Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Bull Trout in the Clackamas River Subbasin, OR, 35979-35995 [2011-15370]
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Federal Register / Vol. 76, No. 119 / Tuesday, June 21, 2011 / Rules and Regulations
Notice of temporary deviation
from regulations.
ACTION:
The Commander, First Coast
Guard District, has issued a temporary
deviation from the regulation governing
the operation of the Long Beach Bridge
at mile 4.7, across Reynolds Channel at
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necessary to facilitate public safety for
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DATES: This deviation is effective from
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p.m. on June 26, 2011.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2011–
0481 and are available online at https://
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SUPPLEMENTARY INFORMATION: The Long
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at mile 4.7, at Nassau, New York, has a
vertical clearance in the closed position
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at mean low water. The drawbridge
operation regulations are listed at 33
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The waterway users are mostly
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The owner of the bridge, Nassau
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during a public event, the Annual
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Under this temporary deviation the
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SUMMARY:
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The commercial users were notified.
No objections were received.
In accordance with 33 CFR 117.35(e),
the bridge must return to its regular
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end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
35979
Fish and Wildlife Service
Significant Impact (FONSI), is available
on the Internet at https://
www.regulations.gov. Comments and
materials received, as well as supporting
documentation used in the preparation
of this final rule, are also available for
inspection, by appointment, during
normal business hours, at the U.S. Fish
and Wildlife Service, Oregon Fish and
Wildlife Office, 2600 SE. 98th Avenue,
Suite 100, Portland, Oregon 97266;
(telephone 503–231–6179).
FOR FURTHER INFORMATION CONTACT:
Chris Allen at the address listed above.
If you use a telecommunication device
for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
50 CFR Part 17
Background
[FWS–R1–ES–2009–0050; 92220–1113–
0000–C3]
Statutory and Regulatory Framework
Dated: June 8, 2011.
Gary Kassof,
Bridge Program Manager, First Coast Guard
District.
[FR Doc. 2011–15352 Filed 6–20–11; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF THE INTERIOR
RIN 1018–AW60
Endangered and Threatened Wildlife
and Plants; Establishment of a
Nonessential Experimental Population
of Bull Trout in the Clackamas River
Subbasin, OR
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), jointly with
the State of Oregon, and in cooperation
with the U.S. Forest Service, Mt. Hood
National Forest (USFS), National Marine
Fisheries Service (NMFS), and
Confederated Tribes of the Warm
Springs Reservation of Oregon
(CTWSRO), will establish a nonessential
experimental population (NEP) of bull
trout (Salvelinus confluentus) in the
Clackamas River and its tributaries in
Clackamas and Multnomah Counties,
Oregon, under section 10(j) of the
Endangered Species Act of 1973, as
amended (Act). The geographic
boundaries of the NEP include the
entire Clackamas River subbasin as well
as the mainstem Willamette River, from
Willamette Falls to its points of
confluence with the Columbia River,
including Multnomah Channel. The best
available data indicate that
reintroduction of bull trout to the
Clackamas River subbasin is biologically
feasible and will promote the
conservation of the species.
DATES: This rule is effective June 21,
2011.
SUMMARY:
This final rule, along with
the public comments, Environmental
Assessment (EA), and Finding of No
ADDRESSES:
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The 1982 amendments to the Act (16
U.S.C. 1531 et seq.) included the
addition of section 10(j) which allows
for the designation of reintroduced
populations of listed species as
‘‘experimental populations.’’ Under
section 10(j) of the Act and our
regulations at 50 CFR 17.81, the Service
may designate as an experimental
population a population of endangered
or threatened species that has been or
will be released into suitable natural
habitat outside the species’ current
natural range (but within its probable
historical range, absent a finding by the
Director of the Service in the extreme
case that the primary habitat of the
species has been unsuitably and
irreversibly altered or destroyed).
Before authorizing the release as an
experimental population of any
population (including eggs, propagules,
or individuals) of an endangered or
threatened species, and before
authorizing any necessary
transportation to conduct the release,
the Service must find, by regulation,
that such release will further the
conservation of the species. In making
such a finding, the Service uses the best
scientific and commercial data available
to consider: (1) Any possible adverse
effects on extant populations of a
species as a result of removal of
individuals, eggs, or propagules for
introduction elsewhere; (2) the
likelihood that any such experimental
population will become established and
survive in the foreseeable future; (3) the
relative effects that establishment of an
experimental population will have on
the recovery of the species; and (4) the
extent to which the introduced
population may be affected by existing
or anticipated Federal or State actions or
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private activities within or adjacent to
the experimental population area.
Furthermore, as set forth in 50 CFR
17.81(c), all regulations designating
experimental populations under section
10(j) must provide: (1) Appropriate
means to identify the experimental
population, including, but not limited
to, its actual or proposed location,
actual or anticipated migration, number
of specimens released or to be released,
and other criteria appropriate to identify
the experimental population(s); (2) a
finding, based solely on the best
scientific and commercial data
available, and the supporting factual
basis, on whether the experimental
population is, or is not, essential to the
continued existence of the species in the
wild; (3) management restrictions,
protective measures, or other special
management concerns of that
population, which may include but are
not limited to, measures to isolate and/
or contain the experimental population
designated in the regulation from
natural populations; and (4) a process
for periodic review and evaluation of
the success or failure of the release and
the effect of the release on the
conservation and recovery of the
species.
Under 50 CFR 17.81(d), the Service
must consult with appropriate State fish
and wildlife agencies, local
governmental entities, affected Federal
agencies, and affected private
landowners in developing and
implementing experimental population
rules. To the maximum extent
practicable, section 10(j) rules represent
an agreement between the Service, the
affected State and Federal agencies, and
persons holding any interest in land
which may be affected by the
establishment of an experimental
population.
Under 50 CFR 17.81(f), the Secretary
of the Interior (Secretary) may designate
critical habitat as defined in section
3(5)(A) of the Act for an essential
experimental population. In those
situations where a portion or all of an
essential experimental population
overlaps with a natural population of
the species during certain periods of the
year, no critical habitat will be
designated for the area of overlap unless
implemented as a revision to critical
habitat of the natural population for
reasons unrelated to the overlap itself.
No designation of critical habitat will be
made for nonessential experimental
populations.
Any population determined by the
Secretary to be an experimental
population will be treated as if it were
listed as a threatened species for
purposes of establishing protective
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regulations with respect to that
population. The protective regulations
adopted for an experimental population
will contain applicable prohibitions, as
appropriate, and exceptions for that
population.
Any experimental population
designated for a listed species (1)
determined not to be essential to the
survival of that species and (2) not
occurring within the National Park
System or the National Wildlife Refuge
System, will be treated for purposes of
section 7 (other than subsection (a)(1)
thereof) as a species proposed to be
listed under the Act as a threatened
species.
Any experimental population
designated for a listed species that
either (1) has been determined to be
essential to the survival of that species,
or (2) occurs within the National Park
System or the National Wildlife Refuge
System as now or hereafter constituted,
will be treated for purposes of section 7
of the Act as a threatened species.
Notwithstanding the foregoing, any
biological opinion prepared pursuant to
section 7(b) of the Act and any agency
determination made pursuant to section
7(a) of the Act will consider any
experimental and nonexperimental
populations to constitute a single listed
species for the purposes of conducting
the analyses under such sections.
On December 9, 2009, the Service
published: (1) A proposed rule in the
Federal Register to establish a
nonessential experimental population of
bull trout in the Clackamas River
subbasin, Oregon (74 FR 65045); and (2)
a draft environmental assessment (EA)
in accordance with the National
Environmental Policy Act of 1969, as
amended (NEPA) (74 FR 65045). This
document analyzed the potential
environmental impacts associated with
the proposed reintroduction. We
contacted interested parties including
Federal and State agencies, local
governments, scientific organizations,
interest groups, and private landowners
through a press release and related fact
sheets, and e-mails. In addition, we
notified the public and invited
comments through news releases to
local media outlets. The public
comment period for the proposed rule
and the draft EA closed on February 8,
2010.
Biological Information
The bull trout is a large native char
found in the coastal and intermountain
west of North America and is one of five
species in the genus Salvelinus found in
the United States (Bond 1992, p. 1). Bull
trout have a slightly forked tail; yellow
or cream-colored spots on their back;
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yellow, orange, or pink spots on their
side; and no black spots on their dorsal
fin. Migratory adults commonly reach
24 inches (61 centimeters) or more
(Goetz 1989, pp. 29–30; Pratt 1992, p. 8).
The largest known specimen weighed
32 pounds (14.5 kilograms) (Simpson
and Wallace 1982, p. 95).
The historical range of bull trout in
the coterminous United States extended
from the Canadian border south to the
Jarbidge River in northern Nevada and
from the Pacific Ocean inland to the
Clark Fork River in western Montana
and the Little Lost River in central
Idaho. Genetic analyses have shown that
bull trout in the coterminous United
States are divided into major genetically
differentiated (e.g., evolutionary) groups
or lineages (Spruell et al. 2003, p. 21;
Ardren et al. 2010, In Press, p. 13;
Taylor et al. 1999, p. 1162). At a coarse
scale, these assessments have identified
the existence of two distinct lineages: A
‘‘coastal’’ lineage and a ‘‘interior’’
lineage. The ‘‘coastal’’ lineage includes
the Deschutes River and all of the
Columbia River drainage downstream
(including the Willamette Basin), as
well as coastal streams in Washington,
Oregon, and British Columbia. The
‘‘interior’’ lineage includes tributaries of
the Columbia River upstream from the
John Day River, including major river
basins in northeastern Oregon, eastern
Washington, Idaho, and northwestern
Montana.
In a finer-scale analysis, the Service
recently identified additional genetic
units within the coastal and interior
lineages (Ardren et al. 2010, In Press, p.
18). Based on a recommendation in the
Service’s 5-year review of the species’
status (USFWS 2008, p. 45), the Service
reanalyzed the 27 recovery units
identified in the draft bull trout
recovery plan (USFWS 2002) by
utilizing, in part, genetic information
from this finer-scale genetic analysis. In
this examination, the Service applied
relevant factors from the joint Service
and NMFS Distinct Population Segment
(DPS) policy (61 FR 4722; February 7,
1996) and subsequently identified six
draft recovery units that contain
assemblages of core areas that retain
genetic and ecological integrity across
the range of bull trout in the
coterminous United States. These six
draft recovery units were used to inform
designation of critical habitat for bull
trout by providing a context for deciding
what habitats are essential for recovery
(75 FR 63898; October 18, 2010). The six
draft recovery units identified for bull
trout in the coterminous United States
include: Coastal, Klamath, MidColumbia, Columbia Headwaters, Saint
Mary, and Upper Snake.
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Bull trout exhibit both resident and
migratory life-history strategies,
although bull trout in the ‘‘coastal’’
lineage are largely migratory. Migratory
bull trout spawn in tributary streams
where juvenile fish rear for 1 to 4 years
before migrating to either a lake
(adfluvial form), river (fluvial form)
(Fraley and Shepard 1989, pp. 138–139;
Goetz 1989, p. 24), or saltwater
(anadromous form) to rear as subadults
and to live as adults (Cavender 1978, p.
139; McPhail and Baxter 1996, p. 14;
Washington Department of Fish and
Wildlife (WDFW) et al. 1998, p. 2). Bull
trout normally reach sexual maturity
between age 4 and 7, and may live
longer than 12 years. They are
iteroparous (spawning more than once
in a lifetime). Both consecutive-year and
alternate-year spawning have been
reported (Fraley and Shepard 1989, p.
135). Preferred habitat consists of cold
water, complex cover, stable channels,
loose and clean gravel, and migratory
corridors (Fraley and Shepard 1989, pp.
137–139; Goetz, 1989, pp. 16–25).
The current distribution of bull trout
in the lower Columbia River portion of
the ‘‘coastal’’ lineage includes
populations in the Deschutes, Hood,
Lewis, Klickitat, and upper Willamette
rivers. Throughout much of its historical
range, the decline of bull trout 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-ofstream for various purposes) into
diversion channels and dams, and
introduced nonnative species. Specific
land and water management activities
that may negatively impact bull trout
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
(Beschta et al. 1987, pp. 221–224;
Chamberlain et al. 1991, pp. 199–200;
Furniss et al. 1991, pp. 297–302;
Meehan and Bjornn 1991, pp. 483–517;
Nehlsen et al. 1991, p. 16; Craig and
Wissmar 1993, p. 18; Frissell 1993, p.
351; McIntosh et al. 1994, pp. 47–48;
Wissmar et al. 1994, p. 28; Montana Bull
Trout Scientific Group (MBTSG) 1995a
[p. 14], 1995b [p. 10], 1995c [p. 13],
1995d [p. 21], 1995e [p. 13], 1996a [p.
12], 1996b [p. 9], 1996c [p. 12], 1996d
[p. 11], 1996e [p. 12], 1996f [p. 10];
Light et al. 1996, pp. 9–11; U.S.
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Department of Agriculture (USDA) and
U.S. Department of the Interior (USDI)
1995 [pp. 70–71], 1996 [pp. 106–107,
111], 1997 [pp. 132–154]).
The historical distribution of bull
trout in the Clackamas River subbasin
likely extended from the lower
Clackamas River upstream to headwater
spawning and rearing areas (Shively et
al. 2007, Ch. 1, pp. 10–12). It is possible
that bull trout from the Clackamas River
migrated to the upper Willamette River
above Willamette Falls or to lower
Columbia River tributaries (Zimmerman
1999, p. 17); however, it is unlikely that
bull trout historically occupied habitat
upstream of waterfall barriers known to
impede upstream movement of
anadromous salmon and steelhead in
the Clackamas River.
The last documented bull trout
observation in the Clackamas River
subbasin was in 1963 (Stout 1963, p.
97). Due to geographic distance to extant
bull trout populations in other
subbasins, natural recolonization of the
Clackamas River subbasin is extremely
unlikely (USFWS 2002, Ch. 5, p. 9).
Extirpation was likely caused by many
of the factors that led to the decline in
the species across its range, including
migration barriers from hydroelectric
and diversion dams, direct and
incidental harvest in sport and
commercial fisheries, targeted
eradication through bounty fisheries
(currently known as ‘‘sport reward’’
programs), and habitat and water quality
degradation from forest management
and agricultural activities not in
accordance with best management
practices (Shively et al. 2007, Ch. 1, pp.
18–22).
Relationship of the Experimental
Population to Recovery Efforts
On November 1, 1999, we published
a final rule to list bull trout within the
coterminous United States as threatened
under the Act (64 FR 58910). This final
rule served to consolidate the five
separate DPS listings into one listing
throughout the species’ entire range in
the coterminous United States. We
published notices of availability of draft
recovery plans for the Columbia River,
Klamath River, and St. Mary-Belly River
segments on November 29, 2002 (67 FR
71439), and the Coastal Puget Sound
and Jarbidge River segments on July 1,
2004 (69 FR 39950 and 69 FR 39951,
respectively). We published a revised
final rule on October 18, 2010 (75 FR
63898), designating critical habitat for
bull trout in the coterminous United
States. We anticipate publishing a draft
revised recovery plan for bull trout in
the coterminous United States in 2011,
and a final recovery plan in 2012. The
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recovery objectives from the 2002 draft
recovery plan are:
(1) Maintain current distribution of
bull trout within core areas as described
in recovery unit chapters and restore
distribution where recommended in
recovery unit chapters;
(2) Maintain stable or increasing trend
in abundance of bull trout;
(3) Restore and maintain suitable
habitat conditions for all bull trout lifehistory stages and strategies; and
(4) Conserve genetic diversity and
provide opportunity for genetic
exchange.
As noted above in Biological
Information, new draft recovery units
were identified in the October 2010 bull
trout critical habitat final rule (75 FR
63898). We anticipate these 6 recovery
units will replace the 27 recovery units
previously identified in our 2002 draft
recovery plan (67 FR 71439; November
29, 2002), and that these new units will
be incorporated into the revised draft
recovery plan expected to be published
for public review and comment in 2012.
The recovery criteria specific to the 27
recovery units identified in the 2002
draft recovery plan continue to inform
demographic recovery targets at the core
area scale. Therefore, the criteria
identified below for what was then
described as the Willamette River
Recovery Unit in the 2002 draft recovery
plan (USFWS 2002, Ch. 5 pp. 7–8) are
still relevant:
(1) Distribution criteria will be met
when bull trout are distributed among
five or more local populations in the
recovery unit: four in the Upper
Willamette River core area and one in
the Clackamas River core habitat.
(2) Abundance criteria will be met
when an estimated abundance of adult
bull trout is from 900 to 1,500 or more
individuals in the Willamette River
Recovery Unit, distributed in each core
area as follows: 600 to 1,000 in the
Upper Willamette core area and 300 to
500 in the Clackamas River core habitat.
(3) Trend criteria will be met when
adult bull trout exhibit stable or
increasing trends in abundance in the
Willamette River Recovery Unit, based
on a minimum of 10 years of monitoring
data.
(4) Connectivity criteria will be met
when migratory forms are present in all
local populations and when intact
migratory corridors among all local
populations in core areas provide
opportunity for genetic exchange and
diversity.
Establishment of an experimental
population of bull trout in the
Clackamas River will help to achieve
distribution in the Clackamas River core
habitat (recovery criterion 1 and
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recovery objective 1) and will increase
abundance of adult bull trout in the
Willamette River basin (recovery
criterion 2 and recovery objective 2 from
the 2002 draft recovery plan).
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Is the experimental population essential
or nonessential?
When we establish experimental
populations under section 10(j) of the
Act, we must determine whether such a
population is essential to the continued
existence of the species in the wild.
