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We encourage interested parties to DEPARTMENT OF THE INTERIOR Wildlife Office, 2600 SE. 98th Avenue, continue to gather data that will assist Suite 100, Portland, OR 97266; with the conservation of the species. If Fish and Wildlife Service telephone 503–231–6179; facsimile you wish to provide information 503–231–6195. regarding the bald eagle, you may 50 CFR Part 17 FOR FURTHER INFORMATION CONTACT: Paul submit your information or materials to [Docket No. FWS–R1–ES–2008–0128] Henson, Ph.D., State Supervisor, U.S. the Field Supervisor, Arizona Ecological [MO 92210–0–0009–B4] Fish and Wildlife Service, Oregon Fish ADDRESSES and Wildlife Office (see ADDRESSES, Services Office (see section RIN 1018–AW72 above). The Service continues to above). Persons who use a strongly support the cooperative Endangered and Threatened Wildlife telecommunications device for the deaf conservation of the Sonoran Desert Area and Plants; Withdrawal of Proposed (TDD) may call the Federal Information bald eagle. Rule To List the Southwestern Relay Service (FIRS) at 800–877–8339. On March 6, 2008, the U.S. District Washington/Columbia River Distinct SUPPLEMENTARY INFORMATION: Court for the District of Arizona Population Segment of Coastal Background enjoined our application of the July 9, Cutthroat Trout (Oncorhynchus clarki clarki) as Threatened On July 5, 2002, we published a 2007 (72 FR 37346), final delisting rule notice of our withdrawal of the for bald eagles to the Sonoran Desert AGENCY: Fish and Wildlife Service, proposed rule to list the Southwestern population pending the outcome of our Interior. Washington/Columbia River distinct status review and 12-month petition ACTION: Proposed rule; withdrawal. population segment (DPS) of the coastal finding. As a result, we put this cutthroat trout (Oncorhynchus clarki population back on the List of SUMMARY: We, the U.S. Fish and clarki) as threatened under the Threatened and Endangered Species on Wildlife Service (Service), have Endangered Species Act of 1973, as May 1, 2008. In light of our 12-month determined that the proposed listing of amended (Act) (67 FR 44934; July 5, finding presented above, we intend to the Southwestern Washington/Columbia 2002). As a result of litigation, we are publish a separate notice to remove this River Distinct Population Segment required to reconsider our withdrawal population from the List of Threatened (DPS) of coastal cutthroat trout as a of the proposed rule with specific regard and Endangered Wildlife. However, we threatened species under the to the question of whether marine and will only do so once the U.S. District Endangered Species Act of 1973, as estuarine areas may constitute a Court for the District of Arizona has amended (Act), is not warranted. We significant portion of the range of the confirmed that its injunction, which therefore withdraw our proposed rule Southwestern Washington/Columbia (64 FR 16397; April 5, 1999) to list the required us to add this population to the River DPS of coastal cutthroat trout. DPS under the Act. Although we had List of Threatened and Endangered On March 24, 2009, we published a earlier concluded that this DPS did not Wildlife, has been dissolved. Until that notice of reopening of a comment period warrant listing under the Act, as a result on the proposed rule (74 FR 12297). In time, the Sonoran Desert Area of litigation we have reconsidered population will remain protected by the that notice, we alerted the public, other whether the marine and estuarine areas concerned governmental agencies, the Act. of the DPS may warrant listing if they scientific community, industry, and any References Cited constitute a significant portion of the other interested party of our request for range of the DPS. Based upon a information, data, or comments on the A complete list of all references cited thorough review of the best available marine and estuarine areas of the herein is available, upon request, from scientific and commercial data, we have Southwestern Washington/Columbia the Arizona Ecological Services Office determined that the threats to coastal River DPS of coastal cutthroat trout, of the U.S. Fish and Wildlife Service cutthroat trout in the marine and with particular regard to whether these (see ADDRESSES section above). estuarine areas of its range within the areas constitute a significant portion of DPS, as analyzed under the five listing the range of the DPS under the Act, and Author factors described in section 4(a)(1) of the if so, whether the subspecies is The primary authors of this notice are Act, are not likely to endanger the threatened or endangered in those areas. species now or in the foreseeable future the staff of the Arizona Ecological The comment period closed on April throughout this portion of its range. We, Services Office (see ADDRESSES). 23, 2009, and we received four comment therefore, again withdraw our proposed letters. After analyzing the information Authority rule, as we have determined that the received, information in our files, and coastal cutthroat trout is not likely to all other available information, we The authority for this action is the become endangered now or in the analyzed the threats to coastal cutthroat Endangered Species Act of 1973, as foreseeable future throughout all or a trout in the marine and estuarine amended (16 U.S.C. 1531 et seq.). significant portion of its range within portion of the DPS to determine whether Dated: February 17, 2010. the Southwestern Washington/Columbia coastal cutthroat trout are threatened or River DPS. Hannibal Bolton, endangered in that area and, if so, ADDRESSES: This withdrawal and whether the area constitutes a Acting Director, Fish and Wildlife Service. supporting documentation are available significant portion of the range of the [FR Doc. 2010–3794 Filed 2–24–10; 8:45 am] on the Internet at http:// DPS. Although the Court did not ask us BILLING CODE 4310–55–P www.regulations.gov; search for Docket to revisit status, trends, and threats to Number [FWS–R1–ES–2008–0128]. anadromous cutthroat trout or other life- Supporting documentation for this history forms outside of marine and determination is also available for estuarine areas, we have also considered inspection, by appointment, during any new information available for these normal business hours at the U.S. Fish areas that would suggest any significant and Wildlife Service, Oregon Fish and change in status, trend, or threats for the

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remainder of the DPS. This withdrawal of the DPS do not warrant listing as Previous Federal Actions of the proposed rule is the result of our either threatened or endangered. The Federal Register documents determination that coastal cutthroat related to this current withdrawal action trout in the marine and estuarine areas are listed in table 1 and explained further in text following the table.

TABLE 1—FEDERAL REGISTER PUBLICATIONS CONCERNING THE PROPOSED LISTING OF THE SOUTHWESTERN WASHINGTON/ COLUMBIA RIVER DISTINCT POPULATION SEGMENT OF COASTAL CUTTHROAT TROUT (Oncorhynchus clarki clarki).

Date of Federal Register Publication Federal Register Citation Action

April 5, 1999 64 FR 16397 FWS and NMFS jointly issue a proposed rule to list the southwestern Washington/Columbia River distinct population segment of coastal cutthroat trout as threatened and opened a public comment period until July 6, 1999

April 14, 2000 65 FR 20123 Announced 6–month extension for publishing the final determination on the April 5, 1999, proposed rule from the normal 12–month timeframe required by the Act (extension was from April 5, 2000, to October 5, 2000)

April 21, 2000 65 FR 21376 Announced transfer of regulatory jurisdiction for coastal cutthroat trout from joint FWS and NMFS management to FWS exclusively

June 2, 2000 65 FR 35315 Reopened the comment period on the April 5, 1999, proposed rule until July 23, 2000, and announced a public hearing on June 20, 2000

July 14, 2000 65 FR 43730 Clarified the take prohibitions that would go into effect if the April 5, 1999, proposed rule was finalized

September 6, 2000 65 FR 53974 Reopened the comment period on the July 14, 2000, take clarification document until September 29, 2000, and announced a public hearing on September 21, 2000

November 23, 2001 66 FR 58706 Reopened the comment period on the April 5, 1999, proposed rule to list until December 24, 2001

July 5, 2002 67 FR 44934 Withdrew the April 5, 1999, proposed rule to list

March 24, 2009 74 FR 12297 Reconsidered the July 5, 2002, withdrawal and reopened the comment period on the April 5, 1999, proposed rule to list until April 23, 2009

