Designated Critical Habitat; Umpqua River Cutthroat Trout

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

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

RIN 0648-AG58

Designated Critical Habitat; Umpqua River Cutthroat Trout

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is designating critical habitat for the Umpqua River

cutthroat trout (Oncorhynchus clarki clarki). Designated critical

habitat includes all river reaches of the Umpqua River accessible to

cutthroat trout, including all Umpqua River estuarine areas and

tributaries upstream from the Pacific Ocean to the confluence of the

North and South Umpqua Rivers; the North Umpqua River, including all

tributaries, from its confluence with the mainstem Umpqua River to Soda

Springs dam; the South Umpqua River, including all tributaries, from

its confluence with the mainstem Umpqua River to its headwaters.

Critical habitat includes all waterways below longstanding, naturally

impassable barriers (i.e., natural water falls in existence for over

several hundred years). Such areas represent the current freshwater and

estuarine range of the listed species. The economic and other impacts

resulting from this critical habitat designation are expected to be

minimal.

NMFS is excluding areas above Soda Springs dam on the North Umpqua

River from critical habitat. Available information indicates that

habitat above Soda Springs dam is not currently essential for the

conservation of this species. NMFS may revise this determination in the

future should new information indicate habitat above Soda Springs dam

is essential for the conservation of the species.

DATES: This rule is effective February 9, 1998. The incorporation by

reference of certain publications listed in the regulations is approved

by the Director of the Federal Register as of February 9, 1998.

FOR FURTHER INFORMATION CONTACT: Jim Lynch, NMFS, Protected Resources

Division, 525 NE Oregon St., Suite 500, Portland, OR, 97232-2737,

telephone (503/230-5422), internet ([email protected]).

SUPPLEMENTARY INFORMATION:

Background

On August 9, 1996, NMFS published its determination to list Umpqua

River cutthroat trout (Oncorhynchus clarki clarki) as endangered under

the Endangered Species Act (ESA) (61 FR 41514). In its final listing

determination, NMFS concluded that all cutthroat trout life history

forms (i.e., anadromous, potamodromous, and resident) should be

included in the listed Umpqua River cutthroat trout Evolutionarily

Significant Unit. This conclusion was based on studies conducted by

Oregon Department of Fish and Wildlife (ODFW) and others that indicate

these life history forms are not completely reproductively isolated

and, therefore, should be considered a single ``distinct population

segment,'' under the ESA and NMFS' ESA species policy (61 FR 41516).

Historically, anadromous, potamodromous, and resident cutthroat

trout likely existed throughout the Umpqua River basin. The current

freshwater distribution of anadromous and potamodromous life forms is

thought to be limited primarily to the mainstem, Smith, and North

Umpqua Rivers. Resident cutthroat trout appear to remain broadly

distributed throughout the Umpqua River basin, including areas of the

South Umpqua River thought to support insignificant numbers of

anadromous cutthroat trout populations.

Section 4(a)(3)(A) of the ESA requires that, to the maximum extent

prudent and determinable, NMFS designate critical habitat concurrently

with a determination that a species is endangered or threatened. On

July 19, 1993, NMFS published a Federal Register notice soliciting

information and data regarding the present and historic status of the

Umpqua River cutthroat trout, as well as information on areas that may

qualify as critical habitat (58 FR 38544). At the time of final

listing, critical habitat was not determinable, since information

necessary to perform the required analyses was not available.

On July 30, 1997, NMFS published a proposed rule designating

critical habitat for the listed species (62 FR 40786). In that proposed

rule, NMFS solicited public comments and announced public hearings on

the proposed action. This final rule considers new information and

comments received in response to the proposed rule.

Use of the term ``essential habitat'' within this final rule refers

to critical habitat as defined by the ESA and should not be confused

with the requirement to describe and identify Essential Fish Habitat

(EFH) pursuant to the Magnuson-Stevens Fishery Conservation and

Management Act, 16 U.S.C. 1801 et seq.

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) of the ESA as ``(i)

the specific areas within the geographical area occupied by the species

* * * on which are found those physical or biological features (I)

essential to the conservation of the species and (II) which may require

special management considerations or protection; and (ii) specific

areas outside the geographical area occupied by the species * * * upon

a determination by the Secretary [of Commerce] that such areas are

essential for the conservation of the species.'' (See 16 U.S.C.

1532(5)(A).) The term ``conservation,'' as defined in section 3(3) of

the ESA, means, ``* * * to use and the use of all methods and

procedures which are necessary to bring any endangered species or

threatened species to the point at which the measures provided pursuant

to this Act are no longer necessary.'' (See 16 U.S.C. 1532(3).)

