56212 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AJ12; 1018–AU31 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Bull Trout 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the Klamath River, 

Columbia River, Jarbidge River, CoastalPuget Sound, and Saint Mary-Belly 

River populations of bull trout 

(Salvelinus confluentus) in the 

coterminous United States pursuant to 

the Endangered Species Act of 1973, as 

amended (Act). This final designation 

totals approximately 3,828 miles (mi) 

(6,161 kilometers (km) of streams, 

143,218 acres (ac) (57,958 hectares (ha) 

of lakes in Idaho, Montana, Oregon, and 

Washington, and 985 mi (1,585 km) of 

shoreline paralleling marine habitat in 

Washington. We solicited data and 

comments from the public on all aspects 

of the proposed rules, including data on 

economic and other impacts of the 

designations. 

DATES: This rule becomes effective 

October 26, 2005. 

ADDRESSES: Comments received, as well 

as supporting documentation used in 

the preparation of this final rule, will be 

available for public inspection, by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Branch of Endangered Species, 

911 N.E. 11th Avenue, Portland, OR 

97232. The final rule, economic 

analyses, and maps are also available 

via the Internet at http://pacific.fws.gov/ 

bulltrout/. 

FOR FURTHER INFORMATION CONTACT: 

Branch of Endangered Species (see 

ADDRESSES section), telephone, 

facsimile 503/231–6237. 

SUPPLEMENTARY INFORMATION: 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under ESA section 4(b)(2), 

there are significant limitations on the 

regulatory effect of designation under 

ESA section 7(a)(2). In brief, (1) 

designation provides additional 

protection to habitat only where there is 

a federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 470 species, or 37 

percent of the 1,264 listed species in the 

U.S. under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,264 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

originally proposed for designation, we 

evaluated the benefits of designation in 

light of Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service. 

In that case, the Ninth Circuit 

invalidated the Service’s regulation 

defining ‘‘destruction or adverse 

modification of critical habitat.’’ In 

response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

critical habitat designation does not use 

the invalidated regulation in our 

consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. The 

consequence of the critical habitat 

litigation activity is that limited listing 

funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. The 

accelerated schedules of court-ordered 

designations have left the Service with 

limited ability to provide for public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals, due to the risks associated 

with noncompliance with judicially 

imposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, and is very 

expensive, thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. The costs resulting from the 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56213 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). 

These costs, which are not required for 

many other conservation actions, 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

Bull trout (Salvelinus confluentus) are 

members of the char subgroup of the 

family Salmonidae and are native to 

waters of western North America. Bull 

trout range throughout the Columbia 

River and Snake River basins, extending 

east to headwater streams in Montana 

and Idaho, into Canada, and in the 

Klamath River basin of south-central 

Oregon. The distribution of populations, 

however, is scattered and patchy (Goetz 

1989; Rieman and McIntyre 1993; Zeller 

1992; Light et al. 1996; Quigley and 

Arbelbide 1997). 

Bull trout exhibit a number of lifehistory strategies. Stream-resident bull 

trout complete their entire life cycle in 

the tributary streams where they spawn 

and rear. Most bull trout are migratory, 

spawning in tributary streams where 

juvenile fish usually rear from 1 to 4 

years before migrating to either a larger 

river (fluvial) or lake (adfluvial) where 

they spend their adult life, returning to 

the tributary stream to spawn (Fraley 

and Shepard 1989). Resident and 

migratory forms may be found together, 

and either form can produce resident or 

migratory offspring (Rieman and 

McIntyre 1993). 

Bull trout, coastal cutthroat trout 

(Oncorhynchus clarki clarki), Pacific 

salmon (Oncorhynchus spp.), and some 

other species are commonly referred to 

as ‘‘anadromous’’ (fish that can migrate 

from saltwater to freshwater to 

reproduce). However, bull trout, coastal 

cutthroat trout, and some other species 

that enter the marine environment are 

more properly termed 

‘‘amphidromous.’’ Unlike strictly 

anadromous species, such as Pacific 

salmon, amphidromous species often 

return seasonally to fresh water as 

subadults, sometimes for several years, 

before returning to spawn (Wilson 

1997). The amphidromous life history 

form of bull trout is unique to the 

Coastal-Puget Sound population. For 

additional information on the biology of 

this life form, see our June 25, 2004, 

proposed critical habitat designation for 

the Jarbidge River, Coastal-Puget sound, 

and Saint Mary-Belly River populations 

of bull trout (69 FR 35767). 

For additional information on 

population ranges, biology, and habitat 

requirements of the bull trout, please 

refer to the following published rules: 

Proposed critical habitat designation for 

the Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River populations 

(69 FR 35767, June 25, 2004; as 

corrected by 69 FR 43058, July 19, 

2004); final critical habitat designation 

(69 FR 59995, October 6, 2004) and 

proposed critical habitat designation (67 

FR 71235, November 29, 2002) for the 

Klamath River and Columbia River 

populations; and listing rules for the 

Klamath River and Columbia River 

populations (63 FR 31647, June 10, 

1998), Jarbidge River population (64 FR 

17110, April 8, 1999), and for all 

populations (64 FR 58909, November 1, 

1999). 

Previous Federal Action 

Please refer to the November 29, 2002, 

proposed critical habitat designation for 

the Klamath River and Columbia River 

bull trout populations (67 FR 71235) for 

a detailed summary of Federal actions 

completed prior to publication of that 

proposal related to all bull trout 

populations. Please refer to the October 

6, 2004, final critical habitat designation 

for the Klamath River and Columbia 

River bull trout populations (69 FR 

59995) for a detailed summary of 

Federal actions completed between the 

proposed and final rules related to the 

Columbia and Klamath populations. 

Please refer to the June 25, 2004, 

proposed critical habitat designation for 

the Jarbidge, Coastal-Puget, and St. Mary 

Belly bull trout populations (69 FR 

35767) for a detailed summary of 

previous Federal actions completed 

prior to publication of that proposal 

related to those bull trout populations. 

On December 14, 2004, Alliance for 

the Wild Rockies et al. filed a complaint 

challenging the adequacy of the final 

critical habitat designation for the 

Klamath River and Columbia River bull 

trout populations. Our motion for 

partial voluntary remand was 

subsequently granted by the court with 

a final rule due by September 15, 2005. 

On May 25, 2005, we announced the 

opening of a public comment period on 

the proposed and final designations of 

critical habitat for the Klamath River 

and Columbia River bull trout 

populations (70 FR 29998). On June 6, 

2005, we published a notice clarifying 

the reopening of the comment period for 

the proposed and final designation of 

critical habitat for the Klamath River 

and Columbia River bull trout 

populations (70 FR 32732). The 

comment period was open until June 24, 

2005. 

On May 3, 2005, we published a 

notice of the availability of the draft 

economic analysis (DEA) and reopening 

of a 30-day comment period until June 

2, 2005 (70 FR 22835), for the Jarbidge 

River, Coastal-Puget Sound, and Saint 

Mary-belly River populations of bull 

trout. On June 27, 2005, Judge Jones 

extended the deadline for designating 

critical habitat for the Puget SoundCoastal, Jarbidge, and St. Mary-Belly 

River bull trout populations to 

September 15, 2005. This rule combines 

all of the listed populations of bull trout 

into one final critical habitat 

designation, and, in doing so, replaces 

the final critical habitat designation for 

the Klamath River and Columbia River 

populations of bull trout published in 

the Federal Register on October 6, 2004 

(69 FR 59995). 

Summary of Comments and 

Recommendations 

Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-belly River Bull Trout 

Populations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the Jarbidge River, 

Coastal-Puget Sound, and Saint Marybelly River populations of bull trout in 

the proposed rule published on June 25, 

2004 (69 FR 35767). We also contacted 

and invited the appropriate Federal, 

State, and local agencies, scientific 

organizations, and other interested 

parties to comment on the proposed 

rule. In addition, we held one public 

hearing on August 10, 2004, in 

Tumwater, Washington. 

During the comment period that 

opened on June 25, 2004, and closed on 

August 24, 2004, we received 34 

comment letters directly addressing the 

proposed critical habitat designation: 8 

from peer reviewers, 5 from Federal 

agencies, 3 from State agencies, 2 from 

County or city agencies, 6 from tribes, 

and 10 from organizations or 

individuals. 

During the reopened comment period 

(May 3, 2005 through June 2, 2005) (70 

FR 228350), we received 16 comment 

letters directly addressing the proposed 

critical habitat designation and DEA, 7 

of which were from organizations or 

individuals that submitted comments 

during the first comment period. Of the 

16 letters, we received 1 from a peer 

reviewer, 2 from Federal agencies, 3 

from State agencies, 3 from county or 

city agencies, 1 from a tribe, and 6 from 

organizations or individuals. 

56214 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Klamath River and Columbia River Bull 

Trout Populations 

Responses to public and peer review 

comments on proposed critical habitat 

for the Klamath River and Columbia 

River bull trout populations (67 FR 

71235, November 29, 2002) and the DEA 

(69 FR 17634, April 5, 2004) were 

published in the final designation of 

critical habitat (69 FR 59995, October 6, 

2004). The following summary responds 

only to those comments received during 

the reopened comment period period 

(May 3, 2005 through June 2, 2005) on 

the proposed and final rules for critical 

habitat designation for the Klamath 

River and Columbia River bull trout 

populations (70 FR 32732). 

During the reopened comment period, 

we received 33 letters addressing the 

final critical habitat designation and 

economic analysis (EA). Of these letters, 

we received 7 from Federal agencies, 4 

from State agencies, 10 from local 

entities, 1 from a tribe, and 11 from 

organizations or individuals. 

All comments of a similar nature were 

grouped together for all populations of 

bull trout and are addressed in the 

following summary. Substantive 

comments have been incorporated into 

the final rule as appropriate. 

Peer Review 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicit opinions from 

individuals who have expertise with the 

species and the geographic region where 

the species occurs and are familiar with 

conservation biology principles. The 

peer review process for the Klamath and 

Columbia River bull trout populations 

was discussed in the October 6, 2004, 

final critical habitat designation for the 

Klamath River and Columbia River bull 

trout populations (69 FR 59995). 

For the proposed critical habitat 

designation for Jarbidge River, CoastalPuget Sound, and Saint Mary-Belly 

River bull trout populations, we 

solicited independent expert review 

from eight individuals and all 

responded. The peer reviewers generally 

concurred with our methods, but also 

provided additional information, 

clarifications, and suggestions to 

improve the final critical habitat rule. 

Key elements of the reviewers’ critical 

comments related to the proposal’s 

scope and whether existing laws and 

regulations already protect some areas. 

Comments also addressed the need for 

greater prioritization of conservation 

issues influencing critical habitat 

designation, emphasis on quality habitat 

to support the migratory life form of bull 

trout, and an explanation of why some 

particular habitat, including areas of 

degraded habitat, are important to bull 

trout conservation. Additionally, the 

reviewers provided many technical 

comments on the appropriateness and 

bounds of specific geographic areas 

proposed as critical habitat. Peer 

reviewer comments are addressed in the 

following summary and incorporated 

into the final rule as appropriate. 

Peer Reviewer Comments for Jarbidge 

River, Coastal-Puget Sound, and Saint 

Mary-Belly River Bull Trout Populations 

When similar comments were also 

received from other reviewers, they are 

addressed in the comments here to 

avoid redundancy. 

(1) Comment: A peer reviewer 

requested clarification on the difference 

between critical habitat subunits 

(CHSUs) and core areas described in the 

bull trout draft recovery plans (draft 

Recovery Plans) (Service 2002, 2004). 

Our Response: In general, critical 

habitat subunits (CHSUs) correspond to 

core areas identified in the draft 

Recovery Plans (http://www.fws.gov/ 

pacific/bulltrout/). However, the 

Olympic Peninsula and Puget Sound 

Critical Habitat Units (Coastal-Puget 

Sound populations) also contain 

nearshore and freshwater habitats 

outside of natal river basins that are 

used by bull trout from more than one 

CHSU or core area. These habitats 

outside of core areas contain all the 

physical elements and features (primary 

constituent elements) critical to 

overwintering, migration, and subadult 

and adult foraging needs essential for 

the conservation of amphidromous 

(referring to the migratory behavior of 

fishes moving from fresh water to the 

sea and vice versa, not for breeding 

purposes but occurring regularly at 

some stage of the life cycle, such as 

feeding or overwintering) bull trout, 

which are unique to the Coastal-Puget 

Sound bull trout population. Within the 

core areas, certain areas identified by 

the Service as containing features 

essential for the conservation of the 

species, and in need of special 

management or protection, are 

designated critical habitat. Although 

core areas contribute to recovery and 

share primary constituent elements 

(PCEs) with critical habitat, only those 

portions of the core areas that meet the 

statutory definition of critical habitat 

and provide defined PCEs are 

considered for designation. 

(2) Comment: Since little of the Belly 

River is within the United States, this 

core area is not a biologically 

functioning unit that contains necessary 

features or PCEs. 

Our Response: A short reach of the 

North Fork Belly River, extending across 

the international border from Canada 

(downstream) into the United States 

(upstream), is the only known spawning 

reach for bull trout in the entire Belly 

River system. Thus, this portion of the 

North Fork Belly River in the United 

States is vital as spawning and rearing 

habitat for this bull trout population. It 

contains the PCEs necessary for the 

spawning and rearing life stages (i.e., 

permanently flowing, cold, upwelling 

groundwater with suitable spawning 

substrate and complex rearing habitat). 

The foraging, migration, and 

overwintering (FMO) habitat for this 

population is found downstream in 

Alberta, Canada. This downstream 

habitat includes the PCEs found in a 

migratory corridor, including deep 

holding pools and a forage base to 

support large adult bull trout. Adult fish 

from Canada travel into the United 

States portions of the watershed 

annually to spawn. Because of the 

important spawning areas in the United 

States, and the presence of necessary 

PCEs, we have determined that this area 

is essential to this important 

biologically functioning unit and is 

designated critical habitat. 

(3) Comment: Although it may be 

consistent with section 4(b)(2) of the Act 

to exclude Habitat Conservation Plans 

(HCPs) and the areas covered by the 

Washington Forest Practice Rules, there 

are no provisions in the rule to include 

these excluded lands within designated 

critical habitat if land-use practices or 

ownership changes. 

Our Response: Although the specific 

provisions vary for each plan, HCPs 

typically include language that 

addresses change in circumstances or 

ownership. For example the draft 

Implementing Agreement for the 

Washington Department of Natural 

Resources, Forest Practices HCP states 

that any changes in the permits must be 

adopted through the procedures 

specified in the Act, other applicable 

Federal laws, and applicable regulations 

and if the Service determines that such 

changes materially impair the 

conservation plan contained in the HCP, 

they will notify the State and, if the 

matter is not otherwise resolved, may 

suspend or terminate the HCP, permits 

and the Implementing Agreement. If 

land ownership changes and a new 

landowner does not agree to the terms 

and conditions of the original permit, 

the original permittee must work with 

the Services to determine whether, and 

under what circumstances, the permit 

can be terminated. In order to terminate 

a permit, the Services must determine if 

the minimization and mitigation 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56215 

measures that were conducted up to that 

point were commensurate with the 

amount of incidental take that occurred 

during the term of the permit. The 

Services will always require 

implementation of any outstanding 

minimization and mitigation measures 

before a permit is terminated. 

(4) Comment: Freshwater foraging, 

migratory, and overwintering habitats 

outside core areas are not clearly 

essential to bull trout nor well 

documented. Therefore, these areas 

should not be included in the critical 

habitat designation. 

Our Response: Some habitats outside 

of core areas contain all the physical 

elements to meet critical overwintering, 

migration, and subadult and adult 

foraging needs that are essential for the 

conservation of amphidromous bull 

trout. Recent tagging studies on the 

Olympic Peninsula and in Puget Sound 

have tracked the complex migrations of 

amphidromous bull trout from their 

core areas to marine and freshwater 

foraging, migratory, and overwintering 

habitats outside of their natal core areas 

(Brenkman and Corbett 2003, 2005; 

Goetz et al. 2004). Amphidromous bull 

trout have shown site fidelity to, and 

extensive use of, freshwater and marine 

habitat areas, demonstrating these are 

necessary in completing their life 

history and therefore, are included as 

critical habitat. 

(5) Comment: Reviewers 

acknowledged the exclusions the 

Service had proposed for HCPs and the 

Washington Forest Practice Rules and 

recommended considering other types 

of management plans and actions for 

possible exclusions. They indicated that 

designation of critical habitat would be 

a duplication of effort since Federal 

actions, such as allotment management 

plans, already undergo formal 

consultation. One reviewer wanted to 

know why waterbodies within some 

Federal lands, such as wilderness, 

parks, and forests, were not excluded. 

Another reviewer asked why multispecies conservation plans under 

development by local watershed 

organizations in Washington were not 

excluded. Several reviewers suggested 

lands covered by Washington State’s 

watershed planning process (subbasin 

plans), and lands in Olympic and North 

Cascades National Parks are currently 

not in need of special management. 

Our Response: We believe some 

existing management plans are 

appropriate for exclusion because the 

benefits of exclusion outweigh the 

benefits of inclusion (see section 

‘‘Section 3(5)(A) and Exclusions Under 

Section 4(b)(2)’’). Landownership is not 

a factor in determining which areas 

contain PCEs and meet the definition of 

critical habitat. Some waterbodies on 

Federal lands meet the definition of 

critical habitat. While we have done so 

in the past, in this rulemaking we did 

not consider any pending HCPs for 

exclusion, primarily because none of the 

pending HCPs were at a point we could 

do so without prejudging the outcome of 

the ongoing HCP process and because 

we expect further changes to the 

developing HCPs. 

(6) Comment: One reviewer suggested 

that Corps of Engineers 401 and 404 

permits should be excluded from 

critical habitat. 

Our Response: Corps of Engineers 401 

and 404 or other instream permits are 

issued to ensure that applicants avoid 

and minimize impacts to streams. Any 

mitigation that may be required by a 

permit is to avoid or minimize 

degradation and to mitigate for 

unavoidable impacts. 

(7) Comment: Are small stream 

habitats in the Saint Mary-Belly River 

headwaters in the critical habitat 

designation contributing to rearing and 

foraging of bull trout and are they 

adequately considered? 

Our Response: Because of the steep 

topography, flashy stream flow and very 

active erosion and depositional 

processes of the Saint Mary-Belly River 

headwaters, very few smaller tributary 

streams support adequate year-round 

stream flow to allow bull trout passage; 

in addition, many have natural barriers. 

Most of those tributary streams have 

been surveyed, and all those known to 

support bull trout were considered and 

included in the final critical habitat 

designation. 

(8) Comment: It would help to 

understand what the threats to bull trout 

are and how threats relate to critical 

habitat designation. 

Our Response: For details of the 

threats that were the basis for the bull 

trout listing, refer to the final listing 

rules for the Klamath River and 

Columbia River population (63 FR 

31647), Jarbidge River population (64 

FR 17110), and Coastal-Puget Sound 

and Saint Mary-Belly River populations 

(64 FR 58910). Critical habitat identifies 

those areas that contain the physical 

and biological features (PCEs) that are 

essential to the conservation of the 

species, and those areas that may 

require special management 

considerations or protections. 

Public Comments Related to Bull Trout 

Biology and Habitat; Process of 

Designating Critical Habitat for the Bull 

Trout 

(9) Comment: The proposed critical 

habitat for the bull trout fails to account 

for the importance of habitat 

connectivity. 

Our Response: The draft Recovery 

Plans, critical habitat proposal, and the 

listing rules for bull trout, citing 

relevant scientific literature, describe 

the species’ conservation needs. In fact, 

migratory corridors with minimal 

physical, biological, or water quality 

impediments are identified as a PCE in 

the critical habitat rule. Our proposed 

designation connected essential 

occupied waterbodies having PCEs to 

one another to maintain connectivity 

within and among habitat types 

(spawning and rearing, freshwater and 

marine foraging, migratory, and 

overwintering habitats). In the final 

designation, we exclude some critical 

habitat segments based on a careful 

balancing of the benefits of inclusion 

versus the benefits of exclusion. 

Exclusion of waterbodies from 

designated critical habitat does not 

negate or diminish their importance for 

bull trout conservation, and in most 

cases does not affect the protections 

available to that habitat through the Act. 

(10) Comment: The status of bull trout 

strongly indicates that critical habitat 

designation is warranted for all 

waterbodies occupied by bull trout. 

Our Response: Although all occupied 

habitats are important to the species, not 

all meet the definition of critical habitat. 

Examples of exclusions include reaches 

where bull trout are sometimes 

entrained and lost to the population or 

highly fragmented habitats within core 

areas. We believe that we have 

identified habitat that contains features 

essential to the bull trout’s conservation. 

In the final designation, we exclude 

some critical habitat segments based on 

a careful balancing of the benefits of 

inclusion versus the benefits of 

exclusion. Exclusion of waterbodies 

from designated critical habitat does not 

negate or diminish their importance for 

bull trout conservation. 

(11) Comment: The Service should 

describe the relationship between the 

reduced distribution of salmon and 

steelhead (Oncorhynchus sp.) and the 

reduced distribution and abundance of 

bull trout. 

Our Response: Our recovery plan and 

administrative record for critical habitat 

designation, including public comment 

and peer review, includes information 

about the relationship between bull 

trout and their prey species, such as 

salmon and steelhead. Such information 

was employed to support the biological 

basis of the proposal, but practical 

considerations limited the amount of 

such information that could be 

presented in the proposed critical 

habitat rule. Refer to the previously 

56216 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

published bull trout critical habitat 

designations and listings (63 FR 31647, 

64 FR 17109, 64 FR 58910, 68 FR 6863, 

69 FR 35767, 69 FR 59995) for 

additional information. 

(12) Comment: The Service’s position 

equating adverse modification with 

jeopardy is not supported by the Act or 

case law. The Service needs to define 

adverse modification. 

Our Response: In response to recent 

court decisions, we are no longer using 

the regulatory definition of adverse 

modification. Instead, we are following 

guidance from the Director, embodied in 

a December 9, 2004 memorandum, 

which uses the statute as the basis for 

our regulatory standard when 

conducting section 7 consultations on 

critical habitat. We do note in this rule 

that due to the method of analyzing 

jeopardy specific to bull trout, that 

jeopardy and adverse modification 

rarely diverge. However, that 

circumstance is due to the specifics of 

our bull trout analyses rather than an 

interpretation of regulations or law. 

(13) Comment: The Service proposed 

to designate streams as critical habitat 

that do not currently support bull trout 

or have little evidence of bull trout use, 

with no justification for such 

designation as to why these stream 

reaches are essential to the conservation 

of the species, as required by the Act. 

Our Response: All streams proposed 

for critical habitat designation within 

the Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River bull trout 

population segments were known to be 

occupied. We considered streams 

occupied if bull trout were documented 

there within the last 20 years (our 2004 

critical habitat designation provides a 

full explanation for the basis of this 

standard). Areas of unknown occupancy 

and unoccupied habitats were included 

in the proposed designation for the 

Klamath River and Columbia River 

populations. However, in this final rule 

no unoccupied habitat is being 

designated. The bull trout critical 

habitat designation is based on the best 

available scientific information. In 

addition, the proposed designations 

were peer-reviewed by individuals who 

have expertise with bull trout, the 

geographic region where bull trout 

occur, and the principles of 

conservation biology. Justifications for 

all critical habitat units are available for 

public review (see ADDRESSES section 

above). 

(14) Comment: Critical habitat needs 

to be designated in unoccupied areas 

because these areas are important for reintroduction of extirpated populations 

or expansion of existing populations 

and are the most important areas in 

need of protection. 

Our Response: We have limited the 

critical habitat designation to areas of 

known occupancy that have features 

essential to the conservation of the 

species because we did not have 

sufficient data for the Secretary to make 

a determination that specific 

unoccupied areas were essential to the 

bull trout’s conservation. We based this 

designation on the best scientific and 

commercial information available. Many 

streams not included in this designation 

can and will contribute to bull trout 

recovery, but do not meet the definition 

of critical habitat. 

(15) Comment: The Service neglected 

or violated a variety of regulatory or 

other requirements including NEPA, the 

Data Quality Act, Regulatory Flexibility 

Act, and other laws, regulations, and 

orders. 

Our Response: We are not required to 

prepare an environmental assessment or 

an environmental impact statement, as 

defined under the authority of NEPA, in 

connection with regulations adopted 

pursuant to section 4(a) of the Act, and 

in States under the jurisdiction of the 

Ninth Circuit Court. A notice outlining 

our reason for this determination was 

published in the Federal Register on 

October 25, 1983 (48 FR 49244). This 

position has been upheld by the Ninth 

Circuit Court of Appeals in Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995). We have addressed all the 

relevant required regulatory 

determinations in this rule (see 

Required Determinations section 

below). Our Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific and 

commercial data available. They require 

our biologists, to the extent consistent 

with the Act and with the use of the best 

scientific and commercial data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. All information in this critical 

habitat rule is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. Both 

public and peer review of the proposed 

rule further ensures that the final 

designation will meet this standard. 

(16) Comment: Stream temperature is 

a limiting factor for some populations, 

and bankfull designation may not 

encompass sufficient shading to 

maintain water temperatures for bull 

trout. 

Our Response: We agree that 

temperature can be a limiting factor for 

some populations which is why it is 

considered a PCE. Riparian vegetation 

influences instream habitat conditions 

by providing shade, organic matter, root 

strength, bank stability, and large woody 

debris inputs to streams. Stream width 

and depth ratios also influence stream 

temperatures. Even though riparian 

vegetation may not be within a stream’s 

bankfull width, and therefore not 

included in the critical habitat 

designation, effects to these areas are 

likely to be evaluated during the 

consultation process due to the indirect 

effect riparian and upland actions may 

have on water temperatures, which is 

one of the identified PCEs for bull trout 

critical habitat. 

(17) Comment: The Service failed to 

consult with Native American tribes in 

developing the proposed rule and 

economic analysis. 

Our Response: We have been, and 

will continue, to consult with those 

tribes affected by the critical habitat 

designation. We contacted Native 

American tribes where proposed bull 

trout critical habitat occurred on, or 

adjacent to, tribal lands. We discussed 

the critical habitat proposal with 

representatives of the tribes that 

responded. We will continue to work 

with the tribes on a government-togovernment basis for the conservation of 

bull trout. 

(18) Comment: A single sighting of a 

native char (bull trout) in a water body 

is not sufficient reason to designate the 

water as critical habitat. 

Our Response: We have not 

designated any unoccupied areas as 

critical habitat. However, we included 

any area with documented occupancy 

(even a single sighting) within the last 

20 years, if the area has PCEs essential 

to the species’ conservation and will 

support the essential life history needs 

of bull trout. The published survey 

protocol for juvenile and resident bull 

trout was not developed until 2002, and 

no similar survey protocol for adult 

migratory bull trout has been developed. 

Many bull trout sightings are the 

incidental result of surveys for other 

species (salmon). In addition, bull trout 

are difficult to find, are migratory, and 

often exhibit a patchy distribution. 

Therefore, an incidental sighting of one 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56217 

individual or a few bull trout is often 

the only available information until a 

targeted survey for bull trout is 

conducted. With the increasing 

availability of radio telemetry data, we 

are finding that the extent or range of 

bull trout occupied habitat is often 

greater than was previously known 

based on incidental observations. 

(19) Comment: Specific numerical 

habitat standards for critical habitat 

must be included along with critical 

habitat designations. 

Our Response: There is no 

requirement under the Act that PCEs 

have specific numerical standards, nor 

would it necessarily promote effective 

conservation to determine numerical 

standards for all PCEs given the various 

life histories expressed by bull trout 

throughout their range. However, we 

recognize the value of observable or 

measurable standards. The PCEs include 

numerical standards when appropriate 

(e.g., to bracket a range of acceptable 

temperatures) and feasible, such as for 

temperature and substrate 

embeddedness. 

(20) Comment: The Service should 

designate critical habitat for a number of 

‘‘source water’’ streams. These are 

predominantly steep, small streams not 

occupied by bull trout, but are key 

sources of cold, clean water that feed 

bull trout habitat downstream. 

Our Response: Streams that contribute 

necessary habitat elements such as cold, 

clean water downstream to designated 

streams are not included in this 

designation unless bull trout presence 

has been documented. Our 

determination of bull trout critical 

habitat is limited to areas that bull trout 

rely on for some portion of their life 

cycle. Although not designated as 

critical habitat, we recognize that these 

‘‘source waters’’ or non-fish-bearing 

streams influence the character of 

designated stream segments located 

downstream. Where section 7 

consultation is required, impacts to 

these ‘‘source water’’ streams that may 

affect bull trout critical habitat will be 

evaluated (see Critical Habitat 

Designation section below). 

(21) Comment: The Service failed to 

include areas of historical bull trout 

occupancy and the rules do not provide 

adequate justification for their 

exclusion. 

Our Response: The critical habitat 

proposals did not reflect all habitat 

areas bull trout are known to occupy or 

occupied historically, in the 

coterminous United States. Rather, it 

reflects those areas that contain the 

necessary features that are essential for 

the conservation of the species and are 

currently occupied by the species. 

Historical records of bull trout 

distribution may be anecdotal and 

incomplete relative to current bull trout 

distribution and thus, would not 

provide a sufficient basis for this critical 

habitat rule. We believe by defining as 

occupied those segments with at least 

one documented sighting in the last 20 

years we have used a sufficiently broad 

measure to ensure the most likely 

occupied areas are included. This 

standard takes into account the fact that 

bull trout are abnormally difficult to 

find as they are primarily nocturnal 

feeders. 

In our proposed critical habitat 

designation for the Jarbidge River, 

Coastal-Puget Sound, and Saint MaryBelly River population segments, we 

specifically solicited additional 

information on areas of habitat with 

evidence of occupancy of which we 

were unaware. These waterbodies had 

been identified by the bull trout 

recovery teams as key recovery habitat 

in the draft recovery plan, however, at 

that time they had no specific 

information documenting bull trout 

occupancy. Since the proposal, we have 

received additional information on bull 

trout occupancy for several tributaries 

in the Nooksack River (Fossil Creek), 

South Fork Skykomish River (West Fork 

Foss River), and Ross Lake (North Fork 

Canyon Creek) systems, which have 

been excluded from the final 

designation (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(22) Comment: The contribution of 

tribal lands to bull trout habitat 

conservation is unclear and these lands 

are not essential to bull trout recovery. 

Our Response: The scientific 

information cited in the draft Recovery 

Plans provided the basis for our 

evaluation of habitats that contain the 

features essential to bull trout 

conservation. Many tribal lands include 

portions of mainstem rivers that provide 

essential migratory corridors and 

overwintering habitat for fluvial and 

amphidromous bull trout. Waterbodies 

on tribal lands were included in the 

critical habitat designation only if they 

were found to be currently occupied, 

contain PCEs that are essential for bull 

trout conservation, and were not 

adequately covered by management 

plans (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(23) Comment: The proposed rule 

fails to mention water rights. 

Our Response: The proposed and final 

rules do not specifically address water 

rights. However, examples of activities 

that may potentially affect aquatic bull 

trout critical habitat by altering the 

PCEs, such as changes in water use or 

water rights were provided in the 

proposed and final rules. 

(24) Comment: The proposal to 

designate critical habitat in the Saint 

Mary-Belly Rivers focuses on potential 

impacts of irrigation activities instead of 

potential adverse effects of recreational 

fishing on bull trout. 

Our Response: Under the 4(d) rule 

that was included in the final rule 

which listed bull trout, take of bull trout 

in accordance with state, National Park 

Service, and Native American Tribal 

permitted fishing activities is allowed 

(64 FR 58910). Irrigation activities are 

often linked to Federal agencies, such as 

Bureau of Reclamation (BOR), for the 

allocation, delivery or storage of the 

water. Individual anglers, however, are 

only required to avoid take of listed bull 

trout by following fishing regulations. 

(25) Comment: There is no evidence 

to specifically identify when marine or 

estuarine areas are being used by bull 

trout. 

Our Response: Recent radio and 

acoustic telemetry studies in Grays 

Harbor, Puget Sound, and the 

Snohomish, Dungeness, and Hoh Rivers 

have provided new information on bull 

trout use of marine and estuarine areas 

and the importance of this habitat for 

bull trout recovery (Brenkman and 

Corbett 2003, 2005; Jeanes et al. 2003; 

Goetz et al. 2004). These studies 

documented that marine forage fish 

such as herring (Clupea spp.), surf smelt 

(Hypomesus pretiosus), sand lance 

(Ammodytes hexapterus), and shiner 

surfperch (Cymatogaster aggregate) are 

bull trout prey. In addition, marine 

waters provide essential migratory 

corridors for amphidromous bull trout 

moving from their natal river basin to 

other rivers or streams as they seek 

suitable foraging or overwintering 

habitat. We now know that large 

numbers of bull trout overwinter in 

streams that do not contain spawning 

and rearing habitat and are only 

accessible by migration through marine 

waters. Therefore, we have included 

these marine nearshore areas that 

contain features essential to bull trout 

conservation in this final designation. 

(26) Comment: Adequate foraging 

habitat has not been included in the 

designation. 

Our Response: We believe this 

designation is based on the best 

scientific and commercial information 

available. It includes only occupied 

habitat, and contains those features that 

are essential to the conservation of bull 

trout populations. We recognize that 

bull trout may forage in areas where 

their presence has not been detected 

and these areas may provide access to 

56218 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

abundant forage. However, because we 

were unable to identify all areas that are 

used, we have limited designated 

critical habitat to areas of known 

occupancy having the necessary PCEs 

and which were determined to be 

essential for recovery. However, because 

of the relatively broad definition of 

‘occupied’ used in this rule, it is likely 

that forage habitat is included as well as 

breeding habitat and migratory 

corridors. 

(27) Comment: Floodplains are not 

mentioned in the proposed designation. 

Does this mean they are not included? 

Our Response: We have only included 

occupied aquatic habitats that contain 

the features essential to the conservation 

of bull trout within the designation. 

Federal activities occurring in 

floodplains may affect designated 

critical habitat, and as such would be 

reviewed in section 7 consultation. 

(28) Comment: Comments provided in 

the previous rule for the Klamath River 

and Columbia River populations were 

not addressed. 

Our Response: All substantive issues 

raised in comments received during 

public comment period for the proposed 

rule received a response. The response 

was to either accept or incorporate the 

issue raised, or to provide a narrative 

response as to why we did not do so. 

(29) Comment: Existing regulatory 

mechanisms are inadequate and 

continuing threats to bull trout and its 

habitat from a variety of land and water 

management activities warrant the 

designation of all habitat essential to 

bull trout survival and recovery. 

Our Response: We believe this 

designation is based on the best 

scientific and commercial information 

available, includes only occupied 

habitat, and contains those areas that 

contain the features essential to the 

conservation of bull trout. Some areas 

we identified as essential to the 

conservation of bull trout are not 

designated in the final rule. This is due 

to the areas not meeting the definition 

of critical habitat under section 3(5)(A) 

or exclusion under 4(b)(2). Sections 

3(5)(A) (definition of critical habitat) 

and 4(b)(2) (Secretarial weighing of the 

benefits of inclusion versus the benefits 

of exclusion) of the Act provide for 

specifc areas to be excluded from 

critical habitat if they are otherwise 

provided needed protection (see Section 

3(5)(A) and Exclusions Under Section 

4(b)(2) section below). 

(30) Comment: The final rule is 

inadequate to recover bull trout and the 

status quo is leading to declining 

populations in spite of section 7 

consultations, habitat conservation 

plans, and state restoration plans. 

Our Response: Recovery planning for 

bull trout is complex due, in part, to its 

wide geographic distribution and 

multifaceted life history. Recovery of 

the species will require a variety of 

efforts and the cooperation of Federal, 

state, tribal, and other entities. Critical 

habitat by itself will not recover the 

species, but does provide an additional 

regulatory benefit for bull trout habitat 

where protection and special 

management are necessary to ensure the 

habitat contributes to the conservation 

of the species. While any one effort will 

not recover bull trout, we believe that 

through the cooperative efforts of all 

stakeholders, using a variety of 

conservation tools, bull trout can reach 

the point of no longer needing the 

protections of the Act. 

(31) Comment: We believe that the 

current attempt to solicit more 

information on the critical habitat rule 

is unlawful. 

Our Response: We disagree and 

believe that soliciting public comment 

is essential to conserving any species. 

(32) Comment: Why is the entire 

Columbia River mainstem (especially 

the upper Columbia River) designated as 

critical habitat, what data were used, 

and why did the Service use the draft 

recovery plan? 

Our Response: This final rule does not 

include the entire Columbia River 

mainstem. The bull trout is a wide 

ranging migratory species and follows 

salmon, whitefish, and other prey 

species in the Columbia River, marine 

waters and freshwater streams and 

rivers. Records of bull trout distribution 

indicate their presence from the mouth 

of the Columbia River to its uppermost 

reaches. Past monitoring efforts for 

salmon rarely recorded bull trout in data 

collections because bull trout were not 

the targeted species. In the upper 

Columbia River data from multiple 

telemetry studies show the use by bull 

trout of the area between Priest Rapids 

pool and the Okanogan River, and back 

into multiple tributaries. Some bull 

trout that spawn in the upper Columbia 

River basin use the mainstem for six 

months or more. We have excluded 

some areas of the Columbia mainstem 

where the benefits of excluding these 

areas outweigh the benefits of including 

them in the designation (see Section 

3(5)(A) and Exclusions Under Section 

4(b)(2) section below). Sub-adults and 

adults that spawn in alternate years 

have been documented using the 

Columbia River year-round. In reference 

to the use of the draft recovery plan, the 

Service acknowledges there are data 

gaps within the plan. The science used 

in the draft recovery plan was the best 

available data for bull trout at that time 

and provided the basis for proposing 

and designating critical habitat. In the 

process of developing the proposed and 

final critical habitat designation, 

additional data have become available, 

have been used in these rules, and are 

available as part of our administrative 

record. 

(33) Comment: All waters behind 

dams (reservoirs and pools) and areas 

covered by habitat conservation plans 

do not require designation due to 

existing management activities and 

should be excluded. 

Our Response: We reviewed reservoir 

operations and habitat conservation 

plans and carefully weighed the benefits 

of inclusion versus the benefits of 

exclusion. Based on this analysis we are 

excluding all reservoirs and pools that 

provide flood protection or water 

supply benefit and we are also 

excluding habitat conservation plans 

that adequately address bull trout 

conservation (see Section 3(5)(a) and 

Exclusions under Section 4(b)(2) section 

below). 

(34) Comment: The final rule for 

Klamath River and Columbia River 

populations needs clarification 

regarding the exclusion of 0.5 mile 

segments on private land. The inclusion 

of these stream segments appears to 

contradict the statement in the rule that 

exempts segments of less than 0.5 miles 

on private land. 

Our Response: The intent in the 

previous rule was to exclude those 

stream segments that were less than 0.5 

miles in length and under private 

landownership. The definition was 

intended to apply only to unbroken 

stream segments shorter than 0.5 miles 

in length, irrespective of underlying 

landownership patterns. The Service is 

no longer excluding areas of critical 

habitat on this basis, and all stream 

segments regardless of length remain 

designated critical habitat. 

Exclusion Comments 

(35) Comment:Exclusions are arbitrary 

and benefit special interest groups. 

Our Response: All areas excluded are 

covered by management plans that 

specifically address bull trout PCEs, or 

are being excluded based on policy 

considerations. Exclusions were 

carefully reviewed and the Secretary has 

made the determination that the benefits 

of excluding these habitats outweighs 

the benefits of including them in the 

designation (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(36) Comment: Comments were 

received to either exclude or to include 

areas covered by HCPs. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56219 

Our Response: We determined that 

waterbodies within lands covered under 

an existing or pending HCP should be 

excluded from the designation of critical 

habitat where the benefits of excluding 

these habitats covered by these 

management plans outweighs the 

benefits of including them in the 

designation (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(37) Comment: Comments were 

received to either exclude or to include 

areas covered by the Washington Forest 

Practice Rules. Reasons cited for 

including areas covered by the 

Washington Forest Practice Rules were 

that the rules are not complete, the rules 

do not include adequate standards, it 

has not been fully implemented, and the 

adaptive management process is 

incomplete. A primary reason expressed 

for excluding those lands was that this 

law protects aquatic habitat on State and 

private land. 

Our Response: Washington State law 

H.B. 2091, which codified the 

Washington Forest Practice Rules, is a 

science-based plan that protects water 

quality and fish habitat on over 8 

million acres (3.2 million ha) of nonFederal forestland throughout 

Washington State. Implementing these 

regulations is expected to maintain the 

thermal regimes of streams within the 

range of normal variation, contribute to 

the maintenance of complex stream 

channels, maintain appropriate 

substrates, natural hydrograph, groundwater sources and subsurface 

connectivity, migratory corridors, and 

provide abundant food sources for bull 

trout. Because the benefits of excluding 

the streams covered by the Washington 

Forest Practice Rules outweigh the 

benefits of including them, we have 

excluded stream segments protected by 

these regulations. See Washington State 

Forest Practices Rules and Regulations, 

as amended by the Forest and Fish Law 

(FFR) under the Lands to be Excluded 

from Critical Habitat under section 

4(b)(2) of this final rule for further 

discussion on FFR. 

(38) Comment: We believe the current 

Forest Service Land and Resource 

Management Plans (LRMP) as amended 

by the Northwest Forest Plan, PACFISH, 

and/or INFISH aquatic conservation 

strategies provide the necessary 

protection and special management that 

would eliminate the need to designate 

these areas as critical habitat. In 

addition, the designation would provide 

little additional benefit as described 

under Section 4(b)(2) of the Act. 

Our Response: We agree. These areas 

have been excluded from the final 

critical habitat designation (see Section 

3(5)(A) and Exclusions Under Section 

4(b)(2) section below). 

(39) Comment: Areas covered by the 

Oregon Forest Practices Act (OFPA) and 

the Oregon Plan for Salmon and 

Watersheds (OR Plan) should be 

excluded. 

Our Response: The OFPA includes 

provisions that generally limit clear cut 

size, require retention of green trees 

within harvest units for stream shading 

and downed wood for recruitment into 

riparian areas, and require replanting 

after harvest. However, the OFPA has no 

provisions that specifically address any 

of the PCEs for bull trout or for ensuring 

their conservation or protection. The OR 

Plan serves as a general salmon 

conservation planning guide and 

encourages close coordination among 

the agencies responsible for salmon 

conservation. Both the OFPA and OR 

Plan are well intentioned and provide 

encouragements and some benefits to 

aquatic habitats in areas where they 

apply. However, we were unable to 

determine that the OFPA or the OR Plan 

provide adequate conservation or 

protection of bull trout or their PCEs. 

Therefore, the areas covered by the 

OFPA or OR Plan do not warrant 

exclusion based on special protections 

or management. 

(40) Comment: The Montana Bull 

Trout Plan should not be used as the 

basis for excluding lands from critical 

habitat. It is a voluntary plan without 

tracking, reporting, or funding certainty, 

and it provides no protections against 

detrimental groundwater or surface 

water extraction. Implementation has 

been slow or nonexistent, the list of 

recommended immediate conservation 

actions were not acted upon or 

incorporated into the Plan. 

Our Response: We have reviewed the 

plan and determined it does not provide 

special management protections to the 

same extent a critical habitat 

designation would. Therefore, we are 

not using the Montana Bull Trout Plan 

as a basis for excluding lands from 

critical habitat. 

(41) Comment: No critical habitat 

should be designated on military lands 

for national security concerns or those 

that have Integrated Natural Resource 

Plans. 

Our Response: Pursuant to section 

4(a)(3)(B)(i) of the Act, the Service has 

not included critical habitat on military 

installations that have an Integrated 

Natural Resource Plan (INRMP) that 

provide benefits to the bull trout. 

Pursuant to section 4(b)(2) of the Act, 

we have excluded other military lands 

based on national security concerns (see 

Section 3(5)(A) and Exclusions Under 

Section 4(b)(2) section below). 

(42) Comment: Reservoirs should be 

included as critical habitat. 

Our Response: In many places 

reservoirs provide important foraging 

and overwintering habitat for bull trout 

and contain the features essential to the 

conservation of the bull trout. However, 

under 4(b)(2) of the Act, the Secretary 

has discretion to exclude any area from 

critical habitat if she determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless she 

determines, based on the best scientific 

and commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species. The Secretary carefully 

weighed the benefits of inclusion versus 

the benefits of exclusion regarding 

reservoirs (see Section 3(5)(A) and 

Exclusions under Section 4(b)(2) section 

below) and found that, for those 

reservoirs that provide a flood control or 

water for human consumption function, 

the benefits of exclusion outweighed the 

benefits of inclusion. 

(43) Comment: All tribal reservation 

lands should be excluded from critical 

habitat designation. 

Our Response: In accordance with the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and 512 DM 2, we 

coordinate with federally-recognized 

tribes on a government-to-government 

basis. Further, Secretarial Order 3206, 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (1997) 

provides that critical habitat should not 

be designated in an area that may 

impact tribal trust resources unless it is 

determined to be essential to the 

conservation of a listed species and that 

Tribes be given deference when 

evaluating conservation management 

planning. 

Accordingly, we are obligated to 

consult with tribes based on their 

unique relationship with the Federal 

government, and to evaluate the 

appropriateness of designating tribal 

lands within the framework of the above 

mentioned directives. In addition, we 

evaluate tribes’ past and ongoing efforts 

for species conservation and the benefits 

of including or excluding tribal lands in 

the designation under section 4(b)(2). 

We contacted all tribes potentially 

affected by the proposed designations 

and met with a number of these tribes 

to discuss their ongoing or future 

management strategies for bull trout. 

Several tribes subsequently submitted 

letters requesting exclusions from the 

designation based on their ongoing 

56220 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

management and conservation efforts, or 

their commitment to develop an 

appropriate management plan, on their 

lands. We excluded those tribal lands 

where there was a commitment to 

conserve bull trout habitat and where 

the benefits of exclusion where found to 

outweigh the benefits of inclusion (see 

Section 3(5)(A) and Exclusions Under 

Section 4(b)(2) of the Act section 

below). 

(44) Comment: The Service ignores 

court decisions and required 

components of the Act when it states 

that areas can be excluded based on 

economic impacts, national security, 

management plans, and the preservation 

of partnerships (see Center for Biological 

Diversity v. Norton (2003)). 

Our Response: Section 4(b)(2) of the 

Act allows us to consider the economic 

impact, national security impact, and 

any other relevant impact of designating 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of designating a particular area 

as critical habitat, unless the failure to 

designate such an area as critical habitat 

will result in the extinction of the 

species. In addition, the congressional 

record is clear that the consideration 

and weight given to any impact is 

completely within the Secretary’s 

discretion (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(45) Comment: Does excluding habitat 

covered by HCPs also exclude covered 

activities on lands the applicant does 

not own or manage? For example, 

studies are occurring on lands not 

owned by the City of Seattle but 

required by the terms of the approved 

HCP. 

Our Response: Areas excluded due to 

the existence of an approved HCP only 

include those areas directly covered by 

the HCP. Areas outside the HCP e.g., 

City of Seattle, remain designated 

critical habitat unless excluded for some 

other reason. 

