[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Proposed Rules]
[Pages 8621-8644]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3803]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2008-0128]
[MO 92210-0-0009-B4]
RIN 1018-AW72


Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Rule To List the Southwestern Washington/Columbia River 
Distinct Population Segment of Coastal Cutthroat Trout (Oncorhynchus 
clarki clarki) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
determined that the proposed listing of the Southwestern Washington/
Columbia River Distinct Population Segment (DPS) of coastal cutthroat 
trout as a threatened species under the Endangered Species Act of 1973, 
as amended (Act), is not warranted. We therefore withdraw our proposed 
rule (64 FR 16397; April 5, 1999) to list the DPS under the Act. 
Although we had earlier concluded that this DPS did not warrant listing 
under the Act, as a result of litigation we have reconsidered whether 
the marine and estuarine areas of the DPS may warrant listing if they 
constitute a significant portion of the range of the DPS. Based upon a 
thorough review of the best available scientific and commercial data, 
we have determined that the threats to coastal cutthroat trout in the 
marine and estuarine areas of its range within the DPS, as analyzed 
under the five listing factors described in section 4(a)(1) of the Act, 
are not likely to endanger the species now or in the foreseeable future 
throughout this portion of its range. We, therefore, again withdraw our 
proposed rule, as we have determined that the coastal cutthroat trout 
is not likely to become endangered now or in the foreseeable future 
throughout all or a significant portion of its range within the 
Southwestern Washington/Columbia River DPS.

ADDRESSES: This withdrawal and supporting documentation are available 
on the Internet at http://www.regulations.gov; search for Docket Number 
[FWS-R1-ES-2008-0128]. Supporting documentation for this determination 
is 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, OR 97266; 
telephone 503-231-6179; facsimile 503-231-6195.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor, 
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see 
ADDRESSES, above). Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On July 5, 2002, we published a notice of our withdrawal of the 
proposed rule to list the Southwestern Washington/Columbia River 
distinct population segment (DPS) of the coastal cutthroat trout 
(Oncorhynchus clarki clarki) as threatened under the Endangered Species 
Act of 1973, as amended (Act) (67 FR 44934; July 5, 2002). As a result 
of litigation, we are required to reconsider our withdrawal of the 
proposed rule with specific regard to the question of whether marine 
and estuarine areas may constitute a significant portion of the range 
of the Southwestern Washington/Columbia River DPS of coastal cutthroat 
trout.
    On March 24, 2009, we published a notice of reopening of a comment 
period on the proposed rule (74 FR 12297). In that notice, we alerted 
the public, other concerned governmental agencies, the scientific 
community, industry, and any other interested party of our request for 
information, data, or comments on the marine and estuarine areas of the 
Southwestern Washington/Columbia River DPS of coastal cutthroat trout, 
with particular regard to whether these areas constitute a significant 
portion of the range of the DPS under the Act, and if so, whether the 
subspecies is threatened or endangered in those areas.
    The comment period closed on April 23, 2009, and we received four 
comment letters. After analyzing the information received, information 
in our files, and all other available information, we analyzed the 
threats to coastal cutthroat trout in the marine and estuarine portion 
of the DPS to determine whether coastal cutthroat trout are threatened 
or endangered in that area and, if so, whether the area constitutes a 
significant portion of the range of the DPS. Although the Court did not 
ask us to revisit status, trends, and threats to anadromous cutthroat 
trout or other life-history forms outside of marine and estuarine 
areas, we have also considered any new information available for these 
areas that would suggest any significant change in status, trend, or 
threats for the

[[Page 8622]]

remainder of the DPS. This withdrawal of the proposed rule is the 
result of our determination that coastal cutthroat trout in the marine 
and estuarine areas of the DPS do not warrant listing as either 
threatened or endangered.

Previous Federal Actions

    The Federal Register documents related to this current withdrawal 
action are listed in table 1 and explained further in text following 
the table.

 Table 1--Federal Register publications concerning the proposed listing
    of the southwestern Washington/Columbia River distinct population
    segment of coastal cutthroat trout (Oncorhynchus clarki clarki).
------------------------------------------------------------------------
   Date of Federal Register      Federal Register
          Publication                Citation              Action
------------------------------------------------------------------------
April 5, 1999                   64 FR 16397        FWS and NMFS jointly
                                                    issue a proposed
                                                    rule to list the
                                                    southwestern
                                                    Washington/Columbia
                                                    River distinct
                                                    population segment
                                                    of coastal cutthroat
                                                    trout as threatened
                                                    and opened a public
                                                    comment period until
                                                    July 6, 1999
------------------------------------------------------------------------
April 14, 2000                  65 FR 20123        Announced 6-month
                                                    extension for
                                                    publishing the final
                                                    determination on the
                                                    April 5, 1999,
                                                    proposed rule from
                                                    the normal 12-month
                                                    timeframe required
                                                    by the Act
                                                    (extension was from
                                                    April 5, 2000, to
                                                    October 5, 2000)
------------------------------------------------------------------------
April 21, 2000                  65 FR 21376        Announced transfer of
                                                    regulatory
                                                    jurisdiction for
                                                    coastal cutthroat
                                                    trout from joint FWS
                                                    and NMFS management
                                                    to FWS exclusively
------------------------------------------------------------------------
June 2, 2000                    65 FR 35315        Reopened the comment
                                                    period on the April
                                                    5, 1999, proposed
                                                    rule until July 23,
                                                    2000, and announced
                                                    a public hearing on
                                                    June 20, 2000
------------------------------------------------------------------------
July 14, 2000                   65 FR 43730        Clarified the take
                                                    prohibitions that
                                                    would go into effect
                                                    if the April 5,
                                                    1999, proposed rule
                                                    was finalized
------------------------------------------------------------------------
September 6, 2000               65 FR 53974        Reopened the comment
                                                    period on the July
                                                    14, 2000, take
                                                    clarification
                                                    document until
                                                    September 29, 2000,
                                                    and announced a
                                                    public hearing on
                                                    September 21, 2000
------------------------------------------------------------------------
November 23, 2001               66 FR 58706        Reopened the comment
                                                    period on the April
                                                    5, 1999, proposed
                                                    rule to list until
                                                    December 24, 2001
------------------------------------------------------------------------
July 5, 2002                    67 FR 44934        Withdrew the April 5,
                                                    1999, proposed rule
                                                    to list
------------------------------------------------------------------------
March 24, 2009                  74 FR 12297        Reconsidered the July
                                                    5, 2002, withdrawal
                                                    and reopened the
                                                    comment period on
                                                    the April 5, 1999,
                                                    proposed rule to
                                                    list until April 23,
                                                    2009
------------------------------------------------------------------------

    As indicated in table 1, the National Marine Fisheries Service 
(NMFS) and the Service jointly published a proposed rule to list the 
Southwestern Washington/Columbia River ESU (later DPS) of coastal 
cutthroat trout as a threatened population under the distinct 
vertebrate population segment provision of the Act on April 5, 1999 (64 
FR 16397). In that proposed rule, we noted the uncertainty regarding 
which agency, the NMFS or the Service, had jurisdiction over the 
coastal cutthroat trout, and we committed to notify the public once the 
issue had been resolved. Subsequently, the time to make a final 
determination on the proposed rule was extended for an additional 6 
months, from April 5, 2000, to October 5, 2000, due to substantial 
scientific disagreement about the status of the population; this action 
further opened an additional 30-day comment period (65 FR 20123; April 
14, 2000).
    On April 21, 2000, the NMFS and the Service published a notice of 
the Service's assumption of sole jurisdiction for coastal cutthroat 
trout under the Act (65 FR 21376). On June 2, 2000, we again reopened 
the comment period on the proposed rule and announced a public hearing 
to be held in Ilwaco, Washington, on June 20, 2000, to allow all 
interested parties to submit oral or written comments on the proposal 
(65 FR 35315). On July 14, 2000, we published a notice to clarify the 
take prohibitions for the Southwestern Washington/Columbia River DPS of 
coastal cutthroat trout that would apply if the proposed listing were 
to be finalized, and provided a 30-day public comment period on the 
list of activities that would, and would not, likely constitute a 
violation of section 9 of the Act (65 FR 43730). The comment period on 
the clarification of take prohibitions was reopened on September 6, 
2000 (65 FR 53974), and a hearing was held September 21, 2000, in 
Aberdeen, Washington, based on a request during the initial public 
comment period. In addition, the comment period on the proposed rule to 
list the Southwestern Washington/Columbia River DPS of coastal 
cutthroat trout was again reopened for an additional 30 days on 
November 23, 2001 (66 FR 58706).
    On July 5, 2002, we published a notice of withdrawal of the 
proposed rule to list the Southwestern Washington/Columbia River DPS of 
the coastal cutthroat trout as threatened (67 FR 44934; July 5, 2002). 
The notice set forth the following bases for our determination that the 
DPS did not meet the listing criteria as a threatened species: (1) new 
data indicating that coastal cutthroat trout are more abundant in 
southwest Washington than was previously thought, and that population 
sizes were comparable to those of healthy populations in other areas; 
(2) new information and analyses calling into question prior 
interpretation of the size of the anadromous portion of the population 
in the Columbia River, and indicating higher numbers than previously 
described; (3) new data and analyses no longer showing declining adult 
populations in the Grays Harbor tributaries; (4) new analyses calling 
into question the past interpretation of trend data, and, therefore, 
the magnitude of

[[Page 8623]]

the trend in the anadromous portion of the population in the Columbia 
River; (5) new information describing the production of anadromous 
progeny by non-anadromous and above-barrier cutthroat trout; and, (6) 
two large-scale Habitat Conservation Plans (HCPs) and significant 
changes in Washington Forest Practices Regulations, substantially 
reducing threats to aquatic and riparian habitat on forest lands in 
Washington. The withdrawal notice concluded that, based on reduced 
threats and new information and understanding regarding the status of 
the DPS, the Southwestern Washington/Columbia River DPS of coastal 
cutthroat trout was not in danger of becoming endangered in the 
foreseeable future, and, therefore, did not meet the definition of a 
threatened species.
    On February 3, 2005, the Center for Biological Diversity, Oregon 
Natural Resources Council, Pacific Rivers Council, and WaterWatch filed 
a legal challenge to the Service's withdrawal of the proposed listing 
in the U.S. District Court for the District of Oregon (Center for 
Biological Diversity, et al. v. U.S. Fish and Wildlife Service, Case 
No. 05-165-KI). The Court ruled that the Service's decision to withdraw 
the proposed rule complied with the Act and was not arbitrary and 
capricious, and dismissed the action on November 16, 2005. Plaintiffs 
appealed. On April 18, 2008, the U.S. Court of Appeals for the Ninth 
Circuit affirmed the district court's decision in part and reversed the 
decision in part. The Ninth Circuit found no error in the Service's 
determination that the DPS as a whole did not merit listing, but held 
that the Service had failed to consider whether the marine and 
estuarine portions of the DPS constitute a significant portion of the 
range of the coastal cutthroat trout within that DPS under the Act 
(Center for Biological Diversity, et al. v. U.S. Fish and Wildlife 
Service, 274 Fed. Appx. 542 (9\th\ Cir. 2008)). The Ninth Circuit 
reversed the district court's decision and remanded the matter to the 
district court.
    On July 1, 2008, the U.S. District Court for the District of Oregon 
issued an amended order remanding the listing decision to the Service 
for further consideration in light of the opinion of the Ninth Circuit. 
On March 24, 2009, we reopened a comment period on the proposed rule 
(74 FR 12297), soliciting information on the question of whether the 
estuary and other marine areas constitute a significant portion of the 
range of the Southwestern Washington/Columbia River DPS of the coastal 
cutthroat trout. The comment period closed on April 23, 2009.

Species Information

    The following descriptions of the subspecies coastal cutthroat 
trout (Oncorhynchus clarki clarki), its habitat, and life history, are 
excerpted from our July 5, 2002, withdrawal of the proposed rule to 
list the Southwestern Washington/Columbia River DPS of the coastal 
cutthroat trout as threatened (hereafter ``withdrawal notice'') (67 FR 
44934; July 5, 2002). We incorporate all of the information in the 
withdrawal notice by reference. Where new information has become 
available, we have updated these descriptions to ensure we are using 
the best available scientific and commercial information. Where certain 
information is critical to the understanding of our reasoning, we have 
included it here. We have focused on cutthroat exhibiting anadromous 
life-history strategies as these are the only individuals that use the 
marine and estuarine areas under consideration here. Please see the 
withdrawal notice (67 FR 44934; July 5, 2002) for additional 
information.
    The coastal cutthroat trout is 1 of 10 formally described 
subspecies of cutthroat trout (Behnke 1992) and is a member of the 
family Salmonidae (collectively known as salmonids). The coastal 
cutthroat trout is distributed along the Pacific Coast of North America 
from Prince William Sound in Alaska to the Eel River in California 
(Behnke 1992, p. 65; Trotter 2008, p. 62) and inland from the Coast 
Range of Alaska to roughly the crest of the Cascades of Washington and 
Oregon (Trotter 2008, p. 62).
    The Southwestern Washington/Columbia River DPS of coastal cutthroat 
trout includes the Columbia River and its tributaries from the mouth to 
the Klickitat River on the Washington side of the river and Fifteenmile 
Creek on the Oregon side; the Willamette River and its tributaries from 
its confluence with the Columbia upstream to Willamette Falls; Willapa 
Bay and its tributaries; and Grays Harbor and its tributaries.
    The portion of the range of the DPS being considered here includes 
three estuaries and areas of nearshore marine ocean habitat off the 
coasts of these estuaries. In the Columbia River, we have defined the 
estuary as extending to approximately river mile (rmi) 28 (river 
kilometer (rkm) 45) where the upstream extent of saltwater intrusion 
occurs. The Columbia River estuary, from the mouth to the extent of 
saltwater intrusion, covers approximately 148 square miles (sq mi) 
(about 383 square kilometers (sq km)). In Grays Harbor and Willapa Bay 
estuaries, the extent of saltwater intrusion is less distinguishable 
from the extent of tidal influence, largely due to the less linear 
shape of the water body. As a result, we define the estuary as 
extending approximately as far upstream as the extent of saltwater-
tolerant shoreline vegetation along each of the respective tributaries. 
Defined this way, Grays Harbor estuary covers approximately 91 sq mi 
(about 236 sq km), and Willapa Bay estuary covers approximately 129 sq 
mi (about 334 sq km).
    The marine area included is far more difficult to identify, since 
anadromous coastal cutthroat trout from within this DPS could 
potentially intermingle with coastal cutthroat trout from Olympic 
Peninsula populations to the north, and the Oregon coast populations to 
the south (Johnson et al. 1999, pp. 126-130). We define the nearshore 
marine area by considering the marine areas known or likely to be used 
by Columbia River anadromous coastal cutthroat trout. To the south of 
the mouth of the Columbia River, an acoustic-tagged coastal cutthroat 
trout from a study by Zydlewski et al. (2008, p. 34) was detected by an 
unrelated acoustic tracking study off the mouth of Nehalam Bay, 
approximately 38 miles (mi) (about 61 kilometers (km)) south of the 
Columbia River mouth. We can therefore reasonably assume that coastal 
cutthroat trout from Grays Harbor estuary in Washington might swim 
about the same distance north of the mouth of its bay, or approximately 
to the mouth of the Queets River. According to Trotter (2008, p. 71), 
coastal cutthroat trout have been collected as far out into the 
Columbia River plume as 41 mi (about 66 km) from the mouth. The 
``plume'' refers to the area where river water extends into and mixes 
with the waters of the ocean at the mouth of the river.
    The marine areas included in this analysis, therefore, include 
approximately 4,952 sq mi (about 12,826 sq km) of ocean ranging from 
the mouth of the Nehalam River in Oregon, out to a point approximately 
30 mi (about 48 km) from shore, then to a point approximately 41 mi 
(about 66 km) west of the Columbia River mouth, then a point 
approximately 30 mi (about 48 km) west of the mouth of the Queets 
River, in Washington. The Columbia River plume exhibits highly variable 
flow and location, depending on river flow, wind patterns, El 
Nixño oscillations, and other oceanographic or climatic factors 
(Hickey et al. 2005, p. 1632; Thomas and Weatherbee 2006, p. 169). The 
area described above is heavily influenced by plume conditions, and 
thus might provide suitable habitat for anadromous coastal cutthroat 
trout

