[Federal Register: September 26, 2005 (Volume 70, Number 185)]
[Rules and Regulations]
[Page 56211-56311]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se05-10]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife Plants; Designation of Critical
Habitat for the Bull Trout; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ12; 1018-AU31
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Bull Trout
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Klamath River, Columbia River, Jarbidge River,
Coastal-Puget Sound, and Saint Mary-Belly River populations of bull
trout (Salvelinus confluentus) in the coterminous United States
pursuant to the Endangered Species Act of 1973, as amended (Act). This
final designation totals approximately 3,828 miles (mi) (6,161
kilometers (km) of streams, 143,218 acres (ac) (57,958 hectares (ha) of
lakes in Idaho, Montana, Oregon, and Washington, and 985 mi (1,585 km)
of shoreline paralleling marine habitat in Washington. We solicited
data and comments from the public on all aspects of the proposed rules,
including data on economic and other impacts of the designations.
DATES: This rule becomes effective October 26, 2005.
ADDRESSES: Comments received, as well as supporting documentation used
in the preparation of this final rule, will be available for public
inspection, by appointment, during normal business hours, at the U.S.
Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th
Avenue, Portland, OR 97232. The final rule, economic analyses, and maps
are also available via the Internet at http://pacific.fws.gov/bulltrout/
.
FOR FURTHER INFORMATION CONTACT: Branch of Endangered Species (see
ADDRESSES section), telephone, facsimile 503/231-6237.
SUPPLEMENTARY INFORMATION:
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under ESA section 4(b)(2), there are significant limitations
on the regulatory effect of designation under ESA section 7(a)(2). In
brief, (1) designation provides additional protection to habitat only
where there is a federal nexus; (2) the protection is relevant only
when, in the absence of designation, destruction or adverse
modification of the critical habitat would in fact take place (in other
words, other statutory or regulatory protections, policies, or other
factors relevant to agency decision-making would not prevent the
destruction or adverse modification); and (3) designation of critical
habitat triggers the prohibition of destruction or adverse modification
of that habitat, but it does not require specific actions to restore or
improve habitat.
Currently, only 470 species, or 37 percent of the 1,264 listed
species in the U.S. under the jurisdiction of the Service, have
designated critical habitat. We address the habitat needs of all 1,264
listed species through conservation mechanisms such as listing, section
7 consultations, the Section 4 recovery planning process, the Section 9
protective prohibitions of unauthorized take, Section 6 funding to the
States, the Section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas originally proposed for
designation, we evaluated the benefits of designation in light of
Gifford Pinchot Task Force v. United States Fish and Wildlife Service.
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs. The consequence of the
critical habitat litigation activity is that limited listing funds are
used to defend active lawsuits, to respond to Notices of Intent (NOIs)
to sue relative to critical habitat, and to comply with the growing
number of adverse court orders. As a result, listing petition
responses, the Service's own proposals to list critically imperiled
species, and final listing determinations on existing proposals are all
significantly delayed. The accelerated schedules of court-ordered
designations have left the Service with limited ability to provide for
public participation or to ensure a defect-free rulemaking process
before making decisions on listing and critical habitat proposals, due
to the risks associated with noncompliance with judicially imposed
deadlines. This in turn fosters a second round of litigation in which
those who fear adverse impacts from critical habitat designations
challenge those designations. The cycle of litigation appears endless,
and is very expensive, thus diverting resources from conservation
actions that may provide relatively more benefit to imperiled species.
The costs resulting from the
[[Page 56213]]
designation include legal costs, the cost of preparation and
publication of the designation, the analysis of the economic effects
and the cost of requesting and responding to public comment, and in
some cases the costs of compliance with the National Environmental
Policy Act (NEPA). These costs, which are not required for many other
conservation actions, directly reduce the funds available for direct
and tangible conservation actions.
Background
Bull trout (Salvelinus confluentus) are members of the char
subgroup of the family Salmonidae and are native to waters of western
North America. Bull trout range throughout the Columbia River and Snake
River basins, extending east to headwater streams in Montana and Idaho,
into Canada, and in the Klamath River basin of south-central Oregon.
The distribution of populations, however, is scattered and patchy
(Goetz 1989; Rieman and McIntyre 1993; Zeller 1992; Light et al. 1996;
Quigley and Arbelbide 1997).
Bull trout exhibit a number of life-history strategies. Stream-
resident bull trout complete their entire life cycle in the tributary
streams where they spawn and rear. Most bull trout are migratory,
spawning in tributary streams where juvenile fish usually rear from 1
to 4 years before migrating to either a larger river (fluvial) or lake
(adfluvial) where they spend their adult life, returning to the
tributary stream to spawn (Fraley and Shepard 1989). Resident and
migratory forms may be found together, and either form can produce
resident or migratory offspring (Rieman and McIntyre 1993).
Bull trout, coastal cutthroat trout (Oncorhynchus clarki clarki),
Pacific salmon (Oncorhynchus spp.), and some other species are commonly
referred to as ``anadromous'' (fish that can migrate from saltwater to
freshwater to reproduce). However, bull trout, coastal cutthroat trout,
and some other species that enter the marine environment are more
properly termed ``amphidromous.'' Unlike strictly anadromous species,
such as Pacific salmon, amphidromous species often return seasonally to
fresh water as subadults, sometimes for several years, before returning
to spawn (Wilson 1997). The amphidromous life history form of bull
trout is unique to the Coastal-Puget Sound population. For additional
information on the biology of this life form, see our June 25, 2004,
proposed critical habitat designation for the Jarbidge River, Coastal-
Puget sound, and Saint Mary-Belly River populations of bull trout (69
FR 35767).
For additional information on population ranges, biology, and
habitat requirements of the bull trout, please refer to the following
published rules: Proposed critical habitat designation for the Jarbidge
River, Coastal-Puget Sound, and Saint Mary-Belly River populations (69
FR 35767, June 25, 2004; as corrected by 69 FR 43058, July 19, 2004);
final critical habitat designation (69 FR 59995, October 6, 2004) and
proposed critical habitat designation (67 FR 71235, November 29, 2002)
for the Klamath River and Columbia River populations; and listing rules
for the Klamath River and Columbia River populations (63 FR 31647, June
10, 1998), Jarbidge River population (64 FR 17110, April 8, 1999), and
for all populations (64 FR 58909, November 1, 1999).
Previous Federal Action
Please refer to the November 29, 2002, proposed critical habitat
designation for the Klamath River and Columbia River bull trout
populations (67 FR 71235) for a detailed summary of Federal actions
completed prior to publication of that proposal related to all bull
trout populations. Please refer to the October 6, 2004, final critical
habitat designation for the Klamath River and Columbia River bull trout
populations (69 FR 59995) for a detailed summary of Federal actions
completed between the proposed and final rules related to the Columbia
and Klamath populations. Please refer to the June 25, 2004, proposed
critical habitat designation for the Jarbidge, Coastal-Puget, and St.
Mary Belly bull trout populations (69 FR 35767) for a detailed summary
of previous Federal actions completed prior to publication of that
proposal related to those bull trout populations.
On December 14, 2004, Alliance for the Wild Rockies et al. filed a
complaint challenging the adequacy of the final critical habitat
designation for the Klamath River and Columbia River bull trout
populations. Our motion for partial voluntary remand was subsequently
granted by the court with a final rule due by September 15, 2005. On
May 25, 2005, we announced the opening of a public comment period on
the proposed and final designations of critical habitat for the Klamath
River and Columbia River bull trout populations (70 FR 29998). On June
6, 2005, we published a notice clarifying the reopening of the comment
period for the proposed and final designation of critical habitat for
the Klamath River and Columbia River bull trout populations (70 FR
32732). The comment period was open until June 24, 2005.
On May 3, 2005, we published a notice of the availability of the
draft economic analysis (DEA) and reopening of a 30-day comment period
until June 2, 2005 (70 FR 22835), for the Jarbidge River, Coastal-Puget
Sound, and Saint Mary-belly River populations of bull trout. On June
27, 2005, Judge Jones extended the deadline for designating critical
habitat for the Puget Sound-Coastal, Jarbidge, and St. Mary-Belly River
bull trout populations to September 15, 2005. This rule combines all of
the listed populations of bull trout into one final critical habitat
designation, and, in doing so, replaces the final critical habitat
designation for the Klamath River and Columbia River populations of
bull trout published in the Federal Register on October 6, 2004 (69 FR
59995).
Summary of Comments and Recommendations
Jarbidge River, Coastal-Puget Sound, and Saint Mary-belly River Bull
Trout Populations
We requested written comments from the public on the proposed
designation of critical habitat for the Jarbidge River, Coastal-Puget
Sound, and Saint Mary-belly River populations of bull trout in the
proposed rule published on June 25, 2004 (69 FR 35767). We also
contacted and invited the appropriate Federal, State, and local
agencies, scientific organizations, and other interested parties to
comment on the proposed rule. In addition, we held one public hearing
on August 10, 2004, in Tumwater, Washington.
During the comment period that opened on June 25, 2004, and closed
on August 24, 2004, we received 34 comment letters directly addressing
the proposed critical habitat designation: 8 from peer reviewers, 5
from Federal agencies, 3 from State agencies, 2 from County or city
agencies, 6 from tribes, and 10 from organizations or individuals.
During the reopened comment period (May 3, 2005 through June 2,
2005) (70 FR 228350), we received 16 comment letters directly
addressing the proposed critical habitat designation and DEA, 7 of
which were from organizations or individuals that submitted comments
during the first comment period. Of the 16 letters, we received 1 from
a peer reviewer, 2 from Federal agencies, 3 from State agencies, 3 from
county or city agencies, 1 from a tribe, and 6 from organizations or
individuals.
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Klamath River and Columbia River Bull Trout Populations
Responses to public and peer review comments on proposed critical
habitat for the Klamath River and Columbia River bull trout populations
(67 FR 71235, November 29, 2002) and the DEA (69 FR 17634, April 5,
2004) were published in the final designation of critical habitat (69
FR 59995, October 6, 2004). The following summary responds only to
those comments received during the reopened comment period period (May
3, 2005 through June 2, 2005) on the proposed and final rules for
critical habitat designation for the Klamath River and Columbia River
bull trout populations (70 FR 32732).
During the reopened comment period, we received 33 letters
addressing the final critical habitat designation and economic analysis
(EA). Of these letters, we received 7 from Federal agencies, 4 from
State agencies, 10 from local entities, 1 from a tribe, and 11 from
organizations or individuals.
All comments of a similar nature were grouped together for all
populations of bull trout and are addressed in the following summary.
Substantive comments have been incorporated into the final rule as
appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicit opinions from individuals who have expertise
with the species and the geographic region where the species occurs and
are familiar with conservation biology principles. The peer review
process for the Klamath and Columbia River bull trout populations was
discussed in the October 6, 2004, final critical habitat designation
for the Klamath River and Columbia River bull trout populations (69 FR
59995).
For the proposed critical habitat designation for Jarbidge River,
Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations,
we solicited independent expert review from eight individuals and all
responded. The peer reviewers generally concurred with our methods, but
also provided additional information, clarifications, and suggestions
to improve the final critical habitat rule. Key elements of the
reviewers' critical comments related to the proposal's scope and
whether existing laws and regulations already protect some areas.
Comments also addressed the need for greater prioritization of
conservation issues influencing critical habitat designation, emphasis
on quality habitat to support the migratory life form of bull trout,
and an explanation of why some particular habitat, including areas of
degraded habitat, are important to bull trout conservation.
Additionally, the reviewers provided many technical comments on the
appropriateness and bounds of specific geographic areas proposed as
critical habitat. Peer reviewer comments are addressed in the following
summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments for Jarbidge River, Coastal-Puget Sound, and
Saint Mary-Belly River Bull Trout Populations
When similar comments were also received from other reviewers, they
are addressed in the comments here to avoid redundancy.
(1) Comment: A peer reviewer requested clarification on the
difference between critical habitat subunits (CHSUs) and core areas
described in the bull trout draft recovery plans (draft Recovery Plans)
(Service 2002, 2004).
Our Response: In general, critical habitat subunits (CHSUs)
correspond to core areas identified in the draft Recovery Plans (http://www.fws.gov/pacific/bulltrout/
). However, the Olympic Peninsula and
Puget Sound Critical Habitat Units (Coastal-Puget Sound populations)
also contain nearshore and freshwater habitats outside of natal river
basins that are used by bull trout from more than one CHSU or core
area. These habitats outside of core areas contain all the physical
elements and features (primary constituent elements) critical to
overwintering, migration, and subadult and adult foraging needs
essential for the conservation of amphidromous (referring to the
migratory behavior of fishes moving from fresh water to the sea and
vice versa, not for breeding purposes but occurring regularly at some
stage of the life cycle, such as feeding or overwintering) bull trout,
which are unique to the Coastal-Puget Sound bull trout population.
Within the core areas, certain areas identified by the Service as
containing features essential for the conservation of the species, and
in need of special management or protection, are designated critical
habitat. Although core areas contribute to recovery and share primary
constituent elements (PCEs) with critical habitat, only those portions
of the core areas that meet the statutory definition of critical
habitat and provide defined PCEs are considered for designation.
(2) Comment: Since little of the Belly River is within the United
States, this core area is not a biologically functioning unit that
contains necessary features or PCEs.
Our Response: A short reach of the North Fork Belly River,
extending across the international border from Canada (downstream) into
the United States (upstream), is the only known spawning reach for bull
trout in the entire Belly River system. Thus, this portion of the North
Fork Belly River in the United States is vital as spawning and rearing
habitat for this bull trout population. It contains the PCEs necessary
for the spawning and rearing life stages (i.e., permanently flowing,
cold, upwelling groundwater with suitable spawning substrate and
complex rearing habitat). The foraging, migration, and overwintering
(FMO) habitat for this population is found downstream in Alberta,
Canada. This downstream habitat includes the PCEs found in a migratory
corridor, including deep holding pools and a forage base to support
large adult bull trout. Adult fish from Canada travel into the United
States portions of the watershed annually to spawn. Because of the
important spawning areas in the United States, and the presence of
necessary PCEs, we have determined that this area is essential to this
important biologically functioning unit and is designated critical
habitat.
(3) Comment: Although it may be consistent with section 4(b)(2) of
the Act to exclude Habitat Conservation Plans (HCPs) and the areas
covered by the Washington Forest Practice Rules, there are no
provisions in the rule to include these excluded lands within
designated critical habitat if land-use practices or ownership changes.
Our Response: Although the specific provisions vary for each plan,
HCPs typically include language that addresses change in circumstances
or ownership. For example the draft Implementing Agreement for the
Washington Department of Natural Resources, Forest Practices HCP states
that any changes in the permits must be adopted through the procedures
specified in the Act, other applicable Federal laws, and applicable
regulations and if the Service determines that such changes materially
impair the conservation plan contained in the HCP, they will notify the
State and, if the matter is not otherwise resolved, may suspend or
terminate the HCP, permits and the Implementing Agreement. If land
ownership changes and a new landowner does not agree to the terms and
conditions of the original permit, the original permittee must work
with the Services to determine whether, and under what circumstances,
the permit can be terminated. In order to terminate a permit, the
Services must determine if the minimization and mitigation
[[Page 56215]]
measures that were conducted up to that point were commensurate with
the amount of incidental take that occurred during the term of the
permit. The Services will always require implementation of any
outstanding minimization and mitigation measures before a permit is
terminated.
(4) Comment: Freshwater foraging, migratory, and overwintering
habitats outside core areas are not clearly essential to bull trout nor
well documented. Therefore, these areas should not be included in the
critical habitat designation.
Our Response: Some habitats outside of core areas contain all the
physical elements to meet critical overwintering, migration, and
subadult and adult foraging needs that are essential for the
conservation of amphidromous bull trout. Recent tagging studies on the
Olympic Peninsula and in Puget Sound have tracked the complex
migrations of amphidromous bull trout from their core areas to marine
and freshwater foraging, migratory, and overwintering habitats outside
of their natal core areas (Brenkman and Corbett 2003, 2005; Goetz et
al. 2004). Amphidromous bull trout have shown site fidelity to, and
extensive use of, freshwater and marine habitat areas, demonstrating
these are necessary in completing their life history and therefore, are
included as critical habitat.
(5) Comment: Reviewers acknowledged the exclusions the Service had
proposed for HCPs and the Washington Forest Practice Rules and
recommended considering other types of management plans and actions for
possible exclusions. They indicated that designation of critical
habitat would be a duplication of effort since Federal actions, such as
allotment management plans, already undergo formal consultation. One
reviewer wanted to know why waterbodies within some Federal lands, such
as wilderness, parks, and forests, were not excluded. Another reviewer
asked why multi-species conservation plans under development by local
watershed organizations in Washington were not excluded. Several
reviewers suggested lands covered by Washington State's watershed
planning process (subbasin plans), and lands in Olympic and North
Cascades National Parks are currently not in need of special
management.
Our Response: We believe some existing management plans are
appropriate for exclusion because the benefits of exclusion outweigh
the benefits of inclusion (see section ``Section 3(5)(A) and Exclusions
Under Section 4(b)(2)''). Landownership is not a factor in determining
which areas contain PCEs and meet the definition of critical habitat.
Some waterbodies on Federal lands meet the definition of critical
habitat. While we have done so in the past, in this rulemaking we did
not consider any pending HCPs for exclusion, primarily because none of
the pending HCPs were at a point we could do so without prejudging the
outcome of the ongoing HCP process and because we expect further
changes to the developing HCPs.
(6) Comment: One reviewer suggested that Corps of Engineers 401 and
404 permits should be excluded from critical habitat.
Our Response: Corps of Engineers 401 and 404 or other instream
permits are issued to ensure that applicants avoid and minimize impacts
to streams. Any mitigation that may be required by a permit is to avoid
or minimize degradation and to mitigate for unavoidable impacts.
(7) Comment: Are small stream habitats in the Saint Mary-Belly
River headwaters in the critical habitat designation contributing to
rearing and foraging of bull trout and are they adequately considered?
Our Response: Because of the steep topography, flashy stream flow
and very active erosion and depositional processes of the Saint Mary-
Belly River headwaters, very few smaller tributary streams support
adequate year-round stream flow to allow bull trout passage; in
addition, many have natural barriers. Most of those tributary streams
have been surveyed, and all those known to support bull trout were
considered and included in the final critical habitat designation.
(8) Comment: It would help to understand what the threats to bull
trout are and how threats relate to critical habitat designation.
Our Response: For details of the threats that were the basis for
the bull trout listing, refer to the final listing rules for the
Klamath River and Columbia River population (63 FR 31647), Jarbidge
River population (64 FR 17110), and Coastal-Puget Sound and Saint Mary-
Belly River populations (64 FR 58910). Critical habitat identifies
those areas that contain the physical and biological features (PCEs)
that are essential to the conservation of the species, and those areas
that may require special management considerations or protections.
Public Comments Related to Bull Trout Biology and Habitat; Process of
Designating Critical Habitat for the Bull Trout
(9) Comment: The proposed critical habitat for the bull trout fails
to account for the importance of habitat connectivity.
Our Response: The draft Recovery Plans, critical habitat proposal,
and the listing rules for bull trout, citing relevant scientific
literature, describe the species' conservation needs. In fact,
migratory corridors with minimal physical, biological, or water quality
impediments are identified as a PCE in the critical habitat rule. Our
proposed designation connected essential occupied waterbodies having
PCEs to one another to maintain connectivity within and among habitat
types (spawning and rearing, freshwater and marine foraging, migratory,
and overwintering habitats). In the final designation, we exclude some
critical habitat segments based on a careful balancing of the benefits
of inclusion versus the benefits of exclusion. Exclusion of waterbodies
from designated critical habitat does not negate or diminish their
importance for bull trout conservation, and in most cases does not
affect the protections available to that habitat through the Act.
(10) Comment: The status of bull trout strongly indicates that
critical habitat designation is warranted for all waterbodies occupied
by bull trout.
Our Response: Although all occupied habitats are important to the
species, not all meet the definition of critical habitat. Examples of
exclusions include reaches where bull trout are sometimes entrained and
lost to the population or highly fragmented habitats within core areas.
We believe that we have identified habitat that contains features
essential to the bull trout's conservation. In the final designation,
we exclude some critical habitat segments based on a careful balancing
of the benefits of inclusion versus the benefits of exclusion.
Exclusion of waterbodies from designated critical habitat does not
negate or diminish their importance for bull trout conservation.
(11) Comment: The Service should describe the relationship between
the reduced distribution of salmon and steelhead (Oncorhynchus sp.) and
the reduced distribution and abundance of bull trout.
Our Response: Our recovery plan and administrative record for
critical habitat designation, including public comment and peer review,
includes information about the relationship between bull trout and
their prey species, such as salmon and steelhead. Such information was
employed to support the biological basis of the proposal, but practical
considerations limited the amount of such information that could be
presented in the proposed critical habitat rule. Refer to the
previously
[[Page 56216]]
published bull trout critical habitat designations and listings (63 FR
31647, 64 FR 17109, 64 FR 58910, 68 FR 6863, 69 FR 35767, 69 FR 59995)
for additional information.
(12) Comment: The Service's position equating adverse modification
with jeopardy is not supported by the Act or case law. The Service
needs to define adverse modification.
Our Response: In response to recent court decisions, we are no
longer using the regulatory definition of adverse modification.
Instead, we are following guidance from the Director, embodied in a
December 9, 2004 memorandum, which uses the statute as the basis for
our regulatory standard when conducting section 7 consultations on
critical habitat. We do note in this rule that due to the method of
analyzing jeopardy specific to bull trout, that jeopardy and adverse
modification rarely diverge. However, that circumstance is due to the
specifics of our bull trout analyses rather than an interpretation of
regulations or law.
(13) Comment: The Service proposed to designate streams as critical
habitat that do not currently support bull trout or have little
evidence of bull trout use, with no justification for such designation
as to why these stream reaches are essential to the conservation of the
species, as required by the Act.
Our Response: All streams proposed for critical habitat designation
within the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly
River bull trout population segments were known to be occupied. We
considered streams occupied if bull trout were documented there within
the last 20 years (our 2004 critical habitat designation provides a
full explanation for the basis of this standard). Areas of unknown
occupancy and unoccupied habitats were included in the proposed
designation for the Klamath River and Columbia River populations.
However, in this final rule no unoccupied habitat is being designated.
The bull trout critical habitat designation is based on the best
available scientific information. In addition, the proposed
designations were peer-reviewed by individuals who have expertise with
bull trout, the geographic region where bull trout occur, and the
principles of conservation biology. Justifications for all critical
habitat units are available for public review (see ADDRESSES section
above).
(14) Comment: Critical habitat needs to be designated in unoccupied
areas because these areas are important for re-introduction of
extirpated populations or expansion of existing populations and are the
most important areas in need of protection.
Our Response: We have limited the critical habitat designation to
areas of known occupancy that have features essential to the
conservation of the species because we did not have sufficient data for
the Secretary to make a determination that specific unoccupied areas
were essential to the bull trout's conservation. We based this
designation on the best scientific and commercial information
available. Many streams not included in this designation can and will
contribute to bull trout recovery, but do not meet the definition of
critical habitat.
(15) Comment: The Service neglected or violated a variety of
regulatory or other requirements including NEPA, the Data Quality Act,
Regulatory Flexibility Act, and other laws, regulations, and orders.
Our Response: We are not required to prepare an environmental
assessment or an environmental impact statement, as defined under the
authority of NEPA, in connection with regulations adopted pursuant to
section 4(a) of the Act, and in States under the jurisdiction of the
Ninth Circuit Court. A notice outlining our reason for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244). This position has been upheld by the Ninth Circuit Court
of Appeals in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995).
We have addressed all the relevant required regulatory determinations
in this rule (see Required Determinations section below). Our Policy on
Information Standards Under the Endangered Species Act, published in
the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information
Quality Guidelines issued by the Service, provide criteria, establish
procedures, and provide guidance to ensure that our decisions are based
on the best scientific and commercial data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific and commercial data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat. All information in this critical habitat
rule is used in accordance with the provisions of Section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554; H.R. 5658) and the associated Information Quality
Guidelines issued by the Service. Both public and peer review of the
proposed rule further ensures that the final designation will meet this
standard.
(16) Comment: Stream temperature is a limiting factor for some
populations, and bankfull designation may not encompass sufficient
shading to maintain water temperatures for bull trout.
Our Response: We agree that temperature can be a limiting factor
for some populations which is why it is considered a PCE. Riparian
vegetation influences instream habitat conditions by providing shade,
organic matter, root strength, bank stability, and large woody debris
inputs to streams. Stream width and depth ratios also influence stream
temperatures. Even though riparian vegetation may not be within a
stream's bankfull width, and therefore not included in the critical
habitat designation, effects to these areas are likely to be evaluated
during the consultation process due to the indirect effect riparian and
upland actions may have on water temperatures, which is one of the
identified PCEs for bull trout critical habitat.
(17) Comment: The Service failed to consult with Native American
tribes in developing the proposed rule and economic analysis.
Our Response: We have been, and will continue, to consult with
those tribes affected by the critical habitat designation. We contacted
Native American tribes where proposed bull trout critical habitat
occurred on, or adjacent to, tribal lands. We discussed the critical
habitat proposal with representatives of the tribes that responded. We
will continue to work with the tribes on a government-to-government
basis for the conservation of bull trout.
(18) Comment: A single sighting of a native char (bull trout) in a
water body is not sufficient reason to designate the water as critical
habitat.
Our Response: We have not designated any unoccupied areas as
critical habitat. However, we included any area with documented
occupancy (even a single sighting) within the last 20 years, if the
area has PCEs essential to the species' conservation and will support
the essential life history needs of bull trout. The published survey
protocol for juvenile and resident bull trout was not developed until
2002, and no similar survey protocol for adult migratory bull trout has
been developed. Many bull trout sightings are the incidental result of
surveys for other species (salmon). In addition, bull trout are
difficult to find, are migratory, and often exhibit a patchy
distribution. Therefore, an incidental sighting of one
[[Page 56217]]
individual or a few bull trout is often the only available information
until a targeted survey for bull trout is conducted. With the
increasing availability of radio telemetry data, we are finding that
the extent or range of bull trout occupied habitat is often greater
than was previously known based on incidental observations.
(19) Comment: Specific numerical habitat standards for critical
habitat must be included along with critical habitat designations.
Our Response: There is no requirement under the Act that PCEs have
specific numerical standards, nor would it necessarily promote
effective conservation to determine numerical standards for all PCEs
given the various life histories expressed by bull trout throughout
their range. However, we recognize the value of observable or
measurable standards. The PCEs include numerical standards when
appropriate (e.g., to bracket a range of acceptable temperatures) and
feasible, such as for temperature and substrate embeddedness.
(20) Comment: The Service should designate critical habitat for a
number of ``source water'' streams. These are predominantly steep,
small streams not occupied by bull trout, but are key sources of cold,
clean water that feed bull trout habitat downstream.
Our Response: Streams that contribute necessary habitat elements
such as cold, clean water downstream to designated streams are not
included in this designation unless bull trout presence has been
documented. Our determination of bull trout critical habitat is limited
to areas that bull trout rely on for some portion of their life cycle.
Although not designated as critical habitat, we recognize that these
``source waters'' or non-fish-bearing streams influence the character
of designated stream segments located downstream. Where section 7
consultation is required, impacts to these ``source water'' streams
that may affect bull trout critical habitat will be evaluated (see
Critical Habitat Designation section below).
(21) Comment: The Service failed to include areas of historical
bull trout occupancy and the rules do not provide adequate
justification for their exclusion.
Our Response: The critical habitat proposals did not reflect all
habitat areas bull trout are known to occupy or occupied historically,
in the coterminous United States. Rather, it reflects those areas that
contain the necessary features that are essential for the conservation
of the species and are currently occupied by the species. Historical
records of bull trout distribution may be anecdotal and incomplete
relative to current bull trout distribution and thus, would not provide
a sufficient basis for this critical habitat rule. We believe by
defining as occupied those segments with at least one documented
sighting in the last 20 years we have used a sufficiently broad measure
to ensure the most likely occupied areas are included. This standard
takes into account the fact that bull trout are abnormally difficult to
find as they are primarily nocturnal feeders.
In our proposed critical habitat designation for the Jarbidge
River, Coastal-Puget Sound, and Saint Mary-Belly River population
segments, we specifically solicited additional information on areas of
habitat with evidence of occupancy of which we were unaware. These
waterbodies had been identified by the bull trout recovery teams as key
recovery habitat in the draft recovery plan, however, at that time they
had no specific information documenting bull trout occupancy. Since the
proposal, we have received additional information on bull trout
occupancy for several tributaries in the Nooksack River (Fossil Creek),
South Fork Skykomish River (West Fork Foss River), and Ross Lake (North
Fork Canyon Creek) systems, which have been excluded from the final
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2)
section below).
(22) Comment: The contribution of tribal lands to bull trout
habitat conservation is unclear and these lands are not essential to
bull trout recovery.
Our Response: The scientific information cited in the draft
Recovery Plans provided the basis for our evaluation of habitats that
contain the features essential to bull trout conservation. Many tribal
lands include portions of mainstem rivers that provide essential
migratory corridors and overwintering habitat for fluvial and
amphidromous bull trout. Waterbodies on tribal lands were included in
the critical habitat designation only if they were found to be
currently occupied, contain PCEs that are essential for bull trout
conservation, and were not adequately covered by management plans (see
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
(23) Comment: The proposed rule fails to mention water rights.
Our Response: The proposed and final rules do not specifically
address water rights. However, examples of activities that may
potentially affect aquatic bull trout critical habitat by altering the
PCEs, such as changes in water use or water rights were provided in the
proposed and final rules.
(24) Comment: The proposal to designate critical habitat in the
Saint Mary-Belly Rivers focuses on potential impacts of irrigation
activities instead of potential adverse effects of recreational fishing
on bull trout.
Our Response: Under the 4(d) rule that was included in the final
rule which listed bull trout, take of bull trout in accordance with
state, National Park Service, and Native American Tribal permitted
fishing activities is allowed (64 FR 58910). Irrigation activities are
often linked to Federal agencies, such as Bureau of Reclamation (BOR),
for the allocation, delivery or storage of the water. Individual
anglers, however, are only required to avoid take of listed bull trout
by following fishing regulations.
(25) Comment: There is no evidence to specifically identify when
marine or estuarine areas are being used by bull trout.
Our Response: Recent radio and acoustic telemetry studies in Grays
Harbor, Puget Sound, and the Snohomish, Dungeness, and Hoh Rivers have
provided new information on bull trout use of marine and estuarine
areas and the importance of this habitat for bull trout recovery
(Brenkman and Corbett 2003, 2005; Jeanes et al. 2003; Goetz et al.
2004). These studies documented that marine forage fish such as herring
(Clupea spp.), surf smelt (Hypomesus pretiosus), sand lance (Ammodytes
hexapterus), and shiner surfperch (Cymatogaster aggregate) are bull
trout prey. In addition, marine waters provide essential migratory
corridors for amphidromous bull trout moving from their natal river
basin to other rivers or streams as they seek suitable foraging or
overwintering habitat. We now know that large numbers of bull trout
overwinter in streams that do not contain spawning and rearing habitat
and are only accessible by migration through marine waters. Therefore,
we have included these marine nearshore areas that contain features
essential to bull trout conservation in this final designation.
(26) Comment: Adequate foraging habitat has not been included in
the designation.
Our Response: We believe this designation is based on the best
scientific and commercial information available. It includes only
occupied habitat, and contains those features that are essential to the
conservation of bull trout populations. We recognize that bull trout
may forage in areas where their presence has not been detected and
these areas may provide access to
[[Page 56218]]
abundant forage. However, because we were unable to identify all areas
that are used, we have limited designated critical habitat to areas of
known occupancy having the necessary PCEs and which were determined to
be essential for recovery. However, because of the relatively broad
definition of `occupied' used in this rule, it is likely that forage
habitat is included as well as breeding habitat and migratory
corridors.
(27) Comment: Floodplains are not mentioned in the proposed
designation. Does this mean they are not included?
Our Response: We have only included occupied aquatic habitats that
contain the features essential to the conservation of bull trout within
the designation. Federal activities occurring in floodplains may affect
designated critical habitat, and as such would be reviewed in section 7
consultation.
(28) Comment: Comments provided in the previous rule for the
Klamath River and Columbia River populations were not addressed.
Our Response: All substantive issues raised in comments received
during public comment period for the proposed rule received a response.
The response was to either accept or incorporate the issue raised, or
to provide a narrative response as to why we did not do so.
(29) Comment: Existing regulatory mechanisms are inadequate and
continuing threats to bull trout and its habitat from a variety of land
and water management activities warrant the designation of all habitat
essential to bull trout survival and recovery.
Our Response: We believe this designation is based on the best
scientific and commercial information available, includes only occupied
habitat, and contains those areas that contain the features essential
to the conservation of bull trout. Some areas we identified as
essential to the conservation of bull trout are not designated in the
final rule. This is due to the areas not meeting the definition of
critical habitat under section 3(5)(A) or exclusion under 4(b)(2).
Sections 3(5)(A) (definition of critical habitat) and 4(b)(2)
(Secretarial weighing of the benefits of inclusion versus the benefits
of exclusion) of the Act provide for specifc areas to be excluded from
critical habitat if they are otherwise provided needed protection (see
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
(30) Comment: The final rule is inadequate to recover bull trout
and the status quo is leading to declining populations in spite of
section 7 consultations, habitat conservation plans, and state
restoration plans.
Our Response: Recovery planning for bull trout is complex due, in
part, to its wide geographic distribution and multifaceted life
history. Recovery of the species will require a variety of efforts and
the cooperation of Federal, state, tribal, and other entities. Critical
habitat by itself will not recover the species, but does provide an
additional regulatory benefit for bull trout habitat where protection
and special management are necessary to ensure the habitat contributes
to the conservation of the species. While any one effort will not
recover bull trout, we believe that through the cooperative efforts of
all stakeholders, using a variety of conservation tools, bull trout can
reach the point of no longer needing the protections of the Act.
(31) Comment: We believe that the current attempt to solicit more
information on the critical habitat rule is unlawful.
Our Response: We disagree and believe that soliciting public
comment is essential to conserving any species.
(32) Comment: Why is the entire Columbia River mainstem (especially
the upper Columbia River) designated as critical habitat, what data
were used, and why did the Service use the draft recovery plan?
Our Response: This final rule does not include the entire Columbia
River mainstem. The bull trout is a wide ranging migratory species and
follows salmon, whitefish, and other prey species in the Columbia
River, marine waters and freshwater streams and rivers. Records of bull
trout distribution indicate their presence from the mouth of the
Columbia River to its uppermost reaches. Past monitoring efforts for
salmon rarely recorded bull trout in data collections because bull
trout were not the targeted species. In the upper Columbia River data
from multiple telemetry studies show the use by bull trout of the area
between Priest Rapids pool and the Okanogan River, and back into
multiple tributaries. Some bull trout that spawn in the upper Columbia
River basin use the mainstem for six months or more. We have excluded
some areas of the Columbia mainstem where the benefits of excluding
these areas outweigh the benefits of including them in the designation
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section
below). Sub-adults and adults that spawn in alternate years have been
documented using the Columbia River year-round. In reference to the use
of the draft recovery plan, the Service acknowledges there are data
gaps within the plan. The science used in the draft recovery plan was
the best available data for bull trout at that time and provided the
basis for proposing and designating critical habitat. In the process of
developing the proposed and final critical habitat designation,
additional data have become available, have been used in these rules,
and are available as part of our administrative record.
(33) Comment: All waters behind dams (reservoirs and pools) and
areas covered by habitat conservation plans do not require designation
due to existing management activities and should be excluded.
Our Response: We reviewed reservoir operations and habitat
conservation plans and carefully weighed the benefits of inclusion
versus the benefits of exclusion. Based on this analysis we are
excluding all reservoirs and pools that provide flood protection or
water supply benefit and we are also excluding habitat conservation
plans that adequately address bull trout conservation (see Section
3(5)(a) and Exclusions under Section 4(b)(2) section below).
(34) Comment: The final rule for Klamath River and Columbia River
populations needs clarification regarding the exclusion of 0.5 mile
segments on private land. The inclusion of these stream segments
appears to contradict the statement in the rule that exempts segments
of less than 0.5 miles on private land.
Our Response: The intent in the previous rule was to exclude those
stream segments that were less than 0.5 miles in length and under
private landownership. The definition was intended to apply only to
unbroken stream segments shorter than 0.5 miles in length, irrespective
of underlying landownership patterns. The Service is no longer
excluding areas of critical habitat on this basis, and all stream
segments regardless of length remain designated critical habitat.
Exclusion Comments
(35) Comment:Exclusions are arbitrary and benefit special interest
groups.
Our Response: All areas excluded are covered by management plans
that specifically address bull trout PCEs, or are being excluded based
on policy considerations. Exclusions were carefully reviewed and the
Secretary has made the determination that the benefits of excluding
these habitats outweighs the benefits of including them in the
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2)
section below).
(36) Comment: Comments were received to either exclude or to
include areas covered by HCPs.
[[Page 56219]]
Our Response: We determined that waterbodies within lands covered
under an existing or pending HCP should be excluded from the
designation of critical habitat where the benefits of excluding these
habitats covered by these management plans outweighs the benefits of
including them in the designation (see Section 3(5)(A) and Exclusions
Under Section 4(b)(2) section below).
(37) Comment: Comments were received to either exclude or to
include areas covered by the Washington Forest Practice Rules. Reasons
cited for including areas covered by the Washington Forest Practice
Rules were that the rules are not complete, the rules do not include
adequate standards, it has not been fully implemented, and the adaptive
management process is incomplete. A primary reason expressed for
excluding those lands was that this law protects aquatic habitat on
State and private land.
Our Response: Washington State law H.B. 2091, which codified the
Washington Forest Practice Rules, is a science-based plan that protects
water quality and fish habitat on over 8 million acres (3.2 million ha)
of non-Federal forestland throughout Washington State. Implementing
these regulations is expected to maintain the thermal regimes of
streams within the range of normal variation, contribute to the
maintenance of complex stream channels, maintain appropriate
substrates, natural hydrograph, ground-water sources and subsurface
connectivity, migratory corridors, and provide abundant food sources
for bull trout. Because the benefits of excluding the streams covered
by the Washington Forest Practice Rules outweigh the benefits of
including them, we have excluded stream segments protected by these
regulations. See Washington State Forest Practices Rules and
Regulations, as amended by the Forest and Fish Law (FFR) under the
Lands to be Excluded from Critical Habitat under section 4(b)(2) of
this final rule for further discussion on FFR.
(38) Comment: We believe the current Forest Service Land and
Resource Management Plans (LRMP) as amended by the Northwest Forest
Plan, PACFISH, and/or INFISH aquatic conservation strategies provide
the necessary protection and special management that would eliminate
the need to designate these areas as critical habitat. In addition, the
designation would provide little additional benefit as described under
Section 4(b)(2) of the Act.
Our Response: We agree. These areas have been excluded from the
final critical habitat designation (see Section 3(5)(A) and Exclusions
Under Section 4(b)(2) section below).
(39) Comment: Areas covered by the Oregon Forest Practices Act
(OFPA) and the Oregon Plan for Salmon and Watersheds (OR Plan) should
be excluded.
Our Response: The OFPA includes provisions that generally limit
clear cut size, require retention of green trees within harvest units
for stream shading and downed wood for recruitment into riparian areas,
and require replanting after harvest. However, the OFPA has no
provisions that specifically address any of the PCEs for bull trout or
for ensuring their conservation or protection. The OR Plan serves as a
general salmon conservation planning guide and encourages close
coordination among the agencies responsible for salmon conservation.
Both the OFPA and OR Plan are well intentioned and provide
encouragements and some benefits to aquatic habitats in areas where
they apply. However, we were unable to determine that the OFPA or the
OR Plan provide adequate conservation or protection of bull trout or
their PCEs. Therefore, the areas covered by the OFPA or OR Plan do not
warrant exclusion based on special protections or management.
(40) Comment: The Montana Bull Trout Plan should not be used as the
basis for excluding lands from critical habitat. It is a voluntary plan
without tracking, reporting, or funding certainty, and it provides no
protections against detrimental groundwater or surface water
extraction. Implementation has been slow or nonexistent, the list of
recommended immediate conservation actions were not acted upon or
incorporated into the Plan.
Our Response: We have reviewed the plan and determined it does not
provide special management protections to the same extent a critical
habitat designation would. Therefore, we are not using the Montana Bull
Trout Plan as a basis for excluding lands from critical habitat.
(41) Comment: No critical habitat should be designated on military
lands for national security concerns or those that have Integrated
Natural Resource Plans.
Our Response: Pursuant to section 4(a)(3)(B)(i) of the Act, the
Service has not included critical habitat on military installations
that have an Integrated Natural Resource Plan (INRMP) that provide
benefits to the bull trout. Pursuant to section 4(b)(2) of the Act, we
have excluded other military lands based on national security concerns
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section
below).
(42) Comment: Reservoirs should be included as critical habitat.
Our Response: In many places reservoirs provide important foraging
and overwintering habitat for bull trout and contain the features
essential to the conservation of the bull trout. However, under 4(b)(2)
of the Act, the Secretary has discretion to exclude any area from
critical habitat if she determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless she determines, based on the best scientific and
commercial data available, that the failure to designate such area as
critical habitat will result in the extinction of the species. The
Secretary carefully weighed the benefits of inclusion versus the
benefits of exclusion regarding reservoirs (see Section 3(5)(A) and
Exclusions under Section 4(b)(2) section below) and found that, for
those reservoirs that provide a flood control or water for human
consumption function, the benefits of exclusion outweighed the benefits
of inclusion.
(43) Comment: All tribal reservation lands should be excluded from
critical habitat designation.
Our Response: In accordance with the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and
512 DM 2, we coordinate with federally-recognized tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) provides that critical habitat
should not be designated in an area that may impact tribal trust
resources unless it is determined to be essential to the conservation
of a listed species and that Tribes be given deference when evaluating
conservation management planning.
