22870 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

on a substantial number of small 

entities, which include small 

businesses, organizations, or 

governmental jurisdictions. In general, 

the resources to be harvested under this 

rule are already being harvested and 

consumed by the local harvester and do 

not result in an additional dollar benefit 

to the economy. However, we estimate 

that 2 million pounds of meat are 

harvested by subsistence users annually 

and, if given an estimated dollar value 

of $3.00 per pound, this amount would 

equate to about $6 million in food value 

statewide. Based upon the amounts and 

values cited above, the Departments 

certify that this rulemaking will not 

have a significant economic effect on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. 

Small Business Regulatory Enforcement 

Fairness Act 

Under the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.), this rule is not a major rule. It 

does not have an effect on the economy 

of $100 million or more, will not cause 

a major increase in costs or prices for 

consumers, and does not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Executive Order 12630 

Title VIII of ANILCA requires the 

Secretaries to administer a subsistence 

priority on public lands. The scope of 

this program is limited by definition to 

certain public lands. Likewise, these 

regulations have no potential takings of 

private property implications as defined 

by Executive Order 12630. 

Unfunded Mandates Reform Act 

The Secretaries have determined and 

certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502 et 

seq., that this rulemaking will not 

impose a cost of $100 million or more 

in any given year on local or State 

governments or private entities. The 

implementation of this rule is by 

Federal agencies and there is no cost 

imposed on any State or local entities or 

tribal governments. 

Executive Order 12988 

The Secretaries have determined that 

these regulations meet the applicable 

standards provided in Sections 3(a) and 

3(b)(2) of Executive Order 12988, 

regarding civil justice reform. 

Executive Order 13132 

In accordance with Executive Order 

13132, the rule does not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

Title VIII of ANILCA precludes the State 

from exercising subsistence 

management authority over fish and 

wildlife resources on Federal lands 

unless it meets certain requirements. 

Executive Order 13175 

The Alaska National Interest Lands 

Conservation Act does not specifically 

provide rights to tribes for the 

subsistence taking of wildlife, fish, and 

shellfish. And while, for this rule, EO 

13175 does not require the agencies to 

consult with tribes, the Secretaries have 

elected to provide tribes an opportunity 

to consult on this rule. The Board will 

provide a variety of opportunities for 

consultation through: Proposing 

changes to the existing rule; 

commenting on proposed changes to the 

existing rule; engaging in dialogue at the 

Regional Advisory Council meetings; 

engaging in dialogue at the Board’s 

meetings; and providing input in 

person, by mail, e-mail, or phone at any 

time during the rulemaking process. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, or use. This Executive 

Order requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not a significant regulatory action under 

Executive Order 13211, affecting energy 

supply, distribution, or use, and no 

Statement of Energy Effects is required. 

Drafting Information 

Theo Matuskowitz drafted these 

regulations under the guidance of Peter 

J. Probasco of the Office of Subsistence 

Management, Alaska Regional Office, 

U.S. Fish and Wildlife Service, 

Anchorage, Alaska. Additional 

assistance was provided by: 

• Daniel Sharp, Alaska State Office, 

Bureau of Land Management; 

• Sandy Rabinowitch and Nancy 

Swanton, Alaska Regional Office, 

National Park Service; 

• Drs. Warren Eastland and Glenn 

Chen, Alaska Regional Office, Bureau of 

Indian Affairs; 

• Jerry Berg and Carl Jack, Alaska 

Regional Office, U.S. Fish and Wildlife 

Service; and 

• Calvin Casipit, Alaska Regional 

Office, U.S. Forest Service. 

List of Subjects 

36 CFR Part 242 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

50 CFR Part 100 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

For the reasons set out in the 

preamble, the Federal Subsistence 

Board proposes to amend 36 CFR 242 

and 50 CFR 100 for the 2010–11 and 

2011–12 regulatory years. 

Dated: May 4, 2009. 

Peter J. Probasco, 

Acting Chair, Federal Subsistence Board. 

Dated: May 1, 2009. 

Calvin Casipit, 

Acting Subsistence Program Leader, USDAForest Service. 

[FR Doc. E9–11130 Filed 5–14–09; 8:45 am] 

BILLING CODE 3410–11–P, 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2009–0005; 92220–1113– 

0000–C6] 

RIN 1018–AW42 

Endangered and Threatened Wildlife 

and Plants; Proposed Rule To 

Reclassify the Oregon Chub 

(Oregonichthys crameri) From 

Endangered to Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: Under the authority of the 

Endangered Species Act of 1973, as 

amended (Act), we, the U.S. Fish and 

Wildlife Service (Service), propose to 

reclassify the Oregon chub 

(Oregonichthys crameri) from 

endangered to threatened. This proposal 

is based on a thorough review of the 

best available scientific data, which 

indicate that the species’ status has 

improved such that it is not currently in 

danger of extinction throughout all or a 

significant portion of its range. We seek 

information, data, and comments from 

the public regarding the Oregon chub 

and this proposal. 

DATES: We will accept comments 

received on or before July 14, 2009. 

Public hearing requests must be 

received by June 29, 2009. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 22871 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: RIN 1018– 

AW42; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, Suite 

222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

Public Hearing Requests: To request a 

public hearing, contact the person listed 

under FOR FURTHER INFORMATION

CONTACT. 

FOR FURTHER INFORMATION CONTACT: Paul 

Henson, State Supervisor, U.S. Fish and 

Wildlife Service, Oregon Fish and 

Wildlife Office, 2600 SE. 98th Avenue, 

Suite 100, Portland, Oregon 97266; 

(telephone 503/231–6179). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800/ 

877–8339, 24 hours a day, 7 days a 

week. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

Our intent is to use the best available 

commercial and scientific data as the 

foundation for all endangered and 

threatened species classification 

decisions. Comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule to downlist the Oregon 

chub are hereby solicited. Comments 

particularly are sought concerning: 

(1) Biological information concerning 

the Oregon chub, including competition 

from non-native species and the risks 

associated with loss of genetic diversity 

in isolated populations; 

(2) Relevant data concerning any 

current or likely future threats (or lack 

thereof) to the Oregon chub; 

(3) Additional information concerning 

the range, distribution, population size 

and population trends of the Oregon 

chub, including the locations of any 

additional populations; and 

(4) Information regarding management 

plans or other mechanisms that provide 

protection to Oregon chub or their 

habitats. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not accept 

comments sent by e-mail or fax or to an 

address not listed in the ADDRESSES

section. 

We will post your entire comment on 

http://www.regulations.gov. Before 

including your address, phone number, 

or e-mail address, or other personal 

identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment during normal business 

hours at the Oregon Fish and Wildlife 

Office, 2600 SE. 98th Avenue, Suite 100, 

Portland, Oregon 97266, (503/231– 

6179). 

Public Hearing 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be made in writing and 

addressed to the Field Supervisor (see 

FOR FURTHER INFORMATION CONTACT

section above). 

Previous Federal Action 

In our December 30, 1982, Review of 

Vertebrate Wildlife for Listing as 

Endangered or Threatened Species 

Under the Act, we listed the Oregon 

chub as a Category 2 candidate species 

(47 FR 58454). Category 2 candidates, a 

designation no longer used by the 

Service, were species for which 

information contained in Service files 

indicated that proposing to list was 

possibly appropriate but additional data 

were needed to support a listing 

proposal. The Oregon chub maintained 

its Category 2 status in both the 

September 18, 1985 (50 FR 37958) and 

January 6, 1989 (54 FR 554) Notices of 

Review. 

On April 10, 1990, the Service 

received a petition to list the Oregon 

chub as an endangered species and to 

designate critical habitat. The petition 

and supporting documentation were 

submitted by Dr. Douglas F. Markle and 

Mr. Todd N. Pearsons, both affiliated 

with Oregon State University. The 

petitioners submitted taxonomic, 

biological, distributional, and historical 

information and cited numerous 

scientific articles in support of the 

petition. The petition and 

accompanying data described the 

Oregon chub as endangered because it 

had experienced a 98 percent range 

reduction and remaining populations 

faced significant threats. On November 

1, 1990, the Service published a 90-day 

finding indicating that the petitioners 

had presented substantial information 

indicating that the requested action may 

be warranted and initiated a status 

review (55 FR 46080). 