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

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the trend in the anadromous portion of Species Information the extent of tidal influence, largely due the population in the Columbia River; The following descriptions of the to the less linear shape of the water (5) new information describing the subspecies coastal cutthroat trout body. As a result, we define the estuary production of anadromous progeny by (Oncorhynchus clarki clarki), its habitat, as extending approximately as far non-anadromous and above-barrier and life history, are excerpted from our upstream as the extent of saltwater- cutthroat trout; and, (6) two large-scale July 5, 2002, withdrawal of the tolerant shoreline vegetation along each Habitat Conservation Plans (HCPs) and proposed rule to list the Southwestern of the respective tributaries. Defined significant changes in Washington Washington/Columbia River DPS of the this way, Grays Harbor estuary covers Forest Practices Regulations, coastal cutthroat trout as threatened approximately 91 sq mi (about 236 sq substantially reducing threats to aquatic (hereafter ‘‘withdrawal notice’’) (67 FR km), and Willapa Bay estuary covers approximately 129 sq mi (about 334 sq and riparian habitat on forest lands in 44934; July 5, 2002). We incorporate all Washington. The withdrawal notice km). of the information in the withdrawal concluded that, based on reduced The marine area included is far more notice by reference. Where new threats and new information and difficult to identify, since anadromous information has become available, we understanding regarding the status of coastal cutthroat trout from within this have updated these descriptions to the DPS, the Southwestern Washington/ DPS could potentially intermingle with ensure we are using the best available Columbia River DPS of coastal cutthroat coastal cutthroat trout from Olympic scientific and commercial information. trout was not in danger of becoming Peninsula populations to the north, and Where certain information is critical to endangered in the foreseeable future, the Oregon coast populations to the the understanding of our reasoning, we and, therefore, did not meet the south (Johnson et al. 1999, pp. 126– have included it here. We have focused definition of a threatened species. 130). We define the nearshore marine On February 3, 2005, the Center for on cutthroat exhibiting anadromous life- area by considering the marine areas Biological Diversity, Oregon Natural history strategies as these are the only known or likely to be used by Columbia Resources Council, Pacific Rivers individuals that use the marine and River anadromous coastal cutthroat Council, and WaterWatch filed a legal estuarine areas under consideration trout. To the south of the mouth of the challenge to the Service’s withdrawal of here. Please see the withdrawal notice Columbia River, an acoustic-tagged the proposed listing in the U.S. District (67 FR 44934; July 5, 2002) for coastal cutthroat trout from a study by Court for the District of Oregon (Center additional information. Zydlewski et al. (2008, p. 34) was for Biological Diversity, et al. v. U.S. The coastal cutthroat trout is 1 of 10 detected by an unrelated acoustic Fish and Wildlife Service, Case No. 05– formally described subspecies of tracking study off the mouth of Nehalam 165–KI). The Court ruled that the cutthroat trout (Behnke 1992) and is a Bay, approximately 38 miles (mi) (about Service’s decision to withdraw the member of the family Salmonidae 61 kilometers (km)) south of the proposed rule complied with the Act (collectively known as salmonids). The Columbia River mouth. We can and was not arbitrary and capricious, coastal cutthroat trout is distributed therefore reasonably assume that coastal and dismissed the action on November along the Pacific Coast of North America cutthroat trout from Grays Harbor 16, 2005. Plaintiffs appealed. On April from Prince William Sound in Alaska to estuary in Washington might swim 18, 2008, the U.S. Court of Appeals for the Eel River in California (Behnke about the same distance north of the the Ninth Circuit affirmed the district 1992, p. 65; Trotter 2008, p. 62) and mouth of its bay, or approximately to court’s decision in part and reversed the inland from the Coast Range of Alaska the mouth of the Queets River. decision in part. The Ninth Circuit to roughly the crest of the Cascades of According to Trotter (2008, p. 71), found no error in the Service’s Washington and Oregon (Trotter 2008, coastal cutthroat trout have been determination that the DPS as a whole p. 62). collected as far out into the Columbia did not merit listing, but held that the The Southwestern Washington/ River plume as 41 mi (about 66 km) Service had failed to consider whether Columbia River DPS of coastal cutthroat from the mouth. The ‘‘plume’’ refers to the marine and estuarine portions of the trout includes the Columbia River and the area where river water extends into DPS constitute a significant portion of its tributaries from the mouth to the and mixes with the waters of the ocean the range of the coastal cutthroat trout Klickitat River on the Washington side at the mouth of the river. within that DPS under the Act (Center of the river and Fifteenmile Creek on the The marine areas included in this for Biological Diversity, et al. v. U.S. Oregon side; the Willamette River and analysis, therefore, include Fish and Wildlife Service, 274 Fed. its tributaries from its confluence with approximately 4,952 sq mi (about Appx. 542 (9th Cir. 2008)). The Ninth the Columbia upstream to Willamette 12,826 sq km) of ocean ranging from the Circuit reversed the district court’s Falls; Willapa Bay and its tributaries; mouth of the Nehalam River in Oregon, decision and remanded the matter to the and Grays Harbor and its tributaries. out to a point approximately 30 mi district court. The portion of the range of the DPS (about 48 km) from shore, then to a On July 1, 2008, the U.S. District being considered here includes three point approximately 41 mi (about 66 Court for the District of Oregon issued estuaries and areas of nearshore marine km) west of the Columbia River mouth, an amended order remanding the listing ocean habitat off the coasts of these then a point approximately 30 mi (about decision to the Service for further estuaries. In the Columbia River, we 48 km) west of the mouth of the Queets consideration in light of the opinion of have defined the estuary as extending to River, in Washington. The Columbia the Ninth Circuit. On March 24, 2009, approximately river mile (rmi) 28 (river River plume exhibits highly variable we reopened a comment period on the kilometer (rkm) 45) where the upstream flow and location, depending on river proposed rule (74 FR 12297), soliciting extent of saltwater intrusion occurs. The flow, wind patterns, El Nixntilde;o information on the question of whether Columbia River estuary, from the mouth oscillations, and other oceanographic or the estuary and other marine areas to the extent of saltwater intrusion, climatic factors (Hickey et al. 2005, p. constitute a significant portion of the covers approximately 148 square miles 1632; Thomas and Weatherbee 2006, p. range of the Southwestern Washington/ (sq mi) (about 383 square kilometers (sq 169). The area described above is Columbia River DPS of the coastal km)). In Grays Harbor and Willapa Bay heavily influenced by plume conditions, cutthroat trout. The comment period estuaries, the extent of saltwater and thus might provide suitable habitat closed on April 23, 2009. intrusion is less distinguishable from for anadromous coastal cutthroat trout

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

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

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

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forms are generally more closely related produced, the anadromous portion of historical levels, there is little within a drainage than are populations the population remains consistently low information available to determine the from different drainages (Johnson et al. in many areas, which NMFS concluded actual size of runs or to indicate that 1999, p. 75). Ardren et al. (In Press) was cause for concern at that time. The populations, or even the anadromous examined coastal cutthroat trout to test fact that resident cutthroat isolated by portion alone, are at extremely low for genetic separation of sympatric (co- artificial barriers for over 40 years in the levels in most areas of the DPS.’’ occurring) life-history forms within and Cowlitz and over 65 years in Big Creek In assessing trends, we cited similar between two Columbia River tributaries, in Oregon continue to produce smolts problems with the reliability of the Abernathy Creek and the Chinook River. suggests that even if the anadromous information based on the short-term No distinct genetic separation was portion of the population continues to nature and gaps in many of the datasets, found between sympatric migratory and experience low numbers and possible and biases due to unknown trapping resident cutthroat forms within each declines, smolts will be produced that efficiencies and other confounding tributary, and genetic differences were can supplement the anadromous portion factors. In regard to trends in the an order of magnitude higher between of the population and take advantage of southwest Washington portion of the tributary samples than between life any improvement in anadromous DPS, we stated in our 2002 withdrawal forms within a tributary. These results habitat (e.g., ocean, estuary, mainstem ‘‘there was no reliable evidence that the are consistent with a population that rivers and tributaries). Further, the adult population in the Grays Harbor freely interbreeds within each tributary reported rates of smolt to adult returns tributaries is declining over the long producing progeny that have the genetic are consistent with literature reports of term and some indication that the adult capacity to express different life-history return ratios among healthy populations population may be stable or increasing forms. Based on the results from this of other Pacific salmon species in at least some areas’’ and concluded by study the authors suggest that sympatric (Bradford 1995, p. 1332; Beckman et al. stating ‘‘we no longer conclude that migrant and resident forms of coastal 1999, p. 1130), suggesting that return trends of the adult anadromous portion cutthroat trout in the lower Columbia rates of anadromous cutthroat are not of the population and outmigrating River may be best described as a unusually low. juveniles in the southwest Washington continuum of life-history forms In addition, there is no evidence at portion of the DPS are all declining expressed from a single population. this time that coastal cutthroat trout markedly as described in the proposed This life history variation likely affords pursuing the anadromous life-history rule (64 FR 16407) .’’ (67 FR 44934; July resilience to environmental fluctuation strategy are segregated from the 5, 2002). as has been demonstrated with bull remainder of the population. This We have little new data to assess trout where loss of life history forms further supports the conclusion that status and trend of anadromous results in higher extirpation anadromous and resident forms are not cutthroat trout in the Grays Harbor and probabilities (Dunham and Rieman substantially separate subpopulations. Willapa Bay portion of the DPS beyond 1999, pp. 650–651). Considering lower Therefore, based on the evidence that what we previously assessed. The only Columbia River cutthroat trout as a freshwater and isolated portions of the new information we have comes from single population is consistent with the population are capable of producing Anderson (2008, p. 16), who concluded views of McPhee et al. (2007, p. 7), who anadromous migrants and demonstrate the estimated anadromous smolt suggest that, due to lack of reproductive rates of return consistent with literature production in Bingham Creek between isolation, it may not be appropriate to reports of other Pacific salmon species, 2002 and 2004 indicated production of consider sympatric resident and we conclude that freshwater and coastal cutthroat trout was relatively anadromous rainbow trout isolated portions of the coastal cutthroat stable, though somewhat cyclical. This (Oncorhynchus mykiss) as separate trout population are mitigating risks to data was not analyzed using regression biological units, as they are currently anadromous forms to some degree. We analysis, and we are not able to managed. believe that the ability for non- determine the significance of this trend Anadromous cutthroat trout, anadromous cutthroat trout to produce or how well the data fit the trend line. particularly in the lower Columbia River anadromous progeny reduces the risk of In addition, the time series of the study estuary, are exposed to the full array of loss of the anadromous life-history is too short to detect a trend with any habitat loss or degradation reported for strategy. statistical confidence. However, this the estuary. However, there are few data study does show that smolts continue to Population Size and Trends describing how they respond to this be produced from the Bingham Creek exposure. The degree to which the In our 2002 withdrawal (67 FR 44934; system. We have no other information reduced numbers of the anadromous July 5, 2002), we acknowledged that since the withdrawal notice on adult or portion of the population of coastal little data existed to determine the juvenile coastal cutthroat trout in the cutthroat trout represent a risk to the actual population size of cutthroat trout Grays Harbor watershed, and have no DPS as a whole depends, in part, on the in the DPS due to the fact that most new information from the Willapa Bay importance of this life-history strategy information was collected incidental to watershed. Our evaluation of this and the extent to which the expression monitoring of salmon and steelhead, information does not alter our original of life history strategies are genetically counts were generally conducted only conclusions regarding the status and versus environmentally controlled. in areas monitored for salmon and trend of anadromous cutthroat in these NMFS (Johnson et al. 1999, p. 201) steelhead, and abundance information areas. acknowledged that, if freshwater coastal originated from trapping facilities not In our 2002 withdrawal notice, we cutthroat trout can produce smolts, this designed for capturing cutthroat trout, stated ‘‘[d]ata for the lower Columbia could mitigate the risks to the thereby limiting the value of the River are limited and there are anadromous portion of the population, datasets. Given the information significant concerns about the reliability though at the time they lacked available, and acknowledging the of the results. There are indications of information on the length of isolation of limitations of the datasets analyzed, we declines in the anadromous component populations above Mayfield Dam to concluded ‘‘... while the anadromous of the adult portion of the population in fully evaluate this phenomenon. They portion of the population of coastal the Columbia River, though the rate of did note that, even if smolts were being cutthroat trout is likely at lower-than- the decline is uncertain due to concerns

