[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Rules and Regulations]
[Pages 2893-2907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00700]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 110427267-2708-02]
RIN 0648-BB04


Endangered and Threatened Species: Designation of a Nonessential 
Experimental Population for Middle Columbia River Steelhead above the 
Pelton Round Butte Hydroelectric Project in the Deschutes River Basin, 
OR

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing 
a final rule to authorize the continued release of Middle Columbia 
River (MCR) steelhead (Oncorhynchus mykiss) that are currently being 
reintroduced as part of an ongoing reintroduction effort into the upper 
Deschutes River basin in portions of Jefferson, Crook, and Deschutes 
Counties, Oregon, and designate them as a nonessential experimental 
population (NEP) under the Endangered Species Act (ESA) of 1973. The 
geographic boundaries of the NEP extend upstream from Round Butte Dam 
on the Deschutes River (about river mile (RM) 110, river kilometer 
(rkm) 177) and all accessible reaches of the Deschutes River and its 
tributary Whychus Creek; on the Crooked River from its confluence with 
the Deschutes River upstream to Bowman Dam (RM 70, rkm 113) and all 
accessible tributaries between these points; and on the Metolius River 
from its confluence with the Deschutes River upstream to all accessible 
tributaries between these points. This NEP designation will have an 
expiration date 12 years from the effective date of this final rule. We 
anticipate providing a notice in the Federal Register about 1 year 
before the NEP designation is set to expire to provide adequate notice 
to the public.

DATES: The effective date of this rule is January 15, 2013.

ADDRESSES: This final rule, along with the Final Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI), is 
available at http://www.regulations.gov. Comments and supporting 
documentation used in the preparation of this final rule are also 
available for inspection, by appointment, during normal business hours 
at the National Marine Fisheries Service, 1201 NE Lloyd Blvd., Suite 
1100, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Scott Carlon, NMFS, 1201 NE Lloyd 
Blvd., Portland, OR 97232 (503-231-2379) or Marta Nammack, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910 (301-713-1401).

SUPPLEMENTARY INFORMATION: 

Context

    On March 25, 1999, we listed the Middle Columbia River (MCR) 
steelhead distinct population segment (DPS) as threatened under the 
Endangered Species Act (ESA) (16 U.S.C. 1531-1544) (64 FR 14517). The 
MCR steelhead DPS range covers approximately 35,000 square miles 
(90,650 sq km) of the Columbia plateau of eastern Oregon and eastern 
Washington. The Deschutes River in central Oregon is one of six major 
river basins supporting steelhead in this DPS. Since 1968, the Pelton 
Round Butte Hydroelectric Project (hereafter, Pelton Round Butte 
Project) on the Deschutes River has blocked steelhead from accessing 
nearly 200 miles (322 km) of historical spawning and rearing habitat.
    In this rulemaking, we are authorizing the continued release of the 
MCR steelhead currently being reintroduced to the upper Deschutes River 
basin and designating this population as a NEP. This reintroduction is 
a requirement of the new hydropower license for the Pelton Round Butte 
Project in Central Oregon, and thus will continue regardless of this 
designation. The licensees, Portland General Electric Company and the 
Confederated Tribes of the Warm Springs Reservation of Oregon, are 
conducting the reintroduction program in cooperation with the State of 
Oregon, NMFS, the U.S. Forest Service (USFS), the U.S. Fish and 
Wildlife Service (FWS), U.S. Bureau of Land Management (BLM), Jefferson 
and Deschutes Counties, Oregon, and 10 other stakeholder groups. This 
reintroduction is one of many recovery actions being implemented by 
NMFS, Federal and state agencies, and other partners throughout the 
threatened species' historical range. While passage and reintroduction 
have commenced under the authority of a license issued under the 
Federal Power Act, we are authorizing the continued release of the 
steelhead and designating the population as a NEP. We are also 
providing alternative protective measures for the NEP, under the 
authority of the ESA.

[[Page 2894]]

    The purpose of this designation is to temporarily lift certain ESA 
liability and consultation requirements to allow time for local 
landowners and municipalities to develop well-informed conservation 
measures to support the reintroduction effort in the Upper Deschutes 
River basin. Information gained during the early stages of the 
reintroduction effort will help us focus conservation measures on the 
areas needing support, and how best to provide that support. For 
example, knowing where the steelhead spawn will inform determinations 
about what improvements are most important for that specific habitat, 
and what kinds of activities could be detrimental to spawning 
steelhead.
    The specific stock chosen to initiate steelhead reintroduction is 
from the Round Butte Hatchery, and was not listed at the time it was 
chosen. After the new license was issued in June 2005 and 
reintroduction planning was largely completed, we included the Round 
Butte Hatchery steelhead stock as part of the threatened group of 
steelhead (71 FR 834; January 5, 2007).
    In the proposed rule (76 FR 28715, May 18, 2011), we stated that 
the NEP designation would expire after three successive generations of 
MCR steelhead had been passed above the Pelton Round Butte Project. 
Three generations equates to about 12 years. At the time of the 
proposed rulemaking, it was not known when adult steelhead would first 
be passed above the Pelton Round Butte Project, so the expiration date 
was also not known. However, adult MCR steelhead from juvenile 
outplants in the NEP area are now returning to the Pelton Round Butte 
Project, and the first of these adults were released into the NEP area 
in late October 2012. Consequently, we can now provide the expiration 
date, which is 12 years from the effective date of this rule.
    Some local landowners and one municipality are working to develop a 
Habitat Conservation Plan (HCP) for certain activities above the Pelton 
Round Butte Project. This HCP is likely to be completed sooner than the 
expiration date for the NEP designation. However, the HCP covers only a 
subset of the activities and area affected by the reintroduction. Thus, 
other local entities may consider developing conservation measures to 
address potential ESA liability. We expect that the fixed-duration NEP 
designation will encourage local landowners and municipalities to 
develop conservation measures in a timely manner, as full ESA 
protections for a threatened species will once again apply to the 
steelhead after the NEP designation expires. In addition, we expect 
that information gained during the NEP designation period will help 
inform conservation measures so that they can be refined through 
adaptive management.
    This NEP will occur in portions of Deschutes, Jefferson, and Crook 
Counties, Oregon. The geographic boundaries of the NEP would extend 
upstream from Round Butte Dam on the Deschutes River and all accessible 
reaches of the Deschutes River (to MCR steelhead) and its tributary, 
Whychus Creek; on the Crooked River from its confluence with the 
Deschutes River upstream to Bowman Dam (RM 70, rkm 113) and all 
accessible tributaries between these points; and on the Metolius River 
from its confluence with the Deschutes River upstream to all accessible 
tributaries between these points. While this area is part of its 
historical range, MCR steelhead fish passage to the area was abandoned 
in about 1968.
    Section 10(j) of the ESA allows the Secretary of Commerce 
(Secretary) to authorize the release of an experimental population of 
an endangered or threatened species outside the species' current range 
if the Secretary determines that the release will further the species' 
conservation. This designation will further the conservation of the 
species because it will build support for the reintroduction effort 
among local landowners, encourage those landowners and municipalities 
to complete conservation measures within the set time-period, and 
ensure that the conservation measures are focused on supporting the 
reintroduction based on information gathered during the NEP 
designation. Since we listed the MCR steelhead DPS as threatened, there 
has been great concern and uncertain support for reintroduction by 
local landowners and municipalities in the Upper Deschutes River basin. 
Consistent with Congressional intent of section 10(j), the NEP 
designation provides a flexible management tool to help build support 
for the reintroduction while promoting species conservation by allowing 
local landowners and municipalities to focus on developing conservation 
measures that promote the reintroduction effort. The expiration date 
supports the determination that this action will further the 
conservation of the species because it will encourage these entities to 
complete the needed conservation measures in a time certain. Without an 
expiration date, local landowners and municipalities would not have the 
same incentive to develop and implement conservation measures needed to 
support the reintroduction. We anticipate providing a notice in the 
Federal Register about 1 year before the NEP designation is set to 
expire to provide notice to the public.
    The Secretary may designate an experimental population when, and at 
such times as, the population is wholly separate geographically from 
nonexperimental populations, as required in ESA section 10(j). In this 
action, we are designating an experimental population that is 
geographically separate from the nonexperimental ESA-listed MCR 
steelhead population, due to the dams that block access both upstream 
and downstream to the area where the species will have experimental 
status. The MCR steelhead will only be considered experimental when 
they are above Round Butte Dam (the last dam, moving upstream, in the 
three-dam complex). All MCR steelhead that are above the dams will be 
in the NEP geographic area, and will be part of the NEP. MCR steelhead 
below the dams will not be part of the NEP because they are not in the 
geographic area. This is a clear geographic boundary. It also 
recognizes the life cycle of MCR steelhead--that they spawn in streams, 
travel into the ocean to grow to maturity, and return to their natal 
streams to spawn. In this case, the MCR steelhead designated as an NEP 
will be geographically separated from the larger DPS of MCR steelhead 
while above Round Butte Dam, but will intermingle with more steelhead 
as they travel downstream of the Pelton Round Butte Project, while in 
the ocean, and on part of their journey upstream.

