends in abundance in the Willamette River Recovery
Unit, based on a minimum of 10 years of monitoring data.
(4) Connectivity criteria will be met when migratory forms are
present in all local populations and when intact migratory corridors
among all local populations in core areas provide opportunity for
genetic exchange and diversity.
Establishment of an experimental population of bull trout in the
Clackamas River will help to achieve distribution in the Clackamas
River core habitat (recovery criterion 1 and
[[Page 35982]]
recovery objective 1) and will increase abundance of adult bull trout
in the Willamette River basin (recovery criterion 2 and recovery
objective 2 from the 2002 draft recovery plan).
Is the experimental population essential or nonessential?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether such a population is essential to
the continued existence of the species in the wild. Although the
experimental population will contribute to the recovery of the bull
trout in the Willamette River basin, it is not essential to the
continued existence of the species in the wild. Bull trout populations
are broadly distributed, occurring in 121 core areas in 5 western
States, and the species' continued existence is dependent upon
conserving a number of interacting populations that are well
distributed throughout its range. Because the donor stock for the
reintroduction will come from a wild population of bull trout, the
reintroduced population will not possess markedly divergent genetic
components or adaptive traits. Furthermore, the Clackamas River is not
a unique or unusual ecological setting or geographical context for bull
trout. Bull trout occur in other portions of the Willamette River basin
and in other nearby tributaries to the Columbia River. Therefore, as
required by 50 CFR 17.81(c)(2), we find that the experimental
population is not essential to the continued existence of the species
in the wild, and we hereby designate the experimental population in the
Clackamas River as a nonessential experimental population (NEP).
Location of the Nonessential Experimental Population
The NEP area includes the entire Clackamas River subbasin as well
as the mainstem Willamette River, from Willamette Falls to its points
of confluence with the Columbia River, including Multnomah Channel. The
Willamette River's confluence with the Columbia River occurs at river
mile (RM) 101, near the City of Portland. A secondary channel of the
Willamette River, named the Multnomah Channel, branches off the
Willamette River approximately 3 river miles (5 river kilometers)
upstream from its confluence with the Columbia River. This secondary
channel runs approximately 20 river miles (32 river kilometers) along
the west side of Sauvie Island before joining the Columbia River at RM
86 near the town of St. Helens. The NEP boundary extends down the
Multnomah Channel to its confluence with the Columbia River, as well as
the mainstem Willamette River, from Willamette Falls to its confluence
with the Columbia River.
Under this final rule, the Service will release bull trout into
areas of suitable spawning and rearing habitat in the Clackamas River
subbasin. The portion of the subbasin currently containing these areas
is limited to the mainstem Clackamas River and its tributaries in the
upper headwaters of the subbasin, upstream of the Collawash River
confluence. This portion of the subbasin, referred to as the upper
Clackamas River subbasin, contains a total of 70.1 river miles (112.8
river kilometers) of suitable spawning and rearing habitat. The amount
and characteristics of habitat in the Clackamas River subbasin compare
favorably to other river systems in the lower Columbia River with
extant bull trout populations (e.g., Lewis, McKenzie, and Deschutes
rivers) (Shively et al. 2007, Ch. 2, p. 40).
Section 10(j) of the Act requires that an experimental population
be geographically separate from wild populations of the same species.
The nearest wild bull trout populations to the Clackamas River are
located in the following tributaries of the lower Columbia River: The
Lewis (RM 84), Hood (RM 165), and Deschutes (RM 200) rivers. Because
fluvial populations of bull trout tend to migrate, individual fish from
these populations may seasonally occupy the mainstem of the lower
Columbia River. Although we have no records of bull trout in the
mainstem Willamette River, given our understanding of bull trout
ecology in other river systems, it is likely that, historically, bull
trout seasonally occupied the mainstem Willamette River. If a
reintroduction of bull trout to the Clackamas River is successful, it
is possible that a small percentage of adult bull trout will migrate
to, and overwinter in, the mainstem Willamette River, between
Willamette Falls and its points of confluence with the Columbia River,
including Multnomah Channel. Should any bull trout be found in the
Willamette River within the NEP boundary, the Service will assume the
fish to be part of the reintroduced population, unless the fish is
tagged or otherwise known to be from another population.
It is unlikely that reintroduced bull trout will migrate outside of
the NEP boundary into the Columbia River or upstream of Willamette
Falls in the Willamette River due to the significant distance to
spawning and rearing habitats in the upper Clackamas River. Bull trout
found outside of the NEP boundary but known to be part of the NEP will
assume the status of bull trout within the geographic area in which
they are found. Although Willamette Falls and the confluence points of
the Willamette and Columbia Rivers are not absolute boundaries, the NEP
is geographically separate from other wild bull trout populations due
to geographic distance.
Likelihood of Population Establishment and Survival
The Service, USFS, State of Oregon (hereafter referred to as either
the State of Oregon or the Oregon Department of Fish and Wildlife
(ODFW)), and other major stakeholders established the Clackamas River
Bull Trout Working Group (CRBTWG) to assess the feasibility of bull
trout reintroductions. In 2007, the CRBTWG completed the Clackamas
River Bull Trout Reintroduction Feasibility Assessment (Feasibility
Assessment), a scientifically rigorous examination of habitat
suitability and projected viability of a reintroduced population
(Shively et al. 2007). The Feasibility Assessment indicates that there
is a reasonable likelihood that reintroduced bull trout will survive
and reestablish in the upper portion of the Clackamas River, from North
Fork Reservoir to the headwaters. Specifically, the CRBTWG concludes:
(1) There is a high level of confidence that bull trout have been
locally extirpated from the Clackamas River subbasin;
(2) The causes for their decline have been sufficiently mitigated;
(3) High-quality habitat is available in sufficient amounts;
(4) Nearby donor stocks are unlikely to naturally recolonize;
(5) Suitable donor stocks are available that can withstand
extraction of individuals;
(6) Nonnative brook trout presence is restricted to a small portion
of the suitable habitat and not a likely threat; and
(7) A diverse and abundant fish assemblage would serve as a
sufficient prey base with no obvious threats posed by bull trout to
these species (Shively et al. 2007, Ch. 5, pp. 3-4).
Based on this assessment, reintroduced bull trout are likely to
become established and persist in the Clackamas River subbasin. Copies
of the Feasibility Assessment can be obtained: (1) Online at http://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp,
(2) at http://www.regulations.gov, or (3) in person, by appointment,
during normal business hours, at the Oregon Fish and Wildlife
[[Page 35983]]
Office (see FOR FURTHER INFORMATION CONTACT).
Addressing Causes of Extirpation
Investigating the causes for decline and extirpation of bull trout
in the Clackamas River is necessary to understand whether the threats
have been sufficiently curtailed such that reintroduction efforts are
likely to be successful. The CRBTWG identified the primary threats to
be hydroelectric dams (passage and screening), forest management (i.e.,
lack of aquatic habitat protection), and fisheries management
(particularly sport fishing upstream of North Fork Dam) (Shively et al.
2007, Ch. 1, pp. 22-23). The changes in threats since extirpation of
bull trout in the Clackamas River subbasin are explained below in more
detail.
Diversion dams that would impede bull trout migration were present
in the late 1800s and early 1900s, but no longer exist in the lower
Clackamas River subbasin. Within bull trout historical habitat in the
Clackamas River subbasin there are three existing dams owned and
operated by Portland General Electric (PGE). Beginning in the late
1990s, PGE began Federal relicensing proceedings for its hydroelectric
dams in the Clackamas River subbasin. In their final license
application to the Federal Energy Regulatory Commission (FERC) and in
an accompanying Settlement Agreement among more than 30 local, State,
Federal, and Tribal governments, nongovernmental organizations, and
other interested stakeholders, PGE proposed to make several upstream
and downstream fish passage improvements for the three dams along the
mainstem Clackamas River. One improvement, which is already completed,
is the reconstruction of the River Mill Dam fish ladder. Other
improvements include upgrades to the downstream fish collection
facility and bypass at North Fork Dam, construction of a new fish trap
and handling facility at the North Fork fishway, and new downstream
fish passage facilities at River Mill Dam (Shively et al. 2007, Ch. 1,
p. 23). No additional changes or protections regarding the operation
and maintenance of the Clackamas River Hydroelectric Project are
necessary to support a successful reintroduction of bull trout in the
Clackamas River subbasin.
The majority of lands in the upper portion of the Clackamas River
subbasin are USFS- and Bureau of Land Management (BLM)-administered
public forest lands. These lands are managed in accordance with the Mt.
