[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Rules and Regulations]
[Pages 59996-60076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22038]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Klamath River and Columbia River Populations of Bull 
Trout; Final Rule

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

[[Page 59996]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Klamath River and Columbia River Populations 
of Bull Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Klamath River and Columbia River populations 
of bull trout (Salvelinus confluentus) pursuant to the Endangered 
Species Act of 1973, as amended (Act). For the Klamath River and 
Columbia River populations of bull trout, the critical habitat 
designation includes approximately 1,748 miles (mi) (2,813 kilometers 
(km)) of streams and 61,235 acres (ac) (24,781 hectares (ha)) of lakes 
and marshes. We solicited data and comments from the public on all 
aspects of the proposed rule, including data on economic and other 
impacts of the designation.

DATES: This rule becomes effective November 5, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Branch of Endangered 
Species, 911 NE., 11th Avenue, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: John Young, Bull Trout Coordinator, at 
the above address, (telephone 503/231-6194; facsimile 503/231-6243).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act (16 U.S.C. 1531 et seq.), we 
have found that the designation of statutory critical habitat provides 
little additional protection to most listed species, while consuming 
significant amounts of available conservation resources. Our present 
system for designating critical habitat has evolved since its original 
statutory prescription into a process that provides little real 
conservation benefit, is driven by litigation and the courts rather 
than biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs. We believe that additional agency discretion would 
allow our focus to return to those actions that provide the greatest 
benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to, and protection of, habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.''
    We address the habitat needs of all 1,211 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. We believe that it is 
these measures that may make the difference between extinction and 
survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United State Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits regarding critical habitat 
designation, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected us to an ever-increasing series of court orders and court-
approved settlement agreements, compliance with which now consumes 
nearly the entire listing program budget. This leaves us with little 
ability to prioritize our activities to direct scarce listing resources 
to the listing program actions with the most biologically urgent 
species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent to sue relative to critical habitat, and to comply 
with the growing number of adverse court orders. As a result, our own 
proposals to list critically imperiled species, and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
us with almost no ability to provide for adequate public participation 
or to ensure a defect-free rulemaking process before making decisions 
on listing and critical habitat proposals due to the risks associated 
with noncompliance with judicially-imposed deadlines. This, in turn, 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis, provides little additional 
protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects, and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act of 1969 (NEPA) None of these costs 
result in any benefit to the species that is not already afforded by 
the protections of the Act enumerated earlier, and they directly reduce 
the funds available for direct and tangible conservation actions.

Background

    Bull trout (Salvelinus confluentus) are members of the char 
subgroup of the family Salmonidae and are native to waters of western 
North America. Bull trout range throughout the Columbia River and Snake 
River basins, extending east to headwater streams in Montana and Idaho, 
and into Canada, and in the Klamath River basin of south-central 
Oregon, but the distribution of populations is scattered and patchy. 
For additional information on the biology, habitat requirements, 
threats, and range of the bull trout, please refer to the proposed 
critical habitat rule (67 FR 71235, November 29, 2002) and final 
listing rule (June 10, 1998, 63 FR 31647).
    Historical records for the Klamath River basin suggest that bull 
trout in this population segment were once widely distributed and 
exhibited diverse life-history traits in this part of their range 
(Ziller 1992). Currently, however, bull trout in this basin are almost 
entirely nonmigratory, resident fish that are confined to headwater 
streams (Goetz 1989). At time of listing, there were only

[[Page 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

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designate critical habitat for the species rangewide due to a court 
settlement and this rule covers the Columbia and Klamath portions of 
the species' range. However, we are currently conducting a 5 year 
review of the species' status, and information developed and considered 
during this review will help us evaluate the appropriateness of DPSs 
for the bull trout.
    4. Comment: Many commenters suggested additional streams be 
designated as critical habitat for the bull trout. Others believed that 
the proposed designation included inappropriate streams or was 
excessive in scope.
    Our Response: We believe that this designation is based on the best 
scientific and commercial information available, and includes only that 
habitat essential to the conservation of the Columbia and Klamath 
populations of the bulltrout. Comments documenting that proposed stream 
segments were not essential were evaluated and, when appropriate, used 
to refine the final designation.
    Only those streams, lakes, and reservoirs that we believed to be 
essential to the conservation of the Columbia and Klamath populations 
of bull trout, based on the best scientific and commercial data 
available at the time the proposal was being developed, were included 
in the proposed critical habitat designation. This does not mean that 
streams not included in this designation cannot or will not contribute 
to bull trout recovery, but rather that they were not determined to be 
essential to the species' conservation.
    Those areas that did not contain the physical or biological 
features essential to the conservation of the Columbia and Klamath 
populations of bull trout were removed from the designation of critical 
habitat. For further information refer to the Summary of Changes from 
the Proposed Rule section below.
    5. Comment: How do State water quality standards relate to the 
proposed critical habitat rule and the concept of adverse modification?
    Our Response: The Environmental Protection Agency (EPA) and the 
States share joint responsibility for implementing the Federal Clean 
Water Act (CWA). Under the CWA, each State develops its own programs to 
meet minimum Federal requirements and requires EPA to work with the 
States to ensure compliance. There are two ways in which State water 
quality standards relate to the designation of critical habitat. First, 
to the degree that they are influencing the current condition of 
designated critical habitat, these standards will be addressed in our 
biological opinions as part of the analysis required under section 
7(a)(2) of the Act for any Federal action that may affect critical 
habitat. That analysis includes a general evaluation of the factors 
influencing the condition of the entire critical habitat area 
designated, as well as a more specific analysis of such factors within 
the critical habitat area affected by the proposed Federal action.
    Secondly, States are required under the Federal Clean Water Act to 
periodically review their water quality standards to determine if they 
need to be revised. If a State proposes to revise or establishes a 
standard, that action is subject to approval by the U.S Environmental 
Protection Agency (EPA). If the proposed standard may affect critical 
habitat, the EPA is required to formally consult with us under section 
7(a)(2) of the Act to ensure that this action does not destroy or 
adversely modify critical habitat.
    6. Comment: Those most affected by the designation have not been 
involved in this designation of critical habitat for the Columbia and 
Klamath populations of the bull trout.
    Our Response: We have strived to include those interested in the 
designation of critical habitat for the Columbia and Klamath 
populations of the bull trout in the rule-making process. We developed 
Recovery Unit Teams comprised of land owners, land managers, 
scientists, representatives of States, Tribes, and industry, and 
distributed a draft Recovery Plan outlining recovery objectives. 
Throughout the process of designating critical habitat, we have 
attempted to solicit and incorporate comments from those affected by 
this final rule. We solicited public comment through three public 
comment periods and nine public hearings, which we accepted oral and 
written comments. We tried to be responsive to the concerns raised, and 
diligently tried to address those concerns during the development of 
this final designation. Unfortunately, our ability to accept comment 
and work with stakeholders is limited by deadlines imposed by the Court 
as part of settlement agreements.
    7. Comment: There are inconsistent unit descriptions between the 
draft Recovery Plan, draft economic analysis (DEA), and the proposed 
critical habitat rule.
    Our Response: We agree that there are areas where the proposed rule 
and the DEA do not precisely follow the organization presented in the 
draft Recovery Plan. We regret any confusion this may have caused. 
Because the proposed rule and the draft Recovery Plan analysis are 
related, the organization of units between the two documents is 
similar. However, chapter one of the draft Recovery Plan has no 
counterpart in the critical habitat proposal, so subsequent Recovery 
Plan chapters (e.g., chapters 2, 3, 4, etc.) do not correspond with 
critical habitat unit descriptions (e.g., units 1, 2, 3, etc.). 
Additionally, the Columbia and Snake Rivers are treated as critical 
habitat units 24 and 25 in the proposed and final rule. There are no 
counterpart chapters in the draft Recovery Plan as the relationship of 
the Snake and Columbia Rivers to the individual population units are 
discussed within the appropriate individual chapters.
    8. Comment: A number of commenters believed that the critical 
habitat proposal was speculative, not based on scientific principle, 
had insufficient supporting documentation, and reliance on the draft 
Recovery Plan was not in compliance with the requirements of the Act.
    Our Response: Our proposal was based on the best available data at 
the time of development. We agree that much of the information is 
incomplete and the conclusions we reached were based on assumptions we 
were required to make in the absence of historic or recent data. 
However, we were required to identify critical habitat based on that 
information, and we have done so.
    The bull trout critical habitat designation is based on the science 
and information behind the Recovery Plan, not on the Recovery Plan 
itself. The proposed designation was peer-reviewed by four individuals 
who have expertise with the species, the geographic region where the 
species occurs, and are familiar with conservation biology principles. 
Key elements of the reviewers' critical comments were relative to the 
scope of the proposal, the need for greater prioritization of 
conservation issues that influence critical habitat designation, a 
greater emphasis on the need for quality habitat to support the 
migratory life form of bull trout, and the need for more explanation of 
why some particular habitat, including areas of degraded habitat, are 
important to bull trout conservation. Additionally, the reviewers 
provided many technical comments on the appropriateness and bounds of 
specific geographic areas proposed as critical habitat. We incorporated 
the reviewers' comments into the final rule as well as applicable 
comments received during the comment period.
    Recovery criteria identified in the draft Recovery Plan include 
trend data and the conservation of the species' distribution, 
abundance, population, and hydrological connectivity. Shortly

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after the species was listed in 1998, we initiated development of a 
recovery plan for bull trout and convened 27 individual Recovery Unit 
Teams throughout five States to begin gathering information on the 
status and conservation needs of the species. These teams were composed 
of experts in biology, hydrology, forestry, in addition to resource 
users, and other stakeholders with interest in and knowledge of bull 
trout and the habitats they depend on for survival. Where available, we 
incorporated existing State-sponsored bull trout aquatic conservation 
plans and planning processes to support our information. The recovery 
planning process generated a considerable body of new information on 
the specific management and biological needs of bull trout
    9. Comment: All references to bull trout sightings from unreliable 
or unsubstantiated sources should be eliminated from the decisionmaking 
process.
    Our Response: We agree. Under the Act, we are required to use the 
best available information when making our decisions. We critically 
review all information provided to us. We have received numerous 
comments from the public and from State and Federal agency personnel 
relative to specific water bodies and the veracity of supporting 
documentation regarding bull trout use of such areas. The various data 
that we collect are weighted based on their verifiability, for example, 
anecdotal evidence and opinion have less weight than results from 
published studies or long-term or ongoing monitoring. If we receive 
information that appears to be ``unsubstantiated,'' we evaluate it as 
such in the context of all comments received. However, in some cases, 
information from an ``unsubstantiated source'' may be the best 
available information we have for a particular stream. We have modified 
the proposal accordingly.
    10. Comment: Reliance upon conservation biology and metapopulation 
dynamics are invalid assumptions upon which to base a designation of 
critical habitat as these are theoretical approaches.
    Our Response: The critical habitat determination is based on many 
factors and did not rely directly on metapopulation dynamics. Available 
information on conservation biology and metapopulation dynamics were 
factored in along with all of the other information available on 
specific segments. We acknowledge that there is not universal agreement 
on application of the metapopulation theory to bull trout populations 
or group of populations within a watershed. However, several studies 
indicate existing metapopulation dynamics in bull trout and other char 
(Rieman and McIntyre 1993; Dunham and Rieman 1999; Spruell et al. 1999; 
Morita et al. 2002; Whitely et al. 2003).
    In the classic view, metapopulations are considered collections of 
roughly equivalent local populations with similar, but independent, 
risks of extinction through environmental variability. In the simplest 
models, local extinctions are balanced by migration and recolonization 
from extant populations. In recent years, metapopulation models have 
been extended to consider a variety of more complex systems, including 
substantial variation in the characteristics and dynamics of local 
populations, and the patterns and rates of dispersal among them. In the 
current view, structuring and partial independence of local populations 
are the fundamental concepts that distinguish a metapopulation from a 
simple panmictic (mingled) group in a patchy environment.
    Any controversy around application of metapopulation theory is how 
rigidly to apply it. The primary value of metapopulation theory is in 
understanding the relevance of diversity and complexity of the species 
to which it is being applied--that salmonid complex life history is a 
reflection of the diversity of habitats they live in. Metapopulation 
theory is useful in trying to understand and conserve processes such as 
dispersal and linkages between landscapes, life history, genetic 
diversity, and habitat size requirements. Occasional or rare instances 
of metapopulation dynamics for a species is an implicit component of 
the concept.
    Independent fishery scientist peer review of the draft Recovery 
Plan and critical habitat proposal, as well as a separate peer review 
of the Service Science Team Report (Whitesel et al. 2004) addressing 
key issues of bull trout recovery planning (including application of 
metapopulation theory), did not take issue relative to the application 
of metapopulation theory to bull trout conservation efforts.
    11. Comment: One commenter wanted to know whether the description 
of reservoirs and lakes ``at full pool'' or ``when full'' reflected 
potential conservation concerns when pool levels were less than full, 
and how designating reservoirs at full capacity as critical habitat is 
scientifically supported. Also, there were concerns regarding minimum 
pool requirements at the Boise and Payette Reservoirs that would affect 
irrigation supply, economics, and groundwater supply.
    Our Response: The use of those phrases was meant to delineate the 
area of the reservoir or lake by means of the high water mark, given 
that their volumes and areas vary with the seasons as water levels 
change. No implication as to the conservation benefits of various lake 
and reservoir levels or effects to proposed critical habitat for bull 
trout were intended.
    12. Comment: Several commenters believed that large rivers such as 
the Columbia and Klamath Rivers are inappropriate as bull trout 
critical habitat.
    Our Response: The Klamath River itself has not been proposed as 
bull trout critical habitat because we do not have any historical or 
current data to suggest this river has been used by bull trout. The 
mainstem Columbia and Snake Rivers have been excluded from critical 
habitat under Section 4(b)(2) in support of multiple management actions 
being undertaken in these reaches through the Federal Columbia Power 
System. The benefits of excluding critical habitat for these areas 
exceeded the benefits of designating critical habitat.
    Segments of large rivers such as the Columbia and Snake Rivers are 
important to the conservation of the bull trout, because they are 
interconnected with tributaries that support bull trout and they 
provide important FMO habitat. Bull trout use of the Columbia River has 
been well documented by recent radio-tagging studies conducted by the 
Service (Service 2001, 2002c) and the Chelan, Douglas, and Grant County 
Public Utility Districts (Kreiter 2001, 2002; BioAnalysts, Inc. 2002). 
Recoveries of tagged bull trout in the Bonneville Pool that originated 
from the Hood River (Wachtel 2000) have shown that bull trout are using 
the mainstem reach of the lower Columbia River as well. Radiotelemetry 
studies by the Oregon Department of Fish and Wildlife (ODFW) 
(Hemmingsen et al., 2001a, b), and Idaho Power Company (IPC) (Chandler 
and Richter 2000) have verified movements of bull trout between 
tributary streams and the mainstem Snake River. Current bull trout 
presence in the mainstem Columbia River reflects the strength of the 
local populations within tributaries and its value as migration 
corridors between the tributaries.
    13. Comment: Critical habitat for the Columbia and Klamath 
populations of the bull trout should be extended to the entire 
hydrologic watershed.
    Our Response: We acknowledged in the proposed rule that upstream 
habitat,

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as well as adjacent terrestrial habitat, can influence the quality of 
aquatic habitat downstream and downslope. However, due to the 
complexity and variability of upstream habitat, and the difficulty in 
mapping that habitat, we are designating only the water bodies that 
have been determined to be essential to the conservation of the species
    14. Comment: We received several comments indicating that 
hybridization is occurring between bull trout and other fish species 
(e.g., cutthroat trout (Oncorhynchus clarki) and brook trout 
(Salvelinus fontinalis)). Some commenters also suggested that the 
emphasis on connectivity in the draft Recovery Plan, and the 
identification of migratory corridors as proposed critical habitat, 
could exacerbate the hybridization issue by providing invasion routes 
for nonnative species known to hybridize with bull trout, such as brook 
trout.
    Our Response: We acknowledge this concern, and for that reason, are 
not designating connectivity corridors where we cannot be sure that 
competing species will not be introduced. Because cutthroat trout and 
bull trout are not of the same genus, have different spawning periods, 
and evidence of hybridization between the two has not been previously 
documented, we believe that hybridization between the two species is 
unlikely to occur.
    Brook trout are known to displace native bull trout populations in 
some cases. We agree that, in some instances, the potential negative 
effects of brook trout introduction into habitat occupied by bull trout 
following the removal of barriers to migration could outweigh the 
benefits of providing access to expanded foraging, spawning, migratory, 
and over wintering (FMO) habitat for bull trout. In such cases, a site-
specific evaluation should occur before barriers are removed. Areas 
above barriers were not included in critical habitat if site-specific 
evaluations had not been completed indicating that these areas were 
essential to bull trout and that barrier removal would not result in 
increased risk to the species.
    15. Comment: Brook, lake trout (Salvelinus namaycush), brown (Salmo 
trutta), and rainbow (Oncorhynchus mykiss) trout have been introduced 
into bull trout habitat. These species compete with, and displace, bull 
trout and may be responsible for its decline. Given the competition 
between these species and bull trout, how will critical habitat improve 
this situation?
    Our Response: Regardless of whether critical habitat contributes to 
and aids the conservation of the bull trout, we are required to 
designate critical habitat for species listed under the Act. One way 
that critical habitat may improve the nonnative competitor threat is 
through increased awareness of important bull trout habitat. Direct 
improvement of this situation may come about through decreases in the 
introductions of nonnative competitors and fishery management 
activities aimed at controlling or eradicating these species in bull 
trout habitat.
    16. Comment: Several commenters suggested that bull trout are 
predators or competitors that have negative effects on other native and 
nonnative species.
    Our Response: Bull trout are opportunistic predators that feed 
largely on other species of fish, both native and nonnative. Prey 
species consumed by bull trout vary considerably, depending on the 
location and time period. Bull trout evolved with other native species 
and, in some instances, because their habitat requirements are somewhat 
different, there is a limited area of overlapping distribution between 
them, at least temporally. We are not aware of any published scientific 
studies or other convincing evidence indicating bull trout predation is 
the leading cause in the decline of other native or introduced species. 
Therefore, we believe that any conservation of bull trout will not 
significantly affect the status of other species across the range of 
the bull trout. However, in some limited circumstances, local increases 
in bull trout populations may result in local decreases in other 
species upon which they prey.
    17. Comment: One commenter suggested that we should encourage the 
development of an umbrella Safe Harbor Agreement (SHA) for a broad area 
such as an irrigation district.
    Our Response: We agree. We actively seek the development of 
appropriate SHAs or other conservation measures and programs.
    18. Comment: Several commenters stated that HCPs should not be 
excluded; others believed that excluding HCPs was appropriate.
    Our Response: We have determined that lands covered under an 
existing or pending HCP as discussed, should be excluded from the 
designation of critical habitat because the benefits of excluding the 
lands covered by these management plans outweighs the benefits to the 
species by including them in the designation. Please refer to our 
discussion concerning the exclusion of approved HCPs later in the rule 
in the section Relationship to Section 4(b)(2) of the Act.
    19. Comment: Several commenters questioned the affect of critical 
habitat on restricting the use of public lands, such as mining, and the 
impact on private lands.
    Our Response: Critical habitat does not create a preserve or 
prevent access to private land, streams, lakes, or reservoirs. There is 
no connection between the designation of critical habitat and the use 
of private land unless there is a Federal nexus. A Federal nexus exists 
if activities on private lands are funded, authorized, or permitted by 
a Federal agency. Section 7(a)(4) of the Act requires Federal agencies 
to consult with us on any action that is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of designated critical habitat. As part of the 
consultation process, we will offer ``reasonable and prudent 
alternatives'' as alternative actions identified during consultation 
that can be implemented in a manner consistent with the intended 
purpose of the action, that are consistent with the scope of the 
Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    While it is true that mining activities may currently be restricted 
in some areas (e.g., inwater work periods), these are existing 
restrictions required by the States and Federal land management 
agencies to protect natural resources, such as fish, and not due to the 
designation of critical habitat for bull trout.
    20. Comment: Several commenters were concerned that the bull trout 
critical habitat designation will result in greater adverse effects to 
people, their communities, and their livelihoods than we have 
indicated.
    Our Response: We agree. As a result, a significant portion of the 
designation has been removed for these reasons and others.
    21. Comment: Critical habitat could restrict fire prevention and 
suppression, flood control, and governmental land use planning, as well 
as interfere with the management of public roadways and bridges.
    Our Response: Human safety is a priority for both the Service and 
the Department. The Service issued ``Endangered Species and Fire Policy 
Clarification'' on September 21, 1995 that emphasizes that firefighter 
safety

[[Page 60001]]

comes first and that responses to wildfire should not be delayed for 
ESA considerations. The Secretary of the Interior provided guidance on 
Firefighter and public safety on August 20, 2001 that states that ``in 
the event of an emergency, no emergency response is to be delayed or 
obstructed because of ESA considerations.'' In emergencies, response to 
emergencies is first priority and any consultation requirements are 
addressed after the emergency is over.
    22. Comment: A number of commenters felt the Service neglected or 
violated a variety of regulatory or other requirements, including the 
National Environmental Policy Act of 1969 (NEPA), Small Business 
Regulatory Enforcement Fairness Act (SBREFA), Title VI of the Civil 
Rights Act, the Data Quality Act (Pub. L. 106-554), Unfunded Mandates 
Reform Act, Regulatory Flexibility Act (RFA), and other laws, 
regulations, orders, and local ordinances.
    Our Response: We are not required to prepare an environmental 
assessment or an environmental impact statement, as defined under the 
authority of NEPA, in connection with regulations adopted pursuant to 
section 4(a) of the Act, and in states under the jurisdiction of the 
9th Circuit Court. A notice outlining our reason for this determination 
was published in the Federal Register on October 25, 1983 (48 FR 
49244). This position has been upheld by the Ninth Circuit Court of 
Appeals in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995).
    We have addressed all the relevant required regulatory 
determinations in this rule (see Required Determinations section 
below). We are not required to address Title VI specifically in our 
rule but believe this rule to be in full compliance with all 
appropriate laws and regulations. Relative to the Data Quality Act, our 
intent is to ensure that the most applicable scientific information has 
been applied in the development of the proposed rule. Both public and 
peer review of the proposed rule further ensures that the final 
designation will meet this standard.
    23. Comment: The Service must take into account the Forest and Fish 
Report (FFR) law that protects aquatic habitat and water quality on 
State and private lands.
    Our Response: Washington State law H.B. 2091, which codified the 
FFR, is a science-based plan that protects water quality and fish 
habitat on over 8 million ac (3.2 million ha) of non-Federal forestland 
in Washington State. Implementing regulations, developed by the 
Washington Forest Practices Board, require (1) establishment and 
retention of riparian buffers along streams to provide shade, large 
woody debris, and bank stability; (2) a bull trout temperature overlay 
strategy for streams located in the hotter, dryer environments east of 
the Cascade Crest; (3) using methods for construction and maintenance 
of roads and stream crossings that will maintain stream connectivity 
for fish passage, and shunt road-generated sediments from streams, and 
repairs to failing roads, bridges, and culverts within specific time 
frames.
    With respect to the PCEs for bull trout critical habitat, we 
determined that forest practices conducted under the FFR regulations 
should result in improved water quality, which will promote bull trout 
reproduction, growth, and survival. Furthermore, implementing these 
regulations should maintain the thermal regimes of streams within the 
range of normal variation, contribute to the maintenance of complex 
stream channels, maintain appropriate substrates, natural hydrograph, 
ground-water sources and subsurface connectivity, migratory corridors, 
and provide abundant food sources for bull trout. Because bull trout 
will benefit from the implementation of the FFR regulations, we have 
excluded stream segments protected by these regulations. See Washington 
State Forest Practices Rules and Regulations, as amended by the Forest 
and Fish Law (FFR) under the Lands to be Excluded from Critical Habitat 
section below for more information.
    24. Comment: Several commenters wanted to understand how critical 
habitat would affect ongoing projects including state water quality 
standards, flood control, habitat restoration, and hydropower.
    Our Response: The designation affects these and other types of 
projects in two ways. First, the recognition value associated with the 
designation is intended to influence voluntary modifications, where 
appropriate, to these activities that would make them compatible with 
the proper functioning of the critical habitat.
    Secondly, where a Federal agency has continuing discretionary 
involvement or control over the action, compliance with section 7 of 
the Act is required. If the on-going project may affect critical 
habitat, the Federal agency is required to formally consult with the 
Services under section 7(a)(2) of the Act to ensure that this action 
does not destroy or adversely modify critical habitat.
    Because of potentially serious public health and safety issues that 
could arise as a result of third party lawsuits questioning reservoir 
operation, this designation does not include them.
    25. Comment: Given that only the stream reach is being designated 
as critical habitat, it is unclear what area of land the agencies will 
view as potentially impacting that stream segment.
    Our Response: Activities that may destroy or adversely modify 
critical habitat are those that alter the PCEs to an extent that the 
value of critical habitat for both the survival and recovery of bull 
trout is appreciably reduced. The degree of any potential effect will 
vary with the type of action, the location, and timing of where it 
occurs. Other variables include the status and extent of critical 
habitat, and the relationship of the critical habitat segment in 
question to the population of bull trout that it supports. Where 
upstream or upslope activities may affect downstream areas of critical 
habitat, consultation is required.
    26. Comment: The PCEs are ambiguous and not scientifically 
defensible. They are not mutually exclusive, nor is it clear how many 
are essential to bull trout.
    Our Response: The proposed bull trout PCEs represent those physical 
and biological features essential to the conservation of the species 
and in need of special management or consideration, as required under 
regulations at 50 CFR 424.12. All the PCEs are essential to the 
conservation of bull trout, but not all PCEs need to be present at 
every location within the designated critical habitat. Different PCEs 
may be important for only certain lifestages or at certain times of the 
year. Critical habitat needs to have only enough of the PCEs present to 
allow normal biologic function of the bull trout. We believe that PCEs 
represent the conservation needs of the species as indicated by the 
scientific literature. We agree that they are not mutually exclusive.
    27. Comment: Proposed critical habitat areas, such as the Crooked 
River in Oregon, lack the physical and biological features essential 
for the conservation of the species.
    Our Response: We agree and have removed that portion of the 
designation.
    28. Comment: None of the PCEs are likely to occur in pristine 
environments, and places where they do are likely to change as a result 
of natural disturbances. Even in pristine environments, you may not 
have all the PCEs, and these are likely to change as a result of 
natural disturbances.
    Our Response: We agree that pristine environments may not contain 
all of the PCEs, and that they can be affected by natural disturbances. 
In order to be designated as critical habitat, we must first determine 
if an area is ``essential to

[[Page 60002]]

the conservation of the species,'' that is, contains primary 
constituent elements essential for the life cycle needs of the species. 
See our response to the comment above.
    29. Comment: Water quality temperature criteria for bull trout 
currently do not incorporate critical factors such as their ability to 
survive in higher water temperatures in the laboratory when unlimited 
food supplies are present, and competition with other species is 
controlled.
    Our Response: The identified range of temperatures where bull trout 
commonly occur in the wild is supported by the scientific literature, 
as indicated in the preamble to the proposed rule. We also acknowledge 
in the preamble that bull trout are known to occur in waters outside of 
this temperature range for short durations or seasonally. We note that 
migratory fish may utilize colder micro-environments such as thermal 
refugia at the mouths of tributary streams, or employ other mechanisms 
to survive passage through waters not generally suitable for the 
species. The PCEs reflect those primary biological components essential 
to the conservation of the species in question in the wild. We are 
unaware of any circumstances where existing bull trout habitat would 
replicate the laboratory conditions described. This rule expressly 
excludes any habitat that currently does not meet the temperature range 
included in our definition of the primary constituent elements for at 
least some portion of the year.
    30. Comment: The proposal does not describe what ``special 
management considerations or protection'' are necessary for proposed 
bull trout critical habitat, and much of the critical habitat 
designation overlaps with habitat that is already protected.
    Our Response: Special management considerations or protection are 
those measures necessary to provide for the maintenance of the PCEs of 
bull trout critical habitat. These include maintaining water quality, 
providing for stable stream channels and flow regimes, maintaining the 
complexity of stream channels, and maintaining existing connected 
migratory corridors free from fish passage barriers. We agree that much 
of the habitat proposed as bull trout critical habitat is already 
protected. As we undertake the process of designating critical habitat 
for a species, we first evaluate lands defined by those physical and 
biological features essential to the conservation of the species for 
inclusion in the designation pursuant to section 3(5)(A) of the Act. 
Secondly, we then evaluate lands defined by those features to assess 
whether they may require special management considerations or 
protection. Refer to the Special Management Considerations or 
Protections section below for further information.
    31. Comment: Several commenters felt that current Federal land 
management practices are sufficient to preclude bull trout critical 
habitat designation for bull trout. Such designation is a duplication 
of effort since Federal actions, such as allotment management plans, 
already undergo formal consultation.
    Our Response: As specified in the proposed rule, the USFS and 
Bureau of Land Management (BLM) prepare land management plans which 
generally guide activities on the National Forest and BLM Districts. 
These plans provide some level of conservation benefit to species and 
the habitat they are known to occupy, often a very high level of 
conservation. Federal lands managed under the Northwest Forest Plan or 
managed in accordance with PACFISH/INFISH have been excluded under 
Section 4(b)(2).
    32. Comment: Scientific applications developed under the Interior 
Columbia Basin Ecosystem Management Project (ICBEMP) should not be 
referenced in the critical habitat proposal because ICBEMP was never 
submitted for regulatory analysis.
    Our Response: Although, ICBEMP has not been submitted for 
regulatory analysis we believe that there is important scientific 
information that is valuable to the conservation of bull trout that is 
appropriate to consider.
    33. Comment: All Warm Springs Reservation lands should be exempted 
from the proposal.
    Our Response: We met with the Confederated Tribes of Warm Springs 
Reservation of Oregon (CTWS) several times to discuss their ongoing 
management strategies for bull trout. During the course of these 
meetings, it became clear that their management was largely compatible 
with bull trout conservation, and we have excluded their lands under 
section 4(b)(2) of the Act. Refer to the Tribal Lands under the Lands 
to be Excluded from Critical Habitat section below for more 
information.
    34. Comment: Multiple commenters noted that the Service proposed 
streams for critical habitat that do not currently support bull trout, 
but did not provide justification as to why these streams were 
proposed, and excluded areas where they are more likely to exist 
without an explanation for these exclusions.
    Our Response: We based the designation of critical habitat on the 
science and information behind the Recovery Plan. However, the 
necessity of reestablishment in some areas is identified as necessary 
for recovery in the draft Recovery Plan. Critical habitat was proposed 
in those areas to assist in providing for the conservation of the 
species. We have received substantial comments from the public, Federal 
and State agencies, and peer reviewers on this subject, and have 
critically reviewed our proposal accordingly and made appropriate 
changes to this rule. Areas of unknown occupancy and unoccupied 
habitats were not included in the final designation.
    Due to the extent of the designation and supporting information, 
the final rule includes a summary of the scientific basis of the 
designation. Refer to the Summary of Changes from the Proposed Rule 
section for additional information. A complete record of the 
information is contained in the administrative record for the rule.
    35. Comment: One commenter thought that the Service did not 
accurately list the miles of stream or acres of lakes and reservoirs 
that are currently unoccupied by bull trout. They asked for a 
recalculation to determine if the numbers were accurate.
    Our Response: We received numerous comments on the accuracy of 
specific stream, river, lake, and reservoir specifications as well as 
associated biological information. All stream distances and lake or 
reservoir acreages were calculated using Geographic Information System 
(GIS) mapping from multiple sources including: the StreamNet GIS 
database for Idaho, Oregon, Washington, and Montana; and State 
databases of bull trout distribution. Based on comments, we have made 
revisions in this rule. For the purposes of this critical habitat rule, 
the term ``occupied'' was applied to streams where there is credible 
documentation of bull trout sighted within recent historical times 
(i.e., 20 years). Unoccupied habitat was removed from the designation. 
Under the ESA, the Secretary of the Interior may include unoccupied 
lands if she finds that those lands are essential to the conservation 
of the species. In the case of bull trout, and based on the best 
scientific data available, it was not possible for the Secretary to 
make such a determination at this time.
    36. Comment: Neither the draft Recovery Plan nor the critical 
habitat proposal describes the scientific basis for determining that 
bull trout should be recovered into many potential historic habitats.

[[Page 60003]]

    Our Response: The Draft Recovery Plan does present the basis for 
determining which populations are in need of expanded adult abundance 
to be considered recovered. The specific rationale is unique to each 
core area and management unit identified in the various chapters of the 
plan. However, the overall basis can generally be stated as the need to 
maintain complex interacting groups of bull trout distributed across 
their current range to reduce risk of extirpation from random events, 
to maintain an effective population size at levels where genetic risks 
associated with low effective population size are minimized, and to 
provide for expression of the migratory life history form.
    37. Comment: A few sightings of bull trout in a water body does not 
mean it is occupied. Potential historic habitat is not the same as 
habitat that was actually occupied.
    Our Response: We disagree that the presence of bull trout does not 
indicate that habitat is occupied by bull trout, at least temporally. A 
published survey protocol for juvenile and resident forms was not 
developed until 2002, no similar survey protocol for adult migratory 
forms has yet been developed, and many bull trout sightings are merely 
the incidental result of surveys for other species without 
consideration for the specific habits of bull trout. Therefore, an 
incidental sighting of a single or a few bull trout is often the only 
information that is available until a concentrated survey for bull 
trout is conducted. With the increasing availability of radio telemetry 
data, we are finding for many of the populations that have been studied 
that the extent of habitat bull trout occupy is often greater than was 
previously known from incidental observations. We agree that potential 
historic habitat is not the same as habitat that was previously 
documented as occupied.
    38. Comment: A number of commenters felt that the duration of the 
comment period was too short and occurred during a holiday season.
    Our Response: The public comment period was open for 210 days. The 
first comment period was open for 90 days from November 29, 2002, until 
January 28, 2003 (67 FR 71235). Because of the concern that there was 
not sufficient time to review such a large proposed rule, we reopened 
the comment period an additional 90 days from February 11, 2003, to May 
12, 2003 (68 FR 6863). We reopened the comment period a third time for 
the public to provide comments on both the proposed rule and the DEA 
from April 5, 2004, until May 5, 2004 (69 FR 17634). We were unable to 
extend the comment period further due to our court-ordered deadline of 
September 21, 2004.
    39. Comment: A commenter asked that the Service consider ongoing or 
potential activities that might negatively affect bull trout critical 
habitat.
    Our Response: When designating critical habitat we are limited to 
identifying those areas essential to the conservation of the species. 
Ongoing or potential future activities that may negatively affect bull 
trout critical habitat are not addressed during the critical habitat 
rule making process, but during subsequent processes, such as section 7 
consultations with Federal agencies.
    40. Comment: One commenter stated that specific numerical habitat 
standards for critical habitat must be included along with critical 
habitat designations.
    Our Response: The PCEs identified in the proposed critical habitat 
rule include numeric standards indicative of habitat essential to the 
conservation of bull trout when appropriate. We also recognize that, 
historically, bull trout existed in habitat that may not have contained 
all of the PCEs all of the time. Migratory forms of bull trout may have 
evolved, in part, to adjust to this situation and take advantage of 
more suitable habitat, at least seasonally.
    41. Comment: Riparian and upland areas should be included as 
critical habitat. There is no scientific basis for this exclusion, nor 
is it a credible approach to designating critical habitat.
    Our Response: Because of the widespread distribution of bull trout 
across varied landscapes, ranging from the moist, steep western slopes 
of the Cascade Mountain range to the high desert environment of 
southern Idaho, to the western slopes of the Rocky Mountains, we were 
unable to generally describe riparian and upland areas important to the 
aquatic function of streams, lakes, and reservoirs. Additionally, we 
believe a critical habitat rule should be easily interpretable to the 
public, including the provision of specific maps. Because of these 
factors, we chose to limit the critical habitat proposal to those 
aquatic environments essential to the conservation of bull trout.
    However, the proposal recognizes that the quality of aquatic 
habitat within stream channels, lakes, and reservoirs, is intrinsically 
related to the character of the flood plains and associated riparian 
and upland zones. Activities that occur outside the aquatic environment 
can have demonstrable effects on its physical and biological features. 
Activities that may destroy or adversely modify critical habitat are 
identified as those that alter the PCEs to an extent that the value of 
critical habitat for both the survival and recovery of the bull trout 
is appreciably reduced, including alterations of stream flows, riparian 
function, stream bank conditions, and water quality. Therefore, 
although areas outside of the aquatic environment are not included as 
proposed critical habitat, the proposal does recognize the scientific 
basis for linking the quality of the aquatic environment with the 
physical processes that occur outside of that environment.
    42. Comment: The Service should designate critical habitat for a 
number of ``source water'' streams; these are predominantly steep, 
small streams not occupied by bull trout but that are key sources of 
cold, clean water that feed bull trout habitat downstream.
    Our Response: Our determination of bull trout critical habitat is 
limited to areas that bull trout utilize (or could utilize) for some 
portion of their life cycle. Areas that contribute an important 
resource, but do not provide essential habitat for bull trout, are not 
being considered for designation.
    43. Comment: A commenter wanted to know if bull trout critical 
habitat will affect Native American treaty fishing rights or access to 
fishing areas.
    Our Response: The bull trout critical habitat rule will not affect 
Native American treaty fishing rights or access to fishing areas. 
Critical habitat does not set up a preserve or prevent access to 
streams, lakes, or reservoirs. When we published the final rule listing 
the bull trout on November 1, 1999 (64 FR 58910), we also published a 
special 4(d) rule that applied wherever bull trout occur in the 
coterminous lower 48 States, except in the Jarbidge River basin in 
Nevada and Idaho. The principal effect of this special rule is to allow 
take in accordance with State, National Park Service, and Tribal 
permitted fishing activities.
    44. Comment: We must consult with Native American Tribes prior to 
the publication of a final economic analysis (FEA).
    Our Response: We have been and will continue to consult with those 
Tribes affected by the critical habitat designation. We contacted 
Native American Tribes where proposed bull trout critical habitat 
occurred on, or adjacent to, Tribal lands. We discussed the critical 
habitat proposal with representatives of the Tribes and worked with 
them to address their concerns.
    45. Comment: Several commenters felt that Tribal lands should be

[[Page 60004]]

excluded; other commenters felt that Tribal lands should not be 
excluded.
    Our Response: In accordance with the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and 
512 DM 2, we coordinate with federally recognized Tribes on a 
government-to-government basis. Further, Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (1997) provides that critical habitat 
should not be designated in an area that may impact Tribal trust 
resources unless it is determined to be essential to the conservation 
of a listed species. We, therefore, are obligated to consult with 
Tribes based on their unique relationship with the Federal government, 
and to evaluate the appropriateness of designating Tribal lands within 
the framework of the above mentioned directives. In addition, we 
evaluate Tribes past and on-going efforts for species conservation and 
the benefits of including or excluding Tribal lands in the designation 
under section 4(b)(2).