[[Page 8624]]

that may access the ocean from the three estuaries mentioned. Actual 
distribution of coastal cutthroat trout in the marine areas may be 
highly variable at any given time, and, as mentioned above, coastal 
cutthroat trout from the Southwestern Washington/Columbia River DPS may 
mingle with coastal cutthroat trout from other populations in this 
area.
    Coastal cutthroat trout spend more time in the freshwater 
environment and make more extensive use of this habitat, particularly 
small streams, than do most other Pacific salmonids. The life history 
of coastal cutthroat trout may be one of the most complex of the 
Pacific salmonids (Johnson et al. 1999, p. 120). Coastal cutthroat 
trout exhibit a variety of life-history strategies across their range 
(Northcote 1997, p. 24; Johnson et al. 1999, pp. 44-45) that includes 
three basic variations: resident or primarily nonmigratory; freshwater 
migrants; and marine migrants. Residents may stay within the same 
stream segment their entire life. Freshwater migrants may make 
migrations from small tributaries to larger tributaries or rivers, or 
may migrate from tributary streams to lakes or reservoirs. Marine 
migrations (anadromy) are generally thought to be limited to nearshore 
marine areas; individuals may not venture out of the estuary in some 
cases (ODFW 2008, p. 8; Krentz 2007, pp. 71-75). There are numerous 
exceptions to these generalized behaviors. In areas above long-standing 
barriers, coastal cutthroat trout are generally limited to resident or 
freshwater migratory life-history strategies, though some individuals 
may pass the barrier and end up in the ocean but be barred from 
returning by the barrier. In areas accessible to the ocean, all three 
life-history strategies (resident, freshwater migratory, and 
anadromous) are likely to be expressed in the same area.
    Coastal cutthroat trout appear to exhibit diverse and very flexible 
life-history strategies. The significance of the various life-history 
strategies, the extent to which each strategy is controlled by genetic 
versus environmental factors, and the extent to which individuals 
expressing these various strategies are isolated from other life-
history forms is largely unknown. There is some evidence that 
individuals may express multiple life-history behaviors in their 
lifetimes (Johnson et al. 1999, pp. 43-44); in other words, apparently 
an individual fish at various times in its life may switch between 
these life-history forms, some years acting as a freshwater resident or 
migrant, and some years acting as a marine migrant (see the ``Anadromy 
and Life History Diversity'' section below for more information). For 
convenience we refer to individuals that migrate to marine waters as 
anadromous, or as the anadromous life form (also known as ``sea-run'' 
cutthroat trout). In doing so, we do not intend to imply that they 
represent a separate population from freshwater forms. We are treating 
all forms as part of a single population in this analysis, due to their 
flexibility in life-history expression and genetic information showing 
more differentiation between river or stream systems than between 
individuals expressing various life histories in a single system, as 
described below.
    Coastal cutthroat trout are repeat spawners. Some individuals have 
been documented to spawn each year for at least 5 years (Giger 1972, p. 
33), others may not spawn every year, and some do not return to 
seawater after spawning, remaining in fresh water for at least a year, 
demonstrating the flexibility of individual life history strategies. 
Eggs begin to hatch within 6 to 7 weeks of spawning and fry emerge 
between March and June, with peak emergence in mid-April. At emergence, 
fry appear to seek refugia near channel margins and backwater habitats, 
although they may use fast water habitats (riffles and glides) when 
exposed to competitive interactions with other native salmonids 
(Johnson et al. 1999, pp. 51-52).
    Migratory coastal cutthroat trout juveniles generally remain in 
upper tributaries until they are 1 or 2 years of age. Like other 
anadromous salmonids, coastal cutthroat trout on marine-directed 
migrations undergo physiological changes to adapt to salt water; these 
changes are called ``smoltification,'' and individuals that have 
undergone this process are referred to as ``smolts.'' Smoltification of 
coastal cutthroat trout has been reported to occur from 1 to 6 years of 
age, but is most common at age 2 (Trotter 2008, p. 71). Migration of 
juvenile cutthroat from tributaries of the lower Columbia River occurs 
most months of the year, but peak movement occurs from March through 
June (Johnson et al. 2008, pp. 7-9; ODFW 2008, p. 7).
    Anadromous coastal cutthroat trout that enter nearshore marine 
waters reportedly move moderate distances along the shoreline. 
Anadromous cutthroat trout along the Oregon coast may swim or be 
transported long distances with the prevailing currents during the 
summer; individual marked fish have been reported to move from 45 to 
180 mi (72 to 290 km) off the Oregon Coast (Pearcy 1997, p. 30). It is 
unclear how far offshore coastal cutthroat trout migrate. Cutthroat 
trout have been routinely caught up to 4 mi (6 km off the mouth of the 
Nestucca River (Sumner 1953, 1972). Coastal cutthroat trout have also 
been captured between 6 to 41 mi (10 and 66 km) offshore of the 
Columbia River (Trotter 2008, p. 71), though it is unclear whether they 
were carried by the plume of the Columbia River or moved offshore in 
search of prey. Resident (non-migratory) fish appear to mature earlier 
(2 to 3 years), are shorter-lived than the migratory form, and are 
smaller and less fecund (Trotter 2008, p. 85). Sexual maturity rarely 
occurs before age four in anadromous coastal cutthroat trout (Johnson 
et al. 1999, p. 51). Growth rates increase during the initial period of 
ocean residence, but decrease following the first spawning due to 
energy expenditures from migration and spawning (Giger 1972, pp. 29-
31). Behnke (1992, p. 70) reports the maximum age of sea-run cutthroat 
to be approximately 10 years.
    The timing of fish returns to estuary and freshwater habitat varies 
considerably across the range and within river basins (Trotter 2008, p. 
73; Behnke 1992, p. 70). For example, return migrations of anadromous 
coastal cutthroat trout in the Columbia River system usually begin as 
early as late June and continue through October, with peaks in late 
September and October. Anadromous coastal cutthroat trout spawning 
typically starts in December and continues through June, with peak 
spawning in February.
    Significant progress had been made in understanding the biology of 
anadromous cutthroat trout in the Columbia River since 2002, when we 
published our initial withdrawal notice (67 FR 44934; July 5, 2002). We 
received new information from a suite of recent companion studies 
conducted on coastal cutthroat trout from tributaries on the Washington 
side of the lower Columbia River. Johnson et al. (2008, entire) 
examined the timing and prevalence of juvenile movement out of 
tributaries and timing of adult returns. Zydlewski et al. (2008, 
entire) examined movement patterns and extent of use of the mainstem 
and estuary by coastal cutthroat trout entering the Columbia River from 
four tributaries known to support anadromous life forms. Finally, 
Hudson et al. (2008, entire) examined movement of adult coastal 
cutthroat in the lower Columbia River mainstem and estuary. These 
studies, combined with similar research conducted by the Oregon 
Department of Fish and Wildlife (ODFW 2008, entire) on several 
tributaries on the Oregon side of the lower Columbia River, contribute 
significantly to our understanding of

[[Page 8625]]

coastal cutthroat trout. We summarize the findings from these studies 
below.
    Johnson et al. (2008, entire) monitored cutthroat trout from three 
tributaries of the lower Columbia River: Abernathy Creek, rmi 54.0 (rkm 
87), Chinook River, rmi 3.7 (rkm 6), and Gee Creek, rmi 87.0 (rkm 140). 
A total of 4,923 cutthroat were tagged with passive integrated 
transponders (``PIT tagged'') over a 4-year period and subsequently 
monitored by antennas placed near the confluence of the streams with 
the Columbia River. Detections of tagged cutthroat followed a seasonal 
pattern of movement consistent among years with most emigration 
(downstream migration) occurring between March and May. Although some 
individuals in this study did not move out of the tributary in which 
they were tagged, and others were documented moving upstream once they 
entered the Columbia River, the majority of emigrating fish were 
assumed to migrate downstream to the Columbia River estuary, plume, and 
marine environments (i.e., exhibit anadromous behavior).
    The number of tagged fish detected emigrating to the Columbia River 
varied considerably between streams, but within streams the proportion 
of detected migrants versus the total number tagged was generally 
consistent among years. In Abernathy Creek, the proportion of detected 
migrants (percentage of tagged fish emigrating versus total number 
tagged) averaged 9.0 percent over 4 years; in Chinook River, the 
proportion averaged 45.2 percent; and in Gee Creek, the average was 
12.4 percent. Outmigrating cutthroat trout were generally age 1 or 2. 
Adults returned between October and December. Cutthroat trout returned 
from all reaches sampled during initial tagging, suggesting there was 
no distinct spatial separation between resident and migratory 
cutthroat.
    Adult returns to Abernathy Creek totaled 15 individual tagged fish 
(2.5 percent of the total number of tagged fish detected emigrating). 
Subsequently, 8 of those 15 exhibited a second migration to the 
Columbia River, one of which subsequently returned for a third spawning 
migration. Adult returns to Chinook River totaled 43 tagged individuals 
(7.4 percent of the total number of tagged fish detected emigrating). 
Subsequently, 16 exhibited a second migration to the Columbia River, 10 
of which returned. Of those 10 fish, 4 exhibited a third migration back 
to the Columbia River of which 1 individual returned for a fourth 
spawning season. Of the 132 fish PIT-tagged from Gee Creek, 17 
emigrated to the Columbia River and none were documented returning in 
subsequent years.
    The authors suggested the higher adult return rates and the higher 
likelihood of multiple migrations in the Chinook River as compared to 
Abernathy Creek could be due to (1) migrants from the Chinook River 
being larger relative to those emigrating from Abernathy Creek, which 
may confer a competitive advantage and predator avoidance, and (2) less 
loss of Chinook River fish because its confluence with the Columbia 
River is in the estuary at the mouth of the Columbia River, resulting 
in a short corridor in which migrants are less subject to anthropogenic 
and natural threats. The information from this study suggests a large 
degree of variability among streams in regards to the proportion of the 
population that exhibits anadromous behavior (i.e., emigrating annually 
to the Columbia River).
    Zydlewski et al. (2008, entire) studied cutthroat trout from four 
tributaries of the lower Columbia River using radio and acoustic 
telemetry. Individual fish were tracked as they migrated down the 
Columbia River, through the estuary, and into the ocean. In 2002, 
cutthroat trout leaving Germany, Abernathy, and Mill creeks took a 
median of 6.6 days to reach the mouth of the Columbia River (i.e., 
where the Columbia River meets the Pacific Ocean). Many individuals in 
this study traveled the distance in 1 to 2 days consistent with the 
speeds of other species of anadromous salmonids in the Columbia River. 
The authors of this study suggested that rapid and directed downstream 
movement seaward may be the most advantageous migratory strategy in 
this and other large river systems. The observed directed seaward 
movement documented in this study differs from observations in other 
estuaries where cutthroat trout make greater use of the estuary (Krentz 
2007, entire). The findings of Zydlewski et al. (2008, entire) are 
generally consistent with migration patterns of coastal cutthroat 
smolts from several tributaries on the Oregon side of the lower 
Columbia River by the ODFW (2008, entire). Together these data suggest 
less use of the Columbia River estuary by anadromous cutthroat trout on 
their first seaward migration than previously thought. Zydlewski et al. 
(2008, p. 35) speculated this somewhat uniform migratory pattern may be 
a recent condition based on a loss of life-history diversity due to 
estuary habitat degradation and altered hydrograph, although this 
speculation was not supported by any data.
    Hudson et al. (2008, entire) investigated adult coastal cutthroat 
trout behavior in the lower Columbia River mainstem and estuary using 
radio telemetry. Post-spawning adult cutthroat trout were captured and 
tagged in multiple tributaries on the Washington side of the lower 
Columbia River. Of the 44 fish radio-tagged over 2 years, 30 left 
tributary habitat between February and May and utilized the lower 
mainstem Columbia River and estuary. Radio-tracking showed these fish 
utilize a variety of habitats in the mainstem Columbia River and 
estuary. In this study the suspected or confirmed mortality rate for 
tagged, post-spawning anadromous cutthroat trout that moved from 
spawning streams to the Columbia River and estuary was 59.1 percent.
    In summary, these recent studies documented the prevalence of 
juvenile movements out of tributaries and migration patterns of 
anadromous cutthroat trout in the lower Columbia River. Cutthroat trout 
on their first anadromous migration utilized the estuary to a lesser 
degree than previously thought, although returning adults and those on 
second or third migrations were documented utilizing the estuary 
extensively. Emigration rates from natal tributaries to the Columbia 
River varied among tributaries with rates ranging from 3.5 percent to 
45 percent, and adult returns vary from 0.0 percent to 7.4 percent. 
Although timing of peak outmigrations and return migrations were 
documented, these studies suggest cutthroat trout can be found in the 
Columbia River estuary year-round.

Anadromy and Life History Diversity

    The presence of an anadromous life-history strategy could be 
valuable to the DPS for genetic mixing in the long-term and for 
potential recolonization after large catastrophic events, assuming some 
level of straying and mixing of breeding cutthroat. Genetic exchange 
can be important in evolutionary time scales to maintain diversity 
within populations, though complete genetic mixing requires that only a 
few individuals interbreed successfully over generation-scale 
timeframes. The Pacific Northwest is subject to periodic catastrophic 
events such as volcanic eruptions and stand replacement fires that can 
seriously depress, and even extirpate, local populations. These types 
of events occur on very long time scales and at watershed or sub-basin 
scales; the risk of full river basin impacts is unlikely. Anadromous 
cutthroat represent one possible source of individuals for 
recolonization, another being resident or freshwater migratory

[[Page 8626]]

cutthroat trout above or outside the area of the catastrophic event. 
However, the ability of anadromous cutthroat trout to recolonize is 
limited by barriers. Since the fish cannot make it past large natural 
barriers, there is no possibility of providing rescue above such 
barriers. All of these functions can be accomplished with relatively 
small proportions of the population expressing an anadromous life-
history strategy.
    The original proposal to list the Southwestern Washington/Columbia 
River DPS of the coastal cutthroat trout stated that ``[a] significant 
risk factor for coastal cutthroat trout in this [DPS] was a reduction 
of life-history diversity'' based on serious declines in anadromous 
life-history forms and near extirpation in at least two rivers on the 
Oregon side of the basin (64 FR 16407; April 5, 1999). The proposed 
rule acknowledged that freshwater forms remained well distributed and 
in relatively high abundance (64 FR 16407; April 5, 1999). The proposed 
rule indicated that habitat degradation in stream reaches accessible to 
anadromous cutthroat trout, and poor ocean and estuarine conditions, 
likely had combined to severely deplete the anadromous life-history 
form throughout the lower Columbia River Basin. Finally, the proposed 
rule further stated that ``Reduced abundance in anadromous fish will 
tend to restrict connectivity of populations in different watersheds, 
which can increase genetic and demographic risks. ... The significance 
of this reduction in life history diversity to the [sic] both the 
integrity and the likelihood of this [DPS's] long-term persistence is a 
major concern to NMFS.'' (64 FR 16407; April 5, 1999).
    The ODFW and the Washington Department of Fish and Wildlife (WDFW) 
presented preliminary evidence to the NMFS Status Review team that 
freshwater cutthroat trout could produce anadromous migrants, which 
could mitigate risks to the anadromous portion of the population. The 
proposed rule did note that the presence of well-distributed freshwater 
forms in relatively high abundance, coupled with the possibility that 
freshwater forms could produce anadromous progeny ``could act to 
mitigate risk to anadromous forms of coastal cutthroat trout,'' though 
the observation that anadromous coastal cutthroat trout population 
sizes remained consistently low remained a cause for concern at that 
time (64 FR 16407; April 5, 1999).
    The extent to which each life-history expression is partitioned or 
isolated among and within populations is largely unknown; however, 
there is evidence that individuals may express multiple life-history 
behaviors over time (Johnson et al. 1999, p. 43). Coastal cutthroat 
trout believed to be freshwater forms one year may migrate to the sea 
another year; some individuals may not make their initial migration to 
sea until age six (Trotter 2008, p. 71). Some sea-run cutthroat trout 
may not enter saltwater every year after their initial seaward 
migration (Tomasson 1978). Existing studies show that, although both 
allele frequencies and morphology may differ some between populations 
above and below barriers, individuals exhibiting different life-history 
strategies within a single drainage are generally more closely related 
to each other than are individuals exhibiting similar life-history 
strategies from different drainages (Johnson et al. 1999, p. 75; Ardren 
et al. (in press)). In other words, a resident fish and an anadromous 
fish from the same drainage would be more closely related to one 
another than either would be to another fish with the same life-history 
expression in a different drainage. These results indicate that 
migratory and nonmigratory portions of the population of cutthroat 
trout likely represent a single evolutionary lineage in which the 
various life-history characteristics have arisen repeatedly in 
different geographic regions (Johnson et al. 1999, p. 75).
    For other salmonids with multiple life-history forms, Jonsson and 
Jonsson (1993, p. 356) suggested that in a single mating, parents may 
produce offspring with different migratory strategies, though this has 
not been confirmed experimentally for coastal cutthroat trout (Johnson 
et al. 1999, p. 40). Studies of brown trout have demonstrated that non-
anadromous adults can produce anadromous offspring, though at lower 
levels than anadromous adults. Both the ODFW (1998, p. 4; 2008, entire) 
and Anderson (2008, p. 12) presented information showing evidence of 
production of anadromous progeny by freshwater resident coastal 
cutthroat trout. Many coastal cutthroat populations are isolated above 
natural barriers. Studies have shown low levels of downstream migration 
over these natural barriers, indicating that these isolated populations 
likely are contributing demographically and genetically to populations 
below them (Griswold 1996, p. 40; Johnson et al. 1999, p. 75).
    There is increasing evidence that coastal cutthroat trout isolated 
for relatively long periods of time above impassable dams retain the 
capacity to produce marine migrants (anadromous fish). The WDFW (2001) 
reported that between 476 and 1,756 smolts were produced from the 
freshwater form of coastal cutthroat trout above Cowlitz Falls Dam on 
the Cowlitz River in 1997 and 1998. A downstream migrant trap at 
Mayfield Dam recorded between 60 and 812 migrants per year from 1978 to 
1999. There was a single release of hatchery-derived anadromous 
cutthroat trout above Mayfield Dam in 1981, but all cutthroat trout 
currently above the dam are considered to be freshwater forms (WDFW 
2001b, p. 7). Mayfield Dam was built in 1962, blocking upstream 
migration. WDFW has marked coastal cutthroat trout smolts produced by 
upstream resident freshwater fish at Cowlitz Falls, which lies above 
Mayfield Dam. Two adults returned from smolts tagged in 1997, one of 
which was sacrificed and microchemistry results confirmed it had 
migrated to salt water and returned. Eight fish from smolts tagged 
returned in 1998; thus, while this portion of the DPS may contain 
residualized anadromous cutthroat trout trapped behind the dam, it has 
continued to produce downstream migrants for over 40 years (more than 
10 generations). These results are consistent with the hypothesis that 
resident fish in anadromous fish zones are capable of producing 
migratory juveniles (i.e., smolts) and sea-run adults.
    Information submitted by the ODFW (2008, p. 1) documents the 
outmigration of cutthroat trout smolts to the lower Columbia River 
estuary that are offspring of resident cutthroat trout isolated above a 
man-made barrier in Big Creek that has been in place since 1941. 
Despite the fact that the barrier prevented upstream passage of 
anadromous cutthroat for more than 65 years (until 2004), anadromy has 
continued to persist in this basin. The level of outmigration (about 5 
percent emigration of fish tagged), although at a considerably lower 
level than in adjacent Bear Creek, which has no such barrier to 
anadromous returns (about 30 percent emigration of fish tagged), still 
represents a substantial demographic and genetic input to the 
downstream population. These reports suggest resident cutthroat trout 
make potentially important contributions to the anadromous portion of 
the population, despite extreme selective pressure against anadromy (no 
anadromous cutthroat had returned to spawn above the barrier for many 
generations).
    As mentioned earlier, a few studies show that, although both allele 
frequencies and morphology may differ between populations above and 
below barriers, fish with differing life-history

[[Page 8627]]

forms are generally more closely related within a drainage than are 
populations from different drainages (Johnson et al. 1999, p. 75). 
Ardren et al. (In Press) examined coastal cutthroat trout to test for 
genetic separation of sympatric (co-occurring) life-history forms 
within and between two Columbia River tributaries, Abernathy Creek and 
the Chinook River. No distinct genetic separation was found between 
sympatric migratory and resident cutthroat forms within each tributary, 
and genetic differences were an order of magnitude higher between 
tributary samples than between life forms within a tributary. These 
results are consistent with a population that freely interbreeds within 
each tributary producing progeny that have the genetic capacity to 
express different life-history forms. Based on the results from this 
study the authors suggest that sympatric migrant and resident forms of 
coastal cutthroat trout in the lower Columbia River may be best 
described as a continuum of life-history forms expressed from a single 
population. This life history variation likely affords resilience to 
environmental fluctuation as has been demonstrated with bull trout 
where loss of life history forms results in higher extirpation 
probabilities (Dunham and Rieman 1999, pp. 650-651). Considering lower 
Columbia River cutthroat trout as a single population is consistent 
with the views of McPhee et al. (2007, p. 7), who suggest that, due to 
lack of reproductive isolation, it may not be appropriate to consider 
sympatric resident and anadromous rainbow trout (Oncorhynchus mykiss) 
as separate biological units, as they are currently managed.
    Anadromous cutthroat trout, particularly in the lower Columbia 
River estuary, are exposed to the full array of habitat loss or 
degradation reported for the estuary. However, there are few data 
describing how they respond to this exposure. The degree to which the 
reduced numbers of the anadromous portion of the population of coastal 
cutthroat trout represent a risk to the DPS as a whole depends, in 
part, on the importance of this life-history strategy and the extent to 
which the expression of life history strategies are genetically versus 
environmentally controlled.
    NMFS (Johnson et al. 1999, p. 201) acknowledged that, if freshwater 
coastal cutthroat trout can produce smolts, this could mitigate the 
risks to the anadromous portion of the population, though at the time 
they lacked information on the length of isolation of populations above 
Mayfield Dam to fully evaluate this phenomenon. They did note that, 
even if smolts were being produced, the anadromous portion of the 
population remains consistently low in many areas, which NMFS concluded 
was cause for concern at that time. The fact that resident cutthroat 
isolated by artificial barriers for over 40 years in the Cowlitz and 
over 65 years in Big Creek in Oregon continue to produce smolts 
suggests that even if the anadromous portion of the population 
continues to experience low numbers and possible declines, smolts will 
be produced that can supplement the anadromous portion of the 
population and take advantage of any improvement in anadromous habitat 
(e.g., ocean, estuary, mainstem rivers and tributaries). Further, the 
reported rates of smolt to adult returns are consistent with literature 
reports of return ratios among healthy populations of other Pacific 
salmon species (Bradford 1995, p. 1332; Beckman et al. 1999, p. 1130), 
suggesting that return rates of anadromous cutthroat are not unusually 
low.
    In addition, there is no evidence at this time that coastal 
cutthroat trout pursuing the anadromous life-history strategy are 
segregated from the remainder of the population. This further supports 
the conclusion that anadromous and resident forms are not substantially 
separate subpopulations. Therefore, based on the evidence that 
freshwater and isolated portions of the population are capable of 
producing anadromous migrants and demonstrate rates of return 
consistent with literature reports of other Pacific salmon species, we 
conclude that freshwater and isolated portions of the coastal cutthroat 
trout population are mitigating risks to anadromous forms to some 
degree. We believe that the ability for non-anadromous cutthroat trout 
to produce anadromous progeny reduces the risk of loss of the 
anadromous life-history strategy.

