# 64 FR 16397: 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

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URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_99-8195

## Section

- **Citation:** 64 FR 16397
- **Heading:** 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
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 64 / 64 FR 16397

## Text

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

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.
e 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

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.
ral 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).
ed 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.
ry, 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
eview 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.

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
ative.
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
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)
. 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
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
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

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
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
insula 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).
on, 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
tive 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.
teristics 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

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.
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.
luding 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.
roat 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.
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'').
view 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
y 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

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
or 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.
ation 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
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.
at
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
otect 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

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
ter 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.
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.
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).
han 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
ted; 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
f 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.
astal 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.
ur 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.
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

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.
rengths 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.
rshed 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.
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.
on 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
hroughout 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

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.
al 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.
er 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.
er, 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)
t 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
bal
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

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.
migrant data, partly because smolt-to-
adult survival estimates are lacking

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.
on. 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.
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
ivers 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.
verely 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

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

Listing Determination
tent 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

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.
eclines, 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.
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.)
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.
n 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
s 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

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.
re 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

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
y 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.
rs 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
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
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
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

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
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.
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
mples 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.
he
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.
eral
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 Californ

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_99-8195. Check the current official text before relying on it. Not legal advice.