Unit Specific Comments

Unit 1: Klamath River Basin
    46. Comment: Using radio-telemetry, we have found that bull trout 
reside only in the stream channel and do not move into wetland areas 
associated with Sycan Marsh. Radio telemetry data obtained during the 
fall of 1999 and spring of 2000 by the Klamath Bull Trout Working Group 
is incorrect.
    Our Response: Bull trout radio telemetry studies in the Sycan Marsh 
Core Area (Long Creek) have had very limited success. Of four fish 
tagged in 1999, three died shortly thereafter. Until the tag ceased 
transmitting, telemetry data indicated the remaining fish moved onto 
private lands along lower Long Creek and remained there through the 
winter. In 2000, the surviving, previously tagged fish was recaptured 
and the tag replaced. Telemetry data indicated it migrated upstream in 
Long Creek, and then returned to the same location as the previous 
winter. Two data points (from the same animal) are inadequate to 
develop informative trends (C. Bienz, The Nature Conservancy, pers. 
comm. 2002).
    47. Comment: Drought conditions over the past 3 years, with low 
flow and high stream temperatures, make the Upper Sycan Watershed 
uninhabitable for bull trout.
    Our Response: Current drought conditions have undoubtedly had an 
effect on bull trout habitat and distribution, as have anthropogenic 
activities. Flows should improve as efforts to restore watershed 
conditions in the Upper Sycan Watershed are implemented by land and 
resource managers and agencies. However, all waterways will continue to 
be influenced by climatic factors.
    48. Comment: The inclusion of Deming Creek within proposed critical 
habitat conflicts with Oregon's policy regarding installation and 
operation of positive barrier fish screens at water diversion 
locations. Deming Creek is diverted into a canal with limited amount of 
water left in stream. The bull trout population no longer exists in the 
stream and has established itself in the canal. The area affected by 
these artificial canals, headgates, diversions, and irrigation 
facilities should not be included within the critical habitat 
designation.
    Our Response: The Deming Creek population is the last remaining 
stronghold of bull trout in the Klamath Basin. As such, they provide a 
potential source for expanding the numbers and distribution of bull 
trout in the basin. More individuals distributed across a broader 
landscape will reduce risk of extirpation from random events, 
contribute to maintaining an effective population size at levels where 
genetic risks associated with low effective population size are 
minimized, and provide for expression of the migratory life history 
form. We note that the irrigation canal identified in this comment is 
not included in the critical habitat designation. In addition, 
unoccupied habitat has also been removed from the final designation.
    49. Comment: The proposal fails to reveal that Deming Creek has 
been channelized, and does not explain how this channelization affects 
the use of these canals for migration, spawning, and/or rearing.
    Our Response: Only the lower 1.0 to 1.5 mi (1.6 to 2.4 km) section 
of Deming Creek has been channelized. From the trailhead to its 
headwaters, the creek remains in the natural channel and relatively 
untouched. Because stream flows become subsurface below Anderson Field, 
Deming Creek bull trout are isolated from the rest of the Basin. 
Therefore, it is unlikely that Deming Creek bull trout will develop a 
migratory life form, and will remain a stronghold of native resident 
fish.
    50. Comment: There is concern relative to migrating fish being 
exposed to Ceratomyxa shasta if they migrated into Agency Lake or to 
other sites with C. shasta. If the fish were to migrate downstream into 
the lake, there could be significant mortality to the larger juvenile 
and adult bull trout as well as a source of infection to other stream 
reaches on the return migrations. If bull trout are in fact not 
resistant to C. shasta, then the theory of winter migration among 
watersheds would be clearly false and there would be no scientific 
basis to designate these areas as critical habitat
    Our Response: Ceratomyxa shasta is a microscopic myxosporean 
protozoan parasite that afflicts salmonid fish of the Pacific Northwest 
(Bartholomew et al. 1989). Its life cycle is not fully understood. 
Progression of infection and mortality is temperature dependent and 
native salmonid stocks exhibit varied resistance to it (Bartholomew 
1998). Chinook salmon (Oncorhynchus tshawytscha) do not appear to be 
affected by C. shasta when water temperatures remain below 60 [deg]F 
(15 [deg]C) (PacifiCorp 2002), indicating migrating bull trout may not 
be affected. More information is needed to determine whether bull trout 
are resistant to C. shasta and to monitor the impacts and extent of it 
within the Basin. If research reveals that bull trout are not resistant 
to C. shasta, then we may need to consider revising critical habitat at 
a later time.
    51. Comment: The proposed critical habitat includes Threemile Creek 
as a winter migration corridor for bull trout that connects to Agency 
Lake. Threemile Creek has been redirected and currently flows into a 
series of canals, and does not directly enter Agency Lake or provide 
any form of hydraulic continuity for bull trout migration.
    Our Response: Threemile Creek connects to Agency Lake via Crane 
Creek, Fourmile Creek, and the Westside and Sevenmile Canals. Threemile 
creek has been excluded from the final designation.
    52. Comment: It is unlikely that bull trout will move downstream 
into Agency Lake and then migrate into tributaries not currently 
occupied. As has been demonstrated in streams in Montana, bull trout 
will not migrate through warm water to spawning beds. Absent careful 
analysis of the temperature regimes of the various streams, it is 
impossible to determine whether bull trout will use the currently 
unoccupied areas for migration downstream to Agency Lake and then into 
other streams, given their strong homing fidelity.
    Our Response: Although resident and rearing juvenile bull trout are 
typically found in colder headwater reaches that meet the conditions 
necessary for spawning and rearing, larger migratory bull trout are 
more tolerant of wider

[[Page 60005]]

temperature regimes. In the Klamath Basin, large bull trout have 
repeatedly migrated from cold water refugia through warm waters (69 
[deg]F (21 [deg]C) upstream to spawning grounds, and returned (B. 
Quick, ODFW, pers. comm. 2000; C. Bienz, The Nature Conservancy, pers. 
comm. 2001).
    In addition, some habitat, particularly FMO habitat, may only be 
seasonally occupied. Bull trout seek cold water refugia as water 
temperatures raise near or beyond preferred thermal regimes. Throughout 
the range of bull trout there are segments of stream systems that are 
not occupied in summer months because of warm water temperatures but 
serve as FMO habitat when water temperatures cool during fall, winter, 
and spring (Idaho Department of Environmental Quality (IDEQ) 1998).
    In the Upper Klamath Lake CHSU, bull trout historically occupied 
several streams that drained into Agency and Klamath Lakes (Goetz 1992; 
Light et al. 1997; Buchanan 1998) until human actions altered aquatic 
habitat (Bond 1992; Cross and Everest 1995; Light et al. 1997; Quigley 
et al. 1997), leading to the extinction of most local populations in 
the Basin. Only two, small, isolated subpopulations remain in the Upper 
Klamath Lake CHSU. As recovery actions in the Klamath Basin improve 
habitat, and as bull trout populations grow, behavioral traits such as 
colonization and migratory life forms will likely be expressed. This 
may lead to the utilization of riverine and lacustrine habitats in 
Agency Lake and adjacent streams, at least seasonally.
    53. Comment: Clarify the boundaries of critical habitat, and 
specify which database, or base map, that units were derived from, and 
when possible use specific geographic reference points. Land managers 
need to be able to know and reproduce the legal boundaries.
    Our Response: Critical habitat maps were compiled from various 
sources. Rather than try and piece together many small data sets with 
varying degrees of accuracy and resolution, we relied predominantly on 
StreamNet as it is the largest and most readily available database. 
USFS databases were also used where stream data were not available in 
StreamNet. Legal descriptions of critical habitat units are provided in 
this rule and maps are available on our bull trout Web site: http://www.r1.fws.gov/bulltrout/colkla/index.htm, and our Field Offices can 
provide further clarification (Klamath Falls Fish and Wildlife Office 
(FWO), Oregon FWO, Western Washington FWO, Upper Columbia FWO, Snake 
River FWO, and Central Washington Field Office).
    54. Comment: The Service cites a study that found ``historical 
records for the Klamath Basin suggest that bull trout in this distinct 
population segment were once widely distributed and exhibited diverse 
life-history traits in that part of their range'' (Ziller 1992). 
However, Ziller's study focused on the Sprague River subbasin. Did that 
study specifically address the presence of migratory bull trout in the 
area of northern Upper Klamath Lake and Agency Lake?
    Our Response: Although Ziller (1992) was cited several times in the 
draft Recovery Plan in relation to distribution surveys, population 
size and abundance estimates, extirpation, and displacement of bull 
trout by brook trout the statement: ``Limited historical references 
suggest that bull trout were once widely spread throughout the Klamath 
River system.'' was attributed to Buchanan et al. (1997).
Unit 2: Clark Fork River Basin
    55. Comment: Several commenters expressed concern that bull trout 
recovery and critical habitat designation will negatively impact the 
Montana economy and tourism by impeding resource and recreation 
opportunities.
    Our Response: As stated in our economic analysis, recreation and 
tourism are not formally recognized economic sectors with directly 
measurable income and employment data. Rather, direct employment 
related to recreation and tourism is found primarily within various 
components of the retail trade and service sectors. However, it is more 
likely that the long-term benefits of appropriate resource management 
will positively affect those parts of Montana's economy that are based 
on resources and recreation. This is at least partly due to the 
enhanced recreational angling opportunities afforded by bull trout 
recovery, as well as appropriate bull trout management being compatible 
with sustainable resource practices.
Unit 4: Willamette River Basin
    56. Comment: Why was critical habitat not designated on the 
Clackamas River?
    Our Response: Based on limited historical information, it is 
unknown whether reproducing bull trout populations existed previously 
in the Clackamas River. Bull trout are not known to currently inhabit 
the Clackamas River, but their presence was documented historically. 
Based on this information, the Clackamas River was not identified as 
essential to the conservation of the species. The Recovery Unit Team 
believes that the sub-basin has the necessary habitat elements to 
support the reintroduction of bull trout.
Unit 5: Hood River Basin
    57. Comment: One commenter questioned the consistent use of the 
term ``occupied'' and how this fits into the rational of why the 
Service did not designate the Sandy River, and how that differs from 
the West Fork and East Fork Hood Rivers, which were included in the 
proposed rule. Although the commenter supports designating the West 
Fork Hood River, they believe the West Fork Hood River is not currently 
occupied.
    Our Response: For the purposes of this critical habitat rule, the 
term ``occupied'' applies to streams where there is credible 
documentation of bull trout sighted within recent historical times 
(i.e., 20 years). Documentation of bull trout occurrence was deemed 
credible if recorded by a biologist working for a State, Federal, 
Tribal, Public Utility District, University, or other entity. Vague 
descriptions of ``trout'' or ``salmon-sized fish with orange spots'' in 
the ethnographic literature or other similar sources were not deemed to 
be reliable and were not used to document occupancy.
    Using this definition, unoccupied habitat was removed from the 
designation. Under the ESA, the Secretary of the Interior may include 
unoccupied lands if she finds that those lands are essential to the 
conservation of the species. In the case of bull trout, and based on 
the best scientific data available, it was not possible for the 
Secretary to make such a determination at this time.
    The Sandy River basin has been identified as core habitat 
(encompasses spawning and rearing habitat for resident populations, as 
well as FMO habitat for migratory populations) in the draft Hood River 
Recovery Plan due to recent bull trout sightings and suitable habitat 
conditions, but additional research on bull trout use of the Sandy 
River is needed. Sufficient information is not available to determine 
the source of bull trout observed in the Sandy River, or to define any 
local populations and their respective core areas. The draft Recovery 
Plan has identified the extent of bull trout use of the Sandy River as 
a primary research need. Because of this lack of information it was 
determined to not be essential to the conservation of bull trout at 
this time. The Sandy River basin, therefore, is not designated as 
critical habitat. Since the publication of the draft Recovery Plan, the 
East Fork of the Hood River has been excluded as habitat

[[Page 60006]]

essential to the conservation of the species based on the information 
received from members of the Hood Recovery Unit Team. Past bull trout 
sightings in the East Fork Hood River are considered rare, and bull 
trout use of the East Fork Hood River is thought to be unlikely due to 
unsuitable habitat conditions and absence of bull trout sightings 
during surveys.
    The Hood Recovery Unit Team has identified the West Fork Hood River 
as important to the conservation of bull trout and a potential local 
population has been identified for this basin. Based on temperature 
observations from USFS (1996b), suitable bull trout habitat is present 
in the mainstem of the West Fork Hood River, and bull trout were 
historically distributed in a short reach of the West Fork Hood River 
(Buchanan et al. 1997). Current bull trout use of the West Fork Hood 
River is thought to be primarily used as FMO habitat. We believe the 
West Fork Hood River will allow for population expansion and that it 
provides essential habitat. Lands managed in accordance with the 
Northwest Forest Plan and PACFISH/INFISH were excluded from the 
designation under Section 4(b)(2).
Unit 8: John Day River Basin
    58. Comment: One commenter suggested that although Granite Creek 
was historic spawning and rearing habitat, it currently serves as FMO 
habitat.
    Our Response: We agree.
    59. Comment: One commenter suggested that although Clear Creek is 
essential habitat necessary to recover bull trout, it is not currently 
an occupied spawning area.
    Our Response: There have been many anecdotal reports of bull trout 
and the presence of bull trout in the upper reaches of the watershed to 
suggest that they are using Clear Creek, but we agree there is not 
evidence of current spawning. Habitat within the John Day River Basin 
has been excluded under provisions of Section 4(b)(2) based on 
management actions associated with the Federal Columbia River Power 
System.
Unit 9: Umatilla / Walla Walla River Basins
    60. Comment: Several commenters did not think it was appropriate to 
combine the Umatilla River Basin and the Walla Walla River Basin into 
the same critical habitat unit (CHU). They suggest that we split them 
into separate units.
    Our Response: The CHU boundaries are based on bull trout recovery 
units as defined in the draft Recovery Plan that were based on the 
State of Oregon's Bull Trout Working Group and conservation efforts 
which were initiated and established years before the listing of bull 
trout. We felt it was most expedient to overlay our Federal process on 
the already established State efforts. These unit boundaries were not 
considered in the process used to determine what habitat areas are 
essential for bull trout. So, the areas included in the critical 
habitat designation would be the same, regardless of whether the 
Umatilla and Walla Walla river basins are combined or split into 
separate units.
Unit 10: Grande Ronde River Basin
    61. Comment: One commenter noted that the inclusion of Sheep Creek 
and Five Points Creek as proposed critical habitat appears to be based 
purely on speculation that these streams have potential habitat to 
expand existing bull trout distribution in the Grande Ronde Recovery 
Unit.
    Our Response: Unoccupied areas for both Sheep Creek and Five Points 
Creek were removed from the final designation. Lands managed under 
PACFISH/INFISH were excluded under Section 4(b)(2).
    Surveys for bull trout have not been done in Sheep Creek and East 
Sheep Creek. Spawning and rearing habitat in the upper portion of Sheep 
Creek and East Sheep Creek are characterized by high water quality and 
low water temperatures. Because we cannot confirm at this time that 
bull trout currently occupy the lower portion of Sheep Creek, and we 
have no data to verify historical occupation, we deleted this section 
from final critical habitat designation. Bull trout have been sighted 
in the lower 0.5 mi (0.8 km) of Five Points Creek. Also, several creeks 
with spawning and rearing habitat drain into Five Points Creek.
    Recovery objective <greek-i>2 in the draft Grande Ronde River 
Recovery Unit Plan states that for the Grande Ronde River Core Area, 
``Increased population abundance is expected to occur by securing the 
distribution in the Hurricane and Looking Glass creeks as well as the 
Wenaha River, and by securing and expanding seasonal distribution in 
the Upper Grande Ronde, Minam/Deer and Lostine/Bear complexes, as well 
as Catherine and Indian creeks.'' Sheep and Five Points Creeks and 
associated tributaries are within the upper Grande Ronde River local 
population and are essential for bull trout population and distribution 
expansion necessary to achieve conservation. FMO and spawning and 
rearing habitat exist in these stream systems.
Unit 12: Hells Canyon Complex
    62. Comment: The primary limiting factors for bull trout in the 
Powder River Basin are the Hells Canyon and other dams that deprive 
bull trout of an important prey base. Critical habitat designation will 
do little or nothing to address these obstacles, while interfering with 
water use practices that improve conditions for bull trout.
    Our Response: We agree that bull trout have lost a major food 
source with the elimination of anadromous salmon from the Snake River 
system above Hells Canyon dam. While salmon were an important food 
source for bull trout, salmon were not the only prey base used by bull 
trout. Bull trout are opportunistic feeders and will generally prey 
upon whatever they can catch. The food habits of bull trout are 
primarily a function of size and life-history strategy. We have 
addressed restoration of anadromous fish by including task 3.1.3 in the 
Recovery Measures Narrative of the Draft Recovery Plan. Task 3.1.3 
recommends restoration of the historical prey base for bull trout by 
reestablishing viable populations of anadromous fish. The designation 
of critical habitat should not interfere with efforts to improve 
conditions for bull trout because beneficial actions for bull trout 
should support the PCEs.
    63. Comment: Watershed enhancement projects are currently taking 
place on National Forest System lands, and on private lands along 
Cracker, Fruit, and Little Cracker creeks, and along the Powder River. 
The county ensures that county roads do not impact water quality in 
streams; the USFS, State and county, along with miners, permittees, 
ranchers, farmers, and recreationists, are all working with the goal of 
improvement of the county's rivers and streams. Why are these streams 
designated?
    Our Response: The value of these efforts have been recognized and 
considered in the final designation. Management of lands under PACFISH/
INFISH guidelines have been recognized and these lands have been 
excluded under Section 4(b)(2). Unoccupied habitat has been removed 
from the final designation as have small segments (less that 0.5 miles) 
that are in private ownership. The remaining lands in this area have 
been determined to contain PCEs and be essential to the conservation of 
bull trout.
    64. Comment: Historical data available in Baker County gives an 
account of Powder and Burnt Rivers, along with the majority of their 
tributaries, as being dry in late summer prior to the installation of 
water storage

[[Page 60007]]

facilities. Presently, stored water, used primarily for irrigation, 
keeps streams and rivers flowing all year. Late in the summer, however, 
the water level drops and water temperatures increase. This condition 
is pervasive in all watersheds in Baker County.
    Our Response: The Powder River is not included in the final 
designation because it is not currently occupied. Some tributaries to 
the Powder River are currently occupied and do contain PCEs and these 
remain in the final designation. The Burnt River and its tributaries 
were not designated as bull trout critical habitat because this basin 
has not been identified as necessary for recovery of bull trout within 
the Hells Canyon Complex Recovery Unit (Service, in prep. 2004a), and 
also because historical population documentation is lacking (Ratliff 
and Howell 1992; Buchanan et al. 1997).
    65. Comment: There is no evidence that any resource industries such 
as logging and grazing have been harmful to the bull trout in this 
unit, and these practices may be important management tools for the 
species.
    Our Response: Habitat fragmentation and degradation are likely the 
primary threats for bull trout throughout the Hells Canyon Complex 
Recovery Unit. Some resource practices that have historically adversely 
impacted bull trout have ceased or been altered to reduce impacts to 
waterways. We agree that logging and grazing can be compatible 
management practice if conducted appropriately.
    66. Comment: Given the inherent problems in developing fish passage 
around dams, the Hells Canyon Complex is not essential for preservation 
of the species since there are many other areas within the Pacific 
Northwest region that have less formidable obstacles. Designating this 
area as critical habitat, places too large a burden on the residents 
and particularly the agricultural community.
    Our Response: We acknowledge that providing fish passage around 
hydroelectric or water storage facilities can be challenging. It is 
important to individually assess each facility relative to the 
conservation needs of the species of concern, potential benefits to the 
species, and economic costs associated with the action. Providing for 
fish passage does not mean that expensive alterations to concrete 
facilities is the only solution. In some instances trap and haul 
operations may be sufficient, in others spilling water or channeling 
water through sluiceways may be the preferred operation. In other 
instances, fish passage may not be the preferred alternative. 
Reservoirs were excluded from the final designation due to concerns 
about possible third party actions.
    67. Comment: Will critical habitat designation result in the 
elimination of irrigation in Baker County?
    Our Response: No. The designation of critical habitat does not 
create a regulatory burden for private landowners unless there is a 
Federal nexus (i.e., the private action is connected with a Federal 
action). However, we realize that many irrigation projects do have a 
nexus with the Bureau of Reclamation or the U.S. Army Corps of 
Engineers. When there is a nexus, adverse effects to critical habitat 
will need to be addressed through formal section 7 consultations. 
Federal actions will be evaluated on a case-by-case basis. If the 
Service finds that a proposed Federal action would result in 
destruction or adverse modification of critical habitat, the Service 
will develop one or more Reasonable and Prudent Alternatives to the 
proposed action that (1) avoid the likelihood of adverse modification, 
(2) can be implemented in a manner consistent with the intended purpose 
of the action, (3) can be implemented consistent with the scope of the 
action agency's legal authority and jurisdiction, and (4) are 
economically and technologically feasible. Given these four elements, 
we do not foresee a Reasonable and Prudent Alternative consisting of 
the elimination of irrigation in Baker County.
    68. Comment: Historically, not all the river systems mentioned have 
had native bull trout populations. Because of high water temperatures 
and low dissolved oxygen in many of streams and rivers, such as the 
lower section of the Powder River, bull trout can't be supported.
    Our Response: All creeks included in the draft Hells Canyon Complex 
Recovery Plan are within the historical range of bull trout. Bull trout 
use of the mainstem Powder River is most likely as FMO habitat during 
the late fall and winter. During this time, flows in the Powder River 
are significantly higher than during the late spring and summer, when 
irrigation withdrawals occur. The water is also cooler, and most likely 
contains higher oxygen levels compared with warmer summer flows. We 
believe that the mainstem Powder River can continue to serve as FMO 
habitat for bull trout in a recovered condition.
    69. Comment: Why was there no communication from the recovery teams 
regarding bull trout critical habitat designation to any potentially 
impacted groups affected within this unit?
    Our Response: During the recovery planning process, we actively 
encouraged stakeholder involvement through contacting watershed council 
representatives and requesting their participation. We have made a 
concerted effort to increase stakeholder participation in the recovery 
planning process for the Hells Canyon Complex by meeting with the Baker 
County Bull Trout Response Team to learn about concerns and try to 
incorporate those concerns into the critical habitat designation. 
Mining, agriculture, sport fishing, and landowner interests have all 
been represented at meetings we have held between the publication of 
the draft and the final recovery plan chapter for this unit.
    70. Comment: What was the time-frame that the Recovery Unit Team 
was working under?
    Our Response: Coordination between the Service and ODFW has been 
occurring informally since 1993. At the first formal working group in 
1997, the USFS, ODFW, and BLM biologists and hydrologists met to share 
information on bull trout, discuss critical data needs, and coordinate 
activities that would lead toward development of a conservation 
strategy for bull trout in the Pine Creek basin. Recovery Unit Team 
organization began in 1999 with an invitation sent to agencies and 
watershed councils to attend a series of workshops in eastern Oregon to 
begin work on the recovery plan after the bull trout was listed in 
1998.
Unit 13: Malheur River Basin
    71. Comment: Two commenters asked about the suitability of habitat 
for bull trout on the Little Malheur River due to elevated water 
temperatures.
    Our Response: Historical presence of bull trout in the Little 
Malheur River has been documented by the USFS (1967). Documentation of 
bull trout occupancy has also been provided by the Burns Paiute Tribe 
as part of a life history study using telemetry techniques. We agree 
that stream temperatures are high in the summer in the lower reaches of 
the stream. However, water temperatures are cool enough during the 
migration and overwintering time periods to provide habitat for bull 
trout in the Little Malheur River. The Malheur River Basin unit was 
excluded from critical habitat based on economic considerations under 
provisions of Section 4(b)(2).
    72. Comment: Are Summit Creek, Big Creek, and Lake Creek suitable 
for bull trout? Does Crooked Creek provide suitable spawning and 
rearing habitat?
    Our Response: In defining spawning and rearing habitat versus FMO 
habitat

[[Page 60008]]

for the proposed designation, we considered the areas for rearing as 
those areas used by sub-adults, associated with a spawning area. Summit 
Creek, Big Creek, and Lake Creek are suitable habitat for bull trout 
from their confluences with the Malheur River to their sources. All 
three creeks provide spawning and rearing habitat, and all are occupied 
based on spawning surveys conducted by the USFS, ODFW, and the Burns 
Pauite Tribe. Bull trout also have been detected in Summit Creek, Big 
Creek, and Lake Creek during creel surveys conducted since 1968. In the 
case of Summit Creek, where there is potential spawning habitat in the 
upper reach, we assume that rearing for at least portions of the year 
is possible throughout the length of the stream. In effect, there is an 
overlap in habitat used by sub-adult fish between the definitions for 
spawning and rearing and FMO habitat.
    We recognize that habitat restoration would need to occur to 
provide good quality rearing habitat. Habitat in Crooked Creek is 
currently below optimal conditions for bull trout and requires habitat 
restoration. Crooked Creek has documented bull trout occurrences, and 
has been identified as essential to conservation of bull trout and to 
provide for habitat expansion in the draft Recovery Plan. Because bull 
trout have been documented rearing in Crooked Creek, we know they 
expand their range into the stream when the opportunity arises. Use of 
Crooked Creek would primarily occur in the spring time when water 
temperatures are low, stream flows are high, and bull trout migrate 
into tributary streams to forage. Only habitat degradation including 
increased water temperatures and poor substrate conditions prevent them 
from inhabiting the stream on a regular basis. The habitat in Crooked 
Creek would primarily be inhabited by rearing and foraging bull trout 
during seasons of year when bull trout are able to access the habitat. 
The Malheur River Basin unit was excluded from critical habitat based 
on economic considerations under provisions of Section 4(b)(2).
    73. Comment: One commenter asked about the suitability of 
Bluebucket Creek for bull trout, and another about Warm Springs 
Reservoir.
    Our Response: We anticipate increased bull trout use in the lower 
reaches of the Middle Fork Malheur River as habitat is restored and the 
bull trout population increases. The Malheur River Basin unit was 
excluded from critical habitat based on economic considerations under 
provisions of Section 4(b)(2).
Unit 15: Clearwater River Basin
    74. Comment: Silver, Twentymile, and Wing creeks were documented as 
occupied by bull trout in the South Fork Clearwater Landscape 
Assessment done by the Nez Perce National Forest. The map in the 
proposed rule lists these streams as Dl, D2, and D3, although they are 
not shown on the map.
    Our Response: Silver and Twentymile creeks are documented as 
occupied bull trout FMO habitat. Wing Creek is unoccupied and is not 
associated with a local or potential population and was removed from 
the final designation. In addition, the Clearwater River Basin Unit 
which includes these creeks has been excluded from the final critical 
habitat designation under provisions of Section 4(b)(2) because of 
cooperative efforts being undertaken as part of the Snake River Basin 
adjudication.
    75. Comment: Why is Freeman Creek listed as critical habitat for 
bull trout? It is a small tributary of Dworshak Reservoir. There are 
many other larger tributaries to Dworshak Reservoir that are 
appropriately not listed as critical habitat for bull trout.
    Our Response: Freeman Creek is occupied FMO habitat, but not 
associated with a local or potential population. The stream is 
essential as a cold water refugia and foraging habitat during some 
portions of the summer when the water temperatures of Dworshak 
Reservoir rise. The Clearwater River Basin Unit which includes Freeman 
Creek has been excluded from the final critical habitat designation 
under provisions of Section 4(b)(2) because of cooperative efforts 
being undertaken as part of the Snake River Basin adjudication.
    76. Comment: Three commenters stated that rural basin community 
economies in the Clearwater have experienced serious downturns that are 
tied to low elk herd populations, no significant timber harvest on 
either national forest, and that critical habitat could result in 
timber harvest prohibitions. Elk herds need the early seral conditions 
that occur after burning, timber harvest, and mechanical treatment of 
brush fields.
    Our Response: There is no landscape prohibition to timber harvest 
associated with bull trout critical habitat. In waters containing bull 
trout, land management agencies are required to perform watershed 
assessments and consult with us to determine what practices would 
jeopardize or adversely affect critical habitat for listed species. The 
protection of water quality and riparian corridors that will help bull 
trout will most likely help other terrestrial species, such as elk. The 
Clearwater River Basin Unit has been excluded from the final critical 
habitat designation under provisions of Section 4(b)(2) because of 
cooperative efforts being undertaken as part of the Snake River Basin 
adjudication.
Unit 16: Salmon River Basin
    77. Comment: Studies in upper Salmon River Basin streams and 
enclosed bodies of water show the majority are occupied by bull trout, 
the species does not appear to be threatened or endangered in this 
section of the proposed designation and therefore should not be 
included in critical habitat.
    Our Response: Bull trout in the upper Salmon River basin are still 
widespread in distribution. Our primary concerns for the species in the 
area are the lack of habitat connectivity and activities that cause 
reduced population levels and increased risk of local extirpation. We 
are required to designate critical habitat for species listed under the 
Act. Under the Act, a critical habitat designation establishes a 
geographic area that is essential for the conservation of a threatened 
or endangered species. The currently on-going 5-year review will 
evaluate the status of species. The entire Salmon River Basin Unit has 
been excluded from the final critical habitat designation under 
provisions of Section 4(b)(2) because of cooperative efforts being 
undertaken as part of the Snake River Basin adjudication.
    78. Comment: Why are unnatural stream channels designated as 
critical habitat, specifically those manmade channels created and used 
for irrigation withdrawal and delivery?
    Our Response: While these manmade channels provide suitable habitat 
conditions and provide documented spawning and early rearing habitat 
for bull trout, we determined that the channels are not essential for 
the conservation of the species, and therefore, they are not included 
in the final rule.
Unit 17: Southwest Idaho River Basins
    79. Comment: Are Trail and Kettle Creeks local populations?
    Our Response: Trail Creek is part of the Wapiti Creek bull trout 
local population in the South Fork Payette Core Area (Service, in prep. 
2004). While Kettle Creek does contain PCEs, it is not within an 
identified bull trout local population and is not known to be occupied 
by bull trout. Kettle Creek was removed from the final designation of 
critical habitat. In addition, the Southwest Idaho River Basin has been 
excluded from the final critical habitat

[[Page 60009]]

designation under provisions of Section 4(b)(2) because of cooperative 
efforts being undertaken as part of the Snake River Basin adjudication.
    80. Comment: There is no evidence that bull trout are migratory in 
the Weiser River Core Area.
    Our Response: At present, bull trout have limited movement 
throughout the Weiser drainage because of dams, irrigation diversions, 
and poor water quality conditions. It may not be possible for bull 
trout to have a migratory component at this time, but the migratory 
component may have existed prior to human development. The Southwest 
Idaho River Basin has been excluded from the final critical habitat 
designation under provisions of Section 4(b)(2) because of cooperative 
efforts being undertaken as part of the Snake River Basin adjudication.
    81. Comment: The Service did not consistently designate spawning 
and rearing habitat below 5,000 ft (1,524 m) in elevation.
    Our Response: We are aware of general relationships between 
elevation and appropriate bull trout spawning and rearing habitat 
identified in the published (Rieman 1993) and unpublished literature. 
However, in proposing critical habitat for bull trout, we sought to go 
beyond reliance on these general relationships and propose critical 
habitat in areas that are supported by existing information documenting 
spawning and rearing activity, or inferred based on habitat quality and 
best professional judgment of biologists with local expertise. We 
received many pertinent comments relative to the latter basis and have 
refined this rule accordingly.
    82. Comment: The Southwest Idaho recovery unit has met recovery 
because of high bull trout abundance and distribution in some areas.
    Our Response: We acknowledge that, within the Southwest Idaho Unit, 
bull trout abundance is at or near recovered abundance levels in some, 
but not all, of the subunits and core areas. We also recognize that 
bull trout are relatively widely distributed in this unit. Current data 
shows stable or slightly decreasing trends in the Middle Fork Boise 
River from 1999 to 2002 (Salow and Cross 2003). There are areas that 
are currently unoccupied that the Recovery Unit Team has identified for 
assessment relative to the feasibility of establishing additional 
populations to meet both abundance and distribution goals, however they 
are not designated as critical habitat in this rule. Many threats to 
bull trout and its habitat still remain in this area, such as habitat 
degradation, fragmentation, blockage of migratory corridors, poor water 
quality, and the introduction of exotic species. The status of this 
recovery unit will be evaluated further as part of the Service's 5-year 
review.
    83. Comment: The Service has not sufficiently addressed impacts to 
local governments. The collaboration required by the proposals has 
significant potential to involve segments of the population that 
historically have not played a large role. The Service did not involve 
landowners and local government in this rulemaking process.
    Our Response: Since 1998, we have consulted with stakeholders and 
private individuals throughout the range of the species. This comment 
was from Idaho where the Service has been working through the Southwest 
Idaho Native Fish Watershed Advisory Group. The IDEQ was in charge of 
this group until 2002 when the Idaho Office of Species Conservation was 
assigned the lead. No meetings of this group have been convened since 
the change in leadership occurred. We did hold nine public meetings and 
the comment period was opened for 210 days in order to give the public 
opportunity to provide comments on the proposed rule and draft economic 
analysis.
    Throughout the range, we contacted appropriate Federal, State, and 
local agencies, scientific organizations, and other interested parties 
and invited them to comment on the proposed critical habitat for the 
Klamath River and Columbia River populations of bull trout. We also 
notified the public of the proposal by placing information in local and 
regional newspapers, providing this information to the media, and 
placing it on our bull trout Web site.
    Several exclusions are being made under Section 4(b)(2) that 
acknowledge local efforts including exclusions related to the area 
being addressed in accordance with the Snake River Basin Adjudication, 
the Montana Bull Trout Restoration Plan, the Federal Columbia River 
Power System, the Northwest Forest Plan, and management in accordance 
with PACFISH/INFISH.
    84. Comment: A commenter stated that as the Boise and Payette 
Basins are dependent upon the operation of BOR facilities, modifying 
the operation of those facilities, through the reallocation of water, 
will exacerbate flooding and drought conditions.
    Our Response: The section 7 consultation process between Federal 
agencies involves an exchange of information and a balance between 
fulfilling the action agency's mission and providing for the 
conservation needs of listed species. As long as the action in question 
avoids jeopardy to the species there is latitude in carrying out that 
action. Consequently, we do not anticipate that consultation with the 
BOR will result in any significant change in project operations 
relative to drought and irrigation needs. Both the FWS and the BOR are 
highly concerned with public safety relative to dam operations and 
water management and will work to avoid any possibility of compromising 
that safety. We have also excluded reservoirs from the designation in 
anticipation that third party lawsuits could result in the consequences 
you identify.
    85. Comment: A commenter wondered why the cost of the valve 
replacement project on Arrowrock Dam increased from $5.5 million to a 
reported $16 million. Was that increase in cost associated with bull 
trout critical habitat?
    Our Response: No. BOR was originally going to open the ensign 
valves gate and flush all of the water and sediment out of Arrowrock 
Reservoir into Lucky Peak Reservoir and then later into the Boise 
River. However, BOR was concerned that the ancient control gate would 
not close because of its decrepit condition. Therefore, they chose an 
alternative for valve replacement that was primarily an engineering and 
safety consideration and not driven by critical habitat or section 7 
consultation.
    86. Comment: Fish screens and alteration to irrigation water 
delivery on the Little Weiser and the main Weiser River to accommodate 
bull trout existence, when there is no credible evidence of that 
species is migratory, would be an economic impact that could put 
ranchers and farmers out of business.
    Our Response: Critical habitat designation does not alter land use 
or require specific management actions. We do not have documentation of 
historical presence of bull trout in the Weiser River below its 
confluence with the Little Weiser River and that area was removed from 
final critical habitat. In addition, streams in this area were excluded 
in accordance with provisions in Section 4(b)(2) associated with 
management of this area in accordance with the Snake River Basin 
Adjudication.
Unit 19: Lower Columbia River Basin
    87. Comment: The Service failed to evaluate the section 7 
consultation biological opinion for the interim operation of the Lewis 
River hydroelectric projects.
    Our Response: The terms and conditions of the biological opinion 
included the requirement to record

