Endangered and Threatened Species: Designation of a Nonessential Experimental Population for Middle Columbia River Steelhead Above the Pelton Round Butte Hydroelectric Project in the Deschutes River Basin, Oregon, 28715-28725 [2011-12236]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Proposed Rules]
[Pages 28715-28725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12236]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 110427267-1267-01]
RIN 0648-BB04


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

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

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate the Middle Columbia River (MCR) steelhead (Oncorhynchus 
mykiss), recently reintroduced into the upper Deschutes River basin in 
central Oregon, as a nonessential experimental population (NEP) under 
the Endangered Species Act (ESA). This NEP designation would expire 12 
years after the first generation of adults return to the NEP area. A 
draft environmental assessment (EA) has been prepared on this proposed 
action and is available for comment (see ADDRESSES and INSTRUCTIONS 
section below).

DATES: To allow us adequate time to consider your comments on this 
proposed rule, they must be received no later than July 18, 2011. If 
you would like to request a public hearing, we must receive your 
request in writing, at the address shown in the FOR FURTHER INFORMATION 
CONTACT section, by July 5, 2011. Comments on the EA must be received 
by July 18, 2011.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:
     Federal e-Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Submit written comments to Assistant Regional 
Administrator, Hydropower Division, Northwest Region, NMFS, 1201 NE 
Lloyd Blvd., Suite 1100, Portland, OR 97232.
     Fax: (503) 231-2318.
    Instructions: 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, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. We 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 PDF file formats only.
    You may access a copy of the draft EA by one of the following:
     Visit NMFS' Northwest Region Web site at https://www.nwr.noaa.gov.
     Call 503.736.4741 and request to have a CD or hard copy 
mailed to you.
     Obtain a CD or hard copy by visiting NMFS' Portland office 
at 1201 NE Lloyd Blvd, Suite 1100, Portland, OR 97232.
    You may submit comments on the draft EA by one of the following 
methods:
     E-mail: expopEA.nwr@noaa.gov.
     Mail: Submit written comments to Hydropower Division, FERC 
and Water Diversions Branch, NMFS, 1201 NE. Lloyd Blvd., Portland, OR 
97232.
    Please see the draft EA for additional information regarding 
commenting on that document.

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

SUPPLEMENTARY INFORMATION: 

Context

    On March 25, 1999, NMFS listed the Middle Columbia River (MCR) 
steelhead distinct population segment (DPS) as threatened under the 
Endangered Species Act (ESA) (16 U.S.C. 1531-1544) (64 FR 14517). The 
MCR steelhead DPS range covers approximately 35,000 square miles 
(90,650 sq km) of the Columbia plateau of eastern Oregon and eastern 
Washington. The Deschutes River in central Oregon is one of six major 
river basins supporting steelhead in this DPS. Since 1968, the Pelton 
Round Butte Hydroelectric Project (Pelton Round Butte) on the Deschutes 
River has blocked steelhead from accessing nearly 200 miles (322 km) of 
historical spawning and rearing habitat.
    In this rulemaking, we are proposing to designate as an 
experimental population the MCR steelhead currently being reintroduced 
to the upper Deschutes River basin. This reintroduction is a 
requirement of the new hydropower license for the Pelton Round Butte 
Hydroelectric Project in

[[Page 28716]]

Oregon, and thus will continue regardless of whether we designate the 
steelhead population in the upper Deschutes River basin as 
experimental. The licensees, Portland General Electric Company and the 
Confederated Tribes of the Warm Springs Reservation of Oregon, are 
conducting the reintroduction program in cooperation with the State of 
Oregon, NMFS, the U.S. Forest Service, the U.S. Fish and Wildlife 
Service, U.S. Bureau of Land Management, Jefferson and Deschutes 
Counties, Oregon, and 10 other stakeholder groups. This reintroduction 
is one of many recovery actions being implemented by NMFS, Federal and 
state agencies, and other partners throughout the threatened species' 
historical range. While passage and reintroduction are occurring under 
the authority of the Federal Power Act, we would be designating the 
reintroduced steelhead as a NEP, and providing special protective 
measures for the NEP, under the authority of the ESA. The purpose of 
this proposed designation is to temporarily lift certain ESA liability 
and consultation requirements to allow time to develop conservation 
measures to support the reintroduction effort in the Upper Deschutes 
River basin. The conservation measures would benefit from information 
gained during the early stages of the reintroduction effort to focus 
the conservation measures on the areas needing support.
    The specific stock chosen to initiate steelhead reintroduction is 
from the Round Butte Hatchery. After the new license was issued in June 
2005 and reintroduction planning was largely completed, we included the 
Round Butte Hatchery steelhead stock as part of the threatened group of 
steelhead (71 FR 834; January 5, 2007).
    We are proposing to have the NEP designation set by this action 
expire after three successive generations of steelhead have been passed 
over Round Butte Dam. Specifically, the NEP designation would expire 12 
years after the first generation of adults return to the NEP area. Some 
local landowners and one municipality are working to develop a Habitat 
Conservation Plan (HCP) for certain activities that may impact 
steelhead reintroduced above Round Butte Dam. This HCP is likely to be 
completed sooner than the proposed expiration date for the NEP 
designation. However, the HCP covers only a subset of the activities 
and area impacted by the reintroduction. Thus, other local entities may 
consider developing conservation measures to address potential ESA 
liability. We expect that the fixed-duration NEP designation will 
incentivize local landowners and municipalities to develop such 
conservation measures in a timely manner, since full ESA protections 
will once again apply to the steelhead after the experimental 
population designation expires. In addition, we expect that information 
developed during the NEP designation period will help inform 
conservation measures, either as they are being developed or through 
adaptive management mechanisms.
    The proposed NEP would occur in portions of Deschutes, Jefferson, 
and Crook Counties, Oregon. The geographic boundaries of the NEP would 
extend upstream from Round Butte Dam on the Deschutes River to Big 
Falls (river mile 132, or kilometer 212) and all accessible reaches of 
its tributary, Whychus Creek; on the Crooked River from its confluence 
with the Deschutes River upstream to Bowman Dam (river mile 70, or rkm 
113) and all accessible tributaries between these points; and on the 
Metolius River from its confluence with the Deschutes River upstream to 
all accessible areas. While this area is part of its historical range, 
it is outside the current range of the Middle Columbia River steelhead 
DPS. The DPS boundary is located at the Reregulating Dam, the furthest 
downstream dam of the Pelton Round Butte Hydroelectric Project, on the 
Deschutes River downstream of the NEP area.
    Section 10(j) of the Endangered Species Act (16 U.S.C.S. 1539(j)) 
allows the Secretary of Commerce (Secretary) to authorize the release 
of an experimental population of an endangered or threatened species 
outside the current range of such species if the Secretary determines 
that such release will further the conservation of such species. The 
Secretary may designate an experimental population when, and at such 
times as, the population is wholly separate geographically from 
nonexperimental populations. In this action, NMFS proposes to designate 
an experimental population that is geographically separate from the 
non-experimental ESA-listed MCR steelhead population, due to the dams 
that block access for the species to the area where the species is 
being reintroduced. The MCR steelhead will only be considered 
experimental when they are above the Round Butte Dam. The proposed 
designation will further the conservation of the species because it 
will build support for the reintroduction effort among local 
landowners, incentivize those landowners and municipalities to complete 
conservation measures within the set time-period, and ensure that the 
conservation measures are informed by information gathered during the 
NEP designation, i.e., the first three generations of returning adults. 
We will provide notice in the Federal Register when the NEP designation 
is set to expire.