On November 19, 1991, the Service 

published a 12-month finding on the 

petition concurrent with a proposal to 

list the species as endangered (56 FR 

58348). A final rule listing the Oregon 

chub as endangered was published in 

the Federal Register on October 18, 

1993 (58 FR 53800). A 5-year review of 

the Oregon chub’s status was completed 

in February 2008 (U.S. Fish and 

Wildlife Service 2008a, pp. 1–34); this 

review concluded that the Oregon 

chub’s status had substantially 

improved since listing, and that the 

Oregon chub no longer met the 

definition of an endangered species, but 

does meet the definition of a threatened 

species, under the Act. The review, 

therefore, recommended that the Oregon 

chub should be downlisted from 

endangered to threatened. 

On March 10, 2009, the Service 

published a proposed rule to designate 

critical habitat (74 FR 10412) for the 

Oregon chub. The public comment 

period on the proposed critical habitat 

rule closes on May 11, 2009. 

Species Information 

The Oregon chub is a small minnow 

(Family: Cyprinidae) endemic to the 

Willamette River Basin in western 

Oregon (Markle et al. 1991, p. 288). The 

Oregon chub has an olive-colored back 

grading to silver on the sides and white 

on the belly (Markle et al. 1991, p. 286). 

Oregon chub are found in slack water 

off-channel habitats such as beaver 

ponds, oxbows, side channels, 

backwater sloughs, low-gradient 

tributaries, and flooded marshes. These 

habitats usually have little or no water 

flow, silty and organic substrate, and 

abundant aquatic vegetation for hiding 

and spawning cover (Pearsons 1989, p. 

12; Scheerer and McDonald 2000, p. 9). 

Summer temperatures in shallow ponds 

inhabited by Oregon chub generally 

exceed 16 degrees Celsius (C) (61 

degrees Fahrenheit (F)) (Scheerer et al. 

1998, p. 26). In the winter months, 

Oregon chub are found buried in 

detritus or concealed in aquatic 

vegetation (Pearsons 1989, p. 16). 

Oregon chub reach maturity at about 

2 years of age (Scheerer and McDonald 

2003, p. 78) and in wild populations can 

22872 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

live up to 9 years. Most individuals over 

5 years old are females (Scheerer and 

McDonald 2003, p. 68). Oregon chub 

spawn in warm (16 to 21 degrees C (61 

to 70 degrees F)) shallow water from 

June through August (Scheerer and 

McDonald 2000, p. 10). The diet of 

Oregon chub collected in a May sample 

consisted primarily of copepods, 

cladocerans, and chironomid larvae 

(Markle et al. 1991, p. 288). 

In the early 1990s, Oregon chub 

populations were found predominantly 

in the Middle Fork Willamette River 

(Middle Fork), with a few, small 

populations found in the MidWillamette River, Santiam River, and 

Coast Fork Willamette River (Coast 

Fork). The species is now well 

distributed throughout the Willamette 

Basin (in Polk, Marion, Linn, Lane and 

Benton Counties, Oregon), with 

populations in the Santiam River (8 

sites), Mid-Willamette River (6 sites), 

McKenzie River (4 sites), Middle Fork 

(14 sites), and Coast Fork (3 sites) 

(Scheerer et al. 2007, p. 2). There are 

currently 19 populations that contain 

more than 500 adults each; 16 of these 

have a stable or increasing trend 

(Scheerer 2008a, p. 6). 

Review of the Recovery Plan 

The Service published a final 

recovery plan for the Oregon chub in 

1998 (U.S. Fish and Wildlife Service 

1998). Recovery plans are intended to 

guide actions to recover listed species 

and to provide measurable objectives 

against which to measure progress 

towards recovery, however, precise 

attainment of the recovery criteria is not 

a prerequisite for downlisting or 

delisting. The Oregon chub recovery 

plan established the following criteria 

for downlisting the species from 

endangered to threatened: 

(1) Establish and manage 10 

populations of at least 500 adults each; 

(2) All of these populations must 

exhibit a stable or increasing trend for 

5 years; and 

(3) At least three populations must be 

located in each of the three sub-basins 

of the Willamette River identified in the 

plan (Mainstem Willamette River, 

Middle Fork, and Santiam River). 

The recovery plan established the 

following criteria for delisting (i.e., 

removing the species from the List of 

Endangered and Threatened Wildlife): 

(1) Establish and manage 20 

populations of at least 500 adults each; 

(2) All of these populations must 

exhibit a stable or increasing trend for 

7 years; 

(3) At least four populations must be 

located in each of the three sub-basins 

(Mainstem Willamette River, Middle 

Fork, and Santiam River); and 

(4) Management of these populations 

must be guaranteed in perpetuity. 

Recovery actions specified in the 

recovery plan to achieve the 

downlisting and delisting goals 

included managing existing sites, 

establishment of new populations, 

research into the ecology of the species, 

and public education and outreach to 

foster greater understanding of the 

Oregon chub and its place in the natural 

environment of the Willamette Basin 

(U.S. Fish and Wildlife Service 1998, 

pp. 28–44). 

Recovery Plan Implementation 

When the Oregon chub was listed as 

endangered in 1993, it was known to 

occur at only nine locations within a 30- 

kilometer (18.6-mile) reach of the 

Willamette River, representing just two 

percent of its historical range (58 FR 

53800, p. 53801). Since 1992, the 

Service, Oregon Department of Fish and 

Wildlife (ODFW), U.S. Army Corps of 

Engineers (Corps), U.S. Forest Service, 

Oregon Parks and Recreation 

Department and Oregon Department of 

Transportation have funded ODFW staff 

to conduct surveys for Oregon chub 

throughout the Willamette Valley. 

ODFW has surveyed 650 off-channel 

habitats and small tributaries in the 

Willamette River Basin (Scheerer 2007, 

p. 92), greatly increasing our knowledge 

of the current and potential habitat 

available to the Oregon chub. Other 

research projects have resulted in new 

information on the species’ habitat use, 

timing of spawning, and age and growth 

patterns (U.S. Fish and Wildlife Service 

2008a, pp. 13–15). 

The status of the Oregon chub has 

dramatically improved since it was 

listed as endangered. The improvement 

is due largely to the implementation of 

actions identified in the Oregon chub 

recovery plan. This includes the 

discovery of many new populations as 

a result of ODFW’s exhaustive surveys 

of the basin, and the establishment of 

additional populations via successful 

reintroductions within the species’ 

historical range (Scheerer 2007, p. 97). 

To date, Oregon chub populations have 

been introduced at 15 sites (7 in the 

Mainstem Willamette Sub-basin, 5 in 

the Middle Fork Sub-basin, and 3 in the 

Santiam Sub-basin) (Scheerer et al. 

2007, p. 2; Scheerer 2008a, p. 6). 

Introduced populations have been 

established in suitable habitats with low 

connectivity to other suitable aquatic 

habitats to reduce the risk of invasion by 

nonnative fishes (see Factor C below for 

more information) (Scheerer 2007, p. 

98). At present, 9 of these populations 

persist and exhibit stable or increasing 

trends; 1 population was reintroduced 

too recently to evaluate success (i.e., the 

population introduced in 2008 at St. 

Paul Ponds); and 5 introduced 

populations have been extirpated or are 

not likely to remain viable. Reasons for 

reintroduction failures include: pond 

desiccation, low dissolved oxygen, 

unauthorized introductions of 

nonnative predatory fishes, and high 

mortality of introduced fish (Scheerer et 

al. 2007, p. 2; Scheerer 2008a, p. 6; 

Scheerer 2009a, p. 1). 

Currently, there are 36 Oregon chub 

populations, of which 19 have more 

than 500 adults (Scheerer et al. 2007, p. 