Hood National Forest Land and Resource Management Plan (USFS 1990) or
the Salem District BLM Resource Management Plan (USDI 1995),
respectively, as amended by the 1994 Northwest Forest Plan (USDA and
USDI 1994). The 1994 Northwest Forest Plan established an Aquatic
Conservation Strategy (ACS) with protective measures, standards and
guidelines, and land allocations to maintain and restore at-risk fish
species, including bull trout. The ACS Riparian Reserve land allocation
extends a minimum of 300 feet (91.4 meters) on both sides of all fish-
bearing streams and prohibits scheduled timber harvest. These plans,
along with the Omnibus Public Land Management Act of 2009 (Pub. L. 111-
11) that established several new wilderness areas in the upper
Clackamas River watershed, provide substantial protections for
watersheds and aquatic habitats on USFS- and BLM-administered public
lands in the upper subbasin. No additional changes or protections
regarding forest management activities on public or non-public forest
lands are necessary to support a successful reintroduction of bull
trout in the Clackamas River subbasin (Shively et al. 2007, Ch. 1, pp.
124-125).
When the NMFS listed salmon and steelhead in the Clackamas River as
threatened under the Act (64 FR 14308, March 24, 1999; 70 FR 37160,
June 28, 2005; 71 FR 834, January 5, 2006), fisheries management
practices for the portion of the Clackamas River subbasin upstream of
North Fork Reservoir changed substantially. For example, stocking of
catchable rainbow trout within the Clackamas River has been
discontinued altogether along the mainstem and tributaries upstream of
North Fork Reservoir, and current sport fishing regulations now require
catch and release of all native trout caught in the Clackamas River
subbasin. Additionally, angling is restricted to the use of artificial
flies and lures upstream of North Fork Reservoir. All waters in the
Willamette Zone for the State of Oregon's sport fishing regulations are
closed to angling for bull trout. Beginning in 2003, ODFW eliminated
the stocking of nonnative brook trout in lakes with outlets to streams
in the upper Clackamas River subbasin that provide suitable bull trout
spawning and rearing habitat. With these significant changes in angling
regulations and stocking of nonnative brook trout, no additional
changes to angling regulations and stocking in the upper portion of the
subbasin are necessary to support a successful reintroduction of bull
trout (Shively et al. 2007, Ch. 1, pp. 24).
Donor Stock Assessment and Effects on Donor Populations
A donor stock should be composed of fish that most closely resemble
the bull trout that historically inhabited the Clackamas River (e.g.,
genotype, phenotype, behavior, and life-history expression). However,
because little is known about the biology and evolutionary history of
bull trout that historically occupied the Clackamas River, and no
genetic material is available for analysis, the CRBTWG was limited to
an assessment of biological information from other local populations,
existing studies of the evolution and biogeography of bull trout,
information derived from historical harvest data from the Clackamas
River, and recent regional bull trout genetic analyses.
By exploring issues associated with life-history strategy,
metapopulation dynamics, biogeography, and genetic considerations, the
CRBTWG identified bull trout populations in the ``coastal'' lineage as
the best source for a donor population (see Biological Information
above). Any of the ``coastal'' lineage bull trout populations are
likely to carry the genetic material to preserve and protect the
``coastal'' lineage regardless of localized and specific adaptations.
Although these local adaptations are important, each of the populations
is likely to contain the evolutionary potential that is characteristic
of the ``coastal'' evolutionary lineage. However, in a further
refinement, the CRBTWG determined that donor populations from lower
Columbia River tributaries would be most appropriate due to their
geographic proximity to the historical bull trout population in the
Clackamas River. The potential lower Columbia River donor populations
of bull trout include fish in five river basins: The Willamette River,
Hood River, Lewis River, Deschutes River, and Klickitat River basins
(Shively et al. 2007, Ch. 3, pp. 8-14).
Specific benchmarks have been developed concerning the minimum bull
trout population size necessary to maintain genetic variation important
for short-term fitness and long-term evolutionary potential. Rieman and
Allendorf (2001, pp. 762) concluded that an average of 100 spawning
adults each year is required to minimize risks of inbreeding in a bull
trout population and that 1,000 spawning adults each year will likely
prevent loss of genetic diversity due to genetic drift. This latter
value of 1,000 spawning adults may also be reached with a collection of
local populations among which gene flow occurs. The CRBTWG utilized
these
[[Page 35984]]
general benchmarks in the Feasibility Assessment to assess potential
risk to each of the five potential donor stocks in the lower Columbia
River from the loss of individuals, recognizing that risk increases as
donor populations near 100 spawning adults and diminishes as
populations approach 1,000 spawning adults (Shively et al. 2007, Ch. 3,
pp. 8-14).
When the Feasibility Assessment was developed in December 2007,
bull trout from two of the above five river basins, the Lewis River and
Deschutes River, contained groups of interacting local populations that
exceeded 1,000 spawning adults. For the Lewis River basin, this total
included the combined Pine Creek and Rush Creek populations that occur
above Swift Dam. For the Deschutes River basin, it included the three
interacting populations present in the Metolius River subbasin. Since
2007, adult bull trout abundance in the Lewis River has declined, with
the current number of annual spawners estimated to be approximately 536
adults (Byrne 2010, pers. comm.). The Metolius River bull trout
population has also declined but has still maintained a spawning
population size greater than 1,000 adults, which is sufficiently large
enough to protect against the loss of genetic diversity from genetic
drift (Rieman and Allendorf 2001, p. 762). The Metolius River
population of bull trout comprised an estimated 1,458 spawning adults
in 2010 (Ratliff 2010, pers. comm.). Given the long-term stability and
size of the Metolius River bull trout population, the Service has
determined this population to be at very low risk of impact from loss
of individuals from contribution as donor stock, and the least ``at
risk'' of the potential donor stocks that were considered.
This final action allows for the direct transfer of wild bull trout
adults, subadults, juveniles, fry, and fertilized eggs from the
Metolius River subbasin to the Clackamas River. The numbers and life
stages of fish transferred each year will be linked strongly to the
annual population size of the donor stock, as well as to information
derived from monitoring the success of the various life stages in the
NEP over the initial few years of the project. Details regarding the
implementation strategy such as release sites and timing, annual
stocking numbers, disease screening, and monitoring and evaluation are
contained in the Implementation, Monitoring, and Evaluation Plan, which
is appended to our final EA, and can be obtained: (1) In person at the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT)
and (2) online at http://www.regulations.gov or http://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp.
Management Considerations and Protective Measures
We conclude that the effects of Federal, State, or private actions
and activities will not pose a substantial threat to bull trout
establishment and persistence in the Clackamas River subbasin, because
most activities currently occurring in the NEP area are compatible with
bull trout recovery and there is no information to suggest that future
activities would be incompatible with bull trout recovery. Most of the
area containing suitable release sites with high potential for bull
trout establishment is managed by the USFS and is protected from major
development activities and timber harvest through the following
mechanisms:
(1) Forty-seven miles (76 kilometers) of the Clackamas River, from
its headwaters to the Big Cliff area just upstream of North Fork
Reservoir, was designated in 1988 as part of the Federal Wild and
Scenic Rivers System (USFS 1993, p. 14).
(2) The State of Oregon designated 82 miles (132 kilometers) of the
Clackamas River and its tributaries as part of the Oregon Scenic
Waterway Program in 1989 (ORS 390.826).
(3) The 1994 Northwest Forest Plan established protective measures,
standards and guidelines, and land allocations to maintain and restore
at-risk fish species, including bull trout.
(4) NMFS' listings of salmon and steelhead under the Act caused
fisheries management practices (i.e., sport fishing regulations and
stocking of catchable rainbow trout) in the Clackamas River subbasin to
become significantly more restrictive.
(5) The Federal Omnibus Public Land Management Act of 2009 (Pub. L.
111-11) designated two new wilderness units in the upper Clackamas
River watershed, at Sisi Butte (3,245 acres) and at Big Bottom (1,264
acres), and also designated the Big Bottom Protection Area (1,581
acres) as a special management unit adjacent to the Big Bottom
Wilderness unit.
The Service recognizes that the provisions of PGE's Clackamas
Settlement Agreement do not reflect the reintroduced presence of bull
trout in the Clackamas River subbasin. However, no additional changes
or protections regarding PGE's operation of the Clackamas River
Hydroelectric Project are necessary to support a successful
reintroduction of bull trout to the Clackamas River subbasin.
The Service, ODFW, and the USFS, in cooperation with members of the
CRBTWG, will implement and manage the reintroduction of bull trout. In
addition, these agencies will carefully collaborate on collection and
transportation of donor stock, releases, monitoring and evaluation,
coordination with landowners and land managers, public awareness, and
other tasks necessary to ensure successful reintroduction of the
species. A few specific management considerations related to the
experimental population are addressed below.
