Endangered and Threatened Wildlife and Plants; Determination of Significant Portion of the Range of Marine and Estuarine Areas of the Southwestern Washington/Columbia River Distinct Population Segment of Coastal Cutthroat Trout (Oncorhynchus clarki clarki, 12297-12300 [E9-5890]
Download as PDF
<![CDATA[
mstockstill on PROD1PC66 with PROPOSALS
Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Proposed Rules
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statue. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or are available for
viewing and copying at the Site
information repositories located at: U.S.
EPA Montana Office, Federal Building,
Suite 3200, 10 West 15th Street, Helena,
MT 59626, (406) 457–5000.
Viewing Hours: Mon.–Fri. 8 a.m. to 5
p.m., excluding holidays. Stillwater
County Library, 27 North 4th Street; PO
Box 266, Columbus, MT 59019–0266,
406–322–5009. Hours: (Library hours
vary)
FOR FURTHER INFORMATION CONTACT:
Roger Hoogerheide, Remedial Project
Manager, 8MO,
hoogerheide.roger@epa.gov, U.S. EPA,
Region 8—Montana Office, 10 W. 15th
St., Suite 3200, Helena, Montana 59626,
(406) 457–5031 or 1–866–457–2690,
extension 5031.
SUPPLEMENTARY INFORMATION: In the
‘‘Rules and Regulations’’ Section of
today’s Federal Register, we are
publishing a direct final Notice of
Partial Deletion for the surface and
subsurface soils component of the
Mouat Industries Superfund Site
without prior Notice of Intent for Partial
Deletion because EPA views this as a
noncontroversial revision and
anticipates no adverse comment. We
VerDate Nov<24>2008
01:05 Mar 24, 2009
Jkt 217001
have explained our reasons for this
partial deletion in the preamble to the
direct final Notice of Partial Deletion,
and those reasons are incorporated
herein. If we receive no adverse
comment(s) on this partial deletion
action, we will not take further action
on this Notice of Intent for Partial
Deletion. If we receive adverse
comment(s), we will withdraw the
direct final Notice of Partial Deletion
and it will not take effect. We will, as
appropriate, address all public
comments in a subsequent final Notice
of Partial Deletion based on this Notice
of Intent for Partial Deletion. We will
not institute a second comment period
on this Notice of Intent for Partial
Deletion. Any parties interested in
commenting must do so at this time.
For additional information, see the
direct final Notice of Partial Deletion
which is located in the Rules section of
this Federal Register.
List of Subjects in 40 CFR Part 300
Environmental protection, Air
pollution control, Chemicals, Hazardous
waste, Hazardous substances,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9657; E.O. 12777, 56 FR 54757, 3 CFR,
1991 Comp., p. 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
Dated: March 10, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E9–6143 Filed 3–23–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2008-0128; MO 922105 0083B2]
RIN 1018-AW72
Endangered and Threatened Wildlife
and Plants; Determination of
Significant Portion of the Range of
Marine and Estuarine Areas of the
Southwestern Washington/Columbia
River Distinct Population Segment of
Coastal Cutthroat Trout
(Oncorhynchus clarki clarki)
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
12297
SUMMARY: On July 5, 2002, we, the U.S.
Fish and Wildlife Service (Service),
published a withdrawal of the proposed
rule to list the Southwestern
Washington/Columbia River distinct
population segment (DPS) of the coastal
cutthroat trout (Oncorhynchus clarki
clarki) as threatened under the
Endangered Species Act of 1973, as
amended (Act). As a result of litigation,
we are now reconsidering our
withdrawal of the proposed rule with
specific regard to the question of
whether the marine and estuarine areas
may constitute a significant portion of
the range of the Southwestern
Washington/Columbia River DPS of
coastal cutthroat trout, and if so,
whether that portion is threatened or
endangered. We hereby notify the
public, other concerned governmental
agencies, the scientific community,
industry, and any other interested party
of our request for information, data, or
comments on the marine and estuarine
areas of the Southwestern Washington/
Columbia River DPS of coastal cutthroat
trout, with particular regard to whether
these areas constitute a significant
portion of the range of the DPS under
the Act, and if so, whether the
subspecies is threatened or endangered
in those areas.
DATES: We will accept information
received on or before April 23, 2009.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS-R1ES-2008–0128; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
‘‘Public Comments’’ section below for
more information).
FOR FURTHER INFORMATION CONTACT: Paul
Henson, Ph.D, State Supervisor, U.S.
Fish and Wildlife Service, Oregon Fish
and Wildlife Office, 2600 SE 98th
Avenue, Suite 100, Portland, OR 97266;
telephone 503-231-6179; facsimile 503231-6195. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
To ensure that any action resulting
from this request for information will be
E:\FR\FM\24MRP1.SGM
24MRP1
mstockstill on PROD1PC66 with PROPOSALS
12298
Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Proposed Rules
based on the best scientific and
commercial data available and will be as
accurate as possible, we solicit
comments or suggestions from the
public, other concerned governmental
agencies, the scientific community,
industry, or any other interested parties.