Although the experimental population
will contribute to the recovery of the
bull trout in the Willamette River basin,
it is not essential to the continued
existence of the species in the wild. Bull
trout populations are broadly
distributed, occurring in 121 core areas
in 5 western States, and the species’
continued existence is dependent upon
conserving a number of interacting
populations that are well distributed
throughout its range. Because the donor
stock for the reintroduction will come
from a wild population of bull trout, the
reintroduced population will not
possess markedly divergent genetic
components or adaptive traits.
Furthermore, the Clackamas River is not
a unique or unusual ecological setting or
geographical context for bull trout. Bull
trout occur in other portions of the
Willamette River basin and in other
nearby tributaries to the Columbia
River. Therefore, as required by 50 CFR
17.81(c)(2), we find that the
experimental population is not essential
to the continued existence of the species
in the wild, and we hereby designate the
experimental population in the
Clackamas River as a nonessential
experimental population (NEP).
Location of the Nonessential
Experimental Population
The NEP area includes the entire
Clackamas River subbasin as well as the
mainstem Willamette River, from
Willamette Falls to its points of
confluence with the Columbia River,
including Multnomah Channel. The
Willamette River’s confluence with the
Columbia River occurs at river mile
(RM) 101, near the City of Portland. A
secondary channel of the Willamette
River, named the Multnomah Channel,
branches off the Willamette River
approximately 3 river miles (5 river
kilometers) upstream from its
confluence with the Columbia River.
This secondary channel runs
approximately 20 river miles (32 river
kilometers) along the west side of
Sauvie Island before joining the
Columbia River at RM 86 near the town
of St. Helens. The NEP boundary
extends down the Multnomah Channel
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to its confluence with the Columbia
River, as well as the mainstem
Willamette River, from Willamette Falls
to its confluence with the Columbia
River.
Under this final rule, the Service will
release bull trout into areas of suitable
spawning and rearing habitat in the
Clackamas River subbasin. The portion
of the subbasin currently containing
these areas is limited to the mainstem
Clackamas River and its tributaries in
the upper headwaters of the subbasin,
upstream of the Collawash River
confluence. This portion of the
subbasin, referred to as the upper
Clackamas River subbasin, contains a
total of 70.1 river miles (112.8 river
kilometers) of suitable spawning and
rearing habitat. The amount and
characteristics of habitat in the
Clackamas River subbasin compare
favorably to other river systems in the
lower Columbia River with extant bull
trout populations (e.g., Lewis,
McKenzie, and Deschutes rivers)
(Shively et al. 2007, Ch. 2, p. 40).
Section 10(j) of the Act requires that
an experimental population be
geographically separate from wild
populations of the same species. The
nearest wild bull trout populations to
the Clackamas River are located in the
following tributaries of the lower
Columbia River: The Lewis (RM 84),
Hood (RM 165), and Deschutes (RM
200) rivers. Because fluvial populations
of bull trout tend to migrate, individual
fish from these populations may
seasonally occupy the mainstem of the
lower Columbia River. Although we
have no records of bull trout in the
mainstem Willamette River, given our
understanding of bull trout ecology in
other river systems, it is likely that,
historically, bull trout seasonally
occupied the mainstem Willamette
River. If a reintroduction of bull trout to
the Clackamas River is successful, it is
possible that a small percentage of adult
bull trout will migrate to, and
overwinter in, the mainstem Willamette
River, between Willamette Falls and its
points of confluence with the Columbia
River, including Multnomah Channel.
Should any bull trout be found in the
Willamette River within the NEP
boundary, the Service will assume the
fish to be part of the reintroduced
population, unless the fish is tagged or
otherwise known to be from another
population.
It is unlikely that reintroduced bull
trout will migrate outside of the NEP
boundary into the Columbia River or
upstream of Willamette Falls in the
Willamette River due to the significant
distance to spawning and rearing
habitats in the upper Clackamas River.
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Bull trout found outside of the NEP
boundary but known to be part of the
NEP will assume the status of bull trout
within the geographic area in which
they are found. Although Willamette
Falls and the confluence points of the
Willamette and Columbia Rivers are not
absolute boundaries, the NEP is
geographically separate from other wild
bull trout populations due to geographic
distance.
Likelihood of Population Establishment
and Survival
The Service, USFS, State of Oregon
(hereafter referred to as either the State
of Oregon or the Oregon Department of
Fish and Wildlife (ODFW)), and other
major stakeholders established the
Clackamas River Bull Trout Working
Group (CRBTWG) to assess the
feasibility of bull trout reintroductions.
In 2007, the CRBTWG completed the
Clackamas River Bull Trout
Reintroduction Feasibility Assessment
(Feasibility Assessment), a scientifically
rigorous examination of habitat
suitability and projected viability of a
reintroduced population (Shively et al.
2007). The Feasibility Assessment
indicates that there is a reasonable
likelihood that reintroduced bull trout
will survive and reestablish in the upper
portion of the Clackamas River, from
North Fork Reservoir to the headwaters.
Specifically, the CRBTWG concludes:
(1) There is a high level of confidence
that bull trout have been locally
extirpated from the Clackamas River
subbasin;
(2) The causes for their decline have
been sufficiently mitigated;
(3) High-quality habitat is available in
sufficient amounts;
(4) Nearby donor stocks are unlikely
to naturally recolonize;
(5) Suitable donor stocks are available
that can withstand extraction of
individuals;
(6) Nonnative brook trout presence is
restricted to a small portion of the
suitable habitat and not a likely threat;
and
(7) A diverse and abundant fish
assemblage would serve as a sufficient
prey base with no obvious threats posed
by bull trout to these species (Shively et
al. 2007, Ch. 5, pp. 3–4).
Based on this assessment,
reintroduced bull trout are likely to
become established and persist in the
Clackamas River subbasin. Copies of the
Feasibility Assessment can be obtained:
(1) Online at https://www.fws.gov/
oregonfwo/Species/Data/BullTrout/
ReintroductionProject.asp, (2) at https://
www.regulations.gov, or (3) in person,
by appointment, during normal business
hours, at the Oregon Fish and Wildlife
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Office (see FOR FURTHER INFORMATION
CONTACT).
Addressing Causes of Extirpation
Investigating the causes for decline
and extirpation of bull trout in the
Clackamas River is necessary to
understand whether the threats have
been sufficiently curtailed such that
reintroduction efforts are likely to be
successful. The CRBTWG identified the
primary threats to be hydroelectric dams
(passage and screening), forest
management (i.e., lack of aquatic habitat
protection), and fisheries management
(particularly sport fishing upstream of
North Fork Dam) (Shively et al. 2007,
Ch. 1, pp. 22–23). The changes in
threats since extirpation of bull trout in
the Clackamas River subbasin are
explained below in more detail.
Diversion dams that would impede
bull trout migration were present in the
late 1800s and early 1900s, but no
longer exist in the lower Clackamas
River subbasin. Within bull trout
historical habitat in the Clackamas River
subbasin there are three existing dams
owned and operated by Portland
General Electric (PGE). Beginning in the
late 1990s, PGE began Federal
relicensing proceedings for its
hydroelectric dams in the Clackamas
River subbasin. In their final license
application to the Federal Energy
Regulatory Commission (FERC) and in
an accompanying Settlement Agreement
among more than 30 local, State,
Federal, and Tribal governments,
nongovernmental organizations, and
other interested stakeholders, PGE
proposed to make several upstream and
downstream fish passage improvements
for the three dams along the mainstem
Clackamas River. One improvement,
which is already completed, is the
reconstruction of the River Mill Dam
fish ladder. Other improvements
include upgrades to the downstream
fish collection facility and bypass at
North Fork Dam, construction of a new
fish trap and handling facility at the
North Fork fishway, and new
downstream fish passage facilities at
River Mill Dam (Shively et al. 2007, Ch.
1, p. 23). No additional changes or
protections regarding the operation and
maintenance of the Clackamas River
Hydroelectric Project are necessary to
support a successful reintroduction of
bull trout in the Clackamas River
subbasin.
The majority of lands in the upper
portion of the Clackamas River subbasin
are USFS- and Bureau of Land
Management (BLM)-administered public
forest lands. These lands are managed in
accordance with the Mt. Hood National
Forest Land and Resource Management
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Plan (USFS 1990) or the Salem District
BLM Resource Management Plan (USDI
1995), respectively, as amended by the
1994 Northwest Forest Plan (USDA and
USDI 1994). The 1994 Northwest Forest
Plan established an Aquatic
Conservation Strategy (ACS) with
protective measures, standards and
guidelines, and land allocations to
maintain and restore at-risk fish species,
including bull trout. The ACS Riparian
Reserve land allocation extends a
minimum of 300 feet (91.4 meters) on
both sides of all fish-bearing streams
and prohibits scheduled timber harvest.
These plans, along with the Omnibus
Public Land Management Act of 2009
(Pub. L. 111–11) that established several
new wilderness areas in the upper
Clackamas River watershed, provide
substantial protections for watersheds
and aquatic habitats on USFS- and
BLM-administered public lands in the
upper subbasin. No additional changes
or protections regarding forest
management activities on public or nonpublic forest lands are necessary to
support a successful reintroduction of
bull trout in the Clackamas River
subbasin (Shively et al. 2007, Ch. 1, pp.
124–125).
When the NMFS listed salmon and
steelhead in the Clackamas River as
threatened under the Act (64 FR 14308,
March 24, 1999; 70 FR 37160, June 28,
2005; 71 FR 834, January 5, 2006),
fisheries management practices for the
portion of the Clackamas River subbasin
upstream of North Fork Reservoir
changed substantially. For example,
stocking of catchable rainbow trout
within the Clackamas River has been
discontinued altogether along the
mainstem and tributaries upstream of
North Fork Reservoir, and current sport
fishing regulations now require catch
and release of all native trout caught in
the Clackamas River subbasin.
Additionally, angling is restricted to the
use of artificial flies and lures upstream
of North Fork Reservoir. All waters in
the Willamette Zone for the State of
Oregon’s sport fishing regulations are
closed to angling for bull trout.
Beginning in 2003, ODFW eliminated
the stocking of nonnative brook trout in
lakes with outlets to streams in the
upper Clackamas River subbasin that
provide suitable bull trout spawning
and rearing habitat. With these
significant changes in angling
regulations and stocking of nonnative
brook trout, no additional changes to
angling regulations and stocking in the
upper portion of the subbasin are
necessary to support a successful
reintroduction of bull trout (Shively et
al. 2007, Ch. 1, pp. 24).
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Donor Stock Assessment and Effects on
Donor Populations
A donor stock should be composed of
fish that most closely resemble the bull
trout that historically inhabited the
Clackamas River (e.g., genotype,
phenotype, behavior, and life-history
expression). However, because little is
known about the biology and
evolutionary history of bull trout that
historically occupied the Clackamas
River, and no genetic material is
available for analysis, the CRBTWG was
limited to an assessment of biological
information from other local
populations, existing studies of the
evolution and biogeography of bull
trout, information derived from
historical harvest data from the
Clackamas River, and recent regional
bull trout genetic analyses.
By exploring issues associated with
life-history strategy, metapopulation
dynamics, biogeography, and genetic
considerations, the CRBTWG identified
bull trout populations in the ‘‘coastal’’
lineage as the best source for a donor
population (see Biological Information
above). Any of the ‘‘coastal’’ lineage bull
trout populations are likely to carry the
genetic material to preserve and protect
the ‘‘coastal’’ lineage regardless of
localized and specific adaptations.
Although these local adaptations are
important, each of the populations is
likely to contain the evolutionary
potential that is characteristic of the
‘‘coastal’’ evolutionary lineage.
However, in a further refinement, the
CRBTWG determined that donor
populations from lower Columbia River
tributaries would be most appropriate
due to their geographic proximity to the
historical bull trout population in the
Clackamas River. The potential lower
Columbia River donor populations of
bull trout include fish in five river
basins: The Willamette River, Hood
River, Lewis River, Deschutes River, and
Klickitat River basins (Shively et al.
2007, Ch. 3, pp. 8–14).
Specific benchmarks have been
developed concerning the minimum
bull trout population size necessary to
maintain genetic variation important for
short-term fitness and long-term
evolutionary potential. Rieman and
Allendorf (2001, pp. 762) concluded
that an average of 100 spawning adults
each year is required to minimize risks
of inbreeding in a bull trout population
and that 1,000 spawning adults each
year will likely prevent loss of genetic
diversity due to genetic drift. This latter
value of 1,000 spawning adults may also
be reached with a collection of local
populations among which gene flow
occurs. The CRBTWG utilized these
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general benchmarks in the Feasibility
Assessment to assess potential risk to
each of the five potential donor stocks
in the lower Columbia River from the
loss of individuals, recognizing that risk
increases as donor populations near 100
spawning adults and diminishes as
populations approach 1,000 spawning
adults (Shively et al. 2007, Ch. 3, pp. 8–
14).
When the Feasibility Assessment was
developed in December 2007, bull trout
from two of the above five river basins,
the Lewis River and Deschutes River,
contained groups of interacting local
populations that exceeded 1,000
spawning adults. For the Lewis River
basin, this total included the combined
Pine Creek and Rush Creek populations
that occur above Swift Dam. For the
Deschutes River basin, it included the
three interacting populations present in
the Metolius River subbasin. Since
2007, adult bull trout abundance in the
Lewis River has declined, with the
current number of annual spawners
estimated to be approximately 536
adults (Byrne 2010, pers. comm.). The
Metolius River bull trout population has
also declined but has still maintained a
spawning population size greater than
1,000 adults, which is sufficiently large
enough to protect against the loss of
genetic diversity from genetic drift
(Rieman and Allendorf 2001, p. 762).
The Metolius River population of bull
trout comprised an estimated 1,458
spawning adults in 2010 (Ratliff 2010,
pers. comm.). Given the long-term
stability and size of the Metolius River
bull trout population, the Service has
determined this population to be at very
low risk of impact from loss of
individuals from contribution as donor
stock, and the least ‘‘at risk’’ of the
potential donor stocks that were
considered.
This final action allows for the direct
transfer of wild bull trout adults,
subadults, juveniles, fry, and fertilized
eggs from the Metolius River subbasin to
the Clackamas River. The numbers and
life stages of fish transferred each year
will be linked strongly to the annual
population size of the donor stock, as
well as to information derived from
monitoring the success of the various
life stages in the NEP over the initial
few years of the project. Details
regarding the implementation strategy
such as release sites and timing, annual
stocking numbers, disease screening,
and monitoring and evaluation are
contained in the Implementation,
Monitoring, and Evaluation Plan, which
is appended to our final EA, and can be
obtained: (1) In person at the Oregon
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT) and (2)
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online at https://www.regulations.gov or
https://www.fws.gov/oregonfwo/Species/
Data/BullTrout/
ReintroductionProject.asp.
Management Considerations and
Protective Measures
We conclude that the effects of
Federal, State, or private actions and
activities will not pose a substantial
threat to bull trout establishment and
persistence in the Clackamas River
subbasin, because most activities
currently occurring in the NEP area are
compatible with bull trout recovery and
there is no information to suggest that
future activities would be incompatible
with bull trout recovery. Most of the
area containing suitable release sites
with high potential for bull trout
establishment is managed by the USFS
and is protected from major
development activities and timber
harvest through the following
mechanisms:
(1) Forty-seven miles (76 kilometers)
of the Clackamas River, from its
headwaters to the Big Cliff area just
upstream of North Fork Reservoir, was
designated in 1988 as part of the Federal
Wild and Scenic Rivers System (USFS
1993, p. 14).
(2) The State of Oregon designated 82
miles (132 kilometers) of the Clackamas
River and its tributaries as part of the
Oregon Scenic Waterway Program in
1989 (ORS 390.826).
(3) The 1994 Northwest Forest Plan
established protective measures,
standards and guidelines, and land
allocations to maintain and restore atrisk fish species, including bull trout.
(4) NMFS’ listings of salmon and
steelhead under the Act caused fisheries
management practices (i.e., sport fishing
regulations and stocking of catchable
rainbow trout) in the Clackamas River
subbasin to become significantly more
restrictive.
(5) The Federal Omnibus Public Land
Management Act of 2009 (Pub. L. 111–
11) designated two new wilderness
units in the upper Clackamas River
watershed, at Sisi Butte (3,245 acres)
and at Big Bottom (1,264 acres), and also
designated the Big Bottom Protection
Area (1,581 acres) as a special
management unit adjacent to the Big
Bottom Wilderness unit.
The Service recognizes that the
provisions of PGE’s Clackamas
Settlement Agreement do not reflect the
reintroduced presence of bull trout in
the Clackamas River subbasin. However,
no additional changes or protections
regarding PGE’s operation of the
Clackamas River Hydroelectric Project
are necessary to support a successful
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reintroduction of bull trout to the
Clackamas River subbasin.
The Service, ODFW, and the USFS, in
cooperation with members of the
CRBTWG, will implement and manage
the reintroduction of bull trout. In
addition, these agencies will carefully
collaborate on collection and
transportation of donor stock, releases,
monitoring and evaluation, coordination
with landowners and land managers,
public awareness, and other tasks
necessary to ensure successful
reintroduction of the species. A few
specific management considerations
related to the experimental population
are addressed below.
Incidental Take: Experimental
population special rules contain specific
prohibitions and exceptions regarding
the taking of individual animals. These
special rules are compatible with
routine human activities in the expected
reestablishment area. Section 3(19) of
the Act defines ‘‘take’’ as ‘‘to harass,
harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to
engage in any such conduct.’’ Take of
bull trout within the experimental
population area will 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 the
Service. We expect levels of incidental
take to be low because the
reintroduction is compatible with
existing activities and practices in the
area. As recreational fishing for species
other than bull trout is popular within
the NEP area, we expect some incidental
take of bull trout from this activity but,
as long as it is in compliance with
ODFW fishing regulations and Tribal
regulations on land managed by the
Confederated Tribes of the Warm
Springs Reservation of Oregon
(CTWSRO), such take will not be a
violation of the Act.
