[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Rules and Regulations]
[Pages 1388-1395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-545]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 970715175-7292-02; I.D. No. 042997B]
RIN 0648-AG58


Designated Critical Habitat; Umpqua River Cutthroat Trout

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

ACTION: Final rule.

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SUMMARY: NMFS is designating critical habitat for the Umpqua River 
cutthroat trout (Oncorhynchus clarki clarki). Designated critical 
habitat includes all river reaches of the Umpqua River accessible to 
cutthroat trout, including all Umpqua River estuarine areas and 
tributaries upstream from the Pacific Ocean to the confluence of the 
North and South Umpqua Rivers; the North Umpqua River, including all 
tributaries, from its confluence with the mainstem Umpqua River to Soda 
Springs dam; the South Umpqua River, including all tributaries, from 
its confluence with the mainstem Umpqua River to its headwaters. 
Critical habitat includes all waterways below longstanding, naturally 
impassable barriers (i.e., natural water falls in existence for over 
several hundred years). Such areas represent the current freshwater and 
estuarine range of the listed species. The economic and other impacts 
resulting from this critical habitat designation are expected to be 
minimal.
    NMFS is excluding areas above Soda Springs dam on the North Umpqua 
River from critical habitat. Available information indicates that 
habitat above Soda Springs dam is not currently essential for the 
conservation of this species. NMFS may revise this determination in the 
future should new information indicate habitat above Soda Springs dam 
is essential for the conservation of the species.

DATES: This rule is effective February 9, 1998. The incorporation by 
reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register as of February 9, 1998.

FOR FURTHER INFORMATION CONTACT: Jim Lynch, NMFS, Protected Resources 
Division, 525 NE Oregon St., Suite 500, Portland, OR, 97232-2737, 
telephone (503/230-5422), internet ([email protected]).

SUPPLEMENTARY INFORMATION:

Background

    On August 9, 1996, NMFS published its determination to list Umpqua 
River cutthroat trout (Oncorhynchus clarki clarki) as endangered under 
the Endangered Species Act (ESA) (61 FR 41514). In its final listing 
determination, NMFS concluded that all cutthroat trout life history 
forms (i.e., anadromous, potamodromous, and resident) should be 
included in the listed Umpqua River cutthroat trout Evolutionarily 
Significant Unit. This conclusion was based on studies conducted by 
Oregon Department of Fish and Wildlife (ODFW) and others that indicate 
these life history forms are not completely reproductively isolated 
and, therefore, should be considered a single ``distinct population 
segment,'' under the ESA and NMFS' ESA species policy (61 FR 41516).
    Historically, anadromous, potamodromous, and resident cutthroat 
trout likely existed throughout the Umpqua River basin. The current 
freshwater distribution of anadromous and potamodromous life forms is 
thought to be limited primarily to the mainstem, Smith, and North 
Umpqua Rivers. Resident cutthroat trout appear to remain broadly 
distributed throughout the Umpqua River basin, including areas of the 
South Umpqua River thought to support insignificant numbers of 
anadromous cutthroat trout populations.
    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. On 
July 19, 1993, NMFS published a Federal Register notice soliciting 
information and data regarding the present and historic status of the 
Umpqua River cutthroat trout, as well as information on areas that may 
qualify as critical habitat (58 FR 38544). At the time of final 
listing, critical habitat was not determinable, since information 
necessary to perform the required analyses was not available.
    On July 30, 1997, NMFS published a proposed rule designating 
critical habitat for the listed species (62 FR 40786). In that proposed 
rule, NMFS solicited public comments and announced public hearings on 
the proposed action. This final rule considers new information and 
comments received in response to the proposed rule.
    Use of the term ``essential habitat'' within this final rule refers 
to critical habitat as defined by the ESA and should not be confused 
with the requirement to describe and identify Essential Fish Habitat 
(EFH) pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act, 16 U.S.C. 1801 et seq.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the ESA as ``(i) 
the specific areas within the geographical area occupied by the species 
* * * on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species * * * upon 
a determination by the Secretary [of Commerce] that such areas are 
essential for the conservation of the species.'' (See 16 U.S.C. 
1532(5)(A).) The term ``conservation,'' as defined in section 3(3) of 
the ESA, means, ``* * * to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary.'' (See 16 U.S.C. 1532(3).)
    In designating critical habitat, NMFS considers the following 
requirements of the species, space for individual and population 
growth, and for normal behavior, food, water, air, light, minerals, or 
other nutritional or physiological requirements, cover or shelter, 
sites for breeding, reproduction, or rearing of offspring; and, 
generally, habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of this species (See 50 CFR Sec. 424.12(b)). In addition 
to these factors, NMFS also focuses on the known physical and 
biological features (primary constituent elements) within the 
designated area that are necessary to the conservation of the species 
and may require special management considerations or protection. These 
essential features may include, but are not limited to, spawning sites, 
food resources, water quality and quantity, and riparian vegetation 
(See 50 CFR Sec. 424.12(b).)