Comments Related to the Economic 

Analysis 

(46) Comment: The Service neglected 

to conduct an economic analysis (EA) 

for the Jarbidge River, Coastal-Puget 

Sound, and Saint Mary-Belly River bull 

trout populations, contrary to the Act’s 

requirements. 

Our Response: The Service did 

conduct an economic analysis for the 

Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River bull trout 

populations. We informed the public in 

the proposed rule that we would be 

conducting an analysis of the economic 

impacts of designating the proposed 

areas as critical habitat prior to making 

a final determination. We announced 

the availability of the DEA with a notice 

in the Federal Register (May 3, 2005, 70 

FR 22835) that reopened the public 

comment period on the DEA and the 

proposed rule at that time. Reopening 

the comment period allowed the public 

to concurrently review and comment on 

both the DEA and the proposed critical 

habitat designation. We subsequently 

provided this same information when 

replying to electronic mail (e-mail) 

messages and telephone calls, and 

during the public hearing held in 

Washington. 

(47) Comment: The costs of critical 

habitat outweigh the benefits of 

designation and all costs associated 

with critical habitat should be included 

in the analysis. 

Our Response: This final rule 

excludes areas where the benefits of 

excluding critical habitat have been 

determined to exceed the benefit of 

including these areas in the designation 

under provisions of section 4(b)(2). The 

economic analysis (EA) considers the 

economic efficiency effects that may 

result from the designation, including 

habitat protections that may be 

coextensive with the listing of the 

species. It also addresses distribution of 

impacts, including an assessment of the 

potential effects on small entities and 

the energy industry. The analysis 

focuses on quantifying the direct and 

indirect costs of the rule although 

economic impacts to land-use activities 

may exist in the absence of designating 

critical habitat. For example, economic 

impacts may result from local zoning 

laws, state and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other state and Federal agencies. The 

information in the EA can be used by 

the Secretary when taking into 

consideration the economic impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

(48) Comment: Costs associated with 

the operations of agencies such as the 

Bureau of Reclamation (BOR) to deliver 

water belonging to irrigation districts 

must be taken into consideration. The 

impact of attempting to alter preexisting legal requirements, and the 

constraints those legal rights have on 

designating critical habitat, must be 

considered before a final decision can 

be made. 

Our Response: Potential costs 

associated with the designation of bull 

trout critical habitat, including those 

related to BOR water management, are 

addressed through the economic 

analysis. We received additional 

information regarding the possible 

under-or over-estimate of costs related 

to regulation of water and power 

generation due to the designation. 

Where appropriate, this information was 

used by the Secretary in making 

determinations under section 4(b)(2) of 

the Act. 

(49) Comment: In the economic 

analysis, the Service did not account for 

the many economic benefits that the 

designation of critical habitat for bull 

trout provides. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking (i.e., the 

direct benefit) is to designate areas that 

contain the features essential to the 

conservation of listed species and that 

may require special management or 

protections. While the Act is clear that 

it is the policy of the Federal 

government to provide a means whereby 

the ecosystems upon which endangered 

and threatened species depend are 

conserved, it is also clear that Congress 

provided several methods for achieving 

this policy and critical habitat 

designation is just one of the methods. 

The Act states that this policy is to be 

achieved through cooperation with 

states through the resolution of water 

resource issues in concert with 

conservation. Finally, the Act provides 

the flexibility for the Secretary to 

exclude portions of critical habitat 

based on the consideration of 

economics, national security, or any 

other relevant impact if the Secretary 

determines that the benefit of exclusion 

exceeds the benefits of inclusion, as 

long as that exclusion does not result in 

the extinction of the species. 

The designation of critical habitat 

may result in two distinct categories of 

benefits to society: (1) Measurable or 

economic benefits and (2) intangible 

benefits. The economic analysis 

generally captures the measurable 

benefits (such as increased tourism or 

recreational expenditures) by 

quantifying them in terms of dollars. 

The less tangible social benefits that 

accrue from the physical existence of a 

resource are more difficult to capture. 

Non-use benefits, in contrast, represent 

benefits that individuals perceive from 

‘‘just knowing’’ that a particular listed 

species’’ natural habitat is being 

specially managed for the survival and 

recovery of that species. This benefit is 

virtually impossible to quantify as there 

is no market transaction to use as a 

measurement for such a benefit. 

The economic analysis captures those 

benefits that can be quantified and 

provides information regarding the 

economic costs associated with a 

proposed critical habitat designation. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56221 

The economic analysis is used by the 

Secretary in making decisions under 

section 4(b)(2) of the Act based on 

economic impacts. Economic impacts 

can be both positive and negative and, 

by definition, are observable through 

market transactions. 

In our designations we recognize that 

critical habitat may also generate 

ancillary benefits which can be both 

negative and positive. That is, 

management actions undertaken to 

conserve a species or habitat as a result 

of designation may have coincident 

implications to a place’s quality of 

living. For example, fewer consumptive 

activities (e.g., timber harvesting or 

cattle grazing) may affect some 

individuals’ enjoyment of an area. 

While they are not the primary purpose 

of critical habitat, these ancillary effects 

which are perceived as benefits may 

result in gains in non-economic benefits 

that may offset the direct, negative 

impacts to a region’s economy resulting 

from actions to conserve a species or its 

habitat. Conversely, for those formerly 

dependent on the timber industry or 

grazing for their livelihood, they may 

find that significantly reduced 

employment opportunities which 

represent reduction in benefits. 

It is often difficult to evaluate the 

ancillary benefits of a critical habitat 

designation. Where data are available, 

this analysis attempts to recognize and 

measure the net economic impact of the 

proposed designation. For example, if 

the fencing of a species’ habitat to 

restrict motor vehicles results in an 

increase in the number of individuals 

visiting the site for wildlife viewing, 

then the analysis would recognize the 

potential for a positive economic impact 

and attempt to quantify the effect (e.g., 

impacts that would be associated with 

an increase in tourism spending by 

wildlife viewers). Conversely, if the 

critical habitat designation will result in 

increased fishing and hiking 

opportunities, that benefit would be 

reflected in economic benefits from 

tourism and related industries. What is 

not measurable in other than qualitative 

terms are such benefits as increased 

quality-of-life values for some and 

decreased quality-of-life for others (e.g., 

lower employment due to family wage 

jobs supported by industrial timber 

harvesting being replaced by service 

jobs in the recreation industry). 

While section 4(b)(2) of the Act gives 

the Secretary discretion to exclude 

certain areas from the final designation, 

she is authorized to do so only if an 

exclusion does not result in the 

extinction of the species. Thus, we 

believe that explicit consideration of 

broader social values for the species and 

its habitat, beyond economic impacts, is 

evidenced by the designation itself that 

protects areas for the conservation of the 

species despite costs associated with 

that designation. In other words, the 

Secretary begins a designation based on 

an assumption that the benefit of 

designation outweighs the benefit of 

exclusion and only excludes where an 

explicit determination is made that the 

benefit of exclusion, in fact, does 

outweigh the benefit of inclusion. 

(50) Comment: The DEA for the 

Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River bull trout 

populations must evaluate impacts of 

bull trout critical habitat designation on 

the tribes’ trust resources to be 

consistent with trust responsibilities. 

Our Response: The DEA for the 

Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River bull trout 

populations evaluates the impacts of 

this designation on tribal trust 

resources. Refer to section 3.1.4 in the 

DEA for further discussion on impacts 

of the bull trout critical habitat 

designation on the tribes’ trust 

resources. 

(51) Comment: The Service needs to 

address habitat and economic concerns 

in Canada, as well since a critical 

habitat designation may affect waters 

that flow into Canada. 

Our Response: We state on page 

35771 of the critical habitat proposed 

rule for the Jarbidge River, Coastal-Puget 

Sound, and Saint Mary-Belly River bull 

trout populations that, ‘‘The interjurisdictional nature of the Saint Mary 

River and Belly River watersheds is 

unique in the bull trout’s range and 

makes international coordination 

especially critical.’’ However, we cannot 

propose to establish critical habitat in 

other countries or address economic 

concerns of critical habitat in other 

countries. 

(52) Comment: The BOR requires 

water users to pay for all maintenance 

and operational and mitigation costs 

associated with the Milk River irrigation 

system in Montana, so it is the irrigators 

not the BOR that must avoid adverse 

modification. 

Our Response: Section 7(a)(2) of the 

Act requires Federal agencies to ensure 

that activities they authorize, fund, or 

carry out are not likely to jeopardize the 

continued existence of listed species or 

result in the destruction or adverse 

modification of critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that its actions do 

not destroy or adversely modify critical 

habitat. The Service consults with the 

Federal agencies (in this case BOR) not 

private individuals. Private individuals 

may, however, have an identified role in 

the consultation if they are ‘‘applicants’’

as defined in section 7. 

(53) Comment: The BOR indicated 

that bypass facilities at the Saint Mary 

Diversion dam should be included 

among the costs attributable to bull trout 

(not included in the DEA), at an 

estimate of $128,000 (in 2002 dollars). 

In addition, there are costs associated 

with the Sherburne Dam rehabilitation, 

and BOR estimates those costs to be 

$700,000 (in 2004 dollars). 

Our Response: The DEA 

acknowledged that elements of the Saint 

Mary Diversion fish entrainment and 

bypass costs and modifications to 

Sherburne Dam, located upriver of the 

Saint Mary Diversion, may be necessary. 

However, the specific elements or their 

costs for these components were not 

available at the time they were 

requested from BOR, and only 

preliminary estimates were provided in 

the DEA (see page 239). We have 

incorporated new information on these 

costs into the final economic analysis 

and our final critical habitat 

designation. Based on the costs 

provided in BOR’s comment, updated to 

current dollars, the inclusion of bypass 

facility costs on the Saint Mary 

Diversion and the portion of Sherburne 

Dam rehabilitation attributable to bull 

trout would increase the total 

prospective costs by $830,900 and the 

total annualized cost by $78,400 in the 

Saint Mary-Belly River region. 

(54) Comment: BOR noted that fish 

screens to reduce entrainment on the 

Saint Mary Diversion would likely not 

be installed were it not for the bull trout 

listing, and that the costs in the DEA 

were underestimated. BOR estimates the 

cost to be $4,270,000 for an 850 cubic 

feet/second (cfs) canal. 

Our Response: BOR’s project 

modification estimates for the 

rehabilitation of the Saint Mary 

Diversion were addressed in the DEA 

(page 239). However, specific costs for 

fish screens associated with the 

modification options were not available 

when we requested the information 

from BOR, and other sources of 

information were instead used in the 

DEA for estimating those costs. We 

appreciate receiving the estimate of cost 

that was provided in the comment. A 

decision has not yet been made about 

whether to proceed with the 

rehabilitation as planned, or when, or 

the size of the rehabilitated canal. 

Assuming that the rehabilitation is 

completed in 5 years, and based on the 

cost for fish screens provided by BOR 

56222 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

for an 850 cfs canal (updated to current 

dollars), the prospective cost 

attributable to bull trout would increase 

by $3,024,800 in the Saint Mary-Belly 

River region from that presented in the 

DEA. The total annualized cost would 

increase by $285,500. 

(55) Comment: Monitoring riparian 

areas will occur in areas where there is 

no grazing. If grazing is unlikely to 

affect bull trout, why are costs involved? 

Our Response: Monitoring livestock 

grazing that may affect the conservation 

status of sensitive species is a 

requirement of INFISH in eastern 

Oregon and Washington, Idaho, western 

Montana, and portions of Nevada. 

INFISH was developed as an 

amendment to U.S. Forest Service 

(USFS) land and resource management 

plans and Bureau of Land Management 

(BLM) resource management plans. The 

monitoring responsibility would be in 

effect even in the absence of the 

designation of critical habitat for bull 

trout. Costs were included in the 

economic analysis as they are related to 

the conservation of bull trout. 

(56) Comment: The impacts in the 

economic analysis are overestimated 

because it does not differentiate 

between the impacts of the listing and 

impacts of critical habitat designation. 

This method of estimating costs unfairly 

attributes too large a percentage of costs 

to critical habitat. 

Our Response: The economic analysis 

is intended to assist the Secretary in 

determining whether the benefits of 

excluding particular areas from the 

designation outweigh the biological 

benefits of including those areas in the 

designation. Also, this information 

allows us to comply with direction from 

the U.S. 10th Circuit Court of Appeals 

that ‘‘co-extensive’’ effects should be 

included in the economic analysis to 

inform decision-makers regarding which 

areas to designate as critical habitat 

(New Mexico Cattle Growers Association 

v. U.S. Fish and Wildlife Service (248 

F.3d 1277)). 

This analysis identifies those 

potential activities believed to be most 

likely to threaten the bull trout and its 

habitat and, where possible, quantifies 

the economic impact to avoid, mitigate, 

or compensate for such threats within 

the boundaries of the critical habitat 

designation. Where critical habitat is 

being proposed after a species is listed, 

some future impacts may be 

unavoidable, regardless of the final 

designation and exclusions under 

section 4(b)(2). However, due to the 

difficulty in making a credible 

distinction between listing and critical 

habitat effects within critical habitat 

boundaries, this analysis considers all 

future conservation-related impacts to 

be co-extensive with the designation. 

(57) Comment: The economic analysis 

overestimates impacts of critical habitat 

designation by not differentiating 

between impacts attributable to bull 

trout conservation verses salmon 

conservation. 

Our Response: There are several 

salmonid species that are listed as 

threatened or are candidates for listing 

under the Act whose ranges overlap the 

critical habitat designation of bull trout. 

Conservation activities designed to 

protect bull trout may provide 

coincident protection to salmon. 

Conversely, conservation activities 

designed specifically for salmon may 

provide protection for bull trout. In 

assigning costs for fish-related 

conservation activities in watersheds 

supporting previously listed salmon 

species and bull trout, we assume in the 

analysis that the economic effect of fishrelated conservation measures is 

attributed co-extensively to both 

species. Therefore, where a conservation 

activity provides indivisible benefits to 

both salmon and bull trout, the cost of 

the activity is apportioned to both 

species. In areas where proposed critical 

habitat for bull trout does not overlap 

the range of other listed species, the 

costs are assigned solely to bull trout 

conservation activities. Co-extensive 

effects may also include impacts 

associated with overlapping protective 

measures of other Federal, State, and 

local laws that aid habitat conservation 

in the areas proposed for designation. 

We note that in past instances, some of 

these measures have been precipitated 

by the listing of the species. Because 

habitat conservation efforts affording 

protection to a listed species likely 

contribute to the efficacy of the critical 

habitat designation efforts, the impacts 

of these actions are considered relevant 

for understanding the full effect of the 

proposed designation. Enforcement 

actions taken in response to violations 

of the Act, however, are not included. 

(58) Comment: Critical habitat creates 

undue economic hardship on private 

land owners. 

Our Response: Private landowners are 

only required to consult with the 

Service if their action has a Federal 

nexus and if the action is likely to affect 

bull trout or its critical habitat. 

(59) Comment: By designating less 

area as critical habitat, the costs are 

disproportionately high for the areas 

included in critical habitat. 

Our Response: Excluding areas does 

not increase the costs on those areas left 

within the designation. The costs 

associated with the designation are the 

section 7 administrative costs of 

preparing a biological assessment and 

the potential costs associated with 

implementing a Reasonable and Prudent 

Alternative (RPA) if we find that an 

action is likely to destroy or adversely 

modify critical habitat. Given that we 

are only designating critical habitat in 

occupied areas, where an action agency 

would need to consult on any adverse 

effects to bull trout, and given our 

framework for conducting section 7 

consultations on bull trout and bull 

trout critical habitat, we anticipate that 

most projects that would result in 

destruction or adverse modification of 

critical habitat would also constitute 

jeopardy to the species. Thus, any costs 

associated with conducting 

consultations or implementing an RPA 

would be present with or without the 

critical habitat designation, and would 

not be correlated with the size of the 

designation. 

(60) Comment: The EA does not 

address impacts/costs to the Klamath 

Lake BOR project or to Agency Lake 

Ranch. 

Our Response: BOR staff were 

contacted and consulted on the 

likelihood of projects requiring section 

7 consultation, as described in Section 

4.2.4 for the final EA. When contacted, 

BOR staff in Klamath Falls stated that 

no significant consultation activity 

concerning bull trout was anticipated. 

As a result, the analysis assumes 

impacts are not reasonably foreseeable 

for a BOR project on Agency Lake 

Ranch. 

(61) Comment: Specific cost 

information related to fencing, well 

installation, maintenance, grass filter 

strip installation was not accurate in the 

EA. The comment letter provided 

specific costs on a per acre basis. 

Our Response: The DEA (Section 

4.2.2, page 4–9 and Section 4.2.7, page 

4–72) estimates the number of grazingrelated consultations likely to take place 

in the future and then multiplies the 

consultations by per consultation 

estimates of fencing, monitoring, and 

water requirement costs. Whether the 

per acre costs presented in the comment 

fall within the range of per consultation 

costs estimated in the DEA is difficult 

to determine. The estimate in the DEA 

is drawn from a sample of historical 

consultations. 

(62) Comment: The EA 

underestimated costs in the upper 

Deschutes River basin because 95 

percent of crops depend on irrigation. 

Our Response: The Upper Deschutes 

basin is currently unoccupied by the 

species. For effects to irrigated 

agriculture to occur, the Service would 

first have to reintroduce bull trout to 

this basin, consult with BOR on the 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56223 

operation of the reservoir, and 

recommend reasonable and prudent 

measures that would reduce the 

available irrigation water. As discussed 

on page 4–28 of the report, this 

sequence of events is not reasonably 

foreseeable. 

(63) Comment: Comments made on 

the DEA for the Columbia/Klamath 

Rivers populations were not 

incorporated into the final EA. 

Our Response: We believe that the 

Final Economic Analysis adequately 

addresses all the comments provided 

during the public comment period that 

are consistent with the framework for 

the analysis described in Section 1.3 of 

the report. Specifically, impacts to 

families and small entities are addressed 

in Section 4.3; costs to irrigators, cities, 

industries, and other water users are 

addressed in Section 4.2; costs to 

hydropower customers are discussed in 

Section 4.4.2; potential costs to 

recreational users are discussed in 

Section 3.3.6; costs associated with 

flood damages are addressed in Section 

4.2.4; costs associated with water 

quality changes are addressed in 

paragraphs 16 and 211; costs due to 

regulatory uncertainty are captured in 

Section 4; values of potential lost 

irrigation water supplies are discussed 

in paragraphs 494 through 499; and 

employment and secondary impacts are 

discussed in paragraph 274. 

(64) Comment: The EA cited the 

existence of irrigated agricultural 

diversions and the need for fish 

screening of those diversions to prevent 

bull trout entrainment, however the EA 

did not extrapolate out screening costs. 

The EA acknowledged that fish 

screening costs are substantial, ranging 

between $2,000 and $5,000 per cfs the 

structure can divert. 

Our Response: The Service agrees that 

irrigators incur costs associated with 

fish screens. However, as described in 

footnote 110 of the FEA, ‘‘* * * 

installation of diversion fish screen[s] is 

a baseline regulation within Idaho, 

Oregon, and Washington. That is, 

screens on agricultural diversions are 

already required under Idaho Code 36–

906(b).’’ Because fish screens are 

required in Idaho, Oregon and 

Washington in the absence of the 

Endangered Species Act (ESA), these 

costs are not included in this analysis. 

(65) Comment: The economic impact 

to Baker County and the Regulatory 

Flexibility Act was ignored in the DEA 

and final EA. 

Our Response: In accordance with the 

Regulatory Flexibility Act, the Final 

Economic Analysis includes a 

quantitative screening analysis (see 

Section 4.3) that the Service used as the 

basis for its certification that a 

substantial number of small agricultural 

entities will not be significantly 

impacted by the proposed designation. 

Impacts to small farmers resulting from 

curtailed irrigation diversions are 

discussed specifically in Section 4.3.2. 

(66) Comment: The costs for fish 

passage and habitat restoration are 

associated with compliance of Sections 

4(e) and 18 of the FPA. The costs for 

fish passage and restoration of habitat 

address the recovery of other native 

salmonids found in the aquatic system, 

such as westslope cutthroat trout and 

mountain whitefish. The cost for total 

dissolved gas abatement is associated 

with compliance with the Clean Water 

Act under the 401 Water Quality 

Certification and Section 4(e) of the 

FPA. It is not clear what the final terms 

of the relicensing of the Box Canyon 

Project will be. The project 

modifications and costs are not due to 

bull trout Section 7 consultation as no 

biological opinion (BO) has been done. 

It is unclear why Box Canyon Project 

was picked for a discussion of detailed 

project modification costs since this 

project has no modification costs related 

to Section 7 consultation or the 

designation of critical habitat. 

Our Response: FERC relicensing costs 

are discussed in Section 4.2.6 in the 

Final Economic Analysis (paragraphs 

416–452). Estimates of project 

modification costs for the FERC 

Environmental Impact Statement (EIS) 

on Box Canyon are summarized in 

paragraph 452 as an example of the 

uncertainty surrounding the estimate of 

FERC-related costs. The discussion is 

consistent with this view that passage 

modifications are not attributable to 

section 7 bull trout consultations. 

(67) Comment: The EA’s estimate of 

conservation costs of $570 per acre for 

Dungeness Irrigation District is 

artificially low. The costs for revision or 

addition of fish passage facilities at 

those federal dams would be passed on 

to irrigation contractors through the 

United States Bureau of Reclamation. 

Our Response: Following the 

framework described in on pages 1–11 

and 1–12, the FEA considers the costs 

of proposed or reasonably foreseeable 

HCPs. In Section 4.1.2, the FEA 

identifies two HCPs that were currently 

under development at the writing of the 

analysis, and projects the costs of future 

based on the historical costs of 

developing these plans. HCPs are not 

reasonably foreseeable in the irrigation 

districts providing comment. However, 

the FEA accounts for HCP costs at 

unspecified locations for the 10-year 

time period of the analysis (see 

paragraph 359). 

Unit Specific Comments 

Unit 1: Klamath River Basin 

(68) Comment: No critical habitat in 

Agency Lake was requested because of 

limited to no occurrences or use by bull 

trout. 

Our Response: Historically, bull trout 

are known to have been distributed in 

several streams along the west side of 

Agency Lake (Cherry Creek, Threemile 

Creek, and Sevenmile Creek) and in the 

Wood River system (Sun, Annie, and 

Fort Creeks). Given the proximity of 

habitat and local populations and the 

predatory and migratory nature of the 

species, it is likely that bull trout 

utilized Agency Lake, at least 

seasonally, as feeding, migrating, and 

overwintering habitat, however, we are 

not able to document bull trout use in 

the last 20 years and have not included 

Agency Lake in this designation. 

Unit 4: Willamette River Basin 

See Comments from States (Oregon) 

section below. 

Unit 6: Deschutes River Basin 

(69) Comment: The Service properly 

chose not to designate the Crooked 

River as critical habitat because it is 

unoccupied and was not essential to the 

conservation of the species, that 

designation could also cause harm to 

ongoing conservation efforts, and that 

the benefits of excluding this area 

outweigh the benefits of including it. 

Our Response: We have limited the 

critical habitat designation to areas of 

known occupancy (defined by 

documented occurrence within the last 

20 years) that have features essential to 

the conservation of the species because 

we did not have sufficient data for the 

Secretary to make a determination that 

specific unoccupied areas were essential 

to the bull trout’s conservation. We have 

determined that the approximately 14 

mile-long section of the Crooked River 

downstream of the Highway 97 bridge to 

the Opal Springs Dam is occupied and 

contains many of the features essential 

to the conservation of the bull trout. The 

volume of cold water spring flows that 

enter the Crooked River downstream of 

the Highway 97 bridge crossing 

decreases stream temperatures enough 

to make this section of the Crooked 

River suitable for foraging bull trout 

even during the summer months. The 

additional habitat in the Crooked River 

also allows bull trout in Lake Billy 

Chinook to forage. 

(70) Comment: There are many plans 

in the Deschutes River basin that 

provide special management and 

protections for bull trout (list of plans 

provided). 

56224 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Our Response: The Service has 

reviewed information regarding 

numerous plans in the Deschutes River 

basin including the Middle Deschutes/ 

Lower Crooked River Wild and Scenic 

Management Plan, the Lower Deschutes 

River Wild and Scenic River 

Management plans, the Aquatic 

Conservation Strategy of the Northwest 

Forest Plan, PACFISH, INFISH, and the 

Deschutes River Subbasin Plan. For 

each plan we assessed the protections of 

the plan as compared with the 

protections of critical habitat and 

weighed the benefits of inclusion versus 

the benefits of exclusion. For those 

plans where the benefits of exclusion 

outweighed the benefits of designating 

critical habitat we excluded those lands 

from the final designation (see Section 

3(5)(A) and Exclusions Under Section 

4(b)(2) section below). 

Unit 8: John Day River Basin 

(71) Comment: Critical habitat should 

be removed on the mainstem John Day 

River below 4,500 ft elevation because 

the mainstem John Day River below this 

elevation does not have the appropriate 

water temperatures for bull trout. 

Our Response: The Service 

acknowledges that the current 

distribution of bull trout in the John Day 

River basin is fragmented and that water 

temperature is a limiting factor in the 

lower portion of the river outside of 

peak runoff periods (late winter and 

spring). Bull trout distribution occurs 

primarily in the headwaters of the 

Upper Mainstem, North Fork and 

Middle Fork John Day River tributaries, 

with seasonal use of the entire North 

Fork John Day River. However, in 2000, 

the Oregon Department of Fish and 

Wildlife captured eleven subadult bull 

trout in the mainstem John Day River 

near the town of Spray, Oregon (1,802 

ft elevation), while seining for juvenile 

Chinook salmon. Two of the fish were 

implanted with radio-tags and both 

were subsequently tracked into the 

North Fork John Day River. This 

suggests that subadult migrations do 

seasonally occur within lower river 

segments of the Upper Mainstem, North 

Fork, and Middle Fork John Day River. 

Within the John Day Subbasin, historic 

bull trout distribution likely included 

seasonal use of the entire mainstem and 

larger tributaries. Bull trout from the 

John Day Subbasin were known to 

migrate to and from the Columbia River 

(Buchanan et al. 1997). Historical 

records indicate presence of bull trout 

in Dads Creek, Dixie Creek, Pine Creek, 

Canyon Creek, Laycock Creek, and 

Beech Creek (Buchanan et al. 1997) all 

below 1,800 ft in elevation. The lower 

segments of the John Day Basin 

currently have many PCEs, including 

permanent water with low levels of 

contaminants, stream temperatures from 

36° to 59° F (2° to 15° C), complex 

stream channels, and an abundant food 

base. Lower segments of the John Day 

River are typically suitable for bull trout 

use during peak runoff periods in late 

winter and spring when water 

temperatures range from 36° to 59° F (2° 

to 15° C). During those periods, these 

streams contain the necessary features 

essential to the conservation of the bull 

trout because they serve as migratory 

corridors that connect local populations 

in the basin. Such connections are 

particularly critical in the John Day 

River Basin because the existing local 

populations are small and highly 

vulnerable to localized extirpation. The 

most viable way to avoid extinction in 

these areas is to maintain seasonal 

habitat connections so that the 

movement of fish between them can 

sustain or periodically re-establish these 

small populations. We recognize the 

apparent difficulty in designating 

critical habitat where the presence of 

the PCEs is sporadic. To avoid future 

misinterpretations of the effect of this 

designation where PCEs occur as a 

result of current ongoing federal 

management, we have included that 

management in the baseline for future 

section 7 consultations. 

Unit 9: Umatilla/Walla Walla River 

Basin 

(72) Comment: There are many 

examples of additional special 

management and protections governing 

habitat utilized by bull trout on BLMmanaged lands including the South 

Fork of the Walla Walla River ACEC, 

which is an amendment to the Resource 

Management Plan (RMP) for the Baker 

Resource Area of the Vale District. The 

amended plan was signed in February 

1992, creating an ACEC of 1,273 acres 

within the South Fork of the Walla 

Walla River watershed. The river 

provides high quality spawning and 

rearing habitat for bull trout. The 

decision included: (1) No surface 

occupancy stipulation for oil and gas 

leasing; (2) prohibition against 

development of mineral resources 

within the ACEC boundary unless 

needed on an emergency basis to protect 

ACEC values; (3) prohibition against 

issuance of grazing leases; (4) no fire 

salvage will occur unless it meets the 

goal of ACEC management; and (5) 

reduction by 99% of the permitted 

amount of timber removed on the 120 

acres of commercial timberland 

economically operable within the 

ACEC. 

Our Response: We agree that the 

designation in 1992 of the South Fork 

Walla Walla River as an Area of Critical 

Environmental Concern added habitat 

protections that benefit bull trout. The 

ACEC management actions in the plan 

amendment, particularly the livestock 

grazing restrictions and measures to 

limit and control recreational motor 

vehicle traffic along the river, are 

actions that have improved bull trout 

habitat along the approximately two 

miles of river that cross BLM land. As 

a result we have determined this lads do 

not meet the definition of ‘‘in need of 

special management or protection’’ in 

order to be designated as critical habitat. 

Unit 10: Grande Ronde River Basin 

(73) Comment: Wright Slough (Grande 

Ronde River Basin) has been designated 

as critical habitat and should not have 

been. It now has restrictions on it that 

are impacting agricultural use of the 

land. 

Our Response: Wright Slough, a 

tributary of the Grande Ronde River, 

was not designated as critical habitat for 

bull trout in the previous final rule and 

is not being designated in this rule. The 

mainstem Grande Ronde River 

immediately above and below where 

Wright Slough enters the river is 

designated as bull trout critical habitat. 

The State of Oregon has designated 

Wright Slough as ‘‘essential salmonid 

habitat’’, which may have been 

confused with bull trout critical habitat. 

Critical habitat does not create a 

preserve and does not, by itself, place 

restrictions on agricultural land use. If, 

through section 7 consultation, a 

proposed Federal action was found to 

destroy or adversely modify critical 

habitat, then a reasonable and prudent 

alternative may result in restrictions on 

agricultural use. We have not issued any 

adverse modification biological 

opinions on bull trout critical habitat 

and therefore have not imposed any 

restrictions on agricultural use of lands 

in Wright Slough through designation of 

critical habitat. 

(74) Comment: It is not appropriate to 

designate critical habitat in the Powder 

River Basin in areas located below 4,500 

ft elevation to prevent extinction of bull 

trout because these low elevation 

streams do not have appropriate water 

temperatures. 

Our Response: We acknowledge that 

temperatures in the lower portions of 

the Powder River Basin are likely only 

suitable for bull trout use during peak 

runoff periods in late winter and spring. 

During these times, lower elevation 

areas contain the features that are 

essential to bull trout conservation. 

These areas are important because they 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56225 

serve as migratory corridors that 

connect local populations in the basin. 

Such connections are particularly 

critical in the Powder Basin because the 

existing local populations are small and 

highly vulnerable to localized 

extirpation. The most viable way to 

avoid extirpation in these areas is to 

maintain seasonal habitat connections 

so that the movement of fish between 

them can sustain or periodically reestablish these small populations. We 

have also indicated that current federal 

management is included in the baseline 

so as to ensure that existing PCEs—in 

this case migrating corridors are 

maintained without implying that other 

PCEs are present or require special 

management or protections. 

(75) Comment: The previously 

designated stream segments in the 

Powder River Basin below the WallowaWhitman National Forest boundary are 

not essential for conservation of bull 

trout, because: (1) The presence of brook 

trout downstream of most known bull 

trout populations and the large number 

of existing physical barriers in lowelevation stream sections preclude 

genetic exchange between local 

populations and attempts to provide 

connectivity will result in increased 

hybridization; (2) given the physical and 

biological barriers, it would be advisable 

to keep resident bull trout populations 

in the upper tributaries to prevent brook 

trout hybridization; (3) the listed 

segments lack almost all of the 

identified PCEs and, in fact, dry up or 

go subsurface for much of the year; and 

(4) with the single exception of Big 

Muddy Creek, all observations of bull 

trout have been above the National 

Forest boundary, thus the stream 

sections below the boundary are 

unoccupied. 

Our Response: It is true that many of 

the Powder River tributaries contain 

impediments to bull trout movement, 

particularly those that flow through the 

Baker Valley, where the stream channels 

and stream flows have been altered for 

many years to support agricultural 

production. We also concur that brook 

trout hybridization is a problem in this 

area. Nevertheless, the designated 

tributary streams are deemed essential 

for bull trout conservation for the 

following reasons: (1) These streams are 

occupied and contain PCEs; (2) given 

the small size of the local populations, 

which appear to be currently confined 

to upper elevation headwaters, it is 

highly unlikely that they will persist in 

isolation, thus the long-term viability of 

this core area is dependent on the 

ability of bull trout to move between 

populations; and (3) the impediments to 

seasonal fish movement in these streams 

are mostly human-caused and could 

feasibly be corrected. The lower reaches 

of these streams can function as 

effective movement corridors even if 

only during high runoff periods; their 

designation as critical habitat does not 

imply that they need to be maintained 

as suitable habitat year-round. 

Therefore, we have designated critical 

habitat in these areas. In addition our 

inclusion of present operations in the 

baseline is designed to recognize the 

particular contributions of the area to 

bull trout conservation without 

overstating them. 

(76) Comment: We believe that fish 

survey data from the Powder River 

Basin has been misused because: (1) No 

accepted, scientific protocol was used 

for many of the surveys; (2) some of the 

fish counts were erroneous and 

contained inaccurate information; (3) 

some purported sightings and inferences 

about habitat use were not supported by 

scientific data; (4) credible evidence 

provided by local citizens, indicating 

that bull trout were introduced in the 

early 1900s into upper tributaries of the 

Powder River, was ignored or 

disregarded. 

Our Response: It is our intent to use 

only accurate information about species’

occurrences when identifying critical 

habitat. To address the concerns that 

were raised about data from the Powder 

River Basin, we conducted a review of 

all the survey data and anecdotal 

information we have received on bull 

trout locations in this area. The sources 

and documentation associated with 

these data have been re-checked and 

verified to the extent possible. Some of 

the bull trout sighting information 

comes from informal surveys that did 

not follow standardized survey 

protocols because surveys were done 

before formal survey protocols existed 

and in other situations ‘‘spot check’’

type surveys were done because the 

resource agency lacked sufficient 

resources to conduct more rigorous 

surveys. It would not be appropriate to 

disregard positive sightings just because 

the survey method was informal. The 

key credibility factor is the fish 

identification skills of the person 

making the observation. Also of major 

importance is the type of observation 

(i.e., was the fish in hand or just seen 

swimming by). 

In our review of existing data, we 

excluded from consideration sightings 

that did not meet the following two 

criteria: (1) The sighting was made by a 

biologist or technician that was trained 

and experienced in bull trout 

identification, and (2) the identification 

was made based on close examination of 

a fish in hand. We cannot verify the 

assertion that bull trout were introduced 

by man to the upper Powder River Basin 

and thus are not native to the area. We 

are not ignoring or disregarding the 

reports that suggest bull trout may have 

been planted in some streams in the 

Elkhorn Mountains in the early 1900s. 

It is just not possible to verify those 

reports or to conclude from them that 

bull trout did not exist in the area prior 

to those introductions. Documented 

information on the historic distribution 

of bull trout in other nearby Snake River 

tributaries is compelling evidence that 

they are likely native inhabitants of the 

Powder River. 

(77) Comment: Data on reported bull 

trout sightings in Rock Creek and Pine 

Creek are not scientifically valid. 

Our Response: A bull trout/brook 

trout hybrid was reported in surveys of 

Rock Creek conducted by ODFW in 

1994. Tissue samples were not collected 

so positive identification of this fish as 

a hybrid or pure bull or brook trout is 

not possible. Follow-up surveys 

conducted by the USFS did not detect 

any bull trout in Rock Creek, but 

surveyors did not search the upper 

portions of Rock Creek and North Fork 

Rock Creek, nor did they search about 

0.7 mile of creek below Eilertson 

Meadow. Reaching the conclusion that 

bull trout are absent from this creek will 

require regular, repeated surveys using 

the same protocol. Bull trout have been 

observed, by professional fish biologists, 

in Pine Creek and Salmon Creek. 

Memoranda from Mark Lacy in 1995 (a 

BLM Fish Biologist at the time) and 

Jackie Dougan (then a USFS Fish 

Biologist) to Jeff Zakel (ODFW) provide 

information on bull trout sightings in 

these drainages in 1994–1995. 

Therefore, we have designated critical 

habitat in these areas. 

(78) Comment: Special management 

considerations are already provided 

through the Powder Basin Subbasin 

Plan and the Powder/Brownlee 

Agricultural Water Quality Management 

Area Plan. 

Our Response: We have conducted a 

thorough analysis of the Powder Basin 

Subbasin Plan and the Powder/ 

Brownlee Agricultural Water Quality 

Management Area Plan to determine if 

the benefits of excluding areas covered 

by these plans from critical habitat 

outweigh the benefits of including them. 

We have determined that this plan does 

not provide a direct conservation benefit 

to bull trout or any certainty that it will 

be implemented. Therefore, we have not 

used these plans as a basis for 

exclusion. 

56226 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Unit 13: Malheur River Basin 

(79) Comment: Do not exclude the 

Malheur Basin because the Forest 

Service has not fully implemented 

INFISH and has failed to effectively 

modify and suspend its authorized 

grazing practices required under 

INFISH. The matrix of pathways and 

indicators included in the Forest 

Service 1999 biological assessment 

documented ratings of ‘‘functioning’’

and fail to meet standards. The grazing 

program on the Malheur National Forest 

is maintaining degraded baseline 

conditions according to a 2004 Service 

biological opinion. In addition, grazing 

effects on the Malheur River are likely 

to restrict bull trout range expansion or 

at least slow recovery efforts 

substantially. Information provided by 

the U.S. Forest Service did document 

maintenance of a degraded condition for 

certain indicators. The Forest Service 

rated grazing allotments as maintaining 

the current conditions with the 

expectation that they would meet the 

requirement of a near natural rate of 

recovery if the allotments were grazed 

according to standards. This and other 

information provided by the Forest 

Service helped form the basis for the 

Service’s biological opinions referenced 

by the commenter. The Service has 

expressed concerns in the past with 

grazing effects to bull trout on the 

Malheur National Forest and is working 

closely with the Forest Service to help 

decrease impacts to bull trout and their 

habitats due to grazing activities. 

Response: The Malheur National 

Forest recently completed its 2004 

grazing monitoring report which 

provided information and summaries/ 

explanations of data analyzed, collected, 

or submitted during the 2004 field 

season. The Forest Service also 

provided documentation to satisfy the 

reasonable and prudent measures 

contained in the Service’s 2004 

biological opinions by summarizing 

information collected in 2004. The 

Forest Service recommends potential 

management strategies for the 2005 

Annual Operating Instructions that are 

consistent with PACFISH and INFISH. 

A critical habitat designation will not 

result in improvement of the conditions 

in the areas designated in and of itself. 

Critical habitat designation can only 

prevent erosion of the baseline levels of 

the PCEs. Forest Service management 

under INFISH actually takes positive 

steps to improve conditions in the 

aquatic habitat. The Forest Service 

expects that these strategies will move 

riparian and stream conditions towards 

desired conditions. The Service will 

continue to work with the Forest 

Service, and assist them in development 

and implementation of appropriate and 

effective monitoring strategies. In 

addition, we have determined that the 

Malheur National Forest management 

plan as currently implemented provides 

at least the same special management 

and protection as a critical habitat 

designation and goes beyond what a 

critical habitat designation provides by 

enhancing and restoring habitat. We 

have determined under Forest Service 

management that the Malheur National 

Forest does not meet the definition of 

critical habitat in 3(5)(a) and we have 

excluded the Malheur National Forest 

from critical habitat because the benefits 

of excluding areas covered under 

PACFISH and INFISH outweighed the 

benefits of inclusion (see Section 3(5)(A) 

and Exclusions Under Section 4(b)(2) 

section below). 

Unit 16: Salmon River Basin 

(80) Comment: Not all bull trout 

habitat in the Salmon River basin 

should be critical habitat. 

Our Response: Not all bull trout 

habitat in the Salmon River basin has 

been proposed or designated as critical 

habitat. Numerous streams were not 

proposed for designation for any, or a 

combination of, the following reasons: 

(1) Bull trout are not known to be 

present; (2) the habitat has low or no 

potential for bull trout occupation (low 

elevation, inherently warm water, not 

historically occupied, etc.); (3) the 

habitat does not currently contain, or 

have the potential to contain, one or 

more PCEs; and (4) the habitat was 

deemed not necessary to meet draft 

recovery plan objectives (i.e., nonessential potential populations). 

Of those streams that were proposed 

as critical habitat, not all were 

designated. Areas covered under 

PACFISH, INFISH, and the Snake River 

Basin Adjudication were excluded (see 

Section 3(5)(A) and Exclusions Under 

Section 4(b)(2) section below). 

(81) Comment: Salmon River bull 

trout are very healthy and not at risk. 

Our Response: While it is true that 

Salmon River bull trout populations are 

relatively healthy, they are located in 

areas that contain the features essential 

to the conservation of bull trout. Areas 

that are already adequately protected by 

other management plans, and where the 

benefits of excluding areas from critical 

habitat outweigh the benefits of 

inclusion, exclusions have been applied 

(see Section 3(5)(A) and Exclusions 

Under Section 4(b)(2) section below). 

(82) Comment: Bull trout are rare in 

Jordan Creek of the Upper Salmon River 

and critical habitat should not be 

designated there. 

Our Response: We did not exclude 

areas based on rarity of bull trout. The 

2002 critical habitat proposal included 

stream segments known to be occupied. 

In our analyses of the species for the 

draft recovery plan and proposed 

critical habitat for bull trout, we 

determined that it is necessary to 

maintain as many currently occupied 

areas as possible to facilitate recovery of 

the species. Jordan Creek supports a 

local population of bull trout. It is likely 

that the local population occurring in 

Jordan Creek was historically, and is 

currently, supported by migratory bull 

trout from the Yankee Fork and larger 

streams, although monitoring has not 

yet observed this life history strategy. 

Lower Jordan Creek is important for 

providing connectivity between the bull 

trout local population above the mine 

and larger area of overwintering habitat 

below. Local populations not connected 

by migratory fish are believed to be at 

a substantially greater risk of 

extirpation. 

Unit 17: Southwest Idaho River Basins 

(83) Comment: Exclude Boise, 

Payette, and Weiser river basins for 

economic and social reasons in addition 

to exclusions based on the Snake River 

Basin Adjudication plan. 

Our Response: In our 2002 proposed 

critical habitat rule we proposed 

approximately 2,792 km (1,735 mi) of 

streams in the Boise, Payette, and 

Weiser river basins. The economic 

analysis did not identify costs justifying 

an economic exclusion with the Snake 

River basin. Section 4(b)(2) of the Act 

allows us to consider the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

Therefore, the Secretary of Interior has 

excluded the area covered by the Snake 

River Basin Adjudication plan based on 

collaborative partnerships that have 

resulted in a settlement agreement 

benefiting bull trout conservation and 

where the benefits of excluding these 

areas outweigh the benefits of including 

them in the designation (Exclusions 

Under Section 4(b)(2) section below). 

The Secretary received inadequate 

information to make a determination 

that the economic and social benefits of 

exclusion outweighed the benefits of the 

designation. 

(84) Comment: Many areas in 

Southwest Idaho do not have sufficient 

PCEs. 

Our Response: The 2002 proposed 

critical habitat rule was developed 

based on the best available information 

at that time. In order for a stream to be 

proposed as critical habitat, it must have 

sufficient PCEs to sustain at least one 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56227 

essential life process of the species. 

However, a stream did not have to 

contain all PCEs to be proposed as 

critical habitat. In fact, many streams in 

southwest Idaho do not have all of the 

PCEs, but do have sufficient PCEs for 

bull trout to meet this standard. Streams 

that did not contain the necessary 

habitat for bull trout (e.g., including one 

or more primary constituent elements), 

and streams inherently incapable of 

becoming bull trout habitat were not 

proposed for designation. Those streams 

that were included will have existing 

conditions included in the baseline for 

future section 7 consultations. 

Unit 19: Lower Columbia River Basin 

(85) Comment: Describe the validity 

of Cougar Creek, a tributary to Yale 

Reservoir in the Lewis River critical 

habitat sub-unit (CHSU), as part of the 

critical habitat designation. 

Our Response: The Settlement 

Agreement Concerning the Relicensing 

of the Lewis River Lewis River 

Hydroelectric Projects (Agreement) 

includes a perpetual conservation 

easement on PacifiCorp’s lands in the 

Cougar/Panamaker Creek area. The 

measures included in the conservation 

easement and the settlement agreement 

provide a high level of conservation 

benefit to the bull trout PCEs in Cougar 

Creek. We have determined that lands 

covered under conservation easements 

and the Agreement should be excluded 

from the designation of critical habitat 

because the benefits of excluding them 

outweigh the benefits to the species by 

including them in the designation. 

Please refer to our discussion 

concerning the exclusion of Lewis River 

Hydroelectric Projects Conservation 

Easements in the Section 3(5)(a) and 

Exclusions under Section 4(b)(2) of the 

Act section below. 

(86) Comment: Rush Creek in the 

Lewis River CHSU should be included 

in critical habitat even though it is 

covered by the Northwest Forest Plan. 

Our Response: All National Forest 

lands covered by the Aquatic 

Conservation Strategy of the Northwest 

Forest Plan have been excluded from 

the final designation because the 

Secretary determined that the lands did 

not meet the definition of critical habitat 

and the benefits of exclusion 

outweighed the benefits of inclusion 

(see Section 3(5)(A) and Exclusions 

Under Section 4(b)(2) section below). 

Unit 21: Upper Columbia River 

(87) Comment: Special management 

activities within Priest Rapids project 

should be excluded. 

Our Response: The Service has 

considered the special management 

activities within the Priest Rapids 

project area for this rule. Currently there 

is no biological opinion for bull trout or 

a settlement agreement in place 

addressing the PCEs for bull trout for 

the Priest Rapids Dam project area, and 

the PCEs for bull trout are not addressed 

by any other current management 

activities. The NOAA Fisheries 

biological opinion only covers salmon 

species. Although some habitat 

characteristics are similar for salmon 

species and bull trout, the PCEs have 

several differences. The Service Interim 

Guidelines for bull trout list some of 

these differences, which include the 

following: Fish passage and 

performance measures for salmon are 

not the same as they are for bull trout; 

bull trout exist year round in the area 

and are more closely associated with 

stream substrates; and, they also require 

a prey base year round. However, since 

the area does contain PCEs under 

current ongoing management, that 

management will be considered part of 

the baseline in future section 7 

consultations. 

(88) Comment: Additional 

consultation requirements for critical 

habitat negatively affect Grant County 

by increasing workload. 

Our Response: Because all areas in 

this designation are considered 

occupied, section 7 consultation for the 

bull trout would be required in all cases 

where consultation on bull trout critical 

habitat would be required. The Service 

has data documenting bull trout 

occurrence throughout many areas of 

the mainstem Columbia River, 

particularly between Priest Rapids pool 

and the Okanogan River. Fish from the 

Upper Columbia River Recovery Unit 

have been documented using this area 

to fulfill critical elements of their life 

cycle. A review of the amount of work 

associated with the incremental costs of 

completing consultations on bull trout 

critical habitat revealed that it was 

relatively minor. 