Background

    The Deschutes River basin above the Pelton Round Butte Project was 
once home to native runs of summer steelhead, Chinook salmon, sockeye 
salmon, and Pacific lamprey. Before hydroelectric and irrigation 
development, steelhead used the Deschutes River up to Big Falls, 
Whychus Creek (a Deschutes River tributary above the Pelton Round Butte 
Project), and the Crooked River watershed. Within the Crooked River 
watershed, steelhead were documented in McKay, Ochoco, Horseheaven, 
Newsome, Drake, Twelvemile, and Beaver Creeks, and the North Fork 
Crooked River (Nehlsen, 1995). The completion of Ochoco Dam east of 
Prineville in 1920 blocked steelhead access into most of the Ochoco 
Creek watershed, and the completion of Bowman Dam on the Crooked River 
in 1961 stopped fish passage into the upper Crooked River watershed. On 
the

[[Page 2895]]

Deschutes River, the Pelton and Reregulating Dams were completed in 
1958. Even though these dams had fish passage, steelhead numbers in the 
upper Deschutes River basin, though still significant, had declined by 
that time (Nehlsen, 1995). Available information suggests peak annual 
escapements in the 1950s were at least 1,600 adult summer steelhead and 
800-900 (Montgomery, 1955) adult spring Chinook salmon (with perhaps 
twice this number harvested downstream). After completion of Round 
Butte Dam (the most upstream dam) in 1964, fish passage decreased 
dramatically, and, by 1968, was abandoned in favor of a hatchery 
program to mitigate lost passage and habitat. The runs could not be 
sustained primarily because reverse surface currents (surface currents 
moving upstream in the Metolious arm of Lake Billy Chinook) confused 
smolts attempting to migrate seaward through Lake Billy Chinook, the 
reservoir behind Round Butte Dam. Most of the smolts failed to find 
their way from the head of the reservoir downstream to a fish collector 
installed at Round Butte Dam (Korn et al., 1967). As a result of this 
decline and other factors, and following a comprehensive study of west 
coast steelhead, we subsequently listed the MCR steelhead as a 
threatened DPS under the ESA (64 FR 14517; March 25, 1999).
    There has long been an interest in reestablishing anadromous fish 
runs in the upper Deschutes River subbasin. This interest strengthened 
in recent years as technological innovations advanced and hydrodynamic 
modeling suggested that surface currents could be altered to favor the 
downstream passage of smolts. The relicensing of the Pelton Round Butte 
Project provided the opportunity to implement these innovations in 
order to attempt to reestablish anadromous fish runs upstream.
    The Federal Energy Regulatory Commission issued a new license for 
the Pelton Round Butte Project (Project No. P-2030) on June 21, 2005, 
to Portland General Electric Company (PGE) and the Confederated Tribes 
of the Warm Springs Reservation of Oregon (CTWS), who are joint 
licensees (Licensees). The Warm Springs Power and Water Enterprises 
manages hydropower for the CTWS. The license requires fish passage 
around the Pelton Round Butte Project, and incorporates the terms of a 
Settlement Agreement (which includes agreement on license articles for 
fish passage in support of reintroduction) entered into by the 
Licensees and 20 other parties, including all levels of government, 
CTWS, and environmental groups. The license establishes a Fish 
Committee, which is made up of the PGE, CTWS' Natural Resource 
Management Services, NMFS, Oregon Department of Fish and Wildlife 
(ODFW), the FWS, and other agencies and entities. Details regarding the 
responsibilities of the Licensees with respect to fish passage and 
reintroduction are in the Fish Passage Plan, included as Exhibit D to 
the Settlement Agreement. These responsibilities include fish passage 
at the Pelton Round Butte Project, a wide variety of test and 
verification studies, and longer term monitoring efforts. The license 
includes a schedule for meeting those obligations.
    Steelhead reintroduction has commenced consistent with the Fish 
Passage Plan, and the donor steelhead are from a captive bred 
population. This population is propagated to mitigate lost fisheries 
due to failed fish passage after the Pelton Round Butte Project was 
originally constructed. The hatchery fish being used for the ongoing 
reintroduction are excess stock, and therefore are not needed to help 
recovery.
    Because the Pelton Round Butte Project does not provide volitional 
passage, the license requires construction and operation of a Selective 
Water Withdrawal structure that is now in place and operating at Round 
Butte Dam. The structure has already begun to help guide smolts to an 
associated fish screening and collection facility, and provide 
downstream passage for juveniles. This structure and its operation are 
also central elements of the Fish Passage Plan, as well as additional 
measures supporting reintroduction. Returning adult steelhead are being 
collected in traps below the Reregulating Dam and transported for 
release above Round Butte Dam. These released adults will have NEP 
status once transported above the dams and in the NEP geographic area 
(but do not have that status when they are below the dam).
    The juvenile fish are marked as they leave the NEP area and thus 
can be identified by trap operators when they return as adults. For the 
time period of this rule, marked adult fish (i.e. fish that originated 
in the NEP) are likely to be the predominant if not only category of 
fish released above Round Butte Dam. The Fish Passage Plan (developed 
during the FERC relicensing process) is primarily focused on the 
release of adult marked fish and, although it provides for the future 
possibility of wild adult fish releases, that potential will depend on 
availability of wild spawners and the successful performance of the 
fish passage program at the Pelton Round Butte Project.

Statutory and Regulatory Framework

    Congress made significant changes to the ESA in 1982, including the 
addition of section 10(j), which provides authority to reintroduce 
populations of listed species as ``experimental populations.'' 
Previously, we had authority to reintroduce populations into unoccupied 
portions of a listed species' historical range. However, local citizens 
often opposed these reintroductions because they were concerned about 
potential liability for harming these animals, and the placement of 
restrictions and prohibitions on Federal and private activities. 
Section 10(j) was designed to address this by providing greater 
flexibility in the application of ESA protections to experimental 
populations. H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982). Under 
section 10(j) of the ESA, the Secretary can authorize the release of an 
``experimental'' population outside the species' current range, where: 
(1) The experimental population is geographically separate from the 
nonexperimental population; and (2) release of the experimental 
population will further the conservation of the listed species. The 
determination of whether experimental populations are ``essential'' or 
``nonessential'' to the continued existence of the species must be 
based on the best scientific and commercial data available.
    The ESA provides that species listed as endangered or threatened 
are afforded protection primarily through the prohibitions of section 9 
and the consultation requirements of section 7. Section 9 of the ESA 
prohibits the take of an endangered species. The term ``take'' is 
defined by the ESA as ``to harass, harm, pursue, hunt, shoot, wound, 
trap, capture, or collect, or attempt to engage in any such conduct.'' 
15 U.S.C. 1532(19). Section 7 of the ESA provides procedures for 
Federal interagency cooperation and consultation to conserve federally 
listed species, ensure their survival, help in recovery of these 
species, and to protect designated critical habitat necessary for the 
listed species' survival. It also mandates that all Federal agencies 
determine how to use their existing authorities to further the purposes 
of the ESA to aid in recovering listed species. In addition, ESA 
section 7 requires that Federal agencies will, in consultation with 
NMFS, ensure that any action they authorize, fund, or carry out is not 
likely to jeopardize the continued existence of a listed species, or 
result in the

[[Page 2896]]

destruction or adverse modification of designated critical habitat. 
Section 7 of the ESA does not apply to activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    For the purposes of section 7 of the ESA, section 10(j) requires 
that we treat NEPs as a species proposed to be listed, unless they are 
located within a National Wildlife Refuge or National Park, in which 
case they are treated as threatened, and section 7 consultation 
requirements apply. When NEPs are located outside a National Wildlife 
Refuge or National Park, only two provisions of section 7 apply--
section 7(a)(1) and section 7(a)(4). In these instances, NEP 
designations provide additional flexibility in developing conservation 
and management measures, because they allow NMFS to work with the 
action agency early to develop conservation measures, instead of 
analyzing an already well-developed proposed action provided by the 
agency in the framework of a section 7(a)(2) consultation. 
Additionally, for populations of listed species that are designated as 
nonessential, section 7(a)(4) of the ESA only requires that Federal 
agencies confer (rather than consult) with NMFS on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. These conferences are advisory in nature, and their findings 
do not restrict agencies from carrying out, funding, or authorizing 
activities.
    Experimental population designations must be done through a 
rulemaking that identifies the population and states whether the 
population is essential or nonessential to the continued existence of 
the species. Through section 4(d) of the ESA, a threatened designation 
allows the NMFS greater discretion in devising management programs and 
special regulations for such a population, including take prohibitions. 
Section 4(d) of the ESA allows us to adopt regulations necessary to 
provide for the conservation of a threatened species. MCR steelhead are 
currently included in NMFS' 4(d) rule that imposes section 9 take 
liability for threatened anadromous fish, at 50 CFR 203. Through this 
rulemaking, we are using our authority under section 4(d) to create a 
different set of protective regulations, specific to the experimental 
steelhead population above Round Butte Dam. In effect, we would be 
modifying the current 4(d) rule as it applies to MCR steelhead. For 
this NEP only, we would allow take if the take is incidental to an 
otherwise lawful activity, such as agricultural activities, and is 
unintentional and not due to negligent conduct.
    The FWS has regulations for experimental population designation, 50 
CFR 17 subpart H, that provide definitions, considerations in finding 
that the designation would further the conservation of the species, and 
information to be included in the designation. These regulations state 
that, in making the determination that the designation would further 
the conservation of the species, the Secretary must consider the effect 
of taking the eggs or young from another population, the likelihood 
that the experimental population will become established, the effect 
the designation would have on the species' overall recovery, and the 
extent to which the experimental population would be affected by 
activities in the area. Under the FWS regulations, a regulation 
designating the experimental population must include: a clear means to 
identify the experimental population; a finding based on the best 
available science indicating whether the population is essential to the 
continued existence of the species; management restrictions, protective 
measures, or other management concerns; and a periodic review of the 
success of the release and its effect on the conservation and recovery 
of the species. The FWS regulations also state that any experimental 
population shall be treated as threatened for purposes of establishing 
protective regulations under ESA section 4(d), and the protective 
regulations for the experimental population will contain applicable 
prohibitions and exceptions for that population.
    While we do not have regulations regarding designation of 
experimental populations, many of the considerations in FWS's 
regulation are generally applicable to this designation and consistent 
with the statutory criteria. Where applicable, we have applied the 
considerations in our decision regarding designation, and provide the 
rationale in the preamble.

Biological Information

    ``Steelhead'' is the name commonly applied to the anadromous 
(migratory) form of the biological species O. mykiss. The common names 
of the non-anadromous, or resident, form are rainbow trout and redband 
trout. The species O. mykiss exhibits perhaps the most complex suite of 
life history traits of any species of Pacific salmonid. These fish can 
be anadromous or freshwater residents, and under some circumstances 
yield offspring of the opposite form. Steelhead can spawn more than 
once, whereas all other Oncorhynchus except cutthroat trout (O. clarki) 
spawn once and then die.
    When we originally listed the MCR steelhead as threatened on March 
25, 1999 (64 FR 14517), it was classified as an evolutionarily 
significant unit (ESU) of salmonids that included both the anadromous 
and resident forms, but not hatchery fish. Since then, we revised our 
species determinations for West Coast steelhead under the ESA, 
delineating anadromous, steelhead-only distinct population segments 
(DPS). We listed the MCR steelhead DPS as threatened on January 5, 2006 
(71 FR 834). Rainbow trout and redband trout are not listed under the 
ESA, and are under the jurisdiction of the states unless they are 
listed, at which time they would come under the jurisdiction of the 
FWS. We published a final Critical Habitat designation for MCR 
steelhead on September 2, 2005, with an effective date of January 2, 
2006 (70 FR 52630).
    As noted previously, the MCR steelhead DPS extends over an area of 
about 35,000 square miles (90,650 square km) in the Columbia plateau of 
eastern Washington and eastern Oregon. The DPS includes all naturally 
spawned populations of steelhead in drainages upstream of the Wind 
River, Washington, and the Hood River, Oregon (exclusive), up to, and 
including, the Yakima River, Washington, excluding steelhead from the 
Snake River Basin (64 FR 14517, March 24, 1999; 71 FR 834, January 5, 
2006). Major drainages that support steelhead in this DPS are the 
Deschutes, John Day, Umatilla, Walla Walla, Yakima, and Klickitat river 
systems. Most of the region is privately owned (64 percent), with the 
remaining area under Federal (23 percent), tribal (10 percent), and 
state (3 percent) ownership. Most of the landscape consists of 
rangeland and timberland, with significant concentrations of dryland 
agriculture in parts of the range. Irrigated agriculture and urban 
development are generally concentrated in valley bottoms. Human 
populations in these regions are growing. Steelhead produced in seven 
artificial propagation programs are considered part of the DPS, and are 
therefore also listed as threatened (71 FR 834, January 5, 2006). These 
programs are the Touchet River Endemic Summer Steelhead Program, the 
Yakima River Kelt Reconditioning Program (in Satus Creek, Toppenish 
Creek, Naches River, and Upper Yakima River), and the Umatilla River 
and Deschutes River steelhead hatchery programs.