Accordingly, we are obligated to consult with tribes based on their
unique relationship with the Federal government, and to evaluate the
appropriateness of designating tribal lands within the framework of the
above mentioned directives. In addition, we evaluate tribes' past and
ongoing efforts for species conservation and the benefits of including
or excluding tribal lands in the designation under section 4(b)(2). We
contacted all tribes potentially affected by the proposed designations
and met with a number of these tribes to discuss their ongoing or
future management strategies for bull trout. Several tribes
subsequently submitted letters requesting exclusions from the
designation based on their ongoing
[[Page 56220]]
management and conservation efforts, or their commitment to develop an
appropriate management plan, on their lands. We excluded those tribal
lands where there was a commitment to conserve bull trout habitat and
where the benefits of exclusion where found to outweigh the benefits of
inclusion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act section below).
(44) Comment: The Service ignores court decisions and required
components of the Act when it states that areas can be excluded based
on economic impacts, national security, management plans, and the
preservation of partnerships (see Center for Biological Diversity v.
Norton (2003)).
Our Response: Section 4(b)(2) of the Act allows us to consider the
economic impact, national security impact, and any other relevant
impact of designating any particular area as critical habitat. An area
may be excluded from critical habitat if it is determined that the
benefits of exclusion outweigh the benefits of designating a particular
area as critical habitat, unless the failure to designate such an area
as critical habitat will result in the extinction of the species. In
addition, the congressional record is clear that the consideration and
weight given to any impact is completely within the Secretary's
discretion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2)
section below).
(45) Comment: Does excluding habitat covered by HCPs also exclude
covered activities on lands the applicant does not own or manage? For
example, studies are occurring on lands not owned by the City of
Seattle but required by the terms of the approved HCP.
Our Response: Areas excluded due to the existence of an approved
HCP only include those areas directly covered by the HCP. Areas outside
the HCP e.g., City of Seattle, remain designated critical habitat
unless excluded for some other reason.
Comments Related to the Economic Analysis
(46) Comment: The Service neglected to conduct an economic analysis
(EA) for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly
River bull trout populations, contrary to the Act's requirements.
Our Response: The Service did conduct an economic analysis for the
Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull
trout populations. We informed the public in the proposed rule that we
would be conducting an analysis of the economic impacts of designating
the proposed areas as critical habitat prior to making a final
determination. We announced the availability of the DEA with a notice
in the Federal Register (May 3, 2005, 70 FR 22835) that reopened the
public comment period on the DEA and the proposed rule at that time.
Reopening the comment period allowed the public to concurrently review
and comment on both the DEA and the proposed critical habitat
designation. We subsequently provided this same information when
replying to electronic mail (e-mail) messages and telephone calls, and
during the public hearing held in Washington.
(47) Comment: The costs of critical habitat outweigh the benefits
of designation and all costs associated with critical habitat should be
included in the analysis.
Our Response: This final rule excludes areas where the benefits of
excluding critical habitat have been determined to exceed the benefit
of including these areas in the designation under provisions of section
4(b)(2). The economic analysis (EA) considers the economic efficiency
effects that may result from the designation, including habitat
protections that may be coextensive with the listing of the species. It
also addresses distribution of impacts, including an assessment of the
potential effects on small entities and the energy industry. The
analysis focuses on quantifying the direct and indirect costs of the
rule although economic impacts to land-use activities may exist in the
absence of designating critical habitat. For example, economic impacts
may result from local zoning laws, state and natural resource laws, and
enforceable management plans and best management practices applied by
other state and Federal agencies. The information in the EA can be used
by the Secretary when taking into consideration the economic impact,
and any other relevant impact of specifying any particular area as
critical habitat.
(48) Comment: Costs associated with the operations of agencies such
as the Bureau of Reclamation (BOR) to deliver water belonging to
irrigation districts must be taken into consideration. The impact of
attempting to alter pre-existing legal requirements, and the
constraints those legal rights have on designating critical habitat,
must be considered before a final decision can be made.
Our Response: Potential costs associated with the designation of
bull trout critical habitat, including those related to BOR water
management, are addressed through the economic analysis. We received
additional information regarding the possible under-or over-estimate of
costs related to regulation of water and power generation due to the
designation. Where appropriate, this information was used by the
Secretary in making determinations under section 4(b)(2) of the Act.
(49) Comment: In the economic analysis, the Service did not account
for the many economic benefits that the designation of critical habitat
for bull trout provides.
Our Response: In the context of a critical habitat designation, the
primary purpose of the rulemaking (i.e., the direct benefit) is to
designate areas that contain the features essential to the conservation
of listed species and that may require special management or
protections. While the Act is clear that it is the policy of the
Federal government to provide a means whereby the ecosystems upon which
endangered and threatened species depend are conserved, it is also
clear that Congress provided several methods for achieving this policy
and critical habitat designation is just one of the methods. The Act
states that this policy is to be achieved through cooperation with
states through the resolution of water resource issues in concert with
conservation. Finally, the Act provides the flexibility for the
Secretary to exclude portions of critical habitat based on the
consideration of economics, national security, or any other relevant
impact if the Secretary determines that the benefit of exclusion
exceeds the benefits of inclusion, as long as that exclusion does not
result in the extinction of the species.
The designation of critical habitat may result in two distinct
categories of benefits to society: (1) Measurable or economic benefits
and (2) intangible benefits. The economic analysis generally captures
the measurable benefits (such as increased tourism or recreational
expenditures) by quantifying them in terms of dollars. The less
tangible social benefits that accrue from the physical existence of a
resource are more difficult to capture. Non-use benefits, in contrast,
represent benefits that individuals perceive from ``just knowing'' that
a particular listed species'' natural habitat is being specially
managed for the survival and recovery of that species. This benefit is
virtually impossible to quantify as there is no market transaction to
use as a measurement for such a benefit.
The economic analysis captures those benefits that can be
quantified and provides information regarding the economic costs
associated with a proposed critical habitat designation.
[[Page 56221]]
The economic analysis is used by the Secretary in making decisions
under section 4(b)(2) of the Act based on economic impacts. Economic
impacts can be both positive and negative and, by definition, are
observable through market transactions.
In our designations we recognize that critical habitat may also
generate ancillary benefits which can be both negative and positive.
That is, management actions undertaken to conserve a species or habitat
as a result of designation may have coincident implications to a
place's quality of living. For example, fewer consumptive activities
(e.g., timber harvesting or cattle grazing) may affect some
individuals' enjoyment of an area. While they are not the primary
purpose of critical habitat, these ancillary effects which are
perceived as benefits may result in gains in non-economic benefits that
may offset the direct, negative impacts to a region's economy resulting
from actions to conserve a species or its habitat. Conversely, for
those formerly dependent on the timber industry or grazing for their
livelihood, they may find that significantly reduced employment
opportunities which represent reduction in benefits.
It is often difficult to evaluate the ancillary benefits of a
critical habitat designation. Where data are available, this analysis
attempts to recognize and measure the net economic impact of the
proposed designation. For example, if the fencing of a species' habitat
to restrict motor vehicles results in an increase in the number of
individuals visiting the site for wildlife viewing, then the analysis
would recognize the potential for a positive economic impact and
attempt to quantify the effect (e.g., impacts that would be associated
with an increase in tourism spending by wildlife viewers). Conversely,
if the critical habitat designation will result in increased fishing
and hiking opportunities, that benefit would be reflected in economic
benefits from tourism and related industries. What is not measurable in
other than qualitative terms are such benefits as increased quality-of-
life values for some and decreased quality-of-life for others (e.g.,
lower employment due to family wage jobs supported by industrial timber
harvesting being replaced by service jobs in the recreation industry).
While section 4(b)(2) of the Act gives the Secretary discretion to
exclude certain areas from the final designation, she is authorized to
do so only if an exclusion does not result in the extinction of the
species. Thus, we believe that explicit consideration of broader social
values for the species and its habitat, beyond economic impacts, is
evidenced by the designation itself that protects areas for the
conservation of the species despite costs associated with that
designation. In other words, the Secretary begins a designation based
on an assumption that the benefit of designation outweighs the benefit
of exclusion and only excludes where an explicit determination is made
that the benefit of exclusion, in fact, does outweigh the benefit of
inclusion.
(50) Comment: The DEA for the Jarbidge River, Coastal-Puget Sound,
and Saint Mary-Belly River bull trout populations must evaluate impacts
of bull trout critical habitat designation on the tribes' trust
resources to be consistent with trust responsibilities.
Our Response: The DEA for the Jarbidge River, Coastal-Puget Sound,
and Saint Mary-Belly River bull trout populations evaluates the impacts
of this designation on tribal trust resources. Refer to section 3.1.4
in the DEA for further discussion on impacts of the bull trout critical
habitat designation on the tribes' trust resources.
(51) Comment: The Service needs to address habitat and economic
concerns in Canada, as well since a critical habitat designation may
affect waters that flow into Canada.
Our Response: We state on page 35771 of the critical habitat
proposed rule for the Jarbidge River, Coastal-Puget Sound, and Saint
Mary-Belly River bull trout populations that, ``The inter-
jurisdictional nature of the Saint Mary River and Belly River
watersheds is unique in the bull trout's range and makes international
coordination especially critical.'' However, we cannot propose to
establish critical habitat in other countries or address economic
concerns of critical habitat in other countries.
(52) Comment: The BOR requires water users to pay for all
maintenance and operational and mitigation costs associated with the
Milk River irrigation system in Montana, so it is the irrigators not
the BOR that must avoid adverse modification.
Our Response: Section 7(a)(2) of the Act requires Federal agencies
to ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Through this consultation, the action agency
ensures that its actions do not destroy or adversely modify critical
habitat. The Service consults with the Federal agencies (in this case
BOR) not private individuals. Private individuals may, however, have an
identified role in the consultation if they are ``applicants'' as
defined in section 7.
(53) Comment: The BOR indicated that bypass facilities at the Saint
Mary Diversion dam should be included among the costs attributable to
bull trout (not included in the DEA), at an estimate of $128,000 (in
2002 dollars). In addition, there are costs associated with the
Sherburne Dam rehabilitation, and BOR estimates those costs to be
$700,000 (in 2004 dollars).
Our Response: The DEA acknowledged that elements of the Saint Mary
Diversion fish entrainment and bypass costs and modifications to
Sherburne Dam, located upriver of the Saint Mary Diversion, may be
necessary. However, the specific elements or their costs for these
components were not available at the time they were requested from BOR,
and only preliminary estimates were provided in the DEA (see page 239).
We have incorporated new information on these costs into the final
economic analysis and our final critical habitat designation. Based on
the costs provided in BOR's comment, updated to current dollars, the
inclusion of bypass facility costs on the Saint Mary Diversion and the
portion of Sherburne Dam rehabilitation attributable to bull trout
would increase the total prospective costs by $830,900 and the total
annualized cost by $78,400 in the Saint Mary-Belly River region.
(54) Comment: BOR noted that fish screens to reduce entrainment on
the Saint Mary Diversion would likely not be installed were it not for
the bull trout listing, and that the costs in the DEA were
underestimated. BOR estimates the cost to be $4,270,000 for an 850
cubic feet/second (cfs) canal.
Our Response: BOR's project modification estimates for the
rehabilitation of the Saint Mary Diversion were addressed in the DEA
(page 239). However, specific costs for fish screens associated with
the modification options were not available when we requested the
information from BOR, and other sources of information were instead
used in the DEA for estimating those costs. We appreciate receiving the
estimate of cost that was provided in the comment. A decision has not
yet been made about whether to proceed with the rehabilitation as
planned, or when, or the size of the rehabilitated canal. Assuming that
the rehabilitation is completed in 5 years, and based on the cost for
fish screens provided by BOR
[[Page 56222]]
for an 850 cfs canal (updated to current dollars), the prospective cost
attributable to bull trout would increase by $3,024,800 in the Saint
Mary-Belly River region from that presented in the DEA. The total
annualized cost would increase by $285,500.
(55) Comment: Monitoring riparian areas will occur in areas where
there is no grazing. If grazing is unlikely to affect bull trout, why
are costs involved?
Our Response: Monitoring livestock grazing that may affect the
conservation status of sensitive species is a requirement of INFISH in
eastern Oregon and Washington, Idaho, western Montana, and portions of
Nevada. INFISH was developed as an amendment to U.S. Forest Service
(USFS) land and resource management plans and Bureau of Land Management
(BLM) resource management plans. The monitoring responsibility would be
in effect even in the absence of the designation of critical habitat
for bull trout. Costs were included in the economic analysis as they
are related to the conservation of bull trout.
(56) Comment: The impacts in the economic analysis are
overestimated because it does not differentiate between the impacts of
the listing and impacts of critical habitat designation. This method of
estimating costs unfairly attributes too large a percentage of costs to
critical habitat.
Our Response: The economic analysis is intended to assist the
Secretary in determining whether the benefits of excluding particular
areas from the designation outweigh the biological benefits of
including those areas in the designation. Also, this information allows
us to comply with direction from the U.S. 10th Circuit Court of Appeals
that ``co-extensive'' effects should be included in the economic
analysis to inform decision-makers regarding which areas to designate
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish
and Wildlife Service (248 F.3d 1277)).
This analysis identifies those potential activities believed to be
most likely to threaten the bull trout and its habitat and, where
possible, quantifies the economic impact to avoid, mitigate, or
compensate for such threats within the boundaries of the critical
habitat designation. Where critical habitat is being proposed after a
species is listed, some future impacts may be unavoidable, regardless
of the final designation and exclusions under section 4(b)(2). However,
due to the difficulty in making a credible distinction between listing
and critical habitat effects within critical habitat boundaries, this
analysis considers all future conservation-related impacts to be co-
extensive with the designation.
(57) Comment: The economic analysis overestimates impacts of
critical habitat designation by not differentiating between impacts
attributable to bull trout conservation verses salmon conservation.
Our Response: There are several salmonid species that are listed as
threatened or are candidates for listing under the Act whose ranges
overlap the critical habitat designation of bull trout. Conservation
activities designed to protect bull trout may provide coincident
protection to salmon. Conversely, conservation activities designed
specifically for salmon may provide protection for bull trout. In
assigning costs for fish-related conservation activities in watersheds
supporting previously listed salmon species and bull trout, we assume
in the analysis that the economic effect of fish-related conservation
measures is attributed co-extensively to both species. Therefore, where
a conservation activity provides indivisible benefits to both salmon
and bull trout, the cost of the activity is apportioned to both
species. In areas where proposed critical habitat for bull trout does
not overlap the range of other listed species, the costs are assigned
solely to bull trout conservation activities. Co-extensive effects may
also include impacts associated with overlapping protective measures of
other Federal, State, and local laws that aid habitat conservation in
the areas proposed for designation. We note that in past instances,
some of these measures have been precipitated by the listing of the
species. Because habitat conservation efforts affording protection to a
listed species likely contribute to the efficacy of the critical
habitat designation efforts, the impacts of these actions are
considered relevant for understanding the full effect of the proposed
designation. Enforcement actions taken in response to violations of the
Act, however, are not included.
(58) Comment: Critical habitat creates undue economic hardship on
private land owners.
Our Response: Private landowners are only required to consult with
the Service if their action has a Federal nexus and if the action is
likely to affect bull trout or its critical habitat.
(59) Comment: By designating less area as critical habitat, the
costs are disproportionately high for the areas included in critical
habitat.
Our Response: Excluding areas does not increase the costs on those
areas left within the designation. The costs associated with the
designation are the section 7 administrative costs of preparing a
biological assessment and the potential costs associated with
implementing a Reasonable and Prudent Alternative (RPA) if we find that
an action is likely to destroy or adversely modify critical habitat.
Given that we are only designating critical habitat in occupied areas,
where an action agency would need to consult on any adverse effects to
bull trout, and given our framework for conducting section 7
consultations on bull trout and bull trout critical habitat, we
anticipate that most projects that would result in destruction or
adverse modification of critical habitat would also constitute jeopardy
to the species. Thus, any costs associated with conducting
consultations or implementing an RPA would be present with or without
the critical habitat designation, and would not be correlated with the
size of the designation.
(60) Comment: The EA does not address impacts/costs to the Klamath
Lake BOR project or to Agency Lake Ranch.
Our Response: BOR staff were contacted and consulted on the
likelihood of projects requiring section 7 consultation, as described
in Section 4.2.4 for the final EA. When contacted, BOR staff in Klamath
Falls stated that no significant consultation activity concerning bull
trout was anticipated. As a result, the analysis assumes impacts are
not reasonably foreseeable for a BOR project on Agency Lake Ranch.
(61) Comment: Specific cost information related to fencing, well
installation, maintenance, grass filter strip installation was not
accurate in the EA. The comment letter provided specific costs on a per
acre basis.
Our Response: The DEA (Section 4.2.2, page 4-9 and Section 4.2.7,
page 4-72) estimates the number of grazing-related consultations likely
to take place in the future and then multiplies the consultations by
per consultation estimates of fencing, monitoring, and water
requirement costs. Whether the per acre costs presented in the comment
fall within the range of per consultation costs estimated in the DEA is
difficult to determine. The estimate in the DEA is drawn from a sample
of historical consultations.
(62) Comment: The EA underestimated costs in the upper Deschutes
River basin because 95 percent of crops depend on irrigation.
Our Response: The Upper Deschutes basin is currently unoccupied by
the species. For effects to irrigated agriculture to occur, the Service
would first have to reintroduce bull trout to this basin, consult with
BOR on the
[[Page 56223]]
operation of the reservoir, and recommend reasonable and prudent
measures that would reduce the available irrigation water. As discussed
on page 4-28 of the report, this sequence of events is not reasonably
foreseeable.
(63) Comment: Comments made on the DEA for the Columbia/Klamath
Rivers populations were not incorporated into the final EA.
Our Response: We believe that the Final Economic Analysis
adequately addresses all the comments provided during the public
comment period that are consistent with the framework for the analysis
described in Section 1.3 of the report. Specifically, impacts to
families and small entities are addressed in Section 4.3; costs to
irrigators, cities, industries, and other water users are addressed in
Section 4.2; costs to hydropower customers are discussed in Section
4.4.2; potential costs to recreational users are discussed in Section
3.3.6; costs associated with flood damages are addressed in Section
4.2.4; costs associated with water quality changes are addressed in
paragraphs 16 and 211; costs due to regulatory uncertainty are captured
in Section 4; values of potential lost irrigation water supplies are
discussed in paragraphs 494 through 499; and employment and secondary
impacts are discussed in paragraph 274.
(64) Comment: The EA cited the existence of irrigated agricultural
diversions and the need for fish screening of those diversions to
prevent bull trout entrainment, however the EA did not extrapolate out
screening costs. The EA acknowledged that fish screening costs are
substantial, ranging between $2,000 and $5,000 per cfs the structure
can divert.
Our Response: The Service agrees that irrigators incur costs
associated with fish screens. However, as described in footnote 110 of
the FEA, ``* * * installation of diversion fish screen[s] is a baseline
regulation within Idaho, Oregon, and Washington. That is, screens on
agricultural diversions are already required under Idaho Code 36-
906(b).'' Because fish screens are required in Idaho, Oregon and
Washington in the absence of the Endangered Species Act (ESA), these
costs are not included in this analysis.
(65) Comment: The economic impact to Baker County and the
Regulatory Flexibility Act was ignored in the DEA and final EA.
Our Response: In accordance with the Regulatory Flexibility Act,
the Final Economic Analysis includes a quantitative screening analysis
(see Section 4.3) that the Service used as the basis for its
certification that a substantial number of small agricultural entities
will not be significantly impacted by the proposed designation. Impacts
to small farmers resulting from curtailed irrigation diversions are
discussed specifically in Section 4.3.2.
(66) Comment: The costs for fish passage and habitat restoration
are associated with compliance of Sections 4(e) and 18 of the FPA. The
costs for fish passage and restoration of habitat address the recovery
of other native salmonids found in the aquatic system, such as
westslope cutthroat trout and mountain whitefish. The cost for total
dissolved gas abatement is associated with compliance with the Clean
Water Act under the 401 Water Quality Certification and Section 4(e) of
the FPA. It is not clear what the final terms of the relicensing of the
Box Canyon Project will be. The project modifications and costs are not
due to bull trout Section 7 consultation as no biological opinion (BO)
has been done. It is unclear why Box Canyon Project was picked for a
discussion of detailed project modification costs since this project
has no modification costs related to Section 7 consultation or the
designation of critical habitat.
Our Response: FERC relicensing costs are discussed in Section 4.2.6
in the Final Economic Analysis (paragraphs 416-452). Estimates of
project modification costs for the FERC Environmental Impact Statement
(EIS) on Box Canyon are summarized in paragraph 452 as an example of
the uncertainty surrounding the estimate of FERC-related costs. The
discussion is consistent with this view that passage modifications are
not attributable to section 7 bull trout consultations.
(67) Comment: The EA's estimate of conservation costs of $570 per
acre for Dungeness Irrigation District is artificially low. The costs
for revision or addition of fish passage facilities at those federal
dams would be passed on to irrigation contractors through the United
States Bureau of Reclamation.
Our Response: Following the framework described in on pages 1-11
and 1-12, the FEA considers the costs of proposed or reasonably
foreseeable HCPs. In Section 4.1.2, the FEA identifies two HCPs that
were currently under development at the writing of the analysis, and
projects the costs of future based on the historical costs of
developing these plans. HCPs are not reasonably foreseeable in the
irrigation districts providing comment. However, the FEA accounts for
HCP costs at unspecified locations for the 10-year time period of the
analysis (see paragraph 359).
Unit Specific Comments
Unit 1: Klamath River Basin
(68) Comment: No critical habitat in Agency Lake was requested
because of limited to no occurrences or use by bull trout.
Our Response: Historically, bull trout are known to have been
distributed in several streams along the west side of Agency Lake
(Cherry Creek, Threemile Creek, and Sevenmile Creek) and in the Wood
River system (Sun, Annie, and Fort Creeks). Given the proximity of
habitat and local populations and the predatory and migratory nature of
the species, it is likely that bull trout utilized Agency Lake, at
least seasonally, as feeding, migrating, and overwintering habitat,
however, we are not able to document bull trout use in the last 20
years and have not included Agency Lake in this designation.
Unit 4: Willamette River Basin
See Comments from States (Oregon) section below.
Unit 6: Deschutes River Basin
(69) Comment: The Service properly chose not to designate the
Crooked River as critical habitat because it is unoccupied and was not
essential to the conservation of the species, that designation could
also cause harm to ongoing conservation efforts, and that the benefits
of excluding this area outweigh the benefits of including it.
Our Response: We have limited the critical habitat designation to
areas of known occupancy (defined by documented occurrence within the
last 20 years) that have features essential to the conservation of the
species because we did not have sufficient data for the Secretary to
make a determination that specific unoccupied areas were essential to
the bull trout's conservation. We have determined that the
approximately 14 mile-long section of the Crooked River downstream of
the Highway 97 bridge to the Opal Springs Dam is occupied and contains
many of the features essential to the conservation of the bull trout.
The volume of cold water spring flows that enter the Crooked River
downstream of the Highway 97 bridge crossing decreases stream
temperatures enough to make this section of the Crooked River suitable
for foraging bull trout even during the summer months. The additional
habitat in the Crooked River also allows bull trout in Lake Billy
Chinook to forage.
(70) Comment: There are many plans in the Deschutes River basin
that provide special management and protections for bull trout (list of
plans provided).
[[Page 56224]]
Our Response: The Service has reviewed information regarding
numerous plans in the Deschutes River basin including the Middle
Deschutes/Lower Crooked River Wild and Scenic Management Plan, the
Lower Deschutes River Wild and Scenic River Management plans, the
Aquatic Conservation Strategy of the Northwest Forest Plan, PACFISH,
INFISH, and the Deschutes River Subbasin Plan. For each plan we
assessed the protections of the plan as compared with the protections
of critical habitat and weighed the benefits of inclusion versus the
benefits of exclusion. For those plans where the benefits of exclusion
outweighed the benefits of designating critical habitat we excluded
those lands from the final designation (see Section 3(5)(A) and
Exclusions Under Section 4(b)(2) section below).
Unit 8: John Day River Basin
(71) Comment: Critical habitat should be removed on the mainstem
John Day River below 4,500 ft elevation because the mainstem John Day
River below this elevation does not have the appropriate water
temperatures for bull trout.
Our Response: The Service acknowledges that the current
distribution of bull trout in the John Day River basin is fragmented
and that water temperature is a limiting factor in the lower portion of
the river outside of peak runoff periods (late winter and spring). Bull
trout distribution occurs primarily in the headwaters of the Upper
Mainstem, North Fork and Middle Fork John Day River tributaries, with
seasonal use of the entire North Fork John Day River. However, in 2000,
the Oregon Department of Fish and Wildlife captured eleven subadult
bull trout in the mainstem John Day River near the town of Spray,
Oregon (1,802 ft elevation), while seining for juvenile Chinook salmon.
Two of the fish were implanted with radio-tags and both were
subsequently tracked into the North Fork John Day River. This suggests
that subadult migrations do seasonally occur within lower river
segments of the Upper Mainstem, North Fork, and Middle Fork John Day
River. Within the John Day Subbasin, historic bull trout distribution
likely included seasonal use of the entire mainstem and larger
tributaries. Bull trout from the John Day Subbasin were known to
migrate to and from the Columbia River (Buchanan et al. 1997).
Historical records indicate presence of bull trout in Dads Creek, Dixie
Creek, Pine Creek, Canyon Creek, Laycock Creek, and Beech Creek
(Buchanan et al. 1997) all below 1,800 ft in elevation. The lower
segments of the John Day Basin currently have many PCEs, including
permanent water with low levels of contaminants, stream temperatures
from 36[deg] to 59[deg] F (2[deg] to 15[deg] C), complex stream
channels, and an abundant food base. Lower segments of the John Day
River are typically suitable for bull trout use during peak runoff
periods in late winter and spring when water temperatures range from
36[deg] to 59[deg] F (2[deg] to 15[deg] C). During those periods, these
streams contain the necessary features essential to the conservation of
the bull trout because they serve as migratory corridors that connect
local populations in the basin. Such connections are particularly
critical in the John Day River Basin because the existing local
populations are small and highly vulnerable to localized extirpation.
The most viable way to avoid extinction in these areas is to maintain
seasonal habitat connections so that the movement of fish between them
can sustain or periodically re-establish these small populations. We
recognize the apparent difficulty in designating critical habitat where
the presence of the PCEs is sporadic. To avoid future
misinterpretations of the effect of this designation where PCEs occur
as a result of current ongoing federal management, we have included
that management in the baseline for future section 7 consultations.
Unit 9: Umatilla/Walla Walla River Basin
(72) Comment: There are many examples of additional special
management and protections governing habitat utilized by bull trout on
BLM-managed lands including the South Fork of the Walla Walla River
ACEC, which is an amendment to the Resource Management Plan (RMP) for
the Baker Resource Area of the Vale District. The amended plan was
signed in February 1992, creating an ACEC of 1,273 acres within the
South Fork of the Walla Walla River watershed. The river provides high
quality spawning and rearing habitat for bull trout. The decision
included: (1) No surface occupancy stipulation for oil and gas leasing;
(2) prohibition against development of mineral resources within the
ACEC boundary unless needed on an emergency basis to protect ACEC
values; (3) prohibition against issuance of grazing leases; (4) no fire
salvage will occur unless it meets the goal of ACEC management; and (5)
reduction by 99% of the permitted amount of timber removed on the 120
acres of commercial timberland economically operable within the ACEC.
Our Response: We agree that the designation in 1992 of the South
Fork Walla Walla River as an Area of Critical Environmental Concern
added habitat protections that benefit bull trout. The ACEC management
actions in the plan amendment, particularly the livestock grazing
restrictions and measures to limit and control recreational motor
vehicle traffic along the river, are actions that have improved bull
trout habitat along the approximately two miles of river that cross BLM
land. As a result we have determined this lads do not meet the
definition of ``in need of special management or protection'' in order
to be designated as critical habitat.
Unit 10: Grande Ronde River Basin
(73) Comment: Wright Slough (Grande Ronde River Basin) has been
designated as critical habitat and should not have been. It now has
restrictions on it that are impacting agricultural use of the land.
Our Response: Wright Slough, a tributary of the Grande Ronde River,
was not designated as critical habitat for bull trout in the previous
final rule and is not being designated in this rule. The mainstem
Grande Ronde River immediately above and below where Wright Slough
enters the river is designated as bull trout critical habitat. The
State of Oregon has designated Wright Slough as ``essential salmonid
habitat'', which may have been confused with bull trout critical
habitat. Critical habitat does not create a preserve and does not, by
itself, place restrictions on agricultural land use. If, through
section 7 consultation, a proposed Federal action was found to destroy
or adversely modify critical habitat, then a reasonable and prudent
alternative may result in restrictions on agricultural use. We have not
issued any adverse modification biological opinions on bull trout
critical habitat and therefore have not imposed any restrictions on
agricultural use of lands in Wright Slough through designation of
critical habitat.
(74) Comment: It is not appropriate to designate critical habitat
in the Powder River Basin in areas located below 4,500 ft elevation to
prevent extinction of bull trout because these low elevation streams do
not have appropriate water temperatures.
Our Response: We acknowledge that temperatures in the lower
portions of the Powder River Basin are likely only suitable for bull
trout use during peak runoff periods in late winter and spring. During
these times, lower elevation areas contain the features that are
essential to bull trout conservation. These areas are important because
they
[[Page 56225]]
serve as migratory corridors that connect local populations in the
basin. Such connections are particularly critical in the Powder Basin
because the existing local populations are small and highly vulnerable
to localized extirpation. The most viable way to avoid extirpation in
these areas is to maintain seasonal habitat connections so that the
movement of fish between them can sustain or periodically re-establish
these small populations. We have also indicated that current federal
management is included in the baseline so as to ensure that existing
PCEs--in this case migrating corridors are maintained without implying
that other PCEs are present or require special management or
protections.
(75) Comment: The previously designated stream segments in the
Powder River Basin below the Wallowa-Whitman National Forest boundary
are not essential for conservation of bull trout, because: (1) The
presence of brook trout downstream of most known bull trout populations
and the large number of existing physical barriers in low-elevation
stream sections preclude genetic exchange between local populations and
attempts to provide connectivity will result in increased
hybridization; (2) given the physical and biological barriers, it would
be advisable to keep resident bull trout populations in the upper
tributaries to prevent brook trout hybridization; (3) the listed
segments lack almost all of the identified PCEs and, in fact, dry up or
go subsurface for much of the year; and (4) with the single exception
of Big Muddy Creek, all observations of bull trout have been above the
National Forest boundary, thus the stream sections below the boundary
are unoccupied.
Our Response: It is true that many of the Powder River tributaries
contain impediments to bull trout movement, particularly those that
flow through the Baker Valley, where the stream channels and stream
flows have been altered for many years to support agricultural
production. We also concur that brook trout hybridization is a problem
in this area. Nevertheless, the designated tributary streams are deemed
essential for bull trout conservation for the following reasons: (1)
These streams are occupied and contain PCEs; (2) given the small size
of the local populations, which appear to be currently confined to
upper elevation headwaters, it is highly unlikely that they will
persist in isolation, thus the long-term viability of this core area is
dependent on the ability of bull trout to move between populations; and
(3) the impediments to seasonal fish movement in these streams are
mostly human-caused and could feasibly be corrected. The lower reaches
of these streams can function as effective movement corridors even if
only during high runoff periods; their designation as critical habitat
does not imply that they need to be maintained as suitable habitat
year-round. Therefore, we have designated critical habitat in these
areas. In addition our inclusion of present operations in the baseline
is designed to recognize the particular contributions of the area to
bull trout conservation without overstating them.
(76) Comment: We believe that fish survey data from the Powder
River Basin has been misused because: (1) No accepted, scientific
protocol was used for many of the surveys; (2) some of the fish counts
were erroneous and contained inaccurate information; (3) some purported
sightings and inferences about habitat use were not supported by
scientific data; (4) credible evidence provided by local citizens,
indicating that bull trout were introduced in the early 1900s into
upper tributaries of the Powder River, was ignored or disregarded.
Our Response: It is our intent to use only accurate information
about species' occurrences when identifying critical habitat. To
address the concerns that were raised about data from the Powder River
Basin, we conducted a review of all the survey data and anecdotal
information we have received on bull trout locations in this area. The
sources and documentation associated with these data have been re-
checked and verified to the extent possible. Some of the bull trout
sighting information comes from informal surveys that did not follow
standardized survey protocols because surveys were done before formal
survey protocols existed and in other situations ``spot check'' type
surveys were done because the resource agency lacked sufficient
resources to conduct more rigorous surveys. It would not be appropriate
to disregard positive sightings just because the survey method was
informal. The key credibility factor is the fish identification skills
of the person making the observation. Also of major importance is the
type of observation (i.e., was the fish in hand or just seen swimming
by).
In our review of existing data, we excluded from consideration
sightings that did not meet the following two criteria: (1) The
sighting was made by a biologist or technician that was trained and
experienced in bull trout identification, and (2) the identification
was made based on close examination of a fish in hand. We cannot verify
the assertion that bull trout were introduced by man to the upper
Powder River Basin and thus are not native to the area. We are not
ignoring or disregarding the reports that suggest bull trout may have
been planted in some streams in the Elkhorn Mountains in the early
1900s. It is just not possible to verify those reports or to conclude
from them that bull trout did not exist in the area prior to those
introductions. Documented information on the historic distribution of
bull trout in other nearby Snake River tributaries is compelling
evidence that they are likely native inhabitants of the Powder River.
(77) Comment: Data on reported bull trout sightings in Rock Creek
and Pine Creek are not scientifically valid.
Our Response: A bull trout/brook trout hybrid was reported in
surveys of Rock Creek conducted by ODFW in 1994. Tissue samples were
not collected so positive identification of this fish as a hybrid or
pure bull or brook trout is not possible. Follow-up surveys conducted
by the USFS did not detect any bull trout in Rock Creek, but surveyors
did not search the upper portions of Rock Creek and North Fork Rock
Creek, nor did they search about 0.7 mile of creek below Eilertson
Meadow. Reaching the conclusion that bull trout are absent from this
creek will require regular, repeated surveys using the same protocol.
Bull trout have been observed, by professional fish biologists, in Pine
Creek and Salmon Creek. Memoranda from Mark Lacy in 1995 (a BLM Fish
Biologist at the time) and Jackie Dougan (then a USFS Fish Biologist)
to Jeff Zakel (ODFW) provide information on bull trout sightings in
these drainages in 1994-1995. Therefore, we have designated critical
habitat in these areas.
(78) Comment: Special management considerations are already
provided through the Powder Basin Subbasin Plan and the Powder/Brownlee
Agricultural Water Quality Management Area Plan.
Our Response: We have conducted a thorough analysis of the Powder
Basin Subbasin Plan and the Powder/Brownlee Agricultural Water Quality
Management Area Plan to determine if the benefits of excluding areas
covered by these plans from critical habitat outweigh the benefits of
including them. We have determined that this plan does not provide a
direct conservation benefit to bull trout or any certainty that it will
be implemented. Therefore, we have not used these plans as a basis for
exclusion.
[[Page 56226]]
Unit 13: Malheur River Basin
(79) Comment: Do not exclude the Malheur Basin because the Forest
Service has not fully implemented INFISH and has failed to effectively
modify and suspend its authorized grazing practices required under
INFISH. The matrix of pathways and indicators included in the Forest
Service 1999 biological assessment documented ratings of
``functioning'' and fail to meet standards. The grazing program on the
Malheur National Forest is maintaining degraded baseline conditions
according to a 2004 Service biological opinion. In addition, grazing
effects on the Malheur River are likely to restrict bull trout range
expansion or at least slow recovery efforts substantially. Information
provided by the U.S. Forest Service did document maintenance of a
degraded condition for certain indicators. The Forest Service rated
grazing allotments as maintaining the current conditions with the
expectation that they would meet the requirement of a near natural rate
of recovery if the allotments were grazed according to standards. This
and other information provided by the Forest Service helped form the
basis for the Service's biological opinions referenced by the
commenter. The Service has expressed concerns in the past with grazing
effects to bull trout on the Malheur National Forest and is working
closely with the Forest Service to help decrease impacts to bull trout
and their habitats due to grazing activities.
Response: The Malheur National Forest recently completed its 2004
grazing monitoring report which provided information and summaries/
explanations of data analyzed, collected, or submitted during the 2004
field season. The Forest Service also provided documentation to satisfy
the reasonable and prudent measures contained in the Service's 2004
biological opinions by summarizing information collected in 2004. The
Forest Service recommends potential management strategies for the 2005
Annual Operating Instructions that are consistent with PACFISH and
INFISH. A critical habitat designation will not result in improvement
of the conditions in the areas designated in and of itself. Critical
habitat designation can only prevent erosion of the baseline levels of
the PCEs. Forest Service management under INFISH actually takes
positive steps to improve conditions in the aquatic habitat. The Forest
Service expects that these strategies will move riparian and stream
conditions towards desired conditions. The Service will continue to
work with the Forest Service, and assist them in development and
implementation of appropriate and effective monitoring strategies. In
addition, we have determined that the Malheur National Forest
management plan as currently implemented provides at least the same
special management and protection as a critical habitat designation and
goes beyond what a critical habitat designation provides by enhancing
and restoring habitat. We have determined under Forest Service
management that the Malheur National Forest does not meet the
definition of critical habitat in 3(5)(a) and we have excluded the
Malheur National Forest from critical habitat because the benefits of
excluding areas covered under PACFISH and INFISH outweighed the
benefits of inclusion (see Section 3(5)(A) and Exclusions Under Section
4(b)(2) section below).
Unit 16: Salmon River Basin
(80) Comment: Not all bull trout habitat in the Salmon River basin
should be critical habitat.
Our Response: Not all bull trout habitat in the Salmon River basin
has been proposed or designated as critical habitat. Numerous streams
were not proposed for designation for any, or a combination of, the
following reasons: (1) Bull trout are not known to be present; (2) the
habitat has low or no potential for bull trout occupation (low
elevation, inherently warm water, not historically occupied, etc.); (3)
the habitat does not currently contain, or have the potential to
contain, one or more PCEs; and (4) the habitat was deemed not necessary
to meet draft recovery plan objectives (i.e., non-essential potential
populations).
Of those streams that were proposed as critical habitat, not all
were designated. Areas covered under PACFISH, INFISH, and the Snake
River Basin Adjudication were excluded (see Section 3(5)(A) and
Exclusions Under Section 4(b)(2) section below).
(81) Comment: Salmon River bull trout are very healthy and not at
risk.
Our Response: While it is true that Salmon River bull trout
populations are relatively healthy, they are located in areas that
contain the features essential to the conservation of bull trout. Areas
that are already adequately protected by other management plans, and
where the benefits of excluding areas from critical habitat outweigh
the benefits of inclusion, exclusions have been applied (see Section
3(5)(A) and Exclusions Under Section 4(b)(2) section below).
(82) Comment: Bull trout are rare in Jordan Creek of the Upper
Salmon River and critical habitat should not be designated there.
Our Response: We did not exclude areas based on rarity of bull
trout. The 2002 critical habitat proposal included stream segments
known to be occupied. In our analyses of the species for the draft
recovery plan and proposed critical habitat for bull trout, we
determined that it is necessary to maintain as many currently occupied
areas as possible to facilitate recovery of the species. Jordan Creek
supports a local population of bull trout. It is likely that the local
population occurring in Jordan Creek was historically, and is
currently, supported by migratory bull trout from the Yankee Fork and
larger streams, although monitoring has not yet observed this life
history strategy. Lower Jordan Creek is important for providing
connectivity between the bull trout local population above the mine and
larger area of overwintering habitat below. Local populations not
connected by migratory fish are believed to be at a substantially
greater risk of extirpation.
Unit 17: Southwest Idaho River Basins
(83) Comment: Exclude Boise, Payette, and Weiser river basins for
economic and social reasons in addition to exclusions based on the
Snake River Basin Adjudication plan.
Our Response: In our 2002 proposed critical habitat rule we
proposed approximately 2,792 km (1,735 mi) of streams in the Boise,
Payette, and Weiser river basins. The economic analysis did not
identify costs justifying an economic exclusion with the Snake River
basin. Section 4(b)(2) of the Act allows us to consider the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. Therefore, the
Secretary of Interior has excluded the area covered by the Snake River
Basin Adjudication plan based on collaborative partnerships that have
resulted in a settlement agreement benefiting bull trout conservation
and where the benefits of excluding these areas outweigh the benefits
of including them in the designation (Exclusions Under Section 4(b)(2)
section below). The Secretary received inadequate information to make a
determination that the economic and social benefits of exclusion
outweighed the benefits of the designation.
(84) Comment: Many areas in Southwest Idaho do not have sufficient
PCEs.
Our Response: The 2002 proposed critical habitat rule was developed
based on the best available information at that time. In order for a
stream to be proposed as critical habitat, it must have sufficient PCEs
to sustain at least one
[[Page 56227]]
essential life process of the species. However, a stream did not have
to contain all PCEs to be proposed as critical habitat. In fact, many
streams in southwest Idaho do not have all of the PCEs, but do have
sufficient PCEs for bull trout to meet this standard. Streams that did
not contain the necessary habitat for bull trout (e.g., including one
or more primary constituent elements), and streams inherently incapable
of becoming bull trout habitat were not proposed for designation. Those
streams that were included will have existing conditions included in
the baseline for future section 7 consultations.
Unit 19: Lower Columbia River Basin
(85) Comment: Describe the validity of Cougar Creek, a tributary to
Yale Reservoir in the Lewis River critical habitat sub-unit (CHSU), as
part of the critical habitat designation.
Our Response: The Settlement Agreement Concerning the Relicensing
of the Lewis River Lewis River Hydroelectric Projects (Agreement)
includes a perpetual conservation easement on PacifiCorp's lands in the
Cougar/Panamaker Creek area. The measures included in the conservation
easement and the settlement agreement provide a high level of
conservation benefit to the bull trout PCEs in Cougar Creek. We have
determined that lands covered under conservation easements and the
Agreement should be excluded from the designation of critical habitat
because the benefits of excluding them outweigh the benefits to the
species by including them in the designation. Please refer to our
discussion concerning the exclusion of Lewis River Hydroelectric
Projects Conservation Easements in the Section 3(5)(a) and Exclusions
under Section 4(b)(2) of the Act section below.
(86) Comment: Rush Creek in the Lewis River CHSU should be included
in critical habitat even though it is covered by the Northwest Forest
Plan.
Our Response: All National Forest lands covered by the Aquatic
Conservation Strategy of the Northwest Forest Plan have been excluded
from the final designation because the Secretary determined that the
lands did not meet the definition of critical habitat and the benefits
of exclusion outweighed the benefits of inclusion (see Section 3(5)(A)
and Exclusions Under Section 4(b)(2) section below).
