[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Rules and Regulations]
[Pages 1388-1395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-545]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 970715175-7292-02; I.D. No. 042997B]
RIN 0648-AG58
Designated Critical Habitat; Umpqua River Cutthroat Trout
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is designating critical habitat for the Umpqua River
cutthroat trout (Oncorhynchus clarki clarki). Designated critical
habitat includes all river reaches of the Umpqua River accessible to
cutthroat trout, including all Umpqua River estuarine areas and
tributaries upstream from the Pacific Ocean to the confluence of the
North and South Umpqua Rivers; the North Umpqua River, including all
tributaries, from its confluence with the mainstem Umpqua River to Soda
Springs dam; the South Umpqua River, including all tributaries, from
its confluence with the mainstem Umpqua River to its headwaters.
Critical habitat includes all waterways below longstanding, naturally
impassable barriers (i.e., natural water falls in existence for over
several hundred years). Such areas represent the current freshwater and
estuarine range of the listed species. The economic and other impacts
resulting from this critical habitat designation are expected to be
minimal.
NMFS is excluding areas above Soda Springs dam on the North Umpqua
River from critical habitat. Available information indicates that
habitat above Soda Springs dam is not currently essential for the
conservation of this species. NMFS may revise this determination in the
future should new information indicate habitat above Soda Springs dam
is essential for the conservation of the species.
DATES: This rule is effective February 9, 1998. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register as of February 9, 1998.
FOR FURTHER INFORMATION CONTACT: Jim Lynch, NMFS, Protected Resources
Division, 525 NE Oregon St., Suite 500, Portland, OR, 97232-2737,
telephone (503/230-5422), internet (jim.lynch@noaa.gov).
SUPPLEMENTARY INFORMATION:
Background
On August 9, 1996, NMFS published its determination to list Umpqua
River cutthroat trout (Oncorhynchus clarki clarki) as endangered under
the Endangered Species Act (ESA) (61 FR 41514). In its final listing
determination, NMFS concluded that all cutthroat trout life history
forms (i.e., anadromous, potamodromous, and resident) should be
included in the listed Umpqua River cutthroat trout Evolutionarily
Significant Unit. This conclusion was based on studies conducted by
Oregon Department of Fish and Wildlife (ODFW) and others that indicate
these life history forms are not completely reproductively isolated
and, therefore, should be considered a single ``distinct population
segment,'' under the ESA and NMFS' ESA species policy (61 FR 41516).
Historically, anadromous, potamodromous, and resident cutthroat
trout likely existed throughout the Umpqua River basin. The current
freshwater distribution of anadromous and potamodromous life forms is
thought to be limited primarily to the mainstem, Smith, and North
Umpqua Rivers. Resident cutthroat trout appear to remain broadly
distributed throughout the Umpqua River basin, including areas of the
South Umpqua River thought to support insignificant numbers of
anadromous cutthroat trout populations.
Section 4(a)(3)(A) of the ESA requires that, to the maximum extent
prudent and determinable, NMFS designate critical habitat concurrently
with a determination that a species is endangered or threatened. On
July 19, 1993, NMFS published a Federal Register notice soliciting
information and data regarding the present and historic status of the
Umpqua River cutthroat trout, as well as information on areas that may
qualify as critical habitat (58 FR 38544). At the time of final
listing, critical habitat was not determinable, since information
necessary to perform the required analyses was not available.
On July 30, 1997, NMFS published a proposed rule designating
critical habitat for the listed species (62 FR 40786). In that proposed
rule, NMFS solicited public comments and announced public hearings on
the proposed action. This final rule considers new information and
comments received in response to the proposed rule.
Use of the term ``essential habitat'' within this final rule refers
to critical habitat as defined by the ESA and should not be confused
with the requirement to describe and identify Essential Fish Habitat
(EFH) pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801 et seq.
Definition of Critical Habitat
Critical habitat is defined in section 3(5)(A) of the ESA as ``(i)
the specific areas within the geographical area occupied by the species
* * * on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species * * * upon
a determination by the Secretary [of Commerce] that such areas are
essential for the conservation of the species.'' (See 16 U.S.C.
1532(5)(A).) The term ``conservation,'' as defined in section 3(3) of
the ESA, means, ``* * * to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary.'' (See 16 U.S.C. 1532(3).)
In designating critical habitat, NMFS considers the following
requirements of the species, space for individual and population
growth, and for normal behavior, food, water, air, light, minerals, or
other nutritional or physiological requirements, cover or shelter,
sites for breeding, reproduction, or rearing of offspring; and,
generally, habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of this species (See 50 CFR Sec. 424.12(b)). In addition
to these factors, NMFS also focuses on the known physical and
biological features (primary constituent elements) within the
designated area that are necessary to the conservation of the species
and may require special management considerations or protection. These
essential features may include, but are not limited to, spawning sites,
food resources, water quality and quantity, and riparian vegetation
(See 50 CFR Sec. 424.12(b).)