Benefits of Critical Habitat Designation

    A designation of critical habitat provides a clear indication to 
Federal

[[Page 1389]]

agencies as to when section 7 consultation is required, particularly in 
cases where the proposed action would not result in direct mortality, 
injury, or harm to individuals of a listed species (e.g., an action 
occurring within the critical area when a migratory species is not 
present). The critical habitat designation, describing the essential 
features of the habitat, also assists in determining which activities 
conducted outside the designated area are subject to section 7 (i.e., 
activities outside critical habitat that may affect essential features 
of the designated area).
    A critical habitat designation will also assist Federal agencies in 
planning future actions, since the designation establishes, in advance, 
those habitats that will be given special consideration in section 7 
consultations. With a designation of critical habitat, potential 
conflicts between Federal actions and endangered or threatened species 
can be identified and possibly avoided early in the agency's planning 
process.
    Another indirect benefit of a critical habitat designation is that 
it helps focus Federal, state, and private conservation and management 
efforts in such areas. Management efforts may address special 
considerations needed in critical habitat areas, including conservation 
regulations to restrict private as well as Federal activities. The 
economic and other impacts of these actions would be considered at the 
time of the proposed regulations and, therefore, are not considered in 
the critical habitat designation process. Other Federal, state, and 
local authorities, such as zoning or wetlands and riparian lands 
protection, may also provide special protection for critical habitat 
areas.

Summary of Comments

    Two public hearings were held on the proposed action--one in 
Roseburg, Oregon, on August 16, 1997, and one in Reedsport, Oregon, on 
August 17, 1997. Twenty-four individuals provided oral testimony at the 
two public hearings. Ten written comments were submitted in response to 
the proposed rule. The majority of the oral and written comments 
opposed designation of critical habitat. New information and comments 
received in response to the proposed rule are summarized here.

Economic Considerations

    Comment: Several commenters stated that NMFS improperly minimized 
the economic impacts by separating the designation of critical habitat 
from the listing process (i.e., considering only the incremental 
economic effects of designating critical habitat beyond the effects 
associated with listing the species as threatened or endangered). These 
commenters are concerned that by separating the costs associated with 
the various administrative actions (e.g., listing, critical habitat 
designation, section 7 consultations), NMFS underestimated the real 
economic consequences of protecting listed Umpqua River cutthroat trout 
as required by the ESA. Several commenters objected to NMFS' 
interpretation that the impact of critical habitat designation only 
duplicates the protection provided under section 7 of the ESA. Also, 
several commenters believe that using an incremental approach for 
critical habitat designation renders sections of the ESA meaningless 
and circumvents the intent of Congress.
    Response: NMFS disagrees with the assertion that it has improperly 
minimized the economic impacts by separating the designation of 
critical habitat from the listing process, or that this incremental 
approach for critical habitat designation renders sections of the ESA 
meaningless. Rather, the ESA is unambiguous in how it addresses 
economic impacts; it prohibits the consideration of economic impacts in 
the listing process, but requires analysis of economic impacts when 
designating critical habitat. These separate requirements for each 
determination lead to an incremental analysis in which only the 
economic impacts resulting from the designation of the critical habitat 
are considered.
    Since NMFS is designating the current range of the listed species 
as critical habitat, this designation will not impose any additional 
requirements or economic effects beyond those which may accrue from 
section 7 of the ESA. Section 7 requires Federal agencies to insure 
that any action they carry out, authorize, or fund is not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of habitat which is determined 
to be critical. The consultation requirements of section 7 are 
nondiscretionary and are effective at the time of species listing. 
Therefore, Federal agencies must consult with NMFS and ensure their 
action does not jeopardize a listed species regardless of whether 
critical habitat is designated.
    The designation of critical habitat remains important 
notwithstanding its lack of economic impact because it identifies 
habitat that is essential for the continued existence of a species and 
that may require special management attention. This facilitates and 
enhances Federal agencies' ability to comply with section 7 by ensuring 
that they are aware of their activities on listed species and habitats 
essential to support them. In addition to aiding Federal agencies in 
determining when consultations are required pursuant to section 
7(a)(2), critical habitat can aid an agency in fulfilling its broader 
obligation under section 7(a)(1) to use its authority to carry out 
programs for the conservation of listed species.
    Comment: Several commenters asserted that the incremental approach 
fails to take into account the substantial effect on non-Federal 
interests that will be harmed by critical habitat designation to the 
extent they must receive Federal approvals or funds to conduct their 
activities.
    Response: Most of the effect on non-Federal interests will result 
from the taking prohibition of section 9, or the no-jeopardy 
requirement of section 7, both of which are a function of the listing 
of the species, not of the designation of critical habitat. Whether or 
not critical habitat is designated, non-Federal interests must conduct 
their actions consistent with the requirements of the ESA. When a 
species is listed, non-Federal interests must comply with the 
prohibitions on takings under section 9 of the ESA or associated 
regulations. If the activity is funded, permitted, or authorized by a 
Federal agency, that agency must comply with the non-jeopardy mandate 
of section 7 of the ESA, which is also a result of the listing of a 
species, not of the designation of critical habitat. Once critical 
habitat is designated, the agency must avoid actions that destroy or 
adversely modify that critical habitat. However, pursuant to NMFS' ESA 
implementing regulations, any action that destroys or adversely 
modifies critical habitat is also likely to jeopardize the continued 
existence of the species (See 50 CFR Sec. 402.02). Therefore, NMFS does 
not anticipate that the designation will result in significant 
additional requirements for non-Federal interests.