Incidental Take: Experimental population special rules contain
specific prohibitions and exceptions regarding the taking of individual
animals. These special rules are compatible with routine human
activities in the expected reestablishment area. Section 3(19) of the
Act defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' Take of bull trout within the experimental population area
will be allowed provided that the take is unintentional, not due to
negligent conduct, or is consistent with State fishing regulations that
have been coordinated with the Service. We expect levels of incidental
take to be low because the reintroduction is compatible with existing
activities and practices in the area. As recreational fishing for
species other than bull trout is popular within the NEP area, we expect
some incidental take of bull trout from this activity but, as long as
it is in compliance with ODFW fishing regulations and Tribal
regulations on land managed by the Confederated Tribes of the Warm
Springs Reservation of Oregon (CTWSRO), such take will not be a
violation of the Act.
Special Handling: Service and ODFW employees and authorized agents
acting on their behalf may handle bull trout for scientific purposes;
to relocate bull trout to avoid conflict with human activities, for
recovery purposes; to relocate bull trout to other release sites in the
Clackamas River, to aid sick or injured bull trout; and to salvage dead
bull trout. However, non-Service or other non-authorized personnel will
need to acquire permits from the Service and ODFW for these activities.
USFS personnel, the primary land managers in the reestablishment area,
will be permitted to handle reintroduced bull trout through a
modification of their existing section 10(a)(1)(A) recovery permit.
[[Page 35985]]
Coordination with Land Owners and Land Managers: The NEP
reintroduction has been discussed with potentially affected State
agencies, Tribal entities, local governments, businesses, and
landowners within the expected reestablishment area. The land along the
expected reestablishment area is owned mainly by USFS although a small
portion located in North Fork Reservoir is owned by PGE. Nothing in
this rule requires any additional changes, protections, or mitigation
or enhancement measures for bull trout with respect to PGE's operation
of Project 2195 (Clackamas River Hydroelectric Project) pursuant to the
Settlement Agreement or the new license for the Project; nor does any
provision of this rule amend or modify the Settlement Agreement or
require that any plan pursuant to the Settlement Agreement be modified
to address the presence of bull trout.
Public Awareness and Cooperation: During October and November 2008,
in cooperation with ODFW and USFS, we conducted several NEPA scoping
meetings on this action. We notified a comprehensive list of
stakeholders of the meetings including affected Federal and State
agencies, Tribal entities, local governments, landowners, nonprofit
organizations (environmental and recreational), and other interested
parties. The comments we received are listed in the final EA, were
included in the formulation of alternatives considered in the NEPA
process, and were considered in this final rule designating an NEP for
reintroduced bull trout.
Potential impacts to other Federally listed fish species:
Stakeholders expressed concern during development of the proposed rule
and this final rule that predation and competition from reintroduced
bull trout may negatively impact Federally listed anadromous salmonids,
particularly juvenile life stages of steelhead trout, coho salmon, and
Chinook salmon in the Clackamas River above North Fork Dam. Although
our analysis suggests the risk to anadromous salmonids from this action
is low, we acknowledge the uncertainty and sensitivity around this
issue. We believe it is important to assess uncertainty using
appropriate tools and methods and then take steps necessary to reduce
that uncertainty to an acceptable level while recognizing that it
cannot be eliminated entirely.
In the development of this action, we have addressed concerns over
predation and competition to listed anadromous salmonids by sponsoring
an expert science panel workshop specifically to assess the potential
impacts of a Clackamas River bull trout reintroduction on listed
anadromous salmonids (Marcot et al. 2008). Based on stakeholder input,
we modified our initial proposed action to reduce the number and
maximum sizes of older life stages of bull trout for transfer, and we
committed to tagging all fish transferred, including radio-tagging all
older life stages the first 2 years of project implementation in part
to monitor abundance, behavior and distribution. In addition, we
funded, together with the USFS and PGE, a baseline food Web
investigation in the upper Clackamas River subbasin in order to
establish a baseline for future monitoring of food Web effects,
particularly on salmon and steelhead, following the bull trout
reintroduction (Lowery and Beauchamp 2010). We have also met numerous
times during development of this final rule with our project partners
and stakeholders to discuss monitoring actions that could be
incorporated into the reintroduction program to reduce uncertainty and
concern over impacts to listed anadromous salmonids.
Adaptive management will guide how this project is implemented on
an annual basis. The primary tool to accomplish adaptive management is
monitoring and evaluation. The monitoring of impacts to salmon and
steelhead will provide valuable information that will inform how the
project is implemented in future years including numbers, life stages,
and release locations of bull trout, as well as the disposition of
individual fish should they be documented or observed staging near,
within, or immediately below fish bypass systems where juvenile
salmonids may be particularly vulnerable to predation.
An adaptive approach provides flexibility to act in the face of
uncertainty, is learning based, and specifies what actions are to be
taken and when. Consistent with this approach, we developed, in
consultation and coordination with NMFS, the State of Oregon, and other
project partners, a Stepwise Impact Reduction Plan (SIRP), to
facilitate management decisions associated with potential impacts from
the bull trout reintroduction on listed anadromous salmonids.
The purpose of the SIRP, which is described in more detail in the
EA, is to outline a sequence of management actions that will be taken
to minimize impacts to salmon and steelhead from the reintroduction of
bull trout in the Clackamas River, if specific bull trout and/or
anadromous salmonid thresholds are triggered. Management actions
implemented under the SIRP, and the frequency of those actions, will be
informed by: (1) The reintroduction project's monitoring and evaluation
program, jointly implemented by the Service, ODFW, and USFS; and (2)
the conservation status of the listed Clackamas River anadromous
salmonid populations.
While we believe the SIRP will provide much of the guidance
necessary to address potential impacts to salmon and steelhead from the
reintroduction project, we acknowledge our inability to predict all
likely impact scenarios and appropriate management responses. To that
end, we anticipate the SIRP will be modified as necessary, in
consultation and coordination with NMFS, the State of Oregon, and other
project partners, consistent with the overall adaptive management of
the project.
Our analysis (USFWS 2010, pp. 109-131) indicated a low likelihood
for population-level impacts to Federally listed salmon and steelhead
populations. However if the Service determines, in consultation and
coordination with the State of Oregon, NMFS and other project partners,
and based on project monitoring and evaluation, that the reintroduction
efforts are not consistent with the recovery of salmon or steelhead,
the reintroduction program will be discontinued and bull trout will be
removed from the experimental population area. The Service initiated
formal consultation with NMFS pursuant to section 7(a)(2) of the Act in
December 2010 (USFWS 2010) and will ensure section 7(a)(2) compliance
prior to releasing bull trout into the Clackamas River.
Adaptive Management: A key component of our proposed action is the
adaptive management of the bull trout reintroduction project, ranging
from the annual numbers, life stages, and collection methods of the
donor stock, to the locations and timing of translocations
(implementation strategy), and finally the management of bull trout in
the Clackamas River relative to their potential impact on threatened
salmon and steelhead. Our goal with this approach is to implement the
project most effectively, while assuring no harm to the donor stock and
limiting negative impacts to other listed species in the Clackamas
River subbasin.
The adaptive management of the bull trout reintroduction project
will be based in part on guidance provided in the Department of the
Interior's technical guide to adaptive management (USDI 2009). The
guidance defines adaptive management as a decision process that
promotes flexible
[[Page 35986]]
decisionmaking that can be adjusted in the face of uncertainties as
outcomes from management actions and other events become better
understood. Careful monitoring of these outcomes both advances
scientific understanding and helps adjust policies or operations as
part of an iterative learning process. Adaptive management also
recognizes the importance of natural variability in contributing to
ecological resilience and productivity. It is not a ``trial and error''
process, but rather emphasizes learning while doing. Adaptive
management does not represent an end in itself, but rather is a means
to more effective decisions and enhanced benefits. Its true measure is
in how well it helps meet environmental, social, and economic goals,
increases scientific knowledge, and reduces tensions among stakeholders
(USDI 2009).
Monitoring and evaluation will inform the adaptive management of
this project, including the appropriate management of this experimental
population of bull trout both during the period they are being
reintroduced and post-project if we are successful in reestablishing a
self-sustaining population in the Clackamas River.
Monitoring and Evaluation
Acknowledging the limited availability of information on fish
introductions and reintroductions (Seddon et al. 2007, p. 305), the
Service and our project partners adopted a goal early in project
development to document, learn about, and report on all the major
phases of the project beginning with our feasibility assessment
(Shively et al. 2007; Dunham and Gallo 2008) and extending through
project planning, development, and implementation. One of the most
critical aspects of this goal is to document the effectiveness of the
reintroduction by evaluating components of the implementation strategy,
including the utilization of habitats chosen for release of
individuals, the numbers and life stages of donor stock, the genetic
health of the recipient population, documentation of reproduction and
recruitment, and ultimately the establishment of a self-sustaining bull
trout population.
