[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41514-41522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20029]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 960723205-6205-01; I.D. 040694C]


Endangered and Threatened Species; Endangered Status for Umpqua 
River Cutthroat Trout in Oregon

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing a final determination that the Umpqua River 
cutthroat trout (Oncorhynchus clarki clarki) is a ``species'' under the 
Endangered Species Act of 1973, as amended (ESA) and will be listed as 
endangered. Extremely low, and declining, numbers of adult cutthroat 
trout counted at Winchester Dam on the North Umpqua River signal a high 
risk of extinction for the species. Habitat degradation, recreational 
fishing, and inadequate regulatory mechanisms are factors that have 
contributed to the species' decline. Habitat degradation and inadequate 
regulatory mechanisms continue to represent a potential threat to the 
Umpqua River cutthroat trout's existence.
    NMFS will reconsider this determination in 2 years (or as new 
scientific information becomes available) and will continue to assess 
the degree to which ongoing Federal, state, and local conservation 
initiatives reduce the risks faced by Umpqua River cutthroat trout.

EFFECTIVE DATE: September 9, 1996.

ADDRESSES: Garth Griffin, NMFS, Environmental and Technical Services 
Division, 525 NE Oregon St.--Suite 500, Portland, OR 97232-2737, 
telephone (503/231-2005); or Marta Nammack, NMFS, Office of Protected 
Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone 
(301/713-1401).

FOR FURTHER INFORMATION CONTACT: Garth Griffin, telephone (503/231-
2005), or Marta Nammack, telephone (301/713-1401).

SUPPLEMENTARY INFORMATION:

Background

    The Umpqua River cutthroat trout is a ``distinct population 
segment'' under the ESA (hereinafter referred to as an Evolutionarily 
Significant Unit or ESU (56 FR 58612; November 20, 1991)) of the 
coastal cutthroat trout

[[Page 41515]]

(Oncorhynchus clarki clarki). The coastal cutthroat trout subspecies is 
native to western North America and is found in the coastal temperate 
rainforests from southeast Alaska to northern California (Trotter 
1989). The Umpqua River cutthroat trout ESU inhabits a large coastal 
basin (drainage area over 12,200 km2) in the southwestern Oregon coast. 
Spawning sites are located in the North and South Umpqua Rivers and 
their tributaries, of which Smith River and Calapooya, Elk, and 
Scholfield Creeks are major tributaries. The estuary of the Umpqua 
River is one of the largest on the Oregon coast.
    Coastal cutthroat trout differ from all other trout by their 
profusion of small to medium-size spots of irregular shape (Behnke 
1992). In addition, they do not develop the brilliant colors associated 
with inland cutthroat trout (a separate subspecies). In the sea-run 
(anadromous) form of the coastal cutthroat trout, spots and colors are 
further obscured by the silvery skin deposit common to anadromous 
salmonids. Non-anadromous (resident) fish tend to be darker, with a 
``coppery or brassy'' sheen (Behnke 1992).
    The life history of this subspecies is probably the most complex 
and flexible of any Pacific salmonid. Unlike other anadromous 
salmonids, sea-run forms of the coastal cutthroat trout do not 
overwinter in the ocean and only rarely make long extended migrations 
across large bodies of water. They migrate in the nearshore marine 
habitat and usually remain within 10 km of land (Giger 1972; Sumner 
1972; Jones 1976; Johnston 1981). While most anadromous cutthroat trout 
enter seawater as 2- or 3-year olds, some may remain in fresh water up 
to 5 years before entering the sea (Giger 1972; Sumner 1972). Other 
cutthroat trout may never outmigrate at all, but remain as residents of 
small headwater tributaries. Still other cutthroat trout may migrate 
only into rivers and lakes (Nicholas 1978; Tommasson 1978; Moring et 
al. 1986; Trotter 1989), even when they have access to the ocean 
(Tomasson 1978). In the Umpqua River, anadromous, resident, and 
potamodromous (river-migrating) life-history forms have been reported 
(Trotter 1989; Loomis and Anglin 1992; Loomis et al. 1993). Details of 
the coastal cutthroat trout life history and ecology, including aspects 
particular to the various life forms, can be found in published reviews 
by Pauley et al. (1989), Trotter (1989), Behnke (1992), and Johnson et 
al. (1994).

Previous Federal Action

    On April 1, 1993, the Secretary of Commerce received a petition 
from the Oregon Natural Resources Council, Umpqua Valley Audubon 
Society, and the Wilderness Society to list Umpqua River cutthroat 
trout as threatened or endangered, and to designate critical habitat 
under the ESA (16 U.S.C. 1531 et seq.). On July 19, 1993, NMFS 
published a notice indicating its intent to conduct a status review of 
Umpqua River cutthroat trout (58 FR 38554). To ensure a comprehensive 
review, NMFS solicited information and data regarding the present and 
historic status of Umpqua River cutthroat trout and whether this stock 
qualifies as a ``species'' under the ESA. NMFS also requested 
information on areas that may qualify as critical habitat for Umpqua 
River cutthroat trout.
    On August 19, 1993, NMFS received a petition from the Oregon 
Natural Resources Council and the Steamboaters for an emergency listing 
of Umpqua River cutthroat trout. On December 17, 1993, NMFS published a 
notice that an emergency listing was not warranted at that time (58 FR 
65961).
    In June 1994, NMFS published a technical paper entitled ``Status 
Review for Oregon's Umpqua River Sea-run Cutthroat Trout'' (Johnson et 
al. 1994), and subsequently published a proposed rule on July 8, 1994 
(59 FR 35089) to list Umpqua River cutthroat trout as an endangered 
species. NMFS cited the precarious status of the remaining anadromous 
cutthroat trout in the Umpqua River Basin (and possibly other life 
forms), which have demonstrated a steady decline since at least the 
mid-1970s. In this finding, NMFS proposed that all cutthroat trout life 
forms (i.e., resident, anadromous, potamodromous) should be included in 
the listed Umpqua River cutthroat trout ESU. On September 2, 1994, NMFS 
published a notice of public hearing and an extension of public comment 
period (59 FR 45661); a public hearing on the proposed rule was held on 
September 29, 1994, in Roseburg, OR.
    Pursuant to a joint policy issued by NMFS and U.S. Fish and 
Wildlife Service (USFWS) on July 1, 1994, regarding implementation of 
the ESA, state government co-managers were involved in the preparation 
of this final rule.

