KBC Home
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Klamath River and Columbia River Populations of Bull
Trout; Final Rule
[Federal Register: October 6, 2004 (Volume 69, Number 193)]
[Rules and Regulations]
[Page 59995-60076]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc04-25]
[[Page 59995]]
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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 and Plants; Designation of Critical
Habitat for the Klamath River and Columbia River Populations of Bull
Trout; Final Rule
[[Page 59996]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Klamath River and Columbia River Populations
of 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 and Columbia River populations
of bull trout (Salvelinus confluentus) pursuant to the Endangered
Species Act of 1973, as amended (Act). For the Klamath River and
Columbia River populations of bull trout, the critical habitat
designation includes approximately 1,748 miles (mi) (2,813 kilometers
(km)) of streams and 61,235 acres (ac) (24,781 hectares (ha)) of lakes
and marshes. We solicited data and comments from the public on all
aspects of the proposed rule, including data on economic and other
impacts of the designation.
DATES: This rule becomes effective November 5, 2004.
ADDRESSES: Comments and materials 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 NE., 11th Avenue, Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: John Young, Bull Trout Coordinator, at
the above address, (telephone 503/231-6194; facsimile 503/231-6243).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act (16 U.S.C. 1531 et seq.), we
have found that the designation of statutory critical habitat provides
little additional protection to most listed species, while consuming
significant amounts of available conservation resources. Our present
system for designating critical habitat has evolved since its original
statutory prescription into a process that provides little real
conservation benefit, is driven by litigation and the courts rather
than biology, limits our ability to fully evaluate the science
involved, consumes enormous agency resources, and imposes huge social
and economic costs. We believe 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.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to, and protection of, habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.''
We address the habitat needs of all 1,211 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, and
the section 10 incidental take permit process. We believe that it is
these measures that may make the difference between extinction and
survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
Gifford Pinchot Task Force v. United State Fish and Wildlife Service,
has invalidated the Service's regulation defining destruction or
adverse modification of critical habitat. We are currently reviewing
the decision to determine what effect it may have on the outcome of
consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat
designation, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected us 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 us with little
ability to prioritize our 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 to sue relative to critical habitat, and to comply
with the growing number of adverse court orders. As a result, our 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
us with almost no ability to provide for adequate 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, is very
expensive, and in the final analysis, provides little additional
protection to listed species.
The costs resulting from the 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 of 1969 (NEPA) None of these costs
result in any benefit to the species that is not already afforded by
the protections of the Act enumerated earlier, and they 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,
and into Canada, and in the Klamath River basin of south-central
Oregon, but the distribution of populations is scattered and patchy.
For additional information on the biology, habitat requirements,
threats, and range of the bull trout, please refer to the proposed
critical habitat rule (67 FR 71235, November 29, 2002) and final
listing rule (June 10, 1998, 63 FR 31647).
Historical records for the Klamath River basin suggest that bull
trout in this population segment were once widely distributed and
exhibited diverse life-history traits in this part of their range
(Ziller 1992). Currently, however, bull trout in this basin are almost
entirely nonmigratory, resident fish that are confined to headwater
streams (Goetz 1989). At time of listing, there were only
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seven naturally occurring, nonmigratory populations (Service 1997,
1998, 1999) occurring in the Upper Klamath Lake, Sprague River, and
Sycan Marsh watersheds in Oregon. Since then, two small resident and
one remnant fluvial population have been discovered. The extant
populations represent an estimated 21 percent of the estimated historic
range of bull trout in the Klamath River basin (Quigley and Arbelbide
1997). These known remaining local populations are considered to be
quite low in abundance; they are highly isolated from one another as a
result of natural and human-caused conditions and are at substantial
risk of extirpation due to natural disturbance cycles, random events,
and other risk factors (Light et al. 1996).
The Columbia River population segment includes bull trout residing
in portions of Oregon, Washington, Idaho, and Montana. Bull trout are
estimated to have once occupied about 60 percent of the Columbia River
basin; they presently are known or predicted to occur in less than half
(approximately 45 percent) of watersheds in the historical range
(Quigley and Arbelbide 1997), which amounts to approximately 27 percent
of the basin.
Previous Federal Action
On November 29, 2002, we published the court-ordered proposed
critical habitat designation for the bull trout Klamath River and
Columbia River populations (67 FR 71235). In that proposed rule, we
included a detailed summary of previous Federal actions completed prior
to publication of that proposal as it related to all bull trout
populations. The comment period was open until January 28, 2003. We now
provide updated information on the actions that we have completed since
the proposed critical habitat designation.
We reopened the comment period on the proposed rule from February
11, 2003, to May 12, 2003 (68 FR 6863). Subsequently, On April 5, 2004,
we published a notice in the Federal Register of the availability of
the draft economic analysis and reopening of the comment period for 30
days until May 5, 2004 (69 FR 17634).
Summary of Comments and Recommendations
In the proposed rule published on November 29, 2002 (67 FR 71235),
we requested that all interested parties submit written comments on the
proposal. We also contacted the appropriate Federal, State, and local
agencies, scientific organizations, and other interested parties and
invited them to comment on the proposed critical habitat for the
Klamath River and Columbia River populations of bull trout. In
addition, we held nine public hearings between January 7, 2003, and
January 22, 2003, in the following locations: Wenatchee and Spokane,
Washington; Polson, Montana; Salmon, Boise, and Lewiston, Idaho; and
Eugene, Pendleton, and Klamath Falls, Oregon.
We received a total of 549 written and oral comments during the
three comment periods on the proposal published on November 29, 2002
(67 FR 71235), and the draft economic analysis. Of this total number of
comments, 137 supported critical habitat, 315 either did not support
critical habitat or provided critical comments regarding some portion
of the designation, and 97 were neutral in their comments.
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited opinions from four individuals who have
expertise with the species and the geographic region where the species
occurs and are familiar with conservation biology principles. We also
contacted and requested assistance in organizing peer review from the
following three organizations: American Fisheries Society, Sustainable
Ecosystems Institute, and Plum Creek Timber Company. While all three
organizations expressed some interest in participating, only the
American Fisheries Society provided assistance in organizing our peer
review. All four of the peer reviewers generally supported the
proposal, but also provided us with many constructive critical comments
which we incorporated into the final rule. Key elements of the
reviewers' critical comments were relative to the scope of the
proposal, the need for greater prioritization of conservation issues
that influence critical habitat designation, a greater emphasis on the
need for quality habitat to support the migratory life form of bull
trout, and the need for more 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.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the bull trout, and addressed them in the following
summary.
Public Comments
Comments Related to the Biology and Process of Critical Habitat
1. Comment: The proposed critical habitat for the bull trout fails
to account for the importance of habitat connectivity.
Our Response: The draft bull trout Recovery Plan (Service 2002)
(draft Recovery Plan), the critical habitat proposal, and the listing
rules for bull trout all reflect the scientific literature for this
species relative to its conservation needs. The scientific literature
indicates that bull trout were likely to have exhibited patchy
distribution historically, prior to the arrival of European settlers,
due to their habitat requirements and the effects of multiple episodes
of glaciation. The critical habitat proposal, therefore, reflects the
draft Recovery Plan's objective of ensuring the persistence of self-
sustaining and interacting groups of bull trout distributed across
their native range, within the limits of existing geographical
impediments and subject to the biological characteristics of the
species.
2. Comment: One commenter suggested that we choose appropriate
knowledgeable, unbiased peer reviewers, and suggested that the critical
habitat proposal be reviewed by the National Academy of Sciences
(Academy) to help ensure an adequate, unbiased panel of reviewers, and
to inspire more public confidence in the science behind the proposal.
Our Response: We agree that peer review provided by knowledgeable,
unbiased scientists is important. While a National Academy of Sciences
review is always appreciated, they are not the only entity capable of
providing scientific review. Peer review for the bull trout critical
habitat proposal was coordinated by the Western Division of the
American Fisheries Society, a professional society dedicated to
furthering scientific research and management on fish and other aquatic
species in the U.S. Two of the peer reviewers work as research
scientists for the U.S. Forest Service (USFS), one as a research
scientist for the U.S. Geological Survey (USGS), and one as a research
scientist at Colorado State University. All four reviewers have
extensive backgrounds in fishery biology and science.
3. Comment: Are the current delineations of distinct population
segments (DPSs) of the bull trout appropriate?
Our Response: Evaluating DPSs of the bull trout is not part of
critical habitat rule-making process. We are required to
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designate critical habitat for the species rangewide due to a court
settlement and this rule covers the Columbia and Klamath portions of
the species' range. However, we are currently conducting a 5 year
review of the species' status, and information developed and considered
during this review will help us evaluate the appropriateness of DPSs
for the bull trout.
4. Comment: Many commenters suggested additional streams be
designated as critical habitat for the bull trout. Others believed that
the proposed designation included inappropriate streams or was
excessive in scope.
Our Response: We believe that this designation is based on the best
scientific and commercial information available, and includes only that
habitat essential to the conservation of the Columbia and Klamath
populations of the bulltrout. Comments documenting that proposed stream
segments were not essential were evaluated and, when appropriate, used
to refine the final designation.
Only those streams, lakes, and reservoirs that we believed to be
essential to the conservation of the Columbia and Klamath populations
of bull trout, based on the best scientific and commercial data
available at the time the proposal was being developed, were included
in the proposed critical habitat designation. This does not mean that
streams not included in this designation cannot or will not contribute
to bull trout recovery, but rather that they were not determined to be
essential to the species' conservation.
Those areas that did not contain the physical or biological
features essential to the conservation of the Columbia and Klamath
populations of bull trout were removed from the designation of critical
habitat. For further information refer to the Summary of Changes from
the Proposed Rule section below.
5. Comment: How do State water quality standards relate to the
proposed critical habitat rule and the concept of adverse modification?
Our Response: The Environmental Protection Agency (EPA) and the
States share joint responsibility for implementing the Federal Clean
Water Act (CWA). Under the CWA, each State develops its own programs to
meet minimum Federal requirements and requires EPA to work with the
States to ensure compliance. There are two ways in which State water
quality standards relate to the designation of critical habitat. First,
to the degree that they are influencing the current condition of
designated critical habitat, these standards will be addressed in our
biological opinions as part of the analysis required under section
7(a)(2) of the Act for any Federal action that may affect critical
habitat. That analysis includes a general evaluation of the factors
influencing the condition of the entire critical habitat area
designated, as well as a more specific analysis of such factors within
the critical habitat area affected by the proposed Federal action.
Secondly, States are required under the Federal Clean Water Act to
periodically review their water quality standards to determine if they
need to be revised. If a State proposes to revise or establishes a
standard, that action is subject to approval by the U.S Environmental
Protection Agency (EPA). If the proposed standard may affect critical
habitat, the EPA is required to formally consult with us under section
7(a)(2) of the Act to ensure that this action does not destroy or
adversely modify critical habitat.
6. Comment: Those most affected by the designation have not been
involved in this designation of critical habitat for the Columbia and
Klamath populations of the bull trout.
Our Response: We have strived to include those interested in the
designation of critical habitat for the Columbia and Klamath
populations of the bull trout in the rule-making process. We developed
Recovery Unit Teams comprised of land owners, land managers,
scientists, representatives of States, Tribes, and industry, and
distributed a draft Recovery Plan outlining recovery objectives.
Throughout the process of designating critical habitat, we have
attempted to solicit and incorporate comments from those affected by
this final rule. We solicited public comment through three public
comment periods and nine public hearings, which we accepted oral and
written comments. We tried to be responsive to the concerns raised, and
diligently tried to address those concerns during the development of
this final designation. Unfortunately, our ability to accept comment
and work with stakeholders is limited by deadlines imposed by the Court
as part of settlement agreements.
7. Comment: There are inconsistent unit descriptions between the
draft Recovery Plan, draft economic analysis (DEA), and the proposed
critical habitat rule.
Our Response: We agree that there are areas where the proposed rule
and the DEA do not precisely follow the organization presented in the
draft Recovery Plan. We regret any confusion this may have caused.
Because the proposed rule and the draft Recovery Plan analysis are
related, the organization of units between the two documents is
similar. However, chapter one of the draft Recovery Plan has no
counterpart in the critical habitat proposal, so subsequent Recovery
Plan chapters (e.g., chapters 2, 3, 4, etc.) do not correspond with
critical habitat unit descriptions (e.g., units 1, 2, 3, etc.).
Additionally, the Columbia and Snake Rivers are treated as critical
habitat units 24 and 25 in the proposed and final rule. There are no
counterpart chapters in the draft Recovery Plan as the relationship of
the Snake and Columbia Rivers to the individual population units are
discussed within the appropriate individual chapters.
8. Comment: A number of commenters believed that the critical
habitat proposal was speculative, not based on scientific principle,
had insufficient supporting documentation, and reliance on the draft
Recovery Plan was not in compliance with the requirements of the Act.
Our Response: Our proposal was based on the best available data at
the time of development. We agree that much of the information is
incomplete and the conclusions we reached were based on assumptions we
were required to make in the absence of historic or recent data.
However, we were required to identify critical habitat based on that
information, and we have done so.
The bull trout critical habitat designation is based on the science
and information behind the Recovery Plan, not on the Recovery Plan
itself. The proposed designation was peer-reviewed by four individuals
who have expertise with the species, the geographic region where the
species occurs, and are familiar with conservation biology principles.
Key elements of the reviewers' critical comments were relative to the
scope of the proposal, the need for greater prioritization of
conservation issues that influence critical habitat designation, a
greater emphasis on the need for quality habitat to support the
migratory life form of bull trout, and the need for more 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. We incorporated
the reviewers' comments into the final rule as well as applicable
comments received during the comment period.
Recovery criteria identified in the draft Recovery Plan include
trend data and the conservation of the species' distribution,
abundance, population, and hydrological connectivity. Shortly
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after the species was listed in 1998, we initiated development of a
recovery plan for bull trout and convened 27 individual Recovery Unit
Teams throughout five States to begin gathering information on the
status and conservation needs of the species. These teams were composed
of experts in biology, hydrology, forestry, in addition to resource
users, and other stakeholders with interest in and knowledge of bull
trout and the habitats they depend on for survival. Where available, we
incorporated existing State-sponsored bull trout aquatic conservation
plans and planning processes to support our information. The recovery
planning process generated a considerable body of new information on
the specific management and biological needs of bull trout
9. Comment: All references to bull trout sightings from unreliable
or unsubstantiated sources should be eliminated from the decisionmaking
process.
Our Response: We agree. Under the Act, we are required to use the
best available information when making our decisions. We critically
review all information provided to us. We have received numerous
comments from the public and from State and Federal agency personnel
relative to specific water bodies and the veracity of supporting
documentation regarding bull trout use of such areas. The various data
that we collect are weighted based on their verifiability, for example,
anecdotal evidence and opinion have less weight than results from
published studies or long-term or ongoing monitoring. If we receive
information that appears to be ``unsubstantiated,'' we evaluate it as
such in the context of all comments received. However, in some cases,
information from an ``unsubstantiated source'' may be the best
available information we have for a particular stream. We have modified
the proposal accordingly.
10. Comment: Reliance upon conservation biology and metapopulation
dynamics are invalid assumptions upon which to base a designation of
critical habitat as these are theoretical approaches.
Our Response: The critical habitat determination is based on many
factors and did not rely directly on metapopulation dynamics. Available
information on conservation biology and metapopulation dynamics were
factored in along with all of the other information available on
specific segments. We acknowledge that there is not universal agreement
on application of the metapopulation theory to bull trout populations
or group of populations within a watershed. However, several studies
indicate existing metapopulation dynamics in bull trout and other char
(Rieman and McIntyre 1993; Dunham and Rieman 1999; Spruell et al. 1999;
Morita et al. 2002; Whitely et al. 2003).
In the classic view, metapopulations are considered collections of
roughly equivalent local populations with similar, but independent,
risks of extinction through environmental variability. In the simplest
models, local extinctions are balanced by migration and recolonization
from extant populations. In recent years, metapopulation models have
been extended to consider a variety of more complex systems, including
substantial variation in the characteristics and dynamics of local
populations, and the patterns and rates of dispersal among them. In the
current view, structuring and partial independence of local populations
are the fundamental concepts that distinguish a metapopulation from a
simple panmictic (mingled) group in a patchy environment.
Any controversy around application of metapopulation theory is how
rigidly to apply it. The primary value of metapopulation theory is in
understanding the relevance of diversity and complexity of the species
to which it is being applied--that salmonid complex life history is a
reflection of the diversity of habitats they live in. Metapopulation
theory is useful in trying to understand and conserve processes such as
dispersal and linkages between landscapes, life history, genetic
diversity, and habitat size requirements. Occasional or rare instances
of metapopulation dynamics for a species is an implicit component of
the concept.
Independent fishery scientist peer review of the draft Recovery
Plan and critical habitat proposal, as well as a separate peer review
of the Service Science Team Report (Whitesel et al. 2004) addressing
key issues of bull trout recovery planning (including application of
metapopulation theory), did not take issue relative to the application
of metapopulation theory to bull trout conservation efforts.
11. Comment: One commenter wanted to know whether the description
of reservoirs and lakes ``at full pool'' or ``when full'' reflected
potential conservation concerns when pool levels were less than full,
and how designating reservoirs at full capacity as critical habitat is
scientifically supported. Also, there were concerns regarding minimum
pool requirements at the Boise and Payette Reservoirs that would affect
irrigation supply, economics, and groundwater supply.
Our Response: The use of those phrases was meant to delineate the
area of the reservoir or lake by means of the high water mark, given
that their volumes and areas vary with the seasons as water levels
change. No implication as to the conservation benefits of various lake
and reservoir levels or effects to proposed critical habitat for bull
trout were intended.
12. Comment: Several commenters believed that large rivers such as
the Columbia and Klamath Rivers are inappropriate as bull trout
critical habitat.
Our Response: The Klamath River itself has not been proposed as
bull trout critical habitat because we do not have any historical or
current data to suggest this river has been used by bull trout. The
mainstem Columbia and Snake Rivers have been excluded from critical
habitat under Section 4(b)(2) in support of multiple management actions
being undertaken in these reaches through the Federal Columbia Power
System. The benefits of excluding critical habitat for these areas
exceeded the benefits of designating critical habitat.
Segments of large rivers such as the Columbia and Snake Rivers are
important to the conservation of the bull trout, because they are
interconnected with tributaries that support bull trout and they
provide important FMO habitat. Bull trout use of the Columbia River has
been well documented by recent radio-tagging studies conducted by the
Service (Service 2001, 2002c) and the Chelan, Douglas, and Grant County
Public Utility Districts (Kreiter 2001, 2002; BioAnalysts, Inc. 2002).
Recoveries of tagged bull trout in the Bonneville Pool that originated
from the Hood River (Wachtel 2000) have shown that bull trout are using
the mainstem reach of the lower Columbia River as well. Radiotelemetry
studies by the Oregon Department of Fish and Wildlife (ODFW)
(Hemmingsen et al., 2001a, b), and Idaho Power Company (IPC) (Chandler
and Richter 2000) have verified movements of bull trout between
tributary streams and the mainstem Snake River. Current bull trout
presence in the mainstem Columbia River reflects the strength of the
local populations within tributaries and its value as migration
corridors between the tributaries.
13. Comment: Critical habitat for the Columbia and Klamath
populations of the bull trout should be extended to the entire
hydrologic watershed.
Our Response: We acknowledged in the proposed rule that upstream
habitat,
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as well as adjacent terrestrial habitat, can influence the quality of
aquatic habitat downstream and downslope. However, due to the
complexity and variability of upstream habitat, and the difficulty in
mapping that habitat, we are designating only the water bodies that
have been determined to be essential to the conservation of the species
14. Comment: We received several comments indicating that
hybridization is occurring between bull trout and other fish species
(e.g., cutthroat trout (Oncorhynchus clarki) and brook trout
(Salvelinus fontinalis)). Some commenters also suggested that the
emphasis on connectivity in the draft Recovery Plan, and the
identification of migratory corridors as proposed critical habitat,
could exacerbate the hybridization issue by providing invasion routes
for nonnative species known to hybridize with bull trout, such as brook
trout.
Our Response: We acknowledge this concern, and for that reason, are
not designating connectivity corridors where we cannot be sure that
competing species will not be introduced. Because cutthroat trout and
bull trout are not of the same genus, have different spawning periods,
and evidence of hybridization between the two has not been previously
documented, we believe that hybridization between the two species is
unlikely to occur.
Brook trout are known to displace native bull trout populations in
some cases. We agree that, in some instances, the potential negative
effects of brook trout introduction into habitat occupied by bull trout
following the removal of barriers to migration could outweigh the
benefits of providing access to expanded foraging, spawning, migratory,
and over wintering (FMO) habitat for bull trout. In such cases, a site-
specific evaluation should occur before barriers are removed. Areas
above barriers were not included in critical habitat if site-specific
evaluations had not been completed indicating that these areas were
essential to bull trout and that barrier removal would not result in
increased risk to the species.
15. Comment: Brook, lake trout (Salvelinus namaycush), brown (Salmo
trutta), and rainbow (Oncorhynchus mykiss) trout have been introduced
into bull trout habitat. These species compete with, and displace, bull
trout and may be responsible for its decline. Given the competition
between these species and bull trout, how will critical habitat improve
this situation?
Our Response: Regardless of whether critical habitat contributes to
and aids the conservation of the bull trout, we are required to
designate critical habitat for species listed under the Act. One way
that critical habitat may improve the nonnative competitor threat is
through increased awareness of important bull trout habitat. Direct
improvement of this situation may come about through decreases in the
introductions of nonnative competitors and fishery management
activities aimed at controlling or eradicating these species in bull
trout habitat.
16. Comment: Several commenters suggested that bull trout are
predators or competitors that have negative effects on other native and
nonnative species.
Our Response: Bull trout are opportunistic predators that feed
largely on other species of fish, both native and nonnative. Prey
species consumed by bull trout vary considerably, depending on the
location and time period. Bull trout evolved with other native species
and, in some instances, because their habitat requirements are somewhat
different, there is a limited area of overlapping distribution between
them, at least temporally. We are not aware of any published scientific
studies or other convincing evidence indicating bull trout predation is
the leading cause in the decline of other native or introduced species.
Therefore, we believe that any conservation of bull trout will not
significantly affect the status of other species across the range of
the bull trout. However, in some limited circumstances, local increases
in bull trout populations may result in local decreases in other
species upon which they prey.
17. Comment: One commenter suggested that we should encourage the
development of an umbrella Safe Harbor Agreement (SHA) for a broad area
such as an irrigation district.
Our Response: We agree. We actively seek the development of
appropriate SHAs or other conservation measures and programs.
18. Comment: Several commenters stated that HCPs should not be
excluded; others believed that excluding HCPs was appropriate.
Our Response: We have determined that lands covered under an
existing or pending HCP as discussed, should be excluded from the
designation of critical habitat because the benefits of excluding the
lands covered by these management plans outweighs the benefits to the
species by including them in the designation. Please refer to our
discussion concerning the exclusion of approved HCPs later in the rule
in the section Relationship to Section 4(b)(2) of the Act.
19. Comment: Several commenters questioned the affect of critical
habitat on restricting the use of public lands, such as mining, and the
impact on private lands.
Our Response: Critical habitat does not create a preserve or
prevent access to private land, streams, lakes, or reservoirs. There is
no connection between the designation of critical habitat and the use
of private land unless there is a Federal nexus. A Federal nexus exists
if activities on private lands are funded, authorized, or permitted by
a Federal agency. Section 7(a)(4) of the Act requires Federal agencies
to consult with us on any action that is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of designated critical habitat. As part of the
consultation process, we will offer ``reasonable and prudent
alternatives'' 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 the 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.
While it is true that mining activities may currently be restricted
in some areas (e.g., inwater work periods), these are existing
restrictions required by the States and Federal land management
agencies to protect natural resources, such as fish, and not due to the
designation of critical habitat for bull trout.
20. Comment: Several commenters were concerned that the bull trout
critical habitat designation will result in greater adverse effects to
people, their communities, and their livelihoods than we have
indicated.
Our Response: We agree. As a result, a significant portion of the
designation has been removed for these reasons and others.
21. Comment: Critical habitat could restrict fire prevention and
suppression, flood control, and governmental land use planning, as well
as interfere with the management of public roadways and bridges.
Our Response: Human safety is a priority for both the Service and
the Department. The Service issued ``Endangered Species and Fire Policy
Clarification'' on September 21, 1995 that emphasizes that firefighter
safety
[[Page 60001]]
comes first and that responses to wildfire should not be delayed for
ESA considerations. The Secretary of the Interior provided guidance on
Firefighter and public safety on August 20, 2001 that states that ``in
the event of an emergency, no emergency response is to be delayed or
obstructed because of ESA considerations.'' In emergencies, response to
emergencies is first priority and any consultation requirements are
addressed after the emergency is over.
22. Comment: A number of commenters felt the Service neglected or
violated a variety of regulatory or other requirements, including the
National Environmental Policy Act of 1969 (NEPA), Small Business
Regulatory Enforcement Fairness Act (SBREFA), Title VI of the Civil
Rights Act, the Data Quality Act (Pub. L. 106-554), Unfunded Mandates
Reform Act, Regulatory Flexibility Act (RFA), and other laws,
regulations, orders, and local ordinances.
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
9th 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). We are not required to address Title VI specifically in our
rule but believe this rule to be in full compliance with all
appropriate laws and regulations. Relative to the Data Quality Act, our
intent is to ensure that the most applicable scientific information has
been applied in the development of the proposed rule. Both public and
peer review of the proposed rule further ensures that the final
designation will meet this standard.
23. Comment: The Service must take into account the Forest and Fish
Report (FFR) law that protects aquatic habitat and water quality on
State and private lands.
Our Response: Washington State law H.B. 2091, which codified the
FFR, is a science-based plan that protects water quality and fish
habitat on over 8 million ac (3.2 million ha) of non-Federal forestland
in Washington State. Implementing regulations, developed by the
Washington Forest Practices Board, require (1) establishment and
retention of riparian buffers along streams to provide shade, large
woody debris, and bank stability; (2) a bull trout temperature overlay
strategy for streams located in the hotter, dryer environments east of
the Cascade Crest; (3) using methods for construction and maintenance
of roads and stream crossings that will maintain stream connectivity
for fish passage, and shunt road-generated sediments from streams, and
repairs to failing roads, bridges, and culverts within specific time
frames.
With respect to the PCEs for bull trout critical habitat, we
determined that forest practices conducted under the FFR regulations
should result in improved water quality, which will promote bull trout
reproduction, growth, and survival. Furthermore, implementing these
regulations should 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 bull trout
will benefit from the implementation of the FFR regulations, 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
section below for more information.
24. Comment: Several commenters wanted to understand how critical
habitat would affect ongoing projects including state water quality
standards, flood control, habitat restoration, and hydropower.
Our Response: The designation affects these and other types of
projects in two ways. First, the recognition value associated with the
designation is intended to influence voluntary modifications, where
appropriate, to these activities that would make them compatible with
the proper functioning of the critical habitat.
Secondly, where a Federal agency has continuing discretionary
involvement or control over the action, compliance with section 7 of
the Act is required. If the on-going project may affect critical
habitat, the Federal agency is required to formally consult with the
Services under section 7(a)(2) of the Act to ensure that this action
does not destroy or adversely modify critical habitat.
Because of potentially serious public health and safety issues that
could arise as a result of third party lawsuits questioning reservoir
operation, this designation does not include them.
25. Comment: Given that only the stream reach is being designated
as critical habitat, it is unclear what area of land the agencies will
view as potentially impacting that stream segment.
Our Response: Activities that may destroy or adversely modify
critical habitat are those that alter the PCEs to an extent that the
value of critical habitat for both the survival and recovery of bull
trout is appreciably reduced. The degree of any potential effect will
vary with the type of action, the location, and timing of where it
occurs. Other variables include the status and extent of critical
habitat, and the relationship of the critical habitat segment in
question to the population of bull trout that it supports. Where
upstream or upslope activities may affect downstream areas of critical
habitat, consultation is required.
26. Comment: The PCEs are ambiguous and not scientifically
defensible. They are not mutually exclusive, nor is it clear how many
are essential to bull trout.
Our Response: The proposed bull trout PCEs represent those physical
and biological features essential to the conservation of the species
and in need of special management or consideration, as required under
regulations at 50 CFR 424.12. All the PCEs are essential to the
conservation of bull trout, but not all PCEs need to be present at
every location within the designated critical habitat. Different PCEs
may be important for only certain lifestages or at certain times of the
year. Critical habitat needs to have only enough of the PCEs present to
allow normal biologic function of the bull trout. We believe that PCEs
represent the conservation needs of the species as indicated by the
scientific literature. We agree that they are not mutually exclusive.
27. Comment: Proposed critical habitat areas, such as the Crooked
River in Oregon, lack the physical and biological features essential
for the conservation of the species.
Our Response: We agree and have removed that portion of the
designation.
28. Comment: None of the PCEs are likely to occur in pristine
environments, and places where they do are likely to change as a result
of natural disturbances. Even in pristine environments, you may not
have all the PCEs, and these are likely to change as a result of
natural disturbances.
Our Response: We agree that pristine environments may not contain
all of the PCEs, and that they can be affected by natural disturbances.
In order to be designated as critical habitat, we must first determine
if an area is ``essential to
[[Page 60002]]
the conservation of the species,'' that is, contains primary
constituent elements essential for the life cycle needs of the species.
See our response to the comment above.
29. Comment: Water quality temperature criteria for bull trout
currently do not incorporate critical factors such as their ability to
survive in higher water temperatures in the laboratory when unlimited
food supplies are present, and competition with other species is
controlled.
Our Response: The identified range of temperatures where bull trout
commonly occur in the wild is supported by the scientific literature,
as indicated in the preamble to the proposed rule. We also acknowledge
in the preamble that bull trout are known to occur in waters outside of
this temperature range for short durations or seasonally. We note that
migratory fish may utilize colder micro-environments such as thermal
refugia at the mouths of tributary streams, or employ other mechanisms
to survive passage through waters not generally suitable for the
species. The PCEs reflect those primary biological components essential
to the conservation of the species in question in the wild. We are
unaware of any circumstances where existing bull trout habitat would
replicate the laboratory conditions described. This rule expressly
excludes any habitat that currently does not meet the temperature range
included in our definition of the primary constituent elements for at
least some portion of the year.
30. Comment: The proposal does not describe what ``special
management considerations or protection'' are necessary for proposed
bull trout critical habitat, and much of the critical habitat
designation overlaps with habitat that is already protected.
Our Response: Special management considerations or protection are
those measures necessary to provide for the maintenance of the PCEs of
bull trout critical habitat. These include maintaining water quality,
providing for stable stream channels and flow regimes, maintaining the
complexity of stream channels, and maintaining existing connected
migratory corridors free from fish passage barriers. We agree that much
of the habitat proposed as bull trout critical habitat is already
protected. As we undertake the process of designating critical habitat
for a species, we first evaluate lands 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 then evaluate lands defined by those features to assess
whether they may require special management considerations or
protection. Refer to the Special Management Considerations or
Protections section below for further information.
31. Comment: Several commenters felt that current Federal land
management practices are sufficient to preclude bull trout critical
habitat designation for bull trout. Such designation is a duplication
of effort since Federal actions, such as allotment management plans,
already undergo formal consultation.
Our Response: As specified in the proposed rule, the USFS and
Bureau of Land Management (BLM) prepare land management plans which
generally guide activities on the National Forest and BLM Districts.
These plans provide some level of conservation benefit to species and
the habitat they are known to occupy, often a very high level of
conservation. Federal lands managed under the Northwest Forest Plan or
managed in accordance with PACFISH/INFISH have been excluded under
Section 4(b)(2).
32. Comment: Scientific applications developed under the Interior
Columbia Basin Ecosystem Management Project (ICBEMP) should not be
referenced in the critical habitat proposal because ICBEMP was never
submitted for regulatory analysis.
Our Response: Although, ICBEMP has not been submitted for
regulatory analysis we believe that there is important scientific
information that is valuable to the conservation of bull trout that is
appropriate to consider.
33. Comment: All Warm Springs Reservation lands should be exempted
from the proposal.