2; Scheerer 2008a, p. 6). Fifteen years 

have passed since listing, and the 

species is now relatively abundant and 

well distributed throughout much of its 

presumed historical range. The risk of 

extinction has been substantially 

reduced as threats have been managed, 

and as new populations have been 

discovered and re-established. The 

Oregon chub has exceeded or met nearly 

all of the criteria for downlisting to 

threatened described in the recovery 

plan. A review of the species’ current 

status relative to the downlisting criteria 

follows. 

Downlisting Criterion 1: Establish and 

manage 10 populations of at least 500 

adults each. This criterion has been 

exceeded. There are 19 populations 

with more than 500 adult Oregon chub 

(table 1). 

Downlisting Criterion 2: All of these 

populations must exhibit a stable or 

increasing trend for 5 years. This 

criterion has been exceeded; there are 

16 populations with at least 500 adults 

that are stable or increasing (table 1). 

Scheerer et al. (2007, p. 4) defined 

abundance trends as increasing, 

declining, stable, or not declining using 

linear regression of abundance estimates 

over time for each population with more 

than 500 adult fish over the last 5 years. 

When the slope of this regression was 

negative and significantly different from 

zero (P<0.10), the population was 

categorized as declining. When the 

slope was positive and significantly 

different from zero (P<0.10), the 

population was categorized as 

increasing. When the slope was not 

significantly different from zero 

(P>0.10), Scheerer et al. (2007, p. 4) 

calculated the coefficient of variation of 

the abundance estimates to discriminate 

between populations that were stable 

(i.e., low variation in population 

abundance estimates) and those that 

were unstable but not declining (i.e., 

high variation in population abundance 

estimates). When the coefficient of 

variation was less than 1.0, the 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 22873 

population was defined as stable; 

otherwise, the population was 

considered unstable but not declining 

(table 1). 

Downlisting Criterion 3: At least three 

populations (which meet criteria 1 and 

2 above) must be located in each of the 

three sub-basins of the Willamette River 

(Mainstem Willamette River, Middle 

Fork Willamette, and Santiam River). 

This criterion has been exceeded in two 

sub-basins, and is nearly accomplished 

in the third. In the Mainstem Willamette 

River sub-basin, there are 6 populations 

with 500 or more Oregon chub with 

stable or increasing trends; in the 

Middle Fork Willamette sub-basin, there 

are 8 populations with 500 or more 

Oregon chub with stable or increasing 

trends; and in the Santiam River subbasin, there are 3 populations with 500 

or more Oregon chub, but only 2 with 

stable or increasing trends over the last 

5 years (Table 1). Five-year trends were 

calculated for abundant populations 

(>500 individuals for the last 5 years) 

only. Table 1 shows the populations by 

sub-basin. 

TABLE 1—OREGON CHUB POPULATION ESTIMATES AND TRENDS

[From Scheerer et al. 2007, p. 2; Scheerer, 2008a, p. 6, Scheerer 2008b, p. 1] 

Population site name Owner 1 Population 

estimate 2

5-Year 

trend 3

Santiam River Sub-Basin 

Foster Pullout Pond ....................................................................................... Corps ................................................. 2,640 stable. 

Gray Slough ................................................................................................... Private ............................................... 660 stable. 

South Stayton Pond ....................................................................................... ODFW ............................................... 1,710 

Geren Island North Channel .......................................................................... City of Salem ..................................... 210 declining. 

Pioneer Park Backwater ................................................................................ Private ............................................... 320 

Stayton Public Works Pond ........................................................................... City of Stayton ................................... 70 

Santiam I–5 Side Channels ........................................................................... ODOT ................................................ (22 ) 

Green’s Bridge Slough .................................................................................. Private ............................................... (8 ) 

Mainstem Willamette Sub-Basin (Includes McKenzie River and Coast Fork) 

Ankeny Willow Marsh .................................................................................... USFWS ............................................. 36,450 increasing. 

Dunn Wetland ................................................................................................ Private ............................................... 34,530 stable. 

Finley Gray Creek Swamp ............................................................................ USFWS ............................................. 2,140 increasing. 

Finley Cheadle Pond ..................................................................................... USFWS ............................................. 3,520 increasing. 

Finley Display Pond ....................................................................................... USFWS ............................................. 830 increasing. 

Muddy Creek ................................................................................................. Private ............................................... (3 ) 

Russell Pond .................................................................................................. Private ............................................... 650 stable. 

Shetzline Pond ............................................................................................... Private ............................................... 200 

Big Island ....................................................................................................... Private ............................................... 130 

Green Island .................................................................................................. Private ............................................... (12 ) 

Herman Pond ................................................................................................. USFS ................................................. 180 

Coast Fork Side Channels ............................................................................ OPRD/ODOT ..................................... 80 

Lynx Hollow Side Channels ........................................................................... OPRD ................................................ (2 ) 

Middle Fork Sub-Basin 

Shady Dell Pond ............................................................................................ USFS ................................................. 7,250 increasing. 

E. Bristow St. Park—Berry Slough ................................................................ OPRD ................................................ 5,460 increasing. 

Dexter Reservoir RV Alcove— DEX3 ........................................................... Corps ................................................. 4,020 increasing. 

Wicopee Pond ............................................................................................... USFS ................................................. 5,430 stable. 

Fall Creek Spillway Ponds ............................................................................. Corps ................................................. 3,050 declining. 

Buckhead Creek ............................................................................................ USFS ................................................. 1,260 declining. 

East Fork Minnow Creek Pond ..................................................................... ODOT ................................................ 2,160 stable. 

Elijah Bristow Island Pond ............................................................................. OPRD ................................................ 1,620 stable. 

Hospital Pond ................................................................................................ Corps ................................................. 3,680 stable. 

Dexter Reservoir Alcove—PIT1 ..................................................................... Corps ................................................. 680 stable. 

Haws Pond .................................................................................................... Private ............................................... 280 

E. Bristow St. Park—NE Slough ................................................................... OPRD ................................................ 230 

Jasper Park Slough ....................................................................................... OPRD ................................................ (1 ) 

St. Paul Ponds ............................................................................................... ODFW ............................................... (21 ) 

1Owner abbreviations: Corps = U.S. Army Corps of Engineers, USFWS = U.S. Fish and Wildlife Service, ODOT = Oregon Department of 

Transportation, OPRD = Oregon Parks and Recreation Department, ODFW = Oregon Department of Fish and Wildlife. 2Population estimate is the most recent available (Fall 2007 or Spring 2008). Abundances are mark—recapture estimates except those shown 

in parentheses, which are the number of fish collected. 3 5-year trends were calculated for abundant populations (>500 individuals for the last 5 years) only. 

Additional Conservation Measures 

The Oregon Chub Working Group 

(Working Group) was formed in 1991. 

This group of Federal and State agency 

biologists, academics, land managers 

and others meet each year to share 

information on the status of the Oregon 

chub, results of new research, and 

ongoing threats to the species. The 

Working Group has been an important 

force in improving the conservation 

status of the Oregon chub. 

An interagency conservation 

agreement was established for the 

Oregon chub in 1992, prior to listing 

(U.S. Fish and Wildlife Service 1998, p. 

59). ODFW, Oregon Department of Parks 

and Recreation, Corps, U.S. Bureau of 

22874 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

Land Management, U.S. Fish and 

Wildlife Service, and U.S. Forest 

Service are the parties to the agreement. 

The objectives of the conservation 

agreement are to: (1) Establish a task 

force drawn from participating agencies 

to oversee and coordinate Oregon chub 

conservation and management actions, 

(2) protect existing populations, (3) 

establish new populations, and (4) foster 

greater public understanding of the 

species, its status, and the factors that 

influence it (U.S. Fish and Wildlife 

Service 1998, pp. 65–66). 

The Oregon chub is designated as 

‘‘Sensitive-Critical’’ by ODFW. The 

‘‘Sensitive’’ species classification was 

created under Oregon’s Sensitive 

Species Rule (OAR 635–100–040) to 

address the need for a proactive species 

conservation approach. The Sensitive 

Species List is a nonregulatory tool that 

helps focus wildlife management and 

research activities, with the goal of 

preventing species from declining to the 

point of qualifying as ‘‘threatened’’ or 

‘‘endangered’’ under the Oregon 

Endangered Species Act (ORS 496.171, 

496.172, 496.176, 496.182 and 496.192). 