Unit 21: Upper Columbia River
(87) Comment: Special management activities within Priest Rapids
project should be excluded.
Our Response: The Service has considered the special management
activities within the Priest Rapids project area for this rule.
Currently there is no biological opinion for bull trout or a settlement
agreement in place addressing the PCEs for bull trout for the Priest
Rapids Dam project area, and the PCEs for bull trout are not addressed
by any other current management activities. The NOAA Fisheries
biological opinion only covers salmon species. Although some habitat
characteristics are similar for salmon species and bull trout, the PCEs
have several differences. The Service Interim Guidelines for bull trout
list some of these differences, which include the following: Fish
passage and performance measures for salmon are not the same as they
are for bull trout; bull trout exist year round in the area and are
more closely associated with stream substrates; and, they also require
a prey base year round. However, since the area does contain PCEs under
current ongoing management, that management will be considered part of
the baseline in future section 7 consultations.
(88) Comment: Additional consultation requirements for critical
habitat negatively affect Grant County by increasing workload.
Our Response: Because all areas in this designation are considered
occupied, section 7 consultation for the bull trout would be required
in all cases where consultation on bull trout critical habitat would be
required. The Service has data documenting bull trout occurrence
throughout many areas of the mainstem Columbia River, particularly
between Priest Rapids pool and the Okanogan River. Fish from the Upper
Columbia River Recovery Unit have been documented using this area to
fulfill critical elements of their life cycle. A review of the amount
of work associated with the incremental costs of completing
consultations on bull trout critical habitat revealed that it was
relatively minor.
(89) Comment: Wells, Rocky Reach, Rock Island, and Comprehensive
Bull Trout Monitoring and Management Plans (WBTMP, RRBTMP, RIBTMP,
CBTMP), as well as the Anadromous Fish Agreement, Rocky Reach, Rock
Island, and Douglas PUD Wells Hydro Project HCPs provide needed
benefits to bull trout and their PCEs and should be excluded from
critical habitat.
Our Response: The Service has considered these plans in our
evaluation of critical habitat. The biological opinion and
comprehensive BTMPS do not fully cover all PCEs nor do they address all
recovery tasks or issues for bull trout in the upper mid-Columbia area.
The BTMPs are limited to the requirements of the biological opinion and
it is unclear if other PCEs will be addressed. The specific studies are
designed to be implemented with specific timeframes which generally
will be implemented every 10 years through the life of the plan (50
years). The goals of the Protection, Mitigation, and Enhancement
measures in the BTMPs are to identify, develop, and implement measures
to monitor and address ongoing impacts to bull trout resulting from
project operations. The BTMPs incorporate ``Reasonable and Prudent
Measures'' which are required by the Service Biological Opinion for the
Rock Island, Rocky Reach, and Wells hydroelectric project operation.
These measures will address the ``complex stream channels (PCE
3) and ``migratory corridors'' (PCE 7) for bull
trout. The Service biological opinion states that other PCE's are
expected to be maintained or enhanced, but at this time it is unclear
where or when any of the habitat restoration projects for the tributary
enhancement provisions will occur. Therefore, we do not believe that
these plans are an appropriate basis for exclusion.
Unit 22: Northeast Washington
(90) Comment: The critical habitat designation is inconsistent with
the inclusion of Box Canyon Reservoir.
Our Response: The Service acknowledges that the reservoir exclusion
in the previous final rule was not applied consistently. In this final
rule we are excluding all reservoirs that provide a flood control,
water supply function, or energy generation. Although the Box Canyon
Reservoir does not meet this criteria, it is being excluded because it
is within the Federal Columbia River Power System (FCRPS) action area
(see Section 3(5)(a) and Exclusions under Section 4(b)(2) section
below).
(91) Comment: The Service needs to add the proposed critical
habitat areas of the Northeast Washington Unit back in the designation.
Our Response: We have evaluated which areas meet the definition of
critical habitat for bull trout and excluded areas where we have
determined that the benefits of excluding those areas outweigh the
benefits of including them as critical habitat (see Section 3(5)(A) and
Exclusions Under Section 4(b)(2) section below).
Unit 26: Jarbidge River
(92) Comment: Maintaining connectivity is important for the
Jarbidge River population and it is not
[[Page 56228]]
clear if connectivity is included in the PCEs for this population.
Our Response: We agree that migratory corridors are important and
provide connectivity among local populations and access between
spawning, overwintering, and foraging habitats within the Jarbidge
River population area. The Jarbidge River bull trout population has
been isolated from other bull trout populations by dams and diversion
structures for over 100 years (Gilbert and Evermann 1894). The distance
between occupied habitats in the Jarbidge River and Columbia River
populations is approximately 150 river miles (rmi) (240 river
kilometers (rkm)). Critical habitat was not proposed for these areas of
unknown bull trout occupancy.
(93) Comment: Salmon Falls Creek, Idaho should be designated as
critical habitat for the Jarbidge River bull trout population.
Our Response: Salmon Falls Creek is not occupied by bull trout, and
therefore under the Act, it cannot be designated as critical habitat
unless it is essential for the conservation of the species. Salmon
Falls Creek is a tributary to the Snake River in Idaho. It historically
provided spawning and rearing habitat for anadromous fish, including
Chinook salmon (Oncorhynchus tshawytscha) and steelhead. Since Salmon
Falls Creek Dam was constructed in 1910, the lower 30 mi (48 km) of the
stream have been significantly altered by upstream reservoir storage
and water diversions. Migration barriers, water diversions, high water
temperatures, sedimentation, and nonnative fish introductions are
likely contributing factors to the loss of anadromous fish species in
this watershed. This watershed is outside the boundary of the
geographical area occupied by the Jarbidge River bull trout population,
and bull trout from the listed Jarbidge River population do not have
access to Salmon Falls Creek due to a number of intervening dams and
diversion structures. Due to poor bull trout habitat quality and
inaccessibility it is not essential for the conservation of the
Jarbidge River population, and is not included in the designation.
(94) Comment: Buck Creek, a tributary to the West Fork of the
Jarbidge River, should be added to critical habitat designated for the
Jarbidge River population because it is similar to adjacent known
occupied bull trout streams and could support multiple life history
requirements of bull trout.
Our Response: Bull trout have not been documented in Buck Creek or
its tributaries during infrequent surveys (G. Johnson, Nevada
Department of Wildlife, in litt 1993a, b; G. Johnson, NDOW, pers. comm.
2003). We are currently unable to determine that Buck Creek is
essential to the conservation of the species based on its undocumented
use by bull trout and potentially disconnected reaches of suitable
habitat. Because we cannot be certain that this habitat would ever be
occupied by bull trout, the Secretary could not make a determination
that is essential to the conservation of the species, and thus did not
designate it as critical habitat.
(95) Comment: Critical habitat should include the entire hydrologic
watershed for the East/West Forks of Jarbidge River, Jarbidge River,
and Bruneau River.
Our Response: We acknowledged in the proposed rule that upstream
habitat, as well as adjacent terrestrial habitat, can influence the
quality of aquatic habitat downstream. Although the East and West Forks
of the Jarbidge River, as well as the mainstem river, are occupied bull
trout habitats containing features essential to the conservation of the
species we have excluded these areas from the designation after
carefully weighing the benefits of inclusion versus the benefits of
exclusion (see Section 3(5)(a) and Exclusions under Section 4(b)(2)
section below).
Although the Bruneau River has been identified as bull trout
habitat in some publications (Conley 1993; Lee et al. 1997), there are
no records documenting bull trout use. Bull trout may have migrated
from the Snake River through the lower Bruneau River and into the
Jarbidge River for spawning, similar to Chinook salmon. Bull trout from
the Jarbidge River have access to the Bruneau River, and we support
implementing research to detect seasonal use of the Bruneau River by
bull trout. Research could clarify the importance of the habitat to
potential numbers of large migratory bull trout if the Jarbidge River
population expands.
Unit 27: Olympic Peninsula
(96) Comment: The Quinault River consists of surface water from
Lake Quinault and thus has an unsuitable temperature profile for bull
trout. It is also part of the Quinault Indian Nation lands; therefore,
it should not be designated as critical habitat.
Our Response: Temperatures in the Quinault River are influenced by
temperatures in Lake Quinault, and during certain times of the year
those temperatures likely exceed optimum temperatures for bull trout.
Temperatures are naturally warm in the summer in the Quinault River
below Lake Quinault. Bull trout have been documented in tributaries to
the lower Quinault River and in the river itself. Water temperatures in
the river change in response to the season (colder in winter, warmer in
summer). Bull trout seasonally use the river when temperatures are
cooler. Also, the river contains a prey base for the bull trout. We do
not expect the water temperature profile to change in the future and
expect that bull trout will continue to use the river. The nearshore
land adjacent to the lake affects water quality in the lake. Only a
small portion of the shoreline and habitat that affects the lake is
within the Quinault Indian Reservation. The portion of the nearshore
that is within the reservation, and included in the Quinault Forest
Management Plan, is excluded from critical habitat.
(97) Comment: The Quinault River downstream of Lake Quinault does
not require special management and therefore should be excluded.
Our Response: That area is addressed in the Quinault Indian
Reservation's Forest Management Plan and is excluded from the Quinault
River downstream of Lake Quinault.
(98) Comment: Cook Creek is poor habitat and inappropriate as
critical habitat.
Our Response: Cook Creek has documented bull trout occurrence. The
habitat quality is rated as ``fair to good'' by an analysis of limiting
factors for the Quinault River watershed (WSCC 2001). Monthly
temperature data indicate that stream temperatures are within the
temperature range given in PCE 1 (see Primary Constituent Elements
section below) and are suitable for bull trout most of the year. The
summer temperatures in the creek are colder than in the river, and Cook
Creek likely provides important cold water refuge during the summer
months, as well as forage during certain periods of the year. The
portion of Cook Creek, from its mouth to approximately rmi 4.8 (rkm
7.7), is addressed in the Forest Management Plan for the Quinault
Indian Reservation and excluded from designated critical habitat.
(99) Comment: The Raft River and other coastal streams need further
evaluation before being designated as critical habitat.
Our Response: The Raft River and other coastal streams have
documented foraging and overwintering habitat, features essential for
bull trout conservation. Although these streams and rivers do not
support spawning bull trout populations, they seasonally do provide
foraging and overwintering habitat for bull trout that spawn in other
coastal rivers. The portion of the Raft River included in the Quinault
Indian Reservation Forest Management Plan is
[[Page 56229]]
excluded from designated critical habitat.
(100) Comment: The proposed rule states that the Quinault Tribe
owns less than 1 percent of proposed critical habitat and this
underrepresents actual ownership.
Our Response: After further review, our Geographic Information
System (GIS) indicates that the Quinault tribal ownership is 2.7
percent of the proposed critical habitat designation for the Coastal-
Puget Sound bull trout population.
(101) Comment: Certain beach areas should be excluded because they
are owned by the Quinault Indian Nation.
Our Response: There are areas in nearshore marine waters adjacent
to beach areas owned by the Quinault Indian Nation that have features
essential to bull trout conservation. However, these beach areas are
not addressed in the Quinault Indian Reservation Forest Management
Plan. These nearshore marine waters may be affected by activities such
as development, bank armoring, bulkheading, or dredging occurring in or
near the beach and shoreline areas. Therefore, these areas require
special management considerations or protections to ensure any proposed
Federal actions do not destroy or adversely modify the critical
habitat, and thus are designated as critical habitat.
(102) Comment: The Skokomish Tribe's lands, and other tribally
owned lands in that vicinity, do not provide important contributions to
critical habitat because they are below 500 feet (ft) (152 meters (m))
elevation in areas where there is no spawning and rearing habitat.
Our Response: The portion of the Skokomish River within the
Skokomish Reservation boundaries is below 500 ft (152 m) elevation.
However, this area and other tribal lands below 500 ft (152 m) in
elevation provide important foraging, migratory, and overwintering
habitat for bull trout. These habitats contain the features essential
to the species' conservation, especially the fluvial and amphidromous
life history forms. However, this portion of the Skokomish River is
excluded from designated critical habitat based on the Skokomish
Tribe's conservation program. Portions of waterbodies within or
adjacent to Swinomish, Muckleshoot, Jamestown S'Klallam, Hoh, Skokomish
and Quinault tribal lands are also excluded (see Section 3(5)(A) and
Exclusions Under Section 4(b)(2) section below).
(103) Comment: Additional Hood Canal nearshore habitat should be
included in the designation.
Our Response: Critical habitat is designated on the south and west
shores of Hood Canal based on the presence of PCEs, availability of
forage fish, and the proximity to streams known to be occupied by bull
trout. We have no information suggesting that bull trout use streams
draining into the eastern shore of Hood Canal. Therefore, we have not
designated critical habitat along the eastern shore.
(104) Comment: The Skokomish Tribe has adequate management in
place, or in preparation, that precludes the need to designate critical
habitat.
Our Response: The Skokomish Tribe has a conservation program that
provides aquatic resource protection and restoration through a number
of collaborative efforts on the reservation and other trust lands. As a
result, we are excluding from this critical habitat designation those
portions of the Skokomish River, Nalley Slough, Skobob Creek, and Hood
Canal nearshore within the Skokomish Indian Reservation.
(105) Comment: The U.S. Navy (Navy) believes that the area proposed
for extending the Naval Undersea Warfare Center, Division Keyport (NUWC
Keyport) should be excluded based on planned section 7 consultations.
Our Response: We do not exclude areas based on future section 7
consultations. However, NUWC Keyport has an approved INRMP that
provides a benefit to the species for which critical habitat is
proposed for designation. Therefore it has not been included in the
final critical habitat designation, per section 4(a)(3) of the Act (see
Non-inclusions under Section 4(a)(3) section below).
(106) Comment: The Wynoochee, Satsop, and Canyon Rivers are not
appropriate critical habitat.
Our Response: This designation is based on the best scientific and
commercial information available and only includes habitat where bull
trout have been documented and which contains features essential to
bull trout conservation. Bull trout often migrate long distances from
their natal streams to find suitable foraging or overwintering habitat.
Streams that are not known to contain spawning bull trout populations
were included in critical habitat when they provide documented
foraging, migratory, and overwintering habitat for bull trout. Although
not known as spawning streams, the Wynoochee, Satsop, and Canyon Rivers
contain PCEs of critical habitat and bull trout use these areas for
foraging, migrating, and overwintering. Therefore, we have included
these areas in the designation.
(107) Comment: The Navy believes that training and testing areas,
including Crescent Harbor, Hood Canal, and Dabob Bay, should be
excluded from critical habitat.
Our Response: The area of Hood Canal, outside of Dabob Bay, where
the Navy conducts activities, is not within or adjacent to proposed
critical habitat and is not included in final critical habitat. The
Navy conducts training and testing within the marine waters of Crescent
Harbor and Dabob Bay. Because these activities are conducted in open
marine waters, they are not included in the military's INRMPs. However,
limitations on access to, the use of, or the enhancement of the
existing capabilities and capacities of these ranges would limit or
curtail both testing and fleet support functions performed by NUWC
Keyport for undersea warfare.
These areas have been defined on National Oceanic and Atmospheric
Administration (NOAA) charts for over 50 years and operating areas have
been further delineated in recent public environmental documentation.
NEPA analyses, conducted for these areas within the past 5 years,
include biological assessments evaluating effects on endangered species
that were reviewed and approved by NOAA-Fisheries and the Service.
These biological assessments and associated environmental assessments
addressed bull trout and interactions with range operations. Based on
the above considerations, the importance of these areas for national
security, and consistent with direction provided in section 4(b)(2) of
the Act, the Navy training and testing areas of Crescent Harbor and
Dabob Bay have been excluded from designated critical habitat (see
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
(108) Comment: What are the conservation values of the upper North
Fork Skokomish River and Lake Cushman? Designation of habitat in these
areas conflicts with the Service's decision not to propose critical
habitat in highly fragmented areas.
Our Response: Although hydroelectric dams have affected bull trout
in the North Fork Skokomish River, and the two dams operated by Tacoma
City Light prevent upstream and downstream passage of bull trout, we do
not believe that this results in ``highly fragmented habitats in highly
fragmented areas.'' The North Fork Skokomish River represents a
significant amount of
[[Page 56230]]
remaining bull trout habitat along Hood Canal and is essential to the
conservation and recovery of bull trout in the Skokomish core area and
thus, is not excluded from the critical habitat designation.
(109) Comment: The Service erroneously assumes that there is
downstream connectivity between bull trout located in the upper North
Fork Skokomish River and bull trout located in other parts of the
Skokomish River.
Our Response: Historic accounts (since the 1920s) indicate bull
trout were present in the original Lake Cushman and upper North Fork
Skokomish River prior to the river's impoundment. Bull trout in Lake
Cushman and the upper North Fork Skokomish River have been continually
monitored since 1970, and surveys have counted bull trout there as
recently as 2004. This area comprises one of two local populations in
the Skokomish River area. Construction of the two dams has largely
eliminated downstream migration and interaction with bull trout in the
South Fork Skokomish River, although for other hydroelectric projects
it is well documented that fish do occasionally escape mortality
through turbines or are spilled downstream of a dam.
(110) Comment: The Service inappropriately assumes that
connectivity for the upper North Fork Skokomish River and Lake Cushman
will be enhanced in the future.
Our Response: Recovery of bull trout in the Skokomish River core
area will require addressing connectivity in the North Fork Skokomish
River. Bull trout were documented in Lake Cushman and the North Fork
Skokomish River above the lake in 2004. Bull trout have also been
recently documented in the North Fork Skokomish River below the dams.
Bull trout have not been documented in the section of the river between
the two dams (Lake Kokanee), and this section is not being designated
based on the Federal Energy Regulatory Commission (FERC) license
requiring passage at both dams. Implementation of the FERC license for
the Cushman Project is expected to result in the construction of trap-
and-haul fish passage facilities that will restore connectivity between
the lower and upper North Fork, but will bypass and isolate the
inundated 2.3 mile long Lake Kokanee segment. Requiring fish passage at
the Cushman dams is part of the 1998 FERC license order and is the best
available information at this time (FERC 1998).
(111) Comment: The upper North Fork Skokomish River should be
excluded from critical habitat designation because it is located almost
entirely within Olympic National Park (Park), and the Park should be
excluded because of their land use restrictions.
Our Response: At present, the Park does not have a general
management plan that guides the Park's management and provides for bull
trout conservation. A general management plan is currently under
internal Park review and is scheduled to go out for public review in
the next year or so. It is our understanding that the plan will present
several alternatives ranging from increased visitor access and
development to more resource protection. We do not know how this plan
will address bull trout conservation but will review the Park's plan
when it becomes available. Because there is no plan that we can review
to determine if the Park will provide the appropriate special
management required for the conservation of bull trout PCEs in that
area this area was not excluded from the critical habitat designation.
Unit 28: Puget Sound
(112) Comment: Quilceda Creek and its tributary Edgecombe Creek in
Washington should be designated critical habitat.
Our Response: Although it is possible that bull trout foraged in
these two creeks in the past and may currently use these streams on
occasion to forage, there is no clear documentation of the use by bull
trout in this system. This does not mean these streams cannot or will
not contribute to bull trout recovery, but rather that they were not
determined to be essential to the species' conservation, and thus are
not designated as critical habitat.
(113) Comment: The U.S. Army (Army) requests that the marine
nearshore areas and Nisqually River adjacent to Fort Lewis be excluded
from designation of critical habitat because of the existing INRMP. For
its installations, the Navy believes that existing INRMPs for Whidbey
Island Seaplane Base and Naval Station Everett provide justification
for their non-inclusion from critical habitat.
Response: Fort Lewis has an approved INRMP that provides a benefit
to the species for which critical habitat is proposed for designation.
Therefore areas covered by the INRMP have not been included in the
final critical habitat designation, per section 4(a)(3) of the Act (see
Non-inclusions Under Section 4(a)(3) section below).
(114) Comment: The designation is not appropriate for four streams,
three pocket estuaries, and the nearshore waters of, and adjacent to,
the Swinomish Tribal Reservation.
Our Response: We believe that the nearshore areas are essential
based on the current use of these areas by amphidromous bull trout for
foraging and migration, and because they contain the PCEs. Therefore,
only the marine nearshore waters, including the Swinomish Channel,
associated with the Swinomish Reservation were proposed and designated
as critical habitat. The other four streams were not part of our
proposal.
(115) Comment: The Swinomish Tribe's habitat management plan
provides a sufficient level of protection to bull trout and their
habitat, and therefore those portions of waterbodies on or adjacent to
Swinomish tribal lands should be excluded from the designation.
Our Response: We have excluded those lands covered by the Swinomish
Tribe's habitat management plan (see Section 3(5)(A) and Exclusions
under Section 4(b)(2) section below).
Comments From States
Nevada
(116) Comment: Those most affected by the designation have not been
involved in this designation of critical habitat for the Jarbidge River
population of the bull trout.
Our Response: Throughout the process of designating critical
habitat, we attempted to include those interested in the designation of
critical habitat for the Jarbidge River population, as well as the
Coastal-Puget Sound and Saint Mary-Belly River populations, of the bull
trout in the rule-making process. We solicited public comment through
two public comment periods and one public hearing, accepting oral and
written comments. We also held four local public meetings in Idaho and
Nevada specifically regarding critical habitat proposed for the
Jarbidge River population. We diligently tried to be responsive to the
concerns raised and to address those concerns during the development of
this final critical habitat designation.
(117) Comment: No information is presented to suggest that
conservation of the Jarbidge River population is necessary to ensure
the persistence of bull trout in the coterminous unit.
Our Response: We considered all available data on the Jarbidge
River bull trout population during the listing process (63 FR 31693, 64
FR 17110, 64 FR 58910), and available data that developed since the
listing, to designate critical habitat for the Jarbidge River bull
trout population. The Jarbidge River population is located in the
southernmost habitat currently
[[Page 56231]]
occupied by bull trout. This population is geographically segregated
from other bull trout in the Snake River basin by more than 150 rmi
(240 rkm) of unsuitable habitat and several impassible dams on the
mainstem Snake River and the lower Bruneau River. It is, however,
essential to the conservation of bull trout as a whole, as discussed in
the draft recovery plans.
(118) Comment: Streams within the Jarbidge River population range
have not been demonstrated to contain PCEs for bull trout.
Our Response: All streams identified as essential and designated as
critical habitat for the Jarbidge River population contain one or more
of the PCEs. Only those streams with documented bull trout occurrence
are designated. Variable types and amounts of habitat data are
available for these streams to document the presence of PCEs and are in
our administrative record for this final rule.
(119) Comment: Many plans already in place for bull trout
protection don't need critical habitat (the comment letter listed many
plans).
Our Response: Although there are many plans currently in place that
directly or indirectly benefit bull trout, many are interim measures,
they improve water quality only, there is no formal management plan, or
they are designed to improve habitat on small scale watersheds. Where
we could determine that the plans provided protection or management
equal to that of a critical habitat designation, we have not included
those lands, or otherwise we have designated critical habitat where
appropriate (see Section 3(5)(A) and Exclusions Under Section 4(b)(2)
section below).
Washington
(120) Comment: Washington Department of Fish and Wildlife (WDFW)
stated that Lake Washington and the Nisqually River are inappropriate
as critical habitat because they are little used transient habitats for
bull trout from other core areas.
Our Response: Recent tagging studies have clearly shown that
amphidromous bull trout have complex migratory patterns within marine
waters and between watersheds. We believe that current and future use
of foraging, migratory, and overwintering habitats outside their natal
basins is essential to the survival and conservation of bull trout,
especially the amphidromous life history form. We expect that, as bull
trout populations increase in abundance, bull trout use of the
Nisqually River and Lake Washington will increase due to the abundant
foraging opportunities provided by these systems. Historically, bull
trout were reported as abundant in the Nisqually River. In addition,
spawning may still occur within the basin as suggested by the recent
capture of a smolt-sized bull trout in the Nisqually River delta (C.
Ellings, in litt. 2004). These areas therefore, remain in the critical
habitat designation.
(121) Comment: The proposed critical habitat designation falls
short of protecting nearshore habitats essential to the conservation of
bull trout by not including the shoreline riparian areas, bluffs, and
uplands above the mean higher high water (MHHW) mark. These areas
provide lateral recruitment of spawning substrates for surf smelt the
principal food source for bull trout in the northern Puget Sound area.
With the existing development along the Puget Sound shoreline, the
source for suitable spawning gravels for surf smelt is very limited and
protection of these last few areas is essential to the conservation of
bull trout.
Our Response: We recognize that similar to the influence that
riparian and floodplain areas have on stream habitat in freshwater
systems, the quality of the habitat within the marine nearshore is
intrinsically related to the character of the shoreline riparian areas,
bluffs, and uplands, and the human activities that occur above the MHHW
mark. Activities that may destroy or adversely modify critical habitat
are identified as those that alter the PCEs to an extent that the value
of critical habitat for the conservation of bull trout is appreciably
reduced, including alterations to foraging habitat and reductions in
forage fish abundance. Therefore, although areas above the MHHW mark
are not included as critical habitat, in the designation, we recognized
the scientific basis for linking the quality of the nearshore
environment with the biological and physical processes that occur
outside of that environment (see Critical Habitat Designation section
below). During section 7 consultations for projects that could cause
changes to such areas adjacent to critical habitat, the effects on the
critical habitat would be analyzed and protection from adverse
modification ensured.
(122) Comment: The old Lewis River channel (bypass reach) should be
designated as critical habitat.
Our Response: The upper bypass reach was not included in the final
critical habitat designation because it does not contain PCEs.
Specifically, we do not believe it will support successful bull trout
spawning and incubation. The lower segment of the bypass reach from
Yale Reservoir to the mouth of Ole Creek is designated as critical
habitat, except for that portion of the lower segment covered by the
Washington Department of Natural Resources HCP which is excluded under
4(b)(2) (see Exclusions Under Section 4(b)(2) of the Act section
below). The remaining lower segment provides foraging, migratory, and
overwintering habitat for Yale Reservoir bull trout.
(123) Comment: The lower mainstem Lewis River, below Merwin Dam,
should not be designated as critical habitat.
Our Response: The lower mainstem Lewis River will provide foraging,
migration, and overwintering habitat once fish passage at Merwin, Yale,
and Swift Dams is restored. We anticipate increased use by bull trout
of the mainstem with these passage improvements. Restoring connectivity
among local populations and to the Columbia River is necessary to
maintain opportunities for genetic exchange, re-establishment of local
populations, and provide access to additional habitat. Recent
information documents use of the mainstem Columbia River by adult bull
trout for foraging, migration, and overwintering.
(124) Comment: WDFW stated that until Condit Dam is removed, it is
difficult to justify the designation of the White Salmon River above
the dam as critical habitat.
Our Response: There has been a sighting of bull trout in the White
Salmon River upstream from Condit Dam as recently as 1989. The
designation provides foraging, migration, and overwintering habitat
(necessary PCEs) for a potentially remnant population of bull trout
within the White Salmon River system. The White Salmon River below
Condit Dam is also used by migratory bull trout from other river
systems, such as the Hood River. With the restoration of two-way
passage at Condit Dam, this will provide access to habitat in the upper
White Salmon River for these populations as well.
Oregon
(125) Comment: Attributing one third of the consultation costs to
bull trout in the economic analysis for the Willamette system is likely
too high. Passage modifications at dams in the Willamette would not
likely be made solely for bull trout, given the presence of listed
salmon and steelhead.
Response: As described in section 2.2.2 of the Final Economic
Analysis (FEA), ``[n]o clear allocation of costs can be made between
these species, as most of the project modifications would be
[[Page 56232]]
sought under both the NOAA and Service consultations.'' Furthermore,
the FEA acknowledges the concern regarding the Willamette. It states''
``one-third of estimated costs are allocated to each [salmon,
steelhead, and bull trout] species. This is likely to overstate the
cost of bull trout conservation rather than understate it, since the
primary driving force behind these project modifications is the
salmon'' (pg. 2-24). As a result, we are not excluding this area from
the critical habitat designation based on economics.
(126) Comment: The Economic Analysis for critical habitat
designations in the Malheur Basin is too high. Some operational changes
at Beulah Reservoir have already been implemented and cost less than
the annual estimate for Bureau of Reclamation (BOR) provided, and
additional activities can be done for less than estimated.
Response: As described in section 4.2.4 of the FEA, BOR submitted a
comment on the draft economic analysis stating that its ``current
average annual cost [associated with bull trout consultation] for the
Boise (Anderson Ranch and Arrowrock Reservoirs), Payette (Cascade and
Deadwood Reservoirs), Malheur (Buelah and Warm Springs Reservoirs), and
Powder (Phillips and Thief Valley Reservoirs) is approximately $250,000
for all projects combined.'' As five of these reservoirs are currently
operating under the terms of section 7 bull trout consultations,
including Beulah Reservoir, the finding is that such consultations may
result in annual fish passage and research costs of $50,000 per year
per reservoir (page 4-25). In addition, we received a letter from
Oregon DNR indicating the costs attributed to their basin's designation
were too high. The analysis was updated with this new information, as
reflected in section 4.2.4 of the Final Economic Analysis. As a result,
we are not excluding this area from the critical habitat designation
based on economics.
(127) Comment: Oregon Department of Fish and Wildlife (ODFW)
questioned the exclusion of the John Day Basin based on the subbasin
plan and Federal Columbia River Power System (FCRPS) given the
uncertainty of the implementation of the management actions on mainstem
and tributary streams.
Our Response: Programs, plans, and other authorities used to
exclude certain areas that were originally proposed, have been re-
evaluated to determine their benefit for exclusion versus the benefit
of designating as critical habitat. We have revised the rule to now
include this area as critical habitat based on this re-evaluation.
(128) Comment: ODFW believes that designations of unoccupied
habitat are important for the re-introduction of extirpated populations
or expansion of existing populations, and are the most important areas
in need of protection.
Our Response: Because there was insufficient information for the
Secretary to make a determination that unoccupied areas were essential
to the conservation of the species, we have only designated areas of
known occupancy that are known to contain the PCEs essential to the
conservation of the species. We did not include areas of unknown
occupancy in the final critical habitat designation because we did not
have adequate information for the Secretary to determine that specific
unoccupied areas were essential to the bull trout's conservation. We
based this designation on the best scientific and commercial
information available. Many streams not included in this designation
can and will contribute to bull trout recovery, but do not meet the
definition of critical habitat. We evaluated comments documenting
stream segments that are not essential and where appropriate, refined
this final critical habitat rule (See Summary of Changes from the
Proposed Rule section below).
(129) Comment: The Clackamas River should be designated as critical
habitat.
Our Response: The Clackamas River is not designated as critical
habitat because the Service determined it is not essential to the
conservation of bull trout in the Willamette River Basin Unit. The
Willamette Recovery Unit Team recognized the Clackamas River as core
habitat and not a core area based on the lack of data documenting bull
trout in the Clackamas River. Bull trout are not known to currently
inhabit the Clackamas River, but their presence was documented
historically, and the Recovery Unit Team believes that the sub-basin
has the necessary habitat elements to support the reintroduction of
bull trout. Based on limited historical information, it is unknown
whether reproducing bull trout populations existed previously in the
Clackamas River.
(130) Comment: Critical habitat should be designated as it was in
the proposed rule because there is no assurance that within the next 10
years or beyond that funding will be available for implementation.
Therefore, the state suggested that critical habitat in Oregon should
be re-designated as proposed where these directives have been
identified as a reason for excluding.
Our Response: We have evaluated the FCRPS, the Northwest Forest
Plan and PACFISH/INFISH, as well as other individual Federal and State
programs and directives to determine their benefit for exclusion versus
the benefit of designating as critical habitat. Many of these plans
provide some level of conservation benefit to bull trout and the
habitat they are known to currently occupy. The final rule considers
the contribution of each individual plan, considers whether the lands
meet the definition of critical habitat, and weighs the benefits of
inclusion versus the benefits of exclusion when determining the final
critical habitat designation.
Summary of Revisions From the Previous Rules
(1) Unoccupied lands were removed from the designation. Under the
Act the Secretary of the Interior may only include unoccupied lands if
she finds that those lands are essential to the conservation of the
species. In the case of the bull trout, and based on the best
scientific data available, it was not possible for the Secretary to
make such a determination at this time.
(2) A variety of areas were found to not meet the definition of
critical habitat and lands were excluded under section 4(b)(2) of the
Act (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section
below).
(3) Lands that did not contain sufficient PCEs to support at least
one of the species essential biological activities were removed. For
example, the Clark Fork River between Missoula and Butte was proposed
for designation. Upon further review, it was determined that this site
is a superfund site subject to contamination by leaching from mine
wastes. Another example is the middle fork of the Boise River, also
proposed for designation and also subject to leaching of mining wastes.
Proposed critical habitat that did not contain sufficient PCEs to
support the species was removed, as was critical habitat where the
presence of PCEs was speculative. The Act does not provide for
designation based on speculative or prospective presence of PCEs.
(4) The proposed critical habitat designation included a number of
reaches to increase connectivity between populations. We received
multiple comments that some of the barrier removal proposed to
accomplish the connectivity could be detrimental to bull trout
populations by providing access to competitor species such as lake
trout, brook trout, and rainbow trout. We are removing those reaches
pending a site by site determination as to which are appropriate for
barrier removal. If necessary, additional critical habitat can be
designated once those determinations are made.
[[Page 56233]]
(5) Segments were designated based on the contributions to bull
trout life processes. Some segments contained all PCEs and supported
multiple life processes. Some segments contained only a portion of the
PCEs necessary to support the bull trout's particular use of that
habitat. Where a subset of the PCEs were present (e.g., water
temperature during migration flows) it has been noted that only PCEs
present at designation will be protected. In addition, some of the PCEs
were present only at particular times of year, and not present at
others. This led to a concern that by designating the area as critical
habitat subsequent biological opinions would assume that the PCEs were
constantly present, particularly in areas where active management (such
as a dam) was present. Two examples of this are temperature and flows.
We have designated some streams where appropriate temperatures occur
only at specific times of year which coincide with bull trout use; but
at other times the stream temperatures are outside the optimal range or
may even be fatal to bull trout. We are concerned that our designation
may be misinterpreted to require these temperatures be available year
round as a result of the designation, particularly when the stream is
controlled by upstream structures. Another example is flows. There are
streams which are designated as critical habitat that are dry for
portions of the year. These streams are designated because they are
used by bull trout during portions of the year when the PCEs are
present, perhaps for migration or foraging. Again, the assumption that
the PCEs are present during the entire year is not appropriate, and
could have serious consequences for other parties. Our goal is to
ensure that the PCEs are protected when they are present as a result of
federal actions but also to avoid inadvertently requiring creation of
PCEs where they do not now occur. As a result, we have determined that
explicitly placing current ongoing federal actions that create the PCEs
in the baseline for the purposes of section 7 consultations under the
Act, will protect existing PCEs and require any changes in those
federal actions to undergo consultation in order to determine the
effect of the changes on critical habitat.
Public comments in general, and particularly technical comments
from local, State, and Federal agencies and Native American Tribes,
were very useful in focusing the proposal to those areas with the
features most essential to the conservation of the species. We held
numerous public hearings and public meetings where we received specific
technical comments that prompted further internal critical review of
the proposal. The peer review process provided constructive criticism
from fisheries scientists regarding our approach to developing the
critical habitat proposal, as well as technical comments regarding
specific proposed critical habitat areas. Through our working
relationships with State and Federal agencies, we also received some
new information after the proposal was issued, such as new records of
bull trout occurrence, evidence of reproduction in some streams, or the
lack of such positive survey results, as well as information on
conservation actions underway within States.
We revised the stream miles and lake and reservoir acreages for
designated critical habitat for those areas not containing features
essential to bull trout conservation, based on information supplied by
comments received as well as information gained from field visits to
some of the sites.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
and commercial data available, habitat areas that provide essential
life cycle needs of the species (i.e., areas on which are found the
primary constituent elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but was not known to
be occupied at the time of listing will likely but not always be
essential to the conservation of the species and, therefore, included
in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific and commercial data available. They require Service
biologists to the extent consistent with the Act and with the use of
the best scientific and commercial data available, to use primary and
original sources of information as the basis for
[[Page 56234]]
recommendations to designate critical habitat. When determining which
areas are critical habitat, a primary source of information is
generally the listing package for the species. Additional information
sources include the recovery plan for the species, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge. All
information is used in accordance with the provisions of Section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information
Quality Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining areas that are
essential to the conservation of the bull trout. In designating
critical habitat, we reviewed the approaches to the conservation of the
species undertaken by local, State, and Federal agencies; tribal
governments; and private individuals and organizations since the
species was listed in 1998. We relied on information collected by the
bull trout Recovery Unit Teams, which were comprised of Federal, State,
tribal, and private biologists, as well as experts from other
scientific disciplines such as hydrology and forestry, resource users,
and other stakeholders with an interest in bull trout and the habitats
they depend on for survival. We reviewed available information
concerning bull trout habitat use and preferences, habitat conditions,
threats, limiting factors, population demographics, and the known
locations, distribution, and abundances of bull trout. We designated no
areas outside the geographical area presently occupied by the species.
During our evaluation of information, we also took into account the
relatively low probability of detection of bull trout in traditional
fish sampling and survey efforts, as well as the limited extent of such
efforts across the range of bull trout. Because of their varied life
history strategies, nocturnal habits, and low population densities in
many areas, the detectability of bull trout in a given area is highly
variable (Rieman and McIntyre 1993). In some areas, adult and subadult
bull trout make extensive migrations both within and outside their core
areas, which makes surveying difficult. Much of the current information
on bull trout presence is the product of informal surveys or sampling
conducted for other species or other purposes. The primary limitations
of informal surveys are that they provide no estimate of certainty
(i.e., a measure of the probability of detection), and that they may be
inadequate for determining population parameters such as the densities
and distribution of the population. The need for a statistically sound
bull trout survey protocol has been addressed only recently through the
development, by the American Fisheries Society, of a peer-reviewed
protocol for determining presence/absence, and potential habitat
suitability for juvenile and resident bull trout (Peterson et al.
2002). Consequently, we considered all documented occurrences of bull
trout in the past 20 years as evidence of occupancy.
We used information gathered during the bull trout recovery
planning process, as supplemented by even more recent information
developed by State agencies, tribes, U.S. Forest Service, and other
entities, in developing this final critical habitat designation. We
used data concerning habitat conditions or status of PCEs when
available. To address areas where data gaps exist, we solicited expert
opinions from knowledgeable fisheries biologists in the local area.
We also reviewed available information pertaining to the habitat
requirements of this species. Important considerations in selecting
areas for designated critical habitat include factors specific to each
river system, such as size (e.g., stream order), gradient, channel
morphology, connectivity to other aquatic habitats, and habitat
complexity and diversity, as well as rangewide recovery considerations.
We took into account that preferred habitat for bull trout ranges from
small headwater streams used largely for spawning and rearing, to
downstream mainstem portions of river networks used for rearing and FMO
habitat.
Our methods included consideration of information regarding habitat
essential to maintaining the migratory life history forms of bull
trout, in light of the repeated emphasis about the importance of such
habitat in the scientific literature (Rieman and McIntryre 1993; Hard
1995; Healey and Prince 1995; Rieman et al. 1995; Montana Bull Trout
Scientific Group (MBTSG) 1998; Dunham and Rieman 1999; Nelson et al.
2002). Material reviewed included data in reports submitted during
section 7 consultations and by biologists holding section 10(a)(1)(A)
recovery permits; research published in peer-reviewed academic theses
and agency reports; and regional GIS overlays. Habitat for movement
upstream, downstream and, in some cases, through marine waters is
essential for migratory life history forms for spawning, foraging,
growth, access to rearing and overwintering areas or thermal refugia
(e.g., spring-fed streams in late summer), avoidance of extreme
environmental conditions, and other normal behavior. Successful
migration requires biologically, physically, and chemically
unobstructed routes for movement of individuals. Therefore, our methods
included considering information regarding habitat that is essential
for movement into and out of larger rivers, because of the importance
of such areas to the fluvial form of bull trout. We similarly
identified habitat essential for movement between streams and lakes by
adfluvial forms and habitat essential for movement into and through
marine waters by amphidromous forms.
Migratory corridors also are essential for movement between
populations (Fraley and Shepard 1989; Rieman and McIntyre 1993; Rieman
et al. 1995; Dunham and Rieman 1999). Thus, in addition to considering
areas important for migration within populations, our method also
included considering
[[Page 56235]]
information regarding migration corridors necessary to allow genetic
exchange between local populations. Corridors that allow such movements
can support eventual recolonization of unoccupied areas or otherwise
play a significant role in maintaining genetic diversity and
metapopulation viability (see the June 25, 2004 proposed rule; 69 FR
35767). Because these factors are important in identifying the features
and areas that are essential to bull trout conservation, our method
included consideration of the various roles that migratory corridors
have for bull trout.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical and biological features (PCEs) that
are essential to the conservation of the species, and within areas
occupied by the species at the time of listing, that may require
special management considerations and protection. These include, but
are not limited to space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
Pursuant to our regulations, we are required to identify the known
physical and biological features (PCEs) essential to the conservation
of the bull trout. All areas designated as critical habitat for bull
trout are occupied, within the species' historic geographic range, and
contain sufficient PCEs to support at least one life history function.
Bull trout exhibit a number of life-history strategies. Stream-
resident bull trout complete their entire life cycle in the tributary
streams where they spawn and rear. Some bull trout are migratory,
spawning in tributary streams where juvenile fish usually rear from 1
to 4 years before migrating to either a larger river (fluvial) or lake
(adfluvial) where they spend their adult life, returning to the
tributary stream to spawn (Fraley and Shepard 1989). These migratory
forms occur in areas where conditions allow for movement from upper
watershed spawning streams to larger downstream waters that contain
greater foraging opportunities (Dunham and Rieman 1999). Resident and
migratory forms may be found together, and either form can produce
resident or migratory offspring (Rieman and McIntyre 1993). Bull trout
in the Coastal-Puget Sound area are believed to include an anadromous
form which migrates to saltwater to mature, returning to streams to
spawn (64 FR 58912).
Bull trout are opportunistic feeders, with food habits that
primarily are a function of size and life history strategy. Resident
and juvenile migratory bull trout prey on terrestrial and aquatic
insects, macro-zooplankton, and small fish (Donald and Alger 1993;
McPhail and Baxter 1996). Adult migratory bull trout feed almost
exclusively on other fish (Rieman and McIntyre 1993).