Public Comment Procedures

    We would like the final rule to be as effective and accurate as 
possible, and the final EA to evaluate the potential issues and 
reasonable range of alternatives. Therefore, we invite the public, 
tribal and government agencies, the scientific community, environmental 
groups, industry, local landowners, and all other interested parties to 
provide comments on the proposed rule and EA. We request that you keep 
your comments relevant to the proposed experimental population 
designation, bearing in mind that the reintroduction is required by the 
Pelton Round Butte hydropower license. Your comments should be as 
specific as possible, provide suggested changes, explain the basis for 
them, and include supporting information where appropriate.
    Prior to issuing a final rule, we will consider the comments and 
supporting materials we receive. The final rule may differ from the 
proposed rule based on this information and other considerations.
    We are interested in all public comments, and have specific 
questions we are interested in hearing public comments on:
    (1) Use of a specific expiration date: We chose to state up front 
that the designation would expire at a certain time to encourage 
completion of conservation measures rather than leaving their 
development more open ended. Other experimental population designations 
indicate that the designation may be removed for certain reasons, but 
do not include a specific expiration date in the designation. Please 
comment on the use of an expiration date.
    (2) Twelve-year time frame: We propose that the NEP designation 
expire 12 years after the first generation of adults return to the NEP 
area, in part because useful information will be gained during that 
timeframe because this 12-year period should allow three generations of 
the reintroduced steelhead to return. Three generations allows for 
consideration of variability between generations, including the year-
to-year variability in environmental conditions, so is expected to 
provide useful information for developing and tailoring conservation 
measures. After this time, we will know where adults are spawning and 
young are rearing, and

[[Page 28717]]

whether there are certain needs of the steelhead in specific areas that 
can be addressed through conservation measures. If the HCP or other 
conservation measures are completed prior to the 12-year expiration, 
information from the NEP designation could nevertheless be used to 
inform those measures through adaptive management mechanisms.
    As indicated, the time limit is also designed to incentivize 
completion of conservation measures--both in the HCP and otherwise. For 
the HCP, however, a 12-year limit could reduce the incentive to 
complete the HCP on its current projected timeframe, which is less than 
12 years. Yet, if we used a shorter time-frame, the quality of 
information from the NEP would be significantly diminished.
    Please comment on the use of 12 years as a fixed time period for 
the NEP designation.
    (3) The extent to which the experimental population would be 
affected by current or future Federal, state, or private actions within 
or adjacent to the experimental population area.
    (4) Current programs within the experimental population area that 
protect fish or aquatic habitats.
    (5) Any necessary management restrictions, protective measures, or 
other management measures that we have not considered.