Species designated as Sensitive-Critical 

are those for which listing as threatened 

or endangered would be appropriate if 

immediate conservation actions were 

not taken. This designation encourages 

but does not require the implementation 

of any conservation actions for the 

species. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for listing 

species, reclassifying species, or 

removing species from listed status. 

‘‘Species’’ is defined by the Act as 

including any species or subspecies of 

fish or wildlife or plants, and any 

distinct vertebrate population segment 

of fish or wildlife that interbreeds when 

mature (16 U.S.C. 1532(16)). Once the 

‘‘species’’ is determined, we then 

evaluate whether that species may be 

endangered or threatened because of 

one or more of the five factors described 

in section 4(a)(1) of the Act. We must 

consider these same five factors in 

reclassifying or delisting a species. For 

species that are already listed as 

threatened or endangered, this analysis 

of threats is an evaluation of both the 

threats currently facing the species and 

the threats that are reasonably likely to 

affect the species in the foreseeable 

future following the delisting or 

downlisting and the removal or 

reduction of the Act’s protections. 

A species is ‘‘endangered’’ for 

purposes of the Act if it is in danger of 

extinction throughout all or a significant 

portion of its range, and is ‘‘threatened’’ 

if it is likely to become endangered 

within the foreseeable future throughout 

all or a significant portion of its range. 

The word ‘‘range’’ is used here to refer 

to the range in which the species 

currently exists, and the word 

‘‘significant’’ refers to the value of that 

portion of the range being considered to 

the conservation of the species. The 

‘‘foreseeable future’’ is the period of 

time over which events or effects 

reasonably can or should be anticipated, 

or trends reasonably extrapolated; see 

discussion following Factor E, below. 

Following a rangewide threats 

analysis we evaluate whether the 

Oregon chub is threatened or 

endangered in any significant portion(s) 

of its range. 

Factor A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Historical records indicate that the 

Oregon chub was distributed throughout 

the Willamette Basin, from the 

Clackamas River in the north, to the 

Coast Fork and Middle Fork in the south 

(Markle 1991, p. 288). When the Oregon 

chub was listed as endangered in 1993, 

the species was known to exist at only 

nine locations, representing only 2 

percent of the species’ historical range 

(Markle 1991, pp. 288–289; Scheerer et 

al. 2007, p. 2). Four of these locations 

had fewer than 10 individuals (Scheerer 

et al. 2007, p. 2). This precipitous 

decline in the species’ abundance and 

distribution was attributed to the 

extensive channelization, dam 

construction, and chemical 

contamination that occurred in the 

Willamette Basin, particularly from the 

1940s through the late 20th century 

(Pearsons 1989, pp. 29–30). 

There are at least 371 dams in the 

Willamette River Basin, most of which 

were constructed during the period 

1950 to 1980 (Hulse et al. 2002, p. 30). 

These dams reduced the magnitude, 

extent, and frequency of flooding in the 

basin, which dramatically reduced the 

amount of slough and side channel 

habitats used by the Oregon chub (Hulse 

et al. 2002, pp. 28–30). Other structural 

changes, such as revetment and 

channelization, diking and drainage, 

and the removal of floodplain 

vegetation, eliminated or altered the 

side channels and sloughs used by the 

Oregon chub, and destroyed the natural 

processes that replenish these slack 

water habitats (Hjort et al. 1984, p. 73; 

Sedell and Frogatt 1984, p. 1833; Hulse 

et al. 2002, p. 27). Analysis of historical 

records shows that over one-half of the 

Willamette’s sloughs and alcoves had 

been lost by 1995 (Hulse et al. 2002, p. 

18). Although the Oregon chub evolved 

in a dynamic environment in which 

flooding periodically created and 

reconnected habitat for the species, 

currently most populations of Oregon 

chub are isolated from other chub 

populations due to the reduced 

frequency and magnitude of flood 

events and the presence of migration 

barriers such as impassable culverts and 

beaver dams (Scheerer et al. 2007, p. 9). 

In the 15 years since the Oregon chub 

was listed as endangered, concerted 

efforts by Federal, State, and local 

governments and private landowners 

have increased the number of Oregon 

chub populations from 9 to 36 (Scheerer 

et al. 2007, p. 2; Scheerer 2008a, p. 6). 

This dramatic increase in the number of 

populations is a result of the discovery 

of new populations through extensive 

surveys of suitable habitats throughout 

the Willamette Basin and the 

establishment of new populations 

through successful reintroductions 

within their historical range (Scheerer 

2007, p. 97). Since 1992, Oregon chub 

have been reintroduced to 15 locations, 

resulting in the successful establishment 

of 9 populations (Scheerer et al. 2007, 

p. 2; Scheerer 2008a, p. 6). 

The analysis of threats in the final 

rule to list the Oregon chub as an 

endangered species and the recovery 

plan for the species discussed numerous 

potential threats to water quality in 

Oregon chub habitats. Many Oregon 

chub populations occur near rail, 

highway, and power transmission 

corridors, agricultural fields, and within 

public park and campground facilities, 

and there was concern that these 

populations could be threatened by 

chemical spills, runoff, or changes in 

water level or flow conditions caused by 

construction, diversions, or natural 

desiccation (58 FR 53800, October 18, 

1993; U.S. Fish and Wildlife Service 

1998, p. 14, Scheerer 2008c, p. 1). In the 

15 years since listing, a few of these 

concerns have been realized, and are 

discussed in the paragraphs below. 

Excessive siltation from ground 

disturbing activities in the watershed, 

such as logging upstream of Oregon 

chub habitat, can degrade or destroy 

Oregon chub habitat. The threat of 

siltation due to logging in the watershed 

has been identified at five sites: Green 

Island North Channel, Finley Gray 

Creek Swamp, East Fork Minnow Creek 

Pond, Buckhead Creek, and Wicopee 

Pond (Scheerer 2008c, p. 1). In the 

1990s, a large part of the Minnow Creek 

Watershed in the Middle Fork 

Willamette Sub-basin was logged; flood 

events in the watershed in 1996, 1997, 

and 1998 caused accelerated 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 22875 

sedimentation in the beaver pond at 

East Fork Minnow Creek Pond, and over 

half of the open water wetted area of the 

Oregon chub habitat there was lost as 

sediment filled the pond (Scheerer 

2009b, p. 1). The Oregon chub 

population in East Fork Minnow Creek 

Pond declined dramatically following 

these floods and the resulting 

sedimentation (Scheerer 2009b, p. 1). 

Water quality investigations at sites in 

the Middle Fork and Mainstem 

Willamette sub-basins have found some 

adverse effects to Oregon chub habitats. 

Nutrient enrichment may have caused 

the crash of the Oregon chub population 

at Oakridge Slough on the Middle Fork. 

The slough is downstream from the 

Oakridge Sewage Treatment Plant and 

has a thick layer of decaying organic 

matter, which may limit the amount of 

useable habitat available to the chub 

(Buck 2003, p. 2). In the late 1990s, the 

Oregon chub population in Oakridge 

Slough peaked at nearly 500 

individuals; since then, the population 

has apparently declined to zero 

(Scheerer et al. 2007, p. 2). Increased 

nitrogen and phosphorus concentrations 

have been detected in the slough; while 

the nutrient concentrations are not 

believed to be directly harmful to 

Oregon chub, the elevated nutrient 

levels may have resulted in 

eutrophication of the pond, with 

associated anoxic conditions unsuitable 

for chub, or increased plant and algal 

growth that severely reduced habitat 

availability (Buck 2003, p. 12). 

Studies at William L. Finley National 

Wildlife Refuge have found evidence of 

elevated levels of nutrients and 

pesticides in Oregon chub habitats 

(Materna and Buck 2007, p. 67). Water 

samples were collected in 1998 from 

Gray Creek Swamp, which is home to a 

large population of Oregon chub. 

