[Federal Register Volume 74, Number 235 (Wednesday, December 9, 2009)]
[Proposed Rules]
[Pages 65045-65056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29020]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2009-0050; 92220-1113-0000-FY09-C3]
RIN 1018-AW60


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Bull Trout in the Clackamas 
River Subbasin, Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 
cooperation with the U.S. Forest Service (USFS) and the State of 
Oregon, propose to establish a nonessential experimental population 
(NEP) of bull trout (Salvelinus confluentus) in the Clackamas River and 
its tributaries in Clackamas County, Oregon, under section 10(j) of the 
Endangered Species Act of 1973, as amended (Act). The geographic 
boundaries of the NEP would include the entire Clackamas River subbasin 
as well as the mainstem Willamette River, from Willamette Falls to its 
points of confluence with the Columbia River, including Multnomah 
Channel. The best available data indicate that reintroduction of bull 
trout to the Clackamas subbasin is biologically feasible and will 
promote the conservation of the species. We are seeking comments on 
this proposal and on our draft environmental assessment (EA), prepared 
pursuant to the National Environmental Policy Act of 1969, as amended 
(NEPA), which analyzes the potential environmental impacts associated 
with the proposed reintroduction.

DATES: To ensure that we are able to consider your comments on this 
proposed rule, they must be received on or before February 8, 2010. We 
must receive requests for public hearings in writing, at the address 
shown in the FOR FURTHER INFORMATION CONTACT section by January 25, 
2010.
    Comments on the EA must be received on or before: February 8, 2010.

ADDRESSES: You may submit comments on the proposed rule by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R1-
ES-2009-0050.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R1-ES-2009-0050; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on the proposed rule on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments Procedures 
section below for more information).
    You may submit comments on the draft EA by one of the following 
methods:
     E-mail to: [email protected].
     U.S. mail or hand-delivery: Oregon Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2600 SE 98th Ave., Suite 100, 
Portland, OR 97266
    Please see the draft EA for additional information regarding 
commenting on that document.

FOR FURTHER INFORMATION CONTACT: Chris Allen, Oregon Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2600 SE. 98th Ave., Suite 100, 
Portland, OR 97266 (telephone 503-231-6179, facsimile 503-231-6195). If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comment Procedures

    To ensure that any final action resulting from this proposed rule 
will be as accurate and as effective as possible, we request that you 
send relevant information for our consideration. Comments on the 
proposed rule that will be most useful are those that are supported by 
data or peer-reviewed studies and those that include citations to, and 
analyses of, applicable laws and regulations. Please make your comments 
as specific as possible and explain the basis for them. In addition, 
please include sufficient information with your comments to allow us to 
authenticate any scientific or commercial data you reference or 
provide. In particular, we seek comments concerning the following:
    (1) The geographic boundary for the NEP;
    (2) The suitability of using Metolius River subbasin bull trout as 
donor stock; and,
    (3) Effects of the reintroduction on other native species and the 
ecosystem.
    Prior to issuing a final rule on this proposed action, we will take 
into consideration comments and additional information we receive. Such 
information may lead to a final rule that differs from this proposal. 
All comments and recommendations, including names and addresses, will 
become part of the administrative record.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods 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 
Web site. Please note that comments submitted to this Web site are not 
immediately viewable. When you submit a comment, the system receives it 
immediately. However, the comment will not be publically viewable until 
we post it, which might not occur until several days after submission.
    If you mail or hand-deliver a hardcopy comment that includes 
personal 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. To ensure that the electronic 
docket for this rulemaking is complete and all comments we receive are 
publically available, we will post all hardcopy comments on http://www.regulations.gov.
    In addition, comments and materials we receive, as well as 
supporting documentation used in preparing this proposed rule will be 
available for public inspection in two ways:
    (1) You can view them on http://www.regulations.gov. In the Search 
Documents box, enter FWS-R1-ES-2009-0050, which is the docket number 
for this rulemaking. Then, in the Search panel on the left side of the 
screen, select the type of documents you want to view under the 
Document Type heading.
    (2) You can make an appointment, during normal business hours, to 
view the comments and materials in person at the Oregon Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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Public Hearings

    The Act provides for public hearings on this proposed rule, if 
requested. We must receive requests for public hearings, in writing, at 
the address shown in the FOR FURTHER INFORMATION CONTACT section by the 
date shown in the DATES section.

Background

Statutory and Regulatory Framework

    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j) which allows for the designation of 
reintroduced populations of listed species as ``experimental 
populations.'' Under section 10(j) of the Act and our regulations at 50 
CFR 17.81, the Service may designate as an experimental population a 
population of endangered or threatened species that has been or will be 
released into suitable natural habitat outside the species' current 
natural range (but within its probable historic range, absent a finding 
by the Director of the Service in the extreme case that the primary 
habitat of the species has been unsuitably and irreversibly altered or 
destroyed).
    Before authorizing the release as an experimental population of any 
population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find by 
regulation that such release will further the conservation of the 
species. In making such a finding the Service uses the best scientific 
and commercial data available to consider: (1) Any possible adverse 
effects on extant populations of a species as a result of removal of 
individuals, eggs, or propagules for introduction elsewhere; (2) the 
likelihood that any such experimental population will become 
established and survive in the foreseeable future; (3) the relative 
effects that establishment of an experimental population will have on 
the recovery of the species; and (4) the extent to which the introduced 
population may be affected by existing or anticipated Federal or State 
actions or private activities within or adjacent to the experimental 
population area.
    Furthermore, as set forth in 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) must provide: 
(1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population(s); (2) a finding, based solely on the best scientific and 
commercial data available, and the supporting factual basis, on whether 
the experimental population is, or is not, essential to the continued 
existence of the species in the wild; (3) management restrictions, 
protective measures, or other special management concerns of that 
population, which may include but are not limited to, measures to 
isolate and/or contain the experimental population designated in the 
regulation from natural populations; and (4) a process for periodic 
review and evaluation of the success or failure of the release and the 
effect of the release on the conservation and recovery of the species.
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, 10(j) rules represent an agreement between the Fish and 
Wildlife Service, the affected State and Federal agencies, and persons 
holding any interest in land which may be affected by the establishment 
of an experimental population.
    Under 50 CFR 17.81(f), the Secretary may designate critical habitat 
as defined in section 3(5)(A) of the Act for an essential experimental 
population. No designation of critical habitat will be made for 
nonessential populations. In those situations where a portion or all of 
an essential experimental population overlaps with a natural population 
of the species during certain periods of the year, no critical habitat 
will be designated for the area of overlap unless implemented as a 
revision to critical habitat of the natural population for reasons 
unrelated to the overlap itself.
    Any population determined by the Secretary to be an experimental 
population will be treated as if it were listed as a threatened species 
for purposes of establishing protective regulations with respect to 
that population. The protective regulations adopted for an experimental 
population will contain applicable prohibitions, as appropriate and 
exceptions for that population.
    Any experimental population designated for a listed species (1) 
determined not to be essential to the survival of that species and (2) 
not occurring within the National Park System or the National Wildlife 
Refuge System, will be treated for purposes of section 7 (other than 
subsection (a)(1) thereof) as a species proposed to be listed under the 
Act as a threatened species.
    Any experimental population designated for a listed species that 
either (1) has been determined to be essential to the survival of that 
species, or (2) occurs within the National Park System or the National 
Wildlife Refuge System as now or hereafter constituted, will be treated 
for purposes of section 7 of the Act as a threatened species. 
Notwithstanding the foregoing, any biological opinion prepared pursuant 
to section 7(b) of the Act and any agency determination made pursuant 
to section 7(a) of the Act will consider any experimental and 
nonexperimental populations to constitute a single listed species for 
the purposes of conducting the analyses under such sections.

