Endangered and Threatened Species; Threatened Status for Southwestern Washington/Columbia River Coastal Cutthroat Trout in Washington and Oregon, and Delisting of Umpqua River Cutthroat Trout in Oregon

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224, and 226

[Docket No. 960723205-9057-02; I.D. 121198A]

RIN 1018-AF45

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Species; Threatened Status for

Southwestern Washington/Columbia River Coastal Cutthroat Trout in

Washington and Oregon, and Delisting of Umpqua River Cutthroat Trout in

Oregon

AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic

and Atmospheric Administration (NOAA), Commerce; Fish and Wildlife

Service (FWS), Interior.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS completed a comprehensive status review of coastal

cutthroat trout (Oncorhynchus clarki clarki) populations in Washington,

Oregon, and California and has identified six Evolutionarily

Significant Units (ESUs) within this range. Since that time, the

question of whether NMFS or FWS (the Services, or we) has ESA

jurisdiction over the species has arisen, and we have therefore agreed

to resolve this matter before the final listing determination. In

addition, the ESA requires FWS concurrence on NMFS ESA delisting

determinations. Therefore, we are issuing this proposal jointly. We

propose a rule to list one of the six cutthroat trout ESUs as

threatened under the Endangered Species Act (ESA). The proposed ESU

consists of coastal cutthroat trout populations in southwestern

Washington and the Columbia River, excluding the Willamette River above

Willamette Falls. We also propose to delist the Umpqua River cutthroat

trout ESU currently listed as endangered. Information made available

since that listing indicates Umpqua River cutthroat trout are part of a

larger ESU

[[Page 16398]]

encompassing the coast of Oregon between the Columbia River and Cape

Blanco, Oregon, and that this ESU does not warrant listing at this

time. NMFS considers this ESU a candidate for listing.

In the proposed ESU, only naturally spawned cutthroat trout are

proposed for listing. Prior to the final listing determination, we will

examine the relationship between hatchery and naturally spawned

populations of cutthroat trout, and populations of cutthroat trout

above barriers to assess whether any of these populations warrant

listing. This may result in the inclusion of specific hatchery

populations or populations above barriers as part of the listed ESU in

the final listing determination.

The Services request public comments on the biological issues

pertaining to this proposed rule. We also request information on the

biological, economic, and any other information relevant to designating

critical habitat for the proposed cutthroat trout ESU. We further

request suggestions and comments on integrated local/state/tribal/

Federal conservation measures that will achieve the purposes of the ESA

to recover the health of coastal cutthroat trout populations and the

ecosystems upon which they depend. We believe these efforts, if

successful, could serve as central components of a broadly based

conservation program for recovery and rebuilding of salmonid

populations, including coastal cutthroat trout.

DATES: Comments must be received by July 6, 1999. NMFS will announce

the dates and locations of public hearings in Washington and Oregon in

a separate Federal Register document. Requests for additional public

hearings must be received by May 20, 1999.

ADDRESSES: Comments on this proposed rule and requests for public

hearings or reference materials should be sent to Chief, Protected

Resources Division, NMFS, Northwest Region, 525 NE Oregon Street, Suite

500, Portland, OR 97232-2737; fax (503) 230-5435.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, 503-231-2005, Craig

Wingert, 562-980-4021, or Christopher Mobley, 301-713-1401 of NMFS, or

Catrina Martin, 503-231-6131 of FWS.

SUPPLEMENTARY INFORMATION:

Electronic Access

Reference materials regarding this listing determination can also

be obtained from the internet at www.nwr.noaa.gov.

Background

In a document dated September 12, 1994, NMFS announced its intent

to conduct comprehensive status reviews for five species of Pacific

salmonids, including sea-run cutthroat trout (59 FR 46808). These were

in addition to two ongoing status reviews for west coast coho salmon

(O. kisutch) and steelhead (O. mykiss). NMFS completed coastwide status

reviews for coho salmon and steelhead on July 25, 1995, and August 9,

1996, respectively (60 FR 38011; 61 FR 41541). On October 4, 1995, NMFS

completed its status review for west coast pink salmon (O. gorbuscha)

(60 FR 51928). In March of 1998, NMFS completed its status reviews for

west coast sockeye (O. nerka), chum (O. keta), and chinook salmon (O.

tshawytscha) (63 FR 11750; 63 FR 11774; 63 FR 11482). Thus, the current

status review for coastal cutthroat trout completes NMFS' comprehensive

assessment of seven Pacific salmonid stocks under its ESA jurisdiction

(coho, pink, sockeye, chum, and chinook salmon; and steelhead and

cutthroat trout).

On December 18, 1997, the Secretary of Commerce received a petition

from Oregon Natural Resources Council to list and to designate critical

habitat for sea-run cutthroat trout in the States of Washington,

Oregon, and California. Copies of this petition are available upon

request (see ADDRESSES). On March 23, 1998, NMFS accepted this petition

as containing substantial scientific information indicating that a

status review was warranted (63 FR 13832). Acceptance of this petition

invoked the ESA's statutory requirement for NMFS to issue its findings

on the coastal cutthroat trout status review by December 18, 1998.

In response to a petition to list Umpqua River cutthroat trout

under the ESA, on July 8, 1994 (59 FR 35089), NMFS published a proposed

rule to list this ESU, or distinct population (See ``Consideration as a

`Species' Under the ESA''), as an endangered species. In this notice,

NMFS proposed to include all cutthroat trout life-history types (i.e.,

non-migratory, freshwater migratory, and anadromous) in the listed ESU.

On August 9, 1996 (61 FR 41514), NMFS published a final rule listing

Umpqua River coastal cutthroat trout as an endangered species. However,

in doing so, NMFS committed to re-evaluate the status of the species

within 2 years or as new scientific information became available. The

Services re-evaluate the status of Umpqua River cutthroat in this

document.

On January 29, 1998, Douglas County, Oregon sued the Secretary of

Commerce, alleging that NMFS' listing of Umpqua River cutthroat trout

as an endangered species was not based on the ``best scientific and

commercial data available'' in violation of the ESA. On December 14,

1998, the District Court of Oregon upheld NMFS' listing determination,

noting that NMFS' ongoing status review of the species provides Douglas

County and other parties with an opportunity to submit new information

for NMFS' consideration. Douglas County v. Daley, No. 98-6024-HO, slip

op. at n. 13 (D. OR. Dec. 14, 1998). NMFS considers new information

submitted by Douglas County and other parties below.

During the status review process NMFS initiated a series of

technical meetings with comanagers (state and tribal governments) and

the public. Among these meetings was a series of Pacific Salmon

Biological Technical Committee meetings held in Washington, Oregon, and

California. Furthermore, on October 13, 1998, NMFS Biological Review

Team (BRT) members met with comanagers and discussed their comments on

a draft status review report. The BRT considered these comments in

drafting their final status review report. Copies of the final status

review document entitled ``Scientific Conclusions of the Review of the

Status of Coastal Cutthroat Trout (Oncorhynchus clarki clarki) from

Washington, Oregon, and California'' (NMFS, 1998a) are available upon

request (see ADDRESSES).

Agency Jurisdiction for Cutthroat Trout

As described above, NMFS has a history of conducting status reviews

on sea-run cutthroat trout. During the status review for Umpqua River

sea-run cutthroat trout, NMFS and FWS agreed that NMFS would handle ESA

responsibilities for all life forms of the species in the Umpqua River

Basin (FWS, 1994). Since that time, the issue of agency jurisdiction

has arisen for the various cutthroat life forms in other west coast

basins, including the Southwestern Washington/Columbia River cutthroat

trout ESU. For this reason, the current proposal to list the

Southwestern Washington/Columbia River cutthroat trout ESU is being

promulgated jointly. Prior to the final listing determination, one

agency will assume lead ESA responsibility for the species.

[[Page 16399]]

Data Limitations and Scientific Uncertainty

There is a lack of quantitative information across the range of

coastal cutthroat trout. This is not to say that information about

coastal cutthroat trout does not exist; in fact, a considerable amount

is known about the biology of this species. However, much of this

information is qualitative or descriptive, rather than quantitative.

Comprehensive, coastwide data sets on distribution, abundance, age

structure, run timing, and other biological characteristics are largely

absent for coastal cutthroat trout. The fact that coastal cutthroat

trout do not constitute a commercially caught species, with fewer

directed fisheries than for co-occurring Pacific salmonids, no doubt

has much to do with the paucity of these data. Furthermore, spawning

coastal cutthroat trout are more difficult to observe than spawning

salmon, and there are almost no large runs that are clear targets for

systematic monitoring.

Given the paucity of available data for coastal cutthroat trout,

NMFS employed two methods to characterize uncertainty in its risk

assessments. Both methods entailed characterizing BRT members' degree

of certainty with particular risk conclusions. These methods generally

led to consistent results, and the BRT used this information to draw

its conclusions regarding the status of ESUs and then to characterize

the degree of certainty associated with such scientific conclusions.

Life History of the Species

The life history of coastal cutthroat trout may be one of the most

complex of any Pacific salmonid. Unlike other anadromous salmonids,

sea-run forms of coastal cutthroat trout do not overwinter in the ocean

and only rarely make extended migrations across large bodies of water.

Their migrations in the marine environment are usually within 10

kilometers (6 miles) of land (Giger, 1972; Sumner, 1972; Jones, 1976;

and Johnston, 1982), but have been detected up to 80 kilometers (50

miles) offshore (Pearcy, 1997). Although most anadromous cutthroat

trout enter seawater as 2-or 3-year-old fish, some may remain in fresh

water up to 5 years before entering the sea (Giger, 1972; and Sumner,

1972). Other cutthroat trout may not outmigrate to the ocean, but

remain as nonmigrants in small headwater tributaries. Still other

cutthroat trout may migrate entirely within freshwater environments

(Nicholas, 1978; Tommasson, 1978; and Moring et al., 1986), even when

they have access to the ocean (Tomasson, 1978). In the Umpqua River,

anadromous, non-migratory, and freshwater migratory (river-migrating)

life-history forms have been reported (Loomis and Anglin, 1992; and

Loomis et al., 1993). Details of coastal cutthroat trout life history

and ecology, including characteristics of particular life-history

forms, can be found in published reviews by Hall (1997), Bisson (1997),

and Gresswell and Harding (1997). Unfortunately, these reviews indicate

that the genetic and environmental factors determining these life-

history forms are poorly understood, a situation that has complicated

the characterization of ESU boundaries and risk for coastal cutthroat

trout.

Consideration as a ``Species'' Under the ESA

To qualify for listing as a threatened or endangered species, the

identified populations of coastal cutthroat trout must constitute

``species'' under the ESA. The ESA defines a ``species'' to include

``any subspecies of fish or wildlife or plants, and any distinct

population segment of any species of vertebrate fish or wildlife which

interbreeds when mature.'' [ESA Section 3(15)] NMFS published a policy

describing the agency's application of the ESA definition of

``species'' to anadromous Pacific salmonid species (56 FR 58612,

November 20, 1991). Subsequently, the Services jointly issued a policy

addressing the recognition of distinct vertebrate population segments

of all vertebrate species under the ESA on February 7, 1996 (61 FR

4722). NMFS' policy provides that a Pacific salmonid population will be

considered distinct and, hence, a species under the ESA if it

represents an ESU of the biological species. A population must satisfy

two criteria to be considered an ESU: (1) It must be reproductively

isolated from other conspecific population units (i.e., different

populations of the same species), and (2) it must represent an

important component in the evolutionary legacy of the biological

species. The first criterion, reproductive isolation, need not be

absolute, but must be strong enough to permit evolutionarily important

differences to accrue in different population units. The second

criterion is met if the population contributes substantially to the

ecological/genetic diversity of the species as a whole. Guidance on the

application of this policy is contained in a NOAA Technical Memorandum

entitled ``Definition of Species Under the Endangered Species Act:

Application to Pacific Salmon,'' that is available upon request (see

ADDRESSES).