Benefits of Critical Habitat Designation
A designation of critical habitat provides a clear indication to
Federal
[[Page 1389]]
agencies as to when section 7 consultation is required, particularly in
cases where the proposed action would not result in direct mortality,
injury, or harm to individuals of a listed species (e.g., an action
occurring within the critical area when a migratory species is not
present). The critical habitat designation, describing the essential
features of the habitat, also assists in determining which activities
conducted outside the designated area are subject to section 7 (i.e.,
activities outside critical habitat that may affect essential features
of the designated area).
A critical habitat designation will also assist Federal agencies in
planning future actions, since the designation establishes, in advance,
those habitats that will be given special consideration in section 7
consultations. With a designation of critical habitat, potential
conflicts between Federal actions and endangered or threatened species
can be identified and possibly avoided early in the agency's planning
process.
Another indirect benefit of a critical habitat designation is that
it helps focus Federal, state, and private conservation and management
efforts in such areas. Management efforts may address special
considerations needed in critical habitat areas, including conservation
regulations to restrict private as well as Federal activities. The
economic and other impacts of these actions would be considered at the
time of the proposed regulations and, therefore, are not considered in
the critical habitat designation process. Other Federal, state, and
local authorities, such as zoning or wetlands and riparian lands
protection, may also provide special protection for critical habitat
areas.
Summary of Comments
Two public hearings were held on the proposed action--one in
Roseburg, Oregon, on August 16, 1997, and one in Reedsport, Oregon, on
August 17, 1997. Twenty-four individuals provided oral testimony at the
two public hearings. Ten written comments were submitted in response to
the proposed rule. The majority of the oral and written comments
opposed designation of critical habitat. New information and comments
received in response to the proposed rule are summarized here.
Economic Considerations
Comment: Several commenters stated that NMFS improperly minimized
the economic impacts by separating the designation of critical habitat
from the listing process (i.e., considering only the incremental
economic effects of designating critical habitat beyond the effects
associated with listing the species as threatened or endangered). These
commenters are concerned that by separating the costs associated with
the various administrative actions (e.g., listing, critical habitat
designation, section 7 consultations), NMFS underestimated the real
economic consequences of protecting listed Umpqua River cutthroat trout
as required by the ESA. Several commenters objected to NMFS'
interpretation that the impact of critical habitat designation only
duplicates the protection provided under section 7 of the ESA. Also,
several commenters believe that using an incremental approach for
critical habitat designation renders sections of the ESA meaningless
and circumvents the intent of Congress.
Response: NMFS disagrees with the assertion that it has improperly
minimized the economic impacts by separating the designation of
critical habitat from the listing process, or that this incremental
approach for critical habitat designation renders sections of the ESA
meaningless. Rather, the ESA is unambiguous in how it addresses
economic impacts; it prohibits the consideration of economic impacts in
the listing process, but requires analysis of economic impacts when
designating critical habitat. These separate requirements for each
determination lead to an incremental analysis in which only the
economic impacts resulting from the designation of the critical habitat
are considered.
Since NMFS is designating the current range of the listed species
as critical habitat, this designation will not impose any additional
requirements or economic effects beyond those which may accrue from
section 7 of the ESA. Section 7 requires Federal agencies to insure
that any action they carry out, authorize, or fund is not likely to
jeopardize the continued existence of any listed species or result in
the destruction or adverse modification of habitat which is determined
to be critical. The consultation requirements of section 7 are
nondiscretionary and are effective at the time of species listing.
Therefore, Federal agencies must consult with NMFS and ensure their
action does not jeopardize a listed species regardless of whether
critical habitat is designated.
The designation of critical habitat remains important
notwithstanding its lack of economic impact because it identifies
habitat that is essential for the continued existence of a species and
that may require special management attention. This facilitates and
enhances Federal agencies' ability to comply with section 7 by ensuring
that they are aware of their activities on listed species and habitats
essential to support them. In addition to aiding Federal agencies in
determining when consultations are required pursuant to section
7(a)(2), critical habitat can aid an agency in fulfilling its broader
obligation under section 7(a)(1) to use its authority to carry out
programs for the conservation of listed species.
Comment: Several commenters asserted that the incremental approach
fails to take into account the substantial effect on non-Federal
interests that will be harmed by critical habitat designation to the
extent they must receive Federal approvals or funds to conduct their
activities.