(89) Comment: Wells, Rocky Reach, 

Rock Island, and Comprehensive Bull 

Trout Monitoring and Management 

Plans (WBTMP, RRBTMP, RIBTMP, 

CBTMP), as well as the Anadromous 

Fish Agreement, Rocky Reach, Rock 

Island, and Douglas PUD Wells Hydro 

Project HCPs provide needed benefits to 

bull trout and their PCEs and should be 

excluded from critical habitat. 

Our Response: The Service has 

considered these plans in our evaluation 

of critical habitat. The biological 

opinion and comprehensive BTMPS do 

not fully cover all PCEs nor do they 

address all recovery tasks or issues for 

bull trout in the upper mid-Columbia 

area. The BTMPs are limited to the 

requirements of the biological opinion 

and it is unclear if other PCEs will be 

addressed. The specific studies are 

designed to be implemented with 

specific timeframes which generally 

will be implemented every 10 years 

through the life of the plan (50 years). 

The goals of the Protection, Mitigation, 

and Enhancement measures in the 

BTMPs are to identify, develop, and 

implement measures to monitor and 

address ongoing impacts to bull trout 

resulting from project operations. The 

BTMPs incorporate ‘‘Reasonable and 

Prudent Measures’’ which are required 

by the Service Biological Opinion for 

the Rock Island, Rocky Reach, and 

Wells hydroelectric project operation. 

These measures will address the 

‘‘complex stream channels (PCE #3) and 

‘‘migratory corridors’’ (PCE #7) for bull 

trout. The Service biological opinion 

states that other PCE’s are expected to 

be maintained or enhanced, but at this 

time it is unclear where or when any of 

the habitat restoration projects for the 

tributary enhancement provisions will 

occur. Therefore, we do not believe that 

these plans are an appropriate basis for 

exclusion. 

Unit 22: Northeast Washington 

(90) Comment: The critical habitat 

designation is inconsistent with the 

inclusion of Box Canyon Reservoir. 

Our Response: The Service 

acknowledges that the reservoir 

exclusion in the previous final rule was 

not applied consistently. In this final 

rule we are excluding all reservoirs that 

provide a flood control, water supply 

function, or energy generation. 

Although the Box Canyon Reservoir 

does not meet this criteria, it is being 

excluded because it is within the 

Federal Columbia River Power System 

(FCRPS) action area (see Section 3(5)(a) 

and Exclusions under Section 4(b)(2) 

section below). 

(91) Comment: The Service needs to 

add the proposed critical habitat areas 

of the Northeast Washington Unit back 

in the designation. 

Our Response: We have evaluated 

which areas meet the definition of 

critical habitat for bull trout and 

excluded areas where we have 

determined that the benefits of 

excluding those areas outweigh the 

benefits of including them as critical 

habitat (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

Unit 26: Jarbidge River 

(92) Comment: Maintaining 

connectivity is important for the 

Jarbidge River population and it is not 

56228 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

clear if connectivity is included in the 

PCEs for this population. 

Our Response: We agree that 

migratory corridors are important and 

provide connectivity among local 

populations and access between 

spawning, overwintering, and foraging 

habitats within the Jarbidge River 

population area. The Jarbidge River bull 

trout population has been isolated from 

other bull trout populations by dams 

and diversion structures for over 100 

years (Gilbert and Evermann 1894). The 

distance between occupied habitats in 

the Jarbidge River and Columbia River 

populations is approximately 150 river 

miles (rmi) (240 river kilometers (rkm)). 

Critical habitat was not proposed for 

these areas of unknown bull trout 

occupancy. 

(93) Comment: Salmon Falls Creek, 

Idaho should be designated as critical 

habitat for the Jarbidge River bull trout 

population. 

Our Response: Salmon Falls Creek is 

not occupied by bull trout, and therefore 

under the Act, it cannot be designated 

as critical habitat unless it is essential 

for the conservation of the species. 

Salmon Falls Creek is a tributary to the 

Snake River in Idaho. It historically 

provided spawning and rearing habitat 

for anadromous fish, including Chinook 

salmon (Oncorhynchus tshawytscha) 

and steelhead. Since Salmon Falls Creek 

Dam was constructed in 1910, the lower 

30 mi (48 km) of the stream have been 

significantly altered by upstream 

reservoir storage and water diversions. 

Migration barriers, water diversions, 

high water temperatures, sedimentation, 

and nonnative fish introductions are 

likely contributing factors to the loss of 

anadromous fish species in this 

watershed. This watershed is outside 

the boundary of the geographical area 

occupied by the Jarbidge River bull trout 

population, and bull trout from the 

listed Jarbidge River population do not 

have access to Salmon Falls Creek due 

to a number of intervening dams and 

diversion structures. Due to poor bull 

trout habitat quality and inaccessibility 

it is not essential for the conservation of 

the Jarbidge River population, and is not 

included in the designation. 

(94) Comment: Buck Creek, a tributary 

to the West Fork of the Jarbidge River, 

should be added to critical habitat 

designated for the Jarbidge River 

population because it is similar to 

adjacent known occupied bull trout 

streams and could support multiple life 

history requirements of bull trout. 

Our Response: Bull trout have not 

been documented in Buck Creek or its 

tributaries during infrequent surveys (G. 

Johnson, Nevada Department of 

Wildlife, in litt 1993a, b; G. Johnson, 

NDOW, pers. comm. 2003). We are 

currently unable to determine that Buck 

Creek is essential to the conservation of 

the species based on its undocumented 

use by bull trout and potentially 

disconnected reaches of suitable habitat. 

Because we cannot be certain that this 

habitat would ever be occupied by bull 

trout, the Secretary could not make a 

determination that is essential to the 

conservation of the species, and thus 

did not designate it as critical habitat. 

(95) Comment: Critical habitat should 

include the entire hydrologic watershed 

for the East/West Forks of Jarbidge 

River, Jarbidge River, and Bruneau 

River. 

Our Response: We acknowledged in 

the proposed rule that upstream habitat, 

as well as adjacent terrestrial habitat, 

can influence the quality of aquatic 

habitat downstream. Although the East 

and West Forks of the Jarbidge River, as 

well as the mainstem river, are occupied 

bull trout habitats containing features 

essential to the conservation of the 

species we have excluded these areas 

from the designation after carefully 

weighing the benefits of inclusion 

versus the benefits of exclusion (see 

Section 3(5)(a) and Exclusions under 

Section 4(b)(2) section below). 

Although the Bruneau River has been 

identified as bull trout habitat in some 

publications (Conley 1993; Lee et al. 

1997), there are no records documenting 

bull trout use. Bull trout may have 

migrated from the Snake River through 

the lower Bruneau River and into the 

Jarbidge River for spawning, similar to 

Chinook salmon. Bull trout from the 

Jarbidge River have access to the 

Bruneau River, and we support 

implementing research to detect 

seasonal use of the Bruneau River by 

bull trout. Research could clarify the 

importance of the habitat to potential 

numbers of large migratory bull trout if 

the Jarbidge River population expands. 

Unit 27: Olympic Peninsula 

(96) Comment: The Quinault River 

consists of surface water from Lake 

Quinault and thus has an unsuitable 

temperature profile for bull trout. It is 

also part of the Quinault Indian Nation 

lands; therefore, it should not be 

designated as critical habitat. 

Our Response: Temperatures in the 

Quinault River are influenced by 

temperatures in Lake Quinault, and 

during certain times of the year those 

temperatures likely exceed optimum 

temperatures for bull trout. 

Temperatures are naturally warm in the 

summer in the Quinault River below 

Lake Quinault. Bull trout have been 

documented in tributaries to the lower 

Quinault River and in the river itself. 

Water temperatures in the river change 

in response to the season (colder in 

winter, warmer in summer). Bull trout 

seasonally use the river when 

temperatures are cooler. Also, the river 

contains a prey base for the bull trout. 

We do not expect the water temperature 

profile to change in the future and 

expect that bull trout will continue to 

use the river. The nearshore land 

adjacent to the lake affects water quality 

in the lake. Only a small portion of the 

shoreline and habitat that affects the 

lake is within the Quinault Indian 

Reservation. The portion of the 

nearshore that is within the reservation, 

and included in the Quinault Forest 

Management Plan, is excluded from 

critical habitat. 

(97) Comment: The Quinault River 

downstream of Lake Quinault does not 

require special management and 

therefore should be excluded. 

Our Response: That area is addressed 

in the Quinault Indian Reservation’s 

Forest Management Plan and is 

excluded from the Quinault River 

downstream of Lake Quinault. 

(98) Comment: Cook Creek is poor 

habitat and inappropriate as critical 

habitat. 

Our Response: Cook Creek has 

documented bull trout occurrence. The 

habitat quality is rated as ‘‘fair to good’’

by an analysis of limiting factors for the 

Quinault River watershed (WSCC 2001). 

Monthly temperature data indicate that 

stream temperatures are within the 

temperature range given in PCE 1 (see 

Primary Constituent Elements section 

below) and are suitable for bull trout 

most of the year. The summer 

temperatures in the creek are colder 

than in the river, and Cook Creek likely 

provides important cold water refuge 

during the summer months, as well as 

forage during certain periods of the year. 

The portion of Cook Creek, from its 

mouth to approximately rmi 4.8 (rkm 

7.7), is addressed in the Forest 

Management Plan for the Quinault 

Indian Reservation and excluded from 

designated critical habitat. 

(99) Comment: The Raft River and 

other coastal streams need further 

evaluation before being designated as 

critical habitat. 

Our Response: The Raft River and 

other coastal streams have documented 

foraging and overwintering habitat, 

features essential for bull trout 

conservation. Although these streams 

and rivers do not support spawning bull 

trout populations, they seasonally do 

provide foraging and overwintering 

habitat for bull trout that spawn in other 

coastal rivers. The portion of the Raft 

River included in the Quinault Indian 

Reservation Forest Management Plan is 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56229 

excluded from designated critical 

habitat. 

(100) Comment: The proposed rule 

states that the Quinault Tribe owns less 

than 1 percent of proposed critical 

habitat and this underrepresents actual 

ownership. 

Our Response: After further review, 

our Geographic Information System 

(GIS) indicates that the Quinault tribal 

ownership is 2.7 percent of the 

proposed critical habitat designation for 

the Coastal-Puget Sound bull trout 

population. 

(101) Comment: Certain beach areas 

should be excluded because they are 

owned by the Quinault Indian Nation. 

Our Response: There are areas in 

nearshore marine waters adjacent to 

beach areas owned by the Quinault 

Indian Nation that have features 

essential to bull trout conservation. 

However, these beach areas are not 

addressed in the Quinault Indian 

Reservation Forest Management Plan. 

These nearshore marine waters may be 

affected by activities such as 

development, bank armoring, 

bulkheading, or dredging occurring in or 

near the beach and shoreline areas. 

Therefore, these areas require special 

management considerations or 

protections to ensure any proposed 

Federal actions do not destroy or 

adversely modify the critical habitat, 

and thus are designated as critical 

habitat. 

(102) Comment: The Skokomish 

Tribe’s lands, and other tribally owned 

lands in that vicinity, do not provide 

important contributions to critical 

habitat because they are below 500 feet 

(ft) (152 meters (m)) elevation in areas 

where there is no spawning and rearing 

habitat. 

Our Response: The portion of the 

Skokomish River within the Skokomish 

Reservation boundaries is below 500 ft 

(152 m) elevation. However, this area 

and other tribal lands below 500 ft (152 

m) in elevation provide important 

foraging, migratory, and overwintering 

habitat for bull trout. These habitats 

contain the features essential to the 

species’ conservation, especially the 

fluvial and amphidromous life history 

forms. However, this portion of the 

Skokomish River is excluded from 

designated critical habitat based on the 

Skokomish Tribe’s conservation 

program. Portions of waterbodies within 

or adjacent to Swinomish, Muckleshoot, 

Jamestown S’Klallam, Hoh, Skokomish 

and Quinault tribal lands are also 

excluded (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(103) Comment: Additional Hood 

Canal nearshore habitat should be 

included in the designation. 

Our Response: Critical habitat is 

designated on the south and west shores 

of Hood Canal based on the presence of 

PCEs, availability of forage fish, and the 

proximity to streams known to be 

occupied by bull trout. We have no 

information suggesting that bull trout 

use streams draining into the eastern 

shore of Hood Canal. Therefore, we have 

not designated critical habitat along the 

eastern shore. 

(104) Comment: The Skokomish Tribe 

has adequate management in place, or 

in preparation, that precludes the need 

to designate critical habitat. 

Our Response: The Skokomish Tribe 

has a conservation program that 

provides aquatic resource protection 

and restoration through a number of 

collaborative efforts on the reservation 

and other trust lands. As a result, we are 

excluding from this critical habitat 

designation those portions of the 

Skokomish River, Nalley Slough, 

Skobob Creek, and Hood Canal 

nearshore within the Skokomish Indian 

Reservation. 

(105) Comment: The U.S. Navy (Navy) 

believes that the area proposed for 

extending the Naval Undersea Warfare 

Center, Division Keyport (NUWC 

Keyport) should be excluded based on 

planned section 7 consultations. 

Our Response: We do not exclude 

areas based on future section 7 

consultations. However, NUWC Keyport 

has an approved INRMP that provides a 

benefit to the species for which critical 

habitat is proposed for designation. 

Therefore it has not been included in 

the final critical habitat designation, per 

section 4(a)(3) of the Act (see Noninclusions under Section 4(a)(3) section 

below). 

(106) Comment: The Wynoochee, 

Satsop, and Canyon Rivers are not 

appropriate critical habitat. 

Our Response: This designation is 

based on the best scientific and 

commercial information available and 

only includes habitat where bull trout 

have been documented and which 

contains features essential to bull trout 

conservation. Bull trout often migrate 

long distances from their natal streams 

to find suitable foraging or 

overwintering habitat. Streams that are 

not known to contain spawning bull 

trout populations were included in 

critical habitat when they provide 

documented foraging, migratory, and 

overwintering habitat for bull trout. 

Although not known as spawning 

streams, the Wynoochee, Satsop, and 

Canyon Rivers contain PCEs of critical 

habitat and bull trout use these areas for 

foraging, migrating, and overwintering. 

Therefore, we have included these areas 

in the designation. 

(107) Comment: The Navy believes 

that training and testing areas, including 

Crescent Harbor, Hood Canal, and 

Dabob Bay, should be excluded from 

critical habitat. 

Our Response: The area of Hood 

Canal, outside of Dabob Bay, where the 

Navy conducts activities, is not within 

or adjacent to proposed critical habitat 

and is not included in final critical 

habitat. The Navy conducts training and 

testing within the marine waters of 

Crescent Harbor and Dabob Bay. 

Because these activities are conducted 

in open marine waters, they are not 

included in the military’s INRMPs. 

However, limitations on access to, the 

use of, or the enhancement of the 

existing capabilities and capacities of 

these ranges would limit or curtail both 

testing and fleet support functions 

performed by NUWC Keyport for 

undersea warfare. 

These areas have been defined on 

National Oceanic and Atmospheric 

Administration (NOAA) charts for over 

50 years and operating areas have been 

further delineated in recent public 

environmental documentation. NEPA 

analyses, conducted for these areas 

within the past 5 years, include 

biological assessments evaluating effects 

on endangered species that were 

reviewed and approved by NOAAFisheries and the Service. These 

biological assessments and associated 

environmental assessments addressed 

bull trout and interactions with range 

operations. Based on the above 

considerations, the importance of these 

areas for national security, and 

consistent with direction provided in 

section 4(b)(2) of the Act, the Navy 

training and testing areas of Crescent 

Harbor and Dabob Bay have been 

excluded from designated critical 

habitat (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section below). 

(108) Comment: What are the 

conservation values of the upper North 

Fork Skokomish River and Lake 

Cushman? Designation of habitat in 

these areas conflicts with the Service’s 

decision not to propose critical habitat 

in highly fragmented areas. 

Our Response: Although hydroelectric 

dams have affected bull trout in the 

North Fork Skokomish River, and the 

two dams operated by Tacoma City 

Light prevent upstream and downstream 

passage of bull trout, we do not believe 

that this results in ‘‘highly fragmented 

habitats in highly fragmented areas.’’

The North Fork Skokomish River 

represents a significant amount of 

56230 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

remaining bull trout habitat along Hood 

Canal and is essential to the 

conservation and recovery of bull trout 

in the Skokomish core area and thus, is 

not excluded from the critical habitat 

designation. 

(109) Comment: The Service 

erroneously assumes that there is 

downstream connectivity between bull 

trout located in the upper North Fork 

Skokomish River and bull trout located 

in other parts of the Skokomish River. 

Our Response: Historic accounts 

(since the 1920s) indicate bull trout 

were present in the original Lake 

Cushman and upper North Fork 

Skokomish River prior to the river’s 

impoundment. Bull trout in Lake 

Cushman and the upper North Fork 

Skokomish River have been continually 

monitored since 1970, and surveys have 

counted bull trout there as recently as 

2004. This area comprises one of two 

local populations in the Skokomish 

River area. Construction of the two 

dams has largely eliminated 

downstream migration and interaction 

with bull trout in the South Fork 

Skokomish River, although for other 

hydroelectric projects it is well 

documented that fish do occasionally 

escape mortality through turbines or are 

spilled downstream of a dam. 

(110) Comment: The Service 

inappropriately assumes that 

connectivity for the upper North Fork 

Skokomish River and Lake Cushman 

will be enhanced in the future. 

Our Response: Recovery of bull trout 

in the Skokomish River core area will 

require addressing connectivity in the 

North Fork Skokomish River. Bull trout 

were documented in Lake Cushman and 

the North Fork Skokomish River above 

the lake in 2004. Bull trout have also 

been recently documented in the North 

Fork Skokomish River below the dams. 

Bull trout have not been documented in 

the section of the river between the two 

dams (Lake Kokanee), and this section 

is not being designated based on the 

Federal Energy Regulatory Commission 

(FERC) license requiring passage at both 

dams. Implementation of the FERC 

license for the Cushman Project is 

expected to result in the construction of 

trap-and-haul fish passage facilities that 

will restore connectivity between the 

lower and upper North Fork, but will 

bypass and isolate the inundated 2.3 

mile long Lake Kokanee segment. 

Requiring fish passage at the Cushman 

dams is part of the 1998 FERC license 

order and is the best available 

information at this time (FERC 1998). 

(111) Comment: The upper North 

Fork Skokomish River should be 

excluded from critical habitat 

designation because it is located almost 

entirely within Olympic National Park 

(Park), and the Park should be excluded 

because of their land use restrictions. 

Our Response: At present, the Park 

does not have a general management 

plan that guides the Park’s management 

and provides for bull trout conservation. 

A general management plan is currently 

under internal Park review and is 

scheduled to go out for public review in 

the next year or so. It is our 

understanding that the plan will present 

several alternatives ranging from 

increased visitor access and 

development to more resource 

protection. We do not know how this 

plan will address bull trout 

conservation but will review the Park’s 

plan when it becomes available. 

Because there is no plan that we can 

review to determine if the Park will 

provide the appropriate special 

management required for the 

conservation of bull trout PCEs in that 

area this area was not excluded from the 

critical habitat designation. 

Unit 28: Puget Sound 

(112) Comment: Quilceda Creek and 

its tributary Edgecombe Creek in 

Washington should be designated 

critical habitat. 

Our Response: Although it is possible 

that bull trout foraged in these two 

creeks in the past and may currently use 

these streams on occasion to forage, 

there is no clear documentation of the 

use by bull trout in this system. This 

does not mean these streams cannot or 

will not contribute to bull trout 

recovery, but rather that they were not 

determined to be essential to the 

species’ conservation, and thus are not 

designated as critical habitat. 

(113) Comment: The U.S. Army 

(Army) requests that the marine 

nearshore areas and Nisqually River 

adjacent to Fort Lewis be excluded from 

designation of critical habitat because of 

the existing INRMP. For its installations, 

the Navy believes that existing INRMPs 

for Whidbey Island Seaplane Base and 

Naval Station Everett provide 

justification for their non-inclusion from 

critical habitat. 

Response: Fort Lewis has an approved 

INRMP that provides a benefit to the 

species for which critical habitat is 

proposed for designation. Therefore 

areas covered by the INRMP have not 

been included in the final critical 

habitat designation, per section 4(a)(3) 

of the Act (see Non-inclusions Under 

Section 4(a)(3) section below). 

(114) Comment: The designation is 

not appropriate for four streams, three 

pocket estuaries, and the nearshore 

waters of, and adjacent to, the 

Swinomish Tribal Reservation. 

Our Response: We believe that the 

nearshore areas are essential based on 

the current use of these areas by 

amphidromous bull trout for foraging 

and migration, and because they contain 

the PCEs. Therefore, only the marine 

nearshore waters, including the 

Swinomish Channel, associated with 

the Swinomish Reservation were 

proposed and designated as critical 

habitat. The other four streams were not 

part of our proposal. 

(115) Comment: The Swinomish 

Tribe’s habitat management plan 

provides a sufficient level of protection 

to bull trout and their habitat, and 

therefore those portions of waterbodies 

on or adjacent to Swinomish tribal lands 

should be excluded from the 

designation. 

Our Response: We have excluded 

those lands covered by the Swinomish 

Tribe’s habitat management plan (see 

Section 3(5)(A) and Exclusions under 

Section 4(b)(2) section below). 

Comments From States 

Nevada 

(116) Comment: Those most affected 

by the designation have not been 

involved in this designation of critical 

habitat for the Jarbidge River population 

of the bull trout. 

Our Response: Throughout the 

process of designating critical habitat, 

we attempted to include those 

interested in the designation of critical 

habitat for the Jarbidge River 

population, as well as the Coastal-Puget 

Sound and Saint Mary-Belly River 

populations, of the bull trout in the rulemaking process. We solicited public 

comment through two public comment 

periods and one public hearing, 

accepting oral and written comments. 

We also held four local public meetings 

in Idaho and Nevada specifically 

regarding critical habitat proposed for 

the Jarbidge River population. We 

diligently tried to be responsive to the 

concerns raised and to address those 

concerns during the development of this 

final critical habitat designation. 

(117) Comment: No information is 

presented to suggest that conservation of 

the Jarbidge River population is 

necessary to ensure the persistence of 

bull trout in the coterminous unit. 

Our Response: We considered all 

available data on the Jarbidge River bull 

trout population during the listing 

process (63 FR 31693, 64 FR 17110, 64 

FR 58910), and available data that 

developed since the listing, to designate 

critical habitat for the Jarbidge River 

bull trout population. The Jarbidge 

River population is located in the 

southernmost habitat currently 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56231 

occupied by bull trout. This population 

is geographically segregated from other 

bull trout in the Snake River basin by 

more than 150 rmi (240 rkm) of 

unsuitable habitat and several 

impassible dams on the mainstem Snake 

River and the lower Bruneau River. It is, 

however, essential to the conservation 

of bull trout as a whole, as discussed in 

the draft recovery plans. 

(118) Comment: Streams within the 

Jarbidge River population range have 

not been demonstrated to contain PCEs 

for bull trout. 

Our Response: All streams identified 

as essential and designated as critical 

habitat for the Jarbidge River population 

contain one or more of the PCEs. Only 

those streams with documented bull 

trout occurrence are designated. 

Variable types and amounts of habitat 

data are available for these streams to 

document the presence of PCEs and are 

in our administrative record for this 

final rule. 

(119) Comment: Many plans already 

in place for bull trout protection don’t 

need critical habitat (the comment letter 

listed many plans). 

Our Response: Although there are 

many plans currently in place that 

directly or indirectly benefit bull trout, 

many are interim measures, they 

improve water quality only, there is no 

formal management plan, or they are 

designed to improve habitat on small 

scale watersheds. Where we could 

determine that the plans provided 

protection or management equal to that 

of a critical habitat designation, we have 

not included those lands, or otherwise 

we have designated critical habitat 

where appropriate (see Section 3(5)(A) 

and Exclusions Under Section 4(b)(2) 

section below). 

Washington 

(120) Comment: Washington 

Department of Fish and Wildlife 

(WDFW) stated that Lake Washington 

and the Nisqually River are 

inappropriate as critical habitat because 

they are little used transient habitats for 

bull trout from other core areas. 

Our Response: Recent tagging studies 

have clearly shown that amphidromous 

bull trout have complex migratory 

patterns within marine waters and 

between watersheds. We believe that 

current and future use of foraging, 

migratory, and overwintering habitats 

outside their natal basins is essential to 

the survival and conservation of bull 

trout, especially the amphidromous life 

history form. We expect that, as bull 

trout populations increase in 

abundance, bull trout use of the 

Nisqually River and Lake Washington 

will increase due to the abundant 

foraging opportunities provided by 

these systems. Historically, bull trout 

were reported as abundant in the 

Nisqually River. In addition, spawning 

may still occur within the basin as 

suggested by the recent capture of a 

smolt-sized bull trout in the Nisqually 

River delta (C. Ellings, in litt. 2004). 

These areas therefore, remain in the 

critical habitat designation. 

(121) Comment: The proposed critical 

habitat designation falls short of 

protecting nearshore habitats essential 

to the conservation of bull trout by not 

including the shoreline riparian areas, 

bluffs, and uplands above the mean 

higher high water (MHHW) mark. These 

areas provide lateral recruitment of 

spawning substrates for surf smelt the 

principal food source for bull trout in 

the northern Puget Sound area. With the 

existing development along the Puget 

Sound shoreline, the source for suitable 

spawning gravels for surf smelt is very 

limited and protection of these last few 

areas is essential to the conservation of 

bull trout. 

Our Response: We recognize that 

similar to the influence that riparian 

and floodplain areas have on stream 

habitat in freshwater systems, the 

quality of the habitat within the marine 

nearshore is intrinsically related to the 

character of the shoreline riparian areas, 

bluffs, and uplands, and the human 

activities that occur above the MHHW 

mark. Activities that may destroy or 

adversely modify critical habitat are 

identified as those that alter the PCEs to 

an extent that the value of critical 

habitat for the conservation of bull trout 

is appreciably reduced, including 

alterations to foraging habitat and 

reductions in forage fish abundance. 

Therefore, although areas above the 

MHHW mark are not included as critical 

habitat, in the designation, we 

recognized the scientific basis for 

linking the quality of the nearshore 

environment with the biological and 

physical processes that occur outside of 

that environment (see Critical Habitat 

Designation section below). During 

section 7 consultations for projects that 

could cause changes to such areas 

adjacent to critical habitat, the effects on 

the critical habitat would be analyzed 

and protection from adverse 

modification ensured. 

(122) Comment: The old Lewis River 

channel (bypass reach) should be 

designated as critical habitat. 

Our Response: The upper bypass 

reach was not included in the final 

critical habitat designation because it 

does not contain PCEs. Specifically, we 

do not believe it will support successful 

bull trout spawning and incubation. The 

lower segment of the bypass reach from 

Yale Reservoir to the mouth of Ole 

Creek is designated as critical habitat, 

except for that portion of the lower 

segment covered by the Washington 

Department of Natural Resources HCP 

which is excluded under 4(b)(2) (see 

Exclusions Under Section 4(b)(2) of the 

Act section below). The remaining 

lower segment provides foraging, 

migratory, and overwintering habitat for 

Yale Reservoir bull trout. 

(123) Comment: The lower mainstem 

Lewis River, below Merwin Dam, 

should not be designated as critical 

habitat. 

Our Response: The lower mainstem 

Lewis River will provide foraging, 

migration, and overwintering habitat 

once fish passage at Merwin, Yale, and 

Swift Dams is restored. We anticipate 

increased use by bull trout of the 

mainstem with these passage 

improvements. Restoring connectivity 

among local populations and to the 

Columbia River is necessary to maintain 

opportunities for genetic exchange, reestablishment of local populations, and 

provide access to additional habitat. 

Recent information documents use of 

the mainstem Columbia River by adult 

bull trout for foraging, migration, and 

overwintering. 

(124) Comment: WDFW stated that 

until Condit Dam is removed, it is 

difficult to justify the designation of the 

White Salmon River above the dam as 

critical habitat. 

Our Response: There has been a 

sighting of bull trout in the White 

Salmon River upstream from Condit 

Dam as recently as 1989. The 

designation provides foraging, 

migration, and overwintering habitat 

(necessary PCEs) for a potentially 

remnant population of bull trout within 

the White Salmon River system. The 

White Salmon River below Condit Dam 

is also used by migratory bull trout from 

other river systems, such as the Hood 

River. With the restoration of two-way 

passage at Condit Dam, this will provide 

access to habitat in the upper White 

Salmon River for these populations as 

well. 

Oregon 

(125) Comment: Attributing one third 

of the consultation costs to bull trout in 

the economic analysis for the 

Willamette system is likely too high. 

Passage modifications at dams in the 

Willamette would not likely be made 

solely for bull trout, given the presence 

of listed salmon and steelhead. 

Response: As described in section 

2.2.2 of the Final Economic Analysis 

(FEA), ‘‘[n]o clear allocation of costs can 

be made between these species, as most 

of the project modifications would be 

56232 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

sought under both the NOAA and 

Service consultations.’’ Furthermore, 

the FEA acknowledges the concern 

regarding the Willamette. It states’’

‘‘one-third of estimated costs are 

allocated to each [salmon, steelhead, 

and bull trout] species. This is likely to 

overstate the cost of bull trout 

conservation rather than understate it, 

since the primary driving force behind 

these project modifications is the 

salmon’’ (pg. 2–24). As a result, we are 

not excluding this area from the critical 

habitat designation based on economics. 

(126) Comment: The Economic 

Analysis for critical habitat designations 

in the Malheur Basin is too high. Some 

operational changes at Beulah Reservoir 

have already been implemented and 

cost less than the annual estimate for 

Bureau of Reclamation (BOR) provided, 

and additional activities can be done for 

less than estimated. 

Response: As described in section 

4.2.4 of the FEA, BOR submitted a 

comment on the draft economic analysis 

stating that its ‘‘current average annual 

cost [associated with bull trout 

consultation] for the Boise (Anderson 

Ranch and Arrowrock Reservoirs), 

Payette (Cascade and Deadwood 

Reservoirs), Malheur (Buelah and Warm 

Springs Reservoirs), and Powder 

(Phillips and Thief Valley Reservoirs) is 

approximately $250,000 for all projects 

combined.’’ As five of these reservoirs 

are currently operating under the terms 

of section 7 bull trout consultations, 

including Beulah Reservoir, the finding 

is that such consultations may result in 

annual fish passage and research costs 

of $50,000 per year per reservoir (page 

4–25). In addition, we received a letter 

from Oregon DNR indicating the costs 

attributed to their basin’s designation 

were too high. The analysis was 

updated with this new information, as 

reflected in section 4.2.4 of the Final 

Economic Analysis. As a result, we are 

not excluding this area from the critical 

habitat designation based on economics. 

(127) Comment: Oregon Department 

of Fish and Wildlife (ODFW) questioned 

the exclusion of the John Day Basin 

based on the subbasin plan and Federal 

Columbia River Power System (FCRPS) 

given the uncertainty of the 

implementation of the management 

actions on mainstem and tributary 

streams. 

Our Response: Programs, plans, and 

other authorities used to exclude certain 

areas that were originally proposed, 

have been re-evaluated to determine 

their benefit for exclusion versus the 

benefit of designating as critical habitat. 

We have revised the rule to now include 

this area as critical habitat based on this 

re-evaluation. 

(128) Comment: ODFW believes that 

designations of unoccupied habitat are 

important for the re-introduction of 

extirpated populations or expansion of 

existing populations, and are the most 

important areas in need of protection. 

Our Response: Because there was 

insufficient information for the 

Secretary to make a determination that 

unoccupied areas were essential to the 

conservation of the species, we have 

only designated areas of known 

occupancy that are known to contain 

the PCEs essential to the conservation of 

the species. We did not include areas of 

unknown occupancy in the final critical 

habitat designation because we did not 

have adequate information for the 

Secretary to determine that specific 

unoccupied areas were essential to the 

bull trout’s conservation. We based this 

designation on the best scientific and 

commercial information available. Many 

streams not included in this designation 

can and will contribute to bull trout 

recovery, but do not meet the definition 

of critical habitat. We evaluated 

comments documenting stream 

segments that are not essential and 

where appropriate, refined this final 

critical habitat rule (See Summary of 

Changes from the Proposed Rule section 

below). 

(129) Comment: The Clackamas River 

should be designated as critical habitat. 

Our Response: The Clackamas River is 

not designated as critical habitat 

because the Service determined it is not 

essential to the conservation of bull 

trout in the Willamette River Basin Unit. 

The Willamette Recovery Unit Team 

recognized the Clackamas River as core 

habitat and not a core area based on the 

lack of data documenting bull trout in 

the Clackamas River. Bull trout are not 

known to currently inhabit the 

Clackamas River, but their presence was 

documented historically, and the 

Recovery Unit Team believes that the 

sub-basin has the necessary habitat 

elements to support the reintroduction 

of bull trout. Based on limited historical 

information, it is unknown whether 

reproducing bull trout populations 

existed previously in the Clackamas 

River. 

(130) Comment: Critical habitat 

should be designated as it was in the 

proposed rule because there is no 

assurance that within the next 10 years 

or beyond that funding will be available 

for implementation. Therefore, the state 

suggested that critical habitat in Oregon 

should be re-designated as proposed 

where these directives have been 

identified as a reason for excluding. 

Our Response: We have evaluated the 

FCRPS, the Northwest Forest Plan and 

PACFISH/INFISH, as well as other 

individual Federal and State programs 

and directives to determine their benefit 

for exclusion versus the benefit of 

designating as critical habitat. Many of 

these plans provide some level of 

conservation benefit to bull trout and 

the habitat they are known to currently 

occupy. The final rule considers the 

contribution of each individual plan, 

considers whether the lands meet the 

definition of critical habitat, and weighs 

the benefits of inclusion versus the 

benefits of exclusion when determining 

the final critical habitat designation. 

Summary of Revisions From the 

Previous Rules 

(1) Unoccupied lands were removed 

from the designation. Under the Act the 

Secretary of the Interior may only 

include unoccupied lands if she finds 

that those lands are essential to the 

conservation of the species. In the case 

of the bull trout, and based on the best 

scientific data available, it was not 

possible for the Secretary to make such 

a determination at this time. 

(2) A variety of areas were found to 

not meet the definition of critical habitat 

and lands were excluded under section 

4(b)(2) of the Act (see Section 3(5)(A) 

and Exclusions Under Section 4(b)(2) 

section below). 

(3) Lands that did not contain 

sufficient PCEs to support at least one 

of the species essential biological 

activities were removed. For example, 

the Clark Fork River between Missoula 

and Butte was proposed for designation. 

Upon further review, it was determined 

that this site is a superfund site subject 

to contamination by leaching from mine 

wastes. Another example is the middle 

fork of the Boise River, also proposed 

for designation and also subject to 

leaching of mining wastes. Proposed 

critical habitat that did not contain 

sufficient PCEs to support the species 

was removed, as was critical habitat 

where the presence of PCEs was 

speculative. The Act does not provide 

for designation based on speculative or 

prospective presence of PCEs. 

(4) The proposed critical habitat 

designation included a number of 

reaches to increase connectivity 

between populations. We received 

multiple comments that some of the 

barrier removal proposed to accomplish 

the connectivity could be detrimental to 

bull trout populations by providing 

access to competitor species such as 

lake trout, brook trout, and rainbow 

trout. We are removing those reaches 

pending a site by site determination as 

to which are appropriate for barrier 

removal. If necessary, additional critical 

habitat can be designated once those 

determinations are made. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56233 

(5) Segments were designated based 

on the contributions to bull trout life 

processes. Some segments contained all 

PCEs and supported multiple life 

processes. Some segments contained 

only a portion of the PCEs necessary to 

support the bull trout’s particular use of 

that habitat. Where a subset of the PCEs 

were present (e.g., water temperature 

during migration flows) it has been 

noted that only PCEs present at 

designation will be protected. In 

addition, some of the PCEs were present 

only at particular times of year, and not 

present at others. This led to a concern 

that by designating the area as critical 

habitat subsequent biological opinions 

would assume that the PCEs were 

constantly present, particularly in areas 

where active management (such as a 

dam) was present. Two examples of this 

are temperature and flows. We have 

designated some streams where 

appropriate temperatures occur only at 

specific times of year which coincide 

with bull trout use; but at other times 

the stream temperatures are outside the 

optimal range or may even be fatal to 

bull trout. We are concerned that our 

designation may be misinterpreted to 

require these temperatures be available 

year round as a result of the designation, 

particularly when the stream is 

controlled by upstream structures. 

Another example is flows. There are 

streams which are designated as critical 

habitat that are dry for portions of the 

year. These streams are designated 

because they are used by bull trout 

during portions of the year when the 

PCEs are present, perhaps for migration 

or foraging. Again, the assumption that 

the PCEs are present during the entire 

year is not appropriate, and could have 

serious consequences for other parties. 

Our goal is to ensure that the PCEs are 

protected when they are present as a 

result of federal actions but also to avoid 

inadvertently requiring creation of PCEs 

where they do not now occur. As a 

result, we have determined that 

explicitly placing current ongoing 

federal actions that create the PCEs in 

the baseline for the purposes of section 

7 consultations under the Act, will 

protect existing PCEs and require any 

changes in those federal actions to 

undergo consultation in order to 

determine the effect of the changes on 

critical habitat. 

Public comments in general, and 

particularly technical comments from 

local, State, and Federal agencies and 

Native American Tribes, were very 

useful in focusing the proposal to those 

areas with the features most essential to 

the conservation of the species. We held 

numerous public hearings and public 

meetings where we received specific 

technical comments that prompted 

further internal critical review of the 

proposal. The peer review process 

provided constructive criticism from 

fisheries scientists regarding our 

approach to developing the critical 

habitat proposal, as well as technical 

comments regarding specific proposed 

critical habitat areas. Through our 

working relationships with State and 

Federal agencies, we also received some 

new information after the proposal was 

issued, such as new records of bull trout 

occurrence, evidence of reproduction in 

some streams, or the lack of such 

positive survey results, as well as 

information on conservation actions 

underway within States. 

We revised the stream miles and lake 

and reservoir acreages for designated 

critical habitat for those areas not 

containing features essential to bull 

trout conservation, based on 

information supplied by comments 

received as well as information gained 

from field visits to some of the sites. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, habitat 

areas that provide essential life cycle 

needs of the species (i.e., areas on which 

are found the primary constituent 

elements, as defined at 50 CFR 

424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2).) Accordingly, when 

the best available scientific and 

commercial data do not demonstrate 

that the conservation needs of the 

species so require, we will not designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time of listing. An area 

currently occupied by the species but 

was not known to be occupied at the 

time of listing will likely but not always 

be essential to the conservation of the 

species and, therefore, included in the 

critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific and commercial data 

available. They require Service 

biologists to the extent consistent with 

the Act and with the use of the best 

scientific and commercial data 

available, to use primary and original 

sources of information as the basis for 

56234 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available in 

determining areas that are essential to 

the conservation of the bull trout. In 

designating critical habitat, we reviewed 

the approaches to the conservation of 

the species undertaken by local, State, 

and Federal agencies; tribal 

governments; and private individuals 

and organizations since the species was 

listed in 1998. We relied on information 

collected by the bull trout Recovery 

Unit Teams, which were comprised of 

Federal, State, tribal, and private 

biologists, as well as experts from other 

scientific disciplines such as hydrology 

and forestry, resource users, and other 

stakeholders with an interest in bull 

trout and the habitats they depend on 

for survival. We reviewed available 

information concerning bull trout 

habitat use and preferences, habitat 

conditions, threats, limiting factors, 

population demographics, and the 

known locations, distribution, and 

abundances of bull trout. We designated 

no areas outside the geographical area 

presently occupied by the species. 

During our evaluation of information, 

we also took into account the relatively 

low probability of detection of bull trout 

in traditional fish sampling and survey 

efforts, as well as the limited extent of 

such efforts across the range of bull 

trout. Because of their varied life history 

strategies, nocturnal habits, and low 

population densities in many areas, the 

detectability of bull trout in a given area 

is highly variable (Rieman and McIntyre 

1993). In some areas, adult and subadult 

bull trout make extensive migrations 

both within and outside their core areas, 

which makes surveying difficult. Much 

of the current information on bull trout 

presence is the product of informal 

surveys or sampling conducted for other 

species or other purposes. The primary 

limitations of informal surveys are that 

they provide no estimate of certainty 

(i.e., a measure of the probability of 

detection), and that they may be 

inadequate for determining population 

parameters such as the densities and 

distribution of the population. The need 

for a statistically sound bull trout survey 

protocol has been addressed only 

recently through the development, by 

the American Fisheries Society, of a 

peer-reviewed protocol for determining 

presence/absence, and potential habitat 

suitability for juvenile and resident bull 

trout (Peterson et al. 2002). 

Consequently, we considered all 

documented occurrences of bull trout in 

the past 20 years as evidence of 

occupancy. 

We used information gathered during 

the bull trout recovery planning process, 

as supplemented by even more recent 

information developed by State 

agencies, tribes, U.S. Forest Service, and 

other entities, in developing this final 

critical habitat designation. We used 

data concerning habitat conditions or 

status of PCEs when available. To 

address areas where data gaps exist, we 

solicited expert opinions from 

knowledgeable fisheries biologists in the 

local area. 

We also reviewed available 

information pertaining to the habitat 

requirements of this species. Important 

considerations in selecting areas for 

designated critical habitat include 

factors specific to each river system, 

such as size (e.g., stream order), 

gradient, channel morphology, 

connectivity to other aquatic habitats, 

and habitat complexity and diversity, as 

well as rangewide recovery 

considerations. We took into account 

that preferred habitat for bull trout 

ranges from small headwater streams 

used largely for spawning and rearing, 

to downstream mainstem portions of 

river networks used for rearing and 

FMO habitat. 

Our methods included consideration 

of information regarding habitat 

essential to maintaining the migratory 

life history forms of bull trout, in light 

of the repeated emphasis about the 

importance of such habitat in the 

scientific literature (Rieman and 

McIntryre 1993; Hard 1995; Healey and 

Prince 1995; Rieman et al. 1995; 

Montana Bull Trout Scientific Group 

(MBTSG) 1998; Dunham and Rieman 

1999; Nelson et al. 2002). Material 

reviewed included data in reports 

submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits; 

research published in peer-reviewed 

academic theses and agency reports; and 

regional GIS overlays. Habitat for 

movement upstream, downstream and, 

in some cases, through marine waters is 

essential for migratory life history forms 

for spawning, foraging, growth, access to 

rearing and overwintering areas or 

thermal refugia (e.g., spring-fed streams 

in late summer), avoidance of extreme 

environmental conditions, and other 

normal behavior. Successful migration 

requires biologically, physically, and 

chemically unobstructed routes for 

movement of individuals. Therefore, our 

methods included considering 

information regarding habitat that is 

essential for movement into and out of 

larger rivers, because of the importance 

of such areas to the fluvial form of bull 

trout. We similarly identified habitat 

essential for movement between streams 

and lakes by adfluvial forms and habitat 

essential for movement into and through 

marine waters by amphidromous forms. 

Migratory corridors also are essential 

for movement between populations 

(Fraley and Shepard 1989; Rieman and 

McIntyre 1993; Rieman et al. 1995; 

Dunham and Rieman 1999). Thus, in 

addition to considering areas important 

for migration within populations, our 

method also included considering 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56235 

information regarding migration 

corridors necessary to allow genetic 

exchange between local populations. 

Corridors that allow such movements 

can support eventual recolonization of 

unoccupied areas or otherwise play a 

significant role in maintaining genetic 

diversity and metapopulation viability 

(see the June 25, 2004 proposed rule; 69 

FR 35767). Because these factors are 

important in identifying the features 

and areas that are essential to bull trout 

conservation, our method included 

consideration of the various roles that 

migratory corridors have for bull trout. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we consider 

those physical and biological features 

(PCEs) that are essential to the 

conservation of the species, and within 

areas occupied by the species at the 

time of listing, that may require special 

management considerations and 

protection. These include, but are not 

limited to space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to the conservation of the bull trout. All 

areas designated as critical habitat for 

bull trout are occupied, within the 

species’ historic geographic range, and 

contain sufficient PCEs to support at 

least one life history function. 

Bull trout exhibit a number of lifehistory strategies. Stream-resident bull 

trout complete their entire life cycle in 

the tributary streams where they spawn 

and rear. Some bull trout are migratory, 

spawning in tributary streams where 

juvenile fish usually rear from 1 to 4 

years before migrating to either a larger 

river (fluvial) or lake (adfluvial) where 

they spend their adult life, returning to 

the tributary stream to spawn (Fraley 

and Shepard 1989). These migratory 

forms occur in areas where conditions 

allow for movement from upper 

watershed spawning streams to larger 

downstream waters that contain greater 

foraging opportunities (Dunham and 

Rieman 1999). Resident and migratory 

forms may be found together, and either 

form can produce resident or migratory 

offspring (Rieman and McIntyre 1993). 

Bull trout in the Coastal-Puget Sound 

area are believed to include an 

anadromous form which migrates to 

saltwater to mature, returning to streams 

to spawn (64 FR 58912). 

Bull trout are opportunistic feeders, 

with food habits that primarily are a 

function of size and life history strategy. 

Resident and juvenile migratory bull 

trout prey on terrestrial and aquatic 

insects, macro-zooplankton, and small 

fish (Donald and Alger 1993; McPhail 

and Baxter 1996). Adult migratory bull 

trout feed almost exclusively on other 

fish (Rieman and McIntyre 1993). 

Bull trout have more specific habitat 

requirements than most other salmonids 

(Rieman and McIntyre 1993). Habitat 

components that particularly influence 

their distribution and abundance 

include water temperature, cover, 

channel form and stability, spawning 

and rearing substrate conditions, and 

migratory corridors (Fraley and Shepard 

1989; Goetz 1989; Watson and Hillman 

1997). 

Relatively cold water temperatures are 

characteristic of bull trout habitat. Water 

temperatures above 15 °Celsius (C) (59 

°Fahrenheit (F)) while not lethal are 

believed to limit their distribution 

(Fraley and Shepard 1989; Rieman and 

McIntyre 1996). Although adults have 

been observed in large rivers throughout 

the Columbia River basin in water 

temperatures up to 20 °C (68 °F), Gamett 

(1999) documented steady and 

substantial declines in abundance in 

stream reaches where water temperature 

ranged from 15 to 20 °C (59 to 68 °F). 

Thus, water temperature may partially 

explain the generally patchy 

distribution of bull trout in a watershed. 

In large rivers, bull trout are often 

observed ‘‘dipping’’ into the lower 

reaches of tributary streams, and it is 

suspected that cooler waters in these 

tributary mouths may provide important 

thermal refugia, allowing them to forage, 

migrate, and overwinter in waters that 

would otherwise be, at least seasonally, 

too warm. Spawning areas often are 

associated with cold-water springs, 

groundwater infiltration, and the coldest 

streams in a given watershed (Pratt 

1992; Rieman and McIntyre 1993; 

Rieman et al. 1997). 