Scope and Extent of Critical Habitat

    Comment: Several commenters questioned NMFS' delineation of 
critical habitat as including all areas currently accessible to the 
species. One commenter stated that NMFS should only designate areas as 
critical habitat that have been proven to contain the species. Several 
commenters questioned why NMFS had not designated critical habitat in 
marine areas while one commenter agreed that omitting such areas was 
appropriate at this stage.
    Response: Critical habitat is defined in section 3(5)(A) of the ESA 
as the specific areas within the geographic area occupied by the 
species on which are

[[Page 1390]]

found those physical or biological features that are essential to the 
conservation of the species and that may require special management 
considerations or protection. Based on commenters' concerns and on new 
information received during the public comment period, NMFS has refined 
its designation of critical habitat for Umpqua River cutthroat trout. 
The following sections address these commenters' concerns and clarify 
NMFS' designation of critical habitat for this species.

Estuarine and Marine Habitats

    NMFS recognizes that the Umpqua River estuary is an essential 
rearing area and migration corridor for listed Umpqua River cutthroat 
trout, and has maintained the designation of the estuary as critical 
habitat in this final rule. Although they are also important, NMFS 
believes that marine habitats (i.e., oceanic or nearshore areas seaward 
of the mouth of the Umpqua River) used by listed Umpqua River cutthroat 
trout do not presently warrant designation and do not appear to be in 
need of special management consideration or protection. Degradation of 
this portion of the species' habitat does not appear to have been a 
significant factor in the decline of the species. Specifically, 
existing laws appear adequate to protect these areas, and special 
management of this habitat is not considered necessary at this time. If 
additional evidence supports the inclusion of marine areas, NMFS may 
revise designated critical habitat in accordance with 50 CFR 
Sec. 424.16. NMFS will, of course, continue to consult under section 7 
of the ESA to address Federal actions that may affect the species or 
result in takings in the ocean, such as Federal management of ocean 
fishing.