Response: Most of the effect on non-Federal interests will result
from the taking prohibition of section 9, or the no-jeopardy
requirement of section 7, both of which are a function of the listing
of the species, not of the designation of critical habitat. Whether or
not critical habitat is designated, non-Federal interests must conduct
their actions consistent with the requirements of the ESA. When a
species is listed, non-Federal interests must comply with the
prohibitions on takings under section 9 of the ESA or associated
regulations. If the activity is funded, permitted, or authorized by a
Federal agency, that agency must comply with the non-jeopardy mandate
of section 7 of the ESA, which is also a result of the listing of a
species, not of the designation of critical habitat. Once critical
habitat is designated, the agency must avoid actions that destroy or
adversely modify that critical habitat. However, pursuant to NMFS' ESA
implementing regulations, any action that destroys or adversely
modifies critical habitat is also likely to jeopardize the continued
existence of the species (See 50 CFR Sec. 402.02). Therefore, NMFS does
not anticipate that the designation will result in significant
additional requirements for non-Federal interests.
Scope and Extent of Critical Habitat
Comment: Several commenters questioned NMFS' delineation of
critical habitat as including all areas currently accessible to the
species. One commenter stated that NMFS should only designate areas as
critical habitat that have been proven to contain the species. Several
commenters questioned why NMFS had not designated critical habitat in
marine areas while one commenter agreed that omitting such areas was
appropriate at this stage.
Response: Critical habitat is defined in section 3(5)(A) of the ESA
as the specific areas within the geographic area occupied by the
species on which are
[[Page 1390]]
found those physical or biological features that are essential to the
conservation of the species and that may require special management
considerations or protection. Based on commenters' concerns and on new
information received during the public comment period, NMFS has refined
its designation of critical habitat for Umpqua River cutthroat trout.
The following sections address these commenters' concerns and clarify
NMFS' designation of critical habitat for this species.
Estuarine and Marine Habitats
NMFS recognizes that the Umpqua River estuary is an essential
rearing area and migration corridor for listed Umpqua River cutthroat
trout, and has maintained the designation of the estuary as critical
habitat in this final rule. Although they are also important, NMFS
believes that marine habitats (i.e., oceanic or nearshore areas seaward
of the mouth of the Umpqua River) used by listed Umpqua River cutthroat
trout do not presently warrant designation and do not appear to be in
need of special management consideration or protection. Degradation of
this portion of the species' habitat does not appear to have been a
significant factor in the decline of the species. Specifically,
existing laws appear adequate to protect these areas, and special
management of this habitat is not considered necessary at this time. If
additional evidence supports the inclusion of marine areas, NMFS may
revise designated critical habitat in accordance with 50 CFR
Sec. 424.16. NMFS will, of course, continue to consult under section 7
of the ESA to address Federal actions that may affect the species or
result in takings in the ocean, such as Federal management of ocean
fishing.
Freshwater Habitats
NMFS has determined that it is possible to determine most river
reaches and lakes critical to the conservation of listed Umpqua River
cutthroat trout. However, Umpqua River cutthroat trout inhabit a wide
range of habitats, from the mainstem Umpqua River to small perennial
and intermittent streams. This use of diverse habitats coupled with the
inadequacy of existing species distribution maps makes it extremely
difficult to identify all specific river reaches required by this
species. Furthermore, designating each specific river reach would not
necessarily aid current conservation efforts for this species since
there is the potential of excluding small, yet important, tributaries
from the critical habitat designation. Therefore, it is presently not
feasible to designate each particular river reach that could be
considered as critical habitat for Umpqua River cutthroat trout.
Accordingly, NMFS has determined that it is prudent to designate
specific hydrologic units (i.e., federally-designated river basin
boundaries) that include or contain river reaches presently or
historically accessible to this species (except reaches upstream of
impassable natural falls, and Soda Springs dam). These reaches are
known to contain physical and biological features vital to the
conservation of Umpqua River cutthroat trout (see Table 4 in the
regulatory text). Figure 9 identifies the general geographic extent of
larger rivers, lakes, and streams within hydrologic units designated as
critical habitat for Umpqua River cutthroat trout. Note that Figure 9
does not constitute the definition of critical habitat, but instead is
provided as a general reference to guide Federal agencies and
interested parties in locating the general boundaries of critical
habitat for listed Umpqua River cutthroat trout. The complete text
delineating critical habitat for this species can be found in the final
regulation below. Table 4 to this part provides a list of affected
counties.