Special Handling: Service and ODFW
employees and authorized agents acting
on their behalf may handle bull trout for
scientific purposes; to relocate bull trout
to avoid conflict with human activities,
for recovery purposes; to relocate bull
trout to other release sites in the
Clackamas River, to aid sick or injured
bull trout; and to salvage dead bull
trout. However, non-Service or other
non-authorized personnel will need to
acquire permits from the Service and
ODFW for these activities. USFS
personnel, the primary land managers in
the reestablishment area, will be
permitted to handle reintroduced bull
trout through a modification of their
existing section 10(a)(1)(A) recovery
permit.
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Coordination with Land Owners and
Land Managers: The NEP reintroduction
has been discussed with potentially
affected State agencies, Tribal entities,
local governments, businesses, and
landowners within the expected
reestablishment area. The land along the
expected reestablishment area is owned
mainly by USFS although a small
portion located in North Fork Reservoir
is owned by PGE. Nothing in this rule
requires any additional changes,
protections, or mitigation or
enhancement measures for bull trout
with respect to PGE’s operation of
Project 2195 (Clackamas River
Hydroelectric Project) pursuant to the
Settlement Agreement or the new
license for the Project; nor does any
provision of this rule amend or modify
the Settlement Agreement or require
that any plan pursuant to the Settlement
Agreement be modified to address the
presence of bull trout.
Public Awareness and Cooperation:
During October and November 2008, in
cooperation with ODFW and USFS, we
conducted several NEPA scoping
meetings on this action. We notified a
comprehensive list of stakeholders of
the meetings including affected Federal
and State agencies, Tribal entities, local
governments, landowners, nonprofit
organizations (environmental and
recreational), and other interested
parties. The comments we received are
listed in the final EA, were included in
the formulation of alternatives
considered in the NEPA process, and
were considered in this final rule
designating an NEP for reintroduced
bull trout.
Potential impacts to other Federally
listed fish species: Stakeholders
expressed concern during development
of the proposed rule and this final rule
that predation and competition from
reintroduced bull trout may negatively
impact Federally listed anadromous
salmonids, particularly juvenile life
stages of steelhead trout, coho salmon,
and Chinook salmon in the Clackamas
River above North Fork Dam. Although
our analysis suggests the risk to
anadromous salmonids from this action
is low, we acknowledge the uncertainty
and sensitivity around this issue. We
believe it is important to assess
uncertainty using appropriate tools and
methods and then take steps necessary
to reduce that uncertainty to an
acceptable level while recognizing that
it cannot be eliminated entirely.
In the development of this action, we
have addressed concerns over predation
and competition to listed anadromous
salmonids by sponsoring an expert
science panel workshop specifically to
assess the potential impacts of a
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Clackamas River bull trout
reintroduction on listed anadromous
salmonids (Marcot et al. 2008). Based on
stakeholder input, we modified our
initial proposed action to reduce the
number and maximum sizes of older life
stages of bull trout for transfer, and we
committed to tagging all fish transferred,
including radio-tagging all older life
stages the first 2 years of project
implementation in part to monitor
abundance, behavior and distribution.
In addition, we funded, together with
the USFS and PGE, a baseline food Web
investigation in the upper Clackamas
River subbasin in order to establish a
baseline for future monitoring of food
Web effects, particularly on salmon and
steelhead, following the bull trout
reintroduction (Lowery and Beauchamp
2010). We have also met numerous
times during development of this final
rule with our project partners and
stakeholders to discuss monitoring
actions that could be incorporated into
the reintroduction program to reduce
uncertainty and concern over impacts to
listed anadromous salmonids.
Adaptive management will guide how
this project is implemented on an
annual basis. The primary tool to
accomplish adaptive management is
monitoring and evaluation. The
monitoring of impacts to salmon and
steelhead will provide valuable
information that will inform how the
project is implemented in future years
including numbers, life stages, and
release locations of bull trout, as well as
the disposition of individual fish should
they be documented or observed staging
near, within, or immediately below fish
bypass systems where juvenile
salmonids may be particularly
vulnerable to predation.
An adaptive approach provides
flexibility to act in the face of
uncertainty, is learning based, and
specifies what actions are to be taken
and when. Consistent with this
approach, we developed, in
consultation and coordination with
NMFS, the State of Oregon, and other
project partners, a Stepwise Impact
Reduction Plan (SIRP), to facilitate
management decisions associated with
potential impacts from the bull trout
reintroduction on listed anadromous
salmonids.
The purpose of the SIRP, which is
described in more detail in the EA, is to
outline a sequence of management
actions that will be taken to minimize
impacts to salmon and steelhead from
the reintroduction of bull trout in the
Clackamas River, if specific bull trout
and/or anadromous salmonid thresholds
are triggered. Management actions
implemented under the SIRP, and the
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frequency of those actions, will be
informed by: (1) The reintroduction
project’s monitoring and evaluation
program, jointly implemented by the
Service, ODFW, and USFS; and (2) the
conservation status of the listed
Clackamas River anadromous salmonid
populations.
While we believe the SIRP will
provide much of the guidance necessary
to address potential impacts to salmon
and steelhead from the reintroduction
project, we acknowledge our inability to
predict all likely impact scenarios and
appropriate management responses. To
that end, we anticipate the SIRP will be
modified as necessary, in consultation
and coordination with NMFS, the State
of Oregon, and other project partners,
consistent with the overall adaptive
management of the project.
Our analysis (USFWS 2010, pp. 109–
131) indicated a low likelihood for
population-level impacts to Federally
listed salmon and steelhead
populations. However if the Service
determines, in consultation and
coordination with the State of Oregon,
NMFS and other project partners, and
based on project monitoring and
evaluation, that the reintroduction
efforts are not consistent with the
recovery of salmon or steelhead, the
reintroduction program will be
discontinued and bull trout will be
removed from the experimental
population area. The Service initiated
formal consultation with NMFS
pursuant to section 7(a)(2) of the Act in
December 2010 (USFWS 2010) and will
ensure section 7(a)(2) compliance prior
to releasing bull trout into the
Clackamas River.
Adaptive Management: A key
component of our proposed action is the
adaptive management of the bull trout
reintroduction project, ranging from the
annual numbers, life stages, and
collection methods of the donor stock,
to the locations and timing of
translocations (implementation
strategy), and finally the management of
bull trout in the Clackamas River
relative to their potential impact on
threatened salmon and steelhead. Our
goal with this approach is to implement
the project most effectively, while
assuring no harm to the donor stock and
limiting negative impacts to other listed
species in the Clackamas River
subbasin.
The adaptive management of the bull
trout reintroduction project will be
based in part on guidance provided in
the Department of the Interior’s
technical guide to adaptive management
(USDI 2009). The guidance defines
adaptive management as a decision
process that promotes flexible
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decisionmaking that can be adjusted in
the face of uncertainties as outcomes
from management actions and other
events become better understood.
Careful monitoring of these outcomes
both advances scientific understanding
and helps adjust policies or operations
as part of an iterative learning process.
Adaptive management also recognizes
the importance of natural variability in
contributing to ecological resilience and
productivity. It is not a ‘‘trial and error’’
process, but rather emphasizes learning
while doing. Adaptive management
does not represent an end in itself, but
rather is a means to more effective
decisions and enhanced benefits. Its
true measure is in how well it helps
meet environmental, social, and
economic goals, increases scientific
knowledge, and reduces tensions among
stakeholders (USDI 2009).
Monitoring and evaluation will
inform the adaptive management of this
project, including the appropriate
management of this experimental
population of bull trout both during the
period they are being reintroduced and
post-project if we are successful in
reestablishing a self-sustaining
population in the Clackamas River.
Monitoring and Evaluation
Acknowledging the limited
availability of information on fish
introductions and reintroductions
(Seddon et al. 2007, p. 305), the Service
and our project partners adopted a goal
early in project development to
document, learn about, and report on all
the major phases of the project
beginning with our feasibility
assessment (Shively et al. 2007;
Dunham and Gallo 2008) and extending
through project planning, development,
and implementation. One of the most
critical aspects of this goal is to
document the effectiveness of the
reintroduction by evaluating
components of the implementation
strategy, including the utilization of
habitats chosen for release of
individuals, the numbers and life stages
of donor stock, the genetic health of the
recipient population, documentation of
reproduction and recruitment, and
ultimately the establishment of a selfsustaining bull trout population.
In order to document and adaptively
manage the project, a robust monitoring
and evaluation program is necessary.
Along with other project
documentation, we expect information
gained from the monitoring and
evaluation program will contribute
significantly to other fish
reintroductions, and specifically bull
trout recovery projects that we
anticipate will occur across the species’
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range consistent with recovery guidance
for the species (USFWS 2002, Ch. 1).
The monitoring and evaluation program,
detailed in the Implementation,
Monitoring, and Evaluation Plan
appended to the final EA, has three
major goals: (1) Monitor and evaluate
bull trout reintroduction effectiveness,
(2) monitor and evaluate donor
population status, and (3) monitor and
evaluate impacts to listed anadromous
salmonids. These three major
components are summarized below:
Reintroduction Effectiveness
Monitoring: The objectives of the
effectiveness monitoring program for
phase 1 of the project (2011–2017) are
to assess: (1) Distribution and
movement, (2) relative survival of
translocated bull trout by monitoring
presence and absence, (3) occurrence of
spawning and reproduction, and (4)
genetic health (as measured against the
donor population). Successful
reproduction in phase one of the project
(2011–2017) would logically result in
the incorporation of a monitoring
component directed at assessing the
distribution, movement, growth, and
survival of the initial cohorts of
naturally produced bull trout.
Monitoring activities in phase 2 (2018–
2024) and phase 3 (2025–2030) will be
informed by phase 1 monitoring and
evaluation. Effectiveness monitoring of
the project will be conducted jointly by
the Service and ODFW, with assistance
from the USFS and potentially U.S.
Geological Survey (USGS) and the
University of Washington.
Donor Population Monitoring: We
intend to monitor donor stock status
annually to determine if the population
is free of pathogens of concern, and to
ensure the population maintains a
minimum threshold of spawning adults
to contribute as a donor stock to the
Clackamas River bull trout
reintroduction project. Bull trout in the
Metolius River are monitored primarily
by annual full census redd counts.
These counts are conducted by ODFW,
CTWSRO, USFS, PGE, and Service staff.
In addition to the genetic monitoring of
the recipient bull trout population in
the Clackamas River subbasin, we will
also replicate the Metolius River bull
trout genetic health assessment (DeHaan
et al. 2008) on the donor stock at an
appropriate interval to ensure the loss of
individuals via contribution toward the
Clackamas River reintroduction is not
impacting the genetic health of the
Metolius River donor stock.
Monitoring Impacts to Anadromous
Salmonids: The monitoring of potential
impacts to juvenile anadromous
salmonids will generally focus on PGE’s
Clackamas Hydroelectric Project area.
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Juvenile salmonids utilize project
reservoirs, especially North Fork
Reservoir, for rearing. Fish collection
facilities that aid downstream migration
of salmon and steelhead juveniles
necessarily concentrate the fish,
increasing their vulnerability to
predation and the potential for them to
avoid collection facilities due to the
presence of a predator. These areas of
increased vulnerability for anadromous
juveniles are also areas where we expect
to be better able to detect a behavioral
response caused by bull trout, relative to
areas upstream of North Fork Reservoir
or in the lower Clackamas River below
River Mill Dam. We developed this
monitoring component with the intent
of reducing uncertainty and informing
future management decisions associated
with the bull trout reintroduction
program.
In order to assess impacts to listed
anadromous salmonids we propose to:
(1) Determine if adult and subadult bull
trout occupy areas within the PGE
hydroelectric project during periods in
which they could consume particularly
high numbers of rearing or migrating
juvenile salmon and steelhead; (2) if so,
determine if survival rates are affected
for listed anadromous salmonid
juveniles rearing in, or moving through
the PGE hydroelectric project area; and
(3) determine the degree to which bull
trout are responsible for such impacts
by using field data, bioenergetics, and
life-cycle modeling. Monitoring of
impacts to anadromous salmonids will
be conducted by the Service and ODFW,
with possible assistance from USGS,
PGE, University of Washington, and the
National Oceanic and Atmospheric
Administration’s Northwest Fisheries
Science Center (NOAA–NWFSC).
Summary of Comments and Responses
We requested written comments from
the public on the proposed rule and
draft EA published on December 9, 2009
(74 FR 65045). We also contacted the
appropriate Federal, State, and local
agencies; Tribes; scientific
organizations; and other interested
parties and invited them to comment on
the proposed rule. The comment period
was open from December 9, 2009, to
February 10, 2010.
We reviewed all comments received
for substantive issues and new
information regarding the proposed
NEP. Substantive comments received
during the comment period have either
been addressed below or incorporated
directly into this final rule.
We received comments from eight
parties, including comments from
natural resource management agencies,
not-for-profit organizations, and private
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entities. All commenters specifically
expressed support for the
reestablishment of the bull trout in the
Clackamas River although three of the
eight commenters expressed concerns
regarding potential impacts to Federally
threatened salmon and steelhead
present in the Clackamas River.
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Public Comments
(1) Comment: Several commenters
suggested reintroduction of bull trout to
the Clackamas River under section 10(j)
of the Act may not provide ample
protection to ensure the long-term
viability of the population, and
encouraged the Service to reintroduce
bull trout to the Clackamas River under
full protections of the Act, along with
designated critical habitat.
Our Response: Any population
determined by the Secretary to be an
experimental population will be treated
as if it were listed as a threatened
species for purposes of establishing
protective regulations with respect to
that population pursuant to section 4(d)
of the Act. The protective regulations
adopted for an experimental population
will contain applicable prohibitions, as
appropriate, and exceptions for that
population. In addition, before
authorizing the release of an
experimental population (including
eggs, propagules, or individuals) of an
endangered or threatened species, the
Service must consider the extent to
which the introduced population may
be affected by existing and anticipated
Federal or State actions or private
activities within or adjacent to the
experimental population area.
We have assessed existing or
anticipated Federal or State actions and
private activities within or adjacent to
the experimental population area and,
along with the applicable prohibitions
in this final rule, we have determined
these actions to be compatible with, and
protective of, a reestablished population
of bull trout in the Clackamas River. We
believe, based on this assessment, that
the protective regulations adopted by
this rule are appropriate and provide
adequate protections for a reintroduced
population of bull trout.
Lastly, under 50 CFR 17.81(f), the
Secretary may designate critical habitat
as defined in section 3(5)(A) of the Act
for an essential experimental population
but not for a nonessential population.
(2) Comment: One commenter
suggested reintroductions of bull trout
to historical habitat are essential for the
continued survival of the species, and
thus encouraged the Service to
designate the experimental population
in the Clackamas River as an ‘‘essential’’
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population under the Act, rather than a
‘‘nonessential’’ population.
Our Response: We have determined
that restoring bull trout to the
Clackamas River is not essential to the
continued existence of the species. We
maintain that releasing bull trout under
the section 10(j) NEP provision of the
Act is the most appropriate way to
achieve conservation for this species in
the Clackamas River and that this action
is consistent with the purposes of the
Act.
(3) Comment: One commenter
suggested that the Service should
consider removing the ‘‘experimental
nonessential’’ designation under section
10(j) of the Act if the bull trout
reintroduction project is successful.
Our Response: Our intent is for the
section10(j) rule to remain in place until
the status of the species improves to a
point where listing is no longer
necessary. Section 10(j) of the Act does
not give us the authority to
‘‘permanently’’ declare an NEP.
However, we have made it clear that it
is not our intention to change this
designation until the species meets the
requirements for delisting, and we
currently do not anticipate that any
circumstances would warrant changing
this designation. The proposed rule and
this final rule contain language on this
subject found in 50 CFR 17.85(a)(1)(iii),
specifically: ‘‘We do not intend to
change the NEP designations to
‘essential experimental,’ ‘threatened,’ or
‘endangered’ within the NEP area.
Additionally we will not designate
critical habitat for the NEP, as provided
by 16 U.S.C. 539(j)(2)(C)(ii).’’
(4) Comment: Several commenters
noted the lack of quantitative
information on the distribution,
abundance, and diversity of the native
fish community in the upper Clackamas
River and suggested the Service conduct
an assessment prior to implementing the
bull trout reintroduction project to
affirm the sufficiency of a prey base to
support the reestablishment of a viable
bull trout population.
Our Response: We agree there is
limited quantitative information on the
native fish community in the upper
Clackamas River. However, upper
Clackamas River baseline foodweb
surveys that were conducted in
association with the action considered
in this final rule (Lowery and
Beauchamp 2010), along with an
abundance of qualitative information
collected by the USFS and State of
Oregon (Shively et al. 2007, Appendix
F, p. 24), confirm the full complement
of native species (except for bull trout)
in the upper Clackamas River. There is
no evidence to suggest the upper
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Clackamas River forage base would not
compare favorably with the abundance,
distribution, and diversity of native
fishes found in other major subbasins in
the lower Columbia River that support
viable populations of bull trout,
including the McKenzie, Lewis, and
Deschutes rivers. Although historical
reductions in the anadromous forage
base in the Clackamas River may have
negatively impacted the historical bull
trout population, as noted above in
Biological Information, the primary
factors leading to the extirpation of bull
trout in the Clackamas River were
migration barriers from hydroelectric
and diversion dams, direct and
incidental harvest in sport and
commercial fisheries, targeted
eradication through bounty fisheries
(currently known as ‘‘sport reward’’
programs), and habitat and water quality
degradation from forest management
and agricultural activities not in
accordance with best management
practices (Shively et al. 2007, Ch. 1, pp.
