[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Rules and Regulations]
[Pages 35979-35995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15370]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), jointly with 
the State of Oregon, and in cooperation with the U.S. Forest Service, 
Mt. Hood National Forest (USFS), National Marine Fisheries Service 
(NMFS), and Confederated Tribes of the Warm Springs Reservation of 
Oregon (CTWSRO), will establish a nonessential experimental population 
(NEP) of bull trout (Salvelinus confluentus) in the Clackamas River and 
its tributaries in Clackamas and Multnomah Counties, Oregon, under 
section 10(j) of the Endangered Species Act of 1973, as amended (Act). 
The geographic boundaries of the NEP 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 River subbasin is biologically feasible 
and will promote the conservation of the species.

DATES: This rule is effective June 21, 2011.

ADDRESSES: This final rule, along with the public comments, 
Environmental Assessment (EA), and Finding of No Significant Impact 
(FONSI), is available on the Internet at http://www.regulations.gov. 
Comments and materials received, as well as supporting documentation 
used in the preparation of this final rule, are also available for 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 
98th Avenue, Suite 100, Portland, Oregon 97266; (telephone 503-231-
6179).

FOR FURTHER INFORMATION CONTACT: Chris Allen at the address listed 
above. If you use a telecommunication device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

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 historical 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

[[Page 35980]]

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, section 10(j) rules represent an agreement between the 
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 of the Interior (Secretary) 
may designate critical habitat as defined in section 3(5)(A) of the Act 
for an essential experimental population. 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. No designation of critical 
habitat will be made for nonessential experimental populations.
    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.
    On December 9, 2009, the Service published: (1) A proposed rule in 
the Federal Register to establish a nonessential experimental 
population of bull trout in the Clackamas River subbasin, Oregon (74 FR 
65045); and (2) a draft environmental assessment (EA) in accordance 
with the National Environmental Policy Act of 1969, as amended (NEPA) 
(74 FR 65045). This document analyzed the potential environmental 
impacts associated with the proposed reintroduction. We contacted 
interested parties including Federal and State agencies, local 
governments, scientific organizations, interest groups, and private 
landowners through a press release and related fact sheets, and e-
mails. In addition, we notified the public and invited comments through 
news releases to local media outlets. The public comment period for the 
proposed rule and the draft EA closed on February 8, 2010.

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 analyses have shown that bull trout in the coterminous United 
States are divided into major genetically differentiated (e.g., 
evolutionary) groups or lineages (Spruell et al. 2003, p. 21; Ardren et 
al. 2010, In Press, p. 13; Taylor et al. 1999, p. 1162). At a coarse 
scale, these assessments have identified the existence of two distinct 
lineages: A ``coastal'' lineage and a ``interior'' lineage. The 
``coastal'' lineage includes the Deschutes River and all of the 
Columbia River drainage downstream (including the Willamette Basin), as 
well as coastal streams in Washington, Oregon, and British Columbia. 
The ``interior'' lineage includes tributaries of the Columbia River 
upstream from the John Day River, including major river basins in 
northeastern Oregon, eastern Washington, Idaho, and northwestern 
Montana.
    In a finer-scale analysis, the Service recently identified 
additional genetic units within the coastal and interior lineages 
(Ardren et al. 2010, In Press, p. 18). Based on a recommendation in the 
Service's 5-year review of the species' status (USFWS 2008, p. 45), the 
Service reanalyzed the 27 recovery units identified in the draft bull 
trout recovery plan (USFWS 2002) by utilizing, in part, genetic 
information from this finer-scale genetic analysis. In this 
examination, the Service applied relevant factors from the joint 
Service and NMFS Distinct Population Segment (DPS) policy (61 FR 4722; 
February 7, 1996) and subsequently identified six draft recovery units 
that contain assemblages of core areas that retain genetic and 
ecological integrity across the range of bull trout in the coterminous 
United States. These six draft recovery units were used to inform 
designation of critical habitat for bull trout by providing a context 
for deciding what habitats are essential for recovery (75 FR 63898; 
October 18, 2010). The six draft recovery units identified for bull 
trout in the coterminous United States include: Coastal, Klamath, Mid-
Columbia, Columbia Headwaters, Saint Mary, and Upper Snake.

[[Page 35981]]

    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. 
138-139; 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. 137-139; 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. 70-71], 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 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 
(USFWS 2002, Ch. 5, p. 9). Extirpation was likely caused by many of the 
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 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 DPS 
listings into one listing throughout the species' entire range in the 
coterminous United States. We published notices of availability of 
draft recovery plans 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). We published a revised final rule 
on October 18, 2010 (75 FR 63898), designating critical habitat for 
bull trout in the coterminous United States. We anticipate publishing a 
draft revised recovery plan for bull trout in the coterminous United 
States in 2011, and a final recovery plan in 2012. The recovery 
objectives from the 2002 draft recovery plan 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.
    As noted above in Biological Information, new draft recovery units 
were identified in the October 2010 bull trout critical habitat final 
rule (75 FR 63898). We anticipate these 6 recovery units will replace 
the 27 recovery units previously identified in our 2002 draft recovery 
plan (67 FR 71439; November 29, 2002), and that these new units will be 
incorporated into the revised draft recovery plan expected to be 
published for public review and comment in 2012. The recovery criteria 
specific to the 27 recovery units identified in the 2002 draft recovery 
plan continue to inform demographic recovery targets at the core area 
scale. Therefore, the criteria identified below for what was then 
described as the Willamette River Recovery Unit in the 2002 draft 
recovery plan (USFWS 2002, Ch. 5 pp. 7-8) are still relevant:
    (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

[[Page 35982]]

recovery objective 1) and will increase abundance of adult bull trout 
in the Willamette River basin (recovery criterion 2 and recovery 
objective 2 from the 2002 draft recovery plan).

Is the 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 River 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 range. 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 experimental 
population is not essential to the continued existence of the species 
in the wild, and we hereby designate the experimental population in the 
Clackamas River as a nonessential experimental population (NEP).