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over the reliability of the analyses and River tributaries in both Oregon and (4) The Secretary’s discretion in potential biases in the data sets. While Washington indicates tributaries that are defining ‘‘significant’’ is not unlimited; the number of anadromous coastal monitored for cutthroat trout are still he/she may not, for example, define cutthroat trout have likely declined in delivering anadromous smolts to the ‘‘significant’’ to require that a species is the Columbia River, we do not have estuary and that adults are returning at endangered only if the threats faced by sufficient data to determine a reliable rates that are similar to those of healthy a species in a portion of its range are so rate of recent decline and, therefore, no salmon and steelhead populations severe as to threaten the viability of the longer conclude that returns of (ODFW 2008, pp. 6–11; WDFW 2009, p. species as a whole. anadromous cutthroat trout in almost all 2; Johnson et al. 2008, pp. 16–20; The Service has defined an SPR as a lower Columbia River streams have Bradford 1995, p. 1332; Beckman et al. portion of the range of the listed entity declined markedly over the last 10 to 15 1999, p. 1130). Although we (whether a full species, subspecies, or years as described in the proposed rule acknowledge the anadromous life- DPS of a vertebrate) that contributes (64 FR 16407; April 5, 1999). Based on history form in the DPS is likely at meaningfully to the conservation of that these data, we do not find that the lower levels than it may have been in entity. We consider the significance of population trends indicate that coastal the past, our current assessment an SPR to be based on its contribution cutthroat trout are likely to be extirpated reaffirms the conclusions drawn in our to the conservation (resiliency, from any significant portion of their 2002 withdrawal notice (64 FR 16407; redundancy, and representation) of the range in the foreseeable future.’’ (67 FR April 5, 1999), regarding the listable entity being considered. 44934; July 5, 2002). Our evaluation of unreliability of much of the available Resiliency of a species allows for what new information there is does not data for assessing population status and recovery from periodic disturbance, alter our previous conclusion regarding trend. We do not have evidence that such as ensuring that large populations the status and trend of anadromous anadromous coastal cutthroat trout are persist in areas of high-quality habitat. cutthroat in this area, as described experiencing severe declines, or that the Redundancy of populations provides for above. life-history form is likely to be in danger the spread of risk among populations We have little new data to assess of extinction now or within the through distribution, such that the status and trend of anadromous foreseeable future. species is capable of withstanding cutthroat trout in the Columbia River catastrophic events. Representation portion of the DPS. The production of Significant Portion of the Range ensures that the species’ adaptive cutthroat trout smolts from Abernathy As defined under the Act, an capabilities are conserved, such as and Germany creeks shows a slightly endangered species is any species through genetic variability or the declining trend, with an increasing which is in danger of extinction conservation of unique morphological, trend in Mill Creek, for the years 2001– throughout all or a significant portion of physiological, or behavioral 2007 (WDFW 2009, p. 2). The number its range (hereafter SPR), and a characteristics. of returning natural-origin anadromous threatened species is any species likely Section 4 of the Act and its cutthroat trout to the Cowlitz River to become endangered within the implementing regulations (50 CFR part Hatchery has averaged 107 over the last foreseeable future throughout all or a 424) set forth the procedures for listing 7 years, and the trend is positive significant portion of its range. Due to species, reclassifying species, or (WDFW 2009, p. 2). Survival rates of a number of legal challenges removing species from listed status. hatchery-origin anadromous cutthroat surrounding the meaning of the SPR ‘‘Species’’ is defined by the Act as trout to the Cowlitz River Hatchery have phrase, on March 16, 2007, the Solicitor including any species or subspecies of been consistent in recent years, of the Department of the Interior issued fish or wildlife or plants, and any averaging 4.2 percent ± 1.6 percent for a formal opinion, ‘‘The Meaning of ‘In distinct population segment (DPS) of the years 1998–2003 and 2005–2006; Danger of Extinction Throughout All or vertebrate fish or wildlife that this range overlaps the hatchery’s goal a Significant Portion of Its Range’’’ (U.S. interbreeds when mature (16 U.S.C. of achieving an average 4.71 percent DOI 2007). In the opinion, the Solicitor 1532(16)). The first step in considering smolt-to-adult survival (WDFW 2005, as concluded: a listing action is to determine the cited in Anderson 2008, p. 13). No (1) The SPR phrase is a substantive listable entity, whether it is a species, information is available to assess standard for determining whether a subspecies, or DPS. It is important to population size of anadromous cutthroat species is an endangered species— note that a significant portion of the trout in the Columbia River, although whenever the Secretary concludes range is not a ‘‘species,’’ i.e., it is not a several new studies cited above in the because of the statutory five factor listable entity as defined in the Act; Background section document the analysis that a species is ‘‘in danger of rather it is the portion of a range of a continued expression of anadromy by extinction throughout ... a significant listable entity where we may determine cutthroat trout from tributaries of the portion of its range,’’ it is to be listed that species to be threatened or Columbia River. and the protections of the Act applied endangered. Upon a determination that Thus, while the best available to the species in that portion of its range a species is not endangered or scientific and commercial information where it is specified as an ‘‘endangered threatened throughout all its range, we do not allow us to determine overall species’’; then examine whether there are any status and trend for anadromous coastal (2) The word ‘‘range’’ in the SPR significant portions of the range where cutthroat trout in the DPS, the limited phrase refers to the range in which a the species is threatened or endangered. information above documents the species currently exists, not to the The range of a species can continued persistence of the historical range of the species where it theoretically be divided into portions in anadromous life-history form and once existed; an infinite number of ways. However, to suggests trends in streams that are (3) The Secretary has broad discretion meet the intended purpose of the Act, monitored for coastal cutthroat trout are in defining what portion of a range is there is no point in analyzing portions variable. Although not reflective of a ‘‘significant,’’ and may consider factors of a species’ range that are not trend in anadromous population size, other than simply the size of the range reasonably likely to be significant and new information on emigration of portion in defining what is ‘‘significant’’; threatened or endangered. To identify cutthroat juveniles from lower Columbia and only those portions that warrant further

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consideration under the Act, we must the species is not threatened or 1999) was due to the Ninth Circuit’s determine whether there is substantial endangered in that portion of its range, determination that we did not properly information indicating that (i) the we need not determine if that portion consider whether the estuaries and portions are significant and (ii) the makes a meaningful contribution to the other marine areas of the DPS constitute species is in danger of extinction there conservation of the species. If, however, a significant portion of the range of the or is likely to become so within the we determine that the portion of the DPS. The Court’s focus on marine and foreseeable future. To be considered a range under consideration does make a estuarine areas was due to statements in significant portion of the range that may meaningful contribution to the our record that included: first, warrant the protections of the Act, both conservation of the species and the acknowledgement of degradation of questions must be answered in the species is threatened or endangered in estuary and marine areas that are vital affirmative; the order in which they are that portion, we would then propose to to the anadromous life-form of the DPS; answered is not of consequence, and add that species to the appropriate list second, that the anadromous life-form is both are equally valid approaches to and specify that significant portion of important to the DPS’s long-term determining a significant portion of the the range as threatened or endangered, survival strategy; and, third, that though range that may warrant the protections as provided under section 4(c)(1) of the there is evidence that resident life-forms of the Act. Act. can spawn anadromous life-forms, this In practice, a key part of our analysis In this case, the Court, based on is only significant if estuary habitat is whether the threats are geographically information presented in the 2002 conditions and near-shore environments concentrated in some way. If the threats withdrawal of the proposed rule, has can support the persistence of this life- to the species are essentially uniform directed us to assess whether the marine history strategy. throughout its range, and are not and estuarine areas of the Southwestern To address the Court’s remand, the concentrated in some portion such that Washington/Columbia River DPS following analysis focuses on current the species may be in danger of represent a significant portion of the threats, and threats reasonably likely to extinction there or likely to become so coastal cutthroat’s range. The portion of occur in the foreseeable future, to within the foreseeable future, no portion the species’ range to be considered as a anadromous cutthroat trout in marine is likely to warrant further potential SPR has, therefore, already and estuarine areas of the DPS. As consideration. Alternatively, if any been defined for the Service. In order to described above, we define ‘‘estuary’’ to concentration of threats applies only to address the Court’s remand, we have mean a semi-enclosed coastal body of portions of the range that do not elected to conduct a five-factor threats water that has a free connection with contribute meaningfully to the assessment on the portion under the open sea and within which sea conservation of the species, such consideration, the marine and estuarine water is measurably diluted with portions will not warrant further areas of the DPS, to determine whether freshwater derived from land drainage consideration. In cases where we do not the coastal cutthroat trout is threatened (Lauff 1967, as cited in ISAB 2000, p. 2). identify any portions that warrant or endangered in this geographic area. In the Columbia River, salt water further consideration for either reason, According to the process described intrusion extends up to roughly rmi 28 we document that conclusion and no above, if we determine through our five- (rkm 45) depending on daily tide cycles further analysis is conducted beyond factor threats assessment that coastal and seasonal flow volume. For this our analysis of whether a species is cutthroat trout are not threatened or analysis, we define the Columbia River threatened or endangered throughout its endangered in the marine and estuarine estuary to rmi 28 (rkm 45). This is entire range. areas of the DPS, the question of distinguished from definitions created Depending on the biology of the whether that portion may make a for other management processes that are species, its range, and the threats it meaningful contribution to the tied to tidal influence rather than salt faces, it may be more efficient to address conservation of the species would not water intrusion. Because the primary the contribution to conservation warrant further consideration. If, on the issue for coastal cutthroat trout is based question first or the status question first. other hand, we determine that coastal on the expression of anadromy, defining The first alternative relies on an cutthroat trout are threatened or the estuary based on salt water intrusion assessment of significance based on a endangered in that portion, we would is more biologically relevant. portion’s contribution to the then proceed to consider the question of There are three estuaries in the DPS: conservation (resiliency, redundancy, whether those marine and estuarine the Columbia River, Willapa Bay, and representation) of the listable entity. If areas make a meaningful contribution to Grays Harbor. Although the Court did a portion of the range is identified that the conservation of the species in terms not ask us to revisit status, trends, and is considered as making a meaningful of resiliency, redundancy or threats to anadromous cutthroat trout or contribution to the conservation of the representation. If the importance of other life-history forms outside of species, a five-factor threats assessment those marine and estuarine areas to the marine and estuarine areas, we have is then conducted to determine if the conservation of coastal cutthroat trout in considered any new information species is threatened or endangered in the DPS were affirmed, we would then available for these areas that would that portion. If we determine that a propose to add the DPS to the suggest a significant change in status, portion of the range does not make a appropriate list and would specify trend, or threats. meaningful contribution to the coastal cutthroat trout in that significant Section 4 of the Act and its conservation of the species, we need not portion of the range as threatened or implementing regulations (50 CFR 424) continue with our analysis to determine endangered. set forth the procedures for adding whether the species is threatened or species to the Federal Lists of endangered there. Summary of Factors Affecting the Endangered and Threatened Wildlife The second alternative is to first Species and Plants. A species may be conduct a five-factor threats assessment As noted above in the Previous determined to be an endangered or on the portion under consideration to Federal Actions section, the District threatened species due to one or more determine whether the species is Court’s remand of our 2002 withdrawal of the five factors described in section threatened or endangered in this (67 FR 44934; July 5, 2002) of the 4(a)(1) of the Act: (A) The present or geographic area. If we determine that proposed rule (64 FR 16397; April 5, threatened destruction, modification, or