Reproductive Isolation

Genetic data provide useful indirect evidence on reproductive

isolation by integrating information about migration and gene flow over

evolutionary time frames. However, only a limited number of studies of

the genetic population structure of coastal cutthroat trout populations

in the Pacific Northwest have been published, and these are very

recent. Other studies are contained in unpublished graduate theses. All

but one of these studies included samples from a limited geographic

range.

In order to address this genetic data gap, NMFS, the Washington

Department of Fish and Wildlife (WDFW), and the Oregon Department of

Fish and Wildlife (ODFW) recently conducted a coastwide study of

biochemical genetic variability in coastal cutthroat trout to help

delineate groups of populations for management and conservation. The

results of this study are summarized in this document under ``Summary

of Proposed ESU Determinations'' and are discussed in further detail in

the status review document (NMFS, 1998a).

Few detailed studies have explored the relationship between non-

migratory, freshwater migratory, and anadromous O. clarki clarki in the

same river basin, cohabitating in the same location. The few existing

studies of cutthroat trout show that, although both allele frequencies

and morphology may differ between populations above barriers and

populations below barriers with access to the sea, these different

life-history forms are generally more closely related within a drainage

than are populations from different drainages. These results indicate

that sea-run and non-migratory populations of cutthroat trout represent

a single evolutionary lineage in which the various life-history

characteristics have arisen repeatedly in different geographic regions.

With respect to barriers that permit some one-way migration (i.e.,

downstream migration of smolts but not upstream passage of adults),

NMFS concludes that coastal cutthroat trout above these barriers should

generally be included in ESUs that contain populations below these

barriers. The basis for this conclusion is twofold: (1) Populations

above barriers may contribute demographically and genetically to

populations below them, even if the number of successful one-way

migrants per generation is low, and (2) populations above barriers may

represent genetic resources shared by populations below these barriers

(and

[[Page 16400]]

therefore may constitute a significant component of diversity for an

ESU). However, at this time NMFS has not attempted to identify any

specific populations above barriers where one-way migration is

occurring to a significant extent. Therefore, while such populations

are considered part of the biological ESU to which they contribute,

NMFS (or the FWS) will determine on a case-by-case basis whether such

populations warrant protection under the ESA. Populations of coastal

cutthroat trout existing above Willamette Falls in Oregon are an

exception to this general rule; this situation and the rationale for

this determination are discussed in the following section.

Summary of Proposed ESU Determinations

NMFS' ESU determinations for coastal cutthroat trout in Washington,

Oregon, and California are summarized here. A more detailed discussion

of ESU determinations is presented in the ``Scientific Conclusions of

the Review of the Status of Coastal cutthroat (Oncorhynchus clarki

clarki) trout from Washington, Oregon, and California'' (NMFS, 1998a).

Copies of this document are available upon request (see ADDRESSES).

(1) Puget Sound ESU

This proposed ESU includes populations of coastal cutthroat trout

from drainages of Puget Sound, Hood Canal, the eastern Olympic

Peninsula (east of and including the Elwha River), and the Strait of

Juan de Fuca. Life-history data indicate that coastal cutthroat trout

from Puget Sound generally smolt at a smaller size and possibly at a

younger age than those directly entering the open ocean or the outer

coastal marine waters. Genetic data also indicate differences among

populations in this ESU and those in southwestern Washington and

farther south. Genetic data also indicate that, although populations in

Puget Sound, Hood Canal, and on the Olympic Peninsula are highly

heterogeneous genetically, evidence exists for separation of

populations on the Olympic Peninsula from those in the eastern Strait

of Juan de Fuca, northern Puget Sound, and Hood Canal. Populations in

Hood Canal and along the Strait of Juan de Fuca are distinctive, but

show no clear evidence of a transition zone between populations in

Puget Sound and southwestern Washington. Populations from the upper

Nisqually River (a heavily glacially influenced system in southern

Puget Sound) are markedly distinct genetically from their nearest

geographic neighbors. NMFS was unable to ascertain the source of this

distinctiveness; possibilities include strong and long-standing

reproductive isolation, sharp habitat differences, or a combination of

these factors.

Based on distinctive life-history, genetic, and biogeographic

patterns, NMFS concludes that the Puget Sound ESU includes all streams

in Puget Sound and the Strait of Juan de Fuca west to, and including,

the Elwha River. The northern boundary for this ESU is unclear, but

genetic data lend support to the hypothesis that this ESU extends into

southern British Columbia, including populations along the eastern

Georgia Strait north of the city of Vancouver. These data also indicate

that Vancouver Island populations are genetically distinct from those

on the mainland, providing evidence for reproductive isolation of these

groups. In general, this ESU's boundaries reflect an ecoregion in which

river drainages have relatively high flows due largely to high

precipitation, snow melt, and temperatures moderated by the marine

environment. The southern and western boundaries are similar to those

previously identified for chinook, coho, chum, and pink salmon, and

steelhead; the northern boundary differs from that for chinook and coho

salmon (which does not extend into Canada) and for pink, chum, and coho

salmon (which does not include eastern Vancouver Island).

(2) Olympic Peninsula ESU

The proposed boundaries of this ESU are similar to those of

steelhead and coho salmon, previously reviewed by NMFS (Busby et al.,

1996; and Weitkamp et al., 1996) and include coastal cutthroat trout

populations from the Strait of Juan de Fuca west of the Elwha River and

coastal streams south to, but not including, streams that drain into

Grays Harbor. Support for this ESU relies on the ecological

distinctiveness of this area, which is characterized by high

precipitation, cool water temperatures, and relatively short, high-

gradient streams entering directly into the open ocean. Life-history

data also suggest that these fish may have different migratory patterns

than those in Puget Sound or the Columbia River. Coastal cutthroat

trout from this area are relatively large as smolts, and a higher

proportion of individuals appear to mature at first return from

seawater than is the case in most Puget Sound populations.

Genetic data for this ESU are limited. Populations that have been

sampled from the Olympic Peninsula are genetically distinctive but show

a stronger genetic affinity to neighboring populations in Puget Sound

and in Hood Canal than to those along the Strait of Juan de Fuca (east

of the Elwha River). However, at least some of the Olympic Peninsula

populations are not strongly differentiated from those in northern or

southern Puget Sound, and they are well differentiated from populations

to the south along the coast. Available information indicates that this

ESU may represent a genetic transition zone between the Puget Sound and

Southwestern Washington/Columbia River ESUs.

(3) Southwestern Washington/Columbia River ESU

The proposed boundaries of this ESU are similar to those of the

lower Columbia River/southwest Washington Coast coho salmon ESU

(Weitkamp et al., 1996). The ESU comprises cutthroat trout in the

Columbia River and its tributaries downstream from the Klickitat River

in Washington and Fifteenmile Creek in Oregon (inclusive) and the

Willamette River and its tributaries downstream from Willamette Falls.

The ESU also includes cutthroat trout in Washington coastal drainages

from the Columbia River to Grays Harbor (inclusive). Support for these

ESU boundaries comes primarily from ecological and genetic information.

Ecological characteristics of this region include the presence of

extensive intertidal mud and sandflats, similarities in freshwater and

estuarine fish faunas, and differences from estuaries to the north of

Grays Harbor and to the south of the Columbia River. Genetic samples

from coastal cutthroat in southwestern Washington also show a

relatively close genetic affinity to the samples from the Columbia

River.

Some data support a split of the Columbia River from southwestern

Washington coastal cutthroat trout populations. Tagging and recovery

data for chinook, coho, and chum salmon indicate different marine

distributions for fish from the two areas. The limited dispersal

ability of anadromous cutthroat trout may restrict genetic exchange

among populations in the two areas, and the areas exhibit differences

in their physical estuarine characteristics. An important salmonid

parasite, Ceratomyxa shasta, occurs in the Columbia River but has not

been observed in Willapa Bay or Grays Harbor. WDFW has conducted an

unpublished analysis of a small number

[[Page 16401]]

of southwestern Washington populations in which it detected a greater

differentiation of populations between this ESU and those in the

Columbia River than did NMFS in its more comprehensive analysis. WDFW

also argues that extensive hatchery influence in some populations may

have obscured natural genetic differences between southwestern

Washington and lower Columbia River coastal cutthroat trout. However,

NMFS concludes that these analyses collectively do not provide

compelling evidence for separate coastal cutthroat trout ESUs for the

southwestern Washington coast and the Columbia River.

(4) Upper Willamette River ESU

This proposed ESU includes populations of cutthroat trout above

Willamette Falls in Oregon. Coastal cutthroat trout, along with spring

chinook salmon and winter steelhead, are the only three species of

anadromous Pacific salmonids that historically occurred above

Willamette Falls. In the Upper Willamette River, these other two

species have been identified as separate ESUs in previous status

reviews, based on ecological and genetic differences from other

Columbia River populations, and on physical and hydrological conditions

(Busby et al., 1996; and Myers et al., 1998). Based on information

provided by ODFW (1998), Willamette Falls is a nearly complete barrier

to anadromous fish, including summer steelhead and coastal cutthroat

trout, during summer and early fall. NMFS concludes that the upper

Willamette River has probably never supported a substantial anadromous

population of cutthroat trout; the primary life-history types that

exist above Willamette Falls appear to be the non-migratory and

freshwater migratory forms, which appear to be relatively rare below

the falls.

Upper Willamette River coastal cutthroat trout exhibit a genetic

structure consistent with the hypothesis that Willamette Falls is a

strong reproductive barrier between populations above and below the

falls. C. shasta existing in the Willamette River below the Marys River

and high temperatures in the lower Willamette River in summer and fall

probably limit the survival of the very few migrants that are known to

drop over the falls. The river above Willamette Falls encompasses a

large area with considerable habitat complexity, and this area supports

several different populations of coastal cutthroat trout. Although

these populations are highly heterogeneous (dissimilar) genetically,

they do form a moderately coherent cluster of apparently isolated and

semi-isolated populations.

The physical and genetic evidence for: (1) a barrier at Willamette

Falls; (2) habitat and ecological differences above and below the

Falls; (3) the lack of anadromous populations and the prevalence of

freshwater migratory forms above the Falls; and (4) evidence for very

few smolt outmigrants produced above the Falls leads NMFS to conclude

that coastal cutthroat trout above Willamette Falls should be

considered a separate ESU. Since cutthroat trout in this region do not

conduct extensive migrations and remain primarily in the freshwater

environment, The Services conclude that cutthroat trout in this ESU

fall under the jurisdiction of FWS. As previously noted, overall ESA

jurisdiction of all coastal cutthroat trout ESUs remains to be

determined.

(5) Oregon Coast ESU

The proposed boundaries of this ESU are similar to those identified

for coho and chinook salmon and steelhead (Weitkamp et al., 1996; Myers

et al., 1998; and Busby et al., 1996) and include coastal cutthroat

trout populations from the mouth of the Columbia River south to Cape

Blanco, Oregon. Genetic data indicate marked differences between

coastal cutthroat trout populations from coastal Oregon and those in

the Columbia River and along the Washington coast. Samples of coastal

cutthroat trout south of the Columbia River indicate a large,

heterogeneous group of populations along the Oregon coast. Furthermore,

several ecological differences exist between rivers along the Oregon

coast and those farther north. The Oregon coast is characterized by a

strong maritime influence, including relatively high precipitation,

moderate temperatures, and short, low gradient streams with few

migration barriers. Tagging studies in Alaska and elsewhere indicate

that anadromous cutthroat trout follow shorelines when in seawater;

thus, the known migratory patterns of this species are consistent with

the hypothesis that the Columbia River, which is several miles wide and

relatively deep at its mouth, is a migratory barrier between coastal

populations in Oregon and those in Washington.