[[Page 60010]]

several conservation easements within 30 days of the FERC issuance of 
the final order approving the application to amend the license for 
these projects. However, these conservation easements were not in place 
at the time of the publication of the proposed rule. Although the 
proposed designation was not published until November 2002, the 
biological opinion was not finalized until after the draft proposed 
rule was in the approval process. These conservation easements are now 
completed, and we revised the final designation of critical habitat in 
the Lewis River critical habitat subunit (CHSU) based on the completed 
conservation easements.
    88. Comment: All areas above Merwin Dam should be excluded from 
critical habitat designation because the benefits of exclusion outweigh 
the benefits of inclusion. The costs in the DEA are outdated because 
current passage costs through all three reservoirs are estimated to be 
approximately $156 million and can be attributed to bull trout, salmon, 
and steelhead.
    Our Response: We have taken into consideration all comments 
regarding critical habitat costs and this information is evaluated in 
the final Economic Analysis.
    We reexamined each segment of proposed critical habitat in the 
Lewis River CHSU and excluded several stream segments and all 
reservoirs. In addition, habitat was excluded under provisions of 
Section 4(b)(2) associated with management of the Federal Columbia 
River Power System. The Lewis River bull trout local populations are 
the largest remaining bull trout populations in this CHU.
Unit 20: Mid-Columbia
    89. Comment: There are socio-political issues (e.g., costs of 
passage over the dams) regarding passage over the Yakima dams as 
specified by the draft Recovery Plan, and listing critical habitat 
above the dams may be inappropriate while passage problems still exist 
and may continue into the future.
    Our Response: There is suitable habitat currently above the dams 
for multiple local populations. Most are not connected to downstream 
habitat and that is likely a primary reason why the population numbers 
are low in most of those local populations. Both FMO and spawning and 
rearing habitat occur above the dams, and that such habitat is 
essential to the conservation of the species. The reservoirs likely 
provide important overwintering and forage habitat which may be one of 
the reasons that the populations still exist above the dams. Recovery 
tasks include the identification of problems and establishment of fish 
passage. Coordinated efforts between BOR, Washington Department of Fish 
and Wildlife (WDFW), NOAA-Fisheries, the Yakama Nation, Yakima Basin 
Joint Board, and the Service are currently addressing priorities for 
establishing passage.
Unit 21: Upper Columbia
    90. Comment: Is the upper Icicle Creek, above Leavenworth Fish 
Hatchery designated as critical habitat? If so, why, since there has 
been a dam cutting off all up and down stream migration for the last 75 
years, and how will it affect any new construction adjacent to Icicle 
Creek?
    Our Response: A resident bull trout population occurs in Icicle 
Creek upstream of the hatchery, and after the planned removal of 
artificial barriers in Icicle Creek, it is possible that migratory bull 
trout will be able to access upper Icicle Creek. In 2002, migratory 
sized bull trout were found upstream of the boulder area at rmi 5.4 
(rkm 8.8). Areas along Icicle Creek were excluded from the final 
designation under provisions of Section 4(b)(2) based on management 
associated with the Federal Columbia River Power System.
    91. Comment: Why is the mainstem of the Columbia River included in 
the designation? Studies have not determined the importance of the 
Wells Pool to the long-term fitness of the Methow River bull trout 
population, and have not determined whether the mainstem habitat is 
essential to the conservation of the species.
    Our Response: The mainstem of the Columbia River has been excluded 
under Section 4(b)(2) based on management associated with the Federal 
Columbia River Power System. The Columbia River provides important FMO 
habitat. There is documented use of the Columbia River by bull trout 
from the Wenatchee, Entiat, and Methow CHSUs (BioAnalysts, Inc. 2002, 
2003; Service 2002b, in prep. 2004b). Bull trout from three radio 
telemetry studies have been documented migrating between the Columbia 
River and the Wenatchee, Entiat, and Methow watersheds (BioAnalysts, 
Inc. 2002, 2003; Service 2002b, in prep. 2004b; R.D. Nelle, pers. comm. 
2004), including multiple migrations. So use of the Columbia River is 
part of the migration pattern for bull trout (BioAnalysts, Inc. 2003; 
Service 2002b, in prep. 2004b).
    Adult migratory bull trout have been documented in the Columbia 
River primarily between October and May (BioAnalysts, Inc. 2003). 
Overwintering habitat, in particular, is often only used seasonally, 
and especially if an area has warmer water seasonally bull trout may 
migrate out. Several bull trout have been documented moving between the 
Columbia River and the Twisp River, and have used the Wells Pool 
(BioAnalysts, Inc. 2002, 2003). One bull trout tagged in the Wenatchee 
River watershed was later located in the Wells pool near the mouth of 
the Methow River (Service, in prep. 2004). The Columbia River appears 
to provide essential FMO where a combination of water depth, lower 
velocities, comparatively warmer water, and availability of food 
provide suitable habitat for bull trout.
Unit 22: Northeast Washington
    92. Comment: Because fish passage evidence demonstrates a 
significant barrier at, or near, Metaline Falls, the critical habitat 
designation and core areas should reflect this evidence and stop at 
Metaline Falls.
    Our Response: There are no known studies or work to assess fish 
passage at Metaline Falls prior to the construction of Boundary Dam. 
Boundary Dam Reservoir now inundates the historic Metaline Falls and 
provides essential and continuous, suitable FMO habitat from Boundary 
Dam upstream to Box Canyon Dam. Bull trout currently occupy the 
reservoir and have been documented by R2 Resource Consultants, Inc. 
(1998) and Curt Vail and T. Shuhda, USFS, pers. comm. (2001, 2002). 
This reach of the Pend Oreille River provides FMO habitat and 
connectivity between Slate and Sullivan Creeks and other tributaries in 
the Boundary Reservoir, as well as connectivity to upper reaches of the 
Pend Oreille River and Lake Pend Oreille.
    93. Comment: The Pend Oreille River critical habitat subsection 
appears to rely heavily on data that is ambiguous or based on limited, 
if not single, data points to designate areas of bull trout critical 
habitat.
    Our Response: The Pend Oreille River mainstem is identified as FMO 
habitat in the final critical habitat rule. The information provided 
for the Pend Oreille River is summarized from several historical 
documents (Smith 1936-38; Gilbert and Evermann 1895), independent 
scientific studies (Ashe and Scholz 1992; R2 Resource Consultants, Inc. 
1998; McLellen and O'Connor 2001; Giest et al. 2004; J. Maroney, 
Kalispel Tribe, pers. comm. 2000, 2001, 2002; T. Shuhda, pers. comm. 
2004), and biological assessments (Andonaegui 2003), which are cited 
within the draft Recovery Plan

[[Page 60011]]

for the Northeast Washington Recovery Unit (Service 2002).
    94. Comment: When water temperatures in the summer often exceed 70 
[deg]F (21 [deg]C) in the Pend Oreille River, this would preclude the 
use of the river by bull trout, with the exception of localized colder 
water areas.
    Our Response: We agree. Bull trout are most likely to rely on the 
Pend Oreille in the late fall, winter, and spring when temperatures are 
lower.
    Bull trout use the Pend Oreille River primarily as FMO habitat, and 
are documented to migrate to colder water as temperatures increase in 
mid-summer. For example, bull trout found in the Pend Oreille River 
below Albeni Falls Dam in August 2003 (Giest et al. 2004) moved from 
cold water inputs into higher temperatures (greater than 70[deg] F (21 
[deg]C) for short periods of time to forage or looking for passage. 
Prior to the construction of dams on the Pend Oreille River without 
fish passage facilities, adult bull trout likely moved into 
tributaries, cold water upwellings, or migrated to Lake Pend Oreille as 
the temperature increased to avoided unsuitable conditions. This is 
further supported by Idaho Department of Fish and Game (IDFG) (2002), 
and D. Giest (in litt. 2004) who tracked adult bull trout from the Pend 
Oreille River to Lake Pend Oreille.
    95. Comment: One commenter stated that one bull trout observed 
above the Ione Municipal Dam suggests that it must have been the 
progeny of a remnant resident population from above the dam, and must 
be taken as speculation at this time. Cedar Creek, above Ione Municipal 
Dam, has also been planted with brook trout.
    Our Response: In September 1995, one bull trout was observed in 
Cedar Creek above the Ione Municipal Dam during stream surveys 
conducted by the Kalispel Tribe (T. Shuhda, pers. comm. 2002). There is 
no information on the origin or life history form of this fish, but the 
downstream barrier indicates that this bull trout must have been a 
product of a spawning population above Ione Municipal Dam (USFS, in 
litt. 1999c). A second bull trout was found in July of 2003, during 
brook trout removal. This fish was captured below the dam, and a tissue 
sample was taken before it was released (Sandy Lembcke, WDFW, pers. 
comm. 2003), which may help identify its origin. Brook trout were 
planted across the west and are present in the Pend Oreille basin. WDFW 
has an active program to remove brook trout in streams where they are 
negatively impacting native species, including Cedar Creek. There is an 
annual multi-agency and Tribal effort to remove brook trout by 
electroshocking and transporting the fish to suitable areas. 
Furthermore, brook trout do not occur above Ione Municiple Dam and 
habitat conditions favor native species in the area above the dam.
    Cedar Creek contains essential PCEs that support spawning and 
rearing habitat. The Ione Municipal Dam and water storage reservoir 
located 1.2 mi (1.9 km) above the mouth of Cedar Creek represents a 
fish passage barrier in this stream. This storage project was 
originally built to provide a municipal water source for the City of 
Ione, Washington, but is no longer used for that purpose. The City of 
Ione is currently working with other entities to remove the dam and 
restore fish passage and habitat. Portions of this area have been 
excluded under Section 4(b)(2) associated with management under 
PACFISH/INFISH and associated with economic impacts and cooperative 
efforts associated with segments under 0.5 miles in length that are in 
private ownership.
    96. Comment: There is an inconsistency concerning measurements on a 
number of tributaries between the potential habitat recommended by the 
Technical Advisory Group (TAG) of the Washington Conservation 
Commission's Habitat Limiting Factors Report (Andonaegui 2000) and the 
extent of the proposed critical habitat designation.
    Our Response: The TAG and the Service have different objectives and 
guidelines for establishing bull trout habitat. The TAG has identified 
areas for restoration activities and we have identified critical 
habitat that is essential for survival of bull trout. Some 
discrepancies may also occur from measurement techniques, but are 
clarified with physical descriptions of starting and ending points. 
Therefore, the discrepancy is discountable because of different agency 
objectives and methods.
    97. Comment: One commenter requested that Tacoma Creek, from rmi 
2.0 (rkm 3.2) to rmi 9.0 (rkm 14.5), be changed from FMO to spawning 
and rearing habitat designation.
    Our Response: This area is now considered as spawning and rearing 
habitat.
    98. Comment: Should there be two separate PCEs for proposed FMO 
versus spawning and rearing critical habitat due to the differences in 
the life stages of bull trout using the different habitats?
    Our Response: We considered several approaches to designating PCE's 
including possibly having separate PCE's for FMO versus spawning and 
rearing habitat. The PCEs describe those biological features associated 
with sustaining bull trout populations including spawning and rearing 
habitat, and as well as habitats to support other life stages and 
strategies. After careful consideration, we adopted the approach 
identified in the proposed rule to balance providing specificity with 
PCE's that applied across multiple areas. We acknowledge that other 
approaches would be possible.

Comments Related to the Economic Analysis

    99. Comment: Numerous commenters stated that we neglected to 
consider the economic consequences of the critical habitat proposal. A 
DEA must be released for public comment before any proposed or final 
critical habitat designations are made. Not providing the economic 
analysis for review before, or at the time the proposed rule is made 
available, does not meet the requirements of the Act (New Mexico Cattle 
Growers Assn. v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th 
Cir. 2001), and does not allow for meaningful public comments.
    Our Response: We informed the public in the proposed rule that we 
would conduct an analysis of the economic impacts of designating these 
areas as critical habitat prior to making a final determination. We 
announced the availability of the DEA with a notice in the Federal 
Register, and opened a public comment period on the DEA at that time. 
The public was able to concurrently review and comment on both the DEA 
and the proposed critical habitat designation. We subsequently provided 
this same information when replying to e-mail messages, telephone 
calls, and during our many public hearings and public meetings held in 
Montana, Washington, Oregon, and Idaho.
    100. Comment: Many commenters felt that costs of critical habitat 
outweighed the benefits and that all costs associated with critical 
habitat should be included in the analysis.
    Our Response: The final rule includes additional areas where the 
benefits of excluding critical habitat have been determined to exceed 
the benefit of including these areas in the designation under 
provisions of Section 4(b)(2) so these areas have been excluded from 
the final designation.
    The primary purpose of the economic analysis is to estimate the 
economic impact associated with the designation of critical habitat for 
the bull trout. This information is intended to assist the Secretary in 
making decisions about whether the benefits of excluding particular 
areas from the designation

[[Page 60012]]

outweigh the benefits of including those areas in the designation. The 
economic analysis considers the economic efficiency effects that may 
result from the designation, including habitat protections that may be 
co-extensive with the listing of the species. It also addresses 
distribution of impacts, including an assessment of the potential 
effects on small entities and the energy industry. This information can 
be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
The analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities exist in the absence 
of critical habitat. These impacts may result from, for example, local 
zoning laws, State and natural resource laws, and enforceable 
management plans and best management practices applied by other State 
and Federal agencies. For example, regional management plans, such as 
the Northwest Forest Plan, PACFISH and INFISH provide significant 
protection to bull trout and its habitat while imposing significant 
costs within the region. Economic impacts that result from these types 
of protections are not included in the assessment as they are 
considered to be part of the regulatory and policy ``baseline.''
    101. Comment: Costs associated with the operations of agencies such 
as the Bureau of Reclamation (BOR) to deliver water belonging to 
irrigation districts must be taken into consideration. The impact of 
attempting to alter pre-existing legal requirements, and the 
constraints those legal rights have on designating critical habitat, 
must be considered before a final decision can be made.
    Our Response: All potential costs associated with the designation 
of bull trout critical habitat, including those related to BOR water 
management, are addressed through the economic analysis and the 
associated public comment period.
    102. Comment: One commenter stated that the economic analysis may 
substantially change the nature of the proposed critical habitat 
designation.
    Our Response: We agree that, based on the economic analysis, the 
final designation of critical habitat may be different from that which 
was proposed. Section 4(b)(2) of the Act requires the Service to 
designate critical habitat on the basis of the best scientific data 
available, after taking into consideration the economic impact, and any 
other relevant impact, of specifying any particular area as critical 
habitat. Based on the economic analysis, we may exclude areas from 
critical habitat designation when the benefits of exclusion outweigh 
the benefits of including the areas within critical habitat, provided 
the exclusion will not result in extinction of the species.
    103. Comment: One commenter stated that agencies should have an 
opportunity to review and comment on the draft final critical habitat 
designation rule.
    Our Response: We are bound by a settlement agreement with 
plaintiffs to finalize the bull trout critical habitat rule for the 
Columbia and Klamath populations by September 21, 2004. Our process 
provides the proposed designation and the Draft Economic Analysis (DEA) 
of that proposal for public comment; we then assess those comments, and 
revise and finalize the rule accordingly. If we were to provide an 
opportunity for public comment after each cycle of responding to public 
comments on the previous proposed rule, the process could go on 
indefinitely. Additionally, we are bound by a settle agreement with 
plaintiffs to finalize the bull trout critical habitat rule by 
September 21, 2004.
    104. Comment: The DEA minimized the cost of impacts to grazing 
permittees.
    Our Response: The DEA used consultations that occurred between 1998 
(when bull trout were listed) and 2002 (when the critical habitat 
proposal was published) to establish a baseline for predicting future 
costs. There were only a few consultations available in the record to 
determine future costs. The consultations did not result in substantial 
reductions or changes to the permits. Therefore, the estimated cost of 
future consultations was based on past consultations and determined to 
be not substantial.
    105. Comment: Communities and irrigators will be negatively 
affected by the loss of irrigation water. Ripple effects to local 
communities were not considered in the DEA.
    Our Response: The DEA used consultations that occurred between 1998 
and 2002 to establish a baseline for predicting future costs. There was 
only one consultation available in the record to determine future costs 
of irrigation modifications due to bull trout listing and critical 
habitat designation. This single consultation from Oregon resulted in a 
small reduction in water delivery and did not result in substantial 
costs to the irrigator. The estimated cost of future consultations and 
subsequent estimated cost to irrigators was not substantial. ``Ripple 
effects'' due to the costs associated with irrigation were not included 
in the EA because costs associated with irrigation were not predicted 
to be substantial. We agree that the assumptions and lack of historic 
data could have produced an underestimate of the costs to irrigation 
operators.
    106. Comment: Several comments suggested that the DEA significantly 
understates administrative consultation costs to third parties (not 
Service or Federal Action agencies). Additionally, one commenter felt 
that the method of determining cost allocation between parties involved 
in the consultation was unclear.
    Our Response: Section 3.1.1 describes the estimation of 
administrative costs per consultation for the Service, action agencies, 
and private parties involved in section 7 consultations. Exhibit 3.1 
shows that private parties are estimated to incur administrative costs 
in the consultation process. These costs are estimated to average 
between $1,200 and $4,900 for informal consultations, and approximately 
$3,000 to $15,000 for formal consultations. It should be noted that 
these estimates of administrative consultation costs are average costs. 
In individual cases, costs bourn by the Service, action agencies, or 
private parties may be higher or lower than the average estimates 
given.
    107. Comment: Several commenters questioned the accounting of 
actions related to bull trout at the Corps Albeni Falls Dam. One 
comment stated that the reduced power production at Albeni Falls had 
not been recognized. Other comments indicated that fish passage costs 
at Albeni Falls should be identified. Still other commenters wanted the 
costs associated with Albeni Falls actions included in the DEA estimate 
of section 7 bull trout costs. A specific comment related to potential 
downstream flooding stated that costs that may also be due, in part, to 
the winter ``draw-up.''
    Our Response: The DEA considers the cost of various management 
actions at the Albeni Falls Dam in the analysis in section 4.2.3. The 
winter ``draw-up'' at Lake Pend Oreille was first proposed by the IDFG 
in the early 1990s to benefit kokanee salmon (Oncorhynchus nerka) (and 
indirectly bull trout which prey on the salmon). Based on an update of 
an estimate developed by the Northwest Power Planning and Conservation 
Council from the mid-1990s, the DEA reports the cost of lost power 
production associated with the winter draw-up at $4.4 to $6.7 million 
per year. This experimental draw-up was proposed and initiated prior to 
listing and thus is not included as a section 7 bull trout cost.

[[Page 60013]]

    Fishery passage studies are currently underway at Albeni Falls, and 
the costs of these studies are included in the range of reported 
section 7 costs. The potential facility changes at Albeni Falls 
associated with fish passage are estimated to be $25 million and the 
costs of two such fish passage facilities are included in the range of 
future bull trout-related costs associated with the Federal Columbia 
River Power System (2000) Biological Opinion (BO) implementation 
(Exhibit 4.36). However, two of these are reported by Bonneville Power 
Administration (BPA) as ``reimbursement account'' expenditures 
authorized by the Northwest Power Act, and thus are not included as 
bull trout section 7 costs as discussed in the DEA. With reference to 
potential downstream flooding costs, the DEA cited a Corps analysis 
suggesting that one of the possible causes of flooding in the Cusick 
area may be operations at Box Canyon. Based on the comment, this 
section has been edited to remove the reference to ``the failure of 
Pend Oreille PUD to follow their agreement with the Calispell Creek 
drainage district in 1997.''
    108. Comment: Commenters questioned the impact of the assumptions 
and statements contained in the DEA regarding the allocation of costs 
between anadromous species and bull trout. Specifically, several 
commenters felt the impact of such allocations understated bull trout-
related costs in areas where no anadromous species were present.
    Our Response: The DEA employed specific assumptions about the 
allocation of costs between listed anadromous species and bull trout in 
several cases. In the cases of the Corps Willamette River dams and 
reservoirs and the BOR Yakima impoundments, costs were allocated based 
on the number of listed anadromous species. Based on updated 
information supplied by the BOR, a new allocation for the Yakima system 
anticipated project modification costs is included in the FEA. 
Allocations of costs associated with Federal Energy Regulatory 
Commission (FERC) relicensing and timber harvest were based on case 
studies from habitat where anadromous species were present, and from 
studies of habitat with no anadromous species. On average, we believe 
that forecast annual section 7 bull trout costs are likely high 
compared with actual future project modification costs. However, there 
is no question that assumptions will affect the costs and that 
incorrect assumptions have the potential to underestimate costs.
    109. Comment: One commenter stated that the DEA focused on impacts 
to the Service and action agencies leading to an understatement of 
impacts to private parties, specifically irrigated agriculture.
    Our Response: Section 4.1 of the DEA describes the types and 
magnitudes of annual estimated economic impacts associated with section 
7 bull trout consultation, including impacts on private parties, as 
well as the costs to the Service and action agencies. We are involved 
in every consultation and incur administrative costs conducting these 
consultations. The action agencies are also involved in each 
consultation as it is their actions that trigger the consultation 
(i.e., Federal nexus). The third group impacted is private parties or 
State and local agencies. These agencies, businesses, and individuals 
incur administrative costs associated with consultation, and project 
modification costs in some cases. Approximately 25 percent of the 
nearly 10 million dollars estimated annually for administrative costs 
associated with bull trout consultation activity will likely accrue to 
third parties. In addition, the discussion of small business impacts 
includes an analysis of impacts to small entities, including private 
parties and businesses. This discussion has been modified in the FEA to 
reflect the impact on irrigators of costs passed on by the BOR 
associated with bull trout protection in the operation of their dams 
and reservoirs.
    110. Comment: Two commenters stated the recent BLM court decision 
(Western Watersheds Project v. Matejko, Civ. No. 01-0259-E. BLW (D. 
Idaho) March 23, 2004) should be considered in calculating costs 
associated with interrupted irrigation water withdrawals. Another 
comment suggested that this court decision is unlikely to have any 
effect on irrigation water rights.
    Our Response: Agricultural diversions with a nexus to BLM are 
discussed in paragraph 318 of the DEA. BLM's position has been that 
irrigation diversions are not ongoing activities and thus the agency is 
not required to consult on them. A recent (March 23, 2004) court 
decision now requires BLM to consult on these diversions. Snake River 
Basin water rights are still being adjudicated and it will take a 
number of years for the legal issues to work their way through the 
courts. However, if there is a final determination that BLM must 
consult on these diversions there could be a significant cost. At this 
point, we have no basis for estimating either the timing or the outcome 
of the decision.
    111. Comment: The BOR provided new and updated information on costs 
related to section 7 bull trout consultations at BOR facilities 
throughout the designation. Specifically, new information on costs 
associated with trap-and-haul operations at Boise River, Malheur River, 
Powder River, and Payette River impoundments was presented. 
Additionally, new information on the likely scope of modifications and 
range of costs associated with consultation on dams on the Yakima River 
system was presented.
    Our Response: The BOR comments on the DEA bring to light new 
information on the scope and magnitude of these future consultation-
related costs. This new information has resulted in several substantive 
changes to the estimates in the FEA.
    The BOR reduced estimates of annual study and trap-and-haul 
operations in Idaho and Eastern OR from approximately $250,000 per dam 
to $250,000 for all dams combined. This change is reflected in section 
4.2.4 of the FEA. The other change is in the case of the five Yakima 
Basin BOR dams where it was assumed that costly upstream and downstream 
passage would be required for bull trout and steelhead. BOR suggests 
that a relatively inexpensive periodic trap-and-haul program could meet 
the needs of the bull trout within the Yakima System. Changes in these 
passage costs are also reflected in section 4.2.4.
    112. Comment: One commenter stated that the DEA should consider EPA 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)-related actions in the Coeur d'Alene Basin in the estimated 
costs for section 7 bull trout consultations.
    Our Response: We have identified no specific ongoing or likely 
future CERCLA-related consultations with associated costs outside of 
the range of uncertainty reflected in the DEA. As noted in the DEA, in 
many cases the USFS has maintained the position that in case of 
remedial actions taken under CERCLA, consultation is not required by 
the Act.
    113. Comment: One commenter felt that the DEA failed to consider in 
its cost estimates for dam modifications and the additional costs 
associated with engineering and compliance actions.
    Our Response: The comment noted that ``raw'' construction cost 
estimates can understate actual total construction costs unless these 
estimates are inflated to include engineering, design, and compliance 
costs in the total. The DEA employs this method in the case of dam

[[Page 60014]]

modification on the Yakima System. Construction cost estimates for the 
Yakima dam modifications were multiplied by 1.75 to account for design, 
engineering, and compliance costs. In the case of the costs associated 
with Corps dams on the Willamette River, estimated costs of project 
modifications were based on budget estimates and past similar projects 
and, therefore, already include the design and compliance cost 
components.
    114. Comment: Several commenters noted that the discussion of 
socioeconomic characteristics of the proposed designation obscured the 
fact that there are real differences between local areas within the 
designation. Specifically, it was noted that while mining might account 
for a small percentage of total income and employment in the 
designation as a whole, in certain areas or counties it was much more 
important.
    Our Response: We agree that the significant socioeconomic 
differences between critical habitat units, counties, and communities 
located within this large designation are variable. Section 2 of the 
DEA details some of these differences at both the unit level and at the 
county level, describing differences in income, employment, land 
ownership, and agricultural characteristics. A more general discussion 
is presented in section 2 of the role of such activities as mining, 
timber harvest, grazing, and recreation within the designation. While 
unit and county level data for these latter activities are not detailed 
within the DEA, differences in the reliance of specific units on these 
economic activities are reflected in the unit level estimates of 
economic costs in Appendix F of the report.
    115. Comment: Several commenters stated that various projects 
proposed on Federal land are sometimes dropped from further 
consideration before the consultation process has even begun due to 
species concerns. These commenters said the DEA failed to consider the 
opportunity costs associated with these projects in estimation of total 
costs. Another commenter noted that some proposed projects are not 
economically feasible and would never be completed, independent of any 
necessary consultations or regulations. Therefore, these projects 
should not be included in estimates of costs associated with the 
critical habitat designation.
    Our Response: A review of the frequency of formal and informal 
consultations suggests the potential opportunity costs associated with 
dropped projects are within the bounds of uncertainty associated with 
the projected number of formals. The number of projected future section 
7 consultations involving bull trout is described in section 3.4 in the 
DEA. The analysis projects a total of 52 formal consultations and 619 
informal consultations annually. The data set for the informal 
consultations is sufficiently large to identify a decline in 
consultations as the initial workload of ongoing activities is taken 
care of at listing. Accordingly, the projection for informal 
consultations is based on the most recent year's consultation data. 
However, the limited data set on formal consultation results in an 
uncertain trend, and the annual number of formal consultations 
projected in the DEA actually exceeds the average annual number during 
the 4 years following listing. While at the individual project level 
both commenters may at times be correct, there is no data specific to 
dropped projects that would allow direct estimation of any such 
impacts.
    116. Comment: The sample size for the regression model used in the 
DEA to estimate total fisheries-related project modification costs at 
FERC licensed hydroelectric facilities was too small, too imprecise, 
and provided unreliable estimates of costs.
    Our Response: The model is provided as a point of information on 
total fisheries-related costs. As part of the section 7 bull trout-
related costs, the main point of the analysis, are based on average 
costs. With respect to the model, while the sample is small, the 
statistics reported are correctly based on the model sample size and 
degrees of freedom. The small sample size and associated variation in 
estimates is reflected in the reported 95 percent confidence interval. 
The alternative is to use the same estimate independent of sample size, 
which would be contrary to intuition and the statistical evidence.
    As noted in the DEA, such a relationship seems plausible given that 
larger projects are likely to have greater impacts on fisheries and 
require greater expenditures to remedy these impacts. The hydroelectric 
power-related sections of the DEA, including the FERC section, were 
reviewed by a technical advisor on hydroelectric power economics, Dr. 
Lon Peters of Northwest Economic Research, Inc. Dr. Peters provided 
feedback on the analytical methodology and the validity of the results. 
This feedback was then incorporated into the DEA, as appropriate.
    117. Comment: One commenter felt that the analysis provided no 
specific estimates for costs related to a bull trout consultation on 
FERC relicensing of Lucky Peak Dam on the Boise River.
    Our Response: Cost estimates for the Lucky Peak facility are 
included in the DEA. The FERC-licensed Lucky Peak hydroelectric plant 
is located on the Boise River just upstream of the city of Boise, ID, 
in the proposed Southwest Idaho River Basins Unit. Although not 
specifically named, Lucky Peak is one of the 24 ``Large Hydro'' 
facilities for which total cost estimates are provided in Exhibit 4.18 
in the DEA. Although not detailed in the report, the estimated section 
7 bull trout-related costs for the Lucky Peak hydroelectric plant range 
from approximately $15,000 to $22,000 per year.
    118. Comment: One commenter stated that irrigation impacts within 
the Salmon River Basin Unit related to USFS consultations would be 
minimal due to the legal structure of water rights within the basin.
    Our Response: The potential for USFS irrigation consultations and 
associated changes in irrigation water use in the Salmon River Basin is 
discussed in the DEA. The Upper Salmon River is described in the DEA as 
the primary example of an area where there is potential for future 
irrigation-related consultations with the USFS. The DEA uses a range of 
zero to five consultations over the next 10 years (for the entire 
proposed designation) with an average annual reduction in irrigation 
withdrawals of 2,656 acre feet per consultation.
    119. Comment: One commenter stated that the cost of developing HCPs 
had wrongly been designated a baseline cost and not included in the 
estimated costs presented in the DEA. Other commenters felt more 
discussion of the time and money needed to develop HCPs was needed in 
the report. One commenter alerted the Service to an HCP currently under 
development in Montana, and provided cost estimates for its 
development.
    Our Response: The costs associated with the development of HCPs are 
not considered a baseline cost in the DEA. New information on 
individual HCP development has been provided through public comment, 
and the estimated costs of developing these HCPs are included in the 
FEA.
    120. Comment: Two commenters felt that estimated impacts to grazing 
leases had been underestimated in the DEA. One disputed the estimated 
number of future annual grazing consultations, and another felt that 
impacts to grazing on private lands had been understated. Others felt 
that the DEA underestimated future section 7 costs related to 
residential home building activities,

[[Page 60015]]

agricultural water users, impacts to motorized recreation on Federal 
lands within the designation.
    Our Response: A number of Federal grazing leases are often covered 
by a single consultation. Approximately 4 years of consultation history 
for the bull trout suggest that over the next 10 years, three bull 
trout consultations with BLM and four with USFS involving grazing 
activities can be expected. While reductions in grazing stocking levels 
on Federal leases have the potential to impact associated private land 
values, changes in stocking levels as reflected in the bull trout 
consultation record have been few and minor. Estimated costs per 
grazing consultation are based on a review of the suggested project 
modifications in past bull trout section 7 consultations, and on 
information obtained from BLM and USFS representatives on the 
likelihood that future consultations will be similar in scope and cost.
    The analysis of potential impacts to residential development is 
provided in section 3.4 of the DEA. Our conclusions are based on 
discussions with, among others, the National Association of Home 
Builders and the Home Builders Association of Metropolitan Portland, 
and supported by the consultation record.
    Commenters noted that impacts to agricultural water users were 
likely, due to costs associated with protection of bull trout being 
passed on by the BOR to individual irrigators or water associations 
receiving water from BOR projects. The DEA had incorrectly stated that 
these costs would be born by the Federal government through the BOR. 
The FEA provides additional language within the section 4.2 discussion 
of BOR-related impacts to reflect this change. Additional discussion of 
impacts to irrigators is also included in section 4.3. These changes do 
not represent a change in the magnitude of estimated annual impacts, 
but rather in the incidence of the impacts (what groups bear the 
financial burden of the costs).
    Through analysis of past formal consultations involving the bull 
trout, no significant past impacts to motorized recreation were 
identified. Conversations with USFS and BLM personnel did not reveal 
that conflicts between motorized recreation on Federal lands and 
protection of bull trout would be a source of significant future costs. 
For this reason, no specific estimates of costs associated with this 
activity were provided.
    121. Comment: Many commenters stated the DEA failed to estimate 
project modification costs associated with informal consultations on 
bull trout, and costs often arise from an informal negotiation between 
the Service and the applicant or action agency on the scope or design 
of a project in order to avoid formal consultation on the action. They 
noted that although no specific project modifications are laid out 
within informal consultations, modifications and associated costs occur 
and should be accounted for.
    Our Response: The DEA does not provide estimates of project 
modification costs for informal consultations. However, administrative 
costs associated with informal consultations (estimated at $6.9 million 
annually) are included in the DEA. It is possible that these 
administrative costs do not represent a significant share of the 
informal consultation-related costs, however, we have no basis for 
using any other cost basis. The DEA approach on informal consultations 
was endorsed by our peer reviewer Dr. Joel Hamilton, who commented that 
``the draft report does a good job of discussing the issue of informal 
consultations.'' The largest share of costs corresponding to the 
proposed critical habitat designation is related to project 
modifications associated with activities that enter formal consultation 
(e.g., dam-related consultations). The focus of the DEA on those 
activities that enter formal consultation is not likely to result in a 
different ranking of units by relative cost than would occur with a 
more detailed analysis which includes informal consultations.
    122. Comment: A commenter stated that the analysis of Federal 
Highway Administration (FHA) road and bridge costs underestimated costs 
for Idaho Department of Transportation (DOT), and the method of relying 
on information from Montana DOT was not applicable to Idaho. The 
commenter also noted that the Idaho DOT undergoes many ``no effect'' 
determinations for projects, and the costs of these actions are not 
considered.
    Our Response: The basis for predicting the number of annual future 
formal consultations within the designation is a review of the formal 
consultation record for the period from listing in 1998 to November 
2002. The sample of formal consultations selected, while not from all 
regions within the designation, represent a cross-section of settings 
common to FHA projects within the designation. We believe this sample 
represents a realistic picture of typical consultation-related costs 
likely to be incurred throughout the designation. Regarding the issue 
of ``no effect'' determinations for projects that may or may not 
include bull trout concerns, cost estimates provided for informal 
consultations include the administrative cost of consulting incurred 
through these ``no effect'' analyses, and the associated letters of 
concurrence from the Service.
    123. Comment: Many commenters stated that the DEA analysis was too 
narrow in that it failed to recognize all of the indirect effects 
associated with bull trout consultations. Indirect impacts or costs 
include impacts to downstream water users, river transportation, 
downstream power producers, other species, costs to the Federal 
government of settling ``takings'' cases, and costs associated with 
conducting profitability analyses on mines involved in section 7 
consultations.
    Our Response: We agree that there are indirect impacts associated 
with bull trout consultations. However, the most significant of these, 
impacts to downstream power producers, have been quantified, and the 
other indirect impacts are likely to not be significant.
    Impacts on downstream power producers are included in the section 4 
estimates of costs associated with shaping salmon flows at Libby and 
Hungry Horse Dams to benefit bull trout as well as changes in Albeni 
Falls operations to benefit kokanee, and indirectly bull trout. 
Regarding impacts to downstream river transportation, the water volume 
impacts associated with bull trout protection are extremely small in 
the context of total stream volume on navigable waters. In the case of 
shaping flows from Libby and Hungry Horse Dams, the possible navigation 
impacts are further minimized by the releases running through large 
storage reservoirs (Grand Coulee Dam) before reaching the navigable 
portion of the river used by most commercial transportation. 
Furthermore, given the preponderance of Federal land in the 
designation, and the general location of proposed critical habitat, it 
is not foreseeable that significant costs associated with new State and 
local regulations, project time delays, or stigma will result from the 
designation.
    124. Comment: One commenter noted that the DEA relied on current 
Service policy to favor negotiation rather than irrigation restrictions 
in cases of impacts to bull trout. The Service could change this 
direction at any time and render the estimates of losses to irrigators 
presented in the DEA invalid.
    Our Response: The commenter is correct in noting that responses by 
the Service to threats to the bull trout or its habitat could possibly 
change from one of ``dialogue and negotiation'' and use of