Freshwater Habitats

    NMFS has determined that it is possible to determine most river 
reaches and lakes critical to the conservation of listed Umpqua River 
cutthroat trout. However, Umpqua River cutthroat trout inhabit a wide 
range of habitats, from the mainstem Umpqua River to small perennial 
and intermittent streams. This use of diverse habitats coupled with the 
inadequacy of existing species distribution maps makes it extremely 
difficult to identify all specific river reaches required by this 
species. Furthermore, designating each specific river reach would not 
necessarily aid current conservation efforts for this species since 
there is the potential of excluding small, yet important, tributaries 
from the critical habitat designation. Therefore, it is presently not 
feasible to designate each particular river reach that could be 
considered as critical habitat for Umpqua River cutthroat trout. 
Accordingly, NMFS has determined that it is prudent to designate 
specific hydrologic units (i.e., federally-designated river basin 
boundaries) that include or contain river reaches presently or 
historically accessible to this species (except reaches upstream of 
impassable natural falls, and Soda Springs dam). These reaches are 
known to contain physical and biological features vital to the 
conservation of Umpqua River cutthroat trout (see Table 4 in the 
regulatory text). Figure 9 identifies the general geographic extent of 
larger rivers, lakes, and streams within hydrologic units designated as 
critical habitat for Umpqua River cutthroat trout. Note that Figure 9 
does not constitute the definition of critical habitat, but instead is 
provided as a general reference to guide Federal agencies and 
interested parties in locating the general boundaries of critical 
habitat for listed Umpqua River cutthroat trout. The complete text 
delineating critical habitat for this species can be found in the final 
regulation below. Table 4 to this part provides a list of affected 
counties.
    NMFS acknowledges that many of the river reaches within the 
hydrologic units designated as critical habitat may not presently be 
inhabited by the listed species. Salmonids and cutthroat trout in 
particular, are highly migratory and utilize numerous types of habitat 
throughout their life cycles. This species' life history is not fully 
understood. However, three separate life forms have been identified and 
are included in the listed ESU: anadromous fish (ocean-migrating), 
potamodromous fish (in-river migrating), and resident fish (freshwater 
dwelling). Given the complexity of cutthroat trout's life history and 
the diversity of its habitat needs, NMFS believes that all areas that 
are currently accessible to the listed species may be critical to its 
recovery and survival. Furthermore, the vast majority of streams in the 
Umpqua River basin contribute essential elements such as food, gravel, 
large woody debris, and water quality to this species' habitat. Hence, 
their inclusion as part of the critical habitat is in keeping with the 
ESA's purpose ``* * * to provide a means whereby the ecosystems upon 
which endangered species or threatened species depend may be conserved 
* * *'' (16 U.S.C. 1532(b)). Until information is developed that allows 
more definitive and detailed characterization of stream reaches as 
critical or noncritical, NMFS chooses to adopt a more inclusive 
critical habitat designation incorporating river reaches in hydrologic 
units presently or historically accessible (except reaches upstream of 
impassable natural falls, and Soda Springs dam) to cutthroat trout.
    Experience gained by NMFS through section 7 consultations clearly 
demonstrates the importance of assessing potential impacts of actions 
within entire watersheds. It is well documented that human activities 
in areas outside the immediate stream channel can have a demonstrable 
effect on physical and biological features essential to the 
conservation of listed Umpqua River cutthroat trout. For example, road 
building and timber harvest operations in upland areas can result in 
adverse modifications to cutthroat trout spawning and rearing areas via 
landslides, sedimentation, fuel spills, and loss of riparian vegetation 
that provides shade, cover, and other habitat functions.
    Comment: Several commenters questioned why NMFS designated riparian 
areas 300 ft. (91.4 m) on each side of the stream channel high water 
line as critical habitat. Several commenters also questioned if the 
300-ft. (91.4 m) riparian buffer applied to nonfish-bearing streams.
    Response: Riparian habitats provide several essential elements for 
cutthroat trout. The reduction in riparian tree shade canopy can 
produce significant increases in water temperatures (Bottom et al., 
1985; California Department of Fish and Game, 1994; Forest Ecosystem 
Management Assessment Team (FEMAT), 1993). Riparian vegetation protects 
stream banks from erosion through soil binding by root masses and the 
presence of ground litter and dense overstory canopy, which impedes the 
rate of surface runoff (FEMAT, 1993). Riparian vegetation provides 
important substrates for aquatic invertebrates, cover for predator 
avoidance, and resting habitat for many fish species. Riparian 
vegetation that is carried from upland areas and deposited in estuaries 
is a major source of food and habitat for obligatory, wood-boring 
marine invertebrates which break down and pass usable carbon into the 
water's current where it enters the detrital-based marine food web 
(Sedell and Maser, 1994). As much as 99 percent of the annual energy 
input, the food base for all aquatic communities, comes from riparian 
vegetation (Reynolds et al., 1993). Removal of streamside vegetation 
simplifies channel banks and destroys shelter for rearing fish species, 
simplifies channel shape so there are fewer pools and riffles, and 
eventually

[[Page 1391]]