Location of the Nonessential Experimental Population

    The NEP area includes 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) 
upstream from its confluence with the Columbia River. This secondary 
channel runs approximately 20 river miles (32 river kilometers) 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 final rule, the Service will 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 Clackamas 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 kilometers) 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, State of Oregon (hereafter referred to as either 
the State of Oregon or the 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 
(Shively et al. 2007). 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 River 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 obtained: (1) Online at http://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp, 
(2) at http://www.regulations.gov, or (3) in person, by appointment, 
during normal business hours, at the Oregon Fish and Wildlife

[[Page 35983]]

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 identified 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 River subbasin are explained below in more 
detail.
    Diversion dams that would impede bull trout migration were present 
in the late 1800s and early 1900s, but no longer exist in the lower 
Clackamas River subbasin. 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, nongovernmental 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). No additional changes or protections regarding the operation 
and maintenance of the Clackamas River Hydroelectric Project are 
necessary to support a successful reintroduction of bull trout in the 
Clackamas River subbasin.
    The majority of lands in the upper portion of the Clackamas River 
subbasin are USFS- and Bureau of Land Management (BLM)-administered 
public forest lands. 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 established 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 NMFS listed salmon and steelhead in the Clackamas River as 
threatened under the Act (64 FR 14308, March 24, 1999; 70 FR 37160, 
June 28, 2005; 71 FR 834, 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, 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 and stocking of nonnative brook trout, no additional 
changes to angling regulations and stocking 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 composed 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. 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 latter 
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

[[Page 35984]]

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 above 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 total 
included the combined Pine Creek and Rush Creek populations that occur 
above Swift Dam. For the Deschutes River basin, it included the three 
interacting populations present in the Metolius River subbasin. Since 
2007, adult bull trout abundance in the Lewis River has declined, with 
the current number of annual spawners estimated to be approximately 536 
adults (Byrne 2010, pers. comm.). The Metolius River bull trout 
population has also declined but has still maintained a spawning 
population size greater than 1,000 adults, which is sufficiently large 
enough to protect against the loss of genetic diversity from genetic 
drift (Rieman and Allendorf 2001, p. 762). The Metolius River 
population of bull trout comprised an estimated 1,458 spawning adults 
in 2010 (Ratliff 2010, pers. comm.). Given the long-term stability and 
size of the Metolius River bull trout population, the Service has 
determined this population to be at very low risk of impact from loss 
of individuals from contribution as donor stock, and the least ``at 
risk'' of the potential donor stocks that were considered.
    This final action allows for the direct transfer of wild bull trout 
adults, subadults, juveniles, fry, and fertilized eggs 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. Details regarding the 
implementation strategy such as release sites and timing, annual 
stocking numbers, disease screening, and monitoring and evaluation are 
contained in the Implementation, Monitoring, and Evaluation Plan, which 
is appended to our final EA, and can be obtained: (1) In person at the 
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) 
and (2) online at http://www.regulations.gov or http://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp.

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 River 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) Forty-seven miles (76 kilometers) 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 kilometers) 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.
    (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 also designated the Big Bottom Protection Area (1,581 
acres) as a special management unit adjacent to the Big Bottom 
Wilderness unit.
    The Service recognizes that the provisions of PGE's Clackamas 
Settlement Agreement do not reflect the reintroduced presence of bull 
trout in the Clackamas River subbasin. However, no additional changes 
or protections regarding PGE's operation of the Clackamas River 
Hydroelectric Project are necessary to support a successful 
reintroduction of bull trout to the Clackamas River subbasin.
    The Service, ODFW, and the USFS, in cooperation with members of the 
CRBTWG, will implement and manage the reintroduction of bull trout. In 
addition, these agencies will carefully collaborate on collection and 
transportation of donor stock, releases, monitoring and evaluation, 
coordination with landowners and land managers, public awareness, and 
other tasks necessary to ensure successful reintroduction of the 
species. A few specific management considerations related to the 
experimental population are addressed below.
    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.'' Take of bull trout within the experimental population area 
will 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 (CTWSRO), such take will not be a 
violation of the Act.
    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 section 10(a)(1)(A) recovery permit.

[[Page 35985]]

    Coordination with Land Owners and Land Managers: The NEP 
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. Nothing in 
this rule requires any additional changes, protections, or mitigation 
or enhancement measures for bull trout with respect to PGE's operation 
of Project 2195 (Clackamas River Hydroelectric Project) pursuant to the 
Settlement Agreement or the new license for the Project; nor does any 
provision of this rule amend or modify the Settlement Agreement or 
require that any plan pursuant to the Settlement Agreement be modified 
to address the presence of bull trout.
    Public Awareness and Cooperation: During October and November 2008, 
in cooperation with ODFW and USFS, we conducted several NEPA scoping 
meetings on this 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 final EA, were 
included in the formulation of alternatives considered in the NEPA 
process, and were considered in this final rule designating an NEP for 
reintroduced bull trout.
    Potential impacts to other Federally listed fish species: 
Stakeholders expressed concern during development of the proposed rule 
and this final rule that predation and competition from reintroduced 
bull trout may negatively impact Federally listed anadromous salmonids, 
particularly juvenile life stages of steelhead trout, coho salmon, and 
Chinook salmon in the Clackamas River above North Fork Dam. Although 
our analysis suggests the risk to anadromous salmonids from this action 
is low, we acknowledge the uncertainty and sensitivity around this 
issue. We believe it is important to assess uncertainty using 
appropriate tools and methods and then take steps necessary to reduce 
that uncertainty to an acceptable level while recognizing that it 
cannot be eliminated entirely.
    In the development of this action, we have addressed concerns over 
predation and competition to listed anadromous salmonids by sponsoring 
an expert science panel workshop specifically to assess the potential 
impacts of a Clackamas River bull trout reintroduction on listed 
anadromous salmonids (Marcot et al. 2008). Based on stakeholder input, 
we modified our initial proposed action to reduce the number and 
maximum sizes of older life stages of bull trout for transfer, and we 
committed to tagging all fish transferred, including radio-tagging all 
older life stages the first 2 years of project implementation in part 
to monitor abundance, behavior and distribution. In addition, we 
funded, together with the USFS and PGE, a baseline food Web 
investigation in the upper Clackamas River subbasin in order to 
establish a baseline for future monitoring of food Web effects, 
particularly on salmon and steelhead, following the bull trout 
reintroduction (Lowery and Beauchamp 2010). We have also met numerous 
times during development of this final rule with our project partners 
and stakeholders to discuss monitoring actions that could be 
incorporated into the reintroduction program to reduce uncertainty and 
concern over impacts to listed anadromous salmonids.
    Adaptive management will guide how this project is implemented on 
an annual basis. The primary tool to accomplish adaptive management is 
monitoring and evaluation. The monitoring of impacts to salmon and 
steelhead will provide valuable information that will inform how the 
project is implemented in future years including numbers, life stages, 
and release locations of bull trout, as well as the disposition of 
individual fish should they be documented or observed staging near, 
within, or immediately below fish bypass systems where juvenile 
salmonids may be particularly vulnerable to predation.
    An adaptive approach provides flexibility to act in the face of 
uncertainty, is learning based, and specifies what actions are to be 
taken and when. Consistent with this approach, we developed, in 
consultation and coordination with NMFS, the State of Oregon, and other 
project partners, a Stepwise Impact Reduction Plan (SIRP), to 
facilitate management decisions associated with potential impacts from 
the bull trout reintroduction on listed anadromous salmonids.
    The purpose of the SIRP, which is described in more detail in the 
EA, is to outline a sequence of management actions that will be taken 
to minimize impacts to salmon and steelhead from the reintroduction of 
bull trout in the Clackamas River, if specific bull trout and/or 
anadromous salmonid thresholds are triggered. Management actions 
implemented under the SIRP, and the frequency of those actions, will be 
informed by: (1) The reintroduction project's monitoring and evaluation 
program, jointly implemented by the Service, ODFW, and USFS; and (2) 
the conservation status of the listed Clackamas River anadromous 
salmonid populations.
    While we believe the SIRP will provide much of the guidance 
necessary to address potential impacts to salmon and steelhead from the 
reintroduction project, we acknowledge our inability to predict all 
likely impact scenarios and appropriate management responses. To that 
end, we anticipate the SIRP will be modified as necessary, in 
consultation and coordination with NMFS, the State of Oregon, and other 
project partners, consistent with the overall adaptive management of 
the project.
    Our analysis (USFWS 2010, pp. 109-131) indicated a low likelihood 
for population-level impacts to Federally listed salmon and steelhead 
populations. However if the Service determines, in consultation and 
coordination with the State of Oregon, NMFS and other project partners, 
and based on project monitoring and evaluation, 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. The Service initiated 
formal consultation with NMFS pursuant to section 7(a)(2) of the Act in 
December 2010 (USFWS 2010) and will ensure section 7(a)(2) compliance 
prior to releasing bull trout into the Clackamas River.
    Adaptive Management: A key component of our proposed action is the 
adaptive management of the bull trout reintroduction project, ranging 
from the annual numbers, life stages, and collection methods of the 
donor stock, to the locations and timing of translocations 
(implementation strategy), and finally the management of bull trout in 
the Clackamas River relative to their potential impact on threatened 
salmon and steelhead. Our goal with this approach is to implement the 
project most effectively, while assuring no harm to the donor stock and 
limiting negative impacts to other listed species in the Clackamas 
River subbasin.
    The adaptive management of the bull trout reintroduction project 
will be based in part on guidance provided in the Department of the 
Interior's technical guide to adaptive management (USDI 2009). The 
guidance defines adaptive management as a decision process that 
promotes flexible