[[Page 60016]]

``prosecutorial agreements'' to reduce illegal take to more direct 
action, which could involve reducing irrigation withdrawals in some 
cases. It was in recognition of this potential change that the 
estimated costs associated with future limitations of withdrawals is 
presented as a range, from zero to $1.6 million per year (based on five 
cases of limited irrigation withdrawals). The potential for these types 
of irrigation reductions is also constrained by the location of many, 
but not all, diversions. Many diversions are located on mainstem 
rivers, and the location of these diversions and their operation often 
present no conflict with protecting bull trout. This is because the 
bull trout only use the mainstem rivers to over-winter, while 
irrigation diversions and the potential for dewatering mainly occur in 
the summer and fall. The FEA clarifies the potential conflicts between 
bull trout protection and irrigation withdrawals.
    125. Comment: A number of commenters stated the DEA incorrectly 
assumed that irrigators within the designation could purchase 
replacement water for their crops or livestock if they were to lose 
diversion rights to instream flow requirements.
    Our Response: Project modification costs related to reductions in 
irrigation withdrawals are discussed for the BOR nexus and USFS nexus 
in the DEA. The value of foregone water use for BOR is based on 
marginal prices in the irrigation water market that has developed in 
the Yakima basin. The value for water for the USFS nexus is based on 
the high end of water lease purchases made by the Washington Department 
of Ecology. While these values are based, in part, on purchases, they 
are reflective of the opportunity cost of foregone water use (e.g., the 
value of crop losses) and are consistent with other approaches to 
valuing water, such as a production function or farm budget approach. 
Accordingly, their use in the DEA is consistent with the case where the 
irrigator loses the use of the usual source of water and is unable to 
purchase water elsewhere (the irrigation-related increment to 
production is lost). The agriculture irrigation-related sections of the 
DEA were reviewed by a technical advisor on agriculture and water 
resource economics, Dr. Joel Hamilton, Emeritus Professor of 
Agricultural Economics and Statistics at the University of Idaho. Dr. 
Hamilton reviewed the analytical methodology and the validity of the 
results, and opined that the value of $40/ac-ft for BOR water was 
appropriate and that the value of $127/ac-ft for USFS water likely 
overestimates the USFS-related section 7 impacts.
    126. Comment: Several commenters stated that more contacts with 
private individuals and small businesses should have been included in 
the analysis.
    Our Response: A wide variety of data sources are utilized in the 
DEA. The data sources relied upon are detailed in footnotes throughout 
the report, and discussed in section 1.4. Wherever possible, 
information provided by informed parties was confirmed by published 
data sources. Given the large geographic scope of the designation and 
analysis, however, extensive contacts with individual small businesses 
and private parties throughout the designation were not possible. The 
FEA is based on the best available information, which includes 
discussions with informed parties and stakeholders, as well as 
published data sources. The DEA was reviewed by three independent 
technical advisors: Dr. Joel Hamilton, Emeritus Professor of 
Agricultural Economics and Statistics, University of Idaho (agriculture 
economics); Dr. Lon Peters, president of Northwest Economic Research, 
Inc., a Portland-based firm that provides economic consulting services 
to electric utilities (hydroelectric power economics); and Dr. Roger 
Sedjo, senior fellow and the director of Resources for the Future's 
forest economics and policy program (timber economics). Their feedback 
was incorporated into the FEA, as appropriate.
    127. Comment: A number of commenters noted that many costs 
associated with modifications to BOR dams and reservoirs are passed on 
to irrigators receiving water from the impoundments, and the DEA 
suggested that these costs were borne entirely by the BOR.
    Our Response: The DEA incorrectly assumed all section 7 bull trout 
costs associated with BOR impoundments would be borne by the agency. In 
fact, in many cases, these costs are passed on to the irrigators 
benefiting from the projects. This fact has been included in the 
discussion of the costs associated with BOR facilities in the FEA, 
along with new information on costs associated with bull trout project 
modifications at BOR facilities throughout the proposed critical 
habitat designation.
    128. Comment: Two commenters suggested the need to consider costs 
associated with National Pollutant Discharge Elimination System 
wastewater discharge permits. Additionally, significant costs in the 
closure of the Hecla Grouse Creek Mine could result from EPA 
consultation on Idaho Statewide water quality standards.
    Our Response: Ongoing costs related to consultation at the Hecla 
Grouse Creek mine within the Coeur d'Alene Unit and the Thompson Creek 
Mine within the Salmon River Unit have been incorporated into the FEA 
discussion of mining impacts. Certain general annual cost estimates 
associated with these operations have been incorporated (an estimated 
$62,000 per year for each of the two mines). There is much uncertainty 
regarding potential costs associated with Service and National Oceanic 
and Atmospheric Administration (NOAA-Fisheries) consultation with EPA 
on Statewide Idaho water quality standards. There is no currently 
available information indicating that this consultation will conclude 
with new or interim standards that will significantly impact the final 
reclamation costs of the Hecla Grouse Creek mine. To be included in the 
DEA, costs have been reasonably foreseeable within the 10-year time 
frame of the analysis.
    129. Comment: Several commenters stated that estimated costs to 
recreation were underestimated in the DEA, such as the loss of 
recreational fishing opportunity associated with any removal of 
existing brook trout populations from areas of bull trout critical 
habitat.
    Our Response: We do not believe these costs are understated as 
offsetting improvements to other fisheries have resulted from fisheries 
management-related actions. Such actions are among the specific 
activities consulted on by a number of agencies. Opportunity cost 
estimates for formal consultations are described in section 4.
    130. Comment: Several commenters stated the DEA had not 
sufficiently estimated or had underestimated impacts to small 
businesses, private landowners, developers, or State and local 
entities. The small business analysis contained within the DEA did not 
fully address impacts to small businesses and small communities
    Our Response: The small business analysis is provided in section 
4.3 where impacts to agricultural producers, hydroelectric utilities, 
and miners are identified and quantified. The general focus of the 
comments was on the failure of the DEA to quantify the economic impacts 
on a particular subunit, community, local economy or local economic 
sector. None of the specific entities identified are ones for which 
there is evidence of substantial or clearly defined impacts from the 
proposed designation over and above the impacts already identified and

[[Page 60017]]

quantified in the referenced sections of the DEA.
    131. Comment: Several commenters stated that the use of a 10-year 
time frame for consideration of most impacts estimated in the DEA was 
too short. Alternative time frames from 20 to 50 years were suggested.
    Our Response: To produce credible results, the economic analysis 
must consider economic impacts that are reasonably foreseeable. Based 
on available data, the 10-year time frame used in the DEA for the 
majority of activities was most fitting for this analysis. In cases 
where more certainty exists as to future consultations, a longer 50-
year time frame was employed. Given the information available from 
action agencies on likely levels of future projects, we believe the 10-
year time frame to be most appropriate for all non-FERC-related 
consultation activity.
    132. Comment: A large number of commenters stated that the overall 
estimates presented in the DEA were too low. Alternatively, two 
comments were received suggesting that the estimates were too high.
    Our Response: While different commenters felt that the estimates in 
the DEA were either too high or too low, we concur with the judgments 
of our peer reviewers that the estimates are high. The DEA was reviewed 
by three independent technical advisors, and were each asked to read 
sections of the draft report, and provide feedback on the analytical 
methodology and the validity of the results. The peer reviewers found 
the approaches used to analyze impacts generally appropriate, and in 
the case of USFS-related irrigation and timber impacts, the analytical 
methodology likely overestimates section 7 impacts.
    133. Comment: Multiple commenters stated that the methodology used 
to account for impacts to unoccupied habitat in the DEA underestimated 
impacts, specifically in units with a significantly higher percentage 
of unoccupied habitat than the average for the entire designation.
    Our Response: Unoccupied habitat has been removed from the final 
designation. We disagree with the comment as the procedures used to 
estimate costs relevant to unoccupied habitat are theoretically and 
computationally sound. The methodology used in the DEA to inflate 
estimated consultation and project modification costs predicted for 
occupied bull trout critical habitat is presented in two places within 
the body of the report, and the estimated annual cost for each unit is 
adjusted for the respective percent of unoccupied habitat for the unit. 
For example, the Hells Canyon Complex Unit is estimated to have total 
annual consultation-related costs of $1.9 million to $2.3 million. Of 
this amount nearly half ($0.9 million to $1.1 million) is attributable 
to unoccupied habitat. Across units, the percent of unoccupied habitat 
ranges from zero to 72 percent.
    The computation in the DEA related to unoccupied habitat is based 
on the assumption that the future consultation rate in unoccupied 
habitat will occur at the same rate as observed for occupied habitat in 
the past. If anything, this approach is likely to overstate future 
consultations in unoccupied habitat for three reasons: (1) The DEA 
measures coextensive costs, and the designation of critical habitat in 
currently unoccupied habitat is unlikely to increase consultations in 
this type of habitat related to listing; (2) the past consultation 
record actually includes some consultations in unoccupied habitat, yet 
these are all allocated to occupied habitat for purposes of computing a 
consultation rate (which leads to an overstatement of the actual rate 
of past consultation on occupied habitat); and (3) unoccupied habitat 
in the proposed designation is almost entirely ``unknown occupancy.'' 
Some share of these areas may have no bull trout present now, or in the 
future, which will limit the impact and rate of consultations in these 
areas relative to occupied habitat.
    134. Comment: Several commenters noted that estimates for a number 
of activities presented a wide range of costs which limits the 
usefulness of the results of the analysis.
    Our Response: Three specific activities (USFS timber harvest, 
irrigation diversions, and FERC hydroelectric relicensing) have a large 
range in the estimated project modification costs. The source of this 
variation is the real uncertainty which is associated with future 
locations and costs of projects involved in these activities.
    135. Comment: Several commenters questioned the estimates of 
impacts to placer, lode, and suction dredge mining presented in the 
DEA, as well as the validity of assumptions use, in the John Day River 
Basin and Hells Canyon Complex Units.
    Our Response: The DEA estimates that approximately 100 formal 
consultations on placer operations in these drainages will occur during 
the 10-year analysis period (five annually, per drainage). This 
estimate is consistent with authorization of existing mines in the 
drainages as their typical 10-year permit expires. In both the North 
Fork John Day and the Powder River Drainages, recent BOs for ongoing 
operations covering a large number of mines suggests that there is no 
significant backlog of formal mining consultations in these areas. The 
DEA estimated mining-related project modification costs in eastern 
Oregon associated with specific terms and conditions from BOs.
    Additional information received through the public comment period 
shows the DEA was in error in attributing in-stream work window 
limitations to bull trout consultations. The in-stream periods 
referenced in the terms and conditions of the mining BOs are actually 
ODFW regulations that protect fish and wildlife resources. The 
reference to them in bull trout BOs is simply to further endorse 
compliance with these windows. Costs estimated with these instream 
windows have been removed in the FEA to reflect the nature of the 
baseline for these regulations. Costs associated with constraints on 
stream crossings are still included in the FEA, and these costs are 
likely to range from zero to several thousand dollars per year. An 
estimate of $500 per year per operation is used in the analysis.
    136. Comment: One comment letter asked why the DEA contained no 
analysis of potential costs associated with the Post Falls Dam.
    Our Response: The Post Falls Dam, owned by Avista Corporation, is 
located approximately 9.0 mi (14.5 km) below Lake Coeur d'Alene. The 
hydroelectric plant is not located on water currently proposed as bull 
trout critical habitat, nor does its operation directly affect 
downstream critical habitat.
    137. Comment: Several commenters wanted to know: (1) If BPA agrees 
with the estimates of Columbia River hydroelectric generation impacts 
presented in the DEA; (2) if the costs associated with shaping salmon 
flows out of Libby and Hungry Horse Dams to benefit bull trout was 
included in the total cost estimates presented in the DEA; and (3) how 
were the costs associated with FERC relicensing derived?
    Our Response: The estimated Columbia River hydroelectric generation 
impacts reported in the DEA were provided by BPA. Costs associated with 
shaping salmon flows are included in total bull trout-related costs as 
$2.0 to $4.0 million per year (based on BPA references at footnote 
124). These costs are not section 7 bull trout-related costs as BPA 
includes these costs in its accounting for expenditures authorized by 
the Northwest Power Act. Costs for FERC relicensing were derived by

[[Page 60018]]

developing case studies of all completed hydro relicensing 
consultations (as well as others that are either near completion or 
provide additional information), and using the average section 7 bull 
trout-related costs from these case studies as an estimate for future 
consultations. Future consultation timing and frequency are based on 
the FERC relicensing schedule.
    138. Comment: One commenter felt that the use of profitability in 
assessing impacts to placer, lode, and suction dredge mining was 
incorrect, and should be based on spending by miners in local 
communities.
    Our Response: The general lack of data on production and expenses 
for small scale placer or lode operations in the region make estimation 
of profitability from these mines difficult. In an industry where 
operators may not report revenues or expenses in an organized or 
consistent manner, we believe the procedure used to estimate impacts in 
the DEA provides the most direct estimate of lost value to the miners.
    139. Comment: Several commenters stated that the DEA downplayed the 
role of traditional resource-based jobs in small rural communities, and 
the loss of these jobs is economically and socially difficult for rural 
communities.
    Our Response: The commenters are correct in pointing out that 
shifts in economic base can be difficult for some rural areas, and 
economic change can negatively affect small rural areas. Within the 
Interior Columbia River Basin, while some areas within the region have 
seen tremendous economic growth in recent years, the economic output of 
other more rural counties has been stagnant or shrinking. Rural 
counties frequently have an even higher dependence on agricultural 
production than the regional or even State-level statistics suggest.
    140. Comment: Many commenters faulted the DEA for only performing a 
regional economic impact analysis for impacts in the Yakima drainage.
    Our Response: After reviewing these comments, we conclude that our 
level of effort on regional economic modeling was appropriate. The DEA 
presented analyses of impacts associated with critical habitat 
designation for the bull trout using two different accounting 
frameworks, which included an economic efficiency framework and a 
regional economic impact framework. A commonly used method of 
estimating regional economic impacts is I-O modeling. The DEA relied on 
published I-O model results in its analysis of impacts to the Yakima 
Basin from reductions in available agricultural water. I-O modeling is 
only appropriate where anticipated economic impacts are substantial and 
clearly defined as to the local area of impact. While many of the 
estimated impacts associated with critical habitat designation 
contained in the report (e.g., timber, mining, agriculture water) are 
substantial when considered for the entire designation, the potential 
locations of these estimated impacts are extremely uncertain. Without 
an acceptable level of certainty as to where impacts might occur within 
the designation, definition of the relevant area of economic analysis 
for the I-O model is impossible. It would be possible to model all 
estimated impacts in the context of the economy of the entire 
designation. However, the results of this model would show trivial 
impacts in comparison to the large and growing economy of much of this 
four-state region. The DEA presented regional economic impact estimates 
for the one area (Yakima Basin) where predicted impacts were reasonably 
foreseeable and substantial.
    141. Comment: Several alternative analyses of potential losses to 
local area economies were presented by commenters for the Klamath River 
Basin Unit, in Baker County, OR, and the Deschutes River Basin Unit. 
These analyses provided detailed impact information at the subunit 
level, and, in each case, are driven by an assumed level of change in 
some base sector of the local economy.
    Our Response: The referenced comments provide detailed and 
analytically appropriate analyses of economic impacts. However, the 
first step in these analyses is missing in that evidence consistent 
with observable data is not presented for substantial and clearly 
defined changes to the base economic sectors that derive from the 
proposed designation. Specifically, the assumed reductions in economic 
output based on irrigated agriculture (for example, ranging from 0 to 
90 percent in the Deschutes River Basin and 25 to 60 percent in Baker 
County) are not supported by the historical record or expectations 
regarding the outcome of future actions to protect the bull trout. We 
conclude that the level of detail and scope in the DEA regarding local 
economic impacts is appropriate.
    A detailed regional economic modeling effort may be appropriate 
when economic impacts of the proposed designation are substantial and 
clearly defined in the analysis. The estimated impacts presented in the 
DEA for the Deschutes River and Klamath River basin units and Baker 
County area are consistent with the pattern of bull trout consultation 
impacts in these areas as adjusted for the extent of unoccupied habitat 
within the units. The local area impact analyses presented by the 
commenters provided detailed information on the socioeconomic structure 
of these local areas. The analyses were theoretically appropriate and 
well presented. In our opinion, however, the estimated impacts (driven 
by assumed exogenous shocks to local economies) are not consistent with 
the observable impacts of several years of formal consultation activity 
on the species. For this primary reason, the methodology and estimated 
results presented in the DEA were retained in the FEA.
    142. Comment: Several commenters asked why a number of additional 
formal bull trout consultations were not cited in the DEA.
    Our Response: A census of formal bull trout section 7 
consultations, from the listing of the species in 1998 to the proposed 
designation of critical habitat in November 2002, was collected and 
analyzed for the DEA. Formal consultations on the species continue, and 
some of the formal consultations that commenters noted were missing 
from the DEA occurred after the end date for the census of 
consultations performed for the economic analysis (November 1, 2002). 
The analysis of costs associated with section 7 consultation on the 
bull trout relied on a broad sampling (and for some activities a 
census) of formal consultations. In cases where significant 
consultation activity (not represented by the consultation record 
examined) occurred after November 2002, these new consultations were 
considered in the final analysis. In other cases, where new 
consultations represented only a continuation of the frequency of past 
consultations for an agency or activity, these consultations were 
estimated to have no significant impact on the estimated impacts in the 
DEA.
    143. Comment: Several commenters questioned the appropriateness of 
the water values used in the analysis. Some thought the values used 
were both too high and others thought they were too low.
    Our Response: We disagree with the view that water values used in 
the DEA are too low. It is possible that the estimates used to value 
irrigation water withdrawals with a USFS nexus are high. Two different 
estimates of the value of lost agricultural water were utilized in the 
DEA. In the discussion of potential impacts to agricultural water users 
within the Yakima Basin, the DEA cites an average marginal value of $40 
per acre foot for water diverted from

[[Page 60019]]

agricultural production to be used in instream flow protection. This 
value, from a report by the Montgomery Water Group (footnote 164), 
represents the estimated marginal value per acre foot to agricultural 
production within the basin for a reduction of 48,000 acre feet.
    While it is acknowledged that marginal water value to some 
producers of higher value crops may exceed the average $40/af value 
used, other producers may have a marginal value less than the $40. The 
Center for Watershed and Community Health, Portland State University 
report cites 22 recent water leases for instream flows in Oregon that 
averaged $23/af. The report also cited seven water leases or purchases 
in Washington ranging from $27 to $79/af. The $40 value used in the DEA 
is not based on observed water transfers within the basin, but on an 
analysis of the marginal productivity of water within the Yakima Basin. 
A second value used in the analysis of losses potentially associated 
with reductions in agricultural water diversions on USFS lands was 
$127/af. The BOR suggested a value in the range of $50 to $75/af. In 
the case of USFS diversions, the arguably high $127/af was used in 
recognition of the large degree of uncertainty as to where and when 
such reductions might occur, and what types of land uses would be 
affected. The $127/af is based on actual observed sales of water rights 
reported by the State of Washington Department of Ecology. In summary, 
the $40/af value was used for the Yakima Basin analysis because it was 
from a current comprehensive study of water use and values within that 
basin, and as such, represented the best information available for that 
region. For valuing water in USFS diversions, the $127/af was used 
because of uncertainty about the location of impacts, and a lack of 
site specific water values for all possible alternative impact areas.
    144. Comment: Numerous commenters were concerned about the deletion 
of a discussion of potential economic benefits associated with bull 
trout critical habitat from the DEA prior to public release of that 
document.
    Our Response: Our Division of Economics removed the 59-page 
benefits analysis from the DEA because of concerns over the methods 
used. These methods are known as contingent valuation and benefits 
transfer.
    A contingent valuation involves asking someone how much they would 
pay to continue a specific activity that is threatened by pollution or 
other factors. For example, one might ask an angler how much he or she 
would spend to continue fishing for bull trout in clean rivers. Some 
economists doubt the accuracy of such analyses because of their 
hypothetical nature and because respondents do not have to follow up 
their answers with actual payments. Therefore, they may tend to over-
value the benefit.
    The DEA's discussion of the value of bull trout recreational 
fishing is a benefits-transfer analysis. Benefits-transfer analyses use 
research conducted for one species or purpose to extrapolate results 
for another species or purpose. Although benefit-transfer analysis can 
provide a quick, low-cost approach for obtaining desired monetary 
values, the methods are often associated with uncertainties and 
potential biases of unknown magnitude and should not be used without 
explicit justification.
    We must remember what these analyses are used for helping the 
Secretary to decide whether to exclude areas and whether the exclusions 
outweigh the conservation benefits of inclusion. So, we are looking at 
the burden on the public of the regulation, and whether any areas have 
a disproportionate burden. We balance that against the benefits of 
including that area--including the benefits of the area to the species 
and the benefits of the species' existence and recovery. We do this in 
the 4(b)(2) discussion in our rules. We believe that monetizing 
trivializes benefits because there are no widely accepted ways for 
placing a dollar value on a biological benefit.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the bull trout are addressed below.
Oregon
    State Comment: In Unit 1, Upper Klamath Lake CHSU, what was the 
rationale for designating critical habitat on West Canal in the Upper 
Klamath Subunit?
    Our Response: The landscape along the west side of Agency Lake has 
been heavily modified. Sevenmile and West canals intercept flows from 
Sevenmile Creek and Canal, Fourmile Creek and Slough, Crane and Crystal 
Creeks, and Cherry, Rock, and Threemile Creeks, and provides 
connectivity between these streams and Agency Lake. Since West Canal is 
now the only aquatic connection between isolated populations of bull 
trout in these headwater streams and winter foraging habitat in Agency 
Lake, it is included in the designation.
    State Comment: In Unit 1, Upper Klamath Lake CHSU, there is no 
Heavenly Twin Lake in this unit. There is a Big Heavenly and a Little 
Heavenly Twin Lake. There may be a hydrologic connection at some time 
during the year, most likely during snowmelt.
    Our Response: Critical habitat maps were compiled from various 
sources. We relied predominantly on StreamNet as the largest and most 
readily available database. USFS databases were also used where stream 
data was not available in StreamNet. Additionally, many maps (including 
those generated by the State of Oregon (Klamath-Lake Forest Protection 
District, Oregon Department of Forestry, 1995) and the USFS (1994) do 
not differentiate between Big and Little Heavenly Twin Lake, but rather 
refer to them collectively as Heavenly Twin Lakes. Based on additional 
review, it appears that stream flows in Rock Creek becomes seasonal 
above the 5,400 ft (1,645 m) contour. Therefore, on reconsideration of 
available data, we concur that the connection between the Heavenly Twin 
Lakes and Rock Creek is not suitable for inclusion in critical habitat.
Idaho
    State Comment: In the Coeur d'Alene Lake CHSU, bull trout in the 
St. Joe system primarily use the upper basin (Mosquito Creek) for 
spawning and rearing. Achieving the stated recovery target for the St. 
Joe (800 adults) will likely require more than eight streams, yet a 
number of tributaries to the St. Joe (downstream from the North Fork) 
are not likely to ever support spawning and rearing. It is not clear 
why Eagle Creek is proposed while other nearby streams with similar 
characteristics are not.
    Our Response: Eagle Creek contains PCEs and was proposed for 
critical habitat because it has recent and historic observations of 
bull trout. Portions of Eagle Creek have been excluded under provisions 
of Section 4(b)(2) associated with management conducted in accordance 
with PACFISH/INFISH. The primary reason why Skookum Creek (and other 
nearby streams that are tributaries to the St. Joe with similar 
characteristics) were not proposed as critical habitat is because we 
were not aware of bull trout being observed there either presently or 
historically (Fields 1935; Service 2002). With at least 16 other 
tributary streams or stream reaches known to have reproduction 
occurring in recent years, proposing Skookum Creek and other

[[Page 60020]]

habitats was not considered essential to the conservation of the 
species.
Washington
    State Comment: WDFW electrofished several locations of the Little 
Tucannon in 2002 to try to find bull trout after the technical review 
team indicated possible use, but did not locate the species. Please 
check your reference to ensure this statement is correct, as WDFW has 
no knowledge of bull trout in the Little Tucannon River.
    Our Response: The USFS in litt. (2002) documented a single bull 
trout in the Little Tucannon River stream survey report near the end of 
reach II. This report concluded that the Little Tucannon River is in 
good to excellent condition overall and provides excellent fish habitat 
for both native and migrating fish species. The Little Tucannon River 
is also identified in the Draft Snake River Washington Recovery Unit 
Chapter as a priority stream. While reproduction is not known to occur 
presently in the Little Tucannon River watershed, it is important to 
the conservation of bull trout in the Tucannon River Core Area as it 
likely provides suitable habitat for rearing, cold water refugia, and 
foraging. The Little Tucannon River watershed may also provide habitat 
to expand the spawning distribution and abundance of bull trout in the 
core area. Portions of Little Tucannon River have been excluded under 
Section 4(b)(2) associated with management in accordance with PACFISH/
INFISH.
    State Comment: The South Fork of Asotin Creek was not included in 
the proposal. If George Creek and some of its tributaries are included 
as critical habitat based on possible use presently, or in the future, 
the South Fork should also be included. It has potential for at least 
bull trout foraging, if not spawning and rearing.
    Our Response: During the recovery planning process, the South Fork 
of Asotin Creek was described as not having bull trout as they were not 
observed during snorkeling surveys in 1993 (USFS, in litt. 1993). Also 
during the recovery planning process, the South Fork of Asotin Creek 
was not identified as a priority stream essential for the recovery of 
the species. Therefore, this stream is not considered to be critical 
habitat.
    State Comment: No bull trout have been documented in Hefflefinger 
and Wormell Creeks. They are small streams that do not appear to have 
suitable habitat for bull trout spawning or rearing, and may not be 
appropriate for listing as critical habitat.
    Our Response: We concur and we have removed these streams from the 
final critical habitat designation.
    State Comment: Charlie Creek is used by bull trout, but since much 
of the upper portion of the stream is dry, or nearly so, in the summer, 
we recommend terminating the upper extent at the east edge of section 
7, Range 43 East, Township 9 North.
    Our Response: Several miles of Charlie Creek have been excluded 
under provisions of Section 4(b)(2) associated with management in 
accordance with PACFISH/INFISH. Even though the stream channel is dry 
or nearly dry during the summer, it provides important habitat during 
other times of the year, and during wet years when it maintains more 
flow. Also, because Charlie Creek is clearly essential to water supply 
during the summer as well as other seasons, protecting the channel 
morphology and watershed upstream of the spring is essential. For 
example, if an activity significantly increased bedload movement and 
fine sediment transport in the upper extent of the stream which is 
recommended for removal, the spring could be altered (filled or 
capped).
Montana
    State Comment: Dry Gulch, a tributary to Granite Creek in the Lake 
Pend Oreille watershed, and Copper Creek, a tributary to the Bull River 
watershed in the lower Clark Fork drainage, should be removed from 
critical habitat because they are intermittent streams that do not 
provide spawning or rearing habitat.
    Our Response: Dry Gulch was initially included due to the 
information provided in the Lake Pend Oreille Bull Trout Conservation 
Plan produced by the State of Idaho. Copper Creek initially was 
included due to the information provided in the Montana Bull Trout 
Scientific Group (MBTSG) status report produced by the State of 
Montana. Further information indicates the commenters are correct and 
the streams have been removed from the final rule.
    State Comment: In Montana, project benefits from three water 
storage projects, such as protection of instream flow and mitigation of 
warm downstream water temperatures, were not analyzed. The high 
potential costs of critical habitat designation that may affect release 
patterns should result in exclusion of these projects.
    Our Response: Habitat in Montana has been excluded under provisions 
of Section 4(b)(2) in support of cooperative partnerships with the 
State and recognition of their intent to carry out positive measures 
for Bull Trout consistent with their Bull Trout Management Plan 
developed in 2000.
    State Comment: In Montana, Sophie Lake and its tributary Phillips 
Creek should be omitted from the final rule based on the questionable 
population status of bull trout, inconsequential scope of this small 
and isolated core area to overall recovery, relatively hostile existing 
habitat, chronic dewatering, nonnative fish species competition, and 
the lack of a Federal nexus to promote habitat improvement.
    Our Response: Habitat in Montana has been excluded under provisions 
of Section 4(b)(2) in support of cooperative partnerships with the 
State and recognition of their intent to carry out positive measures 
for Bull Trout consistent with their Bull Trout Restoration Plan 
developed in 2000.

Summary of Changes From the Proposed Rule

    In development of this final designation of critical habitat for 
the Klamath River and Columbia River populations of bull trout, 
significant revisions to the proposed critical habitat designation were 
made based on review of public comments received on the proposed 
designation, the DEA, and further evaluation of existing protection on 
lands proposed as critical habitat. These revisions rely on legal 
authorities and requirements provided in the Act.
    In crafting the Act, Congress provided guidance for the exercise of 
discretion by the Secretary in making critical habitat decisions, which 
we have applied in this rulemaking. In section 3(5)(a) of the Act, 
critical habitat is defined as ``(i) the specific areas within the 
geographical area occupied by the species, at the time it is listed in 
accordance with the provisions of section 4 of this Act, on which are 
found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed in accordance with the provisions of section 4 of this Act, upon 
a determination by the Secretary that such areas are essential for the 
conservation of the species.'' Section 3(5)(C) of the Act further 
provides that ``Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire geographical 
area which can be occupied by the threatened or endangered species.'' 
These provisions of section 3 authorize the exercise of discretion in 
determining (1) whether special management considerations or

[[Page 60021]]

protections may be required; (2) whether unoccupied areas are essential 
for the conservation of the species; and (3) the extent to which the 
entire area which can be occupied by the species should be included in 
critical habitat. Finally, section 4(b)(2) of the Act allows the 
Secretary to exclude any area from critical habitat, after considering 
the economic impact and any other relevant impact, upon a determination 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species concerned.
    The Congressional record is clear that Congress contemplated 
occasions where the Secretary could exclude the entire designation. In 
addition, the discretion that Congress anticipated would be exercised 
in Section 4(b)(2) of the Act is extremely broad. ``* * * The 
consideration and weight given to any particular impact is completely 
within the Secretary's discretion * * *''
    Given that section 4(a)(3)(A) of the Act requires that critical 
habitat be designated concurrently with making a determination that a 
species is an endangered species or a threatened species, we are 
mindful of the Congressional intent with respect to listing as we 
designate critical habitat. For example, section 4(a)(1) of the Act (16 
U.S.C. 1533(a)(1), states that we must consider in listing 
determinations, among factors, ``the inadequacy of existing regulatory 
mechanisms'' (so-called ``Factor D''); and ``other natural or manmade 
factors affecting its continued existence'' (referred to as ``Factor 
E'').
    Section 4(b)(1)(A) requires us also to ``tak[e] into account those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect such 
species, whether by predator control, protection of habitat and food 
supply, or other conservation practices, within any area under its 
jurisdiction, or on the high seas.'' Read together, sections 4(a)(1) 
and 4(b)(1)(A), as reflected in our regulations at 50 CFR 424.11(f), 
require us to take into account any State or local laws, regulations, 
ordinances, programs, or other specific conservation measures that 
either positively or negatively affect a species' status (i.e., 
measures that create, exacerbate, reduce, or remove threats identified 
through the section 4(a)(1) analysis). The manner in which the section 
4(a)(1) factors are framed supports this conclusion. Factor (D) for 
example--``the inadequacy of existing regulatory mechanisms''--
indicates that overall we might find existing regulatory mechanisms 
adequate to justify a determination not to list a species. Factor (E) 
in section 4(a)(1) (any ``manmade factors affecting [the species'] 
continued existence'') requires us to consider the pertinent laws, 
regulations, programs, and other specific actions of any entity that 
either positively or negatively affect the species. Thus, the analysis 
outlined in section 4 of the Act requires us to consider the 
conservation efforts of not only State and foreign governments but also 
of Federal agencies, Tribal governments, businesses, organizations, or 
individuals that positively affect the species' status.
    The section 4 analysis for listing determinations is relevant to 
our exercise of discretion in critical habitat designations, although 
it must be stressed that analysis in no way limits the Secretary's 
discretion.

Summary of Revisions

    The following section discusses changes made from the proposed 
critical habitat rule:
    (1) Unoccupied lands were removed from the designation. Under the 
Act the Secretary of the Interior may only include unoccupied lands if 
she finds that those lands are essential to the conservation of the 
species. In the case of the bull trout, and based on the best 
scientific data available, it was not possible for the Secretary to 
make such a determination at this time.
    (2) The largest changes in area designated are those lands which do 
not meet the requirement of needing special management or protection 
and which are also excluded due to the exercise of the Secretary's 
Authority under section 4(b)(2) of the Act. Exempted under these 
provisions were:
    (A) Federal Columbia River Power System (FCRPS),
    (B) Northwest Forest Plan,
    (C) Lands included in the State of Washington's Forest Practices 
Rules and Regulations,
    (D) Lands covered by the Snake River Basin Adjudication, lands 
covered under the Montana Bull Trout Restoration Plan, the Willamette 
and Malheur River Basins, and stream reaches regulated under PACFISH/
INFISH,
    (E) All waters impounded behind dams (reservoirs and pools),
    (F) All stream segments less than 0.5 mi (0.8 km) in length that 
are under private landownership, and
    (G) Approved habitat conservation plans.
    (3) Lands that did not contain sufficient PCEs to support the 
species normal activities were removed. For example, the Clark Fork 
River between Missoula and Butte was proposed for designation. Upon 
further review, it was determined that this site is a superfund site 
subject to contamination by leaching from mine wastes. At some point 
the habitat may be useful to bull trout, but it is unlikely to be so 
today. Another example is the middle fork of the Boise River, also 
proposed for designation and also subject to leaching of mining wastes. 
Proposed critical habitat that did not contain sufficient PCEs to 
support the species was removed, as was critical habitat where the 
presence of PCEs was speculative. The Act does not provide for 
speculative or prospective use of habitat.
    (4) The proposed critical habitat designation included a number of 
reaches to increase connectivity between populations. We received 
multiple comments that some of the barrier removal proposed to 
accomplish the connectivity could be detrimental to bull trout 
populations by providing access to competitor species such as lake 
trout, brook trout and rainbow trout. We are removing those reaches 
pending a site by site determination as to which are appropriate for 
barrier removal. If necessary, additional critical habitat can be 
designated once those determinations are made.
    Public comments in general, and particularly technical comments 
from local, State, and Federal agencies and Native American Tribes, 
were very useful in focusing the proposal to those areas most essential 
to the conservation of the species. We held numerous public hearings 
and public meetings where we received specific technical comments that 
prompted further internal critical review of the proposal. The peer 
review process provided constructive criticism from fisheries 
scientists regarding our approach to developing the critical habitat 
proposal, as well as technical comments regarding specific proposed 
habitat areas. Through our working relationships with State and Federal 
agencies, we also received some new information after the proposal was 
issued, such as new records of bull trout occurrence, evidence of 
reproduction in some streams, or the lack of such positive survey 
results, as well as information on conservation actions underway within 
states.
    We made revisions to the stream miles, and lake and reservoir 
acreages based on information supplied by commenters, as well as 
information gained from field visits to some of the sites, for areas 
not essential to bull trout conservation; unoccupied habitat was 
removed from the rule as the Secretary was unable to make a 
determination that

[[Page 60022]]

these unoccupied areas were essential to the conservation of the 
species. We have modified PCEs (1), (5), (7) and (9) to provide greater 
clarity. Our intent was not to change the essence of individual 
elements, but only to further refine the description of those physical 
and biological features that are essential to the conservation of the 
species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species, and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' is defined by the Act as 
the use of all methods and procedures which are necessary to bring any 
endangered or a threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions authorized, funded, or carried 
out by a Federal agency. Section 7 requires consultation on Federal 
actions that are likely to result in the destruction or adverse 
modification of critical habitat.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known, and using 
the best scientific and commercial data available, habitat areas that 
are essential to the conservation of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271) 
and our U.S. Fish and Wildlife Service Information Quality Guidelines 
(2002) provide criteria, establish procedures, and provide guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. 
Information may be obtained from the listing document, a recovery plan, 
articles in peer-reviewed journals, conservation plans developed by 
States and Counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials, and expert opinion or 
personal knowledge. The various data that we collect are weighted based 
on their verifiability, for example, anecdotal evidence and opinion 
have less weight than results from published studies or long-term or 
ongoing monitoring.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to bull trout. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1), to 
the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, and the section 9 take prohibition, as determined on the 
basis of the best available information at the time of the action.