In designating critical habitat, NMFS considers the following

requirements of the species, space for individual and population

growth, and for normal behavior, food, water, air, light, minerals, or

other nutritional or physiological requirements, cover or shelter,

sites for breeding, reproduction, or rearing of offspring; and,

generally, habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of this species (See 50 CFR Sec. 424.12(b)). In addition

to these factors, NMFS also focuses on the known physical and

biological features (primary constituent elements) within the

designated area that are necessary to the conservation of the species

and may require special management considerations or protection. These

essential features may include, but are not limited to, spawning sites,

food resources, water quality and quantity, and riparian vegetation

(See 50 CFR Sec. 424.12(b).)

Benefits of Critical Habitat Designation

A designation of critical habitat provides a clear indication to

Federal

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agencies as to when section 7 consultation is required, particularly in

cases where the proposed action would not result in direct mortality,

injury, or harm to individuals of a listed species (e.g., an action

occurring within the critical area when a migratory species is not

present). The critical habitat designation, describing the essential

features of the habitat, also assists in determining which activities

conducted outside the designated area are subject to section 7 (i.e.,

activities outside critical habitat that may affect essential features

of the designated area).

A critical habitat designation will also assist Federal agencies in

planning future actions, since the designation establishes, in advance,

those habitats that will be given special consideration in section 7

consultations. With a designation of critical habitat, potential

conflicts between Federal actions and endangered or threatened species

can be identified and possibly avoided early in the agency's planning

process.

Another indirect benefit of a critical habitat designation is that

it helps focus Federal, state, and private conservation and management

efforts in such areas. Management efforts may address special

considerations needed in critical habitat areas, including conservation

regulations to restrict private as well as Federal activities. The

economic and other impacts of these actions would be considered at the

time of the proposed regulations and, therefore, are not considered in

the critical habitat designation process. Other Federal, state, and

local authorities, such as zoning or wetlands and riparian lands

protection, may also provide special protection for critical habitat

areas.

Summary of Comments

Two public hearings were held on the proposed action--one in

Roseburg, Oregon, on August 16, 1997, and one in Reedsport, Oregon, on

August 17, 1997. Twenty-four individuals provided oral testimony at the

two public hearings. Ten written comments were submitted in response to

the proposed rule. The majority of the oral and written comments

opposed designation of critical habitat. New information and comments

received in response to the proposed rule are summarized here.

Economic Considerations

Comment: Several commenters stated that NMFS improperly minimized

the economic impacts by separating the designation of critical habitat

from the listing process (i.e., considering only the incremental

economic effects of designating critical habitat beyond the effects

associated with listing the species as threatened or endangered). These

commenters are concerned that by separating the costs associated with

the various administrative actions (e.g., listing, critical habitat

designation, section 7 consultations), NMFS underestimated the real

economic consequences of protecting listed Umpqua River cutthroat trout

as required by the ESA. Several commenters objected to NMFS'

interpretation that the impact of critical habitat designation only

duplicates the protection provided under section 7 of the ESA. Also,

several commenters believe that using an incremental approach for

critical habitat designation renders sections of the ESA meaningless

and circumvents the intent of Congress.

Response: NMFS disagrees with the assertion that it has improperly

minimized the economic impacts by separating the designation of

critical habitat from the listing process, or that this incremental

approach for critical habitat designation renders sections of the ESA

meaningless. Rather, the ESA is unambiguous in how it addresses

economic impacts; it prohibits the consideration of economic impacts in

the listing process, but requires analysis of economic impacts when

designating critical habitat. These separate requirements for each

determination lead to an incremental analysis in which only the

economic impacts resulting from the designation of the critical habitat

are considered.

Since NMFS is designating the current range of the listed species

as critical habitat, this designation will not impose any additional

requirements or economic effects beyond those which may accrue from

section 7 of the ESA. Section 7 requires Federal agencies to insure

that any action they carry out, authorize, or fund is not likely to

jeopardize the continued existence of any listed species or result in

the destruction or adverse modification of habitat which is determined

to be critical. The consultation requirements of section 7 are

nondiscretionary and are effective at the time of species listing.

Therefore, Federal agencies must consult with NMFS and ensure their

action does not jeopardize a listed species regardless of whether

critical habitat is designated.

The designation of critical habitat remains important

notwithstanding its lack of economic impact because it identifies

habitat that is essential for the continued existence of a species and

that may require special management attention. This facilitates and

enhances Federal agencies' ability to comply with section 7 by ensuring

that they are aware of their activities on listed species and habitats

essential to support them. In addition to aiding Federal agencies in

determining when consultations are required pursuant to section

7(a)(2), critical habitat can aid an agency in fulfilling its broader

obligation under section 7(a)(1) to use its authority to carry out

programs for the conservation of listed species.

Comment: Several commenters asserted that the incremental approach

fails to take into account the substantial effect on non-Federal

interests that will be harmed by critical habitat designation to the

extent they must receive Federal approvals or funds to conduct their

activities.