[[Page 35986]]

decisionmaking that can be adjusted in the face of uncertainties as 
outcomes from management actions and other events become better 
understood. Careful monitoring of these outcomes both advances 
scientific understanding and helps adjust policies or operations as 
part of an iterative learning process. Adaptive management also 
recognizes the importance of natural variability in contributing to 
ecological resilience and productivity. It is not a ``trial and error'' 
process, but rather emphasizes learning while doing. Adaptive 
management does not represent an end in itself, but rather is a means 
to more effective decisions and enhanced benefits. Its true measure is 
in how well it helps meet environmental, social, and economic goals, 
increases scientific knowledge, and reduces tensions among stakeholders 
(USDI 2009).
    Monitoring and evaluation will inform the adaptive management of 
this project, including the appropriate management of this experimental 
population of bull trout both during the period they are being 
reintroduced and post-project if we are successful in reestablishing a 
self-sustaining population in the Clackamas River.

Monitoring and Evaluation

    Acknowledging the limited availability of information on fish 
introductions and reintroductions (Seddon et al. 2007, p. 305), the 
Service and our project partners adopted a goal early in project 
development to document, learn about, and report on all the major 
phases of the project beginning with our feasibility assessment 
(Shively et al. 2007; Dunham and Gallo 2008) and extending through 
project planning, development, and implementation. One of the most 
critical aspects of this goal is to document the effectiveness of the 
reintroduction by evaluating components of the implementation strategy, 
including the utilization of habitats chosen for release of 
individuals, the numbers and life stages of donor stock, the genetic 
health of the recipient population, documentation of reproduction and 
recruitment, and ultimately the establishment of a self-sustaining bull 
trout population.
    In order to document and adaptively manage the project, a robust 
monitoring and evaluation program is necessary. Along with other 
project documentation, we expect information gained from the monitoring 
and evaluation program will contribute significantly to other fish 
reintroductions, and specifically bull trout recovery projects that we 
anticipate will occur across the species' range consistent with 
recovery guidance for the species (USFWS 2002, Ch. 1). The monitoring 
and evaluation program, detailed in the Implementation, Monitoring, and 
Evaluation Plan appended to the final EA, has three major goals: (1) 
Monitor and evaluate bull trout reintroduction effectiveness, (2) 
monitor and evaluate donor population status, and (3) monitor and 
evaluate impacts to listed anadromous salmonids. These three major 
components are summarized below:
    Reintroduction Effectiveness Monitoring: The objectives of the 
effectiveness monitoring program for phase 1 of the project (2011-2017) 
are to assess: (1) Distribution and movement, (2) relative survival of 
translocated bull trout by monitoring presence and absence, (3) 
occurrence of spawning and reproduction, and (4) genetic health (as 
measured against the donor population). Successful reproduction in 
phase one of the project (2011-2017) would logically result in the 
incorporation of a monitoring component directed at assessing the 
distribution, movement, growth, and survival of the initial cohorts of 
naturally produced bull trout. Monitoring activities in phase 2 (2018-
2024) and phase 3 (2025-2030) will be informed by phase 1 monitoring 
and evaluation. Effectiveness monitoring of the project will be 
conducted jointly by the Service and ODFW, with assistance from the 
USFS and potentially U.S. Geological Survey (USGS) and the University 
of Washington.
    Donor Population Monitoring: We intend to monitor donor stock 
status annually to determine if the population is free of pathogens of 
concern, and to ensure the population maintains a minimum threshold of 
spawning adults to contribute as a donor stock to the Clackamas River 
bull trout reintroduction project. Bull trout in the Metolius River are 
monitored primarily by annual full census redd counts. These counts are 
conducted by ODFW, CTWSRO, USFS, PGE, and Service staff. In addition to 
the genetic monitoring of the recipient bull trout population in the 
Clackamas River subbasin, we will also replicate the Metolius River 
bull trout genetic health assessment (DeHaan et al. 2008) on the donor 
stock at an appropriate interval to ensure the loss of individuals via 
contribution toward the Clackamas River reintroduction is not impacting 
the genetic health of the Metolius River donor stock.
    Monitoring Impacts to Anadromous Salmonids: The monitoring of 
potential impacts to juvenile anadromous salmonids will generally focus 
on PGE's Clackamas Hydroelectric Project area. Juvenile salmonids 
utilize project reservoirs, especially North Fork Reservoir, for 
rearing. Fish collection facilities that aid downstream migration of 
salmon and steelhead juveniles necessarily concentrate the fish, 
increasing their vulnerability to predation and the potential for them 
to avoid collection facilities due to the presence of a predator. These 
areas of increased vulnerability for anadromous juveniles are also 
areas where we expect to be better able to detect a behavioral response 
caused by bull trout, relative to areas upstream of North Fork 
Reservoir or in the lower Clackamas River below River Mill Dam. We 
developed this monitoring component with the intent of reducing 
uncertainty and informing future management decisions associated with 
the bull trout reintroduction program.
    In order to assess impacts to listed anadromous salmonids we 
propose to: (1) Determine if adult and subadult bull trout occupy areas 
within the PGE hydroelectric project during periods in which they could 
consume particularly high numbers of rearing or migrating juvenile 
salmon and steelhead; (2) if so, determine if survival rates are 
affected for listed anadromous salmonid juveniles rearing in, or moving 
through the PGE hydroelectric project area; and (3) determine the 
degree to which bull trout are responsible for such impacts by using 
field data, bioenergetics, and life-cycle modeling. Monitoring of 
impacts to anadromous salmonids will be conducted by the Service and 
ODFW, with possible assistance from USGS, PGE, University of 
Washington, and the National Oceanic and Atmospheric Administration's 
Northwest Fisheries Science Center (NOAA-NWFSC).