Our Response: We met with the Confederated Tribes of Warm Springs
Reservation of Oregon (CTWS) several times to discuss their ongoing
management strategies for bull trout. During the course of these
meetings, it became clear that their management was largely compatible
with bull trout conservation, and we have excluded their lands under
section 4(b)(2) of the Act. Refer to the Tribal Lands under the Lands
to be Excluded from Critical Habitat section below for more
information.
34. Comment: Multiple commenters noted that the Service proposed
streams for critical habitat that do not currently support bull trout,
but did not provide justification as to why these streams were
proposed, and excluded areas where they are more likely to exist
without an explanation for these exclusions.
Our Response: We based the designation of critical habitat on the
science and information behind the Recovery Plan. However, the
necessity of reestablishment in some areas is identified as necessary
for recovery in the draft Recovery Plan. Critical habitat was proposed
in those areas to assist in providing for the conservation of the
species. We have received substantial comments from the public, Federal
and State agencies, and peer reviewers on this subject, and have
critically reviewed our proposal accordingly and made appropriate
changes to this rule. Areas of unknown occupancy and unoccupied
habitats were not included in the final designation.
Due to the extent of the designation and supporting information,
the final rule includes a summary of the scientific basis of the
designation. Refer to the Summary of Changes from the Proposed Rule
section for additional information. A complete record of the
information is contained in the administrative record for the rule.
35. Comment: One commenter thought that the Service did not
accurately list the miles of stream or acres of lakes and reservoirs
that are currently unoccupied by bull trout. They asked for a
recalculation to determine if the numbers were accurate.
Our Response: We received numerous comments on the accuracy of
specific stream, river, lake, and reservoir specifications as well as
associated biological information. All stream distances and lake or
reservoir acreages were calculated using Geographic Information System
(GIS) mapping from multiple sources including: the StreamNet GIS
database for Idaho, Oregon, Washington, and Montana; and State
databases of bull trout distribution. Based on comments, we have made
revisions in this rule. For the purposes of this critical habitat rule,
the term ``occupied'' was applied to streams where there is credible
documentation of bull trout sighted within recent historical times
(i.e., 20 years). Unoccupied habitat was removed from the designation.
Under the ESA, the Secretary of the Interior may include unoccupied
lands if she finds that those lands are essential to the conservation
of the species. In the case of 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.
36. Comment: Neither the draft Recovery Plan nor the critical
habitat proposal describes the scientific basis for determining that
bull trout should be recovered into many potential historic habitats.
[[Page 60003]]
Our Response: The Draft Recovery Plan does present the basis for
determining which populations are in need of expanded adult abundance
to be considered recovered. The specific rationale is unique to each
core area and management unit identified in the various chapters of the
plan. However, the overall basis can generally be stated as the need to
maintain complex interacting groups of bull trout distributed across
their current range to reduce risk of extirpation from random events,
to maintain an effective population size at levels where genetic risks
associated with low effective population size are minimized, and to
provide for expression of the migratory life history form.
37. Comment: A few sightings of bull trout in a water body does not
mean it is occupied. Potential historic habitat is not the same as
habitat that was actually occupied.
Our Response: We disagree that the presence of bull trout does not
indicate that habitat is occupied by bull trout, at least temporally. A
published survey protocol for juvenile and resident forms was not
developed until 2002, no similar survey protocol for adult migratory
forms has yet been developed, and many bull trout sightings are merely
the incidental result of surveys for other species without
consideration for the specific habits of bull trout. Therefore, an
incidental sighting of a single or a few bull trout is often the only
information that is available until a concentrated survey for bull
trout is conducted. With the increasing availability of radio telemetry
data, we are finding for many of the populations that have been studied
that the extent of habitat bull trout occupy is often greater than was
previously known from incidental observations. We agree that potential
historic habitat is not the same as habitat that was previously
documented as occupied.
38. Comment: A number of commenters felt that the duration of the
comment period was too short and occurred during a holiday season.
Our Response: The public comment period was open for 210 days. The
first comment period was open for 90 days from November 29, 2002, until
January 28, 2003 (67 FR 71235). Because of the concern that there was
not sufficient time to review such a large proposed rule, we reopened
the comment period an additional 90 days from February 11, 2003, to May
12, 2003 (68 FR 6863). We reopened the comment period a third time for
the public to provide comments on both the proposed rule and the DEA
from April 5, 2004, until May 5, 2004 (69 FR 17634). We were unable to
extend the comment period further due to our court-ordered deadline of
September 21, 2004.
39. Comment: A commenter asked that the Service consider ongoing or
potential activities that might negatively affect bull trout critical
habitat.
Our Response: When designating critical habitat we are limited to
identifying those areas essential to the conservation of the species.
Ongoing or potential future activities that may negatively affect bull
trout critical habitat are not addressed during the critical habitat
rule making process, but during subsequent processes, such as section 7
consultations with Federal agencies.
40. Comment: One commenter stated that specific numerical habitat
standards for critical habitat must be included along with critical
habitat designations.
Our Response: The PCEs identified in the proposed critical habitat
rule include numeric standards indicative of habitat essential to the
conservation of bull trout when appropriate. We also recognize that,
historically, bull trout existed in habitat that may not have contained
all of the PCEs all of the time. Migratory forms of bull trout may have
evolved, in part, to adjust to this situation and take advantage of
more suitable habitat, at least seasonally.
41. Comment: Riparian and upland areas should be included as
critical habitat. There is no scientific basis for this exclusion, nor
is it a credible approach to designating critical habitat.
Our Response: Because of the widespread distribution of bull trout
across varied landscapes, ranging from the moist, steep western slopes
of the Cascade Mountain range to the high desert environment of
southern Idaho, to the western slopes of the Rocky Mountains, we were
unable to generally describe riparian and upland areas important to the
aquatic function of streams, lakes, and reservoirs. Additionally, we
believe a critical habitat rule should be easily interpretable to the
public, including the provision of specific maps. Because of these
factors, we chose to limit the critical habitat proposal to those
aquatic environments essential to the conservation of bull trout.
However, the proposal recognizes that the quality of aquatic
habitat within stream channels, lakes, and reservoirs, is intrinsically
related to the character of the flood plains and associated riparian
and upland zones. Activities that occur outside the aquatic environment
can have demonstrable effects on its physical and biological features.
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 both the survival and recovery of the bull trout
is appreciably reduced, including alterations of stream flows, riparian
function, stream bank conditions, and water quality. Therefore,
although areas outside of the aquatic environment are not included as
proposed critical habitat, the proposal does recognize the scientific
basis for linking the quality of the aquatic environment with the
physical processes that occur outside of that environment.
42. 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 that are key sources of
cold, clean water that feed bull trout habitat downstream.
Our Response: Our determination of bull trout critical habitat is
limited to areas that bull trout utilize (or could utilize) for some
portion of their life cycle. Areas that contribute an important
resource, but do not provide essential habitat for bull trout, are not
being considered for designation.
43. Comment: A commenter wanted to know if bull trout critical
habitat will affect Native American treaty fishing rights or access to
fishing areas.
Our Response: The bull trout critical habitat rule will not affect
Native American treaty fishing rights or access to fishing areas.
Critical habitat does not set up a preserve or prevent access to
streams, lakes, or reservoirs. When we published the final rule listing
the bull trout on November 1, 1999 (64 FR 58910), we also published a
special 4(d) rule that applied wherever bull trout occur in the
coterminous lower 48 States, except in the Jarbidge River basin in
Nevada and Idaho. The principal effect of this special rule is to allow
take in accordance with State, National Park Service, and Tribal
permitted fishing activities.
44. Comment: We must consult with Native American Tribes prior to
the publication of a final economic analysis (FEA).
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 and worked with
them to address their concerns.
45. Comment: Several commenters felt that Tribal lands should be
[[Page 60004]]
excluded; other commenters felt that Tribal lands should not be
excluded.
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. We, therefore, 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 on-going efforts for species conservation and
the benefits of including or excluding Tribal lands in the designation
under section 4(b)(2).
Unit Specific Comments
Unit 1: Klamath River Basin
46. Comment: Using radio-telemetry, we have found that bull trout
reside only in the stream channel and do not move into wetland areas
associated with Sycan Marsh. Radio telemetry data obtained during the
fall of 1999 and spring of 2000 by the Klamath Bull Trout Working Group
is incorrect.
Our Response: Bull trout radio telemetry studies in the Sycan Marsh
Core Area (Long Creek) have had very limited success. Of four fish
tagged in 1999, three died shortly thereafter. Until the tag ceased
transmitting, telemetry data indicated the remaining fish moved onto
private lands along lower Long Creek and remained there through the
winter. In 2000, the surviving, previously tagged fish was recaptured
and the tag replaced. Telemetry data indicated it migrated upstream in
Long Creek, and then returned to the same location as the previous
winter. Two data points (from the same animal) are inadequate to
develop informative trends (C. Bienz, The Nature Conservancy, pers.
comm. 2002).
47. Comment: Drought conditions over the past 3 years, with low
flow and high stream temperatures, make the Upper Sycan Watershed
uninhabitable for bull trout.
Our Response: Current drought conditions have undoubtedly had an
effect on bull trout habitat and distribution, as have anthropogenic
activities. Flows should improve as efforts to restore watershed
conditions in the Upper Sycan Watershed are implemented by land and
resource managers and agencies. However, all waterways will continue to
be influenced by climatic factors.
48. Comment: The inclusion of Deming Creek within proposed critical
habitat conflicts with Oregon's policy regarding installation and
operation of positive barrier fish screens at water diversion
locations. Deming Creek is diverted into a canal with limited amount of
water left in stream. The bull trout population no longer exists in the
stream and has established itself in the canal. The area affected by
these artificial canals, headgates, diversions, and irrigation
facilities should not be included within the critical habitat
designation.
Our Response: The Deming Creek population is the last remaining
stronghold of bull trout in the Klamath Basin. As such, they provide a
potential source for expanding the numbers and distribution of bull
trout in the basin. More individuals distributed across a broader
landscape will reduce risk of extirpation from random events,
contribute to maintaining an effective population size at levels where
genetic risks associated with low effective population size are
minimized, and provide for expression of the migratory life history
form. We note that the irrigation canal identified in this comment is
not included in the critical habitat designation. In addition,
unoccupied habitat has also been removed from the final designation.
49. Comment: The proposal fails to reveal that Deming Creek has
been channelized, and does not explain how this channelization affects
the use of these canals for migration, spawning, and/or rearing.
Our Response: Only the lower 1.0 to 1.5 mi (1.6 to 2.4 km) section
of Deming Creek has been channelized. From the trailhead to its
headwaters, the creek remains in the natural channel and relatively
untouched. Because stream flows become subsurface below Anderson Field,
Deming Creek bull trout are isolated from the rest of the Basin.
Therefore, it is unlikely that Deming Creek bull trout will develop a
migratory life form, and will remain a stronghold of native resident
fish.
50. Comment: There is concern relative to migrating fish being
exposed to Ceratomyxa shasta if they migrated into Agency Lake or to
other sites with C. shasta. If the fish were to migrate downstream into
the lake, there could be significant mortality to the larger juvenile
and adult bull trout as well as a source of infection to other stream
reaches on the return migrations. If bull trout are in fact not
resistant to C. shasta, then the theory of winter migration among
watersheds would be clearly false and there would be no scientific
basis to designate these areas as critical habitat
Our Response: Ceratomyxa shasta is a microscopic myxosporean
protozoan parasite that afflicts salmonid fish of the Pacific Northwest
(Bartholomew et al. 1989). Its life cycle is not fully understood.
Progression of infection and mortality is temperature dependent and
native salmonid stocks exhibit varied resistance to it (Bartholomew
1998). Chinook salmon (Oncorhynchus tshawytscha) do not appear to be
affected by C. shasta when water temperatures remain below 60 [deg]F
(15 [deg]C) (PacifiCorp 2002), indicating migrating bull trout may not
be affected. More information is needed to determine whether bull trout
are resistant to C. shasta and to monitor the impacts and extent of it
within the Basin. If research reveals that bull trout are not resistant
to C. shasta, then we may need to consider revising critical habitat at
a later time.
51. Comment: The proposed critical habitat includes Threemile Creek
as a winter migration corridor for bull trout that connects to Agency
Lake. Threemile Creek has been redirected and currently flows into a
series of canals, and does not directly enter Agency Lake or provide
any form of hydraulic continuity for bull trout migration.
Our Response: Threemile Creek connects to Agency Lake via Crane
Creek, Fourmile Creek, and the Westside and Sevenmile Canals. Threemile
creek has been excluded from the final designation.
52. Comment: It is unlikely that bull trout will move downstream
into Agency Lake and then migrate into tributaries not currently
occupied. As has been demonstrated in streams in Montana, bull trout
will not migrate through warm water to spawning beds. Absent careful
analysis of the temperature regimes of the various streams, it is
impossible to determine whether bull trout will use the currently
unoccupied areas for migration downstream to Agency Lake and then into
other streams, given their strong homing fidelity.
Our Response: Although resident and rearing juvenile bull trout are
typically found in colder headwater reaches that meet the conditions
necessary for spawning and rearing, larger migratory bull trout are
more tolerant of wider
[[Page 60005]]
temperature regimes. In the Klamath Basin, large bull trout have
repeatedly migrated from cold water refugia through warm waters (69
[deg]F (21 [deg]C) upstream to spawning grounds, and returned (B.
Quick, ODFW, pers. comm. 2000; C. Bienz, The Nature Conservancy, pers.
comm. 2001).
In addition, some habitat, particularly FMO habitat, may only be
seasonally occupied. Bull trout seek cold water refugia as water
temperatures raise near or beyond preferred thermal regimes. Throughout
the range of bull trout there are segments of stream systems that are
not occupied in summer months because of warm water temperatures but
serve as FMO habitat when water temperatures cool during fall, winter,
and spring (Idaho Department of Environmental Quality (IDEQ) 1998).
In the Upper Klamath Lake CHSU, bull trout historically occupied
several streams that drained into Agency and Klamath Lakes (Goetz 1992;
Light et al. 1997; Buchanan 1998) until human actions altered aquatic
habitat (Bond 1992; Cross and Everest 1995; Light et al. 1997; Quigley
et al. 1997), leading to the extinction of most local populations in
the Basin. Only two, small, isolated subpopulations remain in the Upper
Klamath Lake CHSU. As recovery actions in the Klamath Basin improve
habitat, and as bull trout populations grow, behavioral traits such as
colonization and migratory life forms will likely be expressed. This
may lead to the utilization of riverine and lacustrine habitats in
Agency Lake and adjacent streams, at least seasonally.
53. Comment: Clarify the boundaries of critical habitat, and
specify which database, or base map, that units were derived from, and
when possible use specific geographic reference points. Land managers
need to be able to know and reproduce the legal boundaries.
Our Response: Critical habitat maps were compiled from various
sources. Rather than try and piece together many small data sets with
varying degrees of accuracy and resolution, we relied predominantly on
StreamNet as it is the largest and most readily available database.
USFS databases were also used where stream data were not available in
StreamNet. Legal descriptions of critical habitat units are provided in
this rule and maps are available on our bull trout Web site: http://www.r1.fws.gov/bulltrout/colkla/index.htm
, and our Field Offices can
provide further clarification (Klamath Falls Fish and Wildlife Office
(FWO), Oregon FWO, Western Washington FWO, Upper Columbia FWO, Snake
River FWO, and Central Washington Field Office).
54. Comment: The Service cites a study that found ``historical
records for the Klamath Basin suggest that bull trout in this distinct
population segment were once widely distributed and exhibited diverse
life-history traits in that part of their range'' (Ziller 1992).
However, Ziller's study focused on the Sprague River subbasin. Did that
study specifically address the presence of migratory bull trout in the
area of northern Upper Klamath Lake and Agency Lake?
Our Response: Although Ziller (1992) was cited several times in the
draft Recovery Plan in relation to distribution surveys, population
size and abundance estimates, extirpation, and displacement of bull
trout by brook trout the statement: ``Limited historical references
suggest that bull trout were once widely spread throughout the Klamath
River system.'' was attributed to Buchanan et al. (1997).
Unit 2: Clark Fork River Basin
55. Comment: Several commenters expressed concern that bull trout
recovery and critical habitat designation will negatively impact the
Montana economy and tourism by impeding resource and recreation
opportunities.
Our Response: As stated in our economic analysis, recreation and
tourism are not formally recognized economic sectors with directly
measurable income and employment data. Rather, direct employment
related to recreation and tourism is found primarily within various
components of the retail trade and service sectors. However, it is more
likely that the long-term benefits of appropriate resource management
will positively affect those parts of Montana's economy that are based
on resources and recreation. This is at least partly due to the
enhanced recreational angling opportunities afforded by bull trout
recovery, as well as appropriate bull trout management being compatible
with sustainable resource practices.
Unit 4: Willamette River Basin
56. Comment: Why was critical habitat not designated on the
Clackamas River?
Our Response: Based on limited historical information, it is
unknown whether reproducing bull trout populations existed previously
in the Clackamas River. Bull trout are not known to currently inhabit
the Clackamas River, but their presence was documented historically.
Based on this information, the Clackamas River was not identified as
essential to the conservation of the species. The Recovery Unit Team
believes that the sub-basin has the necessary habitat elements to
support the reintroduction of bull trout.
Unit 5: Hood River Basin
57. Comment: One commenter questioned the consistent use of the
term ``occupied'' and how this fits into the rational of why the
Service did not designate the Sandy River, and how that differs from
the West Fork and East Fork Hood Rivers, which were included in the
proposed rule. Although the commenter supports designating the West
Fork Hood River, they believe the West Fork Hood River is not currently
occupied.
Our Response: For the purposes of this critical habitat rule, the
term ``occupied'' applies to streams where there is credible
documentation of bull trout sighted within recent historical times
(i.e., 20 years). Documentation of bull trout occurrence was deemed
credible if recorded by a biologist working for a State, Federal,
Tribal, Public Utility District, University, or other entity. Vague
descriptions of ``trout'' or ``salmon-sized fish with orange spots'' in
the ethnographic literature or other similar sources were not deemed to
be reliable and were not used to document occupancy.
Using this definition, unoccupied habitat was removed from the
designation. Under the ESA, the Secretary of the Interior may include
unoccupied lands if she finds that those lands are essential to the
conservation of the species. In the case of 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.
The Sandy River basin has been identified as core habitat
(encompasses spawning and rearing habitat for resident populations, as
well as FMO habitat for migratory populations) in the draft Hood River
Recovery Plan due to recent bull trout sightings and suitable habitat
conditions, but additional research on bull trout use of the Sandy
River is needed. Sufficient information is not available to determine
the source of bull trout observed in the Sandy River, or to define any
local populations and their respective core areas. The draft Recovery
Plan has identified the extent of bull trout use of the Sandy River as
a primary research need. Because of this lack of information it was
determined to not be essential to the conservation of bull trout at
this time. The Sandy River basin, therefore, is not designated as
critical habitat. Since the publication of the draft Recovery Plan, the
East Fork of the Hood River has been excluded as habitat
[[Page 60006]]
essential to the conservation of the species based on the information
received from members of the Hood Recovery Unit Team. Past bull trout
sightings in the East Fork Hood River are considered rare, and bull
trout use of the East Fork Hood River is thought to be unlikely due to
unsuitable habitat conditions and absence of bull trout sightings
during surveys.
The Hood Recovery Unit Team has identified the West Fork Hood River
as important to the conservation of bull trout and a potential local
population has been identified for this basin. Based on temperature
observations from USFS (1996b), suitable bull trout habitat is present
in the mainstem of the West Fork Hood River, and bull trout were
historically distributed in a short reach of the West Fork Hood River
(Buchanan et al. 1997). Current bull trout use of the West Fork Hood
River is thought to be primarily used as FMO habitat. We believe the
West Fork Hood River will allow for population expansion and that it
provides essential habitat. Lands managed in accordance with the
Northwest Forest Plan and PACFISH/INFISH were excluded from the
designation under Section 4(b)(2).
Unit 8: John Day River Basin
58. Comment: One commenter suggested that although Granite Creek
was historic spawning and rearing habitat, it currently serves as FMO
habitat.
Our Response: We agree.
59. Comment: One commenter suggested that although Clear Creek is
essential habitat necessary to recover bull trout, it is not currently
an occupied spawning area.
Our Response: There have been many anecdotal reports of bull trout
and the presence of bull trout in the upper reaches of the watershed to
suggest that they are using Clear Creek, but we agree there is not
evidence of current spawning. Habitat within the John Day River Basin
has been excluded under provisions of Section 4(b)(2) based on
management actions associated with the Federal Columbia River Power
System.
Unit 9: Umatilla / Walla Walla River Basins
60. Comment: Several commenters did not think it was appropriate to
combine the Umatilla River Basin and the Walla Walla River Basin into
the same critical habitat unit (CHU). They suggest that we split them
into separate units.
Our Response: The CHU boundaries are based on bull trout recovery
units as defined in the draft Recovery Plan that were based on the
State of Oregon's Bull Trout Working Group and conservation efforts
which were initiated and established years before the listing of bull
trout. We felt it was most expedient to overlay our Federal process on
the already established State efforts. These unit boundaries were not
considered in the process used to determine what habitat areas are
essential for bull trout. So, the areas included in the critical
habitat designation would be the same, regardless of whether the
Umatilla and Walla Walla river basins are combined or split into
separate units.
Unit 10: Grande Ronde River Basin
61. Comment: One commenter noted that the inclusion of Sheep Creek
and Five Points Creek as proposed critical habitat appears to be based
purely on speculation that these streams have potential habitat to
expand existing bull trout distribution in the Grande Ronde Recovery
Unit.
Our Response: Unoccupied areas for both Sheep Creek and Five Points
Creek were removed from the final designation. Lands managed under
PACFISH/INFISH were excluded under Section 4(b)(2).
Surveys for bull trout have not been done in Sheep Creek and East
Sheep Creek. Spawning and rearing habitat in the upper portion of Sheep
Creek and East Sheep Creek are characterized by high water quality and
low water temperatures. Because we cannot confirm at this time that
bull trout currently occupy the lower portion of Sheep Creek, and we
have no data to verify historical occupation, we deleted this section
from final critical habitat designation. Bull trout have been sighted
in the lower 0.5 mi (0.8 km) of Five Points Creek. Also, several creeks
with spawning and rearing habitat drain into Five Points Creek.
Recovery objective 2 in the draft Grande Ronde River
Recovery Unit Plan states that for the Grande Ronde River Core Area,
``Increased population abundance is expected to occur by securing the
distribution in the Hurricane and Looking Glass creeks as well as the
Wenaha River, and by securing and expanding seasonal distribution in
the Upper Grande Ronde, Minam/Deer and Lostine/Bear complexes, as well
as Catherine and Indian creeks.'' Sheep and Five Points Creeks and
associated tributaries are within the upper Grande Ronde River local
population and are essential for bull trout population and distribution
expansion necessary to achieve conservation. FMO and spawning and
rearing habitat exist in these stream systems.
Unit 12: Hells Canyon Complex
62. Comment: The primary limiting factors for bull trout in the
Powder River Basin are the Hells Canyon and other dams that deprive
bull trout of an important prey base. Critical habitat designation will
do little or nothing to address these obstacles, while interfering with
water use practices that improve conditions for bull trout.
Our Response: We agree that bull trout have lost a major food
source with the elimination of anadromous salmon from the Snake River
system above Hells Canyon dam. While salmon were an important food
source for bull trout, salmon were not the only prey base used by bull
trout. Bull trout are opportunistic feeders and will generally prey
upon whatever they can catch. The food habits of bull trout are
primarily a function of size and life-history strategy. We have
addressed restoration of anadromous fish by including task 3.1.3 in the
Recovery Measures Narrative of the Draft Recovery Plan. Task 3.1.3
recommends restoration of the historical prey base for bull trout by
reestablishing viable populations of anadromous fish. The designation
of critical habitat should not interfere with efforts to improve
conditions for bull trout because beneficial actions for bull trout
should support the PCEs.
63. Comment: Watershed enhancement projects are currently taking
place on National Forest System lands, and on private lands along
Cracker, Fruit, and Little Cracker creeks, and along the Powder River.
The county ensures that county roads do not impact water quality in
streams; the USFS, State and county, along with miners, permittees,
ranchers, farmers, and recreationists, are all working with the goal of
improvement of the county's rivers and streams. Why are these streams
designated?
Our Response: The value of these efforts have been recognized and
considered in the final designation. Management of lands under PACFISH/
INFISH guidelines have been recognized and these lands have been
excluded under Section 4(b)(2). Unoccupied habitat has been removed
from the final designation as have small segments (less that 0.5 miles)
that are in private ownership. The remaining lands in this area have
been determined to contain PCEs and be essential to the conservation of
bull trout.
64. Comment: Historical data available in Baker County gives an
account of Powder and Burnt Rivers, along with the majority of their
tributaries, as being dry in late summer prior to the installation of
water storage
[[Page 60007]]
facilities. Presently, stored water, used primarily for irrigation,
keeps streams and rivers flowing all year. Late in the summer, however,
the water level drops and water temperatures increase. This condition
is pervasive in all watersheds in Baker County.
Our Response: The Powder River is not included in the final
designation because it is not currently occupied. Some tributaries to
the Powder River are currently occupied and do contain PCEs and these
remain in the final designation. The Burnt River and its tributaries
were not designated as bull trout critical habitat because this basin
has not been identified as necessary for recovery of bull trout within
the Hells Canyon Complex Recovery Unit (Service, in prep. 2004a), and
also because historical population documentation is lacking (Ratliff
and Howell 1992; Buchanan et al. 1997).
65. Comment: There is no evidence that any resource industries such
as logging and grazing have been harmful to the bull trout in this
unit, and these practices may be important management tools for the
species.
Our Response: Habitat fragmentation and degradation are likely the
primary threats for bull trout throughout the Hells Canyon Complex
Recovery Unit. Some resource practices that have historically adversely
impacted bull trout have ceased or been altered to reduce impacts to
waterways. We agree that logging and grazing can be compatible
management practice if conducted appropriately.
66. Comment: Given the inherent problems in developing fish passage
around dams, the Hells Canyon Complex is not essential for preservation
of the species since there are many other areas within the Pacific
Northwest region that have less formidable obstacles. Designating this
area as critical habitat, places too large a burden on the residents
and particularly the agricultural community.
Our Response: We acknowledge that providing fish passage around
hydroelectric or water storage facilities can be challenging. It is
important to individually assess each facility relative to the
conservation needs of the species of concern, potential benefits to the
species, and economic costs associated with the action. Providing for
fish passage does not mean that expensive alterations to concrete
facilities is the only solution. In some instances trap and haul
operations may be sufficient, in others spilling water or channeling
water through sluiceways may be the preferred operation. In other
instances, fish passage may not be the preferred alternative.
Reservoirs were excluded from the final designation due to concerns
about possible third party actions.
67. Comment: Will critical habitat designation result in the
elimination of irrigation in Baker County?
Our Response: No. The designation of critical habitat does not
create a regulatory burden for private landowners unless there is a
Federal nexus (i.e., the private action is connected with a Federal
action). However, we realize that many irrigation projects do have a
nexus with the Bureau of Reclamation or the U.S. Army Corps of
Engineers. When there is a nexus, adverse effects to critical habitat
will need to be addressed through formal section 7 consultations.
Federal actions will be evaluated on a case-by-case basis. If the
Service finds that a proposed Federal action would result in
destruction or adverse modification of critical habitat, the Service
will develop one or more Reasonable and Prudent Alternatives to the
proposed action that (1) avoid the likelihood of adverse modification,
(2) can be implemented in a manner consistent with the intended purpose
of the action, (3) can be implemented consistent with the scope of the
action agency's legal authority and jurisdiction, and (4) are
economically and technologically feasible. Given these four elements,
we do not foresee a Reasonable and Prudent Alternative consisting of
the elimination of irrigation in Baker County.
68. Comment: Historically, not all the river systems mentioned have
had native bull trout populations. Because of high water temperatures
and low dissolved oxygen in many of streams and rivers, such as the
lower section of the Powder River, bull trout can't be supported.
Our Response: All creeks included in the draft Hells Canyon Complex
Recovery Plan are within the historical range of bull trout. Bull trout
use of the mainstem Powder River is most likely as FMO habitat during
the late fall and winter. During this time, flows in the Powder River
are significantly higher than during the late spring and summer, when
irrigation withdrawals occur. The water is also cooler, and most likely
contains higher oxygen levels compared with warmer summer flows. We
believe that the mainstem Powder River can continue to serve as FMO
habitat for bull trout in a recovered condition.
69. Comment: Why was there no communication from the recovery teams
regarding bull trout critical habitat designation to any potentially
impacted groups affected within this unit?
Our Response: During the recovery planning process, we actively
encouraged stakeholder involvement through contacting watershed council
representatives and requesting their participation. We have made a
concerted effort to increase stakeholder participation in the recovery
planning process for the Hells Canyon Complex by meeting with the Baker
County Bull Trout Response Team to learn about concerns and try to
incorporate those concerns into the critical habitat designation.
Mining, agriculture, sport fishing, and landowner interests have all
been represented at meetings we have held between the publication of
the draft and the final recovery plan chapter for this unit.
70. Comment: What was the time-frame that the Recovery Unit Team
was working under?
Our Response: Coordination between the Service and ODFW has been
occurring informally since 1993. At the first formal working group in
1997, the USFS, ODFW, and BLM biologists and hydrologists met to share
information on bull trout, discuss critical data needs, and coordinate
activities that would lead toward development of a conservation
strategy for bull trout in the Pine Creek basin. Recovery Unit Team
organization began in 1999 with an invitation sent to agencies and
watershed councils to attend a series of workshops in eastern Oregon to
begin work on the recovery plan after the bull trout was listed in
1998.
Unit 13: Malheur River Basin
71. Comment: Two commenters asked about the suitability of habitat
for bull trout on the Little Malheur River due to elevated water
temperatures.
Our Response: Historical presence of bull trout in the Little
Malheur River has been documented by the USFS (1967). Documentation of
bull trout occupancy has also been provided by the Burns Paiute Tribe
as part of a life history study using telemetry techniques. We agree
that stream temperatures are high in the summer in the lower reaches of
the stream. However, water temperatures are cool enough during the
migration and overwintering time periods to provide habitat for bull
trout in the Little Malheur River. The Malheur River Basin unit was
excluded from critical habitat based on economic considerations under
provisions of Section 4(b)(2).
72. Comment: Are Summit Creek, Big Creek, and Lake Creek suitable
for bull trout? Does Crooked Creek provide suitable spawning and
rearing habitat?
Our Response: In defining spawning and rearing habitat versus FMO
habitat
[[Page 60008]]
for the proposed designation, we considered the areas for rearing as
those areas used by sub-adults, associated with a spawning area. Summit
Creek, Big Creek, and Lake Creek are suitable habitat for bull trout
from their confluences with the Malheur River to their sources. All
three creeks provide spawning and rearing habitat, and all are occupied
based on spawning surveys conducted by the USFS, ODFW, and the Burns
Pauite Tribe. Bull trout also have been detected in Summit Creek, Big
Creek, and Lake Creek during creel surveys conducted since 1968. In the
case of Summit Creek, where there is potential spawning habitat in the
upper reach, we assume that rearing for at least portions of the year
is possible throughout the length of the stream. In effect, there is an
overlap in habitat used by sub-adult fish between the definitions for
spawning and rearing and FMO habitat.
We recognize that habitat restoration would need to occur to
provide good quality rearing habitat. Habitat in Crooked Creek is
currently below optimal conditions for bull trout and requires habitat
restoration. Crooked Creek has documented bull trout occurrences, and
has been identified as essential to conservation of bull trout and to
provide for habitat expansion in the draft Recovery Plan. Because bull
trout have been documented rearing in Crooked Creek, we know they
expand their range into the stream when the opportunity arises. Use of
Crooked Creek would primarily occur in the spring time when water
temperatures are low, stream flows are high, and bull trout migrate
into tributary streams to forage. Only habitat degradation including
increased water temperatures and poor substrate conditions prevent them
from inhabiting the stream on a regular basis. The habitat in Crooked
Creek would primarily be inhabited by rearing and foraging bull trout
during seasons of year when bull trout are able to access the habitat.
The Malheur River Basin unit was excluded from critical habitat based
on economic considerations under provisions of Section 4(b)(2).
73. Comment: One commenter asked about the suitability of
Bluebucket Creek for bull trout, and another about Warm Springs
Reservoir.