Although genetic data provide some evidence for a split between

populations north or south of Cape Blanco, Oregon, biological and

ecological data provide even greater support for such a split. The Cape

Blanco area is a major biogeographic boundary for many marine and

terrestrial species, and has been identified as an ESU boundary for

chinook and coho salmon and steelhead on the basis of strong genetic,

life-history, ecological, and habitat differences north and south of

this landmark. Meristic data (measurements of physical characteristics)

also point to a difference between coastal cutthroat trout populations

north and south of Cape Blanco.

Previously, NMFS concluded that cutthroat trout in the Umpqua River

Basin constituted an ESU (Johnson et al., 1994; 61 FR 41514, August 9,

1996). However, new genetic information collected during the coastwide

status review indicates that cutthroat trout populations in the Umpqua

River Basin are part of a larger coastal ESU that includes populations

in Oregon coastal drainages from the mouth of the Columbia River to

Cape Blanco. As discussed later in this document, NMFS proposes to

revise the Umpqua River cutthroat trout listing determination

consistent with these findings (see ``Proposed Determinations'').

(6) Southern Oregon/California Coasts ESU

This proposed ESU includes populations of coastal cutthroat trout

from Cape Blanco, Oregon, south to the southern extent of the

subspecies' range, currently considered the Mattole River, south of

Cape Mendocino, California. Although meristic information lends support

for a separate ESU of coastal cutthroat trout populations south of Cape

Blanco, genetic and ecological data do not strongly support such a

conclusion. In addition, the limited dispersal capability of coastal

cutthroat trout and anecdotal evidence for marked differences in

population dynamics for populations north and south of Cape Blanco

support a split at that landmark. Finally, the majority of river

systems in this ESU are relatively small and steep, with limited

estuaries, and are heavily influenced by a maritime climate. Many of

these systems are characterized by seasonal physical and thermal

barriers to movement by anadromous fish; notable exceptions without

such barriers are the larger river basins such as the Eel, Klamath, and

Rogue Rivers.

Summary of Factors Affecting the Species

Section 2(a)(1) of the ESA states that various species of fish,

wildlife, and plants in the United States have been rendered extinct as

a consequence of economic growth and development untempered by adequate

concern and

[[Page 16402]]

conservation. Section 4(a)(1) of the ESA and the Services' regulations

(50 CFR part 424) set forth procedures for listing species. The

Secretaries of Commerce and the Interior (Secretaries) must determine,

through the regulatory process, if a species is endangered or

threatened based upon 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.

Several recent documents describe in more detail the impacts of

various factors contributing to the decline of cutthroat trout and

other salmonids (Bryant and Lynch, 1996; NMFS, 1997; and NMFS, 1998b).

These reports, available upon request (see ADDRESSES), conclude that

all of the factors identified in section 4(a)(1) of the ESA have played

a role in the decline of salmonids on the West Coast. Specifically,

these reports identify destruction and modification of habitat,

overutilization for recreational purposes, and natural and human-made

factors as being the primary reasons for the decline of anadromous

salmonids, including coastal cutthroat trout. The following discussion

summarizes findings regarding the principle factors for decline across

the range of coastal cutthroat trout.

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Habitat degradation and impacts associated with logging and related

land management activities, in particular, have likely contributed to

the decline of coastal cutthroat trout. Removal of forest canopy can

cause an increase in both the maximum and the diurnal fluctuation of

water temperatures, leading to disease outbreaks, altered timing of

migration, and accelerated maturation. The removal of streamside

vegetation can deplete the bank area of potential new woody debris,

which provides cover for cutthroat trout. Lack of cover may increase

predation rates on cutthroat trout. In addition, loss of riparian areas

can result in decreased invertebrate production and detritus sources,

both of which are key components of the species' food chain. Siltation,

often caused by certain logging practices, may hinder fry emergence

from the gravel and limit production of benthic invertebrates.

Dissolved oxygen content of both surface and intragravel water can

decrease as a result of logging operations, reducing egg and fry

survival rates. Logging can also cause changes in stream flow regimes,

resulting in potentially adverse water velocity and depth

characteristics.

In addition to degradation of freshwater habitats, degradation of

estuarine habitats has likely contributed to the decline of this

species. Estuarine areas are highly productive habitats and play an

important role in the life cycle of cutthroat trout (Hall, 1997).

Dredging, filling, and diking of estuarine areas for agricultural,

commercial, or municipal uses have resulted in the loss of many

estuarine habitats.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Cutthroat trout are not harvested commercially, and scientific and

educational programs have probably had little or no impact on these

populations. However, cutthroat trout are a popular gamefish throughout

the Pacific Northwest, and available information indicates that

recreational fishing may have contributed to the general decline of

cutthroat trout populations (Gresswell and Harding, 1997). In addition,

coastal cutthroat trout are especially susceptible to hooking mortality

and incidental catch in recreational and commercial fisheries targeting

Pacific salmon and steelhead. Also, poaching may pose a significant

threat to depressed populations of cutthroat trout in some areas.

C. Disease or Predation

Disease may be a factor contributing to the decline of cutthroat

trout populations. For example, ODFW believes that C. shasta is a

factor of decline for cutthroat trout populations in the Columbia and

Willamette Rivers (ODFW, 1998). The extent to which this and other

diseases affect cutthroat trout populations in other areas is unknown.

Several non-native fish species are known to prey on or compete

with salmonids; however, no specific information exists regarding

predation impacts by these or by native fishes on cutthroat trout.

Pinnipeds, especially harbor seals and California sea lions, are

increasing on the West Coast. However, the extent to which pinniped

predation is a factor causing the decline of coastal cutthroat trout is

unknown.

D. Inadequacy of Existing Regulatory Mechanisms

1. Federal Land Management Practices

The Northwest Forest Plan (NFP) is a Federal management policy with

important benefits for salmonids, including cutthroat trout. While the

NFP covers a very large area, the overall effectiveness of the NFP in

conserving cutthroat trout is limited by the extent of Federal lands

and by the fact that Federal land ownership is not uniformly

distributed in watersheds within the affected ESUs. The extent and

distribution of Federal lands limits the NFP's ability to achieve its

aquatic habitat restoration objectives at watershed and river basin

scales and highlights the importance of complementary salmon habitat

conservation measures on non-Federal lands within the subject ESUs.

2. State Land Management Practices

The Washington Department of Natural Resources implements and

enforces the State of Washington's forest practice rules (WFPRs) that

are promulgated through the Forest Practices Board. These WFPRs contain

provisions that can be protective of salmonids if fully implemented.

WFPRs are based on adaptive management of forest lands through

watershed analysis, development of site-specific land management

prescriptions, and monitoring. Watershed Analysis prescriptions can

exceed WFPR minima for stream and riparian protection.

However, NMFS believes the WFPRs, including watershed analysis, do

not provide properly functioning riparian and instream habitats.

Specifically, the base WFPRs do not adequately address large woody

debris (LWD) recruitment, tree retention to maintain stream bank

integrity and channel networks within floodplains, and chronic and

episodic inputs of coarse and fine sediment-processes which are

critical to maintaining properly functioning habitat for all life

stages of cutthroat trout.

Similarly, the Oregon Forest Practices Act (OFPA), while modified

in 1995 and improved over the previous OFPA, does not adequately

protect salmonid habitat. In particular, the current OFPA does not

provide adequate protection for the production and introduction of LWD

to medium, small, and non-fish bearing streams. Small non-fish bearing

streams are vitally important to the quality of downstream habitats.

These streams carry water, sediment, nutrients, and LWD from upper

portions of the watershed. The quality of downstream

[[Page 16403]]

habitats is determined, in part, by the timing and amount of organic

and inorganic materials provided by these small streams (Chamberlin et

al., in Meehan, 1991). Given the existing depleted condition of most

riparian forests on non-Federal lands, the time needed to attain mature

forest conditions, the lack of adequate protection for non-riparian LWD

sources in landslide-prone areas and small headwater streams (which

account for about half the wood found naturally in stream channels)

(Burnett and Reeves, 1997, citing Van Sickle and Gregory, 1990; McDade

et al., 1990; and McGreary, 1994), and current rotation schedules

(approximately 50 years), there is a low probability that adequate LWD

recruitment could be achieved under the current requirements of the

OFPA. Also, the OFPA neither adequately manages timber harvest and road

construction on sensitive, unstable slopes subject to mass wasting; nor

does it address cumulative effects.

3. Dredge, Fill, and Inwater Construction Programs

The Army Corps of Engineers (COE) regulates removal/fill activities

under section 404 of the Clean Water Act (CWA), which requires that the

COE not permit a discharge that would ``cause or contribute to

significant degradation of the waters of the United States.'' One of

the factors that must be considered in this determination is cumulative

effects. However, the COE guidelines do not specify a methodology for

assessing cumulative impacts or how much weight to assign them in

decision-making. Furthermore, the COE does not have in place any

process to address the additive effects of the continued development of

waterfront, riverine, coastal, and wetland properties.

4. Water Quality Programs

The Federal CWA is intended to protect beneficial uses, including

fishery resources. To date, implementation has not been effective in

adequately protecting fishery resources, particularly with respect to

non-point sources of pollution.

Sections 303(d)(1)(C) and (D) of the CWA requires states to prepare

Total Maximum Daily Loads (TMDLs) for all water bodies that do not meet

state water quality standards. TMDLs are a method for quantitatively

assessing environmental problems in a watershed and identifying

pollution reductions needed to protect drinking water, aquatic life,

recreation, and other use of rivers, lakes, and streams. TMDLs may

address all pollution sources, including such point sources as sewage

or industrial plant discharges, and such non-point discharges as runoff

from roads, farm fields, and forests.

The CWA gives state governments the primary responsibility for

establishing TMDLs. However, the Environmental Protection Agency (EPA)

is required to establish TMDLs if a state does not do so. State

agencies in Oregon are committed to completing TMDLs for coastal

drainages within 4 years, and all impaired waters within 10 years.

Similarly ambitious schedules are in place, or are being developed for

Washington and Idaho. The ability of these TMDLs to protect cutthroat

trout and salmonids should be significant in the long term; however, it

will be difficult to develop them quickly in the short term, and their

efficacy in protecting salmonid habitat will be unknown for years to

come.

5. Hatchery and Harvest Management

In an attempt to mitigate the loss of habitat, hatchery programs

have been implemented throughout the range of coastal cutthroat trout.

While some of these programs have succeeded in providing fishing

opportunities, the impacts of these programs on native, naturally

spawned stocks are not well understood. Competition, genetic

introgression, and disease transmission resulting from hatchery

introductions may significantly reduce the production and survival of

native, naturally spawned cutthroat trout.

Historically, cutthroat trout were one of the most broadly

distributed salmonids in western North America (Behnke, 1979 and 1992).

They were often the only salmonid present (sometimes the only fish) in

many lakes and streams throughout the interior American west, and they

were far more broadly distributed than steelhead, rainbow trout, or

other salmonids (Behnke, 1979 and 1992). In recent years, they have

been replaced by rainbow trout or other introduced species in many

parts of their range (Gresswell, 1988; and Young, 1995). Perhaps most

destructive was the widespread release of hatchery rainbow trout (O.

mykiss) throughout the native range of interior cutthroat trout

(Gresswell 1988; Young 1995). The two species readily hybridize, often

to the extreme detriment of O. clarki, and it has been estimated that

``just within the last century perhaps 99 percent of the unique

cutthroat strains of interior drainages have been lost forever''

(Willers, 1991). Furthermore, in less than 100 years after the first

settlements in the West, cutthroat trout vanished from most of its vast

range (Behnke, 1988). Because of this hybridization with rainbow trout,

and because of habitat degradation and other reasons, many of these

inland subspecies have declined in numbers to an extent that they are

now protected by state and Federal endangered species legislation

(Johnson, 1987).