In order to document and adaptively manage the project, a robust
monitoring and evaluation program is necessary. Along with other
project documentation, we expect information gained from the monitoring
and evaluation program will contribute significantly to other fish
reintroductions, and specifically bull trout recovery projects that we
anticipate will occur across the species' range consistent with
recovery guidance for the species (USFWS 2002, Ch. 1). The monitoring
and evaluation program, detailed in the Implementation, Monitoring, and
Evaluation Plan appended to the final EA, has three major goals: (1)
Monitor and evaluate bull trout reintroduction effectiveness, (2)
monitor and evaluate donor population status, and (3) monitor and
evaluate impacts to listed anadromous salmonids. These three major
components are summarized below:
Reintroduction Effectiveness Monitoring: The objectives of the
effectiveness monitoring program for phase 1 of the project (2011-2017)
are to assess: (1) Distribution and movement, (2) relative survival of
translocated bull trout by monitoring presence and absence, (3)
occurrence of spawning and reproduction, and (4) genetic health (as
measured against the donor population). Successful reproduction in
phase one of the project (2011-2017) would logically result in the
incorporation of a monitoring component directed at assessing the
distribution, movement, growth, and survival of the initial cohorts of
naturally produced bull trout. Monitoring activities in phase 2 (2018-
2024) and phase 3 (2025-2030) will be informed by phase 1 monitoring
and evaluation. Effectiveness monitoring of the project will be
conducted jointly by the Service and ODFW, with assistance from the
USFS and potentially U.S. Geological Survey (USGS) and the University
of Washington.
Donor Population Monitoring: We intend to monitor donor stock
status annually to determine if the population is free of pathogens of
concern, and to ensure the population maintains a minimum threshold of
spawning adults to contribute as a donor stock to the Clackamas River
bull trout reintroduction project. Bull trout in the Metolius River are
monitored primarily by annual full census redd counts. These counts are
conducted by ODFW, CTWSRO, USFS, PGE, and Service staff. In addition to
the genetic monitoring of the recipient bull trout population in the
Clackamas River subbasin, we will also replicate the Metolius River
bull trout genetic health assessment (DeHaan et al. 2008) on the donor
stock at an appropriate interval to ensure the loss of individuals via
contribution toward the Clackamas River reintroduction is not impacting
the genetic health of the Metolius River donor stock.
Monitoring Impacts to Anadromous Salmonids: The monitoring of
potential impacts to juvenile anadromous salmonids will generally focus
on PGE's Clackamas Hydroelectric Project area. Juvenile salmonids
utilize project reservoirs, especially North Fork Reservoir, for
rearing. Fish collection facilities that aid downstream migration of
salmon and steelhead juveniles necessarily concentrate the fish,
increasing their vulnerability to predation and the potential for them
to avoid collection facilities due to the presence of a predator. These
areas of increased vulnerability for anadromous juveniles are also
areas where we expect to be better able to detect a behavioral response
caused by bull trout, relative to areas upstream of North Fork
Reservoir or in the lower Clackamas River below River Mill Dam. We
developed this monitoring component with the intent of reducing
uncertainty and informing future management decisions associated with
the bull trout reintroduction program.
In order to assess impacts to listed anadromous salmonids we
propose to: (1) Determine if adult and subadult bull trout occupy areas
within the PGE hydroelectric project during periods in which they could
consume particularly high numbers of rearing or migrating juvenile
salmon and steelhead; (2) if so, determine if survival rates are
affected for listed anadromous salmonid juveniles rearing in, or moving
through the PGE hydroelectric project area; and (3) determine the
degree to which bull trout are responsible for such impacts by using
field data, bioenergetics, and life-cycle modeling. Monitoring of
impacts to anadromous salmonids will be conducted by the Service and
ODFW, with possible assistance from USGS, PGE, University of
Washington, and the National Oceanic and Atmospheric Administration's
Northwest Fisheries Science Center (NOAA-NWFSC).
Summary of Comments and Responses
We requested written comments from the public on the proposed rule
and draft EA published on December 9, 2009 (74 FR 65045). We also
contacted the appropriate Federal, State, and local agencies; Tribes;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule. The comment period was open from
December 9, 2009, to February 10, 2010.
We reviewed all comments received for substantive issues and new
information regarding the proposed NEP. Substantive comments received
during the comment period have either been addressed below or
incorporated directly into this final rule.
We received comments from eight parties, including comments from
natural resource management agencies, not-for-profit organizations, and
private
[[Page 35987]]
entities. All commenters specifically expressed support for the
reestablishment of the bull trout in the Clackamas River although three
of the eight commenters expressed concerns regarding potential impacts
to Federally threatened salmon and steelhead present in the Clackamas
River.
Public Comments
(1) Comment: Several commenters suggested reintroduction of bull
trout to the Clackamas River under section 10(j) of the Act may not
provide ample protection to ensure the long-term viability of the
population, and encouraged the Service to reintroduce bull trout to the
Clackamas River under full protections of the Act, along with
designated critical habitat.
Our Response: Any population determined by the Secretary to be an
experimental population will be treated as if it were listed as a
threatened species for purposes of establishing protective regulations
with respect to that population pursuant to section 4(d) of the Act.
The protective regulations adopted for an experimental population will
contain applicable prohibitions, as appropriate, and exceptions for
that population. In addition, before authorizing the release of an
experimental population (including eggs, propagules, or individuals) of
an endangered or threatened species, the Service must consider the
extent to which the introduced population may be affected by existing
and anticipated Federal or State actions or private activities within
or adjacent to the experimental population area.
We have assessed existing or anticipated Federal or State actions
and private activities within or adjacent to the experimental
population area and, along with the applicable prohibitions in this
final rule, we have determined these actions to be compatible with, and
protective of, a reestablished population of bull trout in the
Clackamas River. We believe, based on this assessment, that the
protective regulations adopted by this rule are appropriate and provide
adequate protections for a reintroduced population of bull trout.
Lastly, under 50 CFR 17.81(f), the Secretary may designate critical
habitat as defined in section 3(5)(A) of the Act for an essential
experimental population but not for a nonessential population.
(2) Comment: One commenter suggested reintroductions of bull trout
to historical habitat are essential for the continued survival of the
species, and thus encouraged the Service to designate the experimental
population in the Clackamas River as an ``essential'' population under
the Act, rather than a ``nonessential'' population.
Our Response: We have determined that restoring bull trout to the
Clackamas River is not essential to the continued existence of the
species. We maintain that releasing bull trout under the section 10(j)
NEP provision of the Act is the most appropriate way to achieve
conservation for this species in the Clackamas River and that this
action is consistent with the purposes of the Act.
(3) Comment: One commenter suggested that the Service should
consider removing the ``experimental nonessential'' designation under
section 10(j) of the Act if the bull trout reintroduction project is
successful.
Our Response: Our intent is for the section10(j) rule to remain in
place until the status of the species improves to a point where listing
is no longer necessary. Section 10(j) of the Act does not give us the
authority to ``permanently'' declare an NEP. However, we have made it
clear that it is not our intention to change this designation until the
species meets the requirements for delisting, and we currently do not
anticipate that any circumstances would warrant changing this
designation. The proposed rule and this final rule contain language on
this subject found in 50 CFR 17.85(a)(1)(iii), specifically: ``We do
not intend to change the NEP designations to `essential experimental,'
`threatened,' or `endangered' within the NEP area. Additionally we will
not designate critical habitat for the NEP, as provided by 16 U.S.C.
539(j)(2)(C)(ii).''
(4) Comment: Several commenters noted the lack of quantitative
information on the distribution, abundance, and diversity of the native
fish community in the upper Clackamas River and suggested the Service
conduct an assessment prior to implementing the bull trout
reintroduction project to affirm the sufficiency of a prey base to
support the reestablishment of a viable bull trout population.
Our Response: We agree there is limited quantitative information on
the native fish community in the upper Clackamas River. However, upper
Clackamas River baseline foodweb surveys that were conducted in
association with the action considered in this final rule (Lowery and
Beauchamp 2010), along with an abundance of qualitative information
collected by the USFS and State of Oregon (Shively et al. 2007,
Appendix F, p. 24), confirm the full complement of native species
(except for bull trout) in the upper Clackamas River. There is no
evidence to suggest the upper Clackamas River forage base would not
compare favorably with the abundance, distribution, and diversity of
native fishes found in other major subbasins in the lower Columbia
River that support viable populations of bull trout, including the
McKenzie, Lewis, and Deschutes rivers. Although historical reductions
in the anadromous forage base in the Clackamas River may have
negatively impacted the historical bull trout population, as noted
above in Biological Information, the primary factors leading to the
extirpation of bull trout in the Clackamas River were migration
barriers from hydroelectric and diversion dams, direct and incidental
harvest in sport and commercial fisheries, targeted eradication through
bounty fisheries (currently known as ``sport reward'' programs), and
habitat and water quality degradation from forest management and
agricultural activities not in accordance with best management
practices (Shively et al. 2007, Ch. 1, pp. 18-22).