Our Response: We anticipate increased bull trout use in the lower
reaches of the Middle Fork Malheur River as habitat is restored and the
bull trout population increases. The Malheur River Basin unit was
excluded from critical habitat based on economic considerations under
provisions of Section 4(b)(2).
Unit 15: Clearwater River Basin
74. Comment: Silver, Twentymile, and Wing creeks were documented as
occupied by bull trout in the South Fork Clearwater Landscape
Assessment done by the Nez Perce National Forest. The map in the
proposed rule lists these streams as Dl, D2, and D3, although they are
not shown on the map.
Our Response: Silver and Twentymile creeks are documented as
occupied bull trout FMO habitat. Wing Creek is unoccupied and is not
associated with a local or potential population and was removed from
the final designation. In addition, the Clearwater River Basin Unit
which includes these creeks has been excluded from the final critical
habitat designation under provisions of Section 4(b)(2) because of
cooperative efforts being undertaken as part of the Snake River Basin
adjudication.
75. Comment: Why is Freeman Creek listed as critical habitat for
bull trout? It is a small tributary of Dworshak Reservoir. There are
many other larger tributaries to Dworshak Reservoir that are
appropriately not listed as critical habitat for bull trout.
Our Response: Freeman Creek is occupied FMO habitat, but not
associated with a local or potential population. The stream is
essential as a cold water refugia and foraging habitat during some
portions of the summer when the water temperatures of Dworshak
Reservoir rise. The Clearwater River Basin Unit which includes Freeman
Creek has been excluded from the final critical habitat designation
under provisions of Section 4(b)(2) because of cooperative efforts
being undertaken as part of the Snake River Basin adjudication.
76. Comment: Three commenters stated that rural basin community
economies in the Clearwater have experienced serious downturns that are
tied to low elk herd populations, no significant timber harvest on
either national forest, and that critical habitat could result in
timber harvest prohibitions. Elk herds need the early seral conditions
that occur after burning, timber harvest, and mechanical treatment of
brush fields.
Our Response: There is no landscape prohibition to timber harvest
associated with bull trout critical habitat. In waters containing bull
trout, land management agencies are required to perform watershed
assessments and consult with us to determine what practices would
jeopardize or adversely affect critical habitat for listed species. The
protection of water quality and riparian corridors that will help bull
trout will most likely help other terrestrial species, such as elk. The
Clearwater River Basin Unit has been excluded from the final critical
habitat designation under provisions of Section 4(b)(2) because of
cooperative efforts being undertaken as part of the Snake River Basin
adjudication.
Unit 16: Salmon River Basin
77. Comment: Studies in upper Salmon River Basin streams and
enclosed bodies of water show the majority are occupied by bull trout,
the species does not appear to be threatened or endangered in this
section of the proposed designation and therefore should not be
included in critical habitat.
Our Response: Bull trout in the upper Salmon River basin are still
widespread in distribution. Our primary concerns for the species in the
area are the lack of habitat connectivity and activities that cause
reduced population levels and increased risk of local extirpation. We
are required to designate critical habitat for species listed under the
Act. Under the Act, a critical habitat designation establishes a
geographic area that is essential for the conservation of a threatened
or endangered species. The currently on-going 5-year review will
evaluate the status of species. The entire Salmon River Basin Unit has
been excluded from the final critical habitat designation under
provisions of Section 4(b)(2) because of cooperative efforts being
undertaken as part of the Snake River Basin adjudication.
78. Comment: Why are unnatural stream channels designated as
critical habitat, specifically those manmade channels created and used
for irrigation withdrawal and delivery?
Our Response: While these manmade channels provide suitable habitat
conditions and provide documented spawning and early rearing habitat
for bull trout, we determined that the channels are not essential for
the conservation of the species, and therefore, they are not included
in the final rule.
Unit 17: Southwest Idaho River Basins
79. Comment: Are Trail and Kettle Creeks local populations?
Our Response: Trail Creek is part of the Wapiti Creek bull trout
local population in the South Fork Payette Core Area (Service, in prep.
2004). While Kettle Creek does contain PCEs, it is not within an
identified bull trout local population and is not known to be occupied
by bull trout. Kettle Creek was removed from the final designation of
critical habitat. In addition, the Southwest Idaho River Basin has been
excluded from the final critical habitat
[[Page 60009]]
designation under provisions of Section 4(b)(2) because of cooperative
efforts being undertaken as part of the Snake River Basin adjudication.
80. Comment: There is no evidence that bull trout are migratory in
the Weiser River Core Area.
Our Response: At present, bull trout have limited movement
throughout the Weiser drainage because of dams, irrigation diversions,
and poor water quality conditions. It may not be possible for bull
trout to have a migratory component at this time, but the migratory
component may have existed prior to human development. The Southwest
Idaho River Basin has been excluded from the final critical habitat
designation under provisions of Section 4(b)(2) because of cooperative
efforts being undertaken as part of the Snake River Basin adjudication.
81. Comment: The Service did not consistently designate spawning
and rearing habitat below 5,000 ft (1,524 m) in elevation.
Our Response: We are aware of general relationships between
elevation and appropriate bull trout spawning and rearing habitat
identified in the published (Rieman 1993) and unpublished literature.
However, in proposing critical habitat for bull trout, we sought to go
beyond reliance on these general relationships and propose critical
habitat in areas that are supported by existing information documenting
spawning and rearing activity, or inferred based on habitat quality and
best professional judgment of biologists with local expertise. We
received many pertinent comments relative to the latter basis and have
refined this rule accordingly.
82. Comment: The Southwest Idaho recovery unit has met recovery
because of high bull trout abundance and distribution in some areas.
Our Response: We acknowledge that, within the Southwest Idaho Unit,
bull trout abundance is at or near recovered abundance levels in some,
but not all, of the subunits and core areas. We also recognize that
bull trout are relatively widely distributed in this unit. Current data
shows stable or slightly decreasing trends in the Middle Fork Boise
River from 1999 to 2002 (Salow and Cross 2003). There are areas that
are currently unoccupied that the Recovery Unit Team has identified for
assessment relative to the feasibility of establishing additional
populations to meet both abundance and distribution goals, however they
are not designated as critical habitat in this rule. Many threats to
bull trout and its habitat still remain in this area, such as habitat
degradation, fragmentation, blockage of migratory corridors, poor water
quality, and the introduction of exotic species. The status of this
recovery unit will be evaluated further as part of the Service's 5-year
review.
83. Comment: The Service has not sufficiently addressed impacts to
local governments. The collaboration required by the proposals has
significant potential to involve segments of the population that
historically have not played a large role. The Service did not involve
landowners and local government in this rulemaking process.
Our Response: Since 1998, we have consulted with stakeholders and
private individuals throughout the range of the species. This comment
was from Idaho where the Service has been working through the Southwest
Idaho Native Fish Watershed Advisory Group. The IDEQ was in charge of
this group until 2002 when the Idaho Office of Species Conservation was
assigned the lead. No meetings of this group have been convened since
the change in leadership occurred. We did hold nine public meetings and
the comment period was opened for 210 days in order to give the public
opportunity to provide comments on the proposed rule and draft economic
analysis.
Throughout the range, we contacted appropriate Federal, State, and
local agencies, scientific organizations, and other interested parties
and invited them to comment on the proposed critical habitat for the
Klamath River and Columbia River populations of bull trout. We also
notified the public of the proposal by placing information in local and
regional newspapers, providing this information to the media, and
placing it on our bull trout Web site.
Several exclusions are being made under Section 4(b)(2) that
acknowledge local efforts including exclusions related to the area
being addressed in accordance with the Snake River Basin Adjudication,
the Montana Bull Trout Restoration Plan, the Federal Columbia River
Power System, the Northwest Forest Plan, and management in accordance
with PACFISH/INFISH.
84. Comment: A commenter stated that as the Boise and Payette
Basins are dependent upon the operation of BOR facilities, modifying
the operation of those facilities, through the reallocation of water,
will exacerbate flooding and drought conditions.
Our Response: The section 7 consultation process between Federal
agencies involves an exchange of information and a balance between
fulfilling the action agency's mission and providing for the
conservation needs of listed species. As long as the action in question
avoids jeopardy to the species there is latitude in carrying out that
action. Consequently, we do not anticipate that consultation with the
BOR will result in any significant change in project operations
relative to drought and irrigation needs. Both the FWS and the BOR are
highly concerned with public safety relative to dam operations and
water management and will work to avoid any possibility of compromising
that safety. We have also excluded reservoirs from the designation in
anticipation that third party lawsuits could result in the consequences
you identify.
85. Comment: A commenter wondered why the cost of the valve
replacement project on Arrowrock Dam increased from $5.5 million to a
reported $16 million. Was that increase in cost associated with bull
trout critical habitat?
Our Response: No. BOR was originally going to open the ensign
valves gate and flush all of the water and sediment out of Arrowrock
Reservoir into Lucky Peak Reservoir and then later into the Boise
River. However, BOR was concerned that the ancient control gate would
not close because of its decrepit condition. Therefore, they chose an
alternative for valve replacement that was primarily an engineering and
safety consideration and not driven by critical habitat or section 7
consultation.
86. Comment: Fish screens and alteration to irrigation water
delivery on the Little Weiser and the main Weiser River to accommodate
bull trout existence, when there is no credible evidence of that
species is migratory, would be an economic impact that could put
ranchers and farmers out of business.
Our Response: Critical habitat designation does not alter land use
or require specific management actions. We do not have documentation of
historical presence of bull trout in the Weiser River below its
confluence with the Little Weiser River and that area was removed from
final critical habitat. In addition, streams in this area were excluded
in accordance with provisions in Section 4(b)(2) associated with
management of this area in accordance with the Snake River Basin
Adjudication.
Unit 19: Lower Columbia River Basin
87. Comment: The Service failed to evaluate the section 7
consultation biological opinion for the interim operation of the Lewis
River hydroelectric projects.
Our Response: The terms and conditions of the biological opinion
included the requirement to record
[[Page 60010]]
several conservation easements within 30 days of the FERC issuance of
the final order approving the application to amend the license for
these projects. However, these conservation easements were not in place
at the time of the publication of the proposed rule. Although the
proposed designation was not published until November 2002, the
biological opinion was not finalized until after the draft proposed
rule was in the approval process. These conservation easements are now
completed, and we revised the final designation of critical habitat in
the Lewis River critical habitat subunit (CHSU) based on the completed
conservation easements.
88. Comment: All areas above Merwin Dam should be excluded from
critical habitat designation because the benefits of exclusion outweigh
the benefits of inclusion. The costs in the DEA are outdated because
current passage costs through all three reservoirs are estimated to be
approximately $156 million and can be attributed to bull trout, salmon,
and steelhead.
Our Response: We have taken into consideration all comments
regarding critical habitat costs and this information is evaluated in
the final Economic Analysis.
We reexamined each segment of proposed critical habitat in the
Lewis River CHSU and excluded several stream segments and all
reservoirs. In addition, habitat was excluded under provisions of
Section 4(b)(2) associated with management of the Federal Columbia
River Power System. The Lewis River bull trout local populations are
the largest remaining bull trout populations in this CHU.
Unit 20: Mid-Columbia
89. Comment: There are socio-political issues (e.g., costs of
passage over the dams) regarding passage over the Yakima dams as
specified by the draft Recovery Plan, and listing critical habitat
above the dams may be inappropriate while passage problems still exist
and may continue into the future.
Our Response: There is suitable habitat currently above the dams
for multiple local populations. Most are not connected to downstream
habitat and that is likely a primary reason why the population numbers
are low in most of those local populations. Both FMO and spawning and
rearing habitat occur above the dams, and that such habitat is
essential to the conservation of the species. The reservoirs likely
provide important overwintering and forage habitat which may be one of
the reasons that the populations still exist above the dams. Recovery
tasks include the identification of problems and establishment of fish
passage. Coordinated efforts between BOR, Washington Department of Fish
and Wildlife (WDFW), NOAA-Fisheries, the Yakama Nation, Yakima Basin
Joint Board, and the Service are currently addressing priorities for
establishing passage.
Unit 21: Upper Columbia
90. Comment: Is the upper Icicle Creek, above Leavenworth Fish
Hatchery designated as critical habitat? If so, why, since there has
been a dam cutting off all up and down stream migration for the last 75
years, and how will it affect any new construction adjacent to Icicle
Creek?
Our Response: A resident bull trout population occurs in Icicle
Creek upstream of the hatchery, and after the planned removal of
artificial barriers in Icicle Creek, it is possible that migratory bull
trout will be able to access upper Icicle Creek. In 2002, migratory
sized bull trout were found upstream of the boulder area at rmi 5.4
(rkm 8.8). Areas along Icicle Creek were excluded from the final
designation under provisions of Section 4(b)(2) based on management
associated with the Federal Columbia River Power System.
91. Comment: Why is the mainstem of the Columbia River included in
the designation? Studies have not determined the importance of the
Wells Pool to the long-term fitness of the Methow River bull trout
population, and have not determined whether the mainstem habitat is
essential to the conservation of the species.
Our Response: The mainstem of the Columbia River has been excluded
under Section 4(b)(2) based on management associated with the Federal
Columbia River Power System. The Columbia River provides important FMO
habitat. There is documented use of the Columbia River by bull trout
from the Wenatchee, Entiat, and Methow CHSUs (BioAnalysts, Inc. 2002,
2003; Service 2002b, in prep. 2004b). Bull trout from three radio
telemetry studies have been documented migrating between the Columbia
River and the Wenatchee, Entiat, and Methow watersheds (BioAnalysts,
Inc. 2002, 2003; Service 2002b, in prep. 2004b; R.D. Nelle, pers. comm.
2004), including multiple migrations. So use of the Columbia River is
part of the migration pattern for bull trout (BioAnalysts, Inc. 2003;
Service 2002b, in prep. 2004b).
Adult migratory bull trout have been documented in the Columbia
River primarily between October and May (BioAnalysts, Inc. 2003).
Overwintering habitat, in particular, is often only used seasonally,
and especially if an area has warmer water seasonally bull trout may
migrate out. Several bull trout have been documented moving between the
Columbia River and the Twisp River, and have used the Wells Pool
(BioAnalysts, Inc. 2002, 2003). One bull trout tagged in the Wenatchee
River watershed was later located in the Wells pool near the mouth of
the Methow River (Service, in prep. 2004). The Columbia River appears
to provide essential FMO where a combination of water depth, lower
velocities, comparatively warmer water, and availability of food
provide suitable habitat for bull trout.
Unit 22: Northeast Washington
92. Comment: Because fish passage evidence demonstrates a
significant barrier at, or near, Metaline Falls, the critical habitat
designation and core areas should reflect this evidence and stop at
Metaline Falls.
Our Response: There are no known studies or work to assess fish
passage at Metaline Falls prior to the construction of Boundary Dam.
Boundary Dam Reservoir now inundates the historic Metaline Falls and
provides essential and continuous, suitable FMO habitat from Boundary
Dam upstream to Box Canyon Dam. Bull trout currently occupy the
reservoir and have been documented by R2 Resource Consultants, Inc.
(1998) and Curt Vail and T. Shuhda, USFS, pers. comm. (2001, 2002).
This reach of the Pend Oreille River provides FMO habitat and
connectivity between Slate and Sullivan Creeks and other tributaries in
the Boundary Reservoir, as well as connectivity to upper reaches of the
Pend Oreille River and Lake Pend Oreille.
93. Comment: The Pend Oreille River critical habitat subsection
appears to rely heavily on data that is ambiguous or based on limited,
if not single, data points to designate areas of bull trout critical
habitat.
Our Response: The Pend Oreille River mainstem is identified as FMO
habitat in the final critical habitat rule. The information provided
for the Pend Oreille River is summarized from several historical
documents (Smith 1936-38; Gilbert and Evermann 1895), independent
scientific studies (Ashe and Scholz 1992; R2 Resource Consultants, Inc.
1998; McLellen and O'Connor 2001; Giest et al. 2004; J. Maroney,
Kalispel Tribe, pers. comm. 2000, 2001, 2002; T. Shuhda, pers. comm.
2004), and biological assessments (Andonaegui 2003), which are cited
within the draft Recovery Plan
[[Page 60011]]
for the Northeast Washington Recovery Unit (Service 2002).
94. Comment: When water temperatures in the summer often exceed 70
[deg]F (21 [deg]C) in the Pend Oreille River, this would preclude the
use of the river by bull trout, with the exception of localized colder
water areas.
Our Response: We agree. Bull trout are most likely to rely on the
Pend Oreille in the late fall, winter, and spring when temperatures are
lower.
Bull trout use the Pend Oreille River primarily as FMO habitat, and
are documented to migrate to colder water as temperatures increase in
mid-summer. For example, bull trout found in the Pend Oreille River
below Albeni Falls Dam in August 2003 (Giest et al. 2004) moved from
cold water inputs into higher temperatures (greater than 70[deg] F (21
[deg]C) for short periods of time to forage or looking for passage.
Prior to the construction of dams on the Pend Oreille River without
fish passage facilities, adult bull trout likely moved into
tributaries, cold water upwellings, or migrated to Lake Pend Oreille as
the temperature increased to avoided unsuitable conditions. This is
further supported by Idaho Department of Fish and Game (IDFG) (2002),
and D. Giest (in litt. 2004) who tracked adult bull trout from the Pend
Oreille River to Lake Pend Oreille.
95. Comment: One commenter stated that one bull trout observed
above the Ione Municipal Dam suggests that it must have been the
progeny of a remnant resident population from above the dam, and must
be taken as speculation at this time. Cedar Creek, above Ione Municipal
Dam, has also been planted with brook trout.
Our Response: In September 1995, one bull trout was observed in
Cedar Creek above the Ione Municipal Dam during stream surveys
conducted by the Kalispel Tribe (T. Shuhda, pers. comm. 2002). There is
no information on the origin or life history form of this fish, but the
downstream barrier indicates that this bull trout must have been a
product of a spawning population above Ione Municipal Dam (USFS, in
litt. 1999c). A second bull trout was found in July of 2003, during
brook trout removal. This fish was captured below the dam, and a tissue
sample was taken before it was released (Sandy Lembcke, WDFW, pers.
comm. 2003), which may help identify its origin. Brook trout were
planted across the west and are present in the Pend Oreille basin. WDFW
has an active program to remove brook trout in streams where they are
negatively impacting native species, including Cedar Creek. There is an
annual multi-agency and Tribal effort to remove brook trout by
electroshocking and transporting the fish to suitable areas.
Furthermore, brook trout do not occur above Ione Municiple Dam and
habitat conditions favor native species in the area above the dam.
Cedar Creek contains essential PCEs that support spawning and
rearing habitat. The Ione Municipal Dam and water storage reservoir
located 1.2 mi (1.9 km) above the mouth of Cedar Creek represents a
fish passage barrier in this stream. This storage project was
originally built to provide a municipal water source for the City of
Ione, Washington, but is no longer used for that purpose. The City of
Ione is currently working with other entities to remove the dam and
restore fish passage and habitat. Portions of this area have been
excluded under Section 4(b)(2) associated with management under
PACFISH/INFISH and associated with economic impacts and cooperative
efforts associated with segments under 0.5 miles in length that are in
private ownership.
96. Comment: There is an inconsistency concerning measurements on a
number of tributaries between the potential habitat recommended by the
Technical Advisory Group (TAG) of the Washington Conservation
Commission's Habitat Limiting Factors Report (Andonaegui 2000) and the
extent of the proposed critical habitat designation.
Our Response: The TAG and the Service have different objectives and
guidelines for establishing bull trout habitat. The TAG has identified
areas for restoration activities and we have identified critical
habitat that is essential for survival of bull trout. Some
discrepancies may also occur from measurement techniques, but are
clarified with physical descriptions of starting and ending points.
Therefore, the discrepancy is discountable because of different agency
objectives and methods.
97. Comment: One commenter requested that Tacoma Creek, from rmi
2.0 (rkm 3.2) to rmi 9.0 (rkm 14.5), be changed from FMO to spawning
and rearing habitat designation.
Our Response: This area is now considered as spawning and rearing
habitat.
98. Comment: Should there be two separate PCEs for proposed FMO
versus spawning and rearing critical habitat due to the differences in
the life stages of bull trout using the different habitats?
Our Response: We considered several approaches to designating PCE's
including possibly having separate PCE's for FMO versus spawning and
rearing habitat. The PCEs describe those biological features associated
with sustaining bull trout populations including spawning and rearing
habitat, and as well as habitats to support other life stages and
strategies. After careful consideration, we adopted the approach
identified in the proposed rule to balance providing specificity with
PCE's that applied across multiple areas. We acknowledge that other
approaches would be possible.
Comments Related to the Economic Analysis
99. Comment: Numerous commenters stated that we neglected to
consider the economic consequences of the critical habitat proposal. A
DEA must be released for public comment before any proposed or final
critical habitat designations are made. Not providing the economic
analysis for review before, or at the time the proposed rule is made
available, does not meet the requirements of the Act (New Mexico Cattle
Growers Assn. v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th
Cir. 2001), and does not allow for meaningful public comments.
Our Response: We informed the public in the proposed rule that we
would conduct an analysis of the economic impacts of designating these
areas as critical habitat prior to making a final determination. We
announced the availability of the DEA with a notice in the Federal
Register, and opened a public comment period on the DEA at that time.
The public was able to concurrently review and comment on both the DEA
and the proposed critical habitat designation. We subsequently provided
this same information when replying to e-mail messages, telephone
calls, and during our many public hearings and public meetings held in
Montana, Washington, Oregon, and Idaho.
100. Comment: Many commenters felt that costs of critical habitat
outweighed the benefits and that all costs associated with critical
habitat should be included in the analysis.
Our Response: The final rule includes additional 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) so these areas have been excluded from
the final designation.
The primary purpose of the economic analysis is to estimate the
economic impact 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
[[Page 60012]]
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 decision-makers to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
The analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities 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. For example, regional management plans, such as
the Northwest Forest Plan, PACFISH and INFISH provide significant
protection to bull trout and its habitat while imposing significant
costs within the region. Economic impacts that result from these types
of protections are not included in the assessment as they are
considered to be part of the regulatory and policy ``baseline.''
101. 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: All potential costs associated with the designation
of bull trout critical habitat, including those related to BOR water
management, are addressed through the economic analysis and the
associated public comment period.
102. Comment: One commenter stated that the economic analysis may
substantially change the nature of the proposed critical habitat
designation.
Our Response: We agree that, based on the economic analysis, the
final designation of critical habitat may be different from that which
was proposed. Section 4(b)(2) of the Act requires the Service to
designate critical habitat on the basis of the best scientific data
available, after taking into consideration the economic impact, and any
other relevant impact, of specifying any particular area as critical
habitat. Based on the economic analysis, we may exclude areas from
critical habitat designation when the benefits of exclusion outweigh
the benefits of including the areas within critical habitat, provided
the exclusion will not result in extinction of the species.
103. Comment: One commenter stated that agencies should have an
opportunity to review and comment on the draft final critical habitat
designation rule.
Our Response: We are bound by a settlement agreement with
plaintiffs to finalize the bull trout critical habitat rule for the
Columbia and Klamath populations by September 21, 2004. Our process
provides the proposed designation and the Draft Economic Analysis (DEA)
of that proposal for public comment; we then assess those comments, and
revise and finalize the rule accordingly. If we were to provide an
opportunity for public comment after each cycle of responding to public
comments on the previous proposed rule, the process could go on
indefinitely. Additionally, we are bound by a settle agreement with
plaintiffs to finalize the bull trout critical habitat rule by
September 21, 2004.
104. Comment: The DEA minimized the cost of impacts to grazing
permittees.
Our Response: The DEA used consultations that occurred between 1998
(when bull trout were listed) and 2002 (when the critical habitat
proposal was published) to establish a baseline for predicting future
costs. There were only a few consultations available in the record to
determine future costs. The consultations did not result in substantial
reductions or changes to the permits. Therefore, the estimated cost of
future consultations was based on past consultations and determined to
be not substantial.
105. Comment: Communities and irrigators will be negatively
affected by the loss of irrigation water. Ripple effects to local
communities were not considered in the DEA.
Our Response: The DEA used consultations that occurred between 1998
and 2002 to establish a baseline for predicting future costs. There was
only one consultation available in the record to determine future costs
of irrigation modifications due to bull trout listing and critical
habitat designation. This single consultation from Oregon resulted in a
small reduction in water delivery and did not result in substantial
costs to the irrigator. The estimated cost of future consultations and
subsequent estimated cost to irrigators was not substantial. ``Ripple
effects'' due to the costs associated with irrigation were not included
in the EA because costs associated with irrigation were not predicted
to be substantial. We agree that the assumptions and lack of historic
data could have produced an underestimate of the costs to irrigation
operators.
106. Comment: Several comments suggested that the DEA significantly
understates administrative consultation costs to third parties (not
Service or Federal Action agencies). Additionally, one commenter felt
that the method of determining cost allocation between parties involved
in the consultation was unclear.
Our Response: Section 3.1.1 describes the estimation of
administrative costs per consultation for the Service, action agencies,
and private parties involved in section 7 consultations. Exhibit 3.1
shows that private parties are estimated to incur administrative costs
in the consultation process. These costs are estimated to average
between $1,200 and $4,900 for informal consultations, and approximately
$3,000 to $15,000 for formal consultations. It should be noted that
these estimates of administrative consultation costs are average costs.
In individual cases, costs bourn by the Service, action agencies, or
private parties may be higher or lower than the average estimates
given.
107. Comment: Several commenters questioned the accounting of
actions related to bull trout at the Corps Albeni Falls Dam. One
comment stated that the reduced power production at Albeni Falls had
not been recognized. Other comments indicated that fish passage costs
at Albeni Falls should be identified. Still other commenters wanted the
costs associated with Albeni Falls actions included in the DEA estimate
of section 7 bull trout costs. A specific comment related to potential
downstream flooding stated that costs that may also be due, in part, to
the winter ``draw-up.''
Our Response: The DEA considers the cost of various management
actions at the Albeni Falls Dam in the analysis in section 4.2.3. The
winter ``draw-up'' at Lake Pend Oreille was first proposed by the IDFG
in the early 1990s to benefit kokanee salmon (Oncorhynchus nerka) (and
indirectly bull trout which prey on the salmon). Based on an update of
an estimate developed by the Northwest Power Planning and Conservation
Council from the mid-1990s, the DEA reports the cost of lost power
production associated with the winter draw-up at $4.4 to $6.7 million
per year. This experimental draw-up was proposed and initiated prior to
listing and thus is not included as a section 7 bull trout cost.
[[Page 60013]]
Fishery passage studies are currently underway at Albeni Falls, and
the costs of these studies are included in the range of reported
section 7 costs. The potential facility changes at Albeni Falls
associated with fish passage are estimated to be $25 million and the
costs of two such fish passage facilities are included in the range of
future bull trout-related costs associated with the Federal Columbia
River Power System (2000) Biological Opinion (BO) implementation
(Exhibit 4.36). However, two of these are reported by Bonneville Power
Administration (BPA) as ``reimbursement account'' expenditures
authorized by the Northwest Power Act, and thus are not included as
bull trout section 7 costs as discussed in the DEA. With reference to
potential downstream flooding costs, the DEA cited a Corps analysis
suggesting that one of the possible causes of flooding in the Cusick
area may be operations at Box Canyon. Based on the comment, this
section has been edited to remove the reference to ``the failure of
Pend Oreille PUD to follow their agreement with the Calispell Creek
drainage district in 1997.''
108. Comment: Commenters questioned the impact of the assumptions
and statements contained in the DEA regarding the allocation of costs
between anadromous species and bull trout. Specifically, several
commenters felt the impact of such allocations understated bull trout-
related costs in areas where no anadromous species were present.
Our Response: The DEA employed specific assumptions about the
allocation of costs between listed anadromous species and bull trout in
several cases. In the cases of the Corps Willamette River dams and
reservoirs and the BOR Yakima impoundments, costs were allocated based
on the number of listed anadromous species. Based on updated
information supplied by the BOR, a new allocation for the Yakima system
anticipated project modification costs is included in the FEA.
Allocations of costs associated with Federal Energy Regulatory
Commission (FERC) relicensing and timber harvest were based on case
studies from habitat where anadromous species were present, and from
studies of habitat with no anadromous species. On average, we believe
that forecast annual section 7 bull trout costs are likely high
compared with actual future project modification costs. However, there
is no question that assumptions will affect the costs and that
incorrect assumptions have the potential to underestimate costs.
109. Comment: One commenter stated that the DEA focused on impacts
to the Service and action agencies leading to an understatement of
impacts to private parties, specifically irrigated agriculture.
Our Response: Section 4.1 of the DEA describes the types and
magnitudes of annual estimated economic impacts associated with section
7 bull trout consultation, including impacts on private parties, as
well as the costs to the Service and action agencies. We are involved
in every consultation and incur administrative costs conducting these
consultations. The action agencies are also involved in each
consultation as it is their actions that trigger the consultation
(i.e., Federal nexus). The third group impacted is private parties or
State and local agencies. These agencies, businesses, and individuals
incur administrative costs associated with consultation, and project
modification costs in some cases. Approximately 25 percent of the
nearly 10 million dollars estimated annually for administrative costs
associated with bull trout consultation activity will likely accrue to
third parties. In addition, the discussion of small business impacts
includes an analysis of impacts to small entities, including private
parties and businesses. This discussion has been modified in the FEA to
reflect the impact on irrigators of costs passed on by the BOR
associated with bull trout protection in the operation of their dams
and reservoirs.
110. Comment: Two commenters stated the recent BLM court decision
(Western Watersheds Project v. Matejko, Civ. No. 01-0259-E. BLW (D.
Idaho) March 23, 2004) should be considered in calculating costs
associated with interrupted irrigation water withdrawals. Another
comment suggested that this court decision is unlikely to have any
effect on irrigation water rights.
Our Response: Agricultural diversions with a nexus to BLM are
discussed in paragraph 318 of the DEA. BLM's position has been that
irrigation diversions are not ongoing activities and thus the agency is
not required to consult on them. A recent (March 23, 2004) court
decision now requires BLM to consult on these diversions. Snake River
Basin water rights are still being adjudicated and it will take a
number of years for the legal issues to work their way through the
courts. However, if there is a final determination that BLM must
consult on these diversions there could be a significant cost. At this
point, we have no basis for estimating either the timing or the outcome
of the decision.
111. Comment: The BOR provided new and updated information on costs
related to section 7 bull trout consultations at BOR facilities
throughout the designation. Specifically, new information on costs
associated with trap-and-haul operations at Boise River, Malheur River,
Powder River, and Payette River impoundments was presented.
Additionally, new information on the likely scope of modifications and
range of costs associated with consultation on dams on the Yakima River
system was presented.
Our Response: The BOR comments on the DEA bring to light new
information on the scope and magnitude of these future consultation-
related costs. This new information has resulted in several substantive
changes to the estimates in the FEA.
The BOR reduced estimates of annual study and trap-and-haul
operations in Idaho and Eastern OR from approximately $250,000 per dam
to $250,000 for all dams combined. This change is reflected in section
4.2.4 of the FEA. The other change is in the case of the five Yakima
Basin BOR dams where it was assumed that costly upstream and downstream
passage would be required for bull trout and steelhead. BOR suggests
that a relatively inexpensive periodic trap-and-haul program could meet
the needs of the bull trout within the Yakima System. Changes in these
passage costs are also reflected in section 4.2.4.
112. Comment: One commenter stated that the DEA should consider EPA
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA)-related actions in the Coeur d'Alene Basin in the estimated
costs for section 7 bull trout consultations.
Our Response: We have identified no specific ongoing or likely
future CERCLA-related consultations with associated costs outside of
the range of uncertainty reflected in the DEA. As noted in the DEA, in
many cases the USFS has maintained the position that in case of
remedial actions taken under CERCLA, consultation is not required by
the Act.
113. Comment: One commenter felt that the DEA failed to consider in
its cost estimates for dam modifications and the additional costs
associated with engineering and compliance actions.
Our Response: The comment noted that ``raw'' construction cost
estimates can understate actual total construction costs unless these
estimates are inflated to include engineering, design, and compliance
costs in the total. The DEA employs this method in the case of dam
[[Page 60014]]
modification on the Yakima System. Construction cost estimates for the
Yakima dam modifications were multiplied by 1.75 to account for design,
engineering, and compliance costs. In the case of the costs associated
with Corps dams on the Willamette River, estimated costs of project
modifications were based on budget estimates and past similar projects
and, therefore, already include the design and compliance cost
components.