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curtailment of its habitat or range; (B) that while the anadromous portion of resources through ground disturbances overutilization for commercial, the DPS was likely at lower-than- that lead to increased sediment inputs recreational, scientific, or educational historical levels, there was little specific and turbidity in adjacent water bodies, purposes; (C) disease or predation; (D) information available to support the increased water temperature from the inadequacy of existing regulatory statement in the proposed rule that the vegetation removal, noise, and artificial mechanisms; or (E) other natural or abundance of the anadromous portion lighting that could alter species manmade factors affecting its continued was at extremely low levels. behavior (FERC 2008). existence. Listing actions may be Subsequently, we concluded in the Operation of the LNG terminals warranted based on any of the above withdrawal of the proposed rule that would entail maintenance dredging of threat factors, singly or in combination. none of the impacts assessed under the access channel, potential for Each of these factors relevant to coastal Factor A were likely to result in coastal accidental spills of hazardous materials, cutthroat trout in the marine and cutthroat trout becoming threatened or stormwater runoff from impervious estuarine portion of the Southwestern endangered in the foreseeable future. surfaces, lighting of ship berth and Washington/Columbia River DPS are We present some new information unloading facilities, operation of noise- discussed below. below regarding potential impacts to producing equipment, and routine discharge of water from the vaporization A. The Present or Threatened habitat utilized by cutthroat trout in marine and estuarine areas, such as the process and testing of fire suppression Destruction, Modification, or equipment. Impacts to aquatic resources Curtailment of Its Habitat or Range proposed development of liquefied natural gas terminals in the Columbia could include loss of habitat from In 1999, the proposed rule (64 FR River estuary and shellfish aquaculture increased water temperature, increased 16407; April 5, 1999) listed forest impacts in Willapa Bay and Grays turbidity and sedimentation, and management and estuary degradation as Harbor. In addition, there is also modification of animal behavior. principal factors in the decline of information newly available on the Potential impacts to cutthroat trout coastal cutthroat rangewide, and estuary significant actions that have occurred, would vary depending on location of degradation as the principal factor or are currently under way, to restore the facilities relative to cutthroat use affecting coastal cutthroat trout in the and protect estuary habitats in the DPS, areas in the estuary (FERC 2008), but is Southwestern Washington/Columbia particularly in the Columbia River. not expected to be a limiting factor. River DPS. Our 2002 withdrawal of the These restoration and conservation Although the construction and proposed rule (67 FR 44934; July 5, actions are summarized in this section operation of LNG terminals have the 2002) assessed effects to coastal following discussion of factors relevant potential to impact anadromous cutthroat trout from forest management to estuary degradation. cutthroat trout and associated habitat in and estuary degradation, as well as from the Columbia River, the area of impact agriculture and livestock management, Columbia River Estuary and Marine relative to the total area of available dams and barriers, urban and industrial Areas habitat in the Columbia River and development, and mining. Our analysis, Proposed Liquefied Natural Gas (LNG) estuary is small. In addition, regulatory combined with information presented in Development mechanisms required through the the proposed rule, confirmed that all of Federal Energy Regulatory Commission these land uses, to varying degrees, had Liquefied Natural Gas (LNG) projects (FERC) and through State land use previously impacted, and continue to include berths for unloading liquefied regulations are expected to provide impact, habitat utilized by all life- gas, storage tanks, facilities to vaporize protective mechanisms to minimize history forms of coastal cutthroat trout the liquid back to natural gas, and impacts of construction and operation of in the DPS. Despite these impacts, we pipelines from the projects to deliver LNG facilities. For these reasons we do determined that coastal cutthroat trout, the gas to its final destination. There are not believe potential impacts rise to a including anadromous forms, were not two LNG terminals approved or level that constitutes a significant threat threatened to the degree portrayed in proposed in the lower Columbia River: to anadromous cutthroat trout in the the proposed rule, and further, current Bradwood Landing (approved) and Columbia River portion of the DPS. regulatory mechanisms conferred a low Oregon LNG (proposed). In addition, Wave Energy risk of significant additional destruction another potential site at St. Helens, or modification of habitat in the Oregon, has been identified. Currently, there are five wave energy foreseeable future. Aspects of LNG development that projects being evaluated or proposed in In regard to curtailment of range, our could potentially affect aquatic Oregon: (1) Coos Bay Ocean Power analysis in the withdrawal notice resources include construction activities Technologies (OPT) Wave Park Project confirmed that coastal cutthroat trout, and associated habitat modification, located in the Pacific Ocean about 2.5 especially the freshwater forms, water appropriations, artificial lighting, mi (1.6 km) offshore in Coos County; (2) remained well distributed throughout accidental spills or leaks of hazardous Newport OPT Wave Park Project about the DPS, at densities comparable to materials, and operation of the LNG 3 to 6 mi (1.9 to 3.7 km) offshore in healthy-sized populations in large terminal. In-water construction Lincoln County; (3) Oregon Coastal portions of the subspecies’ range outside activities include dredging, Wave Energy Project in the Pacific the DPS. We acknowledged a change in development of the shoreline, and pile Ocean in Tillamook County; (4) accessibility of some areas to driving and could result in increased Reedsport OPT Wave Park Project anadromous cutthroat trout due to sedimentation and turbidity, increased (FERC license pending); and (5) Douglas barriers created by dams, diversions, noise, permanent habitat alteration, loss County Wave Energy Project off the culverts, dikes, and tidegates, and some of benthic organisms, re-suspension of Umpqua South jetty. In addition, streams that were lost to development, contaminants, entrainment through Oregon State University has an such as streams around Portland, water intake pipes, and alterations to experimental buoy offshore of Newport, Oregon. However, we determined these sediment transport and deposition. Oregon. Given that wave energy is an areas of inaccessibility to the Activities associated with construction emerging technology and new to anadromous life form comprised a of the terminal, access facilities, and Oregon, there is uncertainty as to its relatively small portion of the DPS, and pipelines could indirectly affect aquatic effects on the marine environment.