We particularly seek comments
concerning:
(1) Information on those marine and
estuarine areas that could potentially
constitute a significant portion of the
range of the Southwestern Washington/
Columbia River DPS of the coastal
cutthroat trout, and the suggested
boundaries of those areas;
(2) Information on whether and why
those marine and estuarine areas
constitute a significant portion of the
range of the Southwestern Washington/
Columbia River DPS of coastal cutthroat
trout as defined by sections 3(6) or 3(20)
of the Act; and
(3) Other information on the status,
distribution, population trends,
abundance, habitat conditions, or
threats specific to those marine and
estuarine areas that could constitute a
significant portion of the range of the
Southwestern Washington/Columbia
River DPS of coastal cutthroat trout.
(4) Information on the effects of
potential threat factors that are the basis
for a species’ listing determination
under section 4(a)(1) of the Act (16
U.S.C. 1531 et seq.; the ‘‘five listing
factors’’) specifically with respect to
those marine and estuarine areas of the
Southwestern Washington/Columbia
River DPS of coastal cutthroat trout. The
five listing factors considered under the
Act are:
(a) The present or threatened
destruction, modification, or
curtailment of the species’ habitat or
range;
(b) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(c) Disease or predation;
(d) Inadequacy of existing regulatory
mechanisms; and
(e) Other natural or manmade factors
affecting its continued existence.
We define ‘‘estuary’’ to mean a semienclosed coastal body of water that has
a free connection with the open sea and
within which sea water is measurably
diluted with fresh water derived from
land drainage (Lauff 1967, as cited in
ISAB 2000, p. 2). For example, although
the Columbia River is tidally influenced
up to Bonneville Dam at river mile 146
(235 river kilometers), saltwater
intrusion is generally limited to the
lower 23 river miles (37 river
kilometers) (near Harrington Point) at
the minimum regulated monthly flow
(Neal 1972, as cited in ISAB 2000, p. 2),
VerDate Nov<24>2008
01:05 Mar 24, 2009
Jkt 217001
although when lower daily flows occur
salt intrusion can extend past Pillar
Rock at river mile 28 (45 river
kilometers).
Please note that comments merely
stating support for or opposition to the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, because
section 4(b)(1)(A) of the Act directs that
determinations as to whether any
species is a threatened or endangered
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’
You may submit your comments and
materials concerning this request for
information by one of the methods
listed in the ADDRESSES section. We will
not consider comments sent by e-mail or
fax or to an address not listed in the
ADDRESSES section.
If you submit a comment via https://
www.regulations.gov, your entire
comment—including any personal
identifying information—will be posted
on the website. If you submit a
hardcopy comment that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy comments on
https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this review, will be
available for public inspection at https://
www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Oregon Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Background
The coastal cutthroat trout is one of
10 formally described subspecies of
cutthroat trout (Behnke 1992, p. 53).
Coastal cutthroat trout are distributed
along the Pacific Coast of North America
from Prince William Sound in Alaska to
the Eel River in California (Behnke
1992, p. 65; Trotter 1997, p. 7), and
inland from the Coast Range of Alaska
to roughly the crest of the Cascades of
Washington and Oregon (Trotter 1997,
p. 7). In January 1999, the National
Marine Fisheries Service (NMFS)
completed a status review of coastal
cutthroat trout from Washington,
Oregon, and California. The status
review identified six Evolutionarily
Significant Units (ESUs) across this
range based on biogeographic, life
history, and genetic information. The
six ESUs identified were Puget Sound,
Olympic Peninsula, Southwestern
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
Washington/Columbia River, Upper
Willamette River, Oregon Coast, and
Southern Oregon/California Coasts
(Johnson et al. 1999, p. 125).
On April 5, 1999, the NMFS and the
Service issued a joint proposal to list the
Southwestern Washington/Columbia
River population of the coastal cutthroat
trout as a threatened species under the
Act (64 FR 16397). Although the NMFS
uses the term ESU for such a
population, when the Service assumed
sole regulatory jurisdiction of the
coastal cutthroat trout under the Act in
April 2000 (65 FR 21376; April 21,
2000), we began using the term Distinct
Population Segment (DPS), which is the
terminology normally utilized for such
analogous entities by the Service.