Methods

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to determine areas that are 
essential to the conservation of bull trout. In designating critical 
habitat, we reviewed the approaches to the conservation of the species 
undertaken by local, State, and Federal agencies; Tribal governments; 
and private individuals and organizations since the species was listed 
in 1998. We relied heavily on information developed by the bull trout 
Recovery Unit Teams, which were comprised of Federal, State, Tribal, 
and private biologists, as well as experts from other scientific 
disciplines such as hydrology and forestry, resource users, and other 
stakeholders with an interest in bull trout and the habitats they 
depend on for survival. We reviewed available information concerning 
bull trout habitat use and preferences, habitat conditions, threats, 
limiting factors, population demographics, and the known locations, 
distribution, and abundances of bull trout.
    During our evaluation of information, we also took into account the 
relatively low probability of detection of bull trout in traditional 
fish sampling and survey efforts, as well as the limited extent of such 
efforts across the range of bull trout. Because of their varied life 
history strategies, nocturnal habits, and low population densities in 
many areas, the detectability of bull trout in a given area is highly 
variable (Rieman and McIntyre 1993). Furthermore, much of the current 
information on bull trout presence is the product of informal surveys 
or sampling conducted for other species or other purposes. The primary 
limitations of informal surveys are that they provide no estimate of 
certainty (i.e., a measure of the probability of detection), and that 
they may be inadequate for determining parameters such as the densities 
and distribution of the population. The need for a statistically sound 
bull trout survey protocol has been addressed only recently through the 
development, by the American Fisheries Society, of a peer-reviewed 
protocol for determining presence/absence, and potential habitat 
suitability for juvenile and resident bull trout (Peterson et al. 
2002). Consequently, with some exceptions (e.g., areas of Montana where 
bull trout surveys have been consistently conducted for a decade or 
more), a lack of bull trout detections does not provide definitive 
evidence of their absence in a particular stream, lake, or river.
    We used information gathered during the bull trout recovery 
planning process, as supplemented by even more recent information 
developed by State agencies, Tribes, USFS, and other entities, in 
developing this final rule designating critical habitat. Data 
concerning habitat conditions or status of PCEs were used when 
available. To address areas where data gaps exist, we solicited expert 
opinions from knowledgeable fisheries biologists in the local area.
    Important considerations in selecting areas for critical habitat 
designation include factors specific to each river system, such as size 
(e.g., stream order), gradient, channel morphology, connectivity to 
other aquatic habitats, and habitat complexity and diversity, as

[[Page 60023]]

well as range-wide recovery considerations. This effort was assisted by 
the recovery strategy described in the draft Recovery Plan. We took 
into account that preferred habitat for bull trout ranges from small 
headwater streams used largely for spawning and rearing, to downstream, 
mainstem portions of river networks used for rearing, foraging, 
overwintering, and migration.
    Our methods included consideration of information regarding habitat 
essential to maintaining the migratory life history forms of bull 
trout, in light of the repeated emphasis about the importance of such 
habitat in the scientific literature (Rieman and McIntryre 1993; Hard 
1995; Healey and Prince 1995; Rieman et al. 1995; MBTSG 1998; Dunham 
and Rieman 1999; Nelson et al. 2002). Habitat for movement upstream and 
downstream is essential for all life history forms for spawning, 
foraging, growth, access to rearing and overwintering areas, or thermal 
refugia (e.g., spring-fed streams in late summer), avoidance of extreme 
environmental conditions, and other normal behavior. Successful 
migration requires biologically, physically, and chemically 
unobstructed routes for movement of individuals. Therefore, our method 
included considering information regarding habitat that is essential 
for movement into and out of larger rivers, because of the importance 
of such areas to the fluvial form of bull trout. We similarly 
identified habitat that is essential for movement between streams and 
lakes by adfluvial forms.
    Migratory corridors also are essential for movement between 
populations (Fraley and Shepard 1989; Rieman and McIntyre 1993, Rieman 
et al. 1995, Dunham and Rieman 1999). Thus, in addition to considering 
areas important for migration within populations, our method also 
included considering information regarding migration corridors 
necessary to allow for genetic exchange between local populations. 
Corridors that provide for such movements can support eventual 
recolonization of unoccupied areas or otherwise play a significant role 
in maintaining genetic diversity and metapopulation viability. See the 
proposed rule (November 29, 2002 (67 FR 71235) for details. Because 
these factors are important in identifying areas that are essential to 
the conservation of bull trout, our method included consideration of 
the various roles that migratory corridors have for bull trout.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base the designation on the best scientific 
data available, and to consider those physical and biological features 
(primary constituent elements (PCEs)) that are essential to the 
conservation of the species, and that may require special management 
considerations or protection. These include, but are not limited to: 
Space for individual and population growth, and for normal behavior; 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing (or development) of offspring; and habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.
    Although critical habitat is being designated across a wide area 
and involves 25 discrete units, the function of individual critical 
habitat units (and the core areas contained therein) appreciably 
contributes to the conservation value of all critical habitat from a 
genetic, demographic, and distributional perspective, as discussed 
below.
    Central to the function of individual critical habitat units is the 
maintenance of core areas which: (1) Contain bull trout populations 
with the demographic characteristics needed to ensure their persistence 
and contain the habitat needed to sustain those characteristics (Rieman 
and McIntyre 1993); (2) provide for persistence of strong local 
populations, in part, by providing habitat conditions that encourage 
movement of migratory fish (Rieman and McIntyre 1993; MBTSG 1998); (3) 
are large enough to incorporate genetic and phenotypic diversity, but 
small enough to ensure connectivity between populations (Rieman and 
McIntyre 1993; Hard 1995; Healey and Prince 1995; MBTSG 1998); and (4) 
are distributed throughout the historic range of the species to 
preserve both genetic and phenotypic adaptations (Rieman and McIntryre 
1993; Hard 1995; MBTSG 1998; Rieman and Allendorf 2001).
    Maintenance or establishment of functional PCEs throughout all core 
areas is essential to the conservation of the bull trout because:
    (1) Genetic diversity enhances long-term survival of a species by 
increasing the likelihood that the species is able to survive changing 
environmental conditions. If the overall genetic diversity distributed 
across the range of the bull trout is reduced by the loss of core areas 
containing multiple local populations, the ability of the species to 
survive changing conditions is likewise reduced, leading to a higher 
likelihood of extinction (Rieman and McIntyre 1993; Leary et al. 1993; 
Hard 1995; Spruell et al. 1999; Rieman and Allendorf 2001);
    (2) Maintaining multiple bull trout core areas distributed and 
interconnected throughout their current range will provide a mechanism 
for spreading the risk of extinction from stochastic (i.e., ``random'') 
events (Rieman and McIntyre 1993; Hard 1995; Healey and Prince 1995; 
Spruell et al. 1999; Rieman and Allendorf 2001);
    (3) Maintaining core areas with multiple local populations will 
address potential negative implications associated with low effective 
population levels (i.e., inbreeding depression and a potential decrease 
in viability or reproductive fitness of a population (Franklin 1980) 
and loss of genetic variation due to genetic drift) (Franklin 1980; 
Soule 1980; Lande 1988); and,
    (4) Core areas provide connectivity between areas of high quality 
habitat and contain important migration corridors for migratory bull 
trout; core areas contain habitat that facilitates movement between 
local populations or otherwise plays a significant role in maintaining 
metapopulation viability (i.e., by providing sources of immigrants to 
recolonize adjacent habitat patches following periodic extirpation 
events) (Rieman and McIntyre 1993; Rieman et al. 1995; Dunham and 
Rieman 1999) and maintaining the migratory life-history form. The 
importance of maintaining the migratory life-history form of the bull 
trout, as well as the presence of migratory runs of other salmonids 
that may provide a forage base for bull trout, is repeatedly emphasized 
in the scientific literature (Rieman and McIntyre 1993; Hard 1995; 
Healey and Prince 1995; Rieman et al. 1995; MBTSG 1998; Dunham and 
Rieman 1999; Nelson et al. 2002).
    All areas designated as critical habitat for bull trout are within 
the species' historic geographic range and contain enough of the PCEs 
identified as essential to its conservation in the area designated to 
enable the bull trout to carry out normal behavior. Much of what is 
known about the specific physical and biological requirements of bull 
trout are described in the proposed designation of critical habitat 
rule (November 29, 2002 (67 FR 71235)). PCEs include, but are not 
limited to: Space for individual and population growth, and for normal 
behavior; food,

[[Page 60024]]

water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, and 
rearing (or development) of offspring; and habitats that are protected 
from disturbance. The following are the PCEs for the bull trout:
    (1) Water temperatures ranging from 36 to 59 [deg]F (2 to 15 
[deg]C), with adequate thermal refugia available for temperatures at 
the upper end of this range. Specific temperatures within this range 
will vary depending on bull trout life history stage and form, 
geography, elevation, diurnal and seasonal variation, shade, such as 
that provided by riparian habitat, and local groundwater influence. 
Stream reaches that do not meet this temperature requirement are 
specifically excluded from designation;
    (2) Complex stream channels with features such as woody debris, 
side channels, pools, and undercut banks to provide a variety of 
depths, velocities, and instream structures;
    (3) Substrates of sufficient amount, size, and composition to 
ensure success of egg and embryo overwinter survival, fry emergence, 
and young-of-the-year and juvenile survival. This should include a 
minimal amount of fine substrate less than 0.25 inch (0.63 centimeter) 
in diameter.
    (4) A natural hydrograph, including peak, high, low, and base flows 
within historic ranges or, if regulated, currently operate under a 
biological opinion that addresses bull trout, or a hydrograph that 
demonstrates the ability to support bull trout populations by 
minimizing daily and day-to-day fluctuations and minimizing departures 
from the natural cycle of flow levels corresponding with seasonal 
variation: This rule finds that reservoirs currently operating under a 
biological opinion that addresses bull trout provides management for 
PCEs as currently operated;
    (5) Springs, seeps, groundwater sources, and subsurface water to 
contribute to water quality and quantity as a cold water source;
    (6) Migratory corridors with minimal physical, biological, or water 
quality impediments between spawning, rearing, overwintering, and 
foraging habitats, including intermittent or seasonal barriers induced 
by high water temperatures or low flows;
    (7) An abundant food base including terrestrial organisms of 
riparian origin, aquatic macroinvertebrates, and forage fish;
    (8) Permanent water of sufficient quantity and quality such that 
normal reproduction, growth, and survival are not inhibited.
    The bull trout critical habitat for the Klamath River and Columbia 
River populations are designed to incorporate what is essential for 
their conservation. An area need not include all nine of the PCEs to 
qualify for designation as critical habitat. However, enough of the 
PCEs must be present at the time of designation to allow use for normal 
activities by the fish, and the lack of any particular PCE cannot 
precluse use by the bull trout.

Criteria Used To Identify Critical Habitat

    The draft Recovery Plan identifies the specific recovery needs of 
the species and provides guidance for identifying areas that warrant 
critical habitat designation. As described below, this draft Recovery 
Plan was used as the principal basis for identifying this critical 
habitat designation. We re-evaluated the proposed designation based on 
public comment, peer review of the proposed rule and the draft Recovery 
Plan, the economic analysis of the proposed rule, and the public 
comments on that analysis, and other available information, to ensure 
that the designation accurately reflects habitat that is essential to 
the conservation of the species.
    The draft Recovery Plan provides important information and science 
that was used as the basis for developing the critical habitat 
designation for bull trout. It focuses primarily on the maintenance 
(and, where needed, expansion) of existing local populations by: (1) 
Protecting sufficient amounts of spawning and rearing habitat in upper 
watershed areas; (2) providing suitable habitat conditions in 
downstream rivers and lakes to provide foraging and overwintering 
habitat for fluvial and adfluvial fish; and (3) sustaining (and in some 
cases reestablishing) movement corridors to maintain migratory routes 
and the potential for gene flow between local populations by 
maintaining habitat conditions that allow for fish passage. However, it 
is important to note that the draft Recovery Plan, when completed, will 
not be a regulatory document. Many of the proposals and options for 
recovery are expansive in nature and anticipate voluntary participation 
by landowners and agencies. Accordingly, this rule will focus on those 
areas that are essential to the conservation of the species, using the 
common meaning of the term ``essential,'' which is indispensable.
    Critical habitat units are patterned after recovery units 
identified in the draft Recovery Plan for the Klamath River and 
Columbia River populations. Using the guidance from that plan, we 
identified habitat areas needed for the survival and recovery of bull 
trout. To be included as critical habitat, an area had to provide one 
or more of the following three functions: (1) Spawning, rearing, 
foraging, or overwintering habitat to support existing bull trout local 
populations; (2) movement corridors necessary for maintaining migratory 
life-history forms; and/or (3) suitable and historically occupied 
habitat that is essential for recovering existing local populations 
that have declined, or that is needed to reestablish local populations 
required for recovery.
    The critical habitat designation removed areas not known to be 
occupied. These areas have been deleted from the final designation 
because we do not have survey information to confirm that they were 
historically occupied by bull trout, and we were unable to confirm that 
they were essential for bull trout conservation. Historically, bull 
trout survey information was often accumulated incidental to surveys 
for other, more highly valued, species such as salmon and steelhead. 
Because of different life history attributes, bull trout are not as 
detectable as salmon and steelhead when utilizing a single common 
survey protocol. Additionally, during surveys, bull trout have 
historically been lumped into a general category such as ``other 
trout'' and not identified to species. These historical biases, 
combined with the fact that a survey protocol for juvenile bull trout 
and resident forms of bull trout was only developed and accredited in 
2002, has resulted in a relative dearth of verified occupancy 
information for bull trout across much of its range. A commonly 
recognized and accepted survey protocol for adult, migratory bull trout 
has not yet been developed.
    Restoration of reproducing bull trout populations to additional 
portions of their historical range would significantly reduce the 
likelihood of extinction due to natural or human-caused factors that 
might otherwise further reduce population size and distribution. Thus, 
an integral component of the draft Recovery Plan is the selective 
reestablishment of secure, self-sustaining populations in certain areas 
where the species has apparently, but not necessarily conclusively, 
been extirpated. In this regard, we also note that some habitat areas 
that would not be considered essential if they were geographically 
isolated are, in fact, essential to the conservation of the species 
when situated in locations where they facilitate movement between local 
populations, or otherwise play a significant role in maintaining

[[Page 60025]]

metapopulation viability (e.g., by providing sources of immigrants to 
recolonize adjacent habitat patches following periodic extirpation 
events) (Dunham and Rieman 1999). In addition, populations on the 
periphery of the species' range, or in atypical environments, are 
important for maintaining the genetic diversity of the species and 
could prove essential to the ability of the species to adapt to rapidly 
changing climatic and environmental conditions (Leary et al. 1993; Hard 
1995).
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.
    Critical habitat for bull trout was delineated using multiple 
sources including: The StreamNet GIS (Geographic Information System) 
database for Idaho, Oregon, Washington, and Montana; and State 
databases of bull trout distribution.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections.
    As we undertake the process of designating critical habitat for a 
species, we first evaluate lands defined by those physical and 
biological features essential to the conservation of the species for 
inclusion in the designation pursuant to section 3(5)(A) of the Act. 
Secondly, we then evaluate lands defined by those features to assess 
whether they may require special management considerations or 
protection. As discussed throughout in the proposed critical habitat 
rule for the Klamath and Columbia River bull trout populations (67 FR 
71236, November 29, 2002), in the draft Recovery Plan for the Klamath, 
Columbia, and St. Mary-Belly River bull trout populations, and in the 
various proposed and final listing rules for bull trout (62 FR 32268, 
June 13, 1997; 64 FR 17110, April 8, 1999;63 FR 31647, June 10, 1998; 
63 FR 31693, June 10, 1998; and 64 FR 58910, November 1, 1999), bull 
trout and its habitat are threatened by a multitude of factors. Threats 
to those features that define essential habitat (PCEs) are caused by 
negative changes in water quality, stream complexity, quality and 
quantity of stream substrate, stream hydrology, migratory corridors, 
food sources, and nonnative competitors and predators (Rieman and 
McIntyre 1996; MBTSG 1998). It is essential for the conservation of 
bull trout to protect those features that define the remaining 
essential habitat, through appropriate management, from irreversible 
threats and habitat conversion. These impacts can be ameliorated by 
educating landowners and managers about the location and value of these 
resources.
    Within each area designated as critical habitat, the physical and 
biological features essential for the conservation of the bull trout 
may require some level of management and/or protection to avoid 
destruction or adverse modification of habitat essential to its 
conservation.
    Relatively cold water temperatures are characteristic of bull trout 
habitat. Water temperatures above 59 [deg]F (15 [deg]C) are believed to 
limit their distribution (Fraley and Shepard 1989; Rieman and McIntyre 
1996). Although adults have been observed in large rivers throughout 
the Columbia River basin in water temperatures up to 68 [deg]F (20 
[deg]C), Gamett (1999) documented steady and substantial declines in 
abundance in stream reaches where water temperature ranged from 59 to 
68 [deg]F (15 to 20 [deg]C). Thus, water temperature may partially 
explain the generally patchy distribution of bull trout in a watershed. 
In large rivers, bull trout are often observed ``dipping'' into the 
lower reaches of tributary streams, and it is suspected that cooler 
waters in these tributary mouths may provide important thermal refugia, 
allowing them to forage, migrate, and overwinter in waters that would 
otherwise be, at least seasonally, too warm. Spawning areas often are 
associated with cold-water springs, groundwater infiltration, and the 
coldest streams in a given watershed (Pratt 1992; Rieman and McIntyre 
1993; Rieman et al. 1997).
    The stability of stream channels and stream flows are important 
habitat characteristics for bull trout populations (Rieman and McIntyre 
1993). Altered stream flow in the fall may disrupt bull trout during 
the spawning period, and channel instability may decrease survival of 
eggs and young juveniles in the gravel during winter through spring 
(Fraley and Shepard 1989; Pratt 1992; Pratt and Huston 1993).
    Throughout their lives, bull trout require complex forms of cover, 
including large woody debris, undercut banks, boulders, and pools 
(Fraley and Shepard 1989; Watson and Hillman 1997). Juveniles and 
adults frequently inhabit side channels, stream margins, and pools with 
suitable cover (Sexauer and James 1997). McPhail and Baxter (1996) 
reported that newly emerged fry are secretive and hide in gravel along 
stream edges, and in side channels. McPhail and Baxter (1996) also 
reported that juveniles are found mainly in pools, but also in riffles 
and runs, that they maintain focal sites near the bottom, and that they 
are strongly associated with instream cover, particularly overhead 
cover. Bull trout have been observed overwintering in deep beaver ponds 
or pools containing large woody debris (Jakober 1995). Activities that 
disrupt or reduce stream complexity such as channelizing, reducing the 
input of woody debris, or removing riparian cover may negatively affect 
bull trout (Rieman and McIntyre 1996; MBTSG 1998).
    The ability to migrate is important to the persistence of local 
bull trout subpopulations (Rieman and McIntyre 1993; Gilpin 1997; 
Rieman and Clayton 1997; Rieman et al. 1997). Bull trout rely on 
migratory corridors to move from spawning and rearing habitats to 
foraging and overwintering habitats and back. Migratory bull trout 
become much larger than resident fish in the more productive waters of 
larger streams and lakes, leading to increased reproductive potential 
(McPhail and Baxter 1996). Also, local populations that have been 
extirpated by catastrophic events may become reestablished as a result 
of movements by bull trout through migratory corridors (Rieman and 
McIntyre 1993; MBTSG 1998). Activities that preclude the function of 
migratory corridors may affect bull trout (e.g., stream blockages).
    The introduction and spread of nonnative species, particularly 
brook trout and lake trout, which compete with bull trout for limited 
resources and, in the case of brook trout, hybridize with bull trout 
(Ratliff and Howell 1992; Leary et al. 1993) is another ongoing threat 
to bull trout. Both species have been introduced in historical bull 
trout habitat, and both legal and illegal introductions of these and 
other competing species have continued to the present.

Relationship to HCPs and Other Planning Efforts

    Section 3(5)(A) of the Act defines critical habitat, in part, as 
those areas requiring special management considerations or protection. 
Section 10(a)(1)(B) of the Act authorizes us to issue permits for the 
take of listed species incidental to otherwise lawful activities. This 
permit allows a non-Federal landowner to proceed with an activity that 
is legal in all other respects, but that results in the incidental 
taking of a listed species. An incidental take permit application must 
be supported by an HCP that identifies conservation

[[Page 60026]]

measures that the permittee agrees to implement for the species to 
minimize and mitigate the impacts of the permitted incidental take. The 
purpose of the HCP is to describe and ensure that the effects of the 
permitted action on covered species are adequately minimized and 
mitigated, and that the action does not appreciably reduce the survival 
and recovery of the species.
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of such 
exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species.
    In our critical habitat designations, we use the provisions 
outlined in section 4(b)(2) of the Act to evaluate those specific areas 
that we consider designating as critical habitat. Lands we have 
excluded from designated critical habitat pursuant to section 4(b)(2), 
include those covered by the following types of plans if they provide 
assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative approved HCPs that 
cover the species; (2) draft HCPs that cover the species and have 
undergone public review and comment (i.e., pending HCPs) and that we 
are able to make a biological determination that when completed, the 
plan will provide adequate protection; (3) Tribal conservation plans 
that cover the species; (4) State conservation plans that cover the 
species; and (5) National Wildlife Refuge System Comprehensive 
Conservation Plans.

Lands Excluded From Critical Habitat

Habitat Conservation Plans

    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic and national 
security impacts, when designating critical habitat. Section 
10(a)(1)(B) of the Act authorizes us to issue to non-Federal entities a 
permit for the incidental take of endangered and threatened species. 
This permit allows a non-Federal landowner to proceed with an activity 
that is legal in all other respects, but that results in the incidental 
taking of a listed species (i.e., take that is incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity). The 
Act specifies that an application for an incidental take permit must be 
accompanied by a conservation plan, and specifies the content of such a 
plan. The purpose of such an HCP is to describe and ensure that the 
effects of the permitted action on covered species are adequately 
minimized and mitigated, and that the action does not appreciably 
reduce the survival and recovery of the species.
    Within the area covered by the Klamath River population, there are 
no HCPs involving bull trout. Within the range of the Columbia River 
population, the approved Plum Creek Native Fish, Plum Creek I-90, 
Stimson Lumber Company, and WDNR HCPs have been developed, in part, to 
provide for bull trout conservation needs while also allowing for 
otherwise lawful timber management activities. The duration of the 
permits associated with the Plum Creek and WDNR HCPs ranges from 30 to 
100 years. The permittees have the option, however, of terminating at 
any time if they so choose, with a 60-day notice to us. Moreover, the 
permittees may retain their permits but sell some of their lands 
covered by an HCP. All of these HCPs contain provisions that allow 
buyers of lands covered by the HCP to assume the permit if they so 
desire. That is the process by which the Stimson Lumber HCP was 
created, when the Stimson Lumber Company acquired certain lands 
previously owned by Plum Creek and assumed all of the Plum Creek HCP 
commitments.
    The Plum Creek I-90 HCP includes provisions that: (1) Generally 
allow for the sale or exchange of lands with the USFS, with some 
specific limitations relative to implementation of the NWFP; (2) allow 
for the sale of any lands provided appropriate covenants or assurances 
are given by the acquiring party that such lands will be managed 
consistent with the goals and objectives of the HCP; and (3) allow for 
the sale of parcels not in excess of 640 ac (259 ha) to any private 
party as long as the cumulative total of all such transactions does not 
exceed 5 percent of the acreage covered by the permit, and the 
cumulative total of all such transactions in any one township does not 
exceed 1,920 ac (777 ha). The Plum Creek Native Fish HCP and Stimson 
Lumber HCP apply a proportionality ratio to land dispositions relative 
to three categories of dispositions: positive, neutral, and negative in 
terms of conservation benefits to covered species. Plum Creek and 
Stimson Lumber Company have committed to manage their land dispositions 
so that the cumulative total of dispositions stays within a 
predetermined range of proportionality. If, at the end of the HCP term, 
the proportionality balance is below the predetermined range limits, 
positive land disposition commitments must be applied to sufficient 
acreage within the project area to restore the balance.
    The WDNR lands are maintained primarily for the purpose of growing 
and selling timber to finance State government, and the management of 
these lands also can include purchases, sales, and land exchanges. The 
WDNR HCP does not include incentives for placing conservation easements 
on some of the land that WDNR sells. The HCP allows WDNR to dispose of 
permit lands at its sole discretion. However, if the cumulative impact 
of disposed lands would have a significant adverse effect on the 
covered species, the parties to the HCP are required to mutually amend 
the HCP to provide replacement mitigation.
    We evaluated lands covered by these existing HCPs to determine 
whether it (1) provides a conservation benefit to the species; (2) 
provides assurances that the management plan will be implemented; and 
(3) provides assurances the plan will be effective. Approved and 
permitted HCPs are designed to ensure the long-term survival of covered 
species within the plan area. Where we have an approved HCP, the areas 
we ordinarily would designate as critical habitat for the covered 
species will normally be protected through the terms of the HCPs and 
their implementation agreements (IAs). These HCPs and implementation 
agreements include management measures and protections that are crafted 
to protect, restore, and enhance their value as habitat for covered 
species.
    The issuance of a permit (under section 10(a) of the Act) in 
association with an HCP application is subject to consultation under 
section 7(a)(2) of the Act. During consultation on permit issuance, we 
must address the issue of destruction or adverse modification of 
critical habitat for bull trout and any other species protected by the 
plan. Since these large regional HCPs address land use within the plan 
boundaries, habitat issues within the plan boundaries have been 
addressed in the HCP and the consultation on the permit associated with 
the HCP. This requires us to make a determination as to the effect on 
both survival and recovery of a listed species, in the case of critical 
habitat by reducing the function of the habitat so designated.
    The Plum Creek I-90 and WDNR HCPs occur mostly in western 
Washington, with minimal overlap (i.e.,

[[Page 60027]]

lands adjacent to less than 50 mi (80 km) for each plan) with 
designated critical habitat for the Columbia River population. The Plum 
Creek Native Fish HCP and Stimson HCP cover approximately 1.6 million 
ac (647,500 ha), all within the range of the Columbia River population 
and mostly within western Montana. All lands lying within these HCPs 
are in the Clark Fork River (Unit 2), Kootenai River (Unit 3), or 
Clearwater River (Unit 15) CHU. Lands within these HCPs occur adjacent 
to less than approximately 500 mi (894 km) of stream reaches that we 
identified as critical habitat.
    We have reviewed the four HCPs within the Columbia River population 
of bull trout and determined that the benefits of excluding them from 
the final designation of critical habitat for the bull trout outweigh 
the benefits of including them in the designation. Therefore, areas 
covered by these HCPs are excluded from this critical habitat 
designation pursuant to section 4(b)(2) of the Act. Our rationale for 
these exclusions is discussed below.
    Montana DNRC is developing an HCP that will cover forest management 
activities on approximately 700,000 ac (283,281 ha) of forested blocked 
and scattered trust lands across the State of Montana. The HCP may 
include an additional 300,000 ac (121,406 ha) of nonforested parcels 
associated with access for timber management activities on forested 
lands. The predominant emphasis of the HCP will be on trust lands in 
western Montana. DNRC is considering an agreement term of 50 years. The 
covered activities will include activities common to commercial forest 
management.
    An aquatic work group, whose members include DNRC and Service 
project managers, DNRC resource specialists, consulting resource 
specialists, and Service biologists, is meeting several times each 
month in order to collaboratively design conservation strategy 
recommendations, which will eventually be integrated into a 
comprehensive habitat-based conservation strategy for DNRC covered 
lands. The aquatic working group is developing a strategy that is 
designed to collectively meet the conservation needs for bull trout, 
westslope cutthroat trout (Oncorhynchus clarki lewisi), and redband 
trout (Oncorhynchus mykiss gairdneri).
    The transitional lands working group is developing strategies for 
those forest lands where the primary use may be transferred from the 
forest management bureau to another DNRC Trust Lands Management bureau 
(e.g., real estate, agriculture and grazing, or minerals) within the 
50-year term of this HCP. Initially, DNRC is planning to develop a 
point-based accounting system for transitional lands, similar to the 
approach implemented in the Plum Creek Native Fish HCP. Once the 
individual technical work groups complete conservation strategy 
recommendations, the strategies will be integrated into habitat-based 
commitments that collectively meet the needs for all of the covered 
species. DNRC will use these commitments to develop an application for 
an incidental take permit, and the project will focus on producing a 
combined draft HCP and draft EIS. Under the existing timeline, these 
documents are scheduled for public distribution in September 2005.
    It is our judgment that the collective benefits of the Montana DNRC 
HCP, including furthering the working relationship with the State of 
Montana, and providing additional protections to bull trout and their 
habitat, as well as a host of other nonlisted species, will be 
sufficient to exempt forested State lands of western Montana from bull 
trout critical habitat. The benefit of excluding those lands exceeds 
the benefit of including them as they will provide protection for any 
lands affecting bull trout conservation whether there is a Federal 
nexus or not. Thus the protections afforded the bull trout are 
increased beyond what a critical habitat designation could do. In 
total, approximately 144 mi (232 km) of stream segments in the Clark 
Fork River and Kootenai River CHUs are thus being excluded from what 
was proposed as critical habitat. The State of Montana has committed to 
the terms of the aquatic strategy that will be met on forested State 
lands, and is judged sufficient to meet the standard for exclusion of 
these lands. Forested Montana DNRC lands are included in the critical 
habitat maps, but are excluded, in a fashion similar to what was done 
for other HCP lands.
    As noted above, lands within these HCPs are subject to change 
(e.g., through sale or exchange), subject to various sideboards 
included in each HCP. Designated critical habitat does not include non-
Federal lands covered by an incidental take permit for bull trout 
issued under section 10(a)(1)(B) of the Act for these HCPs as long as 
such permit, or a conservation easement providing comparable 
conservation benefits, remains legally operative on such lands. The 
following represents our rationale for excluding the critical habitat 
within approved HCPs.
(1) Benefits of Inclusion
    The principal effect of designated critical habitat is that 
federally funded or authorized activities may require consultation 
under section 7 of the Act. Consultation ensures that action entities 
avoid adverse modification of critical habitat. Currently approved and 
permitted HCPs promote the long-term survival of addressed species. In 
an approved HCP, lands defined as critical habitat for covered species 
will be protected in reserves and other conservation lands by the terms 
of the HCP and its IA. HCPs and IAs include management measures and 
protections for conservation lands designed to protect, restore, and 
enhance their value as habitat for covered species, and thus provide 
benefits to the species well in excess of those that would result from 
a critical habitat designation. Where HCPs are in place, our experience 
indicates that the benefit of designated critical habitat is small or 
non-existent.
    Another possible benefit to including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation value of an area. This may 
focus and contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species. However, through the HCP development process, which typically 
involves extensive outreach and opportunity for public review and 
typically results in formal protection of essential habitat areas, the 
public is well informed and educated about conservation value of 
essential habitat lands.
(2) Benefits of Exclusion
    The benefits of excluding lands within HCPs from critical habitat 
designation include carrying out the assurances provided by the Service 
to landowners, communities, and counties in return for their voluntary 
adoption of the HCP, including relieving them of the additional 
regulatory burden that might be imposed by critical habitat. Many HCPs, 
which can take years to develop, and upon completion, become the basis 
for regional conservation plans that are consistent with the recovery 
objectives for listed species covered within the plan area. Many of 
these HCPs provide conservation benefits to unlisted, rare species. 
Imposing additional regulatory review after an HCP is completed solely 
as a result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of species' benefits if participants abandon the 
voluntary HCP process because it

[[Page 60028]]

may result in an additional regulatory burden requiring more of them 
than of other parties who have not voluntarily participated in species 
conservation. Designation of critical habitat within the boundaries of 
approved HCPs is likely to be viewed as a disincentive to those 
entities currently developing HCPs or contemplating them in the future. 
Excluding HCPs provides us with an opportunity to streamline regulatory 
compliance and confirm regulatory assurances for HCP participants.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the continued ability by us to seek new 
partnerships. These may include future HCP participants, such as 
States, counties, local jurisdictions, conservation organizations, and 
private landowners. These entities together may implement conservation 
actions that we would be unable to accomplish otherwise. By excluding 
areas covered by HCPs from critical habitat designation, we preserve 
these partnerships and, we believe, set the stage for more effective 
conservation actions in the future.
    An HCP application must undergo section 7 consultation. While this 
consultation does not address adverse modification to critical habitat, 
it will determine if the HCP jeopardizes the species in the plan area. 
Federal actions not covered by the HCP, but in areas occupied by listed 
species, still require consultation under section 7 of the Act. HCPs 
typically provide greater conservation benefits to an addressed listed 
species than section 7 consultations because HCPs assure the long-term 
protection and management of a covered species and its habitat, and 
funding for such management through the standards found in the 5 Point 
Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' regulation 
(63 FR 8859). Such assurances are typically not provided by ordinary, 
non-programmatic section 7 consultations which are limited to requiring 
that the specific action being consulted upon not jeopardize the 
continued existence of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    The educational benefits of critical habitat, including informing 
the public of areas that are essential for the long-term survival and 
conservation of the species, is still accomplished from material 
provided on our website and through public notice and comment 
procedures required to establish an HCP. We have also received input 
from the public through the public participation that occurs in the 
development of many regional HCPs. For these reasons, we believe that 
designating critical habitat has little additional benefit in areas 
covered by HCPs, provided that the HCP specifically and adequately 
covers the species for which critical habitat has been designated. We 
do not believe that this exclusion would result in the extinction of 
the species because the essential habitat within these HCPs will 
ostensibly be conserved.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery, and the creation of innovative solutions to conserve species 
while allowing for commercial activity. The educational benefits of 
critical habitat, including informing the public of areas that are 
important for the long-term survival and conservation of the species, 
are essentially the same as those that would occur from the public 
notice and comment procedures required to establish an HCP, as well as 
the public participation that occurs in the development of many 
regional HCPs. For these reasons, then, we believe that designation of 
critical habitat normally has little benefit in areas covered by HCPs.
    The benefits of excluding lands covered by these HCPs would be 
significant in preserving positive relationships with our conservation 
partners, lessening potential additional regulatory review and 
potential economic burdens, reinforcing the regulatory assurances 
provided for in IAs for approved HCPs, and providing for more 
established and cooperative partnerships for future conservation 
efforts. In summary, excluding lands covered by HCPs in critical 
habitat designations outweigh the benefits of including lands covered 
by HCPs. Furthermore, we have determined in section 7 consultations on 
approved HCPs that they would not jeopardize the continued existence of 
the bull trout. Consequently, excluding these lands from the critical 
habitat designation will not result in the extinction of the species. 
Therefore, these lands have not been designated as critical habitat for 
the bull trout.