Summary of Comments and Responses

    We requested written comments from the public on the proposed rule 
and draft EA published on December 9, 2009 (74 FR 65045). We also 
contacted the appropriate Federal, State, and local agencies; Tribes; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule. The comment period was open from 
December 9, 2009, to February 10, 2010.
    We reviewed all comments received for substantive issues and new 
information regarding the proposed NEP. Substantive comments received 
during the comment period have either been addressed below or 
incorporated directly into this final rule.
    We received comments from eight parties, including comments from 
natural resource management agencies, not-for-profit organizations, and 
private

[[Page 35987]]

entities. All commenters specifically expressed support for the 
reestablishment of the bull trout in the Clackamas River although three 
of the eight commenters expressed concerns regarding potential impacts 
to Federally threatened salmon and steelhead present in the Clackamas 
River.

Public Comments

    (1) Comment: Several commenters suggested reintroduction of bull 
trout to the Clackamas River under section 10(j) of the Act may not 
provide ample protection to ensure the long-term viability of the 
population, and encouraged the Service to reintroduce bull trout to the 
Clackamas River under full protections of the Act, along with 
designated critical habitat.
    Our Response: 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 pursuant to section 4(d) of the Act. 
The protective regulations adopted for an experimental population will 
contain applicable prohibitions, as appropriate, and exceptions for 
that population. In addition, before authorizing the release of an 
experimental population (including eggs, propagules, or individuals) of 
an endangered or threatened species, the Service must consider the 
extent to which the introduced population may be affected by existing 
and anticipated Federal or State actions or private activities within 
or adjacent to the experimental population area.
    We have assessed existing or anticipated Federal or State actions 
and private activities within or adjacent to the experimental 
population area and, along with the applicable prohibitions in this 
final rule, we have determined these actions to be compatible with, and 
protective of, a reestablished population of bull trout in the 
Clackamas River. We believe, based on this assessment, that the 
protective regulations adopted by this rule are appropriate and provide 
adequate protections for a reintroduced population of bull trout.
    Lastly, 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 but not for a nonessential population.
    (2) Comment: One commenter suggested reintroductions of bull trout 
to historical habitat are essential for the continued survival of the 
species, and thus encouraged the Service to designate the experimental 
population in the Clackamas River as an ``essential'' population under 
the Act, rather than a ``nonessential'' population.
    Our Response: We have determined that restoring bull trout to the 
Clackamas River is not essential to the continued existence of the 
species. We maintain that releasing bull trout under the section 10(j) 
NEP provision of the Act is the most appropriate way to achieve 
conservation for this species in the Clackamas River and that this 
action is consistent with the purposes of the Act.
    (3) Comment: One commenter suggested that the Service should 
consider removing the ``experimental nonessential'' designation under 
section 10(j) of the Act if the bull trout reintroduction project is 
successful.
    Our Response: Our intent is for the section10(j) rule to remain in 
place until the status of the species improves to a point where listing 
is no longer necessary. Section 10(j) of the Act does not give us the 
authority to ``permanently'' declare an NEP. However, we have made it 
clear that it is not our intention to change this designation until the 
species meets the requirements for delisting, and we currently do not 
anticipate that any circumstances would warrant changing this 
designation. The proposed rule and this final rule contain language on 
this subject found in 50 CFR 17.85(a)(1)(iii), specifically: ``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. 
539(j)(2)(C)(ii).''
    (4) Comment: Several commenters noted the lack of quantitative 
information on the distribution, abundance, and diversity of the native 
fish community in the upper Clackamas River and suggested the Service 
conduct an assessment prior to implementing the bull trout 
reintroduction project to affirm the sufficiency of a prey base to 
support the reestablishment of a viable bull trout population.
    Our Response: We agree there is limited quantitative information on 
the native fish community in the upper Clackamas River. However, upper 
Clackamas River baseline foodweb surveys that were conducted in 
association with the action considered in this final rule (Lowery and 
Beauchamp 2010), along with an abundance of qualitative information 
collected by the USFS and State of Oregon (Shively et al. 2007, 
Appendix F, p. 24), confirm the full complement of native species 
(except for bull trout) in the upper Clackamas River. There is no 
evidence to suggest the upper Clackamas River forage base would not 
compare favorably with the abundance, distribution, and diversity of 
native fishes found in other major subbasins in the lower Columbia 
River that support viable populations of bull trout, including the 
McKenzie, Lewis, and Deschutes rivers. Although historical reductions 
in the anadromous forage base in the Clackamas River may have 
negatively impacted the historical bull trout population, as noted 
above in Biological Information, the primary factors leading to the 
extirpation of bull trout in the Clackamas River were 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).
    (5) Comment: In order to minimize and offset potential impacts to 
anadromous salmon and steelhead from bull trout predation and 
competition, one commenter suggested initiating habitat improvement 
actions such as adding refuge cover and distributing excess hatchery 
salmon and steelhead carcasses into the upper Clackamas River to 
increase marine-derived nutrients and stream productivity.
    Our Response: Although we do not anticipate significant impacts 
from bull trout on threatened salmon and steelhead, if our monitoring 
program indicates bull trout are having population-level impacts, the 
Service and our project partners will implement actions to minimize and 
offset these impacts. While these actions may include habitat 
restoration projects such as those recommended, the most immediate 
management actions to reduce impacts will be modification of the bull 
trout reintroduction implementation strategy such as the numbers, life-
stages, and locations of releases, and removal of individual bull trout 
if they are found occupying areas that artificially concentrate 
juvenile salmon and steelhead such as fish passage facilities 
associated with the Clackamas Hydroelectric Project.
    (6) Comment: One commenter noted the presence of nonnative brook 
trout in a small portion of the suitable habitat identified for bull 
trout reintroduction, and suggested that they should be eradicated in 
order to prevent hybridization and competition with reintroduced bull 
trout.