Population Size and Trends

    In our 2002 withdrawal (67 FR 44934; July 5, 2002), we acknowledged 
that little data existed to determine the actual population size of 
cutthroat trout in the DPS due to the fact that most information was 
collected incidental to monitoring of salmon and steelhead, counts were 
generally conducted only in areas monitored for salmon and steelhead, 
and abundance information originated from trapping facilities not 
designed for capturing cutthroat trout, thereby limiting the value of 
the datasets. Given the information available, and acknowledging the 
limitations of the datasets analyzed, we concluded ``... while the 
anadromous portion of the population of coastal cutthroat trout is 
likely at lower-than-historical levels, there is little information 
available to determine the actual size of runs or to indicate that 
populations, or even the anadromous portion alone, are at extremely low 
levels in most areas of the DPS.''
    In assessing trends, we cited similar problems with the reliability 
of the information based on the short-term nature and gaps in many of 
the datasets, and biases due to unknown trapping efficiencies and other 
confounding factors. In regard to trends in the southwest Washington 
portion of the DPS, we stated in our 2002 withdrawal ``there was no 
reliable evidence that the adult population in the Grays Harbor 
tributaries is declining over the long term and some indication that 
the adult population may be stable or increasing in at least some 
areas'' and concluded by stating ``we no longer conclude that trends of 
the adult anadromous portion of the population and outmigrating 
juveniles in the southwest Washington portion of the DPS are all 
declining markedly as described in the proposed rule (64 FR 16407) .'' 
(67 FR 44934; July 5, 2002).
    We have little new data to assess status and trend of anadromous 
cutthroat trout in the Grays Harbor and Willapa Bay portion of the DPS 
beyond what we previously assessed. The only new information we have 
comes from Anderson (2008, p. 16), who concluded the estimated 
anadromous smolt production in Bingham Creek between 2002 and 2004 
indicated production of coastal cutthroat trout was relatively stable, 
though somewhat cyclical. This data was not analyzed using regression 
analysis, and we are not able to determine the significance of this 
trend or how well the data fit the trend line. In addition, the time 
series of the study is too short to detect a trend with any statistical 
confidence. However, this study does show that smolts continue to be 
produced from the Bingham Creek system. We have no other information 
since the withdrawal notice on adult or juvenile coastal cutthroat 
trout in the Grays Harbor watershed, and have no new information from 
the Willapa Bay watershed. Our evaluation of this information does not 
alter our original conclusions regarding the status and trend of 
anadromous cutthroat in these areas.
    In our 2002 withdrawal notice, we stated ``[d]ata for the lower 
Columbia River are limited and there are significant concerns about the 
reliability of the results. There are indications of declines in the 
anadromous component of the adult portion of the population in the 
Columbia River, though the rate of the decline is uncertain due to 
concerns

[[Page 8628]]

over the reliability of the analyses and potential biases in the data 
sets. While the number of anadromous coastal cutthroat trout have 
likely declined in the Columbia River, we do not have sufficient data 
to determine a reliable rate of recent decline and, therefore, no 
longer conclude that returns of anadromous cutthroat trout in almost 
all lower Columbia River streams have declined markedly over the last 
10 to 15 years as described in the proposed rule (64 FR 16407; April 5, 
1999). Based on these data, we do not find that the population trends 
indicate that coastal cutthroat trout are likely to be extirpated from 
any significant portion of their range in the foreseeable future.'' (67 
FR 44934; July 5, 2002). Our evaluation of what new information there 
is does not alter our previous conclusion regarding the status and 
trend of anadromous cutthroat in this area, as described above.
    We have little new data to assess status and trend of anadromous 
cutthroat trout in the Columbia River portion of the DPS. The 
production of cutthroat trout smolts from Abernathy and Germany creeks 
shows a slightly declining trend, with an increasing trend in Mill 
Creek, for the years 2001-2007 (WDFW 2009, p. 2). The number of 
returning natural-origin anadromous cutthroat trout to the Cowlitz 
River Hatchery has averaged 107 over the last 7 years, and the trend is 
positive (WDFW 2009, p. 2). Survival rates of hatchery-origin 
anadromous cutthroat trout to the Cowlitz River Hatchery have been 
consistent in recent years, averaging 4.2 percent  1.6 
percent for the years 1998-2003 and 2005-2006; this range overlaps the 
hatchery's goal of achieving an average 4.71 percent smolt-to-adult 
survival (WDFW 2005, as cited in Anderson 2008, p. 13). No information 
is available to assess population size of anadromous cutthroat trout in 
the Columbia River, although several new studies cited above in the 
Background section document the continued expression of anadromy by 
cutthroat trout from tributaries of the Columbia River.
    Thus, while the best available scientific and commercial 
information do not allow us to determine overall status and trend for 
anadromous coastal cutthroat trout in the DPS, the limited information 
above documents the continued persistence of the anadromous life-
history form and suggests trends in streams that are monitored for 
coastal cutthroat trout are variable. Although not reflective of a 
trend in anadromous population size, new information on emigration of 
cutthroat juveniles from lower Columbia River tributaries in both 
Oregon and Washington indicates tributaries that are monitored for 
cutthroat trout are still delivering anadromous smolts to the estuary 
and that adults are returning at rates that are similar to those of 
healthy salmon and steelhead populations (ODFW 2008, pp. 6-11; WDFW 
2009, p. 2; Johnson et al. 2008, pp. 16-20; Bradford 1995, p. 1332; 
Beckman et al. 1999, p. 1130). Although we acknowledge the anadromous 
life-history form in the DPS is likely at lower levels than it may have 
been in the past, our current assessment reaffirms the conclusions 
drawn in our 2002 withdrawal notice (64 FR 16407; April 5, 1999), 
regarding the unreliability of much of the available data for assessing 
population status and trend. We do not have evidence that anadromous 
coastal cutthroat trout are experiencing severe declines, or that the 
life-history form is likely to be in danger of extinction now or within 
the foreseeable future.

Significant Portion of the Range

    As defined under the Act, an endangered species is any species 
which is in danger of extinction throughout all or a significant 
portion of its range (hereafter SPR), and a threatened species is any 
species likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. Due to a number 
of legal challenges surrounding the meaning of the SPR phrase, on March 
16, 2007, the Solicitor of the Department of the Interior issued a 
formal opinion, ``The Meaning of `In Danger of Extinction Throughout 
All or a Significant Portion of Its Range''' (U.S. DOI 2007). In the 
opinion, the Solicitor concluded:
    (1) The SPR phrase is a substantive standard for determining 
whether a species is an endangered species--whenever the Secretary 
concludes because of the statutory five factor analysis that a species 
is ``in danger of extinction throughout ... a significant portion of 
its range,'' it is to be listed and the protections of the Act applied 
to the species in that portion of its range where it is specified as an 
``endangered species'';
    (2) The word ``range'' in the SPR phrase refers to the range in 
which a species currently exists, not to the historical range of the 
species where it once existed;
    (3) The Secretary has broad discretion in defining what portion of 
a range is ``significant,'' and may consider factors other than simply 
the size of the range portion in defining what is ``significant''; and
     (4) The Secretary's discretion in defining ``significant'' is not 
unlimited; he/she may not, for example, define ``significant'' to 
require that a species is endangered only if the threats faced by a 
species in a portion of its range are so severe as to threaten the 
viability of the species as a whole.
    The Service has defined an SPR as a portion of the range of the 
listed entity (whether a full species, subspecies, or DPS of a 
vertebrate) that contributes meaningfully to the conservation of that 
entity. We consider the significance of an SPR to be based on its 
contribution to the conservation (resiliency, redundancy, and 
representation) of the listable entity being considered. Resiliency of 
a species allows for recovery from periodic disturbance, such as 
ensuring that large populations persist in areas of high-quality 
habitat. Redundancy of populations provides for the spread of risk 
among populations through distribution, such that the species is 
capable of withstanding catastrophic events. Representation ensures 
that the species' adaptive capabilities are conserved, such as through 
genetic variability or the conservation of unique morphological, 
physiological, or behavioral characteristics.
    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct population segment (DPS) of vertebrate fish 
or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). The 
first step in considering a listing action is to determine the listable 
entity, whether it is a species, subspecies, or DPS. It is important to 
note that a significant portion of the range is not a ``species,'' 
i.e., it is not a listable entity as defined in the Act; rather it is 
the portion of a range of a listable entity where we may determine that 
species to be threatened or endangered. Upon a determination that a 
species is not endangered or threatened throughout all its range, we 
then examine whether there are any significant portions of the range 
where the species is threatened or endangered.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, to meet the intended purpose of 
the Act, there is no point in analyzing portions of a species' range 
that are not reasonably likely to be significant and threatened or 
endangered. To identify only those portions that warrant further

[[Page 8629]]

consideration under the Act, we must determine whether there is 
substantial information indicating that (i) the portions are 
significant and (ii) the species is in danger of extinction there or is 
likely to become so within the foreseeable future. To be considered a 
significant portion of the range that may warrant the protections of 
the Act, both questions must be answered in the affirmative; the order 
in which they are answered is not of consequence, and both are equally 
valid approaches to determining a significant portion of the range that 
may warrant the protections of the Act.
    In practice, a key part of our analysis is whether the threats are 
geographically concentrated in some way. If the threats to the species 
are essentially uniform throughout its range, and are not concentrated 
in some portion such that the species may be in danger of extinction 
there or likely to become so within the foreseeable future, no portion 
is likely to warrant further consideration. Alternatively, if any 
concentration of threats applies only to portions of the range that do 
not contribute meaningfully to the conservation of the species, such 
portions will not warrant further consideration. In cases where we do 
not identify any portions that warrant further consideration for either 
reason, we document that conclusion and no further analysis is 
conducted beyond our analysis of whether a species is threatened or 
endangered throughout its entire range.
    Depending on the biology of the species, its range, and the threats 
it faces, it may be more efficient to address the contribution to 
conservation question first or the status question first. The first 
alternative relies on an assessment of significance based on a 
portion's contribution to the conservation (resiliency, redundancy, 
representation) of the listable entity. If a portion of the range is 
identified that is considered as making a meaningful contribution to 
the conservation of the species, a five-factor threats assessment is 
then conducted to determine if the species is threatened or endangered 
in that portion. If we determine that a portion of the range does not 
make a meaningful contribution to the conservation of the species, we 
need not continue with our analysis to determine whether the species is 
threatened or endangered there.
    The second alternative is to first conduct a five-factor threats 
assessment on the portion under consideration to determine whether the 
species is threatened or endangered in this geographic area. If we 
determine that the species is not threatened or endangered in that 
portion of its range, we need not determine if that portion makes a 
meaningful contribution to the conservation of the species. If, 
however, we determine that the portion of the range under consideration 
does make a meaningful contribution to the conservation of the species 
and the species is threatened or endangered in that portion, we would 
then propose to add that species to the appropriate list and specify 
that significant portion of the range as threatened or endangered, as 
provided under section 4(c)(1) of the Act.
    In this case, the Court, based on information presented in the 2002 
withdrawal of the proposed rule, has directed us to assess whether the 
marine and estuarine areas of the Southwestern Washington/Columbia 
River DPS represent a significant portion of the coastal cutthroat's 
range. The portion of the species' range to be considered as a 
potential SPR has, therefore, already been defined for the Service. In 
order to address the Court's remand, we have elected to conduct a five-
factor threats assessment on the portion under consideration, the 
marine and estuarine areas of the DPS, to determine whether the coastal 
cutthroat trout is threatened or endangered in this geographic area.
    According to the process described above, if we determine through 
our five-factor threats assessment that coastal cutthroat trout are not 
threatened or endangered in the marine and estuarine areas of the DPS, 
the question of whether that portion may make a meaningful contribution 
to the conservation of the species would not warrant further 
consideration. If, on the other hand, we determine that coastal 
cutthroat trout are threatened or endangered in that portion, we would 
then proceed to consider the question of whether those marine and 
estuarine areas make a meaningful contribution to the conservation of 
the species in terms of resiliency, redundancy or representation. If 
the importance of those marine and estuarine areas to the conservation 
of coastal cutthroat trout in the DPS were affirmed, we would then 
propose to add the DPS to the appropriate list and would specify 
coastal cutthroat trout in that significant portion of the range as 
threatened or endangered.

Summary of Factors Affecting the Species

    As noted above in the Previous Federal Actions section, the 
District Court's remand of our 2002 withdrawal (67 FR 44934; July 5, 
2002) of the proposed rule (64 FR 16397; April 5, 1999) was due to the 
Ninth Circuit's determination that we did not properly consider whether 
the estuaries and other marine areas of the DPS constitute a 
significant portion of the range of the DPS. The Court's focus on 
marine and estuarine areas was due to statements in our record that 
included: first, acknowledgement of degradation of estuary and marine 
areas that are vital to the anadromous life-form of the DPS; second, 
that the anadromous life-form is important to the DPS's long-term 
survival strategy; and, third, that though there is evidence that 
resident life-forms can spawn anadromous life-forms, this is only 
significant if estuary habitat conditions and near-shore environments 
can support the persistence of this life-history strategy.
    To address the Court's remand, the following analysis focuses on 
current threats, and threats reasonably likely to occur in the 
foreseeable future, to anadromous cutthroat trout in marine and 
estuarine areas of the DPS. As described above, we define ``estuary'' 
to mean a semi-enclosed coastal body of water that has a free 
connection with the open sea and within which sea water is measurably 
diluted with freshwater derived from land drainage (Lauff 1967, as 
cited in ISAB 2000, p. 2). In the Columbia River, salt water intrusion 
extends up to roughly rmi 28 (rkm 45) depending on daily tide cycles 
and seasonal flow volume. For this analysis, we define the Columbia 
River estuary to rmi 28 (rkm 45). This is distinguished from 
definitions created for other management processes that are tied to 
tidal influence rather than salt water intrusion. Because the primary 
issue for coastal cutthroat trout is based on the expression of 
anadromy, defining the estuary based on salt water intrusion is more 
biologically relevant.
    There are three estuaries in the DPS: the Columbia River, Willapa 
Bay, and Grays Harbor. Although the Court did not ask us to revisit 
status, trends, and threats to anadromous cutthroat trout or other 
life-history forms outside of marine and estuarine areas, we have 
considered any new information available for these areas that would 
suggest a significant change in status, trend, or threats.
    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or

[[Page 8630]]

curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination. Each of these 
factors relevant to coastal cutthroat trout in the marine and estuarine 
portion of the Southwestern Washington/Columbia River DPS are discussed 
below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    In 1999, the proposed rule (64 FR 16407; April 5, 1999) listed 
forest management and estuary degradation as principal factors in the 
decline of coastal cutthroat rangewide, and estuary degradation as the 
principal factor affecting coastal cutthroat trout in the Southwestern 
Washington/Columbia River DPS. Our 2002 withdrawal of the proposed rule 
(67 FR 44934; July 5, 2002) assessed effects to coastal cutthroat trout 
from forest management and estuary degradation, as well as from 
agriculture and livestock management, dams and barriers, urban and 
industrial development, and mining. Our analysis, combined with 
information presented in the proposed rule, confirmed that all of these 
land uses, to varying degrees, had previously impacted, and continue to 
impact, habitat utilized by all life-history forms of coastal cutthroat 
trout in the DPS. Despite these impacts, we determined that coastal 
cutthroat trout, including anadromous forms, were not threatened to the 
degree portrayed in the proposed rule, and further, current regulatory 
mechanisms conferred a low risk of significant additional destruction 
or modification of habitat in the foreseeable future.
    In regard to curtailment of range, our analysis in the withdrawal 
notice confirmed that coastal cutthroat trout, especially the 
freshwater forms, remained well distributed throughout the DPS, at 
densities comparable to healthy-sized populations in large portions of 
the subspecies' range outside the DPS. We acknowledged a change in 
accessibility of some areas to anadromous cutthroat trout due to 
barriers created by dams, diversions, culverts, dikes, and tidegates, 
and some streams that were lost to development, such as streams around 
Portland, Oregon. However, we determined these areas of inaccessibility 
to the anadromous life form comprised a relatively small portion of the 
DPS, and that while the anadromous portion of the DPS was likely at 
lower-than-historical levels, there was little specific information 
available to support the statement in the proposed rule that the 
abundance of the anadromous portion was at extremely low levels. 
Subsequently, we concluded in the withdrawal of the proposed rule that 
none of the impacts assessed under Factor A were likely to result in 
coastal cutthroat trout becoming threatened or endangered in the 
foreseeable future.
    We present some new information below regarding potential impacts 
to habitat utilized by cutthroat trout in marine and estuarine areas, 
such as the proposed development of liquefied natural gas terminals in 
the Columbia River estuary and shellfish aquaculture impacts in Willapa 
Bay and Grays Harbor. In addition, there is also information newly 
available on the significant actions that have occurred, or are 
currently under way, to restore and protect estuary habitats in the 
DPS, particularly in the Columbia River. These restoration and 
conservation actions are summarized in this section following 
discussion of factors relevant to estuary degradation.
Columbia River Estuary and Marine Areas

