[Federal Register: March 24, 2009 (Volume 74, Number 55)]
[Proposed Rules]
[Page 12297-12300]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr09-25]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2008-0128; MO 922105 0083-B2]
RIN 1018-AW72
Endangered and Threatened Wildlife and Plants; Determination of
Significant Portion of the Range of Marine and Estuarine Areas of the
Southwestern Washington/Columbia River Distinct Population Segment of
Coastal Cutthroat Trout (Oncorhynchus clarki clarki)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: On July 5, 2002, we, the U.S. Fish and Wildlife Service
(Service), published a withdrawal of the proposed rule to list the
Southwestern Washington/Columbia River distinct population segment
(DPS) of the coastal cutthroat trout (Oncorhynchus clarki clarki) as
threatened under the Endangered Species Act of 1973, as amended (Act).
As a result of litigation, we are now reconsidering our withdrawal of
the proposed rule with specific regard to the question of whether the
marine and estuarine areas may constitute a significant portion of the
range of the Southwestern Washington/Columbia River DPS of coastal
cutthroat trout, and if so, whether that portion is threatened or
endangered. We hereby notify the public, other concerned governmental
agencies, the scientific community, industry, and any other interested
party of our request for information, data, or comments on the marine
and estuarine areas of the Southwestern Washington/Columbia River DPS
of coastal cutthroat trout, with particular regard to whether these
areas constitute a significant portion of the range of the DPS under
the Act, and if so, whether the subspecies is threatened or endangered
in those areas.
DATES: We will accept information received on or before April 23, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R1-ES-2008-0128; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the ``Public Comments''
section below for more information).
FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D, State Supervisor,
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600
SE 98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179;
facsimile 503-231-6195. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
To ensure that any action resulting from this request for
information will be
[[Page 12298]]
based on the best scientific and commercial data available and will be
as accurate as possible, we solicit comments or suggestions from the
public, other concerned governmental agencies, the scientific
community, industry, or any other interested parties. We particularly
seek comments concerning:
(1) Information on those marine and estuarine areas that could
potentially constitute a significant portion of the range of the
Southwestern Washington/Columbia River DPS of the coastal cutthroat
trout, and the suggested boundaries of those areas;
(2) Information on whether and why those marine and estuarine areas
constitute a significant portion of the range of the Southwestern
Washington/Columbia River DPS of coastal cutthroat trout as defined by
sections 3(6) or 3(20) of the Act; and
(3) Other information on the status, distribution, population
trends, abundance, habitat conditions, or threats specific to those
marine and estuarine areas that could constitute a significant portion
of the range of the Southwestern Washington/Columbia River DPS of
coastal cutthroat trout.
(4) Information on the effects of potential threat factors that are
the basis for a species' listing determination under section 4(a)(1) of
the Act (16 U.S.C. 1531 et seq.; the ``five listing factors'')
specifically with respect to those marine and estuarine areas of the
Southwestern Washington/Columbia River DPS of coastal cutthroat trout.
The five listing factors considered under the Act are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) Inadequacy of existing regulatory mechanisms; and
(e) Other natural or manmade factors affecting its continued
existence.
We define ``estuary'' to mean a semi-enclosed coastal body of water
that has a free connection with the open sea and within which sea water
is measurably diluted with fresh water derived from land drainage
(Lauff 1967, as cited in ISAB 2000, p. 2). For example, although the
Columbia River is tidally influenced up to Bonneville Dam at river mile
146 (235 river kilometers), saltwater intrusion is generally limited to
the lower 23 river miles (37 river kilometers) (near Harrington Point)
at the minimum regulated monthly flow (Neal 1972, as cited in ISAB
2000, p. 2), although when lower daily flows occur salt intrusion can
extend past Pillar Rock at river mile 28 (45 river kilometers).
Please note that comments merely stating support for or opposition
to the action under consideration without providing supporting
information, although noted, will not be considered in making a
determination, because section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this request
for information by one of the methods listed in the ADDRESSES section.
We will not consider comments sent by e-mail or fax or to an address
not listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the website. If you submit a hardcopy comment that includes personal
identifying information, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this review, will be available for
public inspection at http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
The coastal cutthroat trout is one of 10 formally described
subspecies of cutthroat trout (Behnke 1992, p. 53). Coastal cutthroat
trout are distributed along the Pacific Coast of North America from
Prince William Sound in Alaska to the Eel River in California (Behnke
1992, p. 65; Trotter 1997, p. 7), and inland from the Coast Range of
Alaska to roughly the crest of the Cascades of Washington and Oregon
(Trotter 1997, p. 7). In January 1999, the National Marine Fisheries
Service (NMFS) completed a status review of coastal cutthroat trout
from Washington, Oregon, and California. The status review identified
six Evolutionarily Significant Units (ESUs) across this range based on
biogeographic, life history, and genetic information. The six ESUs
identified were Puget Sound, Olympic Peninsula, Southwestern
Washington/Columbia River, Upper Willamette River, Oregon Coast, and
Southern Oregon/California Coasts (Johnson et al. 1999, p. 125).