[[Page 35988]]

    Our Response: While we agree that nonnative brook trout can 
negatively affect bull trout through hybridization, predation, and 
competition, our literature review on the subject for the Clackamas 
Bull Trout Reintroduction Feasibility Assessment (Shively et al. 2007, 
Ch. 4. pp. 1-2) suggests negative effects are variable across the range 
these two species overlap. In some places, brook trout appear to have a 
strong negative impact, whereas in others there is no apparent impact 
(Dunham et al. 2002, pp. 384-385). The influence of nonnative brook 
trout on bull trout may depend in part on local habitat features. Rich 
et al. (2003, pp. 1059-1061) examined the influence of habitat features 
on the distribution and co-occurrence of nonnative brook trout and bull 
trout. This study suggested that bull trout and brook trout may 
partition themselves naturally based on habitat type and stream 
temperature, and that bull trout may be more susceptible to brook trout 
invasion in small, low-gradient streams where brook trout may have a 
competitive advantage (Paul and Post 2001, pp. 424-428). In areas of 
clean, cold water with complex habitat, bull trout may successfully 
compete with brook trout (Rieman et al. 2005, pp. 72-76).
    Although systematic quantitative surveys for brook trout have not 
occurred in the upper Clackamas River, stream surveys and biological 
inventories by the USFS over the last several decades provide a 
reliable source for documenting observations of brook trout in 
particular river segments and streams (Shively et al. 2007, Appendix F, 
p. 24). Brook trout are present in a small portion of the habitat 
identified as suitable for bull trout reintroduction (less than 10 
percent) in the upper Clackamas River (Shively et al. 2007, Ch. 4. p. 
2). Given their limited distribution in the upper Clackamas River, we 
do not anticipate brook trout will adversely affect the success of this 
reintroduction project. Further, while we support the goal of 
eradication of nonnative species, our assessment of the feasibility of 
eradication of brook trout in the upper Clackamas River suggests the 
likelihood of complete eradication is low and the cost would likely be 
high. Consequently, it is unlikely we will pursue eradication efforts 
in the foreseeable future.
    (7) Comment: Several commenters requested that the Federal 
rulemaking cause no additional requirements of Portland General 
Electric above and beyond those currently outlined in the multiparty 
settlement agreement for relicensing of the Clackamas Hydroelectric 
Project, nor that any potential ecological effects from the bull trout 
reintroduction project in and of itself trigger mitigation requirements 
outlined in the agreement.
    Our Response: Language in the proposed rule was intended to convey 
our position on this issue, consistent with the request above. This 
final rule and the above background discussion in ``Addressing Causes 
of Extirpation'' contains additional language in several sections to 
clarify our support for this request. See also our response to Comment 
9 below.
    (8) Comment: One commenter indicated that the Draft Implementation, 
Monitoring and Evaluation Plan, appended to the draft EA, lacked 
detailed information and should be expanded. The same commenter 
suggested the monitoring portion of the draft plan did not provide 
adequate information for decisionmaking.
    Our Response: While the general implementation strategy (transfer 
numbers, life stages, donor stock, release locations) has not changed 
from that outlined in the proposed rule and draft EA, the Service and 
our project partners have added specificity to the implementation 
component of the plan. Similarly, and based strongly on comments 
received on the proposed rule and draft EA, we developed a robust 
monitoring and evaluation component of the plan to document the 
effectiveness of the reintroduction, assess potential impacts to the 
bull trout donor stock in the Metolius River, and assess potential 
impacts to threatened salmon and steelhead. The monitoring and 
evaluation program, which will begin immediately upon initiation of the 
project, will feed directly into the adaptive management of the 
reintroduction project. Given the level of detail that has been added 
to the Implementation, Monitoring and Evaluation Plan since publication 
of the proposed rule and draft EA, we are confident the plan has 
sufficient detail to appropriately guide the project and provide 
necessary information for decisionmaking. The monitoring program is 
summarized above in the Monitoring and Evaluation section of this final 
rule and is appended to the final EA as a component of the 
Implementation, Monitoring, and Evaluation Plan. See also our response 
to Comment 12 below.
    (9) Comment: One commenter suggested that the draft EA was 
insufficient and suggested the action proposed may warrant the 
development of an Environmental Impact Statement (EIS) due to the 
possibility of significant impacts to the Clackamas Hydroelectric 
Project settlement agreement and to Federally threatened salmon and 
steelhead through competition and predation by bull trout.
    Our Response: An EIS is required only when a project is a major 
Federal action with significant impact(s) to the human environment, or 
alternatively where there is substantial controversy surrounding the 
potential for significant impacts to the human environment, such that 
the more limited analysis in an EA to support a ``Finding of No 
Significant Impact (FONSI)'' may not be appropriate. If an EA fully 
considers the potential direct, indirect and cumulative impacts of the 
project and that analysis is sufficient in reaching a FONSI, then the 
preparation of an EIS is not warranted. Our analysis in the EA did not 
suggest a likelihood of significant environmental effects; nor did it 
identify substantial controversy surrounding the potential for 
significant impacts to the human environment.
    Scoping and public comments identified concerns with potential 
impacts to the Clackamas River hydroelectric project settlement 
agreement, as well as to salmon and steelhead populations from 
predation and competition by bull trout. We have addressed these 
concerns by: (1) Including clarifying language in several sections of 
this final rule and the final EA, (2) modifying components of the 
proposed action, and (3) developing a Stepwise Impact Reduction Plan as 
part of our adaptive management program to reduce risk and uncertainty 
with regards to impacts to listed anadromous salmonids, and to guide 
management of a Clackamas River bull trout population and future 
implementation of the project.
    As noted elsewhere in this final rule, the designation of an NEP 
population of bull trout in the Clackamas River will not cause 
additional requirements of Portland General Electric above and beyond 
those currently outlined in the multiparty settlement agreement for 
relicensing of the Clackamas Hydroelectric Project, nor will any 
potential ecological effects from the bull trout reintroduction project 
in and of itself trigger mitigation requirements outlined in the 
agreement. While we acknowledge some uncertainty around the 
interactions between bull trout and anadromous salmon and steelhead, 
the preponderance of information does not suggest that significant 
population- level impacts will occur.
    (10) Comment: One commenter suggested the adaptive management plan 
for the action lacked detail and needed improvement.
    Our Response: We agree. As a result we added substantially to the 
adaptive