Background

    The Deschutes River basin above the Pelton Round Butte 
Hydroelectric Project was once home to native runs of summer steelhead, 
Chinook salmon, sockeye salmon, and Pacific lamprey. Before 
hydroelectric and irrigation development, steelhead used the Deschutes 
River up to Big Falls, Whychus Creek (a Deschutes River tributary above 
the Pelton Round Butte Hydroelectric Project), and the Crooked River 
watershed. Within the Crooked River watershed, steelhead were 
documented in McKay, Ochoco, Horseheaven, Newsome, Drake, Twelvemile, 
and Beaver Creeks, and the North Fork Crooked River (Nehlsen, 1995). 
The completion of Ochoco Dam east of Prineville in 1920 blocked 
steelhead access into most of the Ochoco Creek watershed, and the 
completion of Bowman Dam on the Crooked River in 1961 stopped fish 
passage into the upper Crooked River watershed. On the Deschutes River, 
the Pelton and Reregulating Dams were completed in 1958. Even though 
these dams had fish passage, steelhead numbers in the upper Deschutes 
River basin, though still significant, had declined by that time 
(Nehlsen, 1995). Available information suggests peak annual escapements 
in the 1950s were at least 1,600 adult summer steelhead and 800-900 
(Montgomery, 1955) adult spring Chinook salmon (with perhaps twice this 
number harvested downstream). After completion of Round Butte Dam (the 
most upstream dam) in 1964, fish passage decreased dramatically, and, 
by 1968, was abandoned in favor of a hatchery program to mitigate for 
lost passage and habitat. The runs could not be sustained primarily 
because deceptive surface currents confused smolts attempting to 
migrate seaward through Lake Billy Chinook, the project's upper-most 
reservoir. Most of the smolts failed to find their way from the head of 
the reservoir downstream to a fish collector installed at Round Butte 
Dam (Korn et al., 1967). As a result of this decline, and following a 
comprehensive study of west coast steelhead, we subsequently listed the 
MCR as a DPS (64 FR 14517, March 25, 1999).
    There has long been an interest in reestablishing anadromous fish 
runs in the upper Deschutes River subbasin. This interest strengthened 
in recent years as technological innovations advanced and hydrodynamic 
modeling suggested that surface currents could be altered to favor the 
downstream passage of smolts. The relicensing of the Pelton Round Butte 
Project provided the opportunity to implement these innovations in 
order to attempt to reestablish anadromous fish runs upstream.
    The Federal Energy Regulatory Commission issued a new license for 
the Pelton Round Butte Project (project number P-2030) on June 21, 
2005, to Portland General Electric Company (PGE) and the Confederated 
Tribes of the Warm Springs Reservation of Oregon (CTWSRO), who are 
joint licensees (Licensees). The license requires fish passage over the 
Pelton Round Butte Project and incorporates the terms of a Settlement 
Agreement entered into by the Licensees and 20 other parties. The 
license establishes a Fish Committee, which is made up of the 
Licensees, NMFS, Oregon Department of Fish and Wildlife (ODFW), the US 
Fish and Wildlife Service (FWS), and other agencies and entities. 
Details regarding the responsibilities of the Licensees with respect to 
fish passage and reintroduction are in the Fish Passage Plan, included 
as Exhibit D to the Settlement Agreement. These responsibilities 
include fish passage improvements at the Pelton Round Butte Project, a 
wide variety of test and verification studies, and longer term 
monitoring efforts. The license includes a schedule for meeting those 
obligations.
    Because the Pelton Round Butte Hydroelectric Project does not 
provide volitional passage, the central element of the Fish Passage 
Plan is a Selective Water Withdrawal structure now in place and 
operating at Round Butte Dam to improve water quality in the lower 
Deschutes River, create currents in the reservoir that should help 
guide smolts to an associated fish screening and collection facility, 
and provide downstream passage for juveniles. It is currently 
envisioned that returning adult steelhead in the experimental 
population will be collected below the Reregulating Dam and transported 
for release above Round Butte Dam. This new facility will protect fish 
in Lake Billy Chinook from being entrained into turbines, and is the 
centerpiece of a multi-faceted effort to reestablish runs of steelhead 
that have been absent from the upper basin for more than 42 years. 
Recognizing the fish reintroduction opportunity, the Oregon Fish and 
Wildlife Commission adopted Oregon Administrative Rules in December 
2003 that direct ODFW to restore anadromous fish, including MCR summer 
steelhead, into portions of their historical range upstream from the 
Pelton Round Butte Project. Specific areas targeted for reintroduction 
include the Deschutes River from Round Butte Dam upstream to Big Falls, 
Whychus Creek, and the Crooked River and tributaries upstream to Bowman 
and Ochoco Dams. The Metolius River was not targeted for steelhead 
reintroduction as it is believed that this subbasin is better suited to 
resident steelhead (i.e., rainbow trout or redband trout).
    Individuals that are used to establish an experimental population 
may come from a donor population, provided their removal will not 
create adverse impacts upon the parent population, and provided 
appropriate permits are issued in accordance with our regulations (50 
CFR 222.301) prior to removal. In this case, the donor steelhead are 
from a captive bred population, which is propagated to mitigate for 
lost fisheries due to failed fish passage after the Pelton Round Butte 
Project was originally constructed. The hatchery fish being used for 
the reintroduction are excess stock. In addition, it is possible that 
some wild adult stock could also be released into the NEP area before 
the designation expires.

Statutory and Regulatory Framework

    Congress made significant changes to the ESA in 1982, including the 
addition

[[Page 28718]]

of section 10(j), which provides for the designation of reintroduced 
populations of listed species as ``experimental populations.'' 
Previously, we had authority to reintroduce populations into unoccupied 
portions of a listed species' historical range. However, local citizens 
often opposed these reintroductions because they were concerned about 
potential liability for harming these animals, and the placement of 
restrictions and prohibitions on Federal and private activities. Under 
section 10(j) of the ESA, the Secretary can authorize the release of an 
``experimental'' population outside the species' current range, but 
within its historical range, where: (1) The experimental population is 
geographically separate from the non-experimental population; and (2) 
the designation will further the conservation of the listed species. 
The determination of whether experimental populations are ``essential'' 
or ``nonessential'' to the continued existence of the species must be 
based on the best scientific and commercial data available.
    The ESA provides that species listed as endangered or threatened 
are afforded protection primarily through the prohibitions of section 9 
and the consultation requirements of section 7. Section 9 of the ESA 
prohibits the take of an endangered species. The term ``take'' is 
defined by the ESA as ``to harass, harm, pursue, hunt, shoot, wound, 
trap, capture, or collect, or attempt to engage in any such conduct.'' 
15 U.S.C. 1532(19). Section 7 of the ESA provides procedures for 
Federal interagency cooperation and consultation to conserve federally 
listed species, ensure the survival and help in recovery of these 
species, and to protect designated critical habitat necessary for the 
listed species' survival. It also mandates that all Federal agencies 
determine how to use their existing authorities to further the purposes 
of the ESA to aid in recovering listed species. It also states that 
Federal agencies will, in consultation with NMFS, ensure that any 
action they authorize, fund, or carry out is not likely to jeopardize 
the continued existence of a listed species, or result in the 
destruction or adverse modification of designated critical habitat. 
Section 7 of the ESA does not apply to activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    For the purposes of section 7 of the ESA, section 10(j) requires 
that we treat NEPs as a species proposed to be listed, unless they are 
located within a National Wildlife Refuge or National Park, in which 
case they are treated as threatened, and section 7 consultation 
requirements apply. When NEPs are located outside a National Wildlife 
Refuge or National Park, only two provisions of section 7 apply--
section 7(a)(1) and section 7(a)(4). In these instances, NEP 
designations provide additional flexibility in developing conservation 
and management measures, because they allow NMFS to work with the 
action agency early to develop conservation measures, instead of 
analyzing an already well-developed proposed action provided by the 
agency in the framework of a section 7(a)(2) consultation. 
Additionally, for populations of listed species that are designated as 
nonessential, section 7(a)(4) of the ESA only requires that other 
agencies confer (rather than consult) with NMFS on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. These conferences are advisory in nature, and their findings 
do not restrict agencies from carrying out, funding, or authorizing 
activities.
    Section 10(j) of the ESA (16 U.S.C. 1539(j)) also provides the 
Secretary of Commerce with authority to designate populations of listed 
species as experimental, and includes criteria for the designation. 
Experimental population designations must be done through a rulemaking 
that identifies the population, and state whether the population is 
essential or nonessential to the continued existence of the species. 
For purposes of section 9 of the ESA, a population designated as 
experimental is treated as threatened regardless of the species' 
designation elsewhere in its range. Through section 4(d) of the ESA, a 
threatened designation allows the Services greater discretion in 
devising management programs and special regulations for such a 
population. Section 4(d) of the ESA allows us to adopt regulations 
necessary to provide for the conservation of a threatened species. MCR 
steelhead are currently included in NMFS' 4(d) rule that imposes 
section 9 take liability for threatened anadromous fish, at 50 CFR 203. 
Through this rulemaking, we propose to use our authority under section 
4(d) to create a different set of protective regulations, specific to 
the experimental steelhead population above Round Butte Dam. In effect, 
we would be modifying the current 4(d) rule as it applies to MCR 
steelhead. For this nonessential experimental population only, we would 
allow take if the take is incidental to a lawful activity, such as 
agricultural activities.
    The FWS has regulations for experimental population designation, 50 
CFR 17 subpart H, that provide definitions, considerations in finding 
that the designation would further the conservation of the species, and 
information to be included in the designation. These regulations state 
that, in making the determination that the designation would further 
the conservation of the species, the Secretary must consider the effect 
of taking the eggs or young from another population, the likelihood 
that the experimental population will become established, the effect 
the designation would have on the species' overall recovery, and the 
extent to which the experimental population would be affected by 
activities in the area. A regulation designating the experimental 
population must include: A clear means to identify the experimental 
population; a finding based on the best available science indicating 
whether the population is essential to the continued existence of the 
species; management restrictions, protective measures, or other 
management concerns; and a periodic review of the success of the 
release and its effect on the conservation and recovery of the species. 
The FWS regulations also state that any experimental population shall 
be treated as threatened for purposes of establishing protective 
regulations under ESA section 4(d), and the protective regulations for 
the experimental population will contain applicable prohibitions and 
exceptions for that population.
    While we do not have regulations regarding designation of 
experimental populations, many of the considerations in FWS's 
regulation are generally applicable to this designation. Where 
applicable, we will include the same considerations in our decision 
regarding designation, and provide that rationale in the preamble. 
These considerations are in addition to the statutory requirements that 
are also explained in the preamble.