Biological Information

    The bull trout is a large native char found in the coastal and 
intermountain west of North America and is one of five species in the 
genus Salvelinus found in the United States (Bond 1992, p. 1). Bull 
trout have a slightly forked tail; yellow or cream-colored spots on 
their back; yellow, orange, or pink spots on their side; and no black 
spots on their dorsal fin. Migratory adults commonly reach 24 inches 
(61 centimeters) or more (Goetz 1989, pp. 29-30; Pratt 1992, p. 8). The 
largest known specimen weighed 32 pounds (14.5 kilograms) (Simpson and 
Wallace 1982, p. 95).
    The historical range of bull trout in the coterminous United States 
extended from the Canadian border south to the Jarbidge River in 
northern Nevada and from the Pacific Ocean inland to the Clark Fork 
River in western Montana and the Little Lost River in central Idaho. 
Genetic analysis has shown that bull trout in the coterminous United 
States are divided into three major genetically differentiated (e.g., 
evolutionary) groups or lineages (Spruell et al. 2003, p. 21). These 
lineages are characterized as: (1) ``Coastal,'' including the Deschutes 
River and all of the Columbia River drainage downstream (including the 
Willamette and Clackamas rivers), as well as most coastal streams in 
Washington, Oregon, and British Columbia; (2) ``Snake River,'' which 
includes the John Day, Umatilla, and Walla Walla rivers in Oregon and 
Washington, as well as major river basins in central Idaho; and (3) 
``Upper Columbia River,'' which includes major river basins in Montana, 
Washington, and northern Idaho. The existence of a ``coastal'' 
evolutionary lineage is further supported by the work of Taylor et al. 
(1999, p. 1162) and a recent range-wide

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bull trout genetic analysis by the Service (USFWS 2008, unpublished 
data).
    Bull trout exhibit both resident and migratory life history 
strategies, although bull trout in the ``coastal'' lineage are largely 
migratory. Migratory bull trout spawn in tributary streams where 
juvenile fish rear for 1 to 4 years before migrating to either a lake 
(adfluvial form), river (fluvial form) (Fraley and Shepard 1989, pp. 
138-9; Goetz 1989, p. 24), or saltwater (anadromous form) to rear as 
subadults and to live as adults (Cavender 1978, p. 139; McPhail and 
Baxter 1996, p. 14; Washington Department of Fish and Wildlife (WDFW) 
et al. 1998, p. 2). Bull trout normally reach sexual maturity between 
age 4 and 7 and may live longer than 12 years. They are iteroparous 
(spawning more than once in a lifetime). Both consecutive-year and 
alternate-year spawning have been reported (Fraley and Shepard 1989, 
p.135). Preferred habitat consists of cold water, complex cover, stable 
channels, loose and clean gravel, and migratory corridors (Fraley and 
Shepard 1989, pp. 137-9; Goetz, 1989, pp. 16-25).
    The current distribution of bull trout in the lower Columbia River 
portion of the ``coastal'' lineage includes populations in the 
Deschutes, Hood, Lewis, Klickitat, and upper Willamette rivers. 
Throughout much of its historical range, the decline of bull trout has 
been attributed to habitat degradation and fragmentation, the blockage 
of migratory corridors, poor water quality, angler harvest, entrainment 
(the incidental withdrawal of fish and other aquatic organisms in water 
diverted out-of-stream for various purposes) into diversion channels 
and dams, and introduced nonnative species. Specific land and water 
management activities that may negatively impact bull trout populations 
and habitat, if not implemented in accordance with best management 
practices, include the operation of dams and other diversion 
structures, forest management practices, livestock grazing, 
agriculture, agricultural diversions, road construction and 
maintenance, mining, and urban and rural development (Beschta et al. 
1987, pp. 221-224; Chamberlain et al. 1991, pp. 199-200; Furniss et al. 
1991, pp. 297-302; Meehan and Bjornn 1991, pp. 483-517; Nehlsen et al. 
1991, p. 16; Craig and Wissmar 1993, p. 18; Frissell 1993, p. 351; 
McIntosh et al. 1994, pp. 47-48; Wissmar et al. 1994, p. 28; Montana 
Bull Trout Scientific Group (MBTSG) 1995a [p. 14], 1995b [p. 10], 1995c 
[p. 13], 1995d [p. 21], 1995e [p. 13], 1996a [p. 12], 1996b [p. 9], 
1996c [p. 12], 1996d [p. 11], 1996e [p. 12], 1996f [p. 10]; Light et 
al. 1996, pp. 9-11; U.S. Department of Agriculture (USDA) and U.S. 
Department of the Interior (USDI) 1995 [pp. 70-1], 1996 [pp. 106-107, 
111], 1997 [pp. 132-154]).
    The historical distribution of bull trout in the Clackamas River 
subbasin likely extended from the lower Clackamas River, upstream to 
headwater spawning and rearing areas (Shively et al. 2007, Ch. 1, pp. 
10-12). It is possible that bull trout from the Clackamas River 
migrated to the upper Willamette River above Willamette Falls or to 
lower Columbia River tributaries (Zimmerman 1999, p. 17); however, it 
is unlikely that bull trout historically occupied habitat upstream of 
waterfall barriers known to impede upstream movement of anadromous 
salmon and steelhead species in the Clackamas River.
    The last documented bull trout observation in the Clackamas River 
subbasin was in 1963 (Stout 1963, p. 97). Due to geographic distance to 
extant bull trout populations in other subbasins, natural 
recolonization of the Clackamas River subbasin is extremely unlikely 
without human assistance (USFWS 2002, Ch. 5, p. 9). Extirpation was 
likely caused by many of the same factors that led to the decline in 
the species across its range, including migration barriers from 
hydroelectric and diversion dams, direct and incidental harvest in 
sport and commercial fisheries, targeted eradication through bounty 
fisheries (currently known as sport reward programs), and habitat and 
water quality degradation from forest management and agricultural 
activities not in accordance with best management practices (Shively et 
al. 2007, Ch. 1, pp. 18-22).