114. Comment: Several commenters noted that the discussion of
socioeconomic characteristics of the proposed designation obscured the
fact that there are real differences between local areas within the
designation. Specifically, it was noted that while mining might account
for a small percentage of total income and employment in the
designation as a whole, in certain areas or counties it was much more
important.
Our Response: We agree that the significant socioeconomic
differences between critical habitat units, counties, and communities
located within this large designation are variable. Section 2 of the
DEA details some of these differences at both the unit level and at the
county level, describing differences in income, employment, land
ownership, and agricultural characteristics. A more general discussion
is presented in section 2 of the role of such activities as mining,
timber harvest, grazing, and recreation within the designation. While
unit and county level data for these latter activities are not detailed
within the DEA, differences in the reliance of specific units on these
economic activities are reflected in the unit level estimates of
economic costs in Appendix F of the report.
115. Comment: Several commenters stated that various projects
proposed on Federal land are sometimes dropped from further
consideration before the consultation process has even begun due to
species concerns. These commenters said the DEA failed to consider the
opportunity costs associated with these projects in estimation of total
costs. Another commenter noted that some proposed projects are not
economically feasible and would never be completed, independent of any
necessary consultations or regulations. Therefore, these projects
should not be included in estimates of costs associated with the
critical habitat designation.
Our Response: A review of the frequency of formal and informal
consultations suggests the potential opportunity costs associated with
dropped projects are within the bounds of uncertainty associated with
the projected number of formals. The number of projected future section
7 consultations involving bull trout is described in section 3.4 in the
DEA. The analysis projects a total of 52 formal consultations and 619
informal consultations annually. The data set for the informal
consultations is sufficiently large to identify a decline in
consultations as the initial workload of ongoing activities is taken
care of at listing. Accordingly, the projection for informal
consultations is based on the most recent year's consultation data.
However, the limited data set on formal consultation results in an
uncertain trend, and the annual number of formal consultations
projected in the DEA actually exceeds the average annual number during
the 4 years following listing. While at the individual project level
both commenters may at times be correct, there is no data specific to
dropped projects that would allow direct estimation of any such
impacts.
116. Comment: The sample size for the regression model used in the
DEA to estimate total fisheries-related project modification costs at
FERC licensed hydroelectric facilities was too small, too imprecise,
and provided unreliable estimates of costs.
Our Response: The model is provided as a point of information on
total fisheries-related costs. As part of the section 7 bull trout-
related costs, the main point of the analysis, are based on average
costs. With respect to the model, while the sample is small, the
statistics reported are correctly based on the model sample size and
degrees of freedom. The small sample size and associated variation in
estimates is reflected in the reported 95 percent confidence interval.
The alternative is to use the same estimate independent of sample size,
which would be contrary to intuition and the statistical evidence.
As noted in the DEA, such a relationship seems plausible given that
larger projects are likely to have greater impacts on fisheries and
require greater expenditures to remedy these impacts. The hydroelectric
power-related sections of the DEA, including the FERC section, were
reviewed by a technical advisor on hydroelectric power economics, Dr.
Lon Peters of Northwest Economic Research, Inc. Dr. Peters provided
feedback on the analytical methodology and the validity of the results.
This feedback was then incorporated into the DEA, as appropriate.
117. Comment: One commenter felt that the analysis provided no
specific estimates for costs related to a bull trout consultation on
FERC relicensing of Lucky Peak Dam on the Boise River.
Our Response: Cost estimates for the Lucky Peak facility are
included in the DEA. The FERC-licensed Lucky Peak hydroelectric plant
is located on the Boise River just upstream of the city of Boise, ID,
in the proposed Southwest Idaho River Basins Unit. Although not
specifically named, Lucky Peak is one of the 24 ``Large Hydro''
facilities for which total cost estimates are provided in Exhibit 4.18
in the DEA. Although not detailed in the report, the estimated section
7 bull trout-related costs for the Lucky Peak hydroelectric plant range
from approximately $15,000 to $22,000 per year.
118. Comment: One commenter stated that irrigation impacts within
the Salmon River Basin Unit related to USFS consultations would be
minimal due to the legal structure of water rights within the basin.
Our Response: The potential for USFS irrigation consultations and
associated changes in irrigation water use in the Salmon River Basin is
discussed in the DEA. The Upper Salmon River is described in the DEA as
the primary example of an area where there is potential for future
irrigation-related consultations with the USFS. The DEA uses a range of
zero to five consultations over the next 10 years (for the entire
proposed designation) with an average annual reduction in irrigation
withdrawals of 2,656 acre feet per consultation.
119. Comment: One commenter stated that the cost of developing HCPs
had wrongly been designated a baseline cost and not included in the
estimated costs presented in the DEA. Other commenters felt more
discussion of the time and money needed to develop HCPs was needed in
the report. One commenter alerted the Service to an HCP currently under
development in Montana, and provided cost estimates for its
development.
Our Response: The costs associated with the development of HCPs are
not considered a baseline cost in the DEA. New information on
individual HCP development has been provided through public comment,
and the estimated costs of developing these HCPs are included in the
FEA.
120. Comment: Two commenters felt that estimated impacts to grazing
leases had been underestimated in the DEA. One disputed the estimated
number of future annual grazing consultations, and another felt that
impacts to grazing on private lands had been understated. Others felt
that the DEA underestimated future section 7 costs related to
residential home building activities,
[[Page 60015]]
agricultural water users, impacts to motorized recreation on Federal
lands within the designation.
Our Response: A number of Federal grazing leases are often covered
by a single consultation. Approximately 4 years of consultation history
for the bull trout suggest that over the next 10 years, three bull
trout consultations with BLM and four with USFS involving grazing
activities can be expected. While reductions in grazing stocking levels
on Federal leases have the potential to impact associated private land
values, changes in stocking levels as reflected in the bull trout
consultation record have been few and minor. Estimated costs per
grazing consultation are based on a review of the suggested project
modifications in past bull trout section 7 consultations, and on
information obtained from BLM and USFS representatives on the
likelihood that future consultations will be similar in scope and cost.
The analysis of potential impacts to residential development is
provided in section 3.4 of the DEA. Our conclusions are based on
discussions with, among others, the National Association of Home
Builders and the Home Builders Association of Metropolitan Portland,
and supported by the consultation record.
Commenters noted that impacts to agricultural water users were
likely, due to costs associated with protection of bull trout being
passed on by the BOR to individual irrigators or water associations
receiving water from BOR projects. The DEA had incorrectly stated that
these costs would be born by the Federal government through the BOR.
The FEA provides additional language within the section 4.2 discussion
of BOR-related impacts to reflect this change. Additional discussion of
impacts to irrigators is also included in section 4.3. These changes do
not represent a change in the magnitude of estimated annual impacts,
but rather in the incidence of the impacts (what groups bear the
financial burden of the costs).
Through analysis of past formal consultations involving the bull
trout, no significant past impacts to motorized recreation were
identified. Conversations with USFS and BLM personnel did not reveal
that conflicts between motorized recreation on Federal lands and
protection of bull trout would be a source of significant future costs.
For this reason, no specific estimates of costs associated with this
activity were provided.
121. Comment: Many commenters stated the DEA failed to estimate
project modification costs associated with informal consultations on
bull trout, and costs often arise from an informal negotiation between
the Service and the applicant or action agency on the scope or design
of a project in order to avoid formal consultation on the action. They
noted that although no specific project modifications are laid out
within informal consultations, modifications and associated costs occur
and should be accounted for.
Our Response: The DEA does not provide estimates of project
modification costs for informal consultations. However, administrative
costs associated with informal consultations (estimated at $6.9 million
annually) are included in the DEA. It is possible that these
administrative costs do not represent a significant share of the
informal consultation-related costs, however, we have no basis for
using any other cost basis. The DEA approach on informal consultations
was endorsed by our peer reviewer Dr. Joel Hamilton, who commented that
``the draft report does a good job of discussing the issue of informal
consultations.'' The largest share of costs corresponding to the
proposed critical habitat designation is related to project
modifications associated with activities that enter formal consultation
(e.g., dam-related consultations). The focus of the DEA on those
activities that enter formal consultation is not likely to result in a
different ranking of units by relative cost than would occur with a
more detailed analysis which includes informal consultations.
122. Comment: A commenter stated that the analysis of Federal
Highway Administration (FHA) road and bridge costs underestimated costs
for Idaho Department of Transportation (DOT), and the method of relying
on information from Montana DOT was not applicable to Idaho. The
commenter also noted that the Idaho DOT undergoes many ``no effect''
determinations for projects, and the costs of these actions are not
considered.
Our Response: The basis for predicting the number of annual future
formal consultations within the designation is a review of the formal
consultation record for the period from listing in 1998 to November
2002. The sample of formal consultations selected, while not from all
regions within the designation, represent a cross-section of settings
common to FHA projects within the designation. We believe this sample
represents a realistic picture of typical consultation-related costs
likely to be incurred throughout the designation. Regarding the issue
of ``no effect'' determinations for projects that may or may not
include bull trout concerns, cost estimates provided for informal
consultations include the administrative cost of consulting incurred
through these ``no effect'' analyses, and the associated letters of
concurrence from the Service.
123. Comment: Many commenters stated that the DEA analysis was too
narrow in that it failed to recognize all of the indirect effects
associated with bull trout consultations. Indirect impacts or costs
include impacts to downstream water users, river transportation,
downstream power producers, other species, costs to the Federal
government of settling ``takings'' cases, and costs associated with
conducting profitability analyses on mines involved in section 7
consultations.
Our Response: We agree that there are indirect impacts associated
with bull trout consultations. However, the most significant of these,
impacts to downstream power producers, have been quantified, and the
other indirect impacts are likely to not be significant.
Impacts on downstream power producers are included in the section 4
estimates of costs associated with shaping salmon flows at Libby and
Hungry Horse Dams to benefit bull trout as well as changes in Albeni
Falls operations to benefit kokanee, and indirectly bull trout.
Regarding impacts to downstream river transportation, the water volume
impacts associated with bull trout protection are extremely small in
the context of total stream volume on navigable waters. In the case of
shaping flows from Libby and Hungry Horse Dams, the possible navigation
impacts are further minimized by the releases running through large
storage reservoirs (Grand Coulee Dam) before reaching the navigable
portion of the river used by most commercial transportation.
Furthermore, given the preponderance of Federal land in the
designation, and the general location of proposed critical habitat, it
is not foreseeable that significant costs associated with new State and
local regulations, project time delays, or stigma will result from the
designation.
124. Comment: One commenter noted that the DEA relied on current
Service policy to favor negotiation rather than irrigation restrictions
in cases of impacts to bull trout. The Service could change this
direction at any time and render the estimates of losses to irrigators
presented in the DEA invalid.
Our Response: The commenter is correct in noting that responses by
the Service to threats to the bull trout or its habitat could possibly
change from one of ``dialogue and negotiation'' and use of
[[Page 60016]]
``prosecutorial agreements'' to reduce illegal take to more direct
action, which could involve reducing irrigation withdrawals in some
cases. It was in recognition of this potential change that the
estimated costs associated with future limitations of withdrawals is
presented as a range, from zero to $1.6 million per year (based on five
cases of limited irrigation withdrawals). The potential for these types
of irrigation reductions is also constrained by the location of many,
but not all, diversions. Many diversions are located on mainstem
rivers, and the location of these diversions and their operation often
present no conflict with protecting bull trout. This is because the
bull trout only use the mainstem rivers to over-winter, while
irrigation diversions and the potential for dewatering mainly occur in
the summer and fall. The FEA clarifies the potential conflicts between
bull trout protection and irrigation withdrawals.
125. Comment: A number of commenters stated the DEA incorrectly
assumed that irrigators within the designation could purchase
replacement water for their crops or livestock if they were to lose
diversion rights to instream flow requirements.
Our Response: Project modification costs related to reductions in
irrigation withdrawals are discussed for the BOR nexus and USFS nexus
in the DEA. The value of foregone water use for BOR is based on
marginal prices in the irrigation water market that has developed in
the Yakima basin. The value for water for the USFS nexus is based on
the high end of water lease purchases made by the Washington Department
of Ecology. While these values are based, in part, on purchases, they
are reflective of the opportunity cost of foregone water use (e.g., the
value of crop losses) and are consistent with other approaches to
valuing water, such as a production function or farm budget approach.
Accordingly, their use in the DEA is consistent with the case where the
irrigator loses the use of the usual source of water and is unable to
purchase water elsewhere (the irrigation-related increment to
production is lost). The agriculture irrigation-related sections of the
DEA were reviewed by a technical advisor on agriculture and water
resource economics, Dr. Joel Hamilton, Emeritus Professor of
Agricultural Economics and Statistics at the University of Idaho. Dr.
Hamilton reviewed the analytical methodology and the validity of the
results, and opined that the value of $40/ac-ft for BOR water was
appropriate and that the value of $127/ac-ft for USFS water likely
overestimates the USFS-related section 7 impacts.
126. Comment: Several commenters stated that more contacts with
private individuals and small businesses should have been included in
the analysis.
Our Response: A wide variety of data sources are utilized in the
DEA. The data sources relied upon are detailed in footnotes throughout
the report, and discussed in section 1.4. Wherever possible,
information provided by informed parties was confirmed by published
data sources. Given the large geographic scope of the designation and
analysis, however, extensive contacts with individual small businesses
and private parties throughout the designation were not possible. The
FEA is based on the best available information, which includes
discussions with informed parties and stakeholders, as well as
published data sources. The DEA was reviewed by three independent
technical advisors: Dr. Joel Hamilton, Emeritus Professor of
Agricultural Economics and Statistics, University of Idaho (agriculture
economics); Dr. Lon Peters, president of Northwest Economic Research,
Inc., a Portland-based firm that provides economic consulting services
to electric utilities (hydroelectric power economics); and Dr. Roger
Sedjo, senior fellow and the director of Resources for the Future's
forest economics and policy program (timber economics). Their feedback
was incorporated into the FEA, as appropriate.
127. Comment: A number of commenters noted that many costs
associated with modifications to BOR dams and reservoirs are passed on
to irrigators receiving water from the impoundments, and the DEA
suggested that these costs were borne entirely by the BOR.
Our Response: The DEA incorrectly assumed all section 7 bull trout
costs associated with BOR impoundments would be borne by the agency. In
fact, in many cases, these costs are passed on to the irrigators
benefiting from the projects. This fact has been included in the
discussion of the costs associated with BOR facilities in the FEA,
along with new information on costs associated with bull trout project
modifications at BOR facilities throughout the proposed critical
habitat designation.
128. Comment: Two commenters suggested the need to consider costs
associated with National Pollutant Discharge Elimination System
wastewater discharge permits. Additionally, significant costs in the
closure of the Hecla Grouse Creek Mine could result from EPA
consultation on Idaho Statewide water quality standards.
Our Response: Ongoing costs related to consultation at the Hecla
Grouse Creek mine within the Coeur d'Alene Unit and the Thompson Creek
Mine within the Salmon River Unit have been incorporated into the FEA
discussion of mining impacts. Certain general annual cost estimates
associated with these operations have been incorporated (an estimated
$62,000 per year for each of the two mines). There is much uncertainty
regarding potential costs associated with Service and National Oceanic
and Atmospheric Administration (NOAA-Fisheries) consultation with EPA
on Statewide Idaho water quality standards. There is no currently
available information indicating that this consultation will conclude
with new or interim standards that will significantly impact the final
reclamation costs of the Hecla Grouse Creek mine. To be included in the
DEA, costs have been reasonably foreseeable within the 10-year time
frame of the analysis.
129. Comment: Several commenters stated that estimated costs to
recreation were underestimated in the DEA, such as the loss of
recreational fishing opportunity associated with any removal of
existing brook trout populations from areas of bull trout critical
habitat.
Our Response: We do not believe these costs are understated as
offsetting improvements to other fisheries have resulted from fisheries
management-related actions. Such actions are among the specific
activities consulted on by a number of agencies. Opportunity cost
estimates for formal consultations are described in section 4.
130. Comment: Several commenters stated the DEA had not
sufficiently estimated or had underestimated impacts to small
businesses, private landowners, developers, or State and local
entities. The small business analysis contained within the DEA did not
fully address impacts to small businesses and small communities
Our Response: The small business analysis is provided in section
4.3 where impacts to agricultural producers, hydroelectric utilities,
and miners are identified and quantified. The general focus of the
comments was on the failure of the DEA to quantify the economic impacts
on a particular subunit, community, local economy or local economic
sector. None of the specific entities identified are ones for which
there is evidence of substantial or clearly defined impacts from the
proposed designation over and above the impacts already identified and
[[Page 60017]]
quantified in the referenced sections of the DEA.
131. Comment: Several commenters stated that the use of a 10-year
time frame for consideration of most impacts estimated in the DEA was
too short. Alternative time frames from 20 to 50 years were suggested.
Our Response: To produce credible results, the economic analysis
must consider economic impacts that are reasonably foreseeable. Based
on available data, the 10-year time frame used in the DEA for the
majority of activities was most fitting for this analysis. In cases
where more certainty exists as to future consultations, a longer 50-
year time frame was employed. Given the information available from
action agencies on likely levels of future projects, we believe the 10-
year time frame to be most appropriate for all non-FERC-related
consultation activity.
132. Comment: A large number of commenters stated that the overall
estimates presented in the DEA were too low. Alternatively, two
comments were received suggesting that the estimates were too high.
Our Response: While different commenters felt that the estimates in
the DEA were either too high or too low, we concur with the judgments
of our peer reviewers that the estimates are high. The DEA was reviewed
by three independent technical advisors, and were each asked to read
sections of the draft report, and provide feedback on the analytical
methodology and the validity of the results. The peer reviewers found
the approaches used to analyze impacts generally appropriate, and in
the case of USFS-related irrigation and timber impacts, the analytical
methodology likely overestimates section 7 impacts.
133. Comment: Multiple commenters stated that the methodology used
to account for impacts to unoccupied habitat in the DEA underestimated
impacts, specifically in units with a significantly higher percentage
of unoccupied habitat than the average for the entire designation.
Our Response: Unoccupied habitat has been removed from the final
designation. We disagree with the comment as the procedures used to
estimate costs relevant to unoccupied habitat are theoretically and
computationally sound. The methodology used in the DEA to inflate
estimated consultation and project modification costs predicted for
occupied bull trout critical habitat is presented in two places within
the body of the report, and the estimated annual cost for each unit is
adjusted for the respective percent of unoccupied habitat for the unit.
For example, the Hells Canyon Complex Unit is estimated to have total
annual consultation-related costs of $1.9 million to $2.3 million. Of
this amount nearly half ($0.9 million to $1.1 million) is attributable
to unoccupied habitat. Across units, the percent of unoccupied habitat
ranges from zero to 72 percent.
The computation in the DEA related to unoccupied habitat is based
on the assumption that the future consultation rate in unoccupied
habitat will occur at the same rate as observed for occupied habitat in
the past. If anything, this approach is likely to overstate future
consultations in unoccupied habitat for three reasons: (1) The DEA
measures coextensive costs, and the designation of critical habitat in
currently unoccupied habitat is unlikely to increase consultations in
this type of habitat related to listing; (2) the past consultation
record actually includes some consultations in unoccupied habitat, yet
these are all allocated to occupied habitat for purposes of computing a
consultation rate (which leads to an overstatement of the actual rate
of past consultation on occupied habitat); and (3) unoccupied habitat
in the proposed designation is almost entirely ``unknown occupancy.''
Some share of these areas may have no bull trout present now, or in the
future, which will limit the impact and rate of consultations in these
areas relative to occupied habitat.
134. Comment: Several commenters noted that estimates for a number
of activities presented a wide range of costs which limits the
usefulness of the results of the analysis.
Our Response: Three specific activities (USFS timber harvest,
irrigation diversions, and FERC hydroelectric relicensing) have a large
range in the estimated project modification costs. The source of this
variation is the real uncertainty which is associated with future
locations and costs of projects involved in these activities.
135. Comment: Several commenters questioned the estimates of
impacts to placer, lode, and suction dredge mining presented in the
DEA, as well as the validity of assumptions use, in the John Day River
Basin and Hells Canyon Complex Units.
Our Response: The DEA estimates that approximately 100 formal
consultations on placer operations in these drainages will occur during
the 10-year analysis period (five annually, per drainage). This
estimate is consistent with authorization of existing mines in the
drainages as their typical 10-year permit expires. In both the North
Fork John Day and the Powder River Drainages, recent BOs for ongoing
operations covering a large number of mines suggests that there is no
significant backlog of formal mining consultations in these areas. The
DEA estimated mining-related project modification costs in eastern
Oregon associated with specific terms and conditions from BOs.
Additional information received through the public comment period
shows the DEA was in error in attributing in-stream work window
limitations to bull trout consultations. The in-stream periods
referenced in the terms and conditions of the mining BOs are actually
ODFW regulations that protect fish and wildlife resources. The
reference to them in bull trout BOs is simply to further endorse
compliance with these windows. Costs estimated with these instream
windows have been removed in the FEA to reflect the nature of the
baseline for these regulations. Costs associated with constraints on
stream crossings are still included in the FEA, and these costs are
likely to range from zero to several thousand dollars per year. An
estimate of $500 per year per operation is used in the analysis.
136. Comment: One comment letter asked why the DEA contained no
analysis of potential costs associated with the Post Falls Dam.
Our Response: The Post Falls Dam, owned by Avista Corporation, is
located approximately 9.0 mi (14.5 km) below Lake Coeur d'Alene. The
hydroelectric plant is not located on water currently proposed as bull
trout critical habitat, nor does its operation directly affect
downstream critical habitat.
137. Comment: Several commenters wanted to know: (1) If BPA agrees
with the estimates of Columbia River hydroelectric generation impacts
presented in the DEA; (2) if the costs associated with shaping salmon
flows out of Libby and Hungry Horse Dams to benefit bull trout was
included in the total cost estimates presented in the DEA; and (3) how
were the costs associated with FERC relicensing derived?
Our Response: The estimated Columbia River hydroelectric generation
impacts reported in the DEA were provided by BPA. Costs associated with
shaping salmon flows are included in total bull trout-related costs as
$2.0 to $4.0 million per year (based on BPA references at footnote
124). These costs are not section 7 bull trout-related costs as BPA
includes these costs in its accounting for expenditures authorized by
the Northwest Power Act. Costs for FERC relicensing were derived by
[[Page 60018]]
developing case studies of all completed hydro relicensing
consultations (as well as others that are either near completion or
provide additional information), and using the average section 7 bull
trout-related costs from these case studies as an estimate for future
consultations. Future consultation timing and frequency are based on
the FERC relicensing schedule.
138. Comment: One commenter felt that the use of profitability in
assessing impacts to placer, lode, and suction dredge mining was
incorrect, and should be based on spending by miners in local
communities.
Our Response: The general lack of data on production and expenses
for small scale placer or lode operations in the region make estimation
of profitability from these mines difficult. In an industry where
operators may not report revenues or expenses in an organized or
consistent manner, we believe the procedure used to estimate impacts in
the DEA provides the most direct estimate of lost value to the miners.
139. Comment: Several commenters stated that the DEA downplayed the
role of traditional resource-based jobs in small rural communities, and
the loss of these jobs is economically and socially difficult for rural
communities.
Our Response: The commenters are correct in pointing out that
shifts in economic base can be difficult for some rural areas, and
economic change can negatively affect small rural areas. Within the
Interior Columbia River Basin, while some areas within the region have
seen tremendous economic growth in recent years, the economic output of
other more rural counties has been stagnant or shrinking. Rural
counties frequently have an even higher dependence on agricultural
production than the regional or even State-level statistics suggest.
140. Comment: Many commenters faulted the DEA for only performing a
regional economic impact analysis for impacts in the Yakima drainage.
Our Response: After reviewing these comments, we conclude that our
level of effort on regional economic modeling was appropriate. The DEA
presented analyses of impacts associated with critical habitat
designation for the bull trout using two different accounting
frameworks, which included an economic efficiency framework and a
regional economic impact framework. A commonly used method of
estimating regional economic impacts is I-O modeling. The DEA relied on
published I-O model results in its analysis of impacts to the Yakima
Basin from reductions in available agricultural water. I-O modeling is
only appropriate where anticipated economic impacts are substantial and
clearly defined as to the local area of impact. While many of the
estimated impacts associated with critical habitat designation
contained in the report (e.g., timber, mining, agriculture water) are
substantial when considered for the entire designation, the potential
locations of these estimated impacts are extremely uncertain. Without
an acceptable level of certainty as to where impacts might occur within
the designation, definition of the relevant area of economic analysis
for the I-O model is impossible. It would be possible to model all
estimated impacts in the context of the economy of the entire
designation. However, the results of this model would show trivial
impacts in comparison to the large and growing economy of much of this
four-state region. The DEA presented regional economic impact estimates
for the one area (Yakima Basin) where predicted impacts were reasonably
foreseeable and substantial.
141. Comment: Several alternative analyses of potential losses to
local area economies were presented by commenters for the Klamath River
Basin Unit, in Baker County, OR, and the Deschutes River Basin Unit.
These analyses provided detailed impact information at the subunit
level, and, in each case, are driven by an assumed level of change in
some base sector of the local economy.
Our Response: The referenced comments provide detailed and
analytically appropriate analyses of economic impacts. However, the
first step in these analyses is missing in that evidence consistent
with observable data is not presented for substantial and clearly
defined changes to the base economic sectors that derive from the
proposed designation. Specifically, the assumed reductions in economic
output based on irrigated agriculture (for example, ranging from 0 to
90 percent in the Deschutes River Basin and 25 to 60 percent in Baker
County) are not supported by the historical record or expectations
regarding the outcome of future actions to protect the bull trout. We
conclude that the level of detail and scope in the DEA regarding local
economic impacts is appropriate.
A detailed regional economic modeling effort may be appropriate
when economic impacts of the proposed designation are substantial and
clearly defined in the analysis. The estimated impacts presented in the
DEA for the Deschutes River and Klamath River basin units and Baker
County area are consistent with the pattern of bull trout consultation
impacts in these areas as adjusted for the extent of unoccupied habitat
within the units. The local area impact analyses presented by the
commenters provided detailed information on the socioeconomic structure
of these local areas. The analyses were theoretically appropriate and
well presented. In our opinion, however, the estimated impacts (driven
by assumed exogenous shocks to local economies) are not consistent with
the observable impacts of several years of formal consultation activity
on the species. For this primary reason, the methodology and estimated
results presented in the DEA were retained in the FEA.
142. Comment: Several commenters asked why a number of additional
formal bull trout consultations were not cited in the DEA.
Our Response: A census of formal bull trout section 7
consultations, from the listing of the species in 1998 to the proposed
designation of critical habitat in November 2002, was collected and
analyzed for the DEA. Formal consultations on the species continue, and
some of the formal consultations that commenters noted were missing
from the DEA occurred after the end date for the census of
consultations performed for the economic analysis (November 1, 2002).
The analysis of costs associated with section 7 consultation on the
bull trout relied on a broad sampling (and for some activities a
census) of formal consultations. In cases where significant
consultation activity (not represented by the consultation record
examined) occurred after November 2002, these new consultations were
considered in the final analysis. In other cases, where new
consultations represented only a continuation of the frequency of past
consultations for an agency or activity, these consultations were
estimated to have no significant impact on the estimated impacts in the
DEA.
143. Comment: Several commenters questioned the appropriateness of
the water values used in the analysis. Some thought the values used
were both too high and others thought they were too low.
Our Response: We disagree with the view that water values used in
the DEA are too low. It is possible that the estimates used to value
irrigation water withdrawals with a USFS nexus are high. Two different
estimates of the value of lost agricultural water were utilized in the
DEA. In the discussion of potential impacts to agricultural water users
within the Yakima Basin, the DEA cites an average marginal value of $40
per acre foot for water diverted from
[[Page 60019]]
agricultural production to be used in instream flow protection. This
value, from a report by the Montgomery Water Group (footnote 164),
represents the estimated marginal value per acre foot to agricultural
production within the basin for a reduction of 48,000 acre feet.
While it is acknowledged that marginal water value to some
producers of higher value crops may exceed the average $40/af value
used, other producers may have a marginal value less than the $40. The
Center for Watershed and Community Health, Portland State University
report cites 22 recent water leases for instream flows in Oregon that
averaged $23/af. The report also cited seven water leases or purchases
in Washington ranging from $27 to $79/af. The $40 value used in the DEA
is not based on observed water transfers within the basin, but on an
analysis of the marginal productivity of water within the Yakima Basin.
A second value used in the analysis of losses potentially associated
with reductions in agricultural water diversions on USFS lands was
$127/af. The BOR suggested a value in the range of $50 to $75/af. In
the case of USFS diversions, the arguably high $127/af was used in
recognition of the large degree of uncertainty as to where and when
such reductions might occur, and what types of land uses would be
affected. The $127/af is based on actual observed sales of water rights
reported by the State of Washington Department of Ecology. In summary,
the $40/af value was used for the Yakima Basin analysis because it was
from a current comprehensive study of water use and values within that
basin, and as such, represented the best information available for that
region. For valuing water in USFS diversions, the $127/af was used
because of uncertainty about the location of impacts, and a lack of
site specific water values for all possible alternative impact areas.
144. Comment: Numerous commenters were concerned about the deletion
of a discussion of potential economic benefits associated with bull
trout critical habitat from the DEA prior to public release of that
document.
Our Response: Our Division of Economics removed the 59-page
benefits analysis from the DEA because of concerns over the methods
used. These methods are known as contingent valuation and benefits
transfer.
A contingent valuation involves asking someone how much they would
pay to continue a specific activity that is threatened by pollution or
other factors. For example, one might ask an angler how much he or she
would spend to continue fishing for bull trout in clean rivers. Some
economists doubt the accuracy of such analyses because of their
hypothetical nature and because respondents do not have to follow up
their answers with actual payments. Therefore, they may tend to over-
value the benefit.
The DEA's discussion of the value of bull trout recreational
fishing is a benefits-transfer analysis. Benefits-transfer analyses use
research conducted for one species or purpose to extrapolate results
for another species or purpose. Although benefit-transfer analysis can
provide a quick, low-cost approach for obtaining desired monetary
values, the methods are often associated with uncertainties and
potential biases of unknown magnitude and should not be used without
explicit justification.
We must remember what these analyses are used for helping the
Secretary to decide whether to exclude areas and whether the exclusions
outweigh the conservation benefits of inclusion. So, we are looking at
the burden on the public of the regulation, and whether any areas have
a disproportionate burden. We balance that against the benefits of
including that area--including the benefits of the area to the species
and the benefits of the species' existence and recovery. We do this in
the 4(b)(2) discussion in our rules. We believe that monetizing
trivializes benefits because there are no widely accepted ways for
placing a dollar value on a biological benefit.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for her failure to adopt
regulation consistent with the agency's comments or petition.''
Comments received from States regarding the proposal to designate
critical habitat for the bull trout are addressed below.
Oregon
State Comment: In Unit 1, Upper Klamath Lake CHSU, what was the
rationale for designating critical habitat on West Canal in the Upper
Klamath Subunit?
Our Response: The landscape along the west side of Agency Lake has
been heavily modified. Sevenmile and West canals intercept flows from
Sevenmile Creek and Canal, Fourmile Creek and Slough, Crane and Crystal
Creeks, and Cherry, Rock, and Threemile Creeks, and provides
connectivity between these streams and Agency Lake. Since West Canal is
now the only aquatic connection between isolated populations of bull
trout in these headwater streams and winter foraging habitat in Agency
Lake, it is included in the designation.
State Comment: In Unit 1, Upper Klamath Lake CHSU, there is no
Heavenly Twin Lake in this unit. There is a Big Heavenly and a Little
Heavenly Twin Lake. There may be a hydrologic connection at some time
during the year, most likely during snowmelt.