Analyses detected three herbicides, 

although all were below criteria levels 

recommended for protection of aquatic 

life; however, one form of nitrogen (total 

Kjeldahl N) exceeded Environmental 

Protection Agency criteria levels 

recommended for protection of aquatic 

life in the Willamette Valley (Materna 

and Buck 2007, p. 67). The source of the 

contamination is likely agricultural 

runoff from farm fields adjacent to the 

refuge (Materna and Buck 2007, p. 68). 

We note that EPA’s recommended 

criteria for protection of aquatic life are 

not intended to be protective of all 

aquatic life, and may not be fully 

protective of the Oregon Chub. EPA and 

the Service are working together to 

assess the effects of pollutants on the 

Oregon chub through section 7 

consultation on Oregon water quality 

standards. 

Fluctuating water levels in Lookout 

Point Reservoir on the Middle Fork 

Willamette River were limiting the 

breeding success of the Oregon chub 

population in Hospital Pond, which 

provides habitat for the species in a pool 

connected to the reservoir by a culvert. 

In 2001, 2002, and 2003, the Corps, 

which manages Lookout Point 

Reservoir, implemented a series of 

projects to protect the population of 

Oregon chub in Hospital Pond. The goal 

was to allow the Corps to manage the 

water level in Lookout Point Reservoir 

independently of the water elevation in 

Hospital Pond. The Corps installed a 

gate on Hospital Pond’s outlet culvert 

and lined the porous berm between the 

pond and reservoir; these modifications 

allow the Corps to maintain the water 

level needed to support Oregon chub 

spawning in Hospital Pond independent 

of the water level in the reservoir (U.S. 

Fish and Wildlife Service 2002, pp. 1– 

11). The Corps also excavated additional 

area to create more suitable spawning 

habitat in the pond (U.S. Fish and 

Wildlife Service 2003, pp. 1–3). The 

result of these management actions has 

been a large stable population of Oregon 

chub in Hospital Pond (Scheerer 2008a, 

p. 6). 

Most of the known Oregon chub 

populations occur on lands with some 

level of protective status and 

management (see Table 1). The Service 

manages several Oregon chub 

populations on the Finley and Ankeny 

units of the Willamette Valley National 

Wildlife Refuge Complex (Refuge). 

Recovery of the Oregon chub is a high 

priority for the Refuge. The Refuge 

actively monitors the status of the 

populations, habitat quality, and 

nonnative fish presence; when threats 

are detected, the Refuge implements 

management actions to reverse the 

threats (Smith 2008, p. 1). 

Five populations of Oregon chub 

occur on lands managed by the Corps; 

the Corps manages Oregon chub in 

accordance with the Service’s biological 

opinion on the Willamette Project. In 

July 2008, the Corps, Bonneville Power 

Administration (BPA), and Bureau of 

Reclamation (BOR) completed formal 

consultation with the Service under 

section 7(a)(2) of the Endangered 

Species Act on the operation and 

maintenance of the Willamette Project, 

the system of 13 dams and associated 

impoundments that provide flood 

control, irrigation, municipal and 

industrial water supply, navigation, fish 

and wildlife conservation, flow 

augmentation, hydroelectric power 

generation, and recreation to the 

Willamette Valley. The Service 

concluded that the project would not 

jeopardize the continued existence of 

the Oregon chub (U.S. Fish and Wildlife 

Service 2008b, pp. 1–204). The Service’s 

biological opinion describes the 

measures that will be implemented by 

the Corps, BPA, and BOR to maintain 

and improve habitat for the Oregon 

chub. These measures include: 

(1) Monitoring the status of Oregon 

chub populations affected by operation 

and maintenance of the dams to gain a 

better understanding of the influence of 

the Willamette Project on species; 

(2) Managing water levels in Oregon 

chub habitats directly affected by 

reservoir operations; 

(3) Relocating Oregon chub from 

ponds adversely affected by reservoir 

operations to new locations with better 

prospects for long-term protection; 

(4) Studies to identify the effects of 

flow management on Oregon chub 

habitats; and 

(5) Funding a pilot study to 

investigate the impact of floodplain 

restoration and reconnection on fish 

communities in river reaches below 

Willamette Project dams. 

Operation and maintenance of the 

Willamette Project under the new 

biological opinion will result in 

improved protections for the Oregon 

chub and new information that will 

benefit the species throughout the 

Willamette Basin. 

The Oregon Department of 

Transportation has developed and is 

implementing a plan to protect and 

enhance Oregon chub populations on 

the agency’s properties or those which 

may be affected by highway 

maintenance on the Santiam River, 

Coast Fork Willamette River, and 

Middle Fork Willamette River (Scheerer 

2005, pp. 1–21). 

The Oregon chub populations at 

Elijah Bristow State Park and Jasper 

Park on the Middle Fork are managed by 

the Oregon Parks and Recreation 

Department, which uses the Service’s 

recovery plan as guidance to ensure 

conservation of the chub populations 

within the parks (Schleier 2008). 

The U.S. Forest Service monitors and 

manages several Oregon chub 

populations on the Middle Fork 

(Scheerer 2008b, p. 1). 

In addition to the management and 

protection provided to the Oregon chub 

on Federal and State lands, two Safe 

Harbor Agreements have been 

completed to guide management of 

Oregon chub populations on private 

lands. Safe Harbor Agreements are 

voluntary arrangements between the 

Service and cooperating non-Federal 

landowners to promote management for 

listed species on non-Federal property 

while giving assurances to participating 

22876 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

landowners that no additional future 

regulatory restrictions will be imposed. 

The Service’s Oregon Fish and Wildlife 

Office is preparing a programmatic Safe 

Harbor Agreement to allow more 

landowners to enroll in the program, 

which, based on past experience, is 

likely to result in the reintroduction of 

Oregon chub populations on more 

private lands throughout the species’ 

historical range. 

Summary of Factor A: The Oregon 

chub has experienced extensive loss of 

slough and side-channel habitat due to 

hydrological changes resulting from 

dam construction and channelization in 

the Willamette Valley. However, many 

new habitats have been artificially 

created and are being managed to 

maintain populations of Oregon chub. 

Habitat quality is threatened by water 

quality degradation, though this has 

been documented at only a few sites. 

Habitat conditions have improved to the 

point where the species is not presently 

in danger of extinction. However, 

without continued protections provided 

by the Act, or long-term management 

agreements, the Oregon chub would 

likely become endangered in the 

foreseeable future due, in part, to the 

destruction, modification or curtailment 

of its habitat. 

Factor B. Overutilization for 

Commercial, Recreational, Scientific, or 

Educational Purposes 

Overutilization was not a factor in 

listing nor is it currently known to be 

a threat to the Oregon chub. 

Factor C. Disease or Predation 

The proliferation of predatory 

nonnative fish is the largest current 

threat to Oregon chub populations 

(Scheerer et al. 2007, p. 14). Nearly half 

of the fish species found in the 

Willamette Basin are introduced; the 

basin contains 31 native fish species 

and 29 nonnative species (Hulse et al. 

2002, p. 44). The large-scale alteration of 

the Willamette Basin’s hydrologic 

system (i.e., construction of dams and 

the resultant changes in flood frequency 

and intensity) has created conditions 

that favor nonnative predatory fishes, 

and reservoirs throughout the basin 

have become sources of continual 

nonnative fish invasions in the 

downstream reaches (Li et al. 1987, p. 

198). 

Oregon chub are most abundant at 

sites where nonnative fishes are absent 

(Scheerer 2007, p. 96). Predatory 

nonnative centrarchids (bass and 

sunfish) and Ameiurus spp. (bullhead 

catfish) are common in the off-channel 

habitats used by Oregon chub (Scheerer 

2002, p. 1075). Sites with high 

connectivity to adjacent flowing water 

frequently contain nonnative predatory 

fishes and rarely contain Oregon chub 

(Scheerer 2007, p. 99). The presence of 

centrarchids and bullhead catfishes is 

probably preventing Oregon chub from 

recolonizing suitable habitats 

throughout the basin (Markle et al. 1991, 

p. 291). 