Response: Most of the effect on non-Federal interests will result

from the taking prohibition of section 9, or the no-jeopardy

requirement of section 7, both of which are a function of the listing

of the species, not of the designation of critical habitat. Whether or

not critical habitat is designated, non-Federal interests must conduct

their actions consistent with the requirements of the ESA. When a

species is listed, non-Federal interests must comply with the

prohibitions on takings under section 9 of the ESA or associated

regulations. If the activity is funded, permitted, or authorized by a

Federal agency, that agency must comply with the non-jeopardy mandate

of section 7 of the ESA, which is also a result of the listing of a

species, not of the designation of critical habitat. Once critical

habitat is designated, the agency must avoid actions that destroy or

adversely modify that critical habitat. However, pursuant to NMFS' ESA

implementing regulations, any action that destroys or adversely

modifies critical habitat is also likely to jeopardize the continued

existence of the species (See 50 CFR Sec. 402.02). Therefore, NMFS does

not anticipate that the designation will result in significant

additional requirements for non-Federal interests.

Scope and Extent of Critical Habitat

Comment: Several commenters questioned NMFS' delineation of

critical habitat as including all areas currently accessible to the

species. One commenter stated that NMFS should only designate areas as

critical habitat that have been proven to contain the species. Several

commenters questioned why NMFS had not designated critical habitat in

marine areas while one commenter agreed that omitting such areas was

appropriate at this stage.

Response: Critical habitat is defined in section 3(5)(A) of the ESA

as the specific areas within the geographic area occupied by the

species on which are

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found those physical or biological features that are essential to the

conservation of the species and that may require special management

considerations or protection. Based on commenters' concerns and on new

information received during the public comment period, NMFS has refined

its designation of critical habitat for Umpqua River cutthroat trout.

The following sections address these commenters' concerns and clarify

NMFS' designation of critical habitat for this species.

Estuarine and Marine Habitats

NMFS recognizes that the Umpqua River estuary is an essential

rearing area and migration corridor for listed Umpqua River cutthroat

trout, and has maintained the designation of the estuary as critical

habitat in this final rule. Although they are also important, NMFS

believes that marine habitats (i.e., oceanic or nearshore areas seaward

of the mouth of the Umpqua River) used by listed Umpqua River cutthroat

trout do not presently warrant designation and do not appear to be in

need of special management consideration or protection. Degradation of

this portion of the species' habitat does not appear to have been a

significant factor in the decline of the species. Specifically,

existing laws appear adequate to protect these areas, and special

management of this habitat is not considered necessary at this time. If

additional evidence supports the inclusion of marine areas, NMFS may

revise designated critical habitat in accordance with 50 CFR

Sec. 424.16. NMFS will, of course, continue to consult under section 7

of the ESA to address Federal actions that may affect the species or

result in takings in the ocean, such as Federal management of ocean

fishing.

Freshwater Habitats

NMFS has determined that it is possible to determine most river

reaches and lakes critical to the conservation of listed Umpqua River

cutthroat trout. However, Umpqua River cutthroat trout inhabit a wide

range of habitats, from the mainstem Umpqua River to small perennial

and intermittent streams. This use of diverse habitats coupled with the

inadequacy of existing species distribution maps makes it extremely

difficult to identify all specific river reaches required by this

species. Furthermore, designating each specific river reach would not

necessarily aid current conservation efforts for this species since

there is the potential of excluding small, yet important, tributaries

from the critical habitat designation. Therefore, it is presently not

feasible to designate each particular river reach that could be

considered as critical habitat for Umpqua River cutthroat trout.

Accordingly, NMFS has determined that it is prudent to designate

specific hydrologic units (i.e., federally-designated river basin

boundaries) that include or contain river reaches presently or

historically accessible to this species (except reaches upstream of

impassable natural falls, and Soda Springs dam). These reaches are

known to contain physical and biological features vital to the

conservation of Umpqua River cutthroat trout (see Table 4 in the

regulatory text). Figure 9 identifies the general geographic extent of

larger rivers, lakes, and streams within hydrologic units designated as

critical habitat for Umpqua River cutthroat trout. Note that Figure 9

does not constitute the definition of critical habitat, but instead is

provided as a general reference to guide Federal agencies and

interested parties in locating the general boundaries of critical

habitat for listed Umpqua River cutthroat trout. The complete text

delineating critical habitat for this species can be found in the final

regulation below. Table 4 to this part provides a list of affected

counties.