Relationship of the Proposed Experimental Population To Recovery 
Efforts

    On November 1, 1999, we published a final rule to list bull trout 
within the coterminous United States as threatened under the Act (64 FR 
58910). This final rule served to consolidate the five separate 
distinct population segment (DPS) listings into one coterminous U.S. 
DPS listing. We published a draft recovery plan for the Columbia River, 
Klamath River, and St. Mary-Belly River segments on November 29, 2002 
(67 FR 71439) and the Coastal Puget Sound and Jarbidge River segments 
on July 1, 2004 (69 FR 39950 and 69 FR 39951, respectively). The draft 
recovery objectives are:
    (1) Maintain current distribution of bull trout within core areas 
as described in recovery unit chapters and restore distribution where 
recommended in recovery unit chapters;
    (2) Maintain stable or increasing trend in abundance of bull trout;
    (3) Restore and maintain suitable habitat conditions for all bull 
trout life history stages and strategies; and
    (4) Conserve genetic diversity and provide opportunity for genetic 
exchange.
    Recovery criteria specific to the Willamette River Recovery Unit 
(USFWS 2002, Ch. 5 pp. 7-8) follow:
    (1) Distribution criteria will be met when bull trout are 
distributed among five or more local populations in the recovery unit: 
four in the Upper Willamette River core area and one in the Clackamas 
River core habitat.
    (2) Abundance criteria will be met when an estimated abundance of 
adult bull trout is from 900 to 1,500 or more individuals in the 
Willamette River Recovery Unit, distributed in each core area as 
follows: 600 to 1,000 in the Upper Willamette core area and 300 to 500 
in the Clackamas River core habitat.
    (3) Trend criteria will be met when adult bull trout exhibit stable 
or increasing trends in abundance in the Willamette River Recovery 
Unit, based on a minimum of 10 years of monitoring data.
    (4) Connectivity criteria will be met when migratory forms are 
present in all local populations and when intact migratory corridors 
among all local populations in core areas provide opportunity for 
genetic exchange and diversity.
    Establishment of an experimental population of bull trout in the 
Clackamas River will help to achieve distribution in the Clackamas 
River core habitat (recovery criterion 1 and recovery objective 1) and 
will increase abundance of adult bull trout in the Willamette River 
Recovery Unit (recovery criterion 2 and recovery objective 2).

Is the Proposed Experimental Population Essential or Nonessential?

    When we establish experimental populations under section 10(j) of 
the Act we must determine whether such a population is essential to the 
continued existence of the species in the wild. Although the 
experimental population will contribute to the recovery of the bull 
trout in the Willamette basin, it is not essential to the continued 
existence of the species in the wild. Bull trout populations are 
broadly distributed, occurring in 121 core areas in 5 western States, 
and the species' continued existence is dependent upon conserving a 
number of interacting populations that are well distributed throughout 
its

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range. Conservation of a single, local population not possessing 
markedly divergent genetic components or adaptive traits and not 
occurring in a unique or unusual ecological setting or geographical 
context may contribute to the recovery of the species, but such 
individual, local populations by themselves are not essential to the 
species' continued existence. Because the donor stock for the 
reintroduction will come from a wild population of bull trout, the 
reintroduced population will not possess markedly divergent genetic 
components or adaptive traits. Furthermore, the Clackamas River is not 
a unique or unusual ecological setting or geographical context for bull 
trout. Bull trout occur in other portions of the Willamette River basin 
and in other nearby tributaries to the Columbia River. Therefore, as 
required by 50 CFR 17.81(c)(2), we find that the proposed experimental 
population is not essential to the continued existence of the species 
in the wild, and we propose to designate the experimental population in 
the Clackamas River as a nonessential experimental population (NEP).

Location of Proposed NEP

    The NEP area would include the entire Clackamas River subbasin as 
well as the mainstem Willamette River, from Willamette Falls to its 
points of confluence with the Columbia River, including Multnomah 
Channel. The Willamette River's confluence with the Columbia River 
occurs at river mile (RM) 101, near the City of Portland. A secondary 
channel of the Willamette River, named the Multnomah Channel, branches 
off the Willamette River approximately 3 river miles (5 river 
kilometers (km)) upstream from its confluence with the Columbia River. 
This secondary channel runs approximately 20 river miles (32 river km) 
along the west side of Sauvie Island before joining the Columbia River 
at RM 86 near the town of St. Helens. The NEP boundary extends down the 
Multnomah Channel to its confluence with the Columbia River, as well as 
the mainstem Willamette River, from Willamette Falls to its confluence 
with the Columbia River.
    Under this proposed rule, the Service would release bull trout into 
areas of suitable spawning and rearing habitat in the Clackamas River 
subbasin. The portion of the subbasin currently containing these areas 
is limited to the mainstem river and its tributaries in the upper 
headwaters of the subbasin, upstream of the Collawash River confluence. 
This portion of the subbasin, referred to as the upper Clackamas River 
subbasin, contains a total of 70.1 river miles (112.8 river km) of 
suitable spawning and rearing habitat. The amount and characteristics 
of habitat in the Clackamas River subbasin compare favorably to other 
river systems in the lower Columbia River with extant bull trout 
populations (e.g., Lewis, McKenzie, and Deschutes rivers) (Shively et 
al. 2007, Ch. 2, p. 40).
    Section 10(j) of the Act requires that an experimental population 
be geographically separate from wild populations of the same species. 
The nearest wild bull trout populations to the Clackamas River are 
located in the following tributaries of the lower Columbia River: The 
Lewis (RM 84), Hood (RM 165), and Deschutes (RM 200) rivers. Because 
fluvial populations of bull trout tend to migrate, individual fish from 
these populations may seasonally occupy the mainstem of the lower 
Columbia River. Although we have no records of bull trout in the 
mainstem Willamette River, given our understanding of bull trout 
ecology in other river systems, it is likely that, historically, bull 
trout seasonally occupied the mainstem Willamette River. If a 
reintroduction of bull trout to the Clackamas River is successful, it 
is possible that a small percentage of adult bull trout will migrate 
to, and overwinter in, the mainstem Willamette River, between 
Willamette Falls and its points of confluence with the Columbia River, 
including Multnomah Channel. Should any bull trout be found in the 
Willamette River within the NEP boundary, the Service will assume the 
fish to be part of the reintroduced population, unless the fish is 
tagged or otherwise known to be from another population. It is unlikely 
that reintroduced bull trout will migrate outside of the NEP boundary 
into the Columbia River or upstream of Willamette Falls in the 
Willamette River due to the significant distance to spawning and 
rearing habitats in the upper Clackamas River. Bull trout found outside 
of the NEP boundary but known to be part of the NEP will assume the 
status of bull trout within the geographic area in which they are 
found. Although Willamette Falls and the confluence points of the 
Willamette and Columbia Rivers are not absolute boundaries, the NEP is 
geographically separate from other wild bull trout populations due to 
geographic distance.