Biological Information

    ``Steelhead'' is the name commonly applied to the anadromous 
(migratory) form of the biological species O. mykiss. The common names 
of the non-anadromous, or resident, form are rainbow trout and redband 
trout. The species O. mykiss exhibits perhaps the most complex suite of 
life history traits of any species of Pacific salmonid. These fish can 
be anadromous or freshwater residents, and under some circumstances 
yield offspring of the opposite form. Steelhead can spawn more than 
once, whereas all other Oncorhynchus except cutthroat trout (O. clarki) 
spawn once and then die.

[[Page 28719]]

    When we originally listed the MCR steelhead as threatened on March 
25, 1999 (64 FR 14517), it was classified as an evolutionarily 
significant unit (ESU) of salmonids that included both the anadromous 
and resident forms, but not hatchery fish. Since then, we revised our 
species determinations for West Coast steelhead under the ESA, 
delineating anadromous, steelhead-only distinct population segments 
(DPS). We listed the MCR steelhead DPS as threatened on January 5, 2006 
(71 FR 834). Rainbow trout and redband trout are not listed under the 
ESA, and are under the jurisdiction of the states unless they are 
listed, when they come under the jurisdiction of the FWS. We published 
a final Critical Habitat designation for MCR steelhead on September 2, 
2005, with an effective date of January 2, 2006 (70 FR 52630).
    As noted previously, the MCR steelhead DPS extends over an area of 
about 35,000 square miles (90,650 square km) in the Columbia plateau of 
eastern Washington and eastern Oregon. The DPS includes all naturally 
spawned populations of steelhead in drainages upstream of the Wind 
River, Washington, and the Hood River, Oregon (exclusive), up to, and 
including, the Yakima River, Washington, excluding steelhead from the 
Snake River Basin (64 FR 14517, March 24, 1999; 71 FR 834, January 5, 
2006). Major drainages that support steelhead in this DPS are the 
Deschutes, John Day, Umatilla, Walla Walla, Yakima, and Klickitat river 
systems. Most of the region is privately owned (64 percent), with the 
remaining area under Federal (23 percent), tribal (10 percent), and 
state (3 percent) ownership. Most of the landscape consists of 
rangeland and timberland, with significant concentrations of dryland 
agriculture in parts of the range. Irrigated agriculture and urban 
development are generally concentrated in valley bottoms. Human 
populations in these regions are growing.
    Steelhead produced in seven artificial propagation programs are 
considered part of the DPS, and were given a listing status of 
threatened in 2006 (71 FR 834, January 5, 2006). These programs are the 
Touchet River Endemic Summer Steelhead Program, the Yakima River Kelt 
Reconditioning Program (in Satus Creek, Toppenish Creek, Naches River, 
and Upper Yakima River), and the Umatilla River and Deschutes River 
steelhead hatchery programs.
    Within the range of West Coast steelhead, spawning migrations occur 
throughout the year, with seasonal peaks of activity. The runs are 
usually named for the season in which the peak occurs. Most steelhead 
can be categorized as one of two run types, based on their sexual 
maturity when they re-enter freshwater and how far they go to spawn. In 
the Pacific Northwest, summer steelhead enter freshwater between May 
and October, and require several months to mature before spawning; 
winter steelhead enter freshwater between November and April with well-
developed gonads and spawn shortly thereafter. Summer steelhead usually 
spawn farther upstream than winter steelhead (Withler, 1966; Roelofs, 
1983; Behnke, 1992).
    The steelhead that occur in the Deschutes Basin are summer run. 
Spawning occurs from late winter through spring, and juveniles 
typically rear in freshwater for 2 years (may range 1-4 years) before 
migrating to the Pacific Ocean. About half of the adults return after 1 
year in the ocean and the other half returns after 2 years.
    Throughout much of its historical range, the decline of steelhead 
has been attributed to habitat degradation and fragmentation, the 
blockage of migratory corridors, poor water quality, angler harvest, 
entrainment (the incidental withdrawal of fish and other aquatic 
organisms in water diverted out-of-stream for various purposes) into 
diversion channels and dams, and introduced nonnative species. Specific 
land and water management activities that may negatively impact 
steelhead populations and habitat, if not implemented in accordance 
with best management practices, include the operation of dams and other 
diversion structures, forest management practices, livestock grazing, 
agriculture, agricultural diversions, road construction and 
maintenance, mining, and urban and rural development.