NMFS acknowledges that many of the river reaches within the
hydrologic units designated as critical habitat may not presently be
inhabited by the listed species. Salmonids and cutthroat trout in
particular, are highly migratory and utilize numerous types of habitat
throughout their life cycles. This species' life history is not fully
understood. However, three separate life forms have been identified and
are included in the listed ESU: anadromous fish (ocean-migrating),
potamodromous fish (in-river migrating), and resident fish (freshwater
dwelling). Given the complexity of cutthroat trout's life history and
the diversity of its habitat needs, NMFS believes that all areas that
are currently accessible to the listed species may be critical to its
recovery and survival. Furthermore, the vast majority of streams in the
Umpqua River basin contribute essential elements such as food, gravel,
large woody debris, and water quality to this species' habitat. Hence,
their inclusion as part of the critical habitat is in keeping with the
ESA's purpose ``* * * to provide a means whereby the ecosystems upon
which endangered species or threatened species depend may be conserved
* * *'' (16 U.S.C. 1532(b)). Until information is developed that allows
more definitive and detailed characterization of stream reaches as
critical or noncritical, NMFS chooses to adopt a more inclusive
critical habitat designation incorporating river reaches in hydrologic
units presently or historically accessible (except reaches upstream of
impassable natural falls, and Soda Springs dam) to cutthroat trout.
Experience gained by NMFS through section 7 consultations clearly
demonstrates the importance of assessing potential impacts of actions
within entire watersheds. It is well documented that human activities
in areas outside the immediate stream channel can have a demonstrable
effect on physical and biological features essential to the
conservation of listed Umpqua River cutthroat trout. For example, road
building and timber harvest operations in upland areas can result in
adverse modifications to cutthroat trout spawning and rearing areas via
landslides, sedimentation, fuel spills, and loss of riparian vegetation
that provides shade, cover, and other habitat functions.
Comment: Several commenters questioned why NMFS designated riparian
areas 300 ft. (91.4 m) on each side of the stream channel high water
line as critical habitat. Several commenters also questioned if the
300-ft. (91.4 m) riparian buffer applied to nonfish-bearing streams.
Response: Riparian habitats provide several essential elements for
cutthroat trout. The reduction in riparian tree shade canopy can
produce significant increases in water temperatures (Bottom et al.,
1985; California Department of Fish and Game, 1994; Forest Ecosystem
Management Assessment Team (FEMAT), 1993). Riparian vegetation protects
stream banks from erosion through soil binding by root masses and the
presence of ground litter and dense overstory canopy, which impedes the
rate of surface runoff (FEMAT, 1993). Riparian vegetation provides
important substrates for aquatic invertebrates, cover for predator
avoidance, and resting habitat for many fish species. Riparian
vegetation that is carried from upland areas and deposited in estuaries
is a major source of food and habitat for obligatory, wood-boring
marine invertebrates which break down and pass usable carbon into the
water's current where it enters the detrital-based marine food web
(Sedell and Maser, 1994). As much as 99 percent of the annual energy
input, the food base for all aquatic communities, comes from riparian
vegetation (Reynolds et al., 1993). Removal of streamside vegetation
simplifies channel banks and destroys shelter for rearing fish species,
simplifies channel shape so there are fewer pools and riffles, and
eventually
[[Page 1391]]
leads to a widening of channels that are more prone to warming by
sunlight (Botkin et al., 1995; California Advisory Committee on Salmon
and Steelhead Trout, 1988; California Department of Fish and Game,
1994).
Biophysical characteristics and processes that create riparian
zones vary considerably throughout the range of listed Umpqua River
cutthroat trout. However, riparian zones along the Umpqua River are
considered essential for the conservation of the listed species because
they provide important space, cover, and shelter, and increase river
productivity. Furthermore, healthy riparian zones help ensure that
water quality parameters support physiological and behavioral
requirements of the listed species.
In the Umpqua River basin, critical habitat includes the water,
waterway bottom, and the adjacent riparian zone. A 1992 report by the
U.S. Fish and Wildlife Service (FWS) states that riparian streambanks
are composed of natural, eroding substrates supporting vegetation that
either overhangs or protrudes into the water and, consequently,
provides shade and escape cover for salmonids and other wildlife.
Furthermore, according to a 1993 report by FEMAT, riparian zones
consist of ``areas where the vegetation complex and microclimate
conditions are products of the combined presence and influence of
perennial and/or intermittent water, associated high water tables, and
soils that exhibit some wetness characteristics.'' The FEMAT report
contains a comprehensive review of riparian ecosystem components, and
specifies that riparian zones for fishbearing streams should consist of
``* * * the area on either side of the stream extending from the edges
of the active stream channel to the top of the inner gorge, or to the
outer edges of the 100-year floodplain, or to the outer edges of
riparian vegetation, or to a distance equal to the height of two site-
potential trees, or 300 ft. (91.4m) slope distance (600 ft. (182.8 m),
including both sides of the stream channel), whichever is greatest.''
Since adverse modification of riparian zones may impede the
recovery of the endangered Umpqua River cutthroat trout, the adjacent
riparian zone is included in the critical habitat designation. It is
important to note that this critical habitat designation includes all
river reaches of the Umpqua River currently accessible to endangered
Umpqua River cutthroat trout. In most cases, this critical habitat
designation will encompass fishbearing streams only.