Likelihood of Population Establishment and Survival

    The Service, USFS, Oregon Department of Fish and Wildlife (ODFW), 
and other major stakeholders established the Clackamas River Bull Trout 
Working Group (CRBTWG) to assess the feasibility of bull trout 
reintroductions. In 2007, the CRBTWG completed the Clackamas River Bull 
Trout Reintroduction Feasibility Assessment (Feasibility Assessment), a 
scientifically rigorous examination of habitat suitability and 
projected viability of a reintroduced population. The Feasibility 
Assessment indicates that there is a reasonable likelihood that 
reintroduced bull trout will survive and reestablish in the upper 
portion of the Clackamas River, from North Fork Reservoir to the 
headwaters. Specifically, the CRBTWG concludes:
    (1) There is a high level of confidence that bull trout have been 
locally extirpated from the Clackamas subbasin;
    (2) The causes for their decline have been sufficiently mitigated;
    (3) High-quality habitat is available in sufficient amounts;
    (4) Nearby donor stocks are unlikely to naturally recolonize;
    (5) Suitable donor stocks are available that can withstand 
extraction of individuals;
    (6) Nonnative brook trout presence is restricted to a small portion 
of the suitable habitat and not a likely threat; and
    (7) A diverse and abundant fish assemblage would serve as a 
sufficient prey base with no obvious threats posed by bull trout to 
these species (Shively et al. 2007, Ch. 5, pp. 3-4).
    Based on this assessment, reintroduced bull trout are likely to 
become established and persist in the Clackamas River subbasin. Copies 
of the Feasibility Assessment can be found: (1) Online at http://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp 
or http://www.regulations.gov, or (2) In person, by appointment, during 
normal business hours, at the Oregon Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Addressing Causes of Extirpation

    Investigating the causes for decline and extirpation of bull trout 
in the Clackamas River is necessary to understand whether the threats 
have been sufficiently curtailed such that reintroduction efforts are 
likely to be successful. The CRBTWG identifies the primary threats to 
be hydroelectric dams (passage and screening), forest management (i.e., 
lack of aquatic habitat protection), and fisheries management 
(particularly sport fishing upstream of North Fork Dam) (Shively et al. 
2007, Ch.1, pp. 22-23). The changes in threats since extirpation of 
bull trout in the Clackamas Basin are explained below in more detail.

[[Page 65049]]

    Diversion dams present in the late 1800s and early 1900s no longer 
exist in the lower Clackamas River subbasin on river segments that 
would impede bull trout migration. Within bull trout historical habitat 
in the Clackamas River subbasin there are three existing dams owned and 
operated by Portland General Electric (PGE). Beginning in the late 
1990s, PGE began Federal relicensing proceedings for its hydroelectric 
dams in the Clackamas River subbasin. In their final license 
application to the Federal Energy Regulatory Commission (FERC) and in 
an accompanying Settlement Agreement among more than 30 local, State, 
Federal, and Tribal governments, non-governmental organizations, and 
other interested stakeholders, PGE proposed to make several upstream 
and downstream fish passage improvements for the three dams along the 
mainstem Clackamas River. One improvement, which is already completed, 
is the reconstruction of the River Mill Dam fish ladder. Other 
improvements include upgrades to the downstream fish collection 
facility and bypass at North Fork Dam, construction of a new fish trap 
and handling facility at the North Fork fishway, and new downstream 
fish passage facilities at River Mill Dam (Shively et al. 2007, Ch.1, 
p. 23).
    The majority of lands in the upper portion of the Clackamas River 
subbasin are USFS and Bureau of Land Management (BLM) administered 
public forestlands. These lands are managed in accordance with the Mt. 
Hood National Forest Land and Resource Management Plan (USFS 1990) or 
the Salem District BLM Resource Management Plan (USDI 1995), 
respectively, as amended by the 1994 Northwest Forest Plan (USDA and 
USDI 1994). The 1994 Northwest Forest Plan established an Aquatic 
Conservation Strategy (ACS) with protective measures, standards and 
guidelines, and land allocations to maintain and restore at-risk fish 
species, including bull trout. The ACS Riparian Reserve land allocation 
extends a minimum of 300 feet (91.4 meters) on both sides of all fish-
bearing streams and prohibits scheduled timber harvest. These plans, 
along with the Omnibus Public Land Management Act of 2009 (Pub. L. 111-
11) that establishes several new wilderness areas in the upper 
Clackamas River watershed, provide substantial protections for 
watersheds and aquatic habitats on USFS- and BLM-administered public 
lands in the upper subbasin. No additional changes or protections 
regarding forest management activities on public or non-public forest 
lands are necessary to support a successful reintroduction of bull 
trout in the Clackamas River subbasin (Shively et al. 2007, Ch.1, pp. 
124-125).
    When the National Marine Fisheries Service (NMFS) listed salmon and 
steelhead in the Clackamas River under the Act (64 FR 14308, March 24, 
1999; 71 FR 834, June 28, 2005; 70 FR 37160, January 5, 2006), 
fisheries management practices for the portion of the Clackamas River 
subbasin upstream of North Fork Reservoir changed substantially. For 
example, stocking of catchable rainbow trout within the Clackamas River 
has been discontinued altogether along the mainstem and tributaries 
upstream of North Fork Reservoir, and current sport fishing regulations 
now require catch and release of all native trout caught in the 
Clackamas River subbasin. Additionally, angling is restricted to the 
use of artificial flies and lures upstream of North Fork Reservoir. All 
waters in the Willamette Zone for the State of Oregon's sport fishing 
regulations are closed to angling for bull trout. Beginning in 2003, 
the ODFW eliminated the stocking of nonnative brook trout in lakes with 
outlets to streams in the upper Clackamas River subbasin that provide 
suitable bull trout spawning and rearing habitat. With these 
significant changes in angling regulations, the CRBTWG concludes that 
this threat for decline has been addressed. No additional changes to 
angling regulations in the upper portion of the subbasin are necessary 
to support a successful reintroduction of bull trout (Shively et al. 
2007, Ch.1, pp. 24).