Summary of Comments

    Twenty-two individuals presented testimony at the NMFS public 
hearing on the proposed rule. During the 90-day public comment period, 
NMFS received seventeen written comments on the proposed rule from 
government agencies, non-government organizations, the scientific 
community, and other individuals. The majority of comments opposed 
listing Umpqua River cutthroat trout under the ESA. Opposition to the 
proposed rule was primarily focused on the amount and quality of 
information on which the proposed rule was based. This final rule takes 
into account comments received during the public comment period and 
public hearing. A summary of major comments received during the public 
comment period and public hearing is presented below.

Issue 1: Sufficiency of Scientific Information

    Many individuals commented that there is a general lack of data 
concerning a variety of factors pertaining to the Umpqua River 
cutthroat trout (e.g., minimum viable population size, age structure, 
absolute abundance of juveniles or adults, distribution, redd counts, 
average time of spawning, genetic evidence of distinctness). Some 
commenters recommended that listing be delayed until more information 
can be developed to better support a listing decision.
    NMFS recognizes that available information regarding the Umpqua 
River cutthroat trout is limited. However, the ESA requires that a 
listing determination be made based ``solely on the basis of the best 
available commercial and scientific data (16 USC 1533(b)(1); 50 CFR 
424.11(b)).'' Such a determination must be made in accordance with the 
time frames set forth in the ESA. The status review reflects the best 
scientific information presently available regarding cutthroat trout in 
the Umpqua River Basin, and indicates that Umpqua River cutthroat trout 
is an ESU that is endangered. NMFS believes that it would not be 
prudent to delay listing and risk possible extinction of this species 
due to the lack of more complete information. Therefore, in accordance 
with the ESA, NMFS finds it appropriate to make a listing determination 
at this time. As new scientific information becomes available, NMFS 
will reconsider the listing status of Umpqua River cutthroat trout.

Issue 2: Life History and Distribution

    Several commenters stated that the literature indicates that 
cutthroat trout exhibit a variety of migratory behaviors: Anadromy, 
potamodromy, and residency. Other comments suggested that the existence 
of multiple life forms in the Umpqua River Basin warrants

[[Page 41516]]

further study before concluding that listing is warranted.
    NMFS concurs that three life forms presently exist in the Umpqua 
River. Anadromy, a life history characteristic common to Pacific 
salmonids, is exemplified by a species that migrates from fresh water 
to the ocean, then returns to fresh water as an adult to spawn. 
Potamodromy, a relatively uncommon life history trait, is exemplified 
by a species that undertakes freshwater migrations of varying length 
without entering the ocean. Residency, a relatively common life history 
trait, is exemplified by a species that remains within a relatively 
small freshwater range throughout its entire life cycle. The Oregon 
Department of Fish and Wildlife (ODFW) stated that recent radio tagging 
evidence verifies the existence of a potamodromous life form of Umpqua 
River cutthroat trout.
    NMFS believes that recent studies conducted by ODFW represent 
substantial progress in documenting the life history of cutthroat trout 
in the Umpqua River Basin and strongly indicate that some cutthroat 
trout do exhibit the potamodrous life history trait. Although the 
relationship between the various life forms is currently not well-
defined, and further research will be needed to clarify this issue, the 
best available scientific data indicate that it is unlikely that these 
life forms are completely isolated reproductively. Therefore, NMFS has 
determined that all cutthroat trout life forms (i.e., resident, 
anadromous, potamodromous) should be included in the listed Umpqua 
River cutthroat trout ESU.
    One commenter indicated that the historical range of anadromous 
fish, including cutthroat trout, extended up to Toketee Falls on the 
North Umpqua River, not merely to the Soda Springs dam site as 
indicated in the status review. NMFS agrees with this comment and notes 
that a more detailed analysis of migrational barriers will be conducted 
during the designation of critical habitat for Umpqua River cutthroat 
trout.
    Although the NMFS status review reports that historical cutthroat 
trout runs (upstream migrations) extended from June through January, 
one comment stated that currently migration is only possible during 
late July and August. This commenter expressed concern that this was 
detrimental to the trout because it is the period of highest water 
temperatures in the Umpqua River, and that the status review does not 
adequately address this restriction in run timing. NMFS agrees that 
adult cutthroat trout experience delays during the spawning migration 
from the lower Umpqua River estuary to the North and South Umpqua 
Rivers and concurs with the commenter that elevated water temperatures 
in the mainstem Umpqua River in late July and August may have had a 
significant impact on the survival and time of arrival of cutthroat 
trout at Winchester Dam. Ongoing ODFW radio-tagging studies are 
expected to provide more insight into this problem.