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These potential projects would not Columbia River Estuary Restoration Coastal cutthroat trout are occur within the Southwestern Actions opportunistic feeders that forage in Washington/Columbia River DPS, and eelgrass beds in estuary environments Habitat restoration activities that may thus we do not believe potential impacts (Trotter 1997, p. 10). In nearshore offset the threat of habitat destruction or constitute a threat to anadromous environments in Washington and modification in the lower Columbia cutthroat trout. Oregon, coastal cutthroat trout were River have been ongoing since 1999 found to prey on salmonids, herring, Channel Improvement Project Update through a variety of entities and are pacific sand lance, shiner perch, surf aimed at restoring habitat conditions to smelt, anchovy, and invertebrates The Columbia River Channel benefit primarily salmon and steelhead. including gammarid amphipods (family Improvement Project (CRCIP) is a However, they may well provide Crangonyctidae), shrimp, and isopods collaborative effort between the U.S. benefits for cutthroat trout and other (Jauquet 2008, p. 152; Jones et al. 2008, Army Corps of Engineers (USACE) and species as well by restoring estuary p. 146). Although we have no new six river ports in Oregon and rearing habitat. The database of the information on coastal cutthroat trout Washington to deepen the navigation Lower Columbia River Estuary migration in estuary or marine areas channel to accommodate the current Partnership (LCREP) identifies 44 offshore from Willapa Bay and Grays fleet of international bulk cargo and completed and/or ongoing projects in Harbor, it is likely that estuary habitat container ships. The USACE Record of the lower 25 rmi (47 rkm) of the within these areas is used extensively Decision, signed in January of 2004, was Columbia River and a total of 152 for the by anadromous coastal cutthroat trout. Columbia River from the mouth to (1) deepen the 40-ft (12.2 m) The proposed rule (64 FR 16402; upstream to Bonneville Dam (LCREP navigation channel by 3 ft (1 m) to April 5, 1999) described the potential 2009). The projects include a variety of facilitate navigation, and (2) improve loss of important estuary habitat conservation and restoration activities the natural environment through several through the ‘‘[d]redging, filling, and designed to benefit salmonids including ecosystem restoration projects designed diking of estuarine areas for agricultural, culvert removal, tidegate alteration or to enhance salmon habitat. The Service commercial, or municipal uses’’ and removal, large wood placement, tidal and NMFS issued a non-jeopardy stated ‘‘reductions in the quantity and reconnection, dike breaching, invasive opinion on the project in 2002. quality of estuarine ... habitat have species removal, revegetation, water Project construction has been largely probably contributed to declines, but control structures, conservation consistent with the decision criteria the relative importance of these risks is easements, channel modification, not well understood’’ (64 FR 16408; developed by the Adaptive velocity barrier removal, and land April 5, 1999). Environmental Management Team. acquisitions. Several short-term discrepancies The withdrawal notice (72 FR 44948; involving monitoring results for Grays Harbor and Willapa Bay Estuaries July 5, 2002) stated ‘‘30 percent of the temperature and salinity were explained and Marine Areas historical wetland habitat in Grays Harbor estuary has been lost, as well as by corresponding variations in river Loss of estuary habitat flows or storms. The monitoring of 31 percent of the historical Willapa Bay dredging and dredged material disposal Currently, coastal cutthroat trout use estuary wetlands.’’ During the public continues to show that actual of the various portions of Willapa Bay comment period we received additional construction volumes and their disposal and Grays Harbor estuaries and marine information on the historical loss of are within the specifications developed habitat is unknown. However, recent estuary habitats to Willapa Bay and for the project and that these studies have documented estuary use by Grays Harbor estuaries (WDFW 2009, specifications were considered in the coastal cutthroat trout within (Hudson pp. 2–3). WDFW reported estimates of a non-jeopardy biological opinion. et al. 2008, entire) and outside of the 19 percent loss of native tidal marsh Several monitored deviations of cross- DPS (Haque 2008, entire; Krentz et al. plant communities and extensive channel survey results from the decision 2007, entire). Krentz et al. (2007, p. 81) dendritic slough systems in the Willapa criteria were shown to have returned to examined migratory patterns of coastal River Basin and a 36 percent loss in the pre-project conditions in follow-up cutthroat trout in the Salmon River Bay Basin due to diking and filling monitoring. Estuary, Oregon. Two main life-history along the lower Willapa River. Diking of forms were identified: Ocean migrants the river’s upper intertidal wetlands, Reporting of extensive sediment that move quickly through the estuary to downstream of South Bend, is estimated identified only two locations, well marine environments, and estuarine at 89 percent. However, we have no outside the navigation channel, where residents that remain in the estuary information documenting any effects of sediment contaminants might be of throughout the spring and summer the historical loss of eelgrass and concern. Shallow water habitat surveys months. In addition, this study wetland habitat on coastal cutthroat and fish stranding monitoring are not documented trout residing in the trout populations in Willapa and Grays scheduled to be addressed in detail estuary but making brief forays into the Harbor estuary habitat. until project construction has been marine environment and individuals Ongoing and planned restoration completed. While completion and overwintering in the estuary. In South projects in the Columbia River and maintenance of the CRCIP may cause Puget Sound, Haque (2008, p. 26) southwest Washington estuary habitats short-term and low-level impacts now documented overwintering use of should benefit coastal cutthroat trout and in the foreseeable future to estuaries by coastal cutthroat trout. She and their prey species (WDFW 2009, p. anadromous cutthroat trout and their also concluded that observed movement 2). We have no specific information on habitat, we do not believe these patterns and travel distances may restoration projects occurring in Willapa potential impacts constitute a indicate different life-history strategies and Grays Harbor estuaries. In addition, significant threat because of the among anadromous coastal cutthroat we do not have information at this time adequacy of current regulatory trout. Both studies may support the regarding the responses of coastal mechanisms and limited project scope existence of opportunistic and adaptable cutthroat trout or their prey to estuary relative to available habitat. behavior of coastal cutthroat trout. enhancement and restoration.

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

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B. Overutilization for Commercial, Washington adopted a catch and release C. Disease or Predation. Recreational, Scientific, or Educational regulation for any coastal cutthroat trout Our 2002 withdrawal of the proposed Purposes. caught in marine waters. Washington’s rule provided information on several Our 2002 withdrawal of the proposed freshwater fishing regulations in the threats to anadromous coastal cutthroat rule identified only one potential threat, Willapa Bay and Washington zone of trout identified under Factor C, recreational angling, under Factor B. the Columbia River provide protection including the parasite Ceratomyxa Based on our analysis we determined to coastal cutthroat trout by requiring shasta in the Columbia and Willamette the potential threats from recreational catch and release of naturally produced rivers, gas bubble disease below large angling did not represent a significant cutthroat trout. Catch and release hydroelectric dams in the Columbia threat to the DPS as a whole. In our restrictions are generally required in the River, and predation by nonnative current review of available information mainstem Columbia River, except for fishes, pinnipeds, and fish-eating birds we did not identify any new threats, nor adipose-clipped (removal of fin behind such as Caspian terns (Hydroprogne dorsal fin) hatchery fish. Below the did we find evidence that any caspia) and double-crested cormorants Bonneville Dam, two hatchery trout can previously identified threats had (Phalacrocorax auritus) (67 FR 44934; be retained daily with a minimum size significantly changed. As noted in our July 5, 2002). We determined these of 12 inches (in) (30.5 centimeters (cm)). withdrawal of the proposed rule, coastal potential threats did not represent A bag limit of five hatchery trout over cutthroat trout are not harvested significant threats to the DPS as a 12-in (30.5 cm), including no more than commercially, and bycatch of cutthroat whole. In our current review of two over 20 in (50.8 cm) is allowed in trout in commercial gillnet fisheries is available information we did not the Cowlitz River. Harvest restrictions minimal due to the large mesh size of identify any new disease or predation are not as restrictive in the Grays Harbor the nets (NMFS 2003; pp. 3–73). threats, nor did we find evidence that watershed, where harvest of wild any previously identified threats had Scientific research and collection for coastal cutthroat is allowed in many of educational programs have probably its tributaries. Regulations require a 14- significantly changed. We did receive had no discernible negative impact on in (35.6-cm) minimum size and daily new information allowing us to quantify the anadromous life-history form or the bag limit of two wild cutthroat trout. the potential effect of avian predation in DPS as a whole. Current Oregon sport fishing the lower Columbia River, which we Anadromous cutthroat were a sought- regulations (ODFW 2009b) in the were forced to deal with qualitatively in after sportfish for many years, due in Columbia Zone, which includes most of the withdrawal notice (67 FR 44934; part to the multiple hatchery programs the Columbia River in Oregon within July 5, 2002). operated by the States of Oregon and the Southwestern Washington/Columbia Estuary predation of outmigrating Washington. While it is likely that sport River DPS, have required catch and salmon and steelhead juveniles by fish- angler harvest within the DPS release of wild unmarked coastal eating birds has been studied contributed to reductions in the cutthroat trout since 1997. extensively in the lower Columbia anadromous form over time, due in part River, focused on colonies of Caspian to liberal size and bag limits (Trotter Summary of Threat Factor B terns and double-crested cormorants, 2008, p. 95), the legacy of overharvest We have evaluated the best available which have grown in number in recent on today’s status of anadromous scientific and commercial information decades. The largest breeding colony of cutthroat is unknown. Current angling on the overutilization of anadromous Caspian terns in the world (10,700 effort for anadromous cutthroat trout cutthroat trout for commercial, breeding pairs in 2008), and the largest has significantly declined in the last two recreational, scientific, or educational breeding colony of double-crested decades (67 FR 44934, July 5, 2002; purposes. We identified no new or cormorants (13,700 breeding pairs) in Rawding 2001 as cited in Anderson significantly increased threats under western North America, now nest on 2005, p. 17), and in many areas coastal this threat factor beyond those analyzed East Sand Island. The reasons for these cutthroat trout harvest is primarily in the 2002 withdrawal notice (67 FR concentrations of fish-eating birds are: incidental to recreational fisheries for 44934; July 5, 2002). The most relevant (1) the creation of artificial nesting other species of salmonids. Because of information pertaining to this threat habitat; (2) reliable food supply harvest restrictions on naturally factor are the current angling regulations produced by salmon hatcheries; and, (3) produced coastal cutthroat trout in within the DPS in Oregon and loss of secure nesting sites and food many areas and the lack of targeted Washington, which with few exceptions resources elsewhere (BRNW 2009). fisheries, direct mortality due to fishing require the release of naturally From 1999 to 2001, about 4 percent of pressure is thought to be relatively low, produced cutthroat trout. Current the PIT tags that were placed on at least in recent years (Hooton 1997, p. fishing regulations within the DPS for juvenile salmon in the Columbia River 66; Gerstung 1997, pp. 53–54). Oregon and Washington are generally system were detected on these island Washington’s fishing regulations have protective of naturally produced coastal nesting habitats, suggesting a minimal been designed to increase the survival of cutthroat trout. Where regulations allow predation rate on salmon and steelhead, rearing and migrating cutthroat smolts the retention of wild cutthroat trout varying from 2.6 percent of yearling and to allow adult females to spawn at (some Grays Harbor tributaries), the chinook to 11.5 percent of the juvenile least once (Washington Department of regulation is designed to increase the steelhead (Ryan et al. 2001 as cited in Game 1984, as cited in Anderson 2008, likelihood that juveniles and migrating Quinn 2005, p. 238). The magnitude of p. 13). (Note: for additional information smolts are protected and the majority of predation on salmon and steelhead has on the changes in coastal cutthroat trout adult females are able to spawn at least more recently been estimated to be angling regulations over time, see the once (Anderson 2008, p. 13). Based on approximately 10 percent of salmon and withdrawal notice (67 FR 44934; July 5, the information above, we conclude that steelhead that survive to the estuary 2002)). In 2009, new anti-snagging anadromous cutthroat trout are not (BRNW 2009). Recent work by Hudson restrictions were implemented in threatened now or in the foreseeable et al. (2008, entire) examined estuary Washington State (WDFW 2009, p. 15), future by overutilization in marine and bird predation on anadromous coastal which may provide further protection of estuarine areas, or any of the remaining cutthroat trout based on PIT tagging of coastal cutthroat trout. In 1998, portions of the DPS. cutthroat trout in 11 tributaries of the