Washington State Forest Practices Rules and Regulations, as Amended by 
the Forest and Fish Law (FFR)

    An effort (known as the FFR) to address the needs of listed 
salmonids, and avoid conflicts between State regulations and the Act, 
was adopted by the Washington state legislature, thereby amending the 
Revised Code of Washington with respect to the Washington Forest 
Practices Act (RCW 76.09), as well as the Washington Administrative 
Code with respect to the Washington Forest Practices Rules (WAC 222).
    The FFR addressed the needs of salmonids, other fish, and stream-
associated amphibians, and specifically addressed the needs of bull 
trout and its habitat. Riparian buffers on fishbearing streams were 
designed to recruit the majority of the large wood which potentially 
could be recruited from these riparian areas. Because addressing the 
recruitment of large wood requires buffer widths greater than that 
needed to address many other riparian functions, these buffers also 
address the riparian functions of bank stability, shade, nutrient 
input, and sediment filtering. Riparian buffers on fishbearing streams 
likely account for half of the wood delivered to such streams. The 
remainder of large wood in these streams depends on episodic and 
catastrophic events for transport from upstream and upslope areas. 
These ``upstream'' wood-recruitment mechanisms are not well understood. 
Riparian buffers for streams above fishbearing streams include a buffer 
at the confluence with fishbearing streams to address temperature 
concerns as well as provide a run-out zone for events such as 
landslides and channelized debris flows. Above those areas, buffers 
under FFR rules need not be continuous, but are designed to maintain 
stream temperatures within normal parameters and will be placed along 
sensitive reaches and sites. The FFR rules includes a strategy (the 
bull trout temperature overlay) for maintaining cooler water 
temperatures in streams located in the hotter, dryer portions of 
Washington, east of the Cascade Crest. Slope stability and the ability 
to harvest timber and construct roads on ``at-risk'' or unstable slopes 
are also addressed through these rules.
    Road construction and maintenance is a large part of these 
regulations, requiring corrective measures to address existing problem 
areas. These rules are designed to ensure stream connectivity through 
road crossings, shunting of road-generated sediment away from aquatic 
resources, and integrity of road infrastructure. It mandates a process 
of identification of problem areas and correction of those road 
segments within specified timeframes.
    We assessed FFR with respect to bull trout PCEs. Forest practices 
conducted consistent with the FFR should not result in contaminated 
waters that inhibit reproduction, growth, or survival; instead, they 
are expected to

[[Page 60029]]

maintain a high-level of water quality. They are expected to maintain 
the thermal regime of streams within the range of normal variation, and 
contribute to the maintenance of complex stream channels, appropriate 
substrates, a natural hydrograph, ground-water sources and subsurface 
connectivity, migratory corridors, and an abundant food base. Forest 
practices are not expected to introduce or favor nonnative competitors 
or predators.
    These rules apply to most non-industrial forest landowners, family-
held and publicly-held industrial timber corporations, and some State 
lands. State lands managed by the WDNR west of the Cascade Crest are 
not subject to FFR as they are managed under their 1997 HCP with 
respect to bull trout. However, some provisions of FFR, such as road 
management and slope stability will be voluntarily applied by WDNR on 
those west-side lands. These rules do apply to WDNR lands east of the 
Cascade Crest and non-HCP private lands statewide, regardless of the 
presence of bull trout or salmon. Therefore, FFR includes benefits for 
many species in areas with no listed species. The FFR rules continue to 
apply so long as harvested land will be replanted and remain in 
forestry. Individual counties generally administer timber harvests 
associated with conversion of forested lands to agriculture or 
development, and all counties are expected to administer conversion 
harvests consistent with FFR by the year 2005.
    These State Forest Practices Rules allow for the development of 
alternate plans. It is anticipated that non-industrial forest 
landowners will seek alternate plans for several inter-related reasons: 
(1) Much of the non-industrial lands are located at lower elevations 
where a disproportionate amount of the streams contain fish; (2) 
streams are lower gradient and can be addressed with different 
buffering scenarios that provide equal or better protection while 
allowing additional management flexibility; and (3) many non-industrial 
forest landowners do not have additional lands in their portfolio which 
can be used to offset the economic effect to them from reserve areas 
covering high percentages of their ownerships. All alternate plans, 
whether developed in conjunction with an HCP or not, will be evaluated 
for the level of protection provided to the aquatic resources including 
bull trout. It is expected that alternate plans will be required to 
provide equal or better protection for these resources. If this can be 
accomplished on some lands and waters in a more economical fashion, we 
expect landowners will attempt to avail themselves of these options, so 
long as the process for developing alternate plans is not overly 
onerous.
    We assessed the adequacy of FFR as a special management plan to 
ensure that it provided: (1) A benefit to bull trout; (2) assurances of 
implementation; and (3) assurances it would be effective. For the 
reasons discussed above, bull trout will benefit from the 
implementation of FFR. FFR has already been adopted by the legislature 
and has been implemented for several years. Forest practice rules are 
monitored by the WDNR to ensure compliance by landowners and operators. 
Effectiveness is ensured through a cooperative adaptive-management 
process that includes collection of basic information regarding the 
covered species and their habitats, research, effectiveness monitoring, 
and regulatory feedback.
    For these reasons, we believe that FFR, as a special management 
plan, provides substantial protection and restoration for bull trout 
and bull trout habitat. Therefore, we have determined that the benefits 
of excluding lands covered by FFR from the final designation of 
critical habitat for the bull trout outweighs the benefits of including 
them in the designation. Therefore, areas covered by the FFR are 
excluded from this critical habitat designation pursuant to section 
4(b)(2) of the Act. Our rationale for these exclusions is discussed 
below.
(1) Benefits of Inclusion
    Consultation. One benefit would result from the requirement under 
section 7 of the Act that Federal agencies consult with us to ensure 
that any proposed actions do not destroy or adversely modify critical 
habitat. The economic analysis estimates that there have been over 200 
formal consultations and thousands of informal consultations involving 
bull trout since its listing in 1998, and has involved numerous Federal 
action agencies. However, unless there are other types of Federal 
permitting or authorization within this area, private, and State-owned 
lands would not be affected.
    Much of the land covered by FFR is zoned by the respective counties 
in a designation that holds long-term forestry as the primary 
objective. In areas zoned for other purposes, a higher rate of 
conversion from forestry to other land uses can be expected. FFR 
addresses forest practices and does not address conversion from 
forestry to other uses. Within the FFR area, conversion to some of 
these other land uses (e.g., development) may trigger consultation 
(e.g., filling of a wetland would require a permit from the Corps). 
However, most of these lands could be converted from forestry to other 
land uses without triggering consultation under section 7 of the Act, 
thus denying us any ability to assess and avoid any effect on critical 
habitat.
    Non-industrial forest landowners have a high reliance on technical 
assistance provided through State and Federal programs, and 
occasionally participate in cost-share programs. These actions may 
trigger consultations, but would generally be for projects with little 
to no effect on bull trout, such as pre-commercial thinning, pruning, 
or planting. We expect a low level of Federal activity on these lands 
that would adversely affect bull trout or its habitat on these lands. 
Therefore, we anticipate little additional regulatory benefits from 
including these areas in critical habitat beyond what is already 
provided by the existing section 7 nexus for habitat areas occupied by 
bull trout and other listed extant aquatic species.
    Bull trout belong to the same guild of fish and require similar 
habitat features as salmon. Salmon also need cold, clean, well-
oxygenated water; substrates with minimal amounts of fine sediment for 
spawning; complex in-stream habitat features; and connectivity. Both 
bull trout and salmon are highly reliant on the ability to migrate 
between components of their habitat. Therefore, actions that benefit 
salmon frequently also provide benefits to bull trout, and actions that 
impact bull trout frequently also impact salmon. Minimization and 
mitigation measures for these species are also generally similar, and 
the features of essential habitat for salmon are compatible with the 
PCEs of bull trout critical habitat. Salmon not only overlap bull trout 
in habitat requirements, but also fill some of the current gaps in 
historic bull trout range. Thus, we find that little additional benefit 
through section 7 consultations would occur as a result of the overlap 
between habitat suitable for salmon and essential habitat for bull 
trout.
    The economic analysis recognizes that while consultations regarding 
these areas will occur without bull trout critical habitat designation, 
those consultations may or may not consider the bull trout. In areas 
where removal or rectification of manmade, fish-passage obstructions 
are reasonably certain to occur, or where unoccupied range is currently 
accessible to expansion of the species, a ``may affect'' determination 
may be made in unoccupied areas for projects which will not result in 
take of the bull trout. In other areas where occupancy is not 
documented despite surveys and where it is not likely in the

[[Page 60030]]

foreseeable future, consultations for bull trout likely would not 
occur. Because of the similar life-history requirements of bull trout 
and salmon, we do not anticipate that the outcomes of such 
consultations would be altered by the designation of critical habitat 
for bull trout.
    Regulatory and protective conservation measures are already 
anticipated from the future consultations regarding the activities 
described above. Consequently, we do not believe that designating 
critical habitat within these areas would provide significant 
additional regulatory benefits for bull trout.
Education/Information
    In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 
2001), the Fifth Circuit Court of Appeals stated that the 
identification of habitat essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that heightened public awareness of the plight of listed 
species and their habitats may facilitate conservation efforts. We 
agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including these 
areas within designated critical habitat for bull trout because the 
final rule identifies all areas that are essential to the conservation 
of bull trout, regardless of whether all of these areas are included in 
the regulatory designation.
    Additionally, many partners at the Federal, State, local 
jurisdiction, private, and Tribal level have initiated active 
information programs. While this educational outcome is important for 
the conservation of bull trout, it is already being achieved through 
the existing management, education, and public outreach efforts carried 
out by landowners, conservation partners, and agencies. The plight of 
salmonids in the Pacific Northwest has been subject to a well-developed 
public outreach infrastructure that includes magazines, newsletters, 
well-publicized public events, annual festivals, school group 
activities, web-sites, and water-shed planning efforts. Consequently, 
few additional educational or informational benefits will be provided 
to bull trout if these areas are designated as critical habitat.
Voluntary Partnerships for Conservation and Restoration
    Current and ongoing conservation activities for salmon are 
compatible with those for bull trout such that reestablishment of bull 
trout in historic range and recovery throughout its range should not be 
precluded in the future. Existing conservation efforts include the 
application of Federal and State funds to salmonid recovery through the 
Salmon Recovery Funding Board. Other programs are also focusing on both 
active and passive restoration of habitats. Many partners are 
cooperating to conducting monitoring and research. The Cooperative 
Evaluation, Monitoring, and Research program of FFR, is funding and 
supporting a variety of research regarding habitat needs of bull trout 
and salmon, as well as research regarding topics such as survey 
protocols and their efficiencies. The conservation activities conducted 
by us, other Federal Agencies, State Agencies, private organizations, 
and private individuals demonstrate that the public is already aware of 
the importance of riparian and upland management in the conservation of 
salmonids. Designation of critical habitat would merely affirm what is 
already widely accepted by conservationists, agencies, and most of the 
public regarding the conservation value of these areas. It would also 
likely provide a relatively low level of additional voluntary 
conservation effort, and is actually more likely to undermine many of 
the existing cooperative voluntary efforts.
(2) Benefits of Exclusion
    Excluding lands defined by the FFR area from designated critical 
habitat will provide several benefits, as follows: (1) Exclusion of the 
lands from the final designation will maintain and enhance our ability 
to continue working with the FFR participants in a spirit of 
cooperation and partnership; and (2) other jurisdictions, private 
landowners, and other entities will likely continue to see the benefit 
of working cooperatively with us and will be provided with incentives 
to develop HCPs and other agreements which can provide the basis for 
future opportunities to conserve species and their habitats. A more 
detailed discussion concerning our rationale for the benefits of 
excluding HCPs from critical habitat is outlined in the previous 
discussion concerning the exclusion of approved HCPs.
    Through the stakeholder-based FFR planning process, we have built 
trust among diverse and competing interests by encouraging open 
dialogue regarding aquatic and riparian management issues. The 
introduction of additional Federal influence, through the designation 
of critical habitat, could impact the trust and spirit of cooperation 
that has been established over the last several years. The designation 
of critical habitat would be expected to adversely affect our working 
relationship with the State of Washington and private landowners, and 
Federal regulation through designation of critical habitat would be 
viewed as an unwarranted and unwanted intrusion. Therefore, exclusion 
would avoid this impact to cooperative efforts and will reduce the cost 
and logistical burden of unnecessary regulatory oversight.
    FFR will undergo section 7 consultation to ensure that acceptance 
of FFR as an HCP will not jeopardize bull trout or any other listed or 
covered species. Federal actions in occupied portions of the FFR area 
will still require consultation under section 7 of the Act. These 
benefits will continue to occur if these areas are excluded. But 
additionally, FFR and exclusion of the FFR areas, will set the stage 
for more effective conservation in the future, as well as provide 
substantial benefits in the immediate future.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have analyzed the benefits of including FFR 
areas as part of the critical habitat designation and the benefits of 
excluding these areas, and determined that the benefits of exclusion 
outweigh those of inclusion. Further, we have determined that the 
exclusion of areas covered by the FFR would not result in the 
extinction of the bull trout based on the benefits provided the species 
through the plan.
    The analysis conducted evaluating the benefits of excluding HCPs 
from critical habitat versus the benefits of including HCPs, as 
previously discussed for the exclusion of approved HCPs, and is 
applicable and appropriate for the exclusion of the FFR from designated 
critical habitat. However, we have specifically assessed the exclusion 
and inclusion of FFR areas in this respect.

Northwest Forest Plan

    The Northwest Forest Plan was developed to manage the Northwest 
Forest in a manner that conserves the ecosystem and provides species 
the necessary elements they require to exist. Bull trout was one of the 
species considered in the Northwest Forest plan. There is general 
agreement that this is a comprehensive plan designed to improve habitat 
for all the species dependent on the Northwest Forest. In a 2002 report 
the Government Accounting Office found that the process used to develop 
and implement the Northwest Forest Plan addressed

[[Page 60031]]

many longstanding deficiencies that have contributed to unmet 
objectives in other land management plans.
(1) Benefits of Inclusion
    The principal benefit of the inclusion of lands into designated 
critical habitat is that federally funded or authorized activities may 
require consultation under section 7 of the Act. Consultation ensures 
that action entities avoid adverse modification of critical habitat. 
Currently the Northwest Forest Plan promotes the conservation of 
addressed species, including the bull trout.
(2) Benefits of Exclusion
    Consultation. One benefit would result from the requirement under 
section 7 of the Act that Federal agencies consult with us to ensure 
that any proposed actions do not destroy or adversely modify critical 
habitat. The economic analysis estimates that there have been over 200 
formal consultations and thousands of informal consultations involving 
bull trout since its listing in 1998, and has involved numerous Federal 
action agencies. However, unless there are other types of Federal 
permitting or authorization within this area, private, and State-owned 
lands would not be affected.
    Regulatory and protective conservation measures are already 
anticipated from the future consultations regarding the activities 
described above. Consequently, we do not believe that designating 
critical habitat within these areas would provide significant 
additional regulatory benefits for bull trout.
    Education/Information. In Sierra Club v. Fish and Wildlife Service, 
245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of Appeals stated 
that the identification of habitat essential to the conservation of the 
species can provide informational benefits to the public, State and 
local governments, scientific organizations, and Federal agencies. The 
court also noted that heightened public awareness of the plight of 
listed species and their habitats may facilitate conservation efforts. 
We agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including these 
areas within designated critical habitat for bull trout because the 
final rule identifies all areas that are essential to the conservation 
of bull trout, regardless of whether all of these areas are included in 
the regulatory designation.
    Additionally, many partners at the Federal, State, local 
jurisdiction, private, and Tribal level have initiated active 
information programs. While this educational outcome is important for 
the conservation of bull trout, it is already being achieved through 
the existing management, education, and public outreach efforts carried 
out by landowners, conservation partners, and agencies. The plight of 
salmonids in the Pacific Northwest has been subject to a well-developed 
public outreach infrastructure that includes magazines, newsletters, 
well-publicized public events, annual festivals, school group 
activities, web-sites, and water-shed planning efforts. Consequently, 
few additional educational or informational benefits will be provided 
to bull trout if these areas are designated as critical habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    For these reasons, we believe that Northwest Forest Plan, as a 
special management plan, provides substantial protection and 
restoration for bull trout and bull trout habitat. Therefore, we have 
determined that the benefits of excluding lands covered by Northwest 
Forest Plan from the final designation of critical habitat for the bull 
trout outweighs the benefits of including them in the designation. 
Therefore, areas covered by the Northwest Forest Plan are excluded from 
this critical habitat designation pursuant to section 4(b)(2) of the 
Act. Our rationale for these exclusions is discussed below.
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have analyzed the benefits of including 
Northwest Forest Plan areas as part of the critical habitat designation 
and the benefits of excluding these areas, and determined that the 
benefits of exclusion outweigh those of inclusion. Therefore, we have 
excluded all Federal lands covered under Northwest Forest Plan from 
this final designation of critical habitat for the bull trout pursuant 
to section 4(b)(2) of the Act. Further, we have determined that the 
exclusion of all Federal lands covered by the Northwest Forest Plan 
would not result in the extinction of the bull trout based on the 
benefits provided the species through the plan and our consultation on 
the Forest Plan under section 7 of the Act.

Federal Columbia River Power System (FCRPS)

    The FCRPS is currently governed by two federal statues that protect 
the bull trout, the Act and the Northwest Electric Power Planning and 
Conservation Act. The Northwest Electric Power Planning and 
Conservation Act require the mitigation of hydropower impacts. The Act 
protects the bull trout from actions that would jeopardize its 
continued existence, and all agencies must consult and collaborate with 
Tribes to ensure their actions do not impact tribal rights. These 
various directives have resulted in a multiplicity of collaborative 
efforts in the basin; all directed at restoring habitat and species 
populations. Each affected state also has varying regulatory authority 
with respect to habitat protection. Finally, there are 11 Federal 
agencies involved specifically in salmon and steelhead recovery in the 
basin. In 2002 the GAO estimated $3.3 billion had been spent since 1982 
to recover those species in the basin. Many of these activities such as 
fish passage through dams, stream flow and temperature alteration, and 
sediment reduction, are the same that would be required for bull trout 
recovery. This was also noted in the economic analysis for the 
designation. It is clear that the basin is not in need of special 
management and protection, there are myriad programs currently 
performing that function outside of the Act. In addition, the benefit 
of imposing an additional regulatory structure (in this case, a 
designation of bull trout critical habitat) with its attendant 
rigidities, was not as great as excluding this area from designation to 
allow the existing processes to identify and implement the most 
effective way to conserve all the species in the basin.
    For these reasons, we believe that FCRPS provides substantial 
protection and restoration for bull trout and bull trout habitat. 
Therefore, we have determined that the benefits of excluding lands 
covered by FCRPS from the final designation of critical habitat for the 
bull trout outweighs the benefits of including them in the designation. 
Therefore, areas covered by the FCRPS are excluded from this critical 
habitat designation pursuant to section 4(b)(2) of the Act. Our 
rationale for these exclusions is discussed below.
(1) Benefits of Inclusion
    The principal effect of designated critical habitat is that 
federally funded or authorized activities may require consultation 
under section 7 of the Act. Consultation ensures that action entities 
avoid adverse modification of critical habitat. Currently FCRPS promote 
the conservation of the bull trout.
(2) Benefits of Exclusion
    Consultation. One benefit would result from the requirement under 
section 7 of the Act that Federal agencies consult with us to ensure 
that any proposed actions do not destroy or adversely modify critical 
habitat. The economic analysis estimates that there

[[Page 60032]]

have been over 200 formal consultations and thousands of informal 
consultations involving bull trout since its listing in 1998, and has 
involved numerous Federal action agencies. However, unless there are 
other types of Federal permitting or authorization within this area, 
private, and State-owned lands would not be affected.
    Education/Information. In Sierra Club v. Fish and Wildlife Service, 
245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of Appeals stated 
that the identification of habitat essential to the conservation of the 
species can provide informational benefits to the public, State and 
local governments, scientific organizations, and Federal agencies. The 
court also noted that heightened public awareness of the plight of 
listed species and their habitats may facilitate conservation efforts. 
We agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including these 
areas within designated critical habitat for bull trout because the 
final rule identifies all areas that are essential to the conservation 
of bull trout, regardless of whether all of these areas are included in 
the regulatory designation.
    Additionally, many partners at the Federal, State, local 
jurisdiction, private, and Tribal level have initiated active 
information programs. While this educational outcome is important for 
the conservation of bull trout, it is already being achieved through 
the existing management, education, and public outreach efforts carried 
out by landowners, conservation partners, and agencies. The plight of 
salmonids in the Pacific Northwest has been subject to a well-developed 
public outreach infrastructure that includes magazines, newsletters, 
well-publicized public events, annual festivals, school group 
activities, web-sites, and water-shed planning efforts. Consequently, 
few additional educational or informational benefits will be provided 
to bull trout if these areas are designated as critical habitat.
    Voluntary Partnerships for Conservation and Restoration. Current 
and ongoing conservation activities for salmon are compatible with 
those for bull trout such that reestablishment of bull trout in 
historic range and recovery throughout its range should not be 
precluded in the future. Existing conservation efforts include the 
application of Federal and State funds to salmonid recovery through the 
Salmon Recovery Funding Board. Other programs are also focusing on both 
active and passive restoration of habitats. Many partners are 
cooperating to conducting monitoring and research. The conservation 
activities conducted by us, other Federal Agencies, State Agencies, 
private organizations, and private individuals demonstrate that the 
public is already aware of the importance of riparian and upland 
management in the conservation of salmonids. Designation of critical 
habitat would merely affirm what is already widely accepted by 
conservationists, agencies, and most of the public regarding the 
conservation value of these areas. It would also likely provide a 
relatively low level of additional voluntary conservation effort, and 
is actually more likely to undermine many of the existing cooperative 
voluntary efforts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have analyzed the benefits of including FCRPS 
areas as part of the critical habitat designation and the benefits of 
excluding these areas, and determined that the benefits of exclusion 
outweigh those of inclusion. Therefore, we have excluded all Federal 
lands covered under FCRPS from this final designation of critical 
habitat for the bull trout pursuant to section 4(b)(2) of the Act. 
Further, we have determined that the exclusion of areas covered by the 
FCRPS would not result in the extinction of the bull trout based on the 
benefits provided the species through the plan and our consultation on 
the FCRPS under section 7 of the Act.

Snake River Basin Adjudication, Montana Bull Trout Restoration Plan, 
Willamette and Malheur River Basins, and Streams Regulated Under 
PACFISH/INFISH

    These exclusions include the Snake River Basin Adjudication, 
Montana Bull Trout Restoration Plan, the Willamette and Malheur River 
Basins, and stream reaches regulated under PACFISH/INFISH. The Snake 
River Basin Adjudication is an historic agreement between the Secretary 
of the Interior, the State of Idaho, and the Tribes to provide for 
conservation within the Snake River Basin. The affected parties have 
signed an agreement in principle and are moving forward to implement a 
plan for the basin. The benefit of excluding these areas from 
designation are that voluntary conservation will be achieved on all 
lands, not just lands with a Federal nexus. Stream reaches in the State 
of Montana Lands were excluded under section 4(b)(2) and because they 
do not meet the definition of critical habitat as they are not in need 
of special management or protection. The Willamette and Malheur Basins 
were excluded on the basis that the designations were the two most 
costly per river mile.
    In January, 1994, the Governor of Montana established a Bull Trout 
Restoration Team to develop a restoration plan for bull trout in 
Montana. The Restoration Team created a Scientific Group to provide 
guidance on technical issues related to bull trout restoration efforts. 
The Montana Bull Trout Scientific Group conducted a status review of 
bull trout, assessed risks to the survival of the species, and 
identified restoration and conservation goals. Status reports were 
prepared for the twelve major bull trout restoration/conservation areas 
identified in Montana addressing the critical populations of bull trout 
within those areas. In addition, the Scientific Group prepared reports 
on three of the major issues relative to bull trout restoration--
habitat requirements and land use impacts, removal and suppression of 
introduced species, and the use of transplants or stocking in 
restoration.
    These documents, prepared by the Scientific Group in the time 
period between 1995 and 1998, were intended to provide the most current 
and accurate information available to the Montana Bull Trout 
Restoration Team. The intent was for watershed groups and other 
entities to utilize the information in making informed decisions 
affecting the restoration and conservation of bull trout in Montana. 
While implementation has not been uniform or consistent across the 
range of bull trout in Montana, there have been significant instances 
where the information developed by the Scientific Group has been 
applied (e.g., Plum Creek Native Fish HCP). Additionally, the FWS draft 
Bull Trout Recovery Plan utilized much of the information and 
incorporated many of the restoration and conservation goals identified 
by the Montana Bull Trout Scientific Group. The efforts of the Montana 
Bull Trout Restoration Team, as updated by more recent information on 
the status of and threats to bull trout in Montana, provides guidance 
to future restoration efforts that may be implemented to recover bull 
trout in Montana.
    Lands currently managed under PACFISH/INFISH were excluded under 
section 4(b)(2) and because they do not meet the definition of critical 
habitat as they are not in need of special management or protection. 
PACFISH/INFISH was originally an interim measure pending completion of 
a plan similar to the Northwest Forest Plan in

[[Page 60033]]

the Interior Columbia River Basin. The Interior Columbia Plan was never 
completed; however, these management guidelines have been implemented 
by the U.S. Forest Service and the Bureau of Land Management for the 
past nine years. Where new management plans have been adopted by the 
land management agencies, the Service has found that the plans provided 
similar or improved outcomes. The existing management regime is 
protective of bull trout habitat, is likely to continue to the 
foreseeable future and no additional benefit would be realized by 
imposing a second regulatory scheme in the form of a critical habitat 
designation. The benefit of excluding the designations which is in 
terms of transactions costs to the agencies exceeds the benefit of 
designating critical habitat which will provide no additional 
protection in the face of the existing management.
    For these reasons, we believe that Snake River Basin Adjudication, 
stream reaches in the State of Montana, the Willamette and Malheur 
River Basins, and stream reaches regulated under PACFISH/INFISH 
provides substantial protection and restoration for bull trout and bull 
trout habitat. Therefore, we have determined that the benefits of 
excluding lands covered by these plans from the final designation of 
critical habitat for the bull trout outweighs the benefits of including 
them in the designation. Consequently, areas covered by the Snake River 
Basin Adjudication, stream reaches in the State of Montana, the 
Willamette and Malheur River Basins, stream reaches regulated under 
PACFISH/INFISH are excluded from this critical habitat designation 
pursuant to section 4(b)(2) of the Act. Our rationale for these 
exclusions is discussed below.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is the 
requirement for consultation under section 7 of the Act for any 
activities having a Federal nexus that may adversely affect critical 
habitat. Consultation ensures that action entities avoid the 
destruction or adverse modification of critical habitat.
(2) Benefits of Exclusion
    Consultation. One benefit would result from the requirement under 
section 7 of the Act that Federal agencies consult with us to ensure 
that any proposed actions do not destroy or adversely modify critical 
habitat. The economic analysis estimates that there have been over 200 
formal consultations and thousands of informal consultations involving 
bull trout since its listing in 1998, and has involved numerous Federal 
action agencies. However, unless there are other types of Federal 
permitting or authorization within this area, private, and State-owned 
lands would not be affected.
    Regulatory and protective conservation measures are already 
anticipated from the future consultations regarding the activities 
described above. Consequently, we do not believe that designating 
critical habitat within these areas would provide significant 
additional regulatory benefits for bull trout.
    Education/Information. In Sierra Club v. Fish and Wildlife Service, 
245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of Appeals stated 
that the identification of habitat essential to the conservation of the 
species can provide informational benefits to the public, State and 
local governments, scientific organizations, and Federal agencies. The 
court also noted that heightened public awareness of the plight of 
listed species and their habitats may facilitate conservation efforts. 
We agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including these 
areas within designated critical habitat for bull trout because the 
final rule identifies all areas that are essential to the conservation 
of bull trout, regardless of whether all of these areas are included in 
the regulatory designation.
    Additionally, many partners at the Federal, State, local 
jurisdiction, private, and Tribal level have initiated active 
information programs. While this educational outcome is important for 
the conservation of bull trout, it is already being achieved through 
the existing management, education, and public outreach efforts carried 
out by landowners, conservation partners, and agencies. The plight of 
salmonids in the Pacific Northwest has been subject to a well-developed 
public outreach infrastructure that includes magazines, newsletters, 
well-publicized public events, annual festivals, school group 
activities, web-sites, and water-shed planning efforts. Consequently, 
few additional educational or informational benefits will be provided 
to bull trout if these areas are designated as critical habitat.
    Voluntary Partnerships for Conservation and Restoration. Current 
and ongoing conservation activities for salmon are compatible with 
those for bull trout such that reestablishment of bull trout in 
historic range and recovery throughout its range should not be 
precluded in the future. Existing conservation efforts include the 
application of Federal and State funds to salmonid recovery through the 
Salmon Recovery Funding Board. Other programs are also focusing on both 
active and passive restoration of habitats. Many partners are 
cooperating to conducting monitoring and research.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have analyzed the benefits of including Snake 
River Basin Adjudication, the Montana Bull Trout Restoration Plan, the 
Willamette and Malheur River Basins, and stream reaches regulated under 
PACFISH/INFISH as part of the critical habitat designation and the 
benefits of excluding these areas, and determined that the benefits of 
exclusion outweigh those of inclusion. Therefore, we have excluded all 
Federal, State and private lands covered under Snake River Basin 
Adjudication, all lands covered under the Montana Bull Trout 
Restoration Plan, Federal lands within the Willamette and Malheur River 
Basins, and Federal lands containing stream reaches regulated under 
PACFISH/INFISH as part of the critical habitat designation from this 
final designation of critical habitat for the bull trout pursuant to 
section 4(b)(2) of the Act. Further, we have determined that the 
exclusion of areas covered by these plans would not result in the 
extinction of the bull trout based on the benefits provided the species 
through the plan and our consultation on these programs under section 7 
of the Act.

All Waters Impounded Behind Dams (Reservoirs and Pools)

    All waters impounded behind dams (reservoirs and pools) were 
excluded due to the potential for social and economic effects. In the 
case of reservoirs, the economic analysis found that potential 
modifications to the operations of reservoirs had the highest potential 
for economic effects. These costs result from consultations on ACOE and 
BOR dams and reservoirs, BPA consultations on the FCRPS, and FERC re-
licensing consultations. ACOE and BOR consultations on dam and 
reservoir operations could lead to temperature control facilities, trap 
and haul passage, fish ladders, spillway modification and bull trout-
related annual operation, maintenance, and study costs at various 
Federal dams. There is some potential for third party lawsuits to 
result in serious consequences for human health and safety as well as 
economic costs. Therefore, we have determined that the benefits of 
excluding lands covered by

[[Page 60034]]

these plans from the final designation of critical habitat for the bull 
trout outweighs the benefits of including them in the designation. 
Consequently, all impoundments behind dams are excluded from this 
critical habitat designation pursuant to section 4(b)(2) of the Act. 
Our rationale for these exclusions is discussed below.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is the 
requirement for consultation under section 7 of the Act for any 
activities having a Federal nexus that may adversely affect critical 
habitat. Consultation ensures that action entities avoid the 
destruction or adverse modification of critical habitat. However, these 
impoundments are already subject to consultation due to the presence of 
bull trout. Therefore, we find that the benefits of inclusion are low.
(2) Benefits of Exclusion
    Most of the forecast project modification costs resulting from the 
designation are dam and reservoir related (excluding USFS water 
diversions). These costs result from consultations on ACOE and BOR dams 
and reservoirs, BPA consultations on the FCRPS, and FERC re-licensing 
consultations. Particularly, in the case of the Willamette Basin Unit 
the cost of potential modifications to the ACOE Upper Willamette System 
Dams likely will be disproportionately large when compared to costs 
associated with other units. ACOE and BOR consultations on dam and 
reservoir operations could lead to temperature control facilities, trap 
and haul passage, fish ladders, spillway modification and bull trout-
related annual operation, maintenance, and study costs at various 
Federal dams. In addition there is some concern that third party 
lawsuits may result in reservoir and dam operation conditions that have 
consequences to human health and safety. For these reasons, we believe 
the benefits of exclusion are high.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Because the benefits of inclusion are low, and the benefits of 
exclusion are high, both in economic terms and with respect to 
potential concerns about human health and safety, we find that the 
benefits of exclusion outweigh the benefits of inclusion for dams and 
reservoirs throughout the proposed designation. Consequently, all 
impoundments behind dams are excluded from this critical habitat 
designation pursuant to section 4(b)(2) of the Act.