Bull trout have more specific habitat requirements than most other
salmonids (Rieman and McIntyre 1993). Habitat components that
particularly influence their distribution and abundance include water
temperature, cover, channel form and stability, spawning and rearing
substrate conditions, and migratory corridors (Fraley and Shepard 1989;
Goetz 1989; Watson and Hillman 1997).
Relatively cold water temperatures are characteristic of bull trout
habitat. Water temperatures above 15 [deg]Celsius (C) (59
[deg]Fahrenheit (F)) while not lethal are believed to limit their
distribution (Fraley and Shepard 1989; Rieman and McIntyre 1996).
Although adults have been observed in large rivers throughout the
Columbia River basin in water temperatures up to 20 [deg]C (68 [deg]F),
Gamett (1999) documented steady and substantial declines in abundance
in stream reaches where water temperature ranged from 15 to 20 [deg]C
(59 to 68 [deg]F). Thus, water temperature may partially explain the
generally patchy distribution of bull trout in a watershed. In large
rivers, bull trout are often observed ``dipping'' into the lower
reaches of tributary streams, and it is suspected that cooler waters in
these tributary mouths may provide important thermal refugia, allowing
them to forage, migrate, and overwinter in waters that would otherwise
be, at least seasonally, too warm. Spawning areas often are associated
with cold-water springs, groundwater infiltration, and the coldest
streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993;
Rieman et al. 1997).
Throughout their lives, bull trout require complex forms of cover,
including large woody debris, undercut banks, boulders, and pools
(Fraley and Shepard 1989; Watson and Hillman 1997). Juveniles and
adults frequently inhabit side channels, stream margins, and pools with
suitable cover (Sexauer and James 1997). McPhail and Baxter (1996)
reported that newly emerged fry are secretive and hide in gravel along
stream edges and in side channels. They also reported that juveniles
are found mainly in pools but also in riffles and runs that they
maintain focal sites near the bottom, and that they are strongly
associated with instream cover, particularly overhead cover. Bull trout
have been observed overwintering in deep beaver ponds or pools
containing large woody debris (Jakober 1995). Adult bull trout
migrating to spawning areas have been recorded as staying two to four
weeks at the mouths of spawning tributaries in deeper holes or near log
or cover debris (Fraley and Shepard (1989)).
The stability of stream channels and stream flows are important
habitat characteristics for bull trout populations (Rieman and McIntyre
1993). The side channels, stream margins, and pools with suitable cover
for bull trout are sensitive to activities that directly or indirectly
affect stream channel stability and alter natural flow patterns.
Watson and Hillman (1997) concluded that watersheds must have
specific physical characteristics to provide the necessary habitat
requirements for bull trout spawning and rearing, and that the
characteristics are not necessarily ubiquitous throughout the
watersheds in which bull trout occur. The preferred spawning habitat of
bull trout consists of low-gradient stream reaches with loose, clean
gravel (Fraley and Shepard 1989). Bull trout typically spawn from
August to November during periods of decreasing water temperatures
(Swanberg 1997). However, migratory forms are known to begin spawning
migrations as early as April, and to move upstream as much as 250 km
(155 mi) to spawning areas (Fraley and Shepard 1989; Swanberg 1997).
Fraley and Shepard (1989) reported that initiation of spawning by bull
trout in the Flathead River system appeared to be related largely to
water temperature, with spawning initiated when water temperatures
dropped below 9-10 [deg]C (48 to 50 [deg]F). Goetz (1989) reported a
temperature range from 4 to 10 [deg]C (39 to 50 [deg]F) (Goetz 1989).
Such areas often are associated with cold-water springs or groundwater
upwelling (Rieman et al. 1997; Baxter et al. 1999). Fraley and Shepard
(1989) also found that groundwater influence and proximity to cover are
important factors influencing spawning site selection. They reported
that the combination of relatively specific requirements resulted in a
restricted spawning distribution in relation to available stream
habitat.
Depending on water temperature, egg incubation is normally 100 to
145 days (Pratt 1992). Water temperatures of 1.2 to 5.4 [deg]C (34.2 to
41.7 [deg]F) have been
[[Page 56236]]
reported for incubation, with an optimum (best embryo survivorship)
temperature reported to be from 2 to 4 [deg]C (36 to 39 [deg]F) (Fraley
and Shepard 1989; McPhail and Baxter 1996). Juveniles remain in the
substrate after hatching, such that the time from egg deposition to
emergence of fry can exceed 200 days. During the relatively long
incubation period in the gravel, bull trout eggs are especially
vulnerable to fine sediments and water quality degradation (Fraley and
Shepard 1989). Increases in fine sediment appear to reduce egg survival
and emergence (Pratt 1992). Juveniles are likely similarly affected.
High juvenile densities have been reported in areas characterized by a
diverse cobble substrate and a low percent of fine sediments (Shepard
et al. 1984).
The ability to migrate is important to the persistence of local
bull trout subpopulations (Rieman and McIntyre 1993; Gilpin 1997;
Rieman and Clayton 1997; Rieman et al. 1997). Bull trout rely on
migratory corridors to move from spawning and rearing habitats to
foraging and overwintering habitats and back. Migratory bull trout
become much larger than resident fish in the more productive waters of
larger streams and lakes, leading to increased reproductive potential
(McPhail and Baxter 1996). The use of migratory corridors by bull trout
also results in increased dispersion, facilitating gene flow among
local populations when individuals from different local populations
interbreed, stray, or return to nonnatal streams. Also, local
populations that have been extirpated by catastrophic events may become
reestablished as a result of movements by bull trout through migratory
corridors (Rieman and McIntyre 1993, Montana Bull Trout Scientific
Group (MBTSG) 1998).
While stream habitats have received more attention, lakes and
reservoirs also figure prominently in meeting the life cycle
requirements of bull trout. For adfluvial bull trout populations, lakes
and reservoirs provide an important component of the core foraging,
migrating, and overwintering habitat, and are integral to maintaining
the adfluvial life history strategy that is commonly exhibited by bull
trout. When juvenile bull trout emigrate downstream to a lake or
reservoir from the spawning and rearing streams in the headwaters, they
enter a more productive lentic environment that allows them to achieve
rapid growth and energy storage. Typically, juvenile bull trout are at
least two years old and 100 mm (4 inches) or longer upon entry to the
lake environment. For the next 2-4 years they grow rapidly. At a
typical age of five years or older, when total length normally exceeds
400 mm (16 inches), they reach sexual maturity. The lake environment
provides the necessary attributes of food, space, and shelter for the
subadult fish to prepare for the rigors of migratory passage upstream
to the natal spawning area, a migration that may last as long as six
months and cover distances as much as 250 km (155 mi) upriver.
In comparison to streams, lake and reservoir environments are
relatively more secure from catastrophic natural events. They provide a
sanctuary for bull trout, allowing them to quickly rebound from
temporary adverse conditions in the spawning and rearing habitat. For
example, if a major wildfire burns a drainage and eliminates most or
all aquatic life (a rare occurrence), bull trout subadults and adults
that survive in the lake may return the following year to repopulate
the system. In this way, lakes and reservoirs provide an important
adaptive element of the adfluvial life history strategy.
The construction of reservoirs may have had adverse effects to bull
trout, but some reservoirs also have provided benefits. For example,
the basin of Hungry Horse Reservoir has functioned adequately for fifty
years as a surrogate home for stranded Flathead Lake bull trout trapped
upstream of the dam when it was completed. While this is an artificial
impoundment, the habitat the reservoir provides and the presence of an
enhanced prey base of native minnows, suckers, and whitefish within the
reservoir sustain a large adfluvial bull trout population.
Additionally, while barriers to migration are often viewed as a
negative consequence of dams, the connectivity barrier at Hungry Horse
Dam has also served an important, albeit unintended, function in
restricting the proliferation of nonnative Salvelinus species (brook
trout and lake trout) from downstream areas upstream above the dam.
Additional information related to bull trout biology can be found in
our administrative record.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the bull trout's PCEs are:
(1) Water temperatures that support bull trout use. Bull trout have
been documented in streams with temperatures from 32 to 72 [deg]F (0 to
22 [deg]C) but are found more frequently in temperatures ranging from
36 to 59 [deg]F (2 to 15 [deg]C). These temperature ranges may vary
depending on bull trout life history stage and form, geography,
elevation, diurnal and seasonal variation, shade, such as that provided
by riparian habitat, and local groundwater influence. Stream reaches
with temperatures that preclude any bull trout use are specifically
excluded from designation;
(2) Complex stream channels with features such as woody debris,
side channels, pools, and undercut banks to provide a variety of
depths, velocities, and instream structures;
(3) Substrates of sufficient amount, size, and composition to
ensure success of egg and embryo overwinter survival, fry emergence,
and young-of-the-year and juvenile survival. This should include a
minimal amount of fine substrate less than 0.25 inch (0.63 centimeter)
in diameter.
(4) A natural hydrograph, including peak, high, low, and base flows
within historic ranges or, if regulated, currently operate under a
biological opinion that addresses bull trout, or a hydrograph that
demonstrates the ability to support bull trout populations by
minimizing daily and day-to-day fluctuations and minimizing departures
from the natural cycle of flow levels corresponding with seasonal
variation;
(5) Springs, seeps, groundwater sources, and subsurface water to
contribute to water quality and quantity as a cold water source;
(6) Migratory corridors with minimal physical, biological, or water
quality impediments between spawning, rearing, overwintering, and
foraging habitats, including intermittent or seasonal barriers induced
by high water temperatures or low flows;
(7) An abundant food base including terrestrial organisms of
riparian origin, aquatic macroinvertebrates, and forage fish;
(8) Permanent water of sufficient quantity and quality such that
normal reproduction, growth, and survival are not inhibited.
This designation protects PCEs necessary to support the life
history functions which were the basis for the designation. Because not
all life history functions require all the PCEs, not all habitat will
contain all the PCEs.
Each of the areas designated in this rule have been determined to
contain sufficient PCEs to provide for one or more of the life history
functions of the bull trout. In some cases, the PCEs exist as a result
of ongoing federal actions. As a result, ongoing federal actions at the
time of designation will be included in the baseline in any
consultation conducted subsequent to this designation.
[[Page 56237]]
Criteria Used To Identify Critical Habitat
We are designating critical habitat on lands that we have
determined are occupied at the time of listing and contain sufficient
primary constituent elements to support life history functions
essential for the conservation of the species. We reevaluated the
proposed designations based on public comment, peer review of the
proposed rules and the draft Recovery Plans, the economic analyses of
the proposed rules, and the public comments on those analyses, and
other available information, to ensure that the designation accurately
reflects habitat with the PCEs that is essential to the conservation of
the species.
This critical habitat designation focuses primarily on the
maintenance of populations by (1) protecting sufficient amounts of
spawning and rearing habitat in upper watershed areas; (2) providing
suitable habitat conditions in downstream rivers and lakes to provide
foraging and overwintering habitat for fluvial and adfluvial fish; and
(3) maintaining migratory routes and the potential for gene flow
between populations by maintaining habitat conditions that allow for
fish passage.
To be included as critical habitat, a critical habitat unit (CHU)
had to be occupied by the species and contain sufficient PCEs to
provide for one or more of the following three functions: (1) Spawning,
rearing, foraging, or overwintering habitat to support existing bull
trout local populations; (2) movement corridors necessary for
maintaining migratory life-history forms; and/or (3) suitable occupied
habitat that is essential for recovering the species.
A brief discussion of each area designated as critical habitat is
provided in the unit descriptions below. Additional detailed
documentation concerning the essential nature of these areas is
contained in our administrative record for this rulemaking.
Non-Inclusions Under Section 4(a)(3)
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete, by November 17, 2001, an Integrated Natural Resource
Management Plan (INRMP). An INRMP integrates implementation of the
military mission of the installation with stewardship of the natural
resources found on the base. Each INRMP includes an assessment of the
ecological needs on the installation, including the need to provide for
the conservation of listed species; a statement of goals and
priorities; a detailed description of management actions to be
implemented to provide for these ecological needs; and a monitoring and
adaptive management plan. Among other things, each INRMP must, to the
extent appropriate and applicable, provide for fish and wildlife
management, fish and wildlife habitat enhancement or modification,
wetland protection, enhancement, and restoration where necessary to
support fish and wildlife and enforcement of applicable natural
resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the ESA to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. INRMPs developed by
military installations located within the range of critical habitat
designated for the Columbia and Coastal-Puget Sound populations of bull
trout were analyzed for non-inclusion under the authority of 4(a)(3) of
the Act.
The Bayview Acoustic Research Detachment (ARD) Naval Surface
Warfare Center, Bayview, ID, has an approved INRMP. This property
includes approximately 22 ac (9 ha) of developed land on the shore of
Lake Pend Oreille and 16 ac (7 ha) of lake area. There are no tributary
streams within this area utilized by bull trout for spawning or early
life rearing, but the lake area does contain important FMO habitat for
bull trout.
Designating critical habitat on Bayview ARD could impact their role
in supporting ongoing U.S. Navy research, development, test, and
evaluation programs in underwater acoustics. These efforts include the
use of large scale models to simulate the characteristics of current
and future Navy submarines in order to develop and evaluate advances in
submarine silencing technology. Performing acoustic testing on large
scale models provides the same accuracy as testing on actual submarines
at a significantly lower cost. Bayview ARD is the only Navy facility
capable of testing large scale models for hull-induced flow noise and
propulsor noise, and the knowledge gained from these tests are directly
applied to reducing the detectability of Navy submarines (Department of
the Navy 2003). Bayview ARD's INRMP outlines protection and management
strategies for natural resources on the center, including fish species
and their habitats.
The plan benefits bull trout through the protection of kokanee
salmon spawning habitat, a primary food source for bull trout. The ARD
Bayview property in Scenic Bay hosts from 40-70 percent of the kokanee
spawning activity in Lake Pend Oreille, depending on the year. The
INRMP includes measures to minimize impacts to kokanee habitat by
limiting facility boat traffic during spawning periods (November-
December), and implementing sediment control measures. Furthermore,
interpretive signs have been placed throughout the property to educate
employees and the public regarding various aspects of the regions
natural resources, threatened or endangered species (including bull
trout), and geological history. The INRMP requires the natural resource
manager to provide an all hands ARD INRMP awareness training to
facilitate INRMP implementation.
Eurasian watermilfoil was identified in the northern part of Lake
Pend Oreille during the winter of 2002. Following identification and
mapping of invasive species at ARD Bayview, a plan will be developed
under the INRMP to control invasive species at the facility and to
limit their spread to adjacent lands. Eurasian watermilfoil chokes
waterways and near shore environments used by bull trout and their prey
species.
Based on the above considerations, and consistent with the
direction provided in section 4(a)(3)(B)(i) of the Act, we have
determined that conservation efforts identified in the final INRMP will
provide benefits to the bull trout occurring in the lake area within or
adjacent to the Bayview ARD. Approximately 16 ac (7 ha) of essential
habitat is not included in this critical habitat designation.
Therefore, we are not including critical habitat for bull trout on this
installation pursuant to section 4(a)(3) of the Act.
The Naval Radio Station Jim Creek, Naval Station Everett, Naval Air
Station Whidbey Island, and the Army's Fort Lewis Installation (Fort
Lewis) are all located in western Washington and all have approved
INRMPs. We have
[[Page 56238]]
examined the INRMPs for these military installations to determine
coverage for the bull trout. The Naval Radio Station Jim Creek INRMP
provides for (1) restoration of riparian buffers along Jim Creek, (2)
protection to Jim Creek from erosion and sedimentation, and (3)
protection to Jim Creek from contaminants and herbicides. The Naval
Station Everett's INRMP benefits bull trout by providing (1) protection
to bull trout in the marine environment from oil spills around the
berthing naval vessels, (2) bioswales to prevent the release of toxins,
contaminants and oils from reaching the water column through storm
drains, and (3) the restoration of riparian habitat on Navy lands
located along the Middle Fork Quilceda Creek. Naval Aviation Station
Whidbey Island's INRMP benefits bull trout through (1) monitoring and
managing livestock grazing, (2) managing road building and maintenance
to prevent erosion and sedimentation of bull trout habitat, (3)
assuring proper disposal of hazardous materials, and (4) implementation
of the Integrated Pest Management plan's best management practices to
protect aquatic environments. The INRMP for the U.S. Army, Fort Lewis,
benefits bull trout through (1) the protection and enhancement of
wetlands, which include marshes, lakes, rivers and streams; all
wetlands are protected with 300 foot-wide riparian buffers to maintain
cold water temperatures, prevent sediment from entering the streams and
provide for woody debris, (2) control of invasive plant species which
often diminishes water quality and impacts native plants and animals,
and (3) restoring salmon spawning habitat and access to increase salmon
productivity which contributes to and enhances the bull trout prey
base. In addition, the Navy conducts essential training and testing
within the marine waters of Crescent Harbor and Dabob Bay. These
activities are conducted in open marine waters not controlled by the
military, and are not included in adjacent military INRMPs. However,
because these training and testing activities are essential for
national security, they have been excluded from the final designation
of critical habitat under section 4(b)(2) of the Act.
These military installations with INRMPs do not have streams that
are utilized by bull trout for spawning and rearing. The Naval Radio
Station Jim Creek occurs in the Jim Creek watershed. The lower reaches
of Jim Creek provide foraging habitat for subadult and adult bull
trout. The Naval Station Everett and Naval Air Station Whidbey Island
property includes land on or near the shores of Puget Sound that
contains important foraging and migration habitat for amphidromous bull
trout. Fort Lewis borders the Nisqually River and Puget Sound where the
mainstem Nisqually River and Puget Sound nearshore bordering this
property contain important foraging and migration habitat for
amphidromous bull trout.
Habitat features essential to bull trout conservation exists within
or immediately adjacent to these military installations. Designating
critical habitat on these military installations may impact their role
in supporting ongoing military exercises and operations that occur at
these locations. These military installations all have approved INRMPs,
and activities occurring on these properties are currently being
conducted in a manner that minimizes impacts to bull trout habitat. In
addition, these installations already consult with us on their actions
(including those occurring in the open water training and testing
areas) that may have adverse affects to bull trout and their habitat
under section 7 requirements.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the INRMPs will provide benefits to the bull trout
occurring in streams within or adjacent to Naval Radio Station Jim
Creek, Naval Air Station Whidbey Island, and Fort Lewis. Approximately
25 mi (40 km) of essential habitat is not included in this critical
habitat designation. Therefore, we are not including critical habitat
for bull trout on these installations pursuant to section 4(a)(3) of
the Act.
Section 3(5)(A) and Exclusions Under Section 4(b)(2)
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species, and (ii) which may require special
management considerations or protection. Therefore, areas within the
geographic area occupied by the species that do not contain the
features essential to the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographic
area occupied by the species that require no special management or
protection also are not, by definition, critical habitat.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans as well as
management under Federal agencies jurisdictions can provide protection
and management to avoid the need for designation of critical habitat.
When we consider a plan to determine its adequacy in protecting
habitat, we consider whether the plan, as a whole will provide the same
level of protection that designation of critical habitat would provide.
The plan need not lead to exactly the same result as a designation in
every individual application, as long as the protection it provides is
equivalent, overall. In making this determination, we examine whether
the plan provides management, protection, or enhancement of the PCEs
that is at least equivalent to that provided by a critical habitat
designation, and whether there is a reasonable expectation that the
management, protection, or enhancement actions will continue into the
foreseeable future. Each review is particular to the species and the
plan, and some plans may be adequate for some species and inadequate
for others.
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if [s]he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless [s]he determines, based on the best scientific
and commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species. In
making that determination, the Secretary is afforded broad discretion
and the Congressional record is clear that in making a determination
under the section the Secretary has discretion as to which factors and
how much weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, determine whether the benefits
of exclusion outweigh the benefits of inclusion. If an exclusion is
contemplated, then we must determine
[[Page 56239]]
whether excluding the area would result in the extinction of the
species. In the following sections, we address a number of general
issues that are relevant to the exclusions we considered.
Relationship Between Adverse Modification and Jeopardy in Bull Trout
and Bull Trout Critical Habitat Consultations
In Gifford Pinchot Task Force v. United States Fish and Wildlife
Service, the Ninth Circuit held that the Service's regulatory
definition of ``destruction or adverse modification'' was contrary to
the ESA because it required an affect on the survival of the species,
in addition to an effect on recovery. In response, on December 9, 2004,
the Acting Director of the Service issued guidance on conducting
section 7 consultations with respect to critical habitat until a new
regulatory definition could be put in place. The analytical framework
presented in this memo directs us to consider whether, with
implementation of the proposed action, critical habitat would remain
functional to serve the intended conservation role for the species.
Although Gifford Pinchot provides guidance regarding the
interpretation of the statutory phrase ``destruction or adverse
modification,'' it does not directly speak to the meaning of
``jeopardy.'' In order to determine the benefits of including or
excluding an area as critical habitat, we must consider the application
of both of these terms, and how they will be affect the outcomes of
future section 7 consultations regarding bull trout.
In its jeopardy determinations under bull trout Section 7
consultations, the Service uses an analytical framework that relies
heavily on the importance of core area populations to the survival and
recovery of the bull trout. This has been the case for all jeopardy
consultations on the bull trout. These analyses have focused not only
on the core area populations but also on the habitat conditions
necessary to support them; they have addressed the survival and
recovery needs of the bull trout in a qualitative fashion without
making distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted. This approach is predicated on
the Service's regulatory definitions of ``harm'' and ``take'' which
explicitly require a consideration of an agency action's effects on
habitat, whether or not it is designated as critical.
Subsequent to the 9th circuit's decision in Gifford Pinchot the
Service has conducted both a jeopardy and adverse modification analysis
for consultations involving critical habitat. In conducting the adverse
modification analysis, the Service has applied the analytical framework
described in the Director's December 9, 2004, memorandum. The ultimate
question in this analysis is whether, with implementation of the
proposed Federal action, the primary constituent elements of affected
critical habitat would remain functional to serve the intended
conservation role for the bull trout. Generally, the conservation role
of bull trout critical habitat units is to support viable core area
populations, as a result, adverse modification to that habitat would
result in both a jeopardy determination or an adverse modification
determination. This leads to the conclusion, in the particular case of
bull trout that very few examples of adverse modification can occur
without also triggering a jeopardy finding.
Some consultations (14 informals, 8 formals) on bull trout critical
habitat have been conducted in the 9 months since the original
designation. These consultations have not resulted in outcomes for
Federal action agencies different than those that would have resulted
in consultations purely under the jeopardy standard. As stated earlier,
this result is due in particular to the manner in which the Service
conducts jeopardy analyses for the bull trout (by focusing on
protection of core area populations and their habitats, without making
a distinction between effects on survival versus recovery. The approach
is consistent with the Gifford Pinchot court's guidance with respect to
adverse modification, because it is based on a standard that gauges the
action's effect on conservation rather than survival which is
consistent with the court's direction that the Agency go beyond merely
a requirement that the Federal action cause an effect on bull trout
survival in order to constitute adverse modification.
We also note that in the 200 or so formal consultations completed
since the bull trout was listed, most of the anticipated effects of
proposed Federal actions on the species have not been biologically
significant from a core-area perspective, and if these actions had been
subject to the adverse modification standard described above, they
would not likely have violated it. Based on our analysis of 137 formal
consultations conducted during the period 1998-2003, the following
types of projects were proposed in bull trout-occupied habitat, in
order of frequency (most to least): Multiple project actions, grazing,
road work, bridge work, habitat restoration, land and resource
management plans, mining, hydropower, timber harvest, recreation, water
diversion/irrigation, research, land exchange, flood control, erosion
control, pipeline construction, predator control, landslide
remediation, instream crossings, weed management, dredging, and levee
repair.
However, at least one major Federal action involving significant
modifications to natural flow patterns in designated critical habitat
is currently in formal consultation, and it is likely (based on recent
litigation patterns and outcomes) that the number of diversion-related
Federal actions consulted on, some of which may occur in critical
habitat, will increase in the future. Water quality and quantity are
significant factors (and primary constituent elements) influencing the
viability of bull trout core areas. Given that context, it seems
reasonable to predict that a few Federal actions will be found to
adversely modify bull trout critical habitat; most of these actions
would probably also constitute jeopardy.
This analysis would be different in the case of critical habitat
designated in unoccupied areas or if currently occupied areas
subsequently become unoccupied. In such cases, different outcomes/
requirements of consultation on critical habitat are much more likely.
In the first case, designated unoccupied habitat, there would not
necessarily be a requirement for a Section 7 consultation in the
absence of a critical habitat designation. This is consistent with the
9th Circuit's decision in Defenders of Wildlife v. Flowers et al. 2005,
414 F.3d 1066 (2005), which upheld a ``no effect'' determination by the
U.S. Army Corps of Engineers in circumstances in which ``no pygmy-owls
had been found to live within either project area. This designation
only designates critical habitat in areas we have defined to be
occupied, and so the benefits attributable to unoccupied habitat
designation will not accrue. The second situation identified, whereby
current populations disappear, theoretically provides a similar
benefit. However, as a practical matter, it is unlikely that such a
benefit would accrue in the foreseeable future as this rule defines
occupied habitat as habitat that has documented occupancy within the
past 20 years (see the previous discussion for the basis of the
definition). Based on the FWS definition of occupied habitat, it would
be at least
[[Page 56240]]
20 years until the protections of a jeopardy consultation, with its
appurtenant habitat considerations, were removed. Accordingly, we do
have a basis for believing that in the particular case of this bull
trout critical habitat, designation in the particular case of the bull
trout would not result in significantly different protections to the
species.
Benefits of Designating Critical Habitat in the Absence of Other
Conservation Efforts
The designation of critical habitat provides some benefits all the
time and may in certain circumstances provide conservation benefits
that would not otherwise be provided. We have identified three types of
possible benefits. First, there are educational benefits. Second, there
are circumstances where additional protections under other regulatory
mechanisms are triggered by a designation. For example PACFISH/INFISH
has particular protections triggered by a designation and some states
have regulatory regimes that employ the existence of designated
critical habitat as a trigger for protection. Third, in the instance
that a future Federal action would be likely to adversely modify
critical habitat but not likely to jeopardize the continued existence
of the species, the designation would provide a benefit.
The benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and contribute to conservation
efforts by other parties by clearly delineating areas of high
conservation value for bull trout. In general the educational benefit
of a critical habitat designation always exists although in some cases
it may be redundant with other educational effects (for example habitat
conservation plans have significant public input and may largely
duplicate the educational benefit of a critical habitat designation).
This benefit is closely related to a second, more indirect benefit; in
that designation of critical habitat would inform State agencies and
local governments about areas that could be conserved under State laws
or local ordinances, such as the Washington State Growth Management Act
or Washington State Shoreline Management Act which encourage the
protection of ``critical areas'' including fish and wildlife habitat
conservation areas based on the best available science. Designating
critical habitat could lead to additional State or local restrictions
for the landowner, on top of conservation measures already in place.
The benefit could accrue as a result of an automatic ``triggering''
based on existing law, or through specific, subsequent actions designed
to protect the species. However, to the extent that local and state
governments wish to provide additional protection for listed species'
habitats, there are numerous alternative approaches to achieve that
end. For example, recovery plans or proposed critical habitat can form
the basis for such additional protections. State and local agencies
have independent authority to adopt such protections and do not require
Federal authorization or direction to do so. Because of that, we view
this benefit as indirect as it is not required to achieve the
additional protection.
The most direct, and potentially largest regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation pursuant to section 7 of the Act to
ensure that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat. Second, it only limits destruction
or adverse modification. By its nature, the prohibition on adverse
modification is designed to unsure those areas that contain the
physical and biological features essential to the conservation of the
species or unoccupied areas that are essential to the conservation are
not eroded. Critical habitat designation alone, however, does not
require specific steps toward recovery. When consultation does take
place, the analysis of whether the Federal action destroys or adversely
modifies critical habitat makes a determination regarding the effect of
the action on the species conservation, consistent with the holding of
Gifford Pinchot, discussed above. It is important to note that even
though, consistent with Gifford Pinchot, the prohibition on adverse
modification can be triggered without a showing of an effect on
survival (in other words, a negative effect on the conservation of the
species can trigger the prohibition), designation of critical habitat
does not require actions to recover the species beyond what may be
necessary to address potential adverse modification impacts on critical
habitat that supports recovery. There are tools (e.g., HCPs) that can
encourage or require habitat restoration or improvement and other
positive steps to help move species closer to being recovered.
Another significant limitation on the benefits of designating
critical habitat is the fact that as long as the area in question is
occupied, consultation would in any case be required to ensure that the
action was not likely to jeopardize the species. The areas that were
proposed for designation are all currently occupied by bull trout.
Therefore, designation of these areas could have a substantive
regulatory effect in two circumstances: (1) The Service consults on a
future Federal action, does both jeopardy and adverse modification
analyses, and concludes that the action would likely adversely modify
critical habitat but not jeopardize the species, or (2) the range of
the bull trout contracts prior consultation, such that the area is no
longer subject to jeopardy consultation, but the action would be likely
to adversely modify critical habitat.
Regarding the first of these circumstances, and in a discussion
specific to bull trout, as discussed above, in analyzing whether
Federal actions might jeopardize the continued existence of the bull
trout, the Service has focused on the viability of core area
populations, without making distinctions between what is necessary for
survival versus recovery. Because with respect to the bull trout the
Service views the conservation role of critical habitat units as
supporting viable core area populations, the Service anticipates that
few Federal actions (but not necessarily none) would adversely modify
critical habitat but not jeopardize the species.
Regarding the second of these circumstances, for each exclusion,
the Service considered the possibility of local bull trout extirpation
in the affected stream reaches given the data available. In general,
the Service does not anticipate significant extirpations in the areas
excluded, although such an event cannot be completely ruled as
stochastic events such as a conflagration have in the past completely
destroyed populations. If such an event was to occur, and an entire
population was extirpated, the designation of critical habitat could
provide important protection to the habitat to preserve it for eventual
recolonization or reintroduction. However, as noted earlier, as a
practical matter, the Service would consider the habitat occupied for
20 years subsequent to the temporal extirpation, providing ample
opportunity for restoration of the population.
Notwithstanding the limitations discussed above, in those instances
in
[[Page 56241]]
which the jeopardy prohibition and other applicable protections would
not adequately conserve bull trout habitat from the effects of Federal
actions, designation of critical habitat could help ensure the
integrity of bull trout habitat is maintained. For example, if a
federally funded road project was proposed to go across lands that were
designated as critical habitat, a consultation would need to be
conducted to ensure the designated critical habitat was not destroyed
or adversely modified to the point of appreciably diminishing its
habitat features essential to bull trout recovery. The designation
could therefore result in modifications to the Federal project to
protect bull trout habitat.
To the extent that designation results in changes to actions that
have a negative effect on bull trout habitat, minimizing or mitigating
that effect, or results in additional actions to benefit bull trout
habitat (e.g., as a result of disseminating information), designation
could benefit bull trout conservation. If the designation provided
additional conservation, it could have direct benefits, such as those
typically captured in an economic analysis which include, increased
tourism or recreational activity. In addition, there could be
intangible benefits that accrue to society in general and individuals
in direct proportion to the value that society and individuals place on
such intrinsic values as existence values and environmental goods.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-federal landowners. More than 60% of the
United States is privately owned (National Wilderness Institute 1995)
and at least 80% of endangered or threatened occur either partially or
solely on private lands (Crouse et al. 2002). Stein et al. (1995) found
that only about 12% of listed species were found almost exclusively on
Federal lands (i.e., 90-100% of their known occurrences restricted to
Federal lands) and that 50% of federally listed species are not known
to occur on Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-federal landowners
(Wilcove and Chen 1998, Crouse et al. 2002, James 2002). Building
partnerships and promoting voluntary cooperation of landowners is
essential to understanding the status of species on non-federal lands
and is necessary to implement recovery actions such as reintroducing
listed species, habitat restoration, and habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Four Cs philosophy--conservation through
communication, consultation, and cooperation. This philosophy is
evident in Service programs such as HCPs, Safe Harbors, CCAs, CCAAs,
and conservation challenge cost-share. Many private landowners,
however, are wary of the possible consequences of encouraging
endangered species to their property, and there is mounting evidence
that some regulatory actions by the Federal government, while well-
intentioned and required by law, can under certain circumstances have
unintended negative consequences for the conservation of species on
private lands (Wilcove et al. 1996, Bean 2002, Conner and Mathews 2002,
James 2002, Koch 2002, Brook et al. 2003). Many landowners fear a
decline in their property value due to real or perceived restrictions
on land-use options where threatened or endangered species are found.
Consequently, harboring endangered species is viewed by many landowners
as a liability, resulting in anti-conservation incentives because
maintaining habitats that harbor endangered species represents a risk
to future economic opportunities (Main et al. 1999, Brook et al. 2003).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999, Bean
2002, Brook et al. 2003). The magnitude of this negative outcome is
greatly amplified in situations where active management measures (e.g.,
reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002).
The Service believes that the judicious use of excluding specific
areas of non-federally owned lands from critical habitat designations
can contribute to species recovery and provide a superior level of
conservation than critical habitat alone. For example, less than 17% of
Hawaii is federally owned, but the state is home to more than 24% of
all federally listed species, most of which will not recover without
State and private landowner cooperation. On the island of Lanai, Castle
and Cooke Resorts, LLC, which owns 99% of the island, entered into a
conservation agreement with the Service. The conservation agreement
provides conservation benefits to target species through management
actions that remove threats (e.g. axis deer, mouflon sheep, rats,
invasive nonnative plants) from the Lanaihale and East Lanai Regions.
Specific management actions include fire control measures, nursery
propagation of native flora (including the target species) and planting
of such flora. These actions will significantly improve the habitat for
all currently occurring species. Due to the low likelihood of a Federal
nexus on the island we believe that the benefits of excluding the lands
covered by the MOA exceeded the benefits of including them. As stated
in the final critical habitat rule for endangered plants on the Island
of Lanai:
On Lanai, simply preventing ``harmful activities'' will not slow
the extinction of listed plant species. Where consistent with the
discretion provided by the Act, the Service believes it is necessary
to implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove
or reduce disincentives to conservation. While the impact of
providing these incentives may be modest in economic terms, they can
be significant in terms of conservation benefits that can stem from
the cooperation of the landowner. The continued participation of
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and
Watershed Partnership and other voluntary conservation agreements
will greatly enhance the Service's ability to further the recovery
of these endangered plants.
Secretary Norton's Four Cs philosophy--conservation through
communication, consultation, and cooperation--is the foundation for
developing the tools of conservation. These tools include conservation
grants, funding for Partners for Fish and Wildlife Program, the Coastal
Program, and cooperative-conservation challenge cost-share grants. Our
Private Stewardship Grant program and Landowner Incentive Program
provide assistance to private land owners in their voluntary efforts to
protect threatened, imperiled, and endangered
[[Page 56242]]
species, including the development and implementation of HCPs.
Conservation agreements with non-Federal landowners (e.g., Habitat
Conservation Plans (HCPs), contractual conservation agreements,
easements, and stakeholder-negotiated State regulations) enhance
species conservation by extending species protections beyond those
available through section 7 consultations. In the past decade we have
encouraged non-Federal landowners to enter into conservation
agreements, based on a view that we can achieve greater species
conservation on non-Federal land through such partnerships than we can
through coercive methods (61 FR 63854; December 2, 1996).
Conservation Efforts for Aquatic Systems in the Pacific Northwest
As discussed below, much of the area that contains the physical and
biological features essential for the conservation of bull trout have
not been included within this final critical habitat designation. In
large part, this is a result of existing management and conservation
regimes that apply to watersheds in the Pacific Northwest. These and
other state and local conservation planning efforts provide an
exceptional level of cooperative conservation for bull trout and other
salmonids.
Analysis of Particular Plans and Areas Under Sections 3(5)(A) and
4(b)(2) (For a complete documentation of our 3(5)(a) comparison of the
protections of a critical habitat designation and the provisions of the
management plans, please refer to the administrative record. For a
complete documentation of our and 4(b)(2) analyses, please refer to our
supporting document.)
Nisqually National Wildlife Refuge
The Comprehensive Conservation Plan (CCP) for the Nisqually
National Wildlife Refuge (Refuge) was finalized in August 2004 and the
ROD was signed on November 1, 2004. The Refuge encompasses the lower
Nisqually River and delta, one of the few undeveloped large estuaries
remaining within Puget Sound in Washington, and provides important FMO
habitat for amphidromous bull trout. The CCP will guide management of
Refuge operations, habitat restoration, and visitor services for the
next 15 years. The preferred alternative maximizes estuarine
restoration by increasing the current amount of FMO habitat for
amphidromous bull trout in south Puget Sound, while still providing
freshwater wetlands and riparian habitat on the Refuge. Restoration of
the estuary is expected to result in increased primary production and
thus increased food availability for nearly all fish species which
depend upon estuarine and shallow marine habitats for survival,
including prey fish species preferred by bull trout. We believe the CCP
provides the appropriate special management required for the
conservation of bull trout PCEs in this area and is, therefore, not
appropriate for designating as critical habitat.
Tribal Lands
The longstanding and distinctive relationship between Federal and
tribal governments is defined by treaties, statutes, executive orders,
judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
We identified tribal lands within proposed critical habitat where
there was a tribal management or conservation plan, or the commitment
to establish such a plan, that provided benefits to bull trout and
considered whether or not to exclude these lands from critical habitat
under subsection 4(b)(2) of the Act. Tribal lands meeting these
criteria are: Confederated Tribes of Warm Springs (CTWS) in the
Columbia River population; Blackfeet Nation in the Saint Mary/Belly
River population; and Swinomish Tribe, Quinault Indian Nation,
Muckleshoot Tribe, Jamestown S'Klallam Tribe, Hoh Tribe, and Skokomish
Tribe Reservations and tribal lands within the Puget Sound-Coastal
population. These tribes have played a significant role in the
development of HCPs, local watershed plans, other habitat plans, or
have conducted numerous habitat restoration and research projects
designed to protect or improve habitat for listed species.
The CTWS has a long history of carrying out proactive conservation
actions on their lands. Our dialog with CTWS has led us to believe that
their resource management strategy is largely compatible with bull
trout conservation. The CTWS have cooperated with Federal and State
agencies, and private organizations to implement voluntary proactive
conservation activities on their lands that have resulted in tangible
conservation benefits for bull trout. We expect this cooperation, and
the fruit that it bears (i.e., bull trout conservation), to continue.
The Blackfeet Nation has demonstrated a commitment to conservation,
protection, and enhancement of the fishery resource on the Blackfeet
Reservation. The tribe has supported and participated in Service
studies to gather data for assessing effects of the Milk River
Irrigation System on bull trout within the Saint Mary River drainage.
They have changed angling regulations on their reservation to maximize
bull trout protection since the species was listed. The tribe has also
participated in the bull trout recovery planning process and has
recently made a commitment to complete a tribal bull trout management
plan (W.A. Talks About, Blackfeet Tribal Business Council, in litt.
2005).
The Swinomish Tribe has a management plan that addresses surface
water resources of the Swinomish Reservation, including marine
tidelands, an artificial marine channel, estuarine wetlands, small
streams, and freshwater wetlands. The management plan is based on
existing knowledge and ongoing studies, active conservation practices,
ordinances, and current management plans. It will be updated with new
information obtained from ongoing surveys, habitat assessments, and
other planning processes. The plan consists of regulation and
implementation of updated tribal laws to protect habitat, control
development, reduce pollution within the boundaries of the Reservation,
restore habitat and remove fish passage barriers to contribute
proactively to species recovery.
The Quinault Indian Nation and the Bureau of Indian Affairs (BIA)
recently developed a forest management plan (FMP) for the entire
Quinault Indian Reservation. The FMP covers all forestland (about
173,000 ac (70,011 ha)) under tribal and BIA timber management,
including individual Indian-owned trust and tribally owned land.
Included in the area of the FMP are the lower Quinault River, the
tributaries of the lower Quinault River, the lower Queets River, the
Salmon River (including the Middle and South Fork Salmon Rivers),
portions of the Raft River, and portions of the Moclips River. The FMP
is a 10-year plan covering the period from October 2002 through
September 2012. The FMP is being implemented by the Quinault Department
of Natural Resources and the BIA Taholah Field Office. Although some
adverse effects to the bull trout are expected during implementation of
the
[[Page 56243]]
plan, it is expected to provide for bull trout conservation needs.
The Skokomish Tribe has provided aquatic resource protection and
restoration through a number of collaborative efforts on their
reservation and other trust lands. The tribe has been working regularly
with landowners, local governments, and others to implement and fund
voluntary efforts that provide conservation benefits to salmonids,
including bull trout. These cooperative efforts include a variety of
investigative assessments, restoration and enhancement projects,
property acquisitions, and floodplain/river reach analysis.
The Muckleshoot Tribe has demonstrated a commitment to
conservation, protection, and enhancement of fish resources both on and
off the Muckleshoot Reservation. For example, the tribe has designated
all areas of the White River within its reservation, from ``bluff to
bluff,'' as a conservation zone. The tribe has also been a leading
participant in gathering data for Lake Washington and preparing a Lake
Washington Recovery Plan.
The Jamestown S'Klallam Tribe has a record and reputation as a
participant and leader in the planning and implementation of salmonid
habitat protection and restoration efforts. The tribe is dedicated to
coordinating with NOAA Fisheries, the Service, and with the State of
Washington in the spirit of co-management, and is also involved in
active consultation and in multiple programs to protect listed salmonid
species.
The Hoh Tribe has an FMP that demonstrates a commitment to protect
bull trout habitat on or adjacent to its reservation. This forestry
plan designates major portions of the floodplain and riparian zones
adjacent to streams on the current reservation landscape for
conservancy, and is filed with the BIA.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
Federal activities will require section 7 consultations to ensure that
adequate protection is provided to avoid adverse modification or
destruction of critical habitat. This would provide an additional
benefit beyond that provided under the jeopardy standard. In evaluating
project effects on critical habitat, the Service must be satisfied that
the primary constituent elements (PCEs) of the critical habitat likely
will not be altered or destroyed by proposed activities to the extent
that the conservation of the affected species would be appreciably
reduced. If critical habitat were designated in areas of unoccupied
habitat or currently occupied areas subsequently become unoccupied,
different outcomes/requirements are also likely since effects to
unoccupied areas of critical habitat are not likely to trigger the need
for a jeopardy analysis.