[[Page 2897]]

    Within the range of West Coast steelhead, spawning migrations occur 
throughout the year, with seasonal peaks of activity. The runs are 
usually named for the season in which the peak occurs. Most steelhead 
can be categorized as one of two run types, based on their sexual 
maturity when they re-enter freshwater and how far they go to spawn. In 
the Pacific Northwest, summer steelhead enter freshwater between May 
and October, and require several months to mature before spawning; 
winter steelhead enter freshwater between November and April with well-
developed gonads and spawn shortly thereafter. Summer steelhead usually 
spawn farther upstream than winter steelhead (Withler, 1966; Roelofs, 
1983; Behnke, 1992).
    The steelhead that occur in the Deschutes Basin are summer run. 
Spawning occurs from late winter through spring, and juveniles 
typically rear in freshwater for 2 years (may range 1-4 years) before 
migrating to the Pacific Ocean. About half of the adults return after 1 
year in the ocean and the other half returns after 2 years.
    Throughout much of its historical range, the decline of steelhead 
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 
steelhead 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.

Factors Affecting Listing Middle Columbia River Steelhead as Threatened

    Section 4(a)(1) of the ESA and NMFS implementing regulations (50 
CFR part 424) establish procedures for listing species as threatened or 
endangered. According to this direction, the Secretary must determine 
if a species is endangered or threatened based on any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or human-made 
factors affecting its continued existence (Busby et al., 1996; NMFS, 
1999).
    In our initial determination to list the MCR steelhead species, we 
found that all five section 4(a)(1) factors had played a role in the 
decline of the West Coast salmon and steelhead ESUs. These factors may 
or may not still be limiting recovery in the future when we reevaluate 
the status of the species to determine whether the protections of the 
ESA are no longer warranted and the species may be delisted. Findings 
leading to the listing of West Coast salmon and steelhead, including 
MCR steelhead, include:
    (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range: Salmon and steelhead have 
experienced declines in abundance over the past several decades as a 
result of loss, damage, or change to their natural environment. Water 
diversions, forestry, agriculture, mining, and urbanization have 
eliminated, degraded, simplified, and fragmented habitat. Hydroelectric 
development on the mainstem Columbia River modified natural flow 
regimes and impaired fish passage. Tributary obstructions also restrict 
or block salmon and steelhead access to historical habitats.
    (2) Overutilization of the steelhead and salmon for commercial, 
recreational, scientific, or educational purposes: Overfishing in the 
early days of European settlement led to the depletion of many salmonid 
stocks before extensive modifications and degradation of natural 
habitats, and exploitation rates following the degradation of many 
aquatic and riparian ecosystems were higher than many populations could 
sustain. Today, steelhead harvest continues on the Columbia River, 
tributaries, and Pacific Ocean; however, fishery impacts have declined 
significantly because of changes in fishery management.
    (3) Disease or predation: Introductions of non-native species and 
habitat modifications have resulted in increased predator populations 
in numerous rivers. Predators on adult and juvenile steelhead include 
walleye, California sea lions, and seabirds including Caspian terns.
    (4) Inadequacy of existing regulatory mechanisms: Various Federal, 
state, county, and tribal regulatory mechanisms are in place to reduce 
habitat loss and degradation caused by human use and development. Many 
of these mechanisms have been improved over the years to slow habitat 
degradation and destruction. Protective efforts directed toward 
addressing the many factors that adversely impact MCR steelhead and 
habitat--water quality and quantity, safe migration, riparian 
vegetation, food, predation dynamics and complex stream channels, and 
floodplain connectivity--will aid in improving these factors.
    (5) Other natural or human-made factors affecting its continued 
existence: Variability in ocean and freshwater conditions can have 
profound impacts on the productivity of salmonid populations and, at 
different times, have exacerbated or mitigated the problems associated 
with degraded and altered riverine and estuarine habitats.

Relationship of the Proposed Experimental Population to Recovery 
Efforts

    The 2009 Middle Columbia River Steelhead Recovery Plan (NMFS 2009) 
has the overarching aim of removing the MCR steelhead DPS from the 
threatened and endangered species list. The suite of strategies and 
actions proposed in the Plan will protect and improve ecosystem 
functions and restore normative ecological processes to levels that 
support recovery of MCR steelhead populations. The strategies and 
actions were developed by planning teams comprised of natural resource 
specialists for the Fifteenmile, Deschutes, John Day, Umatilla, and 
Walla Walla watersheds. The actions reflect direction identified in 
regional and local plans, recent modeling and research findings, and 
local expert input provided by the planning team members. Together, 
these strategies and actions call for maintaining high quality habitats 
and their productive capacity, improving ecosystem processes and 
habitats that are impaired but are currently important to productive 
capacity, and restoring habitat through passive and active measures.
    Recovery criteria specific to the Deschutes include eight kinds of 
tributary habitat conservation measures that could mitigate adverse 
impacts. We organized the habitat actions and associated information 
for each population by the conservation measures, or habitat 
strategies:
    (1) Protect and conserve natural ecological functions that support 
the viability of populations and their primary life history strategies 
throughout their life cycle;
    (2) Restore passage and connectivity to habitats blocked or 
impaired by artificial barriers and maintain properly functioning 
passage and connectivity;
    (3) Maintain and restore floodplain connectivity and function;

[[Page 2898]]

    (4) Restore degraded and maintain properly functioning channel 
structure and complexity;
    (5) Restore riparian condition and large woody debris recruitment 
and maintain properly functioning conditions;
    (6) Restore natural hydrograph to provide sufficient flow during 
critical periods;
    (7) Improve degraded water quality and maintain unimpaired water 
quality; and
    (8) Restore degraded and maintain properly functioning upland 
processes to minimize unnatural rates of erosion and runoff.
    The recovery scenario described in the MCR steelhead recovery plan 
states that the Deschutes Eastside and Westside populations should 
reach a viable status. The Westside population existed historically in 
Whychus Creek and the upper Deschutes River below Big Falls. The 
Eastside population, as determined by the Interior Columbia Technical 
Recovery Team, did not extend above Pelton Round Butte historically. 
The Plan recognizes that successful reintroduction of MCR steelhead and 
their natural production above the Pelton Round Butte Project could 
contribute substantially to recovery in two ways, by: (1) Restoring 
production from the Whychus Creek drainage, part of the historical 
Westside Deschutes population that currently is limited to major 
tributaries below the Pelton Round Butte Project; and (2) 
reestablishing production in the Crooked River drainage, identified by 
the Interior Columbia Technical Recovery Team as a separate extirpated 
historical population. If successful, these reintroductions and 
restoration of natural production could contribute substantially to 
population status and therefore to the viability of the MCR steelhead 
DPS.
    The MCR steelhead recovery plan also includes an ambitious 
restoration and protection program for currently accessible habitats in 
tributaries below the Pelton Round Butte Project. As a result, it is 
possible that the Westside Deschutes population could reach minimum 
viability levels without access to habitat above the Pelton Round Butte 
Project if there is an increase in actions aimed at further improving 
natural production from accessible habitats below the project. 
Furthermore, the Mid-Columbia Steelhead Recovery Plan recognizes that a 
future delisting decision for the DPS should consider not only the 
specific biological criteria incorporated into the current plan, but 
also the general principles underlying those criteria, advances in risk 
assessment, management actions in place to address threats, and 
considerations for the status of all of the components in the DPS. 
Therefore, while the reintroduction program furthers recovery, it is 
one of many measures to assist achieving this goal.

Does the Designation Further the Conservation of the Species?

    Under ESA section 10(j), the Secretary may designate listed species 
as experimental if doing so furthers the conservation of the species. 
The underlying premise of section 10(j) is to allow local communities 
to support, and work with NMFS and FWS, on reintroducing listed species 
into historical habitat. The designation is consistent with the 
statutory purpose because it provides regulatory flexibility that will 
allow local communities to focus on work to support the reintroduction 
in a productive way. Reintroducing MCR steelhead above the Pelton Round 
Butte Project supports recovery of the DPS. This rule supports the 
reintroduction effort by allaying landowners' fear of potential ESA 
take liability, and allows them to work to support the reintroduction 
by encouraging them to develop conservation measures in a set time 
period. Therefore, the designation of MCR steelhead that are a part of 
the ongoing reintroduction program as an experimental population 
furthers their conservation by encouraging completion of conservation 
measures well tailored to support the program.
    This designation is expected to promote well tailored conservation 
measures to support reintroduction because during the time period that 
the 10(j) rule will be in effect, increasing amounts of relevant data 
will be collected to inform conservation measures. Without the rule, 
HCPs hurriedly created to avoid take liability would not benefit from 
this information. On the other hand, without any time limit, there 
would not be an incentive to complete HCPs. Thus a balance has to be 
struck. Twelve years, or three generations, of data is designed to 
account for some variable environmental conditions the NEP will 
experience, and give a solid basis for knowing what kinds of 
conservation measures will provide strong support for the 
reintroduction effort. For example, once we know the main spawning 
areas after collecting this information from three generations of 
spawning adults, we can craft conservation measures to protect those 
areas. Conservation measures typically include adaptive management 
components, and those measures that are completed before the expiration 
date likely would include an adaptive management component that would 
allow us to modify these measures based on this information. In 
addition, the expiration date adds another conservation aspect to the 
designation by encouraging development and completion of the 
conservation measures before expiration of the NEP designation.
    We weighed these benefits against any potential harm caused by this 
rule. With respect to the HCP, the designation may create a 
disincentive for completing the HCP on its current trajectory, which is 
less than 12 years; however, the HCP does not cover all activities and 
geographies and so the rule allows non-HCP entities the opportunity and 
timeframe to also develop and implement conservation measures. 
Additionally, there is potential harm associated with the reduced ESA 
section 7 and section 9 protections during the time period of the 
designation. Yet, while the ESA regime applicable to above-dam entities 
will temporarily change, past experience suggests that they are likely 
to continue to take actions that promote steelhead conservation. Even 
before the steelhead for the reintroduction program were listed under 
the ESA (i.e., before there was ESA liability), local landowners began 
implementing certain conservation measures to support the 
reintroduction, and there is no reason to expect this to change when 
the landowners are again not subject to ESA liability. Furthermore, the 
fixed timeframe for the rule provides an incentive for landowners to 
continue their trend toward fish conservation measures, and thus also 
provides a counterbalance to any incentive in the opposite direction. 
It is also worth noting that the MCR steelhead that have been 
reintroduced to date appear to be doing reasonably well in their 
historic habitat despite ongoing activities in the area.
    Finally, the premise of 10(j) is to provide flexibility in ESA 
protections to facilitate the greater benefit of promoting 
reintroduction. Thus, even if there is some potential harm to the 
nonessential reintroduced fish as a result of the reduced ESA 
protections, it does not inherently undermine the conservation benefit 
to the species. In this case, we have weighed the benefits of 
developing sound conservation measures in a time certain fashion versus 
the potential for some harm and determined that, on balance, the 
designation of the population as experimental, together with reductions 
in certain ESA protections, would