The Southwestern Washington/
Columbia River DPS that is the subject
of this request for information includes
the Columbia River and its tributaries
from the mouth to the Klickitat River on
the Washington side of the river and
Fifteenmile Creek on the Oregon side;
the Willamette River and its tributaries
from its confluence with the Columbia
upstream to Willamette Falls; Willapa
Bay and its tributaries; and Grays
Harbor and its tributaries. The DPS
inhabits portions of five ecoregions: the
Coast Range, Puget Lowland, Cascades,
Willamette Valley, and Eastern
Cascades. Most of the DPS occurs in the
Coast Range, Puget Lowland, and
Cascades. A more detailed description
of the DPS can be found in the April 5,
1999, proposed rule (64 FR 16397).
Relatively little is known about the
specific life history and habitat
requirements of coastal cutthroat trout.
Coastal cutthroat trout spend more time
in the freshwater environment and make
more extensive use of this habitat,
particularly small streams, than do most
other Pacific salmonids (Johnson et
al.1999, p. 44). The life history of
coastal cutthroat trout may be one of the
most complex of any Pacific salmonid.
Coastal cutthroat trout exhibit a variety
of life history strategies across their
range that includes three basic
variations: resident or primarily
nonmigratory, freshwater migrants, and
marine migrants (Northcote 1997, p.20;
Johnson et al. 1999, pp. 11, 44-45).
Residents may stay within the same
stream segment their entire life.
Freshwater migrants may make
migrations from small tributaries to
larger tributaries or rivers, or may
migrate from tributary streams to lakes
or reservoirs. Marine migrations
(anadromy) are generally thought to be
limited to near-shore marine areas;
individuals may not venture out of the
estuary in some cases (Trotter 1997,
p.10).
E:\FR\FM\24MRP1.SGM
24MRP1
Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Proposed Rules
mstockstill on PROD1PC66 with PROPOSALS
There are numerous exceptions to
these generalized behaviors. We also
lack observations of definitive genetic
relationships between individual or
population-wide migratory strategies
(Behnke 1997, p. 5). In areas above longstanding barriers, coastal cutthroat trout
are limited to resident or freshwater
migratory life history strategies. In areas
accessible to the ocean, all three life
history strategies (resident, freshwater
migratory, and anadromous) are likely
to be expressed in the same area. Coastal
cutthroat trout appear to exhibit very
flexible life history strategies. The
extent to which individuals expressing
these various strategies are isolated from
other life history forms is largely
unknown, though there is growing
evidence that individuals may express
multiple life history behaviors in their
life time (Johnson et al. 1999, pp. 40-43).
The diverse life history strategies shown
by coastal cutthroat trout are not well
understood, but are thought to represent
unique adaptations to local
environments and the subspecies’
response to environmental variability
and unpredictability.
For additional information on the
biology, habitat, and range of coastal
cutthroat trout, please refer to the
proposed rule (64 FR 16397; April 5,
1999) and withdrawal of the proposed
rule (67 FR 44934; July 5, 2002).
Previous Federal Actions
The NMFS and the Service jointly
published a proposed rule to list the
Southwestern Washington/Columbia
River ESU (later DPS) of coastal
cutthroat trout as a threatened
population under the distinct vertebrate
population segment provision of the Act
on April 5, 1999 (64 FR 16397). In that
proposed rule, we noted the uncertainty
regarding which agency, the NMFS or
the Service, had jurisdiction over the
coastal cutthroat trout, and we
committed to notify the public once the
issue had been resolved. Subsequently,
the time to make a final determination
on the proposed rule was extended for
an additional 6 months, from April 5,
2000 to October 5, 2000, due to
substantial scientific disagreement
about the status of the population; this
action further opened an additional 30–
day comment period (65 FR 20123;
April 14, 2000). On April 21, 2000, the
NMFS and the Service published a
notice of the Service’s assumption of
sole jurisdiction for coastal cutthroat
trout under the Act (65 FR 21376). On
June 2, 2000, we again reopened the
comment period on the proposed rule
and announced a public hearing to be
held in Ilwaco, Washington, on June 20,
2000, to allow all interested parties to
VerDate Nov<24>2008
01:05 Mar 24, 2009
Jkt 217001
submit oral or written comments on the
proposal (65 FR 35315).
On July 14, 2000, we published a
notice to clarify the take prohibitions for
the Southwestern Washington/Columbia
River DPS of coastal cutthroat trout that
would apply if the proposed listing
were to be finalized and provided a 30–
day public comment period on the list
of activities that would, and would not,
likely constitute a violation of section 9
of the Act (65 FR 43730). The comment
period on the clarification of take
prohibitions was reopened on
September 6, 2000 (65 FR 53974), and
a hearing was held September 21, 2000,
in Aberdeen, Washington, based on a
request during the initial public
comment period. In addition, the
comment period on the proposed rule to
list the Southwestern Washington/
Columbia River DPS of coastal cutthroat
trout was again reopened for an
additional 30 days on November 23,
2001 (66 FR 58706).