Donor Stock Assessment and Effects on Donor Populations

    A donor stock should be comprised of fish that most closely 
resemble the bull trout that historically inhabited the Clackamas River 
(e.g., genotype, phenotype, behavior, and life history expression). 
However, because little is known about the biology and evolutionary 
history of bull trout that historically occupied the Clackamas River, 
and no genetic material is available for analysis, the CRBTWG was 
limited to an assessment of biological information from other local 
populations, existing studies of the evolution and biogeography of bull 
trout, information derived from historical harvest data from the 
Clackamas River, and recent regional bull trout genetic analyses.
    By exploring issues associated with life history strategy, 
metapopulation dynamics, biogeography, and genetic considerations, the 
CRBTWG identified bull trout populations in the ``coastal'' lineage as 
the best source for a donor population (see Biological Information 
above). Any of the ``coastal'' lineage bull trout populations are 
likely to carry the genetic material to preserve and protect the 
``coastal'' lineage regardless of localized and specific adaptations. 
Although these local adaptations are important, each of the populations 
is likely to contain the evolutionary potential that is characteristic 
of the ``coastal'' evolutionary lineage. However, in a further 
refinement, the CRBTWG determined that donor populations from lower 
Columbia River tributaries would be most appropriate due to their 
geographic proximity to the historical bull trout population in the 
Clackamas River and because genetic studies indicate these populations 
are more closely related to one another than to other ``coastal'' 
lineage populations (USFWS 2008, unpublished data). The potential lower 
Columbia River donor populations of bull trout include fish in five 
river basins: The Willamette River, Hood River, Lewis River, Deschutes 
River, and Klickitat River basins (Shively et al. 2007, Ch. 3, pp. 8-
14).
    Specific benchmarks have been developed concerning the minimum bull 
trout population size necessary to maintain genetic variation important 
for short-term fitness and long-term evolutionary potential. Rieman and 
Allendorf (2001, pp. 762) concluded that an average of 100 spawning 
adults each year is required to minimize risks of inbreeding in a bull 
trout population and that 1,000 spawning adults each year will likely 
prevent loss of genetic diversity due to genetic drift. This later 
value of 1,000 spawning adults may also be reached with a collection of 
local populations among which gene flow occurs. The CRBTWG utilized 
these general benchmarks in the Feasibility Assessment to assess 
potential risk to each of the five potential donor stocks in the lower 
Columbia River from the loss of individuals, recognizing that risk 
increases as donor populations near 100 spawning adults and diminishes 
as populations approach 1,000 spawning adults (Shively et al. 2007, Ch. 
3, pp. 8-14).
    When the Feasibility Assessment was developed in December 2007, 
bull trout from two of the five river basins, the Lewis River and 
Deschutes River, contained groups of interacting local populations that 
exceeded 1,000 spawning adults. For the Lewis River basin, this 
included the combined Pine Creek and Rush Creek populations that occur 
above Swift Dam. For the Deschutes River basin, this included the three 
interacting populations present in

[[Page 65050]]

the Metolius River subbasin. Since publication of the Feasibility 
Assessment there have been declines in adult spawner abundance in both 
the Lewis and Deschutes river bull trout groups, with the Lewis River 
population dropping significantly in 2007 and 2008, to its current 
estimated adult spawner abundance of 379 individuals (Doyle 2009, pp. 
2-7). Although the Deschutes River (Metolius River subbasin) bull trout 
population has also decreased over the last 2 years, the CRBTWG 
considered this population to be the least at risk of the potential 
donor stocks. Furthermore, per Rieman and Allendorf (2001, pp. 762), 
the total number of annual spawning adults is sufficiently large enough 
(approximately 1,000 spawning adults) to protect against the loss of 
genetic diversity from genetic drift.
    The proposed action includes the direct transfer of wild bull trout 
adults, subadults, juveniles, and fry from the Metolius River subbasin 
to the Clackamas River. The numbers and life stages of fish transferred 
each year will be linked strongly to the annual population size of the 
donor stock, as well as to information derived from monitoring the 
success of the various life stages in the NEP over the initial few 
years of the project. An implementation plan, including information 
about potential release sites, methods, disease screening, and the 
number of individuals to be released, is appended to our EA and 
includes additional information on release sites, release timing, 
monitoring, and suggested management and research.