Throughout their lives, bull trout 

require complex forms of cover, 

including large woody debris, undercut 

banks, boulders, and pools (Fraley and 

Shepard 1989; Watson and Hillman 

1997). Juveniles and adults frequently 

inhabit side channels, stream margins, 

and pools with suitable cover (Sexauer 

and James 1997). McPhail and Baxter 

(1996) reported that newly emerged fry 

are secretive and hide in gravel along 

stream edges and in side channels. They 

also reported that juveniles are found 

mainly in pools but also in riffles and 

runs that they maintain focal sites near 

the bottom, and that they are strongly 

associated with instream cover, 

particularly overhead cover. Bull trout 

have been observed overwintering in 

deep beaver ponds or pools containing 

large woody debris (Jakober 1995). 

Adult bull trout migrating to spawning 

areas have been recorded as staying two 

to four weeks at the mouths of spawning 

tributaries in deeper holes or near log or 

cover debris (Fraley and Shepard 

(1989)). 

The stability of stream channels and 

stream flows are important habitat 

characteristics for bull trout populations 

(Rieman and McIntyre 1993). The side 

channels, stream margins, and pools 

with suitable cover for bull trout are 

sensitive to activities that directly or 

indirectly affect stream channel stability 

and alter natural flow patterns. 

Watson and Hillman (1997) 

concluded that watersheds must have 

specific physical characteristics to 

provide the necessary habitat 

requirements for bull trout spawning 

and rearing, and that the characteristics 

are not necessarily ubiquitous 

throughout the watersheds in which 

bull trout occur. The preferred 

spawning habitat of bull trout consists 

of low-gradient stream reaches with 

loose, clean gravel (Fraley and Shepard 

1989). Bull trout typically spawn from 

August to November during periods of 

decreasing water temperatures 

(Swanberg 1997). However, migratory 

forms are known to begin spawning 

migrations as early as April, and to 

move upstream as much as 250 km (155 

mi) to spawning areas (Fraley and 

Shepard 1989; Swanberg 1997). Fraley 

and Shepard (1989) reported that 

initiation of spawning by bull trout in 

the Flathead River system appeared to 

be related largely to water temperature, 

with spawning initiated when water 

temperatures dropped below 9–10 °C 

(48 to 50 °F). Goetz (1989) reported a 

temperature range from 4 to 10 °C (39 

to 50 °F) (Goetz 1989). Such areas often 

are associated with cold-water springs 

or groundwater upwelling (Rieman et al. 

1997; Baxter et al. 1999). Fraley and 

Shepard (1989) also found that 

groundwater influence and proximity to 

cover are important factors influencing 

spawning site selection. They reported 

that the combination of relatively 

specific requirements resulted in a 

restricted spawning distribution in 

relation to available stream habitat. 

Depending on water temperature, egg 

incubation is normally 100 to 145 days 

(Pratt 1992). Water temperatures of 1.2 

to 5.4 °C (34.2 to 41.7 °F) have been 

56236 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

reported for incubation, with an 

optimum (best embryo survivorship) 

temperature reported to be from 2 to 4 

°C (36 to 39 °F) (Fraley and Shepard 

1989; McPhail and Baxter 1996). 

Juveniles remain in the substrate after 

hatching, such that the time from egg 

deposition to emergence of fry can 

exceed 200 days. During the relatively 

long incubation period in the gravel, 

bull trout eggs are especially vulnerable 

to fine sediments and water quality 

degradation (Fraley and Shepard 1989). 

Increases in fine sediment appear to 

reduce egg survival and emergence 

(Pratt 1992). Juveniles are likely 

similarly affected. High juvenile 

densities have been reported in areas 

characterized by a diverse cobble 

substrate and a low percent of fine 

sediments (Shepard et al. 1984). 

The ability to migrate is important to 

the persistence of local bull trout 

subpopulations (Rieman and McIntyre 

1993; Gilpin 1997; Rieman and Clayton 

1997; Rieman et al. 1997). Bull trout rely 

on migratory corridors to move from 

spawning and rearing habitats to 

foraging and overwintering habitats and 

back. Migratory bull trout become much 

larger than resident fish in the more 

productive waters of larger streams and 

lakes, leading to increased reproductive 

potential (McPhail and Baxter 1996). 

The use of migratory corridors by bull 

trout also results in increased 

dispersion, facilitating gene flow among 

local populations when individuals 

from different local populations 

interbreed, stray, or return to nonnatal 

streams. Also, local populations that 

have been extirpated by catastrophic 

events may become reestablished as a 

result of movements by bull trout 

through migratory corridors (Rieman 

and McIntyre 1993, Montana Bull Trout 

Scientific Group (MBTSG) 1998). 

While stream habitats have received 

more attention, lakes and reservoirs also 

figure prominently in meeting the life 

cycle requirements of bull trout. For 

adfluvial bull trout populations, lakes 

and reservoirs provide an important 

component of the core foraging, 

migrating, and overwintering habitat, 

and are integral to maintaining the 

adfluvial life history strategy that is 

commonly exhibited by bull trout. 

When juvenile bull trout emigrate 

downstream to a lake or reservoir from 

the spawning and rearing streams in the 

headwaters, they enter a more 

productive lentic environment that 

allows them to achieve rapid growth 

and energy storage. Typically, juvenile 

bull trout are at least two years old and 

100 mm (4 inches) or longer upon entry 

to the lake environment. For the next 2–

4 years they grow rapidly. At a typical 

age of five years or older, when total 

length normally exceeds 400 mm (16 

inches), they reach sexual maturity. The 

lake environment provides the 

necessary attributes of food, space, and 

shelter for the subadult fish to prepare 

for the rigors of migratory passage 

upstream to the natal spawning area, a 

migration that may last as long as six 

months and cover distances as much as 

250 km (155 mi) upriver. 

In comparison to streams, lake and 

reservoir environments are relatively 

more secure from catastrophic natural 

events. They provide a sanctuary for 

bull trout, allowing them to quickly 

rebound from temporary adverse 

conditions in the spawning and rearing 

habitat. For example, if a major wildfire 

burns a drainage and eliminates most or 

all aquatic life (a rare occurrence), bull 

trout subadults and adults that survive 

in the lake may return the following 

year to repopulate the system. In this 

way, lakes and reservoirs provide an 

important adaptive element of the 

adfluvial life history strategy. 

The construction of reservoirs may 

have had adverse effects to bull trout, 

but some reservoirs also have provided 

benefits. For example, the basin of 

Hungry Horse Reservoir has functioned 

adequately for fifty years as a surrogate 

home for stranded Flathead Lake bull 

trout trapped upstream of the dam when 

it was completed. While this is an 

artificial impoundment, the habitat the 

reservoir provides and the presence of 

an enhanced prey base of native 

minnows, suckers, and whitefish within 

the reservoir sustain a large adfluvial 

bull trout population. Additionally, 

while barriers to migration are often 

viewed as a negative consequence of 

dams, the connectivity barrier at Hungry 

Horse Dam has also served an 

important, albeit unintended, function 

in restricting the proliferation of 

nonnative Salvelinus species (brook 

trout and lake trout) from downstream 

areas upstream above the dam. 

Additional information related to bull 

trout biology can be found in our 

administrative record. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the bull trout’s PCEs 

are: 

(1) Water temperatures that support 

bull trout use. Bull trout have been 

documented in streams with 

temperatures from 32 to 72 °F (0 to 22 

°C) but are found more frequently in 

temperatures ranging from 36 to 59 °F 

(2 to 15 °C). These temperature ranges 

may vary depending on bull trout life 

history stage and form, geography, 

elevation, diurnal and seasonal 

variation, shade, such as that provided 

by riparian habitat, and local 

groundwater influence. Stream reaches 

with temperatures that preclude any 

bull trout use are specifically excluded 

from designation; 

(2) Complex stream channels with 

features such as woody debris, side 

channels, pools, and undercut banks to 

provide a variety of depths, velocities, 

and instream structures; 

(3) Substrates of sufficient amount, 

size, and composition to ensure success 

of egg and embryo overwinter survival, 

fry emergence, and young-of-the-year 

and juvenile survival. This should 

include a minimal amount of fine 

substrate less than 0.25 inch (0.63 

centimeter) in diameter. 

(4) A natural hydrograph, including 

peak, high, low, and base flows within 

historic ranges or, if regulated, currently 

operate under a biological opinion that 

addresses bull trout, or a hydrograph 

that demonstrates the ability to support 

bull trout populations by minimizing 

daily and day-to-day fluctuations and 

minimizing departures from the natural 

cycle of flow levels corresponding with 

seasonal variation; 

(5) Springs, seeps, groundwater 

sources, and subsurface water to 

contribute to water quality and quantity 

as a cold water source; 

(6) Migratory corridors with minimal 

physical, biological, or water quality 

impediments between spawning, 

rearing, overwintering, and foraging 

habitats, including intermittent or 

seasonal barriers induced by high water 

temperatures or low flows; 

(7) An abundant food base including 

terrestrial organisms of riparian origin, 

aquatic macroinvertebrates, and forage 

fish; 

(8) Permanent water of sufficient 

quantity and quality such that normal 

reproduction, growth, and survival are 

not inhibited. 

This designation protects PCEs 

necessary to support the life history 

functions which were the basis for the 

designation. Because not all life history 

functions require all the PCEs, not all 

habitat will contain all the PCEs. 

Each of the areas designated in this 

rule have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of the 

bull trout. In some cases, the PCEs exist 

as a result of ongoing federal actions. As 

a result, ongoing federal actions at the 

time of designation will be included in 

the baseline in any consultation 

conducted subsequent to this 

designation. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56237 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat on 

lands that we have determined are 

occupied at the time of listing and 

contain sufficient primary constituent 

elements to support life history 

functions essential for the conservation 

of the species. We reevaluated the 

proposed designations based on public 

comment, peer review of the proposed 

rules and the draft Recovery Plans, the 

economic analyses of the proposed 

rules, and the public comments on those 

analyses, and other available 

information, to ensure that the 

designation accurately reflects habitat 

with the PCEs that is essential to the 

conservation of the species. 

This critical habitat designation 

focuses primarily on the maintenance of 

populations by (1) protecting sufficient 

amounts of spawning and rearing 

habitat in upper watershed areas; (2) 

providing suitable habitat conditions in 

downstream rivers and lakes to provide 

foraging and overwintering habitat for 

fluvial and adfluvial fish; and (3) 

maintaining migratory routes and the 

potential for gene flow between 

populations by maintaining habitat 

conditions that allow for fish passage. 

To be included as critical habitat, a 

critical habitat unit (CHU) had to be 

occupied by the species and contain 

sufficient PCEs to provide for one or 

more of the following three functions: 

(1) Spawning, rearing, foraging, or 

overwintering habitat to support 

existing bull trout local populations; (2) 

movement corridors necessary for 

maintaining migratory life-history 

forms; and/or (3) suitable occupied 

habitat that is essential for recovering 

the species. 

A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our administrative 

record for this rulemaking. 

Non-Inclusions Under Section 4(a)(3) 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete, by 

November 17, 2001, an Integrated 

Natural Resource Management Plan 

(INRMP). An INRMP integrates 

implementation of the military mission 

of the installation with stewardship of 

the natural resources found on the base. 

Each INRMP includes an assessment of 

the ecological needs on the installation, 

including the need to provide for the 

conservation of listed species; a 

statement of goals and priorities; a 

detailed description of management 

actions to be implemented to provide 

for these ecological needs; and a 

monitoring and adaptive management 

plan. Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management, fish and wildlife habitat 

enhancement or modification, wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108–

136) amended the ESA to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the ESA (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. INRMPs developed by military 

installations located within the range of 

critical habitat designated for the 

Columbia and Coastal-Puget Sound 

populations of bull trout were analyzed 

for non-inclusion under the authority of 

4(a)(3) of the Act. 

The Bayview Acoustic Research 

Detachment (ARD) Naval Surface 

Warfare Center, Bayview, ID, has an 

approved INRMP. This property 

includes approximately 22 ac (9 ha) of 

developed land on the shore of Lake 

Pend Oreille and 16 ac (7 ha) of lake 

area. There are no tributary streams 

within this area utilized by bull trout for 

spawning or early life rearing, but the 

lake area does contain important FMO 

habitat for bull trout. 

Designating critical habitat on 

Bayview ARD could impact their role in 

supporting ongoing U.S. Navy research, 

development, test, and evaluation 

programs in underwater acoustics. 

These efforts include the use of large 

scale models to simulate the 

characteristics of current and future 

Navy submarines in order to develop 

and evaluate advances in submarine 

silencing technology. Performing 

acoustic testing on large scale models 

provides the same accuracy as testing on 

actual submarines at a significantly 

lower cost. Bayview ARD is the only 

Navy facility capable of testing large 

scale models for hull-induced flow 

noise and propulsor noise, and the 

knowledge gained from these tests are 

directly applied to reducing the 

detectability of Navy submarines 

(Department of the Navy 2003). Bayview 

ARD’s INRMP outlines protection and 

management strategies for natural 

resources on the center, including fish 

species and their habitats. 

The plan benefits bull trout through 

the protection of kokanee salmon 

spawning habitat, a primary food source 

for bull trout. The ARD Bayview 

property in Scenic Bay hosts from 40–

70 percent of the kokanee spawning 

activity in Lake Pend Oreille, depending 

on the year. The INRMP includes 

measures to minimize impacts to 

kokanee habitat by limiting facility boat 

traffic during spawning periods 

(November-December), and 

implementing sediment control 

measures. Furthermore, interpretive 

signs have been placed throughout the 

property to educate employees and the 

public regarding various aspects of the 

regions natural resources, threatened or 

endangered species (including bull 

trout), and geological history. The 

INRMP requires the natural resource 

manager to provide an all hands ARD 

INRMP awareness training to facilitate 

INRMP implementation. 

Eurasian watermilfoil was identified 

in the northern part of Lake Pend 

Oreille during the winter of 2002. 

Following identification and mapping of 

invasive species at ARD Bayview, a plan 

will be developed under the INRMP to 

control invasive species at the facility 

and to limit their spread to adjacent 

lands. Eurasian watermilfoil chokes 

waterways and near shore environments 

used by bull trout and their prey 

species. 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(a)(3)(B)(i) of the 

Act, we have determined that 

conservation efforts identified in the 

final INRMP will provide benefits to the 

bull trout occurring in the lake area 

within or adjacent to the Bayview ARD. 

Approximately 16 ac (7 ha) of essential 

habitat is not included in this critical 

habitat designation. Therefore, we are 

not including critical habitat for bull 

trout on this installation pursuant to 

section 4(a)(3) of the Act. 

The Naval Radio Station Jim Creek, 

Naval Station Everett, Naval Air Station 

Whidbey Island, and the Army’s Fort 

Lewis Installation (Fort Lewis) are all 

located in western Washington and all 

have approved INRMPs. We have 

56238 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

examined the INRMPs for these military 

installations to determine coverage for 

the bull trout. The Naval Radio Station 

Jim Creek INRMP provides for (1) 

restoration of riparian buffers along Jim 

Creek, (2) protection to Jim Creek from 

erosion and sedimentation, and (3) 

protection to Jim Creek from 

contaminants and herbicides. The Naval 

Station Everett’s INRMP benefits bull 

trout by providing (1) protection to bull 

trout in the marine environment from 

oil spills around the berthing naval 

vessels, (2) bioswales to prevent the 

release of toxins, contaminants and oils 

from reaching the water column through 

storm drains, and (3) the restoration of 

riparian habitat on Navy lands located 

along the Middle Fork Quilceda Creek. 

Naval Aviation Station Whidbey 

Island’s INRMP benefits bull trout 

through (1) monitoring and managing 

livestock grazing, (2) managing road 

building and maintenance to prevent 

erosion and sedimentation of bull trout 

habitat, (3) assuring proper disposal of 

hazardous materials, and (4) 

implementation of the Integrated Pest 

Management plan’s best management 

practices to protect aquatic 

environments. The INRMP for the U.S. 

Army, Fort Lewis, benefits bull trout 

through (1) the protection and 

enhancement of wetlands, which 

include marshes, lakes, rivers and 

streams; all wetlands are protected with 

300 foot-wide riparian buffers to 

maintain cold water temperatures, 

prevent sediment from entering the 

streams and provide for woody debris, 

(2) control of invasive plant species 

which often diminishes water quality 

and impacts native plants and animals, 

and (3) restoring salmon spawning 

habitat and access to increase salmon 

productivity which contributes to and 

enhances the bull trout prey base. In 

addition, the Navy conducts essential 

training and testing within the marine 

waters of Crescent Harbor and Dabob 

Bay. These activities are conducted in 

open marine waters not controlled by 

the military, and are not included in 

adjacent military INRMPs. However, 

because these training and testing 

activities are essential for national 

security, they have been excluded from 

the final designation of critical habitat 

under section 4(b)(2) of the Act. 

These military installations with 

INRMPs do not have streams that are 

utilized by bull trout for spawning and 

rearing. The Naval Radio Station Jim 

Creek occurs in the Jim Creek 

watershed. The lower reaches of Jim 

Creek provide foraging habitat for 

subadult and adult bull trout. The Naval 

Station Everett and Naval Air Station 

Whidbey Island property includes land 

on or near the shores of Puget Sound 

that contains important foraging and 

migration habitat for amphidromous 

bull trout. Fort Lewis borders the 

Nisqually River and Puget Sound where 

the mainstem Nisqually River and Puget 

Sound nearshore bordering this 

property contain important foraging and 

migration habitat for amphidromous 

bull trout. 

Habitat features essential to bull trout 

conservation exists within or 

immediately adjacent to these military 

installations. Designating critical habitat 

on these military installations may 

impact their role in supporting ongoing 

military exercises and operations that 

occur at these locations. These military 

installations all have approved INRMPs, 

and activities occurring on these 

properties are currently being 

conducted in a manner that minimizes 

impacts to bull trout habitat. In 

addition, these installations already 

consult with us on their actions 

(including those occurring in the open 

water training and testing areas) that 

may have adverse affects to bull trout 

and their habitat under section 7 

requirements. 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that conservation efforts 

identified in the INRMPs will provide 

benefits to the bull trout occurring in 

streams within or adjacent to Naval 

Radio Station Jim Creek, Naval Air 

Station Whidbey Island, and Fort Lewis. 

Approximately 25 mi (40 km) of 

essential habitat is not included in this 

critical habitat designation. Therefore, 

we are not including critical habitat for 

bull trout on these installations 

pursuant to section 4(a)(3) of the Act. 

Section 3(5)(A) and Exclusions Under 

Section 4(b)(2) 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographic area occupied by 

the species on which are found those 

physical and biological features (i) 

essential to the conservation of the 

species, and (ii) which may require 

special management considerations or 

protection. Therefore, areas within the 

geographic area occupied by the species 

that do not contain the features essential 

to the conservation of the species are 

not, by definition, critical habitat. 

Similarly, areas within the geographic 

area occupied by the species that 

require no special management or 

protection also are not, by definition, 

critical habitat. 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans as well as 

management under Federal agencies 

jurisdictions can provide protection and 

management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 

making this determination, we examine 

whether the plan provides management, 

protection, or enhancement of the PCEs 

that is at least equivalent to that 

provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if [s]he determines that 

the benefits of such exclusion outweigh 

the benefits of specifying such area as 

part of the critical habitat, unless [s]he 

determines, based on the best scientific 

and commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species. In making that 

determination, the Secretary is afforded 

broad discretion and the Congressional 

record is clear that in making a 

determination under the section the 

Secretary has discretion as to which 

factors and how much weight will be 

given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56239 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

Relationship Between Adverse 

Modification and Jeopardy in Bull 

Trout and Bull Trout Critical Habitat 

Consultations 

In Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service, 

the Ninth Circuit held that the Service’s 

regulatory definition of ‘‘destruction or 

adverse modification’’ was contrary to 

the ESA because it required an affect on 

the survival of the species, in addition 

to an effect on recovery. In response, on 

December 9, 2004, the Acting Director of 

the Service issued guidance on 

conducting section 7 consultations with 

respect to critical habitat until a new 

regulatory definition could be put in 

place. The analytical framework 

presented in this memo directs us to 

consider whether, with implementation 

of the proposed action, critical habitat 

would remain functional to serve the 

intended conservation role for the 

species. 

Although Gifford Pinchot provides 

guidance regarding the interpretation of 

the statutory phrase ‘‘destruction or 

adverse modification,’’ it does not 

directly speak to the meaning of 

‘‘jeopardy.’’ In order to determine the 

benefits of including or excluding an 

area as critical habitat, we must 

consider the application of both of these 

terms, and how they will be affect the 

outcomes of future section 7 

consultations regarding bull trout. 

In its jeopardy determinations under 

bull trout Section 7 consultations, the 

Service uses an analytical framework 

that relies heavily on the importance of 

core area populations to the survival 

and recovery of the bull trout. This has 

been the case for all jeopardy 

consultations on the bull trout. These 

analyses have focused not only on the 

core area populations but also on the 

habitat conditions necessary to support 

them; they have addressed the survival 

and recovery needs of the bull trout in 

a qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, if a proposed 

Federal action is incompatible with the 

viability of the affected core area 

population(s), inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted. This 

approach is predicated on the Service’s 

regulatory definitions of ‘‘harm’’ and 

‘‘take’’ which explicitly require a 

consideration of an agency action’s 

effects on habitat, whether or not it is 

designated as critical. 

Subsequent to the 9th circuit’s 

decision in Gifford Pinchot the Service 

has conducted both a jeopardy and 

adverse modification analysis for 

consultations involving critical habitat. 

In conducting the adverse modification 

analysis, the Service has applied the 

analytical framework described in the 

Director’s December 9, 2004, 

memorandum. The ultimate question in 

this analysis is whether, with 

implementation of the proposed Federal 

action, the primary constituent elements 

of affected critical habitat would remain 

functional to serve the intended 

conservation role for the bull trout. 

Generally, the conservation role of bull 

trout critical habitat units is to support 

viable core area populations, as a result, 

adverse modification to that habitat 

would result in both a jeopardy 

determination or an adverse 

modification determination. This leads 

to the conclusion, in the particular case 

of bull trout that very few examples of 

adverse modification can occur without 

also triggering a jeopardy finding. 

Some consultations (14 informals, 8 

formals) on bull trout critical habitat 

have been conducted in the 9 months 

since the original designation. These 

consultations have not resulted in 

outcomes for Federal action agencies 

different than those that would have 

resulted in consultations purely under 

the jeopardy standard. As stated earlier, 

this result is due in particular to the 

manner in which the Service conducts 

jeopardy analyses for the bull trout (by 

focusing on protection of core area 

populations and their habitats, without 

making a distinction between effects on 

survival versus recovery. The approach 

is consistent with the Gifford Pinchot 

court’s guidance with respect to adverse 

modification, because it is based on a 

standard that gauges the action’s effect 

on conservation rather than survival 

which is consistent with the court’s 

direction that the Agency go beyond 

merely a requirement that the Federal 

action cause an effect on bull trout 

survival in order to constitute adverse 

modification. 

We also note that in the 200 or so 

formal consultations completed since 

the bull trout was listed, most of the 

anticipated effects of proposed Federal 

actions on the species have not been 

biologically significant from a core-area 

perspective, and if these actions had 

been subject to the adverse modification 

standard described above, they would 

not likely have violated it. Based on our 

analysis of 137 formal consultations 

conducted during the period 1998–

2003, the following types of projects 

were proposed in bull trout-occupied 

habitat, in order of frequency (most to 

least): Multiple project actions, grazing, 

road work, bridge work, habitat 

restoration, land and resource 

management plans, mining, 

hydropower, timber harvest, recreation, 

water diversion/irrigation, research, 

land exchange, flood control, erosion 

control, pipeline construction, predator 

control, landslide remediation, instream 

crossings, weed management, dredging, 

and levee repair. 

However, at least one major Federal 

action involving significant 

modifications to natural flow patterns in 

designated critical habitat is currently in 

formal consultation, and it is likely 

(based on recent litigation patterns and 

outcomes) that the number of diversionrelated Federal actions consulted on, 

some of which may occur in critical 

habitat, will increase in the future. 

Water quality and quantity are 

significant factors (and primary 

constituent elements) influencing the 

viability of bull trout core areas. Given 

that context, it seems reasonable to 

predict that a few Federal actions will 

be found to adversely modify bull trout 

critical habitat; most of these actions 

would probably also constitute 

jeopardy. 

This analysis would be different in 

the case of critical habitat designated in 

unoccupied areas or if currently 

occupied areas subsequently become 

unoccupied. In such cases, different 

outcomes/requirements of consultation 

on critical habitat are much more likely. 

In the first case, designated unoccupied 

habitat, there would not necessarily be 

a requirement for a Section 7 

consultation in the absence of a critical 

habitat designation. This is consistent 

with the 9th Circuit’s decision in 

Defenders of Wildlife v. Flowers et al. 

2005, 414 F.3d 1066 (2005), which 

upheld a ‘‘no effect’’ determination by 

the U.S. Army Corps of Engineers in 

circumstances in which ‘‘no pygmyowls had been found to live within 

either project area. This designation 

only designates critical habitat in areas 

we have defined to be occupied, and so 

the benefits attributable to unoccupied 

habitat designation will not accrue. The 

second situation identified, whereby 

current populations disappear, 

theoretically provides a similar benefit. 

However, as a practical matter, it is 

unlikely that such a benefit would 

accrue in the foreseeable future as this 

rule defines occupied habitat as habitat 

that has documented occupancy within 

the past 20 years (see the previous 

discussion for the basis of the 

definition). Based on the FWS definition 

of occupied habitat, it would be at least 

56240 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

20 years until the protections of a 

jeopardy consultation, with its 

appurtenant habitat considerations, 

were removed. Accordingly, we do have 

a basis for believing that in the 

particular case of this bull trout critical 

habitat, designation in the particular 

case of the bull trout would not result 

in significantly different protections to 

the species. 

Benefits of Designating Critical Habitat 

in the Absence of Other Conservation 

Efforts 

The designation of critical habitat 

provides some benefits all the time and 

may in certain circumstances provide 

conservation benefits that would not 

otherwise be provided. We have 

identified three types of possible 

benefits. First, there are educational 

benefits. Second, there are 

circumstances where additional 

protections under other regulatory 

mechanisms are triggered by a 

designation. For example PACFISH/ 

INFISH has particular protections 

triggered by a designation and some 

states have regulatory regimes that 

employ the existence of designated 

critical habitat as a trigger for 

protection. Third, in the instance that a 

future Federal action would be likely to 

adversely modify critical habitat but not 

likely to jeopardize the continued 

existence of the species, the designation 

would provide a benefit. 

The benefit of including lands in 

critical habitat is that the designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for bull trout. In 

general the educational benefit of a 

critical habitat designation always exists 

although in some cases it may be 

redundant with other educational 

effects (for example habitat conservation 

plans have significant public input and 

may largely duplicate the educational 

benefit of a critical habitat designation). 

This benefit is closely related to a 

second, more indirect benefit; in that 

designation of critical habitat would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances, such as the Washington 

State Growth Management Act or 

Washington State Shoreline 

Management Act which encourage the 

protection of ‘‘critical areas’’ including 

fish and wildlife habitat conservation 

areas based on the best available 

science. Designating critical habitat 

could lead to additional State or local 

restrictions for the landowner, on top of 

conservation measures already in place. 

The benefit could accrue as a result of 

an automatic ‘‘triggering’’ based on 

existing law, or through specific, 

subsequent actions designed to protect 

the species. However, to the extent that 

local and state governments wish to 

provide additional protection for listed 

species’ habitats, there are numerous 

alternative approaches to achieve that 

end. For example, recovery plans or 

proposed critical habitat can form the 

basis for such additional protections. 

State and local agencies have 

independent authority to adopt such 

protections and do not require Federal 

authorization or direction to do so. 

Because of that, we view this benefit as 

indirect as it is not required to achieve 

the additional protection. 

The most direct, and potentially 

largest regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to unsure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation are not 

eroded. Critical habitat designation 

alone, however, does not require 

specific steps toward recovery. When 

consultation does take place, the 

analysis of whether the Federal action 

destroys or adversely modifies critical 

habitat makes a determination regarding 

the effect of the action on the species 

conservation, consistent with the 

holding of Gifford Pinchot, discussed 

above. It is important to note that even 

though, consistent with Gifford Pinchot, 

the prohibition on adverse modification 

can be triggered without a showing of an 

effect on survival (in other words, a 

negative effect on the conservation of 

the species can trigger the prohibition), 

designation of critical habitat does not 

require actions to recover the species 

beyond what may be necessary to 

address potential adverse modification 

impacts on critical habitat that supports 

recovery. There are tools (e.g., HCPs) 

that can encourage or require habitat 

restoration or improvement and other 

positive steps to help move species 

closer to being recovered. 

Another significant limitation on the 

benefits of designating critical habitat is 

the fact that as long as the area in 

question is occupied, consultation 

would in any case be required to ensure 

that the action was not likely to 

jeopardize the species. The areas that 

were proposed for designation are all 

currently occupied by bull trout. 

Therefore, designation of these areas 

could have a substantive regulatory 

effect in two circumstances: (1) The 

Service consults on a future Federal 

action, does both jeopardy and adverse 

modification analyses, and concludes 

that the action would likely adversely 

modify critical habitat but not 

jeopardize the species, or (2) the range 

of the bull trout contracts prior 

consultation, such that the area is no 

longer subject to jeopardy consultation, 

but the action would be likely to 

adversely modify critical habitat. 

Regarding the first of these 

circumstances, and in a discussion 

specific to bull trout, as discussed 

above, in analyzing whether Federal 

actions might jeopardize the continued 

existence of the bull trout, the Service 

has focused on the viability of core area 

populations, without making 

distinctions between what is necessary 

for survival versus recovery. Because 

with respect to the bull trout the Service 

views the conservation role of critical 

habitat units as supporting viable core 

area populations, the Service anticipates 

that few Federal actions (but not 

necessarily none) would adversely 

modify critical habitat but not 

jeopardize the species. 

Regarding the second of these 

circumstances, for each exclusion, the 

Service considered the possibility of 

local bull trout extirpation in the 

affected stream reaches given the data 

available. In general, the Service does 

not anticipate significant extirpations in 

the areas excluded, although such an 

event cannot be completely ruled as 

stochastic events such as a conflagration 

have in the past completely destroyed 

populations. If such an event was to 

occur, and an entire population was 

extirpated, the designation of critical 

habitat could provide important 

protection to the habitat to preserve it 

for eventual recolonization or 

reintroduction. However, as noted 

earlier, as a practical matter, the Service 

would consider the habitat occupied for 

20 years subsequent to the temporal 

extirpation, providing ample 

opportunity for restoration of the 

population. 

Notwithstanding the limitations 

discussed above, in those instances in 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56241 

which the jeopardy prohibition and 

other applicable protections would not 

adequately conserve bull trout habitat 

from the effects of Federal actions, 

designation of critical habitat could help 

ensure the integrity of bull trout habitat 

is maintained. For example, if a 

federally funded road project was 

proposed to go across lands that were 

designated as critical habitat, a 

consultation would need to be 

conducted to ensure the designated 

critical habitat was not destroyed or 

adversely modified to the point of 

appreciably diminishing its habitat 

features essential to bull trout recovery. 

The designation could therefore result 

in modifications to the Federal project 

to protect bull trout habitat. 

To the extent that designation results 

in changes to actions that have a 

negative effect on bull trout habitat, 

minimizing or mitigating that effect, or 

results in additional actions to benefit 

bull trout habitat (e.g., as a result of 

disseminating information), designation 

could benefit bull trout conservation. If 

the designation provided additional 

conservation, it could have direct 

benefits, such as those typically 

captured in an economic analysis which 

include, increased tourism or 

recreational activity. In addition, there 

could be intangible benefits that accrue 

to society in general and individuals in 

direct proportion to the value that 

society and individuals place on such 

intrinsic values as existence values and 

environmental goods. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-federal 

landowners. More than 60% of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80% of endangered or 

threatened occur either partially or 

solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12% of listed species were found 

almost exclusively on Federal lands 

(i.e., 90–100% of their known 

occurrences restricted to Federal lands) 

and that 50% of federally listed species 

are not known to occur on Federal lands 

at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-federal 

landowners (Wilcove and Chen 1998, 

Crouse et al. 2002, James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as HCPs, Safe 

Harbors, CCAs, CCAAs, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

under certain circumstances have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996, Bean 2002, 

Conner and Mathews 2002, James 2002, 

Koch 2002, Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999, Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999, Bean 2002, Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (e.g., reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. For example, 

less than 17% of Hawaii is federally 

owned, but the state is home to more 

than 24% of all federally listed species, 

most of which will not recover without 

State and private landowner 

cooperation. On the island of Lanai, 

Castle and Cooke Resorts, LLC, which 

owns 99% of the island, entered into a 

conservation agreement with the 

Service. The conservation agreement 

provides conservation benefits to target 

species through management actions 

that remove threats (e.g. axis deer, 

mouflon sheep, rats, invasive nonnative 

plants) from the Lanaihale and East 

Lanai Regions. Specific management 

actions include fire control measures, 

nursery propagation of native flora 

(including the target species) and 

planting of such flora. These actions 

will significantly improve the habitat for 

all currently occurring species. Due to 

the low likelihood of a Federal nexus on 

the island we believe that the benefits 

of excluding the lands covered by the 

MOA exceeded the benefits of including 

them. As stated in the final critical 

habitat rule for endangered plants on 

the Island of Lanai: 

On Lanai, simply preventing ‘‘harmful 

activities’’ will not slow the extinction of 

listed plant species. Where consistent with 

the discretion provided by the Act, the 

Service believes it is necessary to implement 

policies that provide positive incentives to 

private landowners to voluntarily conserve 

natural resources and that remove or reduce 

disincentives to conservation. While the 

impact of providing these incentives may be 

modest in economic terms, they can be 

significant in terms of conservation benefits 

that can stem from the cooperation of the 

landowner. The continued participation of 

Castle and Cooke Resorts, LLC, in the 

existing Lanai Forest and Watershed 

Partnership and other voluntary conservation 

agreements will greatly enhance the Service’s 

ability to further the recovery of these 

endangered plants. 

Secretary Norton’s Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation—is the foundation for 

developing the tools of conservation. 

These tools include conservation grants, 

funding for Partners for Fish and 

Wildlife Program, the Coastal Program, 

and cooperative-conservation challenge 

cost-share grants. Our Private 

Stewardship Grant program and 

Landowner Incentive Program provide 

assistance to private land owners in 

their voluntary efforts to protect 

threatened, imperiled, and endangered 

56242 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

species, including the development and 

implementation of HCPs. 

Conservation agreements with nonFederal landowners (e.g., Habitat 

Conservation Plans (HCPs), contractual 

conservation agreements, easements, 

and stakeholder-negotiated State 

regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

Conservation Efforts for Aquatic 

Systems in the Pacific Northwest 

As discussed below, much of the area 

that contains the physical and biological 

features essential for the conservation of 

bull trout have not been included 

within this final critical habitat 

designation. In large part, this is a result 

of existing management and 

conservation regimes that apply to 

watersheds in the Pacific Northwest. 

These and other state and local 

conservation planning efforts provide an 

exceptional level of cooperative 

conservation for bull trout and other 

salmonids. 

Analysis of Particular Plans and 

Areas Under Sections 3(5)(A) and 

4(b)(2) (For a complete documentation 

of our 3(5)(a) comparison of the 

protections of a critical habitat 

designation and the provisions of the 

management plans, please refer to the 

administrative record. For a complete 

documentation of our and 4(b)(2) 

analyses, please refer to our supporting 

document.) 

Nisqually National Wildlife Refuge 

The Comprehensive Conservation 

Plan (CCP) for the Nisqually National 

Wildlife Refuge (Refuge) was finalized 

in August 2004 and the ROD was signed 

on November 1, 2004. The Refuge 

encompasses the lower Nisqually River 

and delta, one of the few undeveloped 

large estuaries remaining within Puget 

Sound in Washington, and provides 

important FMO habitat for 

amphidromous bull trout. The CCP will 

guide management of Refuge operations, 

habitat restoration, and visitor services 

for the next 15 years. The preferred 

alternative maximizes estuarine 

restoration by increasing the current 

amount of FMO habitat for 

amphidromous bull trout in south Puget 

Sound, while still providing freshwater 

wetlands and riparian habitat on the 

Refuge. Restoration of the estuary is 

expected to result in increased primary 

production and thus increased food 

availability for nearly all fish species 

which depend upon estuarine and 

shallow marine habitats for survival, 

including prey fish species preferred by 

bull trout. We believe the CCP provides 

the appropriate special management 

required for the conservation of bull 

trout PCEs in this area and is, therefore, 

not appropriate for designating as 

critical habitat. 

Tribal Lands 

The longstanding and distinctive 

relationship between Federal and tribal 

governments is defined by treaties, 

statutes, executive orders, judicial 

decisions, and agreements, which 

differentiate tribal governments from the 

other entities that deal with, or are 

affected by, the Federal government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. 

We identified tribal lands within 

proposed critical habitat where there 

was a tribal management or 

conservation plan, or the commitment 

to establish such a plan, that provided 

benefits to bull trout and considered 

whether or not to exclude these lands 

from critical habitat under subsection 

4(b)(2) of the Act. Tribal lands meeting 

these criteria are: Confederated Tribes of 

Warm Springs (CTWS) in the Columbia 

River population; Blackfeet Nation in 

the Saint Mary/Belly River population; 

and Swinomish Tribe, Quinault Indian 

Nation, Muckleshoot Tribe, Jamestown 

S’Klallam Tribe, Hoh Tribe, and 

Skokomish Tribe Reservations and tribal 

lands within the Puget Sound-Coastal 

population. These tribes have played a 

significant role in the development of 

HCPs, local watershed plans, other 

habitat plans, or have conducted 

numerous habitat restoration and 

research projects designed to protect or 

improve habitat for listed species. 

The CTWS has a long history of 

carrying out proactive conservation 

actions on their lands. Our dialog with 

CTWS has led us to believe that their 

resource management strategy is largely 

compatible with bull trout conservation. 

The CTWS have cooperated with 

Federal and State agencies, and private 

organizations to implement voluntary 

proactive conservation activities on 

their lands that have resulted in tangible 

conservation benefits for bull trout. We 

expect this cooperation, and the fruit 

that it bears (i.e., bull trout 

conservation), to continue. 

The Blackfeet Nation has 

demonstrated a commitment to 

conservation, protection, and 

enhancement of the fishery resource on 

the Blackfeet Reservation. The tribe has 

supported and participated in Service 

studies to gather data for assessing 

effects of the Milk River Irrigation 

System on bull trout within the Saint 

Mary River drainage. They have 

changed angling regulations on their 

reservation to maximize bull trout 

protection since the species was listed. 

The tribe has also participated in the 

bull trout recovery planning process and 

has recently made a commitment to 

complete a tribal bull trout management 

plan (W.A. Talks About, Blackfeet 

Tribal Business Council, in litt. 2005). 

The Swinomish Tribe has a 

management plan that addresses surface 

water resources of the Swinomish 

Reservation, including marine 

tidelands, an artificial marine channel, 

estuarine wetlands, small streams, and 

freshwater wetlands. The management 

plan is based on existing knowledge and 

ongoing studies, active conservation 

practices, ordinances, and current 

management plans. It will be updated 

with new information obtained from 

ongoing surveys, habitat assessments, 

and other planning processes. The plan 

consists of regulation and 

implementation of updated tribal laws 

to protect habitat, control development, 

reduce pollution within the boundaries 

of the Reservation, restore habitat and 

remove fish passage barriers to 

contribute proactively to species 

recovery. 

The Quinault Indian Nation and the 

Bureau of Indian Affairs (BIA) recently 

developed a forest management plan 

(FMP) for the entire Quinault Indian 

Reservation. The FMP covers all 

forestland (about 173,000 ac (70,011 ha)) 

under tribal and BIA timber 

management, including individual 

Indian-owned trust and tribally owned 

land. Included in the area of the FMP 

are the lower Quinault River, the 

tributaries of the lower Quinault River, 

the lower Queets River, the Salmon 

River (including the Middle and South 

Fork Salmon Rivers), portions of the 

Raft River, and portions of the Moclips 

River. The FMP is a 10-year plan 

covering the period from October 2002 

through September 2012. The FMP is 

being implemented by the Quinault 

Department of Natural Resources and 

the BIA Taholah Field Office. Although 

some adverse effects to the bull trout are 

expected during implementation of the 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56243 

plan, it is expected to provide for bull 

trout conservation needs. 

The Skokomish Tribe has provided 

aquatic resource protection and 

restoration through a number of 

collaborative efforts on their reservation 

and other trust lands. The tribe has been 

working regularly with landowners, 

local governments, and others to 

implement and fund voluntary efforts 

that provide conservation benefits to 

salmonids, including bull trout. These 

cooperative efforts include a variety of 

investigative assessments, restoration 

and enhancement projects, property 

acquisitions, and floodplain/river reach 

analysis. 

The Muckleshoot Tribe has 

demonstrated a commitment to 

conservation, protection, and 

enhancement of fish resources both on 

and off the Muckleshoot Reservation. 

For example, the tribe has designated all 

areas of the White River within its 

reservation, from ‘‘bluff to bluff,’’ as a 

conservation zone. The tribe has also 

been a leading participant in gathering 

data for Lake Washington and preparing 

a Lake Washington Recovery Plan. 

The Jamestown S’Klallam Tribe has a 

record and reputation as a participant 

and leader in the planning and 

implementation of salmonid habitat 

protection and restoration efforts. The 

tribe is dedicated to coordinating with 

NOAA Fisheries, the Service, and with 

the State of Washington in the spirit of 

co-management, and is also involved in 

active consultation and in multiple 

programs to protect listed salmonid 

species. 

The Hoh Tribe has an FMP that 

demonstrates a commitment to protect 

bull trout habitat on or adjacent to its 

reservation. This forestry plan 

designates major portions of the 

floodplain and riparian zones adjacent 

to streams on the current reservation 

landscape for conservancy, and is filed 

with the BIA. 

(1) Benefits of Inclusion 

The principal benefit of any 

designated critical habitat is that 

Federal activities will require section 7 

consultations to ensure that adequate 

protection is provided to avoid adverse 

modification or destruction of critical 

habitat. This would provide an 

additional benefit beyond that provided 

under the jeopardy standard. In 

evaluating project effects on critical 

habitat, the Service must be satisfied 

that the primary constituent elements 

(PCEs) of the critical habitat likely will 

not be altered or destroyed by proposed 

activities to the extent that the 

conservation of the affected species 

would be appreciably reduced. If critical 

habitat were designated in areas of 

unoccupied habitat or currently 

occupied areas subsequently become 

unoccupied, different outcomes/ 

requirements are also likely since effects 

to unoccupied areas of critical habitat 

are not likely to trigger the need for a 

jeopardy analysis. 

In Sierra Club v. Fish and Wildlife 

Service, 245 F.3d 434 (5th Cir. 2001), 

the Fifth Circuit Court of Appeals stated 

that the identification of habitat 

essential to the conservation of the 

species can provide informational 

benefits to the public, State and local 

governments, scientific organizations, 

and Federal agencies. The court also 

noted that critical habitat designation 

may focus and heighten public 

awareness of the plight of listed species 

and their habitats. Designation of 

critical habitat may contribute to 

conservation efforts by other parties by 

delineating areas of high conservation 

value for the bull trout. 

(2) Benefits of Exclusion 

The benefits of excluding Indian 

lands from designation include: (1) The 

furtherance of established national 

policies, our Federal trust obligations, 

and our deference to the tribes in 

management of natural resources on 

their lands; (2) the maintenance of 

effective long-term working 

relationships to promote the 

conservation of bull trout; (3) the 

allowance for continued meaningful 

collaboration and cooperation in 

scientific work to learn more about the 

conservation needs of the species; (4) 

continued respect for tribal sovereignty 

over management of natural resources 

on Indian lands through established 

tribal natural resource programs; (5) to 

the extent designation would provide 

any additional protection of bull trout 

habitat, costs associated with that 

protection would be avoided; (6) 

exclusion would reduce administrative 

costs of section 7 consultation (as 

discussed above, these costs are 

unlikely to lead to additional actual 

protection for bull trout habitat). 

We believe that excluding these tribal 

lands from critical habitat will help 

maintain and improve our partnership 

relationship by recognizing their 

positive contribution to bull trout 

conservation. It will also reduce the cost 

and logistical burden of regulatory 

oversight. We believe this recognition 

will provide other landowners with a 

positive incentive to undertake 

voluntary conservation activities on 

their lands, especially where there is no 

regulatory requirement to implement 

such actions. 

Tribal cooperation and support is 

required to prevent extinction and 

promote the recovery of the bull trout 

due to the need to implement proactive 

conservation actions. Future 

conservation efforts will require the 

cooperation of these tribes. Exclusion of 

their lands from this critical habitat 

designation will help us maintain and 

improve our partnership with them by 

formally recognizing the positive 

contributions these tribes have made to 

bull trout recovery, and by streamlining 

or reducing unnecessary regulatory 

oversight. 

These tribes have cooperated with us 

to implement proactive conservation 

measures. They have cooperated with 

Federal and State agencies, and private 

organizations to implement voluntary 

conservation activities on their lands 

that have resulted in tangible 

conservation benefits. 

Where consistent with the discretion 

provided by the Act, we believe it is 

necessary to implement policies that 

provide positive incentives to 

voluntarily conserve natural resources 

and remove or reduce disincentives to 

conservation. Thus, we believe it is 

essential for the recovery of bull trout to 

build on continued conservation 

activities with these tribes, to provide 

positive incentives implementing 

voluntary conservation activities, and to 

respect tribal concerns about incurring 

incidental regulatory or economic 

impacts. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

It is possible, although unlikely, that 

Federal actions will be proposed that 

would be likely to destroy or adversely 

modify the habitat proposed as critical 

within the area governed by the above 

tribes. If such a project was proposed, 

due to the specific way in which 

jeopardy and adverse modification are 

analyzed for bull trout, discussed in 

detail above, it would likely also 

jeopardize the continued existence of 

the species. Few additional benefits are 

provided by including these tribal lands 

in this critical habitat designation 

beyond what will be achieved through 

the implementation of the existing tribal 

management/conservation plans. In 

addition, we expect that the benefit of 

informing the public of the importance 

of this area to bull trout conservation 

would be slight. Therefore, we assign 

relatively little weight to the benefits of 

designating this area as critical habitat. 

In contrast, although the benefits of 

encouraging participation in tribal 

management plans, and, more broadly, 

helping to foster cooperative 

conservation are indirect, enthusiastic 

56244 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

tribal participation and an atmosphere 

of cooperation are crucial to the longterm effectiveness of the endangered 

species program. Therefore, we assign 

great weight to these benefits of 

exclusion. To the extent that there are 

regulatory benefits of including, there 

would be associated costs that could be 

avoided by excluding the area from 

designation. However, as we expect the 

regulatory benefits to be slight, we 

likewise give little weight to avoidance 

of those associated costs, as well as the 

additional transaction costs related to 

section 7 compliance. Finally, we 

recognize the importance of the trust 

and sovereignty of the tribes, and 

therefore assign great weight to these 

benefits of exclusion. 