On July 5, 2002, we published a
notice of withdrawal of the proposed
rule to list the Southwestern
Washington/Columbia River DPS of the
coastal cutthroat trout as threatened (67
FR 44934). The notice set forth the
following bases for our determination
that the DPS did not meet the listing
criteria as a threatened species: (1) new
data indicating that coastal cutthroat
trout are more abundant in southwest
Washington than was previously
thought and that population sizes were
comparable to those of healthy
populations in other areas; (2) new
information and analyses calling into
question prior interpretation of the size
of the anadromous portion of the
population in the Columbia River and
indicating higher numbers than
previously described; (3) new data and
analyses no longer showing declining
adult populations in the Grays Harbor
tributaries; (4) new analyses calling into
question the past interpretation of trend
data, and therefore the magnitude of the
trend in the anadromous portion of the
population in the Columbia River; (5)
new information describing the
production of anadromous progeny by
non-anadromous and above-barrier
cutthroat trout; and, (6) two large-scale
Habitat Conservation Plans (HCPs) and
significant changes in Washington
Forest Practices Regulations
substantially reducing threats to aquatic
and riparian habitat on forest lands in
Washington. The withdrawal notice
concluded that, based on reduced
threats and new information and
understanding regarding the status of
the DPS, the Southwestern Washington/
Columbia River DPS of coastal cutthroat
trout was not in danger of becoming
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
12299
endangered in the foreseeable future,
and therefore did not meet the
definition of a threatened species.
On February 3, 2005, the Center for
Biological Diversity, Oregon Natural
Resources Council, Pacific Rivers
Council, and WaterWatch filed a legal
challenge to the Service’s withdrawal of
the proposed listing in the U.S. District
Court for the District of Oregon (Center
for Biological Diversity, et al. v. U.S.
Fish and Wildlife Service, Case No. 05165-KI). The Court ruled that the
Service’s decision to withdraw the
proposed rule complied with the Act
and was not arbitrary and capricious,
and dismissed the action on November
16, 2005. Plaintiffs appealed. On April
18, 2008, the U.S. Court of Appeals for
the Ninth Circuit affirmed the district
court’s decision in part and reversed the
decision in part. The Ninth Circuit
found no error in the Service’s
determination that the DPS as a whole
did not merit listing, but held that the
Service had failed to consider whether
the marine and estuarine portions of the
DPS constitute a significant portion of
the range of the coastal cutthroat trout
within that DPS under the Act (Center
for Biological Diversity, et al. v. U.S.
Fish and Wildlife Service, 2008 U.S.
App. LEXIS 8701 (9th Cir. 2008)). The
Ninth Circuit reversed the district
court’s decision and remanded the
matter to the district court.
On July 1, 2008, the U.S. District
Court for the District of Oregon issued
an amended order remanding the listing
decision to the Service for further
consideration consistent with the
opinion of the Ninth Circuit.
Specifically, the court directed the
Service to consider whether the estuary
and other marine areas constitute a
significant portion of the range of the
Southwestern Washington/Columbia
River DPS of the coastal cutthroat trout.
The Service will complete its review of
the best available information, including
data, information, and comments
submitted during this comment period,
to comply with that order.
At this time, we are soliciting new
information on the coastal cutthroat
trout in the marine and estuarine areas
of the Southwestern Washington/
Columbia River DPS, and specifically in
regard to whether these areas represent
a significant portion of the range of this
DPS. If you submit information, please
support it with documentation such as
maps, bibliographic references, methods
used to gather and analyze the data, or
copies of any pertinent publications,
reports, or letters by knowledgeable
sources. We request information
regarding data from any systematic
surveys, as well as any studies or
E:\FR\FM\24MRP1.SGM
24MRP1
12300
Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Proposed Rules
analysis of data regarding population
size or trends; biology or ecology of the
subspecies; effects of current land
management on population distribution
and abundance; current condition of
habitat; and conservation measures that
have been implemented to benefit the
subspecies specific to the marine and
estuarine areas of the Southwestern
Washington/Columbia River DPS.
Additionally, we request information on
threats to the coastal cutthroat trout in
the marine and estuarine areas of the
Southwestern Washington/Columbia
River DPS in relation to the five listing
factors (as defined in section 4(a)(1) of
the Act).
At the conclusion of our review, we
will issue a new determination on the
April 5, 1999 proposed rule concerning
whether the marine and estuarine areas
of the Southwestern Washington/
Columbia River DPS of the coastal
cutthroat trout constitute a significant
portion of the range of the DPS, and if
so, whether such significant portion of
the range warrants listing. We will base
our determination on a review of the
best scientific and commercial
information available, including all
information received as a result of this
notice.
