[Federal Register Volume 74, Number 55 (Tuesday, March 24, 2009)]
[Proposed Rules]
[Pages 12297-12300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5890]


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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