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

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current levels. Based on the information concluded from our analysis that none includes information regarding harmful above, we conclude that anadromous of these factors were anticipated to algal blooms, dead zones, prey cutthroat trout are not threatened by significantly threaten the Southwestern availability and quality, and the disease or predation in marine and Washington/Columbia River DPS of potential exacerbation of these estuarine areas, or any of the remaining coastal cutthroat trout in the foreseeable conditions from climate change. portions of the DPS. future. With the exception of climate California Current System change, we have no new significant D. The Inadequacy of Existing evidence to analyze that would The California Current System (CCS) Regulatory Mechanisms. potentially alter our previous extends about 190 mi (~300 km) In the 2002 withdrawal of the conclusion that these factors do not offshore from southern British proposed rule, we concluded that pose a significant threat to coastal Columbia, Canada, to Baja California, coastal cutthroat trout are not cutthroat trout in marine and estuarine Mexico, and is dominated by a threatened as a result of the inadequacy areas or the remaining portions of the southward surface current of colder of existing regulatory mechanisms, DPS. water from the north Pacific (Miller et including Federal land management al. 1999, p. 1; Dailey et al. 1993, as cited practices; Oregon and Washington land Climate Change in USFWS 2009b, p. 34). The system is use practices; dredge, fill, and in-water According to the Climate Impacts characterized by upwelling, particularly construction programs; water quality Group, an interdisciplinary research in spring-summer. This is an programs; and hatchery management (67 group studying the impacts of natural oceanographic phenomenon involving FR 44934; July 5, 2002). We further climate variability and global climate wind-driven movement of dense, cooler, noted that many of these regulatory change (‘‘global warming’’) on the U.S. and usually nutrient-rich water towards mechanisms were contributing to the Pacific Northwest, it is unclear how the ocean surface, which replaces recovery of aquatic habitats from coastal ocean conditions in the Pacific warmer and usually nutrient-depleted degradation that occurred prior to the Northwest will respond to climate surface water (Smith 1983, as cited in creation and implementation of many of change because of the complexity of USFWS 2009b, p. 34). Coastal upwelling these State and Federal regulatory these systems and the lack of long-term replenishes nutrients near the surface mechanisms. Our review of available studies (CIG 2009). Considerable where photosynthesis occurs, resulting information indicates that there has research has provided evidence for the in increased productivity (Batchelder et been no significant weakening of State likelihood and potential consequences al. 2002, as cited in USFWS 2009b, p. and Federal regulatory mechanisms of climate change associated with 35). since 2002. Hence, we again conclude greenhouse gas emissions. Climate The CCS is affected by El Nixntilde;o- that the species is not threatened as a change is anticipated to result in sea Southern Oscillation (ENSO) and Pacific result of inadequacy of regulatory level rise, ocean acidification, increased Decadal Oscillation climatic processes. mechanisms. winter precipitation and intensity of ENSO is used to describe periodic storm events, accelerated coastal changes, typically lasting 1 to 2 years, Summary of Threat Factor D erosion, and increased water in air-sea interaction in the equatorial Inadequacy of regulatory mechanisms temperatures (OPWG 2006, p. 23). The Pacific Ocean region. El Nixntilde;o was not identified as a threat in the rate of sea level rise in the Pacific events (warm-water events) result in proposed rule, nor was this considered Northwest is projected to be faster than increased sea-surface temperatures, a significant threat at the time of the the global average. Sea level rise could reduced flow of eastern boundary withdrawal (2002). Based on our current result in increased coastal erosion rates currents such as the CCS, and reduced analysis, we have no evidence that any and degraded nearshore habitat. coastal upwelling (Norton and McLain of the previously identified regulatory Bottom et al. (2005, pp. 80–88) 1994, pp. 16,019–16,030; Schwing et al. mechanisms have been significantly assessed impacts of climate change in 2006, as cited in USFWS 2009b, p. 35). weakened from 2002 to 2009, and the Columbia River Basin. They La Nixntilde;a events (cold-water several changes during this time have concluded that the near-term effects of events) produce effects in the northeast strengthened regulatory mechanisms. climate change are not large enough to Pacific Ocean that tend to be the reverse Although we believe that our 2002 rival the impacts of anthropogenic of those during El Nixntilde;o events, analysis adequately assessed the role of alterations to the hydrological cycle. resulting in colder, more-nutrient rich these existing regulatory mechanisms on Climate change may exacerbate current waters than usual, due to strong coastal cutthroat trout in marine and conditions and conflicts over water upwelling-favorable winds and cold estuarine environments, we have supply by increasing demand and waters near the surface due to a shallow reassessed their role in these geographic decreasing natural flows during the thermocline (zone of rapid temperature areas, considered any changes from critical spring-freshet period (Hamlet change in the water column that 2002 to 2009, and again conclude that and Lettenmaier 1999, as cited in typically separates warm water above anadromous coastal cutthroat trout are Bottom et al. 2005, p. 80). While from cold water below) (Murphree and not threatened in marine and estuarine physical changes to the near-shore Reynolds 1995, p. 52; Oedekoven et al. areas, or in any remaining portions of environment appear likely, much 2001, as cited in USFWS 2009b, p. 35). the DPS, by inadequacies in these remains to be learned about the In addition to climate events such as mechanisms. magnitude, geographic extent, and El Nixntilde;o and La Nixntilde;a, the temporal and spatial patterns of change, mid-latitude Pacific Ocean experiences E. Other Natural or Manmade Factors and their effects on coastal cutthroat warm and cool phases that occur on Affecting Its Continued Existence. trout. decadal time scales (Mantua 2000, as Under Factor E in the withdrawal of In this section we summarize new cited in USFWS 2009b, p. 35). The term the proposed rule, we assessed the information regarding potential impacts ‘‘Pacific Decadal Oscillation’’ was coined potential threats of climate change, to coastal cutthroat trout in marine to describe long-term climate variability catastrophic natural events, and environments. New information in the Pacific Ocean, in which there are hybridization to coastal cutthroat trout regarding the condition of the marine observed warm and cool phases, or (67 FR 44934: July 5, 2002). We environment in Washington and Oregon ‘‘regime shifts’’ (Mantua et al. 1997, pp.

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

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may contribute to low quality and threats now or how we projected those nesting habitat on East Sand Island, are quantity of prey for coastal cutthroat threats into the foreseeable future, and encouraging. trout. However, we have no information to consider whether any new threats Future climate change will at this time documenting the effects of have been identified since our last undoubtedly impact aquatic habitat and dead zones on coastal cutthroat trout status determination. In this analysis, aquatic species in the lower Columbia migration or prey availability. we have, therefore, considered all River, and few species will be unaffected. However, coastal cutthroat Summary of Threat Factor E information previously evaluated in the 2002 withdrawal notice (67 FR 44934; trout, because of their complex life- Although climate change will July 5, 2002), as well as any new history diversity, may be better undoubtedly impact ocean productivity information that has become available equipped than many salmonids to as well as estuary and freshwater since that time. handle the environmental stochasticity habitats, the likely effects to Although 7 years have passed since we may expect to see under future anadromous cutthroat trout and the DPS our withdrawal of the proposed rule, we climate change. This fact underscores as a whole are uncertain. At this point have little new information available to the importance of conserving and we have no information that allows us further assess current status and trend of restoring the life-history diversity to make a reliable projection of climate anadromous cutthroat trout in the present in this complex subspecies. change effects on coastal cutthroat trout Columbia River, Grays Harbor or The Columbia River estuary and within the foreseeable future. We note Willapa Bay watersheds, and marine plume, as well as Willapa Bay and that coastal cutthroat trout are habitat areas. Although not reflective of a trend, Grays Harbor estuaries, have undergone generalists and, like other generalist new information on emigration of significant alteration from historical species, may be less vulnerable to cutthroat juveniles from lower Columbia conditions, which has likely reduced changing environmental conditions the amount and quality of habitat for River tributaries in both Oregon and brought on by climate change compared anadromous coastal cutthroat trout. Washington indicates tributaries that are to other species that have a narrower Despite these altered conditions, monitored for cutthroat trout are still range of habitat requirements (Foden et anadromous cutthroat continue to delivering anadromous smolts to the al. 2008, p. 3). As discussed above, we persist in the DPS. New information estuary and that adults are returning at also assessed the potential threats of documents the prevalence of rates that are similar to healthy salmon catastrophic natural events and outmigrating coastal cutthroat smolts, and steelhead populations (ODFW 2008, hybridization under Factor E in the even above long-standing artificial entire; Johnson et al. 2008, entire; 2002 withdrawal of the proposed rule barriers, from many tributaries of the Zydlewski et al. 2008, entire; Hudson et (67 FR 44934: July 5, 2002). However, as lower Columbia River, which supports we have no new information to analyze al. 2008, entire; Bradford 1995, p. 1332; the continued existence of the regarding these threats, we consider our Beckman et al. 1999 p. 1130). New anadromous life-history form. Although previous assessment as still representing information from ODFW (2008, entire) numbers of anadromous coastal the best available information on these provides additional evidence that cutthroat trout may be lower than they subjects. Therefore, we reaffirm our resident cutthroat trout isolated above have been historically, the limited original conclusion that catastrophic long-standing anthropogenic barriers information available on trends in natural events and hybridization do not still produce anadromous smolts. This anadromous coastal cutthroat trout does pose a significant threat to coastal suggests that, to the extent that there is not suggest an ongoing decline, or the cutthroat trout. a hereditary basis for life history, it is existence of significant limiting factors We have evaluated the best available not lost rapidly even under strong to anadromous coastal cutthroat trout. scientific and commercial information selection against the anadromous form. Projects such as proposed LNG on natural or manmade factors affecting We have no evidence of any new terminals and completion and its continued existence, and we significant threats or significant changes maintenance of the Columbia River conclude that anadromous cutthroat in previously identified threats to Channel Improvement Project may trout are not threatened in marine and anadromous cutthroat trout, though we cause short-term and low-level impacts estuarine areas, or any of the remaining now have additional quantitative now and in the foreseeable future to portions of the DPS, by climate change, information on predation by Caspian anadromous cutthroat trout and their potential catastrophic natural events, or terns and cormorants in the lower habitat. However, we do not believe hybridization. estuary at East Sand Island. While we these potential impacts constitute a acknowledge that avian predation is a significant threat because of the Finding source of mortality for anadromous adequacy of current regulatory Based on the remand of the cutthroat trout, its overall impact to mechanisms and limited project scope withdrawal of the proposed rule and the anadromous cutthroat trout is unknown. relative to available habitat. In Willapa direction provided by the Court, we However, we have no evidence to Bay, shellfish aquaculture and the use of have reassessed our previous analysis to suggest it is a limiting factor. Trends of carbaryl to control burrowing shrimp in focus on anadromous cutthroat trout in returning hatchery and naturally shellfish aquaculture has been shown the marine and estuarine portion of the produced cutthroat trout at Cowlitz through lab studies to potentially DPS. We relied heavily on our past Hatchery have been relatively stable in impact coastal cutthroat trout, but we analysis in order to make a new finding recent years, suggesting that the large lack information to suggest these have for several reasons. Our previous releases of anadromous cutthroat smolts caused declines in anadromous analysis was comprehensive and are not being significantly impacted by cutthroat trout; in addition, the areas included an assessment of threats to avian predation. Furthermore, USACE is affected are small compared to available anadromous cutthroat upon which we seeking to reduce this impact. The goal habitat. Given the adequacy of current could build. Also, we found that threats of the program is to reduce the size of regulatory mechanisms and the have not significantly changed between the Caspian tern colony by half by 2015. restoration actions that have occurred, the date of the withdrawal and now. It Early results of the USACE’s relocation as well as those under way, we was logical to compare the threats we program for Caspian terns, as well as the conclude the overall baseline habitat previously identified to any change in concurrent program to reduce suitable condition of the Columbia River estuary