Other potentially important impacts of hatchery practices are the

negative consequences of interactions between coho salmon fry released

from hatcheries and coastal cutthroat trout. Coho salmon fry have often

been released into streams in very high numbers, and they can compete

with cutthroat trout for feeding and rearing habitat.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Climatic conditions have exacerbated the problems associated with

degraded and altered riverine and estuarine habitats. Persistent

drought conditions have reduced the already limited spawning, rearing,

and migration habitat. Climatic conditions appear to have resulted in

decreased ocean productivity (Francis and Sibley 1991; Francis et al.

1992), which may compound the effects of degraded freshwater habitat

conditions on salmonid productivity.

Hybridization between coastal cutthroat trout and O. mykiss may

pose serious risks for this species. A recent NMFS/WDFW survey of

genetic variation among populations indicated that hybridization was

widespread in the Pacific Northwest. Hybridization appears to occur

naturally in some areas where coastal cutthroat trout and O. mykiss

overlap and may be accelerated by transplants of O. mykiss into areas

where coastal cutthroat trout occur naturally. Hybridization can reduce

the success of coastal cutthroat trout populations by lowering the

genetic fitness of hybrid individuals. Hybrids appear to be

intermediate in performance to either parental species, but some life-

history traits in hybrids may be detrimental to their survival. The

extent of the risk of hybridization due to human activities is unknown.

Efforts Being Made To Protect Coastal Cutthroat Trout

Section 4(b)(1)(A) of the ESA requires the Secretaries of Commerce

and the Interior to make listing determinations solely on the basis of

the best scientific and commercial data available and after taking into

account efforts being made to protect the species. Therefore, in making

listing determinations, we first

[[Page 16404]]

assess the status of the species and identify factors that have led to

the decline of the species. We then assess existing conservation

measures to determine if such measures sufficiently ameliorate risks to

the species.

In judging the efficacy of existing conservation efforts, NMFS

considers the following: (1) The substantive, protective, and

conservation elements of such efforts; (2) the degree of certainty such

that efforts will be reliably implemented; and (3) the presence of

monitoring provisions that permit adaptive management (Bryant and

Lynch, 1996). In some cases, conservation efforts may be relatively new

and may not have had time to demonstrate their biological benefits. In

such cases, provisions for adequate monitoring and funding of

conservation efforts are essential to ensure that intended conservation

benefits are realized.

During its coastal cutthroat trout status review, NMFS reviewed an

array of protective efforts underway for cutthroat trout and other

salmonids, ranging in scope from broad regional strategies to local

watershed initiatives. NMFS has summarized some of the major efforts

applicable to salmonids in a document entitled ``Steelhead Conservation

Efforts: A Supplement to the Notice of Determination for West Coast

Steelhead under the Endangered Species Act'' (NMFS, 1996). NMFS has

identified additional conservation measures in the States of

Washington, Oregon, and California that are not specifically addressed

in this earlier report. We summarize these additional conservation

measures here.

State of Washington Conservation Measures

The State of Washington is currently in the process of developing a

statewide strategy to protect and restore naturally spawned steelhead

and other salmon and trout species. In May of 1997, the Governor of

Washington and other state officials signed a Memorandum of Agreement

creating the Joint Natural Resources Cabinet (Joint Cabinet). This body

is composed of state agency directors or their equivalents from a wide

variety of agencies whose activities and constituents influence

Washington's natural resources. The goal of the Joint Cabinet is to

restore healthy salmon, steelhead, and trout populations by improving

those habitats on which the fish rely. The Joint Cabinet's current

activities include development of the Lower Columbia Steelhead

Conservation Initiative (LCSCI), which is intended to comprehensively

address protection and recovery of steelhead in the lower Columbia

River area.

The scope of the LCSCI includes Washington's steelhead stocks in

two ESUs that contain habitat in both Washington and Oregon. The

initiative area includes the Lower Columbia River area (Cowlitz to Wind

rivers) and portions of southwestern Washington. Although the initial

focus of the LCSCI was on steelhead recovery, the state and local

governments are exploring ways to expand the LCSCI into a multi-species

recovery effort that would be consistent with Oregon's plan. When

completed, conservation and restoration efforts in the LCSCI area will

form a comprehensive, coordinated, and timely protection and rebuilding

framework with benefits to steelhead and other salmonids (including

coastal cutthroat trout) in the LCSCI area.

WDFW performed advance work on the initiative, emphasizing harvest

and hatchery issues and related conservation measures. Consistent with

creation of the Joint Cabinet, conservation planning has recently been

expanded to include major involvement by other state agencies and

stakeholders and to address habitat and tributary dam/hydropower

components.

The LCSCI should provide a framework to describe concepts,

strategies, opportunities, and commitments that will be critically

needed to maintain the diversity and long term productivity of

salmonids in the lower Columbia River for future generations. The

initiative does not represent a formal watershed planning process;

rather, it is intended to be complementary to such processes as they

may occur in the future. The LCSCI details a range of concerns,

including natural production and genetic conservation, recreational

harvest, hatchery strategies, habitat protection and restoration goals,

monitoring of stock status and habitat health, evaluation of the

effectiveness of specific conservation actions, and an adaptive

management structure to implement and modify the plan's trajectory as

time progresses. It also addresses improved enforcement of habitat and

fishery regulations and strategies for outreach and education.

The LCSCI is currently a ``work-in-progress'' and will evolve and

change over time as new information becomes available. Input will be

obtained through continuing outreach efforts by local governments and

other stakeholders. Further refinements to strategies, actions, and

commitments will occur using public and stakeholder review and input

and continued interaction with the State of Oregon, tribes, and other

government entities, including NMFS. The LCSCI will be subjected to

independent technical review. In sum, these input and coordination

processes will play a key role in determining the extent to which the

eventual conservation package will benefit naturally spawned salmonids.

NMFS intends to continue working with the State of Washington and

stakeholders involved in the formulation of the LCSCI. Ultimately, when

more fully developed and implemented, this conservation effort may

ameliorate risks facing many salmonids in this region.

State of Oregon Conservation Measures

In April 1996, the Governor of Oregon completed and submitted to

NMFS a comprehensive conservation plan directed specifically at coho

salmon stocks on the coast of Oregon. This plan, termed the Oregon Plan

for Salmon and Watersheds (OPSW) (formerly known as the Oregon Coastal

Salmon Restoration Initiative) was later expanded to include

conservation measures for coastal steelhead stocks (Oregon, 1998). For

a detailed description of the OPSW, refer to the May 6, 1997, listing

determination for Southern Oregon/Northern California coho salmon (62

FR 24602). The essential tenets of the OPSW include the following:

1. The OPSW is comprehensive, addressing many factors for decline

of coastal coho salmon and steelhead, most notably, those factors

relating to harvest, habitat, and hatchery activities.

2. Under the OPSW, all state agencies whose activities affect

salmon are held accountable for coordinating their programs in a manner

that conserves and restores the species and their habitat. This is

essential since salmon and steelhead have been affected by the actions

of many different state agencies.

3. The OPSW includes a framework for prioritizing conservation and

restoration efforts.

4. The OPSW includes a comprehensive monitoring plan that

coordinates Federal, state, and local efforts to improve our

understanding of freshwater and marine conditions, determine

populations trends, evaluate the effects of artificial propagation, and

rate the OPSW's success in restoring the salmon.

5. The OPSW recognizes that actions to conserve and restore salmon

must be worked out by communities and landowners--those who possess

local knowledge of problems and those who

[[Page 16405]]

have a genuine stake in the outcome. Watershed councils, soil and water

conservation districts, and other grassroots efforts are the vehicles

for getting this work done.

6. The OPSW is based upon the principles of adaptive management.

Through this process, there is an explicit mechanism for learning from

experience, evaluating alternative approaches, and making needed

changes in the programs and measures.

7. The OPSW includes an Independent Multi-disciplinary Science Team

(IMST). The IMST's purpose is to provide an independent audit of the

OPSW's strengths and weaknesses. They will aid the adaptive management

process by compiling new information into a yearly review of goals,

objectives, and strategies, and by recommending changes to the OPSW.

8. The OPSW requires that a yearly report be made to the Governor,

the legislature, and the public. This will help the agencies make the

adjustments described for the adaptive management process.

As with the State of Washington's LCSCI process discussed earlier,

NMFS intends to continue working with the State of Oregon and

stakeholders involved in the formulation of the OPSW. Ultimately, when

more fully developed and implemented, this conservation effort may

ameliorate risks facing cutthroat trout and the other salmonid species

in this region.

State of California Conservation Measures

The July, 1997, Executive Order W-159-97 of the Governor of

California created the Governor's Watershed Restoration and Protection

Council (WPRC). The WPRC, chaired by the Secretary of Resources, is an

umbrella body consisting of all state agencies that have programs

addressing anadromous salmonid protection and restoration. Under State

law, the WPRC is charged with (1) providing oversight of all state

activities aimed at watershed protection and enhancement, including the

conservation and restoration of anadromous salmonids in California; and

(2) directing the development of a Watershed Protection Program that

provides for anadromous salmonid conservation in the State. The WPRC

has established a 12-member, multi-disciplinary science review panel to

advise it in the development of the watershed protection program.

The WPRC is currently reviewing and evaluating existing statewide

regulatory and non-regulatory programs protecting anadromous salmonids

and their habitat, as well as state and local restoration program

efforts that are ongoing or proposed. A compilation of management,

implementation, and monitoring improvements that are necessary to

protect and conserve anadromous salmonids and their habitat will be an

important outcome of this comprehensive review. NMFS reviewed and

commented on early work products generated by this review process and

will continue to participate in the review and the development of the

watershed protection program.

NMFS is encouraged by California initiation of a comprehensive,

watershed-based approach to salmon management and restoration. However,

the WPRC process is still in progress, and a Watershed Protection

Program has yet to be developed. The 1998 Memorandum of Agreement (MOA)

signed by NMFS, California's Secretary of Resources, and the Director

of the California Department of Fish and Game (CDFG) (NMFS/California

MOA, 1998) ensures that NMFS will substantively participate in the

development of this program, including participation on the scientific

review panel that will advise the WPRC in the development of the

Program. An important focus of this scientific review panel will be an

assessment of the adequacy of California's forest practice regulations,

including their implementation and enforcement.

In 1997, the California State legislature enacted SB 271, which

provides CDFG with $43 million over 6 years for habitat restoration and

watershed planning in coastal watersheds. This new funding allows CDFG

to significantly expand its existing habitat restoration program in

coastal watersheds, including areas in Northern California. SB 271

requires that 87.5 percent of the $43 million in funding be spent on

project grants for habitat restoration, watershed planning, and related

programs, and permits CDFG to use the remainder for contract

administration activities and biological support staff necessary to

achieve the restoration objectives of the legislation. SB 271 also

specifies that funded projects: (1) emphasize the development of

coordinated watershed improvement activities; (2) give highest priority

to funding projects that restore habitat for salmon and/or steelhead

that are eligible for protection as listed or candidate species under

the State or Federal ESA, (3) treat causes of fish habitat degradation;

and (4) are designed to restore the structure and function of fish

habitat. As part of this program, CDFG is funding $7.0 million per year

in new projects for 5 years beginning in FY 1998-99 (starting July

1998). In addition, CDFG will use SB 271 funding to support several new

permanent positions that will assist in administering the program and

will provide technical support in the development of watershed plans

and habitat restoration projects.