Issue 3: Status of the Umpqua River Cutthroat Trout

    Some commenters stated that cutthroat trout are a good indicator of 
habitat quality and that their existence in areas of the Umpqua River 
Basin considered to be severely degraded suggests that habitat 
alterations are not significant risk factors.
    While it is possible that cutthroat trout may be ``an indicator of 
habitat quality,'' NMFS has found no published studies to support this 
characterization. Although exceptions may exist, NMFS believes that 
available research has established that cutthroat trout and other 
salmonids have declined throughout their range due to logging and other 
forest and rangeland management practices (for an extensive treatment, 
see Meehan 1991). For example, Connolly and Hall (1994) found that the 
abundance of cutthroat trout in logged areas of coastal Oregon streams 
varied considerably based upon differences in scour and cover afforded 
by large woody debris and by the differences in light and nutrient 
inputs afforded by deciduous versus conifer trees in the riparian zone. 
These authors found that woody debris left in streams in logged areas 
often resulted in significant increases in resident cutthroat trout 
abundance for up to 30 years. However, because prospects for future 
recruitment of large woody debris decrease after this period, the 
period between 40 to 60 years after logging appears to be a time during 
which cutthroat trout abundances are likely to decline as a result of 
degraded habitat conditions. Therefore, short-term increases in 
cutthroat trout abundance may be expected after logging because of 
associated increases in large woody debris (if the increases are not 
offset by other impacts such as siltation, scouring, high water 
temperatures). However, over the long-term, logging would likely lead 
to cutthroat trout population declines.
    Several commenters stated that Winchester Dam counts are not 
representative of the status of migrating Umpqua River cutthroat trout, 
because they only account for those fish entering the North Umpqua 
River and ignore fish in the South and mainstem Umpqua River. In 
contrast, one commenter stated that the abundance trend information 
provided by Winchester Dam counts is probably as good as any 
information available on the West Coast for cutthroat trout.
    NMFS has determined that Winchester Dam counts are currently the 
best quantitative measures of cutthroat trout abundance in the Umpqua 
River Basin. Although the dam is located on the North Umpqua River, 
there are several reasons to believe that the North Umpqua River has 
larger and healthier populations of cutthroat trout than the South 
Umpqua River.
    For example, while no long-term surveys of cutthroat trout were 
conducted in the South Umpqua River prior to 1993, a U.S. Forest 
Service (USFS) report states that ``a very small, wild cutthroat trout 
population probably exists in the South Umpqua River system'' and that 
this run was once ``widespread'' and ``dramatically larger than at 
present'' (United States Department of Agriculture (USDA) 1992).
    Several factors have tended to make the South Umpqua River less 
conducive to cutthroat trout production than the North Umpqua River. 
The North Umpqua River begins farther inland and flows for a 
substantial distance at a higher elevation than most other Oregon 
coastal rivers, including the South Umpqua River. As a result, the 
North Umpqua River has historically had cooler water temperatures and 
larger summer water flows than other local rivers. Although the South 
Umpqua River also begins at a relatively high altitude, it rapidly 
drops in elevation; consequently, it tends to exhibit higher water 
temperatures and lower summer flows compared to the North Umpqua River.
    In addition to the geomorphological differences in the North and 
South Umpqua Rivers, different levels of riparian habitat loss have 
also contributed to temperature differences in these rivers. Beginning 
in the mid-1950's, summer water temperatures and the frequency of 
winter flooding increased in the Umpqua River watershed, presumably as 
a result of poor logging practices. Summer water temperatures were 
often above the preferred range for cutthroat trout and other salmonid 
populations (about 7 to 16 deg.C) in portions of the river (Bell 1986). 
In recent years, the riparian forest canopy has begun to recover in the 
North Umpqua River watershed, but maximum water temperatures are still 
higher than those preferred by cutthroat trout. This recovery has been 
slower in the South Umpqua River watershed and

[[Page 41517]]

conditions for cutthroat trout have remained poorer than in the North 
Umpqua River.
    Based on these factors, NMFS believes that historically, the South 
Umpqua River has been less conducive to cold-water dependent species 
such as cutthroat trout, relative to the North Umpqua River. In 
addition, NMFS believes that present conditions in the North Umpqua 
River are more favorable for cutthroat trout production than those 
found in the South Umpqua River.
    Several commenters stated that resident (nonmigratory) populations 
of cutthroat trout are healthy in the Umpqua River, and recommended 
that the condition of these populations be taken into account when 
determining whether to list the species. ODFW stated that ``resident 
cutthroat trout populations above natural barriers (e.g., high 
waterfalls) are in relatively healthy condition and do not warrant an 
endangered listing (ODFW 1994).''
    NMFS notes that there have been no recently published population 
surveys of cutthroat trout in the Umpqua River Basin. Furthermore, 
there have been no published population surveys of cutthroat trout 
above natural barriers to confirm the assertion that resident cutthroat 
trout populations above natural barriers are healthy. However, Kostow 
(1995) states that available information has ``raised concerns that 
anadromous populations in Oregon may be experiencing a widespread 
decline'' and that resident cutthroat appear to ``remain relatively 
abundant, even in streams where the abundance of searun fish has 
sharply declined.''
    Anecdotal information suggests that the resident component of the 
cutthroat trout ESU may be relatively healthy; however, few published 
scientific data exist to support this conclusion. Furthermore, ladder 
counts from Winchester Dam indicate that the anadromous component of 
this ESU has declined to precipitously low levels. These ladder counts 
represent one of the best long-term data sets for cutthroat trout on 
the West Coast. Anadromy is considered an important component in the 
evolutionary legacy of O. clarki clarki, therefore inclusion of both 
the anadromous and resident life history forms in the ESU is warranted 
(61 FR 2639), based on the present status of the anadromous cutthroat 
trout life form and the fact that listing of the resident form may 
increase the anadromous form's chances of survival.
    In addition to stating that resident populations of cutthroat trout 
above natural barriers are healthy, ODFW also stated that ``natural 
barriers form gene flow barriers,'' resulting in a distinction between 
resident cutthroat trout populations above natural barriers and 
migrating populations below such barriers (ODFW 1994). Recent research 
indicates that some gene flow may occur from cutthroat trout above 
barriers to below-barrier populations; however, the amount and role of 
this contribution is presently unknown (Johnston 1981; Behnke 1979; 
Griswold 1996).
    In most cases, genetic flow between cutthroat trout populations 
above and below barriers would be limited to a one-way flow (fish 
traveling downstream over falls). The genetic contribution of this flow 
is not thought to be an important factor for populations separated by 
long-standing natural barriers, since there would likely be strong 
selection in the resident populations above barriers against 
individuals with a tendency to migrate downstream. Therefore, based on 
available data, NMFS concludes that resident populations of Umpqua 
River cutthroat trout residing above natural impassable barriers for 
long periods of time (several hundreds or thousands of years) are not 
included in the cutthroat trout ESU presently being listed under the 
ESA.
    With respect to manmade impassable barriers, NMFS believes that 
historically, anadromous cutthroat trout populations inhabited areas 
above both Soda Springs and Galesville Dams (completed in 1952 and 
1987, respectively). While the construction of these dams has resulted 
in the isolation of cutthroat trout populations for the past several 
decades, recent studies with sockeye salmon (another salmonid with 
resident and anadromous life forms) suggest that the anadromous life 
history trait can be retained by populations above barriers after 
decades of isolation (Kaeriyama et al. 1992). Based on this, NMFS 
believes that cutthroat trout species residing above artificial 
barriers for a period of decades have probably remained genetically 
similar to those species residing below such barriers. Therefore, NMFS 
has determined that cutthroat trout populations residing above 
Galesville and Soda Springs Dams are included in the Umpqua River 
cutthroat trout ESU and are thus being listed at this time.