Therefore, we have determined that 

the benefits of inclusion for the tribes 

mentioned above are small, while the 

benefits of exclusion are more 

significant. Therefore, the benefits of 

exclusion outweigh the benefits of 

inclusion. Because we anticipate that 

little if any conservation benefit to the 

bull trout will be foregone as a result of 

excluding these lands, the exclusion 

will not result in the extinction of the 

bull trout. The Secretary exercises her 

discretion under section 4(b)(2) to 

exclude these areas from the 

designation. 

Military Lands 

The Navy conducts essential open 

water training and testing within the 

marine waters of Crescent Harbor and 

Dabob Bay, located within Puget Sound 

on the eastside of Whidbey Island and 

within the Hood Canal fiord, 

respectively. These areas encompass 

important marine nearshore habitat 

used by amphidromous bull trout for 

foraging and migration. NUWC Keyport 

provides state-of-the-art infrastructure 

and capabilities in the Pacific Northwest 

that have been essential to the Navy’s 

comprehensive underwater test and 

evaluation programs for undersea 

weapons, unmanned undersea vehicles, 

and related combat systems, as well as 

to the training of Fleet personnel at the 

NUWC Keyport facilities. NUWC 

Keyport testing and training activities to 

support military readiness requires 

precision underwater tracking 

capabilities, underwater range sites that 

offer diverse environments, and varied 

water depths to meet their mission of 

test and evaluation of underwater 

systems. Because these activities are 

conducted in open marine waters, they 

are not included in the military’s 

INRMP. Limitations on access to, the 

use of, or the enhancement of, the 

existing capabilities and capacities of 

these ranges would limit or curtail both 

testing and mission critical Fleet 

Support functions performed by NUWC 

Keyport for undersea warfare. These 

areas have been defined on NOAA 

charts for over 50 years and operating 

areas have been further delineated in 

recent public environmental 

documentation. A NEPA analysis for 

these areas has been conducted within 

the past 5 years, and includes biological 

assessments evaluating effects on 

endangered species, which were 

reviewed and approved by NOAAFisheries and the Service. These 

biological assessments, and associated 

environmental assessments, addressed 

bull trout and interactions with military 

range operations. 

(1) Benefits of Inclusion 

Habitat containing features essential 

to bull trout conservation exists within 

or immediately adjacent to these 

military open water training and testing 

grounds. The primary benefit of 

designating critical habitat on, or 

adjacent to, these open water training 

and testing grounds would result from 

the requirement under section 7 of the 

Act that Federal agencies consult with 

us to ensure that any proposed action 

authorized, funded, or carried out by a 

Federal agency would not destroy or 

adversely modify critical habitat. In 

addition, the designation can educate 

the public regarding the potential 

conservation value of an area. This may 

contribute to conservation efforts by 

other parties by delineating areas that 

have conservation value for the bull 

trout. 

(2) Benefits of Exclusion 

Designating critical habitat on these 

open water training and testing areas 

may impact their role in supporting 

ongoing military exercises and 

operations that occur at these locations. 

The military activities occurring at these 

sites are currently being conducted in a 

manner that minimizes impacts to bull 

trout habitat. In addition, the Navy 

already consults with us on their actions 

occurring in the open water training and 

testing areas that may have potential 

impacts to bull trout and their habitat 

under section 7 requirements. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Because of the relatively limited 

benefits arising from the designation of 

critical habitat, we believe the role 

played in supporting Navy operations, 

and the related importance to national 

security of ensuring their ability to 

maintain a high level of military 

readiness, we have determined that the 

national security benefits of excluding 

areas within or adjacent to the Crescent 

Harbor and Dabob Bay open water 

training and testing areas as critical 

habitat, outweigh the benefits of 

including them in the designation. 

Because these marine waters are 

occupied by the species, and the Navy 

has a statutory duty under section 7 to 

ensure that its activities do not 

jeopardize the continued existence of 

the bull trout, we find that the exclusion 

of these marine waters will not lead to 

the extinction of the bull trout. 

Habitat Conservation Plans 

Section 10(a)(1)(B) of the ESA 

authorizes us to issue to non-Federal 

entities a permit for the incidental take 

of endangered and threatened species. 

This permit allows a non-Federal 

landowner to proceed with an activity 

that is legal in all other respects, but 

that results in the incidental taking of a 

listed species (i.e., take that is incidental 

to, and not the purpose of, the carrying 

out of an otherwise lawful activity). The 

ESA specifies that an application for an 

incidental take permit must be 

accompanied by a conservation plan, 

and specifies the content of such a plan. 

The purpose of conservation agreements 

is to describe and ensure that the effects 

of the permitted action on covered 

species are adequately minimized and 

mitigated, and that the action does not 

appreciably reduce the survival and 

recovery of the species. 

In our assessment of conservation 

agreements associated with this final 

rulemaking the analysis required for 

these types of exclusions requires 

careful consideration of the benefits of 

designation versus the benefits of 

exclusion to determine whether benefits 

of exclusion outweigh benefits of 

designation. The benefits of designation 

typically arise from additional section 7 

protections as well as enhanced public 

awareness once specific areas are 

identified as critical habitat. The 

benefits of exclusion generally relate to 

relieving regulatory burdens on existing 

conservation partners, maintaining good 

working relationships with them, and 

encouraging the development of new 

partnerships. 

Based on comments received on our 

proposed rule, we could not conclude 

that all landowners view designation of 

critical habitat as imposing a burden, 

and exclusion from designation as 

removing that burden and thereby 

strengthening the ongoing relationship. 

While no conservation agreement 

partner affirmatively requested 

designation, we would have viewed the 

exclusion as likely to harm rather than 

benefit the relationship. Where a 

conservation agreement partner has 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56245 

remained silent on the benefit of 

exclusion of its land, we do not believe 

the record supports a presumption that 

exclusion will enhance the relationship. 

Similarly, we do not believe it provides 

an incentive to other landowners to seek 

a conservation agreement if our 

exclusions are not in response to an 

expressed landowner preference. We 

anticipate further rulemaking in the 

future to refine these designations, for 

example, in response to developments 

in recovery planning. As part of future 

revisions, we will consider information 

we receive from those with approved 

conservation agreements regarding the 

effect of designation on our ongoing 

partnership. While we have done so in 

the past, in this rulemaking we did not 

consider any pending HCPs for 

exclusion, primarily because none of the 

pending HCPs were at a point we could 

do so without prejudging the outcome of 

the ongoing HCP process and because 

we expect further changes to the 

developing HCPs. In addition, we 

expect to have future opportunities to 

refine this designation to provide credit 

for future activities on private lands as 

well as currently ongoing activities for 

which there was insufficient time to 

adequately review and make a benefits 

determination. When we review this 

designation in the future, we will 

consider whether any exclusion will 

outweigh the benefit of designation in 

any particular case. 

During the comment period we 

received comments from five 

landowners with current HCPs that they 

would consider exclusion as a benefit to 

our ongoing relationship—Washington 

Department of Natural Resources 

(WDNR), Green Diamond Resources 

Company, City of Seattle Cedar River 

Watershed, Tacoma Water Green River, 

and Plum Creek/Stimson Lumber 

Company Native Fish HCPs. 

WDNR 

The Washington Department of 

Natural Resources HCP covers about 1.6 

million acres of State forest trust lands 

within the range of the northern spotted 

owl in the state of Washington. The 

majority of the HCP (approximately 1.3 

million acres) occurs west of the 

Cascade Crest and includes the Olympic 

Peninsula and Southwest Washington. 

The remainder of the HCP occurs on the 

east side of the Cascade Mountains 

within the range of the northern spotted 

owl. The HCP covers activities primarily 

associated with commercial forest 

management. It is an ‘‘all-species’’ HCP 

west of the Cascade Crest, which 

includes bull trout and other salmonids. 

On the east side of the Cascade Crest, 

bull trout and other aquatic species are 

not covered under the HCP and DNR is 

therefore required to follow State Forest 

Practice Rules for riparian management 

and other forestry activities. The DNR 

HCP lands on the west side of the 

Olympic Peninsula are managed as the 

Olympic Experimental State Forest. The 

multi-species portion of the HCP 

depends upon several broad-scale 

conservation approaches: Spotted owl 

conservation, marbled murrelet 

conservation, riparian conservation, 

certain species-specific protection 

measures, protection of uncommon 

habitats, and provisions to maintain a 

range of forest types across the HCP 

landscape. 

Green Diamond HCP 

In October 2000, an HCP (formerly 

referred to as the Simpson Timber HCP 

and currently referred to as the Green 

Diamond HCP) was completed and an 

incidental take permit was issued for 

forestry operations on over 261,000 

acres of the company’s Washington 

timberlands located on or adjacent to 

the Olympic Peninsula in Mason, 

Thurston, and Grays Harbor Counties. 

The HCP is designed to conserve 

riparian forests, improve water quality, 

prevent management-related hill-slope 

instability, and address hydrological 

maturity of small sub-basins. The plan 

addresses five listed species including 

bull trout and 46 other species. The HCP 

covers the land owned by Green 

Diamond along the lower reaches of the 

North Fork and South Fork Skokomish 

Rivers, the upper South Fork Skokomish 

River, West Fork Satsop River, and 

Canyon River. The HCP is designed to 

conserve riparian forests, improve water 

quality, prevent management-related 

hill-slope instability, and address 

hydrological maturity of small subbasins. 

City of Seattle Cedar River Watershed 

HCP 

In April 2000, The Cedar River 

Watershed HCP was completed and an 

incidental take permit was issued to the 

City of Seattle for water withdrawal and 

water supply activities affecting flows in 

the lower Cedar River and reservoir 

levels in Chester Morse Lake. In 

addition, the plan provides for forestry 

restoration activities including riparian 

thinning, road abandonment, and timber 

stand improvement on over 91,000 acres 

in the upper Cedar River Watershed in 

King County. The HCP is designed to 

provide adequate fish flows in the lower 

Cedar River for the spawning and 

rearing of several salmonid species, to 

manage water levels in Chester Morse 

Lake and Masonry Dam Reservoir to 

benefit instream flows in the lower river 

and bull trout spawning access to lake 

tributaries, and to manage 91,000 acres 

in the upper Cedar River as an 

ecological reserve. Several research 

actions are directed at understanding 

how all life stages of bull trout use 

Chester Morse Lake and Masonry Pool 

and how adult bull trout use tributaries 

to the lake for spawning. The HCP 

covers 83 species of fish and wildlife 

including bull trout and six other listed 

species. 

Tacoma Water Green River HCP 

The Tacoma Water Green River Water 

Supply Operations and Watershed 

Protection HCP was completed in July 

of 2001 and addresses upstream and 

downstream fish-passage issues, flows 

in the middle and lower Green River, 

and timber- and watershed-management 

activities on about 15,000 acres of 

Tacoma-owned land in the upper Green 

River Watershed. The HCP covers 32 

species including bull trout. This HCP 

required close coordination with the 

U.S. Army Corps of Engineers (COE) 

because of their facility at Howard 

Hanson Dam. Tacoma’s HCP includes 

the following features: An upstream 

fish-passage facility which will open up 

220 square miles of previously blocked 

fish habitat; sponsorship and funding 

for a downstream fish-passage facility at 

the Corps of Engineers Howard Hanson 

Dam; water-flow improvements; 

improved riparian forest management 

on Tacoma’s lands; and several major 

habitat restoration projects. 

Plum Creek/Stimson Lumber Company 

Native Fish HCPs 

Plum Creek Timber Company 

initiated an effort in 1997 to develop a 

conservation strategy for native 

salmonids (including bull trout), 

occurring on 1.6 million acres of Plum 

Creek’s Timberlands in Montana, Idaho, 

and Washington. The stated purpose of 

the Plum Creek Native Fish Habitat 

Conservation Plan (NFHCP) was to help 

conserve native salmonids and their 

ecosystems while allowing Plum Creek 

to continue to conduct commercial 

timber harvest within a framework of 

long term regulatory certainty and 

flexibility. The Stimson Lumber NFHCP 

was created when the Stimson Lumber 

Company acquired certain lands 

previously owned by Plum Creek and 

assumed all of the Plum Creek NFHCP 

commitments. Because of the 

commonality, for purposes of this 

discussion, the Plum Creek and Stimson 

NFHCP are considered one and the 

same. The Plum Creek NFHCP covers 

approximately 1.4 million acres, all 

within the range of the Columbia River 

basin. NFHCP actions should maintain 

56246 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

a high-level of water quality. They are 

expected to maintain the thermal regime 

of streams within the range of normal 

variation, and contribute to the 

maintenance of complex stream 

channels, appropriate substrates, a 

natural hydrologic regime, ground-water 

sources and subsurface connectivity, 

migratory corridors, and an abundant 

food base. NFHCP actions are not 

expected to introduce or favor 

nonnative competitors or predators. In 

short, the NFHCP is expected to benefit 

the aquatic environment by providing a 

gradual improvement in the cold and 

clean water as well as complex and 

connected habitat necessary for 

protection and restoration of bull trout. 

(1) Benefits of Inclusion of the WDNR, 

Green Diamond, City of Seattle Cedar 

River Watershed, Tacoma Water Green 

River, and Plum Creek/Stimson Lumber 

Company Native Fish HCPs 

The principal regulatory benefit of 

critical habitat is that federally 

authorized, funded, or carried out 

activities require consultation pursuant 

to section 7 of the Act to ensure that 

they will not destroy or adversely 

modify critical habitat. In the recent 

Gifford Pinchot decision, the 9th Circuit 

Court of Appeals has ruled that adverse 

modification evaluations require 

consideration of impacts on the 

recovery of species. Conducting section 

7 consultations would provide benefits 

on HCP lands with a Federal nexus by 

helping ensure the integrity of these 

lands is maintained. For example, if a 

federally funded road project was 

proposed to go across respective HCP 

lands that were designated as critical 

habitat, a consultation would need to be 

conducted to ensure the designated 

critical habitat was not destroyed or 

adversely modified to the point of 

appreciably diminishing its habitat 

features essential to bull trout recovery. 

Designation of critical habitat 

facilitates state and local regulatory 

agencies in taking further protective 

measures where critical habitat is 

designated resulting in potential 

additional changes in operations at the 

aforementioned hydroelectric projects. 

In fact, State law requires consideration 

of additional rules and areas for 

protection upon designation of critical 

habitat. 

To the extent that critical habitat 

would result in environmental 

protection (e.g., changes to Federal 

projects that otherwise would have 

resulted in destruction or adverse 

modification) that would exceed the 

protection garnered from other 

environmental regulations (e.g., Clean 

Water Act), there would be some benefit 

associated with maintaining fish 

passage survival standards, fish 

production through hatcheries to 

compensate for population losses, and 

tributary habitat loss compensation that 

would translate into economic benefits 

such as those that may result from 

increased recreational fishing 

opportunities for other species that 

would benefit from such management. 

Another recognized benefit of 

including lands or sections of rivers in 

critical habitat is that the designation of 

critical habitat serves to educate 

landowners, hydroelectric operators, 

state and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for bull trout. 

Designation of critical habitat would 

inform state agencies and local 

governments about areas that could be 

conserved under state laws or local 

ordinances, such as the Washington 

State Growth Management Act or 

Washington State Shoreline 

Management Act which encourage the 

protection of ‘‘critical areas’’ including 

fish and wildlife habitat conservation 

areas based on the best available 

science. 

(2) Benefits of Exclusion of the WDNR, 

Green Diamond, City of Seattle Cedar 

River Watershed, Tacoma Water Green 

River, and Plum Creek/Stimson Lumber 

Company Native Fish HCPs 

We identified a number of possible 

benefits of excluding the area covered 

by these HCPs from critical habitat 

designation. First, to the extent 

designation would provide any 

additional protection of bull trout 

habitat, costs associated with that 

protection would be avoided. Second, 

exclusion would reduce largely 

redundant administrative costs of 

section 7 consultation; as discussed 

above, these costs are unlikely to lead to 

additional actual protection for bull 

trout habitat. Third, exclusion would 

provide an incentive for participation in 

the development of new HCPs. Fourth, 

exclusion would help to foster an 

atmosphere of cooperation in the 

conservation of endangered species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion for the WDNR, 

Green Diamond, City of Seattle Cedar 

River Watershed, Tacoma Water Green 

River, and Plum Creek/Stimson Lumber 

Company Native Fish HCPs 

As discussed above, it is possible, 

although unlikely, that any Federal 

action will be proposed that would be 

likely to destroy or adversely modify the 

habitat proposed as critical within the 

area governed by these HCPs. If such a 

project was proposed, due to the 

specific way in which jeopardy and 

adverse modification are analyzed for 

bull trout, discussed in detail in the 

preamble, it would likely also 

jeopardize the continued existence of 

the species. In addition, as discussed 

above, we expect that the benefit of 

informing the public of the importance 

of this area to bull trout conservation 

would be slight. Therefore, we assign 

relatively little weight to the benefits of 

designating this area as critical habitat. 

In contrast, although the benefits of 

encouraging participation in HCPs, 

particularly large-scale HCPs, and, more 

broadly, helping to foster cooperative 

conservation are indirect, enthusiastic 

HCP participation and an atmosphere of 

cooperation are crucial to the long-term 

effectiveness of the endangered species 

program. Therefore, we assign great 

weight to these benefits of exclusion. To 

the extent that there are regulatory 

benefits of including, there would be 

associated costs that could be avoided 

by excluding the area from designation. 

However, as we expect the regulatory 

benefits to be slight, we likewise give 

little weight to avoidance of those 

associated costs, as well as the 

additional transaction costs related to 

section 7 compliance. 

Therefore, we have determined that 

the benefits of inclusion of the areas 

covered by these HCPs are small, while 

the benefits of exclusion are more 

significant. Therefore, the benefits of 

exclusion outweigh the benefits of 

inclusion. Because we anticipate that 

little if any conservation benefit to the 

bull trout will be foregone as a result of 

excluding these lands, the exclusion 

will not result in the extinction of the 

bull trout. The Secretary exercises her 

discretion under section 4(b)(2) to 

exclude these areas from the designation 

(see comprehensive exclusion language 

in the preamble). 

For those conservation agreements, 

we analyzed the activities covered by 

the agreement, the protections afforded 

by the agreement, and the Federal 

activities that are likely to occur on the 

affected lands. We considered the 

number of stream miles within these 

lands and the number of expected 

section 7 consultations in those areas. 

From this information we determined 

the benefit of designation, which we 

then weighed against the benefit of 

exclusion. We concluded that the 

benefits of exclusion species outweigh 

the benefits of designation and therefore 

have excluded lands covered by these 

agreements in this final designation. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56247 

The analysis is described in further 

detail in the FWS Administrative 

Record. We have determined that these 

exclusions, together with the other 

exclusions described in this rule, will 

not result in extinction of the species 

(for a complete documentation of our 

3(5)(a) and 4(b)(2) analyses, please refer 

to our supporting document, Bull Trout 

Critical Habitat 3(5)(a) and 4(b)(2) 

Analyses). 

Lewis River Hydroelectric Projects 

Conservation Easements 

There are four projects and three 

dams that impound over 30 miles of 

river habitat on the Lewis River in 

Washington. They are located in 

portions of Clark, Cowlitz, and 

Skamania Counties. Bull trout are 

present in all of the reservoirs; the 

upper two reservoirs have the most 

significant populations and also support 

spawning populations. A Settlement 

Agreement (Agreement) for the 

relicensing of the Yale, Merwin, Swift 

No. 1, and Swift No. 2 hydroelectric 

projects was signed on November 30, 

2004. Conservation measures are 

incorporated in the Agreement to 

minimize or compensate for the effects 

of the projects on listed species, 

including bull trout. Conservation 

measures for bull trout include 

perpetual conservation covenants on 

PacifiCorp’s lands in the Cougar/ 

Panamaker Creek area and PacifiCorp’s 

and Cowlitz PUD’s lands along the Swift 

Creek arm of Swift Creek Reservoir, 

upstream and downstream fish passage 

improvements at all reservoirs, limitingfactors analysis for bull trout to 

determine additional enhancement 

measures, public information program 

to protect bull trout, and monitoring and 

evaluation efforts for bull trout 

conservation measures. This agreement 

will also restore anadromous salmon to 

the upper Lewis River system, restoring 

a significant part of the historic forage 

base for bull trout. 

(1) Benefits of Inclusion 

Designation of critical habitat for bull 

trout on lands managed under Lewis 

River Hydroelectric Projects 

Conservation Easements would provide 

protection from ‘‘destruction or adverse 

modification’’ of designated critical 

habitat under section 7 of the Act. 

However, without designation, a certain 

amount of habitat protection would be 

provided through the jeopardy standard. 

As noted earlier, based on our review of 

previous bull trout consultations under 

this standard, we have found little to 

indicate that there would be additional 

habitat protections generated by the 

designation beyond those provided 

through the jeopardy standard. 

If critical habitat was designated in 

areas of unoccupied habitat or currently 

occupied areas that subsequently 

become unoccupied, there would not be 

a jeopardy analysis for the species. The 

adverse effect to critical habitat would 

have to rise to the level of destruction/ 

adverse modification to effect changes 

in the proposed action via a Reasonable 

and Prudent Alternative. Since the 

destruction/adverse modification 

determination is made in the context of 

an entire critical habitat designation, 

this would be a rare occurrence. 

Designating critical habitat can 

educate the public and management 

agencies about the distribution of areas 

containing features essential to the 

conservation of a species. In areas 

lacking a bull trout-specific 

management plan, designation can 

guide projects to avoid impacts to listed 

species and can help focus recovery 

efforts. However, we believe little 

additional informational benefit will be 

gained by including Swift and Cougar 

Creeks in designated critical habitat for 

bull trout. PacifiCorp has begun 

implementing conservation 

recommendations, provided in our 2002 

biological opinion, that include posting 

interpretive signs to educate anglers on 

identifying and conserving native char, 

and techniques for catch and release to 

minimize incidental hooking mortality 

of bull trout. While we believe 

educational benefits are important for 

the conservation of bull trout, we 

believe it has already been achieved 

through PacifiCorp’s conservation 

easement, publication of the proposed 

critical habitat rule, the many public 

and interagency meetings that have been 

held to discuss the proposal, and 

discussion contained in this final rule. 

(2) Benefits of Exclusion 

The complex process of negotiating 

relicensing for the Lewis River 

hydroelectric projects has been ongoing 

for 9 years. We have established 

valuable working relationships with the 

PacifiCorp, Cowlitz County PUD, and 

the other participants during these 

complex negotiations. Through the 

relicensing negotiations, we have built 

trust and encouraged open dialogue 

regarding aquatic and riparian 

management issues among the 

participants. 

By excluding lands included in the 

two conservation easements from 

designated critical habitat we will: (1) 

Maintain and enhance our ability to 

continue working with PacifiCorp, 

Cowlitz County PUD, other relicensing 

applicants, and FERC; and (2) other 

jurisdictions, private landowners, and 

other entities will likely continue to see 

the benefit of working cooperatively 

with us. This will provide incentives to 

develop other conservation agreements, 

or other conservation actions such as 

HCPs, to provide the bases for future 

opportunities to conserve species and 

their habitats. Negotiating conservation 

measures under conditions of mutual 

trust can result in greater conservation 

benefits to the species than would result 

from including Swift and Cougar Creeks 

in designated critical habitat. 

Exclusion would also reduce 

administrative costs of conducting 

section 7 consultations on bull trout 

critical habitat (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section above). 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

It is possible, although unlikely, that 

any Federal action will be proposed that 

would be likely to destroy or adversely 

modify the habitat proposed as critical 

within the area governed by the Lewis 

River Conservation Easement. If such a 

project was proposed, due to the 

specific way in which jeopardy and 

adverse modification are analyzed for 

bull trout, discussed in detail above, it 

would likely also jeopardize the 

continued existence of the species. In 

addition, as discussed above, we expect 

that the benefit of informing the public 

of the importance of this area to bull 

trout conservation would be slight. 

Therefore, we assign relatively little 

weight to the benefits of designating this 

area as critical habitat. 

In contrast, although the benefits of 

encouraging participation in 

conservation partnerships, particularly 

large-scale conservation projects, and, 

more broadly, helping to foster 

cooperative conservation are indirect, 

enthusiastic conservation project 

participation and an atmosphere of 

cooperation are crucial to the long-term 

effectiveness of the endangered species 

program. Therefore, we assign great 

weight to these benefits of exclusion. To 

the extent that there are regulatory 

benefits of including, there would be 

associated costs that could be avoided 

by excluding the area from designation. 

However, as we expect the regulatory 

benefits to be slight, we likewise give 

little weight to avoidance of those 

associated costs, as well as the 

additional transaction costs related to 

section 7 compliance. 

Therefore, we have determined that 

the benefits of inclusion of the areas 

covered by this conservation easement 

are small, while the benefits of 

exclusion are more significant. 

56248 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Therefore, the benefits of exclusion 

outweigh the benefits of inclusion. 

Because we anticipate that little if any 

conservation benefit to the bull trout 

will be foregone as a result of excluding 

these lands, the exclusion will not result 

in the extinction of the bull trout. The 

Secretary exercises her discretion under 

section 4(b)(2) to exclude these areas 

from the designation (see 

comprehensive exclusion language in 

the preamble). 

Washington State Forest Practices 

Rules and Forest Practices Regulations 

for Bull Trout (FFR) 

Beginning in late 1996, faced with the 

imminent listing of several salmonid 

species, including bull trout, under the 

Endangered Species Act (ESA), a 

diverse group of stakeholders in 

Washington State agreed to address 

emerging riparian habitat issues. After 

almost 2 years of negotiations, 

representatives of environmental 

interests and some Tribes withdrew 

from negotiations. The remaining 

participants continued negotiating and 

eventually agreed to the Forests and 

Fish Report in April 1999. Later that 

year the Washington State Legislature 

passed the Forest Practices Salmon 

Recovery Act (Engrossed Substitute 

House Bill 2091), which directed the 

Washington Forest Practices Board to 

adopt new rules, encouraging the Forest 

Practices Board to follow the 

recommendations of the Forests and 

Fish Report (FFR). To further the 

purpose of regulatory stability, the 

Forest Practices Salmon Recovery Act 

also limited future changes to the new 

rules so that outside of a court order or 

legislative directive, new rules could be 

adopted by the Forest Practices Board 

‘‘only if the changes or new rules are 

consistent with the recommendations 

resulting from the scientifically based 

adaptive management process’’

included in the Forests and Fish Report. 

The language further solidified the 

adaptive management process as a key 

component of the conservation program. 

Following the passage in 1999 of 

emergency forest practices rules based 

on the Forests and Fish Report, the 

Washington Forest Practices Board 

adopted new permanent rules in May 

2001. Effective July 2001, these rules 

cover a wide variety of forest practices 

and include: (1) A new, more 

functional, classification of rivers and 

streams on non-federal and non-tribal 

forestland; (2) improved plans for 

properly designing, maintaining, and 

upgrading existing and new forest roads; 

(3) additional protections for unstable 

slopes; and (4) greater protections for 

riparian areas intended to restore or 

maintain properly functioning aquatic 

and riparian habitat conditions. In 

addition to these substantive provisions, 

the rules adopted the procedural 

recommendations of the Forests and 

Fish Report that address adaptive 

management, training, and other 

features. The Washington State 

Legislature and U.S. Congress continued 

to support the collaboration with 

significant funding for the research, 

monitoring, and adaptive management 

activities called for in the Forests and 

Fish Report. 

(1) Benefits of Inclusion 

Designation of critical habitat for bull 

trout on lands managed under 

Washington State Forest Practices Rules 

would provide protection from 

‘‘destruction or adverse modification’’ of 

designated critical habitat under section 

7 of the Act. However, without 

designation, a certain amount of habitat 

protection would be provided through 

the jeopardy standard. As noted earlier, 

based on our review of previous bull 

trout consultations under this standard, 

we have found little to indicate that 

there would be additional habitat 

protections generated by the designation 

beyond those provided through the 

jeopardy standard. 

If critical habitat was designated in 

areas of unoccupied habitat or currently 

occupied areas that subsequently 

become unoccupied, there would not 

necessarily be a jeopardy analysis for 

the species. The adverse effect to critical 

habitat would have to rise to the level 

of destruction/adverse modification to 

effect changes in the proposed action 

via a Reasonable and Prudent 

Alternative. Since the destruction/ 

adverse modification determination is 

made in the context of an entire critical 

habitat designation, this would be a rare 

occurrence. 

In addition to the prescriptions in the 

Rules for protecting riparian and aquatic 

habitat that benefits the broad range of 

aquatic species, the Rules include 

specific provisions for protecting bull 

trout habitat in eastern Washington. 

Beyond this, there is adaptive 

management research and monitoring 

required under the Washington Forest 

Practices Rules that specifically 

addresses the effectiveness and validity 

of the Rules in protecting bull trout 

habitat. 

Designating critical habitat can 

educate the public and management 

agencies about the distribution of areas 

containing features essential to the 

conservation of a species. In areas 

lacking a bull trout-specific 

management plan, designation can 

guide projects to avoid impacts to listed 

species and can help focus recovery 

efforts. Many landowners subject to 

Washington State Forest Practices Rules 

are likely aware of the concerns for bull 

trout conservation. We expect that 

designated critical habitat in these areas 

would provide some additional context, 

protection, or benefit that would 

enhance existing, or future, bull trout 

conservation efforts. 

(2) Benefits of Exclusion 

The Washington Forest Practices 

Rules require a large-scale, 

comprehensive adaptive management 

program that is supported by in-kind 

participation by the stakeholders that 

authored the Forests and Fish Report. 

The basis for the Washington Forest 

Practices Rules is the Forests and Fish 

Report. The Forests and Fish Report was 

created in a collaborative effort by 

multi-stakeholders to identify goals and 

prescriptions to protect riparian and 

aquatic-dependent species, including 

bull trout. This cooperative 

conservation is crucial to the long-term 

recovery of listed species. 

Exclusion of areas covered by the 

Washington Forest Practices Rules from 

critical habitat designation would be 

viewed as honoring the assurances 

made during the negotiations of the 

Forests and Fish Report by most 

Washington forestland stakeholders. 

The assurances being that the Rules 

provide adequate minimization and 

mitigation measures to address bull 

trout conservation. Failure to exclude 

the Rules could be viewed as an attempt 

to extract additional and ‘‘unfair’’

mitigation in violation of the principles 

behind the Washington Forest Practices 

Rules and Forests and Fish Report 

negotiations. Cooperation between the 

Service and the State to develop and 

update the Washington Forest Practices 

Rules for terrestrial, threatened and 

endangered species would be enhanced 

through continued cooperative 

relationships. 

In addition, failure to exclude the 

Rules could be a disincentive for other 

entities contemplating collaborative 

rule-making as it would imply that the 

Service intends to impose additional 

regulatory burdens once conservation 

measures have been agreed upon and 

could undermine the progress made by 

generating perceptions that we might 

erode those assurances. 

Exclusion would also reduce 

administrative costs of conducting 

section 7 consultations on bull trout 

critical habitat (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2)—

Generally section above). 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56249 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

It is possible, although very unlikely, 

that any Federal action would be 

proposed that would be likely to destroy 

or adversely modify the habitat 

proposed as critical within the lands 

regulated by the Washington Forest 

Practices Rules. If such a project was 

proposed, due to the specific way in 

which jeopardy and adverse 

modification are analyzed for bull trout, 

discussed in detail in the preamble, it 

would likely also jeopardize the 

continued existence of the species. 

The forest landowners regulated by 

the Washington Forest Practices Rules, 

as well as those organizations that are 

directly or indirectly affected by the 

Rules, are already aware of the need for 

protecting and conserving bull trout and 

their habitat. 

Based on the above discussion, we 

assign relatively little weight to the 

benefits of designating the lands 

regulated by the Washington Forest 

Practices Rules as critical habitat for 

bull trout. In contrast, because 

exclusions of these areas from critical 

habitat will be very beneficial to our 

relationships with stakeholders in the 

FFR process, and those relationships 

area crucial to the long-term recovery of 

bull trout and other listed species, we 

assign great weight to the benefits of 

excluding these lands from designation. 

Therefore, the benefits of exclusion 

outweigh the benefits of inclusion. 

Because we anticipate that little, if any, 

conservation benefit to bull trout will be 

foregone as a result of excluding these 

lands, the exclusion will not result in 

the extinction of bull trout. The 

Secretary exercises her discretion under 

section 4(b)(2) to exclude these areas 

from the designation (see 

comprehensive exclusion language in 

the preamble). 

Jarbidge River Bull Trout Critical 

Habitat Unit 

During the last decade, the Jarbidge 

River watershed has been the site of 

substantial conflicts between Federal 

officials and local interests concerning 

the conservation and management of 

bull trout, the Jarbidge River, and 

associated uplands (Williams 2001). 

These conflicts, which involved antigovernment protests and 

demonstrations, have had an overall 

negative impact on the Federal 

government’s ability to work 

cooperatively with local officials and 

private landowners to conserve and 

recover the bull trout and other listed 

species on Federal and non-federal 

lands in northern Nevada (Sonner 2001, 

Williams 2001, Robert 2002). This 

cooperative relationship is particularly 

important in relation to achieving 

voluntary actions to improve bull trout 

populations and habitat which are 

identified in the recovery plan. 

During the last year, however, both 

the Service and the U.S. Forest Service 

have dedicated significant resources and 

have made encouraging progress in 

restoring cooperative relationships with 

the local community. For example, both 

agencies have received a ‘‘Certificate of 

Appreciation’’ from Elko County on 

September 7, 2005, for providing 

support for the installation of a 

temporary bridge over the Jarbidge 

River. Maintenance and improvement of 

such relationships is key to recovering 

listed species and is a cornerstone of the 

Secretary’s ‘‘4 C’s’’ policy. The active 

support of local officials and 

landowners for the conservation of bull 

trout increases the species likelihood of 

recovery. In contrast, local opposition to 

bull trout conservation efforts could be 

a significant impediment to the species’

recovery, especially on non-federal 

lands, where the voluntary efforts will 

achieve actions identified in the 

recovery plan. 

Given this history, we considered 

whether to exclude non-federal lands in 

the Jarbidge River Bull Trout Critical 

Habitat Unit (CHU) from the final 

critical habitat designation. Pursuant to 

section 4(b)(2) we analyzed whether the 

benefits of designating these lands were 

outweighed by the benefits of excluding 

these lands from a final designation. In 

the following section, we evaluate a 

‘‘without critical habitat’’ scenario and 

compare it to a ‘‘with critical habitat’’

scenario. The difference between the 

two scenarios measured the net negative 

or positive impacts attributable to the 

designation of critical habitat. We paid 

particular attention to the following 

issues: 

• The degree to which a critical 

habitat designation would confer 

regulatory conservation benefits on 

these species (e.g., high, medium, low); 

• Whether the designation would 

educate members of the public such that 

conservation efforts would be enhanced; 

• Whether a critical habitat 

designation would have a positive, 

neutral, or negative impact on local 

support for bull trout conservation, 

including current cooperative efforts on 

privately-owned lands; and 

• To what extent a critical habitat 

designation is likely to encourage or 

discourage future cooperative efforts 

with local landowners and officials. 

If a critical habitat designation results 

in a quantifiable reduction in the 

likelihood that existing or future 

voluntary, cooperative conservation 

activities will be carried out on nonfederal lands, and at the same time fails 

to confer a counter-balancing positive 

regulatory or educational benefit to the 

species, then the benefits of excluding 

such areas from critical habitat 

outweigh the benefits of including them. 

(1) Benefits of Including the Jarbidge 

River Bull Trout Critical Habitat Unit 

The principal benefit of designating 

critical habitat on non-federal lands is 

that Federal activities that may affect 

such habitat are subject to consultation 

pursuant to section 7 of the Act. Such 

consultation requires every Federal 

agency to ensure that any action it 

authorizes, funds, or carries out is not 

likely to result in the destruction or 

adverse modification of critical habitat. 

This requirement complements the 

section 7 provision that Federal 

agencies ensure that their actions are 

not likely to jeopardize the continued 

existence of a listed species. 

The Jarbidge River is currently 

occupied by bull trout. Any Federal 

activity adversely affecting bull trout 

will require section 7 consultations with 

the Service, and any non-federal action 

that may take a bull trout will require 

a Section 10 permit. Although there are 

potentially a small number of federallyfunded, authorized, or implemented 

activities on private and State lands that 

may trigger section 7 consultation, the 

subject lands comprise only a minor 

portion (8 percent) of the total habitat 

(131 mi, 211 km) under consideration 

for this CHU. Specifically, there are 

eight stream reaches crossing private 

lands and four reaches crossing Idaho 

State school land sections within 

occupied bull trout habitat in this CHU. 

Only three of these isolated reaches are 

1 mi (1.6 km) or more in length, and all 

are surrounded by vast expanses of 

public lands. One of the private reaches 

is within the town of Jarbidge, Nevada, 

and another is within the town of 

Murphy Hot Springs, Idaho. 

In analyzing whether Federal actions 

might jeopardize the continued 

existence of the bull trout, the Service 

has focused on the viability of core area 

populations without making 

distinctions between what is necessary 

for survival versus recovery. Because 

the Service views the conservation role 

of critical habitat units as supporting 

viable bull trout core area populations, 

the Service anticipates that few Federal 

actions would adversely modify critical 

habitat but not jeopardize the species. 

The Service considered the possibility 

of local bull trout extirpation in the 

Jarbidge River (which might reduce the 

protection afforded bull trout by the 

56250 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

jeopardy prohibition) given the data 

available. In general, the Service does 

not anticipate significant extirpations in 

this area, although such an event cannot 

be completely ruled out as stochastic 

events such as conflagrations have in 

the past eliminated populations 

elsewhere within the species’ range. If 

such an event was to occur, and the 

entire population was extirpated, the 

designation of critical habitat could 

provide important protection to the 

habitat to preserve it for eventual 

recolonization or reintroduction. 

However, the Service would consider 

the habitat occupied for 20 years 

subsequent to the temporal extirpation, 

providing ample opportunity for 

restoration of the population. In 

addition, the benefit would be 

moderated to the extent that protections 

other than the prohibition on 

jeopardizing bull trout would remain in 

place. For instance, State angling 

regulations would remain in place to 

manage bull trout habitat. 

In sum, the designation of critical 

habitat on non-federal lands in the 

Jarbidge River CHU would confer a 

relatively low level of additional 

regulatory benefits beyond the status 

quo. 

Another potential benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area 

and thereby focus and contribute to 

conservation efforts by clearly 

delineating areas of high conservation 

value for certain species. Such a benefit 

could be substantial in geographic areas 

where the presence of bull trout was a 

relatively new or unknown 

phenomenon, and there was a need to 

educate the local community to the 

species’ presence and conservation 

needs. However, such a situation does 

not exist anywhere in the Jarbidge River 

CHU. Due in large part to the extensive 

media attention applied to the highprofile conflicts that accompanied the 

listing of the species and previous 

critical habitat proposals; there is 

widespread knowledge of the species’

local status and conservation needs. 

State fish and game officials have also 

worked hard to educate the local 

populace, publishing information on the 

species and posting signs at public 

access points along the river. Therefore, 

it is unlikely that a final critical habitat 

designation would provide any 

significant new or additional 

educational benefit beyond the status 

quo. 

(2) Benefits of Excluding the Jarbidge 

River Bull Trout Critical Habitat Unit 

The designation of critical habitat on 

non-federal lands can have both 

negative and positive impacts on the 

conservation of listed species (Bean 

2002). There is a growing body of 

documentation that some regulatory 

actions by the Federal government, 

while well-intentioned and required by 

law, can under certain circumstances 

have unintended negative consequences 

for the conservation of species on nonfederal lands (Brook et al. 2003, Bean 

2002, James 2002, Koch 2002, Wilcove 

et al. 1996). Some landowners fear a 

decline in value of their properties 

because of their belief that the Act may 

restrict future land-use options where 

threatened or endangered species are 

found. Consequently, endangered 

species are perceived by many 

landowners as a financial liability, 

which sometimes results in anticonservation incentives to these 

landowners (Brook et al. 2003, Main et 

al. 1999). 

There are reasonable concerns that a 

critical habitat designation in the 

Jarbidge River may negatively affect 

cooperative relationships between 

Federal and local officials and 

discourage voluntary, cooperative 

conservation efforts. The watershed has 

been the site of substantial conflicts 

between Federal government agencies, 

local government entities (Elko County, 

Nevada), organized private groups 

(Jarbidge Shovel Brigade), and private 

individuals. These conflicts primarily 

have been over roads and public access 

issues with the U.S. Forest Service, but 

they have resulted in activities with 

adverse environmental impacts to bull 

trout and their habitat. Substantial 

damage to stream channel and riparian 

habitats within bull trout occupied 

reaches occurred due to local actions 

while bull trout were proposed for 

listing. Anti-government demonstrations 

and on-the-ground activities (road 

construction, stream diversions, channel 

alterations, tree cutting, and driving in 

streams) by other groups and 

individuals escalated when the Service 

emergency-listed the Jarbidge River bull 

trout in 1998. The demonstrations and 

protests continued for several years. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that many landowners will 

support and carry out conservation 

actions (Bean 2002, Brook et al. 2003, 

Main et al. 1999). The magnitude of this 

negative outcome is greatly amplified in 

conservation situations, such as on 

privately-owned lowlands in California 

and Nevada, where it is insufficient 

simply to prohibit harmful activities. 

Instead, it is necessary in most cases to 

encourage and carry out active 

management measures to prevent 

extinctions and promote recovery (Bean 

2002). Consideration of this concern is 

especially important in areas where 

recovery efforts require access and 

permission for survey and restoration 

efforts. Simply preventing ‘‘harmful 

activities’’ will not slow the extinction 

of listed species or promote their 

recovery. Proactive, voluntary 

conservation efforts are necessary to 

prevent the extinction and promote the 

recovery of these species (Wilcove and 

Lee 2004, Shogren et al. 1999). 

The Service is working to promote 

cooperative activities in the Jarbidge 

area. Federal and local government 

entities working in the Jarbidge River 

watershed have spent considerable time 

improving communications and 

developing personal working 

relationships to resolve differences and 

move forward in a positive manner on 

watershed issues. In particular, the 

agencies have come to an agreement 

resolving future road construction and 

maintenance issues within bull trout 

occupied areas on public and private 

lands in the watershed, as presented in 

the U.S. Forest Service’s Jarbidge 

Canyon Final Environmental Impact 

Statement issued in April, 2005. 

In addition, the Federal agencies and 

local county government officials 

recently collaborated on a project to 

provide access to the town of Jarbidge 

on an emergency basis using volunteer 

labor by the Jarbidge Shovel Brigade and 

other local individuals to help install a 

temporary bridge donated by the county 

on private land after a flood destroyed 

two U.S. Forest Service bridges. On 

September 7, 2005, the Elko County 

Board of County Commissioners 

presented the Service, U.S. Forest 

Service, and Jarbidge Shovel Brigade 

each with a Certificate of Appreciation 

for assistance in completing this project. 

The Service is also currently working 

with a private landowner (Mr. Bert 

Brackett) and the Nevada Department of 

Wildlife to acquire the single largest 

reach of bull trout habitat on private 

land in the entire watershed (nearly 4 

mi, 6.4 km) through a Service Recovery 

Lands Acquisition Program grant. The 

State would then manage this habitat 

specifically for the purpose of bull trout 

conservation and recovery. The Service 

is concerned that acquisition 

negotiations could be adversely affected 

by designation of critical habitat at this 

time due to a resurgence of local antifederal sentiment following a possible 

designation on non-federal lands. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56251 

The Service is also preparing to 

finalize the May 2004 draft recovery 

plan for the Jarbidge River bull trout 

population and to hold stakeholder 

meetings in FY06. Public and local 

government participation at these 

meetings is vital in obtaining local input 

during the recovery planning process. 

Participation at these meetings by 

private landowners—and support for 

conservation on their lands—may be 

adversely affected by designation of 

critical habitat on their non-federal 

lands. 

In sum, we conclude that the 

designation of critical habitat on nonfederal lands in the Jarbidge River CHU 

would have significant negative impacts 

on the improving cooperative 

relationship between Federal agencies 

and local officials and landowners. This 

negative impact would in turn adversely 

affect bull trout conservation because 

local support and participation is 

necessary for bull trout recovery actions, 

all of which are voluntary on nonfederal lands. Avoiding these negative 

impacts is a benefit of excluding these 

lands from the final critical habitat 

designation. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion for the Jarbidge 

River Critical Habitat Unit 

As discussed above, it is possible 

although unlikely that a Federal action 

will be proposed that would be likely to 

destroy or adversely modify the habitat 

proposed as critical in the Jarbidge River 

CHU. If such a project was proposed, 

due to the specific way in which 

jeopardy and adverse modification are 

analyzed for bull trout and as discussed 

in detail in the preamble, it would likely 

also jeopardize the continued existence 

of the species and thus be restricted by 

the Act. In addition, we expect that the 

benefit of informing the public of the 

importance of this area to bull trout 

conservation would be slight. Therefore, 

we assign relatively little weight to the 

benefits of designating this area as 

critical habitat. 

In contrast, the need to maintain and 

expand recent gains in cooperative 

conservation efforts in the Jarbidge 

watershed is crucial to the long-term 

effectiveness of bull trout recovery. 

Therefore, we assign great weight to 

these benefits of exclusion. To the 

extent that there are regulatory benefits 

of including, there would be associated 

costs that could be avoided by 

excluding the area from designation. 

However, as we expect the regulatory 

benefits to be slight, we likewise give 

little weight to avoidance of those 

associated costs, as well as the 

additional transaction costs related to 

section 7 compliance. 

The continuation of cooperative 

efforts in the watershed, as well as 

implementation of bull trout recovery 

actions on non-federal lands, is 

dependent on maintaining effective 

working relationships with local 

entities. We believe that designation of 

critical habitat on non-federal lands 

within the Jarbidge River CHU would 

adversely affect our improved working 

relationships with landowners and 

other governmental entities, as well as 

the benefits to bull trout resulting from 

these relationships. In addition, we 

believe that such designation may also 

impair the long-term working 

relationships of other Federal agencies 

with land management responsibilities 

in the Jarbidge River watershed. 

Therefore, we have determined that 

the benefits of inclusion of the nonfederal areas within the Jarbidge River 

CHU are small, while the benefits of 

exclusion are more significant. Thus the 

benefits of exclusion outweigh the 

benefits of inclusion. Because we 

anticipate that little if any conservation 

benefit to the bull trout will be foregone 

as a result of excluding these lands, and 

the species and much of its habitat is 

still protected under section 7 as 

described above, the exclusion will not 

result in the extinction of the bull trout. 

The Secretary exercises her discretion 

under section 4(b)(2) to exclude these 

areas from the designation. 