Proposed Liquefied Natural Gas (LNG) Development

    Liquefied Natural Gas (LNG) projects include berths for unloading 
liquefied gas, storage tanks, facilities to vaporize the liquid back to 
natural gas, and pipelines from the projects to deliver the gas to its 
final destination. There are two LNG terminals approved or proposed in 
the lower Columbia River: Bradwood Landing (approved) and Oregon LNG 
(proposed). In addition, another potential site at St. Helens, Oregon, 
has been identified.
    Aspects of LNG development that could potentially affect aquatic 
resources include construction activities and associated habitat 
modification, water appropriations, artificial lighting, accidental 
spills or leaks of hazardous materials, and operation of the LNG 
terminal. In-water construction activities include dredging, 
development of the shoreline, and pile driving and could result in 
increased sedimentation and turbidity, increased noise, permanent 
habitat alteration, loss of benthic organisms, re-suspension of 
contaminants, entrainment through water intake pipes, and alterations 
to sediment transport and deposition. Activities associated with 
construction of the terminal, access facilities, and pipelines could 
indirectly affect aquatic resources through ground disturbances that 
lead to increased sediment inputs and turbidity in adjacent water 
bodies, increased water temperature from vegetation removal, noise, and 
artificial lighting that could alter species behavior (FERC 2008).
    Operation of the LNG terminals would entail maintenance dredging of 
the access channel, potential for accidental spills of hazardous 
materials, stormwater runoff from impervious surfaces, lighting of ship 
berth and unloading facilities, operation of noise-producing equipment, 
and routine discharge of water from the vaporization process and 
testing of fire suppression equipment. Impacts to aquatic resources 
could include loss of habitat from increased water temperature, 
increased turbidity and sedimentation, and modification of animal 
behavior. Potential impacts to cutthroat trout would vary depending on 
location of the facilities relative to cutthroat use areas in the 
estuary (FERC 2008), but is not expected to be a limiting factor.
    Although the construction and operation of LNG terminals have the 
potential to impact anadromous cutthroat trout and associated habitat 
in the Columbia River, the area of impact relative to the total area of 
available habitat in the Columbia River and estuary is small. In 
addition, regulatory mechanisms required through the Federal Energy 
Regulatory Commission (FERC) and through State land use regulations are 
expected to provide protective mechanisms to minimize impacts of 
construction and operation of LNG facilities. For these reasons we do 
not believe potential impacts rise to a level that constitutes a 
significant threat to anadromous cutthroat trout in the Columbia River 
portion of the DPS.

Wave Energy

    Currently, there are five wave energy projects being evaluated or 
proposed in Oregon: (1) Coos Bay Ocean Power Technologies (OPT) Wave 
Park Project located in the Pacific Ocean about 2.5 mi (1.6 km) 
offshore in Coos County; (2) Newport OPT Wave Park Project about 3 to 6 
mi (1.9 to 3.7 km) offshore in Lincoln County; (3) Oregon Coastal Wave 
Energy Project in the Pacific Ocean in Tillamook County; (4) Reedsport 
OPT Wave Park Project (FERC license pending); and (5) Douglas County 
Wave Energy Project off the Umpqua South jetty. In addition, Oregon 
State University has an experimental buoy offshore of Newport, Oregon. 
Given that wave energy is an emerging technology and new to Oregon, 
there is uncertainty as to its effects on the marine environment.

[[Page 8631]]

These potential projects would not occur within the Southwestern 
Washington/Columbia River DPS, and thus we do not believe potential 
impacts constitute a threat to anadromous cutthroat trout.

Channel Improvement Project Update

    The Columbia River Channel Improvement Project (CRCIP) is a 
collaborative effort between the U.S. Army Corps of Engineers (USACE) 
and six river ports in Oregon and Washington to deepen the navigation 
channel to accommodate the current fleet of international bulk cargo 
and container ships. The USACE Record of Decision, signed in January of 
2004, was to (1) deepen the 40-ft (12.2 m) navigation channel by 3 ft 
(1 m) to facilitate navigation, and (2) improve the natural environment 
through several ecosystem restoration projects designed to enhance 
salmon habitat. The Service and NMFS issued a non-jeopardy opinion on 
the project in 2002.
    Project construction has been largely consistent with the decision 
criteria developed by the Adaptive Environmental Management Team. 
Several short-term discrepancies involving monitoring results for 
temperature and salinity were explained by corresponding variations in 
river flows or storms. The monitoring of dredging and dredged material 
disposal continues to show that actual construction volumes and their 
disposal are within the specifications developed for the project and 
that these specifications were considered in the non-jeopardy 
biological opinion. Several monitored deviations of cross-channel 
survey results from the decision criteria were shown to have returned 
to pre-project conditions in follow-up monitoring.
    Reporting of extensive sediment identified only two locations, well 
outside the navigation channel, where sediment contaminants might be of 
concern. Shallow water habitat surveys and fish stranding monitoring 
are not scheduled to be addressed in detail until project construction 
has been completed. While completion and maintenance of the CRCIP may 
cause short-term and low-level impacts now and in the foreseeable 
future to anadromous cutthroat trout and their habitat, we do not 
believe these potential impacts constitute a significant threat because 
of the adequacy of current regulatory mechanisms and limited project 
scope relative to available habitat.

Columbia River Estuary Restoration Actions

    Habitat restoration activities that may offset the threat of 
habitat destruction or modification in the lower Columbia River have 
been ongoing since 1999 through a variety of entities and are aimed at 
restoring habitat conditions to benefit primarily salmon and steelhead. 
However, they may well provide benefits for cutthroat trout and other 
species as well by restoring estuary rearing habitat. The database of 
the Lower Columbia River Estuary Partnership (LCREP) identifies 44 
completed and/or ongoing projects in the lower 25 rmi (47 rkm) of the 
Columbia River and a total of 152 for the Columbia River from the mouth 
upstream to Bonneville Dam (LCREP 2009). The projects include a variety 
of conservation and restoration activities designed to benefit 
salmonids including culvert removal, tidegate alteration or removal, 
large wood placement, tidal reconnection, dike breaching, invasive 
species removal, revegetation, water control structures, conservation 
easements, channel modification, velocity barrier removal, and land 
acquisitions.
Grays Harbor and Willapa Bay Estuaries and Marine Areas

Loss of estuary habitat

    Currently, coastal cutthroat trout use of the various portions of 
Willapa Bay and Grays Harbor estuaries and marine habitat is unknown. 
However, recent studies have documented estuary use by coastal 
cutthroat trout within (Hudson et al. 2008, entire) and outside of the 
DPS (Haque 2008, entire; Krentz et al. 2007, entire). Krentz et al. 
(2007, p. 81) examined migratory patterns of coastal cutthroat trout in 
the Salmon River Estuary, Oregon. Two main life-history forms were 
identified: Ocean migrants that move quickly through the estuary to 
marine environments, and estuarine residents that remain in the estuary 
throughout the spring and summer months. In addition, this study 
documented trout residing in the estuary but making brief forays into 
the marine environment and individuals overwintering in the estuary. In 
South Puget Sound, Haque (2008, p. 26) documented overwintering use of 
estuaries by coastal cutthroat trout. She also concluded that observed 
movement patterns and travel distances may indicate different life-
history strategies among anadromous coastal cutthroat trout. Both 
studies may support the existence of opportunistic and adaptable 
behavior of coastal cutthroat trout.
    Coastal cutthroat trout are opportunistic feeders that forage in 
eelgrass beds in estuary environments (Trotter 1997, p. 10). In 
nearshore environments in Washington and Oregon, coastal cutthroat 
trout were found to prey on salmonids, herring, pacific sand lance, 
shiner perch, surf smelt, anchovy, and invertebrates including gammarid 
amphipods (family Crangonyctidae), shrimp, and isopods (Jauquet 2008, 
p. 152; Jones et al. 2008, p. 146). Although we have no new information 
on coastal cutthroat trout migration in estuary or marine areas 
offshore from Willapa Bay and Grays Harbor, it is likely that estuary 
habitat within these areas is used extensively by anadromous coastal 
cutthroat trout.
    The proposed rule (64 FR 16402; April 5, 1999) described the 
potential loss of important estuary habitat through the ``[d]redging, 
filling, and diking of estuarine areas for agricultural, commercial, or 
municipal uses'' and stated ``reductions in the quantity and quality of 
estuarine ... habitat have probably contributed to declines, but the 
relative importance of these risks is not well understood'' (64 FR 
16408; April 5, 1999).
    The withdrawal notice (72 FR 44948; July 5, 2002) stated ``30 
percent of the historical wetland habitat in Grays Harbor estuary has 
been lost, as well as 31 percent of the historical Willapa Bay estuary 
wetlands.'' During the public comment period we received additional 
information on the historical loss of estuary habitats to Willapa Bay 
and Grays Harbor estuaries (WDFW 2009, pp. 2-3). WDFW reported 
estimates of a 19 percent loss of native tidal marsh plant communities 
and extensive dendritic slough systems in the Willapa River Basin and a 
36 percent loss in the Bay Basin due to diking and filling along the 
lower Willapa River. Diking of the river's upper intertidal wetlands, 
downstream of South Bend, is estimated at 89 percent. However, we have 
no information documenting any effects of the historical loss of 
eelgrass and wetland habitat on coastal cutthroat trout populations in 
Willapa and Grays Harbor estuary habitat.
    Ongoing and planned restoration projects in the Columbia River and 
southwest Washington estuary habitats should benefit coastal cutthroat 
trout and their prey species (WDFW 2009, p. 2). We have no specific 
information on restoration projects occurring in Willapa and Grays 
Harbor estuaries. In addition, we do not have information at this time 
regarding the responses of coastal cutthroat trout or their prey to 
estuary enhancement and restoration.

[[Page 8632]]

Shellfish Aquaculture

    Shellfish aquaculture is likely to degrade water quality 
temporarily and reduce available foraging habitat for anadromous 
coastal cutthroat trout and prey species. In Willapa Bay and Grays 
Harbor estuaries, activities that may potentially affect anadromous 
coastal cutthroat trout are those that involve bed preparation, 
mechanical harvest, and shellfish grow-out. Although these specific 
activities have not been directly investigated, bed preparation 
activities such as tilling, disking, raking, harrowing, and dragging in 
eelgrass beds may reduce the density and biomass of eelgrass and their 
related communities (USFWS 2009, p. 120). Approximately 55 percent of 
the Willapa Bay estuary is intertidal land (42,502 of 78,876 acres (ac) 
(17,200 of 31,920 hectares (ha)), and approximately 21 percent (9,000 
ac (3,642 ha)) of that intertidal land is intensively cultured. 
Commercial aquaculture is limited to 3 percent (900 ac (364 ha)) of the 
intertidal land in the Grays Harbor estuary (Burrowing Shrimp Committee 
1992 as cited in Feldman et al. 2000, p. 146). Within intertidal areas, 
eelgrass provides cover, refuge, and supports a prey base for coastal 
cutthroat trout. Although the loss of eelgrass density and abundance as 
a result of shellfish aquaculture may have negative effects to 
individual coastal cutthroat trout, due to the limited area dedicated 
to intensive shellfish culture, we do not believe these potential 
impacts rise to the level of a significant threat to coastal cutthroat 
trout in the marine and estuarine areas, or the DPS as a whole.
    Since 1963, the Washington Department of Ecology has issued permits 
to oyster growers to apply carbaryl to intertidal areas for the purpose 
of controlling burrowing shrimp (USACE 2008, as cited in USFWS 2009, p. 
143). Carbaryl is applied annually in July or August. Between 2000 and 
2003, carbaryl was applied on 541 ac (219 ha) on Willapa Bay and Grays 
Harbor intertidal lands. In 2007, approximately 420 ac (170 ha) in 
Willapa Bay and approximately 140 ac (55 ha) in Grays Harbor were 
treated with carbaryl (Booth and Tufts 2007 as cited in USFWS 2009, p. 
143). Labenia et al. (2007, p. 6) found that coastal cutthroat trout do 
not avoid carbaryl-contaminated seawater at ecologically representative 
concentrations potentially found in Willapa Bay. Brief exposure to 
carbaryl affects the swimming performance of cutthroat trout (Labenia 
et al. 2007, pp. 6-7). Decreased swimming performance may increase 
predation on coastal cutthroat trout smolts. Because cutthroat trout 
forage in shallow waters during the summer months it is likely that 
wild fish will be exposed to carbaryl. Carbaryl is absorbed onto 
sediments relatively quickly and may remain toxic to burrowing shrimp 
for up to 28 days (Labenia et al. 2007, p. 9).
    Carbaryl is acutely toxic to invertebrates (USFWS 2009, p. 144). A 
secondary indirect exposure pathway to anadromous salmonids may exist 
through dietary consumption of dead and dying invertebrates and fish 
(USFWS 2009, p. 146). We have no information as to whether or not 
coastal cutthroat trout may consume dead and dying invertebrates or 
fish or how the potential uptake of the chemical in this manner may 
affect coastal cutthroat trout. The reduction of prey species for 
several weeks after treatment of oyster beds may indirectly reduce the 
growth of anadromous cutthroat trout by temporarily reducing the amount 
of prey species. One or two tidal cycles after spraying, the area may 
be relatively devoid of macroinvertebrate prey. Recolonization of an 
area by epibenthic invertebrates is variable, depends on the species 
and site, and can take anywhere from 2 to 52 days (Simenstad and Fresh 
1995, as cited in USFWS 2009, p. 137). Fish would likely recolonize the 
area more quickly. Given the relatively small portion of the estuaries 
treated with carbaryl, we do not believe the potential impacts 
constitute a significant threat to anadromous cutthroat trout in the 
Willapa Bay and Grays Harbor portion of the DPS. The use of carbaryl on 
oyster beds is planned to be phased out in 2012 (http://www.epa.gov/oppsrrd1/REDs/factsheets/carbaryl_factsheet.pdf).
Summary of Threat Factor A
    As discussed in Bottom et al. (2005, entire), the Columbia River 
estuary and plume have undergone significant alteration from historical 
conditions, which has likely reduced the amount and quality of habitat 
for anadromous coastal cutthroat trout. While not as much information 
is available regarding current conditions and foreseeable threats to 
anadromous cutthroat trout from the Willapa Bay and Grays Harbor 
watersheds, it is clear these estuaries have also undergone significant 
alteration.
    Despite these altered conditions, anadromous coastal cutthroat 
trout continue to persist in the DPS and return rates appear to be 
within the normal range for Pacific salmon, as documented in recent 
studies on hatchery and wild-origin cutthroat trout returning to 
Cowlitz River Hatchery (Johnson et al. 2008, entire; ODFW 2008, entire; 
WDFW 2009, pp. 5-7). In addition to documenting the persistence of 
returning anadromous adults, these studies also provided new 
information on the prevalence of outmigrating coastal cutthroat smolts, 
even above long-standing artificial barriers, from tributaries of the 
lower Columbia River. Although very little new information is available 
on trend of anadromous cutthroat trout in the DPS, the limited 
information available does not suggest an overall declining trend of 
returning adults, or significant limiting factors to anadromous coastal 
cutthroat trout.
    While development and operation of LNG terminals and completion and 
maintenance of the Columbia River Channel Improvement Project may cause 
short-term and low-level impacts now and in the foreseeable future to 
anadromous cutthroat trout and their habitat, we do not believe these 
potential impacts constitute a significant threat or a limiting factor 
because of the adequacy of current regulatory mechanisms and limited 
project scope relative to available habitat. In Willapa Bay, shellfish 
aquaculture may be impacting anadromous cutthroat trout, but we have no 
information to determine the nature of these effects; however, we do 
know that the area of intensive culture represents a small fraction of 
the habitat utilized by coastal cutthroat trout. Similarly, while the 
use of carbaryl to control burrowing shrimp in shellfish aquaculture 
has been shown through lab studies to potentially impact coastal 
cutthroat trout, the area of exposure within the estuary is relatively 
small, and we have no information to indicate this pesticide has caused 
a decline in anadromous cutthroat trout.
    Given the adequacy of current regulatory mechanisms and the 
restoration actions that have occurred, as well as those under way, the 
overall baseline condition of the estuary is more likely on a positive 
versus negative trajectory. Furthermore, we have no information to 
suggest any correlation between the threat factors considered here and 
any decline in the anadromous life-history form, such that we would 
consider anadromous coastal cutthroat trout likely to become endangered 
within the foreseeable future. We have thus evaluated the best 
available scientific and commercial information and determined 
anadromous cutthroat trout are not threatened by destruction, 
modification, or curtailment of its habitat or range in marine and 
estuarine areas, or the DPS as a whole.

[[Page 8633]]

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes.