Issue 4: Factors Contributing to the Decline of Umpqua River Cutthroat 
Trout

    Many commenters recommended that NMFS consider other factors for 
decline in addition to those identified in the proposed rule, i.e., 
recreational fishing and habitat degradation as a result of logging. 
Additional factors identified by commenters include the following: 
Predation by marine mammals, birds, and native and non-native fish 
species; adverse environmental conditions resulting from natural 
factors such as droughts, floods, and poor ocean conditions; non-point 
and point source pollution caused by agriculture and urban development; 
disease outbreaks caused by hatchery introductions and warm water 
temperatures; mortality resulting from unscreened irrigation inlets; 
competition in estuaries between native and hatchery cutthroat trout; 
cumulative loss and alteration of estuarine areas; and loss of habitat 
caused by the construction of dams.
    NMFS acknowledges that there are many factors in addition to 
logging and recreational fishing that have contributed to the decline 
of Umpqua River cutthroat trout. However, extensive scientific 
literature exists regarding the adverse effects of these two activities 
on anadromous fish populations and their habitat (see references). 
Further, it is well documented that both of these activities have 
historically occurred extensively throughout the Umpqua River Basin. 
Based on available information, NMFS believes that these two activities 
have significantly contributed to the decline of the cutthroat trout in 
the Umpqua River Basin. Furthermore, recent legislation, i.e., the 
``salvage timber rider'' provisions of the July 1995 Emergency 
Supplemental Appropriations Act; Sec. 20010 et seq. of Public Law 104-
19, which suspended certain logging restrictions on Federal lands, has 
resulted in increased timber harvest in the Umpqua River watershed. 
NMFS will address these and other factors for decline during the 
development of a cutthroat trout recovery plan.
    Several commenters specifically stated that poor ocean conditions 
(for example, conditions resulting in reduced marine forage or 
increased predation) associated with El Nino events may have 
contributed to the decline of this species. Although available 
literature is limited regarding the importance of the marine component 
of cutthroat trout, it appears that this species spends a limited 
amount of time in the marine environment, spending only 2 to 5 months 
in salt water before returning to fresh water (Behnke 1992). While in 
the marine environment, cutthroat trout typically stay close to shore, 
near bays, estuaries and beaches (Pauley et al. 1989; Behnke 1992); 
however, they have been found as far as 31 km offshore (Loch and Miller 
1988).
    Based on these estuarine and marine life history characteristics, 
ocean

[[Page 41518]]

conditions would likely have a lesser impact on cutthroat trout than on 
salmon species that spend more time at sea. However, this is not to say 
that cutthroat trout do not receive important benefits from marine 
residence. Poor ocean conditions are likely to impact cutthroat trout 
abundance; however, during periods of low ocean productivity, the 
availability of productive freshwater habitat becomes increasingly 
important to buffer such ocean conditions.
    Several commenters stated that current logging practices have 
dramatically improved over those of the past, decreasing the impact of 
present-day logging on habitat. Present-day logging practices have 
improved over those of the past; however, timber harvest is still a 
major land use in the Umpqua River Basin (currently comprising nearly 
70 percent Federal, state, or private timber land) and fish habitat is 
still recovering from past logging practices. In addition, the 
incremental impacts of present-day land management practices, when 
added to impacts of past land management practices and other risk 
factors, continue to pose a serious threat to Umpqua River cutthroat 
trout.
    One commenter provided data indicating that pH levels in various 
tributaries of the Umpqua River Basin exceed the State of Oregon's 
water quality standards and argued that these pH levels can be 
attributed to the effects of logging. Although limited in scope, these 
water quality results suggest a possible factor in the decline of 
cutthroat trout in the Umpqua River Basin. These data warrant further 
consideration during recovery planning.
    Several commenters stated that recreational fishing has had a 
minimal impact on naturally spawning cutthroat trout stocks and that no 
basis exists for the statement that recreational fishing has likely 
contributed to the general decline in Umpqua River cutthroat trout 
populations. One commenter stated that the scientific literature is 
replete with studies documenting recreational fishing as having great 
potential for impacts on native fish stocks.
    NMFS agrees that there is no specific documentation that indicates 
recreational fishing has contributed to the decline of cutthroat trout 
populations in the Umpqua River Basin. However, there has been a long-
standing fishery in the lower mainstem Umpqua River aimed at plants of 
``catchable'' Alsea River hatchery-reared cutthroat trout. While there 
are no studies on the possible impact of these hatchery fish or the 
fishery for them on native cutthroat trout, there is considerable 
literature on the susceptibility of cutthroat trout to angling and the 
potential impacts of recreational fishing on native fish stocks (Behnke 
1992; Pauley et al. 1989; Trotter 1989). Furthermore, ODFW has 
recognized the potential adverse impacts of harvest on this species and 
closed the Umpqua River to cutthroat trout fishing effective January 1, 
1995 (ODFW 1994). NMFS expects that this action will greatly facilitate 
the species' recovery.
    One commenter stated that cutthroat trout are known to interbreed 
with hatchery rainbow trout and, as a result, introgression has been 
the major cause of decline of cutthroat trout throughout the western 
United States. NMFS reviewed information from Behnke (1992), which 
noted that mass hybridization has occurred in interior portions of the 
cutthroat trout range (where the species evolved in isolation from 
other salmonids) following the introduction of rainbow trout. However, 
meristic and phenotypic assessments suggest that the coastal subspecies 
of cutthroat trout (which includes Umpqua River cutthroat trout) is far 
more resistant to hybridization than the interior cutthroat trout 
subspecies (Behnke 1992). Hence, NMFS does not believe that 
hybridization has been the major cause of decline of Umpqua River 
cutthroat trout. Nonetheless, hatchery practices should be reviewed 
during recovery planning to ensure that there are no adverse effects on 
cutthroat trout in the future.
    One commenter stated that, since cutthroat trout in the Umpqua 
River Basin are at the southern end of their range, there may be a 
greater tendency for natural fluctuations in population abundance 
compared with species at the center of their range. While Umpqua River 
cutthroat trout are in the southern portion of this species' historic 
range, cutthroat trout populations have historically occurred as far 
south as the Eel River in California (Behnke 1992; Trotter 1987). 
Therefore, NMFS believes Umpqua River cutthroat trout populations are 
well within the species' range and would not tend to exhibit natural 
population fluctuations often associated with ``fringe'' populations.