leads to a widening of channels that are more prone to warming by 
sunlight (Botkin et al., 1995; California Advisory Committee on Salmon 
and Steelhead Trout, 1988; California Department of Fish and Game, 
1994).
    Biophysical characteristics and processes that create riparian 
zones vary considerably throughout the range of listed Umpqua River 
cutthroat trout. However, riparian zones along the Umpqua River are 
considered essential for the conservation of the listed species because 
they provide important space, cover, and shelter, and increase river 
productivity. Furthermore, healthy riparian zones help ensure that 
water quality parameters support physiological and behavioral 
requirements of the listed species.
    In the Umpqua River basin, critical habitat includes the water, 
waterway bottom, and the adjacent riparian zone. A 1992 report by the 
U.S. Fish and Wildlife Service (FWS) states that riparian streambanks 
are composed of natural, eroding substrates supporting vegetation that 
either overhangs or protrudes into the water and, consequently, 
provides shade and escape cover for salmonids and other wildlife. 
Furthermore, according to a 1993 report by FEMAT, riparian zones 
consist of ``areas where the vegetation complex and microclimate 
conditions are products of the combined presence and influence of 
perennial and/or intermittent water, associated high water tables, and 
soils that exhibit some wetness characteristics.'' The FEMAT report 
contains a comprehensive review of riparian ecosystem components, and 
specifies that riparian zones for fishbearing streams should consist of 
``* * * the area on either side of the stream extending from the edges 
of the active stream channel to the top of the inner gorge, or to the 
outer edges of the 100-year floodplain, or to the outer edges of 
riparian vegetation, or to a distance equal to the height of two site-
potential trees, or 300 ft. (91.4m) slope distance (600 ft. (182.8 m), 
including both sides of the stream channel), whichever is greatest.''
    Since adverse modification of riparian zones may impede the 
recovery of the endangered Umpqua River cutthroat trout, the adjacent 
riparian zone is included in the critical habitat designation. It is 
important to note that this critical habitat designation includes all 
river reaches of the Umpqua River currently accessible to endangered 
Umpqua River cutthroat trout. In most cases, this critical habitat 
designation will encompass fishbearing streams only.
    NMFS recognizes that the influences of riparian vegetation 
progressively decrease away from the water source (e.g., river), making 
it difficult to identify discrete boundaries for the riparian zones. As 
a reasonable benchmark, NMFS defines the ``adjacent riparian zone'' as 
those areas within a slope distance of 300 ft. (91.4 m) from the normal 
line of high water of a stream channel or from the shoreline of a 
standing body of water. NMFS points out that this definition is adopted 
solely as a means by which agencies can evaluate the potential risk of 
proposed actions on designated critical habitat. The actual delineation 
of riparian zones at the site of a proposed action can be more 
accurately identified through section 7 consultations.
    Comment: One commenter stated that NMFS should exclude areas above 
Soda Springs dam on the North Umpqua River from a critical habitat 
designation since: (1) cutthroat trout do not currently inhabit the 
area above Soda Springs dam, and (2) available habitat above Soda 
Springs dam is not essential for the conservation of the species.
    Response: Since the proposed listing, several new sources of 
information indicate that cutthroat trout do not occur in the North 
Umpqua River above Soda Springs dam. Surveys conducted by PacifiCorp in 
the North Umpqua River and tributaries above Soda Springs dam indicate 
that these areas are dominated by rainbow trout, brown trout, and brook 
trout and do not contain cutthroat trout (PacifiCorp, 1997).
    PacifiCorp's analysis appears to be supported by recent survey work 
conducted by the U.S. Forest Service (USFS) in this area. In a recent 
survey conducted by USFS biologists in Fish Creek, a tributary to the 
North Umpqua River just above Soda Springs dam, USFS personnel 
collected samples of fish thought to be cutthroat trout, or cutthroat 
trout-rainbow trout hybrids (USFS, 1997). These samples were sent to 
NMFS for genetic analysis. Initial lab results indicate that all the 
fish submitted are rainbow trout, not cutthroat trout (NMFS, 1997).
    Aside from new information submitted by PacifiCorp and USFS, the 
Oregon Department of Fish and Wildlife (ODFW) has previously stated its 
belief that no cutthroat trout occur above Soda Springs dam (ODFW, 
1996).
    Regardless whether cutthroat trout currently occur above Soda 
Springs dam, NMFS may designate areas as critical habitat outside the 
current species range if it finds that designation of the present range 
would be inadequate to ensure conservation of the species (50 CFR 
Sec. 424.12(e)). In the present case, areas above Soda Springs dam 
appear to be inhabited by species that could outcompete or hybridize 
with introduced cutthroat trout, reducing the species' viability in 
this area (PacifiCorp, 1997).
    Based on new information submitted by PacifiCorp and USFS and on 
previous comments from ODFW, NMFS concludes that habitat areas above 
Soda Springs dam are not currently essential for the conservation of 
listed Umpqua River cutthroat trout. Therefore, NMFS is revising the 
proposed critical habitat designation to exclude areas above Soda 
Springs dam on the North Umpqua River from Umpqua River cutthroat trout 
critical habitat. NMFS may, in the future, revise this designation 
should new information come to light indicating that such habitat areas 
are essential for conservation purposes.
    Even though NMFS is not designating areas above Soda Springs dam as 
critical habitat for Umpqua River cutthroat trout, this in no way 
affects NMFS' listing of resident or potamodromous cutthroat trout 
should they be found in the future to exist above Soda Springs dam. If 
cutthroat trout are found to occur above the dam in the future, parties 
will have the duty to avoid ``take'' under section 9 of the ESA.

Adequacy of Existing Management Plans

    Comment: Several commenters stated that existing management plans 
and conservation initiatives were sufficient to protect Umpqua River 
cutthroat trout and its habitat, and, therefore, the proposed critical 
habitat designation is not warranted.
    Response: NMFS considered existing regulatory mechanisms and 
conservation plans applicable to Umpqua River cutthroat trout and its 
habitat in the August 9, 1996, final listing determination (61 FR 
41514). In that Federal Register notice, a variety of Federal and state 
laws and programs were found to have affected the abundance and 
survival of anadromous fish populations in the Umpqua River Basin (61 
FR 41520). NMFS concluded that available regulatory mechanisms were 
inadequate and continued to represent a potential threat to the 
species' existence (61 FR 41520).
    Since the final listing determination, the State of Oregon 
completed a significant conservation initiative entitled the Oregon 
Coastal Salmon Restoration Initiative (OCSRI). The OCSRI currently 
focuses on factors that have led to the decline of coastal coho salmon. 
In addressing these factors, the State has implemented measures to

[[Page 1392]]

improve habitat quality and lessen impacts from hatchery and harvest 
practices.
    NMFS believes that habitat measures contained in the OCSRI will 
likely provide benefits for Umpqua River cutthroat trout over the long 
term. However, the OCSRI relies exclusively on Federal measures to 
protect salmon habitat on Federal lands. The majority of lands within 
the range of Umpqua River cutthroat trout are in Federal ownership. 
Therefore, under the OCSRI, it is imperative that existing Federal 
protections under the Northwest Forest Plan and related Federal 
measures that are described in the OSCRI protect the species to the 
greatest extent. On private lands, the OCSRI relies heavily upon 
voluntary measures to protect and enhance aquatic habitat. NMFS 
believes that these voluntary measures may benefit Umpqua River 
cutthroat trout. However, given the present status of the species 
(endangered), NMFS concludes that it would be imprudent to rely on 
voluntary measures on private lands to conserve this species and its 
habitat. Critical habitat designation will assure careful scrutiny of 
and priority attention to Federal actions that may impact Umpqua River 
cutthroat trout habitats, resulting in strengthened protection for this 
endangered species.

