59996 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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. 

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 lifehistory 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 59997 

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 

59998 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 peerreviewed 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 59999 

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, 

60000 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 sitespecific 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 nonFederal 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 

60002 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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. 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60004 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 °F (15 °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 

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temperature regimes. In the Klamath 

Basin, large bull trout have repeatedly 

migrated from cold water refugia 

through warm waters (69 °F (21 °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 longterm 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 

60006 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 timeframe 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 

60008 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 ongoing 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60010 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 sociopolitical 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60011 

for the Northeast Washington Recovery 

Unit (Service 2002). 

94. Comment: When water 

temperatures in the summer often 

exceed 70 °F (21 °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 midsummer. 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° F (21 °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 multiagency 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 

60012 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 preexisting 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. 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 troutrelated 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 

60014 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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, 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60016 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

‘‘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 overwinter, 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 managementrelated 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60018 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 troutrelated 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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. Benefitstransfer 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 

60020 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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’’ (socalled ‘‘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 

60022 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 longterm 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 lifehistory 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, 

60024 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 °F (2 to 15 °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 reevaluated 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 humancaused 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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. MaryBelly 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 °F (15 °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 °F (20 °C), Gamett 

(1999) documented steady and 

substantial declines in abundance in 

stream reaches where water temperature 

ranged from 59 to 68 °F (15 to 20 °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 nonFederal 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 

60026 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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., 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60028 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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, nonprogrammatic 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 longterm 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 longterm 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 streamassociated 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 nonindustrial forest landowners, familyheld 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 nonindustrial 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 

60030 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60032 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60034 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 longterm 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 longterm 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 

60036 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 longstanding 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 midpoint 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 

60038 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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

Critical Habitat Unit Stream 

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 

60040 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 nonFederal 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 highquality 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 humancaused 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 coextensive with the listing of the species. 

It also addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. 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 

60042 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 USFSmanaged 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 troutrelated 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 postdisaster 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: 

60044 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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 nonFederal 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). 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 

60046 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

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 

■ 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] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h) revise the entry for 

‘‘Trout, bull’’ under ‘‘FISHES’’ to read as 

follows: 

17.11 Endangered and threatened wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES 

* * * * * * * 

Trout, bull ................. Salvelinus 

confluentus.

U.S.A. (AK, Pacific 

NW into CA, ID, 

NV, MT), Canada 

(NW Territories).

U.S.A, coterminous 

(lower 48 states).

T 637, 639E, 

659, 670 

17.95(e) 17.44(w), 

17.44(x). 

* * * * * * * 

■ 3. Amend § 17.95(e) by adding critical 

habitat for the bull trout (Salvelinus 

confluentus) in the same alphabetical 

order as this species occurs in § 17.11 

(h). 

§ 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. 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 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 °F (2 to 15 °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 

60048 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 


Er06oc04.000</GPH>
Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60049 

(7) Unit 1: Klamath River Basin: 

Critical habitat is designated on the 

streams listed below, but only for nonfederal 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. 

Designated streams and lakes 

Stream endpoint latitude Stream endpoint longitude 

Stream endpoint or lake 

center latitude 

Stream endpoint or lake 

center longitude 

Sun Creek ........................................................................................................................ 42.898 ¥122.096 42.735 ¥122.008 

Agency Lake .................................................................................................................... Located at 42.541 ¥121.963 

(ii) Sycan Marsh Subunit. 

Designated streams and lakes 

Stream endpoint latitude Stream endpoint longitude 

Streams 

endpoint or 

lake center 

latitude 

Stream endpoint or lake 

center 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. 

Designated streams and lakes 

Stream endpoint latitude Stream endpoint longitude Stream endpoint latitude Stream endpoint 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: 

60050 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 


ER06OC04.001</GPH>
Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60051 

(8) Unit 2: Clark Fork River Basin: 

Critical habitat is designated on the 

streams listed below, but only for nonfederal 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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

60052 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 


ER06OC04.002</GPH>
Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60053 


ER06OC04.003</GPH>
60054 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60055 


ER06OC04.004</GPH>
60056 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(10) Unit 6: Deschutes River Basin: 

Critical habitat is designated on the 

streams listed below, but only for nonfederal lands that have greater than 1⁄2

mile of river frontage and are located 

between the associated endpoints for 

the stream. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60057 


ER06OC04.005</GPH>
60058 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60059 


ER06OC04.006</GPH>
60060 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60061 


ER06OC04.007</GPH>
60062 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Granite Creek .................................................................................................................. 45.263 ¥116.611 45.349 ¥116.654 

(ii) Imnaha River Subunit. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60063 


ER06OC04.008</GPH>
60064 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(14) Unit 12: Hells Canyon Complex: 

Critical habitat is designated on the 

streams listed below, but only for nonfederal 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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60065 


ER06OC04.009</GPH>
60066 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated stream and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint or 

lake center 

latitude 

Stream 

endpoint or 

lake center 

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. 

Designated Streams and Lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60067 


ER06OC04.010</GPH>
60068 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

White Salmon River ......................................................................................................... 45.897 ¥121.503 45.723 ¥121.521 

(iii) Klickitat River Subunit. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Clearwater Creek ............................................................................................................. 46.278 ¥121.330 46.276 ¥121.327 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60069 


ER06OC04.011</GPH>
60070 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60071 


ER06OC04.012</GPH>
60072 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60073 


ER06OC04.013</GPH>
60074 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

(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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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. 

Designated streams and lakes 

Stream 

endpoint 

latitude 

Stream 

endpoint 

longitude 

Stream 

endpoint 

latitude 

Stream 

endpoint 

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: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 60075 


ER06oc04.014</GPH>
60076 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Rules and Regulations 

* * * * * 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