    Our 2002 withdrawal of the proposed rule identified only one 
potential threat, recreational angling, under Factor B. Based on our 
analysis we determined the potential threats from recreational angling 
did not represent a significant threat to the DPS as a whole. In our 
current review of available information we did not identify any new 
threats, nor did we find evidence that any previously identified 
threats had significantly changed. As noted in our withdrawal of the 
proposed rule, coastal cutthroat trout are not harvested commercially, 
and bycatch of cutthroat trout in commercial gillnet fisheries is 
minimal due to the large mesh size of the nets (NMFS 2003; pp. 3-73). 
Scientific research and collection for educational programs have 
probably had no discernible negative impact on the anadromous life-
history form or the DPS as a whole.
    Anadromous cutthroat were a sought-after sportfish for many years, 
due in part to the multiple hatchery programs operated by the States of 
Oregon and Washington. While it is likely that sport angler harvest 
within the DPS contributed to reductions in the anadromous form over 
time, due in part to liberal size and bag limits (Trotter 2008, p. 95), 
the legacy of overharvest on today's status of anadromous cutthroat is 
unknown. Current angling effort for anadromous cutthroat trout has 
significantly declined in the last two decades (67 FR 44934, July 5, 
2002; Rawding 2001 as cited in Anderson 2005, p. 17), and in many areas 
coastal cutthroat trout harvest is primarily incidental to recreational 
fisheries for other species of salmonids. Because of harvest 
restrictions on naturally produced coastal cutthroat trout in many 
areas and the lack of targeted fisheries, direct mortality due to 
fishing pressure is thought to be relatively low, at least in recent 
years (Hooton 1997, p. 66; Gerstung 1997, pp. 53-54).
    Washington's fishing regulations have been designed to increase the 
survival of rearing and migrating cutthroat smolts and to allow adult 
females to spawn at least once (Washington Department of Game 1984, as 
cited in Anderson 2008, p. 13). (Note: for additional information on 
the changes in coastal cutthroat trout angling regulations over time, 
see the withdrawal notice (67 FR 44934; July 5, 2002)). In 2009, new 
anti-snagging restrictions were implemented in Washington State (WDFW 
2009, p. 15), which may provide further protection of coastal cutthroat 
trout. In 1998, Washington adopted a catch and release regulation for 
any coastal cutthroat trout caught in marine waters. Washington's 
freshwater fishing regulations in the Willapa Bay and Washington zone 
of the Columbia River provide protection to coastal cutthroat trout by 
requiring catch and release of naturally produced cutthroat trout. 
Catch and release restrictions are generally required in the mainstem 
Columbia River, except for adipose-clipped (removal of fin behind 
dorsal fin) hatchery fish. Below the Bonneville Dam, two hatchery trout 
can be retained daily with a minimum size of 12 inches (in) (30.5 
centimeters (cm)). A bag limit of five hatchery trout over 12-in (30.5 
cm), including no more than two over 20 in (50.8 cm) is allowed in the 
Cowlitz River. Harvest restrictions are not as restrictive in the Grays 
Harbor watershed, where harvest of wild coastal cutthroat is allowed in 
many of its tributaries. Regulations require a 14-in (35.6-cm) minimum 
size and daily bag limit of two wild cutthroat trout.
    Current Oregon sport fishing regulations (ODFW 2009b) in the 
Columbia Zone, which includes most of the Columbia River in Oregon 
within the Southwestern Washington/Columbia River DPS, have required 
catch and release of wild unmarked coastal cutthroat trout since 1997.
Summary of Threat Factor B
    We have evaluated the best available scientific and commercial 
information on the overutilization of anadromous cutthroat trout for 
commercial, recreational, scientific, or educational purposes. We 
identified no new or significantly increased threats under this threat 
factor beyond those analyzed in the 2002 withdrawal notice (67 FR 
44934; July 5, 2002). The most relevant information pertaining to this 
threat factor are the current angling regulations within the DPS in 
Oregon and Washington, which with few exceptions require the release of 
naturally produced cutthroat trout. Current fishing regulations within 
the DPS for Oregon and Washington are generally protective of naturally 
produced coastal cutthroat trout. Where regulations allow the retention 
of wild cutthroat trout (some Grays Harbor tributaries), the regulation 
is designed to increase the likelihood that juveniles and migrating 
smolts are protected and the majority of adult females are able to 
spawn at least once (Anderson 2008, p. 13). Based on the information 
above, we conclude that anadromous cutthroat trout are not threatened 
now or in the foreseeable future by overutilization in marine and 
estuarine areas, or any of the remaining portions of the DPS.

C. Disease or Predation.

    Our 2002 withdrawal of the proposed rule provided information on 
several threats to anadromous coastal cutthroat trout identified under 
Factor C, including the parasite Ceratomyxa shasta in the Columbia and 
Willamette rivers, gas bubble disease below large hydroelectric dams in 
the Columbia River, and predation by nonnative fishes, pinnipeds, and 
fish-eating birds such as Caspian terns (Hydroprogne caspia) and 
double-crested cormorants (Phalacrocorax auritus) (67 FR 44934; July 5, 
2002). We determined these potential threats did not represent 
significant threats to the DPS as a whole. In our current review of 
available information we did not identify any new disease or predation 
threats, nor did we find evidence that any previously identified 
threats had significantly changed. We did receive new information 
allowing us to quantify the potential effect of avian predation in the 
lower Columbia River, which we were forced to deal with qualitatively 
in the withdrawal notice (67 FR 44934; July 5, 2002).
    Estuary predation of outmigrating salmon and steelhead juveniles by 
fish-eating birds has been studied extensively in the lower Columbia 
River, focused on colonies of Caspian terns and double-crested 
cormorants, which have grown in number in recent decades. The largest 
breeding colony of Caspian terns in the world (10,700 breeding pairs in 
2008), and the largest breeding colony of double-crested cormorants 
(13,700 breeding pairs) in western North America, now nest on East Sand 
Island. The reasons for these concentrations of fish-eating birds are: 
(1) the creation of artificial nesting habitat; (2) reliable food 
supply produced by salmon hatcheries; and, (3) loss of secure nesting 
sites and food resources elsewhere (BRNW 2009).
    From 1999 to 2001, about 4 percent of the PIT tags that were placed 
on juvenile salmon in the Columbia River system were detected on these 
island nesting habitats, suggesting a minimal predation rate on salmon 
and steelhead, varying from 2.6 percent of yearling chinook to 11.5 
percent of the juvenile steelhead (Ryan et al. 2001 as cited in Quinn 
2005, p. 238). The magnitude of predation on salmon and steelhead has 
more recently been estimated to be approximately 10 percent of salmon 
and steelhead that survive to the estuary (BRNW 2009). Recent work by 
Hudson et al. (2008, entire) examined estuary bird predation on 
anadromous coastal cutthroat trout based on PIT tagging of cutthroat 
trout in 11 tributaries of the

[[Page 8634]]

Columbia River from 2001 to 2008. Avian mortality was estimated to be 
16.6 percent for all cutthroat trout that were tagged. Mortality rates 
in individual tributaries ranged from 3.7 percent to 24.2 percent.
    PIT tags from Bear Creek and Big Creek coastal cutthroat trout were 
detected on Caspian tern and double-crested cormorant colonies on East 
Sand Island during both years of an ODFW study (ODFW 2008, p. 9). Tag 
detection was not 100 percent efficient, so estimates are conservative. 
Confirmed mortalities from avian predation made up 5.3 percent of the 
total outmigrant cutthroat from Big Creek in 2006, 15.4 percent of the 
Big Creek migrants in 2007, and 14.7 percent of Bear Creek migrants in 
2007 (ODFW 2008, p. 9).
    The studies by Hudson et al. (2008, entire) and ODFW (2008, entire) 
present new information on impacts to anadromous cutthroat trout from 
avian predation that was not considered in the withdrawal notice (67 FR 
44934; July 5, 2002). Despite the avian predation rates documented in 
Hudson et al. (2008, entire) and ODFW (2008, entire), return rates of 
adults are similar to or exceed adult return rates for many wild, 
healthy anadromous salmon and steelhead populations in all but one 
tributary that was monitored (Bradford 1995, p. 1332; Beckman et al. 
1999, p. 1130), suggesting avian predation is not a limiting factor for 
anadromous coastal cutthroat trout.
    The USACE initiated a program in 2008 to disperse and relocate the 
tern and cormorant colonies outside the Columbia Basin to reduce 
predation impacts on threatened Columbia River salmon and steelhead by 
creating new nesting habitat in a number of locations along the west 
coast, including Crump and Summer lakes in southeast Oregon, Fern Ridge 
Reservoir in the southern Willamette Valley, and in San Francisco Bay, 
California. Concurrent with the creation of new habitats outside the 
lower Columbia River estuary, current nesting habitat on East Sand 
Island is being gradually reduced through vegetation management. 
Available nesting habitat on East Sand Island in 2009 was reduced by 
approximately 50 percent from that available in 2008 (BRNW 2009). 
Nesting by Caspian terns has occurred at the newly created Crump Lake 
habitat, and evidence from banded birds indicates some of the birds are 
from the East Sand Island colony. Two newly created islands in Summer 
Lake are being used by nesting terns. Results from monitoring terns at 
Crump and Summer lakes indicate initial success. Recent video camera 
footage revealed that Caspian terns visited newly created nesting 
habitat at Fern Ridge Reservoir following the 2009 nesting season. 
Construction of sites in San Francisco Bay will take place prior to the 
2010 nesting season.
    While there is evidence that relocation efforts are showing 
success, fish-eating birds have likely always been present in the 
marine and estuarine portions of the DPS. Research documenting the 
extent of the predation on salmon and steelhead, and now on coastal 
cutthroat trout, has begun to portray the nature of the impact of these 
predators, but does not serve to explain the full measure of the 
impact. Though we have some data on bird predation, we have no data to 
explain what proportion of all predation faced by outmigrating coastal 
cutthroat trout is bird-caused versus other sources. To determine 
whether this bird predation presents an extinction risk to anadromous 
coastal cutthroat trout, we reviewed comments submitted by WDFW (2009, 
pp. 2-7) on hatchery releases and returns at its Cowlitz River 
hatchery.
    Between brood year 1996 and brood year 2004, the rate of returns of 
released coastal cutthroat trout 2 years after release ranged from a 
low of 2.36 percent to a high of 7.41 percent (excluding 2004, when 
some fish may have been double-counted by mistake). Subsequent to brood 
year 2004, the broodstock trap was moved, making comparisons between 
the years before and after the move inappropriate. For brood years 2005 
and 2006, return rates were measured at 0.92 percent and 1.77 percent, 
respectively. The Cowlitz Hatchery has as its program goal to achieve 
an average 4.71 percent smolt-to-adult survival, including harvest and 
return of up to 5,000 fish at current production levels (WDFW 2005, as 
cited in Anderson 2008, p. 13). WDFW's submitted comments state that 
returns for brood years 1998-2006 (excluding 2004) averaged 4.2 
percent,  1.6 percent., the range of which includes the 
program goals for smolt-to-adult survival (Anderson 2008, p. 13).
    A 3-year study on the Oregon side of the lower Columbia River 
estuary documented adult return rates of PIT- or acoustic-tagged 
coastal cutthroat trout that emigrated from Big Creek and Bear Creek 
(ODFW 2008, entire). ODFW reports: ``In Big Creek, none of 30 
acoustically tagged fish that emigrated in Spring 2006 returned to the 
stream, and one of 53 PIT and/or acoustic tagged migrants (two percent) 
returned to the stream after emigrating in Spring 2007. In Bear Creek, 
1 of 20 fish (5 percent) returned to the stream from the 2007 acoustic 
tagged group, and 2 of 25 PIT-tagged fish that were detected emigrating 
in spring 2008 returned in autumn 2008 (8 percent). One of the two 
returning fish from Bear Creek returned to Big Creek, however, 
indicating that some straying among tributaries occurs. Accordingly, it 
is possible that some tagged fish may have returned to other 
unmonitored streams.'' In the streams that show returns, the rates of 
return are consistent with literature reports of smolt-to-adult return 
ratios among other healthy populations of Pacific salmon species 
(Bradford 1995, p. 1332, Beckman et al. 1999, p. 1130), suggesting that 
conditions experienced post-emigration in the estuary and marine 
habitats, including present levels of avian predation, do not present a 
limiting factor to coastal cutthroat trout.
Summary of Threat Factor C
    We have evaluated the best available scientific and commercial 
information on the threat of disease and predation. We did not identify 
any new disease or predation threats to anadromous coastal cutthroat 
beyond those identified previously in the proposed rule (64 FR 16397; 
April 5, 1999) or the withdrawal of the proposed rule (67 FR 44934; 
July 5, 2002). We did receive information allowing us to quantify the 
potential level of predation by birds. We found no new evidence to 
suggest previously identified threats under Factor C are significant 
sources of mortality to anadromous cutthroat in marine and estuarine 
areas or the DPS as a whole. While the recent work by Hudson et al. 
(2008, entire) confirms that anadromous cutthroat trout, like other 
migrating fishes in the estuary, are vulnerable to predation by terns 
and cormorants, the overall impact to the anadromous life-history form 
in the Columbia River is unknown. However, we do know that, despite the 
avian predation rates documented in Hudson et al. (2008, pp. 54-55) and 
ODFW (2008, p. 9), return rates of adults are similar to or exceed 
adult return rates for many wild, healthy anadromous salmon and 
steelhead populations (Bradford 1995, p. 1332, Beckman et al. 1999, p. 
1130) in all but one tributary that was monitored, suggesting avian 
predation is not a limiting factor for anadromous coastal cutthroat 
trout. Fish-eating birds will continue to be, and have always been, 
present in the marine and estuarine portions of the DPS. Although we 
expect efforts to redistribute Caspian terns and cormorants may reduce 
predation impacts on anadromous cutthroat trout in the Columbia River 
estuary, in the near-term, we expect this source of mortality to 
continue at

[[Page 8635]]

current levels. Based on the information above, we conclude that 
anadromous cutthroat trout are not threatened by disease or predation 
in marine and estuarine areas, or any of the remaining portions of the 
DPS.

D. The Inadequacy of Existing Regulatory Mechanisms.

    In the 2002 withdrawal of the proposed rule, we concluded that 
coastal cutthroat trout are not threatened as a result of the 
inadequacy of existing regulatory mechanisms, including Federal land 
management practices; Oregon and Washington land use practices; dredge, 
fill, and in-water construction programs; water quality programs; and 
hatchery management (67 FR 44934; July 5, 2002). We further noted that 
many of these regulatory mechanisms were contributing to the recovery 
of aquatic habitats from degradation that occurred prior to the 
creation and implementation of many of these State and Federal 
regulatory mechanisms. Our review of available information indicates 
that there has been no significant weakening of State and Federal 
regulatory mechanisms since 2002. Hence, we again conclude that the 
species is not threatened as a result of inadequacy of regulatory 
mechanisms.
Summary of Threat Factor D
    Inadequacy of regulatory mechanisms was not identified as a threat 
in the proposed rule, nor was this considered a significant threat at 
the time of the withdrawal (2002). Based on our current analysis, we 
have no evidence that any of the previously identified regulatory 
mechanisms have been significantly weakened from 2002 to 2009, and 
several changes during this time have strengthened regulatory 
mechanisms. Although we believe that our 2002 analysis adequately 
assessed the role of these existing regulatory mechanisms on coastal 
cutthroat trout in marine and estuarine environments, we have 
reassessed their role in these geographic areas, considered any changes 
from 2002 to 2009, and again conclude that anadromous coastal cutthroat 
trout are not threatened in marine and estuarine areas, or in any 
remaining portions of the DPS, by inadequacies in these mechanisms.

E. Other Natural or Manmade Factors Affecting Its Continued Existence.

    Under Factor E in the withdrawal of the proposed rule, we assessed 
the potential threats of climate change, catastrophic natural events, 
and hybridization to coastal cutthroat trout (67 FR 44934: July 5, 
2002). We concluded from our analysis that none of these factors were 
anticipated to significantly threaten the Southwestern Washington/
Columbia River DPS of coastal cutthroat trout in the foreseeable 
future. With the exception of climate change, we have no new 
significant evidence to analyze that would potentially alter our 
previous conclusion that these factors do not pose a significant threat 
to coastal cutthroat trout in marine and estuarine areas or the 
remaining portions of the DPS.
Climate Change
    According to the Climate Impacts Group, an interdisciplinary 
research group studying the impacts of natural climate variability and 
global climate change (``global warming'') on the U.S. Pacific 
Northwest, it is unclear how coastal ocean conditions in the Pacific 
Northwest will respond to climate change because of the complexity of 
these systems and the lack of long-term studies (CIG 2009). 
Considerable research has provided evidence for the likelihood and 
potential consequences of climate change associated with greenhouse gas 
emissions. Climate change is anticipated to result in sea level rise, 
ocean acidification, increased winter precipitation and intensity of 
storm events, accelerated coastal erosion, and increased water 
temperatures (OPWG 2006, p. 23). The rate of sea level rise in the 
Pacific Northwest is projected to be faster than the global average. 
Sea level rise could result in increased coastal erosion rates and 
degraded nearshore habitat.
    Bottom et al. (2005, pp. 80-88) assessed impacts of climate change 
in the Columbia River Basin. They concluded that the near-term effects 
of climate change are not large enough to rival the impacts of 
anthropogenic alterations to the hydrological cycle. Climate change may 
exacerbate current conditions and conflicts over water supply by 
increasing demand and decreasing natural flows during the critical 
spring-freshet period (Hamlet and Lettenmaier 1999, as cited in Bottom 
et al. 2005, p. 80). While physical changes to the near-shore 
environment appear likely, much remains to be learned about the 
magnitude, geographic extent, and temporal and spatial patterns of 
change, and their effects on coastal cutthroat trout.
    In this section we summarize new information regarding potential 
impacts to coastal cutthroat trout in marine environments. New 
information regarding the condition of the marine environment in 
Washington and Oregon includes information regarding harmful algal 
blooms, dead zones, prey availability and quality, and the potential 
exacerbation of these conditions from climate change.
California Current System
    The California Current System (CCS) extends about 190 mi (~300 km) 
offshore from southern British Columbia, Canada, to Baja California, 
Mexico, and is dominated by a southward surface current of colder water 
from the north Pacific (Miller et al. 1999, p. 1; Dailey et al. 1993, 
as cited in USFWS 2009b, p. 34). The system is characterized by 
upwelling, particularly in spring-summer. This is an oceanographic 
phenomenon involving wind-driven movement of dense, cooler, and usually 
nutrient-rich water towards the ocean surface, which replaces warmer 
and usually nutrient-depleted surface water (Smith 1983, as cited in 
USFWS 2009b, p. 34). Coastal upwelling replenishes nutrients near the 
surface where photosynthesis occurs, resulting in increased 
productivity (Batchelder et al. 2002, as cited in USFWS 2009b, p. 35).
    The CCS is affected by El Nixño-Southern Oscillation (ENSO) 
and Pacific Decadal Oscillation climatic processes. ENSO is used to 
describe periodic changes, typically lasting 1 to 2 years, in air-sea 
interaction in the equatorial Pacific Ocean region. El Nixño 
events (warm-water events) result in increased sea-surface 
temperatures, reduced flow of eastern boundary currents such as the 
CCS, and reduced coastal upwelling (Norton and McLain 1994, pp. 16,019-
16,030; Schwing et al. 2006, as cited in USFWS 2009b, p. 35). La 
Nixña events (cold-water events) produce effects in the 
northeast Pacific Ocean that tend to be the reverse of those during El 
Nixño events, resulting in colder, more-nutrient rich waters 
than usual, due to strong upwelling-favorable winds and cold waters 
near the surface due to a shallow thermocline (zone of rapid 
temperature change in the water column that typically separates warm 
water above from cold water below) (Murphree and Reynolds 1995, p. 52; 
Oedekoven et al. 2001, as cited in USFWS 2009b, p. 35).
    In addition to climate events such as El Nixño and La 
Nixña, the mid-latitude Pacific Ocean experiences warm and cool 
phases that occur on decadal time scales (Mantua 2000, as cited in 
USFWS 2009b, p. 35). The term ``Pacific Decadal Oscillation'' was 
coined to describe long-term climate variability in the Pacific Ocean, 
in which there are observed warm and cool phases, or ``regime shifts'' 
(Mantua et al. 1997, pp.