NMFS recognizes that the influences of riparian vegetation
progressively decrease away from the water source (e.g., river), making
it difficult to identify discrete boundaries for the riparian zones. As
a reasonable benchmark, NMFS defines the ``adjacent riparian zone'' as
those areas within a slope distance of 300 ft. (91.4 m) from the normal
line of high water of a stream channel or from the shoreline of a
standing body of water. NMFS points out that this definition is adopted
solely as a means by which agencies can evaluate the potential risk of
proposed actions on designated critical habitat. The actual delineation
of riparian zones at the site of a proposed action can be more
accurately identified through section 7 consultations.
Comment: One commenter stated that NMFS should exclude areas above
Soda Springs dam on the North Umpqua River from a critical habitat
designation since: (1) cutthroat trout do not currently inhabit the
area above Soda Springs dam, and (2) available habitat above Soda
Springs dam is not essential for the conservation of the species.
Response: Since the proposed listing, several new sources of
information indicate that cutthroat trout do not occur in the North
Umpqua River above Soda Springs dam. Surveys conducted by PacifiCorp in
the North Umpqua River and tributaries above Soda Springs dam indicate
that these areas are dominated by rainbow trout, brown trout, and brook
trout and do not contain cutthroat trout (PacifiCorp, 1997).
PacifiCorp's analysis appears to be supported by recent survey work
conducted by the U.S. Forest Service (USFS) in this area. In a recent
survey conducted by USFS biologists in Fish Creek, a tributary to the
North Umpqua River just above Soda Springs dam, USFS personnel
collected samples of fish thought to be cutthroat trout, or cutthroat
trout-rainbow trout hybrids (USFS, 1997). These samples were sent to
NMFS for genetic analysis. Initial lab results indicate that all the
fish submitted are rainbow trout, not cutthroat trout (NMFS, 1997).
Aside from new information submitted by PacifiCorp and USFS, the
Oregon Department of Fish and Wildlife (ODFW) has previously stated its
belief that no cutthroat trout occur above Soda Springs dam (ODFW,
1996).
Regardless whether cutthroat trout currently occur above Soda
Springs dam, NMFS may designate areas as critical habitat outside the
current species range if it finds that designation of the present range
would be inadequate to ensure conservation of the species (50 CFR
Sec. 424.12(e)). In the present case, areas above Soda Springs dam
appear to be inhabited by species that could outcompete or hybridize
with introduced cutthroat trout, reducing the species' viability in
this area (PacifiCorp, 1997).
Based on new information submitted by PacifiCorp and USFS and on
previous comments from ODFW, NMFS concludes that habitat areas above
Soda Springs dam are not currently essential for the conservation of
listed Umpqua River cutthroat trout. Therefore, NMFS is revising the
proposed critical habitat designation to exclude areas above Soda
Springs dam on the North Umpqua River from Umpqua River cutthroat trout
critical habitat. NMFS may, in the future, revise this designation
should new information come to light indicating that such habitat areas
are essential for conservation purposes.
Even though NMFS is not designating areas above Soda Springs dam as
critical habitat for Umpqua River cutthroat trout, this in no way
affects NMFS' listing of resident or potamodromous cutthroat trout
should they be found in the future to exist above Soda Springs dam. If
cutthroat trout are found to occur above the dam in the future, parties
will have the duty to avoid ``take'' under section 9 of the ESA.
Adequacy of Existing Management Plans
Comment: Several commenters stated that existing management plans
and conservation initiatives were sufficient to protect Umpqua River
cutthroat trout and its habitat, and, therefore, the proposed critical
habitat designation is not warranted.
Response: NMFS considered existing regulatory mechanisms and
conservation plans applicable to Umpqua River cutthroat trout and its
habitat in the August 9, 1996, final listing determination (61 FR
41514). In that Federal Register notice, a variety of Federal and state
laws and programs were found to have affected the abundance and
survival of anadromous fish populations in the Umpqua River Basin (61
FR 41520). NMFS concluded that available regulatory mechanisms were
inadequate and continued to represent a potential threat to the
species' existence (61 FR 41520).
Since the final listing determination, the State of Oregon
completed a significant conservation initiative entitled the Oregon
Coastal Salmon Restoration Initiative (OCSRI). The OCSRI currently
focuses on factors that have led to the decline of coastal coho salmon.
In addressing these factors, the State has implemented measures to
[[Page 1392]]
improve habitat quality and lessen impacts from hatchery and harvest
practices.
NMFS believes that habitat measures contained in the OCSRI will
likely provide benefits for Umpqua River cutthroat trout over the long
term. However, the OCSRI relies exclusively on Federal measures to
protect salmon habitat on Federal lands. The majority of lands within
the range of Umpqua River cutthroat trout are in Federal ownership.