Changes From the Proposed Rule

    Section 226.22 incorrectly amended references to the hydrologic 
unit maps in the proposed rule. These maps have been correctly 
referenced in this final rule.

Critical Habitat of Umpqua River Cutthroat Trout

    Available biological information for listed Umpqua River cutthroat 
trout can be found in the species' status review (Johnson et al., 1994) 
and in Federal Register notices of proposed and final listing 
determinations ( see 59 FR 35089, July 8, 1994); 61 FR 41514, August 9, 
1996). Critical habitat consists of five components, spawning and 
juvenile rearing areas, juvenile migration corridors, areas for growth 
and development to adulthood, adult migration corridors, and over-
wintering habitat. The Pacific Ocean areas used by listed cutthroat 
trout for growth and development to adulthood are not well understood, 
and essential areas and features have not been identified.
    The current geographic range of Umpqua River cutthroat trout 
includes nearshore ocean areas, the mainstem Umpqua River and its 
tributaries, and the North and South Umpqua Rivers and their 
tributaries. NMFS has determined that the current freshwater and 
estuarine range (referred to as the in-river range) of the species is 
adequate to ensure the species' conservation. The species' current in-
river range encompasses all critical habitat features (e.g., riverine 
conditions, estuaries, headwater areas) in sufficient quantity to 
ensure conservation of the species. Therefore, designation of habitat 
areas outside the species' current in-river range is not necessary.
    NMFS recognizes the Umpqua River estuary is an essential migration 
corridor for listed Umpqua River cutthroat trout and, accordingly, has 
included estuary areas as critical habitat in this designation. 
However, the importance of marine habitats (i.e., oceanic or near shore 
areas seaward of the mouth of the Umpqua River) is not well understood 
(Pauley, 1989; Behnke, 1992). In addition to a lack of biological 
information concerning the marine life history phase of cutthroat 
trout, a need for special management consideration or protection of 
this habitat is not apparent. Based on present information, degradation 
of this portion of the species' habitat does not appear to have been a 
significant factor in the decline of the species.
    Essential features of the designated in-river areas include 
adequate substrate, water quality, water quantity, water temperature, 
food, riparian vegetation, and access. Juvenile migration corridors 
include the North and South Umpqua Rivers and the mainstem Umpqua River 
to the Pacific Ocean. Essential features of the juvenile migration 
corridors include adequate: (1) Substrate; (2) water quality; (3) water 
quantity; (4) water temperature; (5) water velocity; (6) cover/shelter; 
(7) food; (8) riparian vegetation; (9) space; and (10) safe passage 
conditions. Adult migration corridors and their essential features are 
the same as those identified for juvenile migration corridors.

Critical Habitat: Geographic Extent

    Critical habitat includes all river reaches accessible to listed 
Umpqua River cutthroat trout from a straight line connecting the west 
end of the South jetty and the west end of the North jetty and 
including all Umpqua River estuarine areas (including the Smith River) 
and tributaries proceeding upstream from the Pacific Ocean to the 
confluence of the North and South Umpqua Rivers; the North Umpqua 
River, including all tributaries, from its confluence with the mainstem 
Umpqua River to Soda Springs dam; the South Umpqua River, including all 
tributaries, from its confluence with the mainstem Umpqua River to its 
headwaters (including Cow Creek, tributary to the South Umpqua River). 
Critical habitat includes all waterways below longstanding, naturally 
impassable barriers (i.e., natural water falls in existence for over 
several hundred years). Critical habitat includes the bottom and water 
of the waterways and adjacent riparian zone. The riparian zone includes 
those areas within 300 ft. (91.4 m) of the normal line of the high 
water mark of the stream channel or from the shoreline of a standing 
body of water.

Expected Economic Impacts of Designating Critical Habitat

    The economic impacts to be considered in a critical habitat 
designation are the incremental effects of critical habitat designation 
above the economic impacts attributable to listing or attributable to 
authorities other than the ESA (see Consideration of Economic, 
Environmental and Other Factors section of this preamble). Incremental 
impacts result from special management activities in areas outside the 
present distribution of the listed species that have been determined to 
be essential to the conservation of the species. However, NMFS has 
determined that the species' present in-river range contains sufficient 
habitat for conservation of the species. Therefore, NMFS finds that 
there are no incremental impacts associated with this critical habitat 
designation.