Issue 5: Consideration of Umpqua River Cutthroat Trout as a Species

    Several commenters indicated that the historical introduction of 
Alsea River hatchery-reared cutthroat trout may have resulted in the 
loss of the native component of cutthroat trout in the Umpqua River.
    The effect of Alsea River cutthroat trout hatchery releases from 
1961 to 1975 on native cutthroat trout in the Umpqua River is unknown. 
Counts of adult cutthroat trout crossing Winchester Dam show that the 
number of fish declined to nearly zero in the mid-1950's, increased 
dramatically from about 1961 to 1975, and rapidly declined again after 
about 1976. The period of increase coincides almost exactly with 
releases of cutthroat trout from the Alsea River Hatchery into the 
Umpqua River. Although other explanations are possible, the most 
parsimonious is that the cutthroat trout increases during 1961-75 
represent predominantly Alsea River hatchery fish straying to areas 
above Winchester Dam. Alsea River fish have a slightly later run-timing 
than the Umpqua River fish, and a shift toward later run-timing can be 
detected in fish returning to Winchester Dam after 1960. However, there 
is also evidence of a shift back toward the original run-timing after 
cessation of the hatchery program.
    Although the pattern of abundance and tag-recovery data during this 
period of supplementation indicate that Alsea River hatchery fish 
returned as adults to Winchester Dam in some numbers, it is apparent 
that 15 years of hatchery releases did not result in a viable, self-
sustaining population of naturally spawning fish. One possible 
explanation of this result is that Alsea River hatchery fish are poorly 
adapted to conditions in the North Umpqua River. This explanation 
supports NMFS' conclusion of a cutthroat trout ESU in the Umpqua River. 
Other possible explanations include: (1) The effects of hatchery 
rearing, rather than poor adaptation, are responsible for the lack of 
long-term survival of Alsea River hatchery fish, and (2) the decline in 
Winchester Dam counts following the end of the hatchery program merely 
reflect deteriorating conditions for cutthroat trout in the North 
Umpqua River. The relationship of the existing cutthroat trout 
population to the original population and the introduced hatchery fish 
is uncertain; however, available evidence from population abundance and 
run-timing data suggests that a component of the native run persists.
    One commenter stated that since cutthroat trout co-evolved with 
other salmonid species, there should be similarity in the organization 
of their ESU's. NMFS believes that each salmonid species has had a 
unique evolutionary history and utilizes ecological niches different 
from all other species. While there may be similarities across species 
in salmonid ESU's, there is no reason that this will always be the 
case. This may be especially true for cutthroat trout, which have a 
more

[[Page 41519]]

complex life history than most Pacific salmonids.
    One commenter stated that the amount of straying in cutthroat trout 
may suggest a greater degree of genetic exchange in coastal 
populations, thus potentially widening the ESU. While little 
information is available on straying rates of cutthroat trout, that 
which is available suggests that most movement of fish into non-natal 
streams occurs with immature fish. NMFS is not aware of any evidence to 
suggest that sexually mature, native cutthroat trout wander or stray at 
a level higher than is typical of native populations of other species 
of Pacific salmonids.
    In reviewing cutthroat trout life history, Pauley et al. (1989) 
reported that ``homing of native cutthroat trout is extremely precise 
(Campton and Utter 1987), although hatchery planted fish may stray as 
much as 30 percent, making survival rates impossible to determine 
(Johnston and Mercer 1976).'' Giger (1972) found that tagged native 
fish from streams in the Alsea River did not stray and were recaptured 
only in their natal streams. However, Giger (1972) also found that over 
30 percent of the tagged hatchery fish entered streams up to 133 km 
from the release stream. Therefore, based on available data, straying 
is not thought to affect the genetic distinctiveness of the native, 
naturally spawning fish identified in this ESU.
    One commenter stated that coastal cutthroat trout (Oncorhynchus 
clarki clarki), the anadromous component of the cutthroat trout 
species, is morphologically similar throughout its range and shows no 
evidence of clinal variation. As reported by Behnke (1992), cutthroat 
trout populations with direct access to the sea are morphologically 
similar throughout their range. However, the few genetic studies that 
have been conducted on cutthroat trout (e.g., Campton and Utter 1987; 
Currens et al. 1992) show that there can be substantial genetic 
differentiation even among local populations.

Issue 6: Existing Regulatory Mechanisms

    Several commenters maintained that existing regulatory mechanisms 
and management initiatives (e.g., the Oregon Forest Practices Act and 
the Umpqua River Basin Fisheries Restoration Initiative) are sufficient 
for the protection of Umpqua River cutthroat trout. Two commenters 
stated that existing management initiatives are unproven and lack 
technical support.
    Although several commenters describe the Oregon Forest Practices 
Act (OFPA) as being capable of protecting cutthroat trout, maintaining 
fish populations, and preventing the take of any fish, there is little 
evidence to support these claims. While the OFPA presently endorses 
fish habitat protection (Oregon Department of Forestry (ODF) 1994), 
NMFS is concerned that the level of habitat protection may be 
insufficient to conserve Umpqua River cutthroat trout. However, the 
OFPA itself provides a process ``to adopt additional basin-specific 
protection rules for water quality-limited streams or streams with 
threatened or endangered aquatic species'' (ODF 1994). This process 
could be employed to great effect in the Umpqua River Basin, which 
presently has more than 80 river reaches (many spanning from river 
mouth to headwaters) currently designated as water-quality limited by 
the Oregon Department of Environmental Quality (Oregon Department of 
Environmental Quality 1995). Therefore, in response to the listing of 
cutthroat trout, the Oregon Department of Forestry, in cooperation with 
Federal land management agencies, could provide special emphasis to 
habitat areas containing listed cutthroat trout to promote their 
recovery.
    The Umpqua River Basin Fisheries Restoration Initiative (UBFRI) 
referenced by several commenters is also described as a measure which 
will aid in the recovery of cutthroat trout. In 1993 the Douglas County 
Board of Commissioners chartered this initiative to address restoration 
projects in the Umpqua River Basin. Members of the initiative include 
county, state, and Federal government, and private industry. Since its 
inception, the initiative has sponsored extensive habitat surveys in 
the watershed. Restoration efforts have focused primarily on 
construction and placement of instream habitat structures. NMFS 
believes that the UBFRI is a good example of how local groups can work 
together to restore Pacific salmon. The initiative has made great 
strides in assessing habitat conditions in the basin. This information 
will be extremely useful in formulating a recovery plan for this 
species.
    NMFS is also encouraged by Oregon's recent development of a Coastal 
Salmon Restoration Initiative (CSRI). If successful, this ambitious 
initiative could provide all stakeholders with a better means by which 
to achieve the purposes of the ESA; protecting and restoring native 
fish populations and the ecosystems upon which they depend. While the 
CSRI is initially focusing on the needs of coastal coho salmon 
populations (currently proposed as threatened), NMFS expects that 
significant benefits could also accrue to other salmonids, including 
Umpqua River cutthroat trout. NMFS encourages the continuation of this 
and local initiatives as important components of recovery planning for 
this species.