Management Considerations and Protective Measures

    We conclude that the effects of Federal, State, or private actions 
and activities will not pose a substantial threat to bull trout 
establishment and persistence in the Clackamas subbasin, because most 
activities currently occurring in the NEP area are compatible with bull 
trout recovery and there is no information to suggest that future 
activities would be incompatible with bull trout recovery. Most of the 
area containing suitable release sites with high potential for bull 
trout establishment is managed by the USFS and is protected from major 
development activities and timber harvest through the following 
mechanisms: (1) 47 miles (76 km) of the Clackamas River, from its 
headwaters to the Big Cliff area just upstream of North Fork Reservoir, 
was designated in 1988 as part of the Federal Wild and Scenic Rivers 
System (USFS 1993, p. 14); (2) the State of Oregon designated 82 miles 
(132 km) of the Clackamas River and its tributaries as part of the 
Oregon Scenic Waterway Program in 1989 (ORS 390.826); (3) the 1994 
Northwest Forest Plan established protective measures, standards and 
guidelines, and land allocations to maintain and restore at-risk fish 
species, including bull trout; (4) NMFS' listings of salmon and 
steelhead under the Act caused fisheries management practices (i.e., 
sport fishing regulations and stocking of catchable rainbow trout) in 
the Clackamas River subbasin to become significantly more restrictive; 
and (5) the Federal Omnibus Public Land Management Act of 2009 (Pub. L. 
111-11) designated two new wilderness units in the upper Clackamas 
River watershed at Sisi Butte (3,245 acres) and at Big Bottom (1,264 
acres), and the Big Bottom Protection Area (1,581 acre special 
management unit) that is adjacent to the Big Bottom Wilderness unit.
    Aquatic resources in the Clackamas River subbasin are managed by 
the USFS, the State of Oregon, municipal and county governments, and 
private landowners. Multiple-use management of these waters will not 
change as a result of the NEP designation. Current agricultural and 
recreational activities and other activities by private landowners 
within and near the NEP area are compatible with bull trout recovery in 
the Clackamas River subbasin and are not expected to change as a result 
of the NEP designation. Therefore, we do not believe the reintroduction 
of bull trout will conflict with existing human activities or hinder 
public use of the area.
    The Service, ODFW, and the USFS, in cooperation with the CRBTWG, 
will plan and manage the reintroduction of bull trout. In addition, 
these agencies will carefully collaborate on releases, monitoring, 
coordination with landowners and land managers, public awareness, and 
other tasks necessary to ensure successful reintroduction of the 
species. The CRBTWG is assisting in the development of an 
Implementation and Monitoring Plan to help guide the reintroduction 
effort. A few specific management considerations related to the 
experimental population are addressed below.
    (a) Incidental Take: Experimental population special rules contain 
specific prohibitions and exceptions regarding the taking of individual 
animals. These special rules are compatible with routine human 
activities in the expected reestablishment area. Section 3(19) of the 
Act defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct.'' If we adopt the 10(j) rule as proposed, take of bull trout 
within the experimental population area would be allowed provided that 
the take is unintentional, not due to negligent conduct, or is 
consistent with State fishing regulations that have been coordinated 
with the Service. We expect levels of incidental take to be low because 
the reintroduction is compatible with existing activities and practices 
in the area. As recreational fishing for species other than bull trout 
is popular within the NEP area, we expect some incidental take of bull 
trout from this activity but, as long as it is in compliance with ODFW 
fishing regulations, and Tribal regulations on land managed by the 
Confederated Tribes of the Warm Springs Reservation of Oregon 
(CTWSROO), such take will not be a violation of the Act.
    (b) Special Handling: Service and ODFW employees and authorized 
agents acting on their behalf may handle bull trout for scientific 
purposes, to relocate bull trout to avoid conflict with human 
activities, for recovery purposes; to relocate bull trout to other 
release sites in the Clackamas River, to aid sick or injured bull 
trout; and to salvage dead bull trout. However, non-Service or other 
non-authorized personnel will need to acquire permits from the Service 
and ODFW for these activities. USFS personnel, the primary land 
managers in the reestablishment area, will be permitted to handle 
reintroduced bull trout through a modification of their existing 
10(a)(1)(A) recovery permit.
    (c) Coordination with Land Owners and Land Managers: The proposed 
reintroduction has been discussed with potentially affected State 
agencies, Tribal entities, local governments, businesses, and 
landowners within the expected reestablishment area. The land along the 
expected reestablishment area is owned mainly by USFS although a small 
portion located in North Fork Reservoir is owned by PGE.
    (d) Public Awareness and Cooperation: During October and November 
2008, in cooperation with ODFW and USFS, we conducted several NEPA 
scoping meetings on this proposed action. We notified a comprehensive 
list of stakeholders of the meetings including affected Federal and 
State agencies, Tribal entities, local governments, landowners, 
nonprofit organizations (environmental and recreational), and other 
interested parties. The comments we received are listed in the draft 
EA, were included in the formulation of alternatives considered in the 
NEPA process, and will be considered in any final

[[Page 65051]]

regulation designating a NEP for reintroduced bull trout.
    (e) Potential impacts to other Federally listed fish species: In 
July 2008, the Service sponsored an expert science panel workshop to 
assess potential impacts of a proposed bull trout reintroduction on 
Federally listed salmon and steelhead in the Clackamas River. The 
expert panel also provided information on critical monitoring and 
management actions to reduce uncertainty and risk to Federally listed 
salmon and steelhead from a reintroduction of bull trout. The results 
from this workshop are fully presented in the draft EA, which is 
available for inspection in person at the Oregon Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section) and online at: 
http://www.regulations.gov or http://www.fws.gov/oregonfwo/. Although 
our analysis indicates a low likelihood for population level impacts to 
Federally listed salmon and steelhead populations, if the Service and 
the State determine, in consultation with NMFS, that the reintroduction 
efforts are not consistent with the recovery of salmon or steelhead, 
the reintroduction program will be discontinued and bull trout will be 
removed from the experimental population area. Prior to releasing bull 
trout into the Clackamas River, the Service will evaluate the potential 
effects of the release on listed salmon and steelhead and will complete 
any required interagency cooperation with NMFS pursuant to section 
7(a)(2) of the Act.

Monitoring and Evaluation

    After the initial release of bull trout, we will monitor their 
presence, absence, and movement at least annually and document spawning 
behavior or presence of young-of-year fish. Depending on available 
resources, monitoring may occur more frequently, especially during the 
first few years of reestablishment efforts. This monitoring will be 
primarily conducted through passive integrated transponder (PIT) tags, 
snorkeling, and radio-telemetry by ODFW employees with the assistance 
of the Service. Monitoring the status of the donor population will also 
occur annually. Annual reports that summarize the implementation and 
monitoring activities that took place during the previous year will be 
collaboratively developed by the Service and ODFW. We will fully 
evaluate the reestablishment efforts every 7 years, the life-span of a 
long-lived bull trout, to determine whether to continue or terminate 
such efforts.
    In addition to monitoring reintroduced bull trout and the donor 
stock, we also plan to monitor the response of the existing native fish 
community, particularly Federally listed salmon and steelhead, to the 
reintroduced bull trout. To facilitate this type of monitoring, the 
Service, together with other members of the CRBTWG, plan to conduct 
baseline biological surveys in 2009.

Findings

    Based on the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), the Service finds that releasing bull 
trout into the Clackamas River subbasin will further the conservation 
of the species but that this population is not essential to the 
continued existence of the species in the wild.