(5) Comment: In order to minimize and offset potential impacts to
anadromous salmon and steelhead from bull trout predation and
competition, one commenter suggested initiating habitat improvement
actions such as adding refuge cover and distributing excess hatchery
salmon and steelhead carcasses into the upper Clackamas River to
increase marine-derived nutrients and stream productivity.
Our Response: Although we do not anticipate significant impacts
from bull trout on threatened salmon and steelhead, if our monitoring
program indicates bull trout are having population-level impacts, the
Service and our project partners will implement actions to minimize and
offset these impacts. While these actions may include habitat
restoration projects such as those recommended, the most immediate
management actions to reduce impacts will be modification of the bull
trout reintroduction implementation strategy such as the numbers, life-
stages, and locations of releases, and removal of individual bull trout
if they are found occupying areas that artificially concentrate
juvenile salmon and steelhead such as fish passage facilities
associated with the Clackamas Hydroelectric Project.
(6) Comment: One commenter noted the presence of nonnative brook
trout in a small portion of the suitable habitat identified for bull
trout reintroduction, and suggested that they should be eradicated in
order to prevent hybridization and competition with reintroduced bull
trout.
[[Page 35988]]
Our Response: While we agree that nonnative brook trout can
negatively affect bull trout through hybridization, predation, and
competition, our literature review on the subject for the Clackamas
Bull Trout Reintroduction Feasibility Assessment (Shively et al. 2007,
Ch. 4. pp. 1-2) suggests negative effects are variable across the range
these two species overlap. In some places, brook trout appear to have a
strong negative impact, whereas in others there is no apparent impact
(Dunham et al. 2002, pp. 384-385). The influence of nonnative brook
trout on bull trout may depend in part on local habitat features. Rich
et al. (2003, pp. 1059-1061) examined the influence of habitat features
on the distribution and co-occurrence of nonnative brook trout and bull
trout. This study suggested that bull trout and brook trout may
partition themselves naturally based on habitat type and stream
temperature, and that bull trout may be more susceptible to brook trout
invasion in small, low-gradient streams where brook trout may have a
competitive advantage (Paul and Post 2001, pp. 424-428). In areas of
clean, cold water with complex habitat, bull trout may successfully
compete with brook trout (Rieman et al. 2005, pp. 72-76).
Although systematic quantitative surveys for brook trout have not
occurred in the upper Clackamas River, stream surveys and biological
inventories by the USFS over the last several decades provide a
reliable source for documenting observations of brook trout in
particular river segments and streams (Shively et al. 2007, Appendix F,
p. 24). Brook trout are present in a small portion of the habitat
identified as suitable for bull trout reintroduction (less than 10
percent) in the upper Clackamas River (Shively et al. 2007, Ch. 4. p.
2). Given their limited distribution in the upper Clackamas River, we
do not anticipate brook trout will adversely affect the success of this
reintroduction project. Further, while we support the goal of
eradication of nonnative species, our assessment of the feasibility of
eradication of brook trout in the upper Clackamas River suggests the
likelihood of complete eradication is low and the cost would likely be
high. Consequently, it is unlikely we will pursue eradication efforts
in the foreseeable future.
(7) Comment: Several commenters requested that the Federal
rulemaking cause no additional requirements of Portland General
Electric above and beyond those currently outlined in the multiparty
settlement agreement for relicensing of the Clackamas Hydroelectric
Project, nor that any potential ecological effects from the bull trout
reintroduction project in and of itself trigger mitigation requirements
outlined in the agreement.
Our Response: Language in the proposed rule was intended to convey
our position on this issue, consistent with the request above. This
final rule and the above background discussion in ``Addressing Causes
of Extirpation'' contains additional language in several sections to
clarify our support for this request. See also our response to Comment
9 below.
(8) Comment: One commenter indicated that the Draft Implementation,
Monitoring and Evaluation Plan, appended to the draft EA, lacked
detailed information and should be expanded. The same commenter
suggested the monitoring portion of the draft plan did not provide
adequate information for decisionmaking.
Our Response: While the general implementation strategy (transfer
numbers, life stages, donor stock, release locations) has not changed
from that outlined in the proposed rule and draft EA, the Service and
our project partners have added specificity to the implementation
component of the plan. Similarly, and based strongly on comments
received on the proposed rule and draft EA, we developed a robust
monitoring and evaluation component of the plan to document the
effectiveness of the reintroduction, assess potential impacts to the
bull trout donor stock in the Metolius River, and assess potential
impacts to threatened salmon and steelhead. The monitoring and
evaluation program, which will begin immediately upon initiation of the
project, will feed directly into the adaptive management of the
reintroduction project. Given the level of detail that has been added
to the Implementation, Monitoring and Evaluation Plan since publication
of the proposed rule and draft EA, we are confident the plan has
sufficient detail to appropriately guide the project and provide
necessary information for decisionmaking. The monitoring program is
summarized above in the Monitoring and Evaluation section of this final
rule and is appended to the final EA as a component of the
Implementation, Monitoring, and Evaluation Plan. See also our response
to Comment 12 below.
(9) Comment: One commenter suggested that the draft EA was
insufficient and suggested the action proposed may warrant the
development of an Environmental Impact Statement (EIS) due to the
possibility of significant impacts to the Clackamas Hydroelectric
Project settlement agreement and to Federally threatened salmon and
steelhead through competition and predation by bull trout.
Our Response: An EIS is required only when a project is a major
Federal action with significant impact(s) to the human environment, or
alternatively where there is substantial controversy surrounding the
potential for significant impacts to the human environment, such that
the more limited analysis in an EA to support a ``Finding of No
Significant Impact (FONSI)'' may not be appropriate. If an EA fully
considers the potential direct, indirect and cumulative impacts of the
project and that analysis is sufficient in reaching a FONSI, then the
preparation of an EIS is not warranted. Our analysis in the EA did not
suggest a likelihood of significant environmental effects; nor did it
identify substantial controversy surrounding the potential for
significant impacts to the human environment.
Scoping and public comments identified concerns with potential
impacts to the Clackamas River hydroelectric project settlement
agreement, as well as to salmon and steelhead populations from
predation and competition by bull trout. We have addressed these
concerns by: (1) Including clarifying language in several sections of
this final rule and the final EA, (2) modifying components of the
proposed action, and (3) developing a Stepwise Impact Reduction Plan as
part of our adaptive management program to reduce risk and uncertainty
with regards to impacts to listed anadromous salmonids, and to guide
management of a Clackamas River bull trout population and future
implementation of the project.
As noted elsewhere in this final rule, the designation of an NEP
population of bull trout in the Clackamas River will not cause
additional requirements of Portland General Electric above and beyond
those currently outlined in the multiparty settlement agreement for
relicensing of the Clackamas Hydroelectric Project, nor will any
potential ecological effects from the bull trout reintroduction project
in and of itself trigger mitigation requirements outlined in the
agreement. While we acknowledge some uncertainty around the
interactions between bull trout and anadromous salmon and steelhead,
the preponderance of information does not suggest that significant
population- level impacts will occur.
(10) Comment: One commenter suggested the adaptive management plan
for the action lacked detail and needed improvement.
Our Response: We agree. As a result we added substantially to the
adaptive
[[Page 35989]]
management plan for the action considered in this final rule. Most
notably, we incorporated recommendations provided in the Department of
the Interior's technical guidance manual on adaptive management (USDI
2009), and we developed a Stepwise Impact Reduction Plan specifically
to assist in management decisions associated with potential impacts
from the reintroduction of bull trout on threatened salmon and
steelhead in the Clackamas River. Recommendations adopted from the
Department of the Interior's technical manual on adaptive management,
and the Stepwise Impact Reduction Plan to address potential impacts to
threatened salmon and steelhead, are summarized in this final rule
above in Potential impacts to other Federally listed fish species, and
are presented in more detail in the final EA.
(11) Comment: One commenter suggested that the Service had not
adequately consulted with the individual in developing the proposed
rule per the procedural requirements of experimental population
regulations, and further, that the proposed rule did not represent the
required agreement between the Service and affected State and Federal
agencies, and persons holding any interest in land that may be affected
by the establishment of an experimental population.
Our Response: Under 50 CFR 17.81(d), the Service must consult with
appropriate State fish and wildlife agencies, local governmental
entities, affected Federal agencies, and affected private landowners in
developing and implementing experimental population rules. To the
maximum extent practicable, section 10(j) rules represent an agreement
between the Service, the affected State and Federal agencies, and
persons holding any interest in land that may be affected by the
establishment of an experimental population.