Federal Land Management Plans 

We have determined that PACFISH, 

INFISH, the Interior Columbia Basin 

Ecosystem Management Project (ICBMP) 

strategy, and the Northwest Forest Plan 

(NWFP) Aquatic Conservation Strategy 

(ACS) provide a level of conservation 

and adequate protection and special 

management for the PCEs essential to 

the conservation of bull trout at least 

comparable to that achieved by 

designating critical habitat. As a result, 

those lands are not being designated 

critical habitat as they do not meet the 

statutory definition. In many specific 

ways these plans are superior to a 

designation in that they require 

enhancement and restoration of habitat, 

acts not required by the designation. 

PACFISH is the Interim Strategy for 

Managing Anadromous Fish-Producing 

Watersheds and includes Federal lands 

in Western Oregon and Washington, 

Idaho, and Portions of California. 

INFISH is the Interim Strategy for 

Managing Fish-Producing Watersheds in 

Eastern Oregon and Washington, Idaho, 

Western Montana, and Portions of 

Nevada. Each strategy amended Forest 

Service Land and Resource Management 

Plans and BLM Resource Management 

Plans. Together PACFISH and INFISH 

cover thousands of miles of waterways 

within 16 million acres and provide a 

system for reducing effects from land 

management activities to aquatic 

resources through riparian management 

goals, landscape scale interim riparian 

management objectives, riparian habitat 

conservation areas, riparian standards, 

watershed analysis, and the designation 

of Key and Priority watersheds. These 

interim strategies have been in place 

since 1992 and are part of the 

management plans for the BLM and 

USFS lands. In addition to protecting 

and managing the PCEs associated with 

critical habitat, the strategies include 

restoration and enhancement of all 

existing habitat. The BLM and USFS are 

currently in the process of updating 

their management plans, few have been 

completed, but those that have, are 

discussed below. The new plans are 

more protective, more complete, and 

more outcome based than the former 

plans. In addition, they are recovery 

based, as opposed to simply 

maintaining the status quo. 

The ICBMP is the strategy that 

replaces the PACFISH and INFISH 

interim strategies. The Southwest Idaho 

Land and Resource Management Plan 

(LRMP) is the first LRMP under the 

strategy and provides measures that 

protect and restore soil, water, riparian 

and aquatic resources during project 

implementation while providing 

flexibility to address both short- and 

long-term social and economic goals on 

6.6 million acres of National Forest 

lands. This plan includes a long-term 

Aquatic Conservation Strategy that 

focuses restoration dollars in priority 

subwatersheds identified as important 

to achieving ESA, Tribal, and CWA 

goals. The Southwest Idaho LRMP 

replaces the interim PACFISH/INFISH 

strategies and adds additional 

conservation elements, specifically, 

providing an ecosystem management 

foundation, a prioritization for 

restoration integrated across multiple 

scales, and adaptable active, passive and 

conservation management strategies that 

address both protection and restoration 

of habitat and 303(d) stream segments, 

all of which are far beyond any 

protection provided by a critical habitat 

designation. 

The Southeast Oregon Resource 

Management Plan (SEORMP) and 

Record of Decision is the second LRMP 

under the ICBMP strategy which 

describes the long-term (20+ years) plan 

for managing the public lands within 

the Malheur and Jordan Resource Areas 

of the Vale District. The SEORMP is a 

general resource management plan for 

56252 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

4.6 million acres of BLM administered 

public lands primarily in Malheur 

County with some acreage in Grant and 

Harney Counties, Oregon. The SEORMP 

contains resource objectives, land use 

allocations, management actions and 

direction needed to achieve program 

goals. Under the plan riparian areas, 

floodplains, and wetlands will be 

managed to restore, protect, or improve 

their natural functions relating to water 

storage, groundwater recharge, water 

quality, and fish and wildlife values. 

The Northwest Forest Plan covers 

24.5 million acres in Washington, 

Oregon, and northern California. The 

ACS is a component of the Northwest 

Forest Plan. It was developed to restore 

and maintain the ecological health of 

watersheds and the aquatic ecosystems. 

The four main components of the ACS 

(Riparian Reserves, Watershed Analysis, 

Key Watersheds, and Watershed 

Restoration) are designed to operate 

together to maintain and restore the 

productivity and resiliency of riparian 

and aquatic ecosystems. 

These plans establish watershed and 

riparian goals to maintain or restore all 

fish habitat; 

• Establish aquatic and riparian 

habitat management objectives; 

• Delineate riparian management 

areas; 

• Provide specific standards and 

guidelines for management activities 

(timber harvesting, grazing, fire 

suppression, and mining) in riparian 

areas; 

• Provide a system of key watersheds 

to protect and restore important fish 

habitats; 

• Call for watershed analyses and 

subbasin reviews to set priorities and 

provide guidance on priorities for 

watershed restoration; and, 

• Provide general guidance on 

implementation and effectiveness 

monitoring. 

It is the objective of the Forest Service 

and the Bureau of Land Management to 

manage and maintain habitat and where 

feasible, and restore habitats that are 

degraded. These plans provide for the 

protection of areas that could contribute 

to the recovery of fish and, overall, 

improve riparian habitat and water 

quality throughout the basin. These 

objectives are accomplished through 

such activities as closing and 

rehabilitating roads, replacing culverts, 

changing grazing and logging practices, 

and re-planting native vegetation along 

streams and rivers. 

The Forest Service, Natural Resources 

Conservation Service, and the Bureau of 

Land Management also provide funds 

and technical expertise for restoration 

projects on private lands. Field offices 

work with local watershed councils and 

groups to plan and carry out priority 

restoration projects on both Federal and 

non-federal lands. 

These and other state and local 

conservation planning efforts provide an 

exceptional level of cooperative 

conservation for bull trout and other 

salmonids and for this reason we have 

determined that the PCEs in the areas 

covered by the plans are not in need of 

special management or protection. 

These lands have also been excluded 

using the Secretary’s discretion under 

section 4(b)(2). The following outlines 

our 3(5)(a) and 4(b)(2) analyses related 

to exclusions (for a complete 

documentation of our 3(5)(a) and 4(b)(2) 

analyses, please refer to our supporting 

documentation in the administrative 

record and the comparison of 

protections provided by a critical 

habitat designation and the various 

management plans. 

(1) Benefits of Including Lands Managed 

Under PACFISH, INFISH, the Southwest 

Idaho Land and Resource Management 

Plans, the Southeast Oregon Resource 

Management Plan, and ACS 

Designation of critical habitat for bull 

trout on lands managed under these 

Federal plans would provide protection 

from ‘‘destruction or adverse 

modification’’ of designated critical 

habitat under section 7 of the Act. 

However, without designation, a certain 

amount of habitat protection would be 

provided through the jeopardy standard. 

As noted earlier, based on our review of 

previous bull trout consultations under 

this standard, we have found little to 

indicate that there would be additional 

habitat protections generated by the 

designation beyond those provided 

through the jeopardy standard. 

If critical habitat was designated in 

areas of unoccupied habitat or currently 

occupied areas that subsequently 

become unoccupied, there would not 

necessarily be a jeopardy analysis for 

the species. The adverse effect to critical 

habitat would have to rise to the level 

of destruction/adverse modification to 

effect changes in the proposed action 

via a Reasonable and Prudent 

Alternative. Since the destruction/ 

adverse modification determination is 

made in the context of an entire critical 

habitat designation, this would be a rare 

occurrence. 

Designating critical habitat helps 

educate the public and management 

agencies about the distribution of areas 

containing features essential to the 

conservation of a species. In areas 

lacking a bull trout-specific 

management plan designation can guide 

projects to avoid impacts to listed 

species and can help focus recovery 

efforts. Most agencies, applicants, and 

partners operating under the existing 

strategies on Federal lands are aware of 

the concerns for bull trout conservation. 

We expect that designated critical 

habitat in these areas would provide 

relatively little additional context, 

protection, or benefit that would 

enhance existing, or future, bull trout 

conservation efforts. 

(2) Benefits of Excluding Lands 

Managed Under PACFISH, INFISH, the 

Southwest Idaho Land and Resource 

Management Plans, the Southeast 

Oregon Resource Management Plan, and 

ACS 

The primary benefits of excluding 

these Federal lands from critical habitat 

are the avoidance of administrative 

costs associated with reinitiation of 

section 7 consultations for ongoing 

actions and the reduced administrative 

costs of consultation on new actions. 

Based on a review of consultations on 

bull trout critical habitat, some 

incremental consultation costs, all in 

the form of administrative costs (i.e., 

more time spent preparing and 

reviewing language in our biological 

opinions or concurrence letters), have 

been documented. Cost estimates for 

informal consultations (n = 15) ranged 

from ‘‘not measurable’’ ($0) to a little 

over one biologist-hour (approx $550). 

Estimates for formal consultations (n = 

9) ranged from one biologist-hour 

(approx $550) to 10–20 biologist-days 

($6,230–$12,460) with a median of 1.5 

biologist-days (approx $935). The 10–20 

biologist-day estimates represented one 

forest-wide programmatic formal 

consultation covering all routine and 

anticipated activities (potentially 

hundreds of actions) for a 5-year period. 

We expect that the action agencies 

would also have costs associated with 

reinitiation of consultation or new 

consultations because they would need 

to prepare or revise requests for 

concurrence or biological assessments. 

These costs are likely to mirror Service 

costs because the type and specificity of 

information required for these 

documents is comparable to Service 

documents. 

(3) Benefits of Exclusion outweigh the 

Benefits of Inclusion of the Lands 

Managed Under PACFISH, INFISH, the 

Southwest Idaho Land and Resource 

Management Plans, the Southeast 

Oregon Resource Management Plan, and 

ACS 

While the administrative costs 

associated with additional consultation 

activities which result from designation 

are not significant, the associated 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56253 

benefits are also minor. In considering 

the benefits from a designation related 

to education the Secretary has 

determined those benefits are largely 

redundant with the education that takes 

place through the NEPA process for 

developing new management plans, as 

well as the ongoing management 

documents used by the BLM and USFS 

in making decisions on those lands. 

Because the lands being excluded are 

Federal lands, no additional state or 

local protections would be triggered by 

the critical habitat designation, so in 

this circumstance, there would be no 

additional benefit. The remaining 

benefits, those due to additional 

protection beyond those provided 

through the jeopardy consultation are 

likely very small (see our earlier 

discussion particular to bull trout 

jeopardy consultations). The benefit 

from not designating these Federal lands 

would be largely in the form of avoided 

costs (staff time and money). These 

costs, while not significant are 

avoidable, create no additional benefit 

to the species and could be better used 

to effectuate conservation measures on 

the ground. As a result, the Secretary 

has determined that the benefit of 

excluding these Federal lands exceeds 

the benefits of including them as critical 

habitat. 

Federal Columbia River Power System 

(FCRPS) 

The FCRPS is composed of 14 dams 

and reservoirs on the Columbia and 

Snake Rivers. Power production is 

coordinated under the Pacific Northwest 

Coordination Agreement. The dams and 

reservoirs also provide flood protection 

and irrigation flows. 

The U.S. Department of the Army, 

Corps of Engineers operates and 

maintains 12 of the 14 projects in the 

FCRPS. These projects control the lower 

Snake and Columbia Rivers and provide 

storage in the upper reaches of both 

rivers. The Corps has a major role in 

coordinating multiple uses of the 

system. It is responsible for managing 

flood control storage at all major 

reservoirs in the Columbia River Basin; 

maintaining navigation locks and 

channels to accommodate river 

transportation; and operating fish 

passage, power plant and recreation 

facilities. 

U.S. Department of the Interior, 

Bureau of Reclamation operates Grand 

Coulee and Hungry Horse Dams, the 

remaining two projects. Because of its 

size and location, Grand Coulee Dam 

plays a prominent role in the 

coordinated operation of the Columbia 

River system. Storage at Hungry Horse 

is also valuable because of its 

headwaters location; water released 

from Hungry Horse passes through 

many downstream projects and 

produces additional energy. 

The FCRPS is subject to the operation 

of federal laws and the authorities of 9 

federal agencies. These authorities 

require every activity from mitigation to 

recovery. In addition, the Federal 

government has responsibility to the 13 

tribes residing in the Columbia River 

Basin. There are 13 nationwide laws 

and 3 basin-specific laws as well as 

several mission specific laws, treaties 

and executive orders, all of which speak 

to requirements for restoring, 

enhancing, and recovering ecosystems 

and fish and wildlife in the Columbia 

River Basin. All of these laws affect the 

operation of the FCRPS. The myriad 

federal and state laws result in no less 

than 33 federal programs, 3 state 

programs, and 2 tribal programs to 

manage and recover ecosystems and 

wildlife in the basin. As a result of 

efforts to recover salmon populations, 

there are at least 65 groups formed to 

coordinate recovery efforts between the 

federal agencies, states, tribes, local 

governments and other interested 

parties. 

(1) Benefits of Inclusion 

Designation of critical habitat for bull 

trout on lands covered under FCRPS 

would provide protection from 

‘‘destruction or adverse modification’’ of 

designated critical habitat under section 

7 of the Act. Without designation, a 

certain amount of habitat protection 

would be provided through the jeopardy 

standard. However, as noted earlier, 

based on our review of previous bull 

trout consultations under this standard, 

we have found little to indicate that 

there would be additional habitat 

protections generated by the designation 

beyond those provided through the 

jeopardy standard. 

If critical habitat was designated in 

areas of unoccupied habitat or currently 

occupied areas that subsequently 

become unoccupied, there would not be 

a jeopardy analysis for the species. The 

adverse effect to critical habitat would 

have to rise to the level of destruction/ 

adverse modification to effect changes 

in the proposed action via a Reasonable 

and Prudent Alternative. We believe 

that this will be a rare occurrence. 

While one of the benefits of a critical 

habitat designation can be educating the 

public, we have determined that there is 

very little benefit related to educational 

benefit from a designation for bull trout 

due to the recent subbasin planning 

effort completed for the Northwest 

Power Council, which would largely 

have duplicated any educational benefit 

accruing from a critical habitat 

designation. 

(2) Benefits of Exclusion 

The major benefit to excluding the 

FCRPS from critical habitat will be to 

avoid yet another layer of regulation to 

a system with a multitude of competing 

efforts to not only protect but to restore 

anadromous fish populations as well as 

enhance and restore terrestrial habitats. 

The potential inefficiencies are 

enormous, and have been identified. It 

is unlikely that a system with so many 

ongoing efforts to restore habitat and 

fish populations will knowingly 

contemplate activities that will reduce 

populations or habitat values. However, 

it is very likely that biological opinions 

related to adverse modification, with 

their focus on narrow project-by-project 

effects rather than ecosystem based 

approaches could force actions contrary 

to larger efforts, force actions that are 

redundant or counterproductive, or 

simply require yet another layer of 

administrative process without 

measurably improving the outcome. It is 

difficult to measure just how much cost 

such inefficiencies represent. But in a 

system with 4 states, 13 tribes, 11 

federal agencies, and a multiplicity of 

laws, executive orders, programs, and 

court orders governing it; yet another 

process to ensure habitat protection is 

unlikely to achieve measurable results. 

Another benefit of excluding the 

proposed reaches would be avoiding 

transactions costs related to reinitiating 

of consultation for all ongoing projects 

and the cost of an adverse modification 

analysis for new projects. The number 

of circumstances where a bull trout 

adverse modification finding diverges 

from a jeopardy opinion are likely to be 

small and the benefits of requiring all 

ongoing federal actions to reinitiate 

consultation will be small when 

compared to the benefit of avoiding the 

transactions costs related to the actual 

completion of the consultation (this 

assumes that there will be few changes 

in operations and actions as a result of 

the reinitiations—consistent with our 

determinations that the standards will 

not diverge significantly). While 

individually these avoided costs are 

small, the sheer scope of the federal 

actions outlined in the records that we 

reviewed indicated that purely 

ministerial actions associated with the 

reinitiated consultations would 

represent significant time and effort. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

The Secretary weighed the risk of 

some federal project from proceeding in 

a manner that destroyed or adversely 

56254 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

modified critical habitat and considered 

the potential benefit if a designation 

prevented the project from proceeding. 

She considered the risk of a critical 

habitat designation causing multiple 

reinitiations of consultation and what 

costs and delays those consultations 

might generate. She considered the 

consequences of delays related to 

reinitiations and the risk that would 

occur to the species as well as to local 

planning processes associated with the 

subbasin plans. 

Finally, the Secretary considered 

what additional benefit a consultation 

on the effect of any project on critical 

habitat would provide beyond the 

protection provided by a jeopardy 

determination that would be made 

whether or not critical habitat was 

designated. 

Based on the information in the 

record, the Secretary determined that 

the benefits of including those reaches 

of the designation that are within the 

FCRPS and subject to a consultation 

under section 7 of the ESA are 

outweighed by the benefits of excluding 

them and avoiding one increased costs 

and inefficiency. Because we anticipate 

that little if any conservation benefit to 

the bull trout will be foregone as a result 

of excluding these lands, the exclusion 

will not result in the extinction of the 

bull trout. The Secretary exercises her 

discretion under section 4(b)(2) to 

exclude these areas from the 

designation. 

Snake River Basin Adjudication 

The lands subject to this adjudication 

comprise approximately 46 million 

acres and approximately 142,000 miles 

of streams in the Snake River Basin. The 

stream-flows in the basin have been 

subject to litigation for 21 years. 

Litigants are the Federal government, 

the Nez Perce Tribe, and the State of 

Idaho. In 2004 a settlement was reached 

by the parties in the proceeding. A 

Mediator’s Term Sheet was developed 

to guide the settlement of the case, 

which identifies the responsibilities of 

the parties over the 30-year term of the 

agreement. The settlement was 

announced on May 15, 2004, by the 

Secretary of the Interior, the Nez Perce 

Tribal Executive Committee Chairman, 

and the Governor of Idaho. 

As part of the settlement, the parties 

agreed to establish a habitat fund under 

two separate accounts, one for the Tribe 

and one for the State. The State account 

would be managed through Section 6 

cooperative agreements, and would 

address off-reservation stream-flow and 

forestry programs. The funds would be 

used to conduct habitat protection and 

restoration projects in the Salmon and 

Clearwater basins (tributaries to the 

Snake River), including programs 

intended to protect and restore listed 

fish and their habitat. The United States 

would contribute $38 million to these 

accounts according to a schedule 

determined by Congress in the enacting 

legislation. On December 8, 2004, the 

Snake River Water Rights Act of 2004 

was enacted to resolve outstanding 

issues; reach a final settlement of Tribal 

claims; authorize, ratify and confirm the 

Agreement among the parties; direct 

Federal agencies to execute and perform 

necessary actions to carry out the 

agreement; and, to authorize actions and 

appropriations under the SRBA and the 

Act for the United States to meet their 

obligations. On March 31, 2005, a 

Memorandum of Agreement was signed 

between the State of Idaho, Nez Perce 

Tribe, U.S. Fish and Wildlife Service, 

and National Marine Fisheries Service 

to establish a process for using the 

habitat trust fund accounts for habitat 

protection and restoration projects in 

the Salmon and Clearwater basins in 

Idaho. In a March 2005 letter, in 

response to a request from the State of 

Idaho, the FWS and NMFS provided 

specific information as to the standard 

that would be the basis for the 

cooperative agreement under Section 6 

to implement the term sheet. In that 

letter, the two agencies indicated that 

meeting the express statutory 

requirements in section 6 of the ESA for 

an adequate and active program for the 

conservation of the species, in this case, 

bull trout and salmon, would be 

required. 

At the time the negotiations on the 

adjudication were completed, the bull 

trout was a listed species, but critical 

habitat had not been designated. The 

negotiations culminating in the final 

Term sheet were completed prior to 

designation of critical habitat. 

(1) Benefits of Inclusion 

Designation of critical habitat for bull 

trout in the Snake River Basin 

Adjudication area would provide for 

protection from ‘‘destruction or adverse 

modification’’ of designated critical 

habitat under section 7 of the Act. 

Without designation, a certain amount 

of habitat protection would be provided 

through the jeopardy standard. 

However, as noted earlier, based on our 

review of previous bull trout 

consultations under this standard, we 

have found little to indicate that there 

would be additional habitat protections 

generated by the designation beyond 

those provided through the jeopardy 

standard. There would be some 

educational benefits that would accrue 

from the designation. However, because 

of the conservation standard that will be 

the basis for the Section 6 agreement 

and the ensuing special management 

provisions which will be the result of 

that agreement, it is likely that any 

educational benefit would overlap with 

the incidental education that would 

occur as a result of the Section 6 

agreement negotiation and the 

associated NEPA process. Finally, the 

Section 6 agreement, with its basis of 

conservation would likely require more, 

not less, protection of bull trout habitat, 

even including restoration and 

enhancement, both of which provide 

benefits in excess of those provide, by 

a critical habitat designation. 

(2) Benefits of Exclusion 

The primary benefit of exclusion is it 

preserves the Federal government’s 

commitments to the parties to the 

adjudication. The Term sheet addressed 

many of the issues related to streamflow and land management that would 

also be addressed by a critical habitat 

designation. The Section 6 agreement 

also provided the standard that the 

government would adhere to in their 

development of implementing 

agreements. Discretionary 

superimposition of requirements, in 

addition to those spelled out in the 

agreement, could be viewed as an act of 

bad faith, would undermine confidence 

in the government’s commitments, and 

negatively impact future negotiations. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In considering the benefit of a critical 

habitat designation, and despite any 

factual circumstance related to meeting 

the conditions, the Secretary considered 

that benefits would accrue from a 

designation. She did this 

notwithstanding the general premise 

that in the case of bull trout, our actual 

consultation records demonstrated the 

jeopardy standard provided similar 

results to protection provided by critical 

habitat designation under the Gifford 

Pinchot definition. These protected 

conservation benefits, were weighed 

against the benefit of the Federal 

government avoiding even the 

appearance of bad faith in the Snake 

River Basin adjudication agreements. 

The Secretary determined that the 

consequences of the Federal government 

appearing to unilaterally add additional 

terms and conditions to an agreement 

after it was completed were significant 

and could negatively affect other 

ongoing and potential future 

negotiations. The benefit of avoiding 

even the appearance of bad faith was 

determined to greatly outweigh any real 

or speculative benefit conferred by the 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56255 

regulatory protections of a critical 

habitat designation. 

Waters Impounded Behind Dams 

(Reservoirs and Pools) 

We are excluding those reservoirs, or 

pools impounded behind dams whose 

primary purpose is for flood control, 

energy production, or water supply for 

human consumption. Disruption of 

these functions could potentially 

compromise human health and safety in 

the case of reservoir where the reservoir 

provides flood control or drinking 

water, and in the case of energy 

production, would be consistent with 

the President’s energy policy. 

(1) Benefits of Inclusion 

We identified two benefits of 

including reservoirs in the critical 

habitat designation: The additional 

protection afforded by the prohibition 

against adverse modification and the 

benefits associated with clearly 

delineating areas containing features 

essential to a species’ conservation. 

The principal benefit of any 

designated critical habitat is the 

requirement for consultation under 

section 7 of the Act for any activities 

having a Federal nexus that may affect 

critical habitat. Section 7 of the Act 

requires action agencies to avoid the 

destruction or adverse modification of 

critical habitat. Given the unique 

analytical framework for conducting 

section 7 consultations on the bull trout 

(i.e., an analytical approach whereby the 

continued survival of the species is 

dependent upon maintaining 

functioning core habitat), the likelihood 

that a Federal action would result in 

adverse modification, without also 

jeopardizing the continued existence of 

the species, is low. Therefore we give 

this benefit little weight. 

Designating critical habitat can 

educate the public and management 

agencies about the distribution of areas 

containing features essential to the 

conservation of a species. In areas 

lacking a bull trout-specific 

management plan (e.g., many reservoirs) 

this can guide projects to avoid impacts 

to listed species and can help focus 

recovery efforts. We assign this benefit 

moderate weight. 

(2) Benefits of Exclusion 

We identified a number of possible 

benefits of excluding reservoirs from the 

critical habitat designation. First, to the 

extent designation would provide any 

additional protection of bull trout 

habitat, costs associated with that 

protection would be avoided. Since it is 

unlikely that a Federal action would 

result in adverse modification (which 

we have assumed to be small), without 

also jeopardizing the continued 

existence of the species, we believe the 

benefits of critical habitat are low, so it 

follows that by excluding these areas the 

benefits of exclusion are also low. 

However, those reservoirs that provide 

flood protection; even where there is a 

very small probability of flood control 

operations, increasing the risk of loss of 

human lives due to flooding is 

unacceptable. The benefit of avoiding 

the risk exceeds the benefit of the 

conservation values generated through 

reservoir operation changes. Equally, 

where a reservoir provides drinking 

water for people, the benefit of avoiding 

the risk, however small, of losing that 

water supply in terms of human health 

and safety is significant. And finally, 

where a reservoir provides for energy 

production the benefit of avoiding the 

risk, however small, of a reduction in 

energy is inconsistent with the 

President’s energy policies. Therefore, 

we believe that the benefits of 

exclusion, given the risk, however 

small, to human health, safety, and 

energy are large, as we give this benefit 

a significant amount of weight. 

Second, exclusion would reduce 

administrative costs of conducting 

section 7 consultations on bull trout 

critical habitat (see Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) 

section above). We assign this benefit 

moderate weight. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

The benefits of including reservoirs in 

the critical habitat designation consist of 

the prohibition against adverse 

modification and the educational 

benefits of wider knowledge among the 

public and management agencies about 

the distribution of areas containing 

features essential to the conservation of 

a species. Based on our analysis above 

we assign these benefits little to 

moderate weight. 

The benefits of excluding reservoirs 

from the critical habitat designation 

include avoiding project modifications 

that would change existing flood 

protection, water delivery services, and 

energy production, and avoiding costs 

associated with preparing regulatory 

documents on critical habitat. 

Modification of reservoir operations as a 

result of critical habitat designation may 

result in an increased risk to the 

primary purpose of those reservoirs. For 

example, should a reservoir alter its 

capacity for floodwater storage due to an 

adverse modification determination, 

this may increase the risk of flooding. 

We have determined even a minor 

increase in the risk of flooding has 

consequences to human health and 

safety which outweigh the minor 

benefits of critical habitat. We assign an 

overriding benefit to the avoidance of 

increased flood risk. Avoiding 

diminishment or interruptions of a 

reservoir’s ability to deliver drinking 

water also outweighs the benefit to the 

species of critical habitat designation, 

since the benefit to the species is small 

and the removing even a small risk to 

the disruption of drinking water 

drinking water supplies is a significant 

benefit. Furthermore, avoiding possible 

modifications to reservoir operations 

that reduces energy production is also a 

benefit in that it supports the 

President’s energy policy through which 

we assign great weight. 

Therefore, we have determined that 

the benefits of inclusion of the areas 

covered by reservoirs are small to 

moderate, while the benefits of 

exclusion are more significant. In short, 

the benefits of exclusion outweigh the 

benefits of inclusion. Because we 

anticipate that little if any conservation 

benefit to the bull trout will be foregone 

as a result of excluding these lands, the 

exclusion will not result in the 

extinction of the bull trout. Where 

waters impounded are used for energy 

production, this exclusion is consistent 

with the President’s energy policy. The 

Secretary exercises her discretion under 

section 4(b)(2) to exclude these areas 

from the designation. 

Summary of Exclusions 

We have reviewed the overall effect of 

the exclusion of the above-mentioned 

approved Conservation agreements with 

non-Federal landowners, Tribal lands, 

military installations, and the Nisqually 

National Wildlife Refuge, and other 

lands that we have excluded as 

described above, for bull trout and their 

essential habitat. We have determined 

that the benefits of excluding these areas 

outweigh the benefits of including them 

in this critical habitat designation. 

Designation of critical habitat in these 

areas would most likely have a negative 

effect on the recovery and conservation 

of bull trout. The removal of these lands 

from critical habitat designation, as a 

result of these exclusions, will not lead 

to the species’ extinction. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing and 

contain the PCEs may require special 

management considerations or 

protections. As we undertake the 

process of designating critical habitat for 

a species, we first evaluate lands 

56256 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

defined by those physical and biological 

features essential to the conservation of 

the species for inclusion in the 

designation pursuant to section 3(5)(A) 

of the Act. Secondly, we evaluate lands 

defined by those features to assess 

whether they may require special 

management considerations or 

protection. Within each area designated 

as critical habitat, the physical and 

biological features essential for the 

conservation of the bull trout may 

require some level of management and/ 

or protection to avoid destruction or 

adverse modification of habitat essential 

to its conservation. 

Critical Habitat Designation 

We are designating critical habitat in 

20 units. Critical habitat includes bull 

trout habitat in Idaho, Montana, Oregon, 

and Washington. Lands adjacent to 

designated critical habitat are under 

private, local government, State, Tribal, 

and Federal ownership. The areas we 

are designating as critical habitat 

constitute our best assessment of areas 

that: (1) Have documented occupancy 

within the last 20 years, (2) contain 

features essential to the conservation of 

the bull trout, and (3) are in need of 

special management, and (4) were not 

excluded under section 4(b)(2) of the 

Act. Military lands with an approved 

INRMP that provides benefits to the bull 

trout were not included in the 

designation per section 4(a)(3) of the 

Act. 

Tables 1–5 summarize the distance 

(stream miles) and area (acres) of 

designated critical habitat by critical 

habitat unit, State, and land ownership. 

TABLE 1.—STREAM/SHORELINE DISTANCE (MI/KM) DESIGNATED AS BULL TROUT CRITICAL HABITAT BY CRITICAL HABITAT

UNIT

CH unit Stream/shoreline 

miles 

Stream/shoreline 

kilometers 

1. Klamath River Basin .......................................................................................................................... 50 80 

2. Clark Fork River Basin ...................................................................................................................... 1,136 1,828 

3. Kootenai River Basin ......................................................................................................................... 56 91 

4. Willamette River Basin ...................................................................................................................... 111 178 

5. Hood River Basin .............................................................................................................................. 30 48 

6. Deschutes River Basin ...................................................................................................................... 78 126 

9. Umatilla-Walla Walla River Basins .................................................................................................... 218 350 

10. Grande Ronde River Basin ............................................................................................................... 308 496 

11. Imnaha-Snake River Basins .............................................................................................................. 92 148 

12. Hells Canyon Complex ...................................................................................................................... 125 202 

13. Malheur River Basin .......................................................................................................................... 38 60 

14. Coeur d’Alene Lake Basin ................................................................................................................. 124 199 

19. Lower Columbia River Basin ............................................................................................................. 94 152 

20. Middle Columbia River Basin ............................................................................................................ 188 302 

22. Northeast Washington River Basins ................................................................................................. 25 40 

23. Snake River Basin in Washington ..................................................................................................... 68 109 

25. Snake River ....................................................................................................................................... 17 27 

27. Olympic Peninsula ............................................................................................................................. 388 624 

27. Olympic Peninsula (Marine) .............................................................................................................. 419 674 

28. Puget Sound ...................................................................................................................................... 646 1,039 

28. Puget Sound (Marine) ....................................................................................................................... 566 912 

29. Saint Mary-Belly ................................................................................................................................ 37 59 

Total .................................................................................................................................................. 4,813 7,745 

TABLE 2.—ACRES OF RESERVOIRS OR LAKES DESIGNATED AS BULL TROUT CRITICAL HABITAT BY CRITICAL HABITAT UNIT. 

CH unit Acres Hectares 

1. Klamath River Basin .......................................................................................................................... 24,610 9,959 

2. Clark Fork River Basin ...................................................................................................................... 49,755 20,135 

3. Kootenai River Basin ......................................................................................................................... 1,384 560 

6. Deschutes River Basin ...................................................................................................................... 2,713 1,098 

14. Coeur d’Alene Lake Basin ................................................................................................................. 27,296 11,046 

27. Olympic Peninsula ............................................................................................................................. 8,318 3,366 

28. Puget Sound ...................................................................................................................................... 25,035 10,131 

29. Saint Mary-Belly ................................................................................................................................ 4,107 1,662 

Total .................................................................................................................................................. 143,218 57,958 

TABLE 3.—STREAM/SHORELINE DISTANCE (MI/KM) DESIGNATED AS BULL TROUT CRITICAL HABITAT BY STATE

State Stream/shoreline 

miles 

Stream/shoreline 

kilometers 

Idaho ........................................................................................................................................................ 294 474 

Montana ................................................................................................................................................... 1,058 1,703 

Oregon ..................................................................................................................................................... 939 1,511 

Oregon/Idaho ........................................................................................................................................... 17 27 

Washington .............................................................................................................................................. 1,519 2,445 

Washington (Marine) ............................................................................................................................... 985 1,585 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56257 

TABLE 3.—STREAM/SHORELINE DISTANCE (MI/KM) DESIGNATED AS BULL TROUT CRITICAL HABITAT BY STATE—Continued 

State Stream/shoreline 

miles 

Stream/shoreline 

kilometers 

Total .................................................................................................................................................. 4,812 7,745 

TABLE 4.—ACRES OF RESERVOIRS OR LAKES DESIGNATED AS BULL TROUT CRITICAL HABITAT BY STATE

State Acres Hectares 

Idaho ........................................................................................................................................................ 50,627 20,488 

Montana ................................................................................................................................................... 31,916 12,916 

Oregon ..................................................................................................................................................... 27,322 11,057 

Washington .............................................................................................................................................. 33,353 13,497 

Total .................................................................................................................................................. 143,218 57,958 

TABLE 5.—STREAM/SHORELINE DISTANCE (MI/KM) DESIGNATED AS BULL TROUT CRITICAL HABITAT BY OWNERSHIP

Land ownership Stream/shoreline 

miles 

Stream/shoreline 

kilometers 

Federal ..................................................................................................................................................... 538 865 

Federal/Private Mixed .............................................................................................................................. 24 38 

Federal/State Mixed ................................................................................................................................. 6 10 

Federal/Tribal Mixed ................................................................................................................................ 1 1 

Private ...................................................................................................................................................... 3,587 5,773 

State/Local Government Mixed ............................................................................................................... 347 559 

State/Private Mixed .................................................................................................................................. 69 111 

Tribal ........................................................................................................................................................ 209 336 

Tribal/Private Mixed ................................................................................................................................. 31 50 

Tribal/State Mixed .................................................................................................................................... 1 2 

Total .................................................................................................................................................. 4,813 7,745 

The lateral extent of critical habitat, 

for each designated stream reach, is the 

width of the stream channel as defined 

by its ordinary high-water line as 

defined by the U.S. Army Corps of 

Engineers (COE) in 33 CFR 329.11. This 

approach is consistent with the specific 

mapping requirements described in 

agency regulations at 50 CFR 424.12(c). 

In areas for which ordinary high-water 

has not been defined pursuant to 33 

CFR 329.11, the width of the stream 

channel shall be defined by its bankfull 

elevation. Bankfull elevation is the level 

at which water begins to leave the 

channel and move into the floodplain 

(Rosgen, 1996) and is reached at a 

discharge which generally has a 

recurrence interval of 1 to 2 years on the 

annual flood series (Leopold et al., 

1992). Such an interval is 

commensurate with nearly all of the 

juvenile freshwater life phases of most 

salmon and steelhead ESUs. Therefore, 

it is reasonable to conclude that for an 

occupied stream reach this lateral extent 

is regularly ‘‘occupied’’. Moreover, the 

bankfull elevation can be readily 

discerned for a variety of stream reaches 

and stream types using recognizable 

water lines (e.g., marks on rocks) or 

vegetation boundaries (Rosgen, 1996). 

Critical habitat extends from the 

ordinary high-water line as defined by 

the Corps in 33 CFR 329.11 and shall be 

used to determine the lateral extent of 

critical habitat. Adjacent floodplains are 

not designated as critical habitat. 

However, it should be recognized that 

the quality of aquatic habitat within 

stream channels is intrinsically related 

to the character of the floodplains and 

associated riparian zones, and human 

activities that occur outside the river 

channels can have demonstrable effects 

on physical and biological features of 

the aquatic environment (i.e., critical 

habitat). In addition, human activities 

that occur within or adjacent to streams 

or stream reaches that flow into critical 

habitat can also have demonstrable 

effects on physical and biological 

features of designated reaches. The 

lateral extent of lakes and reservoirs is 

defined by the perimeter of the water 

body as mapped on standard 1:24,000 

scale maps (comparable to the scale of 

a 7.5 minute USGS Quadrangle 

topographic map). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

56258 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

1 (Core areas form the building blocks that 

provide for conserving the bull trout’s evolutionary 

legacy as represented by major genetic groups. The 

draft Bull Trout Recovery Plan recognizes core areas 

as the population units that are necessary to 

provide for bull trout biological needs in relation 

to genetic and phenotypic diversity, and spreading 

the risk of extinction caused by stochastic events. 

Peer review of the draft Bull Trout Recovery Plan 

did not reveal deficiencies with this approach. A 

panel of scientists invited to participate in the bull 

trout 5-year review process concluded that core 

areas are appropriate units of analysis by which 

threats to the bull trout and recovery standards 

should be measured.) 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

bull trout or its designated critical 

habitat will require section 7 

consultation under the Act. Activities 

on State, tribal, local or private lands 

requiring a Federal permit (such as a 

permit from the Corps under section 404 

of the Clean Water Act or a permit 

under section 10(a)(1)(B) of the Act from 

the Service) or involving some other 

Federal action (such as funding from the 

Federal Highway Administration, 

Federal Aviation Administration, or the 

Federal Emergency Management 

Agency) will also be subject to the 

section 7 consultation process. Federal 

actions not affecting listed species or 

critical habitat, and actions on State, 

tribal, local or private lands that are not 

federally-funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the Bull 

Trout and Its Critical Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for bull trout 

jeopardy analyses that relies heavily on 

the importance of core area populations 

to the survival and recovery of the bull 

trout.1 The section 7(a)(2) analysis is 

focused not only on these populations 

but also on the habitat conditions 

necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the bull trout at the DPS scale 

in a qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, if a proposed 

Federal action is incompatible with the 

viability of the affected core area 

population(s), inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

population ot the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting bull trout critical 

habitat. The key factor related to the 

adverse modification determination is 

whether, with implementation of the 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56259 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. Generally, the conservation role 

of bull trout critical habitat units is to 

support viable core area populations. 

It should be noted that in the 200 or 

so formal consultations completed since 

the bull trout was listed, most of the 

anticipated effects of proposed Federal 

actions on the species have not been 

biologically significant from a core area 

perspective, and if these actions were 

subject to the adverse modification 

standard described above, they would 

not likely violate it. Based on an 

analysis of 137 formal consultations 

conducted during the period 1998–

2003, the following types of projects 

were proposed in bull trout-occupied 

habitat, in order of frequency (most to 

least): multiple project actions, grazing, 

road work, bridge work, habitat 

restoration, land and resource 

management plans, mining, 

hydropower, timber harvest, recreation, 

water diversion/irrigation, research, 

land exchange, flood control, erosion 

control, pipeline construction, predator 

control, landslide remediation, instream 

crossings, weed management, dredging, 

and levee repair. 

However, at least one major Federal 

action involving significant 

modifications to natural flow patterns in 

designated critical habitat is currently in 

formal consultation, and it is likely 

(based on recent litigation patterns and 

outcomes) that the number of diversionrelated Federal actions consulted on, 

some of which may occur in critical 

habitat, will increase substantially in 

the future. Water quality and quantity 

are significant factors (and primary 

constituent elements of bull trout 

critical habitat) influencing the viability 

of bull trout core areas. Given that 

context, it seems reasonable to predict 

that a few Federal actions will be found 

to adversely modify bull trout critical 

habitat; most of these actions would also 

probably constitute jeopardy. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. All areas designated as 

critical habitat are determined to be 

essential to the conservation of the bull 

trout. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for the bull trout is appreciably 

reduced. Activities that, when carried 

out, funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

bull trout include, but are not limited to: 

(1) Detrimental altering of the 

minimum flow or the natural flow 

regime of any of the designated stream 

segments. Possible actions would 

include groundwater pumping, 

impoundment, water diversion, and 

hydropower generation. We note that 

such flow alterations resulting from 

actions affecting tributaries of the 

designated stream reaches may also 

destroy or adversely modify critical 

habitat; 

(2) Alterations to the designated 

stream segments that could indirectly 

cause significant and detrimental effects 

to bull trout habitat. Possible actions 

include vegetation manipulation, timber 

harvest, road construction and 

maintenance, prescribed fire, livestock 

grazing, off-road vehicle use, powerline 

or pipeline construction and repair, 

mining, and development. Riparian 

vegetation profoundly influences 

instream habitat conditions by 

providing shade, organic matter, root 

strength, bank stability, and large woody 

debris inputs to streams. These 

characteristics influence water 

temperature, structure and physical 

attributes (useable habitat space, depth, 

width, channel roughness, cover 

complexity), and food supply (Gregory 

et al. 1991; Sullivan et al. 2000). The 

importance of riparian vegetation and 

channel bank condition for providing 

rearing habitat for salmonids in general 

is well documented (e.g., Bossu 1954 

and Hunt 1969, cited in Beschta and 

Platts 1987; MBTSG 1998); 

(3) Detrimental altering of the channel 

morphology of any of the designated 

stream segments. Possible actions would 

include channelization, impoundment, 

road and bridge construction, 

deprivation of substrate source, 

destruction and alteration of aquatic or 

riparian vegetation, reduction of 

available floodplain, removal of gravel 

or floodplain terrace materials, 

excessive sedimentation from mining, 

livestock grazing, road construction, 

timber harvest, off-road vehicle use, and 

other watershed and floodplain 

disturbances. We note that such actions 

in the upper watershed (beyond the 

riparian area) may also destroy or 

adversely modify critical habitat. For 

example, timber harvest activities and 

associated road construction in upland 

areas can lead to changes in channel 

morphology by altering sediment 

production, debris loading, and peak 

flows; 

(4) Detrimental alterations to the 

water chemistry in any of the designated 

stream segments. Possible actions would 

include release of chemical or biological 

pollutants into the surface water or 

connected groundwater at a point 

source or by dispersed release (nonpoint); 

(5) Proposed activities that are likely 

to result in the introduction, spread, or 

augmentation of nonnative aquatic 

species in any of the designated stream 

segments. Possible actions would 

include fish stocking; use of live bait 

fish; aquaculture; improper construction 

and operation of canals; and interbasin 

water transfers; and 

(6) Proposed activities that are likely 

to create significant instream barriers to 

bull trout movement. Possible actions 

would include new water diversions, 

impoundments, and hydropower 

generation where effective fish passage 

facilities, mechanisms, or procedures 

are not provided. 

We consider all of the units 

designated as critical habitat, as well as 

those that have been excluded or not 

included, to contain features essential to 

the conservation of the bull trout. All 

units are within the geographic range of 

the species, all were occupied by the 

species at the time of listing (based on 

observations made within the last 20 

years), and are likely to be used by the 

bull trout, whether for foraging, 

migrating, overwintering, spawning, or 

rearing. Federal agencies already 

consult with us on activities in areas 

currently occupied by the bull trout, or 

if the species may be affected by the 

action, to ensure that their actions do 

not jeopardize the continued existence 

of the bull trout. 

If you have questions regarding 

whether specific activities will likely 

constitute destruction or adverse 

modification of critical habitat, contact 

the Field Supervisor of the nearest Fish 

and Wildlife Ecological Services Office. 

Requests for copies of the regulations on 

listed wildlife, and inquiries about 

prohibitions and permits may be 

addressed to the Division of Endangered 

Species, U.S. Fish and Wildlife Service, 

911 NE 11th Avenue, Portland, OR 

97232–4181 (telephone 503/231–6158; 

facsimile 503/231–6243). 

Economic Analysis 

Section 4(b)(2)of the Act requires us 

to designate critical habitat on the basis 

of the best scientific and commercial 

information available and to consider 

the economic and other relevant 

56260 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

impacts of designating a particular area 

as critical habitat. We exclude areas 

from critical habitat upon a 

determination that the benefits of such 

exclusions outweigh the benefits of 

specifying such areas as critical habitat. 

We cannot exclude areas from critical 

habitat when exclusion will result in the 

extinction of the species concerned. 

Analysis of the Klamath River and 

Columbia River Populations 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

April 5, 2004 (69 FR 17634). We 

accepted comments on the draft analysis 

until May 5, 2004. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

bull trout. This information is intended 

to assist the Secretary in making 

decisions about whether the benefits of 

excluding particular areas from the 

designation outweigh the benefits of 

including those areas in the designation. 

This economic analysis considers the 

economic efficiency effects that may 

result from the designation, including 

habitat protections that may be coextensive with the listing of the species. 

It also addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The analysis examines activities 

taking place both within and adjacent to 

the designation. It estimates impacts 

based on activities that are ‘‘reasonably 

foreseeable’’ including, but not limited 

to, activities that are currently 

authorized, permitted, or funded, or for 

which proposed plans are currently 

available to the public. Accordingly, the 

analysis bases estimates on activities 

that are likely to occur within a 10-year 

time frame, from when the proposed 

rule became available to the public 

(November 30, 2002, 67 FR 71235). The 

10-year time frame was chosen for the 

analysis because, as the time horizon for 

an economic analysis is expanded, the 

assumptions on which the projected 

number of projects and cost impacts 

associated with those projects become 

increasingly speculative. An exception 

to the 10-year analysis time horizon 

used in this analysis is for FERC 

licenses, which are renewed for up to 50 

years. Accordingly, this analysis 

estimates the annualized costs of the 

expected impacts associated with 

section 7 bull trout consultations 

involving FERC re-licensing over a 50- 

year time horizon. 

Costs can be expressed in terms of 

unit or river mile; both of these metrics 

are useful in describing economic 

impacts. On a cost per unit basis, the 

largest portion of forecast costs is 

expected to occur in Unit 4, the 

Willamette River Basin (18 percent). 

These costs are attributable to fish 

passage and temperature control 

projects and annual operating and 

maintenance and fish study costs at the 

Corp’s facilities in the Upper Willamette 

River System (Dexter, Lookout Point, 

Hills Creek, and Blue River Dams). The 

next most costly unit is Unit 16, the 

Salmon River Basin (12 percent). 

Because this is the largest unit in terms 

of river miles and proportion of USFSmanaged land, and because future USFS 

activities are expected to generate 

approximately 70 percent of the 

consultation activity, this unit bears the 

greatest number of future bull troutrelated consultations. Therefore, the 

administrative costs account for a large 

portion of the costs in this unit. 

Together, these two units account for 30 

percent (approximately $8.2 million) of 

forecast costs. The next three most 

costly units, Hells Canyon complex 

(Unit 12), and the Clark Fork River (Unit 

2), and Malheur River (Unit 13) Basins, 

each account for 8 percent (a unit cost 

range of approximately $2.1 million to 

$2.3 million) of forecast costs. In total, 

these five units account for almost 55 

percent of forecast costs (approximately 

$14.8 million). 

Based on our analysis, we concluded 

that the designation of critical habitat 

for the Klamath River and Columbia 

River population segments would not 

result in a significant economic impact, 

and estimated the potential economic 

effects over a 10-year period would 

range from $200 to $260 million ($20 to 

$26 million per year) for bull trout. It is 

expected that Federal agencies will bear 

70 percent of these costs. The total 

estimated costs associated with bull 

trout consultation is expected be $9.8 

million annually, and total project 

modification costs are expected to range 

from $19.5 to $26.1 million annually. 