References Cited
A complete list of all references we
cited in this document is available on
the Internet at https://
www.regulations.gov or by contacting
the Oregon Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are
the staff of the Oregon Fish and Wildlife
Office, U.S. Fish and Wildlife Service,
2600 SE 98th Avenue, Suite 100,
Portland, OR 97266.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: March 11, 2009
Paul R. Schmidt
Acting Director, Fish and Wildlife Service
[FR Doc. E9–5890 Filed 3–23–09; 8:45 am]
mstockstill on PROD1PC66 with PROPOSALS
BILLING CODE 4310–55–S
VerDate Nov<24>2008
01:05 Mar 24, 2009
Jkt 217001
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
RIN 0648–AX42
Fisheries of the Exclusive Economic
Zone Off Alaska; Central Gulf of Alaska
Rockfish Program; Amendment 85
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of availability of
fishery management plan amendment;
request for comments.
SUMMARY: The North Pacific Fishery
Management Council submitted
Amendment 85 to the Fishery
Management Plan for Groundfish of the
Gulf of Alaska (GOA FMP) to NMFS for
review. If approved, Amendment 85
would modify the GOA FMP and the
Central Gulf of Alaska Rockfish Program
to remove a restriction that prohibits
certain catcher/processors from
participating in directed groundfish
fisheries in the Bering Sea and Aleutian
Islands Management Area in July. This
action is necessary to improve flexibility
and reduce operating costs for catcher/
processors that participate in the Central
Gulf of Alaska Rockfish Program. This
action is intended to promote the goals
and objectives of the Magnuson–Stevens
Fishery Conservation and Management
Act, the GOA FMP, and other applicable
laws.
DATES: Comments on the amendment
must be received on or before May 26,
2009.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments, identified by ‘‘RIN 0648–
AX42,’’ by any one of the following
methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal website at
https://www.regulations.gov.
• Mail: P. O. Box 21668, Juneau, AK
99802.
• Fax: 907–586–7557.
• Hand delivery to the Federal
Building: 709 West 9th Street, Room
420A, Juneau, AK.
All comments received are a part of
the public record and will generally be
posted to https://www.regulations.gov
without change. All personal identifying
information (e.g., name, address)
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
portable document file (pdf) formats
only.
Copies of Amendment 85 to the
Fishery Management Plan for
Groundfish of the Gulf of Alaska, the
Regulatory Impact Review (RIR), the
Initial Regulatory Flexibility Analysis
(IRFA), the categorical exclusion
prepared for this action, and the
Environmental Assessment (EA), RIR,
and Final Regulatory Flexibility
Analysis (FRFA) prepared for the
Central Gulf of Alaska Rockfish Program
are available from the NMFS Alaska
Region at the address above or from the
Alaska Region website at https://
www.alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Glenn Merrill, 907–586–7228, or Rachel
Baker, 907–586–7425.
SUPPLEMENTARY INFORMATION: The
Magnuson–Stevens Fishery
Conservation and Management Act
(Magnuson–Stevens Act) requires that
each regional fishery management
council submit any fishery management
plan amendment it prepares to NMFS
for review and approval, disapproval, or
partial approval by the Secretary of
Commerce (Secretary). The Magnuson–
Stevens Act also requires that NMFS,
upon receiving a fishery management
plan amendment, immediately publish a
notice in the Federal Register
announcing that the amendment is
available for public review and
comment. This notice announces that
proposed Amendment 85 to the Fishery
Management Plan for Groundfish of the
Gulf of Alaska (GOA FMP) is available
for public review and comment.
The groundfish fisheries in the
exclusive economic zone of Alaska are
managed under the GOA FMP and the
Fishery Management Plan for
Groundfish of the Bering Sea and
Aleutian Islands Management Area
(BSAI FMP). The FMPs were prepared
by the North Pacific Fishery
Management Council (Council) under
the Magnuson–Stevens Act. Section 802
of the Consolidated Appropriations Act
of 2004 (Public Law 108–199) granted
NMFS specific authority to manage
Central Gulf of Alaska (GOA) rockfish
fisheries, and directed the Secretary, in
consultation with the Council, to
E:\FR\FM\24MRP1.SGM
24MRP1
]]>Agencies
[Federal Register Volume 74, Number 55 (Tuesday, March 24, 2009)]
[Proposed Rules]
[Pages 12297-12300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5890]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2008-0128; MO 922105 0083-B2]
RIN 1018-AW72
Endangered and Threatened Wildlife and Plants; Determination of
Significant Portion of the Range of Marine and Estuarine Areas of the
Southwestern Washington/Columbia River Distinct Population Segment of
Coastal Cutthroat Trout (Oncorhynchus clarki clarki)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: On July 5, 2002, we, the U.S. Fish and Wildlife Service
(Service), published a withdrawal of the proposed rule to list the
Southwestern Washington/Columbia River distinct population segment
(DPS) of the coastal cutthroat trout (Oncorhynchus clarki clarki) as
threatened under the Endangered Species Act of 1973, as amended (Act).