Therefore, under the OCSRI, it is imperative that existing Federal
protections under the Northwest Forest Plan and related Federal
measures that are described in the OSCRI protect the species to the
greatest extent. On private lands, the OCSRI relies heavily upon
voluntary measures to protect and enhance aquatic habitat. NMFS
believes that these voluntary measures may benefit Umpqua River
cutthroat trout. However, given the present status of the species
(endangered), NMFS concludes that it would be imprudent to rely on
voluntary measures on private lands to conserve this species and its
habitat. Critical habitat designation will assure careful scrutiny of
and priority attention to Federal actions that may impact Umpqua River
cutthroat trout habitats, resulting in strengthened protection for this
endangered species.
Changes From the Proposed Rule
Section 226.22 incorrectly amended references to the hydrologic
unit maps in the proposed rule. These maps have been correctly
referenced in this final rule.
Critical Habitat of Umpqua River Cutthroat Trout
Available biological information for listed Umpqua River cutthroat
trout can be found in the species' status review (Johnson et al., 1994)
and in Federal Register notices of proposed and final listing
determinations ( see 59 FR 35089, July 8, 1994); 61 FR 41514, August 9,
1996). Critical habitat consists of five components, spawning and
juvenile rearing areas, juvenile migration corridors, areas for growth
and development to adulthood, adult migration corridors, and over-
wintering habitat. The Pacific Ocean areas used by listed cutthroat
trout for growth and development to adulthood are not well understood,
and essential areas and features have not been identified.
The current geographic range of Umpqua River cutthroat trout
includes nearshore ocean areas, the mainstem Umpqua River and its
tributaries, and the North and South Umpqua Rivers and their
tributaries. NMFS has determined that the current freshwater and
estuarine range (referred to as the in-river range) of the species is
adequate to ensure the species' conservation. The species' current in-
river range encompasses all critical habitat features (e.g., riverine
conditions, estuaries, headwater areas) in sufficient quantity to
ensure conservation of the species. Therefore, designation of habitat
areas outside the species' current in-river range is not necessary.
NMFS recognizes the Umpqua River estuary is an essential migration
corridor for listed Umpqua River cutthroat trout and, accordingly, has
included estuary areas as critical habitat in this designation.
However, the importance of marine habitats (i.e., oceanic or near shore
areas seaward of the mouth of the Umpqua River) is not well understood
(Pauley, 1989; Behnke, 1992). In addition to a lack of biological
information concerning the marine life history phase of cutthroat
trout, a need for special management consideration or protection of
this habitat is not apparent. Based on present information, degradation
of this portion of the species' habitat does not appear to have been a
significant factor in the decline of the species.
Essential features of the designated in-river areas include
adequate substrate, water quality, water quantity, water temperature,
food, riparian vegetation, and access. Juvenile migration corridors
include the North and South Umpqua Rivers and the mainstem Umpqua River
to the Pacific Ocean. Essential features of the juvenile migration
corridors include adequate: (1) Substrate; (2) water quality; (3) water
quantity; (4) water temperature; (5) water velocity; (6) cover/shelter;
(7) food; (8) riparian vegetation; (9) space; and (10) safe passage
conditions. Adult migration corridors and their essential features are
the same as those identified for juvenile migration corridors.
Critical Habitat: Geographic Extent
Critical habitat includes all river reaches accessible to listed
Umpqua River cutthroat trout from a straight line connecting the west
end of the South jetty and the west end of the North jetty and
including all Umpqua River estuarine areas (including the Smith River)
and tributaries proceeding upstream from the Pacific Ocean to the
confluence of the North and South Umpqua Rivers; the North Umpqua
River, including all tributaries, from its confluence with the mainstem
Umpqua River to Soda Springs dam; the South Umpqua River, including all
tributaries, from its confluence with the mainstem Umpqua River to its
headwaters (including Cow Creek, tributary to the South Umpqua River).
Critical habitat includes all waterways below longstanding, naturally
impassable barriers (i.e., natural water falls in existence for over
several hundred years). Critical habitat includes the bottom and water
of the waterways and adjacent riparian zone. The riparian zone includes
those areas within 300 ft. (91.4 m) of the normal line of the high
water mark of the stream channel or from the shoreline of a standing
body of water.
Expected Economic Impacts of Designating Critical Habitat
The economic impacts to be considered in a critical habitat
designation are the incremental effects of critical habitat designation
above the economic impacts attributable to listing or attributable to
authorities other than the ESA (see Consideration of Economic,
Environmental and Other Factors section of this preamble). Incremental
impacts result from special management activities in areas outside the
present distribution of the listed species that have been determined to
be essential to the conservation of the species. However, NMFS has
determined that the species' present in-river range contains sufficient
habitat for conservation of the species. Therefore, NMFS finds that
there are no incremental impacts associated with this critical habitat
designation.