18–22).
(5) Comment: In order to minimize
and offset potential impacts to
anadromous salmon and steelhead from
bull trout predation and competition,
one commenter suggested initiating
habitat improvement actions such as
adding refuge cover and distributing
excess hatchery salmon and steelhead
carcasses into the upper Clackamas
River to increase marine-derived
nutrients and stream productivity.
Our Response: Although we do not
anticipate significant impacts from bull
trout on threatened salmon and
steelhead, if our monitoring program
indicates bull trout are having
population-level impacts, the Service
and our project partners will implement
actions to minimize and offset these
impacts. While these actions may
include habitat restoration projects such
as those recommended, the most
immediate management actions to
reduce impacts will be modification of
the bull trout reintroduction
implementation strategy such as the
numbers, life-stages, and locations of
releases, and removal of individual bull
trout if they are found occupying areas
that artificially concentrate juvenile
salmon and steelhead such as fish
passage facilities associated with the
Clackamas Hydroelectric Project.
(6) Comment: One commenter noted
the presence of nonnative brook trout in
a small portion of the suitable habitat
identified for bull trout reintroduction,
and suggested that they should be
eradicated in order to prevent
hybridization and competition with
reintroduced bull trout.
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Our Response: While we agree that
nonnative brook trout can negatively
affect bull trout through hybridization,
predation, and competition, our
literature review on the subject for the
Clackamas Bull Trout Reintroduction
Feasibility Assessment (Shively et al.
2007, Ch. 4. pp. 1–2) suggests negative
effects are variable across the range
these two species overlap. In some
places, brook trout appear to have a
strong negative impact, whereas in
others there is no apparent impact
(Dunham et al. 2002, pp. 384–385). The
influence of nonnative brook trout on
bull trout may depend in part on local
habitat features. Rich et al. (2003, pp.
1059–1061) examined the influence of
habitat features on the distribution and
co-occurrence of nonnative brook trout
and bull trout. This study suggested that
bull trout and brook trout may partition
themselves naturally based on habitat
type and stream temperature, and that
bull trout may be more susceptible to
brook trout invasion in small, lowgradient streams where brook trout may
have a competitive advantage (Paul and
Post 2001, pp. 424–428). In areas of
clean, cold water with complex habitat,
bull trout may successfully compete
with brook trout (Rieman et al. 2005, pp.
72–76).
Although systematic quantitative
surveys for brook trout have not
occurred in the upper Clackamas River,
stream surveys and biological
inventories by the USFS over the last
several decades provide a reliable
source for documenting observations of
brook trout in particular river segments
and streams (Shively et al. 2007,
Appendix F, p. 24). Brook trout are
present in a small portion of the habitat
identified as suitable for bull trout
reintroduction (less than 10 percent) in
the upper Clackamas River (Shively et
al. 2007, Ch. 4. p. 2). Given their limited
distribution in the upper Clackamas
River, we do not anticipate brook trout
will adversely affect the success of this
reintroduction project. Further, while
we support the goal of eradication of
nonnative species, our assessment of the
feasibility of eradication of brook trout
in the upper Clackamas River suggests
the likelihood of complete eradication is
low and the cost would likely be high.
Consequently, it is unlikely we will
pursue eradication efforts in the
foreseeable future.
(7) Comment: Several commenters
requested that the Federal rulemaking
cause no additional requirements of
Portland General Electric above and
beyond those currently outlined in the
multiparty settlement agreement for
relicensing of the Clackamas
Hydroelectric Project, nor that any
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potential ecological effects from the bull
trout reintroduction project in and of
itself trigger mitigation requirements
outlined in the agreement.
Our Response: Language in the
proposed rule was intended to convey
our position on this issue, consistent
with the request above. This final rule
and the above background discussion in
‘‘Addressing Causes of Extirpation’’
contains additional language in several
sections to clarify our support for this
request. See also our response to
Comment 9 below.
(8) Comment: One commenter
indicated that the Draft Implementation,
Monitoring and Evaluation Plan,
appended to the draft EA, lacked
detailed information and should be
expanded. The same commenter
suggested the monitoring portion of the
draft plan did not provide adequate
information for decisionmaking.
Our Response: While the general
implementation strategy (transfer
numbers, life stages, donor stock,
release locations) has not changed from
that outlined in the proposed rule and
draft EA, the Service and our project
partners have added specificity to the
implementation component of the plan.
Similarly, and based strongly on
comments received on the proposed
rule and draft EA, we developed a
robust monitoring and evaluation
component of the plan to document the
effectiveness of the reintroduction,
assess potential impacts to the bull trout
donor stock in the Metolius River, and
assess potential impacts to threatened
salmon and steelhead. The monitoring
and evaluation program, which will
begin immediately upon initiation of the
project, will feed directly into the
adaptive management of the
reintroduction project. Given the level
of detail that has been added to the
Implementation, Monitoring and
Evaluation Plan since publication of the
proposed rule and draft EA, we are
confident the plan has sufficient detail
to appropriately guide the project and
provide necessary information for
decisionmaking. The monitoring
program is summarized above in the
Monitoring and Evaluation section of
this final rule and is appended to the
final EA as a component of the
Implementation, Monitoring, and
Evaluation Plan. See also our response
to Comment 12 below.
(9) Comment: One commenter
suggested that the draft EA was
insufficient and suggested the action
proposed may warrant the development
of an Environmental Impact Statement
(EIS) due to the possibility of significant
impacts to the Clackamas Hydroelectric
Project settlement agreement and to
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Federally threatened salmon and
steelhead through competition and
predation by bull trout.
Our Response: An EIS is required
only when a project is a major Federal
action with significant impact(s) to the
human environment, or alternatively
where there is substantial controversy
surrounding the potential for significant
impacts to the human environment,
such that the more limited analysis in
an EA to support a ‘‘Finding of No
Significant Impact (FONSI)’’ may not be
appropriate. If an EA fully considers the
potential direct, indirect and cumulative
impacts of the project and that analysis
is sufficient in reaching a FONSI, then
the preparation of an EIS is not
warranted. Our analysis in the EA did
not suggest a likelihood of significant
environmental effects; nor did it
identify substantial controversy
surrounding the potential for significant
impacts to the human environment.
Scoping and public comments
identified concerns with potential
impacts to the Clackamas River
hydroelectric project settlement
agreement, as well as to salmon and
steelhead populations from predation
and competition by bull trout. We have
addressed these concerns by: (1)
Including clarifying language in several
sections of this final rule and the final
EA, (2) modifying components of the
proposed action, and (3) developing a
Stepwise Impact Reduction Plan as part
of our adaptive management program to
reduce risk and uncertainty with regards
to impacts to listed anadromous
salmonids, and to guide management of
a Clackamas River bull trout population
and future implementation of the
project.
As noted elsewhere in this final rule,
the designation of an NEP population of
bull trout in the Clackamas River will
not cause additional requirements of
Portland General Electric above and
beyond those currently outlined in the
multiparty settlement agreement for
relicensing of the Clackamas
Hydroelectric Project, nor will any
potential ecological effects from the bull
trout reintroduction project in and of
itself trigger mitigation requirements
outlined in the agreement. While we
acknowledge some uncertainty around
the interactions between bull trout and
anadromous salmon and steelhead, the
preponderance of information does not
suggest that significant population- level
impacts will occur.
(10) Comment: One commenter
suggested the adaptive management
plan for the action lacked detail and
needed improvement.
Our Response: We agree. As a result
we added substantially to the adaptive
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management plan for the action
considered in this final rule. Most
notably, we incorporated
recommendations provided in the
Department of the Interior’s technical
guidance manual on adaptive
management (USDI 2009), and we
developed a Stepwise Impact Reduction
Plan specifically to assist in
management decisions associated with
potential impacts from the
reintroduction of bull trout on
threatened salmon and steelhead in the
Clackamas River. Recommendations
adopted from the Department of the
Interior’s technical manual on adaptive
management, and the Stepwise Impact
Reduction Plan to address potential
impacts to threatened salmon and
steelhead, are summarized in this final
rule above in Potential impacts to other
Federally listed fish species, and are
presented in more detail in the final EA.
(11) Comment: One commenter
suggested that the Service had not
adequately consulted with the
individual in developing the proposed
rule per the procedural requirements of
experimental population regulations,
and further, that the proposed rule did
not represent the required agreement
between the Service and affected State
and Federal agencies, and persons
holding any interest in land that may be
affected by the establishment of an
experimental population.
Our Response: Under 50 CFR
17.81(d), the Service must consult with
appropriate State fish and wildlife
agencies, local governmental entities,
affected Federal agencies, and affected
private landowners in developing and
implementing experimental population
rules. To the maximum extent
practicable, section 10(j) rules represent
an agreement between the Service, the
affected State and Federal agencies, and
persons holding any interest in land that
may be affected by the establishment of
an experimental population.
The language above does not require
the Service to agree on all issues and
concerns, nor are we required to have
full agreement from potentially affected
local, State, Federal, and private
partners prior to finalizing section 10(j)
experimental population rules. In
development of the proposed and final
rule, we coordinated closely with the
appropriate State fish and wildlife
agencies, local governmental entities,
affected Federal agencies, and affected
private landowners, to resolve as many
concerns as possible. In addition, we
assembled management and technical
committees with representation from all
major stakeholders in the
reintroduction, to further ensure we
addressed as many concerns as possible
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prior to finalization of the final rule.
Given these efforts, it is clear that we
have complied with the requirements of
section 10(j) of the Act in the
development of the proposed rule and
this final rule. As during the
development of this action, we are
committed to working with project
partners and stakeholders during and
following implementation of the
reintroduction to address concerns that
may arise.
(12) Comment: Several commenters
suggested that the assessment of
potential impacts to threatened salmon
and steelhead from the bull trout
reintroduction was inadequate and
suggested a more thorough risk
assessment prior to implementing the
project.
Our Response: While we disagree that
our pre-project assessment of potential
impacts to threatened salmon and
steelhead was inadequate, we do
recognize the concern for the recovery
of these species in the Clackamas River
and for their respective evolutionarily
significant units/distinct population
segments. In recognition of those
concerns the Service has invested, and
will continue to invest, significant
resources toward assessing potential
impacts from the bull trout
reintroduction on salmon and steelhead
in the Clackamas River.
The expert science panel workshop
(Marcot et al. 2008), the final report of
which was appended to the draft EA,
was conceived and implemented
precisely to investigate the potential
impact of a bull trout reintroduction on
threatened salmon and steelhead in the
Clackamas River. In addition, we
funded, together with our primary
project partners and stakeholders, a preproject baseline food Web investigation
in the upper Clackamas River subbasin
specifically to allow for greater
precision in determining impacts to
salmon and steelhead from bull trout
during and following the reintroduction.
Finally, a large component of our
monitoring and evaluation program is
designed to investigate impacts on
salmon and steelhead.
(13) Comment: One commenter
suggested the draft EA did not
adequately consider the ability and
capacity of the Clackamas River to
support a reintroduced population of
bull trout and as a result, the proposed
reintroduction strategy is overly
aggressive and population goals likely
unattainable. The same commenter
recommended that the Service modify
the implementation strategy to eliminate
the use of older life stages of bull trout
to minimize the chance of exceeding the
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carrying capacity of the Clackamas
River.
Our Response: The draft EA and
proposed rule both summarized the
conclusions of the feasibility assessment
(Shively et al. 2007), which found that
a reintroduction of bull trout to the
Clackamas River is biologically feasible
based in large part on habitat suitability
for spawning and early juvenile rearing,
reduction and elimination of threats that
led to extirpation, and availability of a
suitable donor stock. The amount and
type of suitable habitat, as well as the
available forage base, compares
favorably to other river systems in the
lower Columbia River with extant bull
trout populations, such as the
McKenzie, Lewis, and Deschutes rivers.
The feasibility assessment (Shively et al.
2007), the conclusions of which were
presented in the draft EA, clearly
considered the ability and capacity of
the Clackamas River to support a
reintroduced population of bull trout.
The goal of the project is to
reestablish a self-sustaining bull trout
population of 300–500 spawning adults
in the Clackamas River by 2030 that
contributes to the recovery of bull trout
in the Willamette basin and to overall
recovery criteria outlined in the
Service’s 2002 draft recovery plan
(USFWS 2002, Chapter 1, p. v). For this
project we define a self-sustaining
population as one that maintains a
minimum adult annual spawner
abundance of 100 individuals, contains
a high level of genetic diversity
representative of the donor stock, and
requires little or no additional transfers.
The numerical goal of 300–500 adult
spawners is consistent with 2002 draft
recovery planning targets for bull trout
abundance in the Clackamas River
subbasin. Although the amount of
suitable habitat in the Clackamas River
suggests there is sufficient capacity to
support a population of this size, bull
trout distribution across the species’
range, even within areas of suitable
habitat, is patchy; thus, the true capacity
of the Clackamas River subbasin is
unknown.
The Service and our project partners
view the inclusion of older life stages of
bull trout in the implementation
strategy as an important component of
the project. In addition, we believe that,
given the limited number of these olderaged individuals that will be
transferred, the risk of exceeding the
carrying capacity of the Clackamas River
is extremely low. We chose to use
multiple life stages of bull trout in order
to maximize our likelihood of success
with the reintroduction, and to test
whether older life stages of bull trout
could be successfully moved from one
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major watershed to another to promote
reestablishment of extirpated
populations in a less intensive and more
timely effort than would occur if only
fertilized eggs, fry, or juveniles were
used. However, we acknowledge the
uncertainty regarding whether
translocated subadult and adult bull
trout will adapt to the Clackamas River
and contribute to successful natural
reproduction. In response to this
uncertainty, we plan to intensively
monitor the behavior, distribution,
movement, and reproductive success of
these older life stages over the first 2
years of the project by utilizing passive
integrated transponder tag and radio tag
technology. Continued transfer of older
life stages beyond the second year of the
project would occur only if monitoring
and evaluation indicates the
translocated older life stages are
adapting to the Clackamas River and
contributing to successful natural
reproduction.
(14) Comment: One commenter
expressed concern with potential
predation and competition impacts to
threatened salmon and steelhead in the
Clackamas River from reintroduced bull
trout. In order to facilitate future
management of the reintroduction
project, and if successful, the bull trout
population, the commenter
recommended that the Service work
with the State (Oregon Department of
Fish and Wildlife) and National Marine
Fisheries Service (NMFS) to assess and
define an acceptable level of impact on
salmon and steelhead.
Our Response: We support this
recommendation. This Federal action
requires that we formally consult with
NMFS under section 7 of the Act due to
potential impacts to Federally
threatened salmon and steelhead under
their jurisdiction. The Service initiated
formal consultation with NMFS
pursuant to section 7(a)(2) of the Act in
December 2010 (USFWS 2010) and will
ensure section 7(a)(2) compliance prior
to releasing bull trout into the
Clackamas River. This Federal action
also required an amendment to the
State’s Clackamas River Subbasin Plan
to include the reintroduction of bull
trout (ODFW 2010); this process
required a review of the project by the
State’s Fish and Wildlife Commission,
who voted unanimously in September
2010 to support the action and the plan
amendment. These two actions
acknowledge the formal administrative
role the State of Oregon and NMFS have
had in the review of this Federal action.
And just as importantly, the State of
Oregon and NMFS have had full
representation in the multiyear planning
of this effort through the Clackamas Bull
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Trout Working Group, as well as the
project’s Manager’s Committee and
several technical committees.
The State and NMFS are jointly
developing a formal recovery plan for
the threatened salmon and steelhead in
the lower Columbia River, which
includes the threatened species of
salmon and steelhead found in the
Clackamas River. The current draft
recovery plan, and the information
utilized in development of the draft
plan, does not include information that
would allow the Service to define an
‘‘acceptable level of impact’’ as applied
to recovery planning objectives for
threatened salmon and steelhead. We
expect NMFS may conduct this type of
analysis as part of the section 7
consultation process in response to the
biological assessment we submitted in
December 2010.
Independent of the formal
consultation process with NMFS, we
have initiated discussions with
technical staff from NMFS NW Region
Science Center and the U.S. Geological
Survey (USGS) to investigate the
feasibility and utility of life-cycle and
bioenergetics modeling to better predict
the potential influence of the bull trout
reintroduction project on threatened
salmon and steelhead in the Clackamas
River. We are committed to working
closely with the State of Oregon, NMFS,
and other project partners and
stakeholders during and following
project implementation to assess the
potential impact of the bull trout
reintroduction on threatened salmon
and steelhead in the Clackamas River.
Findings
We followed the procedures required
by the Act, NEPA, and the
Administrative Procedure Act during
this Federal rulemaking process. We
solicited public comment on the
proposed NEP designation. We have
considered all comments received on
the proposed rule and the draft EA
before making this final determination.
Based on the above information, and
using the best scientific and commercial
data available (in accordance with 50
CFR 17.81), we find that releasing bull
trout into the Clackamas River subbasin
will further the conservation of the
species but that this population is not
essential to the continued existence of
the species in the wild.
Effective Date
The Director has determined,
pursuant to 5 U.S.C. 553(d)(3), that the
agency has good cause to make this rule
effective upon publication. The Service
has previously provided an opportunity
for public comment on the rule, and has
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consulted extensively with involved
stakeholders. In addition, the seasonal
window for implementing this
reintroduction project is driven by the
biology of the species. Collection of
donor stock is best accomplished during
the late spring and early summer when
fish are most vulnerable to capture
techniques, and late spring/early
summer outplanting of donor stock is
preferred given that seasonal
productivity of aquatic systems is high
that time of year and donor stock would
be expected to have higher survival than
if outplanted at other times of the year.
