[Federal Register Volume 59, Number 130 (Friday, July 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16577]


[[Page Unknown]]

[Federal Register: July 8, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 940685-4185; I.D. 040694C]
RIN 0648-AG74

 

Endangered and Threatened Species; Proposed Endangered Status for 
North and South Umpqua River Cutthroat Trout in Oregon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is issuing a proposed rule to list the Umpqua River 
cutthroat trout (Oncorhynchus clarki) as endangered under the 
Endangered Species Act of 1973 (ESA). NMFS has determined that the 
Umpqua River cutthroat trout is a ``species'' as interpreted under the 
ESA. The number of adult cutthroat trout counted at Winchester Dam on 
the North Umpqua River has declined to extremely low numbers. Habitat 
degradation and recreational fishing are believed to be the major 
factors contributing to the decline; they continue to represent a 
potential threat to the Umpqua River cutthroat trout's existence. 
Should the proposed listing be made final, a recovery program would be 
implemented.

DATES: Comments must be received by September 6, 1994. Requests for a 
public hearing must be received by August 8, 1994.

ADDRESSES: Comments on this proposed rule should be sent to the 
Environmental and Technical Services Division, NMFS, Northwest Region, 
911 NE. 11th Avenue, Suite 620, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, Environmental and 
Technical Services Division, NMFS, Portland, OR (503/230-5430) or Marta 
Nammack, Protected Species Management Division, NMFS, 1335 East-West 
Highway, Silver Spring, MD 20910 (301/713-2322).

SUPPLEMENTARY INFORMATION:

Background

    On April 1, 1993, the Secretary of Commerce received a petition 
from the Oregon Natural Resources Council, Umpqua Valley Audubon 
Society, and the Wilderness Society to list North and South Umpqua 
River sea-run cutthroat trout (Oncorhynchus clarki clarki) as 
threatened or endangered and to designate critical habitat under the 
ESA. On July 19, 1993, NMFS published (58 FR 38554) its intent to 
conduct a status review of North and South Umpqua River sea-run 
cutthroat trout. To ensure a comprehensive review, NMFS solicited 
information and data regarding the present and historic status of North 
and South Umpqua River sea-run cutthroat trout and whether this stock 
qualifies as a ``species'' under the ESA. NMFS also requested 
information on areas that may qualify as critical habitat for North and 
South Umpqua River sea-run cutthroat trout.
    On August 19, 1993, NMFS received a petition from the Oregon 
Natural Resources Council and the Steamboaters for an emergency listing 
of North and South Umpqua River sea-run cutthroat trout. On December 
17, 1993, NMFS published a notice of finding (58 FR 65961) that an 
emergency listing was not warranted at that time.

Status Review for Umpqua River Sea-run Cutthroat Trout

    The NMFS Northwest Region Biological Review Team has prepared a 
``Status Review for Umpqua River Sea-run Cutthroat Trout'' (Johnson et 
al. 1994), providing detailed information, discussion and references. 
This status review is available upon request (see ADDRESSES), and is 
summarized below.

Biological Background

    The Umpqua River watershed covers approximately 4,560 square miles 
(11,810 km2) in southwestern Oregon, and enters the Pacific Ocean 
60 miles (97 km) north of Cape Blanco. The river is approximately 210 
miles (338 km) long and, above river mile 112, consists of two 
principal forks: The North Umpqua and the South Umpqua rivers.
    In general, cutthroat trout are considered to be either migratory 
and anadromous, or non-migratory and resident. In some large river 
systems, however, cutthroat trout may make extensive in-river 
migrations but never enter the ocean. There is some evidence that this 
``potamodromous'' life history form occurs in the Umpqua River. 
Potamodromous forms migrate to mainstem rivers or lakes, but otherwise 
their life history characteristics are similar to the anadromous form. 
Resident forms of cutthroat trout inhabit headwater areas throughout 
their lives, and seldom live beyond the age of 4 or 5 years.
    Throughout their range, anadromous cutthroat trout usually spawn in 
small tributary streams. In Oregon, anadromous cutthroat trout re-enter 
fresh water between July and March; few, if any, overwinter in salt 
water. Spawning generally occurs during late winter and spring, but 
timing varies by geographic location. Anadromous adults may survive 
spawning and reproduce in one or more subsequent years.
    Anadromous cutthroat trout first migrate to the ocean as smolts 
between the ages of 2 and 4 years. In Oregon, the downstream migration 
of smolts occurs between March and June. Because they spend a variable 
amount of time in the ocean, the growth rate of these fish varies.
    Adult cutthroat trout (presumed to be anadromous) passing 
Winchester Dam (river mile 118 on the North Umpqua River) have been 
monitored since 1946. During this monitoring period, a maximum annual 
count of 2,364 (1966-67) and a minimum annual count of zero (1992-93) 
adult cutthroat trout have been recorded. The numbers of anadromous 
cutthroat trout returning to the South Umpqua River is unknown.