Lewis River Hydroelectric Projects Conservation Easements

    We have been working with PacifiCorp since 1995 on relicensing the 
Yale hydroelectric project in Washington. Subsequently, NOAA--Fisheries 
and Cowlitz County PUD and other participants joined this process and 
included relicensing of Merwin, Swift No. 1, and Swift No. 2 
hydroelectric projects on the Lewis River. We completed the biological 
opinion for the interim operation of the Lewis River hydroelectric 
projects in June 2002 (Service 2002d). Conservation measures were 
incorporated in the project description to minimize or compensate for 
the effects of the projects on listed species, including bull trout. 
Conservation measures included perpetual conservation easements on 
PacifiCorp's lands in the Cougar/Panamaker Creek area and along the 
Swift Creek arm of Swift Creek Reservoir. PacifiCorps signed and 
notarized covenant agreements and filed Cougar Creek in Clark and 
Cowlitz Counties, and Swift Creek in Clark and Skamania Counties 
(PacifiCorps 2003 a, b, c, d).
    Swift Creek 0.3 mi (0.5 km) up to a barrier falls is likely used 
for foraging because habitat in this lower section of the creek is an 
extension of the Swift Arm segment of Swift Creek Reservoir. Swift 
Creek Reservoir provides foraging and overwintering habitat for the 
Pine and Rush Creek bull trout local populations, and subadult bull 
trout are known to use the Swift Arm segment of the reservoir. Actual 
use of the lower section of Swift Creek by bull trout is unknown; 
spawning and rearing is not known to occur here. Conservation measures 
for Swift Creek will be implemented including: (1) Conserving and 
protecting habitat for bull trout, cutthroat trout, and other aquatic 
species; (2) monitoring to minimize sedimentation due to human 
disturbance; and (3) development and implementation of vegetation 
management practices to include, but be not limited to, removal of 
nonnative or invasive plant species (PacifiCorp 2003 a, b).
    Cougar Creek 1.7 mi (2.7 km) upstream to a lava tube barrier 
contains the smallest of the three local populations of bull trout in 
the Lewis River. Conservation measures included in PacifiCorp's 
conservation easement include: (1) Management to conserve and protect 
spawning and rearing habitat for bull trout; (2) monitoring to assure 
no detrimental changes to bull trout habitat have occurred due to 
upland management activities, winter storm damage, or other causes; (3) 
development and implementation of vegetation management practices to 
include, but will not be limited to, removal of nonnative or invasive 
plant species; and (4) development and implementation of a road 
maintenance plan to include provisions for repair or closure of roads 
(PacifiCorp 2003 c, d). The latter will include closing a road on the 
southeast boundary of the Cougar Creek lands to all vehicular access 
except maintenance equipment. In addition to these conservation 
measures, under the terms and conditions of the 2002 biological 
opinion, PacifiCorp will continue to develop annual plans and fund the 
cost of the net and haul system in place at the Yale tailrace (area 
below dam). Since 1995, the capture and transport of bull trout from 
the Yale tailrace to the mouth of Cougar Creek has probably contributed 
significantly to the spawning population (Service 2002).
    We assessed the adequacy of the conservation easements to ensure 
that they provided: (1) A benefit to bull trout; (2) assurances of 
implementation; and (3) assurances they would be effective. We 
determined that bull trout will benefit from implementation of the 
conservation measures that are part of the conservation easements for 
Swift and Cougar Creeks. Thus, we have excluded lands within the 
conservation easements for Swift and Cougar Creeks from this final 
designation of critical habitat of the bull trout pursuant to section 
4(b)(2) of the Act.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is the 
requirement for consultation under section 7 of the Act for any 
activities having a Federal nexus that may adversely affect critical 
habitat. Consultation ensures that action entities avoid the 
destruction or adverse modification of critical habitat.
    Habitat identification essential to the conservation of the species 
can provide information benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The 
heightened public awareness of the plight of listed species and their 
habitats may facilitate conservation efforts. However, we believe 
little additional informational benefit will be gained by including 
Swift and Cougar Creeks in designated critical habitat for bull trout. 
PacifiCorps has begun implementing conservation recommendations, 
provided in our 2002 biological opinion, that include posting 
interpretive signs to

[[Page 60035]]

educate anglers on identifying and conserving native char, and 
techniques for catch and release to minimize incidental hooking 
mortality of bull trout. While we believe educational benefits are 
important for the conservation of bull trout, we believe it has already 
been achieved through PacifiCorp's conservation easement, publication 
of the proposed critical habitat rule, the many public and interagency 
meetings that have been held to discuss the proposal, and discussion 
contained in this final rule.
(2) Benefits of Exclusion
    The benefits of excluding lands from critical habitat designation 
include maintaining and enhancing our ability to negotiate with 
hydroelectric power companies, counties, and other participants in 
relicensing negotiations. The complex process of negotiating 
relicensing for the Lewis River hydroelectric projects has been ongoing 
for 9 years. We have established valuable working relationships with 
the PacifiCorps, Cowlitz County PUD, and the other participants during 
these complex negotiations. Through the relicensing negotiations, we 
have built trust and encouraged open dialogue regarding aquatic and 
riparian management issues among the participants.
    Excluding Swift Creek and Cougar Creek from critical habitat based 
on conservation easements will help maintain trust in our intentions to 
honor our agreements and facilitate negotiations for the final issuance 
of the new Lewis River hydroelectric project licenses. It will also 
facilitate our ability to negotiate in future consultations on other 
relicensing projects. The introduction of additional Federal influence 
through critical habitat designation could impact the spirit of 
cooperation established over the last several years. Exclusion would 
avoid impacting ongoing and future cooperative efforts, and will reduce 
the cost and logistical burden of unnecessary regulatory oversight.
    The benefits of excluding areas covered by conservation easements 
from being designated critical habitat include relieving landowners and 
counties of any additional regulatory review that result from such a 
designation. Imposing an additional regulatory review after completion 
of conservation easements with adequate conservation measures may 
jeopardize conservation efforts and could be viewed as a disincentive 
to those developing conservation easements.
    An additional benefit of excluding conservation easement areas is 
the encouragement of continued development of partnerships with States, 
local governments, conservation organizations, and private landowners. 
By excluding areas covered by conservation easements from designated 
critical habitat, we encourage more effective conservation actions in 
the future that would allow implementation of conservation actions we 
would be unable to accomplish alone.
    Other important conservation benefits to developing conservation 
easements include developing biological information to guide 
conservation efforts and assist in species' recovery, and the creation 
of innovative solutions to conserve species while allowing commercial 
activity.
    The conservation easements will provide greater conservation 
benefits to bull trout because they will assure long-term protection 
and management of bull trout in Swift and Cougar Creeks. Such 
assurances are typically not provided by section 7 consultations that, 
in contrast to conservation easements with conservation measures, often 
do not commit the project proponent to long-term species and habitat 
protections. Also, the protections of section 7, with respect to the 
jeopardy standard, and section 9 will still be in effect and will 
result in actions that protect the species.
    By excluding lands included in the two conservation easements from 
designated critical habitat we will: (1) Maintain and enhance our 
ability to continue working with PacifiCorp, Cowlitz County PUD, FERC 
and other relicensing applicants; and (2) other jurisdictions, private 
landowners, and other entities will likely continue to see the benefit 
of working cooperatively with us. This will provide incentives to 
develop other conservation agreements, or other conservation actions 
such as HCPs, to provide the bases for future opportunities to conserve 
species and their habitats. Negotiating conservation measures under 
conditions of mutual trust can result in greater conservation benefits 
to the species than would result from including Swift and Cougar Creeks 
in designated critical habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have determined that the benefits of excluding 
Swift and Cougar Creeks from critical habitat because the benefits of 
excluding them outweigh the benefits of including them in this final 
critical habitat designation. The net benefit of including them has 
been significantly minimized by PacifCorp's commitment to coordinate 
with us on their activities that may adversely affect these two 
streams. Conservation measures adopted by PacifiCorp will provide 
tangible benefits that will reduce the likelihood of extinction and 
increase the chances of recovery. Excluding these areas from designated 
critical habitat will not result in extinction of the species, 
particularly with implementation of the conservation measurements 
defined in the conservation easements, continuation of the capture and 
transport of bull trout from the Yale tailrace to Cougar Creek, and 
other conservation measures identified in our 2002 biological opinion. 
Consequently, we believe there is little or no additional benefit to 
bull trout by including Swift and Cougar Creeks in designated critical 
habitat.
    The management commitments by PacifiCorp lead us to conclude that 
any additional, incremental regulatory benefits provided by a final 
critical habitat designation on their lands would be relatively small. 
Although we are excluding these streams, we still consider them 
essential to the conservation of the species. However, neither section 
7 consultations nor a critical habitat designation would necessarily 
result in the implementation of actions needed for recovery of these 
species. PacifiCorp has committed to several proactive conservation 
management activities that will provide a conservation benefit to the 
species. We believe the benefits of critical habitat designation to be 
small for these two streams covered by conservation easements with 
adequate conservation measures, and the benefits of excluding them are 
significant. The conservation measures provided these two streams under 
the terms of our 2002 biological opinion and incorporated into the 
conservation easements will provide sufficient protection and provide 
conservation benefits to the species. The benefits of excluding Swift 
and Cougar Creeks from designated critical habitat outweigh the 
benefits of inclusion. Swift Creek Reservoir, the Swift Arm segment of 
the reservoir, and Pine and Rush Creeks are still included in 
designated critical habitat.

Military Lands

Bayview Acoustic Research Detachment (ARD)
    The Bayview ARD, Naval Surface Warfare Center, Bayview, ID, 
property includes approximately 22 ac (9 ha) of developed land on the 
shore of Lake Pend Oreille and 16 ac (7 ha) of lake area. There are no 
tributary streams within this area utilized by bull trout for

[[Page 60036]]

spawning or early life rearing, but the lake area does contain 
important FMO habitat for bull trout.
(1) Benefits of Inclusion
    The benefits of designating critical habitat on Bayview ARD are 
minimal because: (1) Of the small area that it encompasses; and (2) it 
only provides limited habitat that may only occasionally be used by 
bull trout with respect to the rest of Lake Pend Oreille. The area of 
lake bottom included in the Bayview ARD property does, however, contain 
some of the best kokanee spawning habitat in Lake Pend Oreille, and 
kokanee are a primary forage item for bull trout. Bayview ARD has 
submitted a draft integrated natural resource management plan (INRMP), 
which outlines protection and management strategies for natural 
resources on the center, including fish species and their habitats.
(2) Benefits of Exclusion
    Designating critical habitat on Bayview ARD may impact their role 
in supporting ongoing U.S. Navy research, development, test, and 
evaluation programs in underwater acoustics. These efforts include the 
use of large scale models to simulate the characteristics of current 
and future Navy submarines in order to develop and evaluate advances in 
submarine silencing technology. Performing acoustic testing on large 
scale models provides the same accuracy as testing on actual submarines 
at a significantly lower cost. Bayview ARD is the only Navy facility 
capable of testing large scale models for hull-induced flow noise and 
propulsor noise, and the knowledge gained from these tests are directly 
applied to reducing the detectability of Navy submarines (Department of 
the Navy 2003).
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding Bayview ARD as critical habitat outweigh 
the benefits of including it as critical habitat for bull trout. 
Further, we have determined that excluding the Bayview ARD will not 
result in the extinction of the bull trout. If significant additional 
information becomes available that changes our analysis of the benefits 
of excluding Bayview ARD from this critical habitat designation, we may 
revise this final designation accordingly.

Tribal Lands

    We have considered whether or not Confederated Tribes of Warm 
Springs Reservation of Oregon (CTWS) Tribal lands should be excluded 
under subsection 4(b)(2) of the Act, which allows us to exclude areas 
from critical habitat designation where the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species.
(1) Benefits of Inclusion
    Habitat essential to bull trout conservation exists within CTWS 
lands. The primary direct benefit of inclusion of these lands as 
critical habitat would result from the requirement under section 7 of 
the Act that Federal agencies consult with us to ensure that any 
proposed Federal actions do not destroy or adversely modify critical 
habitat. The benefit of a critical habitat designation would ensure 
that any actions authorized, funded, or carried out by a Federal agency 
would not likely destroy or adversely modify any critical habitat.
    Another possible benefit of designating critical habitat is that 
the designation can educate the public regarding the potential 
conservation value of an area. This may contribute to conservation 
efforts by other parties by clearly delineating areas of high 
conservation value for the bull trout. Information about bull trout and 
their suitable habitat that was identified on CTWS lands could have a 
positive conservation benefit for the species. While we believe this 
educational outcome is important for bull trout conservation, we 
believe it has already been achieved through the existing management, 
education, and public outreach efforts carried out by the CTWS. A final 
designation of critical habitat on CTWS lands would simply affirm the 
recognized conservation value of these lands, which is already widely 
accepted by conservationists, public agencies, and most of the public.
    We believe that a critical habitat designation for the bull trout 
on CTWS lands would provide a relatively low level of additional 
benefit. Any regulatory conservation benefits would accrue through the 
benefit associated with additional section 7 consultation associated 
with critical habitat. Based on a review of past consultations and 
consideration of the likely future activities in this specific area, 
there is little Federal activity expected to occur on CTWS lands that 
would trigger section 7 consultation. We also believe that a final 
critical habitat designation provides little additional educational 
benefits since the conservation value is already well known by the 
CTWS, the State, Federal agencies, private organizations, and the 
public.
(2) Benefits of Exclusion
    Proactive voluntary conservation efforts are necessary to prevent 
the extinction and promote the recovery of the bull trout on CTWS 
lands. This is especially important in areas where the bull trout has 
been extirpated and its recovery requires access and permission for 
reintroduction efforts. For example, bull trout have been extirpated 
from some streams on CTWS lands, and repopulation is not likely without 
CTWS cooperation. The CTWS has a long history of carrying out proactive 
conservation actions on their lands. The CTWS's management plans 
provide guidelines for land uses that affect CTWS resources and serve 
as the basis for Tribal management decisions. We believe that the bull 
trout will benefit substantially from the CTWS's voluntary management 
actions due to their long-standing and broad application to Tribal 
management decisions.
    We believe that exclusion of CTWS lands from critical habitat would 
have substantial benefits including the: (1) Furtherance of our Federal 
trust obligations; (2) establishment and maintenance of effective 
working relationships to promote the conservation of bull trout while 
streamlining the consultation process; (3) allowance for meaningful 
collaboration and cooperation in scientific studies to learn more about 
the life history and habitat requirements of bull trout populations 
that occur on their land; and (4) providing conservation benefits that 
might not otherwise occur to bull trout that depend on Tribal streams. 
Where consistent with the discretion provided by the Act, we believe it 
is necessary to implement policies that provide positive incentives to 
voluntarily conserve natural resources and that remove or reduce 
disincentives to conservation. Thus, we believe it is essential for the 
recovery of bull trout to build on continued conservation activities 
with a proven partner such as the CTWS, to provide positive incentives 
implementing voluntary conservation activities, and to respect CTWS 
concerns about incurring incidental regulatory or economic impacts.
    Three of the five remaining bull trout populations in the lower 
Deschutes River exist on CTWS lands. Therefore, a successful recovery 
program is highly

[[Page 60037]]

dependent on developing working partnerships with a wide variety of 
entities, and the voluntary cooperation of the CTWS and others is 
essential to accomplishing recovery for listed species such as the bull 
trout. Because bull trout populations are located on CTWS lands, 
successful recovery of the bull trout in the Deschutes River basin is 
especially dependent upon working partnerships and the voluntary 
cooperation of the CTWS.
    We believe that excluding these CTWS lands from critical habitat 
will help maintain and improve our partnership relationship by 
recognizing the CTWS's positive contribution to bull trout 
conservation. It will also reduce the cost and logistical burden of 
regulatory oversight. We believe this recognition will provide other 
landowners with a positive incentive to undertake voluntary 
conservation activities on their lands, especially where there is no 
regulatory requirement to implement such actions. Few additional 
benefits are provided by including the CTWS lands in this critical 
habitat designation beyond what will be achieved through the 
implementation of the CTWS's existing conservation plans.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding CTWS lands as critical habitat for the 
bull trout outweigh the benefits of including them as critical habitat. 
We have also determined that the exclusion will not result in the 
extinction or endangerment of the species. The combined benefits of 
excluding these habitats are significant and include:
    (1) Furtherance of our Federal trust obligations, including 
consistency with our government-to-government responsibilities under 
Secretarial Order 3206 and Executive Order 13175.
    (2) Maintaining the effective working relationship that exists 
between the Service and CTWS. CTWS lands are already being managed to 
conserve bull trout. We believe that the bull trout will benefit from 
CTWS's voluntary management actions due to their long-standing and 
broad application to Tribal management decisions. Tribal lands are 
currently being managed on a voluntary basis in cooperation with the 
Service and others to achieve important conservation goals.
    (3) Continuing the productive cooperative scientific efforts 
between the Service and CTWS. Tribal cooperation and support is 
required to prevent extinction and promote the recovery of listed 
species. Cooperation and support is required to prevent the extinction 
and promote the recovery of the bull trout due to the need to implement 
proactive conservation actions. This need for CTWS cooperation is 
especially acute because three of the five Deschutes River basin 
populations exist on CTWS lands. Future conservation efforts will 
require the cooperation of CTWS. Exclusion of CTWS lands from this 
critical habitat designation will help us maintain and improve our 
partnership with the CTWS by formally recognizing the positive 
contributions of the CTWS to bull trout recovery, and by streamlining 
or reducing unnecessary regulatory oversight.
    (4) Recognition and continuation of the conservation benefits to 
the bull trout that come from the CTWS's existing conservation 
programs. The CTWS has cooperated with us to implement proactive 
conservation measures. They have cooperated with Federal and State 
agencies, and private organizations to implement voluntary conservation 
activities on their lands that have resulted in tangible conservation 
benefits.
    Given the cooperative relationship between CTWS and the Service, we 
believe the additional regulatory and educational benefits of including 
these lands as critical habitat are relatively small. The designation 
of critical habitat can serve to educate the public regarding the 
potential conservation value of an area, but this goal is already being 
accomplished through the identification of these areas in the 
management plans described above and through the CTWS's outreach 
efforts.
    We considered whether or not excluding these stream sections on 
CTWS lands would result in the extinction of bull trout within the 
foreseeable future. We have concluded that CTWS's voluntary 
conservation efforts will provide tangible conservation benefits that 
will reduce the likelihood of extinction and increase the likelihood 
for recovery. The exclusion of these areas will not increase the risk 
of endangerment or extinction to the bull trout, and may increase the 
likelihood that bull trout will recover by encouraging the CTWS to 
implement additional voluntary conservation measures.
    The above analysis concludes that excluding CTWS lands from 
critical habitat will have a net beneficial impact with little risk of 
negative impacts. Thus, excluding these lands will not cause extinction 
of the bull trout, and may improve the chances for its recovery on CTWS 
lands.
    CTWS Boundary Streams: Our analysis for the November 29, 2002 (67 
FR 71235) proposed designation of critical habitat found that 
management within Warm Springs Tribal Conditional Use Areas (CUAs) 
provides a sufficient level of protection and certainty of 
implementation such that special management considerations or 
protection is not required. We did not include 39 mi (63 km) of streams 
within the CUAs as part of our proposed designation of critical habitat 
because we did not believe that these stream segments met the 
definition of critical habitat. However, we made an exception to our 
general finding regarding CUAs on the CTWS Reservation's southern and 
southeastern boundaries, where the boundary is defined by the Metolius 
and Deschutes Rivers. Here, we found that there was some uncertainty as 
to the ability of the Tribal management plans to adequately protect the 
entire waterway up to the river's bankfull elevation on either shore. 
This is because the opposite shore is not part of the Reservation and 
is not managed as part of a CUA. Therefore, we included the Metolius 
and Deschutes Rivers from bank to bank along the Reservation boundary 
as part of our proposed designation of critical habitat.
    We have reassessed our proposed critical habitat designation along 
those streams which form the reservation's boundary. The 1855 Treaty 
between the CTWS and United States extends CTWS jurisdiction to the 
bankfull elevation on the opposite shore of the CTWS reservation 
boundary at Jefferson Creek and the Metolius River, and to the mid-
point of the Deschutes River where it forms the reservation boundary. 
Executive Order 13175 and the Secretarial Order 3206 instruct us to 
respect Tribal self-government and sovereignty when considering a 
critical habitat designation on Tribal lands. Thus, we must assess 
whether Tribal management plans for Tribal trust resources are adequate 
to achieve the necessary conservation purpose. While this discussion 
mentions Tribal ``lands,'' we have no reason to believe that this logic 
should not also extend to Tribal ``waters.''
    Based on the above information, we find that the appropriate 
boundary on which to base a determination regarding the extent of 
critical habitat is the CTWS reservation boundary, which is the 
bankfull elevation on the opposite shore of Jefferson Creek (G3) and 
the Metolius River (E1), and the mid-point of the lower Deschutes River 
(A1), and the mid-point of the three Deschutes River

[[Page 60038]]

reservoirs (A2, A3, A4), where they form the reservation boundary. We 
find that the management provided within Warm Springs Tribal CUAs 
provides a sufficient level of protection and certainty of 
implementation such that special management considerations or 
protection is not required on Jefferson Creek (G3) and the Metolius 
River (E1). Therefore, on the basis of section 4(b)(2) of the Act, we 
will not include Jefferson Creek (G3) and the Metolius River (E1) in 
our final designation of critical habitat. We will not include the 
lower Deschutes River (A1) and the three Deschutes River reservoirs 
(A2, A3, A4) to their mid-point in our final designation of critical 
habitat, because the benefits of exclusion outweigh the benefits of 
inclusion.
    Our reassessment of Tribal CUAs also found that our proposed 
designation of critical habitat had made several mapping errors. We 
included several streams which we had intended to exclude because they 
are within Tribal CUAs. These include the Whitewater River (F1), Parker 
Creek (G4), Bunchgrass Creek in the upper Warm Springs River (B1), and 
the upper Warm Springs River (B3) (B4) (B5). We are excluding these 
streams in this final rule.
    We have reviewed the overall effect of the exclusion of the above-
mentioned approved and draft HCPs, FFR, Tribal lands, and military 
installations for bull trout and their essential habitat. We have 
determined that the benefits of excluding these areas outweigh the 
benefits of including them in this critical habitat designation. 
Designation of critical habitat in these areas would most likely have a 
negative effect on the recovery and conservation of bull trout. The 
removal of these lands from critical habitat designation, as a result 
of these exclusions, will not lead to the species' extinction.

Stream Reaches Less Than 0.5 mi (0.8 km) in Length Under Private Land 
Ownership

    During the development of the final designation, we determined that 
there were an estimated 1,831 stream segments under private 
landownership that were less than 0.5 mi (0.8 km) in length, accounting 
for approximately 287 mi (462 km) reaches in the proposed designation. 
We evaluated these stream segments to confirm whether they were 
essential to the conservation of the bull trout and to determine if the 
reaches warranted exclusion from the final designation pursuant to 
section 4(b)(2) of the Act based on disproportionate regulatory impacts 
to the private landowners or preservation of conservation partnerships. 
On the basis of this evaluation, we determined that these specific 
stream reaches warranted exclusion from the final designation pursuant 
to section 4(b)(2) of Act. Our rational for this determination is 
discussed below.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is the 
requirement for consultation under section 7 of the Act for any 
activities having a Federal nexus that may adversely affect critical 
habitat. Consultation ensures that action entities avoid the 
destruction or adverse modification of critical habitat
    Another possible benefit to including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation value of an area. This may 
focus and contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species.
(2) Benefits of Exclusion
    One benefit would result from the requirement under section 7 of 
the Act that Federal agencies consult with us to ensure that any 
proposed actions do not destroy or adversely modify critical habitat. 
The economic analysis estimates that there have been over 200 formal 
consultations and thousands of informal consultations involving bull 
trout since its listing in 1998, and has involved numerous Federal 
action agencies. However, unless there are other types of Federal 
permitting or authorization within this area, private, and State-owned 
lands would not be affected.
    Regulatory and protective conservation measures are already 
anticipated from the future consultations regarding the activities 
described above. Consequently, we do not believe that designating 
critical habitat within these areas would provide significant 
additional regulatory benefits for bull trout, and in fact, may result 
in disproportionate regulatory and economic impacts to private land 
owners.
    Education/Information. In Sierra Club v. Fish and Wildlife Service, 
245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of Appeals stated 
that the identification of habitat essential to the conservation of the 
species can provide informational benefits to the public, State and 
local governments, scientific organizations, and Federal agencies. The 
court also noted that heightened public awareness of the plight of 
listed species and their habitats may facilitate conservation efforts. 
We agree with these findings; however, we believe that there would be 
little additional informational benefit gained from including these 
areas within designated critical habitat for bull trout because the 
final rule identifies all areas that are essential to the conservation 
of bull trout, regardless of whether all of these areas are included in 
the regulatory designation.
    Additionally, many partners at the Federal, State, local 
jurisdiction, private, and Tribal level have initiated active 
information programs. While this educational outcome is important for 
the conservation of bull trout, it is already being achieved through 
the existing management, education, and public outreach efforts carried 
out by landowners, conservation partners, and agencies. The plight of 
salmonids in the Pacific Northwest has been subject to a well-developed 
public outreach infrastructure that includes magazines, newsletters, 
well-publicized public events, annual festivals, school group 
activities, Web sites, and water-shed planning efforts. Consequently, 
few additional educational or informational benefits will be provided 
to bull trout if these areas are designated as critical habitat.
    Voluntary Partnerships for Conservation and Restoration. Current 
and ongoing conservation activities for salmon are compatible with 
those for bull trout such that reestablishment of bull trout in 
historic range and recovery throughout its range should not be 
precluded in the future. Existing conservation efforts include the 
application of Federal and State funds to salmonid recovery through the 
Salmon Recovery Funding Board. Other programs are also focusing on both 
active and passive restoration of habitats. Many partners are 
cooperating to conducting monitoring and research.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and in accordance with section 
4(b)(2) of the Act, we have analyzed the benefits of including the 
1,831 stream reaches that are less than 0.5 mi (0.8 km) in length that 
are under private landownership as part of the critical habitat 
designation. We have determined that the benefits of exclusion outweigh 
those of inclusion. Therefore, we have excluded the 1,831 stream 
reaches from this final designation of critical habitat for the bull 
trout pursuant to section 4(b)(2) of the Act. Further, we have 
determined that the exclusion of the 1,831 stream

[[Page 60039]]

reaches would not result in the extinction of the bull trout based on 
the benefits provided the species through existing management plans.
    Critical Habitat Designation. Within the geographical areas 
presently known to be occupied by the Klamath River and Columbia River 
populations, we are designating only areas currently or historically 
occupied and known to be essential to the conservation of bull trout. 
We have found those occupied areas designated as essential to the 
conservation of the species, but the Secretary has not found any areas 
currently unoccupied as essential to the conservation of bull trout (50 
CFR 424.12(e)). These areas designated already contain features and 
habitat characteristics that are necessary to sustain the species, and 
we do not foresee any changes to current practices in those areas. 
Rather, these designations designed to maintain existing practices and 
characteristics, and to review proposed changes where there is a 
Federal nexus in order to ensure that existing conditions remain 
unchanged with respect to their contribution to the conservation of 
bull trout. We are designating areas that currently have enough of the 
PCEs to provide essential life-cycle requisites of the species, as 
defined at 50 CFR 424.12(b). Moreover, certain areas with known 
occurrences of bull trout have not been designated as critical habitat. 
We did not designate critical habitat for some small scattered 
occurrences or habitats that are in highly fragmented areas, or no 
longer have hydrologic conditions that are sufficient to maintain bull 
trout habitat. We do not believe, based on the best available 
scientific information, that these areas are essential to the 
conservation of the species. Where information was unavailable, or we 
were uncertain as to whether those areas would, in fact, prove 
essential to the conservation of the species, we have not designated 
critical habitat. However, if future information proves that additional 
areas are necessary, we will revise our critical habitat designation.
    The designated critical habitat areas described below constitute 
our best assessment at this time of the stream reaches, lakes, and 
marshes that are essential to the conservation of the Klamath River and 
Columbia River bull trout populations. We are designating approximately 
1,748 mi (2,813 km) of streams and 61,235 ac (24,781 ha) of lakes and 
marshes for the Klamath River and the Columbia River populations of 
bull trout.
    The lateral extent of critical habitat, for each designated stream 
reach, is the width of the stream channel as defined by its ordinary 
high line. Critical habitat extends from the ordinary high-water line 
as defined by the Corps in 33 CFR 329.11 and shall be used to determine 
the lateral extent of critical habitat. Adjacent floodplains are not 
designated as critical habitat. However, it should be recognized that 
the quality of aquatic habitat within stream channels is intrinsically 
related to the character of the floodplains and associated riparian 
zones, and human activities that occur outside the river channels can 
have demonstrable effects on physical and biological features of the 
aquatic environment. The lateral extent of lakes and reservoirs is 
defined by the perimeter of the water body as mapped on standard 
1:24,000 scale maps (comparable to the scale of a 7.5 minute USGS 
Quadrangle topographic map).
    Critical habitat includes bull trout habitat across the species' 
range in Idaho, Montana, Oregon, and Washington. Lands adjacent to 
designated critical habitat are under private, State, Tribal, and 
Federal ownership. The areas we are designating as critical habitat, 
described below, constitute our best assessment of areas essential to 
the conservation of the Klamath and Columbia River populations of bull 
trout.
    In our proposed designation of critical habitat for the Klamath and 
Columbia River populations of the bull trout (November 29, 2002 (67 FR 
71235)), we proposed to designate critical habitat in 25 CHUs that 
corresponded to recovery units identified in the draft Recovery Plan. 
For additional information regarding stream segments and bodies of 
water proposed for designation, please refer to the proposed critical 
habitat rule. However, we have excluded many areas determined to be 
essential to the conservation of bull trout from this final designation 
pursuant to section 4(b)(2) of the Act. As such, only 13 of the 
original 25 units are being designated as critical habitat for the 
Klamath and Columbia River populations of the bull trout. Please refer 
to the Regulations Promulgated section of this final rule for the 
descriptions of areas designated as critical habitat.
    The approximate area designated as critical habitat for the Klamath 
and Columbia River populations of the bull trout by critical habitat 
unit are listed in Table 1

    Table 1.--Approximate Area Designated as Critical Habitat for the
  Klamath and Columbia River Populations of the Bull Trout by Critical
                              Habitat Unit
------------------------------------------------------------------------
                                                      Stream
               Critical Habitat Unit                  Miles      Acres
------------------------------------------------------------------------
Clark Fork River Basin............................        163  .........
Deschutes River Basin.............................         39  .........
Grande Ronde River Basin..........................        300  .........
Hells Canyon Complex..............................        125  .........
Hood River Basin..................................         30  .........
Imnaha-Snake River Basins.........................         87  .........
Klamath River Basin...............................         42     33,939
Umatilla-Walla Walla River Basins.................        241  .........
Coeur d'Alene Lake Basin..........................        119     27,296
Lower Columbia River Basin........................        121  .........
Middle Columbia River Basin.......................        269  .........
Northeast Washington River Basins.................        119  .........
Snake River Basin in Washington...................         94  .........
                                                   ------------
  Total...........................................      1,748     61,235
------------------------------------------------------------------------

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued

[[Page 60040]]

existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. If a 
species is listed or critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of such a species or to destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency (action agency) must 
enter into consultation with us. Through this consultation, the action 
agency ensures that the permitted actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law.
    We may issue a formal conference report, if requested by the 
Federal agency. Formal conference reports on proposed critical habitat 
contain a section 7(a)(2) finding that is prepared according to 50 CFR 
402.14, as if critical habitat were designated. We may adopt the formal 
conference report as a biological opinion when critical habitat is 
designated, if no substantial new information or changes in the action 
warrant changes to the content of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the bull trout or its 
designated critical habitat will require section 7 consultation. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the Corps under section 404 of the Clean 
Water Act, a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., FHA, Federal Aviation 
Administration, or Federal Emergency Management Agency (FEMA)), will 
also continue to be subject to compliance with section 7(a)(2) of the 
Act. Federal actions not affecting listed species or critical habitat, 
and actions which affect critical habitat but not a listed species, on 
non-Federal and private lands that are not federally funded, 
authorized, or permitted, do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to the bull trout. We note that such activities may also 
jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the conservation value 
of critical habitat to the listed species.
    All areas designated as critical habitat are determined to be 
essential to the conservation of the bull trout, but some areas are 
currently not known to be occupied. Although these specific areas are 
not known to be occupied, they are within the geographical area 
occupied by bull trout. Areas with low levels of bull trout occupancy, 
or where presence of the species is undetermined, were included when 
they provided connectivity between areas of high-quality habitat, 
access to an abundant food base, served as important migration 
corridors for fluvial or adfluvial fish, or were identified in the 
draft Recovery Plan as necessary for local population expansion or 
reestablishment in order to achieve recovery, so that delisting can 
occur. Restoration of reproducing bull trout populations to additional 
portions of their historical range would significantly reduce the 
likelihood of extinction due to natural or human-caused factors that 
might otherwise further reduce population size and distribution. Thus, 
an integral component of the draft Recovery Plan is the selective 
reestablishment of secure, self-sustaining populations in certain areas 
where the species has apparently, but not necessarily conclusively, 
been extirpated. However, we believe, and the economic analysis 
discussed below illustrates, that the designation of critical habitat 
is not likely to result in a significant regulatory burden above that 
already in place due to the presence of the listed species. Few 
additional consultations are likely to be conducted due to the 
designation of critical habitat.
    A number of Federal activities have the potential to destroy or 
adversely modify critical habitat for the bull trout. These activities 
may include land and water management actions of Federal agencies 
(e.g., Corps, BOR, USFS, BLM, Natural Resources Conservation Service, 
and Bureau of Indian Affairs) and related or similar actions of other 
Federally regulated projects (e.g., road and bridge construction 
activities by the FHA; dredge and fill projects, sand and gravel 
mining, and bank stabilization activities conducted or authorized by 
the Corps; and, National Pollutant Discharge Elimination System permits 
authorized by the EPA).
    Specifically, activities that may destroy or adversely modify 
critical habitat are those that alter the PCEs to an extent that the 
conservation value of critical habitat for the bull trout is 
appreciably reduced. Activities that, when carried out, funded, or 
authorized by a Federal agency, may affect critical habitat and 
therefore result in consultation for the bull trout include, but are 
not limited to:
    (1) Significant and detrimental altering of the minimum flow or the 
natural flow regime of any of the designated stream segments. Possible 
actions would include groundwater pumping, impoundment, water 
diversion, and hydropower generation. We note that such flow 
alterations

[[Page 60041]]

resulting from actions affecting tributaries of the designated stream 
reaches may also destroy or adversely modify critical habitat;
    (2) Alterations to the designated stream segments that could 
indirectly cause significant and detrimental effects to bull trout 
habitat. Possible actions include vegetation manipulation, timber 
harvest, road construction and maintenance, prescribed fire, livestock 
grazing, off-road vehicle use, powerline or pipeline construction and 
repair, mining, and urban and suburban development. Riparian vegetation 
profoundly influences instream habitat conditions by providing shade, 
organic matter, root strength, bank stability, and large woody debris 
inputs to streams. These characteristics influence water temperature, 
structure and physical attributes (useable habitat space, depth, width, 
channel roughness, cover complexity), and food supply (Gregory et al. 
1991; Sullivan et al. in Naiman et al. 2000). The importance of 
riparian vegetation and channel bank condition for providing rearing 
habitat for salmonids in general is well documented (e.g., Bossu 1954 
and Hunt 1969, cited in Beschta and Platts 1987; MBTSG 1998);
    (3) Significant and detrimental altering of the channel morphology 
of any of the designated stream segments. Possible actions would 
include channelization, impoundment, road and bridge construction, 
deprivation of substrate source, destruction and alteration of aquatic 
or riparian vegetation, reduction of available floodplain, removal of 
gravel or floodplain terrace materials, excessive sedimentation from 
mining, livestock grazing, road construction, timber harvest, off-road 
vehicle use, and other watershed and floodplain disturbances. We note 
that such actions in the upper watershed (beyond the riparian area) may 
also destroy or adversely modify critical habitat. For example, timber 
harvest activities and associated road construction in upland areas can 
lead to changes in channel morphology by altering sediment production, 
debris loading, and peak flows;
    (4) Significant and detrimental alterations to the water chemistry 
in any of the designated stream segments. Possible actions would 
include release of chemical or biological pollutants into the surface 
water or connected groundwater at a point source or by dispersed 
release (non-point);
    (5) Activities that are likely to result in the introduction, 
spread, or augmentation of nonnative aquatic species in any of the 
designated stream segments. Possible actions would include fish 
stocking for sport, aesthetics, biological control, or other purposes; 
use of live bait fish; aquaculture; construction and operation of 
canals; and interbasin water transfers; and
    (6) Activities that are likely to create significant instream 
barriers to bull trout movement. Possible actions would include water 
diversions, impoundments, and hydropower generation where effective 
fish passage facilities, mechanisms, or procedures are not provided.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor of the nearest Fish and Wildlife 
Ecological Services Office. Requests for copies of the regulations on 
listed wildlife, and inquiries about prohibitions and permits may be 
addressed to the Division of Endangered Species, U.S. Fish and Wildlife 
Service, 911 NE 11th Avenue, Portland, OR 97232-4181 (telephone 503/
231-6158; facsimile 503/231-6243).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on April 5, 2004 (69 FR 17634). We 
accepted comments on the draft analysis until May 5, 2004.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the bull trout. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. For example, regional management 
plans such as the NWFP, PACFISH, and INFISH provide significant 
protection to bull trout and its habitat while imposing significant 
costs within the region. Economic impacts that result from these types 
of protections are not included in the analysis as they are considered 
to be part of the regulatory and policy baseline.
    The analysis examines activities taking place both within and 
adjacent to the designation. It estimates impacts based on activities 
that are ``reasonably foreseeable'' including, but not limited to, 
activities that are currently authorized, permitted, or funded, or for 
which proposed plans are currently available to the public. 
Accordingly, the analysis bases estimates on activities that are likely 
to occur within a 10-year time frame, from when the proposed rule 
became available to the public (November 30, 2002, 67 FR 71235). The 
10-year time frame was chosen for the analysis because, as the time 
horizon for an economic analysis is expanded, the assumptions on which 
the projected number of projects and cost impacts associated with those 
projects becomes increasingly speculative. An exception to the 10-year 
analysis time horizon used in this analysis is for FERC licenses, which 
are renewed for up to 50 years. Accordingly, this analysis estimates 
the annualized costs of the expected impacts associated with section 7 
bull trout consultations involving FERC re-licensing over a 50-year 
time horizon.
    Costs can be expressed in terms of unit or river mile; both of 
these metrics are useful in describing economic impacts. On a cost per 
unit basis, the largest portion of forecast costs are expected to occur 
in Unit 4, the Willamette River Basin (18 percent). These costs are 
attributable to fish passage and temperature control projects and 
annual operating and maintenance and fish study costs at the

[[Page 60042]]

Corp's facilities in the Upper Willamette River System (Dexter, Lookout 
Point, Hills Creek, and Blue River Dams). The next most costly unit is 
Unit 16, the Salmon River Basin (12 percent). Because this is the 
largest unit in terms of river miles and proportion of USFS-managed 
land, and because future USFS activities are expected to generate 
approximately 70 percent of the consultation activity, this unit bears 
the greatest number of future bull trout-related consultations. 
Therefore, the administrative costs account for a large portion of the 
costs in this unit. Together, these two units account for 30 percent 
(approximately $8.2 million) of forecast costs. The next three most 
costly units, Hells Canyon complex (Unit 12), and the Clark Fork River 
(Unit 2), and Malheur River (Unit 13) Basins, each account for 8 
percent (a unit cost range of approximately $2.1 million to $2.3 
million) of forecast costs. In total, these five units account for 
almost 55 percent of forecast costs (approximately $14.8 million).
    Based on our analysis, we concluded that the designation of 
critical habitat would not result in a significant economic impact, and 
estimated the potential economic effects over a 10-year period would 
range from $200 to $260 million ($20 to $26 million per year) for bull 
trout. It is expected that Federal agencies will bear 70 percent of 
these costs. The total estimated costs associated with bull trout 
consultation is expected be $9.8 million annually, and total project 
modification costs are expected to range from $19.5 to $26.1 million 
annually. Although we do not find the economic costs to be significant, 
they were considered in balancing the benefits of including and 
excluding areas from critical habitat.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect bull trout. Federal agencies also must consult with us if their 
activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities. The Columbia River and Klamath River 
populations of bull trout were federally listed as threatened in June 
1998. In fiscal years 1998 through 2002, we conducted 152 formal 
section 7 consultations and several hundred informal consultations with 
other Federal agencies, mainly the USFS, to ensure that their actions 
will not jeopardize the continued existence of the bull trout.
    Our economic analysis found that timber management, grazing, dam 
and reservoir operations, stream habitat improvement and fisheries 
restoration, road construction and maintenance, and flood control 
projects are the primary