In making this final rule effective
immediately upon publication, it
increases the likelihood that the Service
and our primary partners will be able to
successfully implement this project
during the preferred window for
implementation in 2011.
Peer Review
A final draft of the CRBTWG’s
Feasibility Assessment was provided to
the State of Oregon Independent
Multidisciplinary Science Team (IMST)
for peer review. The IMST is an
impartial scientific review panel
charged with advising the State of
Oregon on matters of science related to
fish recovery, water quality
improvements, and enhancing
watershed health. The IMST, appointed
by the Governor, provides independent,
scientific analysis and evaluation of
State actions and policies under the
Oregon Plan for Salmon and Watersheds
(Oregon Plan). The charge of the IMST
is to focus on science, maintain its
independence, operate by consensus,
and report its findings and conclusions
in written reports and reviews.
The Service, along with USFS and
ODFW, presented a summary of the
goals, analyses, and intended use of the
Feasibility Assessment at the IMST’s
October 16, 2006, public meeting. The
IMST received a draft of the Feasibility
Assessment for review on November 28,
2006. The IMST review of the draft
Feasibility Assessment was by an IMST
subcommittee including four scientists.
The subcommittee held a public
meeting on December 13, 2006, to
discuss the Feasibility Assessment and
to prepare a draft review. The draft
review was discussed and unanimously
adopted (one member absent from vote)
at the January 18, 2007, IMST public
meeting. Comments on the draft
Feasibility Assessment were provided to
the Service, USFS, and ODFW on
January 30, 2007. Comments were
subsequently posted on the IMST Web
site: https://www.fsl.orst.edu/imst/, and
addressed in the final Feasibility
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Assessment (Shively et al., 2007,
Appendix F).
The IMST peer review of the science
in the final Feasibility Assessment,
much of which was incorporated into
this final rule, meets our responsibilities
under our policy on peer review,
published on July 1, 1994 (59 FR
34270).
Required Determinations
Regulatory Planning and Review (E.O.
12866)
The Office of Management and Budget
(OMB) has determined that this rule is
not significant under Executive Order
12866 (E.O. 12866). OMB bases its
determination upon the following four
criteria:
(a) Whether the rule will have an
annual effect of $100 million or more on
the economy or adversely affect an
economic sector, productivity, jobs, the
environment, or other units of the
government.
(b) Whether the rule will create
inconsistencies with other Federal
agencies’ actions.
(c) Whether the rule will materially
affect entitlements, grants, user fees,
loan programs, or the rights and
obligations of their recipients.
(d) Whether the rule raises novel legal
or policy issues.
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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. We certify that this rule would
not have a significant economic effect
on a substantial number of small
entities. The following discussion
explains our rationale.
The area affected by this rule includes
the Clackamas River subbasin and the
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mainstem of the Willamette River, from
Willamette Falls to its points of
confluence with the Columbia River,
including Multnomah Channel, in
Oregon. Because NEP designations do
not establish substantial new regulation
of activities, we do not expect this rule
would have any significant effect on
recreational, agricultural, hydropower
generation, or development activities.
Although the entire NEP boundary
encompasses a large area, the section of
the NEP area where we can anticipate
the establishment of an experimental
population of bull trout is mainly public
land owned by the USFS. In addition,
NEPs occurring outside the National
Refuge System or the National Park
System are treated as proposed for
listing under the provisions of section 7
(other than section 7(a)(1)) of the Act. In
these instances, NEPs provide
additional flexibility because Federal
agencies are not required to consult
with us under section 7(a)(2) of the Act.
Section 7(a)(1) of the Act requires
Federal agencies to use their authorities
to further the conservation of listed
species. Section 7(a)(4) of the Act
requires Federal agencies to confer
(rather than consult) with the Service 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 principal activities on private
property near the expected
reestablishment area in the NEP are
agriculture, ranching, hydropower
generation, and recreation. The presence
of bull trout would likely not affect the
use of lands for these purposes because
there would be no new or additional
economic or regulatory restrictions
imposed upon States, non-Federal
entities, or members of the public due
to the presence of bull trout. Therefore,
this rulemaking is not expected to have
any significant adverse impacts to
recreation, agriculture, hydropower
generation, or any development
activities.
Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.):
(1) This rule would not ‘‘significantly
or uniquely’’ affect small governments.
We have determined and certify
pursuant to the Unfunded Mandates
Reform Act, 2 U.S.C. 1502 et seq., that,
if adopted, this rulemaking would not
impose a cost of $100 million or more
in any given year on local or State
governments or private entities. A Small
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35991
Government Agency Plan is not
required. Small governments would not
be affected because the NEP designation
would not place additional
requirements on any city, county, or
other local municipalities.
(2) This rule would not produce a
Federal mandate of $100 million or
greater in any year (i.e., it is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act).
This NEP designation for bull trout
would not impose any additional
management or protection requirements
on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order
12630 (76 FR 6733), this final rule does
not have significant takings
implications. This rule allows for the
take of reintroduced bull trout when
such take is incidental to an otherwise
legal activity, such as recreation (e.g.,
fishing, boating, wading, swimming),
forestry, agriculture, hydroelectric
power generation, and other activities
that are in accordance with Federal,
State, and local laws and regulations.
Therefore, we do not believe that
establishment of this NEP would
conflict with existing or proposed
human activities or hinder public use of
the Clackamas River or its tributaries.
A takings implication assessment is
not required because this rule: (1)
Would not effectively compel a property
owner to suffer a physical invasion of
property, and (2) would not deny any
economically beneficial or productive
use of the land or aquatic resources.
This rule would substantially advance a
legitimate public 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.
Federalism (E.O. 13132)
In accordance with Executive Order
13132 (70 FR 23775), we have
considered whether this final rule has
significant Federalism effects and have
determined that a Federalism
assessment is not required. This rule
would not have substantial direct effects
on the States, on the relationship
between the Federal government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. In keeping
with Department of the Interior policy,
we requested information from and
coordinated development of this final
rule with the affected resource agencies
in Oregon. Achieving the recovery goals
for this species will contribute to its
eventual delisting and return to State
management. No intrusion on State
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policy or administration is expected,
roles or responsibilities of Federal or
State governments would not change,
and fiscal capacity would not be
substantially directly affected. The final
special rule operates to maintain the
existing relationship between the State
and the Federal governments and is
being undertaken in coordination with
the State of Oregon. We have cooperated
with ODFW in the preparation of this
final rule. Therefore, this final rule does
not have significant Federalism effects
or implications to warrant the
preparation of a Federalism Assessment
pursuant to the provisions of Executive
Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order
12988 (February 7, 1996; 61 FR 4729),
the Office of the Solicitor has
determined that this rule would not
unduly burden the judicial system and
meets the requirements of sections (3)(a)
and (3)(b)(2) of the Order.
Paperwork Reduction Act
Office of Management and Budget
(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 final rule does not include
any new collections of information that
require approval by OMB under the
Paperwork Reduction Act.
National Environmental Policy Act
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In compliance with all provisions of
the National Environmental Policy Act
of 1969 (NEPA), we have analyzed the
impact of this rule. Based on this
analysis and information resulting from
public comment on the proposed action,
we determined that this action will not
have significant impacts or effects. We
have prepared a final EA on this action,
which is available for public inspection:
(1) In person at the Oregon Fish and
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Wildlife Office (see FOR FURTHER
INFORMATION CONTACT section) and
Energy Supply, Distribution, or Use
(E.O. 13211)
Government-to-Government
Relationship With Tribes
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This rule is not expected to
significantly affect energy supplies,
distribution, and use. Therefore, this
action is not a significant energy action
and no Statement of Energy Effects is
required.
(2)
online at https://www.regulations.gov or
https://www.fws.gov/oregonfwo/. All
appropriate NEPA documents were
finalized before this rule was finalized.
In accordance with the presidential
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 229511),
Executive Order 13175 (65 FR 67249),
and the Department of the Interior
Manual Chapter 512 DM 2, we have
considered possible effects on Federally
recognized Indian Tribes and have
determined that 2 percent of the acreage
included in the Clackamas River
subbasin, including the upper
Clackamas and Oak Grove Fork
drainage, is within the exterior
boundaries of the reservation of the
Confederated Tribes of the Warm
Springs Reservation (CTWSRO).
Furthermore, donor stock for the
reintroduction will, in part, originate
from a section of the Metolius River
located within the exterior boundary of
the CTWSRO reservation. Since 2007,
the CTWSRO has been an active
participant in the CRBTWG discussions
on bull trout recovery in the Clackamas
River basin. In August 2010, the
CTWSRO Tribal Council passed a
resolution supporting the utilization of
bull trout from the Metolius River
subbasin as donor stock for the
Clackamas River bull trout
reintroduction project. The resolution
requested the Service and project
partners consult with the CTWSRO on
an annual basis regarding utilization of
bull trout for the Clackamas
reintroduction, and further, that annual
schedules for donor stock collection,
including locations, methodologies,
precise numbers to be collected, and
dates of collections, be coordinated with
staff from the CTWSRO Natural
Resources Program. The Service will
continue to consult, on a government-togovernment basis, with the CTWSRO for
the duration of this Federal action.
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References Cited
A complete list of all references cited
in this final rule is available at https://
www.regulations.gov or upon request
from the Oregon Fish and Wildlife
Office (see ADDRESSES).
Author
The primary author of this final rule
is Chris Allen of the Oregon Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we hereby amend part
17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set
forth below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) by revising the
entry for ‘‘Trout, bull’’ under ‘‘FISHES’’
in the List of Endangered and
Threatened Wildlife to read as follows:
■
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
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*
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Species
Vertebrate population where endangered or threatened
Historic range
Common name
Scientific name
*
FISHES
*
*
Trout, bull .................
*
Salvelinus
confluentus.
*
U.S.A. (AK, Pacific
NW into CA, ID,
NV, MT) Canada
(NW Territories).
Trout, bull .................
Salvelinus
confluentus.
U.S.A. (AK, Pacific
NW into CA, ID,
NV, MT) Canada
(NW Territories).
*
*
*
3. Amend § 17.84 by adding a new
paragraph (w) to read as follows:
Special rules—vertebrates.
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*
*
*
*
*
(w) Bull Trout (Salvelinus
confluentus).
(1) Where are populations of this fish
designated as nonessential
experimental populations (NEPs)?
(i) The NEP area for the bull trout is
within the species’ historical range and
is defined as follows: the entire
Clackamas River subbasin as well as the
mainstem Willamette River, from
Willamette Falls to its points of
confluence with the Columbia River,
including Multnomah Channel.
(ii) Bull trout are not currently known
to exist in the Clackamas River subbasin
or the mainstem Willamette River, from
Willamette Falls to its points of
confluence with the Columbia River,
including Multnomah Channel, in
Oregon. Should any bull trout be found
in the Willamette River within the NEP
boundary, the U.S. Fish and Wildlife
Service (Service) will assume the fish to
be part of the reintroduced population,
unless the fish is tagged or otherwise
known to be from another population.
Given the presence of suitable
overwintering and forage habitat in the
upper portion of the Clackamas River, as
well as the geographic distance from
spawning and rearing habitat in the
upper Clackamas River to any
overwintering and foraging habitat in
the lower Clackamas and Willamette
Rivers, we do not expect the
reintroduced fish to become established
outside the NEP. Bull trout found
outside of the NEP boundary, but
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*
XN
Frm 00037
Fmt 4700
Special
rules
*
*
637, 639E,
659, 670
17.95(e)
17.44(w),
17.44(x)
....................
NA
17.84(v)
*
Sfmt 4700
Critical
habitat
*
*
T
known to be part of the NEP, will
assume the status of bull trout within
the geographic area in which they are
found.
(iii) We do not intend to change the
NEP designation to ‘‘essential
experimental,’’ ‘‘threatened,’’ or
‘‘endangered’’ within the NEP area.
Additionally, we will not designate
critical habitat for the NEP, as provided
by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What take is allowed of this
species in the NEP area?
(i) Bull trout may be taken within the
NEP area, provided that such take is:
(A) Not willful, knowing, or due to
negligence.
(B) Incidental to and not the purpose
of carrying out an otherwise lawful
activity, such as recreation (e.g., fishing,
boating, wading, trapping, or
swimming), agriculture, hydroelectric
power generation, and other activities
that are in accordance with Federal,
State, Tribal, and local laws and
regulations.
(C) Consistent with Oregon
Department of Fish and Wildlife
(ODFW) fishing regulations that have
been coordinated with the Service, if
due to fishing.
(D) Incidental to any activities related
to or associated with the operation and
maintenance of the Clackamas River
Hydroelectric Project (FERC Project No.
2195) by Portland General Electric (PGE)
as administered under a license issued
by FERC. Acceptable forms of taking of
bull trout include, but are not limited to,
mortality, stranding, injury,
impingement and entrainment at project
facilities, or delay in up- or downstream
passage associated with or caused by
PO 00000
When listed
*
*
U.S.A., coterminous
(lower 48 states),
except where listed as an experimental population.
Clackamas River
subbasin and the
mainstem Willamette River, from
Willamette Falls to
its points of confluence with the
Columbia River,
including Multnomah Channel.
*
■
§ 17.84
*
Status
*
*
*
any of the following activities. Activities
related to the operation and
maintenance of Project 2195 include,
but are not limited to:
(1) Hydroelectric generation at any
project facility;
(2) Maintenance of project facilities;
(3) Provision of upstream and
downstream fish passage, whether
through fish passage facilities,
powerhouses, bypass facilities, bypass
reaches, or spillways;
(4) Fish handling at fish separation
and counting facilities;
(5) Fish removal from fish passage
facilities and areas critical to
downstream migrant passage testing at
the time of testing (Bull trout removed
for this testing do not need to be
returned to the Clackamas River
subbasin.);
(6) Fish conservation activities;
(7) Fish handling, tagging, and
sampling in connection with FERCapproved studies; and
(8) Approved resource protection,
mitigation, and enhancement measures.
(E) Consistent with the adaptive
management process identified for this
project including:
(1) The targeted relocation or possible
removal of bull trout by the Service or
our project partners, if bull trout are
documented staging at the entrance to,
within, or below, juvenile fish passage
facilities within the Clackamas
Hydroelectric Project; and
(2) Discontinuation of the
reintroduction project and complete
removal of bull trout from the
Clackamas River if the Service
determines, in consultation and
coordination with the State of Oregon,
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NMFS, and other project partners, and
based on project monitoring and
evaluation, that the reintroduction
efforts cannot be carried out in a manner
consistent with the recovery of
threatened salmon and steelhead.
(ii) Any person with a valid permit
issued by the Service under § 17.32 and
a valid State permit issued by ODFW
may take bull trout for educational
purposes, scientific purposes, the
enhancement of propagation or survival
of the species, zoological exhibition,
and other conservation purposes
consistent with the Act.
(3) What take of this species is not
allowed in the NEP area?
(i) Except as expressly allowed in
paragraph (w)(2) of this section, all the
provisions of § 17.31(a) and (b) apply to
the fish identified in paragraph (w)(1) of
this section.
(ii) Any manner of take not described
under paragraph (w)(2) of this section or
Oregon Revised Statute (ORS) 498.002
and Oregon Angling Regulations
pursuant to ORS 498.002 is prohibited
in the NEP area. Should State statutes or
regulations change, take prohibitions
will change accordingly. Any changes to
State recreational fishing regulations
pertaining to the experimental
population of bull trout in the
Clackamas River subbasin will be made
by the State in collaboration with the
Service. We may refer unauthorized take
of this species to ODFW law
enforcement authorities or Service law
enforcement authorities for prosecution.
(iii) A person may not possess, sell,
deliver, carry, transport, ship, import, or
export by any means whatsoever any of
the identified fishes, or parts thereof,
that are taken or possessed in a manner
not expressly allowed in paragraph
(w)(2) of this section, or in violation of
the applicable State fish and wildlife
laws or regulations or the Act.
(iv) A person may not attempt to
commit, solicit another to commit, or
cause to be committed any offense
except the take expressly allowed in
paragraph (w)(2) of this section.
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(4) How will the effectiveness of the
reestablishment be monitored?
(i) Effectiveness monitoring of the
project will be conducted jointly by the
Service and ODFW, with assistance
from the U.S. Forest Service (USFS) and
PGE.
(ii) We will monitor the effectiveness
of the reintroduction during phase 1 of
the project (2011–2017) by annually
assessing: Distribution and movement,
relative survival of translocated bull
trout via presence and absence surveys,
occurrence of spawning and
reproduction, and genetic health, as
measured against the donor population.
These monitoring objectives will be
accomplished by methodologies that
include Passive Integrated Transponder
(PIT) tagging of all fish translocated to
the Clackamas River, radio tagging of
the adult and subadult life stages,
snorkel surveys, redd surveys, and
minnow trapping.
(iii) If successful reproduction of
reintroduced bull trout is detected, we
will incorporate monitoring to assess
the distribution, movement, growth, and
survival of the initial cohorts of
naturally produced bull trout.
(iv) Monitoring activities in phase 2
(2018–2024) and phase 3 (2025–2030)
will be informed by phase 1 monitoring
and evaluation.
(v) Annual reports that summarize the
implementation and monitoring
activities that occurred the previous
year will be collaboratively developed
by the Service, ODFW, and USFS.
(vi) We will evaluate the
implementation strategy annually, and
we will evaluate the reestablishment
effort at the completion of phase 1 to
determine whether to continue
translocation of bull trout in phase 2.