Consideration as a ``Species'' Under the ESA

    To qualify for listing as a threatened or endangered species, 
Umpqua River sea-run cutthroat trout must be a ``species'' under the 
ESA. The ESA defines a ``species'' to include any ``distinct population 
segment of any species of vertebrate . . . which interbreeds when 
mature.'' NMFS published a policy document (56 FR 58612, November 20, 
1991) describing how the agency will apply the ESA definition of 
``species'' to anadromous salmonid species, including sea-run cutthroat 
trout and steelhead. This policy provides that a salmonid population 
will be considered distinct, and hence a species under the ESA, if it 
represents an evolutionarily significant unit (ESU) of the biological 
species. The population must satisfy two criteria to be considered an 
ESU: (1) It must be reproductively isolated from other conspecific 
population units, and (2) it must represent an important component in 
the evolutionary legacy of the biological species. The first criterion, 
reproductive isolation, need not be absolute, but must be strong enough 
to permit evolutionarily important differences to accrue in different 
population units. The second criterion would be met if the population 
contributed substantially to the ecological/genetic diversity of the 
species as a whole. Further guidance on the application of this policy 
is contained in ``Pacific salmon (Oncorhynchus spp.) and the Definition 
of Species under the Endangered Species Act,'' which is available upon 
request (see ADDRESSES).
    For the first criterion, NMFS considered available information 
regarding geographic and physical factors that may isolate Umpqua River 
sea-run cutthroat trout from other conspecific populations of cutthroat 
trout. The scarcity of available information about the different life 
history forms of cutthroat trout in the Umpqua River makes it difficult 
to assess accurately the reproductive isolation of the sea-run 
cutthroat trout within the Umpqua River basin. In general, the 
potamodromous life history form provides a possible link between 
anadromous and resident fish and may retard divergence of these two 
life history forms. Sea-run cutthroat trout generally do not overwinter 
at sea and may, after spawning, spend an entire year in fresh water 
prior to returning to the ocean. Incidence of repeat spawning in 
cutthroat trout is higher than in steelhead, and this distinctive life 
history trait may reflect a greater affinity with resident life history 
forms. These traits suggest that opportunities for reproductive 
isolation between life history forms are not as great as with other 
Oncorhynchus species (e.g., O. mykiss and O. nerka). According to NMFS 
policy on application of the ESA species definition, anadromous and 
nonanadromous life history forms can be considered separately under the 
ESA if they are reproductively isolated, but they should be considered 
together if they are not. Because there is no clear basis for 
considering sea-run cutthroat trout in the Umpqua River as a separate 
entity from resident and potamodromous fish, NMFS has determined that, 
at least until more information is available, all life history forms of 
O. clarki in the Umpqua River should be considered part of the same 
ESU.
    Unlike most other coastal rivers, the Umpqua River drainage 
originates in the Cascade Mountains and passes through the Coast Range. 
Anadromous cutthroat trout in the Umpqua River are believed to spawn 
farther from the ocean (125 miles (201 km or more) than most other sea-
run cutthroat trout populations. The homing ability of sea-run 
cutthroat trout is generally considered to be highly precise and there 
is reason to suspect that populations in different drainages could 
become reproductively isolated. In addition, warm water temperatures in 
the lower mainstem of the Umpqua River may also act as an isolating 
mechanism. Although a scarcity of direct evidence (e.g., genetic 
information) highlights the scientific uncertainty regarding the degree 
of reproductive isolation of Umpqua River cutthroat trout, available 
circumstantial evidence suggests that all life history forms (i.e., 
anadromous, resident, and potamodromous) of cutthroat trout within the 
Umpqua River basin are substantially reproductively isolated from 
populations in adjacent basins.
    Regarding the second ESU criterion, evolutionary significance, the 
lengthy migration of the anadromous form of Umpqua River cutthroat 
trout, possible adaptations for dealing with warm water temperatures, 
and distinctive hydrographic features of the Umpqua River drainage all 
suggest that there is an ESU at the Umpqua River level. The effects of 
the extensive releases of Alsea River Hatchery fish between 1961 and 
1976 were also considered. During the period when the Umpqua River was 
stocked with Alsea River hatchery fish, counts of adult cutthroat trout 
(presumably sea-run fish) at Winchester Dam increased dramatically. 
This trend was not sustained after stocking was discontinued, and 
counts have declined to precariously low levels. This may be evidence 
of the inability of Alsea River cutthroat trout to sustain a population 
in the Umpqua River. Further, during the stocking program, the sea-run 
cutthroat trout passing over Winchester Dam exhibited a later run 
timing than the indigenous population. After stocking was discontinued, 
this later run timing shifted back toward the original run timing. 
Although there are no data that directly address the effects of Alsea 
River fish on Umpqua River native fish (e.g., genetic information), 
available evidence suggests that the current population of cutthroat 
trout represented by the dam counts is a remnant of the indigenous 
cutthroat trout and may be genetically distinct from Alsea River 
hatchery fish.