Peer Review

    A final draft of the CRBTWG's Feasibility Assessment was provided 
to the State of Oregon Independent Multidisciplinary Science Team 
(IMST) for peer review. The IMST is an impartial scientific review 
panel charged with advising the State of Oregon on matters of science 
related to fish recovery, water quality improvements, and enhancing 
watershed health. The IMST, appointed by the Governor, provides 
independent, scientific analysis and evaluation of State actions and 
policies under the Oregon Plan for Salmon and Watersheds (Oregon Plan). 
The charge of the IMST is to focus on science, maintain its 
independence, operate by consensus, and report its findings and 
conclusions in written reports and reviews.
    The Service, along with USFS and ODFW, presented a summary of the 
goals, analyses, and intended use of the Feasibility Assessment at the 
IMST's October 16, 2006 public meeting. The IMST received a draft of 
the Feasibility Assessment for review on November 28, 2006. The IMST 
review of the draft Feasibility Assessment was by an IMST subcommittee 
including four scientists. The subcommittee held a public meeting on 
December 13, 2006, to discuss the Feasibility Assessment and to prepare 
a draft review. The draft review was discussed and unanimously adopted 
(one member absent from vote) at the January 18, 2007 IMST public 
meeting. Comments on the draft Feasibility Assessment were provided to 
the Service, USFS, and ODFW on January 30, 2007. Comments were 
subsequently posted on the IMST Web site: http://www.fsl.orst.edu/imst/
, and addressed in the final Feasibility Assessment (Shively et al., 
2007, Appendix F).
    The IMST peer review of the science in the final Feasibility 
Assessment, much of which was incorporated into this proposed rule, 
meets our responsibilities under our policy on peer review, published 
on July 1, 1994 (59 FR 34270).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We certify that this rule would not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    If this proposal is adopted, the area affected by this rule 
includes the Clackamas River subbasin and the mainstem of the 
Willamette River, from

[[Page 65052]]

Willamette Falls to its points of confluence with the Columbia River, 
including Multnomah Channel, in Oregon. Because NEP designations do not 
establish substantial new regulation of activities, we do not expect 
this rule would have any significant effect on recreational, 
agricultural, or development activities. Although the entire NEP 
boundary encompasses a large area, the section of the NEP area where we 
can anticipate the establishment of an experimental population of bull 
trout is mainly public land owned by the USFS. In addition, NEPs 
occurring outside the National Refuge System or the National Park 
System are treated as proposed for listing under the provisions of 
section 7 (other than section 7(a)(1)). In these instances, NEPs 
provide additional flexibility because Federal agencies are not 
required to consult with us under section 7(a)(2). Section 7(a)(1) 
requires Federal agencies to use their authorities to further the 
conservation of listed species. Section 7(a)(4) requires Federal 
agencies to confer (rather than consult) with the Service on actions 
that are likely to jeopardize the continued existence of a proposed 
species. The results of a conference are advisory in nature and do not 
restrict agencies from carrying out, funding, or authorizing 
activities.
    The principal activities on private property near the expected 
reestablishment area in the NEP are agriculture, ranching, and 
recreation. The presence of bull trout would likely not affect the use 
of lands for these purposes because there would be no new or additional 
economic or regulatory restrictions imposed upon States, non-Federal 
entities, or members of the public due to the presence of bull trout. 
Therefore, this rulemaking is not expected to have any significant 
adverse impacts to recreation, agriculture, or any development 
activities.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) This rule would not ``significantly or uniquely'' affect small 
governments. We have determined and certify pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this 
rulemaking would not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. A Small 
Government Agency Plan is not required. Small governments would not be 
affected because the proposed NEP designation would not place 
additional requirements on any city, county, or other local 
municipalities.
    (2) This rule would not produce a Federal mandate of $100 million 
or greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for bull trout would not impose any additional management 
or protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. This rule would allow for 
the taking of reintroduced bull trout when such take is incidental to 
an otherwise legal activity, such as recreation (e.g., fishing, 
boating, wading, swimming), forestry, agriculture, hydroelectric power 
generation, and other activities that are in accordance with Federal, 
State, and local laws and regulations. Therefore, we do not believe 
that establishment of this NEP would conflict with existing or proposed 
human activities or hinder public use of the Clackamas River or its 
tributaries.
    A takings implication assessment is not required because this rule: 
(1) Would not effectively compel a property owner to suffer a physical 
invasion of property, and (2) would not deny all economically 
beneficial or productive use of the land or aquatic resources. This 
rule would substantially advance a legitimate government interest 
(conservation and recovery of a listed fish species) and would not 
present a barrier to all reasonable and expected beneficial use of 
private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule 
would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Oregon. Achieving the 
recovery goals for this species will contribute to its eventual 
delisting and return to State management. No intrusion on State policy 
or administration is expected, roles or responsibilities of Federal or 
State governments would not change, and fiscal capacity would not be 
substantially directly affected. The proposed special rule operates to 
maintain the existing relationship between the State and the Federal 
Government and is being undertaken in coordination with the State of 
Oregon. We have cooperated with ODFW in the preparation of this 
proposed rule. Therefore, this proposed rule does not have significant 
Federalism effects or implications to warrant the preparation of a 
Federalism Assessment pursuant to the provisions of Executive Order 
13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988 (February 7, 1996; 61 FR 
4729), the Office of the Solicitor has determined that this rule would 
not unduly burden the judicial system and would meet the requirements 
of sections (3)(a) and (3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. A Federal agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. This proposed rule does not include any new collections 
of information that require approval by OMB under the Paperwork 
Reduction Act.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we have analyzed the impact of this proposed 
rule. Based on this analysis and any new information resulting from 
public comment on the proposed action, we will determine if there are 
any significant impacts or effects caused by this rule. We have 
prepared a draft EA on this proposed action and have made it available 
for public inspection: (1) in person at the Oregon Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT section) and (2) online at 
http://www.regulations.gov or http://www.fws.gov/oregonfwo/. All 
appropriate NEPA documents will be finalized before this rule is 
finalized.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations

[[Page 65053]]

with Native American Tribal Governments'' (59 FR 229511), Executive 
Order 13175, and the Department of the Interior Manual Chapter 512 DM 
2, we have considered possible effects on Federally recognized Indian 
Tribes and have determined that 2 percent of the acreage included in 
the Clackamas River subbasin, including the upper Clackamas and Oak 
Grove Fork drainage, is owned and managed by the Confederated Tribes of 
the Warm Springs Reservation (CTWSROO). Furthermore, donor stock for 
the reintroduction will, in part, originate from a section of the 
Metolius River located on the CTWSRO. Since 2007, the CTWSRO has been 
an active participant in the CRBTWG discussions on bull trout recovery 
in the Clackamas River basin. The Service is continuing to consult, on 
a government-to-government basis, with the CTWSRO regarding this 
proposed action.