As a result of litigation, we are now reconsidering our withdrawal of
the proposed rule with specific regard to the question of whether the
marine and estuarine areas may constitute a significant portion of the
range of the Southwestern Washington/Columbia River DPS of coastal
cutthroat trout, and if so, whether that portion is threatened or
endangered. We hereby notify the public, other concerned governmental
agencies, the scientific community, industry, and any other interested
party of our request for information, data, or comments on the marine
and estuarine areas of the Southwestern Washington/Columbia River DPS
of coastal cutthroat trout, with particular regard to whether these
areas constitute a significant portion of the range of the DPS under
the Act, and if so, whether the subspecies is threatened or endangered
in those areas.
DATES: We will accept information received on or before April 23, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R1-ES-2008-0128; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the ``Public Comments''
section below for more information).
FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D, State Supervisor,
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600
SE 98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179;
facsimile 503-231-6195. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
To ensure that any action resulting from this request for
information will be
[[Page 12298]]
based on the best scientific and commercial data available and will be
as accurate as possible, we solicit comments or suggestions from the
public, other concerned governmental agencies, the scientific
community, industry, or any other interested parties. We particularly
seek comments concerning:
(1) Information on those marine and estuarine areas that could
potentially constitute a significant portion of the range of the
Southwestern Washington/Columbia River DPS of the coastal cutthroat
trout, and the suggested boundaries of those areas;
(2) Information on whether and why those marine and estuarine areas
constitute a significant portion of the range of the Southwestern
Washington/Columbia River DPS of coastal cutthroat trout as defined by
sections 3(6) or 3(20) of the Act; and
(3) Other information on the status, distribution, population
trends, abundance, habitat conditions, or threats specific to those
marine and estuarine areas that could constitute a significant portion
of the range of the Southwestern Washington/Columbia River DPS of
coastal cutthroat trout.
(4) Information on the effects of potential threat factors that are
the basis for a species' listing determination under section 4(a)(1) of
the Act (16 U.S.C. 1531 et seq.; the ``five listing factors'')
specifically with respect to those marine and estuarine areas of the
Southwestern Washington/Columbia River DPS of coastal cutthroat trout.
The five listing factors considered under the Act are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) Inadequacy of existing regulatory mechanisms; and
(e) Other natural or manmade factors affecting its continued
existence.
We define ``estuary'' to mean a semi-enclosed coastal body of water
that has a free connection with the open sea and within which sea water
is measurably diluted with fresh water derived from land drainage
(Lauff 1967, as cited in ISAB 2000, p. 2). For example, although the
Columbia River is tidally influenced up to Bonneville Dam at river mile
146 (235 river kilometers), saltwater intrusion is generally limited to
the lower 23 river miles (37 river kilometers) (near Harrington Point)
at the minimum regulated monthly flow (Neal 1972, as cited in ISAB
2000, p. 2), although when lower daily flows occur salt intrusion can
extend past Pillar Rock at river mile 28 (45 river kilometers).
Please note that comments merely stating support for or opposition
to the action under consideration without providing supporting
information, although noted, will not be considered in making a
determination, because section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this request
for information by one of the methods listed in the ADDRESSES section.
We will not consider comments sent by e-mail or fax or to an address
not listed in the ADDRESSES section.
If you submit a comment via https://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the website. If you submit a hardcopy comment that includes personal
identifying information, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy comments on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this review, will be available for
public inspection at https://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Background
The coastal cutthroat trout is one of 10 formally described
subspecies of cutthroat trout (Behnke 1992, p. 53). Coastal cutthroat
trout are distributed along the Pacific Coast of North America from
Prince William Sound in Alaska to the Eel River in California (Behnke
1992, p. 65; Trotter 1997, p. 7), and inland from the Coast Range of
Alaska to roughly the crest of the Cascades of Washington and Oregon
(Trotter 1997, p. 7). In January 1999, the National Marine Fisheries
Service (NMFS) completed a status review of coastal cutthroat trout
from Washington, Oregon, and California. The status review identified
six Evolutionarily Significant Units (ESUs) across this range based on
biogeographic, life history, and genetic information. The six ESUs
identified were Puget Sound, Olympic Peninsula, Southwestern
Washington/Columbia River, Upper Willamette River, Oregon Coast, and
Southern Oregon/California Coasts (Johnson et al. 1999, p. 125).
On April 5, 1999, the NMFS and the Service issued a joint proposal
to list the Southwestern Washington/Columbia River population of the
coastal cutthroat trout as a threatened species under the Act (64 FR
16397). Although the NMFS uses the term ESU for such a population, when
the Service assumed sole regulatory jurisdiction of the coastal
cutthroat trout under the Act in April 2000 (65 FR 21376; April 21,
2000), we began using the term Distinct Population Segment (DPS), which
is the terminology normally utilized for such analogous entities by the
Service.