The language above does not require the Service to agree on all
issues and concerns, nor are we required to have full agreement from
potentially affected local, State, Federal, and private partners prior
to finalizing section 10(j) experimental population rules. In
development of the proposed and final rule, we coordinated closely with
the appropriate State fish and wildlife agencies, local governmental
entities, affected Federal agencies, and affected private landowners,
to resolve as many concerns as possible. In addition, we assembled
management and technical committees with representation from all major
stakeholders in the reintroduction, to further ensure we addressed as
many concerns as possible prior to finalization of the final rule.
Given these efforts, it is clear that we have complied with the
requirements of section 10(j) of the Act in the development of the
proposed rule and this final rule. As during the development of this
action, we are committed to working with project partners and
stakeholders during and following implementation of the reintroduction
to address concerns that may arise.
(12) Comment: Several commenters suggested that the assessment of
potential impacts to threatened salmon and steelhead from the bull
trout reintroduction was inadequate and suggested a more thorough risk
assessment prior to implementing the project.
Our Response: While we disagree that our pre-project assessment of
potential impacts to threatened salmon and steelhead was inadequate, we
do recognize the concern for the recovery of these species in the
Clackamas River and for their respective evolutionarily significant
units/distinct population segments. In recognition of those concerns
the Service has invested, and will continue to invest, significant
resources toward assessing potential impacts from the bull trout
reintroduction on salmon and steelhead in the Clackamas River.
The expert science panel workshop (Marcot et al. 2008), the final
report of which was appended to the draft EA, was conceived and
implemented precisely to investigate the potential impact of a bull
trout reintroduction on threatened salmon and steelhead in the
Clackamas River. In addition, we funded, together with our primary
project partners and stakeholders, a pre-project baseline food Web
investigation in the upper Clackamas River subbasin specifically to
allow for greater precision in determining impacts to salmon and
steelhead from bull trout during and following the reintroduction.
Finally, a large component of our monitoring and evaluation program is
designed to investigate impacts on salmon and steelhead.
(13) Comment: One commenter suggested the draft EA did not
adequately consider the ability and capacity of the Clackamas River to
support a reintroduced population of bull trout and as a result, the
proposed reintroduction strategy is overly aggressive and population
goals likely unattainable. The same commenter recommended that the
Service modify the implementation strategy to eliminate the use of
older life stages of bull trout to minimize the chance of exceeding the
carrying capacity of the Clackamas River.
Our Response: The draft EA and proposed rule both summarized the
conclusions of the feasibility assessment (Shively et al. 2007), which
found that a reintroduction of bull trout to the Clackamas River is
biologically feasible based in large part on habitat suitability for
spawning and early juvenile rearing, reduction and elimination of
threats that led to extirpation, and availability of a suitable donor
stock. The amount and type of suitable habitat, as well as the
available forage base, compares favorably to other river systems in the
lower Columbia River with extant bull trout populations, such as the
McKenzie, Lewis, and Deschutes rivers. The feasibility assessment
(Shively et al. 2007), the conclusions of which were presented in the
draft EA, clearly considered the ability and capacity of the Clackamas
River to support a reintroduced population of bull trout.
The goal of the project is to reestablish a self-sustaining bull
trout population of 300-500 spawning adults in the Clackamas River by
2030 that contributes to the recovery of bull trout in the Willamette
basin and to overall recovery criteria outlined in the Service's 2002
draft recovery plan (USFWS 2002, Chapter 1, p. v). For this project we
define a self-sustaining population as one that maintains a minimum
adult annual spawner abundance of 100 individuals, contains a high
level of genetic diversity representative of the donor stock, and
requires little or no additional transfers. The numerical goal of 300-
500 adult spawners is consistent with 2002 draft recovery planning
targets for bull trout abundance in the Clackamas River subbasin.
Although the amount of suitable habitat in the Clackamas River suggests
there is sufficient capacity to support a population of this size, bull
trout distribution across the species' range, even within areas of
suitable habitat, is patchy; thus, the true capacity of the Clackamas
River subbasin is unknown.
The Service and our project partners view the inclusion of older
life stages of bull trout in the implementation strategy as an
important component of the project. In addition, we believe that, given
the limited number of these older-aged individuals that will be
transferred, the risk of exceeding the carrying capacity of the
Clackamas River is extremely low. We chose to use multiple life stages
of bull trout in order to maximize our likelihood of success with the
reintroduction, and to test whether older life stages of bull trout
could be successfully moved from one
[[Page 35990]]
major watershed to another to promote reestablishment of extirpated
populations in a less intensive and more timely effort than would occur
if only fertilized eggs, fry, or juveniles were used. However, we
acknowledge the uncertainty regarding whether translocated subadult and
adult bull trout will adapt to the Clackamas River and contribute to
successful natural reproduction. In response to this uncertainty, we
plan to intensively monitor the behavior, distribution, movement, and
reproductive success of these older life stages over the first 2 years
of the project by utilizing passive integrated transponder tag and
radio tag technology. Continued transfer of older life stages beyond
the second year of the project would occur only if monitoring and
evaluation indicates the translocated older life stages are adapting to
the Clackamas River and contributing to successful natural
reproduction.
(14) Comment: One commenter expressed concern with potential
predation and competition impacts to threatened salmon and steelhead in
the Clackamas River from reintroduced bull trout. In order to
facilitate future management of the reintroduction project, and if
successful, the bull trout population, the commenter recommended that
the Service work with the State (Oregon Department of Fish and
Wildlife) and National Marine Fisheries Service (NMFS) to assess and
define an acceptable level of impact on salmon and steelhead.
Our Response: We support this recommendation. This Federal action
requires that we formally consult with NMFS under section 7 of the Act
due to potential impacts to Federally threatened salmon and steelhead
under their jurisdiction. The Service initiated formal consultation
with NMFS pursuant to section 7(a)(2) of the Act in December 2010
(USFWS 2010) and will ensure section 7(a)(2) compliance prior to
releasing bull trout into the Clackamas River. This Federal action also
required an amendment to the State's Clackamas River Subbasin Plan to
include the reintroduction of bull trout (ODFW 2010); this process
required a review of the project by the State's Fish and Wildlife
Commission, who voted unanimously in September 2010 to support the
action and the plan amendment. These two actions acknowledge the formal
administrative role the State of Oregon and NMFS have had in the review
of this Federal action. And just as importantly, the State of Oregon
and NMFS have had full representation in the multiyear planning of this
effort through the Clackamas Bull Trout Working Group, as well as the
project's Manager's Committee and several technical committees.
The State and NMFS are jointly developing a formal recovery plan
for the threatened salmon and steelhead in the lower Columbia River,
which includes the threatened species of salmon and steelhead found in
the Clackamas River. The current draft recovery plan, and the
information utilized in development of the draft plan, does not include
information that would allow the Service to define an ``acceptable
level of impact'' as applied to recovery planning objectives for
threatened salmon and steelhead. We expect NMFS may conduct this type
of analysis as part of the section 7 consultation process in response
to the biological assessment we submitted in December 2010.
Independent of the formal consultation process with NMFS, we have
initiated discussions with technical staff from NMFS NW Region Science
Center and the U.S. Geological Survey (USGS) to investigate the
feasibility and utility of life-cycle and bioenergetics modeling to
better predict the potential influence of the bull trout reintroduction
project on threatened salmon and steelhead in the Clackamas River. We
are committed to working closely with the State of Oregon, NMFS, and
other project partners and stakeholders during and following project
implementation to assess the potential impact of the bull trout
reintroduction on threatened salmon and steelhead in the Clackamas
River.
Findings
We followed the procedures required by the Act, NEPA, and the
Administrative Procedure Act during this Federal rulemaking process. We
solicited public comment on the proposed NEP designation. We have
considered all comments received on the proposed rule and the draft EA
before making this final determination. Based on the above information,
and using the best scientific and commercial data available (in
accordance with 50 CFR 17.81), we find that releasing bull trout into
the Clackamas River subbasin will further the conservation of the
species but that this population is not essential to the continued
existence of the species in the wild.
Effective Date
The Director has determined, pursuant to 5 U.S.C. 553(d)(3), that
the agency has good cause to make this rule effective upon publication.
The Service has previously provided an opportunity for public comment
on the rule, and has consulted extensively with involved stakeholders.
In addition, the seasonal window for implementing this reintroduction
project is driven by the biology of the species. Collection of donor
stock is best accomplished during the late spring and early summer when
fish are most vulnerable to capture techniques, and late spring/early
summer outplanting of donor stock is preferred given that seasonal
productivity of aquatic systems is high that time of year and donor
stock would be expected to have higher survival than if outplanted at
other times of the year. In making this final rule effective
immediately upon publication, it increases the likelihood that the
Service and our primary partners will be able to successfully implement
this project during the preferred window for implementation in 2011.