[[Page 8636]]

1069-1079; Mantua 2000, as cited in USFWS 2009b, p. 35). Recently, the 
North Pacific Gyre Oscillation concept was developed to help explain 
the basis for the changing Pacific Decadal Oscillation patterns in the 
northeast Pacific (Ceballos et al. 2009, as cited in USFWS 2009b, p. 
35).
    Should climate change affect the timing, variability, and/or 
magnitude of coastal upwelling in the species' range, it could 
negatively affect coastal cutthroat trout and prey resources. The 
available information is equivocal, with studies to date reaching 
different conclusions on whether such upwelling changes are expected. 
Bakun (1990, as cited in USFWS 2009b, p. 43) outlined a physical 
mechanism by which coastal upwelling should intensify under global 
warming. While Bakun's mechanism has received much support, and is 
based on simple physical principles, two other modeling studies have 
predicted little change in the magnitude and seasonality of upwelling 
in the next century (Mote and Mantua 2002; Mote et al. 2008, as cited 
in USFWS 2009b, p. 43). The differing predictions of ocean conditions 
and changes in upwelling patterns due to climate change prevent an 
informative threat assessment to coastal cutthroat trout. We, 
therefore, have no information at this time indicating that climate 
change poses a significant threat to anadromous coastal cutthroat trout 
in the marine and estuarine areas, or any remaining areas of the DPS, 
within the foreseeable future.
Harmful Algal Blooms and Biotoxins
    Some algal species cause harm to animals and the environment 
through toxin production or excessive growth. These algal species are 
known as harmful algae and can include microalgae that live suspended 
in the water or macroalgae that live attached to plants or other 
substrates. Harmful algal blooms are a natural phenomenon, but human 
activities are thought to contribute to the increased frequency of some 
of these, e.g., increased nutrient loading is a factor that contributes 
to increased occurrence of high biomass harmful algal blooms (Lopez et 
al. 2008, as cited in USFWS 2009b, p. 36). All coastal States in the 
United States have experienced harmful algal bloom events and ``it is 
generally believed that the frequency and distribution of [harmful 
algal blooms] and their impacts have increased considerably in recent 
years'' (Lopez et al. 2008, as cited in USFWS 2009b, p. 36).
    The consequences of harmful algal blooms can include the death of 
whales, sea lions, dolphins, manatees, sea turtles, birds, fish, and 
invertebrates from direct exposure to toxins; exposure to toxins via 
contaminated food, water, or aerosols; damaged gills; and starvation 
due to low or poor food quality (Lopez et al. 2008, as cited in USFWS 
2009b, p. 36). Ecosystems can be degraded through the formation of such 
large blooms that they alter habitat quality through overgrowth, 
shading, or oxygen depletion (see dead zone section below). In 
addition, mortalities from harmful algal blooms can degrade habitat 
quality indirectly through altered food webs or hypoxic (low oxygen) 
events caused by the decay of dead animals (Lopez et al. 2008, as cited 
in USFWS 2009b, p. 36).
    Blooms of Heterosigma akashiwo, a raphidophyte known to kill fish 
have been documented in the Pacific Northwest annually since the 1960s 
and blooms of Chanttonella, another raphidophyte, have also killed fish 
along the Pacific coast. Macroalgal blooms along Washington's coast 
harm seagrasses, fish, and invertebrates due to hypoxia and potentially 
due to the production of bioactive compounds (Lopez et al. 2008, as 
cited in USFWS 2009b, p. 37). These blooms may reduce survival of 
coastal cutthroat trout through exposure to toxins, reducing habitat, 
and reducing the quality and quantity of prey species. We have no 
information at this time documenting the effect of these blooms on 
coastal cutthroat trout, prey species, or foraging habitat in the 
marine environment within the DPS, or to suggest that these blooms pose 
a significant threat to anadromous coastal cutthroat trout in the 
marine and estuarine areas of the DPS within the foreseeable future.
Dead Zones
    Ecosystems can be degraded through the formation of such large 
algal blooms that they alter habitat quality through overgrowth, 
shading, or oxygen depletion (hypoxia or anoxia) (Lopez et al. 2008, as 
cited in USFWS 2009b, p. 38). Hypoxia or anoxia (low or no dissolved 
oxygen) can suffocate fish and bottom-dwelling organisms and can 
sometimes lead to hydrogen sulfide poisoning (Lopez et al. 2008, p. 22; 
Grantham et al. 2004, p. 750; Chan et al. 2008, as cited in USFWS 
2009b, p. 38). In addition, mortality from harmful algal blooms can 
degrade habitat quality indirectly through altered food webs or hypoxic 
events caused by the decay of dead animals (Lopez et al. 2008, as cited 
in USFWS 2009b, p. 38). Hypoxic and anoxic events along the Pacific 
Coast can also be caused by large-scale changes in ocean conditions on 
near-shore upwelling ecosystem dynamics. Upwelling is part of the 
California Current coastal ecosystem, but typically, northerly winds 
alternate throughout the summer with southerly winds. The wind shifts 
suppress upwelling, mix the water, and prevent nutrient overload. 
However, every summer since 2002, the Oregon Coast has experienced a 
hypoxic/anoxic event (also referred to as ``dead zone'') (Grantham et 
al. 2004; Chan et al. 2008, as cited in USFWS 2009b, p. 38), due to 
changes in typical summer wind patterns along with upwelling of 
nutrient-rich, but oxygen-poor, waters.
    While hypoxic conditions are known to be related to upwelling 
events, the hypoxic events off Oregon's coast extend from the 
shallowest reaches (inshore of 30 meter (98 feet) isobath) to the 
nearshore stations (1.2 to 3.1 mi (2 to 5 km) offshore), which is 
unusual. Further complicating matters, phytoplankton are two to three 
times more abundant during these hypoxic events, resulting in increased 
respiration (expiration of carbon dioxide), which exacerbates the 
dissolved oxygen deficits (Grantham et al. 2004, as cited in USFWS 
2009b, p. 38). The severe hypoxic event in 2006 extended into 
Washington at least as far north as the Quinault River and affected 
crabs in pots at depths of about 45 to 90 ft (14 to 27m). In addition 
to unusual summer wind patterns, researchers are also interested in 
large phytoplankton blooms that occur in the late spring and early 
summer in the waters off Washington and Vancouver Island. The large 
blooms in the north might explain why waters off the Oregon coast that 
now upwell at the coastal shelf break are unusually low in oxygen. The 
change in wind patterns and the response of the marine ecosystem may be 
an interlude in a natural cycle or may signal a more permanent shift in 
the regional climate and the health of the ecosystem (Chan et al. 2008, 
as cited in USFWS 2009b, p. 38).
    These seasonal dead zones begin as early as June and typically end 
in September, times when coastal cutthroat trout are present in 
nearshore and marine environments. It is unclear how far offshore 
coastal cutthroat trout migrate; those entering nearshore waters 
reportedly move moderate distances along the shoreline. These hypoxic 
events in Oregon and Washington may occur within the marine areas used 
by coastal cutthroat trout and avoidance of these areas may impact 
migratory patterns. In addition, dead zones can result in significant 
mortality of fish and invertebrates (Grantham et al. 2004; Chan et al. 
2008 as cited in USFWS 2009b, p. 39). Reduction of these species

[[Page 8637]]

may contribute to low quality and quantity of prey for coastal 
cutthroat trout. However, we have no information at this time 
documenting the effects of dead zones on coastal cutthroat trout 
migration or prey availability.
Summary of Threat Factor E
    Although climate change will undoubtedly impact ocean productivity 
as well as estuary and freshwater habitats, the likely effects to 
anadromous cutthroat trout and the DPS as a whole are uncertain. At 
this point we have no information that allows us to make a reliable 
projection of climate change effects on coastal cutthroat trout within 
the foreseeable future. We note that coastal cutthroat trout are 
habitat generalists and, like other generalist species, may be less 
vulnerable to changing environmental conditions brought on by climate 
change compared to other species that have a narrower range of habitat 
requirements (Foden et al. 2008, p. 3). As discussed above, we also 
assessed the potential threats of catastrophic natural events and 
hybridization under Factor E in the 2002 withdrawal of the proposed 
rule (67 FR 44934: July 5, 2002). However, as we have no new 
information to analyze regarding these threats, we consider our 
previous assessment as still representing the best available 
information on these subjects. Therefore, we reaffirm our original 
conclusion that catastrophic natural events and hybridization do not 
pose a significant threat to coastal cutthroat trout.
    We have evaluated the best available scientific and commercial 
information on natural or manmade factors affecting its continued 
existence, and we conclude that anadromous cutthroat trout are not 
threatened in marine and estuarine areas, or any of the remaining 
portions of the DPS, by climate change, potential catastrophic natural 
events, or hybridization.

Finding

    Based on the remand of the withdrawal of the proposed rule and the 
direction provided by the Court, we have reassessed our previous 
analysis to focus on anadromous cutthroat trout in the marine and 
estuarine portion of the DPS. We relied heavily on our past analysis in 
order to make a new finding for several reasons. Our previous analysis 
was comprehensive and included an assessment of threats to anadromous 
cutthroat upon which we could build. Also, we found that threats have 
not significantly changed between the date of the withdrawal and now. 
It was logical to compare the threats we previously identified to any 
change in threats now or how we projected those threats into the 
foreseeable future, and to consider whether any new threats have been 
identified since our last status determination. In this analysis, we 
have, therefore, considered all information previously evaluated in the 
2002 withdrawal notice (67 FR 44934; July 5, 2002), as well as any new 
information that has become available since that time.
    Although 7 years have passed since our withdrawal of the proposed 
rule, we have little new information available to further assess 
current status and trend of anadromous cutthroat trout in the Columbia 
River, Grays Harbor or Willapa Bay watersheds, and marine areas. 
Although not reflective of a trend, new information on emigration of 
cutthroat juveniles from lower Columbia River tributaries in both 
Oregon and Washington indicates tributaries that are monitored for 
cutthroat trout are still delivering anadromous smolts to the estuary 
and that adults are returning at rates that are similar to healthy 
salmon and steelhead populations (ODFW 2008, entire; Johnson et al. 
2008, entire; Zydlewski et al. 2008, entire; Hudson et al. 2008, 
entire; Bradford 1995, p. 1332; Beckman et al. 1999 p. 1130). New 
information from ODFW (2008, entire) provides additional evidence that 
resident cutthroat trout isolated above long-standing anthropogenic 
barriers still produce anadromous smolts. This suggests that, to the 
extent that there is a hereditary basis for life history, it is not 
lost rapidly even under strong selection against the anadromous form.
    We have no evidence of any new significant threats or significant 
changes in previously identified threats to anadromous cutthroat trout, 
though we now have additional quantitative information on predation by 
Caspian terns and cormorants in the lower estuary at East Sand Island. 
While we acknowledge that avian predation is a source of mortality for 
anadromous cutthroat trout, its overall impact to anadromous cutthroat 
trout is unknown. However, we have no evidence to suggest it is a 
limiting factor. Trends of returning hatchery and naturally produced 
cutthroat trout at Cowlitz Hatchery have been relatively stable in 
recent years, suggesting that the large releases of anadromous 
cutthroat smolts are not being significantly impacted by avian 
predation. Furthermore, USACE is seeking to reduce this impact. The 
goal of the program is to reduce the size of the Caspian tern colony by 
half by 2015. Early results of the USACE's relocation program for 
Caspian terns, as well as the concurrent program to reduce suitable 
nesting habitat on East Sand Island, are encouraging.
    Future climate change will undoubtedly impact aquatic habitat and 
aquatic species in the lower Columbia River, and few species will be 
unaffected. However, coastal cutthroat trout, because of their complex 
life-history diversity, may be better equipped than many salmonids to 
handle the environmental stochasticity we may expect to see under 
future climate change. This fact underscores the importance of 
conserving and restoring the life-history diversity present in this 
complex subspecies.
    The Columbia River estuary and plume, as well as Willapa Bay and 
Grays Harbor estuaries, have undergone significant alteration from 
historical conditions, which has likely reduced the amount and quality 
of habitat for anadromous coastal cutthroat trout. Despite these 
altered conditions, anadromous cutthroat continue to persist in the 
DPS. New information documents the prevalence of outmigrating coastal 
cutthroat smolts, even above long-standing artificial barriers, from 
many tributaries of the lower Columbia River, which supports the 
continued existence of the anadromous life-history form. Although 
numbers of anadromous coastal cutthroat trout may be lower than they 
have been historically, the limited information available on trends in 
anadromous coastal cutthroat trout does not suggest an ongoing decline, 
or the existence of significant limiting factors to anadromous coastal 
cutthroat trout.
    Projects such as proposed LNG terminals and completion and 
maintenance of the Columbia River Channel Improvement Project may cause 
short-term and low-level impacts now and in the foreseeable future to 
anadromous cutthroat trout and their habitat. However, we do not 
believe these potential impacts constitute a significant threat because 
of the adequacy of current regulatory mechanisms and limited project 
scope relative to available habitat. In Willapa Bay, shellfish 
aquaculture and the use of carbaryl to control burrowing shrimp in 
shellfish aquaculture has been shown through lab studies to potentially 
impact coastal cutthroat trout, but we lack information to suggest 
these have caused declines in anadromous cutthroat trout; in addition, 
the areas affected are small compared to available habitat. Given the 
adequacy of current regulatory mechanisms and the restoration actions 
that have occurred, as well as those under way, we conclude the overall 
baseline habitat condition of the Columbia River estuary

[[Page 8638]]

is likely on a positive trajectory. Based on our evaluation of the best 
available scientific and commercial information, we have, therefore, 
determined anadromous cutthroat trout are not threatened by 
destruction, modification, or curtailment of their habitat or range in 
marine and estuarine areas, or the DPS as a whole.
    We have evaluated the best available scientific and commercial 
information on the overutilization of anadromous cutthroat trout for 
commercial, recreational, scientific, or educational purposes. We 
identified no new or significantly increased threats under this threat 
factor beyond those analyzed in the 2002 withdrawal. We, therefore, 
conclude that anadromous cutthroat trout are not threatened now or in 
the foreseeable future by overutilization in marine and estuarine 
areas, or any of the remaining portions of the DPS.
    While recent studies confirm that anadromous cutthroat trout, like 
other migrating fishes in the estuary, are vulnerable to predation by 
terns and cormorants, the overall impact to the anadromous life-history 
form in the Columbia River is unknown. However, we do know that, 
despite the avian predation rates documented in recent studies, return 
rates of adults are similar to or exceed adult return rates for many 
wild, healthy anadromous salmon and steelhead populations, suggesting 
that avian predation is not a limiting factor for anadromous coastal 
cutthroat trout. We previously determined that potential threats due to 
disease did not represent significant threats to the DPS as a whole. In 
our current review of available information we did not identify any new 
disease threats, nor did we find evidence that any previously 
identified threats had significantly changed. We, therefore, conclude 
that anadromous cutthroat trout are not threatened by disease or 
predation in marine and estuarine areas, or any of the remaining 
portions of the DPS.
    Few regulatory mechanisms were identified as a threat in the 
proposed rule and none were considered a significant threat at the time 
of the withdrawal (2002). Based on our current analysis, we have no 
evidence that any of the previously identified regulatory mechanisms 
have been significantly weakened from 2002 to 2009, and several changes 
during this time have strengthened regulatory mechanisms. We, 
therefore, conclude that anadromous coastal cutthroat trout are not 
threatened in marine and estuarine areas, and in the remaining portions 
of the DPS by inadequacies in regulatory mechanisms.
    Although climate change will undoubtedly impact ocean productivity 
as well as estuary and freshwater habitats, the likely effects to 
anadromous cutthroat trout and the DPS as a whole, are uncertain. 
Equivocal projections of future conditions do not allow for a reliable 
prediction of the effects of climate change on the DPS. Coastal 
cutthroat trout are habitat generalists and, like other generalists, 
may be less impacted due to changing environmental conditions brought 
on by climate change and, therefore, more resilient compared to other 
species that have a narrower range of habitat. We have no new 
information available that would alter our previous conclusion from the 
2002 withdrawal notice that potential catastrophic events and 
hybridization do not pose a significant threat to coastal cutthroat 
trout (67 FR 44934; July 5, 2002). We have evaluated the best available 
scientific and commercial information on natural or manmade factors 
affecting its continued existence, and we conclude that anadromous 
cutthroat trout are not threatened in marine and estuarine areas, nor 
in any of the remaining portions of the DPS, by climate change, 
potential catostrophic natural events, or hybridization.
    Although marine habitats comprise a significant portion (about 90 
percent) of the combined marine and estuarine analysis area, we found 
no information on threats specific to anadromous coastal cutthroat 
trout or similar fish species in marine habitats. The new information 
that is available primarily addresses the potential effects of climate 
change on marine habitat such as seasonal upwelling, El Nixño 
and La Nixña events, near-shore dead zones, and harmful algal 
blooms (see discussion under Threat Factor E). These events influence 
primary productivity and thus likely influence the forage base and 
overall productivity of these marine environments for anadromous 
coastal cutthroat trout. However, the degree to which these events are 
impacted now and in the foreseeable future by climate change is 
uncertain, as are the subsequent potential impacts to anadromous 
cutthroat trout. Although we acknowledge uncertainty around the 
potential impacts of climate change, the limited information available 
on threats to marine habitats within the analysis area does not suggest 
that current or future conditions represent a threat to anadromous 
coastal cutthroat trout.
    It is also helpful to note that, while we have no evidence of 
potential threats in marine areas, but do know of some potential 
threats in estuarine areas, based on estuary utilization information 
from the Columbia River, it appears the vast majority of anadromous 
coastal cutthroat trout rely less on estuarine habitat than on marine 
habitat. The degree of this reliance on the estuary varies over the 
life of an individual fish. New information on coastal cutthroat trout 
movement from the Columbia River estuary suggests anadromous coastal 
cutthroat trout on their first outmigration use the estuary largely as 
a migration corridor only, and spend relatively little time exposed to 
those threats that may exist in estuarine areas. These younger fish are 
the ones most susceptible to the types of threats described, but their 
limited exposure to these threats on their way to marine habitats 
reduces the likelihood of a response, so such exposure is not likely a 
limiting factor.
    Those anadromous coastal cutthroat trout that return from marine 
habitats exhibit more extensive use of the estuary than is typical for 
a first year outmigrant. However, at the older age and larger size they 
have reached after spawning, they are also generally less vulnerable to 
potential estuarine threats. Therefore, in the marine areas that 
comprise 90 percent of the analysis area, we see few if any potential 
threats specific to anadromous coastal cutthroat trout. In the 
remaining 10 percent of the analysis area, a small percentage of 
anadromous coastal cutthroat trout are exposed to, but are less 
susceptible to, the potential or known estuarine threats.
    We have carefully considered the best scientific and commercial 
information available regarding the status of and threats to coastal 
cutthroat trout in the marine and estuarine portions of the 
Southwestern Washington/Columbia River DPS. On the basis of our review 
and analysis of the five threat factors considered under section 
4(a)(1) of the Act, we have concluded that anadromous cutthroat trout 
are not threatened or endangered in the marine and estuarine portions 
of the Southwestern Washington/ Columbia River DPS. As stated earlier, 
to be considered a significant portion of the range that may warrant 
the protections of the Act, there must be substantial information 
indicating that both (i) the portions are significant and (ii) the 
species is in danger of extinction there or is likely to become so 
within the foreseeable future. Both questions must be answered in the 
affirmative. Since we have determined that the marine and estuarine 
areas of the DPS (i.e., the portion of the DPS' range under 
consideration) are not threatened, then we have determined that the 
marine and estuarine areas of the DPS do not

[[Page 8639]]

warrant the protections of the Act. Furthermore, we have reviewed the 
comments received for indications of significant changes in threats to 
coastal cutthroat trout throughout the Southwestern Washington/Columbia 
River DPS, and concluded there is no new indication that coastal 
cutthroat trout are threatened or endangered in any other portions of 
the DPS or the DPS as a whole.
    Therefore, based on the lack of significant present or foreseeable 
threats, we have determined that the Southwestern Washington/Columbia 
River DPS of coastal cutthroat trout is not likely to become in danger 
of extinction in the foreseeable future throughout all or a significant 
portion of its range, including the marine and estuarine areas of the 
DPS, and, therefore, does not meet the Act's definition of a threatened 
or endangered species. Consequently, we withdraw our April 5, 1999, 
proposed rule to list the Southwestern Washington/Columbia River DPS as 
threatened (64 FR 16397; April 5, 1999).