On April 5, 1999, the NMFS and the Service issued a joint proposal
to list the Southwestern Washington/Columbia River population of the
coastal cutthroat trout as a threatened species under the Act (64 FR
16397). Although the NMFS uses the term ESU for such a population, when
the Service assumed sole regulatory jurisdiction of the coastal
cutthroat trout under the Act in April 2000 (65 FR 21376; April 21,
2000), we began using the term Distinct Population Segment (DPS), which
is the terminology normally utilized for such analogous entities by the
Service.
The Southwestern Washington/Columbia River DPS that is the subject
of this request for information includes the Columbia River and its
tributaries from the mouth to the Klickitat River on the Washington
side of the river and Fifteenmile Creek on the Oregon side; the
Willamette River and its tributaries from its confluence with the
Columbia upstream to Willamette Falls; Willapa Bay and its tributaries;
and Grays Harbor and its tributaries. The DPS inhabits portions of five
ecoregions: the Coast Range, Puget Lowland, Cascades, Willamette
Valley, and Eastern Cascades. Most of the DPS occurs in the Coast
Range, Puget Lowland, and Cascades. A more detailed description of the
DPS can be found in the April 5, 1999, proposed rule (64 FR 16397).
Relatively little is known about the specific life history and
habitat requirements of coastal cutthroat trout. Coastal cutthroat
trout spend more time in the freshwater environment and make more
extensive use of this habitat, particularly small streams, than do most
other Pacific salmonids (Johnson et al.1999, p. 44). The life history
of coastal cutthroat trout may be one of the most complex of any
Pacific salmonid. Coastal cutthroat trout exhibit a variety of life
history strategies across their range that includes three basic
variations: resident or primarily nonmigratory, freshwater migrants,
and marine migrants (Northcote 1997, p.20; Johnson et al. 1999, pp. 11,
44-45). Residents may stay within the same stream segment their entire
life. Freshwater migrants may make migrations from small tributaries to
larger tributaries or rivers, or may migrate from tributary streams to
lakes or reservoirs. Marine migrations (anadromy) are generally thought
to be limited to near-shore marine areas; individuals may not venture
out of the estuary in some cases (Trotter 1997, p.10).
[[Page 12299]]
There are numerous exceptions to these generalized behaviors. We
also lack observations of definitive genetic relationships between
individual or population-wide migratory strategies (Behnke 1997, p. 5).
In areas above long-standing barriers, coastal cutthroat trout are
limited to resident or freshwater migratory life history strategies. In
areas accessible to the ocean, all three life history strategies
(resident, freshwater migratory, and anadromous) are likely to be
expressed in the same area. Coastal cutthroat trout appear to exhibit
very flexible life history strategies. The extent to which individuals
expressing these various strategies are isolated from other life
history forms is largely unknown, though there is growing evidence that
individuals may express multiple life history behaviors in their life
time (Johnson et al. 1999, pp. 40-43). The diverse life history
strategies shown by coastal cutthroat trout are not well understood,
but are thought to represent unique adaptations to local environments
and the subspecies' response to environmental variability and
unpredictability.
For additional information on the biology, habitat, and range of
coastal cutthroat trout, please refer to the proposed rule (64 FR
16397; April 5, 1999) and withdrawal of the proposed rule (67 FR 44934;
July 5, 2002).
Previous Federal Actions
The NMFS and the Service jointly published a proposed rule to list
the Southwestern Washington/Columbia River ESU (later DPS) of coastal
cutthroat trout as a threatened population under the distinct
vertebrate population segment provision of the Act on April 5, 1999 (64
FR 16397). In that proposed rule, we noted the uncertainty regarding
which agency, the NMFS or the Service, had jurisdiction over the
coastal cutthroat trout, and we committed to notify the public once the
issue had been resolved. Subsequently, the time to make a final
determination on the proposed rule was extended for an additional 6
months, from April 5, 2000 to October 5, 2000, due to substantial
scientific disagreement about the status of the population; this action
further opened an additional 30-day comment period (65 FR 20123; April
14, 2000). On April 21, 2000, the NMFS and the Service published a
notice of the Service's assumption of sole jurisdiction for coastal
cutthroat trout under the Act (65 FR 21376). On June 2, 2000, we again
reopened the comment period on the proposed rule and announced a public
hearing to be held in Ilwaco, Washington, on June 20, 2000, to allow
all interested parties to submit oral or written comments on the
proposal (65 FR 35315).
On July 14, 2000, we published a notice to clarify the take
prohibitions for the Southwestern Washington/Columbia River DPS of
coastal cutthroat trout that would apply if the proposed listing were
to be finalized and provided a 30-day public comment period on the list
of activities that would, and would not, likely constitute a violation
of section 9 of the Act (65 FR 43730). The comment period on the
clarification of take prohibitions was reopened on September 6, 2000
(65 FR 53974), and a hearing was held September 21, 2000, in Aberdeen,
Washington, based on a request during the initial public comment
period. In addition, the comment period on the proposed rule to list
the Southwestern Washington/Columbia River DPS of coastal cutthroat
trout was again reopened for an additional 30 days on November 23, 2001
(66 FR 58706).