Peer Review
A final draft of the CRBTWG's Feasibility Assessment was provided
to the State of Oregon Independent Multidisciplinary Science Team
(IMST) for peer review. The IMST is an impartial scientific review
panel charged with advising the State of Oregon on matters of science
related to fish recovery, water quality improvements, and enhancing
watershed health. The IMST, appointed by the Governor, provides
independent, scientific analysis and evaluation of State actions and
policies under the Oregon Plan for Salmon and Watersheds (Oregon Plan).
The charge of the IMST is to focus on science, maintain its
independence, operate by consensus, and report its findings and
conclusions in written reports and reviews.
The Service, along with USFS and ODFW, presented a summary of the
goals, analyses, and intended use of the Feasibility Assessment at the
IMST's October 16, 2006, public meeting. The IMST received a draft of
the Feasibility Assessment for review on November 28, 2006. The IMST
review of the draft Feasibility Assessment was by an IMST subcommittee
including four scientists. The subcommittee held a public meeting on
December 13, 2006, to discuss the Feasibility Assessment and to prepare
a draft review. The draft review was discussed and unanimously adopted
(one member absent from vote) at the January 18, 2007, IMST public
meeting. Comments on the draft Feasibility Assessment were provided to
the Service, USFS, and ODFW on January 30, 2007. Comments were
subsequently posted on the IMST Web site: http://www.fsl.orst.edu/imst/
, and addressed in the final Feasibility
[[Page 35991]]
Assessment (Shively et al., 2007, Appendix F).
The IMST peer review of the science in the final Feasibility
Assessment, much of which was incorporated into this final rule, meets
our responsibilities under our policy on peer review, published on July
1, 1994 (59 FR 34270).
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. We certify that this rule would not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The area affected by this rule includes the Clackamas River
subbasin and the mainstem of the Willamette River, from Willamette
Falls to its points of confluence with the Columbia River, including
Multnomah Channel, in Oregon. Because NEP designations do not establish
substantial new regulation of activities, we do not expect this rule
would have any significant effect on recreational, agricultural,
hydropower generation, or development activities. Although the entire
NEP boundary encompasses a large area, the section of the NEP area
where we can anticipate the establishment of an experimental population
of bull trout is mainly public land owned by the USFS. In addition,
NEPs occurring outside the National Refuge System or the National Park
System are treated as proposed for listing under the provisions of
section 7 (other than section 7(a)(1)) of the Act. In these instances,
NEPs provide additional flexibility because Federal agencies are not
required to consult with us under section 7(a)(2) of the Act. Section
7(a)(1) of the Act requires Federal agencies to use their authorities
to further the conservation of listed species. Section 7(a)(4) of the
Act requires Federal agencies to confer (rather than consult) with the
Service on actions that are likely to jeopardize the continued
existence of a proposed species. The results of a conference are
advisory in nature and do not restrict agencies from carrying out,
funding, or authorizing activities.
The principal activities on private property near the expected
reestablishment area in the NEP are agriculture, ranching, hydropower
generation, and recreation. The presence of bull trout would likely not
affect the use of lands for these purposes because there would be no
new or additional economic or regulatory restrictions imposed upon
States, non-Federal entities, or members of the public due to the
presence of bull trout. Therefore, this rulemaking is not expected to
have any significant adverse impacts to recreation, agriculture,
hydropower generation, or any development activities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This rule would not ``significantly or uniquely'' affect small
governments. We have determined and certify pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this
rulemaking would not impose a cost of $100 million or more in any given
year on local or State governments or private entities. A Small
Government Agency Plan is not required. Small governments would not be
affected because the NEP designation would not place additional
requirements on any city, county, or other local municipalities.
(2) This rule would not produce a Federal mandate of $100 million
or greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This NEP designation
for bull trout would not impose any additional management or protection
requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630 (76 FR 6733), this final
rule does not have significant takings implications. This rule allows
for the take of reintroduced bull trout when such take is incidental to
an otherwise legal activity, such as recreation (e.g., fishing,
boating, wading, swimming), forestry, agriculture, hydroelectric power
generation, and other activities that are in accordance with Federal,
State, and local laws and regulations. Therefore, we do not believe
that establishment of this NEP would conflict with existing or proposed
human activities or hinder public use of the Clackamas River or its
tributaries.
A takings implication assessment is not required because this rule:
(1) Would not effectively compel a property owner to suffer a physical
invasion of property, and (2) would not deny any economically
beneficial or productive use of the land or aquatic resources. This
rule would substantially advance a legitimate public interest
(conservation and recovery of a listed fish species) and would not
present a barrier to all reasonable and expected beneficial use of
private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132 (70 FR 23775), we have
considered whether this final rule has significant Federalism effects
and have determined that a Federalism assessment is not required. This
rule would not have substantial direct effects on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this final
rule with the affected resource agencies in Oregon. Achieving the
recovery goals for this species will contribute to its eventual
delisting and return to State management. No intrusion on State
[[Page 35992]]
policy or administration is expected, roles or responsibilities of
Federal or State governments would not change, and fiscal capacity
would not be substantially directly affected. The final special rule
operates to maintain the existing relationship between the State and
the Federal governments and is being undertaken in coordination with
the State of Oregon. We have cooperated with ODFW in the preparation of
this final rule. Therefore, this final rule does not have significant
Federalism effects or implications to warrant the preparation of a
Federalism Assessment pursuant to the provisions of Executive Order
13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988 (February 7, 1996; 61 FR
4729), the Office of the Solicitor has determined that this rule would
not unduly burden the judicial system and meets the requirements of
sections (3)(a) and (3)(b)(2) of the Order.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR 1320,
which implement provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.), require that Federal agencies obtain approval from OMB
before collecting information from the public. A Federal agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. This final rule does not include any new collections of
information that require approval by OMB under the Paperwork Reduction
Act.
National Environmental Policy Act
In compliance with all provisions of the National Environmental
Policy Act of 1969 (NEPA), we have analyzed the impact of this rule.
Based on this analysis and information resulting from public comment on
the proposed action, we determined that this action will not have
significant impacts or effects. We have prepared a final EA on this
action, which is available for public inspection: (1) In person at the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT
section) and (2) online at http://www.regulations.gov or http://www.fws.gov/oregonfwo/. All appropriate NEPA documents were finalized
before this rule was finalized.
Government-to-Government Relationship With Tribes
In accordance with the presidential memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 229511), Executive Order 13175 (65 FR 67249), and
the Department of the Interior Manual Chapter 512 DM 2, we have
considered possible effects on Federally recognized Indian Tribes and
have determined that 2 percent of the acreage included in the Clackamas
River subbasin, including the upper Clackamas and Oak Grove Fork
drainage, is within the exterior boundaries of the reservation of the
Confederated Tribes of the Warm Springs Reservation (CTWSRO).
Furthermore, donor stock for the reintroduction will, in part,
originate from a section of the Metolius River located within the
exterior boundary of the CTWSRO reservation. Since 2007, the CTWSRO has
been an active participant in the CRBTWG discussions on bull trout
recovery in the Clackamas River basin. In August 2010, the CTWSRO
Tribal Council passed a resolution supporting the utilization of bull
trout from the Metolius River subbasin as donor stock for the Clackamas
River bull trout reintroduction project. The resolution requested the
Service and project partners consult with the CTWSRO on an annual basis
regarding utilization of bull trout for the Clackamas reintroduction,
and further, that annual schedules for donor stock collection,
including locations, methodologies, precise numbers to be collected,
and dates of collections, be coordinated with staff from the CTWSRO
Natural Resources Program. The Service will continue to consult, on a
government-to-government basis, with the CTWSRO for the duration of
this Federal action.
Energy Supply, Distribution, or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this final rule is
available at http://www.regulations.gov or upon request from the Oregon
Fish and Wildlife Office (see ADDRESSES).
Author
The primary author of this final rule is Chris Allen of the Oregon
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Trout, bull'' under
``FISHES'' in the List of Endangered and Threatened Wildlife to read as
follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 35993]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Trout, bull...................... Salvelinus U.S.A. (AK, Pacific U.S.A., coterminous T 637, 639E, 17.95(e) 17.44(w),
confluentus. NW into CA, ID, (lower 48 states), 659, 670 17.44(x)
NV, MT) Canada (NW except where
Territories). listed as an
experimental
population.