[[Page 2899]]

further the conservation of the species. This conclusion is informed by 
the same considerations that we evaluated in determining that the NEP 
population is ``nonessential'', as set out below.

Is the Experimental Population Essential or Nonessential?

    Under ESA section 10(j)(2)(B), the Secretary must ``identify the 
[proposed] population and determine, on the basis of the best available 
information, whether or not such population is essential to the 
continued existence of an endangered species or a threatened species.'' 
15 U.S.C. 1539(j)(2)(B). First, we considered the importance of the 
experimental population to recovery of MCR steelhead generally. While 
the reintroduction effort is a significant recovery effort, it is not 
the only one and not the key to whether recovery can be achieved for 
this steelhead DPS. Successful implementation of restoration efforts 
across all major population groups in the DPS could reduce risks and 
improve viability even absent reintroduction above the Pelton Round 
Butte Project.
    Another factor we considered is that the juvenile steelhead used 
for this reintroduction effort at the outplant stage are surplus 
hatchery stock. The hatchery program exists to mitigate lost MCR 
steelhead upstream habitat, but the steelhead used in the 
reintroduction program are excess hatchery fish and are beyond what is 
needed for the mitigation. In addition, returning adults will 
primarily, if not solely, be the marked adults associated with those 
hatchery outplants. Even in the unlikely event that adult wild fish 
would be placed upstream, it would only occur consistent with species 
conservation objectives as set out in the Fish Passage Plan, and means 
that the NEP is doing very well. Thus, the potential loss of some of 
the NEP fish will not appreciably reduce the likelihood of survival and 
recovery for this DPS. Therefore, this experimental population will be 
designated as nonessential because this population is not essential to 
the continued existence of the DPS.

Location of Proposed NEP

    ESA section 10(j) requires that the experimental population be 
designated only when, and at such times, as it is geographically 
separate from nonexperimental populations of the same species. The NEP 
geographic area includes all waters that could support steelhead above 
Round Butte Dam. It includes portions of the Deschutes River basin 
above Round Butte Dam, which is the most upstream development of the 
three-dam Pelton Round Butte Project. Specifically, the NEP area 
includes all accessible reaches of the Deschutes River downstream to 
Round Butte Dam; the Whychus Creek subbasin; the Metolius River 
subbasin; and the Crooked River subbasin from Bowman Dam downstream 
(including the Ochoco and McKay Creek watersheds) to its point of 
confluence with the Deschutes River.
    This NEP area is distinct from the areas where MCR steelhead are 
otherwise found. The nearest steelhead population to the NEP area is 
found in the Deschutes River below the Pelton Round Butte Project. 
Other steelhead populations near the NEP area include fish in the 
following tributaries of the lower Columbia River: the Lewis River, 
entering the lower Columbia at RM 84, (rkm 135), the Willamette River 
at RM 101 (rkm 163), and the Hood River at RM 165 (rkm 366).
    The Round Butte Dam serves as the line of demarcation between the 
experimental population and the rest of the steelhead population. This 
geographic boundary is clearly defined by the presence of Round Butte 
Dam, with all steelhead above the dam being part of the experimental 
population and all steelhead below the dam not part of the experimental 
population. This approach to providing a clear geographic separation 
recognizes that anadromous fish migrate and mingle during the 
migration. Because anadromous populations of steelhead migrate to the 
Pacific Ocean and return to their natal streams to spawn, fish that 
originally were part of the experimental population will commingle with 
other fish in the lower Deschutes and Columbia Rivers, and may stray 
into any of the lower Columbia River tributaries or into Deschutes 
River tributaries below the Pelton Round Butte Project and spawn. 
Nevertheless, the steelhead will be experimental when, and at such 
times as, they are above Round Butte Dam, and not experimental when 
they are downstream of the dam, even if they were originally part of 
the reintroduced stock.
    The Round Butte Dam provides a clear geographic boundary in large 
part because of the passage barrier it represents, both upstream and 
downstream. All juvenile steelhead smolts leaving the NEP boundary are 
collected for passage in a fish collection facility at Round Butte Dam. 
Likewise, when steelhead return to spawn, they must be trapped and 
manually relocated into the NEP area. As indicated above, marked adult 
steelhead from the experimental population are likely to be the 
predominant if not the only category of fish released above Round Butte 
Dam within the time period of this rule, though any fish released above 
the dam will have NEP status while in that area.
    The NEP area is outside the current range of MCR steelhead because 
there is currently no self-sustaining population in the NEP geographic 
area; and if the releases stopped at this point, MCR steelhead would 
disappear from the NEP area. In summary, the section 10(j) requirement 
that the experimental population be wholly separate geographically from 
the nonexperimental populations of the same species is met here because 
the NEP area is outside the range of the currently existing DPS, and is 
clearly defined by Round Butte Dam, which is impassable to steelhead. 
The NEP area includes all streams above Round Butte Dam capable of 
supporting steelhead. All steelhead above the dam are in the 
experimental population, and all steelhead below the dam are not part 
of the experimental population.

Time Frame for NEP Designation

    We are establishing an expiration date for the NEP designation 
because we want to provide an incentive for private landowners and 
local government entities to complete conservation measures in a 
certain time frame, while providing time to gather useful information 
on the reintroduction effort. Information gathered during the 12-year 
timeframe will be progressively incorporated into the development of 
the conservation measures so they will best support the reintroduction 
program. This set time frame for the NEP designation furthers the 
conservation of the species because it is expected to provide strong 
encouragement to complete conservation measures that support the 
reintroduction by a date certain. The NEP designation period will 
expire 12 years from the effective date of this final rule.
    We are using a timeframe of 12 years because this approximately 
represents three generations of returns to the NEP area. On average, 
one generation of steelhead is about 4 years (2 years freshwater 
rearing, 1 year in the ocean, and roughly 9-11 months for adult 
migration, holding, and spawning), so three generations will be 12 
years. We recognize that variations in freshwater rearing and ocean 
growth will occur.
    The proposed timeframe reflects our view that it will be useful to 
have information on three generations of steelhead to understand how 
well the reintroduction program is working and how best to craft 
conservation measures to support the program. As we discussed in the 
Does the Designation

[[Page 2900]]

Further the Conservation of the Species section, the timeframe of three 
generations allows an adequate amount of data to be collected on the 
reintroduction program. It is enough time to account for the kind of 
environmental variability mentioned above, such as variations in stream 
and ocean conditions. The time frame also allows time for this 
information to be used as the basis of conservation measures tailored 
toward supporting this reintroduction. This amount of information will 
allow all parties, private and governmental, to work together to 
develop conservation measures that are specifically focused on 
addressing needs of steelhead in the Upper Deschutes River basin. For 
conservation measures completed before expiration of the designation, 
such as potentially the HCP currently being developed, an adaptive 
management component could be used to address the need to modify the 
measures based on this information. This component will maximize the 
benefit of the conservation measures and strengthen the reintroduction 
program, and will result in a strong program for this recovery measure.
    Without an expiration date, development and completion of 
conservation measures may continue for a longer time. In general, 12 
years is a reasonable amount of time to complete development of 
conservation measures because there is still a lot of information 
needed, and the issues are complex and involve many parties. That said, 
the HCP could be completed before the NEP designation expires. We would 
like to strongly encourage development and implementation of 
conservation measures that will support the reintroduction, and this 
expiration date is meant to provide that encouragement while also 
ensuring that the measures are based on good information.