Energy Supply, Distribution, or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Oregon Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this proposed rule are Rebecca Toland and 
Chris Allen of the Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by revising the entry for ``Trout, bull'' 
under ``FISHES'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Trout, bull......................  Salvelinus            U.S.A. (AK, Pacific  U.S.A., coterminous  T                637, 639E,     17.95(e)    17.44(w),
                                    confluentus.          NW into CA, ID,      (lower 48 States),                     659, 670                  17.44(x)
                                                          NV, MT) Canada (NW   except where
                                                          Territories).        listed as an
                                                                               experimental
                                                                               population.
Trout, bull......................  Salvelinus            U.S.A. (AK, Pacific  Clackamas River      XN              ...........           NA     17.84(v)
                                    confluentus.          NW into CA, ID,      subbasin and the
                                                          NV, MT) Canada (NW   mainstem
                                                          Territories).        Willamette River,
                                                                               from Willamette
                                                                               Falls to its
                                                                               points of
                                                                               confluence with
                                                                               the Columbia
                                                                               River, including
                                                                               Multnomah Channel.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.84 by adding a new paragraph (v) to read as 
follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (v) Bull Trout (Salvelinus confluentus).
    (1) Where are populations of this fish designated as nonessential 
experimental populations (NEP)?
    (i) The NEP area for the bull trout is within the species' 
historical range and is defined as follows: the entire Clackamas River 
subbasin as well as the mainstem Willamette River, from

[[Page 65054]]

Willamette Falls to its points of confluence with the Columbia River, 
including Multnomah Channel.
    (ii) Bull trout are not currently known to exist in the Clackamas 
River subbasin or the mainstem Willamette River, from Willamette Falls 
to its points of confluence with the Columbia River, including 
Multnomah Channel, in Oregon. Should any bull trout be found in the 
Willamette River within the NEP boundary, the U.S. Fish and Wildlife 
Service (Service) will assume the fish to be part of the reintroduced 
population, unless the fish is tagged or otherwise known to be from 
another population. Given the presence of suitable overwintering and 
forage habitat in the upper portion of the Clackamas River, as well as 
the geographic distance from spawning and rearing habitat in the upper 
Clackamas River to any overwintering and foraging habitat in the lower 
Clackamas and Willamette rivers, we do not expect the reintroduced fish 
to become established outside the NEP. Bull trout found outside of the 
NEP boundary but known to be part of the NEP will assume the status of 
bull trout within the geographic area in which they are found.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP area. Additionally, we will not designate critical habitat for 
the NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (2) What take is allowed of this species in the NEP area?
    (i) Bull trout may be taken within the NEP area, provided that such 
take is:
    (A) Not willful, knowing, or due to negligence;
    (B) Incidental to and not the purpose of carrying out an otherwise 
lawful activity, such as recreation (e.g., fishing, boating, wading, 
trapping, or swimming), agriculture, hydroelectric power generation, 
and other activities that are in accordance with Federal, State, 
Tribal, and local laws and regulations; and
    (C) If due to fishing, consistent with Oregon Department of Fish 
and Wildlife (ODFW) fishing regulations that have been coordinated with 
the Service.
    (ii) Any person with a valid permit issued by the Service under 
Sec.  17.32 and a valid State permit issued by ODFW may take bull trout 
for educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes consistent with the Act.
    (3) What take of this species is not allowed in the NEP area?
    (i) Except as expressly allowed in paragraph (v)(2) of this 
section, all the provisions of Sec.  17.31(a) and (b) apply to the fish 
identified in paragraph (v)(1) of this section.
    (ii) Any manner of take not described under paragraph (v)(2) of 
this section or Oregon Revised Statute (ORS) 498.002 and Oregon Angling 
Regulations pursuant to ORS 498.002 is prohibited in the NEP area. 
Should State statutes or regulations change, take prohibitions will 
change accordingly. Any changes to State recreational fishing 
regulations pertaining to the experimental population of bull trout in 
the Clackamas Basin will be made by the State in collaboration with the 
Service. We may refer unauthorized take of this species to ODFW law 
enforcement authorities or Service law enforcement authorities for 
prosecution.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified fishes, 
or parts thereof, that are taken or possessed in a manner not expressly 
allowed in paragraph (v)(2), or in violation of the applicable State 
fish and wildlife laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense except the take expressly allowed in 
paragraph (v)(2).
    (4) How will the effectiveness of the reestablishment be monitored?
    After the initial release of bull trout, we will monitor their 
presence, absence, and movement at least annually and document any 
spawning behavior or young-of-year fish that might be present. 
Depending on available resources, monitoring may occur more frequently, 
especially during the first few years of reestablishment efforts. This 
monitoring will be primarily conducted through passive integrated 
transponder (PIT) tags, snorkeling, and radio telemetry by ODFW 
employees with assistance from the Service and U.S. Forest Service 
(USFS). Monitoring of the status of the donor population will also 
occur annually. Annual reports that summarize the implementation and 
monitoring activities that took place during the previous year will be 
collaboratively developed by the Service and ODFW. We will also fully 
evaluate the reestablishment efforts every 7 years to determine whether 
to continue or terminate them.
    (5) What safeguards are in place to ensure the protection of 
Federally listed salmon and steelhead in the NEP area?
    Although bull trout are opportunistic predators and have been known 
to prey upon juvenile salmon and steelhead, the potential for 
significant adverse impacts to salmon and steelhead populations is 
remote. Nevertheless, if the Service and the State determine, in 
consultation with the National Marine Fisheries Service (NMFS), that 
the reintroduction efforts are not consistent with the recovery of 
Federally listed salmon or steelhead, the reintroduction program will 
be discontinued and bull trout will be removed from the experimental 
population area.
    (6) Note: Map of the NEP area for bull trout in Oregon follows:
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    Dated: November 19, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-29020 Filed 12-8-09; 8:45 am]
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