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

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warrant the protections of the Act. identify the RM&E and conservation sponsored by the PSMFC (K. Griswold, Furthermore, we have reviewed the actions and responsibilities necessary to pers. comm. 2009). The Committee was comments received for indications of conserve coastal cutthroat trout in formalized in 2006, and identified the significant changes in threats to coastal Oregon. The risk assessments identified goal of ‘‘developing a consistent cutthroat trout throughout the in the 2005 Native Fish Status Report framework to help guide and prioritize Southwestern Washington/Columbia (ODFW 2005) were used to set conservation, management, research, River DPS, and concluded there is no conservation plan priorities under the and restoration of coastal cutthroat trout new indication that coastal cutthroat Native Fish Conservation Policy (OAR throughout their native range’’ (Griswold trout are threatened or endangered in 635-007-0505(3)). Monitoring of coastal 2008, p. 169). any other portions of the DPS or the cutthroat trout has been incorporated In pursuit of their goal, the Committee DPS as a whole. into existing ODFW programs, although has sponsored two workshops; the latest Therefore, based on the lack of it does not encompass all coastal focusing on monitoring needs was held significant present or foreseeable cutthroat trout habitat (K. Goodson, in 2007. As a result of that workshop, threats, we have determined that the pers. comm. 2009). the Committee initiated a database Southwestern Washington/Columbia The 2005 Coastal Cutthroat Trout project whereby information about the River DPS of coastal cutthroat trout is Symposium was held in Port Townsend, distribution, abundance, and diversity not likely to become in danger of Washington, with major support of coastal cutthroat trout could be extinction in the foreseeable future provided by the Service, Oregon housed and shared. The project has throughout all or a significant portion of Chapter of the American Fisheries three current products: (1) a searchable its range, including the marine and Society, and the Pacific States Marine library housed within PSMFC’s estuarine areas of the DPS, and, Fisheries Commission (PSMFC). The StreamNet Library; (2) a database with therefore, does not meet the Act’s objectives of the symposium were to: (1) an initial focus on documented definition of a threatened or endangered update coastal cutthroat trout occurrence; and, (3) an interactive web- species. Consequently, we withdraw our information presented during the 1995 based map to display documented April 5, 1999, proposed rule to list the symposium in Reedsport, Oregon; (2) occurrence (K. Griswold, pers. comm. Southwestern Washington/Columbia enhance knowledge on all facets of 2009). Work has also started on a draft River DPS as threatened (64 FR 16397; coastal cutthroat trout life history and outline of a coastal cutthroat trout April 5, 1999). ecology; (3) provide a current conservation plan, which includes a assessment of the range-wide status of Current and Future Conservation section addressing research, monitoring, coastal cutthroat trout populations; and, Actions and evaluation. (4) encourage development of a While the following information did coordinated range-wide coastal Summary of Comments and not contribute to our determination, we cutthroat trout conservation and Recommendations believe it is worthwhile to highlight monitoring plan (Young et al. 2008, p. To ensure that any action resulting current and planned conservation xi). The Service’s presentation from the request for information is efforts for coastal cutthroat trout. encouraged the exploration of based on the best scientific and In the 2002 withdrawal of the opportunities to speed implementation commercial data available, we solicited proposed rule, we committed to of conservation strategies through the comments or suggestions from the providing technical assistance to newly formed Western Native Trout public, other concerned governmental Federal, State, and other entities to Initiative (WNTI) partnership (Finn et agencies, the scientific community, encourage them to address the al. 2008, p. 134). The partnership is industry, or any other interested parties. conservation needs of coastal cutthroat funded by a multi-state grant issued We particularly sought comments trout. We committed to work with these through the Association of Fish and concerning: agencies and entities to collect Wildlife Agencies. The 17 species and (1) Information on those marine and additional biological information, subspecies covered by WNTI are estuarine areas that could potentially monitor the status of coastal cutthroat divided into 5 geographically based constitute a significant portion of the trout, and monitor the progress of groups. The Northwest Group focuses range of the Southwestern Washington/ conservation efforts for the DPS (67 FR on bull trout and coastal cutthroat trout. Columbia River DPS of the coastal 44934; July 5, 2002). WNTI is seen as a way not only to cutthroat trout, and the suggested The Service initiated efforts in 2003 to address funding the development of boundaries of those areas; involve the States in development and conservation plans and actions, but also (2) Information on whether and why implementation of a multi-state coastal an opportunity to raise the visibility of those marine and estuarine areas cutthroat trout conservation strategy. coastal cutthroat trout (K. Griswold, constitute a significant portion of the Meetings with ODFW resulted in a pers. comm. 2009). range of the Southwestern Washington/ Memorandum of Understanding (MOU) Following the 2005 symposium and Columbia River DPS of coastal cutthroat signed in January 2005 (Goodson 2008, inclusion of coastal cutthroat trout in trout as defined by sections 3(6) or 3(20) pp. 9–10). Three products to be WNTI, a working group composed of of the Act; accomplished under the MOU included: experts throughout the range of coastal (3) Other information on the status, (1) a cooperative coastal cutthroat trout cutthroat trout was formed, known as distribution, population trends, research, monitoring, and evaluation the Coastal Cutthroat Trout Interagency abundance, habitat conditions, or (RM&E) plan, to be implemented under Committee (Committee). The Committee threats specific to those marine and the Oregon Plan for Salmon and is composed of State wildlife agency estuarine areas that could constitute a Watersheds and ODFW’s Native Fish representatives from the western States significant portion of the range of the Conservation Policy; (2) a coastal and British Columbia, Federal agencies Southwestern Washington/Columbia cutthroat trout conservation plan, (Service, U.S. Bureau of Land River DPS of coastal cutthroat trout; and developed via ODFW’s Native Fish Management, U.S. Forest Service, and (4) Information on the effects of Conservation Policy; and, (3) a U.S. Geologic Survey), and the potential threat factors that are the basis Conservation Agreement between the Northwest Indian Fisheries for a species’ listing determination Service and ODFW to specifically Commission; the Committee is under section 4(a)(1) of the Act (16