Management Considerations and Protective Measures

    The aquatic resources in the NEP area are managed by the USFS, BLM, 
Bureau of Reclamation (BOR), the State of Oregon, municipalities, and 
private landowners. Multiple-use management of these waters would 
continue under the NEP designation. We do not expect that continuing 
these agricultural, recreational, municipal, and other activities by 
private landowners within and near the NEP area will cause significant 
harm to the NEP. The main factors we took into account in considering 
appropriate protective measures are: (1) A significant number of 
upstream irrigators are developing or already implementing certain 
conservation measures; (2) Federal agencies have already consulted 
under section 7 of the ESA on various actions in the area and are 
implementing actions that do not cause jeopardy and minimize incidental 
take; (3) fish used for the reintroduction will be excess hatchery 
fish, and loss of some of them will not harm survival and recovery of 
the steelhead; and (4) enough steelhead are already surviving to 
provide information necessary for the initial stages of the 
reintroduction program. These factors all lead to the conclusion that, 
for a 12-year period, the reintroduction effort can continue 
successfully while allowing some take of the steelhead in the 
experimental population because enough fish will survive to support 
successful reintroduction. Therefore, for the time period of the 
designation, incidental take, as provided in the next paragraph, will 
not harm the recovery program.
    Incidental Take: Although MCR steelhead are already covered by a 
NMFS 4(d) rule at 50 CFR 203, this action would modify that protection. 
In this final rule, under the authority of ESA section 4(d), incidental 
take of steelhead within the experimental population area would be 
allowed, provided that the take is incidental to an otherwise lawful 
activity, such as agricultural activities, unintentional, and not due 
to negligent conduct. One example is recreational fishing that is 
consistent with State fishing regulations that have been coordinated 
with NMFS. As recreational fishing for species other than steelhead is 
popular within the NEP area, we expect some incidental take of 
steelhead from this activity, but as long as it is incidental to the 
recreational fishery, and in compliance with ODFW fishing regulations 
and Tribal regulations on land managed by the CTWS, such take will not 
be a violation of the ESA.
    Special Handling: NMFS, ODFW, and CTWS employees and authorized 
agents acting on their behalf may handle MCR steelhead for: Scientific 
purposes, to relocate steelhead within the NEP area, to aid sick or 
injured steelhead, and to salvage dead steelhead. PGE and CTWS 
employees and authorized agents acting on their behalf for the purpose 
of monitoring and evaluating the ongoing reintroduction under the FERC 
license for the Pelton Round Butte Project may handle MCR steelhead in 
the NEP area. Deschutes Valley Water District employees and agents 
acting on their behalf for the purpose of monitoring and evaluating the 
Opal Springs Hydroelectric Project (FERC No. 5891) may handle 
steelhead. However, non-authorized personnel will need to acquire 
permits from NMFS and ODFW for these activities.

Monitoring and Evaluation

    As a requirement under its Federal license to operate the Pelton 
Round Butte Project, the Licensees will monitor over the 50-year term 
of the license. Some of this monitoring relates directly to the MCR 
steelhead reintroduction program. The licensees will collect data to 
gauge long-term progress of the reintroduction program and to provide 
information for decision-making and adaptive management for directing 
the reintroduction program. Fish passage, fish biology, aquatic 
habitat, and hatchery operations will be the primary focus of the 
monitoring (PGE and CTWSRO, 2004; ODFW and CTWSRO, 2008).
    Fish passage monitoring will focus on addressing a variety of 
issues important to successful reintroduction. These issues consist of 
measuring fish passage efficiency, including smolt reservoir passage, 
collection efficiency at the fish collection facility, smolt injury and 
mortality rates, adult collection, and adult reservoir passage to 
spawning areas. Passive integrated transponder tags and radio tags will 
be used to evaluate and monitor fish passage effectiveness. Biological 
evaluation and monitoring will concentrate on adult escapement and 
spawning success, competition with resident species, predation, disease 
transfer, smolt production, harvest, and sustainability of natural 
runs. Habitat monitoring will focus on long-term trends in the 
productive capacity of the reintroduction area (e.g., habitat 
availability, habitat effectiveness, riparian condition) and natural 
production (the number, size, productivity, and life history diversity) 
of steelhead in the NEP area above Round Butte Dam.
    Monitoring at the fish hatchery will focus on multiple issues 
important to the quality of fish collected and produced for use in the 
reintroduction program. ODFW and CTWS' Natural Resource Services are 
primarily responsible for monitoring hatchery operations. This will 
consist mainly of broodstock selection; disease history and treatment; 
pre-release performance such as survival, growth, and fish health by 
life stage; the numerical production advantage provided by the hatchery 
program relative to natural production; and success of the hatchery 
program in meeting conservation program objectives.
    While this monitoring is being conducted for purposes of making the 
reintroduction effort successful, we will

[[Page 2901]]

use the information to also determine if the experimental population 
designation is causing any harm to MCR steelhead and their habitat, and 
then, based on this and other available information, determine if the 
designation needs to be removed before the expiration date. There is no 
need for additional monitoring because this effort will provide all the 
information necessary.
    Unrelated to the monitoring and evaluation for the ongoing 
reintroduction, NMFS conducts status reviews of listed anadromous fish 
populations roughly every 5 years to determine whether any species 
should be removed from the list or have its listing status changed. We 
anticipate the next status review of the MCR steelhead DPS to occur in 
or about 2015. We further anticipate that the status of the ongoing 
reintroduction program would be a consideration of NMFS' analysis of 
the Cascades Eastern Slope Tributaries major population group and DPS 
as a whole. While we cannot reasonably determine at this time what 
effect the new status review would have on this experimental population 
designation, we do not anticipate any changes to the designation.

Summary of Comments and Responses

    We requested written comments from the public on the proposed rule 
and draft EA published on May 18, 2011 (76 FR 28715), on all issues of 
concern to the public. We also requested comments on five specific 
questions regarding (1) the use of a specific expiration date; (2) the 
efficacy of a 12-year designation; (3) the effects of current and 
future actions on the NEP within the NEP area; (4) current programs 
within the NEP area that protect fish or aquatic habitats; and (5) 
additional management measures that we have not considered. We also 
contacted other Federal agencies and tribes and invited them to comment 
on the proposed rule. The comment period was open from May 18, 2011, 
until July 18, 2011.
    A number of parties combined their respective comments into one 
submittal; thus, we received eight separate filings of comments from a 
total of 18 parties. For clarity, we treat each filing as one commenter 
in our summary and response to comments below. Commenters included 
natural resource agencies, non-governmental organizations, and private 
entities. All of the parties supported the reintroduction program, but 
had varying comments on the proposed rule. Two commenters responded 
directly to the five questions we asked in the proposed rule, while 
others provided comments on different issues. The comments generally 
addressed issues regarding whether an expiration date is appropriate; 
the choice of a 12-year time frame is the correct amount of time; if 
hatchery or wild fish should be used; and whether a 4(d) rule would be 
more appropriate. Some commenters questioned the need for the 
expiration date, suggesting that 12 years was not necessary to achieve 
the purpose and need for the NEP designation; one party also questioned 
whether the designation was too broad to address a narrow set of 
concerns. Others suggested eliminating the expiration date and to keep 
the rule in place until the MCR steelhead DPS is delisted. Some parties 
suggested the promulgation of a new 4(d) rule, or limit (we use the 
term ``limit'' in connection with 4(d) rules because our 4(d) rules 
limit the take liability for threatened species, if the entity covered 
by the limit meets the proper criteria included in the specific limit), 
would be more appropriate.
    We reviewed all comments received, and provide our response to all 
the substantive issues regarding the proposed rule and draft EA. Our 
responses to the substantive comments on the proposed rule are provided 
below, and where appropriate, we made changes in this final rule in 
response to the comments. Substantive comments we received on the EA 
were addressed in Appendix A1 of the Final EA, and where appropriate, 
we made changes to the EA in response to comments.

Public Comments

    The first five sets of comments are in response to the five 
questions we asked in our proposed rule. The rest of the comments are 
additional ones raised by the commenters.

(1) Use of a Specific Expiration Date

    Comment 1: Two commenters disagreed with the concept of having an 
expiration date on the designation. While both commenters recommended 
against use of an expiration date, both did provide suggestions to help 
alleviate their concerns without eliminating the expiration date 
concept completely. One commenter suggested that the designation either 
be left in place until the MCR steelhead DPS is delisted, or be tied 
biologically to development of a self-sustaining run of MCR steelhead 
above the Project. This commenter also suggested that if we decide to 
keep the expiration date, then we should promulgate a 4(d) rule to 
become effective when the designation expires, to address potential ESA 
liability. The other commenter suggested setting a time to reevaluate 
the status of the reintroduced population and determine at that time 
whether the designation should be terminated. A third commenter stated 
that, if we go forward with the rule, a limited time frame for the NEP 
was absolutely necessary. This commenter went on to say that the time 
frame should be shortened. We respond to the use of a time frame in 
this response, and provide our rationale for our choice of the number 
of years, in our response to the second question.
    Response: Section 10(j) of the ESA specifically states that the 
experimental population designation must further the conservation of 
the species. In this case, use of an expiration date promotes this 
objective by setting an end date after which ESA take prohibitions will 
again be in effect. Local landowners and municipalities have a very 
clear time frame, which they are encouraged to put to good use to 
develop focused conservation measures that support the reintroduction 
effort. Without such a time limit, there would be little incentive to 
develop and implement conservation measures because there would be no 
potential take liability. The rationale for our choice of 12 years for 
the expiration date is provided in detail in our response to the second 
comment.
    While we recognize that FWS has not included an expiration date in 
its designations, in this case, it is appropriate to further the 
conservation of the species. This expiration date furthers the stated 
intent of Congress in the ESA, 16 U.S.C. 1531(a)(5), to encourage 
interested parties to develop and maintain conservation programs. This 
expiration date also furthers the specific intent of Congress when 
amending the ESA to add section 10(j) to provide broad discretion and 
flexibility to the Secretaries of Commerce and Interior in managing 
populations so as to reduce opposition to release of listed species 
outside their current range. The expiration date associated with this 
NEP designation of the reintroduced MCR steelhead satisfies the intent 
of Congress by providing local entities temporary relief of certain 
potential ESA section 9 take liabilities to allow time to build support 
for the reintroduction program among local landowners and 
municipalities, and to provide an incentive to complete and implement 
conservation plans and other conservation measures in a time certain. 
The designation will allow local entities adequate time and flexibility 
to assess and mitigate impacts, if any, to the reintroduced population 
of MCR steelhead, and do these without the concern of certain ESA 
section 9 take liabilities. It will also allow time for the 
reintroduction monitoring and

[[Page 2902]]

evaluation programs to develop information on the status of the 
reintroduction while under the NEP designation. The expiration is 
designed to encourage entities to complete, in a time certain, 
necessary conservation measures to support the reintroduced population.
    After considering the suggested alternatives to removing the 
expiration date, we did not accept any of them because they are not 
appropriate means to achieve the goal of acting as an incentive to 
local landowners and municipalities to complete and implement 
conservation measures in a time certain:
    (1) Keeping the designation in place until the species improves to 
the point of delisting removes incentives to complete conservation 
measures within a time certain. Delisting depends on many more factors 
than supporting the reintroduction in the upper Deschutes River, and 
would not provide any certainty for an expiration date.
    (2) Tying the expiration date of the designation to completion of a 
self-sustaining run of MCR steelhead also removes incentives to 
complete conservation measures in a time certain. This idea would work 
against successful development of a self-sustaining run because the 
conservation measures are needed to support the reintroduction program. 
Without the conservation measures, it would likely take much longer to 
achieve the goal of a self-sustaining run.
    (3) Completion of an ESA 4(d) rule, or limit, at the end of the 
expiration date would considerably weaken the incentive to complete the 
conservation measures by the expiration date of the designation because 
it would perpetuate most of the limits on ESA take liability for local 
entities.
    (4) Including an option to reevaluate the NEP designation before it 
expires does not provide the private or public sector certainty for 
planning and operating their facilities and lands, and also removes the 
incentive to complete the conservation measures in a time certain. A 
reevaluation option also could be a disincentive to complete the 
conservation measures in 12 years because of the possibility of an 
extension of time.
    We agree with the commenter who stated that the time limit is 
necessary here because it provides an incentive to complete 
conservation measures that support the reintroduction program in a time 
certain. As stated above in this response, a time limit in this case 
serves an important conservation function because it lifts certain ESA 
take liabilities for the local community for a set period of time, 
during which the community is strongly encouraged to develop and 
implement conservation measures that support reintroduction.