The Southwestern Washington/Columbia River DPS that is the subject
of this request for information includes the Columbia River and its
tributaries from the mouth to the Klickitat River on the Washington
side of the river and Fifteenmile Creek on the Oregon side; the
Willamette River and its tributaries from its confluence with the
Columbia upstream to Willamette Falls; Willapa Bay and its tributaries;
and Grays Harbor and its tributaries. The DPS inhabits portions of five
ecoregions: the Coast Range, Puget Lowland, Cascades, Willamette
Valley, and Eastern Cascades. Most of the DPS occurs in the Coast
Range, Puget Lowland, and Cascades. A more detailed description of the
DPS can be found in the April 5, 1999, proposed rule (64 FR 16397).
Relatively little is known about the specific life history and
habitat requirements of coastal cutthroat trout. Coastal cutthroat
trout spend more time in the freshwater environment and make more
extensive use of this habitat, particularly small streams, than do most
other Pacific salmonids (Johnson et al.1999, p. 44). The life history
of coastal cutthroat trout may be one of the most complex of any
Pacific salmonid. Coastal cutthroat trout exhibit a variety of life
history strategies across their range that includes three basic
variations: resident or primarily nonmigratory, freshwater migrants,
and marine migrants (Northcote 1997, p.20; Johnson et al. 1999, pp. 11,
44-45). Residents may stay within the same stream segment their entire
life. Freshwater migrants may make migrations from small tributaries to
larger tributaries or rivers, or may migrate from tributary streams to
lakes or reservoirs. Marine migrations (anadromy) are generally thought
to be limited to near-shore marine areas; individuals may not venture
out of the estuary in some cases (Trotter 1997, p.10).
[[Page 12299]]
There are numerous exceptions to these generalized behaviors. We
also lack observations of definitive genetic relationships between
individual or population-wide migratory strategies (Behnke 1997, p. 5).
In areas above long-standing barriers, coastal cutthroat trout are
limited to resident or freshwater migratory life history strategies. In
areas accessible to the ocean, all three life history strategies
(resident, freshwater migratory, and anadromous) are likely to be
expressed in the same area. Coastal cutthroat trout appear to exhibit
very flexible life history strategies. The extent to which individuals
expressing these various strategies are isolated from other life
history forms is largely unknown, though there is growing evidence that
individuals may express multiple life history behaviors in their life
time (Johnson et al. 1999, pp. 40-43). The diverse life history
strategies shown by coastal cutthroat trout are not well understood,
but are thought to represent unique adaptations to local environments
and the subspecies' response to environmental variability and
unpredictability.
For additional information on the biology, habitat, and range of
coastal cutthroat trout, please refer to the proposed rule (64 FR
16397; April 5, 1999) and withdrawal of the proposed rule (67 FR 44934;
July 5, 2002).
Previous Federal Actions
The NMFS and the Service jointly published a proposed rule to list
the Southwestern Washington/Columbia River ESU (later DPS) of coastal
cutthroat trout as a threatened population under the distinct
vertebrate population segment provision of the Act on April 5, 1999 (64
FR 16397). In that proposed rule, we noted the uncertainty regarding
which agency, the NMFS or the Service, had jurisdiction over the
coastal cutthroat trout, and we committed to notify the public once the
issue had been resolved. Subsequently, the time to make a final
determination on the proposed rule was extended for an additional 6
months, from April 5, 2000 to October 5, 2000, due to substantial
scientific disagreement about the status of the population; this action
further opened an additional 30-day comment period (65 FR 20123; April
14, 2000). On April 21, 2000, the NMFS and the Service published a
notice of the Service's assumption of sole jurisdiction for coastal
cutthroat trout under the Act (65 FR 21376). On June 2, 2000, we again
reopened the comment period on the proposed rule and announced a public
hearing to be held in Ilwaco, Washington, on June 20, 2000, to allow
all interested parties to submit oral or written comments on the
proposal (65 FR 35315).
On July 14, 2000, we published a notice to clarify the take
prohibitions for the Southwestern Washington/Columbia River DPS of
coastal cutthroat trout that would apply if the proposed listing were
to be finalized and provided a 30-day public comment period on the list
of activities that would, and would not, likely constitute a violation
of section 9 of the Act (65 FR 43730). The comment period on the
clarification of take prohibitions was reopened on September 6, 2000
(65 FR 53974), and a hearing was held September 21, 2000, in Aberdeen,
Washington, based on a request during the initial public comment
period. In addition, the comment period on the proposed rule to list
the Southwestern Washington/Columbia River DPS of coastal cutthroat
trout was again reopened for an additional 30 days on November 23, 2001
(66 FR 58706).