[[Page 35989]]

management plan for the action considered in this final rule. Most 
notably, we incorporated recommendations provided in the Department of 
the Interior's technical guidance manual on adaptive management (USDI 
2009), and we developed a Stepwise Impact Reduction Plan specifically 
to assist in management decisions associated with potential impacts 
from the reintroduction of bull trout on threatened salmon and 
steelhead in the Clackamas River. Recommendations adopted from the 
Department of the Interior's technical manual on adaptive management, 
and the Stepwise Impact Reduction Plan to address potential impacts to 
threatened salmon and steelhead, are summarized in this final rule 
above in Potential impacts to other Federally listed fish species, and 
are presented in more detail in the final EA.
    (11) Comment: One commenter suggested that the Service had not 
adequately consulted with the individual in developing the proposed 
rule per the procedural requirements of experimental population 
regulations, and further, that the proposed rule did not represent the 
required agreement between the Service and affected State and Federal 
agencies, and persons holding any interest in land that may be affected 
by the establishment of an experimental population.
    Our Response: 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, section 10(j) rules represent an agreement 
between the Service, the affected State and Federal agencies, and 
persons holding any interest in land that may be affected by the 
establishment of an experimental population.
    The language above does not require the Service to agree on all 
issues and concerns, nor are we required to have full agreement from 
potentially affected local, State, Federal, and private partners prior 
to finalizing section 10(j) experimental population rules. In 
development of the proposed and final rule, we coordinated closely with 
the appropriate State fish and wildlife agencies, local governmental 
entities, affected Federal agencies, and affected private landowners, 
to resolve as many concerns as possible. In addition, we assembled 
management and technical committees with representation from all major 
stakeholders in the reintroduction, to further ensure we addressed as 
many concerns as possible prior to finalization of the final rule. 
Given these efforts, it is clear that we have complied with the 
requirements of section 10(j) of the Act in the development of the 
proposed rule and this final rule. As during the development of this 
action, we are committed to working with project partners and 
stakeholders during and following implementation of the reintroduction 
to address concerns that may arise.
    (12) Comment: Several commenters suggested that the assessment of 
potential impacts to threatened salmon and steelhead from the bull 
trout reintroduction was inadequate and suggested a more thorough risk 
assessment prior to implementing the project.
    Our Response: While we disagree that our pre-project assessment of 
potential impacts to threatened salmon and steelhead was inadequate, we 
do recognize the concern for the recovery of these species in the 
Clackamas River and for their respective evolutionarily significant 
units/distinct population segments. In recognition of those concerns 
the Service has invested, and will continue to invest, significant 
resources toward assessing potential impacts from the bull trout 
reintroduction on salmon and steelhead in the Clackamas River.
    The expert science panel workshop (Marcot et al. 2008), the final 
report of which was appended to the draft EA, was conceived and 
implemented precisely to investigate the potential impact of a bull 
trout reintroduction on threatened salmon and steelhead in the 
Clackamas River. In addition, we funded, together with our primary 
project partners and stakeholders, a pre-project baseline food Web 
investigation in the upper Clackamas River subbasin specifically to 
allow for greater precision in determining impacts to salmon and 
steelhead from bull trout during and following the reintroduction. 
Finally, a large component of our monitoring and evaluation program is 
designed to investigate impacts on salmon and steelhead.
    (13) Comment: One commenter suggested the draft EA did not 
adequately consider the ability and capacity of the Clackamas River to 
support a reintroduced population of bull trout and as a result, the 
proposed reintroduction strategy is overly aggressive and population 
goals likely unattainable. The same commenter recommended that the 
Service modify the implementation strategy to eliminate the use of 
older life stages of bull trout to minimize the chance of exceeding the 
carrying capacity of the Clackamas River.
    Our Response: The draft EA and proposed rule both summarized the 
conclusions of the feasibility assessment (Shively et al. 2007), which 
found that a reintroduction of bull trout to the Clackamas River is 
biologically feasible based in large part on habitat suitability for 
spawning and early juvenile rearing, reduction and elimination of 
threats that led to extirpation, and availability of a suitable donor 
stock. The amount and type of suitable habitat, as well as the 
available forage base, compares favorably to other river systems in the 
lower Columbia River with extant bull trout populations, such as the 
McKenzie, Lewis, and Deschutes rivers. The feasibility assessment 
(Shively et al. 2007), the conclusions of which were presented in the 
draft EA, clearly considered the ability and capacity of the Clackamas 
River to support a reintroduced population of bull trout.
    The goal of the project is to reestablish a self-sustaining bull 
trout population of 300-500 spawning adults in the Clackamas River by 
2030 that contributes to the recovery of bull trout in the Willamette 
basin and to overall recovery criteria outlined in the Service's 2002 
draft recovery plan (USFWS 2002, Chapter 1, p. v). For this project we 
define a self-sustaining population as one that maintains a minimum 
adult annual spawner abundance of 100 individuals, contains a high 
level of genetic diversity representative of the donor stock, and 
requires little or no additional transfers. The numerical goal of 300-
500 adult spawners is consistent with 2002 draft recovery planning 
targets for bull trout abundance in the Clackamas River subbasin. 
Although the amount of suitable habitat in the Clackamas River suggests 
there is sufficient capacity to support a population of this size, bull 
trout distribution across the species' range, even within areas of 
suitable habitat, is patchy; thus, the true capacity of the Clackamas 
River subbasin is unknown.
    The Service and our project partners view the inclusion of older 
life stages of bull trout in the implementation strategy as an 
important component of the project. In addition, we believe that, given 
the limited number of these older-aged individuals that will be 
transferred, the risk of exceeding the carrying capacity of the 
Clackamas River is extremely low. We chose to use multiple life stages 
of bull trout in order to maximize our likelihood of success with the 
reintroduction, and to test whether older life stages of bull trout 
could be successfully moved from one