Activities That May Affect Critical Habitat

    A wide range of activities may affect the essential habitat 
requirements of listed Umpqua River cutthroat trout. These activities 
include water and land management actions of Federal agencies (i.e., 
U.S. Forest Service, U.S. Bureau of Land Management, U.S. Bureau of 
Reclamation, the Federal Highway Administration, and the Federal Energy 
Regulatory Commission) and related or similar actions of other 
federally-regulated projects and lands, including livestock grazing 
allocations in the Umpqua River Basin by the U.S. Forest Service and 
U.S. Bureau of Land Management; hydropower operators (i.e., PacifiCorp) 
in the Umpqua River system licensed by the Federal Energy Regulatory 
Commission; timber sales in the Umpqua River Basin conducted by the 
U.S. Forest Service and U.S. Bureau of Land Management; road building 
activities authorized by the Federal Highway Administration, U.S. 
Forest Service, and U.S. Bureau of Land Management; and mining and road 
building activities authorized by the State of Oregon. Other actions of 
concern include dredge and fill, mining,

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and bank stabilization activities authorized and/or conducted by the 
U.S. Army Corps of Engineers throughout the Umpqua River Basin.
    Federal agencies that will most likely be affected by this critical 
habitat designation include the U.S. Forest Service, U.S. Bureau of 
Land Management, U.S. Bureau of Reclamation, U.S. Army Corps of 
Engineers, the Federal Highway Administration, and the Federal Energy 
Regulatory Commission. This designation will provide clear notification 
to these agencies, private entities, and the public of critical habitat 
designated for listed Umpqua River cutthroat trout and the protection 
provided for that habitat by the ESA section 7 consultation process. 
This designation will also assist these agencies and others in 
evaluating the potential effects of their activities on listed Umpqua 
River cutthroat trout and their critical habitat and in determining 
when consultation with NMFS would be appropriate.

Need for Special Management Considerations or Protection

    To ensure that the essential areas and features are maintained or 
restored, special management may be needed. Activities that may require 
special management considerations for listed Umpqua River cutthroat 
trout spawning and juvenile rearing areas include, but are not limited 
to: (1) Land management; (2) timber harvest; (3) water pollution; (4) 
livestock grazing; (5) habitat restoration; (6) irrigation water 
withdrawal; (7) mining; (8) road construction; and (9) dam operation 
and maintenance. For juvenile and adult migration corridors, special 
management considerations also include dredge and fill activities, and 
dam operations. Not all of these activities are necessarily of current 
concern; however, they indicate the potential types of activities that 
will require consultation in the future. No special management 
considerations have been identified for listed Umpqua River cutthroat 
trout residing in the ocean environment.

National Environmental Policy Act

    NMFS has determined that an Environmental Assessment or an 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared for 
this critical habitat designation. See Douglas County v. Babbitt, 48 
F.3D 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is not significant for purposes of E.O. 
12866.
    NMFS is designating only the current range of this species as 
critical habitat. The current range encompasses a wide range of 
habitat, including small tributary reaches, as well as mainstem, off-
channel and estuarine areas. Areas excluded from this final designation 
include nearshore habitats in the Pacific Ocean, historically occupied 
areas above Soda Springs dam, and headwater areas above impassable 
natural barriers (e.g., long-standing, natural waterfalls). NMFS has 
concluded that currently inhabited areas within the range of Umpqua 
River cutthroat trout are the minimum habitat necessary to ensure 
conservation and recovery of the listed species.
    Since NMFS is designating the current range of the listed species 
as critical habitat, this designation will not impose any additional 
requirements or economic effects upon small entities, beyond those 
which may accrue from section 7 of the ESA. Section 7 requires Federal 
agencies to ensure that any action they carry out, authorize, or fund 
is not likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of 
critical habitat (16 U.S.C. Sec. 1536(a)(2)). The consultation 
requirements of section 7 are nondiscretionary and are effective at the 
time of species' listing. Therefore, Federal agencies must consult with 
NMFS and ensure their actions do not jeopardize a listed species, 
regardless of whether critical habitat is designated.
    In the future, if NMFS determines that designation of habitat areas 
outside the species' current range is necessary for conservation and 
recovery, NMFS will analyze the incremental costs of that action and 
assess its potential impacts on small entities, as required by the 
Regulatory Flexibility Act. Until that time, a more detailed analysis 
would be premature and would not reflect the true economic impacts of 
the proposed action on local businesses, organizations, and 
governments.
    Accordingly, the Assistant General Counsel for Legislation and 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that the 
proposed rule, if adopted, would not have a significant economic impact 
of a substantial number of small entities, as described in the 
Regulatory Flexibility Act.
    This rule does not contain a collection-of-information requirement 
for purposes of the Paperwork Reduction Act.
    The AA has determined that the proposed designation is consistent, 
to the maximum extent practicable, with the approved Coastal Zone 
Management Program of the State of Oregon. This determination has been 
submitted for review by the responsible state agencies under section 
307 of the Coastal Zone Management Act.