Management for Oregon chub has 

focused on establishing secure, isolated 

habitats free of nonnative fishes. 

However, natural flood events may 

breach barriers to connectivity allowing 

invasion by nonnative fishes. During the 

1996 floods in the Willamette Basin, 

nonnative fishes invaded the habitats of 

the two largest Oregon chub populations 

in the Santiam River; in the next 2 

years, these populations declined by 

more than 50 percent, and had not 

recovered to pre-1996 levels more than 

5 years later (Scheerer 2002, p. 1078). 

Game fish have also been 

intentionally introduced into chub 

ponds. An illegal introduction of 

largemouth bass (Micropterus 

salmoides) at an Oregon chub 

population site on the Middle Fork 

apparently caused a significant decline 

in that population from over 7,000 fish 

to approximately 2,000 fish from 2000 

to 2007 (Scheerer et al. 2007, p. 14). The 

ubiquity of nonnative fishes in the 

Willamette Basin has created a 

substantial challenge to the recovery of 

the Oregon chub. Scheerer et al. (2007, 

pp. 10–14) conclude, ‘‘The resulting 

paradox is that the frequent interaction 

of the river with the floodplain habitats 

* * *, conditions which historically 

created off-channel habitats and aided 

in the dispersal of chub and the 

interchange of individuals among 

populations, now poses a threat to 

Oregon chub by allowing dispersal of 

nonnative species.’’ 

Nonnative fishes may also serve as 

sources of parasites and diseases for the 

Oregon chub. However, disease and 

parasite problems have not been 

identified in this species, nor has the 

issue been studied. 

Summary of Factor C: Predatory 

nonnative fishes are the greatest current 

threat to the recovery of the Oregon 

chub. Nonnative fishes are abundant 

and ubiquitous in the Willamette River 

Basin, and continual monitoring and 

management are required to protect 

existing Oregon chub populations from 

invasion. Predation remains a concern, 

but as the status of the species has 

improved since listing (i.e., more 

populations have been established and 

are being managed to minimize threats), 

the relative effect of the threat of 

predatory nonnative fishes has declined. 

Nevertheless, predation continues to 

impact the Oregon chub such that it is 

likely to become endangered in the 

foreseeable future without continued 

protection under the Act. 

Factor D. The Inadequacy of Existing 

Regulatory Mechanisms 

Before the Oregon chub was federally 

listed as endangered in 1993, the 

species had no regulatory protections. 

Upon its listing as endangered, the 

species benefited from the protections of 

the Endangered Species Act, which 

include the prohibition against take and 

the requirement for interagency 

consultation for Federal actions that 

may affect the species. Section 9 of the 

Act and Federal regulations pursuant to 

section 4(d) of the Act prohibit the take 

of endangered and threatened species 

without special exemption. ‘‘Take’’ is 

defined as to harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect, or to attempt to engage in any 

such conduct (50 CFR 17.3). ‘‘Harm’’ is 

further defined to include significant 

habitat modification or degradation that 

results in death or injury to listed 

species by significantly impairing 

essential behavioral patterns, including 

breeding, feeding, or sheltering; 

‘‘harass’’ is defined as intentional or 

negligent actions that create the 

likelihood of injury to listed species to 

such an extent as to significantly disrupt 

normal behavior patterns, which 

include, but are not limited to, breeding, 

feeding, or sheltering (50 CFR 17.3). 

Section 7(a)(1) of the Act requires all 

Federal agencies to utilize their 

authorities in furtherance of the 

purposes of the Act by carrying out 

programs for the conservation of 

endangered species and threatened 

species. Section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

any action authorized, funded, or 

carried out by them is not likely to 

jeopardize the continued existence of 

listed species or adversely modify their 

critical habitat. Thus, listing the Oregon 

chub provided a variety of protections, 

including the prohibition against take 

and the conservation mandates of 

section 7 for all Federal agencies. 

Because the Service has regulations that 

prohibit take of all threatened species 

(50 CFR 17.31(a)), unless modified by a 

special rule issued pursuant to section 

4(d) of the Act (50 CFR 17.31(c)), the 

regulatory protections of the Act are 

largely the same for species listed as 

endangered and as threatened; thus, the 

protections provided by the Act will 

remain in place if the Oregon chub is 

reclassified as a threatened species. 

The Oregon chub is designated as 

‘‘Sensitive-Critical’’ by ODFW. This 

designation is a nonregulatory tool that 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 22877 

helps focus wildlife management and 

research activities, with the goal of 

preventing species from declining to the 

point of qualifying as ‘‘threatened’’ or 

‘‘endangered’’ under the Oregon 

Endangered Species Act (ORS 496.171, 

496.172, 496.176, 496.182 and 496.192). 

Sensitive-Critical designation 

encourages but does not require the 

implementation of any conservation 

actions for the species (see the 

discussion above under Additional 

Conservation Measures). 

The Oregon chub is not protected by 

any other regulatory mechanisms. 

Summary of Factor D: The regulatory 

mechanisms in effect under the 

Endangered Species Act provide a 

prohibition against take, the affirmative 

conservation mandate of section 7(a)(1), 

and the protection against jeopardy of 

section 7(a)(2); these regulatory 

mechanisms will remain in place if the 

Oregon chub is downlisted to 

threatened. A program of conservation 

actions will be implemented by the 

Corps, BPA, and BOR as a result of the 

Service’s biological opinion on the 

Willamette Project. However, because 

there are no other regulatory 

mechanisms in place beyond the Act, 

the inadequacy of regulatory 

mechanisms still threatens the Oregon 

chub. 

Factor E. Other Natural or Manmade 

Factors Affecting Its Continued 

Existence 

Almost half of all the fish species in 

the Willamette River are not native to 

the basin (Hulse et al. 2002, p. 44). 

Along with the direct threat of predation 

(see Factor C, above), nonnative fish 

compete with Oregon chub for food 

resources. Competition with nonnative 

fishes may contribute to the decline and 

exclusion of Oregon chub from suitable 

habitats. Observed feeding strategies 

and diet of nonnative fishes, 

particularly juvenile centrarchids and 

adult mosquitofish (Gambusia affinis) 

overlap with the diet and feeding 

strategies described for the Oregon chub 

(Li et al. 1987, pp. 197–198). Thus, 

direct competition for food between 

Oregon chub and nonnative species may 

limit the distribution and expansion of 

the species; however, no studies have 

focused on the topic of competitive 

exclusion to date. 

Historically, floods provided the 

mechanism of dispersal and genetic 

exchange for Oregon chub populations 

throughout the Willamette Basin 

(Scheerer 2002, p. 1078). The current 

management focus on protecting Oregon 

chub populations in isolation, which 

protects the species from the 

introduction of predatory nonnative 

fishes, may be having negative genetic 

implications (Scheerer 2002, p. 1078). 

This lack of connectivity means that 

movement of individuals among 

populations occurs rarely, if at all, 

which results in little or no genetic 

exchange among populations (Scheerer 

et al. 2007, p. 9). Research is under way 

to determine if Oregon chub 

populations have distinct genetic 

characteristics in the different subbasins of the Willamette River (Ardren 

et al. 2008, p. 1). There is concern that 

an unintended effect of managing for 

isolated populations may be genetic 

drift and inbreeding. If this proves to be 

the case, managers may need to move 

fish among populations to fulfill the role 

that natural flooding once played 

(Scheerer et al. 2007, p. 15). 

Summary of Factor E: Competition 

from nonnative species and the loss of 

genetic diversity as a result of managing 

Oregon chub populations in isolated 

habitats are potential threats that could 

affect Oregon chub populations 

throughout the species’ range. However, 

the magnitude of these threats is 

unknown. 