Factors Affecting Listing Middle Columbia River Steelhead as Threatened

    Section 4(a)(1) of the ESA and NMFS implementing regulations (50 
CFR part 424) establish procedures for listing species as threatened or 
endangered. According to this direction, the Secretary must determine 
if a species is endangered or threatened based on any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or human-made 
factors affecting its continued existence (Busby et al., 1996; NMFS, 
1999).
    In our initial determination to list the MCR steelhead species, we 
found that all five section 4(a)(1) factors had played a role in the 
decline of the West Coast salmon and steelhead ESUs. These factors may 
or may not still be limiting recovery in the future when we reevaluate 
the status of the species to determine whether the protections of the 
ESA are no longer warranted and the species may be delisted. Findings 
leading to the listing of West Coast salmon and steelhead, including 
MCR steelhead, include:

    (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range: Salmon and steelhead have 
experienced declines in abundance over the past several decades as a 
result of loss, damage, or change to their natural environment. 
Water diversions, forestry, agriculture, mining, and urbanization 
have eliminated, degraded, simplified, and fragmented habitat. 
Hydroelectric development on the mainstem Columbia River modified 
natural flow regimes and impaired fish passage. Tributary 
obstructions also restrict or block salmon and steelhead access to 
historical habitats.
    (2) Overutilization of the steelhead and salmon for commercial, 
recreational, scientific, or educational purposes: Overfishing in 
the early days of European settlement led to the depletion of many 
salmonid stocks before extensive modifications and degradation of 
natural habitats, and exploitation rates following the degradation 
of many aquatic and riparian ecosystems were higher than many 
populations could sustain. Today, steelhead harvest continues on the 
Columbia River, tributaries, and Pacific Ocean; however, fishery 
impacts have declined significantly because of changes in fishery 
management.
    (3) Disease or predation: Introductions of non-native species 
and habitat modifications have resulted in increased predator 
populations in numerous rivers. Predators on adult and juvenile 
steelhead include seabirds, such as Caspian terns, walleye and 
California sea lions.
    (4) Inadequacy of existing regulatory mechanisms: Various 
Federal, state, county, and tribal regulatory mechanisms are in 
place to reduce habitat loss and degradation caused by human use and 
development. Many of these mechanisms have been improved over the 
years to slow the habitat degradation and destruction. Protective 
efforts directed toward addressing the many factors that adversely 
impact MCR steelhead and habitat--water quality and quantity, safe 
migration, riparian vegetation, food, predation dynamics and complex 
stream channels, and floodplain connectivity--will aid in improving 
these factors.
    (5) Other natural or human-made factors affecting its continued 
existence: Variability in ocean and freshwater conditions can have 
profound impacts on the productivity of salmonid populations and, at 
different times, have exacerbated or mitigated the problems 
associated with degraded and altered riverine and estuarine 
habitats.

[[Page 28720]]

Relationship of the Proposed Experimental Population to Recovery 
Efforts

    The 2009 Middle Columbia River Steelhead Recovery Plan has the 
overarching aim of removing the steelhead DPS from the threatened and 
endangered species list. The suite of strategies and actions proposed 
in the Plan will protect and improve ecosystem functions and restore 
normative ecological processes to levels that support recovery of MCR 
steelhead populations. The strategies and actions were developed by 
planning teams comprised of natural resource specialists for the 
Fifteenmile, Deschutes, John Day, Umatilla, and Walla Walla watersheds. 
The actions reflect direction identified in regional and local plans, 
recent modeling and research findings, and local expert input provided 
by the planning team members. Together, these strategies and actions 
call for maintaining high quality habitats and their productive 
capacity, improving ecosystem processes and habitats that are impaired 
but are currently important to productive capacity, and restoring 
habitat through passive and active measures.
    Recovery criteria specific to the Deschutes include eight kinds of 
tributary habitat conservation measures that could mitigate for adverse 
impacts. We organized the habitat actions and associated information 
for each population by the conservation measures, or habitat 
strategies:
    (1) Protect and conserve natural ecological functions that support 
the viability of populations and their primary life history strategies 
throughout their life cycle;
    (2) Restore passage and connectivity to habitats blocked or 
impaired by artificial barriers and maintain properly functioning 
passage and connectivity;
    (3) Maintain and restore floodplain connectivity and function;
    (4) Restore degraded and maintain properly functioning channel 
structure and complexity;
    (5) Restore riparian condition and large woody debris recruitment 
and maintain properly functioning conditions;
    (6) Restore natural hydrograph to provide sufficient flow during 
critical periods;
    (7) Improve degraded water quality and maintain unimpaired water 
quality; and
    (8) Restore degraded and maintain properly functioning upland 
processes to minimize unnatural rates of erosion and runoff.
    The recovery scenario described in the MCR steelhead recovery plan 
(NMFS, 2009) states that the Deschutes Eastside and Westside 
populations should reach a viable status. The Westside population 
existed historically in Whychus Creek and the upper Deschutes River 
below Big Falls. The Eastside population, as determined by the Interior 
Columbia Technical Recovery Team, did not extend above Pelton Round 
Butte historically. The Plan recognizes that successful reintroduction 
of MCR steelhead and their natural production above the Pelton Round 
Butte Project could contribute substantially to recovery in two ways, 
by: (1) restoring production from the Whychus Creek drainage, part of 
the historical Westside Deschutes population that currently is limited 
to major tributaries below the Pelton Round Butte Project; and (2) 
reestablishing production in the Crooked River drainage, identified by 
the Interior Columbia Technical Recovery Team as a separate extirpated 
historical population. If successful, these reintroductions and 
restoration of natural production could contribute substantially to 
population status and therefore to the viability of the MCR steelhead 
DPS.
    The MCR steelhead recovery plan also includes an ambitious 
restoration and protection program for currently accessible habitats in 
tributaries below the Pelton Round Butte Project. As a result, it is 
possible that the Westside Deschutes population could reach minimum 
viability levels without access to habitat above the Pelton Round Butte 
Project if there is an increase in actions aimed at further improving 
natural production from accessible habitats below the project. 
Furthermore, the Mid-Columbia Recovery Plan recognizes that a future 
delisting decision for the DPS should consider not only the specific 
biological criteria incorporated into the current plan, but also the 
general principles underlying those criteria, advances in risk 
assessment, management actions in place to address threats, and 
considerations for the status of all of the components in the DPS. 
Therefore, while the reintroduction program furthers recovery, it is 
one of many measures to assist achieving this goal.