References

    The complete citations for the references used in this document can 
be obtained by contacting Jim Lynch, NMFS (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species, Incorporation by reference.

    Dated: December 18, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 226 is to be 
amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

    1. The authority citation for part 226 continues to read as 
follows:

    Authority: 16 U.S.C. 1533.

    2. Section 226.22, introductory paragraph, is amended by revising 
the sixth sentence to read as follows:


Sec. 226.22  Snake River Sockeye Salmon (Oncorhynchus nerka), Snake 
River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha), Snake 
River Fall Chinook Salmon (Oncorhynchus tshawytscha).

    * * * Hydrologic units (table 3) are those defined by the 
Department of the Interior (DOI), U.S. Geological Survey (USGS) 
publication, ``Hydrologic Unit Maps, United States Geological Survey 
Water Supply Paper 2294, 1987'', and the following DOI, USGS, 1:500,000 
scale hydrologic unit map: State of Oregon, 1974; State of Washington, 
1974; State of Idaho, 1974, which are incorporated by reference. * * *
    3. Section 226.23 is added to subpart C to read as follows:


Sec. 226.23  Umpqua River cutthroat trout (Oncorhynchus clarki clarki).

    (a) The following areas consisting of the water, waterway bottom, 
and adjacent riparian zone of specified lakes and river reaches in 
hydrologic units presently accessible to listed Umpqua River cutthroat 
trout. Adjacent riparian zones are defined as those areas within

[[Page 1394]]

a slope distance of 300 ft. (91.4 m) from the normal line of high water 
of a stream channel (600 ft. or 182.8 m, when both sides of the stream 
channel are included) or from the shoreline of a standing body of 
water. Figure 9 to this part identifies the general geographic extent 
of larger rivers, lakes, and streams within hydrologic units designated 
as critical habitat for Umpqua River cutthroat trout. Note that Figure 
9 does not constitute the definition of critical habitat but, instead, 
is provided as a general reference to guide Federal agencies and 
interested parties in locating the general boundaries of critical 
habitat for listed Umpqua River cutthroat trout. The complete text 
delineating the critical habitat for the species follows. Hydrologic 
units are those defined by the Department of the Interior (DOI), U.S. 
Geological Survey (USGS) publication, ``Hydrologic Unit Maps, Water 
Supply Paper 2294, 1986, and the following DOI, USGS, 1:500,000 scale 
hydrologic unit map: State of Oregon (1974) which is incorporated by 
reference. This incorporation by reference was approved by the Director 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Copies of the USGS publication and maps may be obtained from 
the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be 
inspected during normal business hours at NMFS, Protected Resources 
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, or 
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, or at the Office of the Federal Register, 800 North 
Capitol Street, NW., Suite 700, Washington, DC.
    (b) Geographic boundaries. All river reaches accessible to listed 
Umpqua River cutthroat trout in the Umpqua River from a straight line 
connecting the west end of the South jetty and the west end of the 
North jetty and including all Umpqua River estuarine areas (including 
the Smith River) and tributaries proceeding upstream from the Pacific 
Ocean to the confluence of the North and South Umpqua Rivers; the North 
Umpqua River, including all tributaries, from its confluence with the 
mainstem Umpqua River to Soda Springs dam; the South Umpqua River, 
including all tributaries, from its confluence with the mainstem Umpqua 
River to its headwaters (including Cow Creek, tributary to the South 
Umpqua River). Critical habitat includes all river reaches below 
longstanding, naturally impassable barriers (i.e., waterfalls in 
existence for several hundred years) in the following hydrologic units: 
North Umpqua, South Umpqua, and Umpqua. Critical habitat borders on or 
passes through the following counties in Oregon: Douglas, Lane, Coos, 
Jackson, and Klamath counties. Perennial rivers and creeks within the 
defined areas are also included in the critical habitat designation 
(but are not specifically named), unless otherwise noted. Critical 
habitat maps are available upon request from NMFS, Protected Resources 
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, 
telephone (503/230-5422).
    4. Table 4 is added to part 226 to read as follows:
    Table 4.--Hydrologic Units \1\ Containing Critical Habitat for 
Endangered Umpqua River Cutthroat Trout and Counties Contained in Each 
Hydrologic Unit.

------------------------------------------------------------------------
                                      Hydrologic   Counties contained in
        Hydrologic unit name           unit No.       hydrologic unit   
------------------------------------------------------------------------
North Umpqua........................    17100301  Douglas, Lane,        
                                                   Klamath.             
South Umpqua........................    17100302  Douglas, Jackson,     
                                                   Coos.                
Umpqua..............................    17100303  Douglas, Lane, Coos.  
------------------------------------------------------------------------
\1\ 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale   
  State of Oregon (1974) hydrologic unit map (available from USGS).     

    6. Figure 9 to part 226 is added to read as follows:
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[FR Doc. 98-545 Filed 1-8-98; 8:45 am]
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