(2) 12-Year Time Frame

    Comment 2: We received one comment that the 12-year time frame is 
too short, and another that 12 years is too long. One commenter stated 
that the 12-year period is the minimum time needed to identify whether 
the establishment of a self-sustaining population is possible, and also 
that 12 years is insufficient to include variability in ocean 
conditions, and to assess the effectiveness of the reintroduction 
program and conservation measures. The commenter stated that we should 
wait until supplementation has stopped and upstream passage is 
completed at Opal Springs Dam. This commenter also requested that NMFS 
promulgate a 4(d) rule to be effective when the NEP designation 
expires. The other commenter strongly urged NMFS to limit the 
designation to no more than 7 years because this shorter time frame 
would be more of an incentive to complete conservation measures sooner. 
This commenter also stated that they did not understand the connection 
between the 12-year time frame and data needed for development of 
conservation measures.
    Response: We agree with the first commenter that 12 years of 
monitoring and evaluation is too short to take into account decadal and 
interdecadal variations in the ocean environment. However, we disagree 
that this information on decadal ocean conditions is necessary for 
conservation measures supporting the reintroduction program in the 
Upper Deschutes River basin. The conservation measures will assist the 
reintroduction effort by supporting the part of the MCR steelhead's 
life that is spent in rivers, not the ocean. While ocean conditions 
play a role in the numbers of MCR steelhead that return to the NEP 
area, this designation and the conservation measures to support the 
reintroduction are focused on the part of MCR steelhead life that is 
spent in fresh water. However, we anticipate that information resulting 
from these conservation measures will be instructive regarding the 
effectiveness of the NEP designation in terms of conserving MCR 
steelhead in the NEP area.
    We disagree with the commenter that we need to wait to gather 
information on the reintroduction program after supplementation has 
stopped and passage is completed at Opal Springs Dam. We need the 
completion of conservation measures to help achieve a self-sustaining 
run of MCR steelhead in the NEP area, and waiting to develop 
conservation measures until the population is self-sustaining would 
reduce the likelihood of ever reaching that goal. The data gathered in 
the next 12 years will be sufficient to inform supportive conservation 
measures in the Upper Deschutes River basin that are needed to increase 
the likelihood of success for the reintroduction because the data will 
focus the conservation measures on areas that are needed most by the 
MCR steelhead. Information gathered after that time, and also toward 
the end of the 12 years, will be used to modify the conservation 
measures through adaptive management, as well as to form the basis of 
additional conservation measures. Additionally, because this commenter 
misunderstood the draft EA's purpose and need statement, we clarified 
the language in the EA.
    The monitoring and evaluation programs for the reintroduction are 
being conducted by the joint licensees for the Pelton Project. These 
programs include, to name a few, habitat use and productivity, fish 
passage efficiency and survival, smolt to adult return ratios, adult 
migration and spawning effectiveness, spawning locations, and water 
quality changes in Lake Billy Chinook and the lower Deschutes Rivers. 
This monitoring effort will be most concentrated during the NEP period 
but may continue at a reduced effort for many years after the NEP 
expires. The reintroduction program will continue for the life of the 
Pelton Round Butte Project's license.
    As stated in our first response to comments, we disagree with the 
concept of implementing an ESA 4(d) rule at the end of the designation 
because it would be a disincentive to complete conservation measures in 
a time certain.
    We partly disagree with the one commenter who stated that a shorter 
time frame or 7 years for the designation would be a better incentive 
for timely completion of conservation measures, and would also be 
sufficient time to complete the local irrigation district's and City of 
Prineville's HCP, as well as other conservation measures.
    We agree that a NEP period of 7 years would be an incentive to 
complete the HCP in a shorter period of time. However, there are other 
considerations that support our choice of 12 years instead of 7 years. 
For local entities who are not participating in the HCP development 
effort, and who believe their operations may have impacts on MCR 
steelhead that are being

[[Page 2903]]

reintroduced, a shorter timeframe may not allow adequate time for 
identifying their effects, determining conservation measures to address 
those effects, and finding funds, if needed, to complete the necessary 
measures. Furthermore, a 7-year timeframe would not allow sufficient 
time for the monitoring and evaluation programs to develop information 
on the reintroduction to support development of conservation measures 
tailored to support the reintroduction. After considering the reasons 
provided by both commenters for choosing at least 12 years or 
shortening the expiration date to 7 years, we consider the 12-year 
expiration date to be appropriate, for the following reasons. Our 
choice of 12 years is based on the biology of the MCR steelhead, time 
needed to incorporate data into the conservation measures, and time 
needed to develop and implement conservation measures that support the 
reintroduction program. First, the biological basis for the 12 years is 
that it will allow for monitoring of three generations of MCR steelhead 
in their historical habitat above the Project. This is enough time to 
determine where they chose to spawn and rear, and also enough time to 
account for year-to-year variability in stream and other environmental 
conditions. These data should be used to develop conservation measures 
focused on supporting the reintroduction by mitigating specific effects 
in areas that are important to the MCR steelhead. Conservation measures 
typically have an adaptive management component, so they could be 
completed before the 12 years are up and can be modified through 
adaptive management if needed, based on new information.

(3) The Effect of Current and Future Actions on the NEP in the NEP Area

    Comment 3: One commenter noted that we did not provide information 
about future ESA section 7 consultations (consultation with Federal 
agencies) and expressed concern with the NEP's effects on those future 
actions as well as existing section 7 consultations. The commenter also 
provided a list of actions that would require ESA section 7 
consultations. This commenter specifically called out NMFS' existing 
section 7 consultation with the BOR on the Deschutes Basin Projects, 
and questioned how the status of this consultation would be affected by 
the NEP designation. Another commenter noted that it has undertaken an 
assessment of its activities and their effects on MCR steelhead for the 
purpose of developing an HCP. This commenter also noted that many 
conservation measures have already been completed or are being 
implemented in the NEP area.
    Response: We asked Federal agencies that have previously conducted 
ESA section 7 consultations in the NEP area about ongoing or potential 
future actions, and we reviewed agency Web sites. These agencies 
include the Forest Service, BLM, BOR, Army Corps of Engineers and the 
Federal Highway Administration.
    Three ESA section 7 consultations in particular were underway while 
this final rule was being developed, and they should be completed 
before this final rule's effective date. These consultations are 
commonly referred to as ``programmatic consultations'' because they 
apply to programs implemented by various Federal agencies in Oregon, 
Washington, and Idaho, including the NEP area. Many individual actions 
are typically carried out under the auspices of these programs. 
Programmatic consultations are designed to streamline ESA compliance 
and accelerate actions carried out under each program. Consultation and 
implementation of the individual actions is accelerated because actions 
carried out under these programs must include all appropriate 
minimization measures required by the Federal agency as part of its 
program, and must satisfy the terms and conditions in the incidental 
take statement issued by NMFS for the various programs. Some actions 
may still need to undergo an individual ESA section 7 consultation. The 
three relevant ongoing section 7 consultations are:
     Reinitiation on the Aquatic Restoration Biological Opinion 
(ARBO): This is a consultation on a number of individual actions which, 
when grouped together, represent programs that may occur at many sites 
across lands managed by the Forest Service and BLM in Washington and 
Oregon, and the Coquille Indian Tribe in Oregon (the Bureau of Indian 
Affairs is the consulting agency). All proposed activity categories 
comply with the Record of Decision and Standards and Guidelines of the 
Northwest Forest Plan, INFISH and PACFISH (USFS and BLM aquatic and 
riparian area management strategy to protect habitat for Pacific 
anadromous salmonids and resident fish species), and respective 
National Forest Land and Resource Management Plans and BLM Resource 
Management Plans.
     Reinitiation on the Bonneville Power Administration's 
Habitat Improvement Program in Oregon, Washington, and Idaho: This is a 
consultation on the effects of the Bonneville Power Administration's 
Habitat Improvement Program (HIP) in the Columbia River basin. The HIP 
is designed to mitigate the effects of the Federal Columbia River Power 
System on fish, wildlife, and their habitat. Consultation on this 
program is designed to streamline the process for ESA compliance for a 
number of the most common salmon and steelhead habitat improvement 
projects (e.g., fish passage at manmade barriers, screening water 
diversions, placement of large woody debris, riparian fencing, and 
spawning gravel augmentation).
     Reinitiation on the Farm Services Agency's Conservation 
Reserve Enhancement Program: This consultation addresses the effects of 
the Department of Agriculture's Farm Services Agency Conservation 
Reserve Enhancement Program (CREP). In Oregon, CREP is designed to 
address agriculture-related impacts by establishing conservation 
practices on agricultural lands using funding from Federal, state, and 
tribal governments as well as non-government sources. It is a voluntary 
program with the goal of enhancing riparian habitat on agricultural 
lands along streams within the boundaries of water quality management 
area plans and along streams that support listed fish species under the 
ESA, as well as addressing stream water quality issues (primarily 
temperature).
    We do not expect this final rule to have material implications for 
these consultations because the proposed actions and associated 
conservation measures are very broad in geographic scope and species 
covered and not focused only on MCR steelhead in the upper Deschutes. 
Thus, we do not expect that the Federal agencies implementing these 
programs would make specific changes to their actions or implementation 
thereof with respect to only the NEP population and area. This logic 
also applies to programmatic ESA section 7 consultations in the NEP 
area that have already been completed. For example, section 7 
consultations on Federal land management plans will often result in 
terms and conditions on activities affecting water quality and fish 
habitats to conserve listed species, and other Federal and state water 
quality laws and fish habitat requirements apply to these plans, too.
    Furthermore, to the extent that a completed consultation is 
determined to no longer apply to the NEP population, or activities in 
the NEP area are treated differently by an action agency after 
consultation is completed, the conservation benefit of this final rule 
is not inherently undermined. As explained above with respect to 
section 9 take liability, the underlying premise