NMFS acknowledges that many of the river reaches within the

hydrologic units designated as critical habitat may not presently be

inhabited by the listed species. Salmonids and cutthroat trout in

particular, are highly migratory and utilize numerous types of habitat

throughout their life cycles. This species' life history is not fully

understood. However, three separate life forms have been identified and

are included in the listed ESU: anadromous fish (ocean-migrating),

potamodromous fish (in-river migrating), and resident fish (freshwater

dwelling). Given the complexity of cutthroat trout's life history and

the diversity of its habitat needs, NMFS believes that all areas that

are currently accessible to the listed species may be critical to its

recovery and survival. Furthermore, the vast majority of streams in the

Umpqua River basin contribute essential elements such as food, gravel,

large woody debris, and water quality to this species' habitat. Hence,

their inclusion as part of the critical habitat is in keeping with the

ESA's purpose ``* * * to provide a means whereby the ecosystems upon

which endangered species or threatened species depend may be conserved

* * *'' (16 U.S.C. 1532(b)). Until information is developed that allows

more definitive and detailed characterization of stream reaches as

critical or noncritical, NMFS chooses to adopt a more inclusive

critical habitat designation incorporating river reaches in hydrologic

units presently or historically accessible (except reaches upstream of

impassable natural falls, and Soda Springs dam) to cutthroat trout.

Experience gained by NMFS through section 7 consultations clearly

demonstrates the importance of assessing potential impacts of actions

within entire watersheds. It is well documented that human activities

in areas outside the immediate stream channel can have a demonstrable

effect on physical and biological features essential to the

conservation of listed Umpqua River cutthroat trout. For example, road

building and timber harvest operations in upland areas can result in

adverse modifications to cutthroat trout spawning and rearing areas via

landslides, sedimentation, fuel spills, and loss of riparian vegetation

that provides shade, cover, and other habitat functions.

Comment: Several commenters questioned why NMFS designated riparian

areas 300 ft. (91.4 m) on each side of the stream channel high water

line as critical habitat. Several commenters also questioned if the

300-ft. (91.4 m) riparian buffer applied to nonfish-bearing streams.

Response: Riparian habitats provide several essential elements for

cutthroat trout. The reduction in riparian tree shade canopy can

produce significant increases in water temperatures (Bottom et al.,

1985; California Department of Fish and Game, 1994; Forest Ecosystem

Management Assessment Team (FEMAT), 1993). Riparian vegetation protects

stream banks from erosion through soil binding by root masses and the

presence of ground litter and dense overstory canopy, which impedes the

rate of surface runoff (FEMAT, 1993). Riparian vegetation provides

important substrates for aquatic invertebrates, cover for predator

avoidance, and resting habitat for many fish species. Riparian

vegetation that is carried from upland areas and deposited in estuaries

is a major source of food and habitat for obligatory, wood-boring

marine invertebrates which break down and pass usable carbon into the

water's current where it enters the detrital-based marine food web

(Sedell and Maser, 1994). As much as 99 percent of the annual energy

input, the food base for all aquatic communities, comes from riparian

vegetation (Reynolds et al., 1993). Removal of streamside vegetation

simplifies channel banks and destroys shelter for rearing fish species,

simplifies channel shape so there are fewer pools and riffles, and

eventually

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leads to a widening of channels that are more prone to warming by

sunlight (Botkin et al., 1995; California Advisory Committee on Salmon

and Steelhead Trout, 1988; California Department of Fish and Game,

1994).

Biophysical characteristics and processes that create riparian

zones vary considerably throughout the range of listed Umpqua River

cutthroat trout. However, riparian zones along the Umpqua River are

considered essential for the conservation of the listed species because

they provide important space, cover, and shelter, and increase river

productivity. Furthermore, healthy riparian zones help ensure that

water quality parameters support physiological and behavioral

requirements of the listed species.

In the Umpqua River basin, critical habitat includes the water,

waterway bottom, and the adjacent riparian zone. A 1992 report by the

U.S. Fish and Wildlife Service (FWS) states that riparian streambanks

are composed of natural, eroding substrates supporting vegetation that

either overhangs or protrudes into the water and, consequently,

provides shade and escape cover for salmonids and other wildlife.

Furthermore, according to a 1993 report by FEMAT, riparian zones

consist of ``areas where the vegetation complex and microclimate

conditions are products of the combined presence and influence of

perennial and/or intermittent water, associated high water tables, and

soils that exhibit some wetness characteristics.'' The FEMAT report

contains a comprehensive review of riparian ecosystem components, and

specifies that riparian zones for fishbearing streams should consist of

``* * * the area on either side of the stream extending from the edges

of the active stream channel to the top of the inner gorge, or to the

outer edges of the 100-year floodplain, or to the outer edges of

riparian vegetation, or to a distance equal to the height of two site-

potential trees, or 300 ft. (91.4m) slope distance (600 ft. (182.8 m),

including both sides of the stream channel), whichever is greatest.''

Since adverse modification of riparian zones may impede the

recovery of the endangered Umpqua River cutthroat trout, the adjacent

riparian zone is included in the critical habitat designation. It is

important to note that this critical habitat designation includes all

river reaches of the Umpqua River currently accessible to endangered

Umpqua River cutthroat trout. In most cases, this critical habitat

designation will encompass fishbearing streams only.