NMFS has reviewed the SB 271 program and concludes that its

implementation will benefit salmonids, including cutthroat trout, by

promoting the development of watershed protection plans and the

restoration of degraded habitat conditions (NMFS, 1998c). The NMFS/

California MOA provides additional assurances that the SB 271 program

will provide these benefits. First, the MOA allows NMFS to serve as an

ex-officio member of the Advisory Committee that will oversee

implementation of SB 271, including the allocation of funds. Second,

the MOA commits CDFG to direct a major portion of the new personnel and

fiscal resources provided by SB 271 to watershed restoration efforts

(NMFS/California MOA, 1998). Finally, the MOA establishes a close

working relationship between the State and NMFS that should enable

continued improvements in a variety of sectors affecting at-risk

salmonids.

Proposed Status of Coastal Cutthroat Trout ESUs

Section 3 of the ESA defines the term ``endangered species'' as

``any species which is in danger of extinction throughout all or a

significant portion of its range.'' The term ``threatened species'' is

defined as ``any species which is likely to become an endangered

species within the foreseeable future throughout all or a significant

portion of its range.'' Thompson (1991) suggested that conventional

rules of thumb, analytical approaches, and simulations may all be

useful in making this determination. In previous status reviews, NMFS

identified a number of factors that should be considered in evaluating

the level of risk faced by an ESU, including (1) absolute numbers of

fish and their spatial and temporal distribution; (2) current abundance

in relation to historical abundance and current carrying capacity of

the habitat; (3) trends in abundance; (4) natural and human-influenced

factors that cause variability in survival and abundance; (5) possible

threats to genetic integrity (e.g., from strays or outplants from

hatchery programs); (6) diversity of life-history forms; and (7) recent

events (e.g., a drought or changes in harvest

[[Page 16406]]

management) that have predictable short-term consequences for abundance

of the ESU.

During the coastwide status review for coastal cutthroat trout,

NMFS evaluated both quantitative and qualitative information to

determine whether any cutthroat trout ESUs are threatened or endangered

according to the ESA. The types of information used in these

assessments are described in NMFS' status review document (NMFS,

1998a). The following is a summary of NMFS' conclusions regarding the

status of identified cutthroat trout ESUs.

(1) Puget Sound ESU

Few data exist concerning historical and present abundance of

coastal cutthroat trout in the Puget Sound ESU region, and almost no

estimates of adult population sizes existed for this ESU. The

exceptions are a WDFW estimate of the 1997 spawning escapement in the

Skagit River Basin of 13,000 fish, and counts of cutthroat adults at an

upstream migrant trap designed to target coho salmon on the Deschutes

River in southern Puget Sound (5-year geometric mean = 74 coastal

cutthroat trout). Anecdotal reports suggest low abundance of coastal

cutthroat trout in southwestern Puget Sound streams. In general, NMFS

remains concerned with the lack of information regarding the

distribution and abundance of coastal cutthroat trout throughout the

Puget Sound region. However, some data indicate that juvenile coastal

cutthroat trout are relatively well distributed in the Skagit and

Stillaguamish River Basins and along the Strait of Juan de Fuca.

Few trend data are available for this ESU; these include downstream

migrant counts from streams in eastern Hood Canal, the Skagit River

Basin, and in southern Puget Sound (up to 1987 only); adult counts on

the Deschutes River; and catch-per-unit effort (CPUE) data for adults

over the past 2 to 7 years in three northern Puget Sound River Basins.

Trends in smolt numbers were mixed in both Hood Canal and southern

Puget Sound. Unfortunately, no information exists regarding smolt-to-

adult survival in this ESU, so interpretation of the significance of

smolt trends for overall risk to these populations is difficult.

Increases in coastal cutthroat trout smolt numbers in some eastern Hood

Canal streams coincided with declines in coho salmon abundance. A

negative correlation between the abundances of coastal cutthroat trout

and coho salmon suggests that interspecific interactions between these

two species may be reducing the abundance of coastal cutthroat trout in

some streams. In those streams with reduced coho salmon numbers, it is

possible that a relaxation of competition has occurred, allowing for an

increase in coastal cutthroat trout abundance.

The CPUE data for the Stillaguamish and Snohomish River populations

showed increasing trends; the Skagit River CPUE has been declining.

However, the short time frames (2 to 7 years) over which these data

have been collected, and the possibility that significant declines in

abundance occurred before data collection began, limits the usefulness

of these trends in assessing population status. In addition, WDFW

biologists feel that the variation in the adults caught may be due, in

part, to annual variation in fish sampling conditions.

In addition to information about population sizes and trends in

abundance for coastal cutthroat trout in this ESU, NMFS considered

another important risk factor--the potential loss of life-history

diversity. In particular, the anadromous life-history type appears to

be declining in some streams containing coastal cutthroat trout.

However, NMFS concludes that risks to the integrity and long-term

sustainability of the Puget Sound ESU due to loss of life-history

diversity are relatively low compared to other coastal cutthroat trout

ESUs, in which there are more streams with documented declines in

anadromous life-history types.

The influence of hatchery coastal cutthroat trout in the Puget

Sound ESU is probably relatively low compared to the impacts of

hatchery fish on the productivity of other Pacific salmonids. For

example, the proportion of hatchery fish caught in the recreational

fisheries for coastal cutthroat trout in Hood Canal is low indicating

hatchery fish do not occur at significant levels in this area. On the

other hand, there are some hatchery-related threats to naturally

spawned coastal cutthroat trout populations in this ESU. WDFW considers

some of the northern Puget Sound coastal cutthroat trout populations to

be of mixed origin, indicating that fish of non-native origin may have

contributed to the genetic composition of those populations (WDFW,

1998). Production in most streams within the ESU is considered to be

``wild'' (i.e., naturally spawned) by WDFW, indicating that WDFW does

not believe that hatchery fish contribute significantly to natural

spawning escapements (WDFW, 1998).

Listing Determination

While in general, little information exists to assess the status of

this ESU, NMFS concludes available scientific information indicates the

Puget Sound ESU does not warrant listing. Population levels in this ESU

appear relatively stable over the past 10 to 15 years, although many of

these populations are believed to be smaller relative to historic

levels. Implementation of the NFP has likely reduced habitat risks on

Federal lands within this ESU, which constitute about 30 percent of the

total land area. However, NMFS remains concerned with habitat

conditions on non-Federal lands throughout this ESU, including highly

urbanized areas in the City of Seattle.

(2) Olympic Peninsula ESU

NMFS possesses little information to estimate population abundances

for coastal cutthroat trout in the Olympic Peninsula ESU. However,

limited trapping data support the opinions of state and tribal

fisheries biologists that juveniles in this ESU are well distributed in

streams along the western Strait of Juan de Fuca and northern

Washington coast. Further, available data suggest that some highly

productive cutthroat trout streams exist in this geographic region. For

example, smolt abundances in Dickey Lake are high relative to numbers

of smolts in Puget Sound and Hood Canal streams. On the other hand,

ongoing habitat destruction, primarily due to logging and its

associated activities (e.g., road building and stream blockages by

culverts), continue to be a source of risk to coastal cutthroat trout

in many Olympic Peninsula streams.

The quantitative data available for the Olympic Peninsula ESU are

counts of downstream migrants on Clearwater River tributaries (from

1981 to present), Dickey River (1992-1994), Hoko River (1986-1989), and

in Salt Creek along the Strait of Juan de Fuca (1998). The trends among

Clearwater tributaries were mixed, suggesting that some tributary

streams are good producers, while others are declining in migrant

production. The absolute numbers of outmigrants in all streams trapped

were encouraging; however, NMFS did not weigh trends from the Hoko

River heavily in its risk determinations because these data are not

current. In addition, the Dickey River trends were based on only 3

years of trapping designed to estimate coho salmon production. It is

difficult to interpret the outmigrant data, partly because smolt-to-

adult survival estimates are lacking

[[Page 16407]]

and because declines in production may have occurred before data

collection began in 1981. Given the continued demonstrations of

consistent smolt production from outmigrant trapping, the general

consensus among scientists is that coastal cutthroat trout are well

represented in streams throughout the Olympic Peninsula.

NMFS judges that the risks to the Olympic Peninsula ESU from losses

of life-history diversity are lower than those for any other coastal

cutthroat trout ESU. Risks associated with hatchery coastal cutthroat

trout are probably low in this ESU. However, hatchery releases of coho

salmon fry occur in some areas on the Olympic Peninsula, which may

result in increased stress on coastal cutthroat trout due to elevated

levels of interspecific competition relative to what occurs naturally.

Listing Determination

NMFS concludes the Olympic Peninsula ESU does not warrant listing

at this time. However, BRT scientists were highly uncertain about their

risk assessment due to the lack of quantitative data for this ESU. NMFS

believes that there is adequate productive cutthroat trout habitat to

support this ESU; however, data are not available to confirm such a

conclusion. Consistent smolt production in the Dickey River and the

general consensus among scientists that coastal cutthroat trout are

well distributed in streams throughout the Olympic Peninsula support

this conclusion. Implementation of the NFP has likely reduced risks

associated with habitat quality and quantity on Federal lands, which

constitute about 38 percent of the land area within this ESU.

(3) Southwestern Washington/Columbia River ESU

According to WDFW, the southwestern Washington-lower Columbia River

region historically supported healthy, highly productive coastal

cutthroat trout populations. Coastal cutthroat trout, especially the

freshwater forms, may still be well distributed in most river basins in

this geographic region, although probably in lower numbers relative to

historical population sizes. However, severe habitat degradation

throughout the lower Columbia River area has contributed to dramatic

declines in anadromous coastal cutthroat trout populations and two near

extinctions of anadromous runs in the Hood and Sandy Rivers. NMFS

remains concerned about the extremely low population sizes of

anadromous coastal cutthroat trout in lower Columbia River streams,

indicated by low incidental catch of coastal cutthroat trout in salmon

and steelhead recreational fisheries, and by low trap counts in a

number of tributaries throughout the region. Although efficiencies for

these traps in catching coastal cutthroat trout are not known, numbers

of adults returning to traps have been consistently below 10 fish in

most streams included in this ESU over each of the past 6 years. In

contrast, NMFS believes that, even though information on the

distribution of freshwater forms of coastal cutthroat trout in this

region was mostly anecdotal, it probably was an accurate reflection of

their widespread occurrence in streams throughout the region.

Trends in anadromous adults and outmigrating smolts in the

southwestern Washington portion of this ESU are all declining. NMFS is

aware that WDFW considers streams in this region to have a relatively

good coastal cutthroat trout habitat; however, available data do not

support the idea that the anadromous coastal cutthroat trout in this

area are at low risk. Returns of both naturally and hatchery produced

anadromous coastal cutthroat trout in almost all lower Columbia River

streams have declined markedly over the last 10 to 15 years. Indeed,

the only anadromous coastal cutthroat trout population in the lower

Columbia River to show increases in abundance over the last 10 years is

the North Fork Toutle River population, which is thought to be

recovering from the effects of the Mt. Saint Helens eruption in 1980.

Despite its increasing trend, WDFW states that its population numbers

are still critically low (approximately 100 total adults in run).