[[Page 2904]]

of ESA section 10(j) is to provide flexibility in ESA protections to 
facilitate reintroductions and associated benefits to the species. 
Thus, even if there is some potential harm to the reintroduced fish as 
a result of the reduced ESA protections, this must be weighed against 
the benefits of developing sound conservation measures in a time 
certain fashion. We have undertaken that weighing exercise and 
determined that, on balance, the designation of the population as 
experimental, together with reductions in certain ESA protections, 
would further the conservation of the species. This conclusion is 
informed by the same considerations that we evaluated in determining 
that the NEP population is ``nonessential'', as set out above.
    Concerning the existing ESA section 7 consultation between NMFS and 
the BOR on the BOR's Deschutes Basin Projects, the commenter noted 
language in the biological opinion stating that consultation must be 
reinitiated if fish passage were established at the Pelton Round Butte 
Project, and asked what the NEP designation means for reinitiation. 
There is now a need to evaluate how reinitiation requirements apply to 
the Deschutes Basin Projects consultation. That is an analysis and 
determination that will be undertaken in the context of the specific 
consultation and in coordination with the action agency.
    NMFS is aware of certain future Federal actions in the NEP area. 
The Deschutes National Forest is proposing a flood plain restoration 
action on Whychus Creek, a tributary to the Deschutes River and part of 
the NEP area. Additionally, the Federal Highway Administration is 
planning an action in the Metolius River basin for 2014. However, while 
this river basin is included in the NEP area, steelhead are not being 
reintroduced here. Also, the BLM is planning to remove Stearns Dam on 
the Crooked River. This is the last fish passage barrier remaining on 
the Crooked River and once removed, volitional migration by both adult 
and juvenile steelhead will be allowed up to Bowman Dam. Even though 
this is a beneficial action, construction activity in the water during 
dam removal could impact fish in the area. Finally, the installation of 
new fish passage facilities is proposed at Opal Springs Dam on the 
lower Crooked River; this action would be authorized by the Federal 
Energy Regulatory Commission.
    Under the terms of 10(j), there is no section 7 consultation 
obligation for non-essential experimental populations. Thus, such 
actions in the NEP area will not be subject to section 7 consultation 
obligations during the NEP period if only MCR steelhead would be 
affected. However, because the NEP is treated as a species proposed for 
listing, Federal agencies are required to confer with NMFS when the 
Federal action is likely to jeopardize the proposed species, pursuant 
to section 7(a)(4) of the ESA. As set out in section 402.10 of the 
consultation regulations, the conference may be conducted in accordance 
with formal consultation procedures if requested by the action agency 
and deemed appropriate by NMFS. During such a conference, NMFS is 
required to make advisory recommendations on ways to minimize or avoid 
adverse effects. As outlined above, any resulting impact on the NEP 
population is factored into the overall analysis as to whether the 
designation benefits the MCR steelhead species. Upon expiration of the 
NEP, section 7 consultation obligations will once again apply to 
Federal actions that may affect NEP.
    Lastly, we acknowledge the importance of the other commenter's 
statements about private conservation programs that have already begun. 
We recognize the efforts by the irrigation districts and municipalities 
to evaluate their activities that may affect MCR steelhead, and the 
significant work that has been accomplished (e.g., piping and lining 
irrigation canals to conserve water, screening water diversions) and is 
ongoing (e.g., habitat conservation planning).

(4) Current Programs Within the NEP Area That Protect Fish or Aquatic 
Habitats

    Comment 4: One commenter noted that it has already implemented 
numerous conservation programs to conserve water and improve fish 
habitat. This commenter also provided a list of these existing programs 
implemented by some of the irrigation districts in the NEP area. 
Another commenter merged its response to questions 3 and 4 and we 
addressed their concerns in our response to their comments in question 
3.
    Response: We recognize and support the effort by local irrigation 
districts to conserve water, both the completed conservation projects 
and ones still under development. We appreciate these early 
conservation actions that support the reintroduction program, and plan 
to continue working with these entities and others to support the 
reintroduction of salmon and steelhead. Regarding the second 
commenter's concerns about the effect of the NEP designation on the 
section 7 consultation requirement, we provided a lengthy response in 
our response to question 3.

(5) Additional Management Measures That We Have Not Considered

    Comment 5: One commenter raised concerns about the potential to 
pass wild fish during the NEP designation time frame, and cautioned 
against putting them into the NEP area with fewer ESA protections.
    Response: As set out above, the Fish Passage Plan (developed during 
the FERC relicensing process) is primarily focused on the release of 
adult marked fish that are the progeny of the excess hatchery fish, 
and, although it provides for the future possibility of wild adult fish 
releases, that potential will depend on availability of wild spawners 
and the successful performance of the fish passage program at the 
Pelton Round Butte Project. Thus, for the time period of this rule, 
marked adult fish are likely to be the only category of fish released 
above Round Butte Dam, and the possibility of any wild adults being 
returned would only occur consistent with species conservation 
objectives as set out in the Fish Passage Plan.

(6) Use of ESA 4(d) Instead of 10(j), Rationale for 10(j), and Use of 
4(d) When the Designation Expires

    Comment 6: Two commenters acknowledged that allaying community 
concerns by providing relief from ESA section 9 take prohibitions, and 
supporting the reintroduction program are legitimate goals. They 
suggest a different way to meet those goals, to use only the authority 
under ESA section 4(d) to address local landowner and municipality 
concerns about potential ESA take liability. One of these commenters 
states that we can achieve the same goals with a 4(d) limit, and still 
would provide more protections for the MCR steelhead because we could 
still designate critical habitat and section 7 consultations for 
Federal agencies would still apply. One other commenter suggested that 
we prepare a 4(d) rule or limit to be effective when the 10(j) 
designation expires.
    Response: Before issuing the proposed rule, we considered the 
proper tool to address local concerns about potential ESA liability 
resulting from the ongoing reintroduction of threatened MCR steelhead 
above the Project into historical habitat. The two options that we 
considered were: (1) Use of a new ESA 4(d) rule, or limit; and (2) 
authorization of the continued release of the MCR steelhead as an 
experimental population under section 10(j) of the ESA with tailored 
limits on take. Both options are discretionary, and the ESA provides 
for both. Each option has slightly different effects, as noted by the

[[Page 2905]]

commenter. We have exercised our discretion to use the regulatory tool 
of 10(j) combined with a modified take prohibition because it seems 
best suited to the situation at hand. As evidenced in the legislative 
history, this is exactly the type of situation that Congress had in 
mind when it provided the regulatory flexibilities of 10(j) to promote 
local landowner support for reintroductions of listed species. Here, 
the broad effect of the NEP designation will give more relief, 
flexibility and time to the local landowners and communities in the NEP 
area to work with NMFS, ODFW, CTWS, local watershed councils, or other 
conservation entities in assessing and correcting impacts, if any, they 
may have on MCR steelhead, by developing conservation measures; and the 
time limit would reinstate full protection under the ESA for a 
threatened species within a reasonable amount of time.
    Additionally, we have previously elected to craft our 4(d) limits 
for threatened Pacific salmon so that they apply to activities across 
large geographic scales, and potentially many entities. As a matter of 
policy, this approach is considered desirable for Pacific salmon and, 
by contrast, it is considered undesirable to signal a different 
approach whereby 4(d) rules are applied to discrete areas and 
situations such as the reintroduction of fish in the upper Deschutes.
    In summary, we have decided to use our authority under section 
10(j) to provide regulatory relief to landowners and other entities in 
the area of the reintroduced MCR steelhead; and we will not use 4(d) at 
the time the designation expires because it would remove the incentive 
to complete the conservation measures in a time certain, as explained 
in our response to comments 1 and 2.

(7) Use of Hatchery or Wild Stock

    Comment 7: One commenter urged us to use only hatchery stock for 
the reintroduction, and another commenter stated that only wild fish 
should be used to reestablish a self-sustaining population of MCR 
steelhead above the Pelton Round Butte Project.
    Response: The commenters' remarks are more appropriately directed 
at the reintroduction program and associated Fish Passage Plan, and not 
the NEP designation because the reintroduction is being conducted under 
a separate authority and process, and will continue regardless of this 
designation. The NEP designation is being applied to the ongoing 
reintroduction, which began in 2007, and will continue according to the 
fish passage plan that is part of the Federal Energy Regulatory 
Commission license for the Pelton Round Butte Project. This designation 
only changes the ESA status of MCR steelhead in the NEP area for a 
period of 12 years and does not influence which stock is used. We 
address above the implications of using hatchery stock in the context 
of the 10(j) statutory criteria, and address the remote possibility of 
passing wild fish above the dams in our response to comment 5.

(8) Passage Needed at Opal Springs Dam

    Comment 8: One commenter suggested that passage at Opal Springs 
Dam, located in the Crooked River Gorge, was necessary for the 
reintroduction of MCR steelhead to be successful. Thus, the 12-year NEP 
period should be extended or done away with altogether, because it was 
unknown when passage could be achieved at Opal Springs Dam.
    Response: A portion of the Crooked River makes up part of the NEP 
area and we agree that access to the Crooked River is very important 
for the reintroduction. The details of the reintroduction program are 
separate from the designation, and the designation is meant to help the 
reintroduction succeed by encouraging local support for the program and 
completion of conservation measures in a time certain. The designation, 
with its 12-year expiration date, is not tied to completion of a 
successful program. The Opal Springs Hydroelectric Project currently 
blocks adult steelhead, and other species, from volitionally accessing 
most of the Crooked River. A settlement agreement on fish passage was 
completed in August 2011. The owners of this hydropower project are 
seeking funds to complete construction of an adult fish passage 
facility, and are currently developing an interim passage program so 
that returning adult steelhead can be collected and released above the 
project.

(9) General Support for the Designation

    Comment 9: Three commenters stated general support for the rule. 
Two of them provided an explanation that it will foster local 
cooperation to recover listed species, and will encourage completion of 
the HCP and other conservation measures.
    Response: We agree that the rule will foster local support for the 
reintroduction program that will aid in recovery of the MCR steelhead. 
This support includes completion of the HCP and other conservation 
measures supporting the reintroduction.

Conclusion

    After review of the comments and further consideration, we have 
decided to adopt the proposed rule that was published in the Federal 
Register (76 FR 28715) on May 18, 2011, with only non-substantive 
editorial changes. Minor modifications were made to remove unnecessary 
regulatory language and provide clarity. The modifications make no 
change to the substance of the rule.