[[Page 60043]]

activities anticipated to take place within the area designated as 
critical habitat for the bull trout. To be conservative (i.e., more 
likely to overstate impacts than understate them), we assumed in our 
economic analysis that a unique business entity would undertake each of 
the projected consultations in a given year. Therefore, the number of 
businesses affected annually is equal to the total annual number of 
consultations (both formal and informal).
    Based on the economic analysis which looked at the critical habitat 
for bull trout, and including consultations on FERC relicensing of 
hydroelectric facilities, we estimated that in each year, there could 
be approximately 52 formal consultations involving bull trout, and it 
is expected that the USFS will constitute about 70 percent of the total 
number of formal consultations.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on bull trout and its 
habitat. First, if we conclude, in a biological opinion, that a 
proposed action is likely to jeopardize the continued existence of a 
species or adversely modify its critical habitat, we can offer 
``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
CHUs, the types of Federal actions or authorized activities that we 
have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Regulation of timber harvest, grazing, mining, and recreation 
by the USFS and BLM;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect bull trout. The kinds of 
actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
management of competing nonnative species, restoration of degraded 
habitat, and regular monitoring. These are based on our understanding 
of the needs of the species and the threats it faces, as described in 
the final listing rule and proposed critical habitat designation. These 
measures are not likely to result in a significant economic impact to 
project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area proposed. The 
most likely Federal involvement could include Corps permits, permits we 
may issue under section 10(a)(1)(B) of the Act, FHA funding for road 
improvements, hydropower licenses issued by FERC, and regulation of 
timber harvest, grazing, mining, and recreation by the USFS and BLM. A 
regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This final rule to 
designated critical habitat for the bull trout is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:

[[Page 60044]]

    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of critical habitat affects only Federal 
agency actions. The rule will not increase or decrease the current 
restrictions on private property concerning take of the bull trout. Due 
to current public knowledge of the species' protection, the prohibition 
against take of the species both within and outside of the designated 
areas, and the fact that critical habitat provides no incremental 
restrictions, we do not anticipate that property values will be 
affected by the critical habitat designation. While real estate market 
values may temporarily decline following designation, due to the 
perception that critical habitat designation may impose additional 
regulatory burdens on land use, we expect any such impacts to be short 
term. Additionally, critical habitat designation does not preclude 
development of HCPs and issuance of incidental take permits. Owners of 
areas that are included in the designated critical habitat will 
continue to have opportunity to use their property in ways consistent 
with the survival and conservation of the bull trout.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this critical habitat designation with appropriate 
State resource agencies in Washington, Oregon, Montana, and Idaho. The 
designation of critical habitat in areas currently occupied by the bull 
trout imposes no additional restrictions to those currently in place 
and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas essential to the conservation of 
the species are more clearly defined, and the primary constituent 
elements of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have designated critical 
habitat in accordance with the provisions of the Endangered Species Act 
of 1973, as amended. The final rule uses standard property descriptions 
and identifies the primary constituent elements within the designated 
areas to assist the public in understanding the habitat needs of the 
bull trout.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by NEPA in connection with 
designating critical habitat under the Endangered Species Act of 1973, 
as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

[[Page 60045]]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.
    During our development of this critical habitat designation for the 
Columbia River and Klamath River populations of bull trout, we 
evaluated Tribal lands to determine if they are essential to the 
conservation of the species. We have designated critical habitat for 
portions of the Klickitat River and South Fork Ahtanum Creek within the 
Yakama Reservation; the Umatilla River, Meacham Creek, and Squaw Creek 
within the Umatilla Reservation; Lake Coeur d'Alene within the Coeur 
d'Alene Reservation; the Pend Oreille River within the Kalispell 
Reservation; the Clearwater River, North Fork Clearwater River, Middle 
Fork Clearwater River, South Fork Clearwater River, Lolo Creek, Clear 
Creek, and Dworshak Reservoir within the Nez Perce Reservation; 
portions of Flathead Lake, the lower Flathead River, and the Jocko 
River watershed on the Flathead Reservation; and portions of the Jocko 
River watershed, Mission Creek, and Post Creek on the CSKT lands on the 
Flathead Reservation. A total of approximately 144 mi (232 km) of 
stream segments and approximately 735 ac (297 ha) of lake/reservoir 
habitat on Tribal lands is included in our critical habitat 
designation.
    Currently, the Yakama Nation, Coeur d'Alene, Kalispell, Nez Perce, 
CSKT, and Umatilla Tribes do not have resource management plans that 
provide protection or conservation for the bull trout and its habitat. 
The CSKT have a resource management plan addressing bull trout 
conservation that is being applied in the Jocko River watershed. 
However, as a result of our meetings with the Tribes on September 26, 
2002, we mutually agreed to include habitat within the Jocko River 
watershed in this rule designating critical habitat (notes of 
government-to-government meeting, September 26, 2002, in our 
administrative record files).
    We held government-to-government consultations with the 
Confederated Tribes of Warm Springs Reservation of Oregon (CTWS) to 
discuss their policy and position regarding the proposal. At these 
meetings, the CTWS provided us with documents pertaining to the Tribe's 
conservation activities which benefit the bull trout. These documents 
include their IRMP I and II, Water Code, Water Quality Standards, 
Implementation Plan for Water Quality, Water Resources Inventory, 
Streamside Management Plan, Field Guide to IRMP Standards and Best 
Management Practices. They also provided us with information on 
specific actions they have taken that benefit the bull trout.
    During the last several decades, the CTWS has implemented many 
conservation measures on Tribal lands that have benefited bull trout. 
For example, their Comprehensive Plan is a broad document that includes 
Tribal ordinances, the Tribe's IRMPs, and Tribal resolutions. 
Ordinances are Tribal laws that address issues such as water use, water 
quality, implementation of water quality standards, natural resource 
management, and range management. The IRMPs include several resource 
assessment processes such as Project Impact Statements and Project 
Assessments, Best Management Practices, and the use of measurable 
standards for project evaluations. Tribal resolutions address fishing 
and hunting seasons on Tribal lands. The CTWS has closed the mouth of 
the Metolius River to fishing since 1997 to provide sanctuary to adult 
bull trout which gather here before beginning their upstream migration 
to spawning streams. The CTWS also implemented a bag limit of one bull 
trout per day in Lake Billy Chinook. The Tribe's Resource Management 
Interdisciplinary Team is responsible for implementing the measures 
described above (Robert Brunoe, CTWS, pers. comm. 2003).
    Other conservation measures include habitat protection and 
restoration measures, as well as monitoring and research. The lower 6 
mi (10 km) of Shitike Creek are a migratory corridor for bull trout, 
and have been affected by channel simplification and a headworks 
facility. The headworks facility was removed as part of the Lower 
Shitike Creek Habitat Improvement Project, which was adopted by Tribal 
Council as resolution 7838. The project was implemented in two phases 
between 1988 and 1989, to improve fish passage and increase Tribal 
fisheries resources in Shitike Creek. Instream habitat structures were 
constructed in lower Shitike Creek between 1990 and 1994 to increase 
channel complexity. The CTWS has also constructed numerous riparian 
fencing projects along the mainstem Deschutes River, Shitike Creek, and 
Warm Springs River. The CTWS has made efforts to prevent removal of 
large wood from the Metolius River and has replaced culverts in 
Bunchgrass Creek to facilitate upstream fish passage.
    The CTWS has been actively involved in bull trout monitoring, 
research, and conservation efforts since 1998. This work has been 
focused mostly on the Warm Springs River, Shitike Creek, and the 
Whitewater River, which are on Tribal land and have bull trout 
populations. Tribal biologists have also performed research on bull 
trout in the mainstem Deschutes River. The CTWS collects data on 
juvenile bull trout abundance, has radio-tagged adult bull trout to 
track their seasonal migration (Brun 1999; Brun and Dodson 2000, 2001, 
2002), and they plan to continue these activities in the future. The 
BPA has provided funding to the CTWS to determine bull trout life 
history, genetics, and abundance in the lower Deschutes River. Tribal 
biologists were participants in the Recovery Unit Team for our 
Deschutes River basin draft Recovery Plan.
    The CTWS has written two IRMPs that address issues affecting bull 
trout. IRMP I pertains to forested lands, and was approved by Tribal 
Council on in 1992 as Tribal Ordinance 74. The Tribe's IRMP I discusses 
the history of Tribal forestry. During the 1940s and 1950s, the Tribes 
harvested ponderosa pine and took measures to protect forest health. 
Ponderosa pine forests were managed by selection cutting and 
shelterwood regeneration during the 1960s and 1970s. In the 1980s, they 
reduced harvest goals several times to increase protection for other 
resources. The IRMP provides management direction for some 398,466 ac 
(161,254 ha) of forested Tribal land. This includes a system of 
riparian buffers, leaving snags and live trees after harvest, erosion 
control, and transportation system management.
    IRMP II pertains to non-forested and rural lands, and was approved 
by Tribal Council in 1999 as Resolution 9723. This action amended 
Ordinance 74 to include IRMP II. The Tribal IRMP II addresses 15 
issues, including the location of Extensive Management Zones, 
management of woodlands outside of commercial forestry areas, uplands 
management, riparian management, fish screen criteria, transportation 
system management, and measures to protect, enhance, and reintroduce 
threatened or endangered species. It recommends average road density 
guidelines that reduce road density to less than 1.0 mi (1.6 km) per 
section in riparian and wetland zones. The IRMP II also recommends 
reducing the number of roads in non-forested

[[Page 60046]]

areas, and reducing impacts through road closures, culvert placement, 
and revegetation of cutbanks.
    The Tribe's Streamside Management plan was written in 1982 to help 
maintain Tribal water quality standards and improve water quality. 
These standards became Tribal law when the Tribal Council adopted the 
Water Code in 1968 as ordinance number 45. Tribal Council also adopted 
the Implementing Provisions of the Water Code as resolution number 
5772. It includes a stream classification system and management 
guidelines for forestry, fuel treatment, livestock, grazing, and 
transportation.
    The Water Resource Inventory and Water Management Plan for the Warm 
Springs Indian Reservation was authorized by Tribal Council on August 
3, 1967, as resolution number 2980. On April 17, 1968, Tribal Council 
passed ordinance number 45 to make the Water Management Plan the 
official Water Code of the Warm Springs Reservation. The plan 
determines what water resources exist on CTWS lands, the priority of 
present and future uses, and explains how to allocate and control water 
resource use. The plan assessed water needs for fish and biotic life, 
and stated that the volume of streamflow should never be reduced below 
that required for the maintenance of the biotic environment. It also 
established grazing capacity for the reservation, and made 
recommendations for grazing management. Though irrigation demands were 
minimal, the plan assessed Tribal demands for irrigation water.
    The CTWS also published in 1992 a Field Guide to INRMP Standards 
and Best Management Practices. This guide included best management 
practices for forest activities, riparian areas, threatened and 
endangered species, fire management, forage management, transportation 
systems, and aquatic resources.
    We are committed to maintaining a positive working relationship 
with all of the Tribes, and will work with them on developing resource 
management plans for Tribal lands that include conservation measures 
for bull trout.

References Cited

    A complete list of all references cited in this proposed rule is 
available on request from the U.S. Fish and Wildlife Service, Branch of 
Endangered Species Office, Portland, OR (see ADDRESSES section).

Authors

    The primary authors of this rule are the staff of the U.S. Fish and 
Wildlife Service.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. In Sec.  17.11(h) revise the entry for ``Trout, bull'' under 
``FISHES'' to read as follows:


17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                   Critical        Special
                                                         Historic range       endangered or        Status     When listed       habitat         rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             FISHES
 
                                                                      * * * * * * *
Trout, bull.....................  Salvelinus           U.S.A. (AK,         U.S.A, coterminous  T               637, 639E,  17.95(e)            17.44(w),
                                   confluentus.         Pacific NW into     (lower 48 states).                   659, 670                      17.44(x).
                                                        CA, ID, NV, MT),
                                                        Canada (NW
                                                        Territories).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95(e) by adding critical habitat for the bull trout 
(Salvelinus confluentus) in the same alphabetical order as this species 
occurs in Sec.  17.11 (h).


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) * * *

Bull Trout (Salvelinus confluentus)

    (1) Critical habitat is depicted for Ada, Adams, Benewah, Blaine, 
Boise, Bonner, Boundary, Butte, Camas, Canyon, Clearwater, Custer, 
Elmore, Gem, Idaho, Kootenai, Lemhi, Latah, Lewis, Nez Perce, Pend 
Oreille, Shoshone, Valley, and Washington Counties, ID; Deer Lodge, 
Flathead, Lake, Granite, Lewis and Clark, Lincoln, Mineral, Missoula, 
Payette, Powell, Ravalli, and Sanders Counties, MT; Baker, Clatsop, 
Columbia, Crook, Deschutes, Gilliam, Grant, Harney, Hood River, 
Jefferson, Klamath, Lake, Lane, Linn, Malheur, Morrow, Multnomah, 
Sherman, Umatilla, Union, Wallowa, Wasco, and Wheeler Counties, OR; and 
Asotin, Benton, Chelan, Columbia, Clark, Cowlitz, Douglas, Garfield, 
Grant, Franklin, Kittitas, Klickitat, Okanogan, Pacific, Pend Oreille, 
Skamania, Wahkiakum, Walla Walla, Whitman, and Yakima Counties, WA, on 
the maps and as described below.
    (2) Critical habitat includes the stream channels within the stream 
reaches indicated on the maps in this critical habitat designation, and 
includes a lateral extent from the bankfull elevation on one bank to 
the bankfull elevation on the opposite bank. Bankfull elevation is the 
level at which water begins to leave the channel and move into the 
floodplain and is reached at a discharge that generally has a 
recurrence interval of 1 to 2 years on the annual flood series. If 
bankfull elevation is not evident on either bank, the ordinary high-
water line shall be used to determine the lateral extent of critical 
habitat. The lateral extent of proposed lakes and reservoirs is defined 
by the perimeter of the water body as mapped on standard 1:24,000 scale 
topographic maps.

[[Page 60047]]

    (3) Within these areas, the PCEs for bull trout are those habitat 
components that are essential for the primary biological needs of 
foraging, reproducing, rearing of young, dispersal, genetic exchange, 
or sheltering. Existing human-constructed features and structures 
within the critical habitat boundary, such as buildings, powerlines, 
roads, railroads, urban development, and other paved areas will not 
contain one or more of the primary constituent elements; consequently, 
Federal actions limited to those areas would not trigger a consultation 
under section 7 of the Act unless they affect the species and/or 
primary constituent elements in adjacent critical habitat. The PCEs 
are:
    (i) Water temperatures ranging from 36 to 59 [deg]F (2 to 15 
[deg]C), with adequate thermal refugia available for temperatures at 
the upper end of this range. Specific temperatures within this range 
will vary depending on bull trout life history stage and form, 
geography, elevation, diurnal and seasonal variation, shade, such as 
that provided by riparian habitat, and local groundwater influence;
    (ii) Complex stream channels with features such as woody debris, 
side channels, pools, and undercut banks to provide a variety of 
depths, velocities, and instream structures;
    (iii) Substrates of sufficient amount, size, and composition to 
ensure success of egg and embryo overwinter survival, fry emergence, 
and young-of-the-year and juvenile survival. A minimal amount of fine 
substrate less than 0.25 in (0.63 cm) in diameter and minimal substrate 
embeddedness are characteristic of these conditions;
    (iv) A natural hydrograph, including peak, high, low, and base 
flows within historic ranges or, if regulated, a hydrograph that 
demonstrates the ability to support bull trout populations by 
minimizing daily and day-to-day fluctuations and minimizing departures 
from the natural cycle of flow levels corresponding with seasonal 
variation;
    (v) Springs, seeps, groundwater sources, and subsurface water 
connectivity to contribute to water quality and quantity;
    (vi) Migratory corridors with minimal physical, biological, or 
water quality impediments between spawning, rearing, overwintering, and 
foraging habitats, including intermittent or seasonal barriers induced 
by high water temperatures or low flows;
    (vii) An abundant food base including terrestrial organisms of 
riparian origin, aquatic macroinvertebrates, and forage fish;
    (viii) Few or no nonnative predatory, interbreeding, or competitive 
species present; and
    (ix) Permanent water of sufficient quantity and quality such that 
normal reproduction, growth and survival are not inhibited.
    (4) Critical habitat does not include non-Federal lands covered by 
an incidental take permit for the Columbia River population of bull 
trout issued under section 10(a)(1)(B) of the Act on or before October 
6, 2004, as long as such permit, or a conservation easement providing 
comparable conservation benefits, remains legally operative on such 
lands.
    (5) The following lands have been determined to be essential to the 
conservation of the Klamath River and Columbia River populations of 
bull trout, but have been excluded from designated critical habitat 
pursuant to section 4(b)(2) of the Act:
    (i) Non-Federal lands regulated under the Washington Forest 
Practices Act (RCW Ch. 76.09), as amended by ``Engrossed Substitute 
House Bill 2019'' (1999), and Montana Forested Trust Lands administered 
by the Montana Department of Natural Resources;
    (ii) All stream segments less than 0.5 mi (0.8 km) in length that 
are under private landownership.
    (6) Index map follows:
BILLING CODE 4310-55-P

[[Page 60048]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.000


[[Page 60049]]


    (7) Unit 1: Klamath River Basin: Critical habitat is designated on 
the streams listed below, but only for non-federal lands that have 
greater than \1/2\ mile of river frontage and are located between the 
associated endpoints for the stream. Lakes are designated in their 
entirety.
    (i) Upper Klamath Lake Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                                           Stream       Stream
                                                                 Stream       Stream    endpoint or  endpoint or
                Designated streams and lakes                    endpoint     endpoint   lake center  lake center
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Sun Creek...................................................       42.898     -122.096       42.735     -122.008
Agency Lake.................................................         Located at              42.541     -121.963
----------------------------------------------------------------------------------------------------------------

    (ii) Sycan Marsh Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                                          Streams       Stream
                                                                 Stream       Stream    endpoint or  endpoint or
                Designated streams and lakes                    endpoint     endpoint   lake center  lake center
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Coyote Creek................................................       42.893     -121.246       42.854     -121.158
Long Creek..................................................       42.933     -121.338       42.826     -121.209
Sycan Marsh.................................................          Located at             42.811     -121.113
----------------------------------------------------------------------------------------------------------------

    (iii) Upper Sprague River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Boulder Creek...............................................       42.495     -120.884       42.517     -120.951
Brownsworth Creek...........................................       42.469     -120.854       42.392     -120.913
Deming Creek................................................       42.486     -120.885       42.448     -120.953
Dixon Creek.................................................       42.532     -120.923       42.518     -120.937
Leonard Creek...............................................       42.465     -120.864       42.413     -120.867
North Fork Sprague River....................................       42.557     -120.839       42.497     -121.008
Sheepy Creek................................................       42.514     -120.890       42.534     -120.931
----------------------------------------------------------------------------------------------------------------

    (iv) Note: Map of the Klamath River Basin follows:

[[Page 60050]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.001


[[Page 60051]]


    (8) Unit 2: Clark Fork River Basin: Critical habitat is designated 
on the streams listed below, but only for non-federal lands that have 
greater than \1/2\ mile of river frontage and are located between the 
associated endpoints for the stream.
    (i) Lake Pend Oreille Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
East River..................................................       48.371     -116.819       48.353     -116.852
Gold Creek..................................................       47.954     -116.451       47.971     -116.454
Granite Creek...............................................       48.060     -116.329       48.087     -116.427
Grouse Creek................................................       48.483     -116.228       48.403     -116.477
Lightning Creek.............................................       48.353     -116.175       48.140     -116.191
Middle Fork East River......................................       48.362     -116.659       48.371     -116.819
North Fork Grouse Creek.....................................       48.502     -116.265       48.452     -116.373
Pack River..................................................       48.613     -116.634       48.320     -116.382
Priest River................................................       48.353     -116.852       48.178     -116.892
Tarlac Creek................................................       48.349     -116.717       48.393     -116.737
Trestle Creek...............................................       48.352     -116.234       48.283     -116.352
Twin Creek..................................................       48.063     -116.151       48.094     -116.129
Uleda Creek.................................................       48.339     -116.694       48.388     -116.707
----------------------------------------------------------------------------------------------------------------

    (ii) Priest Lakes and River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Cedar Creek.................................................       48.909     -116.885       48.880     -116.959
Granite Creek...............................................       48.700     -117.029       48.639     -116.863
Hughes Fork.................................................       48.946     -117.023       48.805     -116.923
Indian Creek................................................       48.634     -116.789       48.610     -116.836
Kalispell Creek.............................................       48.626     -117.134       48.567     -116.921
Lion Creek..................................................       48.725     -116.672       48.736     -116.831
North Fork Indian Creek.....................................       48.627     -116.691       48.634     -116.789
Soldier Creek...............................................       48.547     -116.698       48.503     -116.838
South Fork Granite Creek....................................       48.761     -117.147       48.700     -117.029
South Fork Indian Creek.....................................       48.624     -116.716       48.634     -116.789
South Fork Lion Creek.......................................       48.716     -116.718       48.743     -116.797
Trapper Creek...............................................       48.877     -116.846       48.796     -116.896
Two Mouth Creek.............................................       48.674     -116.676       48.688     -116.836
Upper Priest River..........................................       49.000     -116.936       48.799     -116.911
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Maps of the Lake Pend Oreille Subunit and the Priest 
Lakes and River Subunit of the Clark Fork River Basin follow:

[[Page 60052]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.002


[[Page 60053]]


[GRAPHIC] [TIFF OMITTED] TR06OC04.003


[[Page 60054]]


    (9) Unit 5: Hood River Basin: Critical habitat is designated on the 
streams listed below, but only for non-federal lands that have greater 
than \1/2\ mile of river frontage and are located between the 
associated endpoints for the stream.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
East Fork Hood River........................................       45.575     -121.626       45.605     -121.632
Hood River..................................................       45.605     -121.632       45.721     -121.506
Middle Fork Hood River......................................       45.463     -121.645       45.575     -121.626
West Fork Hood River........................................       45.456     -121.781       45.605     -121.632
----------------------------------------------------------------------------------------------------------------

    (i) Note: Map of the Hood River Basin follows:

[[Page 60055]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.004


[[Page 60056]]


    (10) Unit 6: Deschutes River Basin: Critical habitat is designated 
on the streams listed below, but only for non-federal lands that have 
greater than \1/2\ mile of river frontage and are located between the 
associated endpoints for the stream.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Deschutes River.............................................       44.373     -121.291       45.639     -120.914
Heising Spring..............................................       44.491     -121.651       44.494     -121.648
Jack Creek..................................................       44.472     -121.725       44.493     -121.647
Metolius River..............................................       44.434     -121.637       44.577     -121.619
----------------------------------------------------------------------------------------------------------------

    (i) Note: Map of the Deschutes River Basin follows:

[[Page 60057]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.005


[[Page 60058]]


    (11) Unit 9: Umatilla-Walla Walla River Basins: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.
    (i) Umatilla Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Meacham Creek...............................................       45.527     -118.290       45.702     -118.359
North Fork Meacham Creek....................................       45.575     -118.174       45.527     -118.290
Ryan Creek..................................................       45.694     -118.308       45.723     -118.314
Umatilla River..............................................       45.726     -118.187       45.923     -119.356
----------------------------------------------------------------------------------------------------------------

    (ii) Walla Walla Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Burnt Fork..................................................       46.087     -117.940       46.105     -117.985
Griffin Fork................................................       46.099     -117.913       46.121     -117.973
Lewis Creek.................................................       46.156     -117.771       46.191     -117.824
Mill Creek..................................................       46.011     -117.941       46.039     -118.478
North Fork Touchet River....................................       46.093     -117.864       46.302     -117.959
North Fork Walla Walla River................................       45.947     -117.990       45.899     -118.307
Paradise Creek..............................................       46.001     -117.990       46.004     -118.017
South Fork Touchet River....................................       46.105     -117.985       46.302     -117.959
South Fork Walla Walla River................................       45.966     -117.963       45.899     -118.307
Spangler Creek..............................................       46.099     -117.802       46.149     -117.806
Touchet River...............................................       46.302     -117.959       46.272     -118.174
UNNAMED--off Griffin Fork...................................       46.120     -117.922       46.113     -117.948
Walla Walla River...........................................       45.899     -118.307       46.039     -118.478
Wolf Fork Touchet River.....................................       46.075     -117.903       46.274     -117.895
Yellowhawk Creek............................................       46.077     -118.272       46.017     -118.400
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Map of the Umatilla-Walla Walla River Basins follows:

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[[Page 60060]]


    (12) Unit 10: Grande Ronde River Basin: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Bear Creek..................................................       45.323     -117.480       45.584     -117.540
Catherine Creek.............................................       45.120     -117.646       45.408     -117.930
Chicken Creek...............................................       45.024     -118.385       45.095     -118.394
Deer Creek..................................................       45.423     -117.587       45.620     -117.699
Fly Creek...................................................       45.121     -118.465       45.210     -118.394
Grande Ronde River..........................................       44.967     -118.254       46.080     -116.978
Hurricane Creek.............................................       45.274     -117.310       45.420     -117.301
Indian Creek................................................       45.337     -117.721       45.534     -117.919
Limber Jim Creek............................................       45.085     -118.229       45.089     -118.343
Little Bear Creek...........................................       45.428     -117.479       45.485     -117.554
Little Fly Creek............................................       45.110     -118.475       45.121     -118.465
Little Lookingglass Creek...................................       45.817     -117.901       45.750     -117.874
Lookingglass Creek..........................................       45.779     -118.078       45.707     -117.841
Lookout Creek...............................................       45.078     -118.540       45.110     -118.475
Lostine River...............................................       45.246     -117.374       45.552     -117.489
Minam River.................................................       45.148     -117.371       45.621     -117.720
Mottet Creek................................................       45.788     -117.942       45.767     -117.886
North Fork Catherine Creek..................................       45.225     -117.604       45.120     -117.646
Sheep Creek.................................................       45.016     -118.507       45.105     -118.381
South Fork Catherine Creek..................................       45.112     -117.513       45.120     -117.646
Wallowa River...............................................       45.420     -117.301       45.726     -117.784
Wenaha River................................................       45.951     -117.794       45.946     -117.450
----------------------------------------------------------------------------------------------------------------

    (i) Note: Map of the Grande Ronde River Basin follows:

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[[Page 60062]]


    (13) Unit 11: Imnaha-Snake River Basins: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.
    (i) Snake River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Granite Creek...............................................       45.263     -116.611       45.349     -116.654
----------------------------------------------------------------------------------------------------------------

    (ii) Imnaha River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Big Sheep Creek.............................................       45.178     -117.119       45.557     -116.834
Imnaha River................................................       45.113     -117.125       45.817     -116.764
Little Sheep Creek..........................................       45.232     -117.093       45.520     -116.859
McCully Creek...............................................       45.211     -117.140       45.311     -117.082
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Map of the Imnaha-Snake River Basins follows:

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[[Page 60064]]


    (14) Unit 12: Hells Canyon Complex: Critical habitat is designated 
on the streams listed below, but only for non-federal lands that have 
greater than \1/2\ mile of river frontage and are located between the 
associated endpoints for the stream.
    (i) Pine-Indian-Wildhorse Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Bear Creek..................................................       45.136     -116.524       44.959     -116.724
Clear Creek.................................................       45.043     -117.143       44.866     -117.029
Crooked River...............................................       44.817     -116.742       44.959     -116.724
East Pine Creek.............................................       45.046     -117.119       44.872     -117.020
Indian Creek................................................       45.150     -116.590       44.985     -116.828
Meadow Creek................................................       45.017     -117.171       44.990     -117.142
North Pine Creek............................................       45.079     -116.897       44.910     -116.948
Pine Creek..................................................       45.039     -117.215       44.974     -116.853
Wildhorse River.............................................       44.959     -116.724       44.851     -116.896
----------------------------------------------------------------------------------------------------------------

    (ii) Powder River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Anthony Creek...............................................       44.953     -118.220       45.013     -118.059
Big Muddy Creek.............................................       44.899     -118.131       44.940     -117.945
Little Cracker Creek........................................       44.840     -118.166       44.826     -118.196
Pine Creek..................................................       44.826     -118.078       44.849     -117.893
Rock Creek..................................................       44.856     -118.124       44.918     -117.929
Salmon Creek................................................       44.767     -118.019       44.888     -117.902
Wolf Creek..................................................       45.068     -118.193       45.044     -117.893
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Map of the Hells Canyon Complex follows:

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[[Page 60066]]


    (15) Unit 14: Coeur d'Alene Lake Basin: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream. Lakes are designated 
in their entirety.
    (i) Coeur d'Alene Lake Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                                           Stream       Stream
                                                                 Stream       Stream    endpoint or  endpoint or
                 Designated stream and lakes                    endpoint     endpoint       lake         lake
                                                                latitude    longitude      center       center
                                                                                          latitude    longitude
----------------------------------------------------------------------------------------------------------------
Coeur d'Alene Lake..........................................         Located at              47.548     -116.802
Coeur d'Alene River.........................................       47.558     -116.257       47.460     -116.798
Eagle Creek.................................................       47.652     -115.903       47.644     -115.921
North Fork Coeur d'Alene River..............................       48.006     -116.321       47.558     -116.257
Prichard Creek..............................................       47.644     -115.921       47.658     -115.976
Steamboat Creek.............................................       47.716     -116.199       47.662     -116.154
West Fork Eagle Creek.......................................       47.750     -115.803       47.652     -115.903
----------------------------------------------------------------------------------------------------------------

    (ii) St. Joe River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated Streams and Lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Beaver Creek................................................       47.064     -115.480       47.083     -115.355
Ruby Creek..................................................       46.961     -115.430       46.983     -115.367
St. Joe River...............................................       47.017     -115.078       47.393     -116.749
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Map of the Coeur d'Alene Lake Basin follows:

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[[Page 60068]]


    (16) Unit 19: Lower Columbia River Basin: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.
    (i) Lewis River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Lewis River (Lower).........................................       45.957     -122.555       45.850     -122.782
Lewis River (Upper).........................................       46.154     -121.882       46.066     -122.019
Pine Creek..................................................       46.142     -122.095       46.071     -122.016
UNNAMED--off Swift Creek Reservoir..........................       46.030     -122.024       46.043     -122.038
UNNAMED 1--off Pine Creek...................................       46.099     -122.068       46.092     -122.058
----------------------------------------------------------------------------------------------------------------

    (ii) White Salmon River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
White Salmon River..........................................       45.897     -121.503       45.723     -121.521
----------------------------------------------------------------------------------------------------------------

    (iii) Klickitat River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Clearwater Creek............................................       46.278  [minus:]121       46.276     -121.327
                                                                                  .330
Fish Lake Stream............................................       46.342     -121.368       46.275     -121.312
Klickitat River.............................................       46.255     -121.239       45.691     -121.293
Little Muddy Creek..........................................       46.278     -121.352       46.275     -121.312
Trappers Creek..............................................       46.290     -121.362       46.275     -121.330
Two Lakes Stream............................................       46.340     -121.384       46.342     -121.368
UNNAMED--off Fish Lake Stream...............................       46.323     -121.437       46.331     -121.359
West Fork Klickitat River...................................       46.275     -121.312       46.242     -121.246
----------------------------------------------------------------------------------------------------------------

    (iv) Note: Map of the Lower Columbia River Basin follows:

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[[Page 60070]]


    (17) Unit 20: Middle Columbia River Basin: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Ahtanum Creek...............................................       46.523     -120.853       46.529     -120.472
Box Canyon Creek............................................       47.377     -121.257       47.361     -121.243
Cle Elum River..............................................       47.589     -121.161       47.177     -120.990
Cooper River................................................       47.455     -121.213       47.391     -121.098
Gold Creek..................................................       47.475     -121.316       47.390     -121.382
Jack Creek..................................................       47.334     -120.742       47.319     -120.855
Jungle Creek................................................       47.333     -120.923       47.333     -120.855
Kachess River...............................................       47.429     -121.222       47.251     -121.200
M.F. Ahtanum Creek..........................................       46.507     -121.179       46.518     -121.014
Mineral Creek...............................................       47.424     -121.251       47.420     -121.240
Naches River................................................       46.989     -121.094       46.630     -120.514
North Fork Ahtanum Creek....................................       46.538     -121.211       46.523     -120.853
North Fork Teanaway River...................................       47.454     -120.965       47.251     -120.877
North Fork Tieton River.....................................       46.508     -121.435       46.635     -121.261
Rattlesnake Creek...........................................       46.760     -121.315       46.820     -120.929
Shellneck Creek.............................................       46.516     -121.187       46.531     -121.158
South Fork Ahtanum Creek....................................       46.454     -121.118       46.523     -120.853
South Fork Tieton River.....................................       46.496     -121.314       46.627     -121.132
Teanaway River..............................................       47.257     -120.897       47.167     -120.834
Tieton River................................................       46.656     -121.129       46.746     -120.786
Yakima River................................................       47.322     -121.339       46.529     -120.472
----------------------------------------------------------------------------------------------------------------

    (i) Note: Map of the Middle Columbia River Basin follows:

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[[Page 60072]]


    (18) Unit 22: Northeast Washington River Basins: Critical habitat 
is designated on the streams listed below, but only for non-federal 
lands that have greater than \1/2\ mile of river frontage and are 
located between the associated endpoints for the stream.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Calispell Creek.............................................       48.321     -117.307       48.344     -117.289
Cedar Creek.................................................       48.846     -117.521       48.742     -117.411
E. Fork Small Creek.........................................       48.371     -117.398       48.328     -117.354
East Branch LeClerc Creek...................................       48.673     -117.188       48.534     -117.282
Fourth of July Creek........................................       48.573     -117.200       48.556     -117.272
Indian Creek................................................       48.299     -117.151       48.243     -117.151
LeClerc Creek...............................................       48.534     -117.282       48.518     -117.283
Mill Creek..................................................       48.493     -117.239       48.489     -117.265
N.F. of S. Fork Tacoma Creek................................       48.436     -117.482       48.399     -117.361
Pend Oreille River..........................................       48.989     -117.348       48.178     -116.996
Ruby Creek..................................................       48.568     -117.509       48.556     -117.342
S. Fork Tacoma Creek........................................       48.432     -117.506       48.394     -117.323
Small Creek.................................................       48.337     -117.409       48.321     -117.307
Sullivan Creek..............................................       48.950     -117.070       48.865     -117.370
Tacoma Creek................................................       48.445     -117.507       48.392     -117.288
West Branch LeClerc Creek...................................       48.701     -117.211       48.534     -117.282
----------------------------------------------------------------------------------------------------------------

    (i) Note: Map of the Northeast Washington River Basins follows:

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[[Page 60074]]


    (19) Unit 23: Snake River Basin in Washington: Critical habitat is 
designated on the streams listed below, but only for non-federal lands 
that have greater than \1/2\ mile of river frontage and are located 
between the associated endpoints for the stream.
    (i) Tucannon River Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Cummings Creek..............................................       46.219     -117.595       46.333     -117.674
Hixon Creek.................................................       46.219     -117.651       46.246     -117.683
Little Tucannon River.......................................       46.181     -117.751       46.228     -117.721
Tucannon River..............................................       46.139     -117.520       46.558     -118.174
----------------------------------------------------------------------------------------------------------------

    (ii) Asotin Creek Subunit.

----------------------------------------------------------------------------------------------------------------
                                                                 Stream       Stream       Stream       Stream
                Designated streams and lakes                    endpoint     endpoint     endpoint     endpoint
                                                                latitude    longitude     latitude    longitude
----------------------------------------------------------------------------------------------------------------
Asotin Creek................................................       46.272     -117.291       46.345     -117.053
Charley Creek...............................................       46.210     -117.552       46.289     -117.278
George Creek................................................       46.118     -117.363       46.326     -117.105
N. Fork Asotin Creek........................................       46.196     -117.568       46.272     -117.291
----------------------------------------------------------------------------------------------------------------

    (iii) Note: Map Snake River Basin in Washington follows:

[[Page 60075]]

[GRAPHIC] [TIFF OMITTED] TR06OC04.014


[[Page 60076]]


* * * * *

    Dated: September 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22038 Filed 10-5-04; 8:45 am]
BILLING CODE 4310-55-C