NMFS recognizes that the influences of riparian vegetation

progressively decrease away from the water source (e.g., river), making

it difficult to identify discrete boundaries for the riparian zones. As

a reasonable benchmark, NMFS defines the ``adjacent riparian zone'' as

those areas within a slope distance of 300 ft. (91.4 m) from the normal

line of high water of a stream channel or from the shoreline of a

standing body of water. NMFS points out that this definition is adopted

solely as a means by which agencies can evaluate the potential risk of

proposed actions on designated critical habitat. The actual delineation

of riparian zones at the site of a proposed action can be more

accurately identified through section 7 consultations.

Comment: One commenter stated that NMFS should exclude areas above

Soda Springs dam on the North Umpqua River from a critical habitat

designation since: (1) cutthroat trout do not currently inhabit the

area above Soda Springs dam, and (2) available habitat above Soda

Springs dam is not essential for the conservation of the species.

Response: Since the proposed listing, several new sources of

information indicate that cutthroat trout do not occur in the North

Umpqua River above Soda Springs dam. Surveys conducted by PacifiCorp in

the North Umpqua River and tributaries above Soda Springs dam indicate

that these areas are dominated by rainbow trout, brown trout, and brook

trout and do not contain cutthroat trout (PacifiCorp, 1997).

PacifiCorp's analysis appears to be supported by recent survey work

conducted by the U.S. Forest Service (USFS) in this area. In a recent

survey conducted by USFS biologists in Fish Creek, a tributary to the

North Umpqua River just above Soda Springs dam, USFS personnel

collected samples of fish thought to be cutthroat trout, or cutthroat

trout-rainbow trout hybrids (USFS, 1997). These samples were sent to

NMFS for genetic analysis. Initial lab results indicate that all the

fish submitted are rainbow trout, not cutthroat trout (NMFS, 1997).

Aside from new information submitted by PacifiCorp and USFS, the

Oregon Department of Fish and Wildlife (ODFW) has previously stated its

belief that no cutthroat trout occur above Soda Springs dam (ODFW,

1996).

Regardless whether cutthroat trout currently occur above Soda

Springs dam, NMFS may designate areas as critical habitat outside the

current species range if it finds that designation of the present range

would be inadequate to ensure conservation of the species (50 CFR

Sec. 424.12(e)). In the present case, areas above Soda Springs dam

appear to be inhabited by species that could outcompete or hybridize

with introduced cutthroat trout, reducing the species' viability in

this area (PacifiCorp, 1997).

Based on new information submitted by PacifiCorp and USFS and on

previous comments from ODFW, NMFS concludes that habitat areas above

Soda Springs dam are not currently essential for the conservation of

listed Umpqua River cutthroat trout. Therefore, NMFS is revising the

proposed critical habitat designation to exclude areas above Soda

Springs dam on the North Umpqua River from Umpqua River cutthroat trout

critical habitat. NMFS may, in the future, revise this designation

should new information come to light indicating that such habitat areas

are essential for conservation purposes.

Even though NMFS is not designating areas above Soda Springs dam as

critical habitat for Umpqua River cutthroat trout, this in no way

affects NMFS' listing of resident or potamodromous cutthroat trout

should they be found in the future to exist above Soda Springs dam. If

cutthroat trout are found to occur above the dam in the future, parties

will have the duty to avoid ``take'' under section 9 of the ESA.

Adequacy of Existing Management Plans

Comment: Several commenters stated that existing management plans

and conservation initiatives were sufficient to protect Umpqua River

cutthroat trout and its habitat, and, therefore, the proposed critical

habitat designation is not warranted.

Response: NMFS considered existing regulatory mechanisms and

conservation plans applicable to Umpqua River cutthroat trout and its

habitat in the August 9, 1996, final listing determination (61 FR

41514). In that Federal Register notice, a variety of Federal and state

laws and programs were found to have affected the abundance and

survival of anadromous fish populations in the Umpqua River Basin (61

FR 41520). NMFS concluded that available regulatory mechanisms were

inadequate and continued to represent a potential threat to the

species' existence (61 FR 41520).

Since the final listing determination, the State of Oregon

completed a significant conservation initiative entitled the Oregon

Coastal Salmon Restoration Initiative (OCSRI). The OCSRI currently

focuses on factors that have led to the decline of coastal coho salmon.

In addressing these factors, the State has implemented measures to

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improve habitat quality and lessen impacts from hatchery and harvest

practices.

NMFS believes that habitat measures contained in the OCSRI will

likely provide benefits for Umpqua River cutthroat trout over the long

term. However, the OCSRI relies exclusively on Federal measures to

protect salmon habitat on Federal lands. The majority of lands within

the range of Umpqua River cutthroat trout are in Federal ownership.