Findings

    The statutory criteria for designating an experimental population 
under ESA section 10(j) are met for this designation.
    (1) Further the conservation of the species. Based on the best 
available scientific information, we find that the continued release of 
MCR steelhead above the Pelton Round Butte Project as an NEP will 
further the conservation of the species for the following reasons. We 
expect that this will encourage private landowners, as well as local, 
state and Federal entities, to continue to develop and expand 
implementation of effective conservation actions throughout the 
geographic NEP range and in areas affecting environmental conditions in 
the geographic NEP range. Our expectation that this will occur is an 
important factor in finding that this rule furthers the conservation of 
the species.
    Providing a 12-year term for the NEP designation will further the 
conservation of the species because conservation actions can be based 
on site-specific biological and environmental information gathered 
during that 12-year term. Conservation measures, any completed HCPs, 
and other permits, authorizations, or approvals developed during the 
12-year term that are based on the best available scientific 
information and include measures designed to protect or conserve MCR 
steelhead in the geographic NEP range should include appropriate 
adaptive management components that may require modification, 
expansion, or adjustment of their conservation and mitigation actions 
to take new site specific biological and environmental information into 
account.
    (2) Geographically separate from non-experimental populations. The 
NEP will be geographically separated from nonexperimental populations 
by Round Butte Dam (the most upstream dam of the three-dam hydropower 
complex), which does not allow volitional passage. The MCR steelhead 
will only be

[[Page 2906]]

considered experimental when they are above Round Butte Dam.
    (3) Non-essential designation. This experimental population is 
nonessential because it is not key to whether recovery can be achieved 
for this steelhead DPS. In addition, juvenile outplants are made up 
solely of excess hatchery stock that are not necessary for the survival 
and recovery of the species, and returning adults passed in the NEP 
area will be predominantly, if not solely, from the same stock.

Information Quality Act and Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (Section 515 of Public Law 106-554). The 
Bulletin was published in the Federal Register on January 14, 2005 (70 
FR 2664). The Bulletin established minimum peer review standards, a 
transparent process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. There are no documents supporting this final rule that meet this 
criteria.

Classification

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    In accordance with the criteria in E.O. 12866, OMB has determined 
this final rule is not a significant rulemaking action.
    This final rule will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency. Federal agencies most interested in this 
rulemaking are the USFS, BLM, and BOR. Because of the substantial 
regulatory relief provided by the NEP designation, we believe the 
reestablishment of steelhead in the areas described would not conflict 
with existing human activities or hinder public utilization of the 
area.
    This final rule also would not materially affect entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients.

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

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if adopted, would not have a 
significant economic effect on a substantial number of small entities. 
None of the public comments submitted to NMFS addressed this 
certification, and no new information has become available that would 
change this determination. As a result, no final regulatory flexibility 
analysis is required and none has been prepared.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this final rule does not have 
significant takings implications. A takings implication assessment is 
not required because this rule: (1) Would not effectively compel a 
property owner to have the government physically invade their property, 
and (2) would not deny all economically beneficial or productive use of 
the land or aquatic resources. This final rule would substantially 
advance a legitimate government interest (conservation and recovery of 
a listed fish species) and would not present a barrier to all 
reasonable and expected beneficial use of private property.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    OMB regulations at 5 CFR part 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 on the human 
environment and considered a reasonable range of alternatives for this 
final rule. We made the draft EA available for public comment along 
with the proposed rule, received one set of comments, and responded to 
those comments in an Appendix to the EA. We have prepared a final EA on 
this proposed action and have made it available for public inspection 
(see ADDRESSES section).

Government-to-Government Relationship With Tribes

    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If we issue a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes), we 
must consult with those governments, or the Federal Government must 
provide funds necessary to pay direct compliance costs incurred by 
Tribal governments. Accordingly, we engaged in a technical consultation 
with the CTWS on December 7, 2012, and discussed the rule and their 
recommendations. The CTWS' recommendations were incorporated into this 
final rule.
    Furthermore, Secretarial Order 3206 acknowledges the trust 
responsibility and treaty obligations of the United States toward 
recognized tribes and tribal members, as well as its government-to-
government relationship with tribes. The order requires NMFS to carry 
out its ESA responsibilities in a manner that harmonizes the Federal 
trust responsibility to tribes, tribal sovereignty, and statutory 
missions of the Department of Commerce, and that strives to ensure that 
tribes do not bear a disproportionate burden for the conservation of 
listed species to avoid or minimize the potential for conflict and 
confrontation.
    The CTWS are co-managers of natural resources and share management 
responsibilities and rights for fisheries in the Columbia Basin. In the 
Deschutes River basin, MCR steelhead have important cultural, 
religious, tribal subsistence, ceremonial, and commercial value for the 
CTWS. The CTWS is engaged in the ongoing reintroduction as one of the 
Licensees, through the Warm Springs Power and Water Enterprises, and as 
a member of the Pelton Fish Committee, through the Natural Resources 
Management Services. Moreover, the CTWS own about 28 percent of the 
land included in the NEP.

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking any action that promulgates or is expected to lead to the 
promulgation of a final rule or regulation that (1) is a significant 
regulatory action under E.O. 12866 and

[[Page 2907]]

(2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
    This final 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. We did not receive any comments regarding energy supplies, 
distribution, and use.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from National Marine Fisheries Service (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports.

    Dated: January 9, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


Sec.  223.211  [Removed and Reserved]

0
2. Section 223.211 is removed and reserved.


Sec. Sec.  223.212 through 223.300  [Reserved]

0
3. Add reserved Sec. Sec.  223.212 through 223.300.

0
4. Add Sec.  223.301 to read as follows:


Sec.  223.301  Special rules--marine and anadromous fishes.

    (a) Middle Columbia River steelhead (Oncorhynchus mykiss).
    (1) The Middle Columbia River steelhead located in the geographic 
areas identified in paragraph (a)(4) of this section comprise a 
nonessential, experimental population (NEP).
    (2) Take of this species that is allowed in the NEP area. (i) 
Taking of Middle Columbia River (MCR) steelhead that is otherwise 
prohibited by paragraph (a)(3) of this section and 50 CFR 223.203(a), 
provided that the taking is unintentional; not due to negligent 
conduct; and incidental to, and not the purpose of, the carrying out of 
an otherwise lawful activity. Examples of otherwise lawful activities 
include recreational fishing, recreation, agriculture, forestry, 
municipal usage, and other similar activities, which are carried out in 
accordance with Federal, state, and local laws and regulations as well 
as applicable tribal regulations.
    (ii) Handling of MCR steelhead in the NEP area by NMFS, Oregon 
Department of Fish and Wildlife (ODFW) and the Confederated Tribes of 
the Warm Springs Reservation of Oregon (CTWS) employees and authorized 
agents acting on their behalf for scientific purposes and by the 
Portland General Electric Company (PGE) and CTWS employees and 
authorized agents acting on their behalf for the purpose of monitoring 
and evaluating the ongoing reintroduction under the Federal Energy 
Regulatory Commission (FERC) license for the Pelton Round Butte 
Hydroelectric Project (FERC No. 2030).
    (iii) Taking of MCR steelhead incidental to any activities related 
to or associated with the operation and maintenance of Pelton Round 
Butte Hydroelectric Project's (FERC Project No. 2030) Round Butte Dam 
by PGE or CTWS as administered under a license issued by FERC. 
Acceptable forms of taking of steelhead include, but are not limited 
to, mortality, stranding, injury, impingement at Round Butte Dam 
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 Round Butte Dam include, but are not 
limited to:
    (A) Hydroelectric generation;
    (B) Maintenance of project facilities;
    (C) Provision of upstream and downstream fish passage,
    (D) Fish handling at fish separation and counting facilities;
    (E) Fish conservation activities;
    (F) Fish handling, tagging, and sampling in connection with FERC 
approved studies; and
    (G) Approved resource protection, mitigation, and enhancement 
measures.
    (iv) Handling MCR steelhead by Deschutes Valley Water District 
employees and agents acting on their behalf for the purpose of 
monitoring and evaluating the Opal Springs Hydroelectric Project (FERC 
No. 5891).
    (v) Take incidental to any activities related to or associated with 
the operation and maintenance of the Opal Springs Hydroelectric Project 
(FERC Project No. 5891) as administered under a license issued by FERC 
and the Settlement Agreement Concerning License Amendment for Fish 
Passage, dated October 2011.
    (vi) Take of MCR steelhead by any person with a valid permit issued 
by NMFS and a valid permit issued by the ODFW for educational purposes, 
scientific purposes, and the enhancement of propagation or survival of 
the species, zoological exhibition, and other conservation purposes 
consistent with the ESA.
    (3) Take of this species that is not allowed in the NEP area. (i) 
Except as expressly allowed in paragraph (a)(2) of this section, the 
taking of MCR steelhead is prohibited within the NEP geographic area, 
as provided in 50 CFR 223.203(a).
    (ii) No person shall possess, sell, deliver, carry, transport, 
ship, import, or export, by any means whatsoever, MCR steelhead taken 
in violation of this paragraph (a)(3)(ii) and 50 CFR 223.203(a).
    (4) Geographic extent of the nonessential experimental population 
of Middle Columbia River steelhead. (i) The geographic range of this 
experimental population is all accessible reaches upstream of Round 
Butte Dam on the Deschutes River, including tributaries Whychus Creek, 
Crooked River and Metolius River. More specifically, the geographic 
range includes all accessible reaches of the Deschutes River downstream 
to Round Butte Dam; the Whychus Creek subbasin; the Metolius River 
subbasin; and the Crooked River subbasin from Bowman Dam downstream 
(including the Ochoco and McKay Creek watersheds) to its point of 
confluence with the Deschutes River.
    (ii) Round Butte Dam is the downstream terminus of this NEP. When 
MCR steelhead are below the Round Butte Dam, they will be outside the 
NEP area and thus considered part of the nonexperimental population.
    (5) Review and evaluation of nonessential experimental population. 
As a requirement under its Federal license to operate the Pelton Round 
Butte Project, Portland General Electric Company and the Confederated 
Tribes of the Warm Springs Reservation of Oregon will conduct 
monitoring over the 50-year term of the license. This monitoring will 
include collecting information on the reintroduction program that NMFS 
will use in evaluating the NEP designation.
    (6) Time frame for NEP designation. This NEP designation will 
expire on January 15, 2025.
    (b) [Reserved]

[FR Doc. 2013-00700 Filed 1-14-13; 8:45 am]
BILLING CODE 3510-22-P