In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir.
2001), the Fifth Circuit Court of Appeals stated that the
identification of habitat essential to the conservation of the species
can provide informational benefits to the public, State and local
governments, scientific organizations, and Federal agencies. The court
also noted that critical habitat designation may focus and heighten
public awareness of the plight of listed species and their habitats.
Designation of critical habitat may contribute to conservation efforts
by other parties by delineating areas of high conservation value for
the bull trout.
(2) Benefits of Exclusion
The benefits of excluding Indian lands from designation include:
(1) The furtherance of established national policies, our Federal trust
obligations, and our deference to the tribes in management of natural
resources on their lands; (2) the maintenance of effective long-term
working relationships to promote the conservation of bull trout; (3)
the allowance for continued meaningful collaboration and cooperation in
scientific work to learn more about the conservation needs of the
species; (4) continued respect for tribal sovereignty over management
of natural resources on Indian lands through established tribal natural
resource programs; (5) to the extent designation would provide any
additional protection of bull trout habitat, costs associated with that
protection would be avoided; (6) exclusion would reduce administrative
costs of section 7 consultation (as discussed above, these costs are
unlikely to lead to additional actual protection for bull trout
habitat).
We believe that excluding these tribal lands from critical habitat
will help maintain and improve our partnership relationship by
recognizing their positive contribution to bull trout conservation. It
will also reduce the cost and logistical burden of regulatory
oversight. We believe this recognition will provide other landowners
with a positive incentive to undertake voluntary conservation
activities on their lands, especially where there is no regulatory
requirement to implement such actions.
Tribal cooperation and support is required to prevent extinction
and promote the recovery of the bull trout due to the need to implement
proactive conservation actions. Future conservation efforts will
require the cooperation of these tribes. Exclusion of their lands from
this critical habitat designation will help us maintain and improve our
partnership with them by formally recognizing the positive
contributions these tribes have made to bull trout recovery, and by
streamlining or reducing unnecessary regulatory oversight.
These tribes have cooperated with us to implement proactive
conservation measures. They have cooperated with Federal and State
agencies, and private organizations to implement voluntary conservation
activities on their lands that have resulted in tangible conservation
benefits.
Where consistent with the discretion provided by the Act, we
believe it is necessary to implement policies that provide positive
incentives to voluntarily conserve natural resources and remove or
reduce disincentives to conservation. Thus, we believe it is essential
for the recovery of bull trout to build on continued conservation
activities with these tribes, to provide positive incentives
implementing voluntary conservation activities, and to respect tribal
concerns about incurring incidental regulatory or economic impacts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
It is possible, although unlikely, that Federal actions will be
proposed that would be likely to destroy or adversely modify the
habitat proposed as critical within the area governed by the above
tribes. If such a project was proposed, due to the specific way in
which jeopardy and adverse modification are analyzed for bull trout,
discussed in detail above, it would likely also jeopardize the
continued existence of the species. Few additional benefits are
provided by including these tribal lands in this critical habitat
designation beyond what will be achieved through the implementation of
the existing tribal management/conservation plans. In addition, we
expect that the benefit of informing the public of the importance of
this area to bull trout conservation would be slight. Therefore, we
assign relatively little weight to the benefits of designating this
area as critical habitat.
In contrast, although the benefits of encouraging participation in
tribal management plans, and, more broadly, helping to foster
cooperative conservation are indirect, enthusiastic
[[Page 56244]]
tribal participation and an atmosphere of cooperation are crucial to
the long-term effectiveness of the endangered species program.
Therefore, we assign great weight to these benefits of exclusion. To
the extent that there are regulatory benefits of including, there would
be associated costs that could be avoided by excluding the area from
designation. However, as we expect the regulatory benefits to be
slight, we likewise give little weight to avoidance of those associated
costs, as well as the additional transaction costs related to section 7
compliance. Finally, we recognize the importance of the trust and
sovereignty of the tribes, and therefore assign great weight to these
benefits of exclusion.
Therefore, we have determined that the benefits of inclusion for
the tribes mentioned above are small, while the benefits of exclusion
are more significant. Therefore, the benefits of exclusion outweigh the
benefits of inclusion. Because we anticipate that little if any
conservation benefit to the bull trout will be foregone as a result of
excluding these lands, the exclusion will not result in the extinction
of the bull trout. The Secretary exercises her discretion under section
4(b)(2) to exclude these areas from the designation.
Military Lands
The Navy conducts essential open water training and testing within
the marine waters of Crescent Harbor and Dabob Bay, located within
Puget Sound on the eastside of Whidbey Island and within the Hood Canal
fiord, respectively. These areas encompass important marine nearshore
habitat used by amphidromous bull trout for foraging and migration.
NUWC Keyport provides state-of-the-art infrastructure and capabilities
in the Pacific Northwest that have been essential to the Navy's
comprehensive underwater test and evaluation programs for undersea
weapons, unmanned undersea vehicles, and related combat systems, as
well as to the training of Fleet personnel at the NUWC Keyport
facilities. NUWC Keyport testing and training activities to support
military readiness requires precision underwater tracking capabilities,
underwater range sites that offer diverse environments, and varied
water depths to meet their mission of test and evaluation of underwater
systems. Because these activities are conducted in open marine waters,
they are not included in the military's INRMP. Limitations on access
to, the use of, or the enhancement of, the existing capabilities and
capacities of these ranges would limit or curtail both testing and
mission critical Fleet Support functions performed by NUWC Keyport for
undersea warfare. These areas have been defined on NOAA charts for over
50 years and operating areas have been further delineated in recent
public environmental documentation. A NEPA analysis for these areas has
been conducted within the past 5 years, and includes biological
assessments evaluating effects on endangered species, which were
reviewed and approved by NOAA-Fisheries and the Service. These
biological assessments, and associated environmental assessments,
addressed bull trout and interactions with military range operations.
(1) Benefits of Inclusion
Habitat containing features essential to bull trout conservation
exists within or immediately adjacent to these military open water
training and testing grounds. The primary benefit of designating
critical habitat on, or adjacent to, these open water training and
testing grounds would result from the requirement under section 7 of
the Act that Federal agencies consult with us to ensure that any
proposed action authorized, funded, or carried out by a Federal agency
would not destroy or adversely modify critical habitat. In addition,
the designation can educate the public regarding the potential
conservation value of an area. This may contribute to conservation
efforts by other parties by delineating areas that have conservation
value for the bull trout.
(2) Benefits of Exclusion
Designating critical habitat on these open water training and
testing areas may impact their role in supporting ongoing military
exercises and operations that occur at these locations. The military
activities occurring at these sites are currently being conducted in a
manner that minimizes impacts to bull trout habitat. In addition, the
Navy already consults with us on their actions occurring in the open
water training and testing areas that may have potential impacts to
bull trout and their habitat under section 7 requirements.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Because of the relatively limited benefits arising from the
designation of critical habitat, we believe the role played in
supporting Navy operations, and the related importance to national
security of ensuring their ability to maintain a high level of military
readiness, we have determined that the national security benefits of
excluding areas within or adjacent to the Crescent Harbor and Dabob Bay
open water training and testing areas as critical habitat, outweigh the
benefits of including them in the designation. Because these marine
waters are occupied by the species, and the Navy has a statutory duty
under section 7 to ensure that its activities do not jeopardize the
continued existence of the bull trout, we find that the exclusion of
these marine waters will not lead to the extinction of the bull trout.
Habitat Conservation Plans
Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and
threatened species. This permit allows a non-Federal landowner to
proceed with an activity that is legal in all other respects, but that
results in the incidental taking of a listed species (i.e., take that
is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The ESA specifies that an application for
an incidental take permit must be accompanied by a conservation plan,
and specifies the content of such a plan. The purpose of conservation
agreements is to describe and ensure that the effects of the permitted
action on covered species are adequately minimized and mitigated, and
that the action does not appreciably reduce the survival and recovery
of the species.
In our assessment of conservation agreements associated with this
final rulemaking the analysis required for these types of exclusions
requires careful consideration of the benefits of designation versus
the benefits of exclusion to determine whether benefits of exclusion
outweigh benefits of designation. The benefits of designation typically
arise from additional section 7 protections as well as enhanced public
awareness once specific areas are identified as critical habitat. The
benefits of exclusion generally relate to relieving regulatory burdens
on existing conservation partners, maintaining good working
relationships with them, and encouraging the development of new
partnerships.
Based on comments received on our proposed rule, we could not
conclude that all landowners view designation of critical habitat as
imposing a burden, and exclusion from designation as removing that
burden and thereby strengthening the ongoing relationship. While no
conservation agreement partner affirmatively requested designation, we
would have viewed the exclusion as likely to harm rather than benefit
the relationship. Where a conservation agreement partner has
[[Page 56245]]
remained silent on the benefit of exclusion of its land, we do not
believe the record supports a presumption that exclusion will enhance
the relationship. Similarly, we do not believe it provides an incentive
to other landowners to seek a conservation agreement if our exclusions
are not in response to an expressed landowner preference. We anticipate
further rulemaking in the future to refine these designations, for
example, in response to developments in recovery planning. As part of
future revisions, we will consider information we receive from those
with approved conservation agreements regarding the effect of
designation on our ongoing partnership. While we have done so in the
past, in this rulemaking we did not consider any pending HCPs for
exclusion, primarily because none of the pending HCPs were at a point
we could do so without prejudging the outcome of the ongoing HCP
process and because we expect further changes to the developing HCPs.
In addition, we expect to have future opportunities to refine this
designation to provide credit for future activities on private lands as
well as currently ongoing activities for which there was insufficient
time to adequately review and make a benefits determination. When we
review this designation in the future, we will consider whether any
exclusion will outweigh the benefit of designation in any particular
case.
During the comment period we received comments from five landowners
with current HCPs that they would consider exclusion as a benefit to
our ongoing relationship--Washington Department of Natural Resources
(WDNR), Green Diamond Resources Company, City of Seattle Cedar River
Watershed, Tacoma Water Green River, and Plum Creek/Stimson Lumber
Company Native Fish HCPs.
WDNR
The Washington Department of Natural Resources HCP covers about 1.6
million acres of State forest trust lands within the range of the
northern spotted owl in the state of Washington. The majority of the
HCP (approximately 1.3 million acres) occurs west of the Cascade Crest
and includes the Olympic Peninsula and Southwest Washington. The
remainder of the HCP occurs on the east side of the Cascade Mountains
within the range of the northern spotted owl. The HCP covers activities
primarily associated with commercial forest management. It is an ``all-
species'' HCP west of the Cascade Crest, which includes bull trout and
other salmonids. On the east side of the Cascade Crest, bull trout and
other aquatic species are not covered under the HCP and DNR is
therefore required to follow State Forest Practice Rules for riparian
management and other forestry activities. The DNR HCP lands on the west
side of the Olympic Peninsula are managed as the Olympic Experimental
State Forest. The multi-species portion of the HCP depends upon several
broad-scale conservation approaches: Spotted owl conservation, marbled
murrelet conservation, riparian conservation, certain species-specific
protection measures, protection of uncommon habitats, and provisions to
maintain a range of forest types across the HCP landscape.
Green Diamond HCP
In October 2000, an HCP (formerly referred to as the Simpson Timber
HCP and currently referred to as the Green Diamond HCP) was completed
and an incidental take permit was issued for forestry operations on
over 261,000 acres of the company's Washington timberlands located on
or adjacent to the Olympic Peninsula in Mason, Thurston, and Grays
Harbor Counties. The HCP is designed to conserve riparian forests,
improve water quality, prevent management-related hill-slope
instability, and address hydrological maturity of small sub-basins. The
plan addresses five listed species including bull trout and 46 other
species. The HCP covers the land owned by Green Diamond along the lower
reaches of the North Fork and South Fork Skokomish Rivers, the upper
South Fork Skokomish River, West Fork Satsop River, and Canyon River.
The HCP is designed to conserve riparian forests, improve water
quality, prevent management-related hill-slope instability, and address
hydrological maturity of small sub-basins.
City of Seattle Cedar River Watershed HCP
In April 2000, The Cedar River Watershed HCP was completed and an
incidental take permit was issued to the City of Seattle for water
withdrawal and water supply activities affecting flows in the lower
Cedar River and reservoir levels in Chester Morse Lake. In addition,
the plan provides for forestry restoration activities including
riparian thinning, road abandonment, and timber stand improvement on
over 91,000 acres in the upper Cedar River Watershed in King County.
The HCP is designed to provide adequate fish flows in the lower Cedar
River for the spawning and rearing of several salmonid species, to
manage water levels in Chester Morse Lake and Masonry Dam Reservoir to
benefit instream flows in the lower river and bull trout spawning
access to lake tributaries, and to manage 91,000 acres in the upper
Cedar River as an ecological reserve. Several research actions are
directed at understanding how all life stages of bull trout use Chester
Morse Lake and Masonry Pool and how adult bull trout use tributaries to
the lake for spawning. The HCP covers 83 species of fish and wildlife
including bull trout and six other listed species.
Tacoma Water Green River HCP
The Tacoma Water Green River Water Supply Operations and Watershed
Protection HCP was completed in July of 2001 and addresses upstream and
downstream fish-passage issues, flows in the middle and lower Green
River, and timber- and watershed-management activities on about 15,000
acres of Tacoma-owned land in the upper Green River Watershed. The HCP
covers 32 species including bull trout. This HCP required close
coordination with the U.S. Army Corps of Engineers (COE) because of
their facility at Howard Hanson Dam. Tacoma's HCP includes the
following features: An upstream fish-passage facility which will open
up 220 square miles of previously blocked fish habitat; sponsorship and
funding for a downstream fish-passage facility at the Corps of
Engineers Howard Hanson Dam; water-flow improvements; improved riparian
forest management on Tacoma's lands; and several major habitat
restoration projects.
Plum Creek/Stimson Lumber Company Native Fish HCPs
Plum Creek Timber Company initiated an effort in 1997 to develop a
conservation strategy for native salmonids (including bull trout),
occurring on 1.6 million acres of Plum Creek's Timberlands in Montana,
Idaho, and Washington. The stated purpose of the Plum Creek Native Fish
Habitat Conservation Plan (NFHCP) was to help conserve native salmonids
and their ecosystems while allowing Plum Creek to continue to conduct
commercial timber harvest within a framework of long term regulatory
certainty and flexibility. The Stimson Lumber NFHCP was created when
the Stimson Lumber Company acquired certain lands previously owned by
Plum Creek and assumed all of the Plum Creek NFHCP commitments. Because
of the commonality, for purposes of this discussion, the Plum Creek and
Stimson NFHCP are considered one and the same. The Plum Creek NFHCP
covers approximately 1.4 million acres, all within the range of the
Columbia River basin. NFHCP actions should maintain
[[Page 56246]]
a high-level of water quality. They are expected to maintain the
thermal regime of streams within the range of normal variation, and
contribute to the maintenance of complex stream channels, appropriate
substrates, a natural hydrologic regime, ground-water sources and
subsurface connectivity, migratory corridors, and an abundant food
base. NFHCP actions are not expected to introduce or favor nonnative
competitors or predators. In short, the NFHCP is expected to benefit
the aquatic environment by providing a gradual improvement in the cold
and clean water as well as complex and connected habitat necessary for
protection and restoration of bull trout.
(1) Benefits of Inclusion of the WDNR, Green Diamond, City of Seattle
Cedar River Watershed, Tacoma Water Green River, and Plum Creek/Stimson
Lumber Company Native Fish HCPs
The principal regulatory benefit of critical habitat is that
federally authorized, funded, or carried out activities require
consultation pursuant to section 7 of the Act to ensure that they will
not destroy or adversely modify critical habitat. In the recent Gifford
Pinchot decision, the 9th Circuit Court of Appeals has ruled that
adverse modification evaluations require consideration of impacts on
the recovery of species. Conducting section 7 consultations would
provide benefits on HCP lands with a Federal nexus by helping ensure
the integrity of these lands is maintained. For example, if a federally
funded road project was proposed to go across respective HCP lands that
were designated as critical habitat, a consultation would need to be
conducted to ensure the designated critical habitat was not destroyed
or adversely modified to the point of appreciably diminishing its
habitat features essential to bull trout recovery.
Designation of critical habitat facilitates state and local
regulatory agencies in taking further protective measures where
critical habitat is designated resulting in potential additional
changes in operations at the aforementioned hydroelectric projects. In
fact, State law requires consideration of additional rules and areas
for protection upon designation of critical habitat.
To the extent that critical habitat would result in environmental
protection (e.g., changes to Federal projects that otherwise would have
resulted in destruction or adverse modification) that would exceed the
protection garnered from other environmental regulations (e.g., Clean
Water Act), there would be some benefit associated with maintaining
fish passage survival standards, fish production through hatcheries to
compensate for population losses, and tributary habitat loss
compensation that would translate into economic benefits such as those
that may result from increased recreational fishing opportunities for
other species that would benefit from such management.
Another recognized benefit of including lands or sections of rivers
in critical habitat is that the designation of critical habitat serves
to educate landowners, hydroelectric operators, state and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and contribute to conservation efforts by
other parties by clearly delineating areas of high conservation value
for bull trout. Designation of critical habitat would inform state
agencies and local governments about areas that could be conserved
under state laws or local ordinances, such as the Washington State
Growth Management Act or Washington State Shoreline Management Act
which encourage the protection of ``critical areas'' including fish and
wildlife habitat conservation areas based on the best available
science.
(2) Benefits of Exclusion of the WDNR, Green Diamond, City of Seattle
Cedar River Watershed, Tacoma Water Green River, and Plum Creek/Stimson
Lumber Company Native Fish HCPs
We identified a number of possible benefits of excluding the area
covered by these HCPs from critical habitat designation. First, to the
extent designation would provide any additional protection of bull
trout habitat, costs associated with that protection would be avoided.
Second, exclusion would reduce largely redundant administrative costs
of section 7 consultation; as discussed above, these costs are unlikely
to lead to additional actual protection for bull trout habitat. Third,
exclusion would provide an incentive for participation in the
development of new HCPs. Fourth, exclusion would help to foster an
atmosphere of cooperation in the conservation of endangered species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion for the
WDNR, Green Diamond, City of Seattle Cedar River Watershed, Tacoma
Water Green River, and Plum Creek/Stimson Lumber Company Native Fish
HCPs
As discussed above, it is possible, although unlikely, that any
Federal action will be proposed that would be likely to destroy or
adversely modify the habitat proposed as critical within the area
governed by these HCPs. If such a project was proposed, due to the
specific way in which jeopardy and adverse modification are analyzed
for bull trout, discussed in detail in the preamble, it would likely
also jeopardize the continued existence of the species. In addition, as
discussed above, we expect that the benefit of informing the public of
the importance of this area to bull trout conservation would be slight.
Therefore, we assign relatively little weight to the benefits of
designating this area as critical habitat.
In contrast, although the benefits of encouraging participation in
HCPs, particularly large-scale HCPs, and, more broadly, helping to
foster cooperative conservation are indirect, enthusiastic HCP
participation and an atmosphere of cooperation are crucial to the long-
term effectiveness of the endangered species program. Therefore, we
assign great weight to these benefits of exclusion. To the extent that
there are regulatory benefits of including, there would be associated
costs that could be avoided by excluding the area from designation.
However, as we expect the regulatory benefits to be slight, we likewise
give little weight to avoidance of those associated costs, as well as
the additional transaction costs related to section 7 compliance.
Therefore, we have determined that the benefits of inclusion of the
areas covered by these HCPs are small, while the benefits of exclusion
are more significant. Therefore, the benefits of exclusion outweigh the
benefits of inclusion. Because we anticipate that little if any
conservation benefit to the bull trout will be foregone as a result of
excluding these lands, the exclusion will not result in the extinction
of the bull trout. The Secretary exercises her discretion under section
4(b)(2) to exclude these areas from the designation (see comprehensive
exclusion language in the preamble).
For those conservation agreements, we analyzed the activities
covered by the agreement, the protections afforded by the agreement,
and the Federal activities that are likely to occur on the affected
lands. We considered the number of stream miles within these lands and
the number of expected section 7 consultations in those areas. From
this information we determined the benefit of designation, which we
then weighed against the benefit of exclusion. We concluded that the
benefits of exclusion species outweigh the benefits of designation and
therefore have excluded lands covered by these agreements in this final
designation.
[[Page 56247]]
The analysis is described in further detail in the FWS Administrative
Record. We have determined that these exclusions, together with the
other exclusions described in this rule, will not result in extinction
of the species (for a complete documentation of our 3(5)(a) and 4(b)(2)
analyses, please refer to our supporting document, Bull Trout Critical
Habitat 3(5)(a) and 4(b)(2) Analyses).
Lewis River Hydroelectric Projects Conservation Easements
There are four projects and three dams that impound over 30 miles
of river habitat on the Lewis River in Washington. They are located in
portions of Clark, Cowlitz, and Skamania Counties. Bull trout are
present in all of the reservoirs; the upper two reservoirs have the
most significant populations and also support spawning populations. A
Settlement Agreement (Agreement) for the relicensing of the Yale,
Merwin, Swift No. 1, and Swift No. 2 hydroelectric projects was signed
on November 30, 2004. Conservation measures are incorporated in the
Agreement to minimize or compensate for the effects of the projects on
listed species, including bull trout. Conservation measures for bull
trout include perpetual conservation covenants on PacifiCorp's lands in
the Cougar/Panamaker Creek area and PacifiCorp's and Cowlitz PUD's
lands along the Swift Creek arm of Swift Creek Reservoir, upstream and
downstream fish passage improvements at all reservoirs, limiting-
factors analysis for bull trout to determine additional enhancement
measures, public information program to protect bull trout, and
monitoring and evaluation efforts for bull trout conservation measures.
This agreement will also restore anadromous salmon to the upper Lewis
River system, restoring a significant part of the historic forage base
for bull trout.
(1) Benefits of Inclusion
Designation of critical habitat for bull trout on lands managed
under Lewis River Hydroelectric Projects Conservation Easements would
provide protection from ``destruction or adverse modification'' of
designated critical habitat under section 7 of the Act. However,
without designation, a certain amount of habitat protection would be
provided through the jeopardy standard. As noted earlier, based on our
review of previous bull trout consultations under this standard, we
have found little to indicate that there would be additional habitat
protections generated by the designation beyond those provided through
the jeopardy standard.
If critical habitat was designated in areas of unoccupied habitat
or currently occupied areas that subsequently become unoccupied, there
would not be a jeopardy analysis for the species. The adverse effect to
critical habitat would have to rise to the level of destruction/adverse
modification to effect changes in the proposed action via a Reasonable
and Prudent Alternative. Since the destruction/adverse modification
determination is made in the context of an entire critical habitat
designation, this would be a rare occurrence.
Designating critical habitat can educate the public and management
agencies about the distribution of areas containing features essential
to the conservation of a species. In areas lacking a bull trout-
specific management plan, designation can guide projects to avoid
impacts to listed species and can help focus recovery efforts. However,
we believe little additional informational benefit will be gained by
including Swift and Cougar Creeks in designated critical habitat for
bull trout. PacifiCorp has begun implementing conservation
recommendations, provided in our 2002 biological opinion, that include
posting interpretive signs to educate anglers on identifying and
conserving native char, and techniques for catch and release to
minimize incidental hooking mortality of bull trout. While we believe
educational benefits are important for the conservation of bull trout,
we believe it has already been achieved through PacifiCorp's
conservation easement, publication of the proposed critical habitat
rule, the many public and interagency meetings that have been held to
discuss the proposal, and discussion contained in this final rule.
(2) Benefits of Exclusion
The complex process of negotiating relicensing for the Lewis River
hydroelectric projects has been ongoing for 9 years. We have
established valuable working relationships with the PacifiCorp, Cowlitz
County PUD, and the other participants during these complex
negotiations. Through the relicensing negotiations, we have built trust
and encouraged open dialogue regarding aquatic and riparian management
issues among the participants.
By excluding lands included in the two conservation easements from
designated critical habitat we will: (1) Maintain and enhance our
ability to continue working with PacifiCorp, Cowlitz County PUD, other
relicensing applicants, and FERC; and (2) other jurisdictions, private
landowners, and other entities will likely continue to see the benefit
of working cooperatively with us. This will provide incentives to
develop other conservation agreements, or other conservation actions
such as HCPs, to provide the bases for future opportunities to conserve
species and their habitats. Negotiating conservation measures under
conditions of mutual trust can result in greater conservation benefits
to the species than would result from including Swift and Cougar Creeks
in designated critical habitat.
Exclusion would also reduce administrative costs of conducting
section 7 consultations on bull trout critical habitat (see Section
3(5)(A) and Exclusions Under Section 4(b)(2) section above).
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
It is possible, although unlikely, that any Federal action will be
proposed that would be likely to destroy or adversely modify the
habitat proposed as critical within the area governed by the Lewis
River Conservation Easement. If such a project was proposed, due to the
specific way in which jeopardy and adverse modification are analyzed
for bull trout, discussed in detail above, it would likely also
jeopardize the continued existence of the species. In addition, as
discussed above, we expect that the benefit of informing the public of
the importance of this area to bull trout conservation would be slight.
Therefore, we assign relatively little weight to the benefits of
designating this area as critical habitat.
In contrast, although the benefits of encouraging participation in
conservation partnerships, particularly large-scale conservation
projects, and, more broadly, helping to foster cooperative conservation
are indirect, enthusiastic conservation project participation and an
atmosphere of cooperation are crucial to the long-term effectiveness of
the endangered species program. Therefore, we assign great weight to
these benefits of exclusion. To the extent that there are regulatory
benefits of including, there would be associated costs that could be
avoided by excluding the area from designation. However, as we expect
the regulatory benefits to be slight, we likewise give little weight to
avoidance of those associated costs, as well as the additional
transaction costs related to section 7 compliance.
Therefore, we have determined that the benefits of inclusion of the
areas covered by this conservation easement are small, while the
benefits of exclusion are more significant.
[[Page 56248]]
Therefore, the benefits of exclusion outweigh the benefits of
inclusion. Because we anticipate that little if any conservation
benefit to the bull trout will be foregone as a result of excluding
these lands, the exclusion will not result in the extinction of the
bull trout. The Secretary exercises her discretion under section
4(b)(2) to exclude these areas from the designation (see comprehensive
exclusion language in the preamble).
Washington State Forest Practices Rules and Forest Practices
Regulations for Bull Trout (FFR)
Beginning in late 1996, faced with the imminent listing of several
salmonid species, including bull trout, under the Endangered Species
Act (ESA), a diverse group of stakeholders in Washington State agreed
to address emerging riparian habitat issues. After almost 2 years of
negotiations, representatives of environmental interests and some
Tribes withdrew from negotiations. The remaining participants continued
negotiating and eventually agreed to the Forests and Fish Report in
April 1999. Later that year the Washington State Legislature passed the
Forest Practices Salmon Recovery Act (Engrossed Substitute House Bill
2091), which directed the Washington Forest Practices Board to adopt
new rules, encouraging the Forest Practices Board to follow the
recommendations of the Forests and Fish Report (FFR). To further the
purpose of regulatory stability, the Forest Practices Salmon Recovery
Act also limited future changes to the new rules so that outside of a
court order or legislative directive, new rules could be adopted by the
Forest Practices Board ``only if the changes or new rules are
consistent with the recommendations resulting from the scientifically
based adaptive management process'' included in the Forests and Fish
Report. The language further solidified the adaptive management process
as a key component of the conservation program.
Following the passage in 1999 of emergency forest practices rules
based on the Forests and Fish Report, the Washington Forest Practices
Board adopted new permanent rules in May 2001. Effective July 2001,
these rules cover a wide variety of forest practices and include: (1) A
new, more functional, classification of rivers and streams on non-
federal and non-tribal forestland; (2) improved plans for properly
designing, maintaining, and upgrading existing and new forest roads;
(3) additional protections for unstable slopes; and (4) greater
protections for riparian areas intended to restore or maintain properly
functioning aquatic and riparian habitat conditions. In addition to
these substantive provisions, the rules adopted the procedural
recommendations of the Forests and Fish Report that address adaptive
management, training, and other features. The Washington State
Legislature and U.S. Congress continued to support the collaboration
with significant funding for the research, monitoring, and adaptive
management activities called for in the Forests and Fish Report.
(1) Benefits of Inclusion
Designation of critical habitat for bull trout on lands managed
under Washington State Forest Practices Rules would provide protection
from ``destruction or adverse modification'' of designated critical
habitat under section 7 of the Act. However, without designation, a
certain amount of habitat protection would be provided through the
jeopardy standard. As noted earlier, based on our review of previous
bull trout consultations under this standard, we have found little to
indicate that there would be additional habitat protections generated
by the designation beyond those provided through the jeopardy standard.
If critical habitat was designated in areas of unoccupied habitat
or currently occupied areas that subsequently become unoccupied, there
would not necessarily be a jeopardy analysis for the species. The
adverse effect to critical habitat would have to rise to the level of
destruction/adverse modification to effect changes in the proposed
action via a Reasonable and Prudent Alternative. Since the destruction/
adverse modification determination is made in the context of an entire
critical habitat designation, this would be a rare occurrence.
In addition to the prescriptions in the Rules for protecting
riparian and aquatic habitat that benefits the broad range of aquatic
species, the Rules include specific provisions for protecting bull
trout habitat in eastern Washington. Beyond this, there is adaptive
management research and monitoring required under the Washington Forest
Practices Rules that specifically addresses the effectiveness and
validity of the Rules in protecting bull trout habitat.
Designating critical habitat can educate the public and management
agencies about the distribution of areas containing features essential
to the conservation of a species. In areas lacking a bull trout-
specific management plan, designation can guide projects to avoid
impacts to listed species and can help focus recovery efforts. Many
landowners subject to Washington State Forest Practices Rules are
likely aware of the concerns for bull trout conservation. We expect
that designated critical habitat in these areas would provide some
additional context, protection, or benefit that would enhance existing,
or future, bull trout conservation efforts.
(2) Benefits of Exclusion
The Washington Forest Practices Rules require a large-scale,
comprehensive adaptive management program that is supported by in-kind
participation by the stakeholders that authored the Forests and Fish
Report. The basis for the Washington Forest Practices Rules is the
Forests and Fish Report. The Forests and Fish Report was created in a
collaborative effort by multi-stakeholders to identify goals and
prescriptions to protect riparian and aquatic-dependent species,
including bull trout. This cooperative conservation is crucial to the
long-term recovery of listed species.
Exclusion of areas covered by the Washington Forest Practices Rules
from critical habitat designation would be viewed as honoring the
assurances made during the negotiations of the Forests and Fish Report
by most Washington forestland stakeholders. The assurances being that
the Rules provide adequate minimization and mitigation measures to
address bull trout conservation. Failure to exclude the Rules could be
viewed as an attempt to extract additional and ``unfair'' mitigation in
violation of the principles behind the Washington Forest Practices
Rules and Forests and Fish Report negotiations. Cooperation between the
Service and the State to develop and update the Washington Forest
Practices Rules for terrestrial, threatened and endangered species
would be enhanced through continued cooperative relationships.
In addition, failure to exclude the Rules could be a disincentive
for other entities contemplating collaborative rule-making as it would
imply that the Service intends to impose additional regulatory burdens
once conservation measures have been agreed upon and could undermine
the progress made by generating perceptions that we might erode those
assurances.
Exclusion would also reduce administrative costs of conducting
section 7 consultations on bull trout critical habitat (see Section
3(5)(A) and Exclusions Under Section 4(b)(2)--Generally section above).
[[Page 56249]]
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
It is possible, although very unlikely, that any Federal action
would be proposed that would be likely to destroy or adversely modify
the habitat proposed as critical within the lands regulated by the
Washington Forest Practices Rules. If such a project was proposed, due
to the specific way in which jeopardy and adverse modification are
analyzed for bull trout, discussed in detail in the preamble, it would
likely also jeopardize the continued existence of the species.
The forest landowners regulated by the Washington Forest Practices
Rules, as well as those organizations that are directly or indirectly
affected by the Rules, are already aware of the need for protecting and
conserving bull trout and their habitat.
Based on the above discussion, we assign relatively little weight
to the benefits of designating the lands regulated by the Washington
Forest Practices Rules as critical habitat for bull trout. In contrast,
because exclusions of these areas from critical habitat will be very
beneficial to our relationships with stakeholders in the FFR process,
and those relationships area crucial to the long-term recovery of bull
trout and other listed species, we assign great weight to the benefits
of excluding these lands from designation. Therefore, the benefits of
exclusion outweigh the benefits of inclusion. Because we anticipate
that little, if any, conservation benefit to bull trout will be
foregone as a result of excluding these lands, the exclusion will not
result in the extinction of bull trout. The Secretary exercises her
discretion under section 4(b)(2) to exclude these areas from the
designation (see comprehensive exclusion language in the preamble).
Jarbidge River Bull Trout Critical Habitat Unit
During the last decade, the Jarbidge River watershed has been the
site of substantial conflicts between Federal officials and local
interests concerning the conservation and management of bull trout, the
Jarbidge River, and associated uplands (Williams 2001). These
conflicts, which involved anti-government protests and demonstrations,
have had an overall negative impact on the Federal government's ability
to work cooperatively with local officials and private landowners to
conserve and recover the bull trout and other listed species on Federal
and non-federal lands in northern Nevada (Sonner 2001, Williams 2001,
Robert 2002). This cooperative relationship is particularly important
in relation to achieving voluntary actions to improve bull trout
populations and habitat which are identified in the recovery plan.
During the last year, however, both the Service and the U.S. Forest
Service have dedicated significant resources and have made encouraging
progress in restoring cooperative relationships with the local
community. For example, both agencies have received a ``Certificate of
Appreciation'' from Elko County on September 7, 2005, for providing
support for the installation of a temporary bridge over the Jarbidge
River. Maintenance and improvement of such relationships is key to
recovering listed species and is a cornerstone of the Secretary's ``4
C's'' policy. The active support of local officials and landowners for
the conservation of bull trout increases the species likelihood of
recovery. In contrast, local opposition to bull trout conservation
efforts could be a significant impediment to the species' recovery,
especially on non-federal lands, where the voluntary efforts will
achieve actions identified in the recovery plan.
Given this history, we considered whether to exclude non-federal
lands in the Jarbidge River Bull Trout Critical Habitat Unit (CHU) from
the final critical habitat designation. Pursuant to section 4(b)(2) we
analyzed whether the benefits of designating these lands were
outweighed by the benefits of excluding these lands from a final
designation. In the following section, we evaluate a ``without critical
habitat'' scenario and compare it to a ``with critical habitat''
scenario. The difference between the two scenarios measured the net
negative or positive impacts attributable to the designation of
critical habitat. We paid particular attention to the following issues:
The degree to which a critical habitat designation would
confer regulatory conservation benefits on these species (e.g., high,
medium, low);
Whether the designation would educate members of the
public such that conservation efforts would be enhanced;
Whether a critical habitat designation would have a
positive, neutral, or negative impact on local support for bull trout
conservation, including current cooperative efforts on privately-owned
lands; and
To what extent a critical habitat designation is likely to
encourage or discourage future cooperative efforts with local
landowners and officials.
If a critical habitat designation results in a quantifiable
reduction in the likelihood that existing or future voluntary,
cooperative conservation activities will be carried out on non-federal
lands, and at the same time fails to confer a counter-balancing
positive regulatory or educational benefit to the species, then the
benefits of excluding such areas from critical habitat outweigh the
benefits of including them.
(1) Benefits of Including the Jarbidge River Bull Trout Critical
Habitat Unit
The principal benefit of designating critical habitat on non-
federal lands is that Federal activities that may affect such habitat
are subject to consultation pursuant to section 7 of the Act. Such
consultation requires every Federal agency to ensure that any action it
authorizes, funds, or carries out is not likely to result in the
destruction or adverse modification of critical habitat. This
requirement complements the section 7 provision that Federal agencies
ensure that their actions are not likely to jeopardize the continued
existence of a listed species.
The Jarbidge River is currently occupied by bull trout. Any Federal
activity adversely affecting bull trout will require section 7
consultations with the Service, and any non-federal action that may
take a bull trout will require a Section 10 permit. Although there are
potentially a small number of federally-funded, authorized, or
implemented activities on private and State lands that may trigger
section 7 consultation, the subject lands comprise only a minor portion
(8 percent) of the total habitat (131 mi, 211 km) under consideration
for this CHU. Specifically, there are eight stream reaches crossing
private lands and four reaches crossing Idaho State school land
sections within occupied bull trout habitat in this CHU. Only three of
these isolated reaches are 1 mi (1.6 km) or more in length, and all are
surrounded by vast expanses of public lands. One of the private reaches
is within the town of Jarbidge, Nevada, and another is within the town
of Murphy Hot Springs, Idaho.
In analyzing whether Federal actions might jeopardize the continued
existence of the bull trout, the Service has focused on the viability
of core area populations without making distinctions between what is
necessary for survival versus recovery. Because the Service views the
conservation role of critical habitat units as supporting viable bull
trout core area populations, the Service anticipates that few Federal
actions would adversely modify critical habitat but not jeopardize the
species.
The Service considered the possibility of local bull trout
extirpation in the Jarbidge River (which might reduce the protection
afforded bull trout by the
[[Page 56250]]
jeopardy prohibition) given the data available. In general, the Service
does not anticipate significant extirpations in this area, although
such an event cannot be completely ruled out as stochastic events such
as conflagrations have in the past eliminated populations elsewhere
within the species' range. If such an event was to occur, and the
entire population was extirpated, the designation of critical habitat
could provide important protection to the habitat to preserve it for
eventual recolonization or reintroduction. However, the Service would
consider the habitat occupied for 20 years subsequent to the temporal
extirpation, providing ample opportunity for restoration of the
population. In addition, the benefit would be moderated to the extent
that protections other than the prohibition on jeopardizing bull trout
would remain in place. For instance, State angling regulations would
remain in place to manage bull trout habitat.
In sum, the designation of critical habitat on non-federal lands in
the Jarbidge River CHU would confer a relatively low level of
additional regulatory benefits beyond the status quo.
Another potential benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value of an area and thereby focus and contribute to
conservation efforts by clearly delineating areas of high conservation
value for certain species. Such a benefit could be substantial in
geographic areas where the presence of bull trout was a relatively new
or unknown phenomenon, and there was a need to educate the local
community to the species' presence and conservation needs. However,
such a situation does not exist anywhere in the Jarbidge River CHU. Due
in large part to the extensive media attention applied to the high-
profile conflicts that accompanied the listing of the species and
previous critical habitat proposals; there is widespread knowledge of
the species' local status and conservation needs. State fish and game
officials have also worked hard to educate the local populace,
publishing information on the species and posting signs at public
access points along the river. Therefore, it is unlikely that a final
critical habitat designation would provide any significant new or
additional educational benefit beyond the status quo.
(2) Benefits of Excluding the Jarbidge River Bull Trout Critical
Habitat Unit
The designation of critical habitat on non-federal lands can have
both negative and positive impacts on the conservation of listed
species (Bean 2002). There is a growing body of documentation that some
regulatory actions by the Federal government, while well-intentioned
and required by law, can under certain circumstances have unintended
negative consequences for the conservation of species on non-federal
lands (Brook et al. 2003, Bean 2002, James 2002, Koch 2002, Wilcove et
al. 1996). Some landowners fear a decline in value of their properties
because of their belief that the Act may restrict future land-use
options where threatened or endangered species are found. Consequently,
endangered species are perceived by many landowners as a financial
liability, which sometimes results in anti-conservation incentives to
these landowners (Brook et al. 2003, Main et al. 1999).
There are reasonable concerns that a critical habitat designation
in the Jarbidge River may negatively affect cooperative relationships
between Federal and local officials and discourage voluntary,
cooperative conservation efforts. The watershed has been the site of
substantial conflicts between Federal government agencies, local
government entities (Elko County, Nevada), organized private groups
(Jarbidge Shovel Brigade), and private individuals. These conflicts
primarily have been over roads and public access issues with the U.S.
Forest Service, but they have resulted in activities with adverse
environmental impacts to bull trout and their habitat. Substantial
damage to stream channel and riparian habitats within bull trout
occupied reaches occurred due to local actions while bull trout were
proposed for listing. Anti-government demonstrations and on-the-ground
activities (road construction, stream diversions, channel alterations,
tree cutting, and driving in streams) by other groups and individuals
escalated when the Service emergency-listed the Jarbidge River bull
trout in 1998. The demonstrations and protests continued for several
years.
According to some researchers, the designation of critical habitat
on private lands significantly reduces the likelihood that many
landowners will support and carry out conservation actions (Bean 2002,
Brook et al. 2003, Main et al. 1999). The magnitude of this negative
outcome is greatly amplified in conservation situations, such as on
privately-owned lowlands in California and Nevada, where it is
insufficient simply to prohibit harmful activities. Instead, it is
necessary in most cases to encourage and carry out active management
measures to prevent extinctions and promote recovery (Bean 2002).
Consideration of this concern is especially important in areas where
recovery efforts require access and permission for survey and
restoration efforts. Simply preventing ``harmful activities'' will not
slow the extinction of listed species or promote their recovery.
Proactive, voluntary conservation efforts are necessary to prevent the
extinction and promote the recovery of these species (Wilcove and Lee
2004, Shogren et al. 1999).
The Service is working to promote cooperative activities in the
Jarbidge area. Federal and local government entities working in the
Jarbidge River watershed have spent considerable time improving
communications and developing personal working relationships to resolve
differences and move forward in a positive manner on watershed issues.
In particular, the agencies have come to an agreement resolving future
road construction and maintenance issues within bull trout occupied
areas on public and private lands in the watershed, as presented in the
U.S. Forest Service's Jarbidge Canyon Final Environmental Impact
Statement issued in April, 2005.
In addition, the Federal agencies and local county government
officials recently collaborated on a project to provide access to the
town of Jarbidge on an emergency basis using volunteer labor by the
Jarbidge Shovel Brigade and other local individuals to help install a
temporary bridge donated by the county on private land after a flood
destroyed two U.S. Forest Service bridges. On September 7, 2005, the
Elko County Board of County Commissioners presented the Service, U.S.
Forest Service, and Jarbidge Shovel Brigade each with a Certificate of
Appreciation for assistance in completing this project.
The Service is also currently working with a private landowner (Mr.