Foreseeable Future 

The term ‘‘threatened species’’ means 

any species (or subspecies or, for 

vertebrates, distinct population 

segments) that is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range. The Act 

does not define the term ‘‘foreseeable 

future.’’ For the purpose of this 

proposed rule, we defined the 

‘‘foreseeable future’’ to be the extent to 

which, given the amount and substance 

of available data, we can anticipate 

events or effects, or reliably extrapolate 

threat trends, such that we reasonably 

believe that reliable predictions can be 

made concerning the future as it relates 

to the status of the species at issue. 

In considering the foreseeable future 

as it relates to the status of the Oregon 

chub, we considered the threats to the 

Oregon chub, historical declines, and 

ongoing conservation efforts. 

With respect to the Oregon chub, in 

the absence of the Act’s regulatory 

protections, historical population 

declines, and range contraction, which 

were the result of habitat loss, predation 

by nonnative fishes, and the lack of 

sufficient regulatory mechanisms are 

expected to continue throughout the 

species’ range. We have no information 

to suggest that the threats identified 

above are likely to be reduced in the 

foreseeable future, nor that regulatory 

mechanisms will materialize to address 

or ameliorate the ongoing threats to the 

species. Thus, future Oregon chub 

population declines and range 

contraction, similar to what has been 

observed in the past, is a reasonable 

expectation without continued 

protection under the Act. 

Conclusion of 5-Factor Analysis 

We have carefully assessed the best 

scientific and commercial data available 

and have determined that the Oregon 

chub is not currently in danger of 

extinction. We believe that the species 

now meets the definition of a threatened 

species throughout all of its range. It has 

exceeded two of the downlisting criteria 

and is on the brink of meeting the third. 

Recovery plans are intended to guide 

and measure recovery. Recovery criteria 

for downlisting and delisting are 

developed in the recovery planning 

process to provide measurable goals on 

the path to recovery; however, precise 

attainment of all recovery criteria is not 

a prerequisite for downlisting or 

delisting. Rather, the decision to revise 

the status of a listed species is based 

solely on the analysis of the 5 listing 

factors identified in section 4 of the Act. 

The Act provides for downlisting from 

endangered to threatened when the best 

available data indicates that a species, 

subspecies, or distinct population 

segment is no longer in danger of 

extinction. 

At the time we completed the 

Recovery Plan for the Oregon Chub in 

1998, we attempted to describe what the 

range, abundance, and distribution of 

Oregon chub populations should be 

before downlisting and delisting. These 

estimates were manifested in the 

downlisting and delisting criteria 

discussed above, and these criteria 

effectively established the Service’s 

position on what constitutes 

‘‘threatened,’’ in the case of downlisting 

criteria, and ‘‘recovered,’’ in the case of 

the delisting criteria. Because the 

downlisting criteria have not been 

precisely met, the proposed finding in 

this rule represents a departure from the 

Service’s previously articulated 

description of ‘‘threatened,’’ and so 

must be further explained. 

We compared current Oregon chub 

population information with the 

downlisting criteria for each sub-basin 

and estimated the amount by which 

each population goal’s had been 

exceeded. The result of this comparison 

is shown in table 2. 

22878 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

TABLE 2—COMPARISON OF NUMERICAL POPULATION GOALS FOR DOWNLISTING FROM THE OREGON CHUB RECOVERY

PLAN WITH CURRENT POPULATION ESTIMATES, BY SUB-BASIN

Sub-basin 

Downlisting goal 

(number of fish/ 

number of 

populations) 

Current population 

estimate (number 

of fish/number of 

populations) 

Percent of downlisting 

goal achieved 

(number of 

fish/number 

of populations) 

Santiam .................................................................................................... 1,500/3 5,640/8 376/267 

Mainstem Willamette ............................................................................... 1,500/3 78,727/13 5,248/433 

Middle Fork Willamette ............................................................................ 1,500/3 35,142/14 2,343/467 

Although these totals do not 

incorporate the 5-year stable or 

increasing trend aspect of the 

downlisting criteria, the number of chub 

in these basins greatly exceeds the 

minimum required in the downlisting 

criteria for both the number of 

populations and the number of 

individual fish. Taken together, along 

with the 5-factor analyses discussed 

above, it is clear that the status of the 

chub is likely far more secure than it 

might be with 4,500 fish in 9 

populations across 3 sub-basins with 5- 

year stable or increasing trends. 

The number of populations has 

increased from 9 to 36 since the species 

was listed in 1993; there are 16 large 

(>500 individuals) populations with 

stable or increasing trends. The species 

is well distributed throughout the 

Willamette Basin, and most of these 

populations have some type of 

protective management and appear to be 

viable as long as they are monitored and 

adaptively managed. Although many of 

the threats have been reduced by 

recovery efforts, threatened status is 

appropriate because the species is likely 

to become endangered in the foreseeable 

future without the protections of the Act 

or long-term management agreements 

and adaptive management actions. In 

addition, concerns remain regarding the 

genetic implications of managing 

Oregon chub in isolated ponds, cut off 

from potential interactions with other 

populations in the basin. 

Threats to existing habitats remain, 

including manipulation of flows which 

can lead to desiccation, nutrient and 

pesticide runoff, and vegetative 

succession in shallow pond 

environments. The chief threat to 

existing Oregon chub populations is 

nonnative fish invasions, which may 

occur as a result of flood events, 

intentional introductions, or through 

connections between isolated chub 

habitats and adjacent watercourses. 

However, as the status of the species has 

improved since listing (i.e., more 

populations have been established and 

are being managed to minimize threats), 

the relative effect of the threat of 

predatory nonnative fishes has declined. 

Monitoring for nonnative fish invasions 

and adaptively managing in response to 

such invasions is necessary for the longterm viability of this species. 

Significant Portion of the Range 

Analysis 

Having determined that the Oregon 

chub is threatened throughout its range, 

we next considered whether it is in 

danger of extinction in any significant 

portions of its range. 

The Act defines an endangered 

species as one ‘‘in danger of extinction 

throughout all or a significant portion of 

its range,’’ and a threatened species as 

one ‘‘likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range.’’ The term ‘‘significant portion 

of its range’’ is not defined by statute. 

For purposes of this finding, a 

significant portion of a species’ range is 

an area that is important to the 

conservation of the species because it 

contributes meaningfully to the 

representation, resiliency, or 

redundancy of the species. The 

contribution must be at a level such that 

its loss would result in a decrease in the 

ability to conserve the species. 

The first step in determining whether 

a species is threatened or endangered in 

a significant portion of its range is to 

identify any portions of the range of the 

species that warrant further 

consideration. The range of a species 

can theoretically be divided into 

portions in an infinite number of ways. 

However, there is no purpose to 

analyzing portions of the range that are 

not reasonably likely to be significant 

and endangered. To identify only those 

portions that warrant further 

consideration, we determine whether 

there is substantial information 

indicating that: (1) The portions may be 

significant, and (2) the species may be 

in danger of extinction there. In 

practice, a key part of this analysis is 

whether the threats are geographically 

concentrated in some way. If the threats 

to the species are essentially uniform 

throughout its range, no portion 

warrants further consideration. 

Moreover, if any concentration of 

threats applies only to portions of the 

range that are unimportant to the 

conservation of the species, such 

portions will not warrant further 

consideration. 

If we identify any portions of a 

species’ range that warrant further 

consideration, we then determine 

whether in fact the species is threatened 

or endangered in any significant portion 

of its range. Depending on the biology 

of the species, its range, and the threats 

it faces, it may be more efficient in some 

cases for the Service to address the 

significance question first, and in others 

the status question first. Thus, if the 

Service determines that a portion of the 

range is not significant, the Service need 

not determine whether the species is 

threatened or endangered there. If the 

Service determines that the species is 

not threatened or endangered in a 

portion of its range, the Service need not 

determine if that portion is significant. 

If the Service determines that both a 

portion of the range of a species is 

significant and the species is threatened 

or endangered there, the Service will 

specify that portion of the range where 

the species is in danger of extinction 

pursuant to section 4(c)(1) of the Act. 