Status of Umpqua River Cutthroat Trout

    The precarious status of the remaining sea-run cutthroat trout in 
the Umpqua River is not in question. However, the existence of 
potamodromous fish is still largely speculative. Resident cutthroat 
trout numbers are not known, but there are a few lakes within the 
Umpqua River Basin believed to contain cutthroat trout. Although there 
is no direct information (e.g., abundance estimates) on the current 
status of the species, it is likely that there have been significant 
reductions in the numbers of resident and potamodromous fish due to 
widespread habitat degradation in the Umpqua River Basin.
    A key factor influencing NMFS' determination of the status of the 
Umpqua River cutthroat trout concerns the evolutionary significance of 
the anadromous life history form to O. clarki as a whole. On the issue 
of anadromy/nonanadromy, Waples (1991) states:

    If substantial gene flow occurs or has recently occurred between 
the two forms, they represent polymorphisms within a single 
population and should be considered as a unit for purposes of the 
Act. In determining whether such a population unit is an ESU, the 
anadromous and non-anadromous traits should be considered in the 
same manner as other population characteristics. . . . The important 
questions are whether the traits have a genetic basis and whether 
they help to make the population unit ``distinct'' from other 
populations. For example, an anadromous/nonanadromous unit might be 
considered an ESU if other ecologically comparable populations of 
the species harbored only the nonanadromous form. In this case, if 
the population unit is considered to be an ESU solely or primarily 
on the basis of the anadromous trait, then the potential loss of 
anadromy should be a legitimate ESA concern. A key question would be 
whether the nonanadromous form was likely to give rise to the 
anadromous form after the latter had gone locally extinct. 
Therefore, an anadromous/nonanadromous population unit could be 
listed based on a threat to one of the life-history traits, if the 
trait were genetically based and loss of the trait would compromise 
the ``distinctness'' of the population. (p. 16)

Thus, even if the resident form were determined to be healthy, the risk 
of losing the anadromous form would still be an ESA concern if the 
trait has a genetic basis and it contributes substantially to the 
species' ecological and genetic diversity. Although there are no data 
that directly address the genetic relationship between the different 
life history forms of Umpqua River cutthroat trout, circumstantial 
evidence regarding population abundance and run-timing suggests that a 
component of the native run persists, and the possibility of losing 
this life history form must be considered in determining whether to 
list the entire population.
    NMFS concludes that the best available information indicates that 
this stock meets both of the criteria necessary to be considered an 
ESU. Therefore, NMFS determines that the Umpqua River cutthroat trout 
is a ``species'' under the ESA.

Summary of Factors Affecting the Species

    Section 2(a) of the ESA states that various species of fish, 
wildlife, and plants in the United States have been rendered extinct as 
a consequence of economic growth and development untempered by adequate 
concern and conservation. Section 4(a)(1) of the ESA and the NMFS 
listing regulations (50 CFR Part 424) set forth procedures for listing 
species. The Secretary of Commerce must determine, through the 
regulatory process, if a species is endangered or threatened based upon 
any one or a combination of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
education purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or human-made 
factors affecting its continued existence.

A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Habitat degradation and impacts associated with logging and related 
land management activities in particular have likely contributed to the 
Umpqua River cutthroat trout population's decline. Removal of forest 
canopy can cause an increase in both the maximum and the diurnal 
fluctuation of water temperatures, leading to disease outbreaks, 
altered timing of migration, and accelerated maturation. The removal of 
streamside vegetation can deplete the bank area of potential new woody 
debris that provides cover for cutthroat trout. Siltation is another 
result of some logging practices; it is known to hinder fry emergence 
from the gravel and may limit production of benthic invertebrates. 
Dissolved oxygen content of both surface and intragravel water can 
decrease as a result of logging operations. Logging can also cause 
changes in stream flow regimes, resulting in potentially adverse water 
velocity and depth characteristics.