Although we do not find the economic 

costs to be significant, they were 

considered in balancing the benefits of 

including and excluding areas from 

critical habitat. 

Analysis of the Jarbidge River, CoastalPuget Sound, and Saint Mary-Belly 

River Populations 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The DEA was made 

available for public review on May 3, 

2005 (70 FR 22835). We accepted 

comments on the DEA until June 2, 

2005. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

conservation of bull trout. This 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. The economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs related to bull trout, 

and the analysis considers how small 

entities, including small businesses, 

organizations, and governments, may be 

affected by future bull trout 

conservation activities. In addition, this 

analysis considers the impacts of 

conservation activities on the energy 

industry and its customers. However, 

economic impacts to land-use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. 

The analysis examines activities 

taking place both within and adjacent to 

the designation. It estimates impacts 

based on activities that are ‘‘reasonably 

foreseeable’’ including, but not limited 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56261 

to, activities that are currently 

authorized, permitted, or funded, or for 

which proposed plans are currently 

available to the public. The analysis 

estimates economic effects of activities 

from 1998 (year of the proposed rule for 

listing) through 2024 (20 years from the 

year of final critical habitat designation). 

The time frame for analysis was selected 

to emulate a reasonable future period for 

recovery of the species. 

The time frame associated with each 

activity is important because as the time 

horizon for an economic analysis is 

expanded, the forecast of future projects 

becomes increasingly speculative. As a 

result, with the exception of 

hydroelectric and non-hydroelectric 

projects where some capital costs are 

spread over 50 years, this analysis relies 

primarily on a time frame of 20 years. 

The time frame for hydroelectric and 

non-hydroelectric projects is longer 

relative to other activities analyzed 

based on the nature of the activity. 

Whereas geographic and total 

projections of population and housing 

densities within a region become 

increasingly speculative over time, the 

known location and inevitability of 

hydroelectric dam re-licensing or other 

permitting provides sufficient 

information to estimate future costs 

associated with conservation measures 

at these facilities. 

The Coastal-Puget Sound population 

represents about 99 percent of the costs, 

and these costs are co-extensive with 

listed salmon. The reason for this is that 

listed salmon species overlap with the 

geographic area of the Coastal-Puget 

Sound population of bull trout. There 

are no listed species of salmon or 

steelhead in the Jarbidge River or Saint 

Mary-Belly River populations. Also, in 

cases where there is an overlap of range 

between salmon and bull trout, no 

separation is made of these joint costs, 

and they are presented as ‘‘impacts 

associated with co-extensive of salmon 

and bull trout conservation activities.’’

For this critical habitat designation, 

the majority of the cost burden (about 75 

percent) falls on the commercial sector. 

Based on the projected development 

from 2005 to 2024, bull trout 

conservation activities are anticipated to 

increase the total cost of commercial, 

residential, and mixed development by 

$26.2 million annually. Total 

prospective costs are $277.2 million 

applying a 7 percent discount rate. 

Other cost leading activities include 

Federal land management (13 percent), 

non-hydroelectric projects (11 percent), 

and hydroelectric projects (10 percent). 

In the Puget Sound Unit (Unit 28), costs 

associated with residential and 

commercial development are among the 

highest category of costs. 

There are 83 watersheds in the 

Coastal-Puget Sound region that contain 

designated critical habitat. Of the 10 

watersheds with the highest costs 

associated with co-extensive salmon 

and bull trout conservation activities, 

nine are within Unit 28, between the 

Skagit River in the north and the 

Puyallup River in the south, and seven 

of these contain significant development 

costs; not surprisingly, they encompass 

highly urbanized areas of Puget Sound. 

Together, these seven watersheds 

represent 48 percent of the total 

economic impact within designated 

critical habitat. Costs in the Middle 

Green River watershed are primarily 

attributable to conservation activities at 

the Howard Hansen Dam and the City 

of Tacoma’s water diversion. High costs 

in the Baker River watershed are due 

primarily to the upper and lower Baker 

Dam, where significant capitals costs are 

expected associated with a fish passage 

project beginning in 2006. Together, 

these 10 watersheds in Coastal-Puget 

Sound represent 70 percent of the 

annualized economic impacts 

associated with lands designated as 

critical habitat. 

Based on our analysis, we concluded 

that the designation of critical habitat 

for the Jarbidge River, Coastal-Puget 

Sound, and Saint Mary-Belly River 

population segments would not result in 

a significant economic impact, and 

estimated the potential economic effects 

over a 20-year period would range from 

approximately $684 million, assuming a 

7 percent discount rate, to 

approximately $1 billion, assuming a 3 

percent discount rate. Costs are 

estimated to be $61.3 million per year. 

Copies of the two final economic 

analyses with supporting documents are 

included in our administrative record 

and may be obtained by contacting U.S. 

Fish and Wildlife Service, Branch of 

Endangered Species (see ADDRESSES

section), or by downloading from the 

Internet at http://www.fws.gov/pacific/ 

bulltrout/. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

final rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the final rule clearly stated? (2) Does 

the final rule contain technical jargon 

that interferes with the clarity? (3) Does 

the format of the final rule (grouping 

and order of the sections, use of 

headings, paragraphing, and so forth) 

aid or reduce its clarity? (4) Is the 

description of the notice in the 

SUPPLEMENTARY INFORMATION section of 

the preamble helpful in understanding 

the final rule? (5) What else could we do 

to make this final rule easier to 

understand? 

Send a copy of any comments on how 

we could make this final rule easier to 

understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. As explained above, 

we prepared an economic analysis of 

this action. We used this analysis to 

meet the requirement of section 4(b)(2) 

of the Act to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. SBREFA amended the RFA to 

56262 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA also 

amended the RFA to require a 

certification statement. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; and small businesses. 

Small businesses include manufacturing 

and mining concerns with fewer than 

500 employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, SBREFA does not explicitly 

define ‘‘substantial number’’ or 

‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect bull trout. Federal agencies also 

must consult with us if their activities 

may affect critical habitat. Designation 

of critical habitat, therefore, could result 

in an additional economic impact on 

small entities due to the requirement to 

reinitiate consultation for ongoing 

Federal activities. 

The Columbia River and Klamath 

River populations of bull trout were 

federally-listed as threatened in June 

1998. In fiscal years 1998 through 2002, 

we conducted 152 formal section 7 

consultations and several hundred 

informal consultations with other 

Federal agencies, mainly the USFS, to 

ensure that their actions will not 

jeopardize the continued existence of 

the bull trout. Our economic analysis 

found that timber management, grazing, 

dam and reservoir operations, stream 

habitat improvement and fisheries 

restoration, road construction and 

maintenance, and flood control projects 

are the primary activities anticipated to 

take place within the area designated as 

critical habitat for the bull trout. To be 

conservative (i.e., more likely to 

overstate impacts than understate them), 

we assumed in our economic analysis 

that a unique business entity would 

undertake each of the projected 

consultations in a given year. Therefore, 

the number of businesses affected 

annually is equal to the total annual 

number of consultations (both formal 

and informal). 

Based on the economic analysis 

which looked at the critical habitat for 

bull trout, and including consultations 

on FERC relicensing of hydroelectric 

facilities, we estimated that in each 

year, there could be approximately 52 

formal consultations involving bull 

trout, and it is expected that the USFS 

will constitute about 70 percent of the 

total number of formal consultations. 

The Jarbidge River, Coastal-Puget 

Sound, and Saint Mary-Belly River bull 

trout populations were federally listed 

as threatened in April 1999 (Jarbidge 

River) and November 1999 (CoastalPuget Sound and St. Mary-Belly River), 

respectively. In fiscal years 1998 

through 2004, we conducted 176 formal 

section 7 consultations and several 

hundred informal consultations with 

other Federal agencies to ensure that 

their actions will not jeopardize the 

continued existence of the bull trout. 

Approximately 77 percent of the past 

consultations have involved the Corps 

and FHA. The Corps regulates flood 

control and damage reduction efforts, as 

well as permits dredging and 

construction activities affecting 

waterways under authority provided by 

the Clean Water Act. Federal Highway 

Administration provides funding to 

many of the road and bridge projects 

administered by State departments of 

transportation. Projects that may impact 

streams with listed bull trout can result 

in a section 7 consultation with FHA as 

the action agency. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

small businesses that may be required to 

consult with us each year regarding 

their project’s impact on bull trout and 

its habitat. First, if we conclude, in a 

biological opinion, that a proposed 

action is likely to jeopardize the 

continued existence of a species or 

adversely modify its critical habitat, we 

can offer ‘‘reasonable and prudent 

alternatives.’’ Reasonable and prudent 

alternatives are alternative actions that 

can be implemented in a manner 

consistent with the scope of the Federal 

agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy, or adverse modification of 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species, we may identify 

reasonable and prudent measures 

designed to minimize the amount or 

extent of take and require the Federal 

agency or applicant to implement such 

measures through non-discretionary 

terms and conditions. We may also 

identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or to develop 

information that could contribute to the 

recovery of the species. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56263 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those in their 

initial proposed form, would result in 

jeopardy, or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and this critical habitat designation. 

Within the final CHUs, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the Corps 

under section 404 of the Clean Water 

Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Regulation of timber harvest, 

grazing, mining, and recreation by the 

USFS and BLM; 

(4) Road construction and 

maintenance, right-of-way designation, 

and regulation of agricultural activities; 

(5) Hazard mitigation and postdisaster repairs funded by the FEMA; 

and 

(6) Activities funded by the 

Environmental Protection Agency, U.S. 

Department of Energy, or any other 

Federal agency. 

It is likely that a developer or other 

project proponent could modify a 

project or implement measures to 

protect bull trout. The kinds of actions 

that may be included if future 

reasonable and prudent alternatives 

become necessary include conservation 

set-asides, management of competing 

nonnative species, restoration of 

degraded habitat, and monitoring. These 

are based on our understanding of the 

needs of the species and the threats it 

faces, as described in the final listing 

rule and proposed critical habitat 

designation. These measures are not 

likely to result in a significant economic 

impact to project proponents. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 

information, that it is not likely to affect 

a substantial number of small entities. 

Federal involvement, and thus section 7 

consultations, would be limited to a 

subset of the area designated. The most 

likely Federal involvement could 

include Corps permits, permits we may 

issue under section 10(a)(1)(B) of the 

Act, FHA funding for road 

improvements, hydropower licenses 

issued by the Federal Energy Regulatory 

Commission, and regulation of timber 

harvest, grazing, mining, and recreation 

by the USFS and BLM. A regulatory 

flexibility analysis is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises. 

Refer to the final economic analysis for 

a discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designate critical habitat for the 

bull trout is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions: it excludes ‘‘a 

condition of federal assistance,’’ and it 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, permits or that 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year that is, it 

is not a ‘‘significant regulatory action’’

56264 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630, this rule does not have 

significant takings implications. 

Therefore, a takings implication 

assessment is not required. The 

designation of critical habitat affects 

only Federal agency actions. The rule 

will not increase or decrease the current 

restrictions on private property 

concerning take of the bull trout. Due to 

current public knowledge of the species’

protection as a result of it being listed 

under the Act, the prohibition against 

take of the species both within and 

outside of the designated areas, and the 

fact that critical habitat provides no 

incremental restrictions, we do not 

anticipate that property values will be 

affected by the critical habitat 

designation. While real estate market 

values may temporarily decline 

following designation due to the 

perception that critical habitat 

designation may impose additional 

regulatory burdens on land use, we 

expect any such impacts to be short 

term. Additionally, critical habitat 

designation does not preclude 

development of HCPs and issuances of 

incidental take permits. Owners of areas 

that are included in the designated 

critical habitat will continue to have 

opportunity to use their property in 

ways consistent with the survival and 

conservation of the bull trout. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

Washington, Idaho, Montana, Oregon, 

and Nevada. The designation of critical 

habitat in areas currently occupied by 

the bull trout imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments in that the areas essential 

to the conservation of the species are 

more clearly defined, and the PCEs of 

the habitat necessary to the survival of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than encouraging these 

governments to simply wait for case-bycase section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

that it meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We have designated critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This final rule 

uses standard property descriptions and 

identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of the 

bull trout. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

Outside the Tenth Circuit Court, we 

do not need to prepare environmental 

analyses as defined by NEPA in 

connection with designating critical 

habitat under the Endangered Species 

Act of 1973, as amended. We published 

a notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 

(1996)). 

Government-to-Government 

Relationship with Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal tribes on a 

government-to-government basis. 

During our development of this 

critical habitat designation for the 

Columbia River and Klamath River 

populations of bull trout, we evaluated 

tribal lands to determine if they contain 

features are essential to the conservation 

of the species. We have designated 

critical habitat for portions of Ahtanum 

Creek, North Fork Ahtanum Creek, 

South Fork Ahtanum Creek, Yakima 

River, Clearwater Creek, Fish Lake 

Stream, unnamed tributary to Fish Lake 

Stream, Little Muddy Creek, Trappers 

Creek, Two Lakes Stream, West Fork 

Klickitat River, and Klickitat River 

within or adjacent to the Yakama Indian 

Reservation; the Umatilla River, 

Meacham Creek, and Squaw Creek 

within the Umatilla Reservation; Lake 

Coeur d’Alene within the Coeur d’Alene 

Reservation; a portion of the Columbia 

River adjacent to the Colville Indian 

Reservation; the Pend Oreille River and 

Calispell Creek within the Kalispell 

Indian Reservation; portions of 

Clearwater River, Middle Fork 

Clearwater River, North Fork Clearwater 

River, and South Fork Clearwater River, 

Lolo Creek, Clear Creek, and Dworshak 

Reservoir within or adjacent to the Nez 

Perce Indian Reservation; and portions 

of Dry Creek, Flathead Lake, the lower 

Flathead River, Jocko River, McDonald 

Lake, Middle Fork Jocko River, Mission 

Creek, Mission Reservoir, North Fork 

Jocko River, Post Creek, Saint Mary’s 

Lake, and South Fork Jocko River on the 

Confederated Salish and Kootenai 

Tribes (CSKT) lands on the Flathead 

Indian Reservation. 

Currently, the Yakama Nation, Coeur 

d’Alene, Kalispell, Nez Perce, CSKT, 

and Umatilla Tribes do not have 

resource management plans that provide 

protection or conservation for the bull 

trout and its habitat. The CSKT have a 

resource management plan addressing 

bull trout conservation that is being 

applied in the Jocko River watershed. 

However, as a result of our meetings 

with the Tribes on September 26, 2002, 

we mutually agreed to include habitat 

within the Jocko River watershed in this 

rule designating critical habitat. 

We held government-to-government 

consultations with the Confederated 

Tribes of Warm Springs Reservation of 

Oregon (CTWS) to discuss their policy 

and position regarding the proposal. At 

these meetings, the CTWS provided us 

with documents pertaining to the 

Tribe’s conservation activities which 

benefit the bull trout. These documents 

include their IRMP I and II, Water Code, 

Water Quality Standards, 

Implementation Plan for Water Quality, 

Water Resources Inventory, Streamside 

Management Plan, Field Guide to IRMP 

Standards and Best Management 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56265 

Practices. They also provided us with 

information on specific actions they 

have taken that benefit the bull trout. 

During our development of this 

critical habitat designation for the 

Jarbidge River, Coastal-Puget Sound, 

and Saint Mary-Belly River bull trout 

populations, we evaluated tribal lands 

to determine if they contain features 

that are essential to the conservation of 

the species. There are no tribal lands 

designated as critical habitat within the 

Jarbidge River population area. Within 

the Saint Mary-Belly River population, 

there are no tribal lands designated as 

critical habitat. Within the Coastal-Puget 

Sound population, we have designated 

critical habitat for portions of the 

Nooksack River and Puget Sound 

nearshore adjacent to the Lummi Indian 

Reservation; portion of the Nooksack 

River adjacent to the Nooksack Indian 

Reservation; portion of the Sauk River 

adjacent to the Sauk-Suiattle Indian 

Reservation; portions of the Snohomish 

River, and Puget Sound nearshore 

within or adjacent to the Tulalip Indian 

Reservation; portions of the Puyallup 

River and Puget Sound nearshore within 

or adjacent to the Puyallup Indian 

Reservation; portions of the Nisqually 

River within or adjacent to the 

Nisqually Indian Reservation; portions 

of the Elwha River and the Strait of Juan 

de Fuca nearshore within or adjacent to 

the Lower Elwha S’Klallam Indian 

Reservation; and a portion of the 

Chehalis River within or adjacent to the 

Chehalis Indian Reservation. 

Approximately 18 mi (29 km) of stream 

segments, 60 mi (96 km) of marine 

shoreline, and 962 ac (389 ha) on or 

adjacent to tribal lands are included in 

our critical habitat designation, and 

approximately 79 mi (127 km) of stream 

segments and 56 mi (90 km) of marine 

shoreline on or adjacent to tribal lands 

are excluded. 

We will continue to work closely with 

tribes to manage essential features of 

bull trout habitat. We are committed to 

maintaining a positive working 

relationship with all of the tribes, and 

will work with them on developing 

resource management plans for tribal 

lands that include conservation 

measures for bull trout. We were 

required to prepare this critical habitat 

designation based on our analysis of 

whether habitat within these tribal 

reservation lands contain features 

essential to the conservation of the 

species and may require special 

management considerations or 

protection. Please refer to the Tribal 

Lands section under the Section 3(5)(A) 

and Exclusions Under Section 4(b)(2) of 

the Act for a more detailed discussion. 

References Cited 

A complete list of all references cited 

in this final rule is available on request 

from the U.S. Fish and Wildlife Service, 

Branch of Endangered Species Office, 

Portland, OR (see ADDRESSES section). 

Authors 

The primary authors of this rule are 

the staff of the U.S. Fish and Wildlife 

Service. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

99’625, 100 Stat. 3500; unless otherwise 

noted. 

■ 2. Amend § 17.95(e) by revising the 

entry for Bull Trout (Salvelinus 

confluentus) to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Bull Trout (Salvelinus confluentus) 

(1) Locations of the designated critical 

habitat. Critical habitat is designated in 

the following States and counties on the 

maps and as described below: 

State Counties 

(i) Idaho ............ Adams, Benewah, Bonner, Boundary, Kootenai, Nez Perce, Shoshone, Washington. 

(ii) Montana ...... Deer Lodge, Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Powell, Ravalli, Sanders. 

(iii) Oregon ........ Baker, Deschutes, Grant, Harney, Hood River, Jefferson, Klamath, Lake, Lane, Sherman, Umatilla, Union, Wallowa, Wasco. 

(iv) Washington Asotin, Benton, Clallam, Clark, Columbia, Cowlitz, Garfield, Grays Harbor, Island, Jefferson, King, Kittitas, Klickitat, Mason, 

Pend Oreille, Pierce, Skagit, Skamania, Snohomish, Stevens, Thurston, Walla Walla, Whatcom, Whitman, Yakima. 

(2) Topographic features included in 

the critical habitat designation. Critical 

habitat includes the stream channels 

within the designated stream reaches 

and inshore extent of critical habitat for 

marine nearshore areas (the mean high 

high-water (MHHW) line), including 

tidally influenced freshwater heads of 

estuaries indicated on the maps below. 

(i) Critical habitat includes the stream 

channels within the designated stream 

reaches, and includes a lateral extent as 

defined by the ordinary high-water line. 

In areas where ordinary high-water line 

has not been defined, the lateral extent 

will be defined by the bankfull 

elevation. Bankfull elevation is the level 

at which water begins to leave the 

channel and move into the floodplain 

and is reached at a discharge that 

generally has a recurrence interval of 1 

to 2 years on the annual flood series. 

Critical habitat includes the stream 

channels within the designated stream 

reaches, and includes a lateral extent 

from the bankfull elevation on one bank 

to the bankfull elevation on the opposite 

bank. Bankfull elevation is the level at 

which water begins to leave the channel 

and move into the floodplain and is 

reached at a discharge that generally has 

a recurrence interval of 1 to 2 years on 

the annual flood series. If bankfull 

elevation is not evident on either bank, 

the ordinary high-water line must be 

used to determine the lateral extent of 

critical habitat. The lateral extent of 

designated lakes is defined by the 

perimeter of the water body as mapped 

on standard 1:24,000 scale topographic 

maps. 

(ii) Critical habitat includes the 

inshore extent of critical habitat for 

marine nearshore areas (the MHHW 

line), including tidally influenced 

freshwater heads of estuaries. This 

refers to the average of all the higher 

high-water heights of the two daily tidal 

levels. Adjacent shoreline riparian 

areas, bluffs, and uplands are not 

designated as critical habitat. However, 

it should be recognized that the quality 

of marine habitat along shorelines is 

intrinsically related to the character of 

these adjacent features, and human 

activities that occur outside of the 

MHHW line can have major effects on 

physical and biological features of the 

marine environment. The offshore 

56266 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

extent of critical habitat for marine 

nearshore areas is based on the extent of 

the photic zone, which is the layer of 

water in which organisms are exposed 

to light. Critical habitat extends offshore 

to the depth of 33 ft (10 m) relative to 

the mean low low-water line (MLLW) 

(average of all the lower low-water 

heights of the two daily tidal levels). 

This equates to the average depth of the 

photic zone and is consistent with the 

offshore extent of the nearshore habitat 

identified under the ‘‘Notice of Change 

to the Nation’s Tidal Datums With the 

Adoption of a New National Tidal 

Datum Epoch Period of 1983 Through 

2001’’. This area between MHHW and 

minus 10 MLLW is considered the 

habitat most consistently used by bull 

trout in marine waters based on known 

use, forage fish availability, and ongoing 

migration studies, and captures 

geological and ecological processes 

important to maintaining these habitats. 

This area contains essential foraging 

habitat and migration corridors such as 

estuaries, bays, inlets, shallow subtidal 

areas, and intertidal flats. 

(3) Primary constituent elements 

needed for bull trout survival. Within 

the designated critical habitat areas, the 

primary constituent elements (PCEs) for 

bull trout are those habitat components 

that are essential for the primary 

biological needs of foraging, 

reproducing, rearing of young, dispersal, 

genetic exchange, or sheltering. Note 

that only the PCEs described in 

paragraphs (e)(3)(i), (vi), (vii), and (viii) 

apply to marine nearshore waters 

identified as critical habitat. The PCEs 

are as follows: 

(i) Water temperatures that support 

bull trout use. Bull trout have been 

documented in streams with 

temperatures from 32 to 72 °F (0 to 22 

°C) but are found more frequently in 

temperatures ranging from 36 to 59 °F 

(2 to 15 °C). These temperature ranges 

may vary depending on bull trout lifehistory stage and form, geography, 

elevation, diurnal and seasonal 

variation, shade, such as that provided 

by riparian habitat, and local 

groundwater influence. Stream reaches 

with temperatures that preclude bull 

trout use are specifically excluded from 

designation; 

(ii) Complex stream channels with 

features such as woody debris, side 

channels, pools, and undercut banks to 

provide a variety of depths, velocities, 

and instream structures; 

(iii) Substrates of sufficient amount, 

size, and composition to ensure success 

of egg and embryo overwinter survival, 

fry emergence, and young-of-the-year 

and juvenile survival. This should 

include a minimal amount of fine 

substrate less than 0.25 inch (0.63 

centimeter) in diameter. 

(iv) A natural hydrograph, including 

peak, high, low, and base flows within 

historic ranges or, if regulated, currently 

operate under a biological opinion that 

addresses bull trout, or a hydrograph 

that demonstrates the ability to support 

bull trout populations by minimizing 

daily and day-to-day fluctuations and 

minimizing departures from the natural 

cycle of flow levels corresponding with 

seasonal variation: This rule finds that 

reservoirs currently operating under a 

biological opinion that addresses bull 

trout provides management for PCEs as 

currently operated; 

(v) Springs, seeps, groundwater 

sources, and subsurface water to 

contribute to water quality and quantity 

as a cold water source; 

(vi) Migratory corridors with minimal 

physical, biological, or water quality 

impediments between spawning, 

rearing, overwintering, and foraging 

habitats, including intermittent or 

seasonal barriers induced by high water 

temperatures or low flows; 

(vii) An abundant food base including 

terrestrial organisms of riparian origin, 

aquatic macroinvertebrates, and forage 

fish; and 

(viii) Permanent water of sufficient 

quantity and quality such that normal 

reproduction, growth, and survival are 

not inhibited. 

(4) Exclusions from the critical habitat 

designation. Certain geographic areas 

are excluded from the critical habitat 

designation as described below in this 

paragraph (4). 

(i) 3(5)(A) and Exclusions under 

section 4(b)(2) of the Act. (A) Habitat 

conservation plans. We are excluding 

from the critical habitat designation any 

non-Federal lands covered by an 

incidental take permit for bull trout 

issued under section 10(a)(1)(B) of the 

Act on or before September 26, 2005, as 

long as such permit, or a conservation 

easement providing comparable 

conservation benefits, remains legally 

operative on such lands. These 

excluded areas are covered by habitat 

conservation plans (HCPs). They 

include lands and waters covered by the 

Washington Department of Natural 

Resources HCP, the Plum Creek Native 

Fish HCP/Stimson Lumber Company 

HCP, the Tacoma Water Green River 

HCP, the Green Diamond Resources 

Company HCP, and the City of Seattle 

Cedar River Watershed HCP. 

(B) Tribal lands. The following tribal 

lands contain stream segments or 

marine nearshore habitat areas that have 

been excluded from designated critical 

habitat pursuant to section 4(b)(2) of the 

Act: Tribal lands of the Blackfeet 

Nation, Swinomish Tribe, Quinault 

Indian Nation, Muckleshoot Tribe, 

Jamestown S’Klallam Tribe, Hoh Tribe, 

Skokomish, and Confederated Tribes of 

Warm Springs Reservation of Oregon. 

(C) Federal lands. The following 

Federal lands contain stream segments 

or marine nearshore habitat areas that 

have been excluded from designated 

critical habitat pursuant to section 

4(a)(3) of the Act: Lands within the 

Nisqually National Wildlife Refuge; the 

Washington State Forest Practices Rules 

and Forest Practices Regulations for Bull 

Trout; the Lewis Hydroelectric Project 

Conservation Easements; the Snake 

River Basin Adjudication; the Northwest 

Forest Plan Aquatic Conservation 

Strategy; the Interim Strategy for 

Managing Anadromous-Fish-Producing 

Watersheds; the Federal Columbia River 

Power System; the Clark Fork River 

from Missoula to Butte, MT; the Middle 

Fork of the Boise River; the Interior 

Columbia Basin Ecosystem Management 

Project; the Southeast Oregon Resource 

Management Plan; the Southwest Idaho 

Land and Resource Management Plan; 

and waters impounded behind dams 

whose primary purpose is for flood 

control or water supply for human 

consumption (reservoirs and pools). 

(ii) Non-Inclusions under section 

4(a)(3) of the Act. (A) Military lands. 

The following military lands contain 

stream segments or marine nearshore 

habitat areas that have been excluded 

from designated critical habitat 

pursuant to section 4(a)(3) of the Act: 

Bayview Acoustic Research 

Detachment, Naval Surface Warfare 

Center, ID; Naval Radio Station, Jim 

Creek, WA; Naval Station, Everett, WA; 

Naval Air Station, Whidbey Island, WA; 

the Naval Under Sea Warfare Center 

Division, Newport, WA (Dabob Bay and 

Crescent Harbor), Keyport facilities and 

Fort Lewis, WA. 

(B) [Reserved] 

(5) The designated critical habitat 

units for bull trout are set forth in the 

text and depicted on the maps below. 

(6) An index map of designated 

critical habitat for the Klamath River, 

Columbia River, Olympic Peninsula, 

Puget Sound, and Saint Mary-Belly bull 

trout populations follows: 

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ER26SE05.000</GPH>
56268 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(7) Unit 1: Klamath River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Boulder Creek ............................................................................................................ 42.517 N. 120.951 W. 42.495 N. 120.884 W. 

Brownsworth Creek ................................................................................................... 42.392 N. 120.913 W. 42.469 N. 120.854 W. 

Coyote Creek ............................................................................................................. 42.854 N. 121.158 W. 42.893 N. 121.246 W. 

Deming Creek ............................................................................................................ 42.448 N. 120.953 W. 42.486 N. 120.885 W. 

Dixon Creek ............................................................................................................... 42.518 N. 120.937 W. 42.532 N. 120.923 W. 

Leonard Creek ........................................................................................................... 42.413 N. 120.867 W. 42.465 N. 120.864 W. 

Long Creek ................................................................................................................ 42.826 N. 121.209 W. 42.933 N. 121.338 W. 

North Fork Sprague River ......................................................................................... 42.497 N. 121.008 W. 42.557 N. 120.839 W. 

Sheepy Creek ............................................................................................................ 42.534 N. 120.931 W. 42.514 N. 120.890 W. 

Sun Creek .................................................................................................................. 42.735 N. 122.008 W. 42.898 N. 122.096 W. 

Sycan Marsh .............................................................................................................. Located at 42.816 N. 121.124 W. 

Threemile Creek ........................................................................................................ 42.642 N. 122.065 W. 42.640 N. 122.138 W. 

(ii) Map of Unit 1, Klamath River 

Basin, follows: 

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56270 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(8) Unit 2: Clark Fork River Basin. (ii) Critical habitat is designated on 

the water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Akokala Cr ................................................................................................................. 48.881 N. 114.198 W. 48.892 N. 114.191 W. 

Akokala Lake ............................................................................................................. Located at 48.879 N. 114.198 W. 

Arrow Lake ................................................................................................................ Located at 48.706 N. 113.884 W. 

Barker Cr ................................................................................................................... 46.163 N. 113.115 W. 46.100 N. 113.115 W. 

Bear Creek ................................................................................................................ 48.234 N. 113.566 W. 48.296 N. 113.384 W. 

Beaver Cr .................................................................................................................. 46.472 N. 113.493 W. 46.468 N. 113.555 W. 

Belmont Cr ................................................................................................................. 46.954 N. 113.569 W. 47.061 N. 113.681 W. 

Big Cr ......................................................................................................................... 47.378 N. 115.384 W. 47.364 N. 115.444 W. 

Big Cr, M Fk .............................................................................................................. 47.364 N. 115.444 W. 47.312 N. 115.492 W. 

Big Cr, W Fk .............................................................................................................. 47.364 N. 115.444 W. 47.350 N. 115.544 W. 

Bitterroot River ........................................................................................................... 46.861 N. 114.118 W. 45.944 N. 114.128 W. 

Blackfoot River .......................................................................................................... 46.870 N. 113.889 W. 47.011 N. 112.476 W. 

Blodgett Cr ................................................................................................................. 46.312 N. 114.145 W. 46.248 N. 114.453 W. 

Boulder Cr ................................................................................................................. 46.478 N. 113.237 W. 46.343 N. 113.076 W. 

Bowman Cr ................................................................................................................ 48.906 N. 114.117 W. 48.974 N. 114.063 W. 

Bowman Lake ............................................................................................................ Located at 48.870 N. 114.157 W. 

Brewster Cr ................................................................................................................ 46.612 N. 113.653 W. 46.582 N. 113.587 W. 

Bull River ................................................................................................................... 48.036 N. 115.844 W. 48.109 N. 115.782 W. 

Burnt Fork Creek ....................................................................................................... 46.542 N. 114.099 W. 46.304 N. 113.837 W. 

Cable Cr .................................................................................................................... 46.172 N. 113.180 W. 46.196 N. 113.213 W. 

Cache Cr ................................................................................................................... 46.814 N. 114.639 W. 46.726 N. 114.758 W. 

Camas Cr .................................................................................................................. 48.690 N. 113.901 W. 48.738 N. 113.883 W. 

Cedar Cr .................................................................................................................... 47.178 N. 114.862 W. 47.049 N. 115.043 W. 

Cedar Creek .............................................................................................................. 48.880 N. 116.959 W. 48.909 N. 116.885 W. 

Cerulean Lake ........................................................................................................... Located at 48.872 N. 114.057 W. 

Chicken Cr ................................................................................................................. 45.601 N. 114.313 W. 45.621 N. 114.403 W. 

Clark Fork River ........................................................................................................ 47.366 N. 114.776 W. 46.870 N. 113.889 W. 

Clearwater Lake ........................................................................................................ Located at 47.385 N. 113.558 W. 

Clearwater R, W Fk ................................................................................................... 47.256 N. 113.550 W. 47.287 N. 113.744 W. 

Clearwater River ........................................................................................................ 47.107 N. 113.427 W. 47.390 N. 113.561 W. 

Coal Cr ...................................................................................................................... 48.690 N. 114.193 W. 48.698 N. 114.494 W. 

Coal Cr, S Fk ............................................................................................................. 48.680 N. 114.345 W. 48.674 N. 114.471 W. 

Cold Cr ...................................................................................................................... 47.584 N. 113.756 W. 47.562 N. 113.810 W. 

Copper Cr .................................................................................................................. 47.007 N. 112.555 W. 47.060 N. 112.752 W. 

Cottonwood Cr ........................................................................................................... 47.025 N. 113.281 W. 47.161 N. 113.345 W. 

Cyclone Cr ................................................................................................................. 48.665 N. 114.238 W. 48.712 N. 114.391 W. 

Cyclone Lake ............................................................................................................. Located at 48.706 N. 114.297 W. 

Deer Cr ...................................................................................................................... 45.595 N. 114.321 W. 45.570 N. 114.509 W. 

Deer Cr ...................................................................................................................... 47.208 N. 113.529 W. 47.249 N. 113.688 W. 

Deer Cr ...................................................................................................................... 47.377 N. 115.359 W. 47.326 N. 115.389 W. 

Doctor Lake ............................................................................................................... Located at 47.404 N. 113.480 W. 

Dry Cr ........................................................................................................................ 47.305 N. 114.064 W. 47.259 N. 113.903 W. 

Dunham Cr ................................................................................................................ 47.103 N. 113.155 W. 47.238 N. 113.316 W. 

East Fork Bitterroot River .......................................................................................... 45.944 N. 114.128 W. 45.911 N. 113.595 W. 

East River .................................................................................................................. 48.353 N. 116.852 W. 48.371 N. 116.819 W. 

Elk Cr ......................................................................................................................... 47.544 N. 113.741 W. 47.480 N. 113.856 W. 

Finley Cr .................................................................................................................... 47.125 N. 113.560 W. 47.120 N. 113.649 W. 

Fish Cr ....................................................................................................................... 47.004 N. 114.699 W. 46.927 N. 114.696 W. 

Fish Cr, S Fk ............................................................................................................. 46.927 N. 114.696 W. 46.753 N. 114.571 W. 

Fish Cr, W Fk ............................................................................................................ 46.927 N. 114.696 W. 46.812 N. 114.890 W. 

Fishtrap Cr ................................................................................................................. 47.713 N. 115.058 W. 47.817 N. 115.144 W. 

Fitzsimmons Cr .......................................................................................................... 48.735 N. 114.733 W. 48.752 N. 114.618 W. 

Flathead River ........................................................................................................... 48.061 N. 114.127 W. 48.468 N. 114.069 W. 

Flint Cr ....................................................................................................................... 46.654 N. 113.145 W. 46.478 N. 113.237 W. 

Foster Cr .................................................................................................................... 46.164 N. 113.120 W. 46.283 N. 113.109 W. 

Fred Burr Creek ......................................................................................................... 46.365 N. 114.131 W. 46.357 N. 114.315 W. 

Gilbert Cr ................................................................................................................... 46.682 N. 113.666 W. 46.648 N. 113.818 W. 

Goat Cr ...................................................................................................................... 47.749 N. 113.828 W. 47.773 N. 113.694 W. 

Gold Creek ................................................................................................................ 47.971 N. 116.454 W. 47.954 N. 116.451 W. 

Granite Creek ............................................................................................................ 48.087 N. 116.427 W. 48.060 N. 116.329 W. 

Granite Creek ............................................................................................................ 48.639 N. 116.863 W. 48.700 N. 117.029 W. 

Graves Cr .................................................................................................................. 47.682 N. 115.409 W. 47.718 N. 115.380 W. 

Grouse Creek ............................................................................................................ 48.403 N. 116.477 W. 48.483 N. 116.228 W. 

Harrison Cr ................................................................................................................ 48.529 N. 113.750 W. 48.574 N. 113.701 W. 

Harrison Lake ............................................................................................................ Located at 48.516 N. 113.771 W. 

Harvey Cr .................................................................................................................. 46.707 N. 113.372 W. 46.581 N. 113.573 W. 

Hughes Cr ................................................................................................................. 45.621 N. 114.303 W. 45.667 N. 114.021 W. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56271 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Hughes Fork .............................................................................................................. 48.805 N. 116.923 W. 48.946 N. 117.023 W. 

Indian Creek .............................................................................................................. 48.610 N. 116.836 W. 48.634 N. 116.789 W. 

Jim Cr ........................................................................................................................ 47.648 N. 113.792 W. 47.575 N. 113.856 W. 

Jocko R ...................................................................................................................... 47.322 N. 114.304 W. 47.201 N. 113.924 W. 

Jocko R, M Fk ........................................................................................................... 47.201 N. 113.924 W. 47.203 N. 113.761 W. 

Jocko R, N Fk ............................................................................................................ 47.201 N. 113.924 W. 47.226 N. 113.816 W. 

Jocko R, S Fk ............................................................................................................ 47.195 N. 113.852 W. 47.104 N. 113.766 W. 

Johnson Cr ................................................................................................................ 48.139 N. 116.229 W. 48.131 N. 116.225 W. 

Kalispell Creek ........................................................................................................... 48.567 N. 116.921 W. 48.626 N. 117.134 W. 

Kintla Cr ..................................................................................................................... 48.975 N. 114.250 W. 48.986 N. 114.063 W. 

Kintla Lake ................................................................................................................. Located at 48.966 N. 114.297 W. 

Lake Alva ................................................................................................................... Located at 47.314 N. 113.582 W. 

Lake Inez ................................................................................................................... Located at 47.270 N. 113.566 W. 

Lake Isabel ................................................................................................................ Located at 48.422 N. 113.493 W. 

Lake McDonald .......................................................................................................... Located at 48.576 N. 113.932 W. 

Landers Fk ................................................................................................................. 46.965 N. 112.562 W. 47.099 N. 112.566 W. 

Lightning Creek ......................................................................................................... 48.140 N. 116.191 W. 48.353 N. 116.175 W. 

Lincoln Cr .................................................................................................................. 48.592 N. 113.766 W. 48.595 N. 113.758 W. 

Lincoln Lake .............................................................................................................. Located at 48.591 N. 113.770 W. 

Lindbergh Lake .......................................................................................................... Located at 47.359 N. 113.731 W. 

Lion Cr ....................................................................................................................... 47.681 N. 113.815 W. 47.670 N. 113.710 W. 

Lion Creek ................................................................................................................. 48.736 N. 116.831 W. 48.725 N. 116.672 W. 

Little Blackfoot R ....................................................................................................... 46.515 N. 112.797 W. 46.341 N. 112.465 W. 

Little Joe Cr ............................................................................................................... 47.297 N. 115.120 W. 47.270 N. 115.140 W. 

Logging Cr ................................................................................................................. 48.784 N. 114.002 W. 48.776 N. 114.019 W. 

Logging Lake ............................................................................................................. Located at 48.756 N. 114.077 W. 

Lost Cr, S Fk ............................................................................................................. 47.873 N. 113.824 W. 47.869 N. 113.736 W. 

Lower Quartz Lake .................................................................................................... Located at 48.810 N. 114.170 W. 

McDonald Cr .............................................................................................................. 48.632 N. 113.868 W. 48.646 N. 113.847 W. 

McDonald Lake .......................................................................................................... Located at 47.421 N. 113.976 W. 

Meadow Cr ................................................................................................................ 46.157 N. 113.439 W. 46.092 N. 113.443 W. 

Middle Fork East River .............................................................................................. 48.371 N. 116.819 W. 48.362 N. 116.659 W. 

Middle Fork Flathead River ....................................................................................... 48.468 N. 114.069 W. 47.996 N. 113.057 W. 

Middle Quartz Lake ................................................................................................... Located at 48.822 N. 114.141 W. 

Mill Creek ................................................................................................................... 46.348 N. 114.152 W. 46.312 N. 114.286 W. 

Mission Cr .................................................................................................................. 47.354 N. 114.285 W. 47.320 N. 113.988 W. 

Mission Reservoir ...................................................................................................... Located at 47.321 N. 114.005 W. 

Monture Cr ................................................................................................................. 47.020 N. 113.235 W. 47.301 N. 113.249 W. 

Moose Meadow Cr .................................................................................................... 46.139 N. 113.591 W. 46.078 N. 113.635 W. 

Morrell Cr ................................................................................................................... 47.141 N. 113.460 W. 47.342 N. 113.471 W. 

North Fork Blackfoot River ........................................................................................ 46.985 N. 113.129 W. 47.197 N. 112.886 W. 

North Fork Flathead River ......................................................................................... 48.468 N. 114.069 W. 49.000 N. 114.474 W. 

North Fork Grouse Creek .......................................................................................... 48.452 N. 116.373 W. 48.502 N. 116.265 W. 

North Fork Indian Creek ............................................................................................ 48.634 N. 116.789 W. 48.627 N. 116.691 W. 

North Gold Creek ...................................................................................................... 47.974 N. 116.452 W. 47.975 N. 116.426 W. 

Nyack Creek .............................................................................................................. 48.458 N. 113.804 W. 48.489 N. 113.700 W. 

Ole Cr ........................................................................................................................ 48.283 N. 113.598 W. 48.315 N. 113.463 W. 

Overwhich Cr ............................................................................................................. 45.675 N. 114.307 W. 45.717 N. 114.080 W. 

Owl Cr ........................................................................................................................ 47.115 N. 113.441 W. 47.115 N. 113.502 W. 

Pack River ................................................................................................................. 48.320 N. 116.382 W. 48.613 N. 116.634 W. 

Park Cr ...................................................................................................................... 48.310 N. 113.613 W. 48.369 N. 113.490 W. 

Park Cr ...................................................................................................................... 48.422 N. 113.496 W. 48.421 N. 113.505 W. 

Petty Cr ...................................................................................................................... 46.992 N. 114.446 W. 46.850 N. 114.438 W. 

Piper Cr ..................................................................................................................... 47.675 N. 113.815 W. 47.637 N. 113.844 W. 

Placid Cr .................................................................................................................... 47.116 N. 113.541 W. 47.187 N. 113.692 W. 

Placid Lake ................................................................................................................ Located at 47.119 N. 113.522 W. 

Post Creek ................................................................................................................. 47.360 N. 114.168 W. 47.410 N. 113.935 W. 

Priest Lake ................................................................................................................. Located at 48.481 N. 116.875 W. 

Priest River ................................................................................................................ 48.178 N. 116.892 W. 48.353 N. 116.852 W. 

Prospect Cr ................................................................................................................ 47.592 N. 115.358 W. 47.569 N. 115.676 W. 

Quartz Cr ................................................................................................................... 48.815 N. 114.165 W. 48.839 N. 114.003 W. 

Quartz Lake ............................................................................................................... Located at 48.826 N. 114.100 W. 

Racetrack Cr .............................................................................................................. 46.285 N. 112.729 W. 46.279 N. 112.949 W. 

Rainbow Cr ................................................................................................................ 48.855 N. 114.053 W. 48.869 N. 114.052 W. 

Rainy Lake ................................................................................................................. Located at 47.340 N. 113.593 W. 

Ranch Cr ................................................................................................................... 46.583 N. 113.678 W. 46.468 N. 113.577 W. 

Rattlesnake Cr ........................................................................................................... 46.867 N. 113.985 W. 47.098 N. 113.909 W. 

Red Meadow Cr ........................................................................................................ 48.805 N. 114.324 W. 48.753 N. 114.565 W. 

Rock Cr, E Fk ............................................................................................................ 46.200 N. 113.499 W. 46.021 N. 113.319 W. 

Rock Cr, M Fk ........................................................................................................... 46.223 N. 113.521 W. 45.949 N. 113.523 W. 

Rock Cr, Ross Fk ...................................................................................................... 46.224 N. 113.525 W. 46.034 N. 113.779 W. 

56272 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Rock Cr, W Fk ........................................................................................................... 46.223 N. 113.521 W. 46.144 N. 113.721 W. 

Rock Creek ................................................................................................................ 46.725 N. 113.682 W. 46.223 N. 113.521 W. 

Rock Creek ................................................................................................................ 47.975 N. 115.742 W. 48.040 N. 115.676 W. 

Saint Mary’s Lake ...................................................................................................... Located at 47.261 N. 113.919 W. 

Salmon Lake .............................................................................................................. Located at 47.099 N. 113.406 W. 

Seeley Lake ............................................................................................................... Located at 47.187 N. 113.505 W. 

Skalkaho Cr ............................................................................................................... 46.220 N. 114.162 W. 46.057 N. 113.807 W. 

Sleeping Child Cr ...................................................................................................... 46.162 N. 114.159 W. 46.033 N. 113.814 W. 

Soldier Creek ............................................................................................................. 48.503 N. 116.838 W. 48.547 N. 116.698 W. 

Soup Cr ..................................................................................................................... 47.837 N. 113.843 W. 47.812 N. 113.751 W. 

South Boulder Cr ....................................................................................................... 46.441 N. 113.214 W. 46.330 N. 113.219 W. 

South Fork Bull River ................................................................................................ 48.109 N. 115.782 W. 48.152 N. 115.784 W. 

South Fork Granite Creek ......................................................................................... 48.700 N. 117.029 W. 48.761 N. 117.147 W. 

South Fork Indian Creek ........................................................................................... 48.634 N. 116.789 W. 48.624 N. 116.716 W. 

South Fork Lion Creek .............................................................................................. 48.743 N. 116.797 W. 48.716 N. 116.718 W. 

Squeezer Cr .............................................................................................................. 47.750 N. 113.815 W. 47.717 N. 113.727 W. 

St Regis R ................................................................................................................. 47.297 N. 115.089 W. 47.427 N. 115.741 W. 

Stillwater R ................................................................................................................ 48.604 N. 114.655 W. 48.789 N. 114.685 W. 

Stony Cr ..................................................................................................................... 46.348 N. 113.603 W. 46.283 N. 113.771 W. 

Storm Lake Cr ........................................................................................................... 46.169 N. 113.153 W. 46.075 N. 113.267 W. 

Sullivan Springs ......................................................................................................... 48.088 N. 116.411 W. 48.084 N. 116.387 W. 

Swan Lake ................................................................................................................. Located at 47.968 N. 113.910 W. 

Swan River ................................................................................................................ 47.928 N. 113.880 W. 47.295 N. 113.782 W. 

Swift Cr ...................................................................................................................... 48.481 N. 114.424 W. 48.654 N. 114.550 W. 

Swift Cr, E Fk ............................................................................................................ 48.687 N. 114.582 W. 48.756 N. 114.583 W. 

Swift Cr, W Fk ........................................................................................................... 48.654 N. 114.550 W. 48.723 N. 114.667 W. 

Tarlac Creek .............................................................................................................. 48.393 N. 116.737 W. 48.349 N. 116.717 W. 

The Thorofare ............................................................................................................ 48.740 N. 116.842 W. 48.766 N. 116.864 W. 