Our Response: Critical habitat maps were compiled from various
sources. We relied predominantly on StreamNet as the largest and most
readily available database. USFS databases were also used where stream
data was not available in StreamNet. Additionally, many maps (including
those generated by the State of Oregon (Klamath-Lake Forest Protection
District, Oregon Department of Forestry, 1995) and the USFS (1994) do
not differentiate between Big and Little Heavenly Twin Lake, but rather
refer to them collectively as Heavenly Twin Lakes. Based on additional
review, it appears that stream flows in Rock Creek becomes seasonal
above the 5,400 ft (1,645 m) contour. Therefore, on reconsideration of
available data, we concur that the connection between the Heavenly Twin
Lakes and Rock Creek is not suitable for inclusion in critical habitat.
Idaho
State Comment: In the Coeur d'Alene Lake CHSU, bull trout in the
St. Joe system primarily use the upper basin (Mosquito Creek) for
spawning and rearing. Achieving the stated recovery target for the St.
Joe (800 adults) will likely require more than eight streams, yet a
number of tributaries to the St. Joe (downstream from the North Fork)
are not likely to ever support spawning and rearing. It is not clear
why Eagle Creek is proposed while other nearby streams with similar
characteristics are not.
Our Response: Eagle Creek contains PCEs and was proposed for
critical habitat because it has recent and historic observations of
bull trout. Portions of Eagle Creek have been excluded under provisions
of Section 4(b)(2) associated with management conducted in accordance
with PACFISH/INFISH. The primary reason why Skookum Creek (and other
nearby streams that are tributaries to the St. Joe with similar
characteristics) were not proposed as critical habitat is because we
were not aware of bull trout being observed there either presently or
historically (Fields 1935; Service 2002). With at least 16 other
tributary streams or stream reaches known to have reproduction
occurring in recent years, proposing Skookum Creek and other
[[Page 60020]]
habitats was not considered essential to the conservation of the
species.
Washington
State Comment: WDFW electrofished several locations of the Little
Tucannon in 2002 to try to find bull trout after the technical review
team indicated possible use, but did not locate the species. Please
check your reference to ensure this statement is correct, as WDFW has
no knowledge of bull trout in the Little Tucannon River.
Our Response: The USFS in litt. (2002) documented a single bull
trout in the Little Tucannon River stream survey report near the end of
reach II. This report concluded that the Little Tucannon River is in
good to excellent condition overall and provides excellent fish habitat
for both native and migrating fish species. The Little Tucannon River
is also identified in the Draft Snake River Washington Recovery Unit
Chapter as a priority stream. While reproduction is not known to occur
presently in the Little Tucannon River watershed, it is important to
the conservation of bull trout in the Tucannon River Core Area as it
likely provides suitable habitat for rearing, cold water refugia, and
foraging. The Little Tucannon River watershed may also provide habitat
to expand the spawning distribution and abundance of bull trout in the
core area. Portions of Little Tucannon River have been excluded under
Section 4(b)(2) associated with management in accordance with PACFISH/
INFISH.
State Comment: The South Fork of Asotin Creek was not included in
the proposal. If George Creek and some of its tributaries are included
as critical habitat based on possible use presently, or in the future,
the South Fork should also be included. It has potential for at least
bull trout foraging, if not spawning and rearing.
Our Response: During the recovery planning process, the South Fork
of Asotin Creek was described as not having bull trout as they were not
observed during snorkeling surveys in 1993 (USFS, in litt. 1993). Also
during the recovery planning process, the South Fork of Asotin Creek
was not identified as a priority stream essential for the recovery of
the species. Therefore, this stream is not considered to be critical
habitat.
State Comment: No bull trout have been documented in Hefflefinger
and Wormell Creeks. They are small streams that do not appear to have
suitable habitat for bull trout spawning or rearing, and may not be
appropriate for listing as critical habitat.
Our Response: We concur and we have removed these streams from the
final critical habitat designation.
State Comment: Charlie Creek is used by bull trout, but since much
of the upper portion of the stream is dry, or nearly so, in the summer,
we recommend terminating the upper extent at the east edge of section
7, Range 43 East, Township 9 North.
Our Response: Several miles of Charlie Creek have been excluded
under provisions of Section 4(b)(2) associated with management in
accordance with PACFISH/INFISH. Even though the stream channel is dry
or nearly dry during the summer, it provides important habitat during
other times of the year, and during wet years when it maintains more
flow. Also, because Charlie Creek is clearly essential to water supply
during the summer as well as other seasons, protecting the channel
morphology and watershed upstream of the spring is essential. For
example, if an activity significantly increased bedload movement and
fine sediment transport in the upper extent of the stream which is
recommended for removal, the spring could be altered (filled or
capped).
Montana
State Comment: Dry Gulch, a tributary to Granite Creek in the Lake
Pend Oreille watershed, and Copper Creek, a tributary to the Bull River
watershed in the lower Clark Fork drainage, should be removed from
critical habitat because they are intermittent streams that do not
provide spawning or rearing habitat.
Our Response: Dry Gulch was initially included due to the
information provided in the Lake Pend Oreille Bull Trout Conservation
Plan produced by the State of Idaho. Copper Creek initially was
included due to the information provided in the Montana Bull Trout
Scientific Group (MBTSG) status report produced by the State of
Montana. Further information indicates the commenters are correct and
the streams have been removed from the final rule.
State Comment: In Montana, project benefits from three water
storage projects, such as protection of instream flow and mitigation of
warm downstream water temperatures, were not analyzed. The high
potential costs of critical habitat designation that may affect release
patterns should result in exclusion of these projects.
Our Response: Habitat in Montana has been excluded under provisions
of Section 4(b)(2) in support of cooperative partnerships with the
State and recognition of their intent to carry out positive measures
for Bull Trout consistent with their Bull Trout Management Plan
developed in 2000.
State Comment: In Montana, Sophie Lake and its tributary Phillips
Creek should be omitted from the final rule based on the questionable
population status of bull trout, inconsequential scope of this small
and isolated core area to overall recovery, relatively hostile existing
habitat, chronic dewatering, nonnative fish species competition, and
the lack of a Federal nexus to promote habitat improvement.
Our Response: Habitat in Montana has been excluded under provisions
of Section 4(b)(2) in support of cooperative partnerships with the
State and recognition of their intent to carry out positive measures
for Bull Trout consistent with their Bull Trout Restoration Plan
developed in 2000.
Summary of Changes From the Proposed Rule
In development of this final designation of critical habitat for
the Klamath River and Columbia River populations of bull trout,
significant revisions to the proposed critical habitat designation were
made based on review of public comments received on the proposed
designation, the DEA, and further evaluation of existing protection on
lands proposed as critical habitat. These revisions rely on legal
authorities and requirements provided in the Act.
In crafting the Act, Congress provided guidance for the exercise of
discretion by the Secretary in making critical habitat decisions, which
we have applied in this rulemaking. In section 3(5)(a) of the Act,
critical habitat is defined as ``(i) the specific areas within the
geographical area occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this Act, on which are
found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary that such areas are essential for the
conservation of the species.'' Section 3(5)(C) of the Act further
provides that ``Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire geographical
area which can be occupied by the threatened or endangered species.''
These provisions of section 3 authorize the exercise of discretion in
determining (1) whether special management considerations or
[[Page 60021]]
protections may be required; (2) whether unoccupied areas are essential
for the conservation of the species; and (3) the extent to which the
entire area which can be occupied by the species should be included in
critical habitat. Finally, section 4(b)(2) of the Act allows the
Secretary to exclude any area from critical habitat, after considering
the economic impact and any other relevant impact, upon a determination
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species concerned.
The Congressional record is clear that Congress contemplated
occasions where the Secretary could exclude the entire designation. In
addition, the discretion that Congress anticipated would be exercised
in Section 4(b)(2) of the Act is extremely broad. ``* * * The
consideration and weight given to any particular impact is completely
within the Secretary's discretion * * *''
Given that section 4(a)(3)(A) of the Act requires that critical
habitat be designated concurrently with making a determination that a
species is an endangered species or a threatened species, we are
mindful of the Congressional intent with respect to listing as we
designate critical habitat. For example, section 4(a)(1) of the Act (16
U.S.C. 1533(a)(1), states that we must consider in listing
determinations, among factors, ``the inadequacy of existing regulatory
mechanisms'' (so-called ``Factor D''); and ``other natural or manmade
factors affecting its continued existence'' (referred to as ``Factor
E'').
Section 4(b)(1)(A) requires us also to ``tak[e] into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.'' Read together, sections 4(a)(1)
and 4(b)(1)(A), as reflected in our regulations at 50 CFR 424.11(f),
require us to take into account any State or local laws, regulations,
ordinances, programs, or other specific conservation measures that
either positively or negatively affect a species' status (i.e.,
measures that create, exacerbate, reduce, or remove threats identified
through the section 4(a)(1) analysis). The manner in which the section
4(a)(1) factors are framed supports this conclusion. Factor (D) for
example--``the inadequacy of existing regulatory mechanisms''--
indicates that overall we might find existing regulatory mechanisms
adequate to justify a determination not to list a species. Factor (E)
in section 4(a)(1) (any ``manmade factors affecting [the species']
continued existence'') requires us to consider the pertinent laws,
regulations, programs, and other specific actions of any entity that
either positively or negatively affect the species. Thus, the analysis
outlined in section 4 of the Act requires us to consider the
conservation efforts of not only State and foreign governments but also
of Federal agencies, Tribal governments, businesses, organizations, or
individuals that positively affect the species' status.
The section 4 analysis for listing determinations is relevant to
our exercise of discretion in critical habitat designations, although
it must be stressed that analysis in no way limits the Secretary's
discretion.
Summary of Revisions
The following section discusses changes made from the proposed
critical habitat rule:
(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) The largest changes in area designated are those lands which do
not meet the requirement of needing special management or protection
and which are also excluded due to the exercise of the Secretary's
Authority under section 4(b)(2) of the Act. Exempted under these
provisions were:
(A) Federal Columbia River Power System (FCRPS),
(B) Northwest Forest Plan,
(C) Lands included in the State of Washington's Forest Practices
Rules and Regulations,
(D) Lands covered by the Snake River Basin Adjudication, lands
covered under the Montana Bull Trout Restoration Plan, the Willamette
and Malheur River Basins, and stream reaches regulated under PACFISH/
INFISH,
(E) All waters impounded behind dams (reservoirs and pools),
(F) All stream segments less than 0.5 mi (0.8 km) in length that
are under private landownership, and
(G) Approved habitat conservation plans.
(3) Lands that did not contain sufficient PCEs to support the
species normal 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. At some point
the habitat may be useful to bull trout, but it is unlikely to be so
today. 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
speculative or prospective use of habitat.
(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.
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 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
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 made revisions to the stream miles, and lake and reservoir
acreages based on information supplied by commenters, as well as
information gained from field visits to some of the sites, for areas
not essential to bull trout conservation; unoccupied habitat was
removed from the rule as the Secretary was unable to make a
determination that
[[Page 60022]]
these unoccupied areas were essential to the conservation of the
species. We have modified PCEs (1), (5), (7) and (9) to provide greater
clarity. Our intent was not to change the essence of individual
elements, but only to further refine the description of those physical
and biological features that are essential to the conservation of the
species.
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) which may require special management
considerations or protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination by the Secretary that such areas are essential for the
conservation of the species. ``Conservation'' is defined by the Act as
the use of all methods and procedures which are necessary to bring any
endangered or a threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary.
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 authorized, funded, or carried
out 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.
In order to be included in a critical habitat designation, the
habitat must first be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known, and using
the best scientific and commercial data available, habitat areas that
are essential to the conservation of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Occupied habitat 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).
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). 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 geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271)
and our U.S. Fish and Wildlife Service Information Quality Guidelines
(2002) provide criteria, establish procedures, and provide guidance to
ensure that our decisions represent 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.
Information may be obtained from the listing document, a recovery plan,
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. The various data that we collect are weighted based
on their verifiability, for example, anecdotal evidence and opinion
have less weight than results from published studies or long-term or
ongoing monitoring.
Critical habitat designations do not signal that habitat outside
the designation is unimportant to bull trout. Areas outside the
critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1), to
the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, and the section 9 take prohibition, as determined on the
basis of the best available information at the time of the action.
Methods
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to determine areas that are
essential to the conservation of 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 heavily on information developed 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.
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). Furthermore, 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 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, with some exceptions (e.g., areas of Montana where
bull trout surveys have been consistently conducted for a decade or
more), a lack of bull trout detections does not provide definitive
evidence of their absence in a particular stream, lake, or river.
We used information gathered during the bull trout recovery
planning process, as supplemented by even more recent information
developed by State agencies, Tribes, USFS, and other entities, in
developing this final rule designating critical habitat. Data
concerning habitat conditions or status of PCEs were used when
available. To address areas where data gaps exist, we solicited expert
opinions from knowledgeable fisheries biologists in the local area.
Important considerations in selecting areas for critical habitat
designation 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
[[Page 60023]]
well as range-wide recovery considerations. This effort was assisted by
the recovery strategy described in the draft Recovery Plan. 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, foraging,
overwintering, and migration.
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; MBTSG 1998; Dunham
and Rieman 1999; Nelson et al. 2002). Habitat for movement upstream and
downstream is essential for all 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 method
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 that is essential for movement between streams and
lakes by adfluvial 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 information regarding migration corridors
necessary to allow for genetic exchange between local populations.
Corridors that provide for such movements can support eventual
recolonization of unoccupied areas or otherwise play a significant role
in maintaining genetic diversity and metapopulation viability. See the
proposed rule (November 29, 2002 (67 FR 71235) for details. Because
these factors are important in identifying areas that are essential to
the conservation of bull trout, 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 are required to base the designation on the best scientific
data available, and to consider those physical and biological features
(primary constituent elements (PCEs)) that are essential to the
conservation of the species, and that may require special management
considerations or 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.
Although critical habitat is being designated across a wide area
and involves 25 discrete units, the function of individual critical
habitat units (and the core areas contained therein) appreciably
contributes to the conservation value of all critical habitat from a
genetic, demographic, and distributional perspective, as discussed
below.
Central to the function of individual critical habitat units is the
maintenance of core areas which: (1) Contain bull trout populations
with the demographic characteristics needed to ensure their persistence
and contain the habitat needed to sustain those characteristics (Rieman
and McIntyre 1993); (2) provide for persistence of strong local
populations, in part, by providing habitat conditions that encourage
movement of migratory fish (Rieman and McIntyre 1993; MBTSG 1998); (3)
are large enough to incorporate genetic and phenotypic diversity, but
small enough to ensure connectivity between populations (Rieman and
McIntyre 1993; Hard 1995; Healey and Prince 1995; MBTSG 1998); and (4)
are distributed throughout the historic range of the species to
preserve both genetic and phenotypic adaptations (Rieman and McIntryre
1993; Hard 1995; MBTSG 1998; Rieman and Allendorf 2001).
Maintenance or establishment of functional PCEs throughout all core
areas is essential to the conservation of the bull trout because:
(1) Genetic diversity enhances long-term survival of a species by
increasing the likelihood that the species is able to survive changing
environmental conditions. If the overall genetic diversity distributed
across the range of the bull trout is reduced by the loss of core areas
containing multiple local populations, the ability of the species to
survive changing conditions is likewise reduced, leading to a higher
likelihood of extinction (Rieman and McIntyre 1993; Leary et al. 1993;
Hard 1995; Spruell et al. 1999; Rieman and Allendorf 2001);
(2) Maintaining multiple bull trout core areas distributed and
interconnected throughout their current range will provide a mechanism
for spreading the risk of extinction from stochastic (i.e., ``random'')
events (Rieman and McIntyre 1993; Hard 1995; Healey and Prince 1995;
Spruell et al. 1999; Rieman and Allendorf 2001);
(3) Maintaining core areas with multiple local populations will
address potential negative implications associated with low effective
population levels (i.e., inbreeding depression and a potential decrease
in viability or reproductive fitness of a population (Franklin 1980)
and loss of genetic variation due to genetic drift) (Franklin 1980;
Soule 1980; Lande 1988); and,
(4) Core areas provide connectivity between areas of high quality
habitat and contain important migration corridors for migratory bull
trout; core areas contain habitat that facilitates movement between
local populations or otherwise plays a significant role in maintaining
metapopulation viability (i.e., by providing sources of immigrants to
recolonize adjacent habitat patches following periodic extirpation
events) (Rieman and McIntyre 1993; Rieman et al. 1995; Dunham and
Rieman 1999) and maintaining the migratory life-history form. The
importance of maintaining the migratory life-history form of the bull
trout, as well as the presence of migratory runs of other salmonids
that may provide a forage base for bull trout, is repeatedly emphasized
in the scientific literature (Rieman and McIntyre 1993; Hard 1995;
Healey and Prince 1995; Rieman et al. 1995; MBTSG 1998; Dunham and
Rieman 1999; Nelson et al. 2002).
All areas designated as critical habitat for bull trout are within
the species' historic geographic range and contain enough of the PCEs
identified as essential to its conservation in the area designated to
enable the bull trout to carry out normal behavior. Much of what is
known about the specific physical and biological requirements of bull
trout are described in the proposed designation of critical habitat
rule (November 29, 2002 (67 FR 71235)). PCEs include, but are not
limited to: Space for individual and population growth, and for normal
behavior; food,
[[Page 60024]]
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. The following are the PCEs for the bull trout:
(1) Water temperatures ranging from 36 to 59 [deg]F (2 to 15
[deg]C), with adequate thermal refugia available for temperatures at
the upper end of this range. Specific temperatures within this range
will 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 that do not meet this temperature requirement 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: This rule finds that reservoirs currently operating under a
biological opinion that addresses bull trout provides management for
PCEs as currently operated;
(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.
The bull trout critical habitat for the Klamath River and Columbia
River populations are designed to incorporate what is essential for
their conservation. An area need not include all nine of the PCEs to
qualify for designation as critical habitat. However, enough of the
PCEs must be present at the time of designation to allow use for normal
activities by the fish, and the lack of any particular PCE cannot
precluse use by the bull trout.
Criteria Used To Identify Critical Habitat
The draft Recovery Plan identifies the specific recovery needs of
the species and provides guidance for identifying areas that warrant
critical habitat designation. As described below, this draft Recovery
Plan was used as the principal basis for identifying this critical
habitat designation. We re-evaluated the proposed designation based on
public comment, peer review of the proposed rule and the draft Recovery
Plan, the economic analysis of the proposed rule, and the public
comments on that analysis, and other available information, to ensure
that the designation accurately reflects habitat that is essential to
the conservation of the species.
The draft Recovery Plan provides important information and science
that was used as the basis for developing the critical habitat
designation for bull trout. It focuses primarily on the maintenance
(and, where needed, expansion) of existing local 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) sustaining (and in some
cases reestablishing) movement corridors to maintain migratory routes
and the potential for gene flow between local populations by
maintaining habitat conditions that allow for fish passage. However, it
is important to note that the draft Recovery Plan, when completed, will
not be a regulatory document. Many of the proposals and options for
recovery are expansive in nature and anticipate voluntary participation
by landowners and agencies. Accordingly, this rule will focus on those
areas that are essential to the conservation of the species, using the
common meaning of the term ``essential,'' which is indispensable.
Critical habitat units are patterned after recovery units
identified in the draft Recovery Plan for the Klamath River and
Columbia River populations. Using the guidance from that plan, we
identified habitat areas needed for the survival and recovery of bull
trout. To be included as critical habitat, an area had to provide 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 and historically occupied
habitat that is essential for recovering existing local populations
that have declined, or that is needed to reestablish local populations
required for recovery.
The critical habitat designation removed areas not known to be
occupied. These areas have been deleted from the final designation
because we do not have survey information to confirm that they were
historically occupied by bull trout, and we were unable to confirm that
they were essential for bull trout conservation. Historically, bull
trout survey information was often accumulated incidental to surveys
for other, more highly valued, species such as salmon and steelhead.
Because of different life history attributes, bull trout are not as
detectable as salmon and steelhead when utilizing a single common
survey protocol. Additionally, during surveys, bull trout have
historically been lumped into a general category such as ``other
trout'' and not identified to species. These historical biases,
combined with the fact that a survey protocol for juvenile bull trout
and resident forms of bull trout was only developed and accredited in
2002, has resulted in a relative dearth of verified occupancy
information for bull trout across much of its range. A commonly
recognized and accepted survey protocol for adult, migratory bull trout
has not yet been developed.
Restoration of reproducing bull trout populations to additional
portions of their historical range would significantly reduce the
likelihood of extinction due to natural or human-caused factors that
might otherwise further reduce population size and distribution. Thus,
an integral component of the draft Recovery Plan is the selective
reestablishment of secure, self-sustaining populations in certain areas
where the species has apparently, but not necessarily conclusively,
been extirpated. In this regard, we also note that some habitat areas
that would not be considered essential if they were geographically
isolated are, in fact, essential to the conservation of the species
when situated in locations where they facilitate movement between local
populations, or otherwise play a significant role in maintaining
[[Page 60025]]
metapopulation viability (e.g., by providing sources of immigrants to
recolonize adjacent habitat patches following periodic extirpation
events) (Dunham and Rieman 1999). In addition, populations on the
periphery of the species' range, or in atypical environments, are
important for maintaining the genetic diversity of the species and
could prove essential to the ability of the species to adapt to rapidly
changing climatic and environmental conditions (Leary et al. 1993; Hard
1995).
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 supporting record for this rulemaking.
Critical habitat for bull trout was delineated using multiple
sources including: The StreamNet GIS (Geographic Information System)
database for Idaho, Oregon, Washington, and Montana; and State
databases of bull trout distribution.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protections.
As we undertake the process of designating critical habitat for a
species, we first evaluate lands 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 then evaluate lands defined by those features to assess
whether they may require special management considerations or
protection. As discussed throughout in the proposed critical habitat
rule for the Klamath and Columbia River bull trout populations (67 FR
71236, November 29, 2002), in the draft Recovery Plan for the Klamath,
Columbia, and St. Mary-Belly River bull trout populations, and in the
various proposed and final listing rules for bull trout (62 FR 32268,
June 13, 1997; 64 FR 17110, April 8, 1999;63 FR 31647, June 10, 1998;
63 FR 31693, June 10, 1998; and 64 FR 58910, November 1, 1999), bull
trout and its habitat are threatened by a multitude of factors. Threats
to those features that define essential habitat (PCEs) are caused by
negative changes in water quality, stream complexity, quality and
quantity of stream substrate, stream hydrology, migratory corridors,
food sources, and nonnative competitors and predators (Rieman and
McIntyre 1996; MBTSG 1998). It is essential for the conservation of
bull trout to protect those features that define the remaining
essential habitat, through appropriate management, from irreversible
threats and habitat conversion. These impacts can be ameliorated by
educating landowners and managers about the location and value of these
resources.
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.
Relatively cold water temperatures are characteristic of bull trout
habitat. Water temperatures above 59 [deg]F (15 [deg]C) 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 68 [deg]F (20
[deg]C), Gamett (1999) documented steady and substantial declines in
abundance in stream reaches where water temperature ranged from 59 to
68 [deg]F (15 to 20 [deg]C). 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).
The stability of stream channels and stream flows are important
habitat characteristics for bull trout populations (Rieman and McIntyre
1993). Altered stream flow in the fall may disrupt bull trout during
the spawning period, and channel instability may decrease survival of
eggs and young juveniles in the gravel during winter through spring
(Fraley and Shepard 1989; Pratt 1992; Pratt and Huston 1993).
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. McPhail and Baxter (1996) 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). Activities that
disrupt or reduce stream complexity such as channelizing, reducing the
input of woody debris, or removing riparian cover may negatively affect
bull trout (Rieman and McIntyre 1996; MBTSG 1998).
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). 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; MBTSG 1998). Activities that preclude the function of
migratory corridors may affect bull trout (e.g., stream blockages).
The introduction and spread of nonnative species, particularly
brook trout and lake trout, which compete with bull trout for limited
resources and, in the case of brook trout, hybridize with bull trout
(Ratliff and Howell 1992; Leary et al. 1993) is another ongoing threat
to bull trout. Both species have been introduced in historical bull
trout habitat, and both legal and illegal introductions of these and
other competing species have continued to the present.
Relationship to HCPs and Other Planning Efforts
Section 3(5)(A) of the Act defines critical habitat, in part, as
those areas requiring special management considerations or protection.
Section 10(a)(1)(B) of the Act authorizes us to issue permits for the
take of listed species incidental to otherwise lawful activities. 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. An incidental take permit application must
be supported by an HCP that identifies conservation
[[Page 60026]]
measures that the permittee agrees to implement for the species to
minimize and mitigate the impacts of the permitted incidental take. The
purpose of the HCP 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.
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. An area may be excluded from
critical habitat if it is determined that the benefits of such
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species.
In our critical habitat designations, we use the provisions
outlined in section 4(b)(2) of the Act to evaluate those specific areas
that we consider designating as critical habitat. Lands we have
excluded from designated critical habitat pursuant to section 4(b)(2),
include those covered by the following types of plans if they provide
assurances that the conservation measures they outline will be
implemented and effective: (1) Legally operative approved HCPs that
cover the species; (2) draft HCPs that cover the species and have
undergone public review and comment (i.e., pending HCPs) and that we
are able to make a biological determination that when completed, the
plan will provide adequate protection; (3) Tribal conservation plans
that cover the species; (4) State conservation plans that cover the
species; and (5) National Wildlife Refuge System Comprehensive
Conservation Plans.
Lands Excluded From Critical Habitat
Habitat Conservation Plans
As described above, section 4(b)(2) of the Act requires us to
consider other relevant impacts, in addition to economic and national
security impacts, when designating critical habitat. Section
10(a)(1)(B) of the Act 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
Act 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 such an HCP 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.
Within the area covered by the Klamath River population, there are
no HCPs involving bull trout. Within the range of the Columbia River
population, the approved Plum Creek Native Fish, Plum Creek I-90,
Stimson Lumber Company, and WDNR HCPs have been developed, in part, to
provide for bull trout conservation needs while also allowing for
otherwise lawful timber management activities. The duration of the
permits associated with the Plum Creek and WDNR HCPs ranges from 30 to
100 years. The permittees have the option, however, of terminating at
any time if they so choose, with a 60-day notice to us. Moreover, the
permittees may retain their permits but sell some of their lands
covered by an HCP. All of these HCPs contain provisions that allow
buyers of lands covered by the HCP to assume the permit if they so
desire. That is the process by which the Stimson Lumber HCP was
created, when the Stimson Lumber Company acquired certain lands
previously owned by Plum Creek and assumed all of the Plum Creek HCP
commitments.
The Plum Creek I-90 HCP includes provisions that: (1) Generally
allow for the sale or exchange of lands with the USFS, with some
specific limitations relative to implementation of the NWFP; (2) allow
for the sale of any lands provided appropriate covenants or assurances
are given by the acquiring party that such lands will be managed
consistent with the goals and objectives of the HCP; and (3) allow for
the sale of parcels not in excess of 640 ac (259 ha) to any private
party as long as the cumulative total of all such transactions does not
exceed 5 percent of the acreage covered by the permit, and the
cumulative total of all such transactions in any one township does not
exceed 1,920 ac (777 ha). The Plum Creek Native Fish HCP and Stimson
Lumber HCP apply a proportionality ratio to land dispositions relative
to three categories of dispositions: positive, neutral, and negative in
terms of conservation benefits to covered species. Plum Creek and
Stimson Lumber Company have committed to manage their land dispositions
so that the cumulative total of dispositions stays within a
predetermined range of proportionality. If, at the end of the HCP term,
the proportionality balance is below the predetermined range limits,
positive land disposition commitments must be applied to sufficient
acreage within the project area to restore the balance.
The WDNR lands are maintained primarily for the purpose of growing
and selling timber to finance State government, and the management of
these lands also can include purchases, sales, and land exchanges. The
WDNR HCP does not include incentives for placing conservation easements
on some of the land that WDNR sells. The HCP allows WDNR to dispose of
permit lands at its sole discretion. However, if the cumulative impact
of disposed lands would have a significant adverse effect on the
covered species, the parties to the HCP are required to mutually amend
the HCP to provide replacement mitigation.
We evaluated lands covered by these existing HCPs to determine
whether it (1) provides a conservation benefit to the species; (2)
provides assurances that the management plan will be implemented; and
(3) provides assurances the plan will be effective. Approved and
permitted HCPs are designed to ensure the long-term survival of covered
species within the plan area. Where we have an approved HCP, the areas
we ordinarily would designate as critical habitat for the covered
species will normally be protected through the terms of the HCPs and
their implementation agreements (IAs). These HCPs and implementation
agreements include management measures and protections that are crafted
to protect, restore, and enhance their value as habitat for covered
species.
The issuance of a permit (under section 10(a) of the Act) in
association with an HCP application is subject to consultation under
section 7(a)(2) of the Act. During consultation on permit issuance, we
must address the issue of destruction or adverse modification of
critical habitat for bull trout and any other species protected by the
plan. Since these large regional HCPs address land use within the plan
boundaries, habitat issues within the plan boundaries have been
addressed in the HCP and the consultation on the permit associated with
the HCP. This requires us to make a determination as to the effect on
both survival and recovery of a listed species, in the case of critical
habitat by reducing the function of the habitat so designated.
The Plum Creek I-90 and WDNR HCPs occur mostly in western
Washington, with minimal overlap (i.e.,
[[Page 60027]]
lands adjacent to less than 50 mi (80 km) for each plan) with
designated critical habitat for the Columbia River population. The Plum
Creek Native Fish HCP and Stimson HCP cover approximately 1.6 million
ac (647,500 ha), all within the range of the Columbia River population
and mostly within western Montana. All lands lying within these HCPs
are in the Clark Fork River (Unit 2), Kootenai River (Unit 3), or
Clearwater River (Unit 15) CHU. Lands within these HCPs occur adjacent
to less than approximately 500 mi (894 km) of stream reaches that we
identified as critical habitat.
We have reviewed the four HCPs within the Columbia River population
of bull trout and determined that the benefits of excluding them from
the final designation of critical habitat for the bull trout outweigh
the benefits of including them in the designation. Therefore, areas
covered by these HCPs are excluded from this critical habitat
designation pursuant to section 4(b)(2) of the Act. Our rationale for
these exclusions is discussed below.
Montana DNRC is developing an HCP that will cover forest management
activities on approximately 700,000 ac (283,281 ha) of forested blocked
and scattered trust lands across the State of Montana. The HCP may
include an additional 300,000 ac (121,406 ha) of nonforested parcels
associated with access for timber management activities on forested
lands. The predominant emphasis of the HCP will be on trust lands in
western Montana. DNRC is considering an agreement term of 50 years. The
covered activities will include activities common to commercial forest
management.
An aquatic work group, whose members include DNRC and Service
project managers, DNRC resource specialists, consulting resource
specialists, and Service biologists, is meeting several times each
month in order to collaboratively design conservation strategy
recommendations, which will eventually be integrated into a
comprehensive habitat-based conservation strategy for DNRC covered
lands. The aquatic working group is developing a strategy that is
designed to collectively meet the conservation needs for bull trout,
westslope cutthroat trout (Oncorhynchus clarki lewisi), and redband
trout (Oncorhynchus mykiss gairdneri).
The transitional lands working group is developing strategies for
those forest lands where the primary use may be transferred from the
forest management bureau to another DNRC Trust Lands Management bureau
(e.g., real estate, agriculture and grazing, or minerals) within the
50-year term of this HCP. Initially, DNRC is planning to develop a
point-based accounting system for transitional lands, similar to the
approach implemented in the Plum Creek Native Fish HCP. Once the
individual technical work groups complete conservation strategy
recommendations, the strategies will be integrated into habitat-based
commitments that collectively meet the needs for all of the covered
species. DNRC will use these commitments to develop an application for
an incidental take permit, and the project will focus on producing a
combined draft HCP and draft EIS. Under the existing timeline, these
documents are scheduled for public distribution in September 2005.
It is our judgment that the collective benefits of the Montana DNRC
HCP, including furthering the working relationship with the State of
Montana, and providing additional protections to bull trout and their
habitat, as well as a host of other nonlisted species, will be
sufficient to exempt forested State lands of western Montana from bull
trout critical habitat. The benefit of excluding those lands exceeds
the benefit of including them as they will provide protection for any
lands affecting bull trout conservation whether there is a Federal
nexus or not. Thus the protections afforded the bull trout are
increased beyond what a critical habitat designation could do. In
total, approximately 144 mi (232 km) of stream segments in the Clark
Fork River and Kootenai River CHUs are thus being excluded from what
was proposed as critical habitat. The State of Montana has committed to
the terms of the aquatic strategy that will be met on forested State
lands, and is judged sufficient to meet the standard for exclusion of
these lands. Forested Montana DNRC lands are included in the critical
habitat maps, but are excluded, in a fashion similar to what was done
for other HCP lands.