(5) What safeguards are in place to
ensure the protection of Federally listed
salmon and steelhead in the NEP area?
(i) In consultation and coordination
with the National Marine Fisheries
Service (NMFS) and other project
partners, we have developed a plan to
facilitate management decisions
PO 00000
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Fmt 4700
Sfmt 4700
associated with potential impacts from
the bull trout reintroduction on listed
anadromous salmonids. If specific bull
trout and/or anadromous salmonid
thresholds are triggered, we will follow
the planned management actions to
minimize impacts to salmon and
steelhead from the reintroduction of
bull trout in the Clackamas River.
(ii) Our management actions
implemented and the frequency of those
actions, will be informed by:
(A) The reintroduction project’s
monitoring and evaluation program,
jointly implemented by the Service,
ODFW, and USFS; and
(B) The conservation status of the
listed Clackamas River anadromous
salmonid populations.
(iii) Because we cannot predict all
likely impact scenarios and appropriate
management responses, we will modify
our plan as necessary, in consultation
and coordination with NMFS, ODFW,
and other project partners, consistent
with the overall adaptive management
of the project.
(iv) Although our analysis indicates a
low likelihood for population-level
impacts to Federally listed salmon and
steelhead populations, if the Service
determines, in consultation and
coordination with the State of Oregon,
NMFS, and other project partners, and
based on project monitoring and
evaluation, that the reintroduction
efforts are not consistent with the
recovery of salmon or steelhead, the
reintroduction program will be
discontinued and bull trout will be
removed from the experimental
population area.
(v) Prior to releasing bull trout into
the Clackamas River, the Service will
complete any required interagency
cooperation with NMFS pursuant to
section 7(a)(2) of the Act.
(6) Note: Map of the NEP area for bull
trout in Oregon follows:
BILLING CODE 4310–55–P
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[FR Doc. 2011–15370 Filed 6–20–11; 8:45 am]
BILLING CODE 4310–55–C
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
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Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Operation and
Maintenance of the Neptune Liquefied
Natural Gas Facility of Massachusetts;
Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
13:46 Jun 20, 2011
Jkt 223001
NMFS, upon application from
Neptune LNG LLC (Neptune), issued
regulations pursuant to the Marine
Mammal Protection Act (MMPA) to
govern the unintentional taking of
marine mammals, by harassment,
incidental to port commissioning and
operations, including maintenance and
repair activities, at the Neptune
Deepwater Port (the Port) in
Massachusetts Bay for a period of 5
years. The final rule, which published
in the Federal Register on June 13,
2011, contains an incorrect ending date
SUMMARY:
50 CFR Part 217
RIN 0648–AX09
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; correction.
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ER21JN11.026
Dated: June 13, 2011.
Rachel Jacobsen,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
35995
Agencies
[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Rules and Regulations]
[Pages 35979-35995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15370]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2009-0050; 92220-1113-0000-C3]
RIN 1018-AW60
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Bull Trout in the Clackamas
River Subbasin, OR
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), jointly with
the State of Oregon, and in cooperation with the U.S. Forest Service,
Mt. Hood National Forest (USFS), National Marine Fisheries Service
(NMFS), and Confederated Tribes of the Warm Springs Reservation of
Oregon (CTWSRO), will establish a nonessential experimental population
(NEP) of bull trout (Salvelinus confluentus) in the Clackamas River and
its tributaries in Clackamas and Multnomah Counties, Oregon, under
section 10(j) of the Endangered Species Act of 1973, as amended (Act).
The geographic boundaries of the NEP include the entire Clackamas River
subbasin as well as the mainstem Willamette River, from Willamette
Falls to its points of confluence with the Columbia River, including
Multnomah Channel. The best available data indicate that reintroduction
of bull trout to the Clackamas River subbasin is biologically feasible
and will promote the conservation of the species.
DATES: This rule is effective June 21, 2011.
ADDRESSES: This final rule, along with the public comments,
Environmental Assessment (EA), and Finding of No Significant Impact
(FONSI), is available on the Internet at https://www.regulations.gov.
Comments and materials received, as well as supporting documentation
used in the preparation of this final rule, are also available for
inspection, by appointment, during normal business hours, at the U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE.
98th Avenue, Suite 100, Portland, Oregon 97266; (telephone 503-231-
6179).
FOR FURTHER INFORMATION CONTACT: Chris Allen at the address listed
above. If you use a telecommunication device for the deaf (TDD), call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Statutory and Regulatory Framework
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j) which allows for the designation of
reintroduced populations of listed species as ``experimental
populations.'' Under section 10(j) of the Act and our regulations at 50
CFR 17.81, the Service may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable natural habitat outside the species' current
natural range (but within its probable historical range, absent a
finding by the Director of the Service in the extreme case that the
primary habitat of the species has been unsuitably and irreversibly
altered or destroyed).
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find, by
regulation, that such release will further the conservation of the
species. In making such a finding, the Service uses the best scientific
and commercial data available to consider: (1) Any possible adverse
effects on extant populations of a species as a result of removal of
individuals, eggs, or propagules for introduction elsewhere; (2) the
likelihood that any such experimental population will become
established and survive in the foreseeable future; (3) the relative
effects that establishment of an experimental population will have on
the recovery of the species; and (4) the extent to which the introduced
population may be affected by existing or anticipated Federal or State
actions or
[[Page 35980]]
private activities within or adjacent to the experimental population
area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s); (2) a finding, based solely on the best scientific and
commercial data available, and the supporting factual basis, on whether
the experimental population is, or is not, essential to the continued
existence of the species in the wild; (3) management restrictions,
protective measures, or other special management concerns of that
population, which may include but are not limited to, measures to
isolate and/or contain the experimental population designated in the
regulation from natural populations; and (4) a process for periodic
review and evaluation of the success or failure of the release and the
effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate
State fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners in developing and
implementing experimental population rules. To the maximum extent
practicable, section 10(j) rules represent an agreement between the
Service, the affected State and Federal agencies, and persons holding
any interest in land which may be affected by the establishment of an
experimental population.
Under 50 CFR 17.81(f), the Secretary of the Interior (Secretary)
may designate critical habitat as defined in section 3(5)(A) of the Act
for an essential experimental population. In those situations where a
portion or all of an essential experimental population overlaps with a
natural population of the species during certain periods of the year,
no critical habitat will be designated for the area of overlap unless
implemented as a revision to critical habitat of the natural population
for reasons unrelated to the overlap itself. No designation of critical
habitat will be made for nonessential experimental populations.
Any population determined by the Secretary to be an experimental
population will be treated as if it were listed as a threatened species
for purposes of establishing protective regulations with respect to
that population. The protective regulations adopted for an experimental
population will contain applicable prohibitions, as appropriate, and
exceptions for that population.
Any experimental population designated for a listed species (1)
determined not to be essential to the survival of that species and (2)
not occurring within the National Park System or the National Wildlife
Refuge System, will be treated for purposes of section 7 (other than
subsection (a)(1) thereof) as a species proposed to be listed under the
Act as a threatened species.
Any experimental population designated for a listed species that
either (1) has been determined to be essential to the survival of that
species, or (2) occurs within the National Park System or the National
Wildlife Refuge System as now or hereafter constituted, will be treated
for purposes of section 7 of the Act as a threatened species.
Notwithstanding the foregoing, any biological opinion prepared pursuant
to section 7(b) of the Act and any agency determination made pursuant
to section 7(a) of the Act will consider any experimental and
nonexperimental populations to constitute a single listed species for
the purposes of conducting the analyses under such sections.
On December 9, 2009, the Service published: (1) A proposed rule in
the Federal Register to establish a nonessential experimental
population of bull trout in the Clackamas River subbasin, Oregon (74 FR
65045); and (2) a draft environmental assessment (EA) in accordance
with the National Environmental Policy Act of 1969, as amended (NEPA)
(74 FR 65045). This document analyzed the potential environmental
impacts associated with the proposed reintroduction. We contacted
interested parties including Federal and State agencies, local
governments, scientific organizations, interest groups, and private
landowners through a press release and related fact sheets, and e-
mails. In addition, we notified the public and invited comments through
news releases to local media outlets. The public comment period for the
proposed rule and the draft EA closed on February 8, 2010.
Biological Information
The bull trout is a large native char found in the coastal and
intermountain west of North America and is one of five species in the
genus Salvelinus found in the United States (Bond 1992, p. 1). Bull
trout have a slightly forked tail; yellow or cream-colored spots on
their back; yellow, orange, or pink spots on their side; and no black
spots on their dorsal fin. Migratory adults commonly reach 24 inches
(61 centimeters) or more (Goetz 1989, pp. 29-30; Pratt 1992, p. 8). The
largest known specimen weighed 32 pounds (14.5 kilograms) (Simpson and
Wallace 1982, p. 95).
The historical range of bull trout in the coterminous United States
extended from the Canadian border south to the Jarbidge River in
northern Nevada and from the Pacific Ocean inland to the Clark Fork
River in western Montana and the Little Lost River in central Idaho.
Genetic analyses have shown that bull trout in the coterminous United
States are divided into major genetically differentiated (e.g.,
evolutionary) groups or lineages (Spruell et al. 2003, p. 21; Ardren et
al. 2010, In Press, p. 13; Taylor et al. 1999, p. 1162). At a coarse
scale, these assessments have identified the existence of two distinct
lineages: A ``coastal'' lineage and a ``interior'' lineage. The
``coastal'' lineage includes the Deschutes River and all of the
Columbia River drainage downstream (including the Willamette Basin), as
well as coastal streams in Washington, Oregon, and British Columbia.
The ``interior'' lineage includes tributaries of the Columbia River
upstream from the John Day River, including major river basins in
northeastern Oregon, eastern Washington, Idaho, and northwestern
Montana.
In a finer-scale analysis, the Service recently identified
additional genetic units within the coastal and interior lineages
(Ardren et al. 2010, In Press, p. 18). Based on a recommendation in the
Service's 5-year review of the species' status (USFWS 2008, p. 45), the
Service reanalyzed the 27 recovery units identified in the draft bull
trout recovery plan (USFWS 2002) by utilizing, in part, genetic
information from this finer-scale genetic analysis. In this
examination, the Service applied relevant factors from the joint
Service and NMFS Distinct Population Segment (DPS) policy (61 FR 4722;
February 7, 1996) and subsequently identified six draft recovery units
that contain assemblages of core areas that retain genetic and
ecological integrity across the range of bull trout in the coterminous
United States. These six draft recovery units were used to inform
designation of critical habitat for bull trout by providing a context
for deciding what habitats are essential for recovery (75 FR 63898;
October 18, 2010). The six draft recovery units identified for bull
trout in the coterminous United States include: Coastal, Klamath, Mid-
Columbia, Columbia Headwaters, Saint Mary, and Upper Snake.
[[Page 35981]]
Bull trout exhibit both resident and migratory life-history
strategies, although bull trout in the ``coastal'' lineage are largely
migratory. Migratory bull trout spawn in tributary streams where
juvenile fish rear for 1 to 4 years before migrating to either a lake
(adfluvial form), river (fluvial form) (Fraley and Shepard 1989, pp.
138-139; Goetz 1989, p. 24), or saltwater (anadromous form) to rear as
subadults and to live as adults (Cavender 1978, p. 139; McPhail and
Baxter 1996, p. 14; Washington Department of Fish and Wildlife (WDFW)
et al. 1998, p. 2). Bull trout normally reach sexual maturity between
age 4 and 7, and may live longer than 12 years. They are iteroparous
(spawning more than once in a lifetime). Both consecutive-year and
alternate-year spawning have been reported (Fraley and Shepard 1989, p.
135). Preferred habitat consists of cold water, complex cover, stable
channels, loose and clean gravel, and migratory corridors (Fraley and
Shepard 1989, pp. 137-139; Goetz, 1989, pp. 16-25).
The current distribution of bull trout in the lower Columbia River
portion of the ``coastal'' lineage includes populations in the
Deschutes, Hood, Lewis, Klickitat, and upper Willamette rivers.
Throughout much of its historical range, the decline of bull trout 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 bull trout 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 (Beschta et al.
1987, pp. 221-224; Chamberlain et al. 1991, pp. 199-200; Furniss et al.
1991, pp. 297-302; Meehan and Bjornn 1991, pp. 483-517; Nehlsen et al.
1991, p. 16; Craig and Wissmar 1993, p. 18; Frissell 1993, p. 351;
McIntosh et al. 1994, pp. 47-48; Wissmar et al. 1994, p. 28; Montana
Bull Trout Scientific Group (MBTSG) 1995a [p. 14], 1995b [p. 10], 1995c
[p. 13], 1995d [p. 21], 1995e [p. 13], 1996a [p. 12], 1996b [p. 9],
1996c [p. 12], 1996d [p. 11], 1996e [p. 12], 1996f [p. 10]; Light et
al. 1996, pp. 9-11; U.S. Department of Agriculture (USDA) and U.S.
Department of the Interior (USDI) 1995 [pp. 70-71], 1996 [pp. 106-107,
111], 1997 [pp. 132-154]).
The historical distribution of bull trout in the Clackamas River
subbasin likely extended from the lower Clackamas River upstream to
headwater spawning and rearing areas (Shively et al. 2007, Ch. 1, pp.
10-12). It is possible that bull trout from the Clackamas River
migrated to the upper Willamette River above Willamette Falls or to
lower Columbia River tributaries (Zimmerman 1999, p. 17); however, it
is unlikely that bull trout historically occupied habitat upstream of
waterfall barriers known to impede upstream movement of anadromous
salmon and steelhead in the Clackamas River.
The last documented bull trout observation in the Clackamas River
subbasin was in 1963 (Stout 1963, p. 97). Due to geographic distance to
extant bull trout populations in other subbasins, natural
recolonization of the Clackamas River subbasin is extremely unlikely
(USFWS 2002, Ch. 5, p. 9). Extirpation was likely caused by many of the
factors that led to the decline in the species across its range,
including migration barriers from hydroelectric and diversion dams,
direct and incidental harvest in sport and commercial fisheries,
targeted eradication through bounty fisheries (currently known as
``sport reward'' programs), and habitat and water quality degradation
from forest management and agricultural activities not in accordance
with best management practices (Shively et al. 2007, Ch. 1, pp. 18-22).
Relationship of the Experimental Population to Recovery Efforts
On November 1, 1999, we published a final rule to list bull trout
within the coterminous United States as threatened under the Act (64 FR
58910). This final rule served to consolidate the five separate DPS
listings into one listing throughout the species' entire range in the
coterminous United States. We published notices of availability of
draft recovery plans for the Columbia River, Klamath River, and St.
Mary-Belly River segments on November 29, 2002 (67 FR 71439), and the
Coastal Puget Sound and Jarbidge River segments on July 1, 2004 (69 FR
39950 and 69 FR 39951, respectively). We published a revised final rule
on October 18, 2010 (75 FR 63898), designating critical habitat for
bull trout in the coterminous United States. We anticipate publishing a
draft revised recovery plan for bull trout in the coterminous United
States in 2011, and a final recovery plan in 2012. The recovery
objectives from the 2002 draft recovery plan are:
(1) Maintain current distribution of bull trout within core areas
as described in recovery unit chapters and restore distribution where
recommended in recovery unit chapters;
(2) Maintain stable or increasing trend in abundance of bull trout;
(3) Restore and maintain suitable habitat conditions for all bull
trout life-history stages and strategies; and
(4) Conserve genetic diversity and provide opportunity for genetic
exchange.
As noted above in Biological Information, new draft recovery units
were identified in the October 2010 bull trout critical habitat final
rule (75 FR 63898). We anticipate these 6 recovery units will replace
the 27 recovery units previously identified in our 2002 draft recovery
plan (67 FR 71439; November 29, 2002), and that these new units will be
incorporated into the revised draft recovery plan expected to be
published for public review and comment in 2012. The recovery criteria
specific to the 27 recovery units identified in the 2002 draft recovery
plan continue to inform demographic recovery targets at the core area
scale. Therefore, the criteria identified below for what was then
described as the Willamette River Recovery Unit in the 2002 draft
recovery plan (USFWS 2002, Ch. 5 pp. 7-8) are still relevant:
(1) Distribution criteria will be met when bull trout are
distributed among five or more local populations in the recovery unit:
four in the Upper Willamette River core area and one in the Clackamas
River core habitat.
(2) Abundance criteria will be met when an estimated abundance of
adult bull trout is from 900 to 1,500 or more individuals in the
Willamette River Recovery Unit, distributed in each core area as
follows: 600 to 1,000 in the Upper Willamette core area and 300 to 500
in the Clackamas River core habitat.
(3) Trend criteria will be met when adult bull trout exhibit stable
or increasing trends in abundance in the Willamette River Recovery
Unit, based on a minimum of 10 years of monitoring data.
(4) Connectivity criteria will be met when migratory forms are
present in all local populations and when intact migratory corridors
among all local populations in core areas provide opportunity for
genetic exchange and diversity.
Establishment of an experimental population of bull trout in the
Clackamas River will help to achieve distribution in the Clackamas
River core habitat (recovery criterion 1 and
[[Page 35982]]
recovery objective 1) and will increase abundance of adult bull trout
in the Willamette River basin (recovery criterion 2 and recovery
objective 2 from the 2002 draft recovery plan).