A significant risk factor for coastal cutthroat trout in this ESU

is the reduction in life-history diversity. Serious declines in the

anadromous form have occurred throughout the lower Columbia River, and

it has been nearly extirpated in at least two rivers on the Oregon side

of the basin. Available information suggests that, in many streams, the

freshwater forms of coastal cutthroat trout are well distributed and

occur in relatively high abundance in comparison to the anadromous

coastal cutthroat trout in the same stream. ODFW and WDFW presented

evidence that freshwater coastal cutthroat trout can produce smolts

that migrate to saltwater. Although this possibility could act to

mitigate risks to anadromous forms of coastal cutthroat trout, the

observation that sea-run cutthroat trout population sizes have remained

consistently low in many areas is a cause for concern. Reduced

abundance of anadromous fish will tend to restrict connectivity of

populations in different watersheds, which can increase genetic and

demographic risks.

In summary, even if freshwater forms of coastal cutthroat trout

have been producing occasional smolts, this production has not resulted

in demonstrably successful re-establishment of anadromous forms.

Habitat degradation in stream reaches accessible to anadromous coastal

cutthroat trout, and poor ocean and estuarine conditions, likely have

combined to severely deplete this life-history form throughout the

lower Columbia River Basin. Without the appropriate freshwater and

estuarine habitat for the expression of anadromous life history, a

greater risk of extinction may occur. The significance of this

reduction in life-history diversity to the both the integrity and the

likelihood of this ESU's long-term persistence is a major concern to

NMFS.

Negative effects of hatchery coastal cutthroat trout may be

contributing to the risks facing naturally spawned coastal cutthroat

trout in this ESU. The lower Columbia River tributaries are the only

streams in Washington still receiving hatchery-origin coastal cutthroat

trout, although the total numbers of released hatchery fish have

recently been substantially curtailed. In the early 1980s, an estimated

50 to 80 percent of the recreational catch for coastal cutthroat trout

in the lower Columbia River was composed of hatchery fish. Biologists

familiar with coastal cutthroat trout feel that recreational catch data

reflect true trends in coastal cutthroat trout abundance (Hooton,

1997). Furthermore, the largest returns of coastal cutthroat trout in

this region are to the Cowlitz River Basin, and existing information is

consistent with the interpretation that a significant proportion of

those fish are of hatchery origin (WDFW, 1998). The ultimate effects of

hatchery fish depend on the relative sizes of hatchery and naturally

spawned populations, the spatial and temporal overlap of hatchery and

naturally spawned fish throughout their life cycles, and the actual

extent to which hatchery fish spawn naturally and interbreed with

naturally produced fish. In addition, the extent to which naturally

spawned coastal cutthroat trout are incidentally harvested in fisheries

targeting hatchery coastal cutthroat trout and other salmonids of

hatchery origin also affects the

[[Page 16408]]

magnitude of the risks to coastal cutthroat trout from hatchery fish.

Listing Determination

NMFS concludes the Southwestern Washington/Columbia River ESU

warrants listing as a threatened species. The degree of scientific

certainty in this conclusion is somewhat higher than that for the other

cutthroat trout ESUs. NMFS is particularly concerned about the

widespread declines in abundance and the small population sizes of

anadromous cutthroat trout throughout the lower Columbia River, as

exemplified by near extinctions of anadromous cutthroat trout runs in

the Hood and Sandy rivers. The severe reductions in abundance of this

life-history form could have deleterious effects on the ability of this

ESU to recover from widespread declines. Reductions in the quantity and

quality of estuarine and riverine habitat have probably contributed to

declines, but the relative importance of these risk factors is not well

understood. However, NMFS is encouraged by recent steps taken by the

States of Washington and Oregon to reduce mortality due to directed and

incidental harvest of coastal cutthroat trout. Also, the apparent

widespread distribution of non-migratory cutthroat trout in this ESU

may help buffer extinction risks to some degree.

Recent conservation planning efforts by the States of Washington

and Oregon may reduce risks faced by cutthroat trout in this ESU;

however, these efforts are still in their formative stages.

Specifically, the State of Washington's LCSCI is still in a

developmental stage, and various technical and financial aspects of the

plan need to be addressed. Furthermore, this effort is currently

limited to lower Columbia River areas. The OPSW, while substantially

implemented and funded on the Oregon Coast, has not yet reached a

similar level of development in inland areas. Implementation of the NFP

has likely reduced habitat risks on Federal lands, which constitute

about 20 percent of the land area within this ESU.

(4) Upper Willamette River ESU

The conservation status of this ESU was not formally evaluated by

NMFS. As stated earlier, the Services concluded that FWS retained ESA

jurisdiction for cutthroat trout populations occurring above Willamette

Falls. The conservation status of this ESU will be evaluated by FWS.

(5) Oregon Coast ESU

Coastal cutthroat trout in the Oregon coastal region occur mostly

in small populations that are relatively well distributed. Most of the

abundance information considered by NMFS for this ESU consists of

juvenile and smolt abundance information, with the prominent exception

of the adult counts at Winchester Dam on the North Umpqua River. In

general, NMFS is encouraged by the number of juveniles in coastal

streams with relatively large basins. Since the available data covers

only the last 2 years, the accuracy in which these juvenile counts

translate into adult abundances or longer-term population trends is

uncertain. The estimated pre-1970s abundance of anadromous coastal

cutthroat trout in the largest river basin contained within this ESU,

the Umpqua River, is 30,000 adults. A recent estimate of total run

size, based on expansions of observed numbers of adults from snorkel

surveys, is similar. (However, NMFS remains concerned about the

assumptions underlying expansion methods using snorkel survey data for

the freshwater forms of coastal cutthroat trout in the Umpqua Basin.)

Conflicting information about the abundance and distribution of

coastal cutthroat trout in the South Umpqua River Basin suggest that

there is insufficient information to reliably determine the status of

coastal cutthroat trout in that drainage. The number of adults

returning to the North Umpqua River has been critically low in recent

years (5-year geometric mean = 18 fish), although for the past 3 years,

79, 81, and 110 (through October, 1998) adult coastal cutthroat trout

have been counted at Winchester Dam.

Smolt production in two small drainages (Cummins and Tenmile

Creeks) in central Oregon shows an increasing trend over the past 7

years. However, the percentage of repeat spawners has declined in both

drainages relative to estimates in the early 1970s. All other streams

on the Oregon coast for which data are available are experiencing

moderate declines in adults and juveniles. In some areas, declines may

have occurred primarily in anadromous coastal cutthroat trout

populations. For example, in the Alsea and Siuslaw River Basins,

declines in anadromous runs have occurred as indicated by recreational

catch data, but ODFW believes there is no evidence for similar declines

in the freshwater forms of coastal cutthroat trout in those same

basins.

NMFS remains concerned about reductions in anadromous life-history

forms throughout this ESU. Available information indicates that sea-run

cutthroat trout are suffering more serious declines than are freshwater

forms along Oregon coastal streams. ODFW suggests that these freshwater

forms may be producing smolts in several coastal streams. However, NMFS

does not have the estimates of adult anadromous coastal cutthroat trout

in those streams, so it is difficult to evaluate the possibility that

freshwater forms could buffer anadromous forms from further declines.

Risks due to interactions with hatchery coastal cutthroat trout are

probably moderately low in this ESU. Nevertheless, the widespread

releases of Alsea River Hatchery broodstock in Oregon coastal streams

have stopped only relatively recently. Genetic samples indicate that

hatchery coastal cutthroat trout from the Alsea River broodstock have

influenced the genetic composition of several coastal cutthroat trout

populations in the Coquille River drainage. Hybrids between coastal

cutthroat trout and steelhead/rainbow trout were detected in genetic

samples from the Coquille River Basin and a few other streams in this

ESU. As discussed earlier, some degree of hybridization between O.

mykiss and coastal cutthroat trout may occur naturally without the

direct influence of hatchery-origin fish.

Listing Determination

NMFS concludes that the Oregon Coast coastal cutthroat trout ESU

does not warrant listing at this time but considers it a candidate for

future listing. The BRT scientists were evenly split as to whether this

ESU faced risk of endangerment. NMFS remains concerned with habitat

degradation in this region, and the overall scarcity of abundance

information for major drainages limited NMFS' efforts to conduct a risk

evaluation.

Hatchery records indicate that the Alsea River coastal cutthroat

trout stock was widely released in streams throughout the Oregon

coastal region. Recent reductions in releases of hatchery-origin

cutthroat trout and coho salmon fry, coupled with a statewide catch-

and-release recreational fishery policy for naturally spawned coastal

cutthroat trout, may reduce risks associated with these factors. NMFS

notes that reduced nearshore ocean habitat quality is likely a

significant threat to cutthroat trout in this region, but quantifying

those effects on cutthroat trout abundance is difficult. Finally, NMFS

remains concerned about

[[Page 16409]]

incidental mortality of coastal cutthroat trout in this ESU due to

fishing pressure on Pacific salmonids. Recent changes in ODFW's harvest

regulations may mitigate this concern to some degree.

Recently implemented state conservation efforts have likely reduced

the degree of risk facing this species. Furthermore, implementation of

the NFP has likely reduced habitat risks on Federal lands within this

ESU, which constitute about 35 percent of the land area. However, NMFS

remains concerned about the overall lack of abundance and trend

information for this ESU, as evidenced by its scientists' level of

uncertainty regarding the status of this ESU. An additional concern for

this ESU is increased fragmentation of populations due to the loss of

anadromous fish, which can increase genetic and demographic risks. NMFS

believes additional monitoring of this ESU is necessary before it is

eliminated from ESA consideration. Therefore, NMFS concludes that this

ESU warrants classification as a candidate species. NMFS will revisit

the status of this ESU within the next 4 years to determine whether ESA

protection is warranted.

(6) Southern Oregon/California Coasts ESU

Coastal cutthroat trout in this ESU appear widely distributed in

many small populations. Two possible exceptions are populations in the

Rogue and Smith River Basins where the abundance of coastal cutthroat

trout may be comparatively high. Smolt abundance in Lobster Creek, a

Rogue River tributary, was estimated to be over 800 fish in 1998. In

addition, fishery biologists familiar with the Rogue River Basin feel

that it supports many well-distributed coastal cutthroat trout

populations. Historical estimates indicated that the sea-run cutthroat

trout population size in the Smith River Basin was 8,500 fish.

Expansion estimates of fish greater than 25 cm in the three major forks

of the Smith River indicate that each fork supports at least 300

coastal cutthroat trout. In addition, Mill Creek, one of the most

productive coastal cutthroat trout tributaries in the Smith River

Basin, has had between 1,000 and 4,000 outmigrating smolts over each of

the past 4 years. Again, lack of information on smolt-to-adult survival

and trap efficiencies makes interpreting smolt abundance estimates in

the Rogue and Smith River Basins difficult. Population sizes are

thought to be relatively small in other streams throughout this region,

partly because it is the southern limit of this subspecies.

NMFS believes that severe habitat degradation has occurred in this

region primarily due to activities associated with agriculture, flood

control, logging, road construction, and some local development, which

have contributed to a reduction in habitat capacity relative to

historical levels. In addition, seasonal dewatering of stream mouths

occurs naturally in northern California, resulting in sporadic

blockages of access to the sea for anadromous fish in some streams.

Also, large water withdrawals in several of the larger coastal river

basins (e.g., Rogue, Klamath/Trinity, and Eel Rivers) and several of

the smaller coastal rivers have reduced the quantity and quality of the

remaining riverine and estuarine environments in this ESU.

Biologists familiar with this region believe, and anecdotal

evidence suggests, that major declines in coastal cutthroat trout

populations have occurred since historical times and that some

populations appear to have been relatively stable or increasing in size

since that time. The data available to NMFS indicate increasing short-

term trends in smolt abundance in Mill Creek and increasing short-term

trends in adult abundance in the lower Klamath River tributaries and

its estuary and in the Smith River Basin. Exceptions include recent

declines in the incidence of coastal cutthroat trout in Redwood Creek.