The terms ‘‘resiliency,’’ 

‘‘redundancy,’’ and ‘‘representation’’ are 

intended to be indicators of the 

conservation value of portions of the 

species’ range. Resiliency allows the 

species to recover from periodic 

disturbance. A species will likely be 

more resilient if large populations exist 

in high-quality habitat that is 

distributed throughout the range of the 

species in such a way as to capture the 

environmental variability within the 

range of the species. It is likely that the 

larger size of a population will help 

contribute to the viability of the species. 

Thus, a portion of the range of a species 

may make a meaningful contribution to 

the resiliency of the species if the area 

is relatively large and contains 

particularly high-quality habitat or if its 

location or characteristics make it less 

susceptible to certain threats than other 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 22879 

portions of the range. When evaluating 

whether or how a portion of the range 

contributes to resiliency of the species, 

it may help to evaluate the historical 

value of the portion and how frequently 

the portion is used by the species. In 

addition, the portion may contribute to 

resiliency for other reasons—for 

instance, it may contain an important 

concentration of certain types of habitat 

that are necessary for the species to 

carry out its life-history functions, such 

as breeding, feeding, migration, 

dispersal, or wintering. 

Redundancy of populations may be 

needed to provide a margin of safety for 

the species to withstand catastrophic 

events. This does not mean that any 

portion that provides redundancy is a 

significant portion of the range of a 

species. The idea is to conserve enough 

areas of the range such that random 

perturbations in the system act on only 

a few populations. Therefore, each area 

must be examined based on whether 

that area provides an increment of 

redundancy that is important to the 

conservation of the species. 

Adequate representation ensures that 

the species’ adaptive capabilities are 

conserved. Specifically, the portion 

should be evaluated to see how it 

contributes to the genetic diversity of 

the species. The loss of genetic diversity 

may substantially reduce the ability of 

the species to respond and adapt to 

future environmental changes. A 

peripheral population may contribute 

meaningfully to representation if there 

is evidence that it provides genetic 

diversity due to its location on the 

margin of the species’ habitat 

requirements. 

Applying the process described 

above, we evaluated the range of the 

Oregon chub to determine if any units 

could be considered a significant 

portion of its range. A case could be 

made that each of the three sub-basins 

discussed in the recovery plan 

(Mainstem Willamette River, Middle 

Fork Willamette, and Santiam River) 

(U.S. Fish and Wildlife Service 1998, 

pp. 27–28) are significant portions of the 

range of the Oregon chub. As discussed 

above, a portion of a species’ range is 

significant if it is part of the current 

range of the species and is important to 

the conservation of the species because 

it contributes meaningfully to the 

representation, resiliency, or 

redundancy of the species. The 

contribution must be at a level such that 

its loss would result in a decrease in the 

ability to conserve the species. Each of 

the three sub-basins clearly meets these 

criteria, as described in the recovery 

plan (U.S. Fish and Wildlife Service 

1998, pp. 27–28). 

Next we must determine if the threats 

to the Oregon chub are nonuniformly 

distributed, such that populations in 

any of the sub-basins experience a 

higher level of threat than populations 

in any other sub-basin. The primary 

remaining threats to the species are 

introduction of predatory nonnative 

fishes into chub ponds and water 

quality degradation. Extensive surveys 

of the Willamette Basin have found that 

predatory nonnative fishes are abundant 

and widespread in each of the subbasins (Scheerer 2007, p. 97). Threats to 

water quality, including chemical spills, 

agricultural runoff, and drought, are not 

restricted to any portion of the Oregon 

chub’s range, and are equally likely to 

occur in any of the three sub-basins. The 

threats associated with reduced genetic 

exchange among populations are not yet 

well understood; it seems likely, 

however, that the potential genetic 

consequences of management for 

isolated populations (e.g., inbreeding 

and genetic drift) could be experienced 

across the range of the species, since 

protection of isolated ponds is the 

management goal for populations in all 

three of the sub-basins. 

In summary, the primary threats to 

the Oregon chub are relatively uniform 

throughout the species’ range. We have 

determined that none of the existing or 

potential threats, either alone or in 

combination with others, currently 

place the Oregon chub in danger of 

extinction throughout all or a significant 

portion of its range. However, without 

the continued protections of the Act or 

long-term management agreements, the 

Oregon chub is likely to become 

endangered throughout its range in the 

foreseeable future. Threatened status is 

therefore appropriate for the Oregon 

chub throughout its entire range. 

Effects of This Rule 

If this proposed rule is made final, it 

would revise 50 CFR 17.11(h) to 

reclassify the Oregon chub from 

endangered to threatened on the List of 

Endangered and Threatened Wildlife. 

However, this reclassification does not 

significantly change the protection 

afforded this species under the Act. The 

regulatory protections of section 9 and 

section 7 of the Act (see Factor D, above) 

would remain in place. Anyone taking, 

attempting to take, or otherwise 

possessing Oregon chub, or parts 

thereof, in violation of section 9 is 

subject to a penalty under section 11 of 

the Act. Pursuant to section 7 of the Act, 

all Federal agencies must ensure that 

any actions they authorize, fund, or 

carry out are not likely to jeopardize the 

continued existence of the Oregon chub. 

Whenever a species is listed as 

threatened, the Act allows promulgation 

of special rules under section 4(d) that 

modify the standard protections for 

threatened species found under section 

9 of the Act and Service regulations at 

50 CFR 17.31 and 17.71, when it is 

deemed necessary and advisable to 

provide for the conservation of the 

species. There are no 4(d) rules in place 

or proposed for the Oregon chub, 

because there is currently no 

conservation need to do so for the 

species. This reclassification would 

have no effect on the current proposal 

to designate critical habitat for the 

Oregon chub. 

Peer Review 

In accordance with our policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and the 

Office of Management and Budget’s 

Final Information Quality Bulletin for 

Peer Review, dated December 16, 2004, 

we will seek the expert opinions of at 

least three appropriate and independent 

specialists regarding the science in this 

proposed rule. We will invite these peer 

reviewers to comment, during the 

public comment period, on the specific 

assumptions and conclusions regarding 

the proposed downlisting. We will 

consider all comments and information 

received during the comment period on 

this proposed rule during preparation of 

a final rulemaking. Accordingly, the 

final decision may differ from this 

proposal. 

Public Hearings 

Section 4(b)(5)(D) of the Act requires 

that we hold one public hearing on this 

proposal, if requested. Requests must be 

received within 45 days of the date of 

publication of the proposal in the 

Federal Register (see DATES). Such 

requests must be made in writing and be 

addressed to the Field Supervisor at the 

address in the FOR FURTHER INFORMATION

CONTACT section above. 

Clarity of This Proposed Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

22880 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Required Determinations 

Paperwork Reduction Act of 1995 

Office of Management and Budget 

(OMB) regulations at 5 CFR part 1320, 

which implement provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), require that Federal 

agencies obtain approval from OMB 

before collecting information from the 

public. This rule does not contain any 

new collections of information that 

require approval by OMB under the 

Paperwork Reduction Act. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We have determined we do not need 

to prepare an Environmental 

Assessment or an Environmental Impact 

Statement, as defined under the 

authority of the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.), in connection with regulations 

adopted pursuant to section 4(a) of the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). 

References Cited 

A complete list of all references cited 

herein is available upon request from 

the Oregon Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT). 

Author 

The primary authors of this document 

are Cat Brown and Doug Baus at the 

Oregon Fish and Wildlife Office in 

Portland, Oregon (see FOR FURTHER

INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, and 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we hereby propose to 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

2. Amend § 17.11(h) by revising the 

entry for ‘‘Chub, Oregon’’ under FISHES 

in the List of Endangered and 

Threatened Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate 

population 

where endangered 

or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Chub, Oregon ................... Oregonichthys crameri ..... U.S.A. (OR) ...................... Entire ...... T 520 NA NA 

* * * * * * * 

* * * * * Dated: May 8, 2009. 

Rowan W. Gould, 

Acting Director, Fish and Wildlife Service. 

[FR Doc. E9–11322 Filed 5–14–09; 8:45 am] 

BILLING CODE 4310–55–P