Is the experimental population essential or nonessential?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether such a population is essential to
the continued existence of the species in the wild. Although the
experimental population will contribute to the recovery of the bull
trout in the Willamette River basin, it is not essential to the
continued existence of the species in the wild. Bull trout populations
are broadly distributed, occurring in 121 core areas in 5 western
States, and the species' continued existence is dependent upon
conserving a number of interacting populations that are well
distributed throughout its range. Because the donor stock for the
reintroduction will come from a wild population of bull trout, the
reintroduced population will not possess markedly divergent genetic
components or adaptive traits. Furthermore, the Clackamas River is not
a unique or unusual ecological setting or geographical context for bull
trout. Bull trout occur in other portions of the Willamette River basin
and in other nearby tributaries to the Columbia River. Therefore, as
required by 50 CFR 17.81(c)(2), we find that the experimental
population is not essential to the continued existence of the species
in the wild, and we hereby designate the experimental population in the
Clackamas River as a nonessential experimental population (NEP).
Location of the Nonessential Experimental Population
The NEP area includes the entire Clackamas River subbasin as well
as the mainstem Willamette River, from Willamette Falls to its points
of confluence with the Columbia River, including Multnomah Channel. The
Willamette River's confluence with the Columbia River occurs at river
mile (RM) 101, near the City of Portland. A secondary channel of the
Willamette River, named the Multnomah Channel, branches off the
Willamette River approximately 3 river miles (5 river kilometers)
upstream from its confluence with the Columbia River. This secondary
channel runs approximately 20 river miles (32 river kilometers) along
the west side of Sauvie Island before joining the Columbia River at RM
86 near the town of St. Helens. The NEP boundary extends down the
Multnomah Channel to its confluence with the Columbia River, as well as
the mainstem Willamette River, from Willamette Falls to its confluence
with the Columbia River.
Under this final rule, the Service will release bull trout into
areas of suitable spawning and rearing habitat in the Clackamas River
subbasin. The portion of the subbasin currently containing these areas
is limited to the mainstem Clackamas River and its tributaries in the
upper headwaters of the subbasin, upstream of the Collawash River
confluence. This portion of the subbasin, referred to as the upper
Clackamas River subbasin, contains a total of 70.1 river miles (112.8
river kilometers) of suitable spawning and rearing habitat. The amount
and characteristics of habitat in the Clackamas River subbasin compare
favorably to other river systems in the lower Columbia River with
extant bull trout populations (e.g., Lewis, McKenzie, and Deschutes
rivers) (Shively et al. 2007, Ch. 2, p. 40).
Section 10(j) of the Act requires that an experimental population
be geographically separate from wild populations of the same species.
The nearest wild bull trout populations to the Clackamas River are
located in the following tributaries of the lower Columbia River: The
Lewis (RM 84), Hood (RM 165), and Deschutes (RM 200) rivers. Because
fluvial populations of bull trout tend to migrate, individual fish from
these populations may seasonally occupy the mainstem of the lower
Columbia River. Although we have no records of bull trout in the
mainstem Willamette River, given our understanding of bull trout
ecology in other river systems, it is likely that, historically, bull
trout seasonally occupied the mainstem Willamette River. If a
reintroduction of bull trout to the Clackamas River is successful, it
is possible that a small percentage of adult bull trout will migrate
to, and overwinter in, the mainstem Willamette River, between
Willamette Falls and its points of confluence with the Columbia River,
including Multnomah Channel. Should any bull trout be found in the
Willamette River within the NEP boundary, the Service will assume the
fish to be part of the reintroduced population, unless the fish is
tagged or otherwise known to be from another population.
It is unlikely that reintroduced bull trout will migrate outside of
the NEP boundary into the Columbia River or upstream of Willamette
Falls in the Willamette River due to the significant distance to
spawning and rearing habitats in the upper Clackamas River. Bull trout
found outside of the NEP boundary but known to be part of the NEP will
assume the status of bull trout within the geographic area in which
they are found. Although Willamette Falls and the confluence points of
the Willamette and Columbia Rivers are not absolute boundaries, the NEP
is geographically separate from other wild bull trout populations due
to geographic distance.
Likelihood of Population Establishment and Survival
The Service, USFS, State of Oregon (hereafter referred to as either
the State of Oregon or the Oregon Department of Fish and Wildlife
(ODFW)), and other major stakeholders established the Clackamas River
Bull Trout Working Group (CRBTWG) to assess the feasibility of bull
trout reintroductions. In 2007, the CRBTWG completed the Clackamas
River Bull Trout Reintroduction Feasibility Assessment (Feasibility
Assessment), a scientifically rigorous examination of habitat
suitability and projected viability of a reintroduced population
(Shively et al. 2007). The Feasibility Assessment indicates that there
is a reasonable likelihood that reintroduced bull trout will survive
and reestablish in the upper portion of the Clackamas River, from North
Fork Reservoir to the headwaters. Specifically, the CRBTWG concludes:
(1) There is a high level of confidence that bull trout have been
locally extirpated from the Clackamas River subbasin;
(2) The causes for their decline have been sufficiently mitigated;
(3) High-quality habitat is available in sufficient amounts;
(4) Nearby donor stocks are unlikely to naturally recolonize;
(5) Suitable donor stocks are available that can withstand
extraction of individuals;
(6) Nonnative brook trout presence is restricted to a small portion
of the suitable habitat and not a likely threat; and
(7) A diverse and abundant fish assemblage would serve as a
sufficient prey base with no obvious threats posed by bull trout to
these species (Shively et al. 2007, Ch. 5, pp. 3-4).
Based on this assessment, reintroduced bull trout are likely to
become established and persist in the Clackamas River subbasin. Copies
of the Feasibility Assessment can be obtained: (1) Online at https://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp,
(2) at https://www.regulations.gov, or (3) in person, by appointment,
during normal business hours, at the Oregon Fish and Wildlife
[[Page 35983]]
Office (see FOR FURTHER INFORMATION CONTACT).
Addressing Causes of Extirpation
Investigating the causes for decline and extirpation of bull trout
in the Clackamas River is necessary to understand whether the threats
have been sufficiently curtailed such that reintroduction efforts are
likely to be successful. The CRBTWG identified the primary threats to
be hydroelectric dams (passage and screening), forest management (i.e.,
lack of aquatic habitat protection), and fisheries management
(particularly sport fishing upstream of North Fork Dam) (Shively et al.
2007, Ch. 1, pp. 22-23). The changes in threats since extirpation of
bull trout in the Clackamas River subbasin are explained below in more
detail.
Diversion dams that would impede bull trout migration were present
in the late 1800s and early 1900s, but no longer exist in the lower
Clackamas River subbasin. Within bull trout historical habitat in the
Clackamas River subbasin there are three existing dams owned and
operated by Portland General Electric (PGE). Beginning in the late
1990s, PGE began Federal relicensing proceedings for its hydroelectric
dams in the Clackamas River subbasin. In their final license
application to the Federal Energy Regulatory Commission (FERC) and in
an accompanying Settlement Agreement among more than 30 local, State,
Federal, and Tribal governments, nongovernmental organizations, and
other interested stakeholders, PGE proposed to make several upstream
and downstream fish passage improvements for the three dams along the
mainstem Clackamas River. One improvement, which is already completed,
is the reconstruction of the River Mill Dam fish ladder. Other
improvements include upgrades to the downstream fish collection
facility and bypass at North Fork Dam, construction of a new fish trap
and handling facility at the North Fork fishway, and new downstream
fish passage facilities at River Mill Dam (Shively et al. 2007, Ch. 1,
p. 23). No additional changes or protections regarding the operation
and maintenance of the Clackamas River Hydroelectric Project are
necessary to support a successful reintroduction of bull trout in the
Clackamas River subbasin.
The majority of lands in the upper portion of the Clackamas River
subbasin are USFS- and Bureau of Land Management (BLM)-administered
public forest lands. These lands are managed in accordance with the Mt.
Hood National Forest Land and Resource Management Plan (USFS 1990) or
the Salem District BLM Resource Management Plan (USDI 1995),
respectively, as amended by the 1994 Northwest Forest Plan (USDA and
USDI 1994). The 1994 Northwest Forest Plan established an Aquatic
Conservation Strategy (ACS) with protective measures, standards and
guidelines, and land allocations to maintain and restore at-risk fish
species, including bull trout. The ACS Riparian Reserve land allocation
extends a minimum of 300 feet (91.4 meters) on both sides of all fish-
bearing streams and prohibits scheduled timber harvest. These plans,
along with the Omnibus Public Land Management Act of 2009 (Pub. L. 111-
11) that established several new wilderness areas in the upper
Clackamas River watershed, provide substantial protections for
watersheds and aquatic habitats on USFS- and BLM-administered public
lands in the upper subbasin. No additional changes or protections
regarding forest management activities on public or non-public forest
lands are necessary to support a successful reintroduction of bull
trout in the Clackamas River subbasin (Shively et al. 2007, Ch. 1, pp.
124-125).
When the NMFS listed salmon and steelhead in the Clackamas River as
threatened under the Act (64 FR 14308, March 24, 1999; 70 FR 37160,
June 28, 2005; 71 FR 834, January 5, 2006), fisheries management
practices for the portion of the Clackamas River subbasin upstream of
North Fork Reservoir changed substantially. For example, stocking of
catchable rainbow trout within the Clackamas River has been
discontinued altogether along the mainstem and tributaries upstream of
North Fork Reservoir, and current sport fishing regulations now require
catch and release of all native trout caught in the Clackamas River
subbasin. Additionally, angling is restricted to the use of artificial
flies and lures upstream of North Fork Reservoir. All waters in the
Willamette Zone for the State of Oregon's sport fishing regulations are
closed to angling for bull trout. Beginning in 2003, ODFW eliminated
the stocking of nonnative brook trout in lakes with outlets to streams
in the upper Clackamas River subbasin that provide suitable bull trout
spawning and rearing habitat. With these significant changes in angling
regulations and stocking of nonnative brook trout, no additional
changes to angling regulations and stocking in the upper portion of the
subbasin are necessary to support a successful reintroduction of bull
trout (Shively et al. 2007, Ch. 1, pp. 24).
Donor Stock Assessment and Effects on Donor Populations
A donor stock should be composed of fish that most closely resemble
the bull trout that historically inhabited the Clackamas River (e.g.,
genotype, phenotype, behavior, and life-history expression). However,
because little is known about the biology and evolutionary history of
bull trout that historically occupied the Clackamas River, and no
genetic material is available for analysis, the CRBTWG was limited to
an assessment of biological information from other local populations,
existing studies of the evolution and biogeography of bull trout,
information derived from historical harvest data from the Clackamas
River, and recent regional bull trout genetic analyses.
By exploring issues associated with life-history strategy,
metapopulation dynamics, biogeography, and genetic considerations, the
CRBTWG identified bull trout populations in the ``coastal'' lineage as
the best source for a donor population (see Biological Information
above). Any of the ``coastal'' lineage bull trout populations are
likely to carry the genetic material to preserve and protect the
``coastal'' lineage regardless of localized and specific adaptations.
Although these local adaptations are important, each of the populations
is likely to contain the evolutionary potential that is characteristic
of the ``coastal'' evolutionary lineage. However, in a further
refinement, the CRBTWG determined that donor populations from lower
Columbia River tributaries would be most appropriate due to their
geographic proximity to the historical bull trout population in the
Clackamas River. The potential lower Columbia River donor populations
of bull trout include fish in five river basins: The Willamette River,
Hood River, Lewis River, Deschutes River, and Klickitat River basins
(Shively et al. 2007, Ch. 3, pp. 8-14).
Specific benchmarks have been developed concerning the minimum bull
trout population size necessary to maintain genetic variation important
for short-term fitness and long-term evolutionary potential. Rieman and
Allendorf (2001, pp. 762) concluded that an average of 100 spawning
adults each year is required to minimize risks of inbreeding in a bull
trout population and that 1,000 spawning adults each year will likely
prevent loss of genetic diversity due to genetic drift. This latter
value of 1,000 spawning adults may also be reached with a collection of
local populations among which gene flow occurs. The CRBTWG utilized
these
[[Page 35984]]
general benchmarks in the Feasibility Assessment to assess potential
risk to each of the five potential donor stocks in the lower Columbia
River from the loss of individuals, recognizing that risk increases as
donor populations near 100 spawning adults and diminishes as
populations approach 1,000 spawning adults (Shively et al. 2007, Ch. 3,
pp. 8-14).
When the Feasibility Assessment was developed in December 2007,
bull trout from two of the above five river basins, the Lewis River and
Deschutes River, contained groups of interacting local populations that
exceeded 1,000 spawning adults. For the Lewis River basin, this total
included the combined Pine Creek and Rush Creek populations that occur
above Swift Dam. For the Deschutes River basin, it included the three
interacting populations present in the Metolius River subbasin. Since
2007, adult bull trout abundance in the Lewis River has declined, with
the current number of annual spawners estimated to be approximately 536
adults (Byrne 2010, pers. comm.). The Metolius River bull trout
population has also declined but has still maintained a spawning
population size greater than 1,000 adults, which is sufficiently large
enough to protect against the loss of genetic diversity from genetic
drift (Rieman and Allendorf 2001, p. 762). The Metolius River
population of bull trout comprised an estimated 1,458 spawning adults
in 2010 (Ratliff 2010, pers. comm.). Given the long-term stability and
size of the Metolius River bull trout population, the Service has
determined this population to be at very low risk of impact from loss
of individuals from contribution as donor stock, and the least ``at
risk'' of the potential donor stocks that were considered.
This final action allows for the direct transfer of wild bull trout
adults, subadults, juveniles, fry, and fertilized eggs from the
Metolius River subbasin to the Clackamas River. The numbers and life
stages of fish transferred each year will be linked strongly to the
annual population size of the donor stock, as well as to information
derived from monitoring the success of the various life stages in the
NEP over the initial few years of the project. Details regarding the
implementation strategy such as release sites and timing, annual
stocking numbers, disease screening, and monitoring and evaluation are
contained in the Implementation, Monitoring, and Evaluation Plan, which
is appended to our final EA, and can be obtained: (1) In person at the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT)
and (2) online at https://www.regulations.gov or https://www.fws.gov/oregonfwo/Species/Data/BullTrout/ReintroductionProject.asp.
Management Considerations and Protective Measures
We conclude that the effects of Federal, State, or private actions
and activities will not pose a substantial threat to bull trout
establishment and persistence in the Clackamas River subbasin, because
most activities currently occurring in the NEP area are compatible with
bull trout recovery and there is no information to suggest that future
activities would be incompatible with bull trout recovery. Most of the
area containing suitable release sites with high potential for bull
trout establishment is managed by the USFS and is protected from major
development activities and timber harvest through the following
mechanisms:
(1) Forty-seven miles (76 kilometers) of the Clackamas River, from
its headwaters to the Big Cliff area just upstream of North Fork
Reservoir, was designated in 1988 as part of the Federal Wild and
Scenic Rivers System (USFS 1993, p. 14).
(2) The State of Oregon designated 82 miles (132 kilometers) of the
Clackamas River and its tributaries as part of the Oregon Scenic
Waterway Program in 1989 (ORS 390.826).
(3) The 1994 Northwest Forest Plan established protective measures,
standards and guidelines, and land allocations to maintain and restore
at-risk fish species, including bull trout.
(4) NMFS' listings of salmon and steelhead under the Act caused
fisheries management practices (i.e., sport fishing regulations and
stocking of catchable rainbow trout) in the Clackamas River subbasin to
become significantly more restrictive.
(5) The Federal Omnibus Public Land Management Act of 2009 (Pub. L.
111-11) designated two new wilderness units in the upper Clackamas
River watershed, at Sisi Butte (3,245 acres) and at Big Bottom (1,264
acres), and also designated the Big Bottom Protection Area (1,581
acres) as a special management unit adjacent to the Big Bottom
Wilderness unit.
The Service recognizes that the provisions of PGE's Clackamas
Settlement Agreement do not reflect the reintroduced presence of bull
trout in the Clackamas River subbasin. However, no additional changes
or protections regarding PGE's operation of the Clackamas River
Hydroelectric Project are necessary to support a successful
reintroduction of bull trout to the Clackamas River subbasin.
The Service, ODFW, and the USFS, in cooperation with members of the
CRBTWG, will implement and manage the reintroduction of bull trout. In
addition, these agencies will carefully collaborate on collection and
transportation of donor stock, releases, monitoring and evaluation,
coordination with landowners and land managers, public awareness, and
other tasks necessary to ensure successful reintroduction of the
species. A few specific management considerations related to the
experimental population are addressed below.
Incidental Take: Experimental population special rules contain
specific prohibitions and exceptions regarding the taking of individual
animals. These special rules are compatible with routine human
activities in the expected reestablishment area. Section 3(19) of the
Act defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' Take of bull trout within the experimental population area
will 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 the Service. We expect levels of incidental
take to be low because the reintroduction is compatible with existing
activities and practices in the area. As recreational fishing for
species other than bull trout is popular within the NEP area, we expect
some incidental take of bull trout from this activity but, as long as
it is in compliance with ODFW fishing regulations and Tribal
regulations on land managed by the Confederated Tribes of the Warm
Springs Reservation of Oregon (CTWSRO), such take will not be a
violation of the Act.
Special Handling: Service and ODFW employees and authorized agents
acting on their behalf may handle bull trout for scientific purposes;
to relocate bull trout to avoid conflict with human activities, for
recovery purposes; to relocate bull trout to other release sites in the
Clackamas River, to aid sick or injured bull trout; and to salvage dead
bull trout. However, non-Service or other non-authorized personnel will
need to acquire permits from the Service and ODFW for these activities.
USFS personnel, the primary land managers in the reestablishment area,
will be permitted to handle reintroduced bull trout through a
modification of their existing section 10(a)(1)(A) recovery permit.