Does the proposed designation further the conservation of the species?

    Under ESA section 10(j), the Secretary may designate listed species 
as experimental if doing so furthers the conservation of the species. 
The proposed designation of MCR steelhead is expected to promote 
development of conservation measures well-tailored to supporting 
reintroduction because we will have 12 years, or three steelhead 
generations, of data to use as the foundation for conservation 
measures. Three generations should account for the variable 
environmental conditions (both ocean and freshwater) the NEP will 
experience and give a solid basis for knowing what kinds of 
conservation measures will provide strong support for the 
reintroduction effort. For example, once we know the main spawning 
areas after collecting this information from three generations of 
spawning adults, we can craft conservation measures to protect those 
areas. Conservation measures that are completed before the expiration 
date likely would include an adaptive management component that would 
allow us to modify these measures based on this information. In 
addition, the expiration date adds another conservation aspect to the 
designation by encouraging development and completion of the 
conservation measures before expiration of the NEP designation 
(although with respect to the HCP it may create a disincentive for 
completing the HCP on its current trajectory, which is less than 12 
years).
    We weighed these benefits against any potential harm caused by this 
designation. There is potential harm associated with the reduced 
section 9 protections during the time period of the designation. 
However, we do not expect changes to current conditions to 
significantly increase harm to steelhead during the NEP period. In 
weighing the benefits of developing sound conservation measures in a 
time certain versus the potential for roughly the same amount of loss 
as there is now, the benefits of developing and implementing the 
conservation measures outweigh the loss of some individual fish. 
Therefore, on balance, the designation of the population as 
experimental would further the conservation of the species.

Is the proposed experimental population essential or nonessential?

    Under ESA section 10(j)(2)(B), the Secretary must ``identify the 
[proposed] population and determine, on the basis of the best available 
information, whether or not such population is essential to the 
continued existence of an endangered species or a threatened species.'' 
15 U.S.C. 1539(j)(2)(B). First, we considered the importance of the 
experimental population to recovery of MCR steelhead generally. While 
the reintroduction effort is a significant recovery effort, it is not 
the only one and not the key to whether recovery can be achieved for 
this steelhead DPS. Successful implementation of

[[Page 28721]]

restoration efforts across all major population groups in the DPS could 
reduce risks and improve viability even absent reintroduction above 
Pelton Round Butte Dam.
    Another factor we considered is that the steelhead used for this 
reintroduction effort will be surplus hatchery stock. The hatchery 
program exists to mitigate for lost MCR steelhead upstream habitat, but 
the steelhead used in the reintroduction program are excess hatchery 
fish and are beyond what is needed for the mitigation. Furthermore, MCR 
steelhead have a very wide range in the Columbia Plateau, and are found 
in numerous rivers. The potential loss of some of the excess hatchery 
fish being used for the reintroduction effort will not appreciably 
reduce the likelihood of survival and recovery for this DPS. Therefore, 
this experimental population will be designated as nonessential because 
there are sufficient numbers of other fish from this population 
throughout a wide geographic range, and these fish are excess hatchery 
stock that are not needed for other purposes.

Location of Proposed NEP

    ESA section 10(j) requires that the experimental population be 
designated only when, and at such times, as it is geographically 
separate from nonexperimental populations of the same species. On a 
very basic level, the NEP geographic area includes all waters that 
could support steelhead above Round Butte Dam. The NEP area covered by 
this action would include portions of the Deschutes River basin above 
Round Butte Dam, which is the most upstream development of the three-
dam Pelton Round Butte Hydroelectric Project. Specifically, the NEP 
area includes the Deschutes River from Big Falls (river mile 132 or 
river kilometer 212) downstream to Round Butte Dam; the Whychus Creek 
subbasin; the Metolius River subbasin; and the Crooked River subbasin 
from Bowman Dam downstream (including the Ochoco and McKay Creek 
watersheds) to its point of confluence with the Deschutes River.
    Accordingly, Round Butte Dam serves as the line of demarcation 
between the experimental population and the rest of the steelhead 
population. This geographic boundary is clearly defined by the presence 
of Round Butte Dam, with all steelhead above the dam being part of the 
experimental population and all steelhead below the dam not part of the 
experimental population. This approach to providing a clear geographic 
separation recognizes that anadromous fish migrate and mingle during 
the migration. The steelhead will be experimental when, and at such 
times as, they are above Round Butte Dam, and not experimental when 
they are downstream of the dam.
    The nearest steelhead population to the NEP area is found in the 
Deschutes River below Round Butte Dam. The geographic boundary of the 
current steelhead DPS does not include the area above Round Butte Dam. 
Other steelhead populations near the NEP area include fish in the 
following tributaries of the lower Columbia River: The Lewis River, 
entering the lower Columbia at river mile (RM) 84 (river km 135), the 
Willamette River at RM 101(river km 163), and the Hood River at RM 165 
(river km 366). Because anadromous populations of steelhead migrate to 
the Pacific Ocean and return to their natal streams to spawn, 
experimental population fish will commingle with nonexperimental 
population fish in the lower Deschutes and Columbia Rivers, and 
individuals from the experimental population may stray into any of the 
lower Columbia River tributaries or into Deschutes River tributaries 
below the Pelton Round Butte Project and spawn. Steelhead found outside 
of the NEP boundary but known to be part of the hatchery stock used for 
the reintroduction will also be considered nonexperimental.
    The Round Butte Dam provides an absolute boundary to 
nonexperimental population fish returning to spawn. All juvenile 
steelhead smolts leaving the NEP boundary are collected at Round Butte 
Dam and each fish is given the same unique mark so that when they 
return to the Pelton fish trap as adults, trap operators can readily 
distinguish between experimental population and nonexperimental 
population fish. Only adult steelhead from the experimental population 
will be released above Round Butte Dam; therefore, the NEP is 
geographically separate from other steelhead populations because of the 
Pelton Round Butte Project.
    Lastly, the steelhead reintroduction plan calls for using wild 
spawners from lower Deschutes River tributaries at some point in the 
reintroduction effort. Use of non-hatchery fish in the reintroduction 
will largely depend on the availability of wild spawners and the 
successful performance of the fish passage program at the Pelton Round 
Butte Project. We will consider any non-hatchery steelhead used for 
reintroduction above Round Butte Dam to be part of the experimental 
population once released into the NEP area.
    In summary, the section 10(j) requirement that the experimental 
designation be limited to such times as the population is 
geographically separate is met here because the NEP area is outside the 
range of the currently existing DPS, and is clearly defined by Round 
Butte Dam, which is impassable to steelhead. It includes all streams 
above Round Butte Dam capable of supporting steelhead. All steelhead 
above the dam are in the experimental population, and all steelhead 
below the dam are not part of the experimental population.