Trout, bull...................... Salvelinus U.S.A. (AK, Pacific Clackamas River XN ........... NA 17.84(v)
confluentus. NW into CA, ID, subbasin and the
NV, MT) Canada (NW mainstem
Territories). Willamette River,
from Willamette
Falls to its
points of
confluence with
the Columbia
River, including
Multnomah Channel.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.84 by adding a new paragraph (w) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(w) Bull Trout (Salvelinus confluentus).
(1) Where are populations of this fish designated as nonessential
experimental populations (NEPs)?
(i) The NEP area for the bull trout is within the species'
historical range and is defined as follows: the entire Clackamas River
subbasin as well as the mainstem Willamette River, from Willamette
Falls to its points of confluence with the Columbia River, including
Multnomah Channel.
(ii) Bull trout are not currently known to exist in the Clackamas
River subbasin or the mainstem Willamette River, from Willamette Falls
to its points of confluence with the Columbia River, including
Multnomah Channel, in Oregon. Should any bull trout be found in the
Willamette River within the NEP boundary, the U.S. Fish and Wildlife
Service (Service) will assume the fish to be part of the reintroduced
population, unless the fish is tagged or otherwise known to be from
another population. Given the presence of suitable overwintering and
forage habitat in the upper portion of the Clackamas River, as well as
the geographic distance from spawning and rearing habitat in the upper
Clackamas River to any overwintering and foraging habitat in the lower
Clackamas and Willamette Rivers, we do not expect the reintroduced fish
to become established outside the NEP. Bull trout found outside of the
NEP boundary, but known to be part of the NEP, will assume the status
of bull trout within the geographic area in which they are found.
(iii) We do not intend to change the NEP designation to ``essential
experimental,'' ``threatened,'' or ``endangered'' within the NEP area.
Additionally, we will not designate critical habitat for the NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What take is allowed of this species in the NEP area?
(i) Bull trout may be taken within the NEP area, provided that such
take is:
(A) Not willful, knowing, or due to negligence.
(B) Incidental to and not the purpose of carrying out an otherwise
lawful activity, such as recreation (e.g., fishing, boating, wading,
trapping, or swimming), agriculture, hydroelectric power generation,
and other activities that are in accordance with Federal, State,
Tribal, and local laws and regulations.
(C) Consistent with Oregon Department of Fish and Wildlife (ODFW)
fishing regulations that have been coordinated with the Service, if due
to fishing.
(D) Incidental to any activities related to or associated with the
operation and maintenance of the Clackamas River Hydroelectric Project
(FERC Project No. 2195) by Portland General Electric (PGE) as
administered under a license issued by FERC. Acceptable forms of taking
of bull trout include, but are not limited to, mortality, stranding,
injury, impingement and entrainment at project facilities, or delay in
up- or downstream passage associated with or caused by any of the
following activities. Activities related to the operation and
maintenance of Project 2195 include, but are not limited to:
(1) Hydroelectric generation at any project facility;
(2) Maintenance of project facilities;
(3) Provision of upstream and downstream fish passage, whether
through fish passage facilities, powerhouses, bypass facilities, bypass
reaches, or spillways;
(4) Fish handling at fish separation and counting facilities;
(5) Fish removal from fish passage facilities and areas critical to
downstream migrant passage testing at the time of testing (Bull trout
removed for this testing do not need to be returned to the Clackamas
River subbasin.);
(6) Fish conservation activities;
(7) Fish handling, tagging, and sampling in connection with FERC-
approved studies; and
(8) Approved resource protection, mitigation, and enhancement
measures.
(E) Consistent with the adaptive management process identified for
this project including:
(1) The targeted relocation or possible removal of bull trout by
the Service or our project partners, if bull trout are documented
staging at the entrance to, within, or below, juvenile fish passage
facilities within the Clackamas Hydroelectric Project; and
(2) Discontinuation of the reintroduction project and complete
removal of bull trout from the Clackamas River if the Service
determines, in consultation and coordination with the State of Oregon,
[[Page 35994]]
NMFS, and other project partners, and based on project monitoring and
evaluation, that the reintroduction efforts cannot be carried out in a
manner consistent with the recovery of threatened salmon and steelhead.
(ii) Any person with a valid permit issued by the Service under
Sec. 17.32 and a valid State permit issued by ODFW may take bull trout
for educational purposes, scientific purposes, the enhancement of
propagation or survival of the species, zoological exhibition, and
other conservation purposes consistent with the Act.
(3) What take of this species is not allowed in the NEP area?
(i) Except as expressly allowed in paragraph (w)(2) of this
section, all the provisions of Sec. 17.31(a) and (b) apply to the fish
identified in paragraph (w)(1) of this section.
(ii) Any manner of take not described under paragraph (w)(2) of
this section or Oregon Revised Statute (ORS) 498.002 and Oregon Angling
Regulations pursuant to ORS 498.002 is prohibited in the NEP area.
Should State statutes or regulations change, take prohibitions will
change accordingly. Any changes to State recreational fishing
regulations pertaining to the experimental population of bull trout in
the Clackamas River subbasin will be made by the State in collaboration
with the Service. We may refer unauthorized take of this species to
ODFW law enforcement authorities or Service law enforcement authorities
for prosecution.
(iii) A person may not possess, sell, deliver, carry, transport,
ship, import, or export by any means whatsoever any of the identified
fishes, or parts thereof, that are taken or possessed in a manner not
expressly allowed in paragraph (w)(2) of this section, or in violation
of the applicable State fish and wildlife laws or regulations or the
Act.
(iv) A person may not attempt to commit, solicit another to commit,
or cause to be committed any offense except the take expressly allowed
in paragraph (w)(2) of this section.
(4) How will the effectiveness of the reestablishment be monitored?
(i) Effectiveness monitoring of the project will be conducted
jointly by the Service and ODFW, with assistance from the U.S. Forest
Service (USFS) and PGE.
(ii) We will monitor the effectiveness of the reintroduction during
phase 1 of the project (2011-2017) by annually assessing: Distribution
and movement, relative survival of translocated bull trout via presence
and absence surveys, occurrence of spawning and reproduction, and
genetic health, as measured against the donor population. These
monitoring objectives will be accomplished by methodologies that
include Passive Integrated Transponder (PIT) tagging of all fish
translocated to the Clackamas River, radio tagging of the adult and
subadult life stages, snorkel surveys, redd surveys, and minnow
trapping.
(iii) If successful reproduction of reintroduced bull trout is
detected, we will incorporate monitoring to assess the distribution,
movement, growth, and survival of the initial cohorts of naturally
produced bull trout.
(iv) Monitoring activities in phase 2 (2018-2024) and phase 3
(2025-2030) will be informed by phase 1 monitoring and evaluation.
(v) Annual reports that summarize the implementation and monitoring
activities that occurred the previous year will be collaboratively
developed by the Service, ODFW, and USFS.
(vi) We will evaluate the implementation strategy annually, and we
will evaluate the reestablishment effort at the completion of phase 1
to determine whether to continue translocation of bull trout in phase
2.
(5) What safeguards are in place to ensure the protection of
Federally listed salmon and steelhead in the NEP area?
(i) In consultation and coordination with the National Marine
Fisheries Service (NMFS) and other project partners, we have developed
a plan to facilitate management decisions associated with potential
impacts from the bull trout reintroduction on listed anadromous
salmonids. If specific bull trout and/or anadromous salmonid thresholds
are triggered, we will follow the planned management actions to
minimize impacts to salmon and steelhead from the reintroduction of
bull trout in the Clackamas River.
(ii) Our management actions implemented and the frequency of those
actions, will be informed by:
(A) The reintroduction project's monitoring and evaluation program,
jointly implemented by the Service, ODFW, and USFS; and
(B) The conservation status of the listed Clackamas River
anadromous salmonid populations.
(iii) Because we cannot predict all likely impact scenarios and
appropriate management responses, we will modify our plan as necessary,
in consultation and coordination with NMFS, ODFW, and other project
partners, consistent with the overall adaptive management of the
project.
(iv) Although our analysis indicates a low likelihood for
population-level impacts to Federally listed salmon and steelhead
populations, if the Service determines, in consultation and
coordination with the State of Oregon, NMFS, and other project
partners, and based on project monitoring and evaluation, that the
reintroduction efforts are not consistent with the recovery of salmon
or steelhead, the reintroduction program will be discontinued and bull
trout will be removed from the experimental population area.
(v) Prior to releasing bull trout into the Clackamas River, the
Service will complete any required interagency cooperation with NMFS
pursuant to section 7(a)(2) of the Act.
(6) Note: Map of the NEP area for bull trout in Oregon follows:
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[[Page 35995]]
[GRAPHIC] [TIFF OMITTED] TR21JN11.026
Dated: June 13, 2011.
Rachel Jacobsen,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-15370 Filed 6-20-11; 8:45 am]
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