Summary of Factors Affecting the Species

    Section 2(a)(1) of the ESA states that various species of fish, 
wildlife, and plants in the United States have been rendered extinct as 
a consequence of economic growth and development untempered by adequate 
concern and conservation. Section 4(a)(1) of the ESA and NMFS listing 
regulations (50 CFR part 424) set forth procedures for listing species. 
The Secretary of Commerce must determine, through the regulatory 
process, if a species is endangered or threatened based upon any one or 
a combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or human-made 
factors affecting its continued existence.
A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range
    In general, land use practices have reduced salmonid production in 
Oregon by decreasing habitat diversity and complexity, and accelerating 
the frequency and magnitude of natural events such as flooding and 
drought (Bottom et al. 1985). Extensive documentation regarding the 
impacts of land use practices on the Umpqua River cutthroat trout is 
not presently available. However, a recent report from the USFS 
identifies a close relationship between various fish habitat parameters 
and the land management history of streams in the Umpqua National 
Forest (USDA 1995). The report summarizes habitat quality in 28 streams 
used by anadromous salmonids; 17 streams were rated as having ``low'' 
or ``very low'' habitat quality. It noted that ``a habitat rating of 
`good' or `very good' is found primarily in drainages that have had 
relatively little or no history of timber harvest and road 
construction. Conversely, habitat ratings of `low' or `very low' are 
found in moderately to heavily roaded and harvested watershed.'' Major 
factors contributing to the latter habitat ratings include a variety of 
land management-related conditions, such as increased peak flows during 
storm events, increased

[[Page 41520]]

debris torrents, and impacts from valley bottom roads.
    These findings, coupled with the fact that silviculture is the 
predominant land use in the basin (approximately 70 percent of the 
area) and more than 80 of the basin's river reaches are designated as 
water quality limited, strongly suggest that silviculture and related 
activities have degraded water quality and have, therefore, likely 
contributed to the decline of Umpqua River cutthroat trout. This 
conclusion is strengthened by reasonable inferences from an array of 
other scientific studies, including research in other Oregon basins. 
(For an extensive review, see Meehan 1991).
    Removal of forest canopy can cause an increase in both the maximum 
and the diurnal fluctuation of water temperatures, leading to disease 
outbreaks, altered timing of migration, and accelerated maturation. The 
removal of streamside vegetation can deplete the bank area of potential 
new woody debris that provides cover for cutthroat trout. In addition, 
loss of riparian areas can result in decreased invertebrate production 
and detritus sources, both of which are key components of the species' 
food chain. Siltation is another result of some logging practices, is 
known to hinder fry emergence from the gravel, and may limit production 
of benthic invertebrates. Dissolved oxygen content of both surface and 
intragravel water can decrease as a result of logging operations. 
Logging can also cause changes in stream flow regimes, resulting in 
potentially adverse water velocity and depth characteristics.
    Degradation of estuarine habitats has likely also contributed to 
the decline of this species. Estuarine areas are highly productive 
habitats and play a role in the life cycle of cutthroat trout (Trotter 
1989). Dredging, filling, and diking of estuarine areas for 
agricultural, commercial, or municipal uses have resulted in the loss 
of many estuarine habitats.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Cutthroat trout are not harvested commercially, and scientific and 
educational programs have probably had little or no impact on Umpqua 
River cutthroat trout populations. However, the cutthroat trout is a 
popular gamefish throughout the Pacific Northwest and available 
information indicates that recreational fishing has likely contributed 
to the general decline in Umpqua River cutthroat trout populations. 
Given the susceptibility of cutthroat trout to angling and the 
potential impacts of recreational fishing to native fish stocks (Behnke 
1992; Pauley et al. 1989; Trotter 1989), it is likely that a long 
standing fishery in the lower mainstem Umpqua River aimed at hatchery-
reared cutthroat trout also promoted an incidental harvest of native 
Umpqua River cutthroat trout. In response to NMFS' concern regarding 
harvest mortalities, ODFW has closed the Umpqua River to cutthroat 
trout fishing effective January 1, 1995 (ODFW 1994). However, 
undocumented illegal harvest is believed to occur on Umpqua River 
cutthroat trout. While the severity of this source of mortality is 
unclear, it may pose a significant threat to depressed populations of 
cutthroat trout in the Umpqua River. Continued enforcement of existing 
harvest regulations and increased public outreach and awareness should 
substantially reduce this threat.
C. Disease or Predation
    Disease is not believed to be a factor contributing to the decline 
of cutthroat trout populations in the Umpqua River. Several non-native 
fish species introduced to the Umpqua River are known to prey on or 
compete with salmonids; however, there is no specific information 
regarding predation impacts by these or native fishes on Umpqua River 
cutthroat trout.
    Abundance of pinnipeds, especially harbor seals and California sea 
lions, is increasing on the West Coast. However, the extent to which 
predation is a factor causing the decline of Umpqua River cutthroat 
trout is unknown.
D. Inadequacy of Existing Regulatory Mechanisms
    The significant decline in numbers of cutthroat trout passing 
Winchester Dam suggests that management plans and practices followed by 
various state and Federal agencies have not provided adequate 
protection for this species. Although the State of Oregon listed the 
Umpqua River cutthroat trout as a sensitive species in 1990, the 
decline of this species has not been reversed since the designation. 
Furthermore, the designation has not resulted in protections from 
adverse effects on the species resulting from Federal actions.
    A Federal interagency cooperative program, the Record of Decision 
for Amendments to Forest Service and Bureau of Land Management Planning 
Documents Within the Range of the Spotted Owl (the Northwest Forest 
Plan, April 1994) has recently been implemented to provide a 
coordinated management direction for the lands administered by USFS and 
the U.S. Bureau of Land Management (BLM). The Northwest Forest Plan's 
region-wide management direction amends existing management plans, 
including regional guides, forest plans, and resource management plans 
for lands within the range of the northern spotted owl (including the 
Umpqua River Basin). As part of the Northwest Forest Plan, 
implementation of an aquatic conservation strategy is intended to 
ultimately reverse the trend of aquatic ecosystem degradation and 
contribute toward recovery of fish habitat; however, this result has 
yet to be demonstrated. NMFS encourages a continued strong commitment 
among the action agencies to thoroughly implement the Aquatic 
Conservation Strategy in order to improve spawning and rearing habitat 
conditions for listed Umpqua River cutthroat trout. Furthermore, NMFS 
continues to encourage USFS and BLM to work toward avoiding identified 
cumulative effects of timber sales sold or awarded prior to 
implementation of the Northwest Forest Plan.
    Recent increased timber harvest on Federal land heightens NMFS' 
concern regarding the health of aquatic resources in the Umpqua River 
Basin. The ``emergency salvage timber sale'' provisions of a 1995 
appropriations act, P.L. 104-19, have resulted in harvest of at least 
seven timber sales in the Umpqua River Basin. Prior to this 
legislation, these sales were unawarded or withdrawn for a variety of 
reasons. While efforts were made to reduce the direct adverse impacts 
of these timber sales, NMFS remains concerned about cumulative effects 
and their impact on baseline environmental quality in the Umpqua River 
Basin. The impacts of such sales are especially great in the South 
Umpqua River Basin since existing habitat and water quality conditions 
are recognized as poor in this area.
    NMFS recognizes that the impacts of this legislation have been 
reduced in some instances by the land management agencies' ability to 
find replacement timber volume for sales such as these. Furthermore, 
NMFS recognizes the willingness of some purchasers to accept such 
replacement harvest in lieu of previously designated sales and 
encourages USFS, BLM, and private industry to continue these efforts to 
avoid adverse impacts on native salmonid species. An Inter-agency 
Recissions Act Team has been convened to study the effects of timber 
sales in the Basin.
    Current ODFW hatchery practices may also play a role in the decline 
of native cutthroat trout. Extensive releases