As noted above, lands within these HCPs are subject to change
(e.g., through sale or exchange), subject to various sideboards
included in each HCP. Designated critical habitat does not include non-
Federal lands covered by an incidental take permit for bull trout
issued under section 10(a)(1)(B) of the Act for these HCPs as long as
such permit, or a conservation easement providing comparable
conservation benefits, remains legally operative on such lands. The
following represents our rationale for excluding the critical habitat
within approved HCPs.
(1) Benefits of Inclusion
The principal effect of designated critical habitat is that
federally funded or authorized activities may require consultation
under section 7 of the Act. Consultation ensures that action entities
avoid adverse modification of critical habitat. Currently approved and
permitted HCPs promote the long-term survival of addressed species. In
an approved HCP, lands defined as critical habitat for covered species
will be protected in reserves and other conservation lands by the terms
of the HCP and its IA. HCPs and IAs include management measures and
protections for conservation lands designed to protect, restore, and
enhance their value as habitat for covered species, and thus provide
benefits to the species well in excess of those that would result from
a critical habitat designation. Where HCPs are in place, our experience
indicates that the benefit of designated critical habitat is small or
non-existent.
Another possible benefit to including these lands is that the
designation of critical habitat can serve to educate landowners and the
public regarding the potential conservation value of an area. This may
focus and contribute to conservation efforts by other parties by
clearly delineating areas of high conservation value for certain
species. However, through the HCP development process, which typically
involves extensive outreach and opportunity for public review and
typically results in formal protection of essential habitat areas, the
public is well informed and educated about conservation value of
essential habitat lands.
(2) Benefits of Exclusion
The benefits of excluding lands within HCPs from critical habitat
designation include carrying out the assurances provided by the Service
to landowners, communities, and counties in return for their voluntary
adoption of the HCP, including relieving them of the additional
regulatory burden that might be imposed by critical habitat. Many HCPs,
which can take years to develop, and upon completion, become the basis
for regional conservation plans that are consistent with the recovery
objectives for listed species covered within the plan area. Many of
these HCPs provide conservation benefits to unlisted, rare species.
Imposing additional regulatory review after an HCP is completed solely
as a result of the designation of critical habitat may undermine
conservation efforts and partnerships in many areas. In fact, it could
result in the loss of species' benefits if participants abandon the
voluntary HCP process because it
[[Page 60028]]
may result in an additional regulatory burden requiring more of them
than of other parties who have not voluntarily participated in species
conservation. Designation of critical habitat within the boundaries of
approved HCPs is likely to be viewed as a disincentive to those
entities currently developing HCPs or contemplating them in the future.
Excluding HCPs provides us with an opportunity to streamline regulatory
compliance and confirm regulatory assurances for HCP participants.
A related benefit of excluding lands within HCPs from critical
habitat designation is the continued ability by us to seek new
partnerships. These may include future HCP participants, such as
States, counties, local jurisdictions, conservation organizations, and
private landowners. These entities together may implement conservation
actions that we would be unable to accomplish otherwise. By excluding
areas covered by HCPs from critical habitat designation, we preserve
these partnerships and, we believe, set the stage for more effective
conservation actions in the future.
An HCP application must undergo section 7 consultation. While this
consultation does not address adverse modification to critical habitat,
it will determine if the HCP jeopardizes the species in the plan area.
Federal actions not covered by the HCP, but in areas occupied by listed
species, still require consultation under section 7 of the Act. HCPs
typically provide greater conservation benefits to an addressed listed
species than section 7 consultations because HCPs assure the long-term
protection and management of a covered species and its habitat, and
funding for such management through the standards found in the 5 Point
Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' regulation
(63 FR 8859). Such assurances are typically not provided by ordinary,
non-programmatic section 7 consultations which are limited to requiring
that the specific action being consulted upon not jeopardize the
continued existence of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
The educational benefits of critical habitat, including informing
the public of areas that are essential for the long-term survival and
conservation of the species, is still accomplished from material
provided on our website and through public notice and comment
procedures required to establish an HCP. We have also received input
from the public through the public participation that occurs in the
development of many regional HCPs. For these reasons, we believe that
designating critical habitat has little additional benefit in areas
covered by HCPs, provided that the HCP specifically and adequately
covers the species for which critical habitat has been designated. We
do not believe that this exclusion would result in the extinction of
the species because the essential habitat within these HCPs will
ostensibly be conserved.
The development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide conservation efforts and assist in species
recovery, and the creation of innovative solutions to conserve species
while allowing for commercial activity. The educational benefits of
critical habitat, including informing the public of areas that are
important for the long-term survival and conservation of the species,
are essentially the same as those that would occur from the public
notice and comment procedures required to establish an HCP, as well as
the public participation that occurs in the development of many
regional HCPs. For these reasons, then, we believe that designation of
critical habitat normally has little benefit in areas covered by HCPs.
The benefits of excluding lands covered by these HCPs would be
significant in preserving positive relationships with our conservation
partners, lessening potential additional regulatory review and
potential economic burdens, reinforcing the regulatory assurances
provided for in IAs for approved HCPs, and providing for more
established and cooperative partnerships for future conservation
efforts. In summary, excluding lands covered by HCPs in critical
habitat designations outweigh the benefits of including lands covered
by HCPs. Furthermore, we have determined in section 7 consultations on
approved HCPs that they would not jeopardize the continued existence of
the bull trout. Consequently, excluding these lands from the critical
habitat designation will not result in the extinction of the species.
Therefore, these lands have not been designated as critical habitat for
the bull trout.
Washington State Forest Practices Rules and Regulations, as Amended by
the Forest and Fish Law (FFR)
An effort (known as the FFR) to address the needs of listed
salmonids, and avoid conflicts between State regulations and the Act,
was adopted by the Washington state legislature, thereby amending the
Revised Code of Washington with respect to the Washington Forest
Practices Act (RCW 76.09), as well as the Washington Administrative
Code with respect to the Washington Forest Practices Rules (WAC 222).
The FFR addressed the needs of salmonids, other fish, and stream-
associated amphibians, and specifically addressed the needs of bull
trout and its habitat. Riparian buffers on fishbearing streams were
designed to recruit the majority of the large wood which potentially
could be recruited from these riparian areas. Because addressing the
recruitment of large wood requires buffer widths greater than that
needed to address many other riparian functions, these buffers also
address the riparian functions of bank stability, shade, nutrient
input, and sediment filtering. Riparian buffers on fishbearing streams
likely account for half of the wood delivered to such streams. The
remainder of large wood in these streams depends on episodic and
catastrophic events for transport from upstream and upslope areas.
These ``upstream'' wood-recruitment mechanisms are not well understood.
Riparian buffers for streams above fishbearing streams include a buffer
at the confluence with fishbearing streams to address temperature
concerns as well as provide a run-out zone for events such as
landslides and channelized debris flows. Above those areas, buffers
under FFR rules need not be continuous, but are designed to maintain
stream temperatures within normal parameters and will be placed along
sensitive reaches and sites. The FFR rules includes a strategy (the
bull trout temperature overlay) for maintaining cooler water
temperatures in streams located in the hotter, dryer portions of
Washington, east of the Cascade Crest. Slope stability and the ability
to harvest timber and construct roads on ``at-risk'' or unstable slopes
are also addressed through these rules.
Road construction and maintenance is a large part of these
regulations, requiring corrective measures to address existing problem
areas. These rules are designed to ensure stream connectivity through
road crossings, shunting of road-generated sediment away from aquatic
resources, and integrity of road infrastructure. It mandates a process
of identification of problem areas and correction of those road
segments within specified timeframes.
We assessed FFR with respect to bull trout PCEs. Forest practices
conducted consistent with the FFR should not result in contaminated
waters that inhibit reproduction, growth, or survival; instead, they
are expected to
[[Page 60029]]
maintain 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 hydrograph, ground-water sources and subsurface
connectivity, migratory corridors, and an abundant food base. Forest
practices are not expected to introduce or favor nonnative competitors
or predators.
These rules apply to most non-industrial forest landowners, family-
held and publicly-held industrial timber corporations, and some State
lands. State lands managed by the WDNR west of the Cascade Crest are
not subject to FFR as they are managed under their 1997 HCP with
respect to bull trout. However, some provisions of FFR, such as road
management and slope stability will be voluntarily applied by WDNR on
those west-side lands. These rules do apply to WDNR lands east of the
Cascade Crest and non-HCP private lands statewide, regardless of the
presence of bull trout or salmon. Therefore, FFR includes benefits for
many species in areas with no listed species. The FFR rules continue to
apply so long as harvested land will be replanted and remain in
forestry. Individual counties generally administer timber harvests
associated with conversion of forested lands to agriculture or
development, and all counties are expected to administer conversion
harvests consistent with FFR by the year 2005.
These State Forest Practices Rules allow for the development of
alternate plans. It is anticipated that non-industrial forest
landowners will seek alternate plans for several inter-related reasons:
(1) Much of the non-industrial lands are located at lower elevations
where a disproportionate amount of the streams contain fish; (2)
streams are lower gradient and can be addressed with different
buffering scenarios that provide equal or better protection while
allowing additional management flexibility; and (3) many non-industrial
forest landowners do not have additional lands in their portfolio which
can be used to offset the economic effect to them from reserve areas
covering high percentages of their ownerships. All alternate plans,
whether developed in conjunction with an HCP or not, will be evaluated
for the level of protection provided to the aquatic resources including
bull trout. It is expected that alternate plans will be required to
provide equal or better protection for these resources. If this can be
accomplished on some lands and waters in a more economical fashion, we
expect landowners will attempt to avail themselves of these options, so
long as the process for developing alternate plans is not overly
onerous.
We assessed the adequacy of FFR as a special management plan to
ensure that it provided: (1) A benefit to bull trout; (2) assurances of
implementation; and (3) assurances it would be effective. For the
reasons discussed above, bull trout will benefit from the
implementation of FFR. FFR has already been adopted by the legislature
and has been implemented for several years. Forest practice rules are
monitored by the WDNR to ensure compliance by landowners and operators.
Effectiveness is ensured through a cooperative adaptive-management
process that includes collection of basic information regarding the
covered species and their habitats, research, effectiveness monitoring,
and regulatory feedback.
For these reasons, we believe that FFR, as a special management
plan, provides substantial protection and restoration for bull trout
and bull trout habitat. Therefore, we have determined that the benefits
of excluding lands covered by FFR from the final designation of
critical habitat for the bull trout outweighs the benefits of including
them in the designation. Therefore, areas covered by the FFR are
excluded from this critical habitat designation pursuant to section
4(b)(2) of the Act. Our rationale for these exclusions is discussed
below.
(1) Benefits of Inclusion
Consultation. One benefit would result from the requirement under
section 7 of the Act that Federal agencies consult with us to ensure
that any proposed actions do not destroy or adversely modify critical
habitat. The economic analysis estimates that there have been over 200
formal consultations and thousands of informal consultations involving
bull trout since its listing in 1998, and has involved numerous Federal
action agencies. However, unless there are other types of Federal
permitting or authorization within this area, private, and State-owned
lands would not be affected.
Much of the land covered by FFR is zoned by the respective counties
in a designation that holds long-term forestry as the primary
objective. In areas zoned for other purposes, a higher rate of
conversion from forestry to other land uses can be expected. FFR
addresses forest practices and does not address conversion from
forestry to other uses. Within the FFR area, conversion to some of
these other land uses (e.g., development) may trigger consultation
(e.g., filling of a wetland would require a permit from the Corps).
However, most of these lands could be converted from forestry to other
land uses without triggering consultation under section 7 of the Act,
thus denying us any ability to assess and avoid any effect on critical
habitat.
Non-industrial forest landowners have a high reliance on technical
assistance provided through State and Federal programs, and
occasionally participate in cost-share programs. These actions may
trigger consultations, but would generally be for projects with little
to no effect on bull trout, such as pre-commercial thinning, pruning,
or planting. We expect a low level of Federal activity on these lands
that would adversely affect bull trout or its habitat on these lands.
Therefore, we anticipate little additional regulatory benefits from
including these areas in critical habitat beyond what is already
provided by the existing section 7 nexus for habitat areas occupied by
bull trout and other listed extant aquatic species.
Bull trout belong to the same guild of fish and require similar
habitat features as salmon. Salmon also need cold, clean, well-
oxygenated water; substrates with minimal amounts of fine sediment for
spawning; complex in-stream habitat features; and connectivity. Both
bull trout and salmon are highly reliant on the ability to migrate
between components of their habitat. Therefore, actions that benefit
salmon frequently also provide benefits to bull trout, and actions that
impact bull trout frequently also impact salmon. Minimization and
mitigation measures for these species are also generally similar, and
the features of essential habitat for salmon are compatible with the
PCEs of bull trout critical habitat. Salmon not only overlap bull trout
in habitat requirements, but also fill some of the current gaps in
historic bull trout range. Thus, we find that little additional benefit
through section 7 consultations would occur as a result of the overlap
between habitat suitable for salmon and essential habitat for bull
trout.
The economic analysis recognizes that while consultations regarding
these areas will occur without bull trout critical habitat designation,
those consultations may or may not consider the bull trout. In areas
where removal or rectification of manmade, fish-passage obstructions
are reasonably certain to occur, or where unoccupied range is currently
accessible to expansion of the species, a ``may affect'' determination
may be made in unoccupied areas for projects which will not result in
take of the bull trout. In other areas where occupancy is not
documented despite surveys and where it is not likely in the
[[Page 60030]]
foreseeable future, consultations for bull trout likely would not
occur. Because of the similar life-history requirements of bull trout
and salmon, we do not anticipate that the outcomes of such
consultations would be altered by the designation of critical habitat
for bull trout.
Regulatory and protective conservation measures are already
anticipated from the future consultations regarding the activities
described above. Consequently, we do not believe that designating
critical habitat within these areas would provide significant
additional regulatory benefits for bull trout.
Education/Information
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 heightened public awareness of the plight of listed
species and their habitats may facilitate conservation efforts. We
agree with these findings; however, we believe that there would be
little additional informational benefit gained from including these
areas within designated critical habitat for bull trout because the
final rule identifies all areas that are essential to the conservation
of bull trout, regardless of whether all of these areas are included in
the regulatory designation.
Additionally, many partners at the Federal, State, local
jurisdiction, private, and Tribal level have initiated active
information programs. While this educational outcome is important for
the conservation of bull trout, it is already being achieved through
the existing management, education, and public outreach efforts carried
out by landowners, conservation partners, and agencies. The plight of
salmonids in the Pacific Northwest has been subject to a well-developed
public outreach infrastructure that includes magazines, newsletters,
well-publicized public events, annual festivals, school group
activities, web-sites, and water-shed planning efforts. Consequently,
few additional educational or informational benefits will be provided
to bull trout if these areas are designated as critical habitat.
Voluntary Partnerships for Conservation and Restoration
Current and ongoing conservation activities for salmon are
compatible with those for bull trout such that reestablishment of bull
trout in historic range and recovery throughout its range should not be
precluded in the future. Existing conservation efforts include the
application of Federal and State funds to salmonid recovery through the
Salmon Recovery Funding Board. Other programs are also focusing on both
active and passive restoration of habitats. Many partners are
cooperating to conducting monitoring and research. The Cooperative
Evaluation, Monitoring, and Research program of FFR, is funding and
supporting a variety of research regarding habitat needs of bull trout
and salmon, as well as research regarding topics such as survey
protocols and their efficiencies. The conservation activities conducted
by us, other Federal Agencies, State Agencies, private organizations,
and private individuals demonstrate that the public is already aware of
the importance of riparian and upland management in the conservation of
salmonids. Designation of critical habitat would merely affirm what is
already widely accepted by conservationists, agencies, and most of the
public regarding the conservation value of these areas. It would also
likely provide a relatively low level of additional voluntary
conservation effort, and is actually more likely to undermine many of
the existing cooperative voluntary efforts.
(2) Benefits of Exclusion
Excluding lands defined by the FFR area from designated critical
habitat will provide several benefits, as follows: (1) Exclusion of the
lands from the final designation will maintain and enhance our ability
to continue working with the FFR participants in a spirit of
cooperation and partnership; and (2) other jurisdictions, private
landowners, and other entities will likely continue to see the benefit
of working cooperatively with us and will be provided with incentives
to develop HCPs and other agreements which can provide the basis for
future opportunities to conserve species and their habitats. A more
detailed discussion concerning our rationale for the benefits of
excluding HCPs from critical habitat is outlined in the previous
discussion concerning the exclusion of approved HCPs.
Through the stakeholder-based FFR planning process, we have built
trust among diverse and competing interests by encouraging open
dialogue regarding aquatic and riparian management issues. The
introduction of additional Federal influence, through the designation
of critical habitat, could impact the trust and spirit of cooperation
that has been established over the last several years. The designation
of critical habitat would be expected to adversely affect our working
relationship with the State of Washington and private landowners, and
Federal regulation through designation of critical habitat would be
viewed as an unwarranted and unwanted intrusion. Therefore, exclusion
would avoid this impact to cooperative efforts and will reduce the cost
and logistical burden of unnecessary regulatory oversight.
FFR will undergo section 7 consultation to ensure that acceptance
of FFR as an HCP will not jeopardize bull trout or any other listed or
covered species. Federal actions in occupied portions of the FFR area
will still require consultation under section 7 of the Act. These
benefits will continue to occur if these areas are excluded. But
additionally, FFR and exclusion of the FFR areas, will set the stage
for more effective conservation in the future, as well as provide
substantial benefits in the immediate future.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have analyzed the benefits of including FFR
areas as part of the critical habitat designation and the benefits of
excluding these areas, and determined that the benefits of exclusion
outweigh those of inclusion. Further, we have determined that the
exclusion of areas covered by the FFR would not result in the
extinction of the bull trout based on the benefits provided the species
through the plan.
The analysis conducted evaluating the benefits of excluding HCPs
from critical habitat versus the benefits of including HCPs, as
previously discussed for the exclusion of approved HCPs, and is
applicable and appropriate for the exclusion of the FFR from designated
critical habitat. However, we have specifically assessed the exclusion
and inclusion of FFR areas in this respect.
Northwest Forest Plan
The Northwest Forest Plan was developed to manage the Northwest
Forest in a manner that conserves the ecosystem and provides species
the necessary elements they require to exist. Bull trout was one of the
species considered in the Northwest Forest plan. There is general
agreement that this is a comprehensive plan designed to improve habitat
for all the species dependent on the Northwest Forest. In a 2002 report
the Government Accounting Office found that the process used to develop
and implement the Northwest Forest Plan addressed
[[Page 60031]]
many longstanding deficiencies that have contributed to unmet
objectives in other land management plans.
(1) Benefits of Inclusion
The principal benefit of the inclusion of lands into designated
critical habitat is that federally funded or authorized activities may
require consultation under section 7 of the Act. Consultation ensures
that action entities avoid adverse modification of critical habitat.
Currently the Northwest Forest Plan promotes the conservation of
addressed species, including the bull trout.
(2) Benefits of Exclusion
Consultation. One benefit would result from the requirement under
section 7 of the Act that Federal agencies consult with us to ensure
that any proposed actions do not destroy or adversely modify critical
habitat. The economic analysis estimates that there have been over 200
formal consultations and thousands of informal consultations involving
bull trout since its listing in 1998, and has involved numerous Federal
action agencies. However, unless there are other types of Federal
permitting or authorization within this area, private, and State-owned
lands would not be affected.
Regulatory and protective conservation measures are already
anticipated from the future consultations regarding the activities
described above. Consequently, we do not believe that designating
critical habitat within these areas would provide significant
additional regulatory benefits for bull trout.
Education/Information. 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 heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
We agree with these findings; however, we believe that there would be
little additional informational benefit gained from including these
areas within designated critical habitat for bull trout because the
final rule identifies all areas that are essential to the conservation
of bull trout, regardless of whether all of these areas are included in
the regulatory designation.
Additionally, many partners at the Federal, State, local
jurisdiction, private, and Tribal level have initiated active
information programs. While this educational outcome is important for
the conservation of bull trout, it is already being achieved through
the existing management, education, and public outreach efforts carried
out by landowners, conservation partners, and agencies. The plight of
salmonids in the Pacific Northwest has been subject to a well-developed
public outreach infrastructure that includes magazines, newsletters,
well-publicized public events, annual festivals, school group
activities, web-sites, and water-shed planning efforts. Consequently,
few additional educational or informational benefits will be provided
to bull trout if these areas are designated as critical habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
For these reasons, we believe that Northwest Forest Plan, as a
special management plan, provides substantial protection and
restoration for bull trout and bull trout habitat. Therefore, we have
determined that the benefits of excluding lands covered by Northwest
Forest Plan from the final designation of critical habitat for the bull
trout outweighs the benefits of including them in the designation.
Therefore, areas covered by the Northwest Forest Plan are excluded from
this critical habitat designation pursuant to section 4(b)(2) of the
Act. Our rationale for these exclusions is discussed below.
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have analyzed the benefits of including
Northwest Forest Plan areas as part of the critical habitat designation
and the benefits of excluding these areas, and determined that the
benefits of exclusion outweigh those of inclusion. Therefore, we have
excluded all Federal lands covered under Northwest Forest Plan from
this final designation of critical habitat for the bull trout pursuant
to section 4(b)(2) of the Act. Further, we have determined that the
exclusion of all Federal lands covered by the Northwest Forest Plan
would not result in the extinction of the bull trout based on the
benefits provided the species through the plan and our consultation on
the Forest Plan under section 7 of the Act.
Federal Columbia River Power System (FCRPS)
The FCRPS is currently governed by two federal statues that protect
the bull trout, the Act and the Northwest Electric Power Planning and
Conservation Act. The Northwest Electric Power Planning and
Conservation Act require the mitigation of hydropower impacts. The Act
protects the bull trout from actions that would jeopardize its
continued existence, and all agencies must consult and collaborate with
Tribes to ensure their actions do not impact tribal rights. These
various directives have resulted in a multiplicity of collaborative
efforts in the basin; all directed at restoring habitat and species
populations. Each affected state also has varying regulatory authority
with respect to habitat protection. Finally, there are 11 Federal
agencies involved specifically in salmon and steelhead recovery in the
basin. In 2002 the GAO estimated $3.3 billion had been spent since 1982
to recover those species in the basin. Many of these activities such as
fish passage through dams, stream flow and temperature alteration, and
sediment reduction, are the same that would be required for bull trout
recovery. This was also noted in the economic analysis for the
designation. It is clear that the basin is not in need of special
management and protection, there are myriad programs currently
performing that function outside of the Act. In addition, the benefit
of imposing an additional regulatory structure (in this case, a
designation of bull trout critical habitat) with its attendant
rigidities, was not as great as excluding this area from designation to
allow the existing processes to identify and implement the most
effective way to conserve all the species in the basin.
For these reasons, we believe that FCRPS provides substantial
protection and restoration for bull trout and bull trout habitat.
Therefore, we have determined that the benefits of excluding lands
covered by FCRPS from the final designation of critical habitat for the
bull trout outweighs the benefits of including them in the designation.
Therefore, areas covered by the FCRPS are excluded from this critical
habitat designation pursuant to section 4(b)(2) of the Act. Our
rationale for these exclusions is discussed below.
(1) Benefits of Inclusion
The principal effect of designated critical habitat is that
federally funded or authorized activities may require consultation
under section 7 of the Act. Consultation ensures that action entities
avoid adverse modification of critical habitat. Currently FCRPS promote
the conservation of the bull trout.
(2) Benefits of Exclusion
Consultation. One benefit would result from the requirement under
section 7 of the Act that Federal agencies consult with us to ensure
that any proposed actions do not destroy or adversely modify critical
habitat. The economic analysis estimates that there
[[Page 60032]]
have been over 200 formal consultations and thousands of informal
consultations involving bull trout since its listing in 1998, and has
involved numerous Federal action agencies. However, unless there are
other types of Federal permitting or authorization within this area,
private, and State-owned lands would not be affected.
Education/Information. 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 heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
We agree with these findings; however, we believe that there would be
little additional informational benefit gained from including these
areas within designated critical habitat for bull trout because the
final rule identifies all areas that are essential to the conservation
of bull trout, regardless of whether all of these areas are included in
the regulatory designation.
Additionally, many partners at the Federal, State, local
jurisdiction, private, and Tribal level have initiated active
information programs. While this educational outcome is important for
the conservation of bull trout, it is already being achieved through
the existing management, education, and public outreach efforts carried
out by landowners, conservation partners, and agencies. The plight of
salmonids in the Pacific Northwest has been subject to a well-developed
public outreach infrastructure that includes magazines, newsletters,
well-publicized public events, annual festivals, school group
activities, web-sites, and water-shed planning efforts. Consequently,
few additional educational or informational benefits will be provided
to bull trout if these areas are designated as critical habitat.
Voluntary Partnerships for Conservation and Restoration. Current
and ongoing conservation activities for salmon are compatible with
those for bull trout such that reestablishment of bull trout in
historic range and recovery throughout its range should not be
precluded in the future. Existing conservation efforts include the
application of Federal and State funds to salmonid recovery through the
Salmon Recovery Funding Board. Other programs are also focusing on both
active and passive restoration of habitats. Many partners are
cooperating to conducting monitoring and research. The conservation
activities conducted by us, other Federal Agencies, State Agencies,
private organizations, and private individuals demonstrate that the
public is already aware of the importance of riparian and upland
management in the conservation of salmonids. Designation of critical
habitat would merely affirm what is already widely accepted by
conservationists, agencies, and most of the public regarding the
conservation value of these areas. It would also likely provide a
relatively low level of additional voluntary conservation effort, and
is actually more likely to undermine many of the existing cooperative
voluntary efforts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have analyzed the benefits of including FCRPS
areas as part of the critical habitat designation and the benefits of
excluding these areas, and determined that the benefits of exclusion
outweigh those of inclusion. Therefore, we have excluded all Federal
lands covered under FCRPS from this final designation of critical
habitat for the bull trout pursuant to section 4(b)(2) of the Act.
Further, we have determined that the exclusion of areas covered by the
FCRPS would not result in the extinction of the bull trout based on the
benefits provided the species through the plan and our consultation on
the FCRPS under section 7 of the Act.
Snake River Basin Adjudication, Montana Bull Trout Restoration Plan,
Willamette and Malheur River Basins, and Streams Regulated Under
PACFISH/INFISH
These exclusions include the Snake River Basin Adjudication,
Montana Bull Trout Restoration Plan, the Willamette and Malheur River
Basins, and stream reaches regulated under PACFISH/INFISH. The Snake
River Basin Adjudication is an historic agreement between the Secretary
of the Interior, the State of Idaho, and the Tribes to provide for
conservation within the Snake River Basin. The affected parties have
signed an agreement in principle and are moving forward to implement a
plan for the basin. The benefit of excluding these areas from
designation are that voluntary conservation will be achieved on all
lands, not just lands with a Federal nexus. Stream reaches in the State
of Montana Lands were excluded under section 4(b)(2) and because they
do not meet the definition of critical habitat as they are not in need
of special management or protection. The Willamette and Malheur Basins
were excluded on the basis that the designations were the two most
costly per river mile.
In January, 1994, the Governor of Montana established a Bull Trout
Restoration Team to develop a restoration plan for bull trout in
Montana. The Restoration Team created a Scientific Group to provide
guidance on technical issues related to bull trout restoration efforts.
The Montana Bull Trout Scientific Group conducted a status review of
bull trout, assessed risks to the survival of the species, and
identified restoration and conservation goals. Status reports were
prepared for the twelve major bull trout restoration/conservation areas
identified in Montana addressing the critical populations of bull trout
within those areas. In addition, the Scientific Group prepared reports
on three of the major issues relative to bull trout restoration--
habitat requirements and land use impacts, removal and suppression of
introduced species, and the use of transplants or stocking in
restoration.
These documents, prepared by the Scientific Group in the time
period between 1995 and 1998, were intended to provide the most current
and accurate information available to the Montana Bull Trout
Restoration Team. The intent was for watershed groups and other
entities to utilize the information in making informed decisions
affecting the restoration and conservation of bull trout in Montana.
While implementation has not been uniform or consistent across the
range of bull trout in Montana, there have been significant instances
where the information developed by the Scientific Group has been
applied (e.g., Plum Creek Native Fish HCP). Additionally, the FWS draft
Bull Trout Recovery Plan utilized much of the information and
incorporated many of the restoration and conservation goals identified
by the Montana Bull Trout Scientific Group. The efforts of the Montana
Bull Trout Restoration Team, as updated by more recent information on
the status of and threats to bull trout in Montana, provides guidance
to future restoration efforts that may be implemented to recover bull
trout in Montana.
Lands currently managed under PACFISH/INFISH were excluded under
section 4(b)(2) and because they do not meet the definition of critical
habitat as they are not in need of special management or protection.
PACFISH/INFISH was originally an interim measure pending completion of
a plan similar to the Northwest Forest Plan in
[[Page 60033]]
the Interior Columbia River Basin. The Interior Columbia Plan was never
completed; however, these management guidelines have been implemented
by the U.S. Forest Service and the Bureau of Land Management for the
past nine years. Where new management plans have been adopted by the
land management agencies, the Service has found that the plans provided
similar or improved outcomes. The existing management regime is
protective of bull trout habitat, is likely to continue to the
foreseeable future and no additional benefit would be realized by
imposing a second regulatory scheme in the form of a critical habitat
designation. The benefit of excluding the designations which is in
terms of transactions costs to the agencies exceeds the benefit of
designating critical habitat which will provide no additional
protection in the face of the existing management.
For these reasons, we believe that Snake River Basin Adjudication,
stream reaches in the State of Montana, the Willamette and Malheur
River Basins, and stream reaches regulated under PACFISH/INFISH
provides substantial protection and restoration for bull trout and bull
trout habitat. Therefore, we have determined that the benefits of
excluding lands covered by these plans from the final designation of
critical habitat for the bull trout outweighs the benefits of including
them in the designation. Consequently, areas covered by the Snake River
Basin Adjudication, stream reaches in the State of Montana, the
Willamette and Malheur River Basins, stream reaches regulated under
PACFISH/INFISH are excluded from this critical habitat designation
pursuant to section 4(b)(2) of the Act. Our rationale for these
exclusions is discussed below.
(1) Benefits of Inclusion
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 adversely affect critical
habitat. Consultation ensures that action entities avoid the
destruction or adverse modification of critical habitat.
(2) Benefits of Exclusion
Consultation. One benefit would result from the requirement under
section 7 of the Act that Federal agencies consult with us to ensure
that any proposed actions do not destroy or adversely modify critical
habitat. The economic analysis estimates that there have been over 200
formal consultations and thousands of informal consultations involving
bull trout since its listing in 1998, and has involved numerous Federal
action agencies. However, unless there are other types of Federal
permitting or authorization within this area, private, and State-owned
lands would not be affected.
Regulatory and protective conservation measures are already
anticipated from the future consultations regarding the activities
described above. Consequently, we do not believe that designating
critical habitat within these areas would provide significant
additional regulatory benefits for bull trout.
Education/Information. 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 heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
We agree with these findings; however, we believe that there would be
little additional informational benefit gained from including these
areas within designated critical habitat for bull trout because the
final rule identifies all areas that are essential to the conservation
of bull trout, regardless of whether all of these areas are included in
the regulatory designation.
Additionally, many partners at the Federal, State, local
jurisdiction, private, and Tribal level have initiated active
information programs. While this educational outcome is important for
the conservation of bull trout, it is already being achieved through
the existing management, education, and public outreach efforts carried
out by landowners, conservation partners, and agencies. The plight of
salmonids in the Pacific Northwest has been subject to a well-developed
public outreach infrastructure that includes magazines, newsletters,
well-publicized public events, annual festivals, school group
activities, web-sites, and water-shed planning efforts. Consequently,
few additional educational or informational benefits will be provided
to bull trout if these areas are designated as critical habitat.