Risks due to interactions with hatchery coastal cutthroat trout are

probably low in this ESU. Other risks NMFS notes for coastal cutthroat

trout in this region are possible deleterious interactions with

naturally occurring or hatchery-derived coho salmon and steelhead in

Oregon and incidental catch of coastal cutthroat trout in sport

fisheries targeting steelhead and coho salmon. NMFS is encouraged by

recent changes in harvest regulations in both Oregon and California

aimed at reducing risks to natural trout from direct and indirect

harvest mortality.

Listing Determination

NMFS concludes the Southern Oregon/California Coasts ESU does not

warrant listing at this time. Although the majority of the BRT

scientists concluded this ESU does not warrant listing, these

scientists were uncertain regarding this conclusion. As with many other

ESUs for coastal cutthroat trout, NMFS is hindered in its assessment by

the scarcity of abundance information for this ESU. However, continuing

threats to the quality of freshwater and estuarine habitat for

cutthroat trout in this region are sources of concern.

NMFS believes that existing conservation efforts implemented by the

States of Oregon and California have likely reduced threats to this

species. For example, recent harvest regulations aimed at reducing

risks to natural trout from direct and indirect harvest mortality have

likely reduced risks to coastal cutthroat trout. NMFS also believes

that biological risks associated with habitat modification and

degradation on Federal lands have declined in recent years with the

implementation of the NFP, coupled with the consultation requirements

associated with the listing of coho salmon as a threatened species in

this region in 1997. Although NMFS remains concerned about habitat

conditions on non-federal lands in this ESU, the majority of habitat in

this area (about 53 percent) is under Federal management.

Proposed Determination

Based on NMFS' assessment of available scientific and commercial

information obtained during the coast wide status review of coastal

cutthroat trout, the Services are issuing a proposed determination that

Southwestern Washington/Columbia River cutthroat trout (O. clarki

clarki) constitute a ``species'' under the ESA and should be listed as

threatened. The listed ESU for Southwestern Washington/Columbia River

cutthroat trout is defined as all naturally spawned population(s) of

coastal cutthroat trout in the Columbia River and its tributaries

downstream from the Klickitat River in Washington and Fifteenmile Creek

in Oregon (inclusive) as well as those in the Willamette River and its

tributaries downstream from Willamette Falls. The ESU also includes

cutthroat trout in Washington coastal drainages between the Columbia

River and Grays Harbor (inclusive). The natural population consists of

all fish that are progeny of naturally spawning fish residing below

long-term, natural barriers (i.e., waterfalls in existence for hundreds

or thousands of years). The offspring of all fish taken from the

natural population after the date of listing are also part of the

listed ESU.

NMFS concludes that the current Umpqua River cutthroat trout ESU,

previously listed as an endangered species in 1996 (61 FR 41541, August

9, 1996; 61 FR 48412, September 13, 1996), is part of the larger Oregon

Coast coastal cutthroat trout ESU that extends from the mouth of the

Columbia River south to Cape Blanco, Oregon. NMFS concludes that the

best available scientific information indicates the Oregon Coast ESU

does not warrant

[[Page 16410]]

listing at this time. Therefore, through this notification, the

Services propose to revise the Umpqua River cutthroat trout ESU and

include it in the larger Oregon Coast ESU. This proposed revision

results in a proposed delisting of the Umpqua River cutthroat trout

ESU.

Prohibitions and Protective Measures

Section 9 of the ESA prohibits certain activities that directly or

indirectly affect endangered species. These prohibitions apply to all

individuals, organizations, and agencies subject to U.S. jurisdiction.

Section 9 prohibitions apply automatically to endangered species as

described in the following discussion; this is not the case for

threatened species.

Section 4(d) of the ESA directs the Secretaries to implement

regulations ``to provide for the conservation of [threatened]

species,'' that may include extending any or all of the prohibitions of

section 9 to threatened species. Section 9(a)(1)(g) also prohibits

violations of protective regulations for threatened species implemented

under section 4(d). Therefore, in the case of threatened species, the

Services have discretion under section 4(d) to adopt protective

regulations based in part on the contents of available conservation

measures. NMFS has already adopted 4(d) rules that except a limited

range of activities from section 9 take prohibitions. For example, the

interim 4(d) rule for Southern Oregon/Northern California coho salmon

(62 FR 38479, July 18, 1997) excepts habitat restoration activities

conducted in accordance with approved plans and fisheries conducted in

accordance with approved state management plans. In appropriate cases,

4(d) rules could contain a broader range of exceptions for activities

such as forestry, agriculture, and road construction when such

activities are conducted in accordance with approved state or tribal

plans.

These examples show that NMFS may apply section 9 prohibitions

narrowly if there are strong protections provided in a state or tribal

plan. There may be other circumstances as well in which NMFS would use

the flexibility of section 4(d). For example, in some cases there may

be a healthy population of salmon or coastal cutthroat trout within an

overall ESU that is listed. In such a case, it may not be necessary to

apply the full range of prohibitions available in section 9. The

Services intend to use the flexibility of the ESA to respond

appropriately to the biological condition of the proposed ESU and the

populations within it and to the strength of state and tribal plans in

place to protect them. Therefore, after further analysis, NMFS and/or

the FWS will issue protective regulations pursuant to section 4(d) for

the Southwestern Washington/Columbia River coastal cutthroat trout ESU.

Section 7(a)(4) of the ESA requires that Federal agencies confer

with us on any actions likely to jeopardize the continued existence of

a species proposed for listing and on actions likely to result in the

destruction or adverse modification of proposed critical habitat.

Federal agencies should confer with NMFS on the proposed Southwestern

Washington/Columbia River coastal cutthroat trout ESU. For listed

species, section 7(a)(2) requires Federal agencies to ensure that the

activities they authorize, fund, or conduct are not likely to

jeopardize the continued existence of a listed species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into consultation with the appropriate Service.

Examples of Federal actions likely to affect coastal cutthroat

trout in the proposed ESU include authorized land management activities

of the U.S. Forest Service and U.S. Bureau of Land Management, as well

as operation of hydroelectric and storage projects of the Bureau of

Reclamation and the COE. Such activities include timber sales and

harvest, hydroelectric power generation, and flood control. Federal

actions, including the COE section 404 permitting activities under the

CWA, COE permitting activities under the River and Harbors Act,

National Pollutant Discharge Elimination System permits issued by the

EPA, highway projects authorized by the Federal Highway Administration,

Federal Energy Regulatory Commission licenses for non-federal

development and operation of hydropower, and Federal salmon hatcheries,

may also require consultation. These actions will likely be subject to

ESA section 7 consultation requirements that may result in conditions

designed to achieve the intended purpose of the project and avoid or

reduce impacts to coastal cutthroat trout and its habitat within the

range of the proposed ESU.

Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with the

authority to grant exceptions to the ESA's ``taking'' prohibitions (see

regulations to be codified at 50 CFR 222.301 through 222.308 for NMFS,

64 FR 14051 through 14066, and 50 CFR 17.22 and 17.32 for FWS). Section

10(a)(1)(A) scientific research and enhancement permits may be issued

to entities (Federal and non-Federal) conducting research that involves

a directed take of listed species.

NMFS has issued section 10(a)(1)(A) research or enhancement permits

for other listed species (e.g., Snake River chinook salmon and

Sacramento River winter-run chinook salmon) for a number of activities,

including trapping and tagging, electroshocking to determine population

presence and abundance, removing fish from irrigation ditches, and

collecting adult fish for artificial propagation programs. These and

other research efforts could provide critical information regarding

cutthroat trout distribution and population abundance.

We can issue section 10(a)(1)(B) incidental take permits to non-

federal entities performing activities that may incidentally take

listed species. The types of activities potentially requiring a section

10(a)(1)(B) incidental take permit include the operation and release of

artificially propagated fish by state or privately operated and funded

hatcheries, state or university research on listed species not

receiving Federal authorization or funding, the implementation of state

fishing regulations, and timber harvest activities on non-Federal

lands.

Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the ESA include recognition, recovery actions, Federal

agency consultation requirements, and prohibitions on taking.

Recognition through listing promotes public awareness and conservation

actions by Federal, state, and local agencies, private organizations,

and individuals.

Several conservation efforts are underway that may help reverse the

decline of coastal cutthroat trout and other salmonids. These include

the NFP (on Federal lands within the range of the northern spotted

owl), Oregon's OPSW, Washington's LCSCI, and California's WPRC and SB

271 programs. We are encouraged by these efforts and believe they

constitute significant strides in the region's endeavor to develop a

scientifically well grounded conservation plan for these stocks. Other

efforts, such as the Willamette River Conservation Planning process,

are at various stages of development, but show promise to ameliorate

risks facing coastal cutthroat trout. We intend to support and work

closely with these efforts--staff and resources permitting--in the

belief that

[[Page 16411]]

they can play an important role in the recovery planning process.

Based on information presented in this proposed rule, general

conservation measures that could be implemented to help conserve

coastal cutthroat trout are listed here. This list is not exhaustive

and does not constitute NMFS' interpretation of a recovery plan under

section 4(f) of the ESA.

1. Measures could be taken to promote land management practices

that protect and restore cutthroat trout habitat. Land management

practices affecting cutthroat trout habitat include timber harvest,

road building, agriculture, livestock grazing, gravel mining, and urban

development.

2. Evaluation of existing harvest regulations could identify any

changes necessary to protect cutthroat trout populations.

3. Artificial propagation programs could be required to incorporate

practices that minimize impacts upon natural populations of cutthroat

trout.

4. Efforts could be made to ensure that existing and proposed dam

facilities are designed and operated in a manner that lessens adverse

effects on cutthroat trout populations.

5. Water diversions could have adequate headgate and staff gauge

structures installed to control and monitor water usage accurately.

Water rights could be enforced to prevent irrigators from exceeding the

amount of water to which they are legally entitled. As necessary,

instream flow studies could be conducted, and existing water rights re-

adjudicated as necessary to ensure adequate instream flows to support

cutthroat trout.

6. Irrigation diversions affecting downstream migrating cutthroat

trout could be screened according to appropriate anadromous fish screen

criteria. A thorough review of the impact of irrigation diversions on

cutthroat trout could be conducted.

We recognize that, to be successful, protective regulations and

recovery programs for cutthroat trout will need to be developed in the

context of conserving aquatic ecosystem health. We intend that Federal

lands and Federal activities play a primary role in preserving listed

populations and the ecosystems upon which they depend. However,

throughout the range of the ESU proposed for listing, cutthroat trout

habitat occurs and can be affected by activities on state, tribal, or

private land. Agricultural, timber, and urban land management

activities on non-federal land could and should be conducted in a

manner that minimizes adverse effects to cutthroat trout habitat.

We encourage non-Federal landowners to assess the impacts of their

actions on potentially threatened or endangered salmonids. In

particular, we encourage the establishment of watershed partnerships to

promote conservation in accordance with ecosystem principles. These

partnerships will be successful only if state, tribal, local

governments, landowner representatives, and Federal and non-Federal

biologists all participate and share the goal of restoring cutthroat

trout to the watersheds.

Critical Habitat Determination

Critical habitat is defined in section 3 of the ESA as: (i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the ESA, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection; and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures needed to bring the species to the point at which listing

under the Act is no longer necessary.