B. Overutilization for Commercial, Recreational, Scientific, or 
Education Purposes

    Cutthroat trout are not harvested commercially, and scientific and 
educational programs have probably had little or no impact on Umpqua 
River cutthroat trout populations. However, the cutthroat trout is a 
popular gamefish throughout the Pacific Northwest and available 
information indicates that recreational fishing has likely contributed 
to the general decline in Umpqua River cutthroat trout populations. 
Also, poaching may pose a major threat to depressed populations of 
salmonids in the Umpqua River.

C. Disease or Predation

    Disease is not believed to be a factor contributing to the decline 
of cutthroat trout populations in the Umpqua River. Several non-native 
fish species introduced to the Umpqua River are known to prey on or 
compete with salmonids; however, there is no specific information 
regarding predation impacts by these or native fishes on Umpqua River 
cutthroat trout.

D. Inadequacy of Existing Regulatory Mechanisms

    Because recreational fishing is believed to have been a factor 
contributing to the general decline in cutthroat trout populations in 
the Umpqua River basin, Oregon sportfishing regulations now require 
anglers to release naturally produced cutthroat trout (i.e. fish 
without clipped adipose fins) that are greater than 12 inches in 
length. However, anglers are still allowed to catch and keep up to five 
fish per day between 8-12 inches in length in the Umpqua River and 
estuary. Therefore, existing harvest regulations may not be adequate to 
protect a substantial portion of the Umpqua River's juvenile and adult 
cutthroat trout population from overutilization by recreational 
anglers.
    The significant decline in numbers of cutthroat trout passing 
Winchester Dam suggests that management plans and practices followed by 
the U.S. Forest Service (FS), Bureau of Land Management (BLM), and 
Oregon Department of Fish and Wildlife have not provided adequate 
protection for this species. Although the State of Oregon listed the 
Umpqua River sea-run cutthroat trout as a sensitive species in 1990, 
the designation has not reversed the decline of this species. 
Furthermore, the designation has not protected the species from adverse 
effects resulting from Federal actions.
    A Federal interagency cooperative program, the Record of Decision 
for Amendments to FS and BLM Planning Documents Within the Range of the 
Spotted Owl (the Forest Plan, April 1994), has recently been 
implemented to provide a coordinated management direction for the lands 
administered by the FS and the BLM. Region-wide management direction 
will amend existing management plans, including Forest Plans, Regional 
Guides, Timber Sales Plans, and Resource Management Plans for lands 
within the range of the northern spotted owl (including the Umpqua 
River Basin). As part of the Forest Plan, implementation of the Aquatic 
Conservation Strategy (ACS) should help reverse the trend of aquatic 
ecosystem degradation and contribute toward recovery of fish habitat. 
Coordination between the Federal land management agencies and NMFS, the 
Environmental Protection Agency, and the U.S. Fish and Wildlife Service 
should ensure that the ACS objectives are achieved. Although the 
restoration measures should benefit the species in the future, they 
have just been implemented, and the effectiveness of these measures is 
not known and cannot be assessed with certainty until future runs 
return.
    NMFS is aware of timber sales that were awarded prior to 
implementation of the Forest Plan. Although the Forest Plan does not 
address previous actions, the FS and BLM have screened previously sold 
or awarded timber sales in the Umpqua River Basin to avoid potential 
direct, indirect, or cumulative adverse impacts to salmonids. During 
the screening process, several concerns regarding individual sales were 
identified. Although the direct adverse effects of these individual 
timber sales were addressed and mitigated, there may be remaining 
cumulative effects concerns (i.e., amount of canopy removal).

E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The Alsea River Hatchery fish stocking program (1960-75) may have 
been a factor in the decline of Umpqua River cutthroat trout, although 
there is considerable uncertainty regarding the ability of these 
hatchery fish to sustain a population in the river. The stocked fish 
may have affected the native fish through behavioral and genetic 
interactions, competition, predation, and the spread of disease. 
However, circumstantial evidence regarding population abundance and run 
timing suggests that a component of the native run persists.