On July 5, 2002, we published a notice of withdrawal of the
proposed rule to list the Southwestern Washington/Columbia River DPS of
the coastal cutthroat trout as threatened (67 FR 44934). The notice set
forth the following bases for our determination that the DPS did not
meet the listing criteria as a threatened species: (1) new data
indicating that coastal cutthroat trout are more abundant in southwest
Washington than was previously thought and that population sizes were
comparable to those of healthy populations in other areas; (2) new
information and analyses calling into question prior interpretation of
the size of the anadromous portion of the population in the Columbia
River and indicating higher numbers than previously described; (3) new
data and analyses no longer showing declining adult populations in the
Grays Harbor tributaries; (4) new analyses calling into question the
past interpretation of trend data, and therefore the magnitude of the
trend in the anadromous portion of the population in the Columbia
River; (5) new information describing the production of anadromous
progeny by non-anadromous and above-barrier cutthroat trout; and, (6)
two large-scale Habitat Conservation Plans (HCPs) and significant
changes in Washington Forest Practices Regulations substantially
reducing threats to aquatic and riparian habitat on forest lands in
Washington. The withdrawal notice concluded that, based on reduced
threats and new information and understanding regarding the status of
the DPS, the Southwestern Washington/Columbia River DPS of coastal
cutthroat trout was not in danger of becoming endangered in the
foreseeable future, and therefore did not meet the definition of a
threatened species.
On February 3, 2005, the Center for Biological Diversity, Oregon
Natural Resources Council, Pacific Rivers Council, and WaterWatch filed
a legal challenge to the Service's withdrawal of the proposed listing
in the U.S. District Court for the District of Oregon (Center for
Biological Diversity, et al. v. U.S. Fish and Wildlife Service, Case
No. 05-165-KI). The Court ruled that the Service's decision to withdraw
the proposed rule complied with the Act and was not arbitrary and
capricious, and dismissed the action on November 16, 2005. Plaintiffs
appealed. On April 18, 2008, the U.S. Court of Appeals for the Ninth
Circuit affirmed the district court's decision in part and reversed the
decision in part. The Ninth Circuit found no error in the Service's
determination that the DPS as a whole did not merit listing, but held
that the Service had failed to consider whether the marine and
estuarine portions of the DPS constitute a significant portion of the
range of the coastal cutthroat trout within that DPS under the Act
(Center for Biological Diversity, et al. v. U.S. Fish and Wildlife
Service, 2008 U.S. App. LEXIS 8701 (9th Cir. 2008)). The Ninth Circuit
reversed the district court's decision and remanded the matter to the
district court.
On July 1, 2008, the U.S. District Court for the District of Oregon
issued an amended order remanding the listing decision to the Service
for further consideration consistent with the opinion of the Ninth
Circuit. Specifically, the court directed the Service to consider
whether the estuary and other marine areas constitute a significant
portion of the range of the Southwestern Washington/Columbia River DPS
of the coastal cutthroat trout. The Service will complete its review of
the best available information, including data, information, and
comments submitted during this comment period, to comply with that
order.
At this time, we are soliciting new information on the coastal
cutthroat trout in the marine and estuarine areas of the Southwestern
Washington/Columbia River DPS, and specifically in regard to whether
these areas represent a significant portion of the range of this DPS.
If you submit information, please support it with documentation such as
maps, bibliographic references, methods used to gather and analyze the
data, or copies of any pertinent publications, reports, or letters by
knowledgeable sources. We request information regarding data from any
systematic surveys, as well as any studies or
[[Page 12300]]
analysis of data regarding population size or trends; biology or
ecology of the subspecies; effects of current land management on
population distribution and abundance; current condition of habitat;
and conservation measures that have been implemented to benefit the
subspecies specific to the marine and estuarine areas of the
Southwestern Washington/Columbia River DPS. Additionally, we request
information on threats to the coastal cutthroat trout in the marine and
estuarine areas of the Southwestern Washington/Columbia River DPS in
relation to the five listing factors (as defined in section 4(a)(1) of
the Act).
At the conclusion of our review, we will issue a new determination
on the April 5, 1999 proposed rule concerning whether the marine and
estuarine areas of the Southwestern Washington/Columbia River DPS of
the coastal cutthroat trout constitute a significant portion of the
range of the DPS, and if so, whether such significant portion of the
range warrants listing. We will base our determination on a review of
the best scientific and commercial information available, including all
information received as a result of this notice.
References Cited
A complete list of all references we cited in this document is
available on the Internet at https://www.regulations.gov or by
contacting the Oregon Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Author
The primary authors of this notice are the staff of the Oregon Fish
and Wildlife Office, U.S. Fish and Wildlife Service, 2600 SE 98th
Avenue, Suite 100, Portland, OR 97266.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 11, 2009
Paul R. Schmidt
Acting Director, Fish and Wildlife Service
[FR Doc. E9-5890 Filed 3-23-09; 8:45 am]
BILLING CODE 4310-55-S