Bert Brackett) and the Nevada Department of Wildlife to acquire the
single largest reach of bull trout habitat on private land in the
entire watershed (nearly 4 mi, 6.4 km) through a Service Recovery Lands
Acquisition Program grant. The State would then manage this habitat
specifically for the purpose of bull trout conservation and recovery.
The Service is concerned that acquisition negotiations could be
adversely affected by designation of critical habitat at this time due
to a resurgence of local anti-federal sentiment following a possible
designation on non-federal lands.
[[Page 56251]]
The Service is also preparing to finalize the May 2004 draft
recovery plan for the Jarbidge River bull trout population and to hold
stakeholder meetings in FY06. Public and local government participation
at these meetings is vital in obtaining local input during the recovery
planning process. Participation at these meetings by private
landowners--and support for conservation on their lands--may be
adversely affected by designation of critical habitat on their non-
federal lands.
In sum, we conclude that the designation of critical habitat on
non-federal lands in the Jarbidge River CHU would have significant
negative impacts on the improving cooperative relationship between
Federal agencies and local officials and landowners. This negative
impact would in turn adversely affect bull trout conservation because
local support and participation is necessary for bull trout recovery
actions, all of which are voluntary on non-federal lands. Avoiding
these negative impacts is a benefit of excluding these lands from the
final critical habitat designation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion for the
Jarbidge River Critical Habitat Unit
As discussed above, it is possible although unlikely that a Federal
action will be proposed that would be likely to destroy or adversely
modify the habitat proposed as critical in the Jarbidge River CHU. If
such a project was proposed, due to the specific way in which jeopardy
and adverse modification are analyzed for bull trout and as discussed
in detail in the preamble, it would likely also jeopardize the
continued existence of the species and thus be restricted by the Act.
In addition, we expect that the benefit of informing the public of the
importance of this area to bull trout conservation would be slight.
Therefore, we assign relatively little weight to the benefits of
designating this area as critical habitat.
In contrast, the need to maintain and expand recent gains in
cooperative conservation efforts in the Jarbidge watershed is crucial
to the long-term effectiveness of bull trout recovery. Therefore, we
assign great weight to these benefits of exclusion. To the extent that
there are regulatory benefits of including, there would be associated
costs that could be avoided by excluding the area from designation.
However, as we expect the regulatory benefits to be slight, we likewise
give little weight to avoidance of those associated costs, as well as
the additional transaction costs related to section 7 compliance.
The continuation of cooperative efforts in the watershed, as well
as implementation of bull trout recovery actions on non-federal lands,
is dependent on maintaining effective working relationships with local
entities. We believe that designation of critical habitat on non-
federal lands within the Jarbidge River CHU would adversely affect our
improved working relationships with landowners and other governmental
entities, as well as the benefits to bull trout resulting from these
relationships. In addition, we believe that such designation may also
impair the long-term working relationships of other Federal agencies
with land management responsibilities in the Jarbidge River watershed.
Therefore, we have determined that the benefits of inclusion of the
non-federal areas within the Jarbidge River CHU are small, while the
benefits of exclusion are more significant. Thus the benefits of
exclusion outweigh the benefits of inclusion. Because we anticipate
that little if any conservation benefit to the bull trout will be
foregone as a result of excluding these lands, and the species and much
of its habitat is still protected under section 7 as described above,
the exclusion will not result in the extinction of the bull trout. The
Secretary exercises her discretion under section 4(b)(2) to exclude
these areas from the designation.
Federal Land Management Plans
We have determined that PACFISH, INFISH, the Interior Columbia
Basin Ecosystem Management Project (ICBMP) strategy, and the Northwest
Forest Plan (NWFP) Aquatic Conservation Strategy (ACS) provide a level
of conservation and adequate protection and special management for the
PCEs essential to the conservation of bull trout at least comparable to
that achieved by designating critical habitat. As a result, those lands
are not being designated critical habitat as they do not meet the
statutory definition. In many specific ways these plans are superior to
a designation in that they require enhancement and restoration of
habitat, acts not required by the designation.
PACFISH is the Interim Strategy for Managing Anadromous Fish-
Producing Watersheds and includes Federal lands in Western Oregon and
Washington, Idaho, and Portions of California. INFISH is the Interim
Strategy for Managing Fish-Producing Watersheds in Eastern Oregon and
Washington, Idaho, Western Montana, and Portions of Nevada. Each
strategy amended Forest Service Land and Resource Management Plans and
BLM Resource Management Plans. Together PACFISH and INFISH cover
thousands of miles of waterways within 16 million acres and provide a
system for reducing effects from land management activities to aquatic
resources through riparian management goals, landscape scale interim
riparian management objectives, riparian habitat conservation areas,
riparian standards, watershed analysis, and the designation of Key and
Priority watersheds. These interim strategies have been in place since
1992 and are part of the management plans for the BLM and USFS lands.
In addition to protecting and managing the PCEs associated with
critical habitat, the strategies include restoration and enhancement of
all existing habitat. The BLM and USFS are currently in the process of
updating their management plans, few have been completed, but those
that have, are discussed below. The new plans are more protective, more
complete, and more outcome based than the former plans. In addition,
they are recovery based, as opposed to simply maintaining the status
quo.
The ICBMP is the strategy that replaces the PACFISH and INFISH
interim strategies. The Southwest Idaho Land and Resource Management
Plan (LRMP) is the first LRMP under the strategy and provides measures
that protect and restore soil, water, riparian and aquatic resources
during project implementation while providing flexibility to address
both short- and long-term social and economic goals on 6.6 million
acres of National Forest lands. This plan includes a long-term Aquatic
Conservation Strategy that focuses restoration dollars in priority
subwatersheds identified as important to achieving ESA, Tribal, and CWA
goals. The Southwest Idaho LRMP replaces the interim PACFISH/INFISH
strategies and adds additional conservation elements, specifically,
providing an ecosystem management foundation, a prioritization for
restoration integrated across multiple scales, and adaptable active,
passive and conservation management strategies that address both
protection and restoration of habitat and 303(d) stream segments, all
of which are far beyond any protection provided by a critical habitat
designation.
The Southeast Oregon Resource Management Plan (SEORMP) and Record
of Decision is the second LRMP under the ICBMP strategy which describes
the long-term (20+ years) plan for managing the public lands within the
Malheur and Jordan Resource Areas of the Vale District. The SEORMP is a
general resource management plan for
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4.6 million acres of BLM administered public lands primarily in Malheur
County with some acreage in Grant and Harney Counties, Oregon. The
SEORMP contains resource objectives, land use allocations, management
actions and direction needed to achieve program goals. Under the plan
riparian areas, floodplains, and wetlands will be managed to restore,
protect, or improve their natural functions relating to water storage,
groundwater recharge, water quality, and fish and wildlife values.
The Northwest Forest Plan covers 24.5 million acres in Washington,
Oregon, and northern California. The ACS is a component of the
Northwest Forest Plan. It was developed to restore and maintain the
ecological health of watersheds and the aquatic ecosystems. The four
main components of the ACS (Riparian Reserves, Watershed Analysis, Key
Watersheds, and Watershed Restoration) are designed to operate together
to maintain and restore the productivity and resiliency of riparian and
aquatic ecosystems.
These plans establish watershed and riparian goals to maintain or
restore all fish habitat;
Establish aquatic and riparian habitat management
objectives;
Delineate riparian management areas;
Provide specific standards and guidelines for management
activities (timber harvesting, grazing, fire suppression, and mining)
in riparian areas;
Provide a system of key watersheds to protect and restore
important fish habitats;
Call for watershed analyses and subbasin reviews to set
priorities and provide guidance on priorities for watershed
restoration; and,
Provide general guidance on implementation and
effectiveness monitoring.
It is the objective of the Forest Service and the Bureau of Land
Management to manage and maintain habitat and where feasible, and
restore habitats that are degraded. These plans provide for the
protection of areas that could contribute to the recovery of fish and,
overall, improve riparian habitat and water quality throughout the
basin. These objectives are accomplished through such activities as
closing and rehabilitating roads, replacing culverts, changing grazing
and logging practices, and re-planting native vegetation along streams
and rivers.
The Forest Service, Natural Resources Conservation Service, and the
Bureau of Land Management also provide funds and technical expertise
for restoration projects on private lands. Field offices work with
local watershed councils and groups to plan and carry out priority
restoration projects on both Federal and non-federal lands.
These and other state and local conservation planning efforts
provide an exceptional level of cooperative conservation for bull trout
and other salmonids and for this reason we have determined that the
PCEs in the areas covered by the plans are not in need of special
management or protection. These lands have also been excluded using the
Secretary's discretion under section 4(b)(2). The following outlines
our 3(5)(a) and 4(b)(2) analyses related to exclusions (for a complete
documentation of our 3(5)(a) and 4(b)(2) analyses, please refer to our
supporting documentation in the administrative record and the
comparison of protections provided by a critical habitat designation
and the various management plans.
(1) Benefits of Including Lands Managed Under PACFISH, INFISH, the
Southwest Idaho Land and Resource Management Plans, the Southeast
Oregon Resource Management Plan, and ACS
Designation of critical habitat for bull trout on lands managed
under these Federal plans would provide protection from ``destruction
or adverse modification'' of designated critical habitat under section
7 of the Act. However, without designation, a certain amount of habitat
protection would be provided through the jeopardy standard. As noted
earlier, based on our review of previous bull trout consultations under
this standard, we have found little to indicate that there would be
additional habitat protections generated by the designation beyond
those provided through the jeopardy standard.
If critical habitat was designated in areas of unoccupied habitat
or currently occupied areas that subsequently become unoccupied, there
would not necessarily be a jeopardy analysis for the species. The
adverse effect to critical habitat would have to rise to the level of
destruction/adverse modification to effect changes in the proposed
action via a Reasonable and Prudent Alternative. Since the destruction/
adverse modification determination is made in the context of an entire
critical habitat designation, this would be a rare occurrence.
Designating critical habitat helps educate the public and
management agencies about the distribution of areas containing features
essential to the conservation of a species. In areas lacking a bull
trout-specific management plan designation can guide projects to avoid
impacts to listed species and can help focus recovery efforts. Most
agencies, applicants, and partners operating under the existing
strategies on Federal lands are aware of the concerns for bull trout
conservation. We expect that designated critical habitat in these areas
would provide relatively little additional context, protection, or
benefit that would enhance existing, or future, bull trout conservation
efforts.
(2) Benefits of Excluding Lands Managed Under PACFISH, INFISH, the
Southwest Idaho Land and Resource Management Plans, the Southeast
Oregon Resource Management Plan, and ACS
The primary benefits of excluding these Federal lands from critical
habitat are the avoidance of administrative costs associated with
reinitiation of section 7 consultations for ongoing actions and the
reduced administrative costs of consultation on new actions. Based on a
review of consultations on bull trout critical habitat, some
incremental consultation costs, all in the form of administrative costs
(i.e., more time spent preparing and reviewing language in our
biological opinions or concurrence letters), have been documented. Cost
estimates for informal consultations (n = 15) ranged from ``not
measurable'' ($0) to a little over one biologist-hour (approx $550).
Estimates for formal consultations (n = 9) ranged from one biologist-
hour (approx $550) to 10-20 biologist-days ($6,230-$12,460) with a
median of 1.5 biologist-days (approx $935). The 10-20 biologist-day
estimates represented one forest-wide programmatic formal consultation
covering all routine and anticipated activities (potentially hundreds
of actions) for a 5-year period.
We expect that the action agencies would also have costs associated
with reinitiation of consultation or new consultations because they
would need to prepare or revise requests for concurrence or biological
assessments. These costs are likely to mirror Service costs because the
type and specificity of information required for these documents is
comparable to Service documents.
(3) Benefits of Exclusion outweigh the Benefits of Inclusion of the
Lands Managed Under PACFISH, INFISH, the Southwest Idaho Land and
Resource Management Plans, the Southeast Oregon Resource Management
Plan, and ACS
While the administrative costs associated with additional
consultation activities which result from designation are not
significant, the associated
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benefits are also minor. In considering the benefits from a designation
related to education the Secretary has determined those benefits are
largely redundant with the education that takes place through the NEPA
process for developing new management plans, as well as the ongoing
management documents used by the BLM and USFS in making decisions on
those lands. Because the lands being excluded are Federal lands, no
additional state or local protections would be triggered by the
critical habitat designation, so in this circumstance, there would be
no additional benefit. The remaining benefits, those due to additional
protection beyond those provided through the jeopardy consultation are
likely very small (see our earlier discussion particular to bull trout
jeopardy consultations). The benefit from not designating these Federal
lands would be largely in the form of avoided costs (staff time and
money). These costs, while not significant are avoidable, create no
additional benefit to the species and could be better used to
effectuate conservation measures on the ground. As a result, the
Secretary has determined that the benefit of excluding these Federal
lands exceeds the benefits of including them as critical habitat.
Federal Columbia River Power System (FCRPS)
The FCRPS is composed of 14 dams and reservoirs on the Columbia and
Snake Rivers. Power production is coordinated under the Pacific
Northwest Coordination Agreement. The dams and reservoirs also provide
flood protection and irrigation flows.
The U.S. Department of the Army, Corps of Engineers operates and
maintains 12 of the 14 projects in the FCRPS. These projects control
the lower Snake and Columbia Rivers and provide storage in the upper
reaches of both rivers. The Corps has a major role in coordinating
multiple uses of the system. It is responsible for managing flood
control storage at all major reservoirs in the Columbia River Basin;
maintaining navigation locks and channels to accommodate river
transportation; and operating fish passage, power plant and recreation
facilities.
U.S. Department of the Interior, Bureau of Reclamation operates
Grand Coulee and Hungry Horse Dams, the remaining two projects. Because
of its size and location, Grand Coulee Dam plays a prominent role in
the coordinated operation of the Columbia River system. Storage at
Hungry Horse is also valuable because of its headwaters location; water
released from Hungry Horse passes through many downstream projects and
produces additional energy.
The FCRPS is subject to the operation of federal laws and the
authorities of 9 federal agencies. These authorities require every
activity from mitigation to recovery. In addition, the Federal
government has responsibility to the 13 tribes residing in the Columbia
River Basin. There are 13 nationwide laws and 3 basin-specific laws as
well as several mission specific laws, treaties and executive orders,
all of which speak to requirements for restoring, enhancing, and
recovering ecosystems and fish and wildlife in the Columbia River
Basin. All of these laws affect the operation of the FCRPS. The myriad
federal and state laws result in no less than 33 federal programs, 3
state programs, and 2 tribal programs to manage and recover ecosystems
and wildlife in the basin. As a result of efforts to recover salmon
populations, there are at least 65 groups formed to coordinate recovery
efforts between the federal agencies, states, tribes, local governments
and other interested parties.
(1) Benefits of Inclusion
Designation of critical habitat for bull trout on lands covered
under FCRPS would provide protection from ``destruction or adverse
modification'' of designated critical habitat under section 7 of the
Act. Without designation, a certain amount of habitat protection would
be provided through the jeopardy standard. However, as noted earlier,
based on our review of previous bull trout consultations under this
standard, we have found little to indicate that there would be
additional habitat protections generated by the designation beyond
those provided through the jeopardy standard.
If critical habitat was designated in areas of unoccupied habitat
or currently occupied areas that subsequently become unoccupied, there
would not be a jeopardy analysis for the species. The adverse effect to
critical habitat would have to rise to the level of destruction/adverse
modification to effect changes in the proposed action via a Reasonable
and Prudent Alternative. We believe that this will be a rare
occurrence.
While one of the benefits of a critical habitat designation can be
educating the public, we have determined that there is very little
benefit related to educational benefit from a designation for bull
trout due to the recent subbasin planning effort completed for the
Northwest Power Council, which would largely have duplicated any
educational benefit accruing from a critical habitat designation.
(2) Benefits of Exclusion
The major benefit to excluding the FCRPS from critical habitat will
be to avoid yet another layer of regulation to a system with a
multitude of competing efforts to not only protect but to restore
anadromous fish populations as well as enhance and restore terrestrial
habitats. The potential inefficiencies are enormous, and have been
identified. It is unlikely that a system with so many ongoing efforts
to restore habitat and fish populations will knowingly contemplate
activities that will reduce populations or habitat values. However, it
is very likely that biological opinions related to adverse
modification, with their focus on narrow project-by-project effects
rather than ecosystem based approaches could force actions contrary to
larger efforts, force actions that are redundant or counterproductive,
or simply require yet another layer of administrative process without
measurably improving the outcome. It is difficult to measure just how
much cost such inefficiencies represent. But in a system with 4 states,
13 tribes, 11 federal agencies, and a multiplicity of laws, executive
orders, programs, and court orders governing it; yet another process to
ensure habitat protection is unlikely to achieve measurable results.
Another benefit of excluding the proposed reaches would be avoiding
transactions costs related to reinitiating of consultation for all
ongoing projects and the cost of an adverse modification analysis for
new projects. The number of circumstances where a bull trout adverse
modification finding diverges from a jeopardy opinion are likely to be
small and the benefits of requiring all ongoing federal actions to
reinitiate consultation will be small when compared to the benefit of
avoiding the transactions costs related to the actual completion of the
consultation (this assumes that there will be few changes in operations
and actions as a result of the reinitiations--consistent with our
determinations that the standards will not diverge significantly).
While individually these avoided costs are small, the sheer scope of
the federal actions outlined in the records that we reviewed indicated
that purely ministerial actions associated with the reinitiated
consultations would represent significant time and effort.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
The Secretary weighed the risk of some federal project from
proceeding in a manner that destroyed or adversely
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modified critical habitat and considered the potential benefit if a
designation prevented the project from proceeding. She considered the
risk of a critical habitat designation causing multiple reinitiations
of consultation and what costs and delays those consultations might
generate. She considered the consequences of delays related to
reinitiations and the risk that would occur to the species as well as
to local planning processes associated with the subbasin plans.
Finally, the Secretary considered what additional benefit a
consultation on the effect of any project on critical habitat would
provide beyond the protection provided by a jeopardy determination that
would be made whether or not critical habitat was designated.
Based on the information in the record, the Secretary determined
that the benefits of including those reaches of the designation that
are within the FCRPS and subject to a consultation under section 7 of
the ESA are outweighed by the benefits of excluding them and avoiding
one increased costs and inefficiency. Because we anticipate that little
if any conservation benefit to the bull trout will be foregone as a
result of excluding these lands, the exclusion will not result in the
extinction of the bull trout. The Secretary exercises her discretion
under section 4(b)(2) to exclude these areas from the designation.
Snake River Basin Adjudication
The lands subject to this adjudication comprise approximately 46
million acres and approximately 142,000 miles of streams in the Snake
River Basin. The stream-flows in the basin have been subject to
litigation for 21 years. Litigants are the Federal government, the Nez
Perce Tribe, and the State of Idaho. In 2004 a settlement was reached
by the parties in the proceeding. A Mediator's Term Sheet was developed
to guide the settlement of the case, which identifies the
responsibilities of the parties over the 30-year term of the agreement.
The settlement was announced on May 15, 2004, by the Secretary of the
Interior, the Nez Perce Tribal Executive Committee Chairman, and the
Governor of Idaho.
As part of the settlement, the parties agreed to establish a
habitat fund under two separate accounts, one for the Tribe and one for
the State. The State account would be managed through Section 6
cooperative agreements, and would address off-reservation stream-flow
and forestry programs. The funds would be used to conduct habitat
protection and restoration projects in the Salmon and Clearwater basins
(tributaries to the Snake River), including programs intended to
protect and restore listed fish and their habitat. The United States
would contribute $38 million to these accounts according to a schedule
determined by Congress in the enacting legislation. On December 8,
2004, the Snake River Water Rights Act of 2004 was enacted to resolve
outstanding issues; reach a final settlement of Tribal claims;
authorize, ratify and confirm the Agreement among the parties; direct
Federal agencies to execute and perform necessary actions to carry out
the agreement; and, to authorize actions and appropriations under the
SRBA and the Act for the United States to meet their obligations. On
March 31, 2005, a Memorandum of Agreement was signed between the State
of Idaho, Nez Perce Tribe, U.S. Fish and Wildlife Service, and National
Marine Fisheries Service to establish a process for using the habitat
trust fund accounts for habitat protection and restoration projects in
the Salmon and Clearwater basins in Idaho. In a March 2005 letter, in
response to a request from the State of Idaho, the FWS and NMFS
provided specific information as to the standard that would be the
basis for the cooperative agreement under Section 6 to implement the
term sheet. In that letter, the two agencies indicated that meeting the
express statutory requirements in section 6 of the ESA for an adequate
and active program for the conservation of the species, in this case,
bull trout and salmon, would be required.
At the time the negotiations on the adjudication were completed,
the bull trout was a listed species, but critical habitat had not been
designated. The negotiations culminating in the final Term sheet were
completed prior to designation of critical habitat.
(1) Benefits of Inclusion
Designation of critical habitat for bull trout in the Snake River
Basin Adjudication area would provide for protection from ``destruction
or adverse modification'' of designated critical habitat under section
7 of the Act. Without designation, a certain amount of habitat
protection would be provided through the jeopardy standard. However, as
noted earlier, based on our review of previous bull trout consultations
under this standard, we have found little to indicate that there would
be additional habitat protections generated by the designation beyond
those provided through the jeopardy standard. There would be some
educational benefits that would accrue from the designation. However,
because of the conservation standard that will be the basis for the
Section 6 agreement and the ensuing special management provisions which
will be the result of that agreement, it is likely that any educational
benefit would overlap with the incidental education that would occur as
a result of the Section 6 agreement negotiation and the associated NEPA
process. Finally, the Section 6 agreement, with its basis of
conservation would likely require more, not less, protection of bull
trout habitat, even including restoration and enhancement, both of
which provide benefits in excess of those provide, by a critical
habitat designation.
(2) Benefits of Exclusion
The primary benefit of exclusion is it preserves the Federal
government's commitments to the parties to the adjudication. The Term
sheet addressed many of the issues related to stream-flow and land
management that would also be addressed by a critical habitat
designation. The Section 6 agreement also provided the standard that
the government would adhere to in their development of implementing
agreements. Discretionary superimposition of requirements, in addition
to those spelled out in the agreement, could be viewed as an act of bad
faith, would undermine confidence in the government's commitments, and
negatively impact future negotiations.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In considering the benefit of a critical habitat designation, and
despite any factual circumstance related to meeting the conditions, the
Secretary considered that benefits would accrue from a designation. She
did this notwithstanding the general premise that in the case of bull
trout, our actual consultation records demonstrated the jeopardy
standard provided similar results to protection provided by critical
habitat designation under the Gifford Pinchot definition. These
protected conservation benefits, were weighed against the benefit of
the Federal government avoiding even the appearance of bad faith in the
Snake River Basin adjudication agreements. The Secretary determined
that the consequences of the Federal government appearing to
unilaterally add additional terms and conditions to an agreement after
it was completed were significant and could negatively affect other
ongoing and potential future negotiations. The benefit of avoiding even
the appearance of bad faith was determined to greatly outweigh any real
or speculative benefit conferred by the
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regulatory protections of a critical habitat designation.
Waters Impounded Behind Dams (Reservoirs and Pools)
We are excluding those reservoirs, or pools impounded behind dams
whose primary purpose is for flood control, energy production, or water
supply for human consumption. Disruption of these functions could
potentially compromise human health and safety in the case of reservoir
where the reservoir provides flood control or drinking water, and in
the case of energy production, would be consistent with the President's
energy policy.
(1) Benefits of Inclusion
We identified two benefits of including reservoirs in the critical
habitat designation: The additional protection afforded by the
prohibition against adverse modification and the benefits associated
with clearly delineating areas containing features essential to a
species' conservation.
The principal benefit of any designated critical habitat is the
requirement for consultation under section 7 of the Act for any
activities having a Federal nexus that may affect critical habitat.
Section 7 of the Act requires action agencies to avoid the destruction
or adverse modification of critical habitat. Given the unique
analytical framework for conducting section 7 consultations on the bull
trout (i.e., an analytical approach whereby the continued survival of
the species is dependent upon maintaining functioning core habitat),
the likelihood that a Federal action would result in adverse
modification, without also jeopardizing the continued existence of the
species, is low. Therefore we give this benefit little weight.
Designating critical habitat can educate the public and management
agencies about the distribution of areas containing features essential
to the conservation of a species. In areas lacking a bull trout-
specific management plan (e.g., many reservoirs) this can guide
projects to avoid impacts to listed species and can help focus recovery
efforts. We assign this benefit moderate weight.
(2) Benefits of Exclusion
We identified a number of possible benefits of excluding reservoirs
from the critical habitat designation. First, to the extent designation
would provide any additional protection of bull trout habitat, costs
associated with that protection would be avoided. Since it is unlikely
that a Federal action would result in adverse modification (which we
have assumed to be small), without also jeopardizing the continued
existence of the species, we believe the benefits of critical habitat
are low, so it follows that by excluding these areas the benefits of
exclusion are also low. However, those reservoirs that provide flood
protection; even where there is a very small probability of flood
control operations, increasing the risk of loss of human lives due to
flooding is unacceptable. The benefit of avoiding the risk exceeds the
benefit of the conservation values generated through reservoir
operation changes. Equally, where a reservoir provides drinking water
for people, the benefit of avoiding the risk, however small, of losing
that water supply in terms of human health and safety is significant.
And finally, where a reservoir provides for energy production the
benefit of avoiding the risk, however small, of a reduction in energy
is inconsistent with the President's energy policies. Therefore, we
believe that the benefits of exclusion, given the risk, however small,
to human health, safety, and energy are large, as we give this benefit
a significant amount of weight.
Second, exclusion would reduce administrative costs of conducting
section 7 consultations on bull trout critical habitat (see Section
3(5)(A) and Exclusions Under Section 4(b)(2) section above). We assign
this benefit moderate weight.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including reservoirs in the critical habitat
designation consist of the prohibition against adverse modification and
the educational benefits of wider knowledge among the public and
management agencies about the distribution of areas containing features
essential to the conservation of a species. Based on our analysis above
we assign these benefits little to moderate weight.
The benefits of excluding reservoirs from the critical habitat
designation include avoiding project modifications that would change
existing flood protection, water delivery services, and energy
production, and avoiding costs associated with preparing regulatory
documents on critical habitat. Modification of reservoir operations as
a result of critical habitat designation may result in an increased
risk to the primary purpose of those reservoirs. For example, should a
reservoir alter its capacity for floodwater storage due to an adverse
modification determination, this may increase the risk of flooding. We
have determined even a minor increase in the risk of flooding has
consequences to human health and safety which outweigh the minor
benefits of critical habitat. We assign an overriding benefit to the
avoidance of increased flood risk. Avoiding diminishment or
interruptions of a reservoir's ability to deliver drinking water also
outweighs the benefit to the species of critical habitat designation,
since the benefit to the species is small and the removing even a small
risk to the disruption of drinking water drinking water supplies is a
significant benefit. Furthermore, avoiding possible modifications to
reservoir operations that reduces energy production is also a benefit
in that it supports the President's energy policy through which we
assign great weight.
Therefore, we have determined that the benefits of inclusion of the
areas covered by reservoirs are small to moderate, while the benefits
of exclusion are more significant. In short, the benefits of exclusion
outweigh the benefits of inclusion. Because we anticipate that little
if any conservation benefit to the bull trout will be foregone as a
result of excluding these lands, the exclusion will not result in the
extinction of the bull trout. Where waters impounded are used for
energy production, this exclusion is consistent with the President's
energy policy. The Secretary exercises her discretion under section
4(b)(2) to exclude these areas from the designation.
Summary of Exclusions
We have reviewed the overall effect of the exclusion of the above-
mentioned approved Conservation agreements with non-Federal landowners,
Tribal lands, military installations, and the Nisqually National
Wildlife Refuge, and other lands that we have excluded as described
above, for bull trout and their essential habitat. We have determined
that the benefits of excluding these areas outweigh the benefits of
including them in this critical habitat designation. Designation of
critical habitat in these areas would most likely have a negative
effect on the recovery and conservation of bull trout. The removal of
these lands from critical habitat designation, as a result of these
exclusions, will not lead to the species' extinction.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing and contain the PCEs
may require special management considerations or protections. As we
undertake the process of designating critical habitat for a species, we
first evaluate lands
[[Page 56256]]
defined by those physical and biological features essential to the
conservation of the species for inclusion in the designation pursuant
to section 3(5)(A) of the Act. Secondly, we evaluate lands defined by
those features to assess whether they may require special management
considerations or protection. Within each area designated as critical
habitat, the physical and biological features essential for the
conservation of the bull trout may require some level of management
and/or protection to avoid destruction or adverse modification of
habitat essential to its conservation.
Critical Habitat Designation
We are designating critical habitat in 20 units. Critical habitat
includes bull trout habitat in Idaho, Montana, Oregon, and Washington.
Lands adjacent to designated critical habitat are under private, local
government, State, Tribal, and Federal ownership. The areas we are
designating as critical habitat constitute our best assessment of areas
that: (1) Have documented occupancy within the last 20 years, (2)
contain features essential to the conservation of the bull trout, and
(3) are in need of special management, and (4) were not excluded under
section 4(b)(2) of the Act. Military lands with an approved INRMP that
provides benefits to the bull trout were not included in the
designation per section 4(a)(3) of the Act.
Tables 1-5 summarize the distance (stream miles) and area (acres)
of designated critical habitat by critical habitat unit, State, and
land ownership.
Table 1.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
Critical Habitat by Critical Habitat Unit
------------------------------------------------------------------------
Stream/shoreline Stream/shoreline
CH unit miles kilometers
------------------------------------------------------------------------
1. Klamath River Basin......... 50 80
2. Clark Fork River Basin...... 1,136 1,828
3. Kootenai River Basin........ 56 91
4. Willamette River Basin...... 111 178
5. Hood River Basin............ 30 48
6. Deschutes River Basin....... 78 126
9. Umatilla-Walla Walla River 218 350
Basins.........................
10. Grande Ronde River Basin.... 308 496
11. Imnaha-Snake River Basins... 92 148
12. Hells Canyon Complex........ 125 202
13. Malheur River Basin......... 38 60
14. Coeur d'Alene Lake Basin.... 124 199
19. Lower Columbia River Basin.. 94 152
20. Middle Columbia River Basin. 188 302
22. Northeast Washington River 25 40
Basins.........................
23. Snake River Basin in 68 109
Washington.....................
25. Snake River................. 17 27
27. Olympic Peninsula........... 388 624
27. Olympic Peninsula (Marine).. 419 674
28. Puget Sound................. 646 1,039
28. Puget Sound (Marine)........ 566 912
29. Saint Mary-Belly............ 37 59
---------------------
Total....................... 4,813 7,745
------------------------------------------------------------------------
Table 2.--Acres of Reservoirs or Lakes Designated as Bull Trout Critical
Habitat by Critical Habitat Unit.
------------------------------------------------------------------------
CH unit Acres Hectares
------------------------------------------------------------------------
1. Klamath River Basin......... 24,610 9,959
2. Clark Fork River Basin...... 49,755 20,135
3. Kootenai River Basin........ 1,384 560
6. Deschutes River Basin....... 2,713 1,098
14. Coeur d'Alene Lake Basin.... 27,296 11,046
27. Olympic Peninsula........... 8,318 3,366
28. Puget Sound................. 25,035 10,131
29. Saint Mary-Belly............ 4,107 1,662
---------------------
Total....................... 143,218 57,958
------------------------------------------------------------------------
Table 3.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
Critical Habitat by State
------------------------------------------------------------------------
Stream/shoreline Stream/shoreline
State miles kilometers
------------------------------------------------------------------------
Idaho........................... 294 474
Montana......................... 1,058 1,703
Oregon.......................... 939 1,511
Oregon/Idaho.................... 17 27
Washington...................... 1,519 2,445
Washington (Marine)............. 985 1,585
---------------------
[[Page 56257]]
Total....................... 4,812 7,745
------------------------------------------------------------------------
Table 4.--Acres of Reservoirs or Lakes Designated as Bull Trout Critical
Habitat by State
------------------------------------------------------------------------
State Acres Hectares
------------------------------------------------------------------------
Idaho........................... 50,627 20,488
Montana......................... 31,916 12,916
Oregon.......................... 27,322 11,057
Washington...................... 33,353 13,497
---------------------
Total....................... 143,218 57,958
------------------------------------------------------------------------
Table 5.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
Critical Habitat by Ownership
------------------------------------------------------------------------
Stream/shoreline Stream/shoreline
Land ownership miles kilometers
------------------------------------------------------------------------
Federal......................... 538 865
Federal/Private Mixed........... 24 38
Federal/State Mixed............. 6 10
Federal/Tribal Mixed............ 1 1
Private......................... 3,587 5,773
State/Local Government Mixed.... 347 559
State/Private Mixed............. 69 111
Tribal.......................... 209 336
Tribal/Private Mixed............ 31 50
Tribal/State Mixed.............. 1 2
---------------------
Total....................... 4,813 7,745
------------------------------------------------------------------------
The lateral extent of critical habitat, for each designated stream
reach, is the width of the stream channel as defined by its ordinary
high-water line as defined by the U.S. Army Corps of Engineers (COE) in
33 CFR 329.11. This approach is consistent with the specific mapping
requirements described in agency regulations at 50 CFR 424.12(c). In
areas for which ordinary high-water has not been defined pursuant to 33
CFR 329.11, the width of the stream channel shall be defined by its
bankfull elevation. Bankfull elevation is the level at which water
begins to leave the channel and move into the floodplain (Rosgen, 1996)
and is reached at a discharge which generally has a recurrence interval
of 1 to 2 years on the annual flood series (Leopold et al., 1992). Such
an interval is commensurate with nearly all of the juvenile freshwater
life phases of most salmon and steelhead ESUs. Therefore, it is
reasonable to conclude that for an occupied stream reach this lateral
extent is regularly ``occupied''. Moreover, the bankfull elevation can
be readily discerned for a variety of stream reaches and stream types
using recognizable water lines (e.g., marks on rocks) or vegetation
boundaries (Rosgen, 1996). Critical habitat extends from the ordinary
high-water line as defined by the Corps in 33 CFR 329.11 and shall be
used to determine the lateral extent of critical habitat. Adjacent
floodplains are not designated as critical habitat. However, it should
be recognized that the quality of aquatic habitat within stream
channels is intrinsically related to the character of the floodplains
and associated riparian zones, and human activities that occur outside
the river channels can have demonstrable effects on physical and
biological features of the aquatic environment (i.e., critical
habitat). In addition, human activities that occur within or adjacent
to streams or stream reaches that flow into critical habitat can also
have demonstrable effects on physical and biological features of
designated reaches. The lateral extent of lakes and reservoirs is
defined by the perimeter of the water body as mapped on standard
1:24,000 scale maps (comparable to the scale of a 7.5 minute USGS
Quadrangle topographic map).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is
[[Page 56258]]
proposed or designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect the bull trout or its designated
critical habitat will require section 7 consultation under the Act.
Activities on State, tribal, local or private lands requiring a Federal
permit (such as a permit from the Corps under section 404 of the Clean
Water Act or a permit under section 10(a)(1)(B) of the Act from the
Service) or involving some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation Administration, or
the Federal Emergency Management Agency) will also be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local or
private lands that are not federally-funded, authorized, or permitted,
do not require section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Bull Trout and Its Critical Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for bull trout jeopardy analyses
that relies heavily on the importance of core area populations to the
survival and recovery of the bull trout.\1\ The section 7(a)(2)
analysis is focused not only on these populations but also on the
habitat conditions necessary to support them.
---------------------------------------------------------------------------
\1\ (Core areas form the building blocks that provide for
conserving the bull trout's evolutionary legacy as represented by
major genetic groups. The draft Bull Trout Recovery Plan recognizes
core areas as the population units that are necessary to provide for
bull trout biological needs in relation to genetic and phenotypic
diversity, and spreading the risk of extinction caused by stochastic
events. Peer review of the draft Bull Trout Recovery Plan did not
reveal deficiencies with this approach. A panel of scientists
invited to participate in the bull trout 5-year review process
concluded that core areas are appropriate units of analysis by which
threats to the bull trout and recovery standards should be
measured.)
---------------------------------------------------------------------------
The jeopardy analysis usually expresses the survival and recovery
needs of the bull trout at the DPS scale in a qualitative fashion
without making distinctions between what is necessary for survival and
what is necessary for recovery. Generally, if a proposed Federal action
is incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population ot the survival and recovery of the species
as a whole.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum is used to complete section 7(a)(2) analyses for
Federal actions affecting bull trout critical habitat. The key factor
related to the adverse modification determination is whether, with
implementation of the
[[Page 56259]]
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the primary constituent
elements to be functionally established) to serve the intended
conservation role for the species. Generally, the conservation role of
bull trout critical habitat units is to support viable core area
populations.
It should be noted that in the 200 or so formal consultations
completed since the bull trout was listed, most of the anticipated
effects of proposed Federal actions on the species have not been
biologically significant from a core area perspective, and if these
actions were subject to the adverse modification standard described
above, they would not likely violate it. Based on an analysis of 137
formal consultations conducted during the period 1998-2003, the
following types of projects were proposed in bull trout-occupied
habitat, in order of frequency (most to least): multiple project
actions, grazing, road work, bridge work, habitat restoration, land and
resource management plans, mining, hydropower, timber harvest,
recreation, water diversion/irrigation, research, land exchange, flood
control, erosion control, pipeline construction, predator control,
landslide remediation, instream crossings, weed management, dredging,
and levee repair.
However, at least one major Federal action involving significant
modifications to natural flow patterns in designated critical habitat
is currently in formal consultation, and it is likely (based on recent
litigation patterns and outcomes) that the number of diversion-related
Federal actions consulted on, some of which may occur in critical
habitat, will increase substantially in the future. Water quality and
quantity are significant factors (and primary constituent elements of
bull trout critical habitat) influencing the viability of bull trout
core areas. Given that context, it seems reasonable to predict that a
few Federal actions will be found to adversely modify bull trout
critical habitat; most of these actions would also probably constitute
jeopardy.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species. All
areas designated as critical habitat are determined to be essential to
the conservation of the bull trout.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for the bull trout is appreciably reduced.
Activities that, when carried out, funded, or authorized by a Federal
agency, may affect critical habitat and therefore result in
consultation for the bull trout include, but are not limited to:
(1) Detrimental altering of the minimum flow or the natural flow
regime of any of the designated stream segments. Possible actions would
include groundwater pumping, impoundment, water diversion, and
hydropower generation. We note that such flow alterations resulting
from actions affecting tributaries of the designated stream reaches may
also destroy or adversely modify critical habitat;
(2) Alterations to the designated stream segments that could
indirectly cause significant and detrimental effects to bull trout
habitat. Possible actions include vegetation manipulation, timber
harvest, road construction and maintenance, prescribed fire, livestock
grazing, off-road vehicle use, powerline or pipeline construction and
repair, mining, and development. Riparian vegetation profoundly
influences instream habitat conditions by providing shade, organic
matter, root strength, bank stability, and large woody debris inputs to
streams. These characteristics influence water temperature, structure
and physical attributes (useable habitat space, depth, width, channel
roughness, cover complexity), and food supply (Gregory et al. 1991;
Sullivan et al. 2000). The importance of riparian vegetation and
channel bank condition for providing rearing habitat for salmonids in
general is well documented (e.g., Bossu 1954 and Hunt 1969, cited in
Beschta and Platts 1987; MBTSG 1998);
(3) Detrimental altering of the channel morphology of any of the
designated stream segments. Possible actions would include
channelization, impoundment, road and bridge construction, deprivation
of substrate source, destruction and alteration of aquatic or riparian
vegetation, reduction of available floodplain, removal of gravel or
floodplain terrace materials, excessive sedimentation from mining,
livestock grazing, road construction, timber harvest, off-road vehicle
use, and other watershed and floodplain disturbances. We note that such
actions in the upper watershed (beyond the riparian area) may also
destroy or adversely modify critical habitat. For example, timber
harvest activities and associated road construction in upland areas can
lead to changes in channel morphology by altering sediment production,
debris loading, and peak flows;
(4) Detrimental alterations to the water chemistry in any of the
designated stream segments. Possible actions would include release of
chemical or biological pollutants into the surface water or connected
groundwater at a point source or by dispersed release (non-point);
(5) Proposed activities that are likely to result in the
introduction, spread, or augmentation of nonnative aquatic species in
any of the designated stream segments. Possible actions would include
fish stocking; use of live bait fish; aquaculture; improper
construction and operation of canals; and interbasin water transfers;
and
(6) Proposed activities that are likely to create significant
instream barriers to bull trout movement. Possible actions would
include new water diversions, impoundments, and hydropower generation
where effective fish passage facilities, mechanisms, or procedures are
not provided.
We consider all of the units designated as critical habitat, as
well as those that have been excluded or not included, to contain
features essential to the conservation of the bull trout. All units are
within the geographic range of the species, all were occupied by the
species at the time of listing (based on observations made within the
last 20 years), and are likely to be used by the bull trout, whether
for foraging, migrating, overwintering, spawning, or rearing. Federal
agencies already consult with us on activities in areas currently
occupied by the bull trout, or if the species may be affected by the
action, to ensure that their actions do not jeopardize the continued
existence of the bull trout.
If you have questions regarding whether specific activities will
likely constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor of the nearest Fish and Wildlife
Ecological Services Office. Requests for copies of the regulations on
listed wildlife, and inquiries about prohibitions and permits may be
addressed to the Division of Endangered Species, U.S. Fish and Wildlife
Service, 911 NE 11th Avenue, Portland, OR 97232-4181 (telephone 503/
231-6158; facsimile 503/231-6243).
Economic Analysis
Section 4(b)(2)of the Act requires us to designate critical habitat
on the basis of the best scientific and commercial information
available and to consider the economic and other relevant
[[Page 56260]]
impacts of designating a particular area as critical habitat. We
exclude areas from critical habitat upon a determination that the
benefits of such exclusions outweigh the benefits of specifying such
areas as critical habitat. We cannot exclude areas from critical
habitat when exclusion will result in the extinction of the species
concerned.
Analysis of the Klamath River and Columbia River Populations
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on April 5, 2004 (69 FR 17634). We
accepted comments on the draft analysis until May 5, 2004.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the bull trout. This information is intended to assist the
Secretary in making decisions about whether the benefits of excluding
particular areas from the designation outweigh the benefits of
including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The analysis examines activities taking place both within and
adjacent to the designation. It estimates impacts based on activities
that are ``reasonably foreseeable'' including, but not limited to,
activities that are currently authorized, permitted, or funded, or for
which proposed plans are currently available to the public.