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

prudent and determinable, the Services designate critical habitat

concurrently with a determination that a species is endangered or

threatened. Our regulations (50 CFR 424.12(a)) state that critical

habitat is not determinable if information sufficient to perform

required analysis of the impacts of designation is lacking or if the

biological needs of the species are not sufficiently well known to

permit identification of an area as critical habitat. Section 4(b)(2)

of the ESA requires us to consider economic and other relevant impacts

of designating a particular area as critical habitat on the basis of

the best scientific data available. The Secretaries may exclude any

area from critical habitat if they determine that the economic benefits

of such exclusion outweigh the conservation benefits, unless to do such

would result in the extinction of the species. When a ``not

determinable'' finding is made, we must, within 2 years of the

publication date of the original proposed rule, designate critical

habitat, unless designation is found to be not prudent.

Prior to proposing critical habitat for this species, the Services

must identify geographic areas occupied by the species, as well as

areas outside the current species range, which contain important

physical or biological features essential for the conservation and

recovery of the species, and must consider the economic and other

impacts of designating critical habitat. Given this species' complex

life history and the high degree of scientific uncertainty associated

with it, NMFS has not yet had time to complete analyses necessary for

designating critical habitat. Further, due to statutory time

limitations, NMFS has not yet consulted with affected Indian tribes

regarding the designation of critical habitat in areas that may impact

tribal trust resources, tribally-owned fee lands, or the exercise of

tribal rights. Such consultation is required by the recently

implemented Secretarial Order entitled ``American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities, and the Endangered Species

Act.''

Given these remaining unresolved scientific and tribal issues, the

Services find that critical habitat is not now determinable for the

proposed ESU. During the comment period for this listing proposal, the

Services also seek additional agency and public input on critical

habitat, along with information on the proposed listing. We will use

this and other information in formulating a determination on critical

habitat for the Southwestern Washington/Columbia River ESU. The

Services will also engage in government-to-government consultations

with affected Indian tribes as required by the Secretarial Order.

NMFS Policies on Endangered and Threatened Fish and Wildlife

On July 1, 1994, the Services published a series of policies

regarding listings under the ESA, including a policy for peer review of

scientific data (59 FR 34270) and a policy to identify, to the maximum

extent possible, those activities that would or would not constitute a

violation of section 9 of the ESA (59 FR 34272).

Role of Peer Review

The intent of the peer review policy is to ensure that listings are

based on the best scientific and commercial data available. Prior to a

final listing, NMFS will solicit the expert opinions of three qualified

specialists, concurrent with the public comment period. Independent

peer reviewers will be selected from the academic and scientific

community, tribal and other

[[Page 16412]]

Native American groups, Federal and state agencies, and the private

sector.

Identification of Those Activities That Would Constitute a Violation of

Section 9 of the ESA

The intent of this policy is to increase public awareness of the

effect of this listing on proposed and ongoing activities within the

range of coastal cutthroat trout. NMFS or the FWS will publish a

proposed 4(d) rule in the future applying section 9 prohibitions and

exceptions. However, to provide guidance prior to publication of this

proposed rule, the following is a list of actions NMFS believes will

not result in a violation of section 9:

(1) Possession of cutthroat trout acquired lawfully by permit

issued by the appropriate Service pursuant to section 10 of the ESA, or

by the terms of an incidental take statement pursuant to section 7 of

the ESA.

(2) Federally approved projects that involve activities such as

silviculture, grazing, mining, road construction, dam construction and

operation, discharge of fill material, stream channelization or

diversion for which consultation has been completed, and when such

activity is conducted in accordance with any terms and conditions given

by NMFS or the FWS in an incidental take statement accompanied by a

biological opinion.

Activities that NMFS believes could potentially harm the cutthroat

trout and result in ``take'', include, but are not limited to:

(1) Unauthorized collecting or handling of the species. Permits to

conduct these activities are available for purposes of scientific

research or to enhance the propagation or survival of the species.

(2) Unauthorized destruction/alteration of the species' habitat

such as removal of large woody debris or riparian shade canopy,

dredging, discharge of fill material, draining, ditching, diverting,

blocking, or altering stream channels or surface or ground water flow.

(3) Discharges or dumping of toxic chemicals or other pollutants

(i.e., sewage, oil, and gasoline) into waters or riparian areas

supporting the species.

(4) Violation of discharge permits.

(5) Interstate and foreign commerce (commerce across state lines

and international boundaries) and import/export without prior

obtainment of an endangered species permit.

This list is not exhaustive; rather, it is provided to give you

some examples of activities that may be considered by NMFS as

constituting a ``take'' of coastal cutthroat trout under the ESA and

associated regulations. Questions regarding whether specific activities

constitute a violation of section 9 and general inquiries regarding

prohibitions and permits, should be directed to NMFS (see ADDRESSES).

Public Comments Solicited

To ensure that the final action resulting from this proposal will

be as accurate and effective as possible, we are soliciting comments

and suggestions from the public, other governmental agencies, the

scientific community, industry, and any other interested parties. We

will hold public hearings in the areas affected by this proposal;

details regarding locations, dates, and times will be published in a

forthcoming Federal Register notification. We recognize that there are

serious limits to the quality of information available, and, therefore,

NMFS has executed its best professional judgement in developing this

proposal. We request additional information regarding coastal cutthroat

trout, in particular: (1) Biological or other relevant data concerning

any threat to cutthroat trout; (2) the range, distribution, and

population size of coastal cutthroat trout in the proposed and

candidate ESUs; (3) current or planned activities in the subject areas

and their possible impact on the proposed and candidate species; (4)

cutthroat trout escapement, particularly escapement data partitioned

into natural and hatchery components; (5) the proportion of naturally

reproducing fish that were reared as juveniles in a hatchery; (6)

homing and straying of natural and hatchery fish; (7) the reproductive

success of naturally reproducing hatchery fish (i.e., hatchery-produced

fish that spawn in natural habitat) and their relationship to the

proposed and candidate ESUs; and (8) efforts being made to protect

native, naturally reproducing populations of coastal cutthroat trout in

Washington, Oregon, and California.

We also request quantitative evaluations describing the quality and

extent of freshwater and marine habitats for juvenile and adult

cutthroat trout as well as information on areas that may qualify as

critical habitat in Washington and Oregon. Areas that include the

physical and biological features essential to the recovery of the

species should be identified. We recognize there are areas within the

proposed boundaries of these ESUs that historically constituted

cutthroat trout habitat, but that may not be currently occupied by

cutthroat trout. We request information about cutthroat trout in these

currently unoccupied areas and whether these habitats should be

considered essential to the recovery of the species or excluded from

designation. Essential features include, but are not limited to (1)

habitat for individual and population growth, and for normal behavior;

(2) food, water, air, light, minerals, or other nutritional or

physiological requirements; (3) cover or shelter; (4) sites for

reproduction and rearing of offspring; and (5) habitats that are

protected from disturbance or are representative of the historical

geographical and ecological distributions of the species.

For areas potentially qualifying as critical habitat, we request

information describing (1) the activities that affect the area or could

be affected by the designation, and (2) the economic costs and benefits

of additional requirements of management measures likely to result from

the designation.

We will consider all public comments and additional information

regarding the status and critical habitat of the cutthroat trout ESUs

prior to issuing a final determination. The availability of new

information may cause us to reassess the status of cutthroat trout ESUs

in the final determination.

Public Hearings

Joint Commerce-Interior ESA implementing regulations require us to

promptly hold at least one public hearing if any person so requests

within 45 days of publication of a proposed regulation to list a

species or to designate critical habitat (see 50 CFR 424.16(c)(3)). In

a forthcoming Federal Register notification, we will announce the dates

and locations of public hearings on this proposed rule to provide the

opportunity for the public to give comments and to permit an exchange

of information and opinion among interested parties. We encourage the

public's involvement in such ESA matters.

References

A complete list of all references cited herein is available upon

request (see ADDRESSES).

Classification

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the

information that may be considered when assessing species for listing.

Based on this limitation of criteria for a listing decision and the

opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th Cir.

1981), NMFS categorically excludes all ESA listing actions from

[[Page 16413]]

environmental assessment requirements of the National Environmental

Policy Act (NEPA) under NOAA Administrative Order 216-6. FWS also

determined that an environmental assessment need not be prepared in

connection with regulations adopted pursuant to section 4 of the ESA

and published a notice in the Federal Register on October 25, 1983 (48

FR 49244), outlining its reasons.

As noted in the Conference Report on the 1982 amendments to the

ESA, economic impacts cannot be considered in determinations regarding

the status of species. Therefore, the economic analysis requirements of

the Regulatory Flexibility Act (RFA) are not applicable to the listing

process. In addition, this proposed rule is exempt from review under

E.O. 12866.

At this time we are not proposing protective regulations pursuant

to ESA section 4(d). In the future, prior to finalizing its 4(d)

regulations for the threatened ESU, we will comply with all relevant

NEPA and RFA requirements.

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

requirement for purposes of the Paperwork Reduction Act.

List of Subjects

50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

record keeping requirements, Transportation.

50 CFR Part 223

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

50 CFR Part 224

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and record keeping requirements,

Transportation.

50 CFR Part 226

Endangered and threatened species.

For the reasons set out in the preamble, 50 CFR parts 17, 223, 224,

and 226 are proposed to be amended as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following in alphabetical

order under ``Fishes'', to the List of Endangered and Threatened

Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate population

-------------------------------------------------------- Historic range where endangered or Status When Critical Special

Common name Scientific name threatened listed habitat rules

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

* * * * * * *

Fishes

* * * * * * *

Trout, coastal cutthroat......... Oncorhynchus clarki U.S.A. (AK, CA, OR, Southwestern WA/Columbia T ......... NA NA

clarki. WA) Canada. R.--(USA--OR, WA)--

naturally spawning

populations (and their

progeny) below natural

barriers in Columbia R.

and its tributaries

downstream from

Klickitat R. (WA) and

Fifteenmile Cr. (OR),

inclusive, including

Willamette R.

downstream from

Willamette Falls, and

in coastal drainages

between Columbia R. and

Grays Harbor (WA),

inclusive.

* * * * * * *

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

3. Amend Sec. 17.11(h) by removing the entry for ``Trout, Umpqua

River cutthroat'' under ``Fishes'' from the List of Endangered and

Threatened Wildlife.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

4. The authority citation for part 223 continues to read as

follows:

Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31

U.S.C. 9701.

5. In Sec. 223.102, paragraph (a)(20) is added to read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *

(a) * * *

(20) Southwestern Washington/Columbia River coastal cutthroat trout

(Oncorhynchus clarki clarki). Includes all naturally spawned

populations of coastal cutthroat trout (and their progeny) residing

below long-standing, naturally impassable barriers in the Columbia

River and its tributaries downstream from the Klickitat River in

Washington and Fifteenmile Creek in Oregon (inclusive), including the

Willamette River and its tributaries downstream from Willamette Falls,

as well as those populations in Washington coastal drainages from the

Columbia River to Grays Harbor (inclusive).

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

6. The authority citation for part 224 continues to read as

follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

Sec. 224.101 [Amended]

7. In Sec. 224.101, in paragraph (a), remove the words ``Umpqua

River cutthroat trout (Oncorhynchus clarki clarki)''.

PART 226--DESIGNATED CRITICAL HABITAT

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

follows:

[[Page 16414]]

Authority: 16 U.S.C. 1533.

Sec. 226.206 [Removed]

9. Section 226.206 is removed.

Secs. 226.207 through 226.209 [Redesignated as Secs. 226.206 through

226.208]

10. Sections 226.207 through 226.209 are redesignated as

Secs. 226.206 through 226.208, respectively.

Table 4 to part 226 [Removed]

11. Table 4 to part 226 is removed.

Dated: March 29, 1999.

Rolland A. Schmitten,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

Dated: March 22, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-8195 Filed 4-2-99; 8:45 am]

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