Time Frame for NEP Designation

    We are proposing an expiration date for the NEP designation because 
we want to provide an incentive for private land owners and local 
government entities to complete conservation measures in a certain time 
frame, while providing time to gather useful information on the 
reintroduction effort. This information will be used in the development 
of the conservation measures so they will be able to support the 
reintroduction program.
    We are proposing a time frame of 12 years from the time when the 
first NEP adults return to the NEP area. This time is not definite now 
because we do not yet know exactly when the first adult steelhead will 
be passed above the dams to the NEP area. Adult passage will depend on 
meeting criteria established in the steelhead and spring Chinook 
Reintroduction Plan (ODFW and CTWSRO, 2008). On average, one generation 
of steelhead is about 4 years (2 years freshwater rearing, 1 year in 
the ocean, and roughly 9-11 months for adult migration, holding, and 
spawning), so three generations will be 12 years. We recognize that 
variations in freshwater rearing and ocean growth will occur (i.e., 
longer freshwater rearing and ocean growth time).
    The proposed timeframe reflects our view that it will be useful to 
have information on three generations of steelhead to understand how 
well the reintroduction program is working and how best to craft 
conservation measures to support the program. As we discussed in the 
section on whether the designation will further the conservation of the 
species, the time frame of three generations allows an adequate amount 
of data to be collected on the reintroduction program, and time for 
this information to be used as the basis of conservation measures 
tailored toward supporting this reintroduction. This amount of 
information will allow all parties, private and governmental, to work 
together to develop conservation measures that are specifically focused 
on addressing needs of steelhead in the Upper Deschutes River basin. 
For conservation measures completed before

[[Page 28722]]

expiration of the designation, such as potentially the HCP currently 
being developed, an adaptive management component could address the 
need to potentially modify the measures based on this information. This 
component will maximize the benefit of the conservation measures and 
strengthen the reintroduction program, and will result in a strong 
program for this recovery measure.
    Without an expiration date, development and completion of 
conservation measures may continue for a longer time. In general, 
twelve years is a reasonable amount of time to complete development of 
conservation measures because there is still a lot of information 
needed, and the issues are complex and involve many parties. That said, 
the HCP could be completed before the NEP designation expires. We would 
like to strongly encourage development and implementation of 
conservation measures that will support the reintroduction, and this 
expiration date is meant to provide that encouragement while also 
ensuring that the measures are based on good information.

Management Considerations and Protective Measures

    The aquatic resources in the NEP area are managed by the U.S. 
Forest Service, Bureau of Land Management, Bureau of Reclamation, the 
State of Oregon, municipalities, and private landowners. Multiple-use 
management of these waters would continue under the NEP designation. We 
do not expect that continuing these agricultural, recreational, 
municipal, and other activities by private landowners within and near 
the NEP area will cause significant harm to MCR steelhead; the 
reintroduction effort has begun and the juvenile survival rates suggest 
that the activities in the area are not a limiting factor. The main 
factors we relied on in considering appropriate management measures 
are: (1) A significant number of upstream irrigators are developing or 
already implementing certain conservation measures; (2) Federal 
agencies have already consulted under section 7 of the ESA and are 
implementing actions that do not cause jeopardy and minimize incidental 
take; (3) fish used for the reintroduction will be excess hatchery 
fish, and loss of some of them will not harm survival and recovery of 
the steelhead; and (4) enough steelhead are already surviving to 
provide information necessary for the initial stages of the 
reintroduction program. These factors all lead to the conclusion that, 
for a 12-year period, the reintroduction effort can continue 
successfully while allowing some take of the steelhead in the 
experimental population because enough fish will survive to support 
reintroduction. Therefore, for the time period of the designation, 
incidental take, as provided in the next paragraph, will not harm the 
recovery program.
    Incidental Take: Although MCR steelhead are already covered by a 
NMFS 4(d) rule at 50 CFR 203, this action would modify that protection 
if it is implemented. In this proposed rule, under the authority of ESA 
section 4(d), incidental take of steelhead within the experimental 
population area would be allowed, provided that the take is 
unintentional, not due to negligent conduct, or is consistent with 
State fishing regulations that have been coordinated with NMFS. As 
recreational fishing for species other than steelhead is popular within 
the NEP area, we expect some incidental take of steelhead from this 
activity but, as long as it is incidental to the recreational fishery, 
and in compliance with ODFW fishing regulations and Tribal regulations 
on land managed by the Confederated Tribes of the Warm Springs 
Reservation of Oregon, such take will not be a violation of the ESA.