Accordingly, the analysis bases estimates on activities that are likely
to occur within a 10-year time frame, from when the proposed rule
became available to the public (November 30, 2002, 67 FR 71235). The
10-year time frame was chosen for the analysis because, as the time
horizon for an economic analysis is expanded, the assumptions on which
the projected number of projects and cost impacts associated with those
projects become increasingly speculative. An exception to the 10-year
analysis time horizon used in this analysis is for FERC licenses, which
are renewed for up to 50 years. Accordingly, this analysis estimates
the annualized costs of the expected impacts associated with section 7
bull trout consultations involving FERC re-licensing over a 50-year
time horizon.
Costs can be expressed in terms of unit or river mile; both of
these metrics are useful in describing economic impacts. On a cost per
unit basis, the largest portion of forecast costs is expected to occur
in Unit 4, the Willamette River Basin (18 percent). These costs are
attributable to fish passage and temperature control projects and
annual operating and maintenance and fish study costs at the Corp's
facilities in the Upper Willamette River System (Dexter, Lookout Point,
Hills Creek, and Blue River Dams). The next most costly unit is Unit
16, the Salmon River Basin (12 percent). Because this is the largest
unit in terms of river miles and proportion of USFS-managed land, and
because future USFS activities are expected to generate approximately
70 percent of the consultation activity, this unit bears the greatest
number of future bull trout-related consultations. Therefore, the
administrative costs account for a large portion of the costs in this
unit. Together, these two units account for 30 percent (approximately
$8.2 million) of forecast costs. The next three most costly units,
Hells Canyon complex (Unit 12), and the Clark Fork River (Unit 2), and
Malheur River (Unit 13) Basins, each account for 8 percent (a unit cost
range of approximately $2.1 million to $2.3 million) of forecast costs.
In total, these five units account for almost 55 percent of forecast
costs (approximately $14.8 million).
Based on our analysis, we concluded that the designation of
critical habitat for the Klamath River and Columbia River population
segments would not result in a significant economic impact, and
estimated the potential economic effects over a 10-year period would
range from $200 to $260 million ($20 to $26 million per year) for bull
trout. It is expected that Federal agencies will bear 70 percent of
these costs. The total estimated costs associated with bull trout
consultation is expected be $9.8 million annually, and total project
modification costs are expected to range from $19.5 to $26.1 million
annually. Although we do not find the economic costs to be significant,
they were considered in balancing the benefits of including and
excluding areas from critical habitat.
Analysis of the Jarbidge River, Coastal-Puget Sound, and Saint Mary-
Belly River Populations
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The DEA was made
available for public review on May 3, 2005 (70 FR 22835). We accepted
comments on the DEA until June 2, 2005.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the conservation of bull
trout. This information is intended to assist the Secretary in making
decisions about whether the benefits of excluding particular areas from
the designation outweigh the benefits of including those areas in the
designation. The economic analysis considers the economic efficiency
effects that may result from the designation, including habitat
protections that may be co-extensive with the listing of the species.
It also addresses distribution of impacts, including an assessment of
the potential effects on small entities and the energy industry. This
information can be used by the Secretary to assess whether the effects
of the designation might unduly burden a particular group or economic
sector.
This analysis focuses on the direct and indirect costs related to
bull trout, and the analysis considers how small entities, including
small businesses, organizations, and governments, may be affected by
future bull trout conservation activities. In addition, this analysis
considers the impacts of conservation activities on the energy industry
and its customers. However, economic impacts to land-use activities can
exist in the absence of critical habitat. These impacts may result
from, for example, local zoning laws, State and natural resource laws,
and enforceable management plans and best management practices applied
by other State and Federal agencies.
The analysis examines activities taking place both within and
adjacent to the designation. It estimates impacts based on activities
that are ``reasonably foreseeable'' including, but not limited
[[Continued on page 56261]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 56261-56311]] Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Bull Trout
[[Continued from page 56260]]
[[Page 56261]]
to, activities that are currently authorized, permitted, or funded, or
for which proposed plans are currently available to the public. The
analysis estimates economic effects of activities from 1998 (year of
the proposed rule for listing) through 2024 (20 years from the year of
final critical habitat designation). The time frame for analysis was
selected to emulate a reasonable future period for recovery of the
species.
The time frame associated with each activity is important because
as the time horizon for an economic analysis is expanded, the forecast
of future projects becomes increasingly speculative. As a result, with
the exception of hydroelectric and non-hydroelectric projects where
some capital costs are spread over 50 years, this analysis relies
primarily on a time frame of 20 years. The time frame for hydroelectric
and non-hydroelectric projects is longer relative to other activities
analyzed based on the nature of the activity. Whereas geographic and
total projections of population and housing densities within a region
become increasingly speculative over time, the known location and
inevitability of hydroelectric dam re-licensing or other permitting
provides sufficient information to estimate future costs associated
with conservation measures at these facilities.
The Coastal-Puget Sound population represents about 99 percent of
the costs, and these costs are co-extensive with listed salmon. The
reason for this is that listed salmon species overlap with the
geographic area of the Coastal-Puget Sound population of bull trout.
There are no listed species of salmon or steelhead in the Jarbidge
River or Saint Mary-Belly River populations. Also, in cases where there
is an overlap of range between salmon and bull trout, no separation is
made of these joint costs, and they are presented as ``impacts
associated with co-extensive of salmon and bull trout conservation
activities.''
For this critical habitat designation, the majority of the cost
burden (about 75 percent) falls on the commercial sector. Based on the
projected development from 2005 to 2024, bull trout conservation
activities are anticipated to increase the total cost of commercial,
residential, and mixed development by $26.2 million annually. Total
prospective costs are $277.2 million applying a 7 percent discount
rate. Other cost leading activities include Federal land management (13
percent), non-hydroelectric projects (11 percent), and hydroelectric
projects (10 percent). In the Puget Sound Unit (Unit 28), costs
associated with residential and commercial development are among the
highest category of costs.
There are 83 watersheds in the Coastal-Puget Sound region that
contain designated critical habitat. Of the 10 watersheds with the
highest costs associated with co-extensive salmon and bull trout
conservation activities, nine are within Unit 28, between the Skagit
River in the north and the Puyallup River in the south, and seven of
these contain significant development costs; not surprisingly, they
encompass highly urbanized areas of Puget Sound. Together, these seven
watersheds represent 48 percent of the total economic impact within
designated critical habitat. Costs in the Middle Green River watershed
are primarily attributable to conservation activities at the Howard
Hansen Dam and the City of Tacoma's water diversion. High costs in the
Baker River watershed are due primarily to the upper and lower Baker
Dam, where significant capitals costs are expected associated with a
fish passage project beginning in 2006. Together, these 10 watersheds
in Coastal-Puget Sound represent 70 percent of the annualized economic
impacts associated with lands designated as critical habitat.
Based on our analysis, we concluded that the designation of
critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint
Mary-Belly River population segments would not result in a significant
economic impact, and estimated the potential economic effects over a
20-year period would range from approximately $684 million, assuming a
7 percent discount rate, to approximately $1 billion, assuming a 3
percent discount rate. Costs are estimated to be $61.3 million per
year.
Copies of the two final economic analyses with supporting documents
are included in our administrative record and may be obtained by
contacting U.S. Fish and Wildlife Service, Branch of Endangered Species
(see ADDRESSES section), or by downloading from the Internet at http://www.fws.gov/pacific/bulltrout/
.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this final rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the final
rule clearly stated? (2) Does the final rule contain technical jargon
that interferes with the clarity? (3) Does the format of the final rule
(grouping and order of the sections, use of headings, paragraphing, and
so forth) aid or reduce its clarity? (4) Is the description of the
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the final rule? (5) What else could we do to make this
final rule easier to understand?
Send a copy of any comments on how we could make this final rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to
[[Page 56262]]
require Federal agencies to provide a statement of factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA also amended the RFA to
require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; and small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect bull trout. Federal agencies also must consult with us if their
activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities.
The Columbia River and Klamath River populations of bull trout were
federally-listed as threatened in June 1998. In fiscal years 1998
through 2002, we conducted 152 formal section 7 consultations and
several hundred informal consultations with other Federal agencies,
mainly the USFS, to ensure that their actions will not jeopardize the
continued existence of the bull trout. Our economic analysis found that
timber management, grazing, dam and reservoir operations, stream
habitat improvement and fisheries restoration, road construction and
maintenance, and flood control projects are the primary activities
anticipated to take place within the area designated as critical
habitat for the bull trout. To be conservative (i.e., more likely to
overstate impacts than understate them), we assumed in our economic
analysis that a unique business entity would undertake each of the
projected consultations in a given year. Therefore, the number of
businesses affected annually is equal to the total annual number of
consultations (both formal and informal).
Based on the economic analysis which looked at the critical habitat
for bull trout, and including consultations on FERC relicensing of
hydroelectric facilities, we estimated that in each year, there could
be approximately 52 formal consultations involving bull trout, and it
is expected that the USFS will constitute about 70 percent of the total
number of formal consultations.
The Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River
bull trout populations were federally listed as threatened in April
1999 (Jarbidge River) and November 1999 (Coastal-Puget Sound and St.
Mary-Belly River), respectively. In fiscal years 1998 through 2004, we
conducted 176 formal section 7 consultations and several hundred
informal consultations with other Federal agencies to ensure that their
actions will not jeopardize the continued existence of the bull trout.
Approximately 77 percent of the past consultations have involved the
Corps and FHA. The Corps regulates flood control and damage reduction
efforts, as well as permits dredging and construction activities
affecting waterways under authority provided by the Clean Water Act.
Federal Highway Administration provides funding to many of the road and
bridge projects administered by State departments of transportation.
Projects that may impact streams with listed bull trout can result in a
section 7 consultation with FHA as the action agency.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for small businesses
that may be required to consult with us each year regarding their
project's impact on bull trout and its habitat. First, if we conclude,
in a biological opinion, that a proposed action is likely to jeopardize
the continued existence of a species or adversely modify its critical
habitat, we can offer ``reasonable and prudent alternatives.''
Reasonable and prudent alternatives are alternative actions that can be
implemented in a manner consistent with the scope of the Federal
agency's legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid jeopardizing the
continued existence of listed species or result in adverse modification
of critical habitat. A Federal agency and an applicant may elect to
implement a reasonable and prudent alternative associated with a
biological opinion that has found jeopardy, or adverse modification of
critical habitat. An agency or applicant could alternatively choose to
seek an exemption from the requirements of the Act or proceed without
implementing the reasonable and prudent alternative. However, unless an
exemption were obtained, the Federal agency or applicant would be at
risk of violating section 7(a)(2) of the Act if it chose to proceed
without implementing the reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant species,
we may identify reasonable and prudent measures designed to minimize
the amount or extent of take and require the Federal agency or
applicant to implement such measures through non-discretionary terms
and conditions. We may also identify discretionary conservation
recommendations designed to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat, help implement
recovery plans, or to develop information that could contribute to the
recovery of the species.
[[Page 56263]]
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
in their initial proposed form, would result in jeopardy, or adverse
modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule and this critical habitat designation. Within the final
CHUs, the types of Federal actions or authorized activities that we
have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Regulation of timber harvest, grazing, mining, and recreation
by the USFS and BLM;
(4) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Hazard mitigation and post-disaster repairs funded by the FEMA;
and
(6) Activities funded by the Environmental Protection Agency, U.S.
Department of Energy, or any other Federal agency.
It is likely that a developer or other project proponent could
modify a project or implement measures to protect bull trout. The kinds
of actions that may be included if future reasonable and prudent
alternatives become necessary include conservation set-asides,
management of competing nonnative species, restoration of degraded
habitat, and monitoring. These are based on our understanding of the
needs of the species and the threats it faces, as described in the
final listing rule and proposed critical habitat designation. These
measures are not likely to result in a significant economic impact to
project proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. The
most likely Federal involvement could include Corps permits, permits we
may issue under section 10(a)(1)(B) of the Act, FHA funding for road
improvements, hydropower licenses issued by the Federal Energy
Regulatory Commission, and regulation of timber harvest, grazing,
mining, and recreation by the USFS and BLM. A regulatory flexibility
analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based enterprises to
compete with foreign-based enterprises. Refer to the final economic
analysis for a discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule to
designate critical habitat for the bull trout is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions: it excludes ``a condition of federal assistance,'' and it
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, permits or that otherwise require approval
or authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year that is, it is not a
``significant regulatory action''
[[Page 56264]]
under the Unfunded Mandates Reform Act. The designation of critical
habitat imposes no obligations on State or local governments. As such,
Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. Therefore, a takings implication
assessment is not required. The designation of critical habitat affects
only Federal agency actions. The rule will not increase or decrease the
current restrictions on private property concerning take of the bull
trout. Due to current public knowledge of the species' protection as a
result of it being listed under the Act, the prohibition against take
of the species both within and outside of the designated areas, and the
fact that critical habitat provides no incremental restrictions, we do
not anticipate that property values will be affected by the critical
habitat designation. While real estate market values may temporarily
decline following designation due to the perception that critical
habitat designation may impose additional regulatory burdens on land
use, we expect any such impacts to be short term. Additionally,
critical habitat designation does not preclude development of HCPs and
issuances of incidental take permits. Owners of areas that are included
in the designated critical habitat will continue to have opportunity to
use their property in ways consistent with the survival and
conservation of the bull trout.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this critical habitat designation with appropriate
State resource agencies in Washington, Idaho, Montana, Oregon, and
Nevada. The designation of critical habitat in areas currently occupied
by the bull trout imposes no additional restrictions to those currently
in place and, therefore, has little incremental impact on State and
local governments and their activities. The designation may have some
benefit to these governments in that the areas essential to the
conservation of the species are more clearly defined, and the PCEs of
the habitat necessary to the survival of the species are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it may
assist these local governments in long-range planning (rather than
encouraging these governments to simply wait for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have designated critical habitat in accordance
with the provisions of the Endangered Species Act. This final rule uses
standard property descriptions and identifies the PCEs within the
designated areas to assist the public in understanding the habitat
needs of the bull trout.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
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
Outside the Tenth Circuit Court, we do not need to prepare
environmental analyses as defined by NEPA in connection with
designating critical habitat under the Endangered Species Act of 1973,
as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996)).
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis.
During our development of this critical habitat designation for the
Columbia River and Klamath River populations of bull trout, we
evaluated tribal lands to determine if they contain features are
essential to the conservation of the species. We have designated
critical habitat for portions of Ahtanum Creek, North Fork Ahtanum
Creek, South Fork Ahtanum Creek, Yakima River, Clearwater Creek, Fish
Lake Stream, unnamed tributary to Fish Lake Stream, Little Muddy Creek,
Trappers Creek, Two Lakes Stream, West Fork Klickitat River, and
Klickitat River within or adjacent to the Yakama Indian Reservation;
the Umatilla River, Meacham Creek, and Squaw Creek within the Umatilla
Reservation; Lake Coeur d'Alene within the Coeur d'Alene Reservation; a
portion of the Columbia River adjacent to the Colville Indian
Reservation; the Pend Oreille River and Calispell Creek within the
Kalispell Indian Reservation; portions of Clearwater River, Middle Fork
Clearwater River, North Fork Clearwater River, and South Fork
Clearwater River, Lolo Creek, Clear Creek, and Dworshak Reservoir
within or adjacent to the Nez Perce Indian Reservation; and portions of
Dry Creek, Flathead Lake, the lower Flathead River, Jocko River,
McDonald Lake, Middle Fork Jocko River, Mission Creek, Mission
Reservoir, North Fork Jocko River, Post Creek, Saint Mary's Lake, and
South Fork Jocko River on the Confederated Salish and Kootenai Tribes
(CSKT) lands on the Flathead Indian Reservation.
Currently, the Yakama Nation, Coeur d'Alene, Kalispell, Nez Perce,
CSKT, and Umatilla Tribes do not have resource management plans that
provide protection or conservation for the bull trout and its habitat.
The CSKT have a resource management plan addressing bull trout
conservation that is being applied in the Jocko River watershed.
However, as a result of our meetings with the Tribes on September 26,
2002, we mutually agreed to include habitat within the Jocko River
watershed in this rule designating critical habitat.
We held government-to-government consultations with the
Confederated Tribes of Warm Springs Reservation of Oregon (CTWS) to
discuss their policy and position regarding the proposal. At these
meetings, the CTWS provided us with documents pertaining to the Tribe's
conservation activities which benefit the bull trout. These documents
include their IRMP I and II, Water Code, Water Quality Standards,
Implementation Plan for Water Quality, Water Resources Inventory,
Streamside Management Plan, Field Guide to IRMP Standards and Best
Management
[[Page 56265]]
Practices. They also provided us with information on specific actions
they have taken that benefit the bull trout.
During our development of this critical habitat designation for the
Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull
trout populations, we evaluated tribal lands to determine if they
contain features that are essential to the conservation of the species.
There are no tribal lands designated as critical habitat within the
Jarbidge River population area. Within the Saint Mary-Belly River
population, there are no tribal lands designated as critical habitat.
Within the Coastal-Puget Sound population, we have designated critical
habitat for portions of the Nooksack River and Puget Sound nearshore
adjacent to the Lummi Indian Reservation; portion of the Nooksack River
adjacent to the Nooksack Indian Reservation; portion of the Sauk River
adjacent to the Sauk-Suiattle Indian Reservation; portions of the
Snohomish River, and Puget Sound nearshore within or adjacent to the
Tulalip Indian Reservation; portions of the Puyallup River and Puget
Sound nearshore within or adjacent to the Puyallup Indian Reservation;
portions of the Nisqually River within or adjacent to the Nisqually
Indian Reservation; portions of the Elwha River and the Strait of Juan
de Fuca nearshore within or adjacent to the Lower Elwha S'Klallam
Indian Reservation; and a portion of the Chehalis River within or
adjacent to the Chehalis Indian Reservation. Approximately 18 mi (29
km) of stream segments, 60 mi (96 km) of marine shoreline, and 962 ac
(389 ha) on or adjacent to tribal lands are included in our critical
habitat designation, and approximately 79 mi (127 km) of stream
segments and 56 mi (90 km) of marine shoreline on or adjacent to tribal
lands are excluded.
We will continue to work closely with tribes to manage essential
features of bull trout habitat. We are committed to maintaining a
positive working relationship with all of the tribes, and will work
with them on developing resource management plans for tribal lands that
include conservation measures for bull trout. We were required to
prepare this critical habitat designation based on our analysis of
whether habitat within these tribal reservation lands contain features
essential to the conservation of the species and may require special
management considerations or protection. Please refer to the Tribal
Lands section under the Section 3(5)(A) and Exclusions Under Section
4(b)(2) of the Act for a more detailed discussion.
References Cited
A complete list of all references cited in this final rule is
available on request from the U.S. Fish and Wildlife Service, Branch of
Endangered Species Office, Portland, OR (see ADDRESSES section).
Authors
The primary authors of this rule are the staff of the U.S. Fish and
Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
0
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.
0
2. Amend Sec. 17.95(e) by revising the entry for Bull Trout
(Salvelinus confluentus) to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Bull Trout (Salvelinus confluentus)
(1) Locations of the designated critical habitat. Critical habitat
is designated in the following States and counties on the maps and as
described below:
------------------------------------------------------------------------
State Counties
------------------------------------------------------------------------
(i) Idaho................ Adams, Benewah, Bonner, Boundary, Kootenai,
Nez Perce, Shoshone, Washington.
(ii) Montana............. Deer Lodge, Flathead, Glacier, Granite, Lake,
Lewis and Clark, Lincoln, Mineral, Missoula,
Powell, Ravalli, Sanders.
(iii) Oregon............. Baker, Deschutes, Grant, Harney, Hood River,
Jefferson, Klamath, Lake, Lane, Sherman,
Umatilla, Union, Wallowa, Wasco.
(iv) Washington.......... Asotin, Benton, Clallam, Clark, Columbia,
Cowlitz, Garfield, Grays Harbor, Island,
Jefferson, King, Kittitas, Klickitat, Mason,
Pend Oreille, Pierce, Skagit, Skamania,
Snohomish, Stevens, Thurston, Walla Walla,
Whatcom, Whitman, Yakima.
------------------------------------------------------------------------
(2) Topographic features included in the critical habitat
designation. Critical habitat includes the stream channels within the
designated stream reaches and inshore extent of critical habitat for
marine nearshore areas (the mean high high-water (MHHW) line),
including tidally influenced freshwater heads of estuaries indicated on
the maps below.
(i) Critical habitat includes the stream channels within the
designated stream reaches, and includes a lateral extent as defined by
the ordinary high-water line. In areas where ordinary high-water line
has not been defined, the lateral extent will be defined by the
bankfull elevation. Bankfull elevation is the level at which water
begins to leave the channel and move into the floodplain and is reached
at a discharge that generally has a recurrence interval of 1 to 2 years
on the annual flood series. Critical habitat includes the stream
channels within the designated stream reaches, and includes a lateral
extent from the bankfull elevation on one bank to the bankfull
elevation on the opposite bank. Bankfull elevation is the level at
which water begins to leave the channel and move into the floodplain
and is reached at a discharge that generally has a recurrence interval
of 1 to 2 years on the annual flood series. If bankfull elevation is
not evident on either bank, the ordinary high-water line must be used
to determine the lateral extent of critical habitat. The lateral extent
of designated lakes is defined by the perimeter of the water body as
mapped on standard 1:24,000 scale topographic maps.
(ii) Critical habitat includes the inshore extent of critical
habitat for marine nearshore areas (the MHHW line), including tidally
influenced freshwater heads of estuaries. This refers to the average of
all the higher high-water heights of the two daily tidal levels.
Adjacent shoreline riparian areas, bluffs, and uplands are not
designated as critical habitat. However, it should be recognized that
the quality of marine habitat along shorelines is intrinsically related
to the character of these adjacent features, and human activities that
occur outside of the MHHW line can have major effects on physical and
biological features of the marine environment. The offshore
[[Page 56266]]
extent of critical habitat for marine nearshore areas is based on the
extent of the photic zone, which is the layer of water in which
organisms are exposed to light. Critical habitat extends offshore to
the depth of 33 ft (10 m) relative to the mean low low-water line
(MLLW) (average of all the lower low-water heights of the two daily
tidal levels). This equates to the average depth of the photic zone and
is consistent with the offshore extent of the nearshore habitat
identified under the ``Notice of Change to the Nation's Tidal Datums
With the Adoption of a New National Tidal Datum Epoch Period of 1983
Through 2001''. This area between MHHW and minus 10 MLLW is considered
the habitat most consistently used by bull trout in marine waters based
on known use, forage fish availability, and ongoing migration studies,
and captures geological and ecological processes important to
maintaining these habitats. This area contains essential foraging
habitat and migration corridors such as estuaries, bays, inlets,
shallow subtidal areas, and intertidal flats.
(3) Primary constituent elements needed for bull trout survival.
Within the designated critical habitat areas, the primary constituent
elements (PCEs) for bull trout are those habitat components that are
essential for the primary biological needs of foraging, reproducing,
rearing of young, dispersal, genetic exchange, or sheltering. Note that
only the PCEs described in paragraphs (e)(3)(i), (vi), (vii), and
(viii) apply to marine nearshore waters identified as critical habitat.
The PCEs are as follows:
(i) Water temperatures that support bull trout use. Bull trout have
been documented in streams with temperatures from 32 to 72 [deg]F (0 to
22 [deg]C) but are found more frequently in temperatures ranging from
36 to 59 [deg]F (2 to 15 [deg]C). These temperature ranges may vary
depending on bull trout life-history stage and form, geography,
elevation, diurnal and seasonal variation, shade, such as that provided
by riparian habitat, and local groundwater influence. Stream reaches
with temperatures that preclude bull trout use are specifically
excluded from designation;
(ii) Complex stream channels with features such as woody debris,
side channels, pools, and undercut banks to provide a variety of
depths, velocities, and instream structures;
(iii) Substrates of sufficient amount, size, and composition to
ensure success of egg and embryo overwinter survival, fry emergence,
and young-of-the-year and juvenile survival. This should include a
minimal amount of fine substrate less than 0.25 inch (0.63 centimeter)
in diameter.
(iv) A natural hydrograph, including peak, high, low, and base
flows within historic ranges or, if regulated, currently operate under
a biological opinion that addresses bull trout, or a hydrograph that
demonstrates the ability to support bull trout populations by
minimizing daily and day-to-day fluctuations and minimizing departures
from the natural cycle of flow levels corresponding with seasonal
variation: This rule finds that reservoirs currently operating under a
biological opinion that addresses bull trout provides management for
PCEs as currently operated;
(v) Springs, seeps, groundwater sources, and subsurface water to
contribute to water quality and quantity as a cold water source;
(vi) Migratory corridors with minimal physical, biological, or
water quality impediments between spawning, rearing, overwintering, and
foraging habitats, including intermittent or seasonal barriers induced
by high water temperatures or low flows;
(vii) An abundant food base including terrestrial organisms of
riparian origin, aquatic macroinvertebrates, and forage fish; and
(viii) Permanent water of sufficient quantity and quality such that
normal reproduction, growth, and survival are not inhibited.
(4) Exclusions from the critical habitat designation. Certain
geographic areas are excluded from the critical habitat designation as
described below in this paragraph (4).
(i) 3(5)(A) and Exclusions under section 4(b)(2) of the Act. (A)
Habitat conservation plans. We are excluding from the critical habitat
designation any non-Federal lands covered by an incidental take permit
for bull trout issued under section 10(a)(1)(B) of the Act on or before
September 26, 2005, as long as such permit, or a conservation easement
providing comparable conservation benefits, remains legally operative
on such lands. These excluded areas are covered by habitat conservation
plans (HCPs). They include lands and waters covered by the Washington
Department of Natural Resources HCP, the Plum Creek Native Fish HCP/
Stimson Lumber Company HCP, the Tacoma Water Green River HCP, the Green
Diamond Resources Company HCP, and the City of Seattle Cedar River
Watershed HCP.
(B) Tribal lands. The following tribal lands contain stream
segments or marine nearshore habitat areas that have been excluded from
designated critical habitat pursuant to section 4(b)(2) of the Act:
Tribal lands of the Blackfeet Nation, Swinomish Tribe, Quinault Indian
Nation, Muckleshoot Tribe, Jamestown S'Klallam Tribe, Hoh Tribe,
Skokomish, and Confederated Tribes of Warm Springs Reservation of
Oregon.
(C) Federal lands. The following Federal lands contain stream
segments or marine nearshore habitat areas that have been excluded from
designated critical habitat pursuant to section 4(a)(3) of the Act:
Lands within the Nisqually National Wildlife Refuge; the Washington
State Forest Practices Rules and Forest Practices Regulations for Bull
Trout; the Lewis Hydroelectric Project Conservation Easements; the
Snake River Basin Adjudication; the Northwest Forest Plan Aquatic
Conservation Strategy; the Interim Strategy for Managing Anadromous-
Fish-Producing Watersheds; the Federal Columbia River Power System; the
Clark Fork River from Missoula to Butte, MT; the Middle Fork of the
Boise River; the Interior Columbia Basin Ecosystem Management Project;
the Southeast Oregon Resource Management Plan; the Southwest Idaho Land
and Resource Management Plan; and waters impounded behind dams whose
primary purpose is for flood control or water supply for human
consumption (reservoirs and pools).
(ii) Non-Inclusions under section 4(a)(3) of the Act. (A) Military
lands. The following military lands contain stream segments or marine
nearshore habitat areas that have been excluded from designated
critical habitat pursuant to section 4(a)(3) of the Act: Bayview
Acoustic Research Detachment, Naval Surface Warfare Center, ID; Naval
Radio Station, Jim Creek, WA; Naval Station, Everett, WA; Naval Air
Station, Whidbey Island, WA; the Naval Under Sea Warfare Center
Division, Newport, WA (Dabob Bay and Crescent Harbor), Keyport
facilities and Fort Lewis, WA.
(B) [Reserved]
(5) The designated critical habitat units for bull trout are set
forth in the text and depicted on the maps below.
(6) An index map of designated critical habitat for the Klamath
River, Columbia River, Olympic Peninsula, Puget Sound, and Saint Mary-
Belly bull trout populations follows:
BILLING CODE 4310-55-P
[[Page 56267]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.000
[[Page 56268]]
(7) Unit 1: Klamath River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Boulder Creek.................. 42.517 N. 120.951 W. 42.495 N. 120.884 W.
Brownsworth Creek.............. 42.392 N. 120.913 W. 42.469 N. 120.854 W.
Coyote Creek................... 42.854 N. 121.158 W. 42.893 N. 121.246 W.
Deming Creek................... 42.448 N. 120.953 W. 42.486 N. 120.885 W.
Dixon Creek.................... 42.518 N. 120.937 W. 42.532 N. 120.923 W.
Leonard Creek.................. 42.413 N. 120.867 W. 42.465 N. 120.864 W.
Long Creek..................... 42.826 N. 121.209 W. 42.933 N. 121.338 W.
North Fork Sprague River....... 42.497 N. 121.008 W. 42.557 N. 120.839 W.
Sheepy Creek................... 42.534 N. 120.931 W. 42.514 N. 120.890 W.
Sun Creek...................... 42.735 N. 122.008 W. 42.898 N. 122.096 W.
Sycan Marsh.................... Located at 42.816 N. 121.124 W.
Threemile Creek................ 42.642 N. 122.065 W. 42.640 N. 122.138 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 1, Klamath River Basin, follows:
[[Page 56269]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.001
BILLING CODE 4310-55-C
[[Page 56270]]
(8) Unit 2: Clark Fork River Basin.
(ii) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Akokala Cr..................... 48.881 N. 114.198 W. 48.892 N. 114.191 W.
Akokala Lake................... Located at 48.879 N. 114.198 W.
Arrow Lake..................... Located at 48.706 N. 113.884 W.
Barker Cr...................... 46.163 N. 113.115 W. 46.100 N. 113.115 W.
Bear Creek..................... 48.234 N. 113.566 W. 48.296 N. 113.384 W.
Beaver Cr...................... 46.472 N. 113.493 W. 46.468 N. 113.555 W.
Belmont Cr..................... 46.954 N. 113.569 W. 47.061 N. 113.681 W.
Big Cr......................... 47.378 N. 115.384 W. 47.364 N. 115.444 W.
Big Cr, M Fk................... 47.364 N. 115.444 W. 47.312 N. 115.492 W.
Big Cr, W Fk................... 47.364 N. 115.444 W. 47.350 N. 115.544 W.
Bitterroot River............... 46.861 N. 114.118 W. 45.944 N. 114.128 W.
Blackfoot River................ 46.870 N. 113.889 W. 47.011 N. 112.476 W.
Blodgett Cr.................... 46.312 N. 114.145 W. 46.248 N. 114.453 W.
Boulder Cr..................... 46.478 N. 113.237 W. 46.343 N. 113.076 W.
Bowman Cr...................... 48.906 N. 114.117 W. 48.974 N. 114.063 W.
Bowman Lake.................... Located at 48.870 N. 114.157 W.
Brewster Cr.................... 46.612 N. 113.653 W. 46.582 N. 113.587 W.
Bull River..................... 48.036 N. 115.844 W. 48.109 N. 115.782 W.
Burnt Fork Creek............... 46.542 N. 114.099 W. 46.304 N. 113.837 W.
Cable Cr....................... 46.172 N. 113.180 W. 46.196 N. 113.213 W.
Cache Cr....................... 46.814 N. 114.639 W. 46.726 N. 114.758 W.
Camas Cr....................... 48.690 N. 113.901 W. 48.738 N. 113.883 W.
Cedar Cr....................... 47.178 N. 114.862 W. 47.049 N. 115.043 W.
Cedar Creek.................... 48.880 N. 116.959 W. 48.909 N. 116.885 W.
Cerulean Lake.................. Located at 48.872 N. 114.057 W.
Chicken Cr..................... 45.601 N. 114.313 W. 45.621 N. 114.403 W.
Clark Fork River............... 47.366 N. 114.776 W. 46.870 N. 113.889 W.
Clearwater Lake................ Located at 47.385 N. 113.558 W.
Clearwater R, W Fk............. 47.256 N. 113.550 W. 47.287 N. 113.744 W.
Clearwater River............... 47.107 N. 113.427 W. 47.390 N. 113.561 W.
Coal Cr........................ 48.690 N. 114.193 W. 48.698 N. 114.494 W.
Coal Cr, S Fk.................. 48.680 N. 114.345 W. 48.674 N. 114.471 W.
Cold Cr........................ 47.584 N. 113.756 W. 47.562 N. 113.810 W.
Copper Cr...................... 47.007 N. 112.555 W. 47.060 N. 112.752 W.
Cottonwood Cr.................. 47.025 N. 113.281 W. 47.161 N. 113.345 W.
Cyclone Cr..................... 48.665 N. 114.238 W. 48.712 N. 114.391 W.
Cyclone Lake................... Located at 48.706 N. 114.297 W.
Deer Cr........................ 45.595 N. 114.321 W. 45.570 N. 114.509 W.
Deer Cr........................ 47.208 N. 113.529 W. 47.249 N. 113.688 W.
Deer Cr........................ 47.377 N. 115.359 W. 47.326 N. 115.389 W.
Doctor Lake.................... Located at 47.404 N. 113.480 W.
Dry Cr......................... 47.305 N. 114.064 W. 47.259 N. 113.903 W.
Dunham Cr...................... 47.103 N. 113.155 W. 47.238 N. 113.316 W.
East Fork Bitterroot River..... 45.944 N. 114.128 W. 45.911 N. 113.595 W.
East River..................... 48.353 N. 116.852 W. 48.371 N. 116.819 W.
Elk Cr......................... 47.544 N. 113.741 W. 47.480 N. 113.856 W.
Finley Cr...................... 47.125 N. 113.560 W. 47.120 N. 113.649 W.
Fish Cr........................ 47.004 N. 114.699 W. 46.927 N. 114.696 W.
Fish Cr, S Fk.................. 46.927 N. 114.696 W. 46.753 N. 114.571 W.
Fish Cr, W Fk.................. 46.927 N. 114.696 W. 46.812 N. 114.890 W.
Fishtrap Cr.................... 47.713 N. 115.058 W. 47.817 N. 115.144 W.
Fitzsimmons Cr................. 48.735 N. 114.733 W. 48.752 N. 114.618 W.
Flathead River................. 48.061 N. 114.127 W. 48.468 N. 114.069 W.
Flint Cr....................... 46.654 N. 113.145 W. 46.478 N. 113.237 W.
Foster Cr...................... 46.164 N. 113.120 W. 46.283 N. 113.109 W.
Fred Burr Creek................ 46.365 N. 114.131 W. 46.357 N. 114.315 W.
Gilbert Cr..................... 46.682 N. 113.666 W. 46.648 N. 113.818 W.
Goat Cr........................ 47.749 N. 113.828 W. 47.773 N. 113.694 W.
Gold Creek..................... 47.971 N. 116.454 W. 47.954 N. 116.451 W.
Granite Creek.................. 48.087 N. 116.427 W. 48.060 N. 116.329 W.
Granite Creek.................. 48.639 N. 116.863 W. 48.700 N. 117.029 W.
Graves Cr...................... 47.682 N. 115.409 W. 47.718 N. 115.380 W.
Grouse Creek................... 48.403 N. 116.477 W. 48.483 N. 116.228 W.
Harrison Cr.................... 48.529 N. 113.750 W. 48.574 N. 113.701 W.
Harrison Lake.................. Located at 48.516 N. 113.771 W.
Harvey Cr...................... 46.707 N. 113.372 W. 46.581 N. 113.573 W.
Hughes Cr...................... 45.621 N. 114.303 W. 45.667 N. 114.021 W.
[[Page 56271]]
Hughes Fork.................... 48.805 N. 116.923 W. 48.946 N. 117.023 W.
Indian Creek................... 48.610 N. 116.836 W. 48.634 N. 116.789 W.
Jim Cr......................... 47.648 N. 113.792 W. 47.575 N. 113.856 W.
Jocko R........................ 47.322 N. 114.304 W. 47.201 N. 113.924 W.
Jocko R, M Fk.................. 47.201 N. 113.924 W. 47.203 N. 113.761 W.
Jocko R, N Fk.................. 47.201 N. 113.924 W. 47.226 N. 113.816 W.
Jocko R, S Fk.................. 47.195 N. 113.852 W. 47.104 N. 113.766 W.
Johnson Cr..................... 48.139 N. 116.229 W. 48.131 N. 116.225 W.
Kalispell Creek................ 48.567 N. 116.921 W. 48.626 N. 117.134 W.
Kintla Cr...................... 48.975 N. 114.250 W. 48.986 N. 114.063 W.
Kintla Lake.................... Located at 48.966 N. 114.297 W.
Lake Alva...................... Located at 47.314 N. 113.582 W.
Lake Inez...................... Located at 47.270 N. 113.566 W.
Lake Isabel.................... Located at 48.422 N. 113.493 W.
Lake McDonald.................. Located at 48.576 N. 113.932 W.
Landers Fk..................... 46.965 N. 112.562 W. 47.099 N. 112.566 W.
Lightning Creek................ 48.140 N. 116.191 W. 48.353 N. 116.175 W.
Lincoln Cr..................... 48.592 N. 113.766 W. 48.595 N. 113.758 W.
Lincoln Lake................... Located at 48.591 N. 113.770 W.
Lindbergh Lake................. Located at 47.359 N. 113.731 W.
Lion Cr........................ 47.681 N. 113.815 W. 47.670 N. 113.710 W.
Lion Creek..................... 48.736 N. 116.831 W. 48.725 N. 116.672 W.
Little Blackfoot R............. 46.515 N. 112.797 W. 46.341 N. 112.465 W.
Little Joe Cr.................. 47.297 N. 115.120 W. 47.270 N. 115.140 W.
Logging Cr..................... 48.784 N. 114.002 W. 48.776 N. 114.019 W.
Logging Lake................... Located at 48.756 N. 114.077 W.
Lost Cr, S Fk.................. 47.873 N. 113.824 W. 47.869 N. 113.736 W.
Lower Quartz Lake.............. Located at 48.810 N. 114.170 W.
McDonald Cr.................... 48.632 N. 113.868 W. 48.646 N. 113.847 W.
McDonald Lake.................. Located at 47.421 N. 113.976 W.
Meadow Cr...................... 46.157 N. 113.439 W. 46.092 N. 113.443 W.
Middle Fork East River......... 48.371 N. 116.819 W. 48.362 N. 116.659 W.
Middle Fork Flathead River..... 48.468 N. 114.069 W. 47.996 N. 113.057 W.
Middle Quartz Lake............. Located at 48.822 N. 114.141 W.
Mill Creek..................... 46.348 N. 114.152 W. 46.312 N. 114.286 W.
Mission Cr..................... 47.354 N. 114.285 W. 47.320 N. 113.988 W.
Mission Reservoir.............. Located at 47.321 N. 114.005 W.
Monture Cr..................... 47.020 N. 113.235 W. 47.301 N. 113.249 W.
Moose Meadow Cr................ 46.139 N. 113.591 W. 46.078 N. 113.635 W.
Morrell Cr..................... 47.141 N. 113.460 W. 47.342 N. 113.471 W.
North Fork Blackfoot River..... 46.985 N. 113.129 W. 47.197 N. 112.886 W.
North Fork Flathead River...... 48.468 N. 114.069 W. 49.000 N. 114.474 W.
North Fork Grouse Creek........ 48.452 N. 116.373 W. 48.502 N. 116.265 W.
North Fork Indian Creek........ 48.634 N. 116.789 W. 48.627 N. 116.691 W.
North Gold Creek............... 47.974 N. 116.452 W. 47.975 N. 116.426 W.
Nyack Creek.................... 48.458 N. 113.804 W. 48.489 N. 113.700 W.
Ole Cr......................... 48.283 N. 113.598 W. 48.315 N. 113.463 W.
Overwhich Cr................... 45.675 N. 114.307 W. 45.717 N. 114.080 W.
Owl Cr......................... 47.115 N. 113.441 W. 47.115 N. 113.502 W.
Pack River..................... 48.320 N. 116.382 W. 48.613 N. 116.634 W.
Park Cr........................ 48.310 N. 113.613 W. 48.369 N. 113.490 W.
Park Cr........................ 48.422 N. 113.496 W. 48.421 N. 113.505 W.
Petty Cr....................... 46.992 N. 114.446 W. 46.850 N. 114.438 W.
Piper Cr....................... 47.675 N. 113.815 W. 47.637 N. 113.844 W.
Placid Cr...................... 47.116 N. 113.541 W. 47.187 N. 113.692 W.
Placid Lake.................... Located at 47.119 N. 113.522 W.
Post Creek..................... 47.360 N. 114.168 W. 47.410 N. 113.935 W.
Priest Lake.................... Located at 48.481 N. 116.875 W.
Priest River................... 48.178 N. 116.892 W. 48.353 N. 116.852 W.
Prospect Cr.................... 47.592 N. 115.358 W. 47.569 N. 115.676 W.
Quartz Cr...................... 48.815 N. 114.165 W. 48.839 N. 114.003 W.
Quartz Lake.................... Located at 48.826 N. 114.100 W.
Racetrack Cr................... 46.285 N. 112.729 W. 46.279 N. 112.949 W.
Rainbow Cr..................... 48.855 N. 114.053 W. 48.869 N. 114.052 W.
Rainy Lake..................... Located at 47.340 N. 113.593 W.
Ranch Cr....................... 46.583 N. 113.678 W. 46.468 N. 113.577 W.
Rattlesnake Cr................. 46.867 N. 113.985 W. 47.098 N. 113.909 W.
Red Meadow Cr.................. 48.805 N. 114.324 W. 48.753 N. 114.565 W.
Rock Cr, E Fk.................. 46.200 N. 113.499 W. 46.021 N. 113.319 W.
Rock Cr, M Fk.................. 46.223 N. 113.521 W. 45.949 N. 113.523 W.
Rock Cr, Ross Fk............... 46.224 N. 113.525 W. 46.034 N. 113.779 W.
[[Page 56272]]
Rock Cr, W Fk.................. 46.223 N. 113.521 W. 46.144 N. 113.721 W.
Rock Creek..................... 46.725 N. 113.682 W. 46.223 N. 113.521 W.