Current and Future Conservation Actions

    While the following information did not contribute to our 
determination, we believe it is worthwhile to highlight current and 
planned conservation efforts for coastal cutthroat trout.
    In the 2002 withdrawal of the proposed rule, we committed to 
providing technical assistance to Federal, State, and other entities to 
encourage them to address the conservation needs of coastal cutthroat 
trout. We committed to work with these agencies and entities to collect 
additional biological information, monitor the status of coastal 
cutthroat trout, and monitor the progress of conservation efforts for 
the DPS (67 FR 44934; July 5, 2002).
    The Service initiated efforts in 2003 to involve the States in 
development and implementation of a multi-state coastal cutthroat trout 
conservation strategy. Meetings with ODFW resulted in a Memorandum of 
Understanding (MOU) signed in January 2005 (Goodson 2008, pp. 9-10). 
Three products to be accomplished under the MOU included: (1) a 
cooperative coastal cutthroat trout research, monitoring, and 
evaluation (RM&E) plan, to be implemented under the Oregon Plan for 
Salmon and Watersheds and ODFW's Native Fish Conservation Policy; (2) a 
coastal cutthroat trout conservation plan, developed via ODFW's Native 
Fish Conservation Policy; and, (3) a Conservation Agreement between the 
Service and ODFW to specifically identify the RM&E and conservation 
actions and responsibilities necessary to conserve coastal cutthroat 
trout in Oregon. The risk assessments identified in the 2005 Native 
Fish Status Report (ODFW 2005) were used to set conservation plan 
priorities under the Native Fish Conservation Policy (OAR 635-007-
0505(3)). Monitoring of coastal cutthroat trout has been incorporated 
into existing ODFW programs, although it does not encompass all coastal 
cutthroat trout habitat (K. Goodson, pers. comm. 2009).
    The 2005 Coastal Cutthroat Trout Symposium was held in Port 
Townsend, Washington, with major support provided by the Service, 
Oregon Chapter of the American Fisheries Society, and the Pacific 
States Marine Fisheries Commission (PSMFC). The objectives of the 
symposium were to: (1) update coastal cutthroat trout information 
presented during the 1995 symposium in Reedsport, Oregon; (2) enhance 
knowledge on all facets of coastal cutthroat trout life history and 
ecology; (3) provide a current assessment of the range-wide status of 
coastal cutthroat trout populations; and, (4) encourage development of 
a coordinated range-wide coastal cutthroat trout conservation and 
monitoring plan (Young et al. 2008, p. xi). The Service's presentation 
encouraged the exploration of opportunities to speed implementation of 
conservation strategies through the newly formed Western Native Trout 
Initiative (WNTI) partnership (Finn et al. 2008, p. 134). The 
partnership is funded by a multi-state grant issued through the 
Association of Fish and Wildlife Agencies. The 17 species and 
subspecies covered by WNTI are divided into 5 geographically based 
groups. The Northwest Group focuses on bull trout and coastal cutthroat 
trout. WNTI is seen as a way not only to address funding the 
development of conservation plans and actions, but also an opportunity 
to raise the visibility of coastal cutthroat trout (K. Griswold, pers. 
comm. 2009).
    Following the 2005 symposium and inclusion of coastal cutthroat 
trout in WNTI, a working group composed of experts throughout the range 
of coastal cutthroat trout was formed, known as the Coastal Cutthroat 
Trout Interagency Committee (Committee). The Committee is composed of 
State wildlife agency representatives from the western States and 
British Columbia, Federal agencies (Service, U.S. Bureau of Land 
Management, U.S. Forest Service, and U.S. Geologic Survey), and the 
Northwest Indian Fisheries Commission; the Committee is sponsored by 
the PSMFC (K. Griswold, pers. comm. 2009). The Committee was formalized 
in 2006, and identified the goal of ``developing a consistent framework 
to help guide and prioritize conservation, management, research, and 
restoration of coastal cutthroat trout throughout their native range'' 
(Griswold 2008, p. 169).
    In pursuit of their goal, the Committee has sponsored two 
workshops; the latest focusing on monitoring needs was held in 2007. As 
a result of that workshop, the Committee initiated a database project 
whereby information about the distribution, abundance, and diversity of 
coastal cutthroat trout could be housed and shared. The project has 
three current products: (1) a searchable library housed within PSMFC's 
StreamNet Library; (2) a database with an initial focus on documented 
occurrence; and, (3) an interactive web-based map to display documented 
occurrence (K. Griswold, pers. comm. 2009). Work has also started on a 
draft outline of a coastal cutthroat trout conservation plan, which 
includes a section addressing research, monitoring, and evaluation.

Summary of Comments and Recommendations

    To ensure that any action resulting from the request for 
information is based on the best scientific and commercial data 
available, we solicited comments or suggestions from the public, other 
concerned governmental agencies, the scientific community, industry, or 
any other interested parties. We particularly sought comments 
concerning:
    (1) Information on those marine and estuarine areas that could 
potentially constitute a significant portion of the range of the 
Southwestern Washington/Columbia River DPS of the coastal cutthroat 
trout, and the suggested boundaries of those areas;
    (2) Information on whether and why those marine and estuarine areas 
constitute a significant portion of the range of the Southwestern 
Washington/Columbia River DPS of coastal cutthroat trout as defined by 
sections 3(6) or 3(20) of the Act;
    (3) Other information on the status, distribution, population 
trends, abundance, habitat conditions, or threats specific to those 
marine and estuarine areas that could constitute a significant portion 
of the range of the Southwestern Washington/Columbia River DPS of 
coastal cutthroat trout; and
    (4) Information on the effects of potential threat factors that are 
the basis for a species' listing determination under section 4(a)(1) of 
the Act (16

[[Page 8640]]

U.S.C. 1531 et seq.; the ``five listing factors'') specifically with 
respect to those marine and estuarine areas of the Southwestern 
Washington/Columbia River DPS of coastal cutthroat trout. The five 
listing factors considered under the Act are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; and,
     (e) Other natural or manmade factors affecting its continued 
existence.
    In the reopening of public comment (74 FR 12297; March 24, 2009), 
we defined ``estuary'' to mean a semi-enclosed coastal body of water 
that has a free connection with the open sea and within which sea water 
is measurably diluted with fresh water derived from land drainage 
(Lauff 1967, as cited in ISAB 2000, p. 2). All interested parties were 
requested to submit factual reports or information on the marine and 
estuarine areas of the Southwestern Washington/Columbia River DPS of 
coastal cutthroat trout with particular regard to whether these areas 
constitute a significant portion of the range of the DPS under the Act, 
and if so, whether the subspecies is threatened or endangered in those 
areas.
    Additionally, we contacted appropriate Federal and State agencies, 
county governments, scientific organizations, and other interested 
parties and requested comment, pursuant to section 4(b)(5)(A) of the 
Act. During the comment period, a total of four comment letters were 
submitted from government agencies, organizations, or individuals. 
Specifically, comment letters were submitted by the States of Oregon 
and Washington, from one individual, and from the Center for Biological 
Diversity. The following is a summary of substantive issues that were 
identified within the comments received and our response to each issue.

Comments from the States of Oregon and Washington

    Representatives of both the Oregon Department of Fish and Wildlife 
(ODFW) and the Washington Department of Fish and Wildlife (WDFW) 
submitted comment letters in response to the request for comments. The 
ODFW comments provided updated biological information on studies 
conducted by, or in conjunction with, ODFW, as well as ODFW's opinion 
that the lower Columbia River estuary ``may be considered a significant 
portion of the range'' of the DPS, although no statement was made about 
the rest of the estuarine and marine areas of the DPS. The ODFW 
comments also stated that ``[w]e do not feel the coastal cutthroat 
trout in the lower Columbia River estuary are threatened at this time 
due to their fairly wide distribution in the tributaries of the 
Columbia River and the fact that many of the threats facing them are 
being addressed in salmon recovery efforts'' (ODFW 2009a, p. 7).
    The WDFW provided summarized data and a number of citations for 
recent coastal cutthroat trout studies, and stated that ``marine and 
estuarine habitat is vital for the individual cutthroat trout that 
utilize this habitat for foraging'' but that ``[e]xisting information 
on abundance and size at return of the sea-going cutthroat trout of the 
[DPS] does not indicate that these fish are at risk of becoming 
endangered (WDFW 2009, p. 1).'' We have considered all data submitted 
by ODFW and WDFW in our analysis. In one instance, a comment raised 
made by the ODFW was similar to those of others who commented; we 
responded to this comment in the Public Comments section below with 
attribution.

Public Comments

    Comment 1: Several commenters, including the State of Oregon, 
suggested our definition of estuary is too limited and that we should 
consider the estuary as areas under tidal influence, not just areas of 
saltwater intrusion.
    Our Response: Although there are many accepted definitions of the 
term estuary, we chose to use the definition by Lauff (1967, as cited 
in ISAB 2000, p. 2) that describes an estuary as a semi-enclosed 
coastal body of water that has a free connection with the open sea and 
within which sea water is measurably diluted with fresh water derived 
from land drainage. This definition is consistent with how we have used 
this term since publication of the proposed rule in 1999 (64 FR 16397; 
April 5, 1999), and parallels the life-history terminology that coastal 
cutthroat trout are not anadromous until they experience salt water.
    Comment 2: One commenter suggested estuaries may be of greater 
relative importance to anadromous cutthroat than to Pacific salmon 
based on the number of times they visit or pass through this habitat 
during their lifetimes, since anadromous coastal cutthroat trout can 
spawn up to four times during their lifetime.
    Our Response: We acknowledge that anadromous cutthroat trout have 
the potential to move through and utilize estuaries multiple times 
during their lifetimes, and recent information from studies of 
cutthroat trout movement in the lower Columbia River document this 
(Hudson et al. 2008, entire; Johnson et al. 2008, entire). However, 
although anadromous cutthroat have the capability of spawning multiple 
times, studies suggest a relatively low percentage of individuals 
return to spawn a second or third time (Hudson et al. 2008, pp. 54-55; 
Johnson et al. 2008, pp. 16-18). Consequently, estuaries may be of 
greater relative importance only to those individuals that return to 
spawn multiple times, which represent a small fraction of this life 
history form.
    Comment 3: One commenter stated the importance of the Columbia 
River plume (i.e., the mix of salt and freshwater that extends into the 
marine environment) to anadromous cutthroat and suggested that the 
Service consider the plume, as well as the estuary and near-shore 
travel zones along the mainstem Columbia River, in any future 
considerations regarding critical habitat designation for coastal 
cutthroat trout.
    Our Response: Since our finding is that listing is not warranted, 
we are not considering developing a proposed critical habitat rule for 
the Southwestern Washington/Columbia River DPS of coastal cutthroat 
trout.
    Comment 4: Several commenters suggested that headwater resident 
cutthroat above barriers do not commonly migrate below these barriers 
and should not be relied upon to contribute to anadromous populations 
below the barriers.
    Our Response: New information supports the fact that headwater 
resident cutthroat migrate below natural barriers at low rates (Bateman 
et al. 2008, pp. 62-64). Given this low rate of emigration, it is 
unlikely that they contribute significantly to anadromous populations 
downstream. However, there is evidence within the DPS that resident 
freshwater forms within the zone of anadromy (i.e., not isolated above 
natural barriers impassable to anadromous fish), even those that have 
been isolated for long periods of time above man-made barriers, are 
contributing substantial numbers of emigrating smolts to the Columbia 
River estuary (ODFW 2008, pp. 9-11, Johnson et al. 2008, pp. 19-20). 
For this reason we expect resident freshwater forms within the zone of 
current or historical anadromy to continue to contribute to the 
maintenance of the anadromous life-history strategy
    Comment 5: Several commenters suggested there is evidence of 
genetic

[[Page 8641]]

distinctness between anadromous coastal cutthroat, freshwater 
migratory, and resident cutthroat trout, and that this distinctness 
provides support for the existence of an SPR within the Southwestern 
Washington/Columbia River DPS.
    Our Response: The best available information suggests there is 
little genetic differentiation between anadromous and sympatric 
resident freshwater cutthroat trout. Ardren et al. (in press) found no 
genetic differences between sympatric anadromous and resident life 
forms within two tributaries of the lower Columbia River. They further 
found genetic differences were an order of magnitude higher between 
tributary samples than between life forms within a tributary. Their 
results are consistent with a population made up of multiple life 
histories that freely interbreed within each tributary producing 
anadromous, freshwater migratory and resident life forms. In contrast, 
there is information to suggest resident cutthroat trout isolated above 
natural barriers may be genetically distinct from cutthroat below 
natural barriers due in part to low rates of emigration over these 
barriers and the inability of anadromous and resident migratory 
cutthroat to reproduce with coastal cutthroat trout that exist above 
these barriers (Griswold 1997, pp. 167-169; Bateman et al. 2008 pp. 62-
64). We find that available information on genetic distinctness between 
life forms of coastal cutthroat trout does not support the existence of 
an SPR in the Southwestern Washington/Columbia River DPS, especially 
for the anadromous life form, which is not genetically distinct from 
resident forms below natural barriers.
    Comment 6: One commenter suggested that resident cutthroat trout 
above barriers contribute little to anadromous and freshwater migratory 
forms below barriers and that the designation of DPSs and SPRs should 
consider this information.
    Our Response: We agree that resident cutthroat trout above natural 
barriers likely contribute little to the maintenance of anadromous and 
freshwater migratory forms. We have considered this information in our 
current analysis.
    Comment 7: One commenter stated that if the Service finds a marine 
and estuarine SPR that warrants listing as threatened or endangered, 
then the whole Southwestern Washington/Columbia River DPS should be 
listed.
    Our Response: Current Service policy per the DOI solicitor's M-
Opinion on significant portion of the range allows for applying the 
protections of the Act to an SPR that is a portion of a listable 
entity, whether that entity is a DPS, subspecies, or species. In any 
event, because the Service has determined that the subspecies is not 
threatened or endangered in the marine and estuarine areas of the DPS, 
the Service need not decide what the appropriate scope of a listing 
would be.
    Comment 8: One commenter cited the definition of SPR from the 
Service's draft guidance and suggested, ``based on this criteria, 
marine and estuarine areas easily qualify as an SPR of the range of the 
Southwestern Washington/Columbia River coastal cutthroat trout because 
these areas are essential to the survival of sea-run coastal cutthroat 
trout.''
    Our Response: Our draft guidance states that a portion of a 
species' range is significant if it is important to the conservation of 
the species because it contributes meaningfully to the representation, 
resiliency, or redundancy of the species. While we agree that marine 
and estuarine areas are important to the survival of sea-run 
(anadromous) coastal cutthroat trout, our analysis indicates that the 
species is not threatened or endangered in these areas and thus further 
consideration of an SPR is not warranted.
    Comment 9: One commenter stated that the Service's withdrawal of 
the proposed rule failed to provide any evidence that sea-run cutthroat 
trout are abundant or widespread and that, in fact, most of the 
information the Service presented indicates continued cause for 
concern.
    Our Response: Our five-factor analysis in the 2002 withdrawal found 
coastal cutthroat trout to be generally widespread and abundant 
throughout the DPS. While we acknowledged that the anadromous life form 
was likely reduced from historical levels, and perhaps was still 
declining in some areas, we presented new information and highlighted 
changes in regulations that changed our conclusion about the risk that 
the DPS may become endangered in the foreseeable future. The Service's 
withdrawal of the proposed rule did not require we demonstrate that 
sea-run (anadromous) cutthroat trout be widespread and abundant, only 
that they are not threatened or endangered, as these terms are defined 
in section 3 of the Act.
    Comment 10: One commenter said that the reopening of the public 
comment (74 FR 12297; March 24, 2009) misrepresented the court's 
direction to the Service by suggesting that some portions of the 
withdrawal of the proposed rule were insulated from review.
    Our Response: While we believe the Court's remand was based solely 
on our failure to adequately consider whether the marine and estuarine 
portions of the DPS constituted a ``significant portion of the range'' 
of the DPS, we agree that the withdrawal decision was remanded in full 
by the Court's ruling, and that data regarding impacts in areas of the 
DPS outside marine and estuarine areas are also relevant to the current 
finding. The reopening of the public comment (74 FR 12297; March 24, 
2009) on the proposed rule specifically sought data on the five listing 
factors within the marine and estuarine areas, but did not limit 
submissions to these areas. We have received and considered comments on 
issues specific to the marine and estuarine as well as the DPS as a 
whole.
    Comment 11: One commenter pointed out that the Service based its 
reversal of the proposed rule in part on the fact that resident 
cutthroat trout can occasionally produce anadromous offspring, but that 
this same information was available to NMFS when it conducted its 
status review and NMFS still concluded that listing was warranted.
    Our Response: Information on the contribution of resident cutthroat 
trout to anadromy was not available to NMFS when completing its status 
review, although it was available prior to the proposal to list the ESU 
(now DPS). Our withdrawal of the proposed rule was based on multiple 
factors, including additional information that was not available to 
NMFS suggesting that resident cutthroat trout do produce anadromous 
offspring. New information in our current analysis further supports the 
fact that resident cutthroat trout below natural barriers are 
contributing to the anadromous life-history component of cutthroat 
trout in this DPS.
    Comment 12: One commenter suggested that, if poor habitat 
conditions are suppressing anadromous cutthroat trout, then any 
anadromous progeny produced by resident cutthroat trout would face the 
same habitat limitations, thereby providing limited contribution to the 
conservation of the anadromous life-history form.
    Our Response: We agree that the anadromous component of coastal 
cutthroat trout in the DPS is likely reduced from historical levels and 
that this reduction has likely been caused in part by habitat 
degradation. We also agree that any anadromous progeny produced by 
resident cutthroat trout would face the same habitat limitations. 
However, even with historical habitat degradation in the three 
estuaries within the DPS, our analysis indicates anadromous cutthroat 
trout are still