[[Page 41521]]

of Alsea River hatchery-reared cutthroat trout have occurred near the 
Umpqua River estuary in the Smith River from 1975 to 1994, and in 
Scholfield Creek from 1983 to present. Until recently, approximately 
12,000 hatchery-reared cutthroat trout per year have been released into 
the Smith River. Releases of approximately 4,000 hatchery-reared 
cutthroat trout per year continue to occur into Scholfield Creek. 
According to ODFW, these fish are released as smolts and as legal-
sized, catchable cutthroat trout prior to or during the fishing season. 
ODFW has suggested that the majority of these fish are caught by 
anglers, but no data are available to confirm this hypothesis. There is 
also no information on the possible impact of these fish (or the 
fishery for them) on native cutthroat trout from the North and South 
Umpqua Rivers. However, considering the life history of cutthroat 
trout, their susceptibility to angling (Pauley et al. 1989), and their 
extensive use of estuaries, the impact of these releases could be 
substantial.
E. Other Natural or Manmade Factors Affecting its Continued Existence
    Drought is the principal natural condition that may have 
contributed to reduced Umpqua River cutthroat trout production. Drought 
conditions have prevailed in Oregon for the 7 years prior to 1996, 
leading to decreased streamflows and increased water temperatures 
during the summer months.

Determination

    Based on its assessment of available scientific and commercial 
information, NMFS is issuing a final determination that the Umpqua 
River cutthroat trout (Oncorhynchus clarki clarki) constitute a 
``species'' under the ESA and should be listed as endangered. The 
listed ESU for Umpqua River cutthroat trout is defined as all naturally 
spawning population(s) of cutthroat trout in the mainstem Umpqua River, 
the North Umpqua River, and the South Umpqua River, and their 
respective tributaries, residing below long-term, naturally impassable 
barriers (e.g., natural waterfalls in existence for hundreds or 
thousands of years). The natural population consists of all fish that 
are progeny of naturally spawning fish. The offspring of all fish taken 
from the natural population after the date of listing (for example, for 
research or enhancement purposes) are also part of the listed ESU.

Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include recognition, recovery actions, Federal 
agency consultation requirements, and prohibitions on taking. 
Recognition through listing promotes public awareness and conservation 
actions by Federal, state, and local agencies, private organizations, 
and individuals.
    Several recovery efforts are underway that may slow or reverse the 
decline of Umpqua River cutthroat trout. These include the Northwest 
Forest Plan, Coastal Salmon Restoration Initiative, and Umpqua River 
Basin Fisheries Restoration Initiative (all described previously in 
this document). NMFS is encouraged by these significant efforts, which 
could provide all stakeholders with a better means by which to achieve 
the purposes of the ESA by protecting and restoring native fish 
populations and the ecosystems upon which they depend. NMFS will 
continue to encourage and support these initiatives as important 
components of recovery planning for this species and other salmonids in 
the Umpqua River Basin.
    NMFS will reconsider this determination in 2 years (or as new 
scientific information becomes available) and will continue to assess 
the degree to which ongoing Federal, state, and local conservation 
initiatives reduce the risks faced by Umpqua River cutthroat trout. If 
these or future initiatives clearly ameliorate risk factors and 
demonstrate that the species is recovering, NMFS will reconsider the 
listing status of Umpqua River cutthroat trout. Information regarding 
the efficacy of conservation efforts and any new scientific data 
regarding Umpqua cutthroat trout should be submitted to NMFS (see 
ADDRESSES).
    For listed species, section 7(a)(2) of the ESA requires Federal 
agencies to ensure that activities they authorize, fund, or conduct are 
not likely to jeopardize the continued existence of a listed species or 
to destroy or adversely modify its critical habitat. If a Federal 
action could affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with NMFS.
    Examples of Federal actions most likely to affect Umpqua River 
cutthroat trout include authorized land management activities of the 
USFS and BLM, as well as authorized purposes of Umpqua River 
hydroelectric and storage projects. Such authorized activities include 
timber sales and harvest, hydroelectric power generation, and flood 
control. Federal actions, including the U.S. Army Corps of Engineers 
(COE) section 404 permitting activities under the Clean Water Act, COE 
permitting activities under the River and Harbors Act and Federal 
Energy Regulatory Commission licenses for non-Federal development and 
operation of hydropower, may also require consultation.
    NMFS is aware that there are likely to be Federal actions ongoing 
in the range of the Umpqua River cutthroat trout at the time that this 
listing becomes effective. Consequently, NMFS is currently reviewing 
with the Federal agencies all ongoing actions that may affect the 
listed species, and for which consultation has been requested, and will 
complete formal or informal consultations for such actions as 
appropriate, pursuant to ESA section 7(a)(2). Furthermore, NMFS, in 
conjunction with USFS, BLM and USFWS, plans to complete a programmatic 
consultation on the Federal Land and Resource Management Plans within 
the range of the Umpqua River cutthroat trout prior to the listing's 
effective date.
    Section 9(a) of the ESA contains specific prohibitions that apply 
to all endangered fish and wildlife. With respect to the Umpqua River 
cutthroat trout, these prohibitions, in part, make it illegal for any 
person subject to the jurisdiction of the United States to ``take'' 
(including harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, collect, or attempt any such conduct), import or export, 
transport in interstate or foreign commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of NMFS and state 
conservation agencies.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``taking'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) conducting research that 
involves a directed take of listed species. A directed take refers to 
the intentional take of listed species. NMFS has issued section 
10(a)(1)(A) research/enhancement permits for other listed species 
(e.g., Snake River chinook salmon) for a number of activities, 
including trapping and tagging, electroshocking to determine population 
presence and abundance, removal of fish from irrigation ditches, and 
collection of adult fish for artificial propagation programs. NMFS is 
aware of several trapping efforts currently underway in the Umpqua 
River Basin where juvenile cuttthroat trout are being