Rock Creek..................... 47.975 N. 115.742 W. 48.040 N. 115.676 W.
Saint Mary's Lake.............. Located at 47.261 N. 113.919 W.
Salmon Lake.................... Located at 47.099 N. 113.406 W.
Seeley Lake.................... Located at 47.187 N. 113.505 W.
Skalkaho Cr.................... 46.220 N. 114.162 W. 46.057 N. 113.807 W.
Sleeping Child Cr.............. 46.162 N. 114.159 W. 46.033 N. 113.814 W.
Soldier Creek.................. 48.503 N. 116.838 W. 48.547 N. 116.698 W.
Soup Cr........................ 47.837 N. 113.843 W. 47.812 N. 113.751 W.
South Boulder Cr............... 46.441 N. 113.214 W. 46.330 N. 113.219 W.
South Fork Bull River.......... 48.109 N. 115.782 W. 48.152 N. 115.784 W.
South Fork Granite Creek....... 48.700 N. 117.029 W. 48.761 N. 117.147 W.
South Fork Indian Creek........ 48.634 N. 116.789 W. 48.624 N. 116.716 W.
South Fork Lion Creek.......... 48.743 N. 116.797 W. 48.716 N. 116.718 W.
Squeezer Cr.................... 47.750 N. 113.815 W. 47.717 N. 113.727 W.
St Regis R..................... 47.297 N. 115.089 W. 47.427 N. 115.741 W.
Stillwater R................... 48.604 N. 114.655 W. 48.789 N. 114.685 W.
Stony Cr....................... 46.348 N. 113.603 W. 46.283 N. 113.771 W.
Storm Lake Cr.................. 46.169 N. 113.153 W. 46.075 N. 113.267 W.
Sullivan Springs............... 48.088 N. 116.411 W. 48.084 N. 116.387 W.
Swan Lake...................... Located at 47.968 N. 113.910 W.
Swan River..................... 47.928 N. 113.880 W. 47.295 N. 113.782 W.
Swift Cr....................... 48.481 N. 114.424 W. 48.654 N. 114.550 W.
Swift Cr, E Fk................. 48.687 N. 114.582 W. 48.756 N. 114.583 W.
Swift Cr, W Fk................. 48.654 N. 114.550 W. 48.723 N. 114.667 W.
Tarlac Creek................... 48.393 N. 116.737 W. 48.349 N. 116.717 W.
The Thorofare.................. 48.740 N. 116.842 W. 48.766 N. 116.864 W.
Thompson R..................... 47.576 N. 115.240 W. 47.713 N. 115.058 W.
Trail Creek.................... 48.924 N. 114.386 W. 48.934 N. 114.534 W.
Trapper Creek.................. 48.796 N. 116.896 W. 48.877 N. 116.846 W.
Trestle Creek.................. 48.283 N. 116.352 W. 48.352 N. 116.234 W.
Trout Cr....................... 47.143 N. 114.829 W. 47.004 N. 114.992 W.
Trout Lake..................... Located at 48.677 N. 113.912 W.
Twelvemile Cr.................. 47.350 N. 115.291 W. 47.465 N. 115.324 W.
Twin Creek..................... 48.094 N. 116.129 W. 48.063 N. 116.151 W.
Twin Lakes Cr.................. 46.169 N. 113.152 W. 46.056 N. 113.226 W.
Two Mouth Creek................ 48.688 N. 116.836 W. 48.674 N. 116.676 W.
Uleda Creek.................... 48.388 N. 116.707 W. 48.339 N. 116.694 W.
Upper Kintla Lake.............. Located at 48.974 N. 114.173 W.
Upper Priest River............. 48.799 N. 116.911 W. 49.000 N. 116.936 W.
Upper Stillwater Lake.......... Located at 48.587 N. 114.636 W.
Upper Whitefish Lake........... Located at 48.687 N. 114.578 W.
Upper Willow Cr................ 46.331 N. 113.542 W. 46.566 N. 113.522 W.
Vermilion R.................... 47.833 N. 115.535 W. 47.869 N. 115.409 W.
Wahlquist Cr................... 46.501 N. 113.776 W. 46.531 N. 113.843 W.
Warm Springs Cr................ 45.860 N. 114.025 W. 45.726 N. 114.057 W.
Warm Springs Cr................ 46.210 N. 112.767 W. 46.261 N. 113.137 W.
West Fork Bitterroot River..... 45.944 N. 114.128 W. 45.461 N. 114.341 W.
West Gold Creek................ 47.954 N. 116.451 W. 47.944 N. 116.477 W.
Whale Cr....................... 48.849 N. 114.352 W. 48.851 N. 114.593 W.
Whitefish Lake................. Located at 48.455 N. 114.387 W.
Woodward Cr.................... 47.777 N. 113.845 W. 47.767 N. 113.879 W.
Woodward Cr, S Fk.............. 47.754 N. 113.857 W. 47.717 N. 113.857 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 2, Clark Fork River Basin, follows:
BILLING CODE 4310-55-P
[[Page 56273]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.002
[[Page 56274]]
(9) Unit 3: Kootenai River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Bull Lake...................... Located at 48.218 N. 115.853 W.
Callahan Cr.................... 48.435 N. 116.012 W. 48.458 N. 115.881 W.
Fisher R....................... 48.366 N. 115.323 W. 48.070 N. 115.374 W.
Grave Cr....................... 48.798 N. 114.952 W. 48.927 N. 114.750 W.
Keeler Cr...................... 48.360 N. 115.851 W. 48.331 N. 116.006 W.
Lake Creek..................... 48.360 N. 115.851 W. 48.283 N. 115.858 W.
Libby Creek.................... 48.393 N. 115.537 W. 48.112 N. 115.552 W.
O'Brien Cr..................... 48.448 N. 115.866 W. 48.557 N. 115.862 W.
Phillips Cr.................... 48.971 N. 115.104 W. 49.000 N. 115.062 W.
Pipe Cr........................ 48.424 N. 115.606 W. 48.674 N. 115.647 W.
Poorman Creek.................. 48.149 N. 115.526 W. 48.123 N. 115.631 W.
Quartz Cr...................... 48.438 N. 115.638 W. 48.573 N. 115.689 W.
Sophie Lake.................... Located at 48.962 N. 115.116 W.
Tobacco R...................... 48.897 N. 115.126 W. 48.798 N. 114.952 W.
West Fisher Creek.............. 48.070 N. 115.374 W. 48.050 N. 115.594 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 3, Kootenai River Basin, follows:
[[Page 56275]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.003
[[Page 56276]]
(10) Unit 4: Willamette River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Blue River..................... 44.153 N. 122.342 W. 44.172 N. 122.328 W.
Horse Creek.................... 44.170 N. 122.174 W. 44.125 N. 122.036 W.
Lost Creek..................... 44.190 N. 122.066 W. 44.162 N. 122.022 W.
Mckenzie River................. 44.126 N. 123.106 W. 44.309 N. 122.028 W.
Middle Fork Willamette River... 44.023 N. 123.017 W. 43.481 N. 122.254 W.
South Fork Mckenzie River...... 44.159 N. 122.295 W. 43.953 N. 122.017 W.
Swift Creek.................... 43.502 N. 122.299 W. 43.560 N. 122.162 W.
West Fork Horse Creek.......... 44.172 N. 122.206 W. 44.170 N. 122.174 W.
Willamette River............... 44.126 N. 123.106 W. 44.023 N. 123.017 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 4, Willamette River Basin, follows:
[[Page 56277]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.004
[[Page 56278]]
(11) Unit 5: Hood River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
East Fork Hood River........... 45.605 N. 121.632 W. 45.575 N. 121.626 W.
Hood River..................... 45.721 N. 121.506 W. 45.605 N. 121.632 W.
Middle Fork Hood River......... 45.575 N. 121.626 W. 45.463 N. 121.645 W.
West Fork Hood River........... 45.605 N. 121.632 W. 45.456 N. 121.781 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 5, Hood River Basin, follows:
[[Page 56279]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.005
[[Page 56280]]
(12) Unit 6: Deschutes River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Abbot Creek.................... 44.570 N. 121.619 W. 44.544 N. 121.670 W.
Deschutes River................ 45.639 N. 120.914 W. 44.373 N. 121.291 W.
Heising Spring................. 44.494 N. 121.648 W. 44.491 N. 121.651 W.
Jack Creek..................... 44.493 N. 121.647 W. 44.472 N. 121.725 W.
Lake Billy Chinook............. Located at 44.584 N. 121.363 W.
Metolius River................. 44.577 N. 121.619 W. 44.434 N. 121.637 W.
Spring Creek................... 44.457 N. 121.642 W. 44.451 N. 121.650 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 6, Deschutes River Basin, follows:
[[Page 56281]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.006
[[Page 56282]]
(13) Unit 9: Umatilla-Walla Walla River Basins.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Griffin Fork................... 46.121 N. 117.973 W. 46.099 N. 117.913 W.
Lewis Creek.................... 46.191 N. 117.824 W. 46.156 N. 117.771 W.
Low Creek...................... 45.993 N. 118.035 W. 45.973 N. 118.009 W.
Meacham Creek.................. 45.702 N. 118.359 W. 45.527 N. 118.290 W.
Mill Creek..................... 46.039 N. 118.478 W. 46.011 N. 117.941 W.
North Fork Meacham Creek....... 45.527 N. 118.290 W. 45.575 N. 118.174 W.
North Fork Touchet River....... 46.302 N. 117.959 W. 46.093 N. 117.864 W.
North Fork Walla Walla River... 45.899 N. 118.307 W. 45.947 N. 117.990 W.
Paradise Creek................. 46.004 N. 118.017 W. 46.001 N. 117.990 W.
Ryan Creek..................... 45.723 N. 118.314 W. 45.694 N. 118.308 W.
South Fork Touchet River....... 46.302 N. 117.959 W. 46.105 N. 117.985 W.
South Fork Walla Walla River... 45.899 N. 118.307 W. 45.966 N. 117.963 W.
Spangler Creek................. 46.149 N. 117.806 W. 46.099 N. 117.802 W.
Touchet River.................. 46.272 N. 118.174 W. 46.302 N. 117.959 W.
Umatilla River................. 45.923 N. 119.356 W. 45.726 N. 118.187 W.
Walla Walla River.............. 46.039 N. 118.478 W. 45.899 N. 118.307 W.
Wolf Fork Touchet River........ 46.274 N. 117.895 W. 46.075 N. 117.903 W.
Yellowhawk Creek............... 46.017 N. 118.400 W. 46.077 N. 118.272 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 9, Umatilla-Walla Walla River Basins, follows:
[[Page 56283]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.007
[[Page 56284]]
(14) Unit 10: Grande Ronde River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Bear Creek..................... 45.584 N. 117.540 W. 45.323 N. 117.480 W.
Catherine Creek................ 45.408 N. 117.930 W. 45.120 N. 117.646 W.
Chicken Creek.................. 45.095 N. 118.394 W. 45.024 N. 118.385 W.
Deer Creek..................... 45.620 N. 117.699 W. 45.423 N. 117.587 W.
Fly Creek...................... 45.210 N. 118.394 W. 45.121 N. 118.465 W.
Grande Ronde River............. 46.080 N. 116.978 W. 44.967 N. 118.254 W.
Hurricane Creek................ 45.420 N. 117.301 W. 45.274 N. 117.310 W.
Indian Creek................... 45.534 N. 117.919 W. 45.337 N. 117.721 W.
Limber Jim Creek............... 45.089 N. 118.343 W. 45.085 N. 118.229 W.
Little Bear Creek.............. 45.485 N. 117.554 W. 45.428 N. 117.479 W.
Little Fly Creek............... 45.121 N. 118.465 W. 45.110 N. 118.475 W.
Little Lookingglass Creek...... 45.750 N. 117.874 W. 45.817 N. 117.901 W.
Little Minam River............. 45.401 N. 117.671 W. 45.246 N. 117.599 W.
Lookingglass Creek............. 45.707 N. 117.841 W. 45.779 N. 118.078 W.
Lookout Creek.................. 45.110 N. 118.475 W. 45.078 N. 118.540 W.
Lostine River.................. 45.552 N. 117.489 W. 45.246 N. 117.374 W.
Minam River.................... 45.621 N. 117.720 W. 45.148 N. 117.371 W.
Mottet Creek................... 45.767 N. 117.886 W. 45.788 N. 117.942 W.
North Fork Catherine Creek..... 45.120 N. 117.646 W. 45.225 N. 117.604 W.
Sheep Creek.................... 45.105 N. 118.381 W. 45.016 N. 118.507 W.
South Fork Catherine Creek..... 45.120 N. 117.646 W. 45.112 N. 117.513 W.
Wallowa River.................. 45.726 N. 117.784 W. 45.420 N. 117.301 W.
Wenaha River................... 45.946 N. 117.450 W. 45.951 N. 117.794 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 10, Grande Ronde River Basin, follows:
[[Page 56285]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.008
[[Page 56286]]
(15) Unit 11: Imnaha-Snake River Basins.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Big Sheep Creek................ 45.557 N. 116.834 W. 45.178 N. 117.119 W.
Imnaha River................... 45.817 N. 116.764 W. 45.113 N. 117.125 W.
Little Sheep Creek............. 45.520 N. 116.859 W. 45.232 N. 117.093 W.
McCully Creek.................. 45.311 N. 117.082 W. 45.211 N. 117.140 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 11, Imnaha-Snake River Basins, follows:
[[Page 56287]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.009
[[Page 56288]]
(16) Unit 12: Hells Canyon Complex.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Anthony Creek.................. 45.013 N. 118.059 W. 44.953 N. 118.220 W.
Big Muddy Creek................ 44.940 N. 117.945 W. 44.899 N. 118.131 W.
Clear Creek.................... 44.866 N. 117.029 W. 45.043 N. 117.143 W.
East Fork Pine Creek........... 45.022 N. 117.200 W. 45.072 N. 117.176 W.
East Pine Creek................ 44.872 N. 117.020 W. 45.046 N. 117.119 W.
Little Cracker Creek........... 44.826 N. 118.196 W. 44.840 N. 118.166 W.
Meadow Creek................... 44.990 N. 117.142 W. 45.017 N. 117.171 W.
North Pine Creek............... 44.910 N. 116.948 W. 45.079 N. 116.897 W.
North Powder River............. 45.039 N. 117.895 W. 44.878 N. 118.203 W.
Pine Creek..................... 44.849 N. 117.893 W. 44.826 N. 118.078 W.
Pine Creek..................... 44.974 N. 116.853 W. 45.039 N. 117.215 W.
Rock Creek..................... 44.918 N. 117.929 W. 44.856 N. 118.124 W.
Salmon Creek................... 44.888 N. 117.902 W. 44.767 N. 118.019 W.
Silver Creek................... 44.809 N. 118.207 W. 44.857 N. 118.291 W.
Wolf Creek..................... 45.044 N. 117.893 W. 45.068 N. 118.193 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 12, Hells Canyon Complex, follows:
[[Page 56289]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.010
[[Page 56290]]
(17) Unit 13: Malheur River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Big Creek...................... 44.145 N. 118.624 W. 44.292 N. 118.638 W.
Lake Creek..................... 44.145 N. 118.624 W. 44.283 N. 118.683 W.
Malheur River.................. 43.686 N. 118.270 W. 44.145 N. 118.624 W.
Summit Creek................... 44.099 N. 118.587 W. 44.261 N. 118.501 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 13, Malheur River Basin, follows:
[[Page 56291]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.011
[[Page 56292]]
(18) Unit 14: Coeur d'Alene Lake Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Beaver Creek................... 47.083 N. 115.355 W. 47.064 N. 115.480 W.
Coeur d'Alene Lake............. Located at 47.449 N. 116.798 W.
Coeur d'Alene River............ 47.460 N. 116.798 W. 47.558 N. 116.257 W.
Eagle Creek.................... 47.644 N. 115.921 W. 47.652 N. 115.903 W.
Fly Creek...................... 47.113 N. 115.385 W. 47.081 N. 115.489 W.
North Fork Coeur d'Alene River. 47.558 N. 116.257 W. 48.006 N. 116.321 W.
Prichard Creek................. 47.658 N. 115.976 W. 47.644 N. 115.921 W.
Ruby Creek..................... 46.983 N. 115.367 W. 46.961 N. 115.430 W.
St. Joe River.................. 47.393 N. 116.749 W. 47.017 N. 115.078 W.
Steamboat Creek................ 47.662 N. 116.154 W. 47.716 N. 116.199 W.
Timber Creek................... 47.018 N. 115.368 W. 46.992 N. 115.462 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 14, Coeur d'Alene Lake Basin, follows:
[[Page 56293]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.012
[[Page 56294]]
(19) Unit 19: Lower Columbia River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Clearwater Creek............... 46.276 N. 121.327 W. 46.278 N. 121.330 W.
Fish Lake Stream............... 46.275 N. 121.312 W. 46.342 N. 121.368 W.
Klickitat River................ 45.691 N. 121.293 W. 46.255 N. 121.239 W.
Lewis River (Lower)............ 45.850 N. 122.782 W. 45.957 N. 122.555 W.
Little Muddy Creek............. 46.275 N. 121.312 W. 46.278 N. 121.352 W.
Trappers Creek................. 46.275 N. 121.330 W. 46.290 N. 121.362 W.
Two Lakes Stream............... 46.342 N. 121.368 W. 46.340 N. 121.384 W.
UNNAMED--off Fish Lake Stream.. 46.331 N. 121.359 W. 46.323 N. 121.437 W.
West Fork Klickitat River...... 46.242 N. 121.246 W. 46.275 N. 121.312 W.
White Salmon River............. 45.723 N. 121.521 W. 45.897 N. 121.503 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 19, Lower Columbia River Basin, follows:
[[Page 56295]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.013
[[Page 56296]]
(20) Unit 20: Middle Columbia River Basin.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Ahtanum Creek.................. 46.529 N. 120.472 W. 46.523 N. 120.853 W.
Box Canyon Creek............... 47.361 N. 121.243 W. 47.377 N. 121.257 W.
Bumping River.................. 46.989 N. 121.094 W. 46.831 N. 121.377 W.
Cle Elum River................. 47.177 N. 120.990 W. 47.589 N. 121.161 W.
Cooper River................... 47.391 N. 121.098 W. 47.455 N. 121.213 W.
Gold Creek..................... 47.390 N. 121.382 W. 47.475 N. 121.316 W.
Jack Creek..................... 47.319 N. 120.855 W. 47.334 N. 120.742 W.
Jungle Creek................... 47.333 N. 120.855 W. 47.333 N. 120.923 W.
Kachess River.................. 47.251 N. 121.200 W. 47.429 N. 121.222 W.
Naches River................... 46.630 N. 120.514 W. 46.989 N. 121.094 W.
North Fork Ahtanum Creek....... 46.523 N. 120.853 W. 46.538 N. 121.211 W.
North Fork Teanaway River...... 47.251 N. 120.877 W. 47.454 N. 120.965 W.
North Fork Tieton River........ 46.635 N. 121.261 W. 46.508 N. 121.435 W.
Rattlesnake Creek.............. 46.820 N. 120.929 W. 46.760 N. 121.315 W.
South Fork Ahtanum Creek....... 46.523 N. 120.853 W. 46.454 N. 121.118 W.
Teanaway River................. 47.167 N. 120.834 W. 47.257 N. 120.897 W.
Tieton River................... 46.746 N. 120.786 W. 46.656 N. 121.129 W.
Yakima River................... 46.529 N. 120.472 W. 47.322 N. 121.339 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 20, Middle Columbia River Basin, follows:
[[Page 56297]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.014
[[Page 56298]]
(21) Unit 22: Northeast Washington River Basins.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
Latitude latitude center center
----------------------------------------------------------------------------------------------------------------
Calispell...................... 48.344 N 117.289 W 48.321 N 117.307 W.
Cedar Creek.................... 48.742 N. 117.411 W 48.846 N 117.521 W.
E. Fork Small Creek............ 48.328 N 117.354 W 48.371 N 117.398 W.
East Branch LeClerc Creek...... 48.534 N 117.282 W 48.673 N 117.188 W.
Fourth of July Creek........... 48.556 N 117.272 W 48.573 N 117.200 W.
Indian Creek................... 48.243 N 117.151 W 48.299 N 117.151 W.
LeClerc Creek.................. 48.518 N 117.283 W 48.534 N 117.282 W.
Mill Creek..................... 48.489 N 117.265 W 48.493 N 117.239 W.
Ruby Creek..................... 48.556 N 117.342 W 48.568 N 117.509 W.
S. Fork Tacoma Creek........... 48.394 N 117.323 W 48.432 N 117.506 W.
Slate Creek.................... 48.923 N 117.332 W 48.948 N 117.165 W.
Small Creek.................... 48.321 N 117.307 W 48.337 N 117.409 W.
Sullivan Creek................. 48.865 N 117.370 W 48.950 N 117.070 W.
Tacoma Creek................... 48.392 N 117.288 W 48.445 N 117.507 W.
West Branch LeClerc Creek...... 48.534 N 117.282 W 48.701 N 117.211 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 22, Northeast Washington River Basins, follows:
[[Page 56299]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.015
[[Page 56300]]
(22) Unit 23: Snake River Basin in Washington.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Asotin Creek................... 46.345 N 117.053 W 46.272 N 117.291 W.
Charley Creek.................. 46.289 N 117.278 W 46.210 N 117.552 W.
Cummings Creek................. 46.333 N 117.674 W 46.219 N 117.595 W.
George Creek................... 46.326 N 117.105 W 46.118 N 117.363 W.
Hixon Creek.................... 46.246 N 117.683 W 46.219 N 117.651 W.
N. Fork Asotin Creek........... 46.272 N 117.291 W 46.196 N 117.568 W.
Tucannon River................. 46.558 N 118.174 W 46.139 N 117.520 W
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 23, Snake River Basin in Washington, follows:
[[Page 56301]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.016
[[Page 56302]]
(23) Unit 25: Snake River.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Snake River.................... 46.189 N 119.030 W 44.243 N 117.041 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 25, Snake River, follows:
[[Page 56303]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.017
BILLING CODE 4310-55-C
[[Page 56304]]
(24) Unit 27: Olympic Peninsula.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Bell Creek..................... 48.083 N. 123.052 W. 48.057 N. 123.102 W.
Big Creek...................... 47.518 N. 123.773 W. 47.566 N. 123.680 W.
Boulder Creek.................. 47.982 N. 123.602 W. 47.979 N. 123.612 W.
Buckinghorse Creek............. 47.747 N. 123.481 W. 47.739 N. 123.484 W.
Canyon River................... 47.211 N. 123.551 W. 47.338 N. 123.498 W.
Cat Creek...................... 47.971 N. 123.593 W. 47.946 N. 123.642 W.
Cedar Creek.................... 47.712 N. 124.415 W. 47.717 N. 124.335 W.
Chehalis River................. 46.962 N. 123.823 W. 46.819 N. 123.252 W.
Clearwater River............... 47.546 N. 124.291 W. 47.730 N. 123.934 W.
Copalis River.................. 47.133 N. 124.180 W. 47.234 N. 124.020 W.
Cougar Creek................... 47.862 N. 123.859 W. 47.868 N. 123.853 W.
Delabarre Creek................ 47.735 N. 123.526 W. 47.726 N. 123.527 W.
Dungeness River................ 48.151 N. 123.133 W. 47.942 N. 123.091 W.
Elk Creek...................... 47.515 N. 123.330 W. 47.510 N. 123.344 W.
Elwha River.................... 48.151 N. 123.558 W. 47.771 N. 123.580 W.
Ennis Creek.................... 48.117 N. 123.404 W. 48.053 N. 123.410 W.
Godkin Creek................... 47.760 N. 123.464 W. 47.752 N. 123.451 W.
Goodman Creek.................. 47.825 N. 124.512 W. 47.835 N. 124.338 W.
Gray Wolf River................ 47.977 N. 123.111 W. 47.916 N. 123.242 W.
Grays Harbor Marine............ 46.927 N. 124.179 W. 46.906 N. 124.138 W.
Griff Creek.................... 48.013 N. 123.591 W. 48.023 N. 123.593 W.
Hayes River.................... 47.808 N. 123.453 W. 47.803 N. 123.428 W.
Hoh Creek...................... 47.877 N. 123.753 W. 47.883 N. 123.750 W.
Hoh River...................... 47.751 N. 124.437 W. 47.878 N. 123.688 W.
Hood Canal Marine.............. 47.685 N. 122.800 W. 47.434 N. 122.841 W.
Hughes Creek................... 48.025 N. 123.594 W. 48.026 N. 123.598 W.
Humptulips River............... 47.045 N. 124.048 W. 47.247 N. 123.888 W.
Hurd Creek..................... 48.124 N. 123.142 W. 48.118 N. 123.142 W.
Ignar Creek.................... 47.639 N. 123.432 W. 47.637 N. 123.429 W.
Irely Creek.................... 47.565 N. 123.678 W. 47.567 N. 123.672 W.
Irely Lake..................... Located at 47.565 N. 123.672 W.
Joe Creek...................... 47.206 N. 124.202 W. 47.217 N. 124.153 W.
Kalaloch Creek................. 47.607 N. 124.374 W. 47.637 N. 124.360 W.
Little River................... 48.063 N. 123.576 W. 48.033 N. 123.456 W.
Matheny Creek.................. 47.576 N. 124.113 W. 47.543 N. 123.835 W.
Moclips River.................. 47.248 N. 124.219 W. 47.260 N. 124.122 W.
Morse Creek.................... 48.118 N. 123.350 W. 48.064 N. 123.346 W.
Mosquito Creek................. 47.799 N. 124.481 W. 47.787 N. 124.382 W.
Mount Tom Creek................ 47.868 N. 123.887 W. 47.819 N. 123.820 W.
Nolan Creek.................... 47.752 N. 124.343 W. 47.743 N. 124.201 W.
North Fork Quinault River...... 47.540 N. 123.666 W. 47.654 N. 123.646 W.
North Fork Skokomish River 47.315 N. 123.238 W. 47.398 N. 123.200 W.
(Lower).
North Fork Skokomish River 47.419 N. 123.224 W. 47.539 N. 123.380 W.
(Upper).
OGS Creek...................... 47.878 N. 123.770 W. 47.879 N. 123.767 W.
O'Neil Creek................... 47.616 N. 123.470 W. 47.610 N. 123.463 W.
Owl Creek...................... 47.805 N. 124.078 W. 47.780 N. 124.037 W.
Pacific Coast Marine........... 48.003 N. 124.678 W. 46.927 N. 124.179 W.
Prescott Creek................. 47.903 N. 123.490 W. 47.904 N. 123.486 W.
Pyrites Creek.................. 47.639 N. 123.432 W. 47.644 N. 123.435 W.
Queets River................... 47.544 N. 124.354 W. 47.758 N. 123.657 W.
Quinault Lake.................. Located at 47.471 N. 123.871 W.
Quinault River................. 47.349 N. 124.299 W. 47.687 N. 123.371 W.
Richert Spring................. 47.320 N. 123.218 W. 47.320 N. 123.224 W.
Rustler Creek.................. 47.617 N. 123.615 W. 47.629 N. 123.568 W.
Salmon River................... 47.557 N. 124.219 W. 47.524 N. 124.040 W.
Sams River..................... 47.625 N. 124.012 W. 47.604 N. 123.851 W.
Satsop River................... 46.979 N. 123.480 W. 47.035 N. 123.524 W.
Skokomish River................ 47.335 N. 123.116 W. 47.315 N. 123.238 W.
Slate Creek.................... 47.521 N. 123.335 W. 47.529 N. 123.319 W.
Slough off of Elwha............ 48.145 N. 123.567 W. 48.138 N. 123.558 W.
South Fork Hoh River........... 47.820 N. 124.022 W. 47.764 N. 123.785 W.
South Fork Skokomish River..... 47.315 N. 123.238 W. 47.488 N. 123.454 W.
Steamboat Creek................ 47.679 N. 124.403 W. 47.688 N. 124.349 W.
Strait of Juan de Fuca Marine.. 48.103 N. 122.884 W. 48.217 N. 124.100 W.
Tshletshy Creek................ 47.666 N. 123.923 W. 47.606 N. 123.739 W.
West Fork Satsop River......... 47.035 N. 123.524 W. 47.360 N. 123.565 W.
Winfield Creek................. 47.810 N. 124.231 W. 47.783 N. 124.142 W.
[[Page 56305]]
Wishkah River.................. 46.973 N. 123.806 W. 47.261 N. 123.713 W.
Wynoochee River................ 46.962 N. 123.606 W. 47.385 N. 123.604 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 27, Olympic Peninsula, follows:
BILLING CODE 4310-55-P
[[Page 56306]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.018
BILLING CODE 4310-55-C
[[Page 56307]]
(25) Unit 28: Puget Sound.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Alma Creek..................... 48.600 N. 121.361 W. 48.590 N. 121.355 W.
Bacon Creek.................... 48.586 N. 121.394 W. 48.681 N. 121.462 W.
Baker River.................... 48.534 N. 121.735 W. 48.821 N. 121.427 W.
Bald Eagle Creek............... 48.800 N. 121.464 W. 48.797 N. 121.448 W.
Bear Creek..................... 48.965 N. 121.387 W. 48.966 N. 121.382 W.
Bear Lake Outlet (stream 48.607 N. 121.911 W. 48.610 N. 121.911 W.
catalog 0317).
Big Beaver Creek............... 48.773 N. 121.045 W. 48.842 N. 121.210 W.
Boulder River.................. 48.282 N. 121.786 W. 48.245 N. 121.827 W.
Brush Creek.................... 48.913 N. 121.423 W. 48.909 N. 121.422 W.
Canyon Creek................... 48.098 N. 121.969 W. 48.158 N. 121.816 W.
Canyon Creek (Canyon Lake 48.832 N. 122.143 W. 48.840 N. 122.110 W.
Creek).
Carbon River................... 47.130 N. 122.232 W. 46.964 N. 121.794 W.
Cascade River.................. 48.524 N. 121.429 W. 48.463 N. 121.163 W.
Chenuis Creek.................. 46.992 N. 121.842 W. 46.993 N. 121.841 W.
Chilliwack River............... 49.000 N. 121.410 W. 48.878 N. 121.486 W.
Clearwater River............... 47.146 N. 121.833 W. 47.079 N. 121.781 W.
Corkindale Creek............... 48.505 N. 121.485 W. 48.518 N. 121.482 W.
Crystal Creek.................. 46.929 N. 121.537 W. 46.920 N. 121.525 W.
Crystal Creek.................. 48.787 N. 121.501 W. 48.791 N. 121.509 W.
Dan Creek...................... 48.298 N. 121.550 W. 48.265 N. 121.539 W.
Deer Creek..................... 48.268 N. 121.931 W. 48.365 N. 121.793 W.
Deer Creek..................... 48.715 N. 121.119 W. 48.721 N. 121.104 W.
Depot Creek.................... 48.997 N. 121.323 W. 48.986 N. 121.292 W.
Devils Creek................... 48.825 N. 121.042 W. 48.819 N. 121.001 W.
Diobsud Creek.................. 48.559 N. 121.411 W. 48.576 N. 121.432 W.
Duwamish River................. 47.586 N. 122.359 W. 47.474 N. 122.250 W.
East Duwamish Waterway......... 47.590 N. 122.343 W. 47.567 N. 122.346 W.
East Fork Bacon Creek.......... 48.661 N. 121.433 W. 48.713 N. 121.416 W.
Eastern Shoreline Guemes Island 48.529 N. 122.572 W. 48.589 N. 122.645 W.
Eastern Shoreline Puget Sound 48.511 N. 122.605 W. 49.000 N. 122.755 W.
(North).
Eastern Shoreline Puget Sound 47.102 N. 122.727 W. 48.426 N. 122.674 W.
(South).
Eastern Shoreline Whidbey 47.905 N. 122.387 W. 48.370 N. 122.665 W.
Island.
Eastern Shoreline Lummi Island. 48.641 N. 122.608 W. 48.717 N. 122.718 W.
Easy Creek..................... 48.889 N. 121.457 W. 48.882 N. 121.455 W.
Ebey Slough.................... 48.022 N. 122.147 W. 47.941 N. 122.169 W.
Finney Creek................... 48.524 N. 121.846 W. 48.465 N. 121.686 W.
Foss River..................... 47.653 N. 121.293 W. 47.705 N. 121.305 W.
Fryingpan Creek................ 46.891 N. 121.601 W. 46.869 N. 121.649 W.
Gedney Island.................. 00.000 N. 000.000 W. 48.013 N. 122.319 W.
Glacier Creek.................. 47.987 N. 121.392 W. 47.987 N. 121.367 W.
Goat Island.................... 00.000 N. 000.000 W. 48.363 N. 122.529 W.
Goodell Creek.................. 48.672 N. 121.264 W. 48.778 N. 121.351 W.
Green River.................... 47.474 N. 122.250 W. 47.299 N. 121.839 W.
Greenwater River............... 47.159 N. 121.659 W. 47.093 N. 121.457 W.
Hat Slough..................... 48.197 N. 122.361 W. 48.209 N. 122.322 W.
Hope Island.................... 00.000 N. 000.000 W. 48.399 N. 122.568 W.
Howard Creek................... 48.609 N. 121.965 W. 48.619 N. 121.965 W.
Huckleberry Creek.............. 47.079 N. 121.585 W. 46.989 N. 121.622 W.
Hutchinson Creek............... 48.707 N. 122.178 W. 48.733 N. 122.102 W.
Ika Island..................... 00.000 N. 000.000 W. 48.363 N. 122.501 W.
Illabot Creek.................. 48.496 N. 121.530 W. 48.389 N. 121.318 W.
Indian Creek................... 48.947 N. 121.397 W. 48.935 N. 121.394 W.
Ipsut Creek.................... 46.980 N. 121.832 W. 46.971 N. 121.831 W.
Jim Creek...................... 48.185 N. 122.076 W. 48.216 N. 121.939 W.
Jones Creek.................... 48.524 N. 122.052 W. 48.542 N. 122.050 W.
Kendall Creek.................. 48.887 N. 122.148 W. 48.922 N. 122.144 W.
Klickitat Creek................ 46.909 N. 121.548 W. 46.903 N. 121.546 W.
Lake Union..................... Located at 47.651 N. 122.355 W.
Lake Washington................ Located at 47.520 N. 122.236 W.
Lightning Creek................ 48.871 N. 121.027 W. 49.000 N. 120.978 W.
Little Beaver Creek............ 48.912 N. 121.064 W. 48.878 N. 121.322 W.
Little Chilliwack River........ 48.993 N. 121.407 W. 48.962 N. 121.477 W.
Lodi Creek..................... 46.960 N. 121.705 W. 46.940 N. 121.687 W.
Maple Creek.................... 48.912 N. 122.078 W. 48.927 N. 122.076 W.
Marble Creek................... 48.531 N. 121.281 W. 48.542 N. 121.251 W.
Middle Fork Nooksack River..... 48.834 N. 122.154 W. 48.725 N. 121.898 W.
Mowich River................... 46.901 N. 122.030 W. 46.915 N. 121.894 W.
[[Page 56308]]
Newhalem Creek................. 48.671 N. 121.254 W. 48.663 N. 121.251 W.
Nisqually River................ 47.101 N. 122.691 W. 46.835 N. 122.323 W.
Nookachamps Creek.............. 48.471 N. 122.296 W. 48.346 N. 122.202 W.
Nooksack River................. 48.771 N. 122.598 W. 48.834 N. 122.154 W.
North Fork Skagit River........ 48.364 N. 122.472 W. 48.387 N. 122.366 W.
North Fork Stillaguamish River. 48.204 N. 122.126 W. 48.328 N. 121.639 W.
Panther Creek.................. 48.708 N. 120.975 W. 48.631 N. 120.977 W.
Pass Creek..................... 48.815 N. 121.462 W. 48.811 N. 121.457 W.
Peat Bog Creek (st. catalog 48.790 N. 122.121 W. 48.780 N. 122.116 W.
0352).
Pierce Creek................... 48.774 N. 121.060 W. 48.766 N. 121.072 W.
Pilchuck River................. 47.904 N. 122.090 W. 47.995 N. 121.745 W.
Portage Island................. 00.000 N. 000.000 W. 48.701 N. 122.618 W.
Puyallup River................. 47.269 N. 122.425 W. 46.864 N. 121.949 W.
Ranger Creek................... 46.995 N. 121.853 W. 46.984 N. 121.854 W.
Rocky Creek.................... 48.501 N. 121.494 W. 48.510 N. 121.501 W.
Roland Creek................... 48.762 N. 121.027 W. 48.770 N. 120.997 W.
Ruby Creek..................... 48.737 N. 121.046 W. 48.707 N. 120.916 W.
Samish River................... 48.555 N. 122.456 W. 48.649 N. 122.207 W.
Sauk River..................... 48.482 N. 121.604 W. 48.135 N. 121.422 W.
Silesia Creek.................. 48.999 N. 121.612 W. 48.911 N. 121.484 W.
Silver Creek................... 48.972 N. 121.092 W. 48.981 N. 121.188 W.
Skagit River................... 48.387 N. 122.366 W. 49.000 N. 121.078 W.
Skookum Creek.................. 48.671 N. 122.140 W. 48.686 N. 122.105 W.
Skykomish River................ 47.830 N. 122.045 W. 47.813 N. 121.578 W.
Smith Creek.................... 48.856 N. 122.299 W. 48.841 N. 122.261 W.
Snohomish River................ 48.020 N. 122.208 W. 47.830 N. 122.045 W.
Snoqualmie River............... 47.830 N. 122.045 W. 47.541 N. 121.836 W.
South Fork Nooksack River...... 48.809 N. 122.202 W. 48.675 N. 121.940 W.
South Fork Skagit River........ 48.292 N. 122.367 W. 48.387 N. 122.366 W.
South Fork Skykomish River..... 47.813 N. 121.578 W. 47.705 N. 121.305 W.
South Fork Stillaguamish River. 48.204 N. 122.126 W. 48.030 N. 121.482 W.
South Fork Tolt River.......... 47.696 N. 121.820 W. 47.693 N. 121.692 W.
South Mowich River............. 46.915 N. 121.894 W. 46.871 N. 121.845 W.
South Pass..................... 48.226 N. 122.385 W. 48.238 N. 122.377 W.
South Puyallup River........... 46.864 N. 121.949 W. 46.821 N. 121.846 W.
Southeastern Shoreline Vashon 47.331 N. 122.492 W. 47.349 N. 122.450 W.
Island.
Squire Creek................... 48.280 N. 121.684 W. 48.194 N. 121.637 W.
St. Andrews Creek.............. 46.837 N. 121.920 W. 46.833 N. 121.864 W.
Steamboat Slough............... 48.033 N. 122.203 W. 47.984 N. 122.168 W.
Stetattle Creek................ 48.717 N. 121.148 W. 48.727 N. 121.154 W.
Stillaguamish River............ 48.238 N. 122.377 W. 48.204 N. 122.126 W.
Suiattle River................. 48.330 N. 121.548 W. 48.162 N. 121.005 W.
Sulphide Creek................. 48.777 N. 121.532 W. 48.789 N. 121.551 W.
Tenas Creek.................... 48.324 N. 121.438 W. 48.335 N. 121.421 W.
Three Fools Creek.............. 48.891 N. 120.973 W. 48.897 N. 120.847 W.
Thunder Creek.................. 48.712 N. 121.105 W. 48.563 N. 121.026 W.
Tolt River..................... 47.641 N. 121.926 W. 47.696 N. 121.820 W.
Union Slough................... 48.034 N. 122.190 W. 47.984 N. 122.166 W.
unnamed tributary (st. catalog 46.992 N. 121.704 W. 46.992 N. 121.714 W.
0217).
unnamed tributary (st. catalog 46.962 N. 121.710 W. 46.960 N. 121.717 W.
0226).
unnamed tributary (st. catalog 46.965 N. 121.712 W. 46.959 N. 121.711 W.
0234).
unnamed tributary (st. catalog 46.905 N. 121.559 W. 46.909 N. 121.573 W.
0364).
West Fork Foss River........... 47.653 N. 121.293 W. 47.627 N. 121.310 W.
West Fork White River.......... 47.125 N. 121.618 W. 46.941 N. 121.707 W.
West Pass...................... 48.250 N. 122.396 W. 48.238 N. 122.377 W.
White River.................... 47.200 N. 122.257 W. 46.902 N. 121.636 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 28, Puget Sound, follows:
BILLING CODE 4310-55-P
[[Page 56309]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.019
[[Page 56310]]
(26) Unit 29: Saint Mary-Belly.
(i) Critical habitat is designated on the water bodies listed in
the following table:
----------------------------------------------------------------------------------------------------------------
Stream endpoint Stream endpoint
Name Stream endpoint Stream endpoint latitude or lake longitude or lake
latitude longitude center center
----------------------------------------------------------------------------------------------------------------
Boulder Creek.................. 48.839 N. 113.459 W. 48.732 N. 113.608 W.
Cracker Lake................... Located at 48.744 N. 113.643 W.
Divide Creek................... 48.751 N. 113.437 W. 48.634 N. 113.444 W.
Jule Creek..................... 48.988 N. 113.613 W. 48.954 N. 113.617 W.
Kennedy Creek.................. 48.905 N. 113.409 W. 48.851 N. 113.604 W.
Lee Creek...................... 48.998 N. 113.600 W. 48.960 N. 113.644 W.
North Fork Belly River......... 48.998 N. 113.754 W. 48.981 N. 113.770 W.
Otatso Creek................... 48.915 N. 113.464 W. 48.892 N. 113.644 W.
Red Eagle Lake................. Located at 48.651 N. 113.506 W.
Saint Mary Lake................ Located at 48.685 N. 113.525 W.
Saint Mary River............... 48.998 N. 113.326 W. 48.668 N. 113.615 W.
Slide Lakes--lower pool........ Located at 48.905 N. 113.615 W.
Slide Lakes--upper pool........ Located at 48.901 N. 113.625 W.
Swiftcurrent Creek............. 48.836 N. 113.428 W. 48.828 N. 113.521 W.
----------------------------------------------------------------------------------------------------------------
(ii) Map of Unit 29, Saint Mary-Belly, follows:
[[Page 56311]]
[GRAPHIC] [TIFF OMITTED] TR26SE05.020
Dated: September 15, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-18880 Filed 9-23-05; 8:45 am]
BILLING CODE 4310-55-C