[[Page 35990]]

major watershed to another to promote reestablishment of extirpated 
populations in a less intensive and more timely effort than would occur 
if only fertilized eggs, fry, or juveniles were used. However, we 
acknowledge the uncertainty regarding whether translocated subadult and 
adult bull trout will adapt to the Clackamas River and contribute to 
successful natural reproduction. In response to this uncertainty, we 
plan to intensively monitor the behavior, distribution, movement, and 
reproductive success of these older life stages over the first 2 years 
of the project by utilizing passive integrated transponder tag and 
radio tag technology. Continued transfer of older life stages beyond 
the second year of the project would occur only if monitoring and 
evaluation indicates the translocated older life stages are adapting to 
the Clackamas River and contributing to successful natural 
reproduction.
    (14) Comment: One commenter expressed concern with potential 
predation and competition impacts to threatened salmon and steelhead in 
the Clackamas River from reintroduced bull trout. In order to 
facilitate future management of the reintroduction project, and if 
successful, the bull trout population, the commenter recommended that 
the Service work with the State (Oregon Department of Fish and 
Wildlife) and National Marine Fisheries Service (NMFS) to assess and 
define an acceptable level of impact on salmon and steelhead.
    Our Response: We support this recommendation. This Federal action 
requires that we formally consult with NMFS under section 7 of the Act 
due to potential impacts to Federally threatened salmon and steelhead 
under their jurisdiction. The Service initiated formal consultation 
with NMFS pursuant to section 7(a)(2) of the Act in December 2010 
(USFWS 2010) and will ensure section 7(a)(2) compliance prior to 
releasing bull trout into the Clackamas River. This Federal action also 
required an amendment to the State's Clackamas River Subbasin Plan to 
include the reintroduction of bull trout (ODFW 2010); this process 
required a review of the project by the State's Fish and Wildlife 
Commission, who voted unanimously in September 2010 to support the 
action and the plan amendment. These two actions acknowledge the formal 
administrative role the State of Oregon and NMFS have had in the review 
of this Federal action. And just as importantly, the State of Oregon 
and NMFS have had full representation in the multiyear planning of this 
effort through the Clackamas Bull Trout Working Group, as well as the 
project's Manager's Committee and several technical committees.
    The State and NMFS are jointly developing a formal recovery plan 
for the threatened salmon and steelhead in the lower Columbia River, 
which includes the threatened species of salmon and steelhead found in 
the Clackamas River. The current draft recovery plan, and the 
information utilized in development of the draft plan, does not include 
information that would allow the Service to define an ``acceptable 
level of impact'' as applied to recovery planning objectives for 
threatened salmon and steelhead. We expect NMFS may conduct this type 
of analysis as part of the section 7 consultation process in response 
to the biological assessment we submitted in December 2010.
    Independent of the formal consultation process with NMFS, we have 
initiated discussions with technical staff from NMFS NW Region Science 
Center and the U.S. Geological Survey (USGS) to investigate the 
feasibility and utility of life-cycle and bioenergetics modeling to 
better predict the potential influence of the bull trout reintroduction 
project on threatened salmon and steelhead in the Clackamas River. We 
are committed to working closely with the State of Oregon, NMFS, and 
other project partners and stakeholders during and following project 
implementation to assess the potential impact of the bull trout 
reintroduction on threatened salmon and steelhead in the Clackamas 
River.

Findings

    We followed the procedures required by the Act, NEPA, and the 
Administrative Procedure Act during this Federal rulemaking process. We 
solicited public comment on the proposed NEP designation. We have 
considered all comments received on the proposed rule and the draft EA 
before making this final determination. Based on the above information, 
and using the best scientific and commercial data available (in 
accordance with 50 CFR 17.81), we find 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.

Effective Date

    The Director has determined, pursuant to 5 U.S.C. 553(d)(3), that 
the agency has good cause to make this rule effective upon publication. 
The Service has previously provided an opportunity for public comment 
on the rule, and has consulted extensively with involved stakeholders. 
In addition, the seasonal window for implementing this reintroduction 
project is driven by the biology of the species. Collection of donor 
stock is best accomplished during the late spring and early summer when 
fish are most vulnerable to capture techniques, and late spring/early 
summer outplanting of donor stock is preferred given that seasonal 
productivity of aquatic systems is high that time of year and donor 
stock would be expected to have higher survival than if outplanted at 
other times of the year. In making this final rule effective 
immediately upon publication, it increases the likelihood that the 
Service and our primary partners will be able to successfully implement 
this project during the preferred window for implementation in 2011.

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

[[Page 35991]]

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 final 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.
    The area affected by this rule includes the Clackamas River 
subbasin and the mainstem of the Willamette River, from 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, 
hydropower generation, 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)) of the Act. In these instances, 
NEPs provide additional flexibility because Federal agencies are not 
required to consult with us under section 7(a)(2) of the Act. Section 
7(a)(1) of the Act requires Federal agencies to use their authorities 
to further the conservation of listed species. Section 7(a)(4) of the 
Act 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, hydropower 
generation, 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, 
hydropower generation, 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 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 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 (76 FR 6733), this final 
rule does not have significant takings implications. This rule allows 
for the take 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 any economically 
beneficial or productive use of the land or aquatic resources. This 
rule would substantially advance a legitimate public 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 (70 FR 23775), we have 
considered whether this final 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 final 
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

[[Page 35992]]

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 final special rule 
operates to maintain the existing relationship between the State and 
the Federal governments and is being undertaken in coordination with 
the State of Oregon. We have cooperated with ODFW in the preparation of 
this final rule. Therefore, this final 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 meets 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 final 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 rule. 
Based on this analysis and information resulting from public comment on 
the proposed action, we determined that this action will not have 
significant impacts or effects. We have prepared a final EA on this 
action, which is 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 were finalized 
before this rule was finalized.

Government-to-Government Relationship With Tribes

    In accordance with the presidential memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 229511), Executive Order 13175 (65 FR 67249), 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 within the exterior boundaries of the reservation of the 
Confederated Tribes of the Warm Springs Reservation (CTWSRO). 
Furthermore, donor stock for the reintroduction will, in part, 
originate from a section of the Metolius River located within the 
exterior boundary of the CTWSRO reservation. Since 2007, the CTWSRO has 
been an active participant in the CRBTWG discussions on bull trout 
recovery in the Clackamas River basin. In August 2010, the CTWSRO 
Tribal Council passed a resolution supporting the utilization of bull 
trout from the Metolius River subbasin as donor stock for the Clackamas 
River bull trout reintroduction project. The resolution requested the 
Service and project partners consult with the CTWSRO on an annual basis 
regarding utilization of bull trout for the Clackamas reintroduction, 
and further, that annual schedules for donor stock collection, 
including locations, methodologies, precise numbers to be collected, 
and dates of collections, be coordinated with staff from the CTWSRO 
Natural Resources Program. The Service will continue to consult, on a 
government-to-government basis, with the CTWSRO for the duration of 
this Federal action.