Therefore, under the OCSRI, it is imperative that existing Federal

protections under the Northwest Forest Plan and related Federal

measures that are described in the OSCRI protect the species to the

greatest extent. On private lands, the OCSRI relies heavily upon

voluntary measures to protect and enhance aquatic habitat. NMFS

believes that these voluntary measures may benefit Umpqua River

cutthroat trout. However, given the present status of the species

(endangered), NMFS concludes that it would be imprudent to rely on

voluntary measures on private lands to conserve this species and its

habitat. Critical habitat designation will assure careful scrutiny of

and priority attention to Federal actions that may impact Umpqua River

cutthroat trout habitats, resulting in strengthened protection for this

endangered species.

Changes From the Proposed Rule

Section 226.22 incorrectly amended references to the hydrologic

unit maps in the proposed rule. These maps have been correctly

referenced in this final rule.

Critical Habitat of Umpqua River Cutthroat Trout

Available biological information for listed Umpqua River cutthroat

trout can be found in the species' status review (Johnson et al., 1994)

and in Federal Register notices of proposed and final listing

determinations ( see 59 FR 35089, July 8, 1994); 61 FR 41514, August 9,

1996). Critical habitat consists of five components, spawning and

juvenile rearing areas, juvenile migration corridors, areas for growth

and development to adulthood, adult migration corridors, and over-

wintering habitat. The Pacific Ocean areas used by listed cutthroat

trout for growth and development to adulthood are not well understood,

and essential areas and features have not been identified.

The current geographic range of Umpqua River cutthroat trout

includes nearshore ocean areas, the mainstem Umpqua River and its

tributaries, and the North and South Umpqua Rivers and their

tributaries. NMFS has determined that the current freshwater and

estuarine range (referred to as the in-river range) of the species is

adequate to ensure the species' conservation. The species' current in-

river range encompasses all critical habitat features (e.g., riverine

conditions, estuaries, headwater areas) in sufficient quantity to

ensure conservation of the species. Therefore, designation of habitat

areas outside the species' current in-river range is not necessary.

NMFS recognizes the Umpqua River estuary is an essential migration

corridor for listed Umpqua River cutthroat trout and, accordingly, has

included estuary areas as critical habitat in this designation.

However, the importance of marine habitats (i.e., oceanic or near shore

areas seaward of the mouth of the Umpqua River) is not well understood

(Pauley, 1989; Behnke, 1992). In addition to a lack of biological

information concerning the marine life history phase of cutthroat

trout, a need for special management consideration or protection of

this habitat is not apparent. Based on present information, degradation

of this portion of the species' habitat does not appear to have been a

significant factor in the decline of the species.

Essential features of the designated in-river areas include

adequate substrate, water quality, water quantity, water temperature,

food, riparian vegetation, and access. Juvenile migration corridors

include the North and South Umpqua Rivers and the mainstem Umpqua River

to the Pacific Ocean. Essential features of the juvenile migration

corridors include adequate: (1) Substrate; (2) water quality; (3) water

quantity; (4) water temperature; (5) water velocity; (6) cover/shelter;

(7) food; (8) riparian vegetation; (9) space; and (10) safe passage

conditions. Adult migration corridors and their essential features are

the same as those identified for juvenile migration corridors.

Critical Habitat: Geographic Extent

Critical habitat includes all river reaches accessible to listed

Umpqua River cutthroat trout from a straight line connecting the west

end of the South jetty and the west end of the North jetty and

including all Umpqua River estuarine areas (including the Smith River)

and tributaries proceeding upstream from the Pacific Ocean to the

confluence of the North and South Umpqua Rivers; the North Umpqua

River, including all tributaries, from its confluence with the mainstem

Umpqua River to Soda Springs dam; the South Umpqua River, including all

tributaries, from its confluence with the mainstem Umpqua River to its

headwaters (including Cow Creek, tributary to the South Umpqua River).

Critical habitat includes all waterways below longstanding, naturally

impassable barriers (i.e., natural water falls in existence for over

several hundred years). Critical habitat includes the bottom and water

of the waterways and adjacent riparian zone. The riparian zone includes

those areas within 300 ft. (91.4 m) of the normal line of the high

water mark of the stream channel or from the shoreline of a standing

body of water.

Expected Economic Impacts of Designating Critical Habitat

The economic impacts to be considered in a critical habitat

designation are the incremental effects of critical habitat designation

above the economic impacts attributable to listing or attributable to

authorities other than the ESA (see Consideration of Economic,

Environmental and Other Factors section of this preamble). Incremental

impacts result from special management activities in areas outside the

present distribution of the listed species that have been determined to

be essential to the conservation of the species. However, NMFS has

determined that the species' present in-river range contains sufficient

habitat for conservation of the species. Therefore, NMFS finds that

there are no incremental impacts associated with this critical habitat

designation.