Monitoring and Evaluation

    As a requirement under its Federal license to operate the Pelton 
Round Butte Project, the Licensees will monitor over the 50-year term 
of the license. Some of this monitoring relates directly to the MCR 
steelhead reintroduction program. The licensees will collect data to 
gauge long-term progress of the reintroduction program and to provide 
information for decision-making and adaptive management for directing 
the reintroduction program. Fish passage, fish biology, aquatic 
habitat, and hatchery operations will be the primary focus of the 
monitoring (PGE and CTWSRO, 2004; ODFW and CTWSRO, 2008).
    Fish passage monitoring will focus on addressing a variety of 
issues important to successful reintroduction. These issues consist of 
measuring fish passage efficiency, including smolt reservoir passage, 
collection efficiency at the fish collection facility, smolt injury and 
mortality rates, adult collection, and adult reservoir passage to 
spawning areas. Passive integrated transponder tags and radio tags will 
be used to evaluate and monitor fish passage effectiveness. Biological 
evaluation and monitoring will concentrate on adult escapement and 
spawning success, competition with resident species, predation, disease 
transfer, smolt production, harvest, and sustainability of natural 
runs. Habitat monitoring will focus on long-term trends in the 
productive capacity of the reintroduction area (e.g., habitat 
availability, habitat effectiveness, riparian condition) and natural 
production (the number, size, productivity, and life history diversity) 
of steelhead in the NEP area above Round Butte Dam.
    Monitoring at the fish hatchery will focus on multiple issues 
important to the quality of fish collected and produced for use in the 
reintroduction program. ODFW will be primarily responsible for 
monitoring hatchery operations. This will consist mainly of broodstock 
selection; disease history and treatment; pre-release performance such 
as survival, growth, and fish health by life stage; the numerical 
production advantage provided by the hatchery program relative to 
natural production; and success of the hatchery program in meeting 
conservation program objectives.
    While this monitoring is being conducted for purposes of making the 
reintroduction effort successful, we will use the information to also 
determine if the experimental population designation is causing any 
harm to MCR steelhead and their habitat, and then, based on this and 
other available information, determine if the designation needs to be 
removed before the expiration date. There is no need for additional 
monitoring because this effort will provide all the information 
necessary.

Findings

    Based on the best available scientific information, the designation 
of MCR steelhead above the Pelton Round Butte Project as a NEP will 
further the conservation of the species because it will encourage 
private landowners and all levels of government to work together to 
develop conservation measures, which in turn will support recovery 
efforts. The geographic area is well-defined as all parts of the three 
rivers capable of supporting steelhead above the Pelton Round Butte 
dams. This population is nonessential because it is made up of excess 
hatchery stock that are not necessary for the survival and recovery of 
the species, and because there are sufficient MCR steelhead populations 
elsewhere such that this NEP is not essential to the DPS. The 
expiration date for the designation is appropriate because it will 
encourage completion of conservation measures based on site-specific 
scientific information, within the time frame provided in the rule.

[[Page 28723]]

Information Quality Act and Peer Review

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

Classification

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in E.O. 12866, OMB has determined 
this proposed rule is not a significant rulemaking action.
    If enacted, this proposed rule would not create inconsistencies 
with other agencies' actions or otherwise interfere with an action 
taken or planned by another agency. Federal agencies most interested in 
this rulemaking are the U.S. Forest Service, Bureau of Land Management, 
and Bureau of Reclamation. Because of the substantial regulatory relief 
provided by the NEP designation, we believe the reestablishment of 
steelhead in the areas described would not conflict with existing human 
activities or hinder public utilization of the area.
    This proposed rule also would not materially affect entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients. Because there are no expected impacts or restrictions 
to existing human uses as a result of this proposed rule, no 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients are expected to occur.

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

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. The Chief Counsel for Regulation certifies that this proposed 
rule would not have a significant economic effect on a substantial 
number of small entities.
    If this proposal is adopted, the small businesses in the upper 
Deschutes River basin that could be affected include those involved in 
agriculture, ranching, fishing, recreation and tourism, because their 
activities have the potential to affect steelhead and their habitat. 
The proposed rule would likely be beneficial to the small entities 
listed here, however, and there will likely be no adverse economic 
impact on these entities, because the rule would relieve a restriction 
on these small businesses by removing potential ESA liability for them 
during the time frame of the NEP designation.
    Section 7(a)(4) requires Federal agencies to confer (rather than 
consult) with us on actions that are likely to jeopardize the continued 
existence of a proposed species. The results of a conference are 
advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities. The proposed rule would relieve a 
restriction on Federal actions by removing the ESA section 7(a)(2) 
consultation requirement for Federal action agencies. The designation 
of steelhead as an experimental population within the upper Deschutes 
River basin would likely not affect the use of Federal lands because 
there would be no requirement to consult under ESA section 7(a)(2) to 
make a jeopardy or adverse modification determination.
    This proposed rule will relieve an ESA regulatory restriction and 
will not impose any new or additional economic or regulatory 
restrictions upon States, non-Federal entities, or members of the 
public due to the presence of steelhead. Therefore, this rulemaking 
will have no significant economic impact on a substantial number of 
small entities because it is not expected to have any significant 
adverse impacts to recreation, agriculture, or any development 
activities, and may have a beneficial effect on small entities. For 
these reasons, an initial regulatory flexibility analysis is not 
required, and none has been prepared.

Takings (E.O. 12630)

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

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

    OMB regulations at 5 CFR 1320, which implement provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal 
agencies obtain approval from OMB before collecting information from 
the public. A Federal agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. This proposed rule does 
not include any new collections of information that require approval by 
OMB under the Paperwork Reduction Act.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we have analyzed the impact on the human 
environment and considered a reasonable range of alternatives for this 
proposed rule. We have prepared a draft EA on this proposed action and 
have made it available for public inspection (see ADDRESSES section). 
All appropriate NEPA documents will be finalized before this rule is 
finalized.

Government-to-Government Relationship With Tribes

    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If we issue a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of

[[Page 28724]]

power and responsibilities between the Federal Government and Indi