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

    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.

References Cited

    A complete list of all references cited in this final rule is 
available at http://www.regulations.gov or upon request from the Oregon 
Fish and Wildlife Office (see ADDRESSES).

Author

    The primary author of this final rule is Chris Allen of the Oregon 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
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.


0
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) * * *

[[Page 35993]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        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.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.84 by adding a new paragraph (w) to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (w) Bull Trout (Salvelinus confluentus).
    (1) Where are populations of this fish designated as nonessential 
experimental populations (NEPs)?
    (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 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 designation 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.
    (C) Consistent with Oregon Department of Fish and Wildlife (ODFW) 
fishing regulations that have been coordinated with the Service, if due 
to fishing.
    (D) Incidental to any activities related to or associated with the 
operation and maintenance of the Clackamas River Hydroelectric Project 
(FERC Project No. 2195) by Portland General Electric (PGE) as 
administered under a license issued by FERC. Acceptable forms of taking 
of bull trout include, but are not limited to, mortality, stranding, 
injury, impingement and entrainment at project facilities, or delay in 
up- or downstream passage associated with or caused by any of the 
following activities. Activities related to the operation and 
maintenance of Project 2195 include, but are not limited to:
    (1) Hydroelectric generation at any project facility;
    (2) Maintenance of project facilities;
    (3) Provision of upstream and downstream fish passage, whether 
through fish passage facilities, powerhouses, bypass facilities, bypass 
reaches, or spillways;
    (4) Fish handling at fish separation and counting facilities;
    (5) Fish removal from fish passage facilities and areas critical to 
downstream migrant passage testing at the time of testing (Bull trout 
removed for this testing do not need to be returned to the Clackamas 
River subbasin.);
    (6) Fish conservation activities;
    (7) Fish handling, tagging, and sampling in connection with FERC-
approved studies; and
    (8) Approved resource protection, mitigation, and enhancement 
measures.
    (E) Consistent with the adaptive management process identified for 
this project including:
    (1) The targeted relocation or possible removal of bull trout by 
the Service or our project partners, if bull trout are documented 
staging at the entrance to, within, or below, juvenile fish passage 
facilities within the Clackamas Hydroelectric Project; and
    (2) Discontinuation of the reintroduction project and complete 
removal of bull trout from the Clackamas River if the Service 
determines, in consultation and coordination with the State of Oregon,

[[Page 35994]]

NMFS, and other project partners, and based on project monitoring and 
evaluation, that the reintroduction efforts cannot be carried out in a 
manner consistent with the recovery of threatened salmon and steelhead.
    (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 (w)(2) of this 
section, all the provisions of Sec.  17.31(a) and (b) apply to the fish 
identified in paragraph (w)(1) of this section.
    (ii) Any manner of take not described under paragraph (w)(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 River subbasin 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) A person 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 (w)(2) of this section, or in violation 
of the applicable State fish and wildlife laws or regulations or the 
Act.
    (iv) A person may not attempt to commit, solicit another to commit, 
or cause to be committed any offense except the take expressly allowed 
in paragraph (w)(2) of this section.
    (4) How will the effectiveness of the reestablishment be monitored?
    (i) Effectiveness monitoring of the project will be conducted 
jointly by the Service and ODFW, with assistance from the U.S. Forest 
Service (USFS) and PGE.
    (ii) We will monitor the effectiveness of the reintroduction during 
phase 1 of the project (2011-2017) by annually assessing: Distribution 
and movement, relative survival of translocated bull trout via presence 
and absence surveys, occurrence of spawning and reproduction, and 
genetic health, as measured against the donor population. These 
monitoring objectives will be accomplished by methodologies that 
include Passive Integrated Transponder (PIT) tagging of all fish 
translocated to the Clackamas River, radio tagging of the adult and 
subadult life stages, snorkel surveys, redd surveys, and minnow 
trapping.
    (iii) If successful reproduction of reintroduced bull trout is 
detected, we will incorporate monitoring to assess the distribution, 
movement, growth, and survival of the initial cohorts of naturally 
produced bull trout.
    (iv) Monitoring activities in phase 2 (2018-2024) and phase 3 
(2025-2030) will be informed by phase 1 monitoring and evaluation.
    (v) Annual reports that summarize the implementation and monitoring 
activities that occurred the previous year will be collaboratively 
developed by the Service, ODFW, and USFS.
    (vi) We will evaluate the implementation strategy annually, and we 
will evaluate the reestablishment effort at the completion of phase 1 
to determine whether to continue translocation of bull trout in phase 
2.
    (5) What safeguards are in place to ensure the protection of 
Federally listed salmon and steelhead in the NEP area?
    (i) In consultation and coordination with the National Marine 
Fisheries Service (NMFS) and other project partners, we have developed 
a plan to facilitate management decisions associated with potential 
impacts from the bull trout reintroduction on listed anadromous 
salmonids. If specific bull trout and/or anadromous salmonid thresholds 
are triggered, we will follow the planned management actions to 
minimize impacts to salmon and steelhead from the reintroduction of 
bull trout in the Clackamas River.
    (ii) Our management actions implemented and the frequency of those 
actions, will be informed by:
    (A) The reintroduction project's monitoring and evaluation program, 
jointly implemented by the Service, ODFW, and USFS; and
    (B) The conservation status of the listed Clackamas River 
anadromous salmonid populations.
    (iii) Because we cannot predict all likely impact scenarios and 
appropriate management responses, we will modify our plan as necessary, 
in consultation and coordination with NMFS, ODFW, and other project 
partners, consistent with the overall adaptive management of the 
project.
    (iv) Although our analysis indicates a low likelihood for 
population-level impacts to Federally listed salmon and steelhead 
populations, if the Service determines, in consultation and 
coordination with the State of Oregon, NMFS, and other project 
partners, and based on project monitoring and evaluation, 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.
    (v) Prior to releasing bull trout into the Clackamas River, the 
Service will complete any required interagency cooperation with NMFS 
pursuant to section 7(a)(2) of the Act.
    (6) Note: Map of the NEP area for bull trout in Oregon follows:
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[[Page 35995]]

[GRAPHIC] [TIFF OMITTED] TR21JN11.026


    Dated: June 13, 2011.
Rachel Jacobsen,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-15370 Filed 6-20-11; 8:45 am]
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