Activities That May Affect Critical Habitat
A wide range of activities may affect the essential habitat
requirements of listed Umpqua River cutthroat trout. These activities
include water and land management actions of Federal agencies (i.e.,
U.S. Forest Service, U.S. Bureau of Land Management, U.S. Bureau of
Reclamation, the Federal Highway Administration, and the Federal Energy
Regulatory Commission) and related or similar actions of other
federally-regulated projects and lands, including livestock grazing
allocations in the Umpqua River Basin by the U.S. Forest Service and
U.S. Bureau of Land Management; hydropower operators (i.e., PacifiCorp)
in the Umpqua River system licensed by the Federal Energy Regulatory
Commission; timber sales in the Umpqua River Basin conducted by the
U.S. Forest Service and U.S. Bureau of Land Management; road building
activities authorized by the Federal Highway Administration, U.S.
Forest Service, and U.S. Bureau of Land Management; and mining and road
building activities authorized by the State of Oregon. Other actions of
concern include dredge and fill, mining,
[[Page 1393]]
and bank stabilization activities authorized and/or conducted by the
U.S. Army Corps of Engineers throughout the Umpqua River Basin.
Federal agencies that will most likely be affected by this critical
habitat designation include the U.S. Forest Service, U.S. Bureau of
Land Management, U.S. Bureau of Reclamation, U.S. Army Corps of
Engineers, the Federal Highway Administration, and the Federal Energy
Regulatory Commission. This designation will provide clear notification
to these agencies, private entities, and the public of critical habitat
designated for listed Umpqua River cutthroat trout and the protection
provided for that habitat by the ESA section 7 consultation process.
This designation will also assist these agencies and others in
evaluating the potential effects of their activities on listed Umpqua
River cutthroat trout and their critical habitat and in determining
when consultation with NMFS would be appropriate.
Need for Special Management Considerations or Protection
To ensure that the essential areas and features are maintained or
restored, special management may be needed. Activities that may require
special management considerations for listed Umpqua River cutthroat
trout spawning and juvenile rearing areas include, but are not limited
to: (1) Land management; (2) timber harvest; (3) water pollution; (4)
livestock grazing; (5) habitat restoration; (6) irrigation water
withdrawal; (7) mining; (8) road construction; and (9) dam operation
and maintenance. For juvenile and adult migration corridors, special
management considerations also include dredge and fill activities, and
dam operations. Not all of these activities are necessarily of current
concern; however, they indicate the potential types of activities that
will require consultation in the future. No special management
considerations have been identified for listed Umpqua River cutthroat
trout residing in the ocean environment.
National Environmental Policy Act
NMFS has determined that an Environmental Assessment or an
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared for
this critical habitat designation. See Douglas County v. Babbitt, 48
F.3D 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this rule is not significant for purposes of E.O.
12866.
NMFS is designating only the current range of this species as
critical habitat. The current range encompasses a wide range of
habitat, including small tributary reaches, as well as mainstem, off-
channel and estuarine areas. Areas excluded from this final designation
include nearshore habitats in the Pacific Ocean, historically occupied
areas above Soda Springs dam, and headwater areas above impassable
natural barriers (e.g., long-standing, natural waterfalls). NMFS has
concluded that currently inhabited areas within the range of Umpqua
River cutthroat trout are the minimum habitat necessary to ensure
conservation and recovery of the listed species.
Since NMFS is designating the current range of the listed species
as critical habitat, this designation will not impose any additional
requirements or economic effects upon small entities, beyond those
which may accrue from section 7 of the ESA. Section 7 requires Federal
agencies to ensure that any action they carry out, authorize, or fund
is not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of
critical habitat (16 U.S.C. Sec. 1536(a)(2)). The consultation
requirements of section 7 are nondiscretionary and are effective at the
time of species' listing. Therefore, Federal agencies must consult with
NMFS and ensure their actions do not jeopardize a listed species,
regardless of whether critical habitat is designated.
In the future, if NMFS determines that designation of habitat areas
outside the species' current range is necessary for conservation and
recovery, NMFS will analyze the incremental costs of that action and
assess its potential impacts on small entities, as required by the
Regulatory Flexibility Act. Until that time, a more detailed analysis
would be premature and would not reflect the true economic impacts of
the proposed action on local businesses, organizations, and
governments.
Accordingly, the Assistant General Counsel for Legislation and
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that the
proposed rule, if adopted, would not have a significant economic impact
of a substantial number of small entities, as described in the
Regulatory Flexibility Act.
This rule does not contain a collection-of-information requirement
for purposes of the Paperwork Reduction Act.
The AA has determined that the proposed designation is consistent,
to the maximum extent practicable, with the approved Coastal Zone
Management Program of the State of Oregon. This determination has been
submitted for review by the responsible state agencies under section
307 of the Coastal Zone Management Act.