Activities That May Affect Critical Habitat

A wide range of activities may affect the essential habitat

requirements of listed Umpqua River cutthroat trout. These activities

include water and land management actions of Federal agencies (i.e.,

U.S. Forest Service, U.S. Bureau of Land Management, U.S. Bureau of

Reclamation, the Federal Highway Administration, and the Federal Energy

Regulatory Commission) and related or similar actions of other

federally-regulated projects and lands, including livestock grazing

allocations in the Umpqua River Basin by the U.S. Forest Service and

U.S. Bureau of Land Management; hydropower operators (i.e., PacifiCorp)

in the Umpqua River system licensed by the Federal Energy Regulatory

Commission; timber sales in the Umpqua River Basin conducted by the

U.S. Forest Service and U.S. Bureau of Land Management; road building

activities authorized by the Federal Highway Administration, U.S.

Forest Service, and U.S. Bureau of Land Management; and mining and road

building activities authorized by the State of Oregon. Other actions of

concern include dredge and fill, mining,

[[Page 1393]]

and bank stabilization activities authorized and/or conducted by the

U.S. Army Corps of Engineers throughout the Umpqua River Basin.

Federal agencies that will most likely be affected by this critical

habitat designation include the U.S. Forest Service, U.S. Bureau of

Land Management, U.S. Bureau of Reclamation, U.S. Army Corps of

Engineers, the Federal Highway Administration, and the Federal Energy

Regulatory Commission. This designation will provide clear notification

to these agencies, private entities, and the public of critical habitat

designated for listed Umpqua River cutthroat trout and the protection

provided for that habitat by the ESA section 7 consultation process.

This designation will also assist these agencies and others in

evaluating the potential effects of their activities on listed Umpqua

River cutthroat trout and their critical habitat and in determining

when consultation with NMFS would be appropriate.

Need for Special Management Considerations or Protection

To ensure that the essential areas and features are maintained or

restored, special management may be needed. Activities that may require

special management considerations for listed Umpqua River cutthroat

trout spawning and juvenile rearing areas include, but are not limited

to: (1) Land management; (2) timber harvest; (3) water pollution; (4)

livestock grazing; (5) habitat restoration; (6) irrigation water

withdrawal; (7) mining; (8) road construction; and (9) dam operation

and maintenance. For juvenile and adult migration corridors, special

management considerations also include dredge and fill activities, and

dam operations. Not all of these activities are necessarily of current

concern; however, they indicate the potential types of activities that

will require consultation in the future. No special management

considerations have been identified for listed Umpqua River cutthroat

trout residing in the ocean environment.

National Environmental Policy Act

NMFS has determined that an Environmental Assessment or an

Environmental Impact Statement, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared for

this critical habitat designation. See Douglas County v. Babbitt, 48

F.3D 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has

determined that this rule is not significant for purposes of E.O.

12866.

NMFS is designating only the current range of this species as

critical habitat. The current range encompasses a wide range of

habitat, including small tributary reaches, as well as mainstem, off-

channel and estuarine areas. Areas excluded from this final designation

include nearshore habitats in the Pacific Ocean, historically occupied

areas above Soda Springs dam, and headwater areas above impassable

natural barriers (e.g., long-standing, natural waterfalls). NMFS has

concluded that currently inhabited areas within the range of Umpqua

River cutthroat trout are the minimum habitat necessary to ensure

conservation and recovery of the listed species.

Since NMFS is designating the current range of the listed species

as critical habitat, this designation will not impose any additional

requirements or economic effects upon small entities, beyond those

which may accrue from section 7 of the ESA. Section 7 requires Federal

agencies to ensure that any action they carry out, authorize, or fund

is not likely to jeopardize the continued existence of any listed

species or result in the destruction or adverse modification of

critical habitat (16 U.S.C. Sec. 1536(a)(2)). The consultation

requirements of section 7 are nondiscretionary and are effective at the

time of species' listing. Therefore, Federal agencies must consult with

NMFS and ensure their actions do not jeopardize a listed species,

regardless of whether critical habitat is designated.

In the future, if NMFS determines that designation of habitat areas

outside the species' current range is necessary for conservation and

recovery, NMFS will analyze the incremental costs of that action and

assess its potential impacts on small entities, as required by the

Regulatory Flexibility Act. Until that time, a more detailed analysis

would be premature and would not reflect the true economic impacts of

the proposed action on local businesses, organizations, and

governments.

Accordingly, the Assistant General Counsel for Legislation and

Regulation of the Department of Commerce has certified to the Chief

Counsel for Advocacy of the Small Business Administration that the

proposed rule, if adopted, would not have a significant economic impact

of a substantial number of small entities, as described in the

Regulatory Flexibility Act.

This rule does not contain a collection-of-information requirement

for purposes of the Paperwork Reduction Act.