[[Page 8642]]

present and are still returning to many tributaries within the DPS at 
rates that are generally comparable to return rates for healthy 
anadromous salmonid species, and that the nature of threats are such 
that the anadromous life-history form is not likely to become 
threatened or endangered in the foreseeable future.
    Comment 13: One commenter suggested that forest management 
practices will continue to impact coastal cutthroat trout for decades 
to come through ongoing impacts from past activities.
    Our Response: While it is true that some legacy effects of past 
logging practices will continue into the future, there is no 
information demonstrating anything more than a speculative link 
suggesting that these types of impacts pose a risk of extinction of 
coastal cutthroat trout throughout the DPS, or in the marine and 
estuarine areas of the DPS. In fact, in our 2002 withdrawal of the 
proposal to list, we concluded that management of forested landscapes 
is expected to improve in the future due to improvements in the 
requirements for private timber harvest regulations in Washington 
State, and information received during the recent comment period from 
the State of Washington describes improvements in migratory corridors 
and other watershed improvements under the Washington State Forest and 
Fish rules.
    Comment 14: One commenter asserted that private lands forest 
management in proximity to the estuaries has a disproportional impact 
to anadromous coastal cutthroat trout as compared to upper tributary 
populations that may be more affected by Federal forest management.
    Our Response: While it is true that there are more acres of 
privately managed forest lands in close proximity to the estuarine 
areas of the DPS, the commenter offers no information to show that 
forest management in these areas has had impacts to coastal cutthroat 
trout. Exposure to some of the negative aspects of these practices is 
described in the comment, but no response by coastal cutthroat trout is 
articulated.
    Comment 15: One commenter provided an expansive list of potential 
threats or factors to a variety of coastal cutthroat trout life-history 
forms (e.g., ``anadromous,'' ``sea-run,'' ``migratory''), many of which 
cite back to the 2002 withdrawal notice or documents used by the 
Service in support of the withdrawal notice, but without any new 
information cited in support of these as actual threats. The commenter 
failed to identify how coastal cutthroat trout that may be exposed to 
some of these potential threats may respond, for example in terms of 
population declines, increases in extinction risk, reductions in 
reproductive capacity or output, or any other measure indicating that 
the exposed fish are responding to these factors such that they should 
be considered threats. The factors addressed in this manner include, 
but are not limited to:
 Urban and industrial sprawl
 Agriculture
 Grazing
 Mining
 Cumulative effects, or a synergy of impacts ``greater than the 
sum of the parts''
 The fish diseases Ceratomyxa shasta and gas bubble disease
 Predation by other fishes, mammals, or birds
 The inadequacy of Federal Forest management in Oregon and 
Washington to protect coastal cutthroat trout, because the Federal 
forests are too far away from the estuary and marine areas
 The inadequacy of regulations covering urban, industrial, and 
agricultural ``sprawl'' in Oregon and Washington
 Oregon Forest Practices Act.
    Our Response: In conducting a ``5-factor'' analysis in the listing 
process, we must consider all factors that the best available 
scientific and commercial information identifies as threats faced by 
the species in question. In considering what factors might constitute 
threats, we must look beyond the mere exposure of the species to the 
factor to determine whether the species responds to the factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor, but no response, or only a positive response, that factor is 
not a threat. If there is exposure and the species responds negatively, 
the factor may be a threat and we then attempt to determine how 
significant a threat it is. If the threat is significant, it may drive 
or contribute to the risk of extinction of the species such that the 
species warrants listing as threatened or endangered as those terms are 
defined by the Act. This does not necessarily require empirical proof 
of a threat. The combination of exposure and some corroborating 
evidence of how the species is likely impacted could suffice. The mere 
identification of factors that could impact a species negatively is not 
sufficient to compel a finding that listing is appropriate; we require 
evidence that these factors are operative threats that act on the 
species to the point that the species meets the definition of 
threatened or endangered under the Act.
    For the factors offered here, the commenter argues that they exist 
in places across the landscape and that coastal cutthroat trout in the 
Southwestern Washington/Columbia River DPS are exposed to these factors 
to varying degrees. However, the commenter has not provided evidence 
that coastal cutthroat trout in the DPS are responding to these factors 
in negative ways such that they constitute actual threats. In some 
cases, the commenter provides evidence that other, similar species are 
affected negatively by these factors, and we have considered these 
instances carefully. Where we lack species-specific studies, and the 
best available scientific and commercial information does not at least 
offer corroborating support, we cannot portray such a factor as a 
threat on the basis of mere exposure. To do so would obviate the need 
to consider the biology of the species at all.
    In the case of coastal cutthroat trout and the factors listed in 
this issue above, most of these were raised and considered in the 2002 
withdrawal of the proposed rule (67 FR 44934; July 5, 2002). We have 
reconsidered them here, looked for any new information among the best 
available scientific and commercial information received in response to 
our reopening of the comment period, and considered whether this new 
information, in conjunction with the data previously evaluated in our 
2002 withdrawal notice (67 FR 44934; July 5, 2002) would lead us to a 
different conclusion now, even when applied just to the marine and 
estuarine areas of the DPS. In doing so we find that these factors do 
not constitute significant threats because, while coastal cutthroat 
trout may be exposed to them, and in some cases may suffer some degree 
of harm, there is insufficient evidence to suggest that the species 
responds in ways that would contribute to a finding of threatened or 
endangered status in marine and estuarine areas within the DPS or the 
DPS as a whole.
    Comment 16: One commenter stated that the State of Washington's 
Forest and Fish rules should not have been considered ``adequate 
regulatory mechanisms'' for coastal cutthroat trout in our 2002 
withdrawal because these rules governing private land timber harvest do 
not: (a) adequately address the anadromous life history of coastal 
cutthroat trout; (b) encompass enough of the anadromous form to offer 
any protection to it; and (c) were speculative at the time we made the 
original withdrawal finding.

[[Page 8643]]

    Our Response: At the time of our 2002 withdrawal notice, the 
finding being reached was on the DPS as a whole, and did not single out 
life-history forms. We have reconsidered that finding here in light of 
the best available scientific and commercial information, including any 
new information received in response to the reopening of the comment 
period even when applied just to the marine and estuarine areas of the 
DPS. In all of these analyses, we have considered the impact of the 
State of Washington's Forest and Fish rules to the full extent, as is 
appropriate, regardless of life-history form. We acknowledged at the 
time of the 2002 withdrawal that the rules were relatively new, but we 
recognized, and still recognize, that they were consistent with 
improving fish habitat conditions on forested lands over time. The 
State of Washington's comments articulated significant improvements in 
fish habitat as a result of the rules supporting the removal of 
culverts and other barriers to fish migration; we note that no new 
information was received to suggest these rules have not improved 
conditions.
    Comment 17: One commenter stated that coastal cutthroat trout are 
more susceptible now to stochastic disturbances and catastrophic 
natural events because in historical times they were more widespread 
and thus prior populations would have more resilience to these impacts.
    Our Response: At the time of the 2002 withdrawal notice, we found 
no major gaps in the range or local extirpations within the DPS, and 
the best available scientific and commercial information, including any 
new information received in response to the reopening of the comment 
period, even when applied just to the marine and estuarine areas of the 
DPS, reaffirms this finding. As a result, stochastic disturbances and 
catastrophic natural events should constitute no more of a threat to 
coastal cutthroat trout now than in historical times.
    Comment 18 : One commenter cited a number of sources of water 
pollution, including industrial and sewage effluents, pesticides, 
fertilizers, mining wastes, metals and others, that coastal cutthroat 
trout are exposed to in lower rivers and estuaries, using data 
generally gathered prior to the 2002 withdrawal notice. This commenter 
then stated that the cumulative effects of pollution are especially 
dangerous to sea-run cutthroat trout as they spend a great deal of 
their lives in these areas.
    Our Response: As with other issues raised in the comments received, 
most of these were raised and considered in the 2002 withdrawal of the 
proposed rule. We have reconsidered them here, looked for any new 
information among the best available scientific and commercial 
information, including information received in response to our 
reopening of the comment period, and considered whether this 
information would lead us to a different conclusion now, even when 
applied just to the marine and estuarine areas of the DPS. In doing so 
we find that these factors do not constitute significant threats 
because, while coastal cutthroat trout may be exposed to them, there is 
insufficient evidence to suggest that the species responds in ways that 
would support a finding of threatened or endangered status in the 
marine and estuarine areas within the DPS or the DPS as a whole.
    Comment 19: One commenter requested that we consider the impacts of 
climate change on coastal cutthroat trout in the Southwest Washington/
Columbia River DPS in both marine and freshwater habitats, but did not 
provide any new information since the 2002 withdrawal notice regarding 
climate change impacts.
    Our Response: The 2002 withdrawal of the proposed rule (67 FR 
44934; July 5, 2002) addressed climate change, and we have extensively 
reconsidered this issue in this finding (see ``Climate Change'' 
discussion, above, under Factor E) in light of the best available 
scientific and commercial information. We have also considered whether 
any new information, when considered in conjunction with the data 
considered in the 2002 withdrawal notice, would lead us to a different 
conclusion now, even when applied just to the marine and estuarine 
areas of the DPS. As detailed in our threats analysis under Factor E, 
in doing so we find that current climate change risk does not 
constitute a significant threat to coastal cutthroat trout.
    Comment 20: One commenter noted that sea-run cutthroat trout make 
extensive use of estuarine habitat and have likely been negatively 
impacted by current and historical habitat degradation and loss.
    Our Response: We acknowledge that estuaries of Willapa Bay, Grays 
Harbor, and the Columbia River have been significantly modified from 
historical condition, and that these habitats are often occupied by the 
anadromous cutthroat trout life-history form. While we acknowledge that 
degradation and habitat loss in estuaries has likely had some level of 
impact on anadromous cutthroat trout, there is no information available 
directly correlating the loss and degradation of habitat to a 
significant population decline. For example, the commenter cited new 
information on habitat degradation and loss of shallow-water habitats 
in the Columbia River estuary and resulting impacts to detritus- based 
food webs that support Pacific salmon (Bottom et al. 2006, p. 524), 
thereby suggesting that these same impacts are affecting anadromous 
cutthroat trout. Despite the documentation of these changes in the food 
web of the Columbia River estuary, the authors did not provide 
empirical evidence of a linkage between the loss of a detritus-based 
food web and the status of Pacific salmon in the Columbia Basin, much 
less any link to anadromous coastal cutthroat trout.
    Comment 21: One commenter described various impacts of dams and 
barriers on anadromous cutthroat trout ranging from complete blockage 
to habitat, loss of access to spawning areas, passage mortality and 
injury through entrainment at dams, gas super-saturation below dams, 
and inadequate or poor passage at culverts.
    Our Response: Much of the information that comprised this comment 
was derived from the withdrawal of the proposed rule (67 FR 44934; July 
5, 2002), or from Moynan (2002, entire), which is an internal Service 
document associated with our administrative record of the withdrawal of 
the proposed rule. Although we previously considered this information 
in support of our withdrawal of the proposed rule, we have reconsidered 
this information in light of our analysis on anadromous cutthroat 
trout. Although we acknowledge that dams and barriers have likely 
contributed to a decline in anadromous cutthroat, there is evidence 
that anadromous cutthroat continue to persist throughout the DPS, 
except for above barriers, and there is no evidence that the loss of 
this life-history form is likely in the foreseeable future.
    In addition, there have been a number of passage improvements in 
recent years that have restored significant amounts of habitat for 
anadromous coastal cutthroat trout. For example, in 2007, Marmot dam 
was removed on the Sandy River, thereby removing a potential passage 
impediment and possible source of entrainment mortality that had been 
in place for 90 years, and the Little Sandy River Dam is also scheduled 
for removal in the near future. In addition, comments submitted by the 
State of Washington noted that new Forest and Fish Rules have provided 
benefits to cutthroat trout by removing hundreds of barriers on 
commercial forest lands, doubling the available cutthroat habitat with 
unobstructed access.

[[Page 8644]]

    Comment 22: One commenter stated that there are many projects 
planned for the lower Columbia River that will impact coastal cutthroat 
trout, including the planned Bradwood Landing Liquified Natural Gas 
Project. In regards to the Bradwood Landing Project, the commenter 
noted that a biological assessment developed by NorthernStar Energy, 
the entity proposing the project, concluded the proposed action ``may 
affect, and is likely to adversely affect'' a number of stocks of 
federally listed salmon and steelhead. The commenter stated that 
coastal cutthroat trout are associated with and have a similar life 
history to salmon and steelhead, and thus it can be inferred that they 
too will be adversely affected by the project.
    Our Response: In our five-factor analysis we considered the effects 
of this and other potential liquefied natural gas (LNG) projects in the 
Columbia River. While we acknowledge that individual cutthroat trout 
might be impacted from these types of developments, we note that the 
scope of potential impacts is small relative to the total area of 
available habitat in the Columbia River and estuary. In addition, 
regulatory mechanisms required through the Federal Energy Regulatory 
Commission (FERC), and through State land uses regulations, are 
expected to provide protective mechanisms to minimize impacts of 
construction and operation of LNG facilities. Although a final 
consultation has not been completed by NMFS and FERC on the Bradwood 
Landing LNG Project, NMFS has the authority under section 7(a)(2) of 
the Act to require non-discretionary actions on behalf of the project 
proponent that may serve to modify how the project is constructed and 
operated to minimize impacts to salmon and steelhead listed under the 
Act.
    Although the biological assessment developed by NorthernStar Energy 
determined the project ``may affect, and is likely to adversely 
affect'' a number of stocks of listed salmon and steelhead, this 
determination is not a population-level finding. Rather, it is an 
acknowledgment that individual fish may be adversely impacted from the 
action. In regards to potential impacts to anadromous cutthroat trout, 
we agree that adverse effects to individual fish are possible but there 
are no data to support a conclusion that such impacts would increase a 
population-level extinction risk. The commenter's statement regarding 
NMFS's assertion that ``massive numbers of fish'' will be entrained in 
both process water and ballast water withdrawals from the Bradwood 
Landing LNG Project is unsupported.
    Comment 23: One commenter noted that hybridization between 
cutthroat trout and rainbow trout is widespread and that hybridization 
may reduce productivity of coastal cutthroat populations. The commenter 
also noted that cutthroat trout hatchery programs and hatchery programs 
for salmon and steelhead also have the potential to negatively impact 
coastal cutthroat trout.
    Our Response: We agree that hybridization with native rainbow trout 
and hatchery rainbow trout is known to occur, but there is no evidence 
that hybridization has contributed to a decline of anadromous coastal 
cutthroat trout in the DPS. As we noted in our withdrawal of the 
proposed rule (67 FR 44934; July 5, 2002), although the data on 
hybridization between coastal cutthroat trout and rainbow trout/
steelhead trout are limited, indications are that hybridization does 
occur at low levels where these two species coexist. Much scientific 
uncertainty currently surrounds the causes of hybridization and its 
evolutionary consequences. In view of the limited nature of 
hybridization in the DPS and the natural co-occurrence of these 
species, hybridization between cutthroat trout and rainbow/steelhead 
trout is not currently considered a significant threat to anadromous 
cutthroat trout in the DPS. Low levels of hybridization may represent 
natural interactions between rainbow/steelhead trout and coastal 
cutthroat trout. Populations with high levels of hybridization are few 
and isolated.
    Likewise, we acknowledge the potential impacts of reduced fitness 
that could result from wild cutthroat reproducing with hatchery coastal 
cutthroat trout, but have no evidence that this is occurring in the 
DPS. As noted in the withdrawal of the proposed action, coastal 
cutthroat trout production has been reduced to a single hatchery 
(Cowlitz River Hatchery), and there is no information at this time to 
indicate the limited ongoing coastal cutthroat trout hatchery releases 
are having a negative impact on wild cutthroat trout in the DPS.
    Hatchery programs for salmon and steelhead, particularly coho and 
steelhead, have the potential to impact coastal cutthroat trout through 
competition. However, information demonstrating effects from releases 
of coho and steelhead in the DPS is limited and the extent to which 
hatchery management affects the DPS of coastal cutthroat as a whole is 
unknown. We have no new evidence beyond that previously considered in 
our 2002 withdrawal of the proposed rule that hatchery releases of 
salmon and steelhead in the DPS are producing competition above natural 
levels or represent a significant risk to the DPS. Thus, our conclusion 
that competition with hatchery fish does not pose a significant threat 
to coastal cutthroat trout remains the same (67 FR 44934; July 5, 
2002).

References Cited

    A complete list of all references we cited in this document is 
available on the Internet at http://www.regulations.gov or by 
contacting the Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2600 
SE 98th Avenue, Suite 100, Portland, OR 97266.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 5, 2010.
Sam D. Hamilton,
Director, Fish and Wildlife Service.
[FR Doc. 2010-3803 Filed 2-24-10; 8:45 am]
BILLING CODE 4310-55-S