Thompson R .............................................................................................................. 47.576 N. 115.240 W. 47.713 N. 115.058 W. 

Trail Creek ................................................................................................................. 48.924 N. 114.386 W. 48.934 N. 114.534 W. 

Trapper Creek ........................................................................................................... 48.796 N. 116.896 W. 48.877 N. 116.846 W. 

Trestle Creek ............................................................................................................. 48.283 N. 116.352 W. 48.352 N. 116.234 W. 

Trout Cr ..................................................................................................................... 47.143 N. 114.829 W. 47.004 N. 114.992 W. 

Trout Lake ................................................................................................................. Located at 48.677 N. 113.912 W. 

Twelvemile Cr ............................................................................................................ 47.350 N. 115.291 W. 47.465 N. 115.324 W. 

Twin Creek ................................................................................................................ 48.094 N. 116.129 W. 48.063 N. 116.151 W. 

Twin Lakes Cr ........................................................................................................... 46.169 N. 113.152 W. 46.056 N. 113.226 W. 

Two Mouth Creek ...................................................................................................... 48.688 N. 116.836 W. 48.674 N. 116.676 W. 

Uleda Creek ............................................................................................................... 48.388 N. 116.707 W. 48.339 N. 116.694 W. 

Upper Kintla Lake ...................................................................................................... Located at 48.974 N. 114.173 W. 

Upper Priest River ..................................................................................................... 48.799 N. 116.911 W. 49.000 N. 116.936 W. 

Upper Stillwater Lake ................................................................................................ Located at 48.587 N. 114.636 W. 

Upper Whitefish Lake ................................................................................................ Located at 48.687 N. 114.578 W. 

Upper Willow Cr ........................................................................................................ 46.331 N. 113.542 W. 46.566 N. 113.522 W. 

Vermilion R ................................................................................................................ 47.833 N. 115.535 W. 47.869 N. 115.409 W. 

Wahlquist Cr .............................................................................................................. 46.501 N. 113.776 W. 46.531 N. 113.843 W. 

Warm Springs Cr ....................................................................................................... 45.860 N. 114.025 W. 45.726 N. 114.057 W. 

Warm Springs Cr ....................................................................................................... 46.210 N. 112.767 W. 46.261 N. 113.137 W. 

West Fork Bitterroot River ......................................................................................... 45.944 N. 114.128 W. 45.461 N. 114.341 W. 

West Gold Creek ....................................................................................................... 47.954 N. 116.451 W. 47.944 N. 116.477 W. 

Whale Cr .................................................................................................................... 48.849 N. 114.352 W. 48.851 N. 114.593 W. 

Whitefish Lake ........................................................................................................... Located at 48.455 N. 114.387 W. 

Woodward Cr ............................................................................................................. 47.777 N. 113.845 W. 47.767 N. 113.879 W. 

Woodward Cr, S Fk ................................................................................................... 47.754 N. 113.857 W. 47.717 N. 113.857 W. 

(ii) Map of Unit 2, Clark Fork River 

Basin, follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56273 


ER26SE05.002</GPH>
56274 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(9) Unit 3: Kootenai River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Bull Lake .................................................................................................................... Located at 48.218 N. 115.853 W. 

Callahan Cr ................................................................................................................ 48.435 N. 116.012 W. 48.458 N. 115.881 W. 

Fisher R ..................................................................................................................... 48.366 N. 115.323 W. 48.070 N. 115.374 W. 

Grave Cr .................................................................................................................... 48.798 N. 114.952 W. 48.927 N. 114.750 W. 

Keeler Cr ................................................................................................................... 48.360 N. 115.851 W. 48.331 N. 116.006 W. 

Lake Creek ................................................................................................................ 48.360 N. 115.851 W. 48.283 N. 115.858 W. 

Libby Creek ............................................................................................................... 48.393 N. 115.537 W. 48.112 N. 115.552 W. 

O’Brien Cr .................................................................................................................. 48.448 N. 115.866 W. 48.557 N. 115.862 W. 

Phillips Cr .................................................................................................................. 48.971 N. 115.104 W. 49.000 N. 115.062 W. 

Pipe Cr ....................................................................................................................... 48.424 N. 115.606 W. 48.674 N. 115.647 W. 

Poorman Creek ......................................................................................................... 48.149 N. 115.526 W. 48.123 N. 115.631 W. 

Quartz Cr ................................................................................................................... 48.438 N. 115.638 W. 48.573 N. 115.689 W. 

Sophie Lake ............................................................................................................... Located at 48.962 N. 115.116 W. 

Tobacco R ................................................................................................................. 48.897 N. 115.126 W. 48.798 N. 114.952 W. 

West Fisher Creek ..................................................................................................... 48.070 N. 115.374 W. 48.050 N. 115.594 W. 

(ii) Map of Unit 3, Kootenai River 

Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56275 


Er26se05.003</GPH>
56276 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(10) Unit 4: Willamette River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Blue River .................................................................................................................. 44.153 N. 122.342 W. 44.172 N. 122.328 W. 

Horse Creek .............................................................................................................. 44.170 N. 122.174 W. 44.125 N. 122.036 W. 

Lost Creek ................................................................................................................. 44.190 N. 122.066 W. 44.162 N. 122.022 W. 

Mckenzie River .......................................................................................................... 44.126 N. 123.106 W. 44.309 N. 122.028 W. 

Middle Fork Willamette River .................................................................................... 44.023 N. 123.017 W. 43.481 N. 122.254 W. 

South Fork Mckenzie River ....................................................................................... 44.159 N. 122.295 W. 43.953 N. 122.017 W. 

Swift Creek ................................................................................................................ 43.502 N. 122.299 W. 43.560 N. 122.162 W. 

West Fork Horse Creek ............................................................................................. 44.172 N. 122.206 W. 44.170 N. 122.174 W. 

Willamette River ........................................................................................................ 44.126 N. 123.106 W. 44.023 N. 123.017 W. 

(ii) Map of Unit 4, Willamette River 

Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56277 


ER26SE05.004</GPH>
56278 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(11) Unit 5: Hood River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

East Fork Hood River ................................................................................................ 45.605 N. 121.632 W. 45.575 N. 121.626 W. 

Hood River ................................................................................................................. 45.721 N. 121.506 W. 45.605 N. 121.632 W. 

Middle Fork Hood River ............................................................................................ 45.575 N. 121.626 W. 45.463 N. 121.645 W. 

West Fork Hood River ............................................................................................... 45.605 N. 121.632 W. 45.456 N. 121.781 W. 

(ii) Map of Unit 5, Hood River Basin, 

follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56279 


ER26SE05.005</GPH>
56280 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(12) Unit 6: Deschutes River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Abbot Creek ............................................................................................................... 44.570 N. 121.619 W. 44.544 N. 121.670 W. 

Deschutes River ........................................................................................................ 45.639 N. 120.914 W. 44.373 N. 121.291 W. 

Heising Spring ........................................................................................................... 44.494 N. 121.648 W. 44.491 N. 121.651 W. 

Jack Creek ................................................................................................................. 44.493 N. 121.647 W. 44.472 N. 121.725 W. 

Lake Billy Chinook ..................................................................................................... Located at 44.584 N. 121.363 W. 

Metolius River ............................................................................................................ 44.577 N. 121.619 W. 44.434 N. 121.637 W. 

Spring Creek .............................................................................................................. 44.457 N. 121.642 W. 44.451 N. 121.650 W. 

(ii) Map of Unit 6, Deschutes River 

Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56281 


ER26SE05.006</GPH>
56282 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(13) Unit 9: Umatilla-Walla Walla 

River Basins. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Griffin Fork ................................................................................................................. 46.121 N. 117.973 W. 46.099 N. 117.913 W. 

Lewis Creek ............................................................................................................... 46.191 N. 117.824 W. 46.156 N. 117.771 W. 

Low Creek ................................................................................................................. 45.993 N. 118.035 W. 45.973 N. 118.009 W. 

Meacham Creek ........................................................................................................ 45.702 N. 118.359 W. 45.527 N. 118.290 W. 

Mill Creek ................................................................................................................... 46.039 N. 118.478 W. 46.011 N. 117.941 W. 

North Fork Meacham Creek ...................................................................................... 45.527 N. 118.290 W. 45.575 N. 118.174 W. 

North Fork Touchet River .......................................................................................... 46.302 N. 117.959 W. 46.093 N. 117.864 W. 

North Fork Walla Walla River .................................................................................... 45.899 N. 118.307 W. 45.947 N. 117.990 W. 

Paradise Creek .......................................................................................................... 46.004 N. 118.017 W. 46.001 N. 117.990 W. 

Ryan Creek ................................................................................................................ 45.723 N. 118.314 W. 45.694 N. 118.308 W. 

South Fork Touchet River ......................................................................................... 46.302 N. 117.959 W. 46.105 N. 117.985 W. 

South Fork Walla Walla River ................................................................................... 45.899 N. 118.307 W. 45.966 N. 117.963 W. 

Spangler Creek .......................................................................................................... 46.149 N. 117.806 W. 46.099 N. 117.802 W. 

Touchet River ............................................................................................................ 46.272 N. 118.174 W. 46.302 N. 117.959 W. 

Umatilla River ............................................................................................................ 45.923 N. 119.356 W. 45.726 N. 118.187 W. 

Walla Walla River ...................................................................................................... 46.039 N. 118.478 W. 45.899 N. 118.307 W. 

Wolf Fork Touchet River ........................................................................................... 46.274 N. 117.895 W. 46.075 N. 117.903 W. 

Yellowhawk Creek ..................................................................................................... 46.017 N. 118.400 W. 46.077 N. 118.272 W. 

(ii) Map of Unit 9, Umatilla-Walla 

Walla River Basins, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56283 


ER26SE05.007</GPH>
56284 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(14) Unit 10: Grande Ronde River 

Basin. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Bear Creek ................................................................................................................ 45.584 N. 117.540 W. 45.323 N. 117.480 W. 

Catherine Creek ........................................................................................................ 45.408 N. 117.930 W. 45.120 N. 117.646 W. 

Chicken Creek ........................................................................................................... 45.095 N. 118.394 W. 45.024 N. 118.385 W. 

Deer Creek ................................................................................................................ 45.620 N. 117.699 W. 45.423 N. 117.587 W. 

Fly Creek ................................................................................................................... 45.210 N. 118.394 W. 45.121 N. 118.465 W. 

Grande Ronde River ................................................................................................. 46.080 N. 116.978 W. 44.967 N. 118.254 W. 

Hurricane Creek ........................................................................................................ 45.420 N. 117.301 W. 45.274 N. 117.310 W. 

Indian Creek .............................................................................................................. 45.534 N. 117.919 W. 45.337 N. 117.721 W. 

Limber Jim Creek ...................................................................................................... 45.089 N. 118.343 W. 45.085 N. 118.229 W. 

Little Bear Creek ........................................................................................................ 45.485 N. 117.554 W. 45.428 N. 117.479 W. 

Little Fly Creek .......................................................................................................... 45.121 N. 118.465 W. 45.110 N. 118.475 W. 

Little Lookingglass Creek .......................................................................................... 45.750 N. 117.874 W. 45.817 N. 117.901 W. 

Little Minam River ...................................................................................................... 45.401 N. 117.671 W. 45.246 N. 117.599 W. 

Lookingglass Creek ................................................................................................... 45.707 N. 117.841 W. 45.779 N. 118.078 W. 

Lookout Creek ........................................................................................................... 45.110 N. 118.475 W. 45.078 N. 118.540 W. 

Lostine River .............................................................................................................. 45.552 N. 117.489 W. 45.246 N. 117.374 W. 

Minam River .............................................................................................................. 45.621 N. 117.720 W. 45.148 N. 117.371 W. 

Mottet Creek .............................................................................................................. 45.767 N. 117.886 W. 45.788 N. 117.942 W. 

North Fork Catherine Creek ...................................................................................... 45.120 N. 117.646 W. 45.225 N. 117.604 W. 

Sheep Creek .............................................................................................................. 45.105 N. 118.381 W. 45.016 N. 118.507 W. 

South Fork Catherine Creek ..................................................................................... 45.120 N. 117.646 W. 45.112 N. 117.513 W. 

Wallowa River ............................................................................................................ 45.726 N. 117.784 W. 45.420 N. 117.301 W. 

Wenaha River ............................................................................................................ 45.946 N. 117.450 W. 45.951 N. 117.794 W. 

(ii) Map of Unit 10, Grande Ronde 

River Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56285 


ER26SE05.008</GPH>
56286 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(15) Unit 11: Imnaha-Snake River 

Basins. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Big Sheep Creek ....................................................................................................... 45.557 N. 116.834 W. 45.178 N. 117.119 W. 

Imnaha River ............................................................................................................. 45.817 N. 116.764 W. 45.113 N. 117.125 W. 

Little Sheep Creek ..................................................................................................... 45.520 N. 116.859 W. 45.232 N. 117.093 W. 

McCully Creek ........................................................................................................... 45.311 N. 117.082 W. 45.211 N. 117.140 W. 

(ii) Map of Unit 11, Imnaha-Snake 

River Basins, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56287 


ER26SE05.009</GPH>
56288 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(16) Unit 12: Hells Canyon Complex. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Anthony Creek ........................................................................................................... 45.013 N. 118.059 W. 44.953 N. 118.220 W. 

Big Muddy Creek ....................................................................................................... 44.940 N. 117.945 W. 44.899 N. 118.131 W. 

Clear Creek ............................................................................................................... 44.866 N. 117.029 W. 45.043 N. 117.143 W. 

East Fork Pine Creek ................................................................................................ 45.022 N. 117.200 W. 45.072 N. 117.176 W. 

East Pine Creek ........................................................................................................ 44.872 N. 117.020 W. 45.046 N. 117.119 W. 

Little Cracker Creek ................................................................................................... 44.826 N. 118.196 W. 44.840 N. 118.166 W. 

Meadow Creek .......................................................................................................... 44.990 N. 117.142 W. 45.017 N. 117.171 W. 

North Pine Creek ....................................................................................................... 44.910 N. 116.948 W. 45.079 N. 116.897 W. 

North Powder River ................................................................................................... 45.039 N. 117.895 W. 44.878 N. 118.203 W. 

Pine Creek ................................................................................................................. 44.849 N. 117.893 W. 44.826 N. 118.078 W. 

Pine Creek ................................................................................................................. 44.974 N. 116.853 W. 45.039 N. 117.215 W. 

Rock Creek ................................................................................................................ 44.918 N. 117.929 W. 44.856 N. 118.124 W. 

Salmon Creek ............................................................................................................ 44.888 N. 117.902 W. 44.767 N. 118.019 W. 

Silver Creek ............................................................................................................... 44.809 N. 118.207 W. 44.857 N. 118.291 W. 

Wolf Creek ................................................................................................................. 45.044 N. 117.893 W. 45.068 N. 118.193 W. 

(ii) Map of Unit 12, Hells Canyon 

Complex, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56289 


ER26SE05.010</GPH>
56290 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(17) Unit 13: Malheur River Basin. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Big Creek ................................................................................................................... 44.145 N. 118.624 W. 44.292 N. 118.638 W. 

Lake Creek ................................................................................................................ 44.145 N. 118.624 W. 44.283 N. 118.683 W. 

Malheur River ............................................................................................................ 43.686 N. 118.270 W. 44.145 N. 118.624 W. 

Summit Creek ............................................................................................................ 44.099 N. 118.587 W. 44.261 N. 118.501 W. 

(ii) Map of Unit 13, Malheur River 

Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56291 


ER26SE05.011</GPH>
56292 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(18) Unit 14: Coeur d’Alene Lake 

Basin. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Beaver Creek ............................................................................................................. 47.083 N. 115.355 W. 47.064 N. 115.480 W. 

Coeur d’Alene Lake ................................................................................................... Located at 47.449 N. 116.798 W. 

Coeur d’Alene River .................................................................................................. 47.460 N. 116.798 W. 47.558 N. 116.257 W. 

Eagle Creek ............................................................................................................... 47.644 N. 115.921 W. 47.652 N. 115.903 W. 

Fly Creek ................................................................................................................... 47.113 N. 115.385 W. 47.081 N. 115.489 W. 

North Fork Coeur d’Alene River ................................................................................ 47.558 N. 116.257 W. 48.006 N. 116.321 W. 

Prichard Creek ........................................................................................................... 47.658 N. 115.976 W. 47.644 N. 115.921 W. 

Ruby Creek ................................................................................................................ 46.983 N. 115.367 W. 46.961 N. 115.430 W. 

St. Joe River .............................................................................................................. 47.393 N. 116.749 W. 47.017 N. 115.078 W. 

Steamboat Creek ....................................................................................................... 47.662 N. 116.154 W. 47.716 N. 116.199 W. 

Timber Creek ............................................................................................................. 47.018 N. 115.368 W. 46.992 N. 115.462 W. 

(ii) Map of Unit 14, Coeur d’Alene 

Lake Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56293 


ER26SE05.012</GPH>
56294 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(19) Unit 19: Lower Columbia River 

Basin. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Clearwater Creek ....................................................................................................... 46.276 N. 121.327 W. 46.278 N. 121.330 W. 

Fish Lake Stream ...................................................................................................... 46.275 N. 121.312 W. 46.342 N. 121.368 W. 

Klickitat River ............................................................................................................. 45.691 N. 121.293 W. 46.255 N. 121.239 W. 

Lewis River (Lower) ................................................................................................... 45.850 N. 122.782 W. 45.957 N. 122.555 W. 

Little Muddy Creek .................................................................................................... 46.275 N. 121.312 W. 46.278 N. 121.352 W. 

Trappers Creek .......................................................................................................... 46.275 N. 121.330 W. 46.290 N. 121.362 W. 

Two Lakes Stream .................................................................................................... 46.342 N. 121.368 W. 46.340 N. 121.384 W. 

UNNAMED—off Fish Lake Stream ........................................................................... 46.331 N. 121.359 W. 46.323 N. 121.437 W. 

West Fork Klickitat River ........................................................................................... 46.242 N. 121.246 W. 46.275 N. 121.312 W. 

White Salmon River ................................................................................................... 45.723 N. 121.521 W. 45.897 N. 121.503 W. 

(ii) Map of Unit 19, Lower Columbia 

River Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56295 


ER26SE05.013</GPH>
56296 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(20) Unit 20: Middle Columbia River 

Basin. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Ahtanum Creek .......................................................................................................... 46.529 N. 120.472 W. 46.523 N. 120.853 W. 

Box Canyon Creek .................................................................................................... 47.361 N. 121.243 W. 47.377 N. 121.257 W. 

Bumping River ........................................................................................................... 46.989 N. 121.094 W. 46.831 N. 121.377 W. 

Cle Elum River .......................................................................................................... 47.177 N. 120.990 W. 47.589 N. 121.161 W. 

Cooper River ............................................................................................................. 47.391 N. 121.098 W. 47.455 N. 121.213 W. 

Gold Creek ................................................................................................................ 47.390 N. 121.382 W. 47.475 N. 121.316 W. 

Jack Creek ................................................................................................................. 47.319 N. 120.855 W. 47.334 N. 120.742 W. 

Jungle Creek ............................................................................................................. 47.333 N. 120.855 W. 47.333 N. 120.923 W. 

Kachess River ........................................................................................................... 47.251 N. 121.200 W. 47.429 N. 121.222 W. 

Naches River ............................................................................................................. 46.630 N. 120.514 W. 46.989 N. 121.094 W. 

North Fork Ahtanum Creek ....................................................................................... 46.523 N. 120.853 W. 46.538 N. 121.211 W. 

North Fork Teanaway River ...................................................................................... 47.251 N. 120.877 W. 47.454 N. 120.965 W. 

North Fork Tieton River ............................................................................................. 46.635 N. 121.261 W. 46.508 N. 121.435 W. 

Rattlesnake Creek ..................................................................................................... 46.820 N. 120.929 W. 46.760 N. 121.315 W. 

South Fork Ahtanum Creek ....................................................................................... 46.523 N. 120.853 W. 46.454 N. 121.118 W. 

Teanaway River ......................................................................................................... 47.167 N. 120.834 W. 47.257 N. 120.897 W. 

Tieton River ............................................................................................................... 46.746 N. 120.786 W. 46.656 N. 121.129 W. 

Yakima River ............................................................................................................. 46.529 N. 120.472 W. 47.322 N. 121.339 W. 

(ii) Map of Unit 20, Middle Columbia 

River Basin, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56297 


ER26SE05.014</GPH>
56298 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(21) Unit 22: Northeast Washington 

River Basins. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint Latitude 

Stream endpoint latitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Calispell ..................................................................................................................... 48.344 N 117.289 W 48.321 N 117.307 W. 

Cedar Creek .............................................................................................................. 48.742 N. 117.411 W 48.846 N 117.521 W. 

E. Fork Small Creek .................................................................................................. 48.328 N 117.354 W 48.371 N 117.398 W. 

East Branch LeClerc Creek ....................................................................................... 48.534 N 117.282 W 48.673 N 117.188 W. 

Fourth of July Creek .................................................................................................. 48.556 N 117.272 W 48.573 N 117.200 W. 

Indian Creek .............................................................................................................. 48.243 N 117.151 W 48.299 N 117.151 W. 

LeClerc Creek ............................................................................................................ 48.518 N 117.283 W 48.534 N 117.282 W. 

Mill Creek ................................................................................................................... 48.489 N 117.265 W 48.493 N 117.239 W. 

Ruby Creek ................................................................................................................ 48.556 N 117.342 W 48.568 N 117.509 W. 

S. Fork Tacoma Creek .............................................................................................. 48.394 N 117.323 W 48.432 N 117.506 W. 

Slate Creek ................................................................................................................ 48.923 N 117.332 W 48.948 N 117.165 W. 

Small Creek ............................................................................................................... 48.321 N 117.307 W 48.337 N 117.409 W. 

Sullivan Creek ........................................................................................................... 48.865 N 117.370 W 48.950 N 117.070 W. 

Tacoma Creek ........................................................................................................... 48.392 N 117.288 W 48.445 N 117.507 W. 

West Branch LeClerc Creek ...................................................................................... 48.534 N 117.282 W 48.701 N 117.211 W. 

(ii) Map of Unit 22, Northeast 

Washington River Basins, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56299 


Er26se05.015</GPH>
56300 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(22) Unit 23: Snake River Basin in 

Washington. 

(i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Asotin Creek .............................................................................................................. 46.345 N 117.053 W 46.272 N 117.291 W. 

Charley Creek ............................................................................................................ 46.289 N 117.278 W 46.210 N 117.552 W. 

Cummings Creek ....................................................................................................... 46.333 N 117.674 W 46.219 N 117.595 W. 

George Creek ............................................................................................................ 46.326 N 117.105 W 46.118 N 117.363 W. 

Hixon Creek ............................................................................................................... 46.246 N 117.683 W 46.219 N 117.651 W. 

N. Fork Asotin Creek ................................................................................................. 46.272 N 117.291 W 46.196 N 117.568 W. 

Tucannon River ......................................................................................................... 46.558 N 118.174 W 46.139 N 117.520 W 

(ii) Map of Unit 23, Snake River Basin 

in Washington, follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56301 


ER26SE05.016</GPH>
56302 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(23) Unit 25: Snake River. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Snake River ............................................................................................................... 46.189 N 119.030 W 44.243 N 117.041 W. 

(ii) Map of Unit 25, Snake River, 

follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56303 

BILLING CODE 4310–55–C 


ER26se05.017</GPH>
56304 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(24) Unit 27: Olympic Peninsula. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Bell Creek .................................................................................................................. 48.083 N. 123.052 W. 48.057 N. 123.102 W. 

Big Creek ................................................................................................................... 47.518 N. 123.773 W. 47.566 N. 123.680 W. 

Boulder Creek ............................................................................................................ 47.982 N. 123.602 W. 47.979 N. 123.612 W. 

Buckinghorse Creek .................................................................................................. 47.747 N. 123.481 W. 47.739 N. 123.484 W. 

Canyon River ............................................................................................................. 47.211 N. 123.551 W. 47.338 N. 123.498 W. 

Cat Creek .................................................................................................................. 47.971 N. 123.593 W. 47.946 N. 123.642 W. 

Cedar Creek .............................................................................................................. 47.712 N. 124.415 W. 47.717 N. 124.335 W. 

Chehalis River ........................................................................................................... 46.962 N. 123.823 W. 46.819 N. 123.252 W. 

Clearwater River ........................................................................................................ 47.546 N. 124.291 W. 47.730 N. 123.934 W. 

Copalis River ............................................................................................................. 47.133 N. 124.180 W. 47.234 N. 124.020 W. 

Cougar Creek ............................................................................................................ 47.862 N. 123.859 W. 47.868 N. 123.853 W. 

Delabarre Creek ........................................................................................................ 47.735 N. 123.526 W. 47.726 N. 123.527 W. 

Dungeness River ....................................................................................................... 48.151 N. 123.133 W. 47.942 N. 123.091 W. 

Elk Creek ................................................................................................................... 47.515 N. 123.330 W. 47.510 N. 123.344 W. 

Elwha River ............................................................................................................... 48.151 N. 123.558 W. 47.771 N. 123.580 W. 

Ennis Creek ............................................................................................................... 48.117 N. 123.404 W. 48.053 N. 123.410 W. 

Godkin Creek ............................................................................................................. 47.760 N. 123.464 W. 47.752 N. 123.451 W. 

Goodman Creek ........................................................................................................ 47.825 N. 124.512 W. 47.835 N. 124.338 W. 

Gray Wolf River ......................................................................................................... 47.977 N. 123.111 W. 47.916 N. 123.242 W. 

Grays Harbor Marine ................................................................................................. 46.927 N. 124.179 W. 46.906 N. 124.138 W. 

Griff Creek ................................................................................................................. 48.013 N. 123.591 W. 48.023 N. 123.593 W. 

Hayes River ............................................................................................................... 47.808 N. 123.453 W. 47.803 N. 123.428 W. 

Hoh Creek ................................................................................................................. 47.877 N. 123.753 W. 47.883 N. 123.750 W. 

Hoh River ................................................................................................................... 47.751 N. 124.437 W. 47.878 N. 123.688 W. 

Hood Canal Marine ................................................................................................... 47.685 N. 122.800 W. 47.434 N. 122.841 W. 

Hughes Creek ............................................................................................................ 48.025 N. 123.594 W. 48.026 N. 123.598 W. 

Humptulips River ....................................................................................................... 47.045 N. 124.048 W. 47.247 N. 123.888 W. 

Hurd Creek ................................................................................................................ 48.124 N. 123.142 W. 48.118 N. 123.142 W. 

Ignar Creek ................................................................................................................ 47.639 N. 123.432 W. 47.637 N. 123.429 W. 

Irely Creek ................................................................................................................. 47.565 N. 123.678 W. 47.567 N. 123.672 W. 

Irely Lake ................................................................................................................... Located at 47.565 N. 123.672 W. 

Joe Creek .................................................................................................................. 47.206 N. 124.202 W. 47.217 N. 124.153 W. 

Kalaloch Creek .......................................................................................................... 47.607 N. 124.374 W. 47.637 N. 124.360 W. 

Little River .................................................................................................................. 48.063 N. 123.576 W. 48.033 N. 123.456 W. 

Matheny Creek .......................................................................................................... 47.576 N. 124.113 W. 47.543 N. 123.835 W. 

Moclips River ............................................................................................................. 47.248 N. 124.219 W. 47.260 N. 124.122 W. 

Morse Creek .............................................................................................................. 48.118 N. 123.350 W. 48.064 N. 123.346 W. 

Mosquito Creek ......................................................................................................... 47.799 N. 124.481 W. 47.787 N. 124.382 W. 

Mount Tom Creek ...................................................................................................... 47.868 N. 123.887 W. 47.819 N. 123.820 W. 

Nolan Creek ............................................................................................................... 47.752 N. 124.343 W. 47.743 N. 124.201 W. 

North Fork Quinault River ......................................................................................... 47.540 N. 123.666 W. 47.654 N. 123.646 W. 

North Fork Skokomish River (Lower) ........................................................................ 47.315 N. 123.238 W. 47.398 N. 123.200 W. 

North Fork Skokomish River (Upper) ........................................................................ 47.419 N. 123.224 W. 47.539 N. 123.380 W. 

OGS Creek ................................................................................................................ 47.878 N. 123.770 W. 47.879 N. 123.767 W. 

O’Neil Creek .............................................................................................................. 47.616 N. 123.470 W. 47.610 N. 123.463 W. 

Owl Creek .................................................................................................................. 47.805 N. 124.078 W. 47.780 N. 124.037 W. 

Pacific Coast Marine ................................................................................................. 48.003 N. 124.678 W. 46.927 N. 124.179 W. 

Prescott Creek ........................................................................................................... 47.903 N. 123.490 W. 47.904 N. 123.486 W. 

Pyrites Creek ............................................................................................................. 47.639 N. 123.432 W. 47.644 N. 123.435 W. 

Queets River .............................................................................................................. 47.544 N. 124.354 W. 47.758 N. 123.657 W. 

Quinault Lake ............................................................................................................ Located at 47.471 N. 123.871 W. 

Quinault River ............................................................................................................ 47.349 N. 124.299 W. 47.687 N. 123.371 W. 

Richert Spring ............................................................................................................ 47.320 N. 123.218 W. 47.320 N. 123.224 W. 

Rustler Creek ............................................................................................................. 47.617 N. 123.615 W. 47.629 N. 123.568 W. 

Salmon River ............................................................................................................. 47.557 N. 124.219 W. 47.524 N. 124.040 W. 

Sams River ................................................................................................................ 47.625 N. 124.012 W. 47.604 N. 123.851 W. 

Satsop River .............................................................................................................. 46.979 N. 123.480 W. 47.035 N. 123.524 W. 

Skokomish River ........................................................................................................ 47.335 N. 123.116 W. 47.315 N. 123.238 W. 

Slate Creek ................................................................................................................ 47.521 N. 123.335 W. 47.529 N. 123.319 W. 

Slough off of Elwha ................................................................................................... 48.145 N. 123.567 W. 48.138 N. 123.558 W. 

South Fork Hoh River ................................................................................................ 47.820 N. 124.022 W. 47.764 N. 123.785 W. 

South Fork Skokomish River ..................................................................................... 47.315 N. 123.238 W. 47.488 N. 123.454 W. 

Steamboat Creek ....................................................................................................... 47.679 N. 124.403 W. 47.688 N. 124.349 W. 

Strait of Juan de Fuca Marine ................................................................................... 48.103 N. 122.884 W. 48.217 N. 124.100 W. 

Tshletshy Creek ......................................................................................................... 47.666 N. 123.923 W. 47.606 N. 123.739 W. 

West Fork Satsop River ............................................................................................ 47.035 N. 123.524 W. 47.360 N. 123.565 W. 

Winfield Creek ........................................................................................................... 47.810 N. 124.231 W. 47.783 N. 124.142 W. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56305 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Wishkah River ........................................................................................................... 46.973 N. 123.806 W. 47.261 N. 123.713 W. 

Wynoochee River ...................................................................................................... 46.962 N. 123.606 W. 47.385 N. 123.604 W. 

(ii) Map of Unit 27, Olympic 

Peninsula, follows: 

BILLING CODE 4310–55–P 

56306 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

BILLING CODE 4310–55–C 


ER26SE05.018</GPH>
Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56307 

(25) Unit 28: Puget Sound. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Alma Creek ................................................................................................................ 48.600 N. 121.361 W. 48.590 N. 121.355 W. 

Bacon Creek .............................................................................................................. 48.586 N. 121.394 W. 48.681 N. 121.462 W. 

Baker River ................................................................................................................ 48.534 N. 121.735 W. 48.821 N. 121.427 W. 

Bald Eagle Creek ...................................................................................................... 48.800 N. 121.464 W. 48.797 N. 121.448 W. 

Bear Creek ................................................................................................................ 48.965 N. 121.387 W. 48.966 N. 121.382 W. 

Bear Lake Outlet (stream catalog #0317) ................................................................. 48.607 N. 121.911 W. 48.610 N. 121.911 W. 

Big Beaver Creek ...................................................................................................... 48.773 N. 121.045 W. 48.842 N. 121.210 W. 

Boulder River ............................................................................................................. 48.282 N. 121.786 W. 48.245 N. 121.827 W. 

Brush Creek ............................................................................................................... 48.913 N. 121.423 W. 48.909 N. 121.422 W. 

Canyon Creek ............................................................................................................ 48.098 N. 121.969 W. 48.158 N. 121.816 W. 

Canyon Creek (Canyon Lake Creek) ........................................................................ 48.832 N. 122.143 W. 48.840 N. 122.110 W. 

Carbon River ............................................................................................................. 47.130 N. 122.232 W. 46.964 N. 121.794 W. 

Cascade River ........................................................................................................... 48.524 N. 121.429 W. 48.463 N. 121.163 W. 

Chenuis Creek ........................................................................................................... 46.992 N. 121.842 W. 46.993 N. 121.841 W. 

Chilliwack River ......................................................................................................... 49.000 N. 121.410 W. 48.878 N. 121.486 W. 

Clearwater River ........................................................................................................ 47.146 N. 121.833 W. 47.079 N. 121.781 W. 

Corkindale Creek ....................................................................................................... 48.505 N. 121.485 W. 48.518 N. 121.482 W. 

Crystal Creek ............................................................................................................. 46.929 N. 121.537 W. 46.920 N. 121.525 W. 

Crystal Creek ............................................................................................................. 48.787 N. 121.501 W. 48.791 N. 121.509 W. 

Dan Creek ................................................................................................................. 48.298 N. 121.550 W. 48.265 N. 121.539 W. 

Deer Creek ................................................................................................................ 48.268 N. 121.931 W. 48.365 N. 121.793 W. 

Deer Creek ................................................................................................................ 48.715 N. 121.119 W. 48.721 N. 121.104 W. 

Depot Creek .............................................................................................................. 48.997 N. 121.323 W. 48.986 N. 121.292 W. 

Devils Creek .............................................................................................................. 48.825 N. 121.042 W. 48.819 N. 121.001 W. 

Diobsud Creek ........................................................................................................... 48.559 N. 121.411 W. 48.576 N. 121.432 W. 

Duwamish River ........................................................................................................ 47.586 N. 122.359 W. 47.474 N. 122.250 W. 

East Duwamish Waterway ........................................................................................ 47.590 N. 122.343 W. 47.567 N. 122.346 W. 

East Fork Bacon Creek ............................................................................................. 48.661 N. 121.433 W. 48.713 N. 121.416 W. 

Eastern Shoreline Guemes Island ............................................................................ 48.529 N. 122.572 W. 48.589 N. 122.645 W. 

Eastern Shoreline Puget Sound (North) ................................................................... 48.511 N. 122.605 W. 49.000 N. 122.755 W. 

Eastern Shoreline Puget Sound (South) ................................................................... 47.102 N. 122.727 W. 48.426 N. 122.674 W. 

Eastern Shoreline Whidbey Island ............................................................................ 47.905 N. 122.387 W. 48.370 N. 122.665 W. 

Eastern Shoreline Lummi Island ............................................................................... 48.641 N. 122.608 W. 48.717 N. 122.718 W. 

Easy Creek ................................................................................................................ 48.889 N. 121.457 W. 48.882 N. 121.455 W. 

Ebey Slough .............................................................................................................. 48.022 N. 122.147 W. 47.941 N. 122.169 W. 

Finney Creek ............................................................................................................. 48.524 N. 121.846 W. 48.465 N. 121.686 W. 

Foss River ................................................................................................................. 47.653 N. 121.293 W. 47.705 N. 121.305 W. 

Fryingpan Creek ........................................................................................................ 46.891 N. 121.601 W. 46.869 N. 121.649 W. 

Gedney Island ........................................................................................................... 00.000 N. 000.000 W. 48.013 N. 122.319 W. 

Glacier Creek ............................................................................................................. 47.987 N. 121.392 W. 47.987 N. 121.367 W. 

Goat Island ................................................................................................................ 00.000 N. 000.000 W. 48.363 N. 122.529 W. 

Goodell Creek ............................................................................................................ 48.672 N. 121.264 W. 48.778 N. 121.351 W. 

Green River ............................................................................................................... 47.474 N. 122.250 W. 47.299 N. 121.839 W. 

Greenwater River ...................................................................................................... 47.159 N. 121.659 W. 47.093 N. 121.457 W. 

Hat Slough ................................................................................................................. 48.197 N. 122.361 W. 48.209 N. 122.322 W. 

Hope Island ............................................................................................................... 00.000 N. 000.000 W. 48.399 N. 122.568 W. 

Howard Creek ............................................................................................................ 48.609 N. 121.965 W. 48.619 N. 121.965 W. 

Huckleberry Creek ..................................................................................................... 47.079 N. 121.585 W. 46.989 N. 121.622 W. 

Hutchinson Creek ...................................................................................................... 48.707 N. 122.178 W. 48.733 N. 122.102 W. 

Ika Island ................................................................................................................... 00.000 N. 000.000 W. 48.363 N. 122.501 W. 

Illabot Creek .............................................................................................................. 48.496 N. 121.530 W. 48.389 N. 121.318 W. 

Indian Creek .............................................................................................................. 48.947 N. 121.397 W. 48.935 N. 121.394 W. 

Ipsut Creek ................................................................................................................ 46.980 N. 121.832 W. 46.971 N. 121.831 W. 

Jim Creek .................................................................................................................. 48.185 N. 122.076 W. 48.216 N. 121.939 W. 

Jones Creek .............................................................................................................. 48.524 N. 122.052 W. 48.542 N. 122.050 W. 

Kendall Creek ............................................................................................................ 48.887 N. 122.148 W. 48.922 N. 122.144 W. 

Klickitat Creek ............................................................................................................ 46.909 N. 121.548 W. 46.903 N. 121.546 W. 

Lake Union ................................................................................................................ Located at 47.651 N. 122.355 W. 

Lake Washington ....................................................................................................... Located at 47.520 N. 122.236 W. 

Lightning Creek ......................................................................................................... 48.871 N. 121.027 W. 49.000 N. 120.978 W. 

Little Beaver Creek .................................................................................................... 48.912 N. 121.064 W. 48.878 N. 121.322 W. 

Little Chilliwack River ................................................................................................ 48.993 N. 121.407 W. 48.962 N. 121.477 W. 

Lodi Creek ................................................................................................................. 46.960 N. 121.705 W. 46.940 N. 121.687 W. 

Maple Creek .............................................................................................................. 48.912 N. 122.078 W. 48.927 N. 122.076 W. 

Marble Creek ............................................................................................................. 48.531 N. 121.281 W. 48.542 N. 121.251 W. 

Middle Fork Nooksack River ..................................................................................... 48.834 N. 122.154 W. 48.725 N. 121.898 W. 

Mowich River ............................................................................................................. 46.901 N. 122.030 W. 46.915 N. 121.894 W. 

56308 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Newhalem Creek ....................................................................................................... 48.671 N. 121.254 W. 48.663 N. 121.251 W. 

Nisqually River ........................................................................................................... 47.101 N. 122.691 W. 46.835 N. 122.323 W. 

Nookachamps Creek ................................................................................................. 48.471 N. 122.296 W. 48.346 N. 122.202 W. 

Nooksack River ......................................................................................................... 48.771 N. 122.598 W. 48.834 N. 122.154 W. 

North Fork Skagit River ............................................................................................. 48.364 N. 122.472 W. 48.387 N. 122.366 W. 

North Fork Stillaguamish River ................................................................................. 48.204 N. 122.126 W. 48.328 N. 121.639 W. 

Panther Creek ........................................................................................................... 48.708 N. 120.975 W. 48.631 N. 120.977 W. 

Pass Creek ................................................................................................................ 48.815 N. 121.462 W. 48.811 N. 121.457 W. 

Peat Bog Creek (st. catalog # 0352) ........................................................................ 48.790 N. 122.121 W. 48.780 N. 122.116 W. 

Pierce Creek .............................................................................................................. 48.774 N. 121.060 W. 48.766 N. 121.072 W. 

Pilchuck River ............................................................................................................ 47.904 N. 122.090 W. 47.995 N. 121.745 W. 

Portage Island ........................................................................................................... 00.000 N. 000.000 W. 48.701 N. 122.618 W. 

Puyallup River ........................................................................................................... 47.269 N. 122.425 W. 46.864 N. 121.949 W. 

Ranger Creek ............................................................................................................ 46.995 N. 121.853 W. 46.984 N. 121.854 W. 

Rocky Creek .............................................................................................................. 48.501 N. 121.494 W. 48.510 N. 121.501 W. 

Roland Creek ............................................................................................................. 48.762 N. 121.027 W. 48.770 N. 120.997 W. 

Ruby Creek ................................................................................................................ 48.737 N. 121.046 W. 48.707 N. 120.916 W. 

Samish River ............................................................................................................. 48.555 N. 122.456 W. 48.649 N. 122.207 W. 

Sauk River ................................................................................................................. 48.482 N. 121.604 W. 48.135 N. 121.422 W. 

Silesia Creek ............................................................................................................. 48.999 N. 121.612 W. 48.911 N. 121.484 W. 

Silver Creek ............................................................................................................... 48.972 N. 121.092 W. 48.981 N. 121.188 W. 

Skagit River ............................................................................................................... 48.387 N. 122.366 W. 49.000 N. 121.078 W. 

Skookum Creek ......................................................................................................... 48.671 N. 122.140 W. 48.686 N. 122.105 W. 

Skykomish River ........................................................................................................ 47.830 N. 122.045 W. 47.813 N. 121.578 W. 

Smith Creek ............................................................................................................... 48.856 N. 122.299 W. 48.841 N. 122.261 W. 

Snohomish River ....................................................................................................... 48.020 N. 122.208 W. 47.830 N. 122.045 W. 

Snoqualmie River ...................................................................................................... 47.830 N. 122.045 W. 47.541 N. 121.836 W. 

South Fork Nooksack River ...................................................................................... 48.809 N. 122.202 W. 48.675 N. 121.940 W. 

South Fork Skagit River ............................................................................................ 48.292 N. 122.367 W. 48.387 N. 122.366 W. 

South Fork Skykomish River ..................................................................................... 47.813 N. 121.578 W. 47.705 N. 121.305 W. 

South Fork Stillaguamish River ................................................................................. 48.204 N. 122.126 W. 48.030 N. 121.482 W. 

South Fork Tolt River ................................................................................................ 47.696 N. 121.820 W. 47.693 N. 121.692 W. 

South Mowich River .................................................................................................. 46.915 N. 121.894 W. 46.871 N. 121.845 W. 

South Pass ................................................................................................................ 48.226 N. 122.385 W. 48.238 N. 122.377 W. 

South Puyallup River ................................................................................................. 46.864 N. 121.949 W. 46.821 N. 121.846 W. 

Southeastern Shoreline Vashon Island ..................................................................... 47.331 N. 122.492 W. 47.349 N. 122.450 W. 

Squire Creek .............................................................................................................. 48.280 N. 121.684 W. 48.194 N. 121.637 W. 

St. Andrews Creek .................................................................................................... 46.837 N. 121.920 W. 46.833 N. 121.864 W. 

Steamboat Slough ..................................................................................................... 48.033 N. 122.203 W. 47.984 N. 122.168 W. 

Stetattle Creek ........................................................................................................... 48.717 N. 121.148 W. 48.727 N. 121.154 W. 

Stillaguamish River .................................................................................................... 48.238 N. 122.377 W. 48.204 N. 122.126 W. 

Suiattle River ............................................................................................................. 48.330 N. 121.548 W. 48.162 N. 121.005 W. 

Sulphide Creek .......................................................................................................... 48.777 N. 121.532 W. 48.789 N. 121.551 W. 

Tenas Creek .............................................................................................................. 48.324 N. 121.438 W. 48.335 N. 121.421 W. 

Three Fools Creek ..................................................................................................... 48.891 N. 120.973 W. 48.897 N. 120.847 W. 

Thunder Creek ........................................................................................................... 48.712 N. 121.105 W. 48.563 N. 121.026 W. 

Tolt River ................................................................................................................... 47.641 N. 121.926 W. 47.696 N. 121.820 W. 

Union Slough ............................................................................................................. 48.034 N. 122.190 W. 47.984 N. 122.166 W. 

unnamed tributary (st. catalog #0217) ...................................................................... 46.992 N. 121.704 W. 46.992 N. 121.714 W. 

unnamed tributary (st. catalog #0226) ...................................................................... 46.962 N. 121.710 W. 46.960 N. 121.717 W. 

unnamed tributary (st. catalog #0234) ...................................................................... 46.965 N. 121.712 W. 46.959 N. 121.711 W. 

unnamed tributary (st. catalog #0364) ...................................................................... 46.905 N. 121.559 W. 46.909 N. 121.573 W. 

West Fork Foss River ................................................................................................ 47.653 N. 121.293 W. 47.627 N. 121.310 W. 

West Fork White River .............................................................................................. 47.125 N. 121.618 W. 46.941 N. 121.707 W. 

West Pass ................................................................................................................. 48.250 N. 122.396 W. 48.238 N. 122.377 W. 

White River ................................................................................................................ 47.200 N. 122.257 W. 46.902 N. 121.636 W. 

(ii) Map of Unit 28, Puget Sound, 

follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56309 


ER26SE05.019</GPH>
56310 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

(26) Unit 29: Saint Mary-Belly. (i) Critical habitat is designated on the 

water bodies listed in the following 

table: 

Name Stream endpoint latitude 

Stream endpoint longitude 

Stream endpoint latitude 

or lake center 

Stream endpoint longitude or 

lake center 

Boulder Creek ............................................................................................................ 48.839 N. 113.459 W. 48.732 N. 113.608 W. 

Cracker Lake ............................................................................................................. Located at 48.744 N. 113.643 W. 

Divide Creek .............................................................................................................. 48.751 N. 113.437 W. 48.634 N. 113.444 W. 

Jule Creek ................................................................................................................. 48.988 N. 113.613 W. 48.954 N. 113.617 W. 

Kennedy Creek .......................................................................................................... 48.905 N. 113.409 W. 48.851 N. 113.604 W. 

Lee Creek .................................................................................................................. 48.998 N. 113.600 W. 48.960 N. 113.644 W. 

North Fork Belly River ............................................................................................... 48.998 N. 113.754 W. 48.981 N. 113.770 W. 

Otatso Creek ............................................................................................................. 48.915 N. 113.464 W. 48.892 N. 113.644 W. 

Red Eagle Lake ......................................................................................................... Located at 48.651 N. 113.506 W. 

Saint Mary Lake ........................................................................................................ Located at 48.685 N. 113.525 W. 

Saint Mary River ........................................................................................................ 48.998 N. 113.326 W. 48.668 N. 113.615 W. 

Slide Lakes—lower pool ............................................................................................ Located at 48.905 N. 113.615 W. 

Slide Lakes—upper pool ........................................................................................... Located at 48.901 N. 113.625 W. 

Swiftcurrent Creek ..................................................................................................... 48.836 N. 113.428 W. 48.828 N. 113.521 W. 

(ii) Map of Unit 29, Saint Mary-Belly, 

follows: 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56311 

Dated: September 15, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–18880 Filed 9–23–05; 8:45 am] 

BILLING CODE 4310–55–C 


ER26SE05.020</GPH>