The AA has determined that the proposed designation is consistent,

to the maximum extent practicable, with the approved Coastal Zone

Management Program of the State of Oregon. This determination has been

submitted for review by the responsible state agencies under section

307 of the Coastal Zone Management Act.

References

The complete citations for the references used in this document can

be obtained by contacting Jim Lynch, NMFS (see FOR FURTHER INFORMATION

CONTACT).

List of Subjects in 50 CFR Part 226

Endangered and threatened species, Incorporation by reference.

Dated: December 18, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 226 is to be

amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

follows:

Authority: 16 U.S.C. 1533.

2. Section 226.22, introductory paragraph, is amended by revising

the sixth sentence to read as follows:

Sec. 226.22 Snake River Sockeye Salmon (Oncorhynchus nerka), Snake

River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha), Snake

River Fall Chinook Salmon (Oncorhynchus tshawytscha).

* * * Hydrologic units (table 3) are those defined by the

Department of the Interior (DOI), U.S. Geological Survey (USGS)

publication, ``Hydrologic Unit Maps, United States Geological Survey

Water Supply Paper 2294, 1987'', and the following DOI, USGS, 1:500,000

scale hydrologic unit map: State of Oregon, 1974; State of Washington,

1974; State of Idaho, 1974, which are incorporated by reference. * * *

3. Section 226.23 is added to subpart C to read as follows:

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

(a) The following areas consisting of the water, waterway bottom,

and adjacent riparian zone of specified lakes and river reaches in

hydrologic units presently accessible to listed Umpqua River cutthroat

trout. Adjacent riparian zones are defined as those areas within

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a slope distance of 300 ft. (91.4 m) from the normal line of high water

of a stream channel (600 ft. or 182.8 m, when both sides of the stream

channel are included) or from the shoreline of a standing body of

water. Figure 9 to this part identifies the general geographic extent

of larger rivers, lakes, and streams within hydrologic units designated

as critical habitat for Umpqua River cutthroat trout. Note that Figure

9 does not constitute the definition of critical habitat but, instead,

is provided as a general reference to guide Federal agencies and

interested parties in locating the general boundaries of critical

habitat for listed Umpqua River cutthroat trout. The complete text

delineating the critical habitat for the species follows. Hydrologic

units are those defined by the Department of the Interior (DOI), U.S.

Geological Survey (USGS) publication, ``Hydrologic Unit Maps, Water

Supply Paper 2294, 1986, and the following DOI, USGS, 1:500,000 scale

hydrologic unit map: State of Oregon (1974) which is incorporated by

reference. This incorporation by reference was approved by the Director

of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR

part 51. Copies of the USGS publication and maps may be obtained from

the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be

inspected during normal business hours at NMFS, Protected Resources

Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, or

NMFS, Office of Protected Resources, 1315 East-West Highway, Silver

Spring, MD 20910, or at the Office of the Federal Register, 800 North

Capitol Street, NW., Suite 700, Washington, DC.

(b) Geographic boundaries. All river reaches accessible to listed

Umpqua River cutthroat trout in the Umpqua River from a straight line

connecting the west end of the South jetty and the west end of the

North jetty and including all Umpqua River estuarine areas (including

the Smith River) and tributaries proceeding upstream from the Pacific

Ocean to the confluence of the North and South Umpqua Rivers; the North

Umpqua River, including all tributaries, from its confluence with the

mainstem Umpqua River to Soda Springs dam; the South Umpqua River,

including all tributaries, from its confluence with the mainstem Umpqua

River to its headwaters (including Cow Creek, tributary to the South

Umpqua River). Critical habitat includes all river reaches below

longstanding, naturally impassable barriers (i.e., waterfalls in

existence for several hundred years) in the following hydrologic units:

North Umpqua, South Umpqua, and Umpqua. Critical habitat borders on or

passes through the following counties in Oregon: Douglas, Lane, Coos,

Jackson, and Klamath counties. Perennial rivers and creeks within the

defined areas are also included in the critical habitat designation

(but are not specifically named), unless otherwise noted. Critical

habitat maps are available upon request from NMFS, Protected Resources

Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737,

telephone (503/230-5422).

4. Table 4 is added to part 226 to read as follows:

Table 4.--Hydrologic Units \1\ Containing Critical Habitat for

Endangered Umpqua River Cutthroat Trout and Counties Contained in Each

Hydrologic Unit.

------------------------------------------------------------------------

Hydrologic Counties contained in

Hydrologic unit name unit No. hydrologic unit

------------------------------------------------------------------------

North Umpqua........................ 17100301 Douglas, Lane,

Klamath.

South Umpqua........................ 17100302 Douglas, Jackson,

Coos.

Umpqua.............................. 17100303 Douglas, Lane, Coos.

------------------------------------------------------------------------

\1\ 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale

State of Oregon (1974) hydrologic unit map (available from USGS).

6. Figure 9 to part 226 is added to read as follows:

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