References
The complete citations for the references used in this document can
be obtained by contacting Jim Lynch, NMFS (see FOR FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 226
Endangered and threatened species, Incorporation by reference.
Dated: December 18, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 226 is to be
amended as follows:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation for part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
2. Section 226.22, introductory paragraph, is amended by revising
the sixth sentence to read as follows:
Sec. 226.22 Snake River Sockeye Salmon (Oncorhynchus nerka), Snake
River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha), Snake
River Fall Chinook Salmon (Oncorhynchus tshawytscha).
* * * Hydrologic units (table 3) are those defined by the
Department of the Interior (DOI), U.S. Geological Survey (USGS)
publication, ``Hydrologic Unit Maps, United States Geological Survey
Water Supply Paper 2294, 1987'', and the following DOI, USGS, 1:500,000
scale hydrologic unit map: State of Oregon, 1974; State of Washington,
1974; State of Idaho, 1974, which are incorporated by reference. * * *
3. Section 226.23 is added to subpart C to read as follows:
Sec. 226.23 Umpqua River cutthroat trout (Oncorhynchus clarki clarki).
(a) The following areas consisting of the water, waterway bottom,
and adjacent riparian zone of specified lakes and river reaches in
hydrologic units presently accessible to listed Umpqua River cutthroat
trout. Adjacent riparian zones are defined as those areas within
[[Page 1394]]
a slope distance of 300 ft. (91.4 m) from the normal line of high water
of a stream channel (600 ft. or 182.8 m, when both sides of the stream
channel are included) or from the shoreline of a standing body of
water. Figure 9 to this part identifies the general geographic extent
of larger rivers, lakes, and streams within hydrologic units designated
as critical habitat for Umpqua River cutthroat trout. Note that Figure
9 does not constitute the definition of critical habitat but, instead,
is provided as a general reference to guide Federal agencies and
interested parties in locating the general boundaries of critical
habitat for listed Umpqua River cutthroat trout. The complete text
delineating the critical habitat for the species follows. Hydrologic
units are those defined by the Department of the Interior (DOI), U.S.
Geological Survey (USGS) publication, ``Hydrologic Unit Maps, Water
Supply Paper 2294, 1986, and the following DOI, USGS, 1:500,000 scale
hydrologic unit map: State of Oregon (1974) which is incorporated by
reference. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies of the USGS publication and maps may be obtained from
the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be
inspected during normal business hours at NMFS, Protected Resources
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, or
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, or at the Office of the Federal Register, 800 North
Capitol Street, NW., Suite 700, Washington, DC.
(b) Geographic boundaries. All river reaches accessible to listed
Umpqua River cutthroat trout in the Umpqua River from a straight line
connecting the west end of the South jetty and the west end of the
North jetty and including all Umpqua River estuarine areas (including
the Smith River) and tributaries proceeding upstream from the Pacific
Ocean to the confluence of the North and South Umpqua Rivers; the North
Umpqua River, including all tributaries, from its confluence with the
mainstem Umpqua River to Soda Springs dam; the South Umpqua River,
including all tributaries, from its confluence with the mainstem Umpqua
River to its headwaters (including Cow Creek, tributary to the South
Umpqua River). Critical habitat includes all river reaches below
longstanding, naturally impassable barriers (i.e., waterfalls in
existence for several hundred years) in the following hydrologic units:
North Umpqua, South Umpqua, and Umpqua. Critical habitat borders on or
passes through the following counties in Oregon: Douglas, Lane, Coos,
Jackson, and Klamath counties. Perennial rivers and creeks within the
defined areas are also included in the critical habitat designation
(but are not specifically named), unless otherwise noted. Critical
habitat maps are available upon request from NMFS, Protected Resources
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737,
telephone (503/230-5422).
4. Table 4 is added to part 226 to read as follows:
Table 4.--Hydrologic Units \1\ Containing Critical Habitat for
Endangered Umpqua River Cutthroat Trout and Counties Contained in Each
Hydrologic Unit.
------------------------------------------------------------------------
Hydrologic Counties contained in
Hydrologic unit name unit No. hydrologic unit
------------------------------------------------------------------------
North Umpqua........................ 17100301 Douglas, Lane,
Klamath.
South Umpqua........................ 17100302 Douglas, Jackson,
Coos.
Umpqua.............................. 17100303 Douglas, Lane, Coos.
------------------------------------------------------------------------
\1\ 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale
State of Oregon (1974) hydrologic unit map (available from USGS).
6. Figure 9 to part 226 is added to read as follows:
BILLING CODE 3510-22-P
[[Page 1395]]
[GRAPHIC] [TIFF OMITTED] TR09JA98.004
[FR Doc. 98-545 Filed 1-8-98; 8:45 am]
BILLING CODE 3510-22-C