Voluntary Partnerships for Conservation and Restoration. Current
and ongoing conservation activities for salmon are compatible with
those for bull trout such that reestablishment of bull trout in
historic range and recovery throughout its range should not be
precluded in the future. Existing conservation efforts include the
application of Federal and State funds to salmonid recovery through the
Salmon Recovery Funding Board. Other programs are also focusing on both
active and passive restoration of habitats. Many partners are
cooperating to conducting monitoring and research.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have analyzed the benefits of including Snake
River Basin Adjudication, the Montana Bull Trout Restoration Plan, the
Willamette and Malheur River Basins, and stream reaches regulated under
PACFISH/INFISH as part of the critical habitat designation and the
benefits of excluding these areas, and determined that the benefits of
exclusion outweigh those of inclusion. Therefore, we have excluded all
Federal, State and private lands covered under Snake River Basin
Adjudication, all lands covered under the Montana Bull Trout
Restoration Plan, Federal lands within the Willamette and Malheur River
Basins, and Federal lands containing stream reaches regulated under
PACFISH/INFISH as part of the critical habitat designation from this
final designation of critical habitat for the bull trout pursuant to
section 4(b)(2) of the Act. Further, we have determined that the
exclusion of areas covered by these plans would not result in the
extinction of the bull trout based on the benefits provided the species
through the plan and our consultation on these programs under section 7
of the Act.
All Waters Impounded Behind Dams (Reservoirs and Pools)
All waters impounded behind dams (reservoirs and pools) were
excluded due to the potential for social and economic effects. In the
case of reservoirs, the economic analysis found that potential
modifications to the operations of reservoirs had the highest potential
for economic effects. These costs result from consultations on ACOE and
BOR dams and reservoirs, BPA consultations on the FCRPS, and FERC re-
licensing consultations. ACOE and BOR consultations on dam and
reservoir operations could lead to temperature control facilities, trap
and haul passage, fish ladders, spillway modification and bull trout-
related annual operation, maintenance, and study costs at various
Federal dams. There is some potential for third party lawsuits to
result in serious consequences for human health and safety as well as
economic costs. Therefore, we have determined that the benefits of
excluding lands covered by
[[Page 60034]]
these plans from the final designation of critical habitat for the bull
trout outweighs the benefits of including them in the designation.
Consequently, all impoundments behind dams are excluded from this
critical habitat designation pursuant to section 4(b)(2) of the Act.
Our rationale for these exclusions is discussed below.
(1) Benefits of Inclusion
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 adversely affect critical
habitat. Consultation ensures that action entities avoid the
destruction or adverse modification of critical habitat. However, these
impoundments are already subject to consultation due to the presence of
bull trout. Therefore, we find that the benefits of inclusion are low.
(2) Benefits of Exclusion
Most of the forecast project modification costs resulting from the
designation are dam and reservoir related (excluding USFS water
diversions). These costs result from consultations on ACOE and BOR dams
and reservoirs, BPA consultations on the FCRPS, and FERC re-licensing
consultations. Particularly, in the case of the Willamette Basin Unit
the cost of potential modifications to the ACOE Upper Willamette System
Dams likely will be disproportionately large when compared to costs
associated with other units. ACOE and BOR consultations on dam and
reservoir operations could lead to temperature control facilities, trap
and haul passage, fish ladders, spillway modification and bull trout-
related annual operation, maintenance, and study costs at various
Federal dams. In addition there is some concern that third party
lawsuits may result in reservoir and dam operation conditions that have
consequences to human health and safety. For these reasons, we believe
the benefits of exclusion are high.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Because the benefits of inclusion are low, and the benefits of
exclusion are high, both in economic terms and with respect to
potential concerns about human health and safety, we find that the
benefits of exclusion outweigh the benefits of inclusion for dams and
reservoirs throughout the proposed designation. Consequently, all
impoundments behind dams are excluded from this critical habitat
designation pursuant to section 4(b)(2) of the Act.
Lewis River Hydroelectric Projects Conservation Easements
We have been working with PacifiCorp since 1995 on relicensing the
Yale hydroelectric project in Washington. Subsequently, NOAA--Fisheries
and Cowlitz County PUD and other participants joined this process and
included relicensing of Merwin, Swift No. 1, and Swift No. 2
hydroelectric projects on the Lewis River. We completed the biological
opinion for the interim operation of the Lewis River hydroelectric
projects in June 2002 (Service 2002d). Conservation measures were
incorporated in the project description to minimize or compensate for
the effects of the projects on listed species, including bull trout.
Conservation measures included perpetual conservation easements on
PacifiCorp's lands in the Cougar/Panamaker Creek area and along the
Swift Creek arm of Swift Creek Reservoir. PacifiCorps signed and
notarized covenant agreements and filed Cougar Creek in Clark and
Cowlitz Counties, and Swift Creek in Clark and Skamania Counties
(PacifiCorps 2003 a, b, c, d).
Swift Creek 0.3 mi (0.5 km) up to a barrier falls is likely used
for foraging because habitat in this lower section of the creek is an
extension of the Swift Arm segment of Swift Creek Reservoir. Swift
Creek Reservoir provides foraging and overwintering habitat for the
Pine and Rush Creek bull trout local populations, and subadult bull
trout are known to use the Swift Arm segment of the reservoir. Actual
use of the lower section of Swift Creek by bull trout is unknown;
spawning and rearing is not known to occur here. Conservation measures
for Swift Creek will be implemented including: (1) Conserving and
protecting habitat for bull trout, cutthroat trout, and other aquatic
species; (2) monitoring to minimize sedimentation due to human
disturbance; and (3) development and implementation of vegetation
management practices to include, but be not limited to, removal of
nonnative or invasive plant species (PacifiCorp 2003 a, b).
Cougar Creek 1.7 mi (2.7 km) upstream to a lava tube barrier
contains the smallest of the three local populations of bull trout in
the Lewis River. Conservation measures included in PacifiCorp's
conservation easement include: (1) Management to conserve and protect
spawning and rearing habitat for bull trout; (2) monitoring to assure
no detrimental changes to bull trout habitat have occurred due to
upland management activities, winter storm damage, or other causes; (3)
development and implementation of vegetation management practices to
include, but will not be limited to, removal of nonnative or invasive
plant species; and (4) development and implementation of a road
maintenance plan to include provisions for repair or closure of roads
(PacifiCorp 2003 c, d). The latter will include closing a road on the
southeast boundary of the Cougar Creek lands to all vehicular access
except maintenance equipment. In addition to these conservation
measures, under the terms and conditions of the 2002 biological
opinion, PacifiCorp will continue to develop annual plans and fund the
cost of the net and haul system in place at the Yale tailrace (area
below dam). Since 1995, the capture and transport of bull trout from
the Yale tailrace to the mouth of Cougar Creek has probably contributed
significantly to the spawning population (Service 2002).
We assessed the adequacy of the conservation easements to ensure
that they provided: (1) A benefit to bull trout; (2) assurances of
implementation; and (3) assurances they would be effective. We
determined that bull trout will benefit from implementation of the
conservation measures that are part of the conservation easements for
Swift and Cougar Creeks. Thus, we have excluded lands within the
conservation easements for Swift and Cougar Creeks from this final
designation of critical habitat of the bull trout pursuant to section
4(b)(2) of the Act.
(1) Benefits of Inclusion
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 adversely affect critical
habitat. Consultation ensures that action entities avoid the
destruction or adverse modification of critical habitat.
Habitat identification essential to the conservation of the species
can provide information benefits to the public, State and local
governments, scientific organizations, and Federal agencies. The
heightened public awareness of the plight of listed species and their
habitats may facilitate conservation efforts. However, we believe
little additional informational benefit will be gained by including
Swift and Cougar Creeks in designated critical habitat for bull trout.
PacifiCorps has begun implementing conservation recommendations,
provided in our 2002 biological opinion, that include posting
interpretive signs to
[[Page 60035]]
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 benefits of excluding lands from critical habitat designation
include maintaining and enhancing our ability to negotiate with
hydroelectric power companies, counties, and other participants in
relicensing negotiations. 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 PacifiCorps, 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.
Excluding Swift Creek and Cougar Creek from critical habitat based
on conservation easements will help maintain trust in our intentions to
honor our agreements and facilitate negotiations for the final issuance
of the new Lewis River hydroelectric project licenses. It will also
facilitate our ability to negotiate in future consultations on other
relicensing projects. The introduction of additional Federal influence
through critical habitat designation could impact the spirit of
cooperation established over the last several years. Exclusion would
avoid impacting ongoing and future cooperative efforts, and will reduce
the cost and logistical burden of unnecessary regulatory oversight.
The benefits of excluding areas covered by conservation easements
from being designated critical habitat include relieving landowners and
counties of any additional regulatory review that result from such a
designation. Imposing an additional regulatory review after completion
of conservation easements with adequate conservation measures may
jeopardize conservation efforts and could be viewed as a disincentive
to those developing conservation easements.
An additional benefit of excluding conservation easement areas is
the encouragement of continued development of partnerships with States,
local governments, conservation organizations, and private landowners.
By excluding areas covered by conservation easements from designated
critical habitat, we encourage more effective conservation actions in
the future that would allow implementation of conservation actions we
would be unable to accomplish alone.
Other important conservation benefits to developing conservation
easements include developing biological information to guide
conservation efforts and assist in species' recovery, and the creation
of innovative solutions to conserve species while allowing commercial
activity.
The conservation easements will provide greater conservation
benefits to bull trout because they will assure long-term protection
and management of bull trout in Swift and Cougar Creeks. Such
assurances are typically not provided by section 7 consultations that,
in contrast to conservation easements with conservation measures, often
do not commit the project proponent to long-term species and habitat
protections. Also, the protections of section 7, with respect to the
jeopardy standard, and section 9 will still be in effect and will
result in actions that protect the species.
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, FERC
and other relicensing applicants; 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.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have determined that the benefits of excluding
Swift and Cougar Creeks from critical habitat because the benefits of
excluding them outweigh the benefits of including them in this final
critical habitat designation. The net benefit of including them has
been significantly minimized by PacifCorp's commitment to coordinate
with us on their activities that may adversely affect these two
streams. Conservation measures adopted by PacifiCorp will provide
tangible benefits that will reduce the likelihood of extinction and
increase the chances of recovery. Excluding these areas from designated
critical habitat will not result in extinction of the species,
particularly with implementation of the conservation measurements
defined in the conservation easements, continuation of the capture and
transport of bull trout from the Yale tailrace to Cougar Creek, and
other conservation measures identified in our 2002 biological opinion.
Consequently, we believe there is little or no additional benefit to
bull trout by including Swift and Cougar Creeks in designated critical
habitat.
The management commitments by PacifiCorp lead us to conclude that
any additional, incremental regulatory benefits provided by a final
critical habitat designation on their lands would be relatively small.
Although we are excluding these streams, we still consider them
essential to the conservation of the species. However, neither section
7 consultations nor a critical habitat designation would necessarily
result in the implementation of actions needed for recovery of these
species. PacifiCorp has committed to several proactive conservation
management activities that will provide a conservation benefit to the
species. We believe the benefits of critical habitat designation to be
small for these two streams covered by conservation easements with
adequate conservation measures, and the benefits of excluding them are
significant. The conservation measures provided these two streams under
the terms of our 2002 biological opinion and incorporated into the
conservation easements will provide sufficient protection and provide
conservation benefits to the species. The benefits of excluding Swift
and Cougar Creeks from designated critical habitat outweigh the
benefits of inclusion. Swift Creek Reservoir, the Swift Arm segment of
the reservoir, and Pine and Rush Creeks are still included in
designated critical habitat.
Military Lands
Bayview Acoustic Research Detachment (ARD)
The Bayview ARD, Naval Surface Warfare Center, Bayview, ID,
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
[[Page 60036]]
spawning or early life rearing, but the lake area does contain
important FMO habitat for bull trout.
(1) Benefits of Inclusion
The benefits of designating critical habitat on Bayview ARD are
minimal because: (1) Of the small area that it encompasses; and (2) it
only provides limited habitat that may only occasionally be used by
bull trout with respect to the rest of Lake Pend Oreille. The area of
lake bottom included in the Bayview ARD property does, however, contain
some of the best kokanee spawning habitat in Lake Pend Oreille, and
kokanee are a primary forage item for bull trout. Bayview ARD has
submitted a draft integrated natural resource management plan (INRMP),
which outlines protection and management strategies for natural
resources on the center, including fish species and their habitats.
(2) Benefits of Exclusion
Designating critical habitat on Bayview ARD may 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).
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding Bayview ARD as critical habitat outweigh
the benefits of including it as critical habitat for bull trout.
Further, we have determined that excluding the Bayview ARD will not
result in the extinction of the bull trout. If significant additional
information becomes available that changes our analysis of the benefits
of excluding Bayview ARD from this critical habitat designation, we may
revise this final designation accordingly.
Tribal Lands
We have considered whether or not Confederated Tribes of Warm
Springs Reservation of Oregon (CTWS) Tribal lands should be excluded
under subsection 4(b)(2) of the Act, which allows us to exclude areas
from critical habitat designation where the benefits of exclusion
outweigh the benefits of designation, provided the exclusion will not
result in the extinction of the species.
(1) Benefits of Inclusion
Habitat essential to bull trout conservation exists within CTWS
lands. The primary direct benefit of inclusion of these lands as
critical habitat would result from the requirement under section 7 of
the Act that Federal agencies consult with us to ensure that any
proposed Federal actions do not destroy or adversely modify critical
habitat. The benefit of a critical habitat designation would ensure
that any actions authorized, funded, or carried out by a Federal agency
would not likely destroy or adversely modify any critical habitat.
Another possible benefit of designating critical habitat is that
the designation can educate the public regarding the potential
conservation value of an area. This may contribute to conservation
efforts by other parties by clearly delineating areas of high
conservation value for the bull trout. Information about bull trout and
their suitable habitat that was identified on CTWS lands could have a
positive conservation benefit for the species. While we believe this
educational outcome is important for bull trout conservation, we
believe it has already been achieved through the existing management,
education, and public outreach efforts carried out by the CTWS. A final
designation of critical habitat on CTWS lands would simply affirm the
recognized conservation value of these lands, which is already widely
accepted by conservationists, public agencies, and most of the public.
We believe that a critical habitat designation for the bull trout
on CTWS lands would provide a relatively low level of additional
benefit. Any regulatory conservation benefits would accrue through the
benefit associated with additional section 7 consultation associated
with critical habitat. Based on a review of past consultations and
consideration of the likely future activities in this specific area,
there is little Federal activity expected to occur on CTWS lands that
would trigger section 7 consultation. We also believe that a final
critical habitat designation provides little additional educational
benefits since the conservation value is already well known by the
CTWS, the State, Federal agencies, private organizations, and the
public.
(2) Benefits of Exclusion
Proactive voluntary conservation efforts are necessary to prevent
the extinction and promote the recovery of the bull trout on CTWS
lands. This is especially important in areas where the bull trout has
been extirpated and its recovery requires access and permission for
reintroduction efforts. For example, bull trout have been extirpated
from some streams on CTWS lands, and repopulation is not likely without
CTWS cooperation. The CTWS has a long history of carrying out proactive
conservation actions on their lands. The CTWS's management plans
provide guidelines for land uses that affect CTWS resources and serve
as the basis for Tribal management decisions. We believe that the bull
trout will benefit substantially from the CTWS's voluntary management
actions due to their long-standing and broad application to Tribal
management decisions.
We believe that exclusion of CTWS lands from critical habitat would
have substantial benefits including the: (1) Furtherance of our Federal
trust obligations; (2) establishment and maintenance of effective
working relationships to promote the conservation of bull trout while
streamlining the consultation process; (3) allowance for meaningful
collaboration and cooperation in scientific studies to learn more about
the life history and habitat requirements of bull trout populations
that occur on their land; and (4) providing conservation benefits that
might not otherwise occur to bull trout that depend on Tribal streams.
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 that 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 a proven partner such as the CTWS, to provide positive incentives
implementing voluntary conservation activities, and to respect CTWS
concerns about incurring incidental regulatory or economic impacts.
Three of the five remaining bull trout populations in the lower
Deschutes River exist on CTWS lands. Therefore, a successful recovery
program is highly
[[Page 60037]]
dependent on developing working partnerships with a wide variety of
entities, and the voluntary cooperation of the CTWS and others is
essential to accomplishing recovery for listed species such as the bull
trout. Because bull trout populations are located on CTWS lands,
successful recovery of the bull trout in the Deschutes River basin is
especially dependent upon working partnerships and the voluntary
cooperation of the CTWS.
We believe that excluding these CTWS lands from critical habitat
will help maintain and improve our partnership relationship by
recognizing the CTWS's 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. Few additional
benefits are provided by including the CTWS lands in this critical
habitat designation beyond what will be achieved through the
implementation of the CTWS's existing conservation plans.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding CTWS lands as critical habitat for the
bull trout outweigh the benefits of including them as critical habitat.
We have also determined that the exclusion will not result in the
extinction or endangerment of the species. The combined benefits of
excluding these habitats are significant and include:
(1) Furtherance of our Federal trust obligations, including
consistency with our government-to-government responsibilities under
Secretarial Order 3206 and Executive Order 13175.
(2) Maintaining the effective working relationship that exists
between the Service and CTWS. CTWS lands are already being managed to
conserve bull trout. We believe that the bull trout will benefit from
CTWS's voluntary management actions due to their long-standing and
broad application to Tribal management decisions. Tribal lands are
currently being managed on a voluntary basis in cooperation with the
Service and others to achieve important conservation goals.
(3) Continuing the productive cooperative scientific efforts
between the Service and CTWS. Tribal cooperation and support is
required to prevent extinction and promote the recovery of listed
species. Cooperation and support is required to prevent the extinction
and promote the recovery of the bull trout due to the need to implement
proactive conservation actions. This need for CTWS cooperation is
especially acute because three of the five Deschutes River basin
populations exist on CTWS lands. Future conservation efforts will
require the cooperation of CTWS. Exclusion of CTWS lands from this
critical habitat designation will help us maintain and improve our
partnership with the CTWS by formally recognizing the positive
contributions of the CTWS to bull trout recovery, and by streamlining
or reducing unnecessary regulatory oversight.
(4) Recognition and continuation of the conservation benefits to
the bull trout that come from the CTWS's existing conservation
programs. The CTWS has 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.
Given the cooperative relationship between CTWS and the Service, we
believe the additional regulatory and educational benefits of including
these lands as critical habitat are relatively small. The designation
of critical habitat can serve to educate the public regarding the
potential conservation value of an area, but this goal is already being
accomplished through the identification of these areas in the
management plans described above and through the CTWS's outreach
efforts.
We considered whether or not excluding these stream sections on
CTWS lands would result in the extinction of bull trout within the
foreseeable future. We have concluded that CTWS's voluntary
conservation efforts will provide tangible conservation benefits that
will reduce the likelihood of extinction and increase the likelihood
for recovery. The exclusion of these areas will not increase the risk
of endangerment or extinction to the bull trout, and may increase the
likelihood that bull trout will recover by encouraging the CTWS to
implement additional voluntary conservation measures.
The above analysis concludes that excluding CTWS lands from
critical habitat will have a net beneficial impact with little risk of
negative impacts. Thus, excluding these lands will not cause extinction
of the bull trout, and may improve the chances for its recovery on CTWS
lands.
CTWS Boundary Streams: Our analysis for the November 29, 2002 (67
FR 71235) proposed designation of critical habitat found that
management within Warm Springs Tribal Conditional Use Areas (CUAs)
provides a sufficient level of protection and certainty of
implementation such that special management considerations or
protection is not required. We did not include 39 mi (63 km) of streams
within the CUAs as part of our proposed designation of critical habitat
because we did not believe that these stream segments met the
definition of critical habitat. However, we made an exception to our
general finding regarding CUAs on the CTWS Reservation's southern and
southeastern boundaries, where the boundary is defined by the Metolius
and Deschutes Rivers. Here, we found that there was some uncertainty as
to the ability of the Tribal management plans to adequately protect the
entire waterway up to the river's bankfull elevation on either shore.
This is because the opposite shore is not part of the Reservation and
is not managed as part of a CUA. Therefore, we included the Metolius
and Deschutes Rivers from bank to bank along the Reservation boundary
as part of our proposed designation of critical habitat.
We have reassessed our proposed critical habitat designation along
those streams which form the reservation's boundary. The 1855 Treaty
between the CTWS and United States extends CTWS jurisdiction to the
bankfull elevation on the opposite shore of the CTWS reservation
boundary at Jefferson Creek and the Metolius River, and to the mid-
point of the Deschutes River where it forms the reservation boundary.
Executive Order 13175 and the Secretarial Order 3206 instruct us to
respect Tribal self-government and sovereignty when considering a
critical habitat designation on Tribal lands. Thus, we must assess
whether Tribal management plans for Tribal trust resources are adequate
to achieve the necessary conservation purpose. While this discussion
mentions Tribal ``lands,'' we have no reason to believe that this logic
should not also extend to Tribal ``waters.''
Based on the above information, we find that the appropriate
boundary on which to base a determination regarding the extent of
critical habitat is the CTWS reservation boundary, which is the
bankfull elevation on the opposite shore of Jefferson Creek (G3) and
the Metolius River (E1), and the mid-point of the lower Deschutes River
(A1), and the mid-point of the three Deschutes River
[[Page 60038]]
reservoirs (A2, A3, A4), where they form the reservation boundary. We
find that the management provided within Warm Springs Tribal CUAs
provides a sufficient level of protection and certainty of
implementation such that special management considerations or
protection is not required on Jefferson Creek (G3) and the Metolius
River (E1). Therefore, on the basis of section 4(b)(2) of the Act, we
will not include Jefferson Creek (G3) and the Metolius River (E1) in
our final designation of critical habitat. We will not include the
lower Deschutes River (A1) and the three Deschutes River reservoirs
(A2, A3, A4) to their mid-point in our final designation of critical
habitat, because the benefits of exclusion outweigh the benefits of
inclusion.
Our reassessment of Tribal CUAs also found that our proposed
designation of critical habitat had made several mapping errors. We
included several streams which we had intended to exclude because they
are within Tribal CUAs. These include the Whitewater River (F1), Parker
Creek (G4), Bunchgrass Creek in the upper Warm Springs River (B1), and
the upper Warm Springs River (B3) (B4) (B5). We are excluding these
streams in this final rule.
We have reviewed the overall effect of the exclusion of the above-
mentioned approved and draft HCPs, FFR, Tribal lands, and military
installations 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.
Stream Reaches Less Than 0.5 mi (0.8 km) in Length Under Private Land
Ownership
During the development of the final designation, we determined that
there were an estimated 1,831 stream segments under private
landownership that were less than 0.5 mi (0.8 km) in length, accounting
for approximately 287 mi (462 km) reaches in the proposed designation.
We evaluated these stream segments to confirm whether they were
essential to the conservation of the bull trout and to determine if the
reaches warranted exclusion from the final designation pursuant to
section 4(b)(2) of the Act based on disproportionate regulatory impacts
to the private landowners or preservation of conservation partnerships.
On the basis of this evaluation, we determined that these specific
stream reaches warranted exclusion from the final designation pursuant
to section 4(b)(2) of Act. Our rational for this determination is
discussed below.
(1) Benefits of Inclusion
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 adversely affect critical
habitat. Consultation ensures that action entities avoid the
destruction or adverse modification of critical habitat
Another possible benefit to including these lands is that the
designation of critical habitat can serve to educate landowners and the
public regarding the potential conservation value of an area. This may
focus and contribute to conservation efforts by other parties by
clearly delineating areas of high conservation value for certain
species.
(2) Benefits of Exclusion
One benefit would result from the requirement under section 7 of
the Act that Federal agencies consult with us to ensure that any
proposed actions do not destroy or adversely modify critical habitat.
The economic analysis estimates that there have been over 200 formal
consultations and thousands of informal consultations involving bull
trout since its listing in 1998, and has involved numerous Federal
action agencies. However, unless there are other types of Federal
permitting or authorization within this area, private, and State-owned
lands would not be affected.
Regulatory and protective conservation measures are already
anticipated from the future consultations regarding the activities
described above. Consequently, we do not believe that designating
critical habitat within these areas would provide significant
additional regulatory benefits for bull trout, and in fact, may result
in disproportionate regulatory and economic impacts to private land
owners.
Education/Information. 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 heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
We agree with these findings; however, we believe that there would be
little additional informational benefit gained from including these
areas within designated critical habitat for bull trout because the
final rule identifies all areas that are essential to the conservation
of bull trout, regardless of whether all of these areas are included in
the regulatory designation.
Additionally, many partners at the Federal, State, local
jurisdiction, private, and Tribal level have initiated active
information programs. While this educational outcome is important for
the conservation of bull trout, it is already being achieved through
the existing management, education, and public outreach efforts carried
out by landowners, conservation partners, and agencies. The plight of
salmonids in the Pacific Northwest has been subject to a well-developed
public outreach infrastructure that includes magazines, newsletters,
well-publicized public events, annual festivals, school group
activities, Web sites, and water-shed planning efforts. Consequently,
few additional educational or informational benefits will be provided
to bull trout if these areas are designated as critical habitat.
Voluntary Partnerships for Conservation and Restoration. Current
and ongoing conservation activities for salmon are compatible with
those for bull trout such that reestablishment of bull trout in
historic range and recovery throughout its range should not be
precluded in the future. Existing conservation efforts include the
application of Federal and State funds to salmonid recovery through the
Salmon Recovery Funding Board. Other programs are also focusing on both
active and passive restoration of habitats. Many partners are
cooperating to conducting monitoring and research.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and in accordance with section
4(b)(2) of the Act, we have analyzed the benefits of including the
1,831 stream reaches that are less than 0.5 mi (0.8 km) in length that
are under private landownership as part of the critical habitat
designation. We have determined that the benefits of exclusion outweigh
those of inclusion. Therefore, we have excluded the 1,831 stream
reaches from this final designation of critical habitat for the bull
trout pursuant to section 4(b)(2) of the Act. Further, we have
determined that the exclusion of the 1,831 stream
[[Page 60039]]
reaches would not result in the extinction of the bull trout based on
the benefits provided the species through existing management plans.
Critical Habitat Designation. Within the geographical areas
presently known to be occupied by the Klamath River and Columbia River
populations, we are designating only areas currently or historically
occupied and known to be essential to the conservation of bull trout.
We have found those occupied areas designated as essential to the
conservation of the species, but the Secretary has not found any areas
currently unoccupied as essential to the conservation of bull trout (50
CFR 424.12(e)). These areas designated already contain features and
habitat characteristics that are necessary to sustain the species, and
we do not foresee any changes to current practices in those areas.
Rather, these designations designed to maintain existing practices and
characteristics, and to review proposed changes where there is a
Federal nexus in order to ensure that existing conditions remain
unchanged with respect to their contribution to the conservation of
bull trout. We are designating areas that currently have enough of the
PCEs to provide essential life-cycle requisites of the species, as
defined at 50 CFR 424.12(b). Moreover, certain areas with known
occurrences of bull trout have not been designated as critical habitat.
We did not designate critical habitat for some small scattered
occurrences or habitats that are in highly fragmented areas, or no
longer have hydrologic conditions that are sufficient to maintain bull
trout habitat. We do not believe, based on the best available
scientific information, that these areas are essential to the
conservation of the species. Where information was unavailable, or we
were uncertain as to whether those areas would, in fact, prove
essential to the conservation of the species, we have not designated
critical habitat. However, if future information proves that additional
areas are necessary, we will revise our critical habitat designation.
The designated critical habitat areas described below constitute
our best assessment at this time of the stream reaches, lakes, and
marshes that are essential to the conservation of the Klamath River and
Columbia River bull trout populations. We are designating approximately
1,748 mi (2,813 km) of streams and 61,235 ac (24,781 ha) of lakes and
marshes for the Klamath River and the Columbia River populations of
bull trout.
The lateral extent of critical habitat, for each designated stream
reach, is the width of the stream channel as defined by its ordinary
high line. 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. 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).
Critical habitat includes bull trout habitat across the species'
range in Idaho, Montana, Oregon, and Washington. Lands adjacent to
designated critical habitat are under private, State, Tribal, and
Federal ownership. The areas we are designating as critical habitat,
described below, constitute our best assessment of areas essential to
the conservation of the Klamath and Columbia River populations of bull
trout.
In our proposed designation of critical habitat for the Klamath and
Columbia River populations of the bull trout (November 29, 2002 (67 FR
71235)), we proposed to designate critical habitat in 25 CHUs that
corresponded to recovery units identified in the draft Recovery Plan.
For additional information regarding stream segments and bodies of
water proposed for designation, please refer to the proposed critical
habitat rule. However, we have excluded many areas determined to be
essential to the conservation of bull trout from this final designation
pursuant to section 4(b)(2) of the Act. As such, only 13 of the
original 25 units are being designated as critical habitat for the
Klamath and Columbia River populations of the bull trout. Please refer
to the Regulations Promulgated section of this final rule for the
descriptions of areas designated as critical habitat.
The approximate area designated as critical habitat for the Klamath
and Columbia River populations of the bull trout by critical habitat
unit are listed in Table 1
Table 1.--Approximate Area Designated as Critical Habitat for the
Klamath and Columbia River Populations of the Bull Trout by Critical
Habitat Unit
------------------------------------------------------------------------
Stream
Critical Habitat Unit Miles Acres
------------------------------------------------------------------------
Clark Fork River Basin............................ 163 .........
Deschutes River Basin............................. 39 .........
Grande Ronde River Basin.......................... 300 .........
Hells Canyon Complex.............................. 125 .........
Hood River Basin.................................. 30 .........
Imnaha-Snake River Basins......................... 87 .........
Klamath River Basin............................... 42 33,939
Umatilla-Walla Walla River Basins................. 241 .........
Coeur d'Alene Lake Basin.......................... 119 27,296
Lower Columbia River Basin........................ 121 .........
Middle Columbia River Basin....................... 269 .........
Northeast Washington River Basins................. 119 .........
Snake River Basin in Washington................... 94 .........
------------
Total........................................... 1,748 61,235
------------------------------------------------------------------------
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 402.2, 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.'' We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of 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 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
[[Page 60040]]
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the agency in
eliminating conflicts that may be caused by the proposed action. The
conservation recommendations in a conference report are advisory. If a
species is listed or critical habitat is designated, section 7(a)(2)
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. Through this consultation, the action
agency ensures that the permitted actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in 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 the 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 critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
We may issue a formal conference report, if requested by the
Federal agency. Formal conference reports on proposed critical habitat
contain a section 7(a)(2) finding that is prepared according to 50 CFR
402.14, as if critical habitat were designated. We may adopt the formal
conference report as a biological opinion when critical habitat is
designated, if no substantial new information or changes in the action
warrant changes to the content of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect the bull trout or its
designated critical habitat will require section 7 consultation.
Activities on private or State lands requiring a permit from a Federal
agency, such as a permit from the Corps under section 404 of the Clean
Water Act, a section 10(a)(1)(B) permit from the Service, or some other
Federal action, including funding (e.g., FHA, Federal Aviation
Administration, or Federal Emergency Management Agency (FEMA)), will
also continue to be subject to compliance with section 7(a)(2) of the
Act. Federal actions not affecting listed species or critical habitat,
and actions which affect critical habitat but not a listed species, on
non-Federal and private lands that are not federally funded,
authorized, or permitted, do not require section 7 consultation.
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 include those that appreciably reduce the value of critical
habitat to the bull trout. We note that such activities may also
jeopardize the continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the conservation value
of critical habitat to the listed species.
All areas designated as critical habitat are determined to be
essential to the conservation of the bull trout, but some areas are
currently not known to be occupied. Although these specific areas are
not known to be occupied, they are within the geographical area
occupied by bull trout. Areas with low levels of bull trout occupancy,
or where presence of the species is undetermined, were included when
they provided connectivity between areas of high-quality habitat,
access to an abundant food base, served as important migration
corridors for fluvial or adfluvial fish, or were identified in the
draft Recovery Plan as necessary for local population expansion or
reestablishment in order to achieve recovery, so that delisting can
occur. Restoration of reproducing bull trout populations to additional
portions of their historical range would significantly reduce the
likelihood of extinction due to natural or human-caused factors that
might otherwise further reduce population size and distribution. Thus,
an integral component of the draft Recovery Plan is the selective
reestablishment of secure, self-sustaining populations in certain areas
where the species has apparently, but not necessarily conclusively,
been extirpated. However, we believe, and the economic analysis
discussed below illustrates, that the designation of critical habitat
is not likely to result in a significant regulatory burden above that
already in place due to the presence of the listed species. Few
additional consultations are likely to be conducted due to the
designation of critical habitat.