[[Page 41522]]

collected for population inventory. Since little scientific research 
has been conducted on this species, these and other research efforts 
could provide critical information regarding cutthroat trout life 
history and population abundance.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take 
listed species. The types of activities potentially requiring a section 
10(a)(1)(B) incidental take permit include the operation and release of 
artificially propagated fish by state operated and funded hatcheries, 
state or university research not receiving Federal authorization or 
funding, and the implementation of state fishing regulations.
    NMFS requires several months to review permit applications 
(including a 30-day public comment period) and assess the issuance of 
section 10 permits. In the fall of 1996, NMFS will hold a workshop to 
explain the application process for section 10 permits. Prospective 
applicants should submit permit applications to NMFS at least 120 days 
prior to the expected start date of their activities. If there are 
research activities whose interruption would harm efforts to conserve 
the species, NMFS will consider issuing a permit under the emergency 
procedure (50 CFR 222.24(e)). Regulations regarding application, 
issuance and administration of permits are found at 50 CFR parts 217-
222.
    It is the policy of NMFS and the USFWS, published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify to the maximum 
extent practicable at the time a species is listed those activities 
that would or would not constitute a violation of section 9 of the ESA. 
The intent of this policy is to increase public awareness of the effect 
of this listing on proposed and ongoing activities within the species' 
range. NMFS believes that, based on the best available information, the 
following actions will not result in a violation of section 9:
    (1) Possession of Umpqua River cutthroat trout acquired lawfully by 
permit issued by NMFS pursuant to section 10 of the ESA, or by the 
terms of an incidental take statement pursuant to section 7 of the ESA.
    (2) Federally approved projects that involve activities such as 
silviculture, grazing, mining, road construction, dam construction and 
operation, discharge of fill material, stream channelization or 
diversion for which consultation has been completed, and when such 
activity is conducted in accordance with any terms and conditions given 
by NMFS in an incidental take statement accompanied by a biological 
opinion.
    Activities that NMFS believes could potentially harm the Umpqua 
River cutthroat trout and result in ``take'', include, but are not 
limited to:
    (1) Unauthorized collecting or handling of the species. Permits to 
conduct these activities are available for purposes of scientific 
research or to enhance the propagation or survival of the species.
    (2) Unauthorized destruction/alteration of the species' habitat 
such as removal of large woody debris or riparian shade canopy, 
dredging, discharge of fill material, draining, ditching, diverting, 
blocking, or altering stream channels or surface or ground water flow.
    (3) Discharges or dumping of toxic chemicals or other pollutants 
(i.e., sewage, oil and gasoline) into waters or riparian areas 
supporting the species.
    (4) Violation of discharge permits.
    (5) Pesticide applications in violation of label restrictions.
    (6) Interstate and foreign commerce (commerce across State lines 
and international boundaries) and import/export without prior 
obtainment of an endangered species permit.
    This list is not exhaustive. It is provided to give the reader some 
examples of the types of activities that would be considered by the 
NMFS as constituting a ``take'' of Umpqua River cutthroat trout under 
the ESA and regulations. Questions regarding whether specific 
activities will constitute a violation of section 9, and general 
inquiries regarding prohibitions and permits, should be directed to 
NMFS (see ADDRESSES).

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the extent prudent 
and determinable, critical habitat be designated concurrently with the 
listing of a species. At the present time, NMFS is placing a higher 
priority on listings than on critical habitat designations due to 
staffing and workload constraints resulting from the lifting of the 
recent listing moratorium. In most cases the substantive protections of 
critical habitat designations are duplicative of those of listings, 
however, in cases in which critical habitat designation is deemed 
essential to the conservation of the species, such a designation could 
warrant a higher priority. It is NMFS' intention to develop and publish 
a critical habitat designation for Umpqua River cutthroat trout as time 
and workload permit.

Classification

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir., 
1981), NMFS has categorically excluded all ESA listing actions from 
environmental assessment requirements of NEPA (48 FR 4413; February 6, 
1984).
    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic considerations have no relevance to determinations 
regarding the status of the species. Therefore, the economic analysis 
requirements of the Regulatory Flexibility Act are not applicable to 
the listing process. Similarly, this final rule is exempt from review 
under E.O. 12866.

References

    The complete citations for the references used in this document can 
be obtained by contacting Garth Griffin, NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

    Dated: July 29, 1996.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 222 is amended 
as follows:

PART 222--ENDANGERED FISH OR WILDLIFE

    1. The authority citation of part 222 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 et seq.


Sec. 222.23  [Amended]

    2. In Sec. 222.23, paragraph (a), the second sentence is amended by 
adding the phrase ``Umpqua River cutthroat trout (Oncorhynchus clarki 
clarki);'' immediately after the phrase ``Snake River sockeye salmon 
(Oncorhynchus nerka),''.
[FR Doc. 96-20029 Filed 8-8-96; 8:45 am]
BILLING CODE 3510-22-F .