On July 5, 2002, we published a notice of withdrawal of the
proposed rule to list the Southwestern Washington/Columbia River DPS of
the coastal cutthroat trout as threatened (67 FR 44934). The notice set
forth the following bases for our determination that the DPS did not
meet the listing criteria as a threatened species: (1) new data
indicating that coastal cutthroat trout are more abundant in southwest
Washington than was previously thought and that population sizes were
comparable to those of healthy populations in other areas; (2) new
information and analyses calling into question prior interpretation of
the size of the anadromous portion of the population in the Columbia
River and indicating higher numbers than previously described; (3) new
data and analyses no longer showing declining adult populations in the
Grays Harbor tributaries; (4) new analyses calling into question the
past interpretation of trend data, and therefore the magnitude of the
trend in the anadromous portion of the population in the Columbia
River; (5) new information describing the production of anadromous
progeny by non-anadromous and above-barrier cutthroat trout; and, (6)
two large-scale Habitat Conservation Plans (HCPs) and significant
changes in Washington Forest Practices Regulations substantially
reducing threats to aquatic and riparian habitat on forest lands in
Washington. The withdrawal notice concluded that, based on reduced
threats and new information and understanding regarding the status of
the DPS, the Southwestern Washington/Columbia River DPS of coastal
cutthroat trout was not in danger of becoming endangered in the
foreseeable future, and therefore did not meet the definition of a
threatened species.
On February 3, 2005, the Center for Biological Diversity, Oregon
Natural Resources Council, Pacific Rivers Council, and WaterWatch filed
a legal challenge to the Service's withdrawal of the proposed listing
in the U.S. District Court for the District of Oregon (Center for
Biological Diversity, et al. v. U.S. Fish and Wildlife Service, Case
No. 05-165-KI). The Court ruled that the Service's decision to withdraw
the proposed rule complied with the Act and was not arbitrary and
capricious, and dismissed the action on November 16, 2005. Plaintiffs
appealed. On April 18, 2008, the U.S. Court of Appeals for the Ninth
Circuit affirmed the district court's decision in part and reversed the
decision in part. The Ninth Circuit found no error in the Service's
determination that the DPS as a whole did not merit listing, but held
that the Service had failed to consider whether the marine and
estuarine portions of the DPS constitute a significant portion of the
range of the coastal cutthroat trout within that DPS under the Act
(Center for Biological Diversity, et al. v. U.S. Fish and Wildlife
Service, 2008 U.S. App. LEXIS 8701 (9th Cir. 2008)). The Ninth Circuit
reversed the district court's decision and remanded the matter to the
district court.
On July 1, 2008, the U.S. District Court for the District of Oregon
issued an amended order remanding the listing decision to the Service
for further consideration consistent with the opinion of the Ninth
Circuit. Specifically, the court directed the Service to consider
whether the estuary and other marine areas constitute a significant
portion of the range of the Southwestern Washington/Columbia River DPS
of the coastal cutthroat trout. The Service will complete its review of
the best available information, including data, information, and
comments submitted during this comment period, to comply with that
order.
At this time, we are soliciting new information on the coastal
cutthroat trout in the marine and estuarine areas of the Southwestern
Washington/Columbia River DPS, and specifically in regard to whether
these areas represent a significant portion of the range of this DPS.
If you submit information, please support it with documentation such as
maps, bibliographic references, methods used to gather and analyze the
data, or copies of any pertinent publications, reports, or letters by
knowledgeable sources. We request information regarding data from any
systematic surveys, as well as any studies or
[[Page 12300]]
analysis of data regarding population size or trends; biology or
ecology of the subspecies; effects of current land management on
population distribution and abundance; current condition of habitat;
and conservation measures that have been implemented to benefit the
subspecies specific to the marine and estuarine areas of the
Southwestern Washington/Columbia River DPS. Additionally, we request
information on threats to the coastal cutthroat trout in the marine and
estuarine areas of the Southwestern Washington/Columbia River DPS in
relation to the five listing factors (as defined in section 4(a)(1) of
the Act).
At the conclusion of our review, we will issue a new determination
on the April 5, 1999 proposed rule concerning whether the marine and
estuarine areas of the Southwestern Washington/Columbia River DPS of
the coastal cutthroat trout constitute a significant portion of the
range of the DPS, and if so, whether such significant portion of the
range warrants listing. We will base our determination on a review of
the best scientific and commercial information available, including all
information received as a result of this notice.
References Cited
A complete list of all references we cited in this document is
available on the Internet at http://www.regulations.gov or by
contacting the Oregon Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Author
The primary authors of this notice are the staff of the Oregon Fish
and Wildlife Office, U.S. Fish and Wildlife Service, 2600 SE 98th
Avenue, Suite 100, Portland, OR 97266.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 11, 2009
Paul R. Schmidt
Acting Director, Fish and Wildlife Service
[FR Doc. E9-5890 Filed 3-23-09; 8:45 am]
BILLING CODE 4310-55-S