A number of Federal activities have the potential to destroy or
adversely modify critical habitat for the bull trout. These activities
may include land and water management actions of Federal agencies
(e.g., Corps, BOR, USFS, BLM, Natural Resources Conservation Service,
and Bureau of Indian Affairs) and related or similar actions of other
Federally regulated projects (e.g., road and bridge construction
activities by the FHA; dredge and fill projects, sand and gravel
mining, and bank stabilization activities conducted or authorized by
the Corps; and, National Pollutant Discharge Elimination System permits
authorized by the EPA).
Specifically, 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) Significant and 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
[[Page 60041]]
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 urban and suburban 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. in Naiman 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) Significant and 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) Significant and 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) 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 for sport, aesthetics, biological control, or other purposes;
use of live bait fish; aquaculture; construction and operation of
canals; and interbasin water transfers; and
(6) Activities that are likely to create significant instream
barriers to bull trout movement. Possible actions would include water
diversions, impoundments, and hydropower generation where effective
fish passage facilities, mechanisms, or procedures are not provided.
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 impacts of
designating a particular area as critical habitat. We may 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 such areas from critical habitat when such
exclusion will result in the extinction of the species concerned.
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. For example, regional management
plans such as the NWFP, PACFISH, and INFISH provide significant
protection to bull trout and its habitat while imposing significant
costs within the region. 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 becomes 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 are 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
[[Page 60042]]
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 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.
A copy of the final economic analysis 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).
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. The SBREFA amended the RFA to
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. The 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; as well as 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, the 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
[[Page 60043]]
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.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, 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.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, 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 EPA, 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 take 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 regular 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 proposed. 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 FERC, 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 U.S.-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
designated 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:
[[Page 60044]]
(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.'' It also
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; AFDC 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 who receive Federal
funding, assistance, permits or 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'' 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. 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, 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 issuance 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 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, Oregon, Montana, and Idaho. 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 primary constituent
elements 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 waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor determined that this rule does not
unduly burden the judicial system and 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
of 1973, as amended. The final rule uses standard property descriptions
and identifies the primary constituent elements 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
It is our position that, outside the Tenth Circuit, 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).
[[Page 60045]]
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 are essential to the
conservation of the species. We have designated critical habitat for
portions of the Klickitat River and South Fork Ahtanum Creek within the
Yakama Reservation; the Umatilla River, Meacham Creek, and Squaw Creek
within the Umatilla Reservation; Lake Coeur d'Alene within the Coeur
d'Alene Reservation; the Pend Oreille River within the Kalispell
Reservation; the Clearwater River, North Fork Clearwater River, Middle
Fork Clearwater River, South Fork Clearwater River, Lolo Creek, Clear
Creek, and Dworshak Reservoir within the Nez Perce Reservation;
portions of Flathead Lake, the lower Flathead River, and the Jocko
River watershed on the Flathead Reservation; and portions of the Jocko
River watershed, Mission Creek, and Post Creek on the CSKT lands on the
Flathead Reservation. A total of approximately 144 mi (232 km) of
stream segments and approximately 735 ac (297 ha) of lake/reservoir
habitat on Tribal lands is included in our critical habitat
designation.
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 (notes of
government-to-government meeting, September 26, 2002, in our
administrative record files).
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 Practices. They also provided us with information on
specific actions they have taken that benefit the bull trout.
During the last several decades, the CTWS has implemented many
conservation measures on Tribal lands that have benefited bull trout.
For example, their Comprehensive Plan is a broad document that includes
Tribal ordinances, the Tribe's IRMPs, and Tribal resolutions.
Ordinances are Tribal laws that address issues such as water use, water
quality, implementation of water quality standards, natural resource
management, and range management. The IRMPs include several resource
assessment processes such as Project Impact Statements and Project
Assessments, Best Management Practices, and the use of measurable
standards for project evaluations. Tribal resolutions address fishing
and hunting seasons on Tribal lands. The CTWS has closed the mouth of
the Metolius River to fishing since 1997 to provide sanctuary to adult
bull trout which gather here before beginning their upstream migration
to spawning streams. The CTWS also implemented a bag limit of one bull
trout per day in Lake Billy Chinook. The Tribe's Resource Management
Interdisciplinary Team is responsible for implementing the measures
described above (Robert Brunoe, CTWS, pers. comm. 2003).
Other conservation measures include habitat protection and
restoration measures, as well as monitoring and research. The lower 6
mi (10 km) of Shitike Creek are a migratory corridor for bull trout,
and have been affected by channel simplification and a headworks
facility. The headworks facility was removed as part of the Lower
Shitike Creek Habitat Improvement Project, which was adopted by Tribal
Council as resolution 7838. The project was implemented in two phases
between 1988 and 1989, to improve fish passage and increase Tribal
fisheries resources in Shitike Creek. Instream habitat structures were
constructed in lower Shitike Creek between 1990 and 1994 to increase
channel complexity. The CTWS has also constructed numerous riparian
fencing projects along the mainstem Deschutes River, Shitike Creek, and
Warm Springs River. The CTWS has made efforts to prevent removal of
large wood from the Metolius River and has replaced culverts in
Bunchgrass Creek to facilitate upstream fish passage.
The CTWS has been actively involved in bull trout monitoring,
research, and conservation efforts since 1998. This work has been
focused mostly on the Warm Springs River, Shitike Creek, and the
Whitewater River, which are on Tribal land and have bull trout
populations. Tribal biologists have also performed research on bull
trout in the mainstem Deschutes River. The CTWS collects data on
juvenile bull trout abundance, has radio-tagged adult bull trout to
track their seasonal migration (Brun 1999; Brun and Dodson 2000, 2001,
2002), and they plan to continue these activities in the future. The
BPA has provided funding to the CTWS to determine bull trout life
history, genetics, and abundance in the lower Deschutes River. Tribal
biologists were participants in the Recovery Unit Team for our
Deschutes River basin draft Recovery Plan.
The CTWS has written two IRMPs that address issues affecting bull
trout. IRMP I pertains to forested lands, and was approved by Tribal
Council on in 1992 as Tribal Ordinance 74. The Tribe's IRMP I discusses
the history of Tribal forestry. During the 1940s and 1950s, the Tribes
harvested ponderosa pine and took measures to protect forest health.
Ponderosa pine forests were managed by selection cutting and
shelterwood regeneration during the 1960s and 1970s. In the 1980s, they
reduced harvest goals several times to increase protection for other
resources. The IRMP provides management direction for some 398,466 ac
(161,254 ha) of forested Tribal land. This includes a system of
riparian buffers, leaving snags and live trees after harvest, erosion
control, and transportation system management.
IRMP II pertains to non-forested and rural lands, and was approved
by Tribal Council in 1999 as Resolution 9723. This action amended
Ordinance 74 to include IRMP II. The Tribal IRMP II addresses 15
issues, including the location of Extensive Management Zones,
management of woodlands outside of commercial forestry areas, uplands
management, riparian management, fish screen criteria, transportation
system management, and measures to protect, enhance, and reintroduce
threatened or endangered species. It recommends average road density
guidelines that reduce road density to less than 1.0 mi (1.6 km) per
section in riparian and wetland zones. The IRMP II also recommends
reducing the number of roads in non-forested
[[Page 60046]]
areas, and reducing impacts through road closures, culvert placement,
and revegetation of cutbanks.
The Tribe's Streamside Management plan was written in 1982 to help
maintain Tribal water quality standards and improve water quality.
These standards became Tribal law when the Tribal Council adopted the
Water Code in 1968 as ordinance number 45. Tribal Council also adopted
the Implementing Provisions of the Water Code as resolution number
5772. It includes a stream classification system and management
guidelines for forestry, fuel treatment, livestock, grazing, and
transportation.
The Water Resource Inventory and Water Management Plan for the Warm
Springs Indian Reservation was authorized by Tribal Council on August
3, 1967, as resolution number 2980. On April 17, 1968, Tribal Council
passed ordinance number 45 to make the Water Management Plan the
official Water Code of the Warm Springs Reservation. The plan
determines what water resources exist on CTWS lands, the priority of
present and future uses, and explains how to allocate and control water
resource use. The plan assessed water needs for fish and biotic life,
and stated that the volume of streamflow should never be reduced below
that required for the maintenance of the biotic environment. It also
established grazing capacity for the reservation, and made
recommendations for grazing management. Though irrigation demands were
minimal, the plan assessed Tribal demands for irrigation water.
The CTWS also published in 1992 a Field Guide to INRMP Standards
and Best Management Practices. This guide included best management
practices for forest activities, riparian areas, threatened and
endangered species, fire management, forage management, transportation
systems, and aquatic resources.
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.
References Cited
A complete list of all references cited in this proposed 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. In Sec. 17.11(h) revise the entry for ``Trout, bull'' under
``FISHES'' to read as follows:
17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES
* * * * * * *
Trout, bull..................... Salvelinus U.S.A. (AK, U.S.A, coterminous T 637, 639E, 17.95(e) 17.44(w),
confluentus. Pacific NW into (lower 48 states). 659, 670 17.44(x).
CA, ID, NV, MT),
Canada (NW
Territories).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(e) by adding critical habitat for the bull trout
(Salvelinus confluentus) in the same alphabetical order as this species
occurs in Sec. 17.11 (h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) * * *
Bull Trout (Salvelinus confluentus)
(1) Critical habitat is depicted for Ada, Adams, Benewah, Blaine,
Boise, Bonner, Boundary, Butte, Camas, Canyon, Clearwater, Custer,
Elmore, Gem, Idaho, Kootenai, Lemhi, Latah, Lewis, Nez Perce, Pend
Oreille, Shoshone, Valley, and Washington Counties, ID; Deer Lodge,
Flathead, Lake, Granite, Lewis and Clark, Lincoln, Mineral, Missoula,
Payette, Powell, Ravalli, and Sanders Counties, MT; Baker, Clatsop,
Columbia, Crook, Deschutes, Gilliam, Grant, Harney, Hood River,
Jefferson, Klamath, Lake, Lane, Linn, Malheur, Morrow, Multnomah,
Sherman, Umatilla, Union, Wallowa, Wasco, and Wheeler Counties, OR; and
Asotin, Benton, Chelan, Columbia, Clark, Cowlitz, Douglas, Garfield,
Grant, Franklin, Kittitas, Klickitat, Okanogan, Pacific, Pend Oreille,
Skamania, Wahkiakum, Walla Walla, Whitman, and Yakima Counties, WA, on
the maps and as described below.
(2) Critical habitat includes the stream channels within the stream
reaches indicated on the maps in this critical habitat designation, 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 shall be used to determine the lateral extent of critical
habitat. The lateral extent of proposed lakes and reservoirs is defined
by the perimeter of the water body as mapped on standard 1:24,000 scale
topographic maps.
[[Page 60047]]
(3) Within these areas, the 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. Existing human-constructed features and structures
within the critical habitat boundary, such as buildings, powerlines,
roads, railroads, urban development, and other paved areas will not
contain one or more of the primary constituent elements; consequently,
Federal actions limited to those areas would not trigger a consultation
under section 7 of the Act unless they affect the species and/or
primary constituent elements in adjacent critical habitat. The PCEs
are:
(i) Water temperatures ranging from 36 to 59 [deg]F (2 to 15
[deg]C), with adequate thermal refugia available for temperatures at
the upper end of this range. Specific temperatures within this range
will 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;
(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. A minimal amount of fine
substrate less than 0.25 in (0.63 cm) in diameter and minimal substrate
embeddedness are characteristic of these conditions;
(iv) A natural hydrograph, including peak, high, low, and base
flows within historic ranges or, if regulated, 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;
(v) Springs, seeps, groundwater sources, and subsurface water
connectivity to contribute to water quality and quantity;
(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;
(viii) Few or no nonnative predatory, interbreeding, or competitive
species present; and
(ix) Permanent water of sufficient quantity and quality such that
normal reproduction, growth and survival are not inhibited.
(4) Critical habitat does not include non-Federal lands covered by
an incidental take permit for the Columbia River population of bull
trout issued under section 10(a)(1)(B) of the Act on or before October
6, 2004, as long as such permit, or a conservation easement providing
comparable conservation benefits, remains legally operative on such
lands.
(5) The following lands have been determined to be essential to the
conservation of the Klamath River and Columbia River populations of
bull trout, but have been excluded from designated critical habitat
pursuant to section 4(b)(2) of the Act:
(i) Non-Federal lands regulated under the Washington Forest
Practices Act (RCW Ch. 76.09), as amended by ``Engrossed Substitute
House Bill 2019'' (1999), and Montana Forested Trust Lands administered
by the Montana Department of Natural Resources;
(ii) All stream segments less than 0.5 mi (0.8 km) in length that
are under private landownership.
(6) Index map follows:
BILLING CODE 4310-55-P
[[Page 60048]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.000
[[Page 60049]]
(7) Unit 1: Klamath River Basin: Critical habitat is designated on
the streams listed below, but only for non-federal lands that have
greater than \1/2\ mile of river frontage and are located between the
associated endpoints for the stream. Lakes are designated in their
entirety.
(i) Upper Klamath Lake Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream
Stream Stream endpoint or endpoint or
Designated streams and lakes endpoint endpoint lake center lake center
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Sun Creek................................................... 42.898 -122.096 42.735 -122.008
Agency Lake................................................. Located at 42.541 -121.963
----------------------------------------------------------------------------------------------------------------
(ii) Sycan Marsh Subunit.
----------------------------------------------------------------------------------------------------------------
Streams Stream
Stream Stream endpoint or endpoint or
Designated streams and lakes endpoint endpoint lake center lake center
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Coyote Creek................................................ 42.893 -121.246 42.854 -121.158
Long Creek.................................................. 42.933 -121.338 42.826 -121.209
Sycan Marsh................................................. Located at 42.811 -121.113
----------------------------------------------------------------------------------------------------------------
(iii) Upper Sprague River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Boulder Creek............................................... 42.495 -120.884 42.517 -120.951
Brownsworth Creek........................................... 42.469 -120.854 42.392 -120.913
Deming Creek................................................ 42.486 -120.885 42.448 -120.953
Dixon Creek................................................. 42.532 -120.923 42.518 -120.937
Leonard Creek............................................... 42.465 -120.864 42.413 -120.867
North Fork Sprague River.................................... 42.557 -120.839 42.497 -121.008
Sheepy Creek................................................ 42.514 -120.890 42.534 -120.931
----------------------------------------------------------------------------------------------------------------
(iv) Note: Map of the Klamath River Basin follows:
[[Page 60050]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.001
[[Page 60051]]
(8) Unit 2: Clark Fork River Basin: Critical habitat is designated
on the streams listed below, but only for non-federal lands that have
greater than \1/2\ mile of river frontage and are located between the
associated endpoints for the stream.
(i) Lake Pend Oreille Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
East River.................................................. 48.371 -116.819 48.353 -116.852
Gold Creek.................................................. 47.954 -116.451 47.971 -116.454
Granite Creek............................................... 48.060 -116.329 48.087 -116.427
Grouse Creek................................................ 48.483 -116.228 48.403 -116.477
Lightning Creek............................................. 48.353 -116.175 48.140 -116.191
Middle Fork East River...................................... 48.362 -116.659 48.371 -116.819
North Fork Grouse Creek..................................... 48.502 -116.265 48.452 -116.373
Pack River.................................................. 48.613 -116.634 48.320 -116.382
Priest River................................................ 48.353 -116.852 48.178 -116.892
Tarlac Creek................................................ 48.349 -116.717 48.393 -116.737
Trestle Creek............................................... 48.352 -116.234 48.283 -116.352
Twin Creek.................................................. 48.063 -116.151 48.094 -116.129
Uleda Creek................................................. 48.339 -116.694 48.388 -116.707
----------------------------------------------------------------------------------------------------------------
(ii) Priest Lakes and River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Cedar Creek................................................. 48.909 -116.885 48.880 -116.959
Granite Creek............................................... 48.700 -117.029 48.639 -116.863
Hughes Fork................................................. 48.946 -117.023 48.805 -116.923
Indian Creek................................................ 48.634 -116.789 48.610 -116.836
Kalispell Creek............................................. 48.626 -117.134 48.567 -116.921
Lion Creek.................................................. 48.725 -116.672 48.736 -116.831
North Fork Indian Creek..................................... 48.627 -116.691 48.634 -116.789
Soldier Creek............................................... 48.547 -116.698 48.503 -116.838
South Fork Granite Creek.................................... 48.761 -117.147 48.700 -117.029
South Fork Indian Creek..................................... 48.624 -116.716 48.634 -116.789
South Fork Lion Creek....................................... 48.716 -116.718 48.743 -116.797
Trapper Creek............................................... 48.877 -116.846 48.796 -116.896
Two Mouth Creek............................................. 48.674 -116.676 48.688 -116.836
Upper Priest River.......................................... 49.000 -116.936 48.799 -116.911
----------------------------------------------------------------------------------------------------------------
(iii) Note: Maps of the Lake Pend Oreille Subunit and the Priest
Lakes and River Subunit of the Clark Fork River Basin follow:
[[Page 60052]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.002
[[Page 60053]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.003
[[Page 60054]]
(9) Unit 5: Hood River Basin: Critical habitat is designated on the
streams listed below, but only for non-federal lands that have greater
than \1/2\ mile of river frontage and are located between the
associated endpoints for the stream.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
East Fork Hood River........................................ 45.575 -121.626 45.605 -121.632
Hood River.................................................. 45.605 -121.632 45.721 -121.506
Middle Fork Hood River...................................... 45.463 -121.645 45.575 -121.626
West Fork Hood River........................................ 45.456 -121.781 45.605 -121.632
----------------------------------------------------------------------------------------------------------------
(i) Note: Map of the Hood River Basin follows:
[[Page 60055]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.004
[[Page 60056]]
(10) Unit 6: Deschutes River Basin: Critical habitat is designated
on the streams listed below, but only for non-federal lands that have
greater than \1/2\ mile of river frontage and are located between the
associated endpoints for the stream.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Deschutes River............................................. 44.373 -121.291 45.639 -120.914
Heising Spring.............................................. 44.491 -121.651 44.494 -121.648
Jack Creek.................................................. 44.472 -121.725 44.493 -121.647
Metolius River.............................................. 44.434 -121.637 44.577 -121.619
----------------------------------------------------------------------------------------------------------------
(i) Note: Map of the Deschutes River Basin follows:
[[Page 60057]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.005
[[Page 60058]]
(11) Unit 9: Umatilla-Walla Walla River Basins: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
(i) Umatilla Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Meacham Creek............................................... 45.527 -118.290 45.702 -118.359
North Fork Meacham Creek.................................... 45.575 -118.174 45.527 -118.290
Ryan Creek.................................................. 45.694 -118.308 45.723 -118.314
Umatilla River.............................................. 45.726 -118.187 45.923 -119.356
----------------------------------------------------------------------------------------------------------------
(ii) Walla Walla Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Burnt Fork.................................................. 46.087 -117.940 46.105 -117.985
Griffin Fork................................................ 46.099 -117.913 46.121 -117.973
Lewis Creek................................................. 46.156 -117.771 46.191 -117.824
Mill Creek.................................................. 46.011 -117.941 46.039 -118.478
North Fork Touchet River.................................... 46.093 -117.864 46.302 -117.959
North Fork Walla Walla River................................ 45.947 -117.990 45.899 -118.307
Paradise Creek.............................................. 46.001 -117.990 46.004 -118.017
South Fork Touchet River.................................... 46.105 -117.985 46.302 -117.959
South Fork Walla Walla River................................ 45.966 -117.963 45.899 -118.307
Spangler Creek.............................................. 46.099 -117.802 46.149 -117.806
Touchet River............................................... 46.302 -117.959 46.272 -118.174
UNNAMED--off Griffin Fork................................... 46.120 -117.922 46.113 -117.948
Walla Walla River........................................... 45.899 -118.307 46.039 -118.478
Wolf Fork Touchet River..................................... 46.075 -117.903 46.274 -117.895
Yellowhawk Creek............................................ 46.077 -118.272 46.017 -118.400
----------------------------------------------------------------------------------------------------------------
(iii) Note: Map of the Umatilla-Walla Walla River Basins follows:
[[Page 60059]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.006
[[Page 60060]]
(12) Unit 10: Grande Ronde River Basin: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Bear Creek.................................................. 45.323 -117.480 45.584 -117.540
Catherine Creek............................................. 45.120 -117.646 45.408 -117.930
Chicken Creek............................................... 45.024 -118.385 45.095 -118.394
Deer Creek.................................................. 45.423 -117.587 45.620 -117.699
Fly Creek................................................... 45.121 -118.465 45.210 -118.394
Grande Ronde River.......................................... 44.967 -118.254 46.080 -116.978
Hurricane Creek............................................. 45.274 -117.310 45.420 -117.301
Indian Creek................................................ 45.337 -117.721 45.534 -117.919
Limber Jim Creek............................................ 45.085 -118.229 45.089 -118.343
Little Bear Creek........................................... 45.428 -117.479 45.485 -117.554
Little Fly Creek............................................ 45.110 -118.475 45.121 -118.465
Little Lookingglass Creek................................... 45.817 -117.901 45.750 -117.874
Lookingglass Creek.......................................... 45.779 -118.078 45.707 -117.841
Lookout Creek............................................... 45.078 -118.540 45.110 -118.475
Lostine River............................................... 45.246 -117.374 45.552 -117.489
Minam River................................................. 45.148 -117.371 45.621 -117.720
Mottet Creek................................................ 45.788 -117.942 45.767 -117.886
North Fork Catherine Creek.................................. 45.225 -117.604 45.120 -117.646
Sheep Creek................................................. 45.016 -118.507 45.105 -118.381
South Fork Catherine Creek.................................. 45.112 -117.513 45.120 -117.646
Wallowa River............................................... 45.420 -117.301 45.726 -117.784
Wenaha River................................................ 45.951 -117.794 45.946 -117.450
----------------------------------------------------------------------------------------------------------------
(i) Note: Map of the Grande Ronde River Basin follows:
[[Page 60061]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.007
[[Page 60062]]
(13) Unit 11: Imnaha-Snake River Basins: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
(i) Snake River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Granite Creek............................................... 45.263 -116.611 45.349 -116.654
----------------------------------------------------------------------------------------------------------------
(ii) Imnaha River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Big Sheep Creek............................................. 45.178 -117.119 45.557 -116.834
Imnaha River................................................ 45.113 -117.125 45.817 -116.764
Little Sheep Creek.......................................... 45.232 -117.093 45.520 -116.859
McCully Creek............................................... 45.211 -117.140 45.311 -117.082
----------------------------------------------------------------------------------------------------------------
(iii) Note: Map of the Imnaha-Snake River Basins follows:
[[Page 60063]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.008
[[Page 60064]]
(14) Unit 12: Hells Canyon Complex: Critical habitat is designated
on the streams listed below, but only for non-federal lands that have
greater than \1/2\ mile of river frontage and are located between the
associated endpoints for the stream.
(i) Pine-Indian-Wildhorse Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Bear Creek.................................................. 45.136 -116.524 44.959 -116.724
Clear Creek................................................. 45.043 -117.143 44.866 -117.029
Crooked River............................................... 44.817 -116.742 44.959 -116.724
East Pine Creek............................................. 45.046 -117.119 44.872 -117.020
Indian Creek................................................ 45.150 -116.590 44.985 -116.828
Meadow Creek................................................ 45.017 -117.171 44.990 -117.142
North Pine Creek............................................ 45.079 -116.897 44.910 -116.948
Pine Creek.................................................. 45.039 -117.215 44.974 -116.853
Wildhorse River............................................. 44.959 -116.724 44.851 -116.896
----------------------------------------------------------------------------------------------------------------
(ii) Powder River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Anthony Creek............................................... 44.953 -118.220 45.013 -118.059
Big Muddy Creek............................................. 44.899 -118.131 44.940 -117.945
Little Cracker Creek........................................ 44.840 -118.166 44.826 -118.196
Pine Creek.................................................. 44.826 -118.078 44.849 -117.893
Rock Creek.................................................. 44.856 -118.124 44.918 -117.929
Salmon Creek................................................ 44.767 -118.019 44.888 -117.902
Wolf Creek.................................................. 45.068 -118.193 45.044 -117.893
----------------------------------------------------------------------------------------------------------------
(iii) Note: Map of the Hells Canyon Complex follows:
[[Page 60065]]
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[[Page 60066]]
(15) Unit 14: Coeur d'Alene Lake Basin: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream. Lakes are designated
in their entirety.
(i) Coeur d'Alene Lake Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream
Stream Stream endpoint or endpoint or
Designated stream and lakes endpoint endpoint lake lake
latitude longitude center center
latitude longitude
----------------------------------------------------------------------------------------------------------------
Coeur d'Alene Lake.......................................... Located at 47.548 -116.802
Coeur d'Alene River......................................... 47.558 -116.257 47.460 -116.798
Eagle Creek................................................. 47.652 -115.903 47.644 -115.921
North Fork Coeur d'Alene River.............................. 48.006 -116.321 47.558 -116.257
Prichard Creek.............................................. 47.644 -115.921 47.658 -115.976
Steamboat Creek............................................. 47.716 -116.199 47.662 -116.154
West Fork Eagle Creek....................................... 47.750 -115.803 47.652 -115.903
----------------------------------------------------------------------------------------------------------------
(ii) St. Joe River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated Streams and Lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Beaver Creek................................................ 47.064 -115.480 47.083 -115.355
Ruby Creek.................................................. 46.961 -115.430 46.983 -115.367
St. Joe River............................................... 47.017 -115.078 47.393 -116.749
----------------------------------------------------------------------------------------------------------------
(iii) Note: Map of the Coeur d'Alene Lake Basin follows:
[[Page 60067]]
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[[Page 60068]]
(16) Unit 19: Lower Columbia River Basin: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
(i) Lewis River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Lewis River (Lower)......................................... 45.957 -122.555 45.850 -122.782
Lewis River (Upper)......................................... 46.154 -121.882 46.066 -122.019
Pine Creek.................................................. 46.142 -122.095 46.071 -122.016
UNNAMED--off Swift Creek Reservoir.......................... 46.030 -122.024 46.043 -122.038
UNNAMED 1--off Pine Creek................................... 46.099 -122.068 46.092 -122.058
----------------------------------------------------------------------------------------------------------------
(ii) White Salmon River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
White Salmon River.......................................... 45.897 -121.503 45.723 -121.521
----------------------------------------------------------------------------------------------------------------
(iii) Klickitat River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Clearwater Creek............................................ 46.278 [minus:]121 46.276 -121.327
.330
Fish Lake Stream............................................ 46.342 -121.368 46.275 -121.312
Klickitat River............................................. 46.255 -121.239 45.691 -121.293
Little Muddy Creek.......................................... 46.278 -121.352 46.275 -121.312
Trappers Creek.............................................. 46.290 -121.362 46.275 -121.330
Two Lakes Stream............................................ 46.340 -121.384 46.342 -121.368
UNNAMED--off Fish Lake Stream............................... 46.323 -121.437 46.331 -121.359
West Fork Klickitat River................................... 46.275 -121.312 46.242 -121.246
----------------------------------------------------------------------------------------------------------------
(iv) Note: Map of the Lower Columbia River Basin follows:
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[[Page 60070]]
(17) Unit 20: Middle Columbia River Basin: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Ahtanum Creek............................................... 46.523 -120.853 46.529 -120.472
Box Canyon Creek............................................ 47.377 -121.257 47.361 -121.243
Cle Elum River.............................................. 47.589 -121.161 47.177 -120.990
Cooper River................................................ 47.455 -121.213 47.391 -121.098
Gold Creek.................................................. 47.475 -121.316 47.390 -121.382
Jack Creek.................................................. 47.334 -120.742 47.319 -120.855
Jungle Creek................................................ 47.333 -120.923 47.333 -120.855
Kachess River............................................... 47.429 -121.222 47.251 -121.200
M.F. Ahtanum Creek.......................................... 46.507 -121.179 46.518 -121.014
Mineral Creek............................................... 47.424 -121.251 47.420 -121.240
Naches River................................................ 46.989 -121.094 46.630 -120.514
North Fork Ahtanum Creek.................................... 46.538 -121.211 46.523 -120.853
North Fork Teanaway River................................... 47.454 -120.965 47.251 -120.877
North Fork Tieton River..................................... 46.508 -121.435 46.635 -121.261
Rattlesnake Creek........................................... 46.760 -121.315 46.820 -120.929
Shellneck Creek............................................. 46.516 -121.187 46.531 -121.158
South Fork Ahtanum Creek.................................... 46.454 -121.118 46.523 -120.853
South Fork Tieton River..................................... 46.496 -121.314 46.627 -121.132
Teanaway River.............................................. 47.257 -120.897 47.167 -120.834
Tieton River................................................ 46.656 -121.129 46.746 -120.786
Yakima River................................................ 47.322 -121.339 46.529 -120.472
----------------------------------------------------------------------------------------------------------------
(i) Note: Map of the Middle Columbia River Basin follows:
[[Page 60071]]
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[[Page 60072]]
(18) Unit 22: Northeast Washington River Basins: Critical habitat
is designated on the streams listed below, but only for non-federal
lands that have greater than \1/2\ mile of river frontage and are
located between the associated endpoints for the stream.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Calispell Creek............................................. 48.321 -117.307 48.344 -117.289
Cedar Creek................................................. 48.846 -117.521 48.742 -117.411
E. Fork Small Creek......................................... 48.371 -117.398 48.328 -117.354
East Branch LeClerc Creek................................... 48.673 -117.188 48.534 -117.282
Fourth of July Creek........................................ 48.573 -117.200 48.556 -117.272
Indian Creek................................................ 48.299 -117.151 48.243 -117.151
LeClerc Creek............................................... 48.534 -117.282 48.518 -117.283
Mill Creek.................................................. 48.493 -117.239 48.489 -117.265
N.F. of S. Fork Tacoma Creek................................ 48.436 -117.482 48.399 -117.361
Pend Oreille River.......................................... 48.989 -117.348 48.178 -116.996
Ruby Creek.................................................. 48.568 -117.509 48.556 -117.342
S. Fork Tacoma Creek........................................ 48.432 -117.506 48.394 -117.323
Small Creek................................................. 48.337 -117.409 48.321 -117.307
Sullivan Creek.............................................. 48.950 -117.070 48.865 -117.370
Tacoma Creek................................................ 48.445 -117.507 48.392 -117.288
West Branch LeClerc Creek................................... 48.701 -117.211 48.534 -117.282
----------------------------------------------------------------------------------------------------------------
(i) Note: Map of the Northeast Washington River Basins follows:
[[Page 60073]]
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[[Page 60074]]
(19) Unit 23: Snake River Basin in Washington: Critical habitat is
designated on the streams listed below, but only for non-federal lands
that have greater than \1/2\ mile of river frontage and are located
between the associated endpoints for the stream.
(i) Tucannon River Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Cummings Creek.............................................. 46.219 -117.595 46.333 -117.674
Hixon Creek................................................. 46.219 -117.651 46.246 -117.683
Little Tucannon River....................................... 46.181 -117.751 46.228 -117.721
Tucannon River.............................................. 46.139 -117.520 46.558 -118.174
----------------------------------------------------------------------------------------------------------------
(ii) Asotin Creek Subunit.
----------------------------------------------------------------------------------------------------------------
Stream Stream Stream Stream
Designated streams and lakes endpoint endpoint endpoint endpoint
latitude longitude latitude longitude
----------------------------------------------------------------------------------------------------------------
Asotin Creek................................................ 46.272 -117.291 46.345 -117.053
Charley Creek............................................... 46.210 -117.552 46.289 -117.278
George Creek................................................ 46.118 -117.363 46.326 -117.105
N. Fork Asotin Creek........................................ 46.196 -117.568 46.272 -117.291
----------------------------------------------------------------------------------------------------------------
(iii) Note: Map Snake River Basin in Washington follows:
[[Page 60075]]
[GRAPHIC] [TIFF OMITTED] TR06OC04.014
[[Page 60076]]
* * * * *
Dated: September 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22038 Filed 10-5-04; 8:45 am]
BILLING CODE 4310-55-C