[[Page 35985]]
Coordination with Land Owners and Land Managers: The NEP
reintroduction has been discussed with potentially affected State
agencies, Tribal entities, local governments, businesses, and
landowners within the expected reestablishment area. The land along the
expected reestablishment area is owned mainly by USFS although a small
portion located in North Fork Reservoir is owned by PGE. Nothing in
this rule requires any additional changes, protections, or mitigation
or enhancement measures for bull trout with respect to PGE's operation
of Project 2195 (Clackamas River Hydroelectric Project) pursuant to the
Settlement Agreement or the new license for the Project; nor does any
provision of this rule amend or modify the Settlement Agreement or
require that any plan pursuant to the Settlement Agreement be modified
to address the presence of bull trout.
Public Awareness and Cooperation: During October and November 2008,
in cooperation with ODFW and USFS, we conducted several NEPA scoping
meetings on this action. We notified a comprehensive list of
stakeholders of the meetings including affected Federal and State
agencies, Tribal entities, local governments, landowners, nonprofit
organizations (environmental and recreational), and other interested
parties. The comments we received are listed in the final EA, were
included in the formulation of alternatives considered in the NEPA
process, and were considered in this final rule designating an NEP for
reintroduced bull trout.
Potential impacts to other Federally listed fish species:
Stakeholders expressed concern during development of the proposed rule
and this final rule that predation and competition from reintroduced
bull trout may negatively impact Federally listed anadromous salmonids,
particularly juvenile life stages of steelhead trout, coho salmon, and
Chinook salmon in the Clackamas River above North Fork Dam. Although
our analysis suggests the risk to anadromous salmonids from this action
is low, we acknowledge the uncertainty and sensitivity around this
issue. We believe it is important to assess uncertainty using
appropriate tools and methods and then take steps necessary to reduce
that uncertainty to an acceptable level while recognizing that it
cannot be eliminated entirely.
In the development of this action, we have addressed concerns over
predation and competition to listed anadromous salmonids by sponsoring
an expert science panel workshop specifically to assess the potential
impacts of a Clackamas River bull trout reintroduction on listed
anadromous salmonids (Marcot et al. 2008). Based on stakeholder input,
we modified our initial proposed action to reduce the number and
maximum sizes of older life stages of bull trout for transfer, and we
committed to tagging all fish transferred, including radio-tagging all
older life stages the first 2 years of project implementation in part
to monitor abundance, behavior and distribution. In addition, we
funded, together with the USFS and PGE, a baseline food Web
investigation in the upper Clackamas River subbasin in order to
establish a baseline for future monitoring of food Web effects,
particularly on salmon and steelhead, following the bull trout
reintroduction (Lowery and Beauchamp 2010). We have also met numerous
times during development of this final rule with our project partners
and stakeholders to discuss monitoring actions that could be
incorporated into the reintroduction program to reduce uncertainty and
concern over impacts to listed anadromous salmonids.
Adaptive management will guide how this project is implemented on
an annual basis. The primary tool to accomplish adaptive management is
monitoring and evaluation. The monitoring of impacts to salmon and
steelhead will provide valuable information that will inform how the
project is implemented in future years including numbers, life stages,
and release locations of bull trout, as well as the disposition of
individual fish should they be documented or observed staging near,
within, or immediately below fish bypass systems where juvenile
salmonids may be particularly vulnerable to predation.
An adaptive approach provides flexibility to act in the face of
uncertainty, is learning based, and specifies what actions are to be
taken and when. Consistent with this approach, we developed, in
consultation and coordination with NMFS, the State of Oregon, and other
project partners, a Stepwise Impact Reduction Plan (SIRP), to
facilitate management decisions associated with potential impacts from
the bull trout reintroduction on listed anadromous salmonids.
The purpose of the SIRP, which is described in more detail in the
EA, is to outline a sequence of management actions that will be taken
to minimize impacts to salmon and steelhead from the reintroduction of
bull trout in the Clackamas River, if specific bull trout and/or
anadromous salmonid thresholds are triggered. Management actions
implemented under the SIRP, and the frequency of those actions, will be
informed by: (1) The reintroduction project's monitoring and evaluation
program, jointly implemented by the Service, ODFW, and USFS; and (2)
the conservation status of the listed Clackamas River anadromous
salmonid populations.
While we believe the SIRP will provide much of the guidance
necessary to address potential impacts to salmon and steelhead from the
reintroduction project, we acknowledge our inability to predict all
likely impact scenarios and appropriate management responses. To that
end, we anticipate the SIRP will be modified as necessary, in
consultation and coordination with NMFS, the State of Oregon, and other
project partners, consistent with the overall adaptive management of
the project.
Our analysis (USFWS 2010, pp. 109-131) indicated a low likelihood
for population-level impacts to Federally listed salmon and steelhead
populations. However if the Service determines, in consultation and
coordination with the State of Oregon, NMFS and other project partners,
and based on project monitoring and evaluation, that the reintroduction
efforts are not consistent with the recovery of salmon or steelhead,
the reintroduction program will be discontinued and bull trout will be
removed from the experimental population area. The Service initiated
formal consultation with NMFS pursuant to section 7(a)(2) of the Act in
December 2010 (USFWS 2010) and will ensure section 7(a)(2) compliance
prior to releasing bull trout into the Clackamas River.
Adaptive Management: A key component of our proposed action is the
adaptive management of the bull trout reintroduction project, ranging
from the annual numbers, life stages, and collection methods of the
donor stock, to the locations and timing of translocations
(implementation strategy), and finally the management of bull trout in
the Clackamas River relative to their potential impact on threatened
salmon and steelhead. Our goal with this approach is to implement the
project most effectively, while assuring no harm to the donor stock and
limiting negative impacts to other listed species in the Clackamas
River subbasin.
The adaptive management of the bull trout reintroduction project
will be based in part on guidance provided in the Department of the
Interior's technical guide to adaptive management (USDI 2009). The
guidance defines adaptive management as a decision process that
promotes flexible
[[Page 35986]]
decisionmaking that can be adjusted in the face of uncertainties as
outcomes from management actions and other events become better
understood. Careful monitoring of these outcomes both advances
scientific understanding and helps adjust policies or operations as
part of an iterative learning process. Adaptive management also
recognizes the importance of natural variability in contributing to
ecological resilience and productivity. It is not a ``trial and error''
process, but rather emphasizes learning while doing. Adaptive
management does not represent an end in itself, but rather is a means
to more effective decisions and enhanced benefits. Its true measure is
in how well it helps meet environmental, social, and economic goals,
increases scientific knowledge, and reduces tensions among stakeholders
(USDI 2009).
Monitoring and evaluation will inform the adaptive management of
this project, including the appropriate management of this experimental
population of bull trout both during the period they are being
reintroduced and post-project if we are successful in reestablishing a
self-sustaining population in the Clackamas River.
Monitoring and Evaluation
Acknowledging the limited availability of information on fish
introductions and reintroductions (Seddon et al. 2007, p. 305), the
Service and our project partners adopted a goal early in project
development to document, learn about, and report on all the major
phases of the project beginning with our feasibility assessment
(Shively et al. 2007; Dunham and Gallo 2008) and extending through
project planning, development, and implementation. One of the most
critical aspects of this goal is to document the effectiveness of the
reintroduction by evaluating components of the implementation strategy,
including the utilization of habitats chosen for release of
individuals, the numbers and life stages of donor stock, the genetic
health of the recipient population, documentation of reproduction and
recruitment, and ultimately the establishment of a self-sustaining bull
trout population.
In order to document and adaptively manage the project, a robust
monitoring and evaluation program is necessary. Along with other
project documentation, we expect information gained from the monitoring
and evaluation program will contribute significantly to other fish
reintroductions, and specifically bull trout recovery projects that we
anticipate will occur across the species' range consistent with
recovery guidance for the species (USFWS 2002, Ch. 1). The monitoring
and evaluation program, detailed in the Implementation, Monitoring, and
Evaluation Plan appended to the final EA, has three major goals: (1)
Monitor and evaluate bull trout reintroduction effectiveness, (2)
monitor and evaluate donor population status, and (3) monitor and
evaluate impacts to listed anadromous salmonids. These three major
components are summarized below:
Reintroduction Effectiveness Monitoring: The objectives of the
effectiveness monitoring program for phase 1 of the project (2011-2017)
are to assess: (1) Distribution and movement, (2) relative survival of
translocated bull trout by monitoring presence and absence, (3)
occurrence of spawning and reproduction, and (4) genetic health (as
measured against the donor population). Successful reproduction in
phase one of the project (2011-2017) would logically result in the
incorporation of a monitoring component directed at assessing the
distribution, movement, growth, and survival of the initial cohorts of
naturally produced bull trout. Monitoring activities in phase 2 (2018-
2024) and phase 3 (2025-2030) will be informed by phase 1 monitoring
and evaluation. Effectiveness monitoring of the project will be
conducted jointly by the Service and ODFW, with assistance from the
USFS and potentially U.S. Geological Survey (USGS) and the University
of Washington.
Donor Population Monitoring: We intend to monitor donor stock
status annually to determine if the population is free of pathogens of
concern, and to ensure the population maintains a minimum threshold of
spawning adults to contribute as a donor stock to the Clackamas River
bull trout reintroduction project. Bull trout in the Metolius River are
monitored primarily by annual full census redd counts. These counts are
conducted by ODFW, CTWSRO, USFS, PGE, and Service staff. In addition to
the genetic monitoring of the recipient bull trout population in the
Clackamas River subbasin, we will also replicate the Metolius River
bull trout genetic health assessment (DeHaan et al. 2008) on the donor
stock at an appropriate interval to ensure the loss of individuals via
contribution toward the Clackamas River reintroduction is not impacting
the genetic health of the Metolius River donor stock.
Monitoring Impacts to Anadromous Salmonids: The monitoring of
potential impacts to juvenile anadromous salmonids will generally focus
on PGE's Clackamas Hydroelectric Project area. Juvenile salmonids
utilize project reservoirs, especially North Fork Reservoir, for
rearing. Fish collection facilities that aid downstream migration of
salmon and steelhead juveniles necessarily concentrate the fish,
increasing their vulnerability to predation and the potential for them
to avoid collection facilities due to the presence of a predator. These
areas of increased vulnerability for anadromous juveniles are also
areas where we expect to be better able to detect a behavioral response
caused by bull trout, relative to areas upstream of North Fork
Reservoir or in the lower Clackamas River below River Mill Dam. We
developed this monitoring component with the intent of reducing
uncertainty and informing future management decisions associated with
the bull trout reintroduction program.
In order to assess impacts to listed anadromous salmonids we
propose to: (1) Determine if adult and subadult bull trout occupy areas
within the PGE hydroelectric project during periods in which they could
consume particularly high numbers of rearing or migrating juvenile
salmon and steelhead; (2) if so, determine if survival rates are
affected for listed anadromous salmonid juveniles rearing in, or moving
through the PGE hydroelectric project area; and (3) determine the
degree to which bull trout are responsible for such impacts by using
field data, bioenergetics, and life-cycle modeling. Monitoring of
impacts to anadromous salmonids will be conducted by the Service and
ODFW, with possible assistance from USGS, PGE, University of
Washington, and the National Oceanic and Atmospheric Administration's
Northwest Fisheries Science Center (NOAA-NWFSC).
Summary of Comments and Responses
We requested written comments from the public on the proposed rule
and draft EA published on December 9, 2009 (74 FR 65045). We also
contacted the appropriate Federal, State, and local agencies; Tribes;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule. The comment period was open from
December 9, 2009, to February 10, 2010.
We reviewed all comments received for substantive issues and new
information regarding the proposed NEP. Substantive comments received
during the comment period have either been addressed below or
incorporated directly into this final rule.
We received comments from eight parties, including comments from
natural resource management agencies, not-for-profit organizations, and
private
[[Page 35987]]
entities. All commenters specifically expressed support for the
reestablishment of the bull trout in the Clackamas River although three
of the eight commenters expressed concerns regarding potential impacts
to Federally threatened salmon and steelhead present in the Clackamas
River.
Public Comments
(1) Comment: Several commenters suggested reintroduction of bull
trout to the Clackamas River under section 10(j) of the Act may not
provide ample protection to ensure the long-term viability of the
population, and encouraged the Service to reintroduce bull trout to the
Clackamas River under full protections of the Act, along with
designated critical habitat.
Our Response: Any population determined by the Secretary to be an
experimental population will be treated as if it were listed as a
threatened species for purposes of establishing protective regulations
with respect to that population pursuant to section 4(d) of the Act.
The protective regulations adopted for an experimental population will
contain applicable prohibitions, as appropriate, and exceptions for
that population. In addition, before authorizing the release of an
experimental population (including eggs, propagules, or individuals) of
an endangered or threatened species, the Service must consider the
extent to which the introduced population may be affected by existing
and anticipated Federal or State actions or private activities within
or adjacent to the experimental population area.
We have assessed existing or anticipated Federal or State actions
and private activities within or adjacent to the experimental
population area and, along with the applicable prohibitions in this
final rule, we have determined these actions to be compatible with, and
protective of, a reestablished population of bull trout in the
Clackamas River. We believe, based on this assessment, that the
protective regulations adopted by this rule are appropriate and provide
adequate protections for a reintroduced population of bull trout.
Lastly, under 50 CFR 17.81(f), the Secretary may designate critical
habitat as defined in section 3(5)(A) of the Act for an essential
experimental population but not for a nonessential population.
(2) Comment: One commenter suggested reintroductions of bull trout
to historical habitat are essential for the continued survival of the
species, and thus encouraged the Service to designate the experimental
population in the Clackamas River as an ``essential'' population under
the Act, rather than a ``nonessential'' population.
Our Response: We have determined that restoring bull trout to the
Clackamas River is not essential to the continued existence of the
species. We maintain that releasing bull trout under the section 10(j)
NEP provision of the Act is the most appropriate way to achieve
conservation for this species in the Clackamas River and that this
action is consistent with the purposes of the Act.
(3) Comment: One commenter suggested that the Service should
consider removing the ``experimental nonessential'' designation under
section 10(j) of the Act if the bull trout reintroduction project is
successful.
Our Response: Our intent is for the section10(j) rule to remain in
place until the status of the species improves to a point where listing
is no longer necessary. Section 10(j) of the Act does not give us the
authority to ``permanently'' declare an NEP. However, we have made it
clear that it is not our intention to change this designation until the
species meets the requirements for delisting, and we currently do not
anticipate that any circumstances would warrant changing this
designation. The proposed rule and this final rule contain language on
this subject found in 50 CFR 17.85(a)(1)(iii), specifically: ``We do
not intend to change the NEP designations to `essential experimental,'
`threatened,' or `endangered' within the NEP area. Additionally we will
not designate critical habitat for the NEP, as provided by 16 U.S.C.
539(j)(2)(C)(ii).''
(4) Comment: Several commenters noted the lack of quantitative
information on the distribution, abundance, and diversity of the native
fish community in the upper Clackamas River and suggested the Service
conduct an assessment prior to implementing the bull trout
reintroduction project to affirm the sufficiency of a prey base to
support the reestablishment of a viable bull trout population.
Our Response: We agree there is limited quantitative information on
the native fish community in the upper Clackamas River. However, upper
Clackamas River baseline foodweb surveys that were conducted in
association with the action considered in this final rule (Lowery and
Beauchamp 2010), along with an abundance of qualitative information
collected by the USFS and State of Oregon (Shively et al. 2007,
Appendix F, p. 24), confirm the full complement of native species
(except for bull trout) in the upper Clackamas River. There is no
evidence to suggest the upper Clackamas River forage base would not
compare favorably with the abundance, distribution, and diversity of
native fishes found in other major subbasins in the lower Columbia
River that support viable populations of bull trout, including the
McKenzie, Lewis, and Deschutes rivers. Although historical reductions
in the anadromous forage base in the Clackamas River may have
negatively impacted the historical bull trout population, as noted
above in Biological Information, the primary factors leading to the
extirpation of bull trout in the Clackamas River were migration
barriers from hydroelectric and diversion dams, direct and incidental
harvest in sport and commercial fisheries, targeted eradication through
bounty fisheries (currently known as ``sport reward'' programs), and
habitat and water quality degradation from forest management and
agricultural activities not in accordance with best management
practices (Shively et al. 2007, Ch. 1, pp. 18-22).
(5) Comment: In order to minimize and offset potential impacts to
anadromous salmon and steelhead from bull trout predation and
competition, one commenter suggested initiating habitat improvement
actions such as adding refuge cover and distributing excess hatchery
salmon and steelhead carcasses into the upper Clackamas River to
increase marine-derived nutrients and stream productivity.
Our Response: Although we do not anticipate significant impacts
from bull trout on threatened salmon and steelhead, if our monitoring
program indicates bull trout are having population-level impacts, the
Service and our project partners will implement actions to minimize and
offset these impacts. While these actions may include habitat
restoration projects such as those recommended, the most immediate
management actions to reduce impacts will be modification of the bull
trout reintroduction implementation strategy such as the numbers, life-
stages, and locations of releases, and removal of individual bull trout
if they are found occupying areas that artificially concentrate
juvenile salmon and steelhead such as fish passage facilities
associated with the Clackamas Hydroelectric Project.
(6) Comment: One commenter noted the presence of nonnative brook
trout in a small portion of the suitable habitat identified for bull
trout reintroduction, and suggested that they should be eradicated in
order to prevent hybridization and competition with reintroduced bull
trout.
[[Page 35988]]
Our Response: While we agree that nonnative brook trout can
negatively affect bull trout through hybridization, predation, and
competition, our literature review on the subject for the Clackamas
Bull Trout Reintroduction Feasibility Assessment (Shively et al. 2007,
Ch. 4. pp. 1-2) suggests negative effects are variab