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U.S.C. 1531 et seq.; the ‘‘five listing the lower Columbia River estuary ‘‘may potential to move through and utilize factors’’) specifically with respect to be considered a significant portion of estuaries multiple times during their those marine and estuarine areas of the the range’’ of the DPS, although no lifetimes, and recent information from Southwestern Washington/Columbia statement was made about the rest of the studies of cutthroat trout movement in River DPS of coastal cutthroat trout. The estuarine and marine areas of the DPS. the lower Columbia River document this five listing factors considered under the The ODFW comments also stated that (Hudson et al. 2008, entire; Johnson et Act are: ‘‘[w]e do not feel the coastal cutthroat al. 2008, entire). However, although (a) The present or threatened trout in the lower Columbia River anadromous cutthroat have the destruction, modification, or estuary are threatened at this time due capability of spawning multiple times, curtailment of the species’ habitat or to their fairly wide distribution in the studies suggest a relatively low range; tributaries of the Columbia River and percentage of individuals return to (b) Overutilization for commercial, the fact that many of the threats facing spawn a second or third time (Hudson recreational, scientific, or educational them are being addressed in salmon et al. 2008, pp. 54–55; Johnson et al. purposes; recovery efforts’’ (ODFW 2009a, p. 7). 2008, pp. 16–18). Consequently, (c) Disease or predation; The WDFW provided summarized estuaries may be of greater relative (d) The inadequacy of existing data and a number of citations for recent importance only to those individuals regulatory mechanisms; and, coastal cutthroat trout studies, and that return to spawn multiple times, (e) Other natural or manmade factors stated that ‘‘marine and estuarine habitat which represent a small fraction of this affecting its continued existence. is vital for the individual cutthroat trout life history form. In the reopening of public comment that utilize this habitat for foraging’’ but Comment 3: One commenter stated (74 FR 12297; March 24, 2009), we that ‘‘[e]xisting information on the importance of the Columbia River defined ‘‘estuary’’ to mean a semi- abundance and size at return of the sea- plume (i.e., the mix of salt and enclosed coastal body of water that has going cutthroat trout of the [DPS] does freshwater that extends into the marine a free connection with the open sea and not indicate that these fish are at risk of environment) to anadromous cutthroat within which sea water is measurably becoming endangered (WDFW 2009, p. and suggested that the Service consider diluted with fresh water derived from 1).’’ We have considered all data the plume, as well as the estuary and land drainage (Lauff 1967, as cited in submitted by ODFW and WDFW in our near-shore travel zones along the ISAB 2000, p. 2). All interested parties analysis. In one instance, a comment mainstem Columbia River, in any future were requested to submit factual reports raised made by the ODFW was similar considerations regarding critical habitat or information on the marine and to those of others who commented; we designation for coastal cutthroat trout. estuarine areas of the Southwestern responded to this comment in the Our Response: Since our finding is Washington/Columbia River DPS of Public Comments section below with that listing is not warranted, we are not coastal cutthroat trout with particular attribution. considering developing a proposed regard to whether these areas constitute critical habitat rule for the Southwestern a significant portion of the range of the Public Comments Washington/Columbia River DPS of DPS under the Act, and if so, whether Comment 1: Several commenters, coastal cutthroat trout. the subspecies is threatened or including the State of Oregon, suggested Comment 4: Several commenters endangered in those areas. our definition of estuary is too limited suggested that headwater resident Additionally, we contacted and that we should consider the estuary cutthroat above barriers do not appropriate Federal and State agencies, as areas under tidal influence, not just commonly migrate below these barriers county governments, scientific areas of saltwater intrusion. and should not be relied upon to organizations, and other interested Our Response: Although there are contribute to anadromous populations parties and requested comment, many accepted definitions of the term below the barriers. pursuant to section 4(b)(5)(A) of the Act. estuary, we chose to use the definition Our Response: New information During the comment period, a total of by Lauff (1967, as cited in ISAB 2000, supports the fact that headwater four comment letters were submitted p. 2) that describes an estuary as a semi- resident cutthroat migrate below natural from government agencies, enclosed coastal body of water that has barriers at low rates (Bateman et al. organizations, or individuals. a free connection with the open sea and 2008, pp. 62–64). Given this low rate of Specifically, comment letters were within which sea water is measurably emigration, it is unlikely that they submitted by the States of Oregon and diluted with fresh water derived from contribute significantly to anadromous Washington, from one individual, and land drainage. This definition is populations downstream. However, from the Center for Biological Diversity. consistent with how we have used this there is evidence within the DPS that The following is a summary of term since publication of the proposed resident freshwater forms within the substantive issues that were identified rule in 1999 (64 FR 16397; April 5, zone of anadromy (i.e., not isolated within the comments received and our 1999), and parallels the life-history above natural barriers impassable to response to each issue. terminology that coastal cutthroat trout anadromous fish), even those that have are not anadromous until they been isolated for long periods of time Comments from the States of Oregon experience salt water. above man-made barriers, are and Washington Comment 2: One commenter contributing substantial numbers of Representatives of both the Oregon suggested estuaries may be of greater emigrating smolts to the Columbia River Department of Fish and Wildlife relative importance to anadromous estuary (ODFW 2008, pp. 9–11, Johnson (ODFW) and the Washington cutthroat than to Pacific salmon based et al. 2008, pp. 19–20). For this reason Department of Fish and Wildlife on the number of times they visit or we expect resident freshwater forms (WDFW) submitted comment letters in pass through this habitat during their within the zone of current or historical response to the request for comments. lifetimes, since anadromous coastal anadromy to continue to contribute to The ODFW comments provided updated cutthroat trout can spawn up to four the maintenance of the anadromous life- biological information on studies times during their lifetime. history strategy conducted by, or in conjunction with, Our Response: We acknowledge that Comment 5: Several commenters ODFW, as well as ODFW’s opinion that anadromous cutthroat trout have the suggested there is evidence of genetic

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

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

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

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Comment 22: One commenter stated anadromous cutthroat trout, we agree that this is occurring in the DPS. As that there are many projects planned for that adverse effects to individual fish noted in the withdrawal of the proposed the lower Columbia River that will are possible but there are no data to action, coastal cutthroat trout impact coastal cutthroat trout, including support a conclusion that such impacts production has been reduced to a single the planned Bradwood Landing would increase a population-level hatchery (Cowlitz River Hatchery), and Liquified Natural Gas Project. In regards extinction risk. The commenter’s there is no information at this time to to the Bradwood Landing Project, the statement regarding NMFS’s assertion indicate the limited ongoing coastal commenter noted that a biological that ‘‘massive numbers of fish’’ will be cutthroat trout hatchery releases are assessment developed by NorthernStar entrained in both process water and having a negative impact on wild Energy, the entity proposing the project, ballast water withdrawals from the cutthroat trout in the DPS. concluded the proposed action ‘‘may Bradwood Landing LNG Project is Hatchery programs for salmon and affect, and is likely to adversely affect’’ unsupported. steelhead, particularly coho and a number of stocks of federally listed Comment 23: One commenter noted steelhead, have the potential to impact salmon and steelhead. The commenter that hybridization between cutthroat coastal cutthroat trout through stated that coastal cutthroat trout are trout and rainbow trout is widespread competition. However, information associated with and have a similar life and that hybridization may reduce demonstrating effects from releases of history to salmon and steelhead, and productivity of coastal cutthroat coho and steelhead in the DPS is limited thus it can be inferred that they too will populations. The commenter also noted and the extent to which hatchery be adversely affected by the project. that cutthroat trout hatchery programs management affects the DPS of coastal Our Response: In our five-factor and hatchery programs for salmon and cutthroat as a whole is unknown. We analysis we considered the effects of steelhead also have the potential to have no new evidence beyond that this and other potential liquefied negatively impact coastal cutthroat previously considered in our 2002 natural gas (LNG) projects in the trout. withdrawal of the proposed rule that Columbia River. While we acknowledge Our Response: We agree that hatchery releases of salmon and that individual cutthroat trout might be hybridization with native rainbow trout steelhead in the DPS are producing impacted from these types of and hatchery rainbow trout is known to competition above natural levels or developments, we note that the scope of occur, but there is no evidence that represent a significant risk to the DPS. potential impacts is small relative to the hybridization has contributed to a Thus, our conclusion that competition total area of available habitat in the decline of anadromous coastal cutthroat with hatchery fish does not pose a Columbia River and estuary. In trout in the DPS. As we noted in our significant threat to coastal cutthroat addition, regulatory mechanisms withdrawal of the proposed rule (67 FR trout remains the same (67 FR 44934; required through the Federal Energy 44934; July 5, 2002), although the data July 5, 2002). Regulatory Commission (FERC), and on hybridization between coastal through State land uses regulations, are cutthroat trout and rainbow trout/ References Cited expected to provide protective steelhead trout are limited, indications A complete list of all references we mechanisms to minimize impacts of are that hybridization does occur at low cited in this document is available on construction and operation of LNG levels where these two species coexist. the Internet at http:// facilities. Although a final consultation Much scientific uncertainty currently www.regulations.gov or by contacting has not been completed by NMFS and surrounds the causes of hybridization the Oregon Fish and Wildlife Office (see FERC on the Bradwood Landing LNG and its evolutionary consequences. In FOR FURTHER INFORMATION CONTACT). Project, NMFS has the authority under view of the limited nature of section 7(a)(2) of the Act to require non- hybridization in the DPS and the natural Author discretionary actions on behalf of the co-occurrence of these species, The primary authors of this notice are project proponent that may serve to hybridization between cutthroat trout the staff members of the Oregon Fish modify how the project is constructed and rainbow/steelhead trout is not and Wildlife Office, U.S. Fish and and operated to minimize impacts to currently considered a significant threat Wildlife Service, 2600 SE 98th Avenue, salmon and steelhead listed under the to anadromous cutthroat trout in the Suite 100, Portland, OR 97266. Act. DPS. Low levels of hybridization may Although the biological assessment represent natural interactions between Authority developed by NorthernStar Energy rainbow/steelhead trout and coastal The authority for this action is the determined the project ‘‘may affect, and cutthroat trout. Populations with high Endangered Species Act of 1973, as is likely to adversely affect’’ a number of levels of hybridization are few and amended (16 U.S.C. 1531 et seq.). stocks of listed salmon and steelhead, isolated. this determination is not a population- Likewise, we acknowledge the Dated: February 5, 2010. level finding. Rather, it is an potential impacts of reduced fitness that Sam D. Hamilton, acknowledgment that individual fish could result from wild cutthroat Director, Fish and Wildlife Service. may be adversely impacted from the reproducing with hatchery coastal [FR Doc. 2010–3803 Filed 2–24–10; 8:45 am] action. In regards to potential impacts to cutthroat trout, but have no evidence BILLING CODE 4310–55–S

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