Proposed Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as any species likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range. Section 4(b)(1) of the ESA requires that the 
listing determination be based solely on the best scientific and 
commercial data available, after conducting a review of the status of 
the species and after taking into account those efforts, if any, being 
made to protect such species.
    Regarding the Umpqua River cutthroat trout ESU determination and 
associated threatened or endangered classification, the NMFS status 
review identified three issues that cannot currently be resolved 
strictly on the basis of available scientific evidence: (1) The 
geographic extent of the ESU; (2) the effects of the Alsea River 
hatchery fish; and, (3) the status (threatened or endangered) of the 
ESU. Although there is uncertainty regarding assumptions about the 
above issues, the precarious status of the remaining sea-run fish 
suggests that the anadromous component of the Umpqua River cutthroat 
trout population (which may have a genetic basis) is in danger of 
extinction. Any evaluation of a proposal to list Umpqua River cutthroat 
trout must include full consideration of the potential consequences of 
the loss of the anadromous life history form.
    Based on its assessment of the best scientific and commercial 
information available, NMFS determines that the Umpqua River cutthroat 
trout (i.e., all life forms) is a ``species'' under the ESA. The 
collective evidence suggests that an important component of the ESU is 
in danger of extinction throughout a significant portion of its range. 
Therefore, NMFS proposes to list all life forms of Umpqua River 
cutthroat trout as endangered. With the proposal to list Umpqua River 
cutthroat trout, NMFS is assuming that: (1) All life history forms of 
cutthroat trout in the Umpqua Basin constitute one ESU, (2) the ESU 
represents the evolutionary legacy of the historical cutthroat trout 
population, and (3) either all life history forms of cutthroat trout in 
the Umpqua Basin have experienced extensive declines in abundance such 
that they are presently threatened with extinction, or the depressed 
sea-run component of the population is a substantial and important 
component of the ESU, and its loss would compromise the distinctness 
and viability of the inclusive ESU. NMFS will reconsider this proposed 
listing determination if it obtains relevant information regarding the 
extent of the ESU that contains Umpqua River cutthroat trout, the 
effects of previous stocking of Alsea River hatchery fish on current 
populations, or the relationship between anadromous, potamodromous, and 
resident life-history forms in the Umpqua River.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the extent prudent 
and determinable, critical habitat be designated concurrently with the 
listing of a species. While NMFS has completed its analysis of the 
biological status of Umpqua River cutthroat trout, it has not completed 
the analysis necessary for designating critical habitat. NMFS has 
determined that a critical habitat designation will require a more 
detailed assessment of the relationship between the various cutthroat 
trout life forms. Therefore, to avoid delaying this listing proposal, 
NMFS will propose critical habitat in a separate rulemaking.

Public Comments Solicited

    To ensure that the final action resulting from this proposal will 
be as accurate and as effective as possible, NMFS is soliciting 
comments and suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, and any other interested 
parties (see DATES and ADDRESSES). The final decision on this proposal 
will take into consideration the comments and any additional 
information received by NMFS, and may differ from this proposed rule.

Classification

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir., 
1981), NMFS has categorically excluded all ESA listing actions from 
environmental assessment requirements of NEPA (48 FR 4413, February 6, 
1984).
    As noted in the Conference report on the 1982 amendments to the 
ESA, economic considerations have no relevance to determinations 
regarding the status of the species. Therefore, the economic analysis 
requirements of the Regulatory Flexibility Act are not applicable to 
the listing process.
    Similarly, this proposed rule is exempt from review under E.O. 
12866.

References

Johnson et al. 1994. Status review for Umpqua River sea-run 
cutthroat trout. U.S. Dep. Commer., NOAA Tech. Memo. NMFS F/NWC-xxx, 
112 p.
Waples, R.S. 1991. Pacific salmon, Oncorhynchus spp., and the 
definition of ``species'' under the Endangered Species Act. Mar. 
Fish. Rev. 53(3):11-22.

List of Subjects in 50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: July 1, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 222 is 
proposed to be amended as follows:

PART 222--ENDANGERED FISH OR WILDLIFE

    1. The authority citation of part 222 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543.


Sec. 222.23   [Amended]

    2. In Sec. 222.23, paragraph (a), the second sentence, is amended 
by adding the phrase ``Umpqua River cutthroat trout (Oncorhynchus 
clarki);'' immediately after the phrase ``Sacramento River winter-run 
chinook salmon (Oncorhynchus tshawytscha);''.

[FR Doc. 94-16577 Filed 7-5-94; 2:47 pm]
BILLING CODE 3510-22-P