[Federal Register Volume 70, Number 185 (Monday, September 26, 2005)]
[Rules and Regulations]
[Pages 56212-56311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18880]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ12; 1018-AU31


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Bull Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Klamath River, Columbia River, Jarbidge River, 
Coastal-Puget Sound, and Saint Mary-Belly River populations of bull 
trout (Salvelinus confluentus) in the coterminous United States 
pursuant to the Endangered Species Act of 1973, as amended (Act). This 
final designation totals approximately 3,828 miles (mi) (6,161 
kilometers (km) of streams, 143,218 acres (ac) (57,958 hectares (ha) of 
lakes in Idaho, Montana, Oregon, and Washington, and 985 mi (1,585 km) 
of shoreline paralleling marine habitat in Washington. We solicited 
data and comments from the public on all aspects of the proposed rules, 
including data on economic and other impacts of the designations.

DATES: This rule becomes effective October 26, 2005.

ADDRESSES: Comments received, as well as supporting documentation used 
in the preparation of this final rule, will be available for public 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th 
Avenue, Portland, OR 97232. The final rule, economic analyses, and maps 
are also available via the Internet at http://pacific.fws.gov/bulltrout/.

FOR FURTHER INFORMATION CONTACT: Branch of Endangered Species (see 
ADDRESSES section), telephone, facsimile 503/231-6237.

SUPPLEMENTARY INFORMATION:

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under ESA section 4(b)(2), there are significant limitations 
on the regulatory effect of designation under ESA section 7(a)(2). In 
brief, (1) designation provides additional protection to habitat only 
where there is a federal nexus; (2) the protection is relevant only 
when, in the absence of designation, destruction or adverse 
modification of the critical habitat would in fact take place (in other 
words, other statutory or regulatory protections, policies, or other 
factors relevant to agency decision-making would not prevent the 
destruction or adverse modification); and (3) designation of critical 
habitat triggers the prohibition of destruction or adverse modification 
of that habitat, but it does not require specific actions to restore or 
improve habitat.
    Currently, only 470 species, or 37 percent of the 1,264 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,264 
listed species through conservation mechanisms such as listing, section 
7 consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service. 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs. The consequence of the 
critical habitat litigation activity is that limited listing funds are 
used to defend active lawsuits, to respond to Notices of Intent (NOIs) 
to sue relative to critical habitat, and to comply with the growing 
number of adverse court orders. As a result, listing petition 
responses, the Service's own proposals to list critically imperiled 
species, and final listing determinations on existing proposals are all 
significantly delayed. The accelerated schedules of court-ordered 
designations have left the Service with limited ability to provide for 
public participation or to ensure a defect-free rulemaking process 
before making decisions on listing and critical habitat proposals, due 
to the risks associated with noncompliance with judicially imposed 
deadlines. This in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
and is very expensive, thus diverting resources from conservation 
actions that may provide relatively more benefit to imperiled species. 
The costs resulting from the

[[Page 56213]]

designation include legal costs, the cost of preparation and 
publication of the designation, the analysis of the economic effects 
and the cost of requesting and responding to public comment, and in 
some cases the costs of compliance with the National Environmental 
Policy Act (NEPA). These costs, which are not required for many other 
conservation actions, directly reduce the funds available for direct 
and tangible conservation actions.

Background

    Bull trout (Salvelinus confluentus) are members of the char 
subgroup of the family Salmonidae and are native to waters of western 
North America. Bull trout range throughout the Columbia River and Snake 
River basins, extending east to headwater streams in Montana and Idaho, 
into Canada, and in the Klamath River basin of south-central Oregon. 
The distribution of populations, however, is scattered and patchy 
(Goetz 1989; Rieman and McIntyre 1993; Zeller 1992; Light et al. 1996; 
Quigley and Arbelbide 1997).
    Bull trout exhibit a number of life-history strategies. Stream-
resident bull trout complete their entire life cycle in the tributary 
streams where they spawn and rear. Most bull trout are migratory, 
spawning in tributary streams where juvenile fish usually rear from 1 
to 4 years before migrating to either a larger river (fluvial) or lake 
(adfluvial) where they spend their adult life, returning to the 
tributary stream to spawn (Fraley and Shepard 1989). Resident and 
migratory forms may be found together, and either form can produce 
resident or migratory offspring (Rieman and McIntyre 1993).
    Bull trout, coastal cutthroat trout (Oncorhynchus clarki clarki), 
Pacific salmon (Oncorhynchus spp.), and some other species are commonly 
referred to as ``anadromous'' (fish that can migrate from saltwater to 
freshwater to reproduce). However, bull trout, coastal cutthroat trout, 
and some other species that enter the marine environment are more 
properly termed ``amphidromous.'' Unlike strictly anadromous species, 
such as Pacific salmon, amphidromous species often return seasonally to 
fresh water as subadults, sometimes for several years, before returning 
to spawn (Wilson 1997). The amphidromous life history form of bull 
trout is unique to the Coastal-Puget Sound population. For additional 
information on the biology of this life form, see our June 25, 2004, 
proposed critical habitat designation for the Jarbidge River, Coastal-
Puget sound, and Saint Mary-Belly River populations of bull trout (69 
FR 35767).
    For additional information on population ranges, biology, and 
habitat requirements of the bull trout, please refer to the following 
published rules: Proposed critical habitat designation for the Jarbidge 
River, Coastal-Puget Sound, and Saint Mary-Belly River populations (69 
FR 35767, June 25, 2004; as corrected by 69 FR 43058, July 19, 2004); 
final critical habitat designation (69 FR 59995, October 6, 2004) and 
proposed critical habitat designation (67 FR 71235, November 29, 2002) 
for the Klamath River and Columbia River populations; and listing rules 
for the Klamath River and Columbia River populations (63 FR 31647, June 
10, 1998), Jarbidge River population (64 FR 17110, April 8, 1999), and 
for all populations (64 FR 58909, November 1, 1999).

Previous Federal Action

    Please refer to the November 29, 2002, proposed critical habitat 
designation for the Klamath River and Columbia River bull trout 
populations (67 FR 71235) for a detailed summary of Federal actions 
completed prior to publication of that proposal related to all bull 
trout populations. Please refer to the October 6, 2004, final critical 
habitat designation for the Klamath River and Columbia River bull trout 
populations (69 FR 59995) for a detailed summary of Federal actions 
completed between the proposed and final rules related to the Columbia 
and Klamath populations. Please refer to the June 25, 2004, proposed 
critical habitat designation for the Jarbidge, Coastal-Puget, and St. 
Mary Belly bull trout populations (69 FR 35767) for a detailed summary 
of previous Federal actions completed prior to publication of that 
proposal related to those bull trout populations.
    On December 14, 2004, Alliance for the Wild Rockies et al. filed a 
complaint challenging the adequacy of the final critical habitat 
designation for the Klamath River and Columbia River bull trout 
populations. Our motion for partial voluntary remand was subsequently 
granted by the court with a final rule due by September 15, 2005. On 
May 25, 2005, we announced the opening of a public comment period on 
the proposed and final designations of critical habitat for the Klamath 
River and Columbia River bull trout populations (70 FR 29998). On June 
6, 2005, we published a notice clarifying the reopening of the comment 
period for the proposed and final designation of critical habitat for 
the Klamath River and Columbia River bull trout populations (70 FR 
32732). The comment period was open until June 24, 2005.
    On May 3, 2005, we published a notice of the availability of the 
draft economic analysis (DEA) and reopening of a 30-day comment period 
until June 2, 2005 (70 FR 22835), for the Jarbidge River, Coastal-Puget 
Sound, and Saint Mary-belly River populations of bull trout. On June 
27, 2005, Judge Jones extended the deadline for designating critical 
habitat for the Puget Sound-Coastal, Jarbidge, and St. Mary-Belly River 
bull trout populations to September 15, 2005. This rule combines all of 
the listed populations of bull trout into one final critical habitat 
designation, and, in doing so, replaces the final critical habitat 
designation for the Klamath River and Columbia River populations of 
bull trout published in the Federal Register on October 6, 2004 (69 FR 
59995).

Summary of Comments and Recommendations

Jarbidge River, Coastal-Puget Sound, and Saint Mary-belly River Bull 
Trout Populations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Jarbidge River, Coastal-Puget 
Sound, and Saint Mary-belly River populations of bull trout in the 
proposed rule published on June 25, 2004 (69 FR 35767). We also 
contacted and invited the appropriate Federal, State, and local 
agencies, scientific organizations, and other interested parties to 
comment on the proposed rule. In addition, we held one public hearing 
on August 10, 2004, in Tumwater, Washington.
    During the comment period that opened on June 25, 2004, and closed 
on August 24, 2004, we received 34 comment letters directly addressing 
the proposed critical habitat designation: 8 from peer reviewers, 5 
from Federal agencies, 3 from State agencies, 2 from County or city 
agencies, 6 from tribes, and 10 from organizations or individuals.
    During the reopened comment period (May 3, 2005 through June 2, 
2005) (70 FR 228350), we received 16 comment letters directly 
addressing the proposed critical habitat designation and DEA, 7 of 
which were from organizations or individuals that submitted comments 
during the first comment period. Of the 16 letters, we received 1 from 
a peer reviewer, 2 from Federal agencies, 3 from State agencies, 3 from 
county or city agencies, 1 from a tribe, and 6 from organizations or 
individuals.

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Klamath River and Columbia River Bull Trout Populations

    Responses to public and peer review comments on proposed critical 
habitat for the Klamath River and Columbia River bull trout populations 
(67 FR 71235, November 29, 2002) and the DEA (69 FR 17634, April 5, 
2004) were published in the final designation of critical habitat (69 
FR 59995, October 6, 2004). The following summary responds only to 
those comments received during the reopened comment period period (May 
3, 2005 through June 2, 2005) on the proposed and final rules for 
critical habitat designation for the Klamath River and Columbia River 
bull trout populations (70 FR 32732).
    During the reopened comment period, we received 33 letters 
addressing the final critical habitat designation and economic analysis 
(EA). Of these letters, we received 7 from Federal agencies, 4 from 
State agencies, 10 from local entities, 1 from a tribe, and 11 from 
organizations or individuals.
    All comments of a similar nature were grouped together for all 
populations of bull trout and are addressed in the following summary. 
Substantive comments have been incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicit opinions from individuals who have expertise 
with the species and the geographic region where the species occurs and 
are familiar with conservation biology principles. The peer review 
process for the Klamath and Columbia River bull trout populations was 
discussed in the October 6, 2004, final critical habitat designation 
for the Klamath River and Columbia River bull trout populations (69 FR 
59995).
    For the proposed critical habitat designation for Jarbidge River, 
Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations, 
we solicited independent expert review from eight individuals and all 
responded. The peer reviewers generally concurred with our methods, but 
also provided additional information, clarifications, and suggestions 
to improve the final critical habitat rule. Key elements of the 
reviewers' critical comments related to the proposal's scope and 
whether existing laws and regulations already protect some areas. 
Comments also addressed the need for greater prioritization of 
conservation issues influencing critical habitat designation, emphasis 
on quality habitat to support the migratory life form of bull trout, 
and an explanation of why some particular habitat, including areas of 
degraded habitat, are important to bull trout conservation. 
Additionally, the reviewers provided many technical comments on the 
appropriateness and bounds of specific geographic areas proposed as 
critical habitat. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments for Jarbidge River, Coastal-Puget Sound, and 
Saint Mary-Belly River Bull Trout Populations

    When similar comments were also received from other reviewers, they 
are addressed in the comments here to avoid redundancy.
    (1) Comment: A peer reviewer requested clarification on the 
difference between critical habitat subunits (CHSUs) and core areas 
described in the bull trout draft recovery plans (draft Recovery Plans) 
(Service 2002, 2004).
    Our Response: In general, critical habitat subunits (CHSUs) 
correspond to core areas identified in the draft Recovery Plans (http://www.fws.gov/pacific/bulltrout/). However, the Olympic Peninsula and 
Puget Sound Critical Habitat Units (Coastal-Puget Sound populations) 
also contain nearshore and freshwater habitats outside of natal river 
basins that are used by bull trout from more than one CHSU or core 
area. These habitats outside of core areas contain all the physical 
elements and features (primary constituent elements) critical to 
overwintering, migration, and subadult and adult foraging needs 
essential for the conservation of amphidromous (referring to the 
migratory behavior of fishes moving from fresh water to the sea and 
vice versa, not for breeding purposes but occurring regularly at some 
stage of the life cycle, such as feeding or overwintering) bull trout, 
which are unique to the Coastal-Puget Sound bull trout population. 
Within the core areas, certain areas identified by the Service as 
containing features essential for the conservation of the species, and 
in need of special management or protection, are designated critical 
habitat. Although core areas contribute to recovery and share primary 
constituent elements (PCEs) with critical habitat, only those portions 
of the core areas that meet the statutory definition of critical 
habitat and provide defined PCEs are considered for designation.
    (2) Comment: Since little of the Belly River is within the United 
States, this core area is not a biologically functioning unit that 
contains necessary features or PCEs.
    Our Response: A short reach of the North Fork Belly River, 
extending across the international border from Canada (downstream) into 
the United States (upstream), is the only known spawning reach for bull 
trout in the entire Belly River system. Thus, this portion of the North 
Fork Belly River in the United States is vital as spawning and rearing 
habitat for this bull trout population. It contains the PCEs necessary 
for the spawning and rearing life stages (i.e., permanently flowing, 
cold, upwelling groundwater with suitable spawning substrate and 
complex rearing habitat). The foraging, migration, and overwintering 
(FMO) habitat for this population is found downstream in Alberta, 
Canada. This downstream habitat includes the PCEs found in a migratory 
corridor, including deep holding pools and a forage base to support 
large adult bull trout. Adult fish from Canada travel into the United 
States portions of the watershed annually to spawn. Because of the 
important spawning areas in the United States, and the presence of 
necessary PCEs, we have determined that this area is essential to this 
important biologically functioning unit and is designated critical 
habitat.
    (3) Comment: Although it may be consistent with section 4(b)(2) of 
the Act to exclude Habitat Conservation Plans (HCPs) and the areas 
covered by the Washington Forest Practice Rules, there are no 
provisions in the rule to include these excluded lands within 
designated critical habitat if land-use practices or ownership changes.
    Our Response: Although the specific provisions vary for each plan, 
HCPs typically include language that addresses change in circumstances 
or ownership. For example the draft Implementing Agreement for the 
Washington Department of Natural Resources, Forest Practices HCP states 
that any changes in the permits must be adopted through the procedures 
specified in the Act, other applicable Federal laws, and applicable 
regulations and if the Service determines that such changes materially 
impair the conservation plan contained in the HCP, they will notify the 
State and, if the matter is not otherwise resolved, may suspend or 
terminate the HCP, permits and the Implementing Agreement. If land 
ownership changes and a new landowner does not agree to the terms and 
conditions of the original permit, the original permittee must work 
with the Services to determine whether, and under what circumstances, 
the permit can be terminated. In order to terminate a permit, the 
Services must determine if the minimization and mitigation

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measures that were conducted up to that point were commensurate with 
the amount of incidental take that occurred during the term of the 
permit. The Services will always require implementation of any 
outstanding minimization and mitigation measures before a permit is 
terminated.
    (4) Comment: Freshwater foraging, migratory, and overwintering 
habitats outside core areas are not clearly essential to bull trout nor 
well documented. Therefore, these areas should not be included in the 
critical habitat designation.
    Our Response: Some habitats outside of core areas contain all the 
physical elements to meet critical overwintering, migration, and 
subadult and adult foraging needs that are essential for the 
conservation of amphidromous bull trout. Recent tagging studies on the 
Olympic Peninsula and in Puget Sound have tracked the complex 
migrations of amphidromous bull trout from their core areas to marine 
and freshwater foraging, migratory, and overwintering habitats outside 
of their natal core areas (Brenkman and Corbett 2003, 2005; Goetz et 
al. 2004). Amphidromous bull trout have shown site fidelity to, and 
extensive use of, freshwater and marine habitat areas, demonstrating 
these are necessary in completing their life history and therefore, are 
included as critical habitat.
    (5) Comment: Reviewers acknowledged the exclusions the Service had 
proposed for HCPs and the Washington Forest Practice Rules and 
recommended considering other types of management plans and actions for 
possible exclusions. They indicated that designation of critical 
habitat would be a duplication of effort since Federal actions, such as 
allotment management plans, already undergo formal consultation. One 
reviewer wanted to know why waterbodies within some Federal lands, such 
as wilderness, parks, and forests, were not excluded. Another reviewer 
asked why multi-species conservation plans under development by local 
watershed organizations in Washington were not excluded. Several 
reviewers suggested lands covered by Washington State's watershed 
planning process (subbasin plans), and lands in Olympic and North 
Cascades National Parks are currently not in need of special 
management.
    Our Response: We believe some existing management plans are 
appropriate for exclusion because the benefits of exclusion outweigh 
the benefits of inclusion (see section ``Section 3(5)(A) and Exclusions 
Under Section 4(b)(2)''). Landownership is not a factor in determining 
which areas contain PCEs and meet the definition of critical habitat. 
Some waterbodies on Federal lands meet the definition of critical 
habitat. While we have done so in the past, in this rulemaking we did 
not consider any pending HCPs for exclusion, primarily because none of 
the pending HCPs were at a point we could do so without prejudging the 
outcome of the ongoing HCP process and because we expect further 
changes to the developing HCPs.
    (6) Comment: One reviewer suggested that Corps of Engineers 401 and 
404 permits should be excluded from critical habitat.
    Our Response: Corps of Engineers 401 and 404 or other instream 
permits are issued to ensure that applicants avoid and minimize impacts 
to streams. Any mitigation that may be required by a permit is to avoid 
or minimize degradation and to mitigate for unavoidable impacts.
    (7) Comment: Are small stream habitats in the Saint Mary-Belly 
River headwaters in the critical habitat designation contributing to 
rearing and foraging of bull trout and are they adequately considered?
    Our Response: Because of the steep topography, flashy stream flow 
and very active erosion and depositional processes of the Saint Mary-
Belly River headwaters, very few smaller tributary streams support 
adequate year-round stream flow to allow bull trout passage; in 
addition, many have natural barriers. Most of those tributary streams 
have been surveyed, and all those known to support bull trout were 
considered and included in the final critical habitat designation.
    (8) Comment: It would help to understand what the threats to bull 
trout are and how threats relate to critical habitat designation.
    Our Response: For details of the threats that were the basis for 
the bull trout listing, refer to the final listing rules for the 
Klamath River and Columbia River population (63 FR 31647), Jarbidge 
River population (64 FR 17110), and Coastal-Puget Sound and Saint Mary-
Belly River populations (64 FR 58910). Critical habitat identifies 
those areas that contain the physical and biological features (PCEs) 
that are essential to the conservation of the species, and those areas 
that may require special management considerations or protections.

Public Comments Related to Bull Trout Biology and Habitat; Process of 
Designating Critical Habitat for the Bull Trout

    (9) Comment: The proposed critical habitat for the bull trout fails 
to account for the importance of habitat connectivity.
    Our Response: The draft Recovery Plans, critical habitat proposal, 
and the listing rules for bull trout, citing relevant scientific 
literature, describe the species' conservation needs. In fact, 
migratory corridors with minimal physical, biological, or water quality 
impediments are identified as a PCE in the critical habitat rule. Our 
proposed designation connected essential occupied waterbodies having 
PCEs to one another to maintain connectivity within and among habitat 
types (spawning and rearing, freshwater and marine foraging, migratory, 
and overwintering habitats). In the final designation, we exclude some 
critical habitat segments based on a careful balancing of the benefits 
of inclusion versus the benefits of exclusion. Exclusion of waterbodies 
from designated critical habitat does not negate or diminish their 
importance for bull trout conservation, and in most cases does not 
affect the protections available to that habitat through the Act.
    (10) Comment: The status of bull trout strongly indicates that 
critical habitat designation is warranted for all waterbodies occupied 
by bull trout.
    Our Response: Although all occupied habitats are important to the 
species, not all meet the definition of critical habitat. Examples of 
exclusions include reaches where bull trout are sometimes entrained and 
lost to the population or highly fragmented habitats within core areas. 
We believe that we have identified habitat that contains features 
essential to the bull trout's conservation. In the final designation, 
we exclude some critical habitat segments based on a careful balancing 
of the benefits of inclusion versus the benefits of exclusion. 
Exclusion of waterbodies from designated critical habitat does not 
negate or diminish their importance for bull trout conservation.
    (11) Comment: The Service should describe the relationship between 
the reduced distribution of salmon and steelhead (Oncorhynchus sp.) and 
the reduced distribution and abundance of bull trout.
    Our Response: Our recovery plan and administrative record for 
critical habitat designation, including public comment and peer review, 
includes information about the relationship between bull trout and 
their prey species, such as salmon and steelhead. Such information was 
employed to support the biological basis of the proposal, but practical 
considerations limited the amount of such information that could be 
presented in the proposed critical habitat rule. Refer to the 
previously

[[Page 56216]]

published bull trout critical habitat designations and listings (63 FR 
31647, 64 FR 17109, 64 FR 58910, 68 FR 6863, 69 FR 35767, 69 FR 59995) 
for additional information.
    (12) Comment: The Service's position equating adverse modification 
with jeopardy is not supported by the Act or case law. The Service 
needs to define adverse modification.
    Our Response: In response to recent court decisions, we are no 
longer using the regulatory definition of adverse modification. 
Instead, we are following guidance from the Director, embodied in a 
December 9, 2004 memorandum, which uses the statute as the basis for 
our regulatory standard when conducting section 7 consultations on 
critical habitat. We do note in this rule that due to the method of 
analyzing jeopardy specific to bull trout, that jeopardy and adverse 
modification rarely diverge. However, that circumstance is due to the 
specifics of our bull trout analyses rather than an interpretation of 
regulations or law.
    (13) Comment: The Service proposed to designate streams as critical 
habitat that do not currently support bull trout or have little 
evidence of bull trout use, with no justification for such designation 
as to why these stream reaches are essential to the conservation of the 
species, as required by the Act.
    Our Response: All streams proposed for critical habitat designation 
within the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly 
River bull trout population segments were known to be occupied. We 
considered streams occupied if bull trout were documented there within 
the last 20 years (our 2004 critical habitat designation provides a 
full explanation for the basis of this standard). Areas of unknown 
occupancy and unoccupied habitats were included in the proposed 
designation for the Klamath River and Columbia River populations. 
However, in this final rule no unoccupied habitat is being designated. 
The bull trout critical habitat designation is based on the best 
available scientific information. In addition, the proposed 
designations were peer-reviewed by individuals who have expertise with 
bull trout, the geographic region where bull trout occur, and the 
principles of conservation biology. Justifications for all critical 
habitat units are available for public review (see ADDRESSES section 
above).
    (14) Comment: Critical habitat needs to be designated in unoccupied 
areas because these areas are important for re-introduction of 
extirpated populations or expansion of existing populations and are the 
most important areas in need of protection.
    Our Response: We have limited the critical habitat designation to 
areas of known occupancy that have features essential to the 
conservation of the species because we did not have sufficient data for 
the Secretary to make a determination that specific unoccupied areas 
were essential to the bull trout's conservation. We based this 
designation on the best scientific and commercial information 
available. Many streams not included in this designation can and will 
contribute to bull trout recovery, but do not meet the definition of 
critical habitat.
    (15) Comment: The Service neglected or violated a variety of 
regulatory or other requirements including NEPA, the Data Quality Act, 
Regulatory Flexibility Act, and other laws, regulations, and orders.
    Our Response: We are not required to prepare an environmental 
assessment or an environmental impact statement, as defined under the 
authority of NEPA, in connection with regulations adopted pursuant to 
section 4(a) of the Act, and in States under the jurisdiction of the 
Ninth Circuit Court. A notice outlining our reason for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244). This position has been upheld by the Ninth Circuit Court 
of Appeals in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). 
We have addressed all the relevant required regulatory determinations 
in this rule (see Required Determinations section below). Our Policy on 
Information Standards Under the Endangered Species Act, published in 
the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service, provide criteria, establish 
procedures, and provide guidance to ensure that our decisions are based 
on the best scientific and commercial data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. All information in this critical habitat 
rule is used in accordance with the provisions of Section 515 of the 
Treasury and General Government Appropriations Act for Fiscal Year 2001 
(Pub. L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service. Both public and peer review of the 
proposed rule further ensures that the final designation will meet this 
standard.
    (16) Comment: Stream temperature is a limiting factor for some 
populations, and bankfull designation may not encompass sufficient 
shading to maintain water temperatures for bull trout.
    Our Response: We agree that temperature can be a limiting factor 
for some populations which is why it is considered a PCE. Riparian 
vegetation influences instream habitat conditions by providing shade, 
organic matter, root strength, bank stability, and large woody debris 
inputs to streams. Stream width and depth ratios also influence stream 
temperatures. Even though riparian vegetation may not be within a 
stream's bankfull width, and therefore not included in the critical 
habitat designation, effects to these areas are likely to be evaluated 
during the consultation process due to the indirect effect riparian and 
upland actions may have on water temperatures, which is one of the 
identified PCEs for bull trout critical habitat.
    (17) Comment: The Service failed to consult with Native American 
tribes in developing the proposed rule and economic analysis.
    Our Response: We have been, and will continue, to consult with 
those tribes affected by the critical habitat designation. We contacted 
Native American tribes where proposed bull trout critical habitat 
occurred on, or adjacent to, tribal lands. We discussed the critical 
habitat proposal with representatives of the tribes that responded. We 
will continue to work with the tribes on a government-to-government 
basis for the conservation of bull trout.
    (18) Comment: A single sighting of a native char (bull trout) in a 
water body is not sufficient reason to designate the water as critical 
habitat.
    Our Response: We have not designated any unoccupied areas as 
critical habitat. However, we included any area with documented 
occupancy (even a single sighting) within the last 20 years, if the 
area has PCEs essential to the species' conservation and will support 
the essential life history needs of bull trout. The published survey 
protocol for juvenile and resident bull trout was not developed until 
2002, and no similar survey protocol for adult migratory bull trout has 
been developed. Many bull trout sightings are the incidental result of 
surveys for other species (salmon). In addition, bull trout are 
difficult to find, are migratory, and often exhibit a patchy 
distribution. Therefore, an incidental sighting of one

[[Page 56217]]

individual or a few bull trout is often the only available information 
until a targeted survey for bull trout is conducted. With the 
increasing availability of radio telemetry data, we are finding that 
the extent or range of bull trout occupied habitat is often greater 
than was previously known based on incidental observations.
    (19) Comment: Specific numerical habitat standards for critical 
habitat must be included along with critical habitat designations.
    Our Response: There is no requirement under the Act that PCEs have 
specific numerical standards, nor would it necessarily promote 
effective conservation to determine numerical standards for all PCEs 
given the various life histories expressed by bull trout throughout 
their range. However, we recognize the value of observable or 
measurable standards. The PCEs include numerical standards when 
appropriate (e.g., to bracket a range of acceptable temperatures) and 
feasible, such as for temperature and substrate embeddedness.
    (20) Comment: The Service should designate critical habitat for a 
number of ``source water'' streams. These are predominantly steep, 
small streams not occupied by bull trout, but are key sources of cold, 
clean water that feed bull trout habitat downstream.
    Our Response: Streams that contribute necessary habitat elements 
such as cold, clean water downstream to designated streams are not 
included in this designation unless bull trout presence has been 
documented. Our determination of bull trout critical habitat is limited 
to areas that bull trout rely on for some portion of their life cycle. 
Although not designated as critical habitat, we recognize that these 
``source waters'' or non-fish-bearing streams influence the character 
of designated stream segments located downstream. Where section 7 
consultation is required, impacts to these ``source water'' streams 
that may affect bull trout critical habitat will be evaluated (see 
Critical Habitat Designation section below).
    (21) Comment: The Service failed to include areas of historical 
bull trout occupancy and the rules do not provide adequate 
justification for their exclusion.
    Our Response: The critical habitat proposals did not reflect all 
habitat areas bull trout are known to occupy or occupied historically, 
in the coterminous United States. Rather, it reflects those areas that 
contain the necessary features that are essential for the conservation 
of the species and are currently occupied by the species. Historical 
records of bull trout distribution may be anecdotal and incomplete 
relative to current bull trout distribution and thus, would not provide 
a sufficient basis for this critical habitat rule. We believe by 
defining as occupied those segments with at least one documented 
sighting in the last 20 years we have used a sufficiently broad measure 
to ensure the most likely occupied areas are included. This standard 
takes into account the fact that bull trout are abnormally difficult to 
find as they are primarily nocturnal feeders.
    In our proposed critical habitat designation for the Jarbidge 
River, Coastal-Puget Sound, and Saint Mary-Belly River population 
segments, we specifically solicited additional information on areas of 
habitat with evidence of occupancy of which we were unaware. These 
waterbodies had been identified by the bull trout recovery teams as key 
recovery habitat in the draft recovery plan, however, at that time they 
had no specific information documenting bull trout occupancy. Since the 
proposal, we have received additional information on bull trout 
occupancy for several tributaries in the Nooksack River (Fossil Creek), 
South Fork Skykomish River (West Fork Foss River), and Ross Lake (North 
Fork Canyon Creek) systems, which have been excluded from the final 
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (22) Comment: The contribution of tribal lands to bull trout 
habitat conservation is unclear and these lands are not essential to 
bull trout recovery.
    Our Response: The scientific information cited in the draft 
Recovery Plans provided the basis for our evaluation of habitats that 
contain the features essential to bull trout conservation. Many tribal 
lands include portions of mainstem rivers that provide essential 
migratory corridors and overwintering habitat for fluvial and 
amphidromous bull trout. Waterbodies on tribal lands were included in 
the critical habitat designation only if they were found to be 
currently occupied, contain PCEs that are essential for bull trout 
conservation, and were not adequately covered by management plans (see 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (23) Comment: The proposed rule fails to mention water rights.
    Our Response: The proposed and final rules do not specifically 
address water rights. However, examples of activities that may 
potentially affect aquatic bull trout critical habitat by altering the 
PCEs, such as changes in water use or water rights were provided in the 
proposed and final rules.
    (24) Comment: The proposal to designate critical habitat in the 
Saint Mary-Belly Rivers focuses on potential impacts of irrigation 
activities instead of potential adverse effects of recreational fishing 
on bull trout.
    Our Response: Under the 4(d) rule that was included in the final 
rule which listed bull trout, take of bull trout in accordance with 
state, National Park Service, and Native American Tribal permitted 
fishing activities is allowed (64 FR 58910). Irrigation activities are 
often linked to Federal agencies, such as Bureau of Reclamation (BOR), 
for the allocation, delivery or storage of the water. Individual 
anglers, however, are only required to avoid take of listed bull trout 
by following fishing regulations.
    (25) Comment: There is no evidence to specifically identify when 
marine or estuarine areas are being used by bull trout.
    Our Response: Recent radio and acoustic telemetry studies in Grays 
Harbor, Puget Sound, and the Snohomish, Dungeness, and Hoh Rivers have 
provided new information on bull trout use of marine and estuarine 
areas and the importance of this habitat for bull trout recovery 
(Brenkman and Corbett 2003, 2005; Jeanes et al. 2003; Goetz et al. 
2004). These studies documented that marine forage fish such as herring 
(Clupea spp.), surf smelt (Hypomesus pretiosus), sand lance (Ammodytes 
hexapterus), and shiner surfperch (Cymatogaster aggregate) are bull 
trout prey. In addition, marine waters provide essential migratory 
corridors for amphidromous bull trout moving from their natal river 
basin to other rivers or streams as they seek suitable foraging or 
overwintering habitat. We now know that large numbers of bull trout 
overwinter in streams that do not contain spawning and rearing habitat 
and are only accessible by migration through marine waters. Therefore, 
we have included these marine nearshore areas that contain features 
essential to bull trout conservation in this final designation.
    (26) Comment: Adequate foraging habitat has not been included in 
the designation.
    Our Response: We believe this designation is based on the best 
scientific and commercial information available. It includes only 
occupied habitat, and contains those features that are essential to the 
conservation of bull trout populations. We recognize that bull trout 
may forage in areas where their presence has not been detected and 
these areas may provide access to

[[Page 56218]]

abundant forage. However, because we were unable to identify all areas 
that are used, we have limited designated critical habitat to areas of 
known occupancy having the necessary PCEs and which were determined to 
be essential for recovery. However, because of the relatively broad 
definition of `occupied' used in this rule, it is likely that forage 
habitat is included as well as breeding habitat and migratory 
corridors.
    (27) Comment: Floodplains are not mentioned in the proposed 
designation. Does this mean they are not included?
    Our Response: We have only included occupied aquatic habitats that 
contain the features essential to the conservation of bull trout within 
the designation. Federal activities occurring in floodplains may affect 
designated critical habitat, and as such would be reviewed in section 7 
consultation.
    (28) Comment: Comments provided in the previous rule for the 
Klamath River and Columbia River populations were not addressed.
    Our Response: All substantive issues raised in comments received 
during public comment period for the proposed rule received a response. 
The response was to either accept or incorporate the issue raised, or 
to provide a narrative response as to why we did not do so.
    (29) Comment: Existing regulatory mechanisms are inadequate and 
continuing threats to bull trout and its habitat from a variety of land 
and water management activities warrant the designation of all habitat 
essential to bull trout survival and recovery.
    Our Response: We believe this designation is based on the best 
scientific and commercial information available, includes only occupied 
habitat, and contains those areas that contain the features essential 
to the conservation of bull trout. Some areas we identified as 
essential to the conservation of bull trout are not designated in the 
final rule. This is due to the areas not meeting the definition of 
critical habitat under section 3(5)(A) or exclusion under 4(b)(2). 
Sections 3(5)(A) (definition of critical habitat) and 4(b)(2) 
(Secretarial weighing of the benefits of inclusion versus the benefits 
of exclusion) of the Act provide for specifc areas to be excluded from 
critical habitat if they are otherwise provided needed protection (see 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (30) Comment: The final rule is inadequate to recover bull trout 
and the status quo is leading to declining populations in spite of 
section 7 consultations, habitat conservation plans, and state 
restoration plans.
    Our Response: Recovery planning for bull trout is complex due, in 
part, to its wide geographic distribution and multifaceted life 
history. Recovery of the species will require a variety of efforts and 
the cooperation of Federal, state, tribal, and other entities. Critical 
habitat by itself will not recover the species, but does provide an 
additional regulatory benefit for bull trout habitat where protection 
and special management are necessary to ensure the habitat contributes 
to the conservation of the species. While any one effort will not 
recover bull trout, we believe that through the cooperative efforts of 
all stakeholders, using a variety of conservation tools, bull trout can 
reach the point of no longer needing the protections of the Act.
    (31) Comment: We believe that the current attempt to solicit more 
information on the critical habitat rule is unlawful.
    Our Response: We disagree and believe that soliciting public 
comment is essential to conserving any species.
    (32) Comment: Why is the entire Columbia River mainstem (especially 
the upper Columbia River) designated as critical habitat, what data 
were used, and why did the Service use the draft recovery plan?
    Our Response: This final rule does not include the entire Columbia 
River mainstem. The bull trout is a wide ranging migratory species and 
follows salmon, whitefish, and other prey species in the Columbia 
River, marine waters and freshwater streams and rivers. Records of bull 
trout distribution indicate their presence from the mouth of the 
Columbia River to its uppermost reaches. Past monitoring efforts for 
salmon rarely recorded bull trout in data collections because bull 
trout were not the targeted species. In the upper Columbia River data 
from multiple telemetry studies show the use by bull trout of the area 
between Priest Rapids pool and the Okanogan River, and back into 
multiple tributaries. Some bull trout that spawn in the upper Columbia 
River basin use the mainstem for six months or more. We have excluded 
some areas of the Columbia mainstem where the benefits of excluding 
these areas outweigh the benefits of including them in the designation 
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section 
below). Sub-adults and adults that spawn in alternate years have been 
documented using the Columbia River year-round. In reference to the use 
of the draft recovery plan, the Service acknowledges there are data 
gaps within the plan. The science used in the draft recovery plan was 
the best available data for bull trout at that time and provided the 
basis for proposing and designating critical habitat. In the process of 
developing the proposed and final critical habitat designation, 
additional data have become available, have been used in these rules, 
and are available as part of our administrative record.
    (33) Comment: All waters behind dams (reservoirs and pools) and 
areas covered by habitat conservation plans do not require designation 
due to existing management activities and should be excluded.
    Our Response: We reviewed reservoir operations and habitat 
conservation plans and carefully weighed the benefits of inclusion 
versus the benefits of exclusion. Based on this analysis we are 
excluding all reservoirs and pools that provide flood protection or 
water supply benefit and we are also excluding habitat conservation 
plans that adequately address bull trout conservation (see Section 
3(5)(a) and Exclusions under Section 4(b)(2) section below).
    (34) Comment: The final rule for Klamath River and Columbia River 
populations needs clarification regarding the exclusion of 0.5 mile 
segments on private land. The inclusion of these stream segments 
appears to contradict the statement in the rule that exempts segments 
of less than 0.5 miles on private land.
    Our Response: The intent in the previous rule was to exclude those 
stream segments that were less than 0.5 miles in length and under 
private landownership. The definition was intended to apply only to 
unbroken stream segments shorter than 0.5 miles in length, irrespective 
of underlying landownership patterns. The Service is no longer 
excluding areas of critical habitat on this basis, and all stream 
segments regardless of length remain designated critical habitat.

Exclusion Comments

    (35) Comment:Exclusions are arbitrary and benefit special interest 
groups.
    Our Response: All areas excluded are covered by management plans 
that specifically address bull trout PCEs, or are being excluded based 
on policy considerations. Exclusions were carefully reviewed and the 
Secretary has made the determination that the benefits of excluding 
these habitats outweighs the benefits of including them in the 
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (36) Comment: Comments were received to either exclude or to 
include areas covered by HCPs.

[[Page 56219]]

    Our Response: We determined that waterbodies within lands covered 
under an existing or pending HCP should be excluded from the 
designation of critical habitat where the benefits of excluding these 
habitats covered by these management plans outweighs the benefits of 
including them in the designation (see Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) section below).
    (37) Comment: Comments were received to either exclude or to 
include areas covered by the Washington Forest Practice Rules. Reasons 
cited for including areas covered by the Washington Forest Practice 
Rules were that the rules are not complete, the rules do not include 
adequate standards, it has not been fully implemented, and the adaptive 
management process is incomplete. A primary reason expressed for 
excluding those lands was that this law protects aquatic habitat on 
State and private land.
    Our Response: Washington State law H.B. 2091, which codified the 
Washington Forest Practice Rules, is a science-based plan that protects 
water quality and fish habitat on over 8 million acres (3.2 million ha) 
of non-Federal forestland throughout Washington State. Implementing 
these regulations is expected to maintain the thermal regimes of 
streams within the range of normal variation, contribute to the 
maintenance of complex stream channels, maintain appropriate 
substrates, natural hydrograph, ground-water sources and subsurface 
connectivity, migratory corridors, and provide abundant food sources 
for bull trout. Because the benefits of excluding the streams covered 
by the Washington Forest Practice Rules outweigh the benefits of 
including them, we have excluded stream segments protected by these 
regulations. See Washington State Forest Practices Rules and 
Regulations, as amended by the Forest and Fish Law (FFR) under the 
Lands to be Excluded from Critical Habitat under section 4(b)(2) of 
this final rule for further discussion on FFR.
    (38) Comment: We believe the current Forest Service Land and 
Resource Management Plans (LRMP) as amended by the Northwest Forest 
Plan, PACFISH, and/or INFISH aquatic conservation strategies provide 
the necessary protection and special management that would eliminate 
the need to designate these areas as critical habitat. In addition, the 
designation would provide little additional benefit as described under 
Section 4(b)(2) of the Act.
    Our Response: We agree. These areas have been excluded from the 
final critical habitat designation (see Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) section below).
    (39) Comment: Areas covered by the Oregon Forest Practices Act 
(OFPA) and the Oregon Plan for Salmon and Watersheds (OR Plan) should 
be excluded.
    Our Response: The OFPA includes provisions that generally limit 
clear cut size, require retention of green trees within harvest units 
for stream shading and downed wood for recruitment into riparian areas, 
and require replanting after harvest. However, the OFPA has no 
provisions that specifically address any of the PCEs for bull trout or 
for ensuring their conservation or protection. The OR Plan serves as a 
general salmon conservation planning guide and encourages close 
coordination among the agencies responsible for salmon conservation. 
Both the OFPA and OR Plan are well intentioned and provide 
encouragements and some benefits to aquatic habitats in areas where 
they apply. However, we were unable to determine that the OFPA or the 
OR Plan provide adequate conservation or protection of bull trout or 
their PCEs. Therefore, the areas covered by the OFPA or OR Plan do not 
warrant exclusion based on special protections or management.
    (40) Comment: The Montana Bull Trout Plan should not be used as the 
basis for excluding lands from critical habitat. It is a voluntary plan 
without tracking, reporting, or funding certainty, and it provides no 
protections against detrimental groundwater or surface water 
extraction. Implementation has been slow or nonexistent, the list of 
recommended immediate conservation actions were not acted upon or 
incorporated into the Plan.
    Our Response: We have reviewed the plan and determined it does not 
provide special management protections to the same extent a critical 
habitat designation would. Therefore, we are not using the Montana Bull 
Trout Plan as a basis for excluding lands from critical habitat.
    (41) Comment: No critical habitat should be designated on military 
lands for national security concerns or those that have Integrated 
Natural Resource Plans.
    Our Response: Pursuant to section 4(a)(3)(B)(i) of the Act, the 
Service has not included critical habitat on military installations 
that have an Integrated Natural Resource Plan (INRMP) that provide 
benefits to the bull trout. Pursuant to section 4(b)(2) of the Act, we 
have excluded other military lands based on national security concerns 
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section 
below).
    (42) Comment: Reservoirs should be included as critical habitat.
    Our Response: In many places reservoirs provide important foraging 
and overwintering habitat for bull trout and contain the features 
essential to the conservation of the bull trout. However, under 4(b)(2) 
of the Act, the Secretary has discretion to exclude any area from 
critical habitat if she determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless she determines, based on the best scientific and 
commercial data available, that the failure to designate such area as 
critical habitat will result in the extinction of the species. The 
Secretary carefully weighed the benefits of inclusion versus the 
benefits of exclusion regarding reservoirs (see Section 3(5)(A) and 
Exclusions under Section 4(b)(2) section below) and found that, for 
those reservoirs that provide a flood control or water for human 
consumption function, the benefits of exclusion outweighed the benefits 
of inclusion.
    (43) Comment: All tribal reservation lands should be excluded from 
critical habitat designation.
    Our Response: In accordance with the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and 
512 DM 2, we coordinate with federally-recognized tribes on a 
government-to-government basis. Further, Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (1997) provides that critical habitat 
should not be designated in an area that may impact tribal trust 
resources unless it is determined to be essential to the conservation 
of a listed species and that Tribes be given deference when evaluating 
conservation management planning.
    Accordingly, we are obligated to consult with tribes based on their 
unique relationship with the Federal government, and to evaluate the 
appropriateness of designating tribal lands within the framework of the 
above mentioned directives. In addition, we evaluate tribes' past and 
ongoing efforts for species conservation and the benefits of including 
or excluding tribal lands in the designation under section 4(b)(2). We 
contacted all tribes potentially affected by the proposed designations 
and met with a number of these tribes to discuss their ongoing or 
future management strategies for bull trout. Several tribes 
subsequently submitted letters requesting exclusions from the 
designation based on their ongoing

[[Page 56220]]

management and conservation efforts, or their commitment to develop an 
appropriate management plan, on their lands. We excluded those tribal 
lands where there was a commitment to conserve bull trout habitat and 
where the benefits of exclusion where found to outweigh the benefits of 
inclusion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act section below).
    (44) Comment: The Service ignores court decisions and required 
components of the Act when it states that areas can be excluded based 
on economic impacts, national security, management plans, and the 
preservation of partnerships (see Center for Biological Diversity v. 
Norton (2003)).
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic impact, national security impact, and any other relevant 
impact of designating any particular area as critical habitat. An area 
may be excluded from critical habitat if it is determined that the 
benefits of exclusion outweigh the benefits of designating a particular 
area as critical habitat, unless the failure to designate such an area 
as critical habitat will result in the extinction of the species. In 
addition, the congressional record is clear that the consideration and 
weight given to any impact is completely within the Secretary's 
discretion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (45) Comment: Does excluding habitat covered by HCPs also exclude 
covered activities on lands the applicant does not own or manage? For 
example, studies are occurring on lands not owned by the City of 
Seattle but required by the terms of the approved HCP.
    Our Response: Areas excluded due to the existence of an approved 
HCP only include those areas directly covered by the HCP. Areas outside 
the HCP e.g., City of Seattle, remain designated critical habitat 
unless excluded for some other reason.

Comments Related to the Economic Analysis

    (46) Comment: The Service neglected to conduct an economic analysis 
(EA) for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly 
River bull trout populations, contrary to the Act's requirements.
    Our Response: The Service did conduct an economic analysis for the 
Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull 
trout populations. We informed the public in the proposed rule that we 
would be conducting an analysis of the economic impacts of designating 
the proposed areas as critical habitat prior to making a final 
determination. We announced the availability of the DEA with a notice 
in the Federal Register (May 3, 2005, 70 FR 22835) that reopened the 
public comment period on the DEA and the proposed rule at that time. 
Reopening the comment period allowed the public to concurrently review 
and comment on both the DEA and the proposed critical habitat 
designation. We subsequently provided this same information when 
replying to electronic mail (e-mail) messages and telephone calls, and 
during the public hearing held in Washington.
    (47) Comment: The costs of critical habitat outweigh the benefits 
of designation and all costs associated with critical habitat should be 
included in the analysis.
    Our Response: This final rule excludes areas where the benefits of 
excluding critical habitat have been determined to exceed the benefit 
of including these areas in the designation under provisions of section 
4(b)(2). The economic analysis (EA) considers the economic efficiency 
effects that may result from the designation, including habitat 
protections that may be coextensive with the listing of the species. It 
also addresses distribution of impacts, including an assessment of the 
potential effects on small entities and the energy industry. The 
analysis focuses on quantifying the direct and indirect costs of the 
rule although economic impacts to land-use activities may exist in the 
absence of designating critical habitat. For example, economic impacts 
may result from local zoning laws, state and natural resource laws, and 
enforceable management plans and best management practices applied by 
other state and Federal agencies. The information in the EA can be used 
by the Secretary when taking into consideration the economic impact, 
and any other relevant impact of specifying any particular area as 
critical habitat.
    (48) Comment: Costs associated with the operations of agencies such 
as the Bureau of Reclamation (BOR) to deliver water belonging to 
irrigation districts must be taken into consideration. The impact of 
attempting to alter pre-existing legal requirements, and the 
constraints those legal rights have on designating critical habitat, 
must be considered before a final decision can be made.
    Our Response: Potential costs associated with the designation of 
bull trout critical habitat, including those related to BOR water 
management, are addressed through the economic analysis. We received 
additional information regarding the possible under-or over-estimate of 
costs related to regulation of water and power generation due to the 
designation. Where appropriate, this information was used by the 
Secretary in making determinations under section 4(b)(2) of the Act.
    (49) Comment: In the economic analysis, the Service did not account 
for the many economic benefits that the designation of critical habitat 
for bull trout provides.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas that contain the features essential to the conservation 
of listed species and that may require special management or 
protections. While the Act is clear that it is the policy of the 
Federal government to provide a means whereby the ecosystems upon which 
endangered and threatened species depend are conserved, it is also 
clear that Congress provided several methods for achieving this policy 
and critical habitat designation is just one of the methods. The Act 
states that this policy is to be achieved through cooperation with 
states through the resolution of water resource issues in concert with 
conservation. Finally, the Act provides the flexibility for the 
Secretary to exclude portions of critical habitat based on the 
consideration of economics, national security, or any other relevant 
impact if the Secretary determines that the benefit of exclusion 
exceeds the benefits of inclusion, as long as that exclusion does not 
result in the extinction of the species.
    The designation of critical habitat may result in two distinct 
categories of benefits to society: (1) Measurable or economic benefits 
and (2) intangible benefits. The economic analysis generally captures 
the measurable benefits (such as increased tourism or recreational 
expenditures) by quantifying them in terms of dollars. The less 
tangible social benefits that accrue from the physical existence of a 
resource are more difficult to capture. Non-use benefits, in contrast, 
represent benefits that individuals perceive from ``just knowing'' that 
a particular listed species'' natural habitat is being specially 
managed for the survival and recovery of that species. This benefit is 
virtually impossible to quantify as there is no market transaction to 
use as a measurement for such a benefit.
    The economic analysis captures those benefits that can be 
quantified and provides information regarding the economic costs 
associated with a proposed critical habitat designation.

[[Page 56221]]

The economic analysis is used by the Secretary in making decisions 
under section 4(b)(2) of the Act based on economic impacts. Economic 
impacts can be both positive and negative and, by definition, are 
observable through market transactions.
    In our designations we recognize that critical habitat may also 
generate ancillary benefits which can be both negative and positive. 
That is, management actions undertaken to conserve a species or habitat 
as a result of designation may have coincident implications to a 
place's quality of living. For example, fewer consumptive activities 
(e.g., timber harvesting or cattle grazing) may affect some 
individuals' enjoyment of an area. While they are not the primary 
purpose of critical habitat, these ancillary effects which are 
perceived as benefits may result in gains in non-economic benefits that 
may offset the direct, negative impacts to a region's economy resulting 
from actions to conserve a species or its habitat. Conversely, for 
those formerly dependent on the timber industry or grazing for their 
livelihood, they may find that significantly reduced employment 
opportunities which represent reduction in benefits.
    It is often difficult to evaluate the ancillary benefits of a 
critical habitat designation. Where data are available, this analysis 
attempts to recognize and measure the net economic impact of the 
proposed designation. For example, if the fencing of a species' habitat 
to restrict motor vehicles results in an increase in the number of 
individuals visiting the site for wildlife viewing, then the analysis 
would recognize the potential for a positive economic impact and 
attempt to quantify the effect (e.g., impacts that would be associated 
with an increase in tourism spending by wildlife viewers). Conversely, 
if the critical habitat designation will result in increased fishing 
and hiking opportunities, that benefit would be reflected in economic 
benefits from tourism and related industries. What is not measurable in 
other than qualitative terms are such benefits as increased quality-of-
life values for some and decreased quality-of-life for others (e.g., 
lower employment due to family wage jobs supported by industrial timber 
harvesting being replaced by service jobs in the recreation industry).
    While section 4(b)(2) of the Act gives the Secretary discretion to 
exclude certain areas from the final designation, she is authorized to 
do so only if an exclusion does not result in the extinction of the 
species. Thus, we believe that explicit consideration of broader social 
values for the species and its habitat, beyond economic impacts, is 
evidenced by the designation itself that protects areas for the 
conservation of the species despite costs associated with that 
designation. In other words, the Secretary begins a designation based 
on an assumption that the benefit of designation outweighs the benefit 
of exclusion and only excludes where an explicit determination is made 
that the benefit of exclusion, in fact, does outweigh the benefit of 
inclusion.
    (50) Comment: The DEA for the Jarbidge River, Coastal-Puget Sound, 
and Saint Mary-Belly River bull trout populations must evaluate impacts 
of bull trout critical habitat designation on the tribes' trust 
resources to be consistent with trust responsibilities.
    Our Response: The DEA for the Jarbidge River, Coastal-Puget Sound, 
and Saint Mary-Belly River bull trout populations evaluates the impacts 
of this designation on tribal trust resources. Refer to section 3.1.4 
in the DEA for further discussion on impacts of the bull trout critical 
habitat designation on the tribes' trust resources.
    (51) Comment: The Service needs to address habitat and economic 
concerns in Canada, as well since a critical habitat designation may 
affect waters that flow into Canada.
    Our Response: We state on page 35771 of the critical habitat 
proposed rule for the Jarbidge River, Coastal-Puget Sound, and Saint 
Mary-Belly River bull trout populations that, ``The inter-
jurisdictional nature of the Saint Mary River and Belly River 
watersheds is unique in the bull trout's range and makes international 
coordination especially critical.'' However, we cannot propose to 
establish critical habitat in other countries or address economic 
concerns of critical habitat in other countries.
    (52) Comment: The BOR requires water users to pay for all 
maintenance and operational and mitigation costs associated with the 
Milk River irrigation system in Montana, so it is the irrigators not 
the BOR that must avoid adverse modification.
    Our Response: Section 7(a)(2) of the Act requires Federal agencies 
to ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of listed species or 
result in the destruction or adverse modification of critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, the action agency 
ensures that its actions do not destroy or adversely modify critical 
habitat. The Service consults with the Federal agencies (in this case 
BOR) not private individuals. Private individuals may, however, have an 
identified role in the consultation if they are ``applicants'' as 
defined in section 7.
    (53) Comment: The BOR indicated that bypass facilities at the Saint 
Mary Diversion dam should be included among the costs attributable to 
bull trout (not included in the DEA), at an estimate of $128,000 (in 
2002 dollars). In addition, there are costs associated with the 
Sherburne Dam rehabilitation, and BOR estimates those costs to be 
$700,000 (in 2004 dollars).
    Our Response: The DEA acknowledged that elements of the Saint Mary 
Diversion fish entrainment and bypass costs and modifications to 
Sherburne Dam, located upriver of the Saint Mary Diversion, may be 
necessary. However, the specific elements or their costs for these 
components were not available at the time they were requested from BOR, 
and only preliminary estimates were provided in the DEA (see page 239). 
We have incorporated new information on these costs into the final 
economic analysis and our final critical habitat designation. Based on 
the costs provided in BOR's comment, updated to current dollars, the 
inclusion of bypass facility costs on the Saint Mary Diversion and the 
portion of Sherburne Dam rehabilitation attributable to bull trout 
would increase the total prospective costs by $830,900 and the total 
annualized cost by $78,400 in the Saint Mary-Belly River region.
    (54) Comment: BOR noted that fish screens to reduce entrainment on 
the Saint Mary Diversion would likely not be installed were it not for 
the bull trout listing, and that the costs in the DEA were 
underestimated. BOR estimates the cost to be $4,270,000 for an 850 
cubic feet/second (cfs) canal.
    Our Response: BOR's project modification estimates for the 
rehabilitation of the Saint Mary Diversion were addressed in the DEA 
(page 239). However, specific costs for fish screens associated with 
the modification options were not available when we requested the 
information from BOR, and other sources of information were instead 
used in the DEA for estimating those costs. We appreciate receiving the 
estimate of cost that was provided in the comment. A decision has not 
yet been made about whether to proceed with the rehabilitation as 
planned, or when, or the size of the rehabilitated canal. Assuming that 
the rehabilitation is completed in 5 years, and based on the cost for 
fish screens provided by BOR

[[Page 56222]]

for an 850 cfs canal (updated to current dollars), the prospective cost 
attributable to bull trout would increase by $3,024,800 in the Saint 
Mary-Belly River region from that presented in the DEA. The total 
annualized cost would increase by $285,500.
    (55) Comment: Monitoring riparian areas will occur in areas where 
there is no grazing. If grazing is unlikely to affect bull trout, why 
are costs involved?
    Our Response: Monitoring livestock grazing that may affect the 
conservation status of sensitive species is a requirement of INFISH in 
eastern Oregon and Washington, Idaho, western Montana, and portions of 
Nevada. INFISH was developed as an amendment to U.S. Forest Service 
(USFS) land and resource management plans and Bureau of Land Management 
(BLM) resource management plans. The monitoring responsibility would be 
in effect even in the absence of the designation of critical habitat 
for bull trout. Costs were included in the economic analysis as they 
are related to the conservation of bull trout.
    (56) Comment: The impacts in the economic analysis are 
overestimated because it does not differentiate between the impacts of 
the listing and impacts of critical habitat designation. This method of 
estimating costs unfairly attributes too large a percentage of costs to 
critical habitat.
    Our Response: The economic analysis is intended to assist the 
Secretary in determining whether the benefits of excluding particular 
areas from the designation outweigh the biological benefits of 
including those areas in the designation. Also, this information allows 
us to comply with direction from the U.S. 10th Circuit Court of Appeals 
that ``co-extensive'' effects should be included in the economic 
analysis to inform decision-makers regarding which areas to designate 
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service (248 F.3d 1277)).
    This analysis identifies those potential activities believed to be 
most likely to threaten the bull trout and its habitat and, where 
possible, quantifies the economic impact to avoid, mitigate, or 
compensate for such threats within the boundaries of the critical 
habitat designation. Where critical habitat is being proposed after a 
species is listed, some future impacts may be unavoidable, regardless 
of the final designation and exclusions under section 4(b)(2). However, 
due to the difficulty in making a credible distinction between listing 
and critical habitat effects within critical habitat boundaries, this 
analysis considers all future conservation-related impacts to be co-
extensive with the designation.
    (57) Comment: The economic analysis overestimates impacts of 
critical habitat designation by not differentiating between impacts 
attributable to bull trout conservation verses salmon conservation.
    Our Response: There are several salmonid species that are listed as 
threatened or are candidates for listing under the Act whose ranges 
overlap the critical habitat designation of bull trout. Conservation 
activities designed to protect bull trout may provide coincident 
protection to salmon. Conversely, conservation activities designed 
specifically for salmon may provide protection for bull trout. In 
assigning costs for fish-related conservation activities in watersheds 
supporting previously listed salmon species and bull trout, we assume 
in the analysis that the economic effect of fish-related conservation 
measures is attributed co-extensively to both species. Therefore, where 
a conservation activity provides indivisible benefits to both salmon 
and bull trout, the cost of the activity is apportioned to both 
species. In areas where proposed critical habitat for bull trout does 
not overlap the range of other listed species, the costs are assigned 
solely to bull trout conservation activities. Co-extensive effects may 
also include impacts associated with overlapping protective measures of 
other Federal, State, and local laws that aid habitat conservation in 
the areas proposed for designation. We note that in past instances, 
some of these measures have been precipitated by the listing of the 
species. Because habitat conservation efforts affording protection to a 
listed species likely contribute to the efficacy of the critical 
habitat designation efforts, the impacts of these actions are 
considered relevant for understanding the full effect of the proposed 
designation. Enforcement actions taken in response to violations of the 
Act, however, are not included.
    (58) Comment: Critical habitat creates undue economic hardship on 
private land owners.
    Our Response: Private landowners are only required to consult with 
the Service if their action has a Federal nexus and if the action is 
likely to affect bull trout or its critical habitat.
    (59) Comment: By designating less area as critical habitat, the 
costs are disproportionately high for the areas included in critical 
habitat.
    Our Response: Excluding areas does not increase the costs on those 
areas left within the designation. The costs associated with the 
designation are the section 7 administrative costs of preparing a 
biological assessment and the potential costs associated with 
implementing a Reasonable and Prudent Alternative (RPA) if we find that 
an action is likely to destroy or adversely modify critical habitat. 
Given that we are only designating critical habitat in occupied areas, 
where an action agency would need to consult on any adverse effects to 
bull trout, and given our framework for conducting section 7 
consultations on bull trout and bull trout critical habitat, we 
anticipate that most projects that would result in destruction or 
adverse modification of critical habitat would also constitute jeopardy 
to the species. Thus, any costs associated with conducting 
consultations or implementing an RPA would be present with or without 
the critical habitat designation, and would not be correlated with the 
size of the designation.
    (60) Comment: The EA does not address impacts/costs to the Klamath 
Lake BOR project or to Agency Lake Ranch.
    Our Response: BOR staff were contacted and consulted on the 
likelihood of projects requiring section 7 consultation, as described 
in Section 4.2.4 for the final EA. When contacted, BOR staff in Klamath 
Falls stated that no significant consultation activity concerning bull 
trout was anticipated. As a result, the analysis assumes impacts are 
not reasonably foreseeable for a BOR project on Agency Lake Ranch.
    (61) Comment: Specific cost information related to fencing, well 
installation, maintenance, grass filter strip installation was not 
accurate in the EA. The comment letter provided specific costs on a per 
acre basis.
    Our Response: The DEA (Section 4.2.2, page 4-9 and Section 4.2.7, 
page 4-72) estimates the number of grazing-related consultations likely 
to take place in the future and then multiplies the consultations by 
per consultation estimates of fencing, monitoring, and water 
requirement costs. Whether the per acre costs presented in the comment 
fall within the range of per consultation costs estimated in the DEA is 
difficult to determine. The estimate in the DEA is drawn from a sample 
of historical consultations.
    (62) Comment: The EA underestimated costs in the upper Deschutes 
River basin because 95 percent of crops depend on irrigation.
    Our Response: The Upper Deschutes basin is currently unoccupied by 
the species. For effects to irrigated agriculture to occur, the Service 
would first have to reintroduce bull trout to this basin, consult with 
BOR on the

[[Page 56223]]

operation of the reservoir, and recommend reasonable and prudent 
measures that would reduce the available irrigation water. As discussed 
on page 4-28 of the report, this sequence of events is not reasonably 
foreseeable.
    (63) Comment: Comments made on the DEA for the Columbia/Klamath 
Rivers populations were not incorporated into the final EA.
    Our Response: We believe that the Final Economic Analysis 
adequately addresses all the comments provided during the public 
comment period that are consistent with the framework for the analysis 
described in Section 1.3 of the report. Specifically, impacts to 
families and small entities are addressed in Section 4.3; costs to 
irrigators, cities, industries, and other water users are addressed in 
Section 4.2; costs to hydropower customers are discussed in Section 
4.4.2; potential costs to recreational users are discussed in Section 
3.3.6; costs associated with flood damages are addressed in Section 
4.2.4; costs associated with water quality changes are addressed in 
paragraphs 16 and 211; costs due to regulatory uncertainty are captured 
in Section 4; values of potential lost irrigation water supplies are 
discussed in paragraphs 494 through 499; and employment and secondary 
impacts are discussed in paragraph 274.
    (64) Comment: The EA cited the existence of irrigated agricultural 
diversions and the need for fish screening of those diversions to 
prevent bull trout entrainment, however the EA did not extrapolate out 
screening costs. The EA acknowledged that fish screening costs are 
substantial, ranging between $2,000 and $5,000 per cfs the structure 
can divert.
    Our Response: The Service agrees that irrigators incur costs 
associated with fish screens. However, as described in footnote 110 of 
the FEA, ``* * * installation of diversion fish screen[s] is a baseline 
regulation within Idaho, Oregon, and Washington. That is, screens on 
agricultural diversions are already required under Idaho Code 36-
906(b).'' Because fish screens are required in Idaho, Oregon and 
Washington in the absence of the Endangered Species Act (ESA), these 
costs are not included in this analysis.
    (65) Comment: The economic impact to Baker County and the 
Regulatory Flexibility Act was ignored in the DEA and final EA.
    Our Response: In accordance with the Regulatory Flexibility Act, 
the Final Economic Analysis includes a quantitative screening analysis 
(see Section 4.3) that the Service used as the basis for its 
certification that a substantial number of small agricultural entities 
will not be significantly impacted by the proposed designation. Impacts 
to small farmers resulting from curtailed irrigation diversions are 
discussed specifically in Section 4.3.2.
    (66) Comment: The costs for fish passage and habitat restoration 
are associated with compliance of Sections 4(e) and 18 of the FPA. The 
costs for fish passage and restoration of habitat address the recovery 
of other native salmonids found in the aquatic system, such as 
westslope cutthroat trout and mountain whitefish. The cost for total 
dissolved gas abatement is associated with compliance with the Clean 
Water Act under the 401 Water Quality Certification and Section 4(e) of 
the FPA. It is not clear what the final terms of the relicensing of the 
Box Canyon Project will be. The project modifications and costs are not 
due to bull trout Section 7 consultation as no biological opinion (BO) 
has been done. It is unclear why Box Canyon Project was picked for a 
discussion of detailed project modification costs since this project 
has no modification costs related to Section 7 consultation or the 
designation of critical habitat.
    Our Response: FERC relicensing costs are discussed in Section 4.2.6 
in the Final Economic Analysis (paragraphs 416-452). Estimates of 
project modification costs for the FERC Environmental Impact Statement 
(EIS) on Box Canyon are summarized in paragraph 452 as an example of 
the uncertainty surrounding the estimate of FERC-related costs. The 
discussion is consistent with this view that passage modifications are 
not attributable to section 7 bull trout consultations.
    (67) Comment: The EA's estimate of conservation costs of $570 per 
acre for Dungeness Irrigation District is artificially low. The costs 
for revision or addition of fish passage facilities at those federal 
dams would be passed on to irrigation contractors through the United 
States Bureau of Reclamation.
    Our Response: Following the framework described in on pages 1-11 
and 1-12, the FEA considers the costs of proposed or reasonably 
foreseeable HCPs. In Section 4.1.2, the FEA identifies two HCPs that 
were currently under development at the writing of the analysis, and 
projects the costs of future based on the historical costs of 
developing these plans. HCPs are not reasonably foreseeable in the 
irrigation districts providing comment. However, the FEA accounts for 
HCP costs at unspecified locations for the 10-year time period of the 
analysis (see paragraph 359).

Unit Specific Comments

Unit 1: Klamath River Basin
    (68) Comment: No critical habitat in Agency Lake was requested 
because of limited to no occurrences or use by bull trout.
    Our Response: Historically, bull trout are known to have been 
distributed in several streams along the west side of Agency Lake 
(Cherry Creek, Threemile Creek, and Sevenmile Creek) and in the Wood 
River system (Sun, Annie, and Fort Creeks). Given the proximity of 
habitat and local populations and the predatory and migratory nature of 
the species, it is likely that bull trout utilized Agency Lake, at 
least seasonally, as feeding, migrating, and overwintering habitat, 
however, we are not able to document bull trout use in the last 20 
years and have not included Agency Lake in this designation.
Unit 4: Willamette River Basin
    See Comments from States (Oregon) section below.
Unit 6: Deschutes River Basin
    (69) Comment: The Service properly chose not to designate the 
Crooked River as critical habitat because it is unoccupied and was not 
essential to the conservation of the species, that designation could 
also cause harm to ongoing conservation efforts, and that the benefits 
of excluding this area outweigh the benefits of including it.
    Our Response: We have limited the critical habitat designation to 
areas of known occupancy (defined by documented occurrence within the 
last 20 years) that have features essential to the conservation of the 
species because we did not have sufficient data for the Secretary to 
make a determination that specific unoccupied areas were essential to 
the bull trout's conservation. We have determined that the 
approximately 14 mile-long section of the Crooked River downstream of 
the Highway 97 bridge to the Opal Springs Dam is occupied and contains 
many of the features essential to the conservation of the bull trout. 
The volume of cold water spring flows that enter the Crooked River 
downstream of the Highway 97 bridge crossing decreases stream 
temperatures enough to make this section of the Crooked River suitable 
for foraging bull trout even during the summer months. The additional 
habitat in the Crooked River also allows bull trout in Lake Billy 
Chinook to forage.
    (70) Comment: There are many plans in the Deschutes River basin 
that provide special management and protections for bull trout (list of 
plans provided).

[[Page 56224]]

    Our Response: The Service has reviewed information regarding 
numerous plans in the Deschutes River basin including the Middle 
Deschutes/Lower Crooked River Wild and Scenic Management Plan, the 
Lower Deschutes River Wild and Scenic River Management plans, the 
Aquatic Conservation Strategy of the Northwest Forest Plan, PACFISH, 
INFISH, and the Deschutes River Subbasin Plan. For each plan we 
assessed the protections of the plan as compared with the protections 
of critical habitat and weighed the benefits of inclusion versus the 
benefits of exclusion. For those plans where the benefits of exclusion 
outweighed the benefits of designating critical habitat we excluded 
those lands from the final designation (see Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) section below).
Unit 8: John Day River Basin
    (71) Comment: Critical habitat should be removed on the mainstem 
John Day River below 4,500 ft elevation because the mainstem John Day 
River below this elevation does not have the appropriate water 
temperatures for bull trout.
    Our Response: The Service acknowledges that the current 
distribution of bull trout in the John Day River basin is fragmented 
and that water temperature is a limiting factor in the lower portion of 
the river outside of peak runoff periods (late winter and spring). Bull 
trout distribution occurs primarily in the headwaters of the Upper 
Mainstem, North Fork and Middle Fork John Day River tributaries, with 
seasonal use of the entire North Fork John Day River. However, in 2000, 
the Oregon Department of Fish and Wildlife captured eleven subadult 
bull trout in the mainstem John Day River near the town of Spray, 
Oregon (1,802 ft elevation), while seining for juvenile Chinook salmon. 
Two of the fish were implanted with radio-tags and both were 
subsequently tracked into the North Fork John Day River. This suggests 
that subadult migrations do seasonally occur within lower river 
segments of the Upper Mainstem, North Fork, and Middle Fork John Day 
River. Within the John Day Subbasin, historic bull trout distribution 
likely included seasonal use of the entire mainstem and larger 
tributaries. Bull trout from the John Day Subbasin were known to 
migrate to and from the Columbia River (Buchanan et al. 1997). 
Historical records indicate presence of bull trout in Dads Creek, Dixie 
Creek, Pine Creek, Canyon Creek, Laycock Creek, and Beech Creek 
(Buchanan et al. 1997) all below 1,800 ft in elevation. The lower 
segments of the John Day Basin currently have many PCEs, including 
permanent water with low levels of contaminants, stream temperatures 
from 36[deg] to 59[deg] F (2[deg] to 15[deg] C), complex stream 
channels, and an abundant food base. Lower segments of the John Day 
River are typically suitable for bull trout use during peak runoff 
periods in late winter and spring when water temperatures range from 
36[deg] to 59[deg] F (2[deg] to 15[deg] C). During those periods, these 
streams contain the necessary features essential to the conservation of 
the bull trout because they serve as migratory corridors that connect 
local populations in the basin. Such connections are particularly 
critical in the John Day River Basin because the existing local 
populations are small and highly vulnerable to localized extirpation. 
The most viable way to avoid extinction in these areas is to maintain 
seasonal habitat connections so that the movement of fish between them 
can sustain or periodically re-establish these small populations. We 
recognize the apparent difficulty in designating critical habitat where 
the presence of the PCEs is sporadic. To avoid future 
misinterpretations of the effect of this designation where PCEs occur 
as a result of current ongoing federal management, we have included 
that management in the baseline for future section 7 consultations.
Unit 9: Umatilla/Walla Walla River Basin
    (72) Comment: There are many examples of additional special 
management and protections governing habitat utilized by bull trout on 
BLM-managed lands including the South Fork of the Walla Walla River 
ACEC, which is an amendment to the Resource Management Plan (RMP) for 
the Baker Resource Area of the Vale District. The amended plan was 
signed in February 1992, creating an ACEC of 1,273 acres within the 
South Fork of the Walla Walla River watershed. The river provides high 
quality spawning and rearing habitat for bull trout. The decision 
included: (1) No surface occupancy stipulation for oil and gas leasing; 
(2) prohibition against development of mineral resources within the 
ACEC boundary unless needed on an emergency basis to protect ACEC 
values; (3) prohibition against issuance of grazing leases; (4) no fire 
salvage will occur unless it meets the goal of ACEC management; and (5) 
reduction by 99% of the permitted amount of timber removed on the 120 
acres of commercial timberland economically operable within the ACEC.
    Our Response: We agree that the designation in 1992 of the South 
Fork Walla Walla River as an Area of Critical Environmental Concern 
added habitat protections that benefit bull trout. The ACEC management 
actions in the plan amendment, particularly the livestock grazing 
restrictions and measures to limit and control recreational motor 
vehicle traffic along the river, are actions that have improved bull 
trout habitat along the approximately two miles of river that cross BLM 
land. As a result we have determined this lads do not meet the 
definition of ``in need of special management or protection'' in order 
to be designated as critical habitat.
Unit 10: Grande Ronde River Basin
    (73) Comment: Wright Slough (Grande Ronde River Basin) has been 
designated as critical habitat and should not have been. It now has 
restrictions on it that are impacting agricultural use of the land.
    Our Response: Wright Slough, a tributary of the Grande Ronde River, 
was not designated as critical habitat for bull trout in the previous 
final rule and is not being designated in this rule. The mainstem 
Grande Ronde River immediately above and below where Wright Slough 
enters the river is designated as bull trout critical habitat. The 
State of Oregon has designated Wright Slough as ``essential salmonid 
habitat'', which may have been confused with bull trout critical 
habitat. Critical habitat does not create a preserve and does not, by 
itself, place restrictions on agricultural land use. If, through 
section 7 consultation, a proposed Federal action was found to destroy 
or adversely modify critical habitat, then a reasonable and prudent 
alternative may result in restrictions on agricultural use. We have not 
issued any adverse modification biological opinions on bull trout 
critical habitat and therefore have not imposed any restrictions on 
agricultural use of lands in Wright Slough through designation of 
critical habitat.
    (74) Comment: It is not appropriate to designate critical habitat 
in the Powder River Basin in areas located below 4,500 ft elevation to 
prevent extinction of bull trout because these low elevation streams do 
not have appropriate water temperatures.
    Our Response: We acknowledge that temperatures in the lower 
portions of the Powder River Basin are likely only suitable for bull 
trout use during peak runoff periods in late winter and spring. During 
these times, lower elevation areas contain the features that are 
essential to bull trout conservation. These areas are important because 
they

[[Page 56225]]

serve as migratory corridors that connect local populations in the 
basin. Such connections are particularly critical in the Powder Basin 
because the existing local populations are small and highly vulnerable 
to localized extirpation. The most viable way to avoid extirpation in 
these areas is to maintain seasonal habitat connections so that the 
movement of fish between them can sustain or periodically re-establish 
these small populations. We have also indicated that current federal 
management is included in the baseline so as to ensure that existing 
PCEs--in this case migrating corridors are maintained without implying 
that other PCEs are present or require special management or 
protections.
    (75) Comment: The previously designated stream segments in the 
Powder River Basin below the Wallowa-Whitman National Forest boundary 
are not essential for conservation of bull trout, because: (1) The 
presence of brook trout downstream of most known bull trout populations 
and the large number of existing physical barriers in low-elevation 
stream sections preclude genetic exchange between local populations and 
attempts to provide connectivity will result in increased 
hybridization; (2) given the physical and biological barriers, it would 
be advisable to keep resident bull trout populations in the upper 
tributaries to prevent brook trout hybridization; (3) the listed 
segments lack almost all of the identified PCEs and, in fact, dry up or 
go subsurface for much of the year; and (4) with the single exception 
of Big Muddy Creek, all observations of bull trout have been above the 
National Forest boundary, thus the stream sections below the boundary 
are unoccupied.
    Our Response: It is true that many of the Powder River tributaries 
contain impediments to bull trout movement, particularly those that 
flow through the Baker Valley, where the stream channels and stream 
flows have been altered for many years to support agricultural 
production. We also concur that brook trout hybridization is a problem 
in this area. Nevertheless, the designated tributary streams are deemed 
essential for bull trout conservation for the following reasons: (1) 
These streams are occupied and contain PCEs; (2) given the small size 
of the local populations, which appear to be currently confined to 
upper elevation headwaters, it is highly unlikely that they will 
persist in isolation, thus the long-term viability of this core area is 
dependent on the ability of bull trout to move between populations; and 
(3) the impediments to seasonal fish movement in these streams are 
mostly human-caused and could feasibly be corrected. The lower reaches 
of these streams can function as effective movement corridors even if 
only during high runoff periods; their designation as critical habitat 
does not imply that they need to be maintained as suitable habitat 
year-round. Therefore, we have designated critical habitat in these 
areas. In addition our inclusion of present operations in the baseline 
is designed to recognize the particular contributions of the area to 
bull trout conservation without overstating them.
    (76) Comment: We believe that fish survey data from the Powder 
River Basin has been misused because: (1) No accepted, scientific 
protocol was used for many of the surveys; (2) some of the fish counts 
were erroneous and contained inaccurate information; (3) some purported 
sightings and inferences about habitat use were not supported by 
scientific data; (4) credible evidence provided by local citizens, 
indicating that bull trout were introduced in the early 1900s into 
upper tributaries of the Powder River, was ignored or disregarded.
    Our Response: It is our intent to use only accurate information 
about species' occurrences when identifying critical habitat. To 
address the concerns that were raised about data from the Powder River 
Basin, we conducted a review of all the survey data and anecdotal 
information we have received on bull trout locations in this area. The 
sources and documentation associated with these data have been re-
checked and verified to the extent possible. Some of the bull trout 
sighting information comes from informal surveys that did not follow 
standardized survey protocols because surveys were done before formal 
survey protocols existed and in other situations ``spot check'' type 
surveys were done because the resource agency lacked sufficient 
resources to conduct more rigorous surveys. It would not be appropriate 
to disregard positive sightings just because the survey method was 
informal. The key credibility factor is the fish identification skills 
of the person making the observation. Also of major importance is the 
type of observation (i.e., was the fish in hand or just seen swimming 
by).
    In our review of existing data, we excluded from consideration 
sightings that did not meet the following two criteria: (1) The 
sighting was made by a biologist or technician that was trained and 
experienced in bull trout identification, and (2) the identification 
was made based on close examination of a fish in hand. We cannot verify 
the assertion that bull trout were introduced by man to the upper 
Powder River Basin and thus are not native to the area. We are not 
ignoring or disregarding the reports that suggest bull trout may have 
been planted in some streams in the Elkhorn Mountains in the early 
1900s. It is just not possible to verify those reports or to conclude 
from them that bull trout did not exist in the area prior to those 
introductions. Documented information on the historic distribution of 
bull trout in other nearby Snake River tributaries is compelling 
evidence that they are likely native inhabitants of the Powder River.
    (77) Comment: Data on reported bull trout sightings in Rock Creek 
and Pine Creek are not scientifically valid.
    Our Response: A bull trout/brook trout hybrid was reported in 
surveys of Rock Creek conducted by ODFW in 1994. Tissue samples were 
not collected so positive identification of this fish as a hybrid or 
pure bull or brook trout is not possible. Follow-up surveys conducted 
by the USFS did not detect any bull trout in Rock Creek, but surveyors 
did not search the upper portions of Rock Creek and North Fork Rock 
Creek, nor did they search about 0.7 mile of creek below Eilertson 
Meadow. Reaching the conclusion that bull trout are absent from this 
creek will require regular, repeated surveys using the same protocol. 
Bull trout have been observed, by professional fish biologists, in Pine 
Creek and Salmon Creek. Memoranda from Mark Lacy in 1995 (a BLM Fish 
Biologist at the time) and Jackie Dougan (then a USFS Fish Biologist) 
to Jeff Zakel (ODFW) provide information on bull trout sightings in 
these drainages in 1994-1995. Therefore, we have designated critical 
habitat in these areas.
    (78) Comment: Special management considerations are already 
provided through the Powder Basin Subbasin Plan and the Powder/Brownlee 
Agricultural Water Quality Management Area Plan.
    Our Response: We have conducted a thorough analysis of the Powder 
Basin Subbasin Plan and the Powder/Brownlee Agricultural Water Quality 
Management Area Plan to determine if the benefits of excluding areas 
covered by these plans from critical habitat outweigh the benefits of 
including them. We have determined that this plan does not provide a 
direct conservation benefit to bull trout or any certainty that it will 
be implemented. Therefore, we have not used these plans as a basis for 
exclusion.

[[Page 56226]]

Unit 13: Malheur River Basin
    (79) Comment: Do not exclude the Malheur Basin because the Forest 
Service has not fully implemented INFISH and has failed to effectively 
modify and suspend its authorized grazing practices required under 
INFISH. The matrix of pathways and indicators included in the Forest 
Service 1999 biological assessment documented ratings of 
``functioning'' and fail to meet standards. The grazing program on the 
Malheur National Forest is maintaining degraded baseline conditions 
according to a 2004 Service biological opinion. In addition, grazing 
effects on the Malheur River are likely to restrict bull trout range 
expansion or at least slow recovery efforts substantially. Information 
provided by the U.S. Forest Service did document maintenance of a 
degraded condition for certain indicators. The Forest Service rated 
grazing allotments as maintaining the current conditions with the 
expectation that they would meet the requirement of a near natural rate 
of recovery if the allotments were grazed according to standards. This 
and other information provided by the Forest Service helped form the 
basis for the Service's biological opinions referenced by the 
commenter. The Service has expressed concerns in the past with grazing 
effects to bull trout on the Malheur National Forest and is working 
closely with the Forest Service to help decrease impacts to bull trout 
and their habitats due to grazing activities.
    Response: The Malheur National Forest recently completed its 2004 
grazing monitoring report which provided information and summaries/
explanations of data analyzed, collected, or submitted during the 2004 
field season. The Forest Service also provided documentation to satisfy 
the reasonable and prudent measures contained in the Service's 2004 
biological opinions by summarizing information collected in 2004. The 
Forest Service recommends potential management strategies for the 2005 
Annual Operating Instructions that are consistent with PACFISH and 
INFISH. A critical habitat designation will not result in improvement 
of the conditions in the areas designated in and of itself. Critical 
habitat designation can only prevent erosion of the baseline levels of 
the PCEs. Forest Service management under INFISH actually takes 
positive steps to improve conditions in the aquatic habitat. The Forest 
Service expects that these strategies will move riparian and stream 
conditions towards desired conditions. The Service will continue to 
work with the Forest Service, and assist them in development and 
implementation of appropriate and effective monitoring strategies. In 
addition, we have determined that the Malheur National Forest 
management plan as currently implemented provides at least the same 
special management and protection as a critical habitat designation and 
goes beyond what a critical habitat designation provides by enhancing 
and restoring habitat. We have determined under Forest Service 
management that the Malheur National Forest does not meet the 
definition of critical habitat in 3(5)(a) and we have excluded the 
Malheur National Forest from critical habitat because the benefits of 
excluding areas covered under PACFISH and INFISH outweighed the 
benefits of inclusion (see Section 3(5)(A) and Exclusions Under Section 
4(b)(2) section below).
Unit 16: Salmon River Basin
    (80) Comment: Not all bull trout habitat in the Salmon River basin 
should be critical habitat.
    Our Response: Not all bull trout habitat in the Salmon River basin 
has been proposed or designated as critical habitat. Numerous streams 
were not proposed for designation for any, or a combination of, the 
following reasons: (1) Bull trout are not known to be present; (2) the 
habitat has low or no potential for bull trout occupation (low 
elevation, inherently warm water, not historically occupied, etc.); (3) 
the habitat does not currently contain, or have the potential to 
contain, one or more PCEs; and (4) the habitat was deemed not necessary 
to meet draft recovery plan objectives (i.e., non-essential potential 
populations).
    Of those streams that were proposed as critical habitat, not all 
were designated. Areas covered under PACFISH, INFISH, and the Snake 
River Basin Adjudication were excluded (see Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) section below).
    (81) Comment: Salmon River bull trout are very healthy and not at 
risk.
    Our Response: While it is true that Salmon River bull trout 
populations are relatively healthy, they are located in areas that 
contain the features essential to the conservation of bull trout. Areas 
that are already adequately protected by other management plans, and 
where the benefits of excluding areas from critical habitat outweigh 
the benefits of inclusion, exclusions have been applied (see Section 
3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (82) Comment: Bull trout are rare in Jordan Creek of the Upper 
Salmon River and critical habitat should not be designated there.
    Our Response: We did not exclude areas based on rarity of bull 
trout. The 2002 critical habitat proposal included stream segments 
known to be occupied. In our analyses of the species for the draft 
recovery plan and proposed critical habitat for bull trout, we 
determined that it is necessary to maintain as many currently occupied 
areas as possible to facilitate recovery of the species. Jordan Creek 
supports a local population of bull trout. It is likely that the local 
population occurring in Jordan Creek was historically, and is 
currently, supported by migratory bull trout from the Yankee Fork and 
larger streams, although monitoring has not yet observed this life 
history strategy. Lower Jordan Creek is important for providing 
connectivity between the bull trout local population above the mine and 
larger area of overwintering habitat below. Local populations not 
connected by migratory fish are believed to be at a substantially 
greater risk of extirpation.
Unit 17: Southwest Idaho River Basins
    (83) Comment: Exclude Boise, Payette, and Weiser river basins for 
economic and social reasons in addition to exclusions based on the 
Snake River Basin Adjudication plan.
    Our Response: In our 2002 proposed critical habitat rule we 
proposed approximately 2,792 km (1,735 mi) of streams in the Boise, 
Payette, and Weiser river basins. The economic analysis did not 
identify costs justifying an economic exclusion with the Snake River 
basin. Section 4(b)(2) of the Act allows us to consider the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. Therefore, the 
Secretary of Interior has excluded the area covered by the Snake River 
Basin Adjudication plan based on collaborative partnerships that have 
resulted in a settlement agreement benefiting bull trout conservation 
and where the benefits of excluding these areas outweigh the benefits 
of including them in the designation (Exclusions Under Section 4(b)(2) 
section below). The Secretary received inadequate information to make a 
determination that the economic and social benefits of exclusion 
outweighed the benefits of the designation.
    (84) Comment: Many areas in Southwest Idaho do not have sufficient 
PCEs.
    Our Response: The 2002 proposed critical habitat rule was developed 
based on the best available information at that time. In order for a 
stream to be proposed as critical habitat, it must have sufficient PCEs 
to sustain at least one

[[Page 56227]]

essential life process of the species. However, a stream did not have 
to contain all PCEs to be proposed as critical habitat. In fact, many 
streams in southwest Idaho do not have all of the PCEs, but do have 
sufficient PCEs for bull trout to meet this standard. Streams that did 
not contain the necessary habitat for bull trout (e.g., including one 
or more primary constituent elements), and streams inherently incapable 
of becoming bull trout habitat were not proposed for designation. Those 
streams that were included will have existing conditions included in 
the baseline for future section 7 consultations.
Unit 19: Lower Columbia River Basin
    (85) Comment: Describe the validity of Cougar Creek, a tributary to 
Yale Reservoir in the Lewis River critical habitat sub-unit (CHSU), as 
part of the critical habitat designation.
    Our Response: The Settlement Agreement Concerning the Relicensing 
of the Lewis River Lewis River Hydroelectric Projects (Agreement) 
includes a perpetual conservation easement on PacifiCorp's lands in the 
Cougar/Panamaker Creek area. The measures included in the conservation 
easement and the settlement agreement provide a high level of 
conservation benefit to the bull trout PCEs in Cougar Creek. We have 
determined that lands covered under conservation easements and the 
Agreement should be excluded from the designation of critical habitat 
because the benefits of excluding them outweigh the benefits to the 
species by including them in the designation. Please refer to our 
discussion concerning the exclusion of Lewis River Hydroelectric 
Projects Conservation Easements in the Section 3(5)(a) and Exclusions 
under Section 4(b)(2) of the Act section below.
    (86) Comment: Rush Creek in the Lewis River CHSU should be included 
in critical habitat even though it is covered by the Northwest Forest 
Plan.
    Our Response: All National Forest lands covered by the Aquatic 
Conservation Strategy of the Northwest Forest Plan have been excluded 
from the final designation because the Secretary determined that the 
lands did not meet the definition of critical habitat and the benefits 
of exclusion outweighed the benefits of inclusion (see Section 3(5)(A) 
and Exclusions Under Section 4(b)(2) section below).
Unit 21: Upper Columbia River
    (87) Comment: Special management activities within Priest Rapids 
project should be excluded.
    Our Response: The Service has considered the special management 
activities within the Priest Rapids project area for this rule. 
Currently there is no biological opinion for bull trout or a settlement 
agreement in place addressing the PCEs for bull trout for the Priest 
Rapids Dam project area, and the PCEs for bull trout are not addressed 
by any other current management activities. The NOAA Fisheries 
biological opinion only covers salmon species. Although some habitat 
characteristics are similar for salmon species and bull trout, the PCEs 
have several differences. The Service Interim Guidelines for bull trout 
list some of these differences, which include the following: Fish 
passage and performance measures for salmon are not the same as they 
are for bull trout; bull trout exist year round in the area and are 
more closely associated with stream substrates; and, they also require 
a prey base year round. However, since the area does contain PCEs under 
current ongoing management, that management will be considered part of 
the baseline in future section 7 consultations.
    (88) Comment: Additional consultation requirements for critical 
habitat negatively affect Grant County by increasing workload.
    Our Response: Because all areas in this designation are considered 
occupied, section 7 consultation for the bull trout would be required 
in all cases where consultation on bull trout critical habitat would be 
required. The Service has data documenting bull trout occurrence 
throughout many areas of the mainstem Columbia River, particularly 
between Priest Rapids pool and the Okanogan River. Fish from the Upper 
Columbia River Recovery Unit have been documented using this area to 
fulfill critical elements of their life cycle. A review of the amount 
of work associated with the incremental costs of completing 
consultations on bull trout critical habitat revealed that it was 
relatively minor.
    (89) Comment: Wells, Rocky Reach, Rock Island, and Comprehensive 
Bull Trout Monitoring and Management Plans (WBTMP, RRBTMP, RIBTMP, 
CBTMP), as well as the Anadromous Fish Agreement, Rocky Reach, Rock 
Island, and Douglas PUD Wells Hydro Project HCPs provide needed 
benefits to bull trout and their PCEs and should be excluded from 
critical habitat.
    Our Response: The Service has considered these plans in our 
evaluation of critical habitat. The biological opinion and 
comprehensive BTMPS do not fully cover all PCEs nor do they address all 
recovery tasks or issues for bull trout in the upper mid-Columbia area. 
The BTMPs are limited to the requirements of the biological opinion and 
it is unclear if other PCEs will be addressed. The specific studies are 
designed to be implemented with specific timeframes which generally 
will be implemented every 10 years through the life of the plan (50 
years). The goals of the Protection, Mitigation, and Enhancement 
measures in the BTMPs are to identify, develop, and implement measures 
to monitor and address ongoing impacts to bull trout resulting from 
project operations. The BTMPs incorporate ``Reasonable and Prudent 
Measures'' which are required by the Service Biological Opinion for the 
Rock Island, Rocky Reach, and Wells hydroelectric project operation. 
These measures will address the ``complex stream channels (PCE 
<greek-i>3) and ``migratory corridors'' (PCE <greek-i>7) for bull 
trout. The Service biological opinion states that other PCE's are 
expected to be maintained or enhanced, but at this time it is unclear 
where or when any of the habitat restoration projects for the tributary 
enhancement provisions will occur. Therefore, we do not believe that 
these plans are an appropriate basis for exclusion.
Unit 22: Northeast Washington
    (90) Comment: The critical habitat designation is inconsistent with 
the inclusion of Box Canyon Reservoir.
    Our Response: The Service acknowledges that the reservoir exclusion 
in the previous final rule was not applied consistently. In this final 
rule we are excluding all reservoirs that provide a flood control, 
water supply function, or energy generation. Although the Box Canyon 
Reservoir does not meet this criteria, it is being excluded because it 
is within the Federal Columbia River Power System (FCRPS) action area 
(see Section 3(5)(a) and Exclusions under Section 4(b)(2) section 
below).
    (91) Comment: The Service needs to add the proposed critical 
habitat areas of the Northeast Washington Unit back in the designation.
    Our Response: We have evaluated which areas meet the definition of 
critical habitat for bull trout and excluded areas where we have 
determined that the benefits of excluding those areas outweigh the 
benefits of including them as critical habitat (see Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) section below).
Unit 26: Jarbidge River
    (92) Comment: Maintaining connectivity is important for the 
Jarbidge River population and it is not

[[Page 56228]]

clear if connectivity is included in the PCEs for this population.
    Our Response: We agree that migratory corridors are important and 
provide connectivity among local populations and access between 
spawning, overwintering, and foraging habitats within the Jarbidge 
River population area. The Jarbidge River bull trout population has 
been isolated from other bull trout populations by dams and diversion 
structures for over 100 years (Gilbert and Evermann 1894). The distance 
between occupied habitats in the Jarbidge River and Columbia River 
populations is approximately 150 river miles (rmi) (240 river 
kilometers (rkm)). Critical habitat was not proposed for these areas of 
unknown bull trout occupancy.
    (93) Comment: Salmon Falls Creek, Idaho should be designated as 
critical habitat for the Jarbidge River bull trout population.
    Our Response: Salmon Falls Creek is not occupied by bull trout, and 
therefore under the Act, it cannot be designated as critical habitat 
unless it is essential for the conservation of the species. Salmon 
Falls Creek is a tributary to the Snake River in Idaho. It historically 
provided spawning and rearing habitat for anadromous fish, including 
Chinook salmon (Oncorhynchus tshawytscha) and steelhead. Since Salmon 
Falls Creek Dam was constructed in 1910, the lower 30 mi (48 km) of the 
stream have been significantly altered by upstream reservoir storage 
and water diversions. Migration barriers, water diversions, high water 
temperatures, sedimentation, and nonnative fish introductions are 
likely contributing factors to the loss of anadromous fish species in 
this watershed. This watershed is outside the boundary of the 
geographical area occupied by the Jarbidge River bull trout population, 
and bull trout from the listed Jarbidge River population do not have 
access to Salmon Falls Creek due to a number of intervening dams and 
diversion structures. Due to poor bull trout habitat quality and 
inaccessibility it is not essential for the conservation of the 
Jarbidge River population, and is not included in the designation.
    (94) Comment: Buck Creek, a tributary to the West Fork of the 
Jarbidge River, should be added to critical habitat designated for the 
Jarbidge River population because it is similar to adjacent known 
occupied bull trout streams and could support multiple life history 
requirements of bull trout.
    Our Response: Bull trout have not been documented in Buck Creek or 
its tributaries during infrequent surveys (G. Johnson, Nevada 
Department of Wildlife, in litt 1993a, b; G. Johnson, NDOW, pers. comm. 
2003). We are currently unable to determine that Buck Creek is 
essential to the conservation of the species based on its undocumented 
use by bull trout and potentially disconnected reaches of suitable 
habitat. Because we cannot be certain that this habitat would ever be 
occupied by bull trout, the Secretary could not make a determination 
that is essential to the conservation of the species, and thus did not 
designate it as critical habitat.
    (95) Comment: Critical habitat should include the entire hydrologic 
watershed for the East/West Forks of Jarbidge River, Jarbidge River, 
and Bruneau River.
    Our Response: We acknowledged in the proposed rule that upstream 
habitat, as well as adjacent terrestrial habitat, can influence the 
quality of aquatic habitat downstream. Although the East and West Forks 
of the Jarbidge River, as well as the mainstem river, are occupied bull 
trout habitats containing features essential to the conservation of the 
species we have excluded these areas from the designation after 
carefully weighing the benefits of inclusion versus the benefits of 
exclusion (see Section 3(5)(a) and Exclusions under Section 4(b)(2) 
section below).
    Although the Bruneau River has been identified as bull trout 
habitat in some publications (Conley 1993; Lee et al. 1997), there are 
no records documenting bull trout use. Bull trout may have migrated 
from the Snake River through the lower Bruneau River and into the 
Jarbidge River for spawning, similar to Chinook salmon. Bull trout from 
the Jarbidge River have access to the Bruneau River, and we support 
implementing research to detect seasonal use of the Bruneau River by 
bull trout. Research could clarify the importance of the habitat to 
potential numbers of large migratory bull trout if the Jarbidge River 
population expands.
Unit 27: Olympic Peninsula
    (96) Comment: The Quinault River consists of surface water from 
Lake Quinault and thus has an unsuitable temperature profile for bull 
trout. It is also part of the Quinault Indian Nation lands; therefore, 
it should not be designated as critical habitat.
    Our Response: Temperatures in the Quinault River are influenced by 
temperatures in Lake Quinault, and during certain times of the year 
those temperatures likely exceed optimum temperatures for bull trout. 
Temperatures are naturally warm in the summer in the Quinault River 
below Lake Quinault. Bull trout have been documented in tributaries to 
the lower Quinault River and in the river itself. Water temperatures in 
the river change in response to the season (colder in winter, warmer in 
summer). Bull trout seasonally use the river when temperatures are 
cooler. Also, the river contains a prey base for the bull trout. We do 
not expect the water temperature profile to change in the future and 
expect that bull trout will continue to use the river. The nearshore 
land adjacent to the lake affects water quality in the lake. Only a 
small portion of the shoreline and habitat that affects the lake is 
within the Quinault Indian Reservation. The portion of the nearshore 
that is within the reservation, and included in the Quinault Forest 
Management Plan, is excluded from critical habitat.
    (97) Comment: The Quinault River downstream of Lake Quinault does 
not require special management and therefore should be excluded.
    Our Response: That area is addressed in the Quinault Indian 
Reservation's Forest Management Plan and is excluded from the Quinault 
River downstream of Lake Quinault.
    (98) Comment: Cook Creek is poor habitat and inappropriate as 
critical habitat.
    Our Response: Cook Creek has documented bull trout occurrence. The 
habitat quality is rated as ``fair to good'' by an analysis of limiting 
factors for the Quinault River watershed (WSCC 2001). Monthly 
temperature data indicate that stream temperatures are within the 
temperature range given in PCE 1 (see Primary Constituent Elements 
section below) and are suitable for bull trout most of the year. The 
summer temperatures in the creek are colder than in the river, and Cook 
Creek likely provides important cold water refuge during the summer 
months, as well as forage during certain periods of the year. The 
portion of Cook Creek, from its mouth to approximately rmi 4.8 (rkm 
7.7), is addressed in the Forest Management Plan for the Quinault 
Indian Reservation and excluded from designated critical habitat.
    (99) Comment: The Raft River and other coastal streams need further 
evaluation before being designated as critical habitat.
    Our Response: The Raft River and other coastal streams have 
documented foraging and overwintering habitat, features essential for 
bull trout conservation. Although these streams and rivers do not 
support spawning bull trout populations, they seasonally do provide 
foraging and overwintering habitat for bull trout that spawn in other 
coastal rivers. The portion of the Raft River included in the Quinault 
Indian Reservation Forest Management Plan is

[[Page 56229]]

excluded from designated critical habitat.
    (100) Comment: The proposed rule states that the Quinault Tribe 
owns less than 1 percent of proposed critical habitat and this 
underrepresents actual ownership.
    Our Response: After further review, our Geographic Information 
System (GIS) indicates that the Quinault tribal ownership is 2.7 
percent of the proposed critical habitat designation for the Coastal-
Puget Sound bull trout population.
    (101) Comment: Certain beach areas should be excluded because they 
are owned by the Quinault Indian Nation.
    Our Response: There are areas in nearshore marine waters adjacent 
to beach areas owned by the Quinault Indian Nation that have features 
essential to bull trout conservation. However, these beach areas are 
not addressed in the Quinault Indian Reservation Forest Management 
Plan. These nearshore marine waters may be affected by activities such 
as development, bank armoring, bulkheading, or dredging occurring in or 
near the beach and shoreline areas. Therefore, these areas require 
special management considerations or protections to ensure any proposed 
Federal actions do not destroy or adversely modify the critical 
habitat, and thus are designated as critical habitat.
    (102) Comment: The Skokomish Tribe's lands, and other tribally 
owned lands in that vicinity, do not provide important contributions to 
critical habitat because they are below 500 feet (ft) (152 meters (m)) 
elevation in areas where there is no spawning and rearing habitat.
    Our Response: The portion of the Skokomish River within the 
Skokomish Reservation boundaries is below 500 ft (152 m) elevation. 
However, this area and other tribal lands below 500 ft (152 m) in 
elevation provide important foraging, migratory, and overwintering 
habitat for bull trout. These habitats contain the features essential 
to the species' conservation, especially the fluvial and amphidromous 
life history forms. However, this portion of the Skokomish River is 
excluded from designated critical habitat based on the Skokomish 
Tribe's conservation program. Portions of waterbodies within or 
adjacent to Swinomish, Muckleshoot, Jamestown S'Klallam, Hoh, Skokomish 
and Quinault tribal lands are also excluded (see Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) section below).
    (103) Comment: Additional Hood Canal nearshore habitat should be 
included in the designation.
    Our Response: Critical habitat is designated on the south and west 
shores of Hood Canal based on the presence of PCEs, availability of 
forage fish, and the proximity to streams known to be occupied by bull 
trout. We have no information suggesting that bull trout use streams 
draining into the eastern shore of Hood Canal. Therefore, we have not 
designated critical habitat along the eastern shore.
    (104) Comment: The Skokomish Tribe has adequate management in 
place, or in preparation, that precludes the need to designate critical 
habitat.
    Our Response: The Skokomish Tribe has a conservation program that 
provides aquatic resource protection and restoration through a number 
of collaborative efforts on the reservation and other trust lands. As a 
result, we are excluding from this critical habitat designation those 
portions of the Skokomish River, Nalley Slough, Skobob Creek, and Hood 
Canal nearshore within the Skokomish Indian Reservation.
    (105) Comment: The U.S. Navy (Navy) believes that the area proposed 
for extending the Naval Undersea Warfare Center, Division Keyport (NUWC 
Keyport) should be excluded based on planned section 7 consultations.
    Our Response: We do not exclude areas based on future section 7 
consultations. However, NUWC Keyport has an approved INRMP that 
provides a benefit to the species for which critical habitat is 
proposed for designation. Therefore it has not been included in the 
final critical habitat designation, per section 4(a)(3) of the Act (see 
Non-inclusions under Section 4(a)(3) section below).
    (106) Comment: The Wynoochee, Satsop, and Canyon Rivers are not 
appropriate critical habitat.
    Our Response: This designation is based on the best scientific and 
commercial information available and only includes habitat where bull 
trout have been documented and which contains features essential to 
bull trout conservation. Bull trout often migrate long distances from 
their natal streams to find suitable foraging or overwintering habitat. 
Streams that are not known to contain spawning bull trout populations 
were included in critical habitat when they provide documented 
foraging, migratory, and overwintering habitat for bull trout. Although 
not known as spawning streams, the Wynoochee, Satsop, and Canyon Rivers 
contain PCEs of critical habitat and bull trout use these areas for 
foraging, migrating, and overwintering. Therefore, we have included 
these areas in the designation.
    (107) Comment: The Navy believes that training and testing areas, 
including Crescent Harbor, Hood Canal, and Dabob Bay, should be 
excluded from critical habitat.
    Our Response: The area of Hood Canal, outside of Dabob Bay, where 
the Navy conducts activities, is not within or adjacent to proposed 
critical habitat and is not included in final critical habitat. The 
Navy conducts training and testing within the marine waters of Crescent 
Harbor and Dabob Bay. Because these activities are conducted in open 
marine waters, they are not included in the military's INRMPs. However, 
limitations on access to, the use of, or the enhancement of the 
existing capabilities and capacities of these ranges would limit or 
curtail both testing and fleet support functions performed by NUWC 
Keyport for undersea warfare.
    These areas have been defined on National Oceanic and Atmospheric 
Administration (NOAA) charts for over 50 years and operating areas have 
been further delineated in recent public environmental documentation. 
NEPA analyses, conducted for these areas within the past 5 years, 
include biological assessments evaluating effects on endangered species 
that were reviewed and approved by NOAA-Fisheries and the Service. 
These biological assessments and associated environmental assessments 
addressed bull trout and interactions with range operations. Based on 
the above considerations, the importance of these areas for national 
security, and consistent with direction provided in section 4(b)(2) of 
the Act, the Navy training and testing areas of Crescent Harbor and 
Dabob Bay have been excluded from designated critical habitat (see 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (108) Comment: What are the conservation values of the upper North 
Fork Skokomish River and Lake Cushman? Designation of habitat in these 
areas conflicts with the Service's decision not to propose critical 
habitat in highly fragmented areas.
    Our Response: Although hydroelectric dams have affected bull trout 
in the North Fork Skokomish River, and the two dams operated by Tacoma 
City Light prevent upstream and downstream passage of bull trout, we do 
not believe that this results in ``highly fragmented habitats in highly 
fragmented areas.'' The North Fork Skokomish River represents a 
significant amount of

[[Page 56230]]

remaining bull trout habitat along Hood Canal and is essential to the 
conservation and recovery of bull trout in the Skokomish core area and 
thus, is not excluded from the critical habitat designation.
    (109) Comment: The Service erroneously assumes that there is 
downstream connectivity between bull trout located in the upper North 
Fork Skokomish River and bull trout located in other parts of the 
Skokomish River.
    Our Response: Historic accounts (since the 1920s) indicate bull 
trout were present in the original Lake Cushman and upper North Fork 
Skokomish River prior to the river's impoundment. Bull trout in Lake 
Cushman and the upper North Fork Skokomish River have been continually 
monitored since 1970, and surveys have counted bull trout there as 
recently as 2004. This area comprises one of two local populations in 
the Skokomish River area. Construction of the two dams has largely 
eliminated downstream migration and interaction with bull trout in the 
South Fork Skokomish River, although for other hydroelectric projects 
it is well documented that fish do occasionally escape mortality 
through turbines or are spilled downstream of a dam.
    (110) Comment: The Service inappropriately assumes that 
connectivity for the upper North Fork Skokomish River and Lake Cushman 
will be enhanced in the future.
    Our Response: Recovery of bull trout in the Skokomish River core 
area will require addressing connectivity in the North Fork Skokomish 
River. Bull trout were documented in Lake Cushman and the North Fork 
Skokomish River above the lake in 2004. Bull trout have also been 
recently documented in the North Fork Skokomish River below the dams. 
Bull trout have not been documented in the section of the river between 
the two dams (Lake Kokanee), and this section is not being designated 
based on the Federal Energy Regulatory Commission (FERC) license 
requiring passage at both dams. Implementation of the FERC license for 
the Cushman Project is expected to result in the construction of trap-
and-haul fish passage facilities that will restore connectivity between 
the lower and upper North Fork, but will bypass and isolate the 
inundated 2.3 mile long Lake Kokanee segment. Requiring fish passage at 
the Cushman dams is part of the 1998 FERC license order and is the best 
available information at this time (FERC 1998).
    (111) Comment: The upper North Fork Skokomish River should be 
excluded from critical habitat designation because it is located almost 
entirely within Olympic National Park (Park), and the Park should be 
excluded because of their land use restrictions.
    Our Response: At present, the Park does not have a general 
management plan that guides the Park's management and provides for bull 
trout conservation. A general management plan is currently under 
internal Park review and is scheduled to go out for public review in 
the next year or so. It is our understanding that the plan will present 
several alternatives ranging from increased visitor access and 
development to more resource protection. We do not know how this plan 
will address bull trout conservation but will review the Park's plan 
when it becomes available. Because there is no plan that we can review 
to determine if the Park will provide the appropriate special 
management required for the conservation of bull trout PCEs in that 
area this area was not excluded from the critical habitat designation.
Unit 28: Puget Sound
    (112) Comment: Quilceda Creek and its tributary Edgecombe Creek in 
Washington should be designated critical habitat.
    Our Response: Although it is possible that bull trout foraged in 
these two creeks in the past and may currently use these streams on 
occasion to forage, there is no clear documentation of the use by bull 
trout in this system. This does not mean these streams cannot or will 
not contribute to bull trout recovery, but rather that they were not 
determined to be essential to the species' conservation, and thus are 
not designated as critical habitat.
    (113) Comment: The U.S. Army (Army) requests that the marine 
nearshore areas and Nisqually River adjacent to Fort Lewis be excluded 
from designation of critical habitat because of the existing INRMP. For 
its installations, the Navy believes that existing INRMPs for Whidbey 
Island Seaplane Base and Naval Station Everett provide justification 
for their non-inclusion from critical habitat.
    Response: Fort Lewis has an approved INRMP that provides a benefit 
to the species for which critical habitat is proposed for designation. 
Therefore areas covered by the INRMP have not been included in the 
final critical habitat designation, per section 4(a)(3) of the Act (see 
Non-inclusions Under Section 4(a)(3) section below).
    (114) Comment: The designation is not appropriate for four streams, 
three pocket estuaries, and the nearshore waters of, and adjacent to, 
the Swinomish Tribal Reservation.
    Our Response: We believe that the nearshore areas are essential 
based on the current use of these areas by amphidromous bull trout for 
foraging and migration, and because they contain the PCEs. Therefore, 
only the marine nearshore waters, including the Swinomish Channel, 
associated with the Swinomish Reservation were proposed and designated 
as critical habitat. The other four streams were not part of our 
proposal.
    (115) Comment: The Swinomish Tribe's habitat management plan 
provides a sufficient level of protection to bull trout and their 
habitat, and therefore those portions of waterbodies on or adjacent to 
Swinomish tribal lands should be excluded from the designation.
    Our Response: We have excluded those lands covered by the Swinomish 
Tribe's habitat management plan (see Section 3(5)(A) and Exclusions 
under Section 4(b)(2) section below).

Comments From States

Nevada

    (116) Comment: Those most affected by the designation have not been 
involved in this designation of critical habitat for the Jarbidge River 
population of the bull trout.
    Our Response: Throughout the process of designating critical 
habitat, we attempted to include those interested in the designation of 
critical habitat for the Jarbidge River population, as well as the 
Coastal-Puget Sound and Saint Mary-Belly River populations, of the bull 
trout in the rule-making process. We solicited public comment through 
two public comment periods and one public hearing, accepting oral and 
written comments. We also held four local public meetings in Idaho and 
Nevada specifically regarding critical habitat proposed for the 
Jarbidge River population. We diligently tried to be responsive to the 
concerns raised and to address those concerns during the development of 
this final critical habitat designation.
    (117) Comment: No information is presented to suggest that 
conservation of the Jarbidge River population is necessary to ensure 
the persistence of bull trout in the coterminous unit.
    Our Response: We considered all available data on the Jarbidge 
River bull trout population during the listing process (63 FR 31693, 64 
FR 17110, 64 FR 58910), and available data that developed since the 
listing, to designate critical habitat for the Jarbidge River bull 
trout population. The Jarbidge River population is located in the 
southernmost habitat currently

[[Page 56231]]

occupied by bull trout. This population is geographically segregated 
from other bull trout in the Snake River basin by more than 150 rmi 
(240 rkm) of unsuitable habitat and several impassible dams on the 
mainstem Snake River and the lower Bruneau River. It is, however, 
essential to the conservation of bull trout as a whole, as discussed in 
the draft recovery plans.
    (118) Comment: Streams within the Jarbidge River population range 
have not been demonstrated to contain PCEs for bull trout.
    Our Response: All streams identified as essential and designated as 
critical habitat for the Jarbidge River population contain one or more 
of the PCEs. Only those streams with documented bull trout occurrence 
are designated. Variable types and amounts of habitat data are 
available for these streams to document the presence of PCEs and are in 
our administrative record for this final rule.
    (119) Comment: Many plans already in place for bull trout 
protection don't need critical habitat (the comment letter listed many 
plans).
    Our Response: Although there are many plans currently in place that 
directly or indirectly benefit bull trout, many are interim measures, 
they improve water quality only, there is no formal management plan, or 
they are designed to improve habitat on small scale watersheds. Where 
we could determine that the plans provided protection or management 
equal to that of a critical habitat designation, we have not included 
those lands, or otherwise we have designated critical habitat where 
appropriate (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).

Washington

    (120) Comment: Washington Department of Fish and Wildlife (WDFW) 
stated that Lake Washington and the Nisqually River are inappropriate 
as critical habitat because they are little used transient habitats for 
bull trout from other core areas.
    Our Response: Recent tagging studies have clearly shown that 
amphidromous bull trout have complex migratory patterns within marine 
waters and between watersheds. We believe that current and future use 
of foraging, migratory, and overwintering habitats outside their natal 
basins is essential to the survival and conservation of bull trout, 
especially the amphidromous life history form. We expect that, as bull 
trout populations increase in abundance, bull trout use of the 
Nisqually River and Lake Washington will increase due to the abundant 
foraging opportunities provided by these systems. Historically, bull 
trout were reported as abundant in the Nisqually River. In addition, 
spawning may still occur within the basin as suggested by the recent 
capture of a smolt-sized bull trout in the Nisqually River delta (C. 
Ellings, in litt. 2004). These areas therefore, remain in the critical 
habitat designation.
    (121) Comment: The proposed critical habitat designation falls 
short of protecting nearshore habitats essential to the conservation of 
bull trout by not including the shoreline riparian areas, bluffs, and 
uplands above the mean higher high water (MHHW) mark. These areas 
provide lateral recruitment of spawning substrates for surf smelt the 
principal food source for bull trout in the northern Puget Sound area. 
With the existing development along the Puget Sound shoreline, the 
source for suitable spawning gravels for surf smelt is very limited and 
protection of these last few areas is essential to the conservation of 
bull trout.
    Our Response: We recognize that similar to the influence that 
riparian and floodplain areas have on stream habitat in freshwater 
systems, the quality of the habitat within the marine nearshore is 
intrinsically related to the character of the shoreline riparian areas, 
bluffs, and uplands, and the human activities that occur above the MHHW 
mark. Activities that may destroy or adversely modify critical habitat 
are identified as those that alter the PCEs to an extent that the value 
of critical habitat for the conservation of bull trout is appreciably 
reduced, including alterations to foraging habitat and reductions in 
forage fish abundance. Therefore, although areas above the MHHW mark 
are not included as critical habitat, in the designation, we recognized 
the scientific basis for linking the quality of the nearshore 
environment with the biological and physical processes that occur 
outside of that environment (see Critical Habitat Designation section 
below). During section 7 consultations for projects that could cause 
changes to such areas adjacent to critical habitat, the effects on the 
critical habitat would be analyzed and protection from adverse 
modification ensured.
    (122) Comment: The old Lewis River channel (bypass reach) should be 
designated as critical habitat.
    Our Response: The upper bypass reach was not included in the final 
critical habitat designation because it does not contain PCEs. 
Specifically, we do not believe it will support successful bull trout 
spawning and incubation. The lower segment of the bypass reach from 
Yale Reservoir to the mouth of Ole Creek is designated as critical 
habitat, except for that portion of the lower segment covered by the 
Washington Department of Natural Resources HCP which is excluded under 
4(b)(2) (see Exclusions Under Section 4(b)(2) of the Act section 
below). The remaining lower segment provides foraging, migratory, and 
overwintering habitat for Yale Reservoir bull trout.
    (123) Comment: The lower mainstem Lewis River, below Merwin Dam, 
should not be designated as critical habitat.
    Our Response: The lower mainstem Lewis River will provide foraging, 
migration, and overwintering habitat once fish passage at Merwin, Yale, 
and Swift Dams is restored. We anticipate increased use by bull trout 
of the mainstem with these passage improvements. Restoring connectivity 
among local populations and to the Columbia River is necessary to 
maintain opportunities for genetic exchange, re-establishment of local 
populations, and provide access to additional habitat. Recent 
information documents use of the mainstem Columbia River by adult bull 
trout for foraging, migration, and overwintering.
    (124) Comment: WDFW stated that until Condit Dam is removed, it is 
difficult to justify the designation of the White Salmon River above 
the dam as critical habitat.
    Our Response: There has been a sighting of bull trout in the White 
Salmon River upstream from Condit Dam as recently as 1989. The 
designation provides foraging, migration, and overwintering habitat 
(necessary PCEs) for a potentially remnant population of bull trout 
within the White Salmon River system. The White Salmon River below 
Condit Dam is also used by migratory bull trout from other river 
systems, such as the Hood River. With the restoration of two-way 
passage at Condit Dam, this will provide access to habitat in the upper 
White Salmon River for these populations as well.

Oregon

    (125) Comment: Attributing one third of the consultation costs to 
bull trout in the economic analysis for the Willamette system is likely 
too high. Passage modifications at dams in the Willamette would not 
likely be made solely for bull trout, given the presence of listed 
salmon and steelhead.
    Response: As described in section 2.2.2 of the Final Economic 
Analysis (FEA), ``[n]o clear allocation of costs can be made between 
these species, as most of the project modifications would be

[[Page 56232]]

sought under both the NOAA and Service consultations.'' Furthermore, 
the FEA acknowledges the concern regarding the Willamette. It states'' 
``one-third of estimated costs are allocated to each [salmon, 
steelhead, and bull trout] species. This is likely to overstate the 
cost of bull trout conservation rather than understate it, since the 
primary driving force behind these project modifications is the 
salmon'' (pg. 2-24). As a result, we are not excluding this area from 
the critical habitat designation based on economics.
    (126) Comment: The Economic Analysis for critical habitat 
designations in the Malheur Basin is too high. Some operational changes 
at Beulah Reservoir have already been implemented and cost less than 
the annual estimate for Bureau of Reclamation (BOR) provided, and 
additional activities can be done for less than estimated.
    Response: As described in section 4.2.4 of the FEA, BOR submitted a 
comment on the draft economic analysis stating that its ``current 
average annual cost [associated with bull trout consultation] for the 
Boise (Anderson Ranch and Arrowrock Reservoirs), Payette (Cascade and 
Deadwood Reservoirs), Malheur (Buelah and Warm Springs Reservoirs), and 
Powder (Phillips and Thief Valley Reservoirs) is approximately $250,000 
for all projects combined.'' As five of these reservoirs are currently 
operating under the terms of section 7 bull trout consultations, 
including Beulah Reservoir, the finding is that such consultations may 
result in annual fish passage and research costs of $50,000 per year 
per reservoir (page 4-25). In addition, we received a letter from 
Oregon DNR indicating the costs attributed to their basin's designation 
were too high. The analysis was updated with this new information, as 
reflected in section 4.2.4 of the Final Economic Analysis. As a result, 
we are not excluding this area from the critical habitat designation 
based on economics.
    (127) Comment: Oregon Department of Fish and Wildlife (ODFW) 
questioned the exclusion of the John Day Basin based on the subbasin 
plan and Federal Columbia River Power System (FCRPS) given the 
uncertainty of the implementation of the management actions on mainstem 
and tributary streams.
    Our Response: Programs, plans, and other authorities used to 
exclude certain areas that were originally proposed, have been re-
evaluated to determine their benefit for exclusion versus the benefit 
of designating as critical habitat. We have revised the rule to now 
include this area as critical habitat based on this re-evaluation.
    (128) Comment: ODFW believes that designations of unoccupied 
habitat are important for the re-introduction of extirpated populations 
or expansion of existing populations, and are the most important areas 
in need of protection.
    Our Response: Because there was insufficient information for the 
Secretary to make a determination that unoccupied areas were essential 
to the conservation of the species, we have only designated areas of 
known occupancy that are known to contain the PCEs essential to the 
conservation of the species. We did not include areas of unknown 
occupancy in the final critical habitat designation because we did not 
have adequate information for the Secretary to determine that specific 
unoccupied areas were essential to the bull trout's conservation. We 
based this designation on the best scientific and commercial 
information available. Many streams not included in this designation 
can and will contribute to bull trout recovery, but do not meet the 
definition of critical habitat. We evaluated comments documenting 
stream segments that are not essential and where appropriate, refined 
this final critical habitat rule (See Summary of Changes from the 
Proposed Rule section below).
    (129) Comment: The Clackamas River should be designated as critical 
habitat.
    Our Response: The Clackamas River is not designated as critical 
habitat because the Service determined it is not essential to the 
conservation of bull trout in the Willamette River Basin Unit. The 
Willamette Recovery Unit Team recognized the Clackamas River as core 
habitat and not a core area based on the lack of data documenting bull 
trout in the Clackamas River. Bull trout are not known to currently 
inhabit the Clackamas River, but their presence was documented 
historically, and the Recovery Unit Team believes that the sub-basin 
has the necessary habitat elements to support the reintroduction of 
bull trout. Based on limited historical information, it is unknown 
whether reproducing bull trout populations existed previously in the 
Clackamas River.
    (130) Comment: Critical habitat should be designated as it was in 
the proposed rule because there is no assurance that within the next 10 
years or beyond that funding will be available for implementation. 
Therefore, the state suggested that critical habitat in Oregon should 
be re-designated as proposed where these directives have been 
identified as a reason for excluding.
    Our Response: We have evaluated the FCRPS, the Northwest Forest 
Plan and PACFISH/INFISH, as well as other individual Federal and State 
programs and directives to determine their benefit for exclusion versus 
the benefit of designating as critical habitat. Many of these plans 
provide some level of conservation benefit to bull trout and the 
habitat they are known to currently occupy. The final rule considers 
the contribution of each individual plan, considers whether the lands 
meet the definition of critical habitat, and weighs the benefits of 
inclusion versus the benefits of exclusion when determining the final 
critical habitat designation.

Summary of Revisions From the Previous Rules

    (1) Unoccupied lands were removed from the designation. Under the 
Act the Secretary of the Interior may only include unoccupied lands if 
she finds that those lands are essential to the conservation of the 
species. In the case of the bull trout, and based on the best 
scientific data available, it was not possible for the Secretary to 
make such a determination at this time.
    (2) A variety of areas were found to not meet the definition of 
critical habitat and lands were excluded under section 4(b)(2) of the 
Act (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section 
below).
    (3) Lands that did not contain sufficient PCEs to support at least 
one of the species essential biological activities were removed. For 
example, the Clark Fork River between Missoula and Butte was proposed 
for designation. Upon further review, it was determined that this site 
is a superfund site subject to contamination by leaching from mine 
wastes. Another example is the middle fork of the Boise River, also 
proposed for designation and also subject to leaching of mining wastes. 
Proposed critical habitat that did not contain sufficient PCEs to 
support the species was removed, as was critical habitat where the 
presence of PCEs was speculative. The Act does not provide for 
designation based on speculative or prospective presence of PCEs.
    (4) The proposed critical habitat designation included a number of 
reaches to increase connectivity between populations. We received 
multiple comments that some of the barrier removal proposed to 
accomplish the connectivity could be detrimental to bull trout 
populations by providing access to competitor species such as lake 
trout, brook trout, and rainbow trout. We are removing those reaches 
pending a site by site determination as to which are appropriate for 
barrier removal. If necessary, additional critical habitat can be 
designated once those determinations are made.

[[Page 56233]]

    (5) Segments were designated based on the contributions to bull 
trout life processes. Some segments contained all PCEs and supported 
multiple life processes. Some segments contained only a portion of the 
PCEs necessary to support the bull trout's particular use of that 
habitat. Where a subset of the PCEs were present (e.g., water 
temperature during migration flows) it has been noted that only PCEs 
present at designation will be protected. In addition, some of the PCEs 
were present only at particular times of year, and not present at 
others. This led to a concern that by designating the area as critical 
habitat subsequent biological opinions would assume that the PCEs were 
constantly present, particularly in areas where active management (such 
as a dam) was present. Two examples of this are temperature and flows. 
We have designated some streams where appropriate temperatures occur 
only at specific times of year which coincide with bull trout use; but 
at other times the stream temperatures are outside the optimal range or 
may even be fatal to bull trout. We are concerned that our designation 
may be misinterpreted to require these temperatures be available year 
round as a result of the designation, particularly when the stream is 
controlled by upstream structures. Another example is flows. There are 
streams which are designated as critical habitat that are dry for 
portions of the year. These streams are designated because they are 
used by bull trout during portions of the year when the PCEs are 
present, perhaps for migration or foraging. Again, the assumption that 
the PCEs are present during the entire year is not appropriate, and 
could have serious consequences for other parties. Our goal is to 
ensure that the PCEs are protected when they are present as a result of 
federal actions but also to avoid inadvertently requiring creation of 
PCEs where they do not now occur. As a result, we have determined that 
explicitly placing current ongoing federal actions that create the PCEs 
in the baseline for the purposes of section 7 consultations under the 
Act, will protect existing PCEs and require any changes in those 
federal actions to undergo consultation in order to determine the 
effect of the changes on critical habitat.
    Public comments in general, and particularly technical comments 
from local, State, and Federal agencies and Native American Tribes, 
were very useful in focusing the proposal to those areas with the 
features most essential to the conservation of the species. We held 
numerous public hearings and public meetings where we received specific 
technical comments that prompted further internal critical review of 
the proposal. The peer review process provided constructive criticism 
from fisheries scientists regarding our approach to developing the 
critical habitat proposal, as well as technical comments regarding 
specific proposed critical habitat areas. Through our working 
relationships with State and Federal agencies, we also received some 
new information after the proposal was issued, such as new records of 
bull trout occurrence, evidence of reproduction in some streams, or the 
lack of such positive survey results, as well as information on 
conservation actions underway within States.
    We revised the stream miles and lake and reservoir acreages for 
designated critical habitat for those areas not containing features 
essential to bull trout conservation, based on information supplied by 
comments received as well as information gained from field visits to 
some of the sites.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but was not known to 
be occupied at the time of listing will likely but not always be 
essential to the conservation of the species and, therefore, included 
in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data available. They require Service 
biologists to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for

[[Page 56234]]

recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources include the recovery plan for the species, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that are 
essential to the conservation of the bull trout. In designating 
critical habitat, we reviewed the approaches to the conservation of the 
species undertaken by local, State, and Federal agencies; tribal 
governments; and private individuals and organizations since the 
species was listed in 1998. We relied on information collected by the 
bull trout Recovery Unit Teams, which were comprised of Federal, State, 
tribal, and private biologists, as well as experts from other 
scientific disciplines such as hydrology and forestry, resource users, 
and other stakeholders with an interest in bull trout and the habitats 
they depend on for survival. We reviewed available information 
concerning bull trout habitat use and preferences, habitat conditions, 
threats, limiting factors, population demographics, and the known 
locations, distribution, and abundances of bull trout. We designated no 
areas outside the geographical area presently occupied by the species.
    During our evaluation of information, we also took into account the 
relatively low probability of detection of bull trout in traditional 
fish sampling and survey efforts, as well as the limited extent of such 
efforts across the range of bull trout. Because of their varied life 
history strategies, nocturnal habits, and low population densities in 
many areas, the detectability of bull trout in a given area is highly 
variable (Rieman and McIntyre 1993). In some areas, adult and subadult 
bull trout make extensive migrations both within and outside their core 
areas, which makes surveying difficult. Much of the current information 
on bull trout presence is the product of informal surveys or sampling 
conducted for other species or other purposes. The primary limitations 
of informal surveys are that they provide no estimate of certainty 
(i.e., a measure of the probability of detection), and that they may be 
inadequate for determining population parameters such as the densities 
and distribution of the population. The need for a statistically sound 
bull trout survey protocol has been addressed only recently through the 
development, by the American Fisheries Society, of a peer-reviewed 
protocol for determining presence/absence, and potential habitat 
suitability for juvenile and resident bull trout (Peterson et al. 
2002). Consequently, we considered all documented occurrences of bull 
trout in the past 20 years as evidence of occupancy.
    We used information gathered during the bull trout recovery 
planning process, as supplemented by even more recent information 
developed by State agencies, tribes, U.S. Forest Service, and other 
entities, in developing this final critical habitat designation. We 
used data concerning habitat conditions or status of PCEs when 
available. To address areas where data gaps exist, we solicited expert 
opinions from knowledgeable fisheries biologists in the local area.
    We also reviewed available information pertaining to the habitat 
requirements of this species. Important considerations in selecting 
areas for designated critical habitat include factors specific to each 
river system, such as size (e.g., stream order), gradient, channel 
morphology, connectivity to other aquatic habitats, and habitat 
complexity and diversity, as well as rangewide recovery considerations. 
We took into account that preferred habitat for bull trout ranges from 
small headwater streams used largely for spawning and rearing, to 
downstream mainstem portions of river networks used for rearing and FMO 
habitat.
    Our methods included consideration of information regarding habitat 
essential to maintaining the migratory life history forms of bull 
trout, in light of the repeated emphasis about the importance of such 
habitat in the scientific literature (Rieman and McIntryre 1993; Hard 
1995; Healey and Prince 1995; Rieman et al. 1995; Montana Bull Trout 
Scientific Group (MBTSG) 1998; Dunham and Rieman 1999; Nelson et al. 
2002). Material reviewed included data in reports submitted during 
section 7 consultations and by biologists holding section 10(a)(1)(A) 
recovery permits; research published in peer-reviewed academic theses 
and agency reports; and regional GIS overlays. Habitat for movement 
upstream, downstream and, in some cases, through marine waters is 
essential for migratory life history forms for spawning, foraging, 
growth, access to rearing and overwintering areas or thermal refugia 
(e.g., spring-fed streams in late summer), avoidance of extreme 
environmental conditions, and other normal behavior. Successful 
migration requires biologically, physically, and chemically 
unobstructed routes for movement of individuals. Therefore, our methods 
included considering information regarding habitat that is essential 
for movement into and out of larger rivers, because of the importance 
of such areas to the fluvial form of bull trout. We similarly 
identified habitat essential for movement between streams and lakes by 
adfluvial forms and habitat essential for movement into and through 
marine waters by amphidromous forms.
    Migratory corridors also are essential for movement between 
populations (Fraley and Shepard 1989; Rieman and McIntyre 1993; Rieman 
et al. 1995; Dunham and Rieman 1999). Thus, in addition to considering 
areas important for migration within populations, our method also 
included considering

[[Page 56235]]

information regarding migration corridors necessary to allow genetic 
exchange between local populations. Corridors that allow such movements 
can support eventual recolonization of unoccupied areas or otherwise 
play a significant role in maintaining genetic diversity and 
metapopulation viability (see the June 25, 2004 proposed rule; 69 FR 
35767). Because these factors are important in identifying the features 
and areas that are essential to bull trout conservation, our method 
included consideration of the various roles that migratory corridors 
have for bull trout.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of the bull trout. All areas designated as critical habitat for bull 
trout are occupied, within the species' historic geographic range, and 
contain sufficient PCEs to support at least one life history function.
    Bull trout exhibit a number of life-history strategies. Stream-
resident bull trout complete their entire life cycle in the tributary 
streams where they spawn and rear. Some bull trout are migratory, 
spawning in tributary streams where juvenile fish usually rear from 1 
to 4 years before migrating to either a larger river (fluvial) or lake 
(adfluvial) where they spend their adult life, returning to the 
tributary stream to spawn (Fraley and Shepard 1989). These migratory 
forms occur in areas where conditions allow for movement from upper 
watershed spawning streams to larger downstream waters that contain 
greater foraging opportunities (Dunham and Rieman 1999). Resident and 
migratory forms may be found together, and either form can produce 
resident or migratory offspring (Rieman and McIntyre 1993). Bull trout 
in the Coastal-Puget Sound area are believed to include an anadromous 
form which migrates to saltwater to mature, returning to streams to 
spawn (64 FR 58912).
    Bull trout are opportunistic feeders, with food habits that 
primarily are a function of size and life history strategy. Resident 
and juvenile migratory bull trout prey on terrestrial and aquatic 
insects, macro-zooplankton, and small fish (Donald and Alger 1993; 
McPhail and Baxter 1996). Adult migratory bull trout feed almost 
exclusively on other fish (Rieman and McIntyre 1993).
    Bull trout have more specific habitat requirements than most other 
salmonids (Rieman and McIntyre 1993). Habitat components that 
particularly influence their distribution and abundance include water 
temperature, cover, channel form and stability, spawning and rearing 
substrate conditions, and migratory corridors (Fraley and Shepard 1989; 
Goetz 1989; Watson and Hillman 1997).
    Relatively cold water temperatures are characteristic of bull trout 
habitat. Water temperatures above 15 [deg]Celsius (C) (59 
[deg]Fahrenheit (F)) while not lethal are believed to limit their 
distribution (Fraley and Shepard 1989; Rieman and McIntyre 1996). 
Although adults have been observed in large rivers throughout the 
Columbia River basin in water temperatures up to 20 [deg]C (68 [deg]F), 
Gamett (1999) documented steady and substantial declines in abundance 
in stream reaches where water temperature ranged from 15 to 20 [deg]C 
(59 to 68 [deg]F). Thus, water temperature may partially explain the 
generally patchy distribution of bull trout in a watershed. In large 
rivers, bull trout are often observed ``dipping'' into the lower 
reaches of tributary streams, and it is suspected that cooler waters in 
these tributary mouths may provide important thermal refugia, allowing 
them to forage, migrate, and overwinter in waters that would otherwise 
be, at least seasonally, too warm. Spawning areas often are associated 
with cold-water springs, groundwater infiltration, and the coldest 
streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993; 
Rieman et al. 1997).
    Throughout their lives, bull trout require complex forms of cover, 
including large woody debris, undercut banks, boulders, and pools 
(Fraley and Shepard 1989; Watson and Hillman 1997). Juveniles and 
adults frequently inhabit side channels, stream margins, and pools with 
suitable cover (Sexauer and James 1997). McPhail and Baxter (1996) 
reported that newly emerged fry are secretive and hide in gravel along 
stream edges and in side channels. They also reported that juveniles 
are found mainly in pools but also in riffles and runs that they 
maintain focal sites near the bottom, and that they are strongly 
associated with instream cover, particularly overhead cover. Bull trout 
have been observed overwintering in deep beaver ponds or pools 
containing large woody debris (Jakober 1995). Adult bull trout 
migrating to spawning areas have been recorded as staying two to four 
weeks at the mouths of spawning tributaries in deeper holes or near log 
or cover debris (Fraley and Shepard (1989)).
    The stability of stream channels and stream flows are important 
habitat characteristics for bull trout populations (Rieman and McIntyre 
1993). The side channels, stream margins, and pools with suitable cover 
for bull trout are sensitive to activities that directly or indirectly 
affect stream channel stability and alter natural flow patterns.
    Watson and Hillman (1997) concluded that watersheds must have 
specific physical characteristics to provide the necessary habitat 
requirements for bull trout spawning and rearing, and that the 
characteristics are not necessarily ubiquitous throughout the 
watersheds in which bull trout occur. The preferred spawning habitat of 
bull trout consists of low-gradient stream reaches with loose, clean 
gravel (Fraley and Shepard 1989). Bull trout typically spawn from 
August to November during periods of decreasing water temperatures 
(Swanberg 1997). However, migratory forms are known to begin spawning 
migrations as early as April, and to move upstream as much as 250 km 
(155 mi) to spawning areas (Fraley and Shepard 1989; Swanberg 1997). 
Fraley and Shepard (1989) reported that initiation of spawning by bull 
trout in the Flathead River system appeared to be related largely to 
water temperature, with spawning initiated when water temperatures 
dropped below 9-10 [deg]C (48 to 50 [deg]F). Goetz (1989) reported a 
temperature range from 4 to 10 [deg]C (39 to 50 [deg]F) (Goetz 1989). 
Such areas often are associated with cold-water springs or groundwater 
upwelling (Rieman et al. 1997; Baxter et al. 1999). Fraley and Shepard 
(1989) also found that groundwater influence and proximity to cover are 
important factors influencing spawning site selection. They reported 
that the combination of relatively specific requirements resulted in a 
restricted spawning distribution in relation to available stream 
habitat.
    Depending on water temperature, egg incubation is normally 100 to 
145 days (Pratt 1992). Water temperatures of 1.2 to 5.4 [deg]C (34.2 to 
41.7 [deg]F) have been

[[Page 56236]]

reported for incubation, with an optimum (best embryo survivorship) 
temperature reported to be from 2 to 4 [deg]C (36 to 39 [deg]F) (Fraley 
and Shepard 1989; McPhail and Baxter 1996). Juveniles remain in the 
substrate after hatching, such that the time from egg deposition to 
emergence of fry can exceed 200 days. During the relatively long 
incubation period in the gravel, bull trout eggs are especially 
vulnerable to fine sediments and water quality degradation (Fraley and 
Shepard 1989). Increases in fine sediment appear to reduce egg survival 
and emergence (Pratt 1992). Juveniles are likely similarly affected. 
High juvenile densities have been reported in areas characterized by a 
diverse cobble substrate and a low percent of fine sediments (Shepard 
et al. 1984).
    The ability to migrate is important to the persistence of local 
bull trout subpopulations (Rieman and McIntyre 1993; Gilpin 1997; 
Rieman and Clayton 1997; Rieman et al. 1997). Bull trout rely on 
migratory corridors to move from spawning and rearing habitats to 
foraging and overwintering habitats and back. Migratory bull trout 
become much larger than resident fish in the more productive waters of 
larger streams and lakes, leading to increased reproductive potential 
(McPhail and Baxter 1996). The use of migratory corridors by bull trout 
also results in increased dispersion, facilitating gene flow among 
local populations when individuals from different local populations 
interbreed, stray, or return to nonnatal streams. Also, local 
populations that have been extirpated by catastrophic events may become 
reestablished as a result of movements by bull trout through migratory 
corridors (Rieman and McIntyre 1993, Montana Bull Trout Scientific 
Group (MBTSG) 1998).
    While stream habitats have received more attention, lakes and 
reservoirs also figure prominently in meeting the life cycle 
requirements of bull trout. For adfluvial bull trout populations, lakes 
and reservoirs provide an important component of the core foraging, 
migrating, and overwintering habitat, and are integral to maintaining 
the adfluvial life history strategy that is commonly exhibited by bull 
trout. When juvenile bull trout emigrate downstream to a lake or 
reservoir from the spawning and rearing streams in the headwaters, they 
enter a more productive lentic environment that allows them to achieve 
rapid growth and energy storage. Typically, juvenile bull trout are at 
least two years old and 100 mm (4 inches) or longer upon entry to the 
lake environment. For the next 2-4 years they grow rapidly. At a 
typical age of five years or older, when total length normally exceeds 
400 mm (16 inches), they reach sexual maturity. The lake environment 
provides the necessary attributes of food, space, and shelter for the 
subadult fish to prepare for the rigors of migratory passage upstream 
to the natal spawning area, a migration that may last as long as six 
months and cover distances as much as 250 km (155 mi) upriver.
    In comparison to streams, lake and reservoir environments are 
relatively more secure from catastrophic natural events. They provide a 
sanctuary for bull trout, allowing them to quickly rebound from 
temporary adverse conditions in the spawning and rearing habitat. For 
example, if a major wildfire burns a drainage and eliminates most or 
all aquatic life (a rare occurrence), bull trout subadults and adults 
that survive in the lake may return the following year to repopulate 
the system. In this way, lakes and reservoirs provide an important 
adaptive element of the adfluvial life history strategy.
    The construction of reservoirs may have had adverse effects to bull 
trout, but some reservoirs also have provided benefits. For example, 
the basin of Hungry Horse Reservoir has functioned adequately for fifty 
years as a surrogate home for stranded Flathead Lake bull trout trapped 
upstream of the dam when it was completed. While this is an artificial 
impoundment, the habitat the reservoir provides and the presence of an 
enhanced prey base of native minnows, suckers, and whitefish within the 
reservoir sustain a large adfluvial bull trout population. 
Additionally, while barriers to migration are often viewed as a 
negative consequence of dams, the connectivity barrier at Hungry Horse 
Dam has also served an important, albeit unintended, function in 
restricting the proliferation of nonnative Salvelinus species (brook 
trout and lake trout) from downstream areas upstream above the dam. 
Additional information related to bull trout biology can be found in 
our administrative record.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the bull trout's PCEs are:
    (1) Water temperatures that support bull trout use. Bull trout have 
been documented in streams with temperatures from 32 to 72 [deg]F (0 to 
22 [deg]C) but are found more frequently in temperatures ranging from 
36 to 59 [deg]F (2 to 15 [deg]C). These temperature ranges may vary 
depending on bull trout life history stage and form, geography, 
elevation, diurnal and seasonal variation, shade, such as that provided 
by riparian habitat, and local groundwater influence. Stream reaches 
with temperatures that preclude any bull trout use are specifically 
excluded from designation;
    (2) Complex stream channels with features such as woody debris, 
side channels, pools, and undercut banks to provide a variety of 
depths, velocities, and instream structures;
    (3) Substrates of sufficient amount, size, and composition to 
ensure success of egg and embryo overwinter survival, fry emergence, 
and young-of-the-year and juvenile survival. This should include a 
minimal amount of fine substrate less than 0.25 inch (0.63 centimeter) 
in diameter.
    (4) A natural hydrograph, including peak, high, low, and base flows 
within historic ranges or, if regulated, currently operate under a 
biological opinion that addresses bull trout, or a hydrograph that 
demonstrates the ability to support bull trout populations by 
minimizing daily and day-to-day fluctuations and minimizing departures 
from the natural cycle of flow levels corresponding with seasonal 
variation;
    (5) Springs, seeps, groundwater sources, and subsurface water to 
contribute to water quality and quantity as a cold water source;
    (6) Migratory corridors with minimal physical, biological, or water 
quality impediments between spawning, rearing, overwintering, and 
foraging habitats, including intermittent or seasonal barriers induced 
by high water temperatures or low flows;
    (7) An abundant food base including terrestrial organisms of 
riparian origin, aquatic macroinvertebrates, and forage fish;
    (8) Permanent water of sufficient quantity and quality such that 
normal reproduction, growth, and survival are not inhibited.
    This designation protects PCEs necessary to support the life 
history functions which were the basis for the designation. Because not 
all life history functions require all the PCEs, not all habitat will 
contain all the PCEs.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the bull trout. In some cases, the PCEs exist as a result 
of ongoing federal actions. As a result, ongoing federal actions at the 
time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

[[Page 56237]]

Criteria Used To Identify Critical Habitat

    We are designating critical habitat on lands that we have 
determined are occupied at the time of listing and contain sufficient 
primary constituent elements to support life history functions 
essential for the conservation of the species. We reevaluated the 
proposed designations based on public comment, peer review of the 
proposed rules and the draft Recovery Plans, the economic analyses of 
the proposed rules, and the public comments on those analyses, and 
other available information, to ensure that the designation accurately 
reflects habitat with the PCEs that is essential to the conservation of 
the species.
    This critical habitat designation focuses primarily on the 
maintenance of populations by (1) protecting sufficient amounts of 
spawning and rearing habitat in upper watershed areas; (2) providing 
suitable habitat conditions in downstream rivers and lakes to provide 
foraging and overwintering habitat for fluvial and adfluvial fish; and 
(3) maintaining migratory routes and the potential for gene flow 
between populations by maintaining habitat conditions that allow for 
fish passage.
    To be included as critical habitat, a critical habitat unit (CHU) 
had to be occupied by the species and contain sufficient PCEs to 
provide for one or more of the following three functions: (1) Spawning, 
rearing, foraging, or overwintering habitat to support existing bull 
trout local populations; (2) movement corridors necessary for 
maintaining migratory life-history forms; and/or (3) suitable occupied 
habitat that is essential for recovering the species.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our administrative record for this rulemaking.

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete, by November 17, 2001, an Integrated Natural Resource 
Management Plan (INRMP). An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found on the base. Each INRMP includes an assessment of the 
ecological needs on the installation, including the need to provide for 
the conservation of listed species; a statement of goals and 
priorities; a detailed description of management actions to be 
implemented to provide for these ecological needs; and a monitoring and 
adaptive management plan. Among other things, each INRMP must, to the 
extent appropriate and applicable, provide for fish and wildlife 
management, fish and wildlife habitat enhancement or modification, 
wetland protection, enhancement, and restoration where necessary to 
support fish and wildlife and enforcement of applicable natural 
resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the ESA to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. INRMPs developed by 
military installations located within the range of critical habitat 
designated for the Columbia and Coastal-Puget Sound populations of bull 
trout were analyzed for non-inclusion under the authority of 4(a)(3) of 
the Act.
    The Bayview Acoustic Research Detachment (ARD) Naval Surface 
Warfare Center, Bayview, ID, has an approved INRMP. This property 
includes approximately 22 ac (9 ha) of developed land on the shore of 
Lake Pend Oreille and 16 ac (7 ha) of lake area. There are no tributary 
streams within this area utilized by bull trout for spawning or early 
life rearing, but the lake area does contain important FMO habitat for 
bull trout.
    Designating critical habitat on Bayview ARD could impact their role 
in supporting ongoing U.S. Navy research, development, test, and 
evaluation programs in underwater acoustics. These efforts include the 
use of large scale models to simulate the characteristics of current 
and future Navy submarines in order to develop and evaluate advances in 
submarine silencing technology. Performing acoustic testing on large 
scale models provides the same accuracy as testing on actual submarines 
at a significantly lower cost. Bayview ARD is the only Navy facility 
capable of testing large scale models for hull-induced flow noise and 
propulsor noise, and the knowledge gained from these tests are directly 
applied to reducing the detectability of Navy submarines (Department of 
the Navy 2003). Bayview ARD's INRMP outlines protection and management 
strategies for natural resources on the center, including fish species 
and their habitats.
    The plan benefits bull trout through the protection of kokanee 
salmon spawning habitat, a primary food source for bull trout. The ARD 
Bayview property in Scenic Bay hosts from 40-70 percent of the kokanee 
spawning activity in Lake Pend Oreille, depending on the year. The 
INRMP includes measures to minimize impacts to kokanee habitat by 
limiting facility boat traffic during spawning periods (November-
December), and implementing sediment control measures. Furthermore, 
interpretive signs have been placed throughout the property to educate 
employees and the public regarding various aspects of the regions 
natural resources, threatened or endangered species (including bull 
trout), and geological history. The INRMP requires the natural resource 
manager to provide an all hands ARD INRMP awareness training to 
facilitate INRMP implementation.
    Eurasian watermilfoil was identified in the northern part of Lake 
Pend Oreille during the winter of 2002. Following identification and 
mapping of invasive species at ARD Bayview, a plan will be developed 
under the INRMP to control invasive species at the facility and to 
limit their spread to adjacent lands. Eurasian watermilfoil chokes 
waterways and near shore environments used by bull trout and their prey 
species.
    Based on the above considerations, and consistent with the 
direction provided in section 4(a)(3)(B)(i) of the Act, we have 
determined that conservation efforts identified in the final INRMP will 
provide benefits to the bull trout occurring in the lake area within or 
adjacent to the Bayview ARD. Approximately 16 ac (7 ha) of essential 
habitat is not included in this critical habitat designation. 
Therefore, we are not including critical habitat for bull trout on this 
installation pursuant to section 4(a)(3) of the Act.
    The Naval Radio Station Jim Creek, Naval Station Everett, Naval Air 
Station Whidbey Island, and the Army's Fort Lewis Installation (Fort 
Lewis) are all located in western Washington and all have approved 
INRMPs. We have

[[Page 56238]]

examined the INRMPs for these military installations to determine 
coverage for the bull trout. The Naval Radio Station Jim Creek INRMP 
provides for (1) restoration of riparian buffers along Jim Creek, (2) 
protection to Jim Creek from erosion and sedimentation, and (3) 
protection to Jim Creek from contaminants and herbicides. The Naval 
Station Everett's INRMP benefits bull trout by providing (1) protection 
to bull trout in the marine environment from oil spills around the 
berthing naval vessels, (2) bioswales to prevent the release of toxins, 
contaminants and oils from reaching the water column through storm 
drains, and (3) the restoration of riparian habitat on Navy lands 
located along the Middle Fork Quilceda Creek. Naval Aviation Station 
Whidbey Island's INRMP benefits bull trout through (1) monitoring and 
managing livestock grazing, (2) managing road building and maintenance 
to prevent erosion and sedimentation of bull trout habitat, (3) 
assuring proper disposal of hazardous materials, and (4) implementation 
of the Integrated Pest Management plan's best management practices to 
protect aquatic environments. The INRMP for the U.S. Army, Fort Lewis, 
benefits bull trout through (1) the protection and enhancement of 
wetlands, which include marshes, lakes, rivers and streams; all 
wetlands are protected with 300 foot-wide riparian buffers to maintain 
cold water temperatures, prevent sediment from entering the streams and 
provide for woody debris, (2) control of invasive plant species which 
often diminishes water quality and impacts native plants and animals, 
and (3) restoring salmon spawning habitat and access to increase salmon 
productivity which contributes to and enhances the bull trout prey 
base. In addition, the Navy conducts essential training and testing 
within the marine waters of Crescent Harbor and Dabob Bay. These 
activities are conducted in open marine waters not controlled by the 
military, and are not included in adjacent military INRMPs. However, 
because these training and testing activities are essential for 
national security, they have been excluded from the final designation 
of critical habitat under section 4(b)(2) of the Act.
    These military installations with INRMPs do not have streams that 
are utilized by bull trout for spawning and rearing. The Naval Radio 
Station Jim Creek occurs in the Jim Creek watershed. The lower reaches 
of Jim Creek provide foraging habitat for subadult and adult bull 
trout. The Naval Station Everett and Naval Air Station Whidbey Island 
property includes land on or near the shores of Puget Sound that 
contains important foraging and migration habitat for amphidromous bull 
trout. Fort Lewis borders the Nisqually River and Puget Sound where the 
mainstem Nisqually River and Puget Sound nearshore bordering this 
property contain important foraging and migration habitat for 
amphidromous bull trout.
    Habitat features essential to bull trout conservation exists within 
or immediately adjacent to these military installations. Designating 
critical habitat on these military installations may impact their role 
in supporting ongoing military exercises and operations that occur at 
these locations. These military installations all have approved INRMPs, 
and activities occurring on these properties are currently being 
conducted in a manner that minimizes impacts to bull trout habitat. In 
addition, these installations already consult with us on their actions 
(including those occurring in the open water training and testing 
areas) that may have adverse affects to bull trout and their habitat 
under section 7 requirements.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMPs will provide benefits to the bull trout 
occurring in streams within or adjacent to Naval Radio Station Jim 
Creek, Naval Air Station Whidbey Island, and Fort Lewis. Approximately 
25 mi (40 km) of essential habitat is not included in this critical 
habitat designation. Therefore, we are not including critical habitat 
for bull trout on these installations pursuant to section 4(a)(3) of 
the Act.

Section 3(5)(A) and Exclusions Under Section 4(b)(2)

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species, and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that require no special management or 
protection also are not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole will provide the same 
level of protection that designation of critical habitat would provide. 
The plan need not lead to exactly the same result as a designation in 
every individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine whether 
the plan provides management, protection, or enhancement of the PCEs 
that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless [s]he determines, based on the best scientific 
and commercial data available, that the failure to designate such area 
as critical habitat will result in the extinction of the species. In 
making that determination, the Secretary is afforded broad discretion 
and the Congressional record is clear that in making a determination 
under the section the Secretary has discretion as to which factors and 
how much weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of inclusion. If an exclusion is 
contemplated, then we must determine

[[Page 56239]]

whether excluding the area would result in the extinction of the 
species. In the following sections, we address a number of general 
issues that are relevant to the exclusions we considered.

Relationship Between Adverse Modification and Jeopardy in Bull Trout 
and Bull Trout Critical Habitat Consultations

    In Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, the Ninth Circuit held that the Service's regulatory 
definition of ``destruction or adverse modification'' was contrary to 
the ESA because it required an affect on the survival of the species, 
in addition to an effect on recovery. In response, on December 9, 2004, 
the Acting Director of the Service issued guidance on conducting 
section 7 consultations with respect to critical habitat until a new 
regulatory definition could be put in place. The analytical framework 
presented in this memo directs us to consider whether, with 
implementation of the proposed action, critical habitat would remain 
functional to serve the intended conservation role for the species.
    Although Gifford Pinchot provides guidance regarding the 
interpretation of the statutory phrase ``destruction or adverse 
modification,'' it does not directly speak to the meaning of 
``jeopardy.'' In order to determine the benefits of including or 
excluding an area as critical habitat, we must consider the application 
of both of these terms, and how they will be affect the outcomes of 
future section 7 consultations regarding bull trout.
    In its jeopardy determinations under bull trout Section 7 
consultations, the Service uses an analytical framework that relies 
heavily on the importance of core area populations to the survival and 
recovery of the bull trout. This has been the case for all jeopardy 
consultations on the bull trout. These analyses have focused not only 
on the core area populations but also on the habitat conditions 
necessary to support them; they have addressed the survival and 
recovery needs of the bull trout in a qualitative fashion without 
making distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted. This approach is predicated on 
the Service's regulatory definitions of ``harm'' and ``take'' which 
explicitly require a consideration of an agency action's effects on 
habitat, whether or not it is designated as critical.
    Subsequent to the 9th circuit's decision in Gifford Pinchot the 
Service has conducted both a jeopardy and adverse modification analysis 
for consultations involving critical habitat. In conducting the adverse 
modification analysis, the Service has applied the analytical framework 
described in the Director's December 9, 2004, memorandum. The ultimate 
question in this analysis is whether, with implementation of the 
proposed Federal action, the primary constituent elements of affected 
critical habitat would remain functional to serve the intended 
conservation role for the bull trout. Generally, the conservation role 
of bull trout critical habitat units is to support viable core area 
populations, as a result, adverse modification to that habitat would 
result in both a jeopardy determination or an adverse modification 
determination. This leads to the conclusion, in the particular case of 
bull trout that very few examples of adverse modification can occur 
without also triggering a jeopardy finding.
    Some consultations (14 informals, 8 formals) on bull trout critical 
habitat have been conducted in the 9 months since the original 
designation. These consultations have not resulted in outcomes for 
Federal action agencies different than those that would have resulted 
in consultations purely under the jeopardy standard. As stated earlier, 
this result is due in particular to the manner in which the Service 
conducts jeopardy analyses for the bull trout (by focusing on 
protection of core area populations and their habitats, without making 
a distinction between effects on survival versus recovery. The approach 
is consistent with the Gifford Pinchot court's guidance with respect to 
adverse modification, because it is based on a standard that gauges the 
action's effect on conservation rather than survival which is 
consistent with the court's direction that the Agency go beyond merely 
a requirement that the Federal action cause an effect on bull trout 
survival in order to constitute adverse modification.
    We also note that in the 200 or so formal consultations completed 
since the bull trout was listed, most of the anticipated effects of 
proposed Federal actions on the species have not been biologically 
significant from a core-area perspective, and if these actions had been 
subject to the adverse modification standard described above, they 
would not likely have violated it. Based on our analysis of 137 formal 
consultations conducted during the period 1998-2003, the following 
types of projects were proposed in bull trout-occupied habitat, in 
order of frequency (most to least): Multiple project actions, grazing, 
road work, bridge work, habitat restoration, land and resource 
management plans, mining, hydropower, timber harvest, recreation, water 
diversion/irrigation, research, land exchange, flood control, erosion 
control, pipeline construction, predator control, landslide 
remediation, instream crossings, weed management, dredging, and levee 
repair.
    However, at least one major Federal action involving significant 
modifications to natural flow patterns in designated critical habitat 
is currently in formal consultation, and it is likely (based on recent 
litigation patterns and outcomes) that the number of diversion-related 
Federal actions consulted on, some of which may occur in critical 
habitat, will increase in the future. Water quality and quantity are 
significant factors (and primary constituent elements) influencing the 
viability of bull trout core areas. Given that context, it seems 
reasonable to predict that a few Federal actions will be found to 
adversely modify bull trout critical habitat; most of these actions 
would probably also constitute jeopardy.
    This analysis would be different in the case of critical habitat 
designated in unoccupied areas or if currently occupied areas 
subsequently become unoccupied. In such cases, different outcomes/
requirements of consultation on critical habitat are much more likely. 
In the first case, designated unoccupied habitat, there would not 
necessarily be a requirement for a Section 7 consultation in the 
absence of a critical habitat designation. This is consistent with the 
9th Circuit's decision in Defenders of Wildlife v. Flowers et al. 2005, 
414 F.3d 1066 (2005), which upheld a ``no effect'' determination by the 
U.S. Army Corps of Engineers in circumstances in which ``no pygmy-owls 
had been found to live within either project area. This designation 
only designates critical habitat in areas we have defined to be 
occupied, and so the benefits attributable to unoccupied habitat 
designation will not accrue. The second situation identified, whereby 
current populations disappear, theoretically provides a similar 
benefit. However, as a practical matter, it is unlikely that such a 
benefit would accrue in the foreseeable future as this rule defines 
occupied habitat as habitat that has documented occupancy within the 
past 20 years (see the previous discussion for the basis of the 
definition). Based on the FWS definition of occupied habitat, it would 
be at least

[[Page 56240]]

20 years until the protections of a jeopardy consultation, with its 
appurtenant habitat considerations, were removed. Accordingly, we do 
have a basis for believing that in the particular case of this bull 
trout critical habitat, designation in the particular case of the bull 
trout would not result in significantly different protections to the 
species.

Benefits of Designating Critical Habitat in the Absence of Other 
Conservation Efforts

    The designation of critical habitat provides some benefits all the 
time and may in certain circumstances provide conservation benefits 
that would not otherwise be provided. We have identified three types of 
possible benefits. First, there are educational benefits. Second, there 
are circumstances where additional protections under other regulatory 
mechanisms are triggered by a designation. For example PACFISH/INFISH 
has particular protections triggered by a designation and some states 
have regulatory regimes that employ the existence of designated 
critical habitat as a trigger for protection. Third, in the instance 
that a future Federal action would be likely to adversely modify 
critical habitat but not likely to jeopardize the continued existence 
of the species, the designation would provide a benefit.
    The benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and contribute to conservation 
efforts by other parties by clearly delineating areas of high 
conservation value for bull trout. In general the educational benefit 
of a critical habitat designation always exists although in some cases 
it may be redundant with other educational effects (for example habitat 
conservation plans have significant public input and may largely 
duplicate the educational benefit of a critical habitat designation). 
This benefit is closely related to a second, more indirect benefit; in 
that designation of critical habitat would inform State agencies and 
local governments about areas that could be conserved under State laws 
or local ordinances, such as the Washington State Growth Management Act 
or Washington State Shoreline Management Act which encourage the 
protection of ``critical areas'' including fish and wildlife habitat 
conservation areas based on the best available science. Designating 
critical habitat could lead to additional State or local restrictions 
for the landowner, on top of conservation measures already in place. 
The benefit could accrue as a result of an automatic ``triggering'' 
based on existing law, or through specific, subsequent actions designed 
to protect the species. However, to the extent that local and state 
governments wish to provide additional protection for listed species' 
habitats, there are numerous alternative approaches to achieve that 
end. For example, recovery plans or proposed critical habitat can form 
the basis for such additional protections. State and local agencies 
have independent authority to adopt such protections and do not require 
Federal authorization or direction to do so. Because of that, we view 
this benefit as indirect as it is not required to achieve the 
additional protection.
    The most direct, and potentially largest regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to unsure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation are 
not eroded. Critical habitat designation alone, however, does not 
require specific steps toward recovery. When consultation does take 
place, the analysis of whether the Federal action destroys or adversely 
modifies critical habitat makes a determination regarding the effect of 
the action on the species conservation, consistent with the holding of 
Gifford Pinchot, discussed above. It is important to note that even 
though, consistent with Gifford Pinchot, the prohibition on adverse 
modification can be triggered without a showing of an effect on 
survival (in other words, a negative effect on the conservation of the 
species can trigger the prohibition), designation of critical habitat 
does not require actions to recover the species beyond what may be 
necessary to address potential adverse modification impacts on critical 
habitat that supports recovery. There are tools (e.g., HCPs) that can 
encourage or require habitat restoration or improvement and other 
positive steps to help move species closer to being recovered.
    Another significant limitation on the benefits of designating 
critical habitat is the fact that as long as the area in question is 
occupied, consultation would in any case be required to ensure that the 
action was not likely to jeopardize the species. The areas that were 
proposed for designation are all currently occupied by bull trout. 
Therefore, designation of these areas could have a substantive 
regulatory effect in two circumstances: (1) The Service consults on a 
future Federal action, does both jeopardy and adverse modification 
analyses, and concludes that the action would likely adversely modify 
critical habitat but not jeopardize the species, or (2) the range of 
the bull trout contracts prior consultation, such that the area is no 
longer subject to jeopardy consultation, but the action would be likely 
to adversely modify critical habitat.
    Regarding the first of these circumstances, and in a discussion 
specific to bull trout, as discussed above, in analyzing whether 
Federal actions might jeopardize the continued existence of the bull 
trout, the Service has focused on the viability of core area 
populations, without making distinctions between what is necessary for 
survival versus recovery. Because with respect to the bull trout the 
Service views the conservation role of critical habitat units as 
supporting viable core area populations, the Service anticipates that 
few Federal actions (but not necessarily none) would adversely modify 
critical habitat but not jeopardize the species.
    Regarding the second of these circumstances, for each exclusion, 
the Service considered the possibility of local bull trout extirpation 
in the affected stream reaches given the data available. In general, 
the Service does not anticipate significant extirpations in the areas 
excluded, although such an event cannot be completely ruled as 
stochastic events such as a conflagration have in the past completely 
destroyed populations. If such an event was to occur, and an entire 
population was extirpated, the designation of critical habitat could 
provide important protection to the habitat to preserve it for eventual 
recolonization or reintroduction. However, as noted earlier, as a 
practical matter, the Service would consider the habitat occupied for 
20 years subsequent to the temporal extirpation, providing ample 
opportunity for restoration of the population.
    Notwithstanding the limitations discussed above, in those instances 
in

[[Page 56241]]

which the jeopardy prohibition and other applicable protections would 
not adequately conserve bull trout habitat from the effects of Federal 
actions, designation of critical habitat could help ensure the 
integrity of bull trout habitat is maintained. For example, if a 
federally funded road project was proposed to go across lands that were 
designated as critical habitat, a consultation would need to be 
conducted to ensure the designated critical habitat was not destroyed 
or adversely modified to the point of appreciably diminishing its 
habitat features essential to bull trout recovery. The designation 
could therefore result in modifications to the Federal project to 
protect bull trout habitat.
    To the extent that designation results in changes to actions that 
have a negative effect on bull trout habitat, minimizing or mitigating 
that effect, or results in additional actions to benefit bull trout 
habitat (e.g., as a result of disseminating information), designation 
could benefit bull trout conservation. If the designation provided 
additional conservation, it could have direct benefits, such as those 
typically captured in an economic analysis which include, increased 
tourism or recreational activity. In addition, there could be 
intangible benefits that accrue to society in general and individuals 
in direct proportion to the value that society and individuals place on 
such intrinsic values as existence values and environmental goods.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-federal landowners. More than 60% of the 
United States is privately owned (National Wilderness Institute 1995) 
and at least 80% of endangered or threatened occur either partially or 
solely on private lands (Crouse et al. 2002). Stein et al. (1995) found 
that only about 12% of listed species were found almost exclusively on 
Federal lands (i.e., 90-100% of their known occurrences restricted to 
Federal lands) and that 50% of federally listed species are not known 
to occur on Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-federal landowners 
(Wilcove and Chen 1998, Crouse et al. 2002, James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as HCPs, Safe Harbors, CCAs, CCAAs, 
and conservation challenge cost-share. Many private landowners, 
however, are wary of the possible consequences of encouraging 
endangered species to their property, and there is mounting evidence 
that some regulatory actions by the Federal government, while well-
intentioned and required by law, can under certain circumstances have 
unintended negative consequences for the conservation of species on 
private lands (Wilcove et al. 1996, Bean 2002, Conner and Mathews 2002, 
James 2002, Koch 2002, Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999, Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999, Bean 
2002, Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (e.g., 
reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002).
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than critical habitat alone. For example, less than 17% of 
Hawaii is federally owned, but the state is home to more than 24% of 
all federally listed species, most of which will not recover without 
State and private landowner cooperation. On the island of Lanai, Castle 
and Cooke Resorts, LLC, which owns 99% of the island, entered into a 
conservation agreement with the Service. The conservation agreement 
provides conservation benefits to target species through management 
actions that remove threats (e.g. axis deer, mouflon sheep, rats, 
invasive nonnative plants) from the Lanaihale and East Lanai Regions. 
Specific management actions include fire control measures, nursery 
propagation of native flora (including the target species) and planting 
of such flora. These actions will significantly improve the habitat for 
all currently occurring species. Due to the low likelihood of a Federal 
nexus on the island we believe that the benefits of excluding the lands 
covered by the MOA exceeded the benefits of including them. As stated 
in the final critical habitat rule for endangered plants on the Island 
of Lanai:

    On Lanai, simply preventing ``harmful activities'' will not slow 
the extinction of listed plant species. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary 
to implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove 
or reduce disincentives to conservation. While the impact of 
providing these incentives may be modest in economic terms, they can 
be significant in terms of conservation benefits that can stem from 
the cooperation of the landowner. The continued participation of 
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and 
Watershed Partnership and other voluntary conservation agreements 
will greatly enhance the Service's ability to further the recovery 
of these endangered plants.

    Secretary Norton's Four Cs philosophy--conservation through 
communication, consultation, and cooperation--is the foundation for 
developing the tools of conservation. These tools include conservation 
grants, funding for Partners for Fish and Wildlife Program, the Coastal 
Program, and cooperative-conservation challenge cost-share grants. Our 
Private Stewardship Grant program and Landowner Incentive Program 
provide assistance to private land owners in their voluntary efforts to 
protect threatened, imperiled, and endangered

[[Page 56242]]

species, including the development and implementation of HCPs.
    Conservation agreements with non-Federal landowners (e.g., Habitat 
Conservation Plans (HCPs), contractual conservation agreements, 
easements, and stakeholder-negotiated State regulations) enhance 
species conservation by extending species protections beyond those 
available through section 7 consultations. In the past decade we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through coercive methods (61 FR 63854; December 2, 1996).

Conservation Efforts for Aquatic Systems in the Pacific Northwest

    As discussed below, much of the area that contains the physical and 
biological features essential for the conservation of bull trout have 
not been included within this final critical habitat designation. In 
large part, this is a result of existing management and conservation 
regimes that apply to watersheds in the Pacific Northwest. These and 
other state and local conservation planning efforts provide an 
exceptional level of cooperative conservation for bull trout and other 
salmonids.
    Analysis of Particular Plans and Areas Under Sections 3(5)(A) and 
4(b)(2) (For a complete documentation of our 3(5)(a) comparison of the 
protections of a critical habitat designation and the provisions of the 
management plans, please refer to the administrative record. For a 
complete documentation of our and 4(b)(2) analyses, please refer to our 
supporting document.)

Nisqually National Wildlife Refuge

    The Comprehensive Conservation Plan (CCP) for the Nisqually 
National Wildlife Refuge (Refuge) was finalized in August 2004 and the 
ROD was signed on November 1, 2004. The Refuge encompasses the lower 
Nisqually River and delta, one of the few undeveloped large estuaries 
remaining within Puget Sound in Washington, and provides important FMO 
habitat for amphidromous bull trout. The CCP will guide management of 
Refuge operations, habitat restoration, and visitor services for the 
next 15 years. The preferred alternative maximizes estuarine 
restoration by increasing the current amount of FMO habitat for 
amphidromous bull trout in south Puget Sound, while still providing 
freshwater wetlands and riparian habitat on the Refuge. Restoration of 
the estuary is expected to result in increased primary production and 
thus increased food availability for nearly all fish species which 
depend upon estuarine and shallow marine habitats for survival, 
including prey fish species preferred by bull trout. We believe the CCP 
provides the appropriate special management required for the 
conservation of bull trout PCEs in this area and is, therefore, not 
appropriate for designating as critical habitat.

Tribal Lands

    The longstanding and distinctive relationship between Federal and 
tribal governments is defined by treaties, statutes, executive orders, 
judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights.
    We identified tribal lands within proposed critical habitat where 
there was a tribal management or conservation plan, or the commitment 
to establish such a plan, that provided benefits to bull trout and 
considered whether or not to exclude these lands from critical habitat 
under subsection 4(b)(2) of the Act. Tribal lands meeting these 
criteria are: Confederated Tribes of Warm Springs (CTWS) in the 
Columbia River population; Blackfeet Nation in the Saint Mary/Belly 
River population; and Swinomish Tribe, Quinault Indian Nation, 
Muckleshoot Tribe, Jamestown S'Klallam Tribe, Hoh Tribe, and Skokomish 
Tribe Reservations and tribal lands within the Puget Sound-Coastal 
population. These tribes have played a significant role in the 
development of HCPs, local watershed plans, other habitat plans, or 
have conducted numerous habitat restoration and research projects 
designed to protect or improve habitat for listed species.
    The CTWS has a long history of carrying out proactive conservation 
actions on their lands. Our dialog with CTWS has led us to believe that 
their resource management strategy is largely compatible with bull 
trout conservation. The CTWS have cooperated with Federal and State 
agencies, and private organizations to implement voluntary proactive 
conservation activities on their lands that have resulted in tangible 
conservation benefits for bull trout. We expect this cooperation, and 
the fruit that it bears (i.e., bull trout conservation), to continue.
    The Blackfeet Nation has demonstrated a commitment to conservation, 
protection, and enhancement of the fishery resource on the Blackfeet 
Reservation. The tribe has supported and participated in Service 
studies to gather data for assessing effects of the Milk River 
Irrigation System on bull trout within the Saint Mary River drainage. 
They have changed angling regulations on their reservation to maximize 
bull trout protection since the species was listed. The tribe has also 
participated in the bull trout recovery planning process and has 
recently made a commitment to complete a tribal bull trout management 
plan (W.A. Talks About, Blackfeet Tribal Business Council, in litt. 
2005).
    The Swinomish Tribe has a management plan that addresses surface 
water resources of the Swinomish Reservation, including marine 
tidelands, an artificial marine channel, estuarine wetlands, small 
streams, and freshwater wetlands. The management plan is based on 
existing knowledge and ongoing studies, active conservation practices, 
ordinances, and current management plans. It will be updated with new 
information obtained from ongoing surveys, habitat assessments, and 
other planning processes. The plan consists of regulation and 
implementation of updated tribal laws to protect habitat, control 
development, reduce pollution within the boundaries of the Reservation, 
restore habitat and remove fish passage barriers to contribute 
proactively to species recovery.
    The Quinault Indian Nation and the Bureau of Indian Affairs (BIA) 
recently developed a forest management plan (FMP) for the entire 
Quinault Indian Reservation. The FMP covers all forestland (about 
173,000 ac (70,011 ha)) under tribal and BIA timber management, 
including individual Indian-owned trust and tribally owned land. 
Included in the area of the FMP are the lower Quinault River, the 
tributaries of the lower Quinault River, the lower Queets River, the 
Salmon River (including the Middle and South Fork Salmon Rivers), 
portions of the Raft River, and portions of the Moclips River. The FMP 
is a 10-year plan covering the period from October 2002 through 
September 2012. The FMP is being implemented by the Quinault Department 
of Natural Resources and the BIA Taholah Field Office. Although some 
adverse effects to the bull trout are expected during implementation of 
the

[[Page 56243]]

plan, it is expected to provide for bull trout conservation needs.
    The Skokomish Tribe has provided aquatic resource protection and 
restoration through a number of collaborative efforts on their 
reservation and other trust lands. The tribe has been working regularly 
with landowners, local governments, and others to implement and fund 
voluntary efforts that provide conservation benefits to salmonids, 
including bull trout. These cooperative efforts include a variety of 
investigative assessments, restoration and enhancement projects, 
property acquisitions, and floodplain/river reach analysis.
    The Muckleshoot Tribe has demonstrated a commitment to 
conservation, protection, and enhancement of fish resources both on and 
off the Muckleshoot Reservation. For example, the tribe has designated 
all areas of the White River within its reservation, from ``bluff to 
bluff,'' as a conservation zone. The tribe has also been a leading 
participant in gathering data for Lake Washington and preparing a Lake 
Washington Recovery Plan.
    The Jamestown S'Klallam Tribe has a record and reputation as a 
participant and leader in the planning and implementation of salmonid 
habitat protection and restoration efforts. The tribe is dedicated to 
coordinating with NOAA Fisheries, the Service, and with the State of 
Washington in the spirit of co-management, and is also involved in 
active consultation and in multiple programs to protect listed salmonid 
species.
    The Hoh Tribe has an FMP that demonstrates a commitment to protect 
bull trout habitat on or adjacent to its reservation. This forestry 
plan designates major portions of the floodplain and riparian zones 
adjacent to streams on the current reservation landscape for 
conservancy, and is filed with the BIA.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
Federal activities will require section 7 consultations to ensure that 
adequate protection is provided to avoid adverse modification or 
destruction of critical habitat. This would provide an additional 
benefit beyond that provided under the jeopardy standard. In evaluating 
project effects on critical habitat, the Service must be satisfied that 
the primary constituent elements (PCEs) of the critical habitat likely 
will not be altered or destroyed by proposed activities to the extent 
that the conservation of the affected species would be appreciably 
reduced. If critical habitat were designated in areas of unoccupied 
habitat or currently occupied areas subsequently become unoccupied, 
different outcomes/requirements are also likely since effects to 
unoccupied areas of critical habitat are not likely to trigger the need 
for a jeopardy analysis.
    In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 
2001), the Fifth Circuit Court of Appeals stated that the 
identification of habitat essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that critical habitat designation may focus and heighten 
public awareness of the plight of listed species and their habitats. 
Designation of critical habitat may contribute to conservation efforts 
by other parties by delineating areas of high conservation value for 
the bull trout.
(2) Benefits of Exclusion
    The benefits of excluding Indian lands from designation include: 
(1) The furtherance of established national policies, our Federal trust 
obligations, and our deference to the tribes in management of natural 
resources on their lands; (2) the maintenance of effective long-term 
working relationships to promote the conservation of bull trout; (3) 
the allowance for continued meaningful collaboration and cooperation in 
scientific work to learn more about the conservation needs of the 
species; (4) continued respect for tribal sovereignty over management 
of natural resources on Indian lands through established tribal natural 
resource programs; (5) to the extent designation would provide any 
additional protection of bull trout habitat, costs associated with that 
protection would be avoided; (6) exclusion would reduce administrative 
costs of section 7 consultation (as discussed above, these costs are 
unlikely to lead to additional actual protection for bull trout 
habitat).
    We believe that excluding these tribal lands from critical habitat 
will help maintain and improve our partnership relationship by 
recognizing their positive contribution to bull trout conservation. It 
will also reduce the cost and logistical burden of regulatory 
oversight. We believe this recognition will provide other landowners 
with a positive incentive to undertake voluntary conservation 
activities on their lands, especially where there is no regulatory 
requirement to implement such actions.
    Tribal cooperation and support is required to prevent extinction 
and promote the recovery of the bull trout due to the need to implement 
proactive conservation actions. Future conservation efforts will 
require the cooperation of these tribes. Exclusion of their lands from 
this critical habitat designation will help us maintain and improve our 
partnership with them by formally recognizing the positive 
contributions these tribes have made to bull trout recovery, and by 
streamlining or reducing unnecessary regulatory oversight.
    These tribes have cooperated with us to implement proactive 
conservation measures. They have cooperated with Federal and State 
agencies, and private organizations to implement voluntary conservation 
activities on their lands that have resulted in tangible conservation 
benefits.
    Where consistent with the discretion provided by the Act, we 
believe it is necessary to implement policies that provide positive 
incentives to voluntarily conserve natural resources and remove or 
reduce disincentives to conservation. Thus, we believe it is essential 
for the recovery of bull trout to build on continued conservation 
activities with these tribes, to provide positive incentives 
implementing voluntary conservation activities, and to respect tribal 
concerns about incurring incidental regulatory or economic impacts.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    It is possible, although unlikely, that Federal actions will be 
proposed that would be likely to destroy or adversely modify the 
habitat proposed as critical within the area governed by the above 
tribes. If such a project was proposed, due to the specific way in 
which jeopardy and adverse modification are analyzed for bull trout, 
discussed in detail above, it would likely also jeopardize the 
continued existence of the species. Few additional benefits are 
provided by including these tribal lands in this critical habitat 
designation beyond what will be achieved through the implementation of 
the existing tribal management/conservation plans. In addition, we 
expect that the benefit of informing the public of the importance of 
this area to bull trout conservation would be slight. Therefore, we 
assign relatively little weight to the benefits of designating this 
area as critical habitat.
    In contrast, although the benefits of encouraging participation in 
tribal management plans, and, more broadly, helping to foster 
cooperative conservation are indirect, enthusiastic

[[Page 56244]]

tribal participation and an atmosphere of cooperation are crucial to 
the long-term effectiveness of the endangered species program. 
Therefore, we assign great weight to these benefits of exclusion. To 
the extent that there are regulatory benefits of including, there would 
be associated costs that could be avoided by excluding the area from 
designation. However, as we expect the regulatory benefits to be 
slight, we likewise give little weight to avoidance of those associated 
costs, as well as the additional transaction costs related to section 7 
compliance. Finally, we recognize the importance of the trust and 
sovereignty of the tribes, and therefore assign great weight to these 
benefits of exclusion.
    Therefore, we have determined that the benefits of inclusion for 
the tribes mentioned above are small, while the benefits of exclusion 
are more significant. Therefore, the benefits of exclusion outweigh the 
benefits of inclusion. Because we anticipate that little if any 
conservation benefit to the bull trout will be foregone as a result of 
excluding these lands, the exclusion will not result in the extinction 
of the bull trout. The Secretary exercises her discretion under section 
4(b)(2) to exclude these areas from the designation.

Military Lands

    The Navy conducts essential open water training and testing within 
the marine waters of Crescent Harbor and Dabob Bay, located within 
Puget Sound on the eastside of Whidbey Island and within the Hood Canal 
fiord, respectively. These areas encompass important marine nearshore 
habitat used by amphidromous bull trout for foraging and migration. 
NUWC Keyport provides state-of-the-art infrastructure and capabilities 
in the Pacific Northwest that have been essential to the Navy's 
comprehensive underwater test and evaluation programs for undersea 
weapons, unmanned undersea vehicles, and related combat systems, as 
well as to the training of Fleet personnel at the NUWC Keyport 
facilities. NUWC Keyport testing and training activities to support 
military readiness requires precision underwater tracking capabilities, 
underwater range sites that offer diverse environments, and varied 
water depths to meet their mission of test and evaluation of underwater 
systems. Because these activities are conducted in open marine waters, 
they are not included in the military's INRMP. Limitations on access 
to, the use of, or the enhancement of, the existing capabilities and 
capacities of these ranges would limit or curtail both testing and 
mission critical Fleet Support functions performed by NUWC Keyport for 
undersea warfare. These areas have been defined on NOAA charts for over 
50 years and operating areas have been further delineated in recent 
public environmental documentation. A NEPA analysis for these areas has 
been conducted within the past 5 years, and includes biological 
assessments evaluating effects on endangered species, which were 
reviewed and approved by NOAA-Fisheries and the Service. These 
biological assessments, and associated environmental assessments, 
addressed bull trout and interactions with military range operations.
(1) Benefits of Inclusion
    Habitat containing features essential to bull trout conservation 
exists within or immediately adjacent to these military open water 
training and testing grounds. The primary benefit of designating 
critical habitat on, or adjacent to, these open water training and 
testing grounds would result from the requirement under section 7 of 
the Act that Federal agencies consult with us to ensure that any 
proposed action authorized, funded, or carried out by a Federal agency 
would not destroy or adversely modify critical habitat. In addition, 
the designation can educate the public regarding the potential 
conservation value of an area. This may contribute to conservation 
efforts by other parties by delineating areas that have conservation 
value for the bull trout.
(2) Benefits of Exclusion
    Designating critical habitat on these open water training and 
testing areas may impact their role in supporting ongoing military 
exercises and operations that occur at these locations. The military 
activities occurring at these sites are currently being conducted in a 
manner that minimizes impacts to bull trout habitat. In addition, the 
Navy already consults with us on their actions occurring in the open 
water training and testing areas that may have potential impacts to 
bull trout and their habitat under section 7 requirements.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Because of the relatively limited benefits arising from the 
designation of critical habitat, we believe the role played in 
supporting Navy operations, and the related importance to national 
security of ensuring their ability to maintain a high level of military 
readiness, we have determined that the national security benefits of 
excluding areas within or adjacent to the Crescent Harbor and Dabob Bay 
open water training and testing areas as critical habitat, outweigh the 
benefits of including them in the designation. Because these marine 
waters are occupied by the species, and the Navy has a statutory duty 
under section 7 to ensure that its activities do not jeopardize the 
continued existence of the bull trout, we find that the exclusion of 
these marine waters will not lead to the extinction of the bull trout.

Habitat Conservation Plans

    Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-Federal landowner to 
proceed with an activity that is legal in all other respects, but that 
results in the incidental taking of a listed species (i.e., take that 
is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The ESA specifies that an application for 
an incidental take permit must be accompanied by a conservation plan, 
and specifies the content of such a plan. The purpose of conservation 
agreements is to describe and ensure that the effects of the permitted 
action on covered species are adequately minimized and mitigated, and 
that the action does not appreciably reduce the survival and recovery 
of the species.
    In our assessment of conservation agreements associated with this 
final rulemaking the analysis required for these types of exclusions 
requires careful consideration of the benefits of designation versus 
the benefits of exclusion to determine whether benefits of exclusion 
outweigh benefits of designation. The benefits of designation typically 
arise from additional section 7 protections as well as enhanced public 
awareness once specific areas are identified as critical habitat. The 
benefits of exclusion generally relate to relieving regulatory burdens 
on existing conservation partners, maintaining good working 
relationships with them, and encouraging the development of new 
partnerships.
    Based on comments received on our proposed rule, we could not 
conclude that all landowners view designation of critical habitat as 
imposing a burden, and exclusion from designation as removing that 
burden and thereby strengthening the ongoing relationship. While no 
conservation agreement partner affirmatively requested designation, we 
would have viewed the exclusion as likely to harm rather than benefit 
the relationship. Where a conservation agreement partner has

[[Page 56245]]

remained silent on the benefit of exclusion of its land, we do not 
believe the record supports a presumption that exclusion will enhance 
the relationship. Similarly, we do not believe it provides an incentive 
to other landowners to seek a conservation agreement if our exclusions 
are not in response to an expressed landowner preference. We anticipate 
further rulemaking in the future to refine these designations, for 
example, in response to developments in recovery planning. As part of 
future revisions, we will consider information we receive from those 
with approved conservation agreements regarding the effect of 
designation on our ongoing partnership. While we have done so in the 
past, in this rulemaking we did not consider any pending HCPs for 
exclusion, primarily because none of the pending HCPs were at a point 
we could do so without prejudging the outcome of the ongoing HCP 
process and because we expect further changes to the developing HCPs. 
In addition, we expect to have future opportunities to refine this 
designation to provide credit for future activities on private lands as 
well as currently ongoing activities for which there was insufficient 
time to adequately review and make a benefits determination. When we 
review this designation in the future, we will consider whether any 
exclusion will outweigh the benefit of designation in any particular 
case.
    During the comment period we received comments from five landowners 
with current HCPs that they would consider exclusion as a benefit to 
our ongoing relationship--Washington Department of Natural Resources 
(WDNR), Green Diamond Resources Company, City of Seattle Cedar River 
Watershed, Tacoma Water Green River, and Plum Creek/Stimson Lumber 
Company Native Fish HCPs.

WDNR

    The Washington Department of Natural Resources HCP covers about 1.6 
million acres of State forest trust lands within the range of the 
northern spotted owl in the state of Washington. The majority of the 
HCP (approximately 1.3 million acres) occurs west of the Cascade Crest 
and includes the Olympic Peninsula and Southwest Washington. The 
remainder of the HCP occurs on the east side of the Cascade Mountains 
within the range of the northern spotted owl. The HCP covers activities 
primarily associated with commercial forest management. It is an ``all-
species'' HCP west of the Cascade Crest, which includes bull trout and 
other salmonids. On the east side of the Cascade Crest, bull trout and 
other aquatic species are not covered under the HCP and DNR is 
therefore required to follow State Forest Practice Rules for riparian 
management and other forestry activities. The DNR HCP lands on the west 
side of the Olympic Peninsula are managed as the Olympic Experimental 
State Forest. The multi-species portion of the HCP depends upon several 
broad-scale conservation approaches: Spotted owl conservation, marbled 
murrelet conservation, riparian conservation, certain species-specific 
protection measures, protection of uncommon habitats, and provisions to 
maintain a range of forest types across the HCP landscape.

Green Diamond HCP

    In October 2000, an HCP (formerly referred to as the Simpson Timber 
HCP and currently referred to as the Green Diamond HCP) was completed 
and an incidental take permit was issued for forestry operations on 
over 261,000 acres of the company's Washington timberlands located on 
or adjacent to the Olympic Peninsula in Mason, Thurston, and Grays 
Harbor Counties. The HCP is designed to conserve riparian forests, 
improve water quality, prevent management-related hill-slope 
instability, and address hydrological maturity of small sub-basins. The 
plan addresses five listed species including bull trout and 46 other 
species. The HCP covers the land owned by Green Diamond along the lower 
reaches of the North Fork and South Fork Skokomish Rivers, the upper 
South Fork Skokomish River, West Fork Satsop River, and Canyon River. 
The HCP is designed to conserve riparian forests, improve water 
quality, prevent management-related hill-slope instability, and address 
hydrological maturity of small sub-basins.

City of Seattle Cedar River Watershed HCP

    In April 2000, The Cedar River Watershed HCP was completed and an 
incidental take permit was issued to the City of Seattle for water 
withdrawal and water supply activities affecting flows in the lower 
Cedar River and reservoir levels in Chester Morse Lake. In addition, 
the plan provides for forestry restoration activities including 
riparian thinning, road abandonment, and timber stand improvement on 
over 91,000 acres in the upper Cedar River Watershed in King County. 
The HCP is designed to provide adequate fish flows in the lower Cedar 
River for the spawning and rearing of several salmonid species, to 
manage water levels in Chester Morse Lake and Masonry Dam Reservoir to 
benefit instream flows in the lower river and bull trout spawning 
access to lake tributaries, and to manage 91,000 acres in the upper 
Cedar River as an ecological reserve. Several research actions are 
directed at understanding how all life stages of bull trout use Chester 
Morse Lake and Masonry Pool and how adult bull trout use tributaries to 
the lake for spawning. The HCP covers 83 species of fish and wildlife 
including bull trout and six other listed species.

Tacoma Water Green River HCP

    The Tacoma Water Green River Water Supply Operations and Watershed 
Protection HCP was completed in July of 2001 and addresses upstream and 
downstream fish-passage issues, flows in the middle and lower Green 
River, and timber- and watershed-management activities on about 15,000 
acres of Tacoma-owned land in the upper Green River Watershed. The HCP 
covers 32 species including bull trout. This HCP required close 
coordination with the U.S. Army Corps of Engineers (COE) because of 
their facility at Howard Hanson Dam. Tacoma's HCP includes the 
following features: An upstream fish-passage facility which will open 
up 220 square miles of previously blocked fish habitat; sponsorship and 
funding for a downstream fish-passage facility at the Corps of 
Engineers Howard Hanson Dam; water-flow improvements; improved riparian 
forest management on Tacoma's lands; and several major habitat 
restoration projects.

Plum Creek/Stimson Lumber Company Native Fish HCPs

    Plum Creek Timber Company initiated an effort in 1997 to develop a 
conservation strategy for native salmonids (including bull trout), 
occurring on 1.6 million acres of Plum Creek's Timberlands in Montana, 
Idaho, and Washington. The stated purpose of the Plum Creek Native Fish 
Habitat Conservation Plan (NFHCP) was to help conserve native salmonids 
and their ecosystems while allowing Plum Creek to continue to conduct 
commercial timber harvest within a framework of long term regulatory 
certainty and flexibility. The Stimson Lumber NFHCP was created when 
the Stimson Lumber Company acquired certain lands previously owned by 
Plum Creek and assumed all of the Plum Creek NFHCP commitments. Because 
of the commonality, for purposes of this discussion, the Plum Creek and 
Stimson NFHCP are considered one and the same. The Plum Creek NFHCP 
covers approximately 1.4 million acres, all within the range of the 
Columbia River basin. NFHCP actions should maintain

[[Page 56246]]

a high-level of water quality. They are expected to maintain the 
thermal regime of streams within the range of normal variation, and 
contribute to the maintenance of complex stream channels, appropriate 
substrates, a natural hydrologic regime, ground-water sources and 
subsurface connectivity, migratory corridors, and an abundant food 
base. NFHCP actions are not expected to introduce or favor nonnative 
competitors or predators. In short, the NFHCP is expected to benefit 
the aquatic environment by providing a gradual improvement in the cold 
and clean water as well as complex and connected habitat necessary for 
protection and restoration of bull trout.
(1) Benefits of Inclusion of the WDNR, Green Diamond, City of Seattle 
Cedar River Watershed, Tacoma Water Green River, and Plum Creek/Stimson 
Lumber Company Native Fish HCPs
    The principal regulatory benefit of critical habitat is that 
federally authorized, funded, or carried out activities require 
consultation pursuant to section 7 of the Act to ensure that they will 
not destroy or adversely modify critical habitat. In the recent Gifford 
Pinchot decision, the 9th Circuit Court of Appeals has ruled that 
adverse modification evaluations require consideration of impacts on 
the recovery of species. Conducting section 7 consultations would 
provide benefits on HCP lands with a Federal nexus by helping ensure 
the integrity of these lands is maintained. For example, if a federally 
funded road project was proposed to go across respective HCP lands that 
were designated as critical habitat, a consultation would need to be 
conducted to ensure the designated critical habitat was not destroyed 
or adversely modified to the point of appreciably diminishing its 
habitat features essential to bull trout recovery.
    Designation of critical habitat facilitates state and local 
regulatory agencies in taking further protective measures where 
critical habitat is designated resulting in potential additional 
changes in operations at the aforementioned hydroelectric projects. In 
fact, State law requires consideration of additional rules and areas 
for protection upon designation of critical habitat.
    To the extent that critical habitat would result in environmental 
protection (e.g., changes to Federal projects that otherwise would have 
resulted in destruction or adverse modification) that would exceed the 
protection garnered from other environmental regulations (e.g., Clean 
Water Act), there would be some benefit associated with maintaining 
fish passage survival standards, fish production through hatcheries to 
compensate for population losses, and tributary habitat loss 
compensation that would translate into economic benefits such as those 
that may result from increased recreational fishing opportunities for 
other species that would benefit from such management.
    Another recognized benefit of including lands or sections of rivers 
in critical habitat is that the designation of critical habitat serves 
to educate landowners, hydroelectric operators, state and local 
governments, and the public regarding the potential conservation value 
of an area. This helps focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for bull trout. Designation of critical habitat would inform state 
agencies and local governments about areas that could be conserved 
under state laws or local ordinances, such as the Washington State 
Growth Management Act or Washington State Shoreline Management Act 
which encourage the protection of ``critical areas'' including fish and 
wildlife habitat conservation areas based on the best available 
science.
(2) Benefits of Exclusion of the WDNR, Green Diamond, City of Seattle 
Cedar River Watershed, Tacoma Water Green River, and Plum Creek/Stimson 
Lumber Company Native Fish HCPs
    We identified a number of possible benefits of excluding the area 
covered by these HCPs from critical habitat designation. First, to the 
extent designation would provide any additional protection of bull 
trout habitat, costs associated with that protection would be avoided. 
Second, exclusion would reduce largely redundant administrative costs 
of section 7 consultation; as discussed above, these costs are unlikely 
to lead to additional actual protection for bull trout habitat. Third, 
exclusion would provide an incentive for participation in the 
development of new HCPs. Fourth, exclusion would help to foster an 
atmosphere of cooperation in the conservation of endangered species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion for the 
WDNR, Green Diamond, City of Seattle Cedar River Watershed, Tacoma 
Water Green River, and Plum Creek/Stimson Lumber Company Native Fish 
HCPs
    As discussed above, it is possible, although unlikely, that any 
Federal action will be proposed that would be likely to destroy or 
adversely modify the habitat proposed as critical within the area 
governed by these HCPs. If such a project was proposed, due to the 
specific way in which jeopardy and adverse modification are analyzed 
for bull trout, discussed in detail in the preamble, it would likely 
also jeopardize the continued existence of the species. In addition, as 
discussed above, we expect that the benefit of informing the public of 
the importance of this area to bull trout conservation would be slight. 
Therefore, we assign relatively little weight to the benefits of 
designating this area as critical habitat.
    In contrast, although the benefits of encouraging participation in 
HCPs, particularly large-scale HCPs, and, more broadly, helping to 
foster cooperative conservation are indirect, enthusiastic HCP 
participation and an atmosphere of cooperation are crucial to the long-
term effectiveness of the endangered species program. Therefore, we 
assign great weight to these benefits of exclusion. To the extent that 
there are regulatory benefits of including, there would be associated 
costs that could be avoided by excluding the area from designation. 
However, as we expect the regulatory benefits to be slight, we likewise 
give little weight to avoidance of those associated costs, as well as 
the additional transaction costs related to section 7 compliance.
    Therefore, we have determined that the benefits of inclusion of the 
areas covered by these HCPs are small, while the benefits of exclusion 
are more significant. Therefore, the benefits of exclusion outweigh the 
benefits of inclusion. Because we anticipate that little if any 
conservation benefit to the bull trout will be foregone as a result of 
excluding these lands, the exclusion will not result in the extinction 
of the bull trout. The Secretary exercises her discretion under section 
4(b)(2) to exclude these areas from the designation (see comprehensive 
exclusion language in the preamble).
    For those conservation agreements, we analyzed the activities 
covered by the agreement, the protections afforded by the agreement, 
and the Federal activities that are likely to occur on the affected 
lands. We considered the number of stream miles within these lands and 
the number of expected section 7 consultations in those areas. From 
this information we determined the benefit of designation, which we 
then weighed against the benefit of exclusion. We concluded that the 
benefits of exclusion species outweigh the benefits of designation and 
therefore have excluded lands covered by these agreements in this final 
designation.

[[Page 56247]]

The analysis is described in further detail in the FWS Administrative 
Record. We have determined that these exclusions, together with the 
other exclusions described in this rule, will not result in extinction 
of the species (for a complete documentation of our 3(5)(a) and 4(b)(2) 
analyses, please refer to our supporting document, Bull Trout Critical 
Habitat 3(5)(a) and 4(b)(2) Analyses).

Lewis River Hydroelectric Projects Conservation Easements

    There are four projects and three dams that impound over 30 miles 
of river habitat on the Lewis River in Washington. They are located in 
portions of Clark, Cowlitz, and Skamania Counties. Bull trout are 
present in all of the reservoirs; the upper two reservoirs have the 
most significant populations and also support spawning populations. A 
Settlement Agreement (Agreement) for the relicensing of the Yale, 
Merwin, Swift No. 1, and Swift No. 2 hydroelectric projects was signed 
on November 30, 2004. Conservation measures are incorporated in the 
Agreement to minimize or compensate for the effects of the projects on 
listed species, including bull trout. Conservation measures for bull 
trout include perpetual conservation covenants on PacifiCorp's lands in 
the Cougar/Panamaker Creek area and PacifiCorp's and Cowlitz PUD's 
lands along the Swift Creek arm of Swift Creek Reservoir, upstream and 
downstream fish passage improvements at all reservoirs, limiting-
factors analysis for bull trout to determine additional enhancement 
measures, public information program to protect bull trout, and 
monitoring and evaluation efforts for bull trout conservation measures. 
This agreement will also restore anadromous salmon to the upper Lewis 
River system, restoring a significant part of the historic forage base 
for bull trout.
(1) Benefits of Inclusion
    Designation of critical habitat for bull trout on lands managed 
under Lewis River Hydroelectric Projects Conservation Easements would 
provide protection from ``destruction or adverse modification'' of 
designated critical habitat under section 7 of the Act. However, 
without designation, a certain amount of habitat protection would be 
provided through the jeopardy standard. As noted earlier, based on our 
review of previous bull trout consultations under this standard, we 
have found little to indicate that there would be additional habitat 
protections generated by the designation beyond those provided through 
the jeopardy standard.
    If critical habitat was designated in areas of unoccupied habitat 
or currently occupied areas that subsequently become unoccupied, there 
would not be a jeopardy analysis for the species. The adverse effect to 
critical habitat would have to rise to the level of destruction/adverse 
modification to effect changes in the proposed action via a Reasonable 
and Prudent Alternative. Since the destruction/adverse modification 
determination is made in the context of an entire critical habitat 
designation, this would be a rare occurrence.
    Designating critical habitat can educate the public and management 
agencies about the distribution of areas containing features essential 
to the conservation of a species. In areas lacking a bull trout-
specific management plan, designation can guide projects to avoid 
impacts to listed species and can help focus recovery efforts. However, 
we believe little additional informational benefit will be gained by 
including Swift and Cougar Creeks in designated critical habitat for 
bull trout. PacifiCorp has begun implementing conservation 
recommendations, provided in our 2002 biological opinion, that include 
posting interpretive signs to educate anglers on identifying and 
conserving native char, and techniques for catch and release to 
minimize incidental hooking mortality of bull trout. While we believe 
educational benefits are important for the conservation of bull trout, 
we believe it has already been achieved through PacifiCorp's 
conservation easement, publication of the proposed critical habitat 
rule, the many public and interagency meetings that have been held to 
discuss the proposal, and discussion contained in this final rule.
(2) Benefits of Exclusion
    The complex process of negotiating relicensing for the Lewis River 
hydroelectric projects has been ongoing for 9 years. We have 
established valuable working relationships with the PacifiCorp, Cowlitz 
County PUD, and the other participants during these complex 
negotiations. Through the relicensing negotiations, we have built trust 
and encouraged open dialogue regarding aquatic and riparian management 
issues among the participants.
    By excluding lands included in the two conservation easements from 
designated critical habitat we will: (1) Maintain and enhance our 
ability to continue working with PacifiCorp, Cowlitz County PUD, other 
relicensing applicants, and FERC; and (2) other jurisdictions, private 
landowners, and other entities will likely continue to see the benefit 
of working cooperatively with us. This will provide incentives to 
develop other conservation agreements, or other conservation actions 
such as HCPs, to provide the bases for future opportunities to conserve 
species and their habitats. Negotiating conservation measures under 
conditions of mutual trust can result in greater conservation benefits 
to the species than would result from including Swift and Cougar Creeks 
in designated critical habitat.
    Exclusion would also reduce administrative costs of conducting 
section 7 consultations on bull trout critical habitat (see Section 
3(5)(A) and Exclusions Under Section 4(b)(2) section above).
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    It is possible, although unlikely, that any Federal action will be 
proposed that would be likely to destroy or adversely modify the 
habitat proposed as critical within the area governed by the Lewis 
River Conservation Easement. If such a project was proposed, due to the 
specific way in which jeopardy and adverse modification are analyzed 
for bull trout, discussed in detail above, it would likely also 
jeopardize the continued existence of the species. In addition, as 
discussed above, we expect that the benefit of informing the public of 
the importance of this area to bull trout conservation would be slight. 
Therefore, we assign relatively little weight to the benefits of 
designating this area as critical habitat.
    In contrast, although the benefits of encouraging participation in 
conservation partnerships, particularly large-scale conservation 
projects, and, more broadly, helping to foster cooperative conservation 
are indirect, enthusiastic conservation project participation and an 
atmosphere of cooperation are crucial to the long-term effectiveness of 
the endangered species program. Therefore, we assign great weight to 
these benefits of exclusion. To the extent that there are regulatory 
benefits of including, there would be associated costs that could be 
avoided by excluding the area from designation. However, as we expect 
the regulatory benefits to be slight, we likewise give little weight to 
avoidance of those associated costs, as well as the additional 
transaction costs related to section 7 compliance.
    Therefore, we have determined that the benefits of inclusion of the 
areas covered by this conservation easement are small, while the 
benefits of exclusion are more significant.

[[Page 56248]]

Therefore, the benefits of exclusion outweigh the benefits of 
inclusion. Because we anticipate that little if any conservation 
benefit to the bull trout will be foregone as a result of excluding 
these lands, the exclusion will not result in the extinction of the 
bull trout. The Secretary exercises her discretion under section 
4(b)(2) to exclude these areas from the designation (see comprehensive 
exclusion language in the preamble).

Washington State Forest Practices Rules and Forest Practices 
Regulations for Bull Trout (FFR)

    Beginning in late 1996, faced with the imminent listing of several 
salmonid species, including bull trout, under the Endangered Species 
Act (ESA), a diverse group of stakeholders in Washington State agreed 
to address emerging riparian habitat issues. After almost 2 years of 
negotiations, representatives of environmental interests and some 
Tribes withdrew from negotiations. The remaining participants continued 
negotiating and eventually agreed to the Forests and Fish Report in 
April 1999. Later that year the Washington State Legislature passed the 
Forest Practices Salmon Recovery Act (Engrossed Substitute House Bill 
2091), which directed the Washington Forest Practices Board to adopt 
new rules, encouraging the Forest Practices Board to follow the 
recommendations of the Forests and Fish Report (FFR). To further the 
purpose of regulatory stability, the Forest Practices Salmon Recovery 
Act also limited future changes to the new rules so that outside of a 
court order or legislative directive, new rules could be adopted by the 
Forest Practices Board ``only if the changes or new rules are 
consistent with the recommendations resulting from the scientifically 
based adaptive management process'' included in the Forests and Fish 
Report. The language further solidified the adaptive management process 
as a key component of the conservation program.
    Following the passage in 1999 of emergency forest practices rules 
based on the Forests and Fish Report, the Washington Forest Practices 
Board adopted new permanent rules in May 2001. Effective July 2001, 
these rules cover a wide variety of forest practices and include: (1) A 
new, more functional, classification of rivers and streams on non-
federal and non-tribal forestland; (2) improved plans for properly 
designing, maintaining, and upgrading existing and new forest roads; 
(3) additional protections for unstable slopes; and (4) greater 
protections for riparian areas intended to restore or maintain properly 
functioning aquatic and riparian habitat conditions. In addition to 
these substantive provisions, the rules adopted the procedural 
recommendations of the Forests and Fish Report that address adaptive 
management, training, and other features. The Washington State 
Legislature and U.S. Congress continued to support the collaboration 
with significant funding for the research, monitoring, and adaptive 
management activities called for in the Forests and Fish Report.
(1) Benefits of Inclusion
    Designation of critical habitat for bull trout on lands managed 
under Washington State Forest Practices Rules would provide protection 
from ``destruction or adverse modification'' of designated critical 
habitat under section 7 of the Act. However, without designation, a 
certain amount of habitat protection would be provided through the 
jeopardy standard. As noted earlier, based on our review of previous 
bull trout consultations under this standard, we have found little to 
indicate that there would be additional habitat protections generated 
by the designation beyond those provided through the jeopardy standard.
    If critical habitat was designated in areas of unoccupied habitat 
or currently occupied areas that subsequently become unoccupied, there 
would not necessarily be a jeopardy analysis for the species. The 
adverse effect to critical habitat would have to rise to the level of 
destruction/adverse modification to effect changes in the proposed 
action via a Reasonable and Prudent Alternative. Since the destruction/
adverse modification determination is made in the context of an entire 
critical habitat designation, this would be a rare occurrence.
    In addition to the prescriptions in the Rules for protecting 
riparian and aquatic habitat that benefits the broad range of aquatic 
species, the Rules include specific provisions for protecting bull 
trout habitat in eastern Washington. Beyond this, there is adaptive 
management research and monitoring required under the Washington Forest 
Practices Rules that specifically addresses the effectiveness and 
validity of the Rules in protecting bull trout habitat.
    Designating critical habitat can educate the public and management 
agencies about the distribution of areas containing features essential 
to the conservation of a species. In areas lacking a bull trout-
specific management plan, designation can guide projects to avoid 
impacts to listed species and can help focus recovery efforts. Many 
landowners subject to Washington State Forest Practices Rules are 
likely aware of the concerns for bull trout conservation. We expect 
that designated critical habitat in these areas would provide some 
additional context, protection, or benefit that would enhance existing, 
or future, bull trout conservation efforts.
(2) Benefits of Exclusion
    The Washington Forest Practices Rules require a large-scale, 
comprehensive adaptive management program that is supported by in-kind 
participation by the stakeholders that authored the Forests and Fish 
Report. The basis for the Washington Forest Practices Rules is the 
Forests and Fish Report. The Forests and Fish Report was created in a 
collaborative effort by multi-stakeholders to identify goals and 
prescriptions to protect riparian and aquatic-dependent species, 
including bull trout. This cooperative conservation is crucial to the 
long-term recovery of listed species.
    Exclusion of areas covered by the Washington Forest Practices Rules 
from critical habitat designation would be viewed as honoring the 
assurances made during the negotiations of the Forests and Fish Report 
by most Washington forestland stakeholders. The assurances being that 
the Rules provide adequate minimization and mitigation measures to 
address bull trout conservation. Failure to exclude the Rules could be 
viewed as an attempt to extract additional and ``unfair'' mitigation in 
violation of the principles behind the Washington Forest Practices 
Rules and Forests and Fish Report negotiations. Cooperation between the 
Service and the State to develop and update the Washington Forest 
Practices Rules for terrestrial, threatened and endangered species 
would be enhanced through continued cooperative relationships.
    In addition, failure to exclude the Rules could be a disincentive 
for other entities contemplating collaborative rule-making as it would 
imply that the Service intends to impose additional regulatory burdens 
once conservation measures have been agreed upon and could undermine 
the progress made by generating perceptions that we might erode those 
assurances.
    Exclusion would also reduce administrative costs of conducting 
section 7 consultations on bull trout critical habitat (see Section 
3(5)(A) and Exclusions Under Section 4(b)(2)--Generally section above).

[[Page 56249]]

(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    It is possible, although very unlikely, that any Federal action 
would be proposed that would be likely to destroy or adversely modify 
the habitat proposed as critical within the lands regulated by the 
Washington Forest Practices Rules. If such a project was proposed, due 
to the specific way in which jeopardy and adverse modification are 
analyzed for bull trout, discussed in detail in the preamble, it would 
likely also jeopardize the continued existence of the species.
    The forest landowners regulated by the Washington Forest Practices 
Rules, as well as those organizations that are directly or indirectly 
affected by the Rules, are already aware of the need for protecting and 
conserving bull trout and their habitat.
    Based on the above discussion, we assign relatively little weight 
to the benefits of designating the lands regulated by the Washington 
Forest Practices Rules as critical habitat for bull trout. In contrast, 
because exclusions of these areas from critical habitat will be very 
beneficial to our relationships with stakeholders in the FFR process, 
and those relationships area crucial to the long-term recovery of bull 
trout and other listed species, we assign great weight to the benefits 
of excluding these lands from designation. Therefore, the benefits of 
exclusion outweigh the benefits of inclusion. Because we anticipate 
that little, if any, conservation benefit to bull trout will be 
foregone as a result of excluding these lands, the exclusion will not 
result in the extinction of bull trout. The Secretary exercises her 
discretion under section 4(b)(2) to exclude these areas from the 
designation (see comprehensive exclusion language in the preamble).

Jarbidge River Bull Trout Critical Habitat Unit

    During the last decade, the Jarbidge River watershed has been the 
site of substantial conflicts between Federal officials and local 
interests concerning the conservation and management of bull trout, the 
Jarbidge River, and associated uplands (Williams 2001). These 
conflicts, which involved anti-government protests and demonstrations, 
have had an overall negative impact on the Federal government's ability 
to work cooperatively with local officials and private landowners to 
conserve and recover the bull trout and other listed species on Federal 
and non-federal lands in northern Nevada (Sonner 2001, Williams 2001, 
Robert 2002). This cooperative relationship is particularly important 
in relation to achieving voluntary actions to improve bull trout 
populations and habitat which are identified in the recovery plan.
    During the last year, however, both the Service and the U.S. Forest 
Service have dedicated significant resources and have made encouraging 
progress in restoring cooperative relationships with the local 
community. For example, both agencies have received a ``Certificate of 
Appreciation'' from Elko County on September 7, 2005, for providing 
support for the installation of a temporary bridge over the Jarbidge 
River. Maintenance and improvement of such relationships is key to 
recovering listed species and is a cornerstone of the Secretary's ``4 
C's'' policy. The active support of local officials and landowners for 
the conservation of bull trout increases the species likelihood of 
recovery. In contrast, local opposition to bull trout conservation 
efforts could be a significant impediment to the species' recovery, 
especially on non-federal lands, where the voluntary efforts will 
achieve actions identified in the recovery plan.
    Given this history, we considered whether to exclude non-federal 
lands in the Jarbidge River Bull Trout Critical Habitat Unit (CHU) from 
the final critical habitat designation. Pursuant to section 4(b)(2) we 
analyzed whether the benefits of designating these lands were 
outweighed by the benefits of excluding these lands from a final 
designation. In the following section, we evaluate a ``without critical 
habitat'' scenario and compare it to a ``with critical habitat'' 
scenario. The difference between the two scenarios measured the net 
negative or positive impacts attributable to the designation of 
critical habitat. We paid particular attention to the following issues:
    <bullet> The degree to which a critical habitat designation would 
confer regulatory conservation benefits on these species (e.g., high, 
medium, low);
    <bullet> Whether the designation would educate members of the 
public such that conservation efforts would be enhanced;
    <bullet> 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
    <bullet> To what extent a critical habitat designation is likely to 
encourage or discourage future cooperative efforts with local 
landowners and officials.
    If a critical habitat designation results in a quantifiable 
reduction in the likelihood that existing or future voluntary, 
cooperative conservation activities will be carried out on non-federal 
lands, and at the same time fails to confer a counter-balancing 
positive regulatory or educational benefit to the species, then the 
benefits of excluding such areas from critical habitat outweigh the 
benefits of including them.
(1) Benefits of Including the Jarbidge River Bull Trout Critical 
Habitat Unit
    The principal benefit of designating critical habitat on non-
federal lands is that Federal activities that may affect such habitat 
are subject to consultation pursuant to section 7 of the Act. Such 
consultation requires every Federal agency to ensure that any action it 
authorizes, funds, or carries out is not likely to result in the 
destruction or adverse modification of critical habitat. This 
requirement complements the section 7 provision that Federal agencies 
ensure that their actions are not likely to jeopardize the continued 
existence of a listed species.
    The Jarbidge River is currently occupied by bull trout. Any Federal 
activity adversely affecting bull trout will require section 7 
consultations with the Service, and any non-federal action that may 
take a bull trout will require a Section 10 permit. Although there are 
potentially a small number of federally-funded, authorized, or 
implemented activities on private and State lands that may trigger 
section 7 consultation, the subject lands comprise only a minor portion 
(8 percent) of the total habitat (131 mi, 211 km) under consideration 
for this CHU. Specifically, there are eight stream reaches crossing 
private lands and four reaches crossing Idaho State school land 
sections within occupied bull trout habitat in this CHU. Only three of 
these isolated reaches are 1 mi (1.6 km) or more in length, and all are 
surrounded by vast expanses of public lands. One of the private reaches 
is within the town of Jarbidge, Nevada, and another is within the town 
of Murphy Hot Springs, Idaho.
    In analyzing whether Federal actions might jeopardize the continued 
existence of the bull trout, the Service has focused on the viability 
of core area populations without making distinctions between what is 
necessary for survival versus recovery. Because the Service views the 
conservation role of critical habitat units as supporting viable bull 
trout core area populations, the Service anticipates that few Federal 
actions would adversely modify critical habitat but not jeopardize the 
species.
    The Service considered the possibility of local bull trout 
extirpation in the Jarbidge River (which might reduce the protection 
afforded bull trout by the

[[Page 56250]]

jeopardy prohibition) given the data available. In general, the Service 
does not anticipate significant extirpations in this area, although 
such an event cannot be completely ruled out as stochastic events such 
as conflagrations have in the past eliminated populations elsewhere 
within the species' range. If such an event was to occur, and the 
entire population was extirpated, the designation of critical habitat 
could provide important protection to the habitat to preserve it for 
eventual recolonization or reintroduction. However, the Service would 
consider the habitat occupied for 20 years subsequent to the temporal 
extirpation, providing ample opportunity for restoration of the 
population. In addition, the benefit would be moderated to the extent 
that protections other than the prohibition on jeopardizing bull trout 
would remain in place. For instance, State angling regulations would 
remain in place to manage bull trout habitat.
    In sum, the designation of critical habitat on non-federal lands in 
the Jarbidge River CHU would confer a relatively low level of 
additional regulatory benefits beyond the status quo.
    Another potential benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area and thereby focus and contribute to 
conservation efforts by clearly delineating areas of high conservation 
value for certain species. Such a benefit could be substantial in 
geographic areas where the presence of bull trout was a relatively new 
or unknown phenomenon, and there was a need to educate the local 
community to the species' presence and conservation needs. However, 
such a situation does not exist anywhere in the Jarbidge River CHU. Due 
in large part to the extensive media attention applied to the high-
profile conflicts that accompanied the listing of the species and 
previous critical habitat proposals; there is widespread knowledge of 
the species' local status and conservation needs. State fish and game 
officials have also worked hard to educate the local populace, 
publishing information on the species and posting signs at public 
access points along the river. Therefore, it is unlikely that a final 
critical habitat designation would provide any significant new or 
additional educational benefit beyond the status quo.
(2) Benefits of Excluding the Jarbidge River Bull Trout Critical 
Habitat Unit
    The designation of critical habitat on non-federal lands can have 
both negative and positive impacts on the conservation of listed 
species (Bean 2002). There is a growing body of documentation that some 
regulatory actions by the Federal government, while well-intentioned 
and required by law, can under certain circumstances have unintended 
negative consequences for the conservation of species on non-federal 
lands (Brook et al. 2003, Bean 2002, James 2002, Koch 2002, Wilcove et 
al. 1996). Some landowners fear a decline in value of their properties 
because of their belief that the Act may restrict future land-use 
options where threatened or endangered species are found. Consequently, 
endangered species are perceived by many landowners as a financial 
liability, which sometimes results in anti-conservation incentives to 
these landowners (Brook et al. 2003, Main et al. 1999).
    There are reasonable concerns that a critical habitat designation 
in the Jarbidge River may negatively affect cooperative relationships 
between Federal and local officials and discourage voluntary, 
cooperative conservation efforts. The watershed has been the site of 
substantial conflicts between Federal government agencies, local 
government entities (Elko County, Nevada), organized private groups 
(Jarbidge Shovel Brigade), and private individuals. These conflicts 
primarily have been over roads and public access issues with the U.S. 
Forest Service, but they have resulted in activities with adverse 
environmental impacts to bull trout and their habitat. Substantial 
damage to stream channel and riparian habitats within bull trout 
occupied reaches occurred due to local actions while bull trout were 
proposed for listing. Anti-government demonstrations and on-the-ground 
activities (road construction, stream diversions, channel alterations, 
tree cutting, and driving in streams) by other groups and individuals 
escalated when the Service emergency-listed the Jarbidge River bull 
trout in 1998. The demonstrations and protests continued for several 
years.
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that many 
landowners will support and carry out conservation actions (Bean 2002, 
Brook et al. 2003, Main et al. 1999). The magnitude of this negative 
outcome is greatly amplified in conservation situations, such as on 
privately-owned lowlands in California and Nevada, where it is 
insufficient simply to prohibit harmful activities. Instead, it is 
necessary in most cases to encourage and carry out active management 
measures to prevent extinctions and promote recovery (Bean 2002). 
Consideration of this concern is especially important in areas where 
recovery efforts require access and permission for survey and 
restoration efforts. Simply preventing ``harmful activities'' will not 
slow the extinction of listed species or promote their recovery. 
Proactive, voluntary conservation efforts are necessary to prevent the 
extinction and promote the recovery of these species (Wilcove and Lee 
2004, Shogren et al. 1999).
    The Service is working to promote cooperative activities in the 
Jarbidge area. Federal and local government entities working in the 
Jarbidge River watershed have spent considerable time improving 
communications and developing personal working relationships to resolve 
differences and move forward in a positive manner on watershed issues. 
In particular, the agencies have come to an agreement resolving future 
road construction and maintenance issues within bull trout occupied 
areas on public and private lands in the watershed, as presented in the 
U.S. Forest Service's Jarbidge Canyon Final Environmental Impact 
Statement issued in April, 2005.
    In addition, the Federal agencies and local county government 
officials recently collaborated on a project to provide access to the 
town of Jarbidge on an emergency basis using volunteer labor by the 
Jarbidge Shovel Brigade and other local individuals to help install a 
temporary bridge donated by the county on private land after a flood 
destroyed two U.S. Forest Service bridges. On September 7, 2005, the 
Elko County Board of County Commissioners presented the Service, U.S. 
Forest Service, and Jarbidge Shovel Brigade each with a Certificate of 
Appreciation for assistance in completing this project.
    The Service is also currently working with a private landowner (Mr. 
Bert Brackett) and the Nevada Department of Wildlife to acquire the 
single largest reach of bull trout habitat on private land in the 
entire watershed (nearly 4 mi, 6.4 km) through a Service Recovery Lands 
Acquisition Program grant. The State would then manage this habitat 
specifically for the purpose of bull trout conservation and recovery. 
The Service is concerned that acquisition negotiations could be 
adversely affected by designation of critical habitat at this time due 
to a resurgence of local anti-federal sentiment following a possible 
designation on non-federal lands.

[[Page 56251]]

    The Service is also preparing to finalize the May 2004 draft 
recovery plan for the Jarbidge River bull trout population and to hold 
stakeholder meetings in FY06. Public and local government participation 
at these meetings is vital in obtaining local input during the recovery 
planning process. Participation at these meetings by private 
landowners--and support for conservation on their lands--may be 
adversely affected by designation of critical habitat on their non-
federal lands.
    In sum, we conclude that the designation of critical habitat on 
non-federal lands in the Jarbidge River CHU would have significant 
negative impacts on the improving cooperative relationship between 
Federal agencies and local officials and landowners. This negative 
impact would in turn adversely affect bull trout conservation because 
local support and participation is necessary for bull trout recovery 
actions, all of which are voluntary on non-federal lands. Avoiding 
these negative impacts is a benefit of excluding these lands from the 
final critical habitat designation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion for the 
Jarbidge River Critical Habitat Unit
    As discussed above, it is possible although unlikely that a Federal 
action will be proposed that would be likely to destroy or adversely 
modify the habitat proposed as critical in the Jarbidge River CHU. If 
such a project was proposed, due to the specific way in which jeopardy 
and adverse modification are analyzed for bull trout and as discussed 
in detail in the preamble, it would likely also jeopardize the 
continued existence of the species and thus be restricted by the Act. 
In addition, we expect that the benefit of informing the public of the 
importance of this area to bull trout conservation would be slight. 
Therefore, we assign relatively little weight to the benefits of 
designating this area as critical habitat.
    In contrast, the need to maintain and expand recent gains in 
cooperative conservation efforts in the Jarbidge watershed is crucial 
to the long-term effectiveness of bull trout recovery. Therefore, we 
assign great weight to these benefits of exclusion. To the extent that 
there are regulatory benefits of including, there would be associated 
costs that could be avoided by excluding the area from designation. 
However, as we expect the regulatory benefits to be slight, we likewise 
give little weight to avoidance of those associated costs, as well as 
the additional transaction costs related to section 7 compliance.
    The continuation of cooperative efforts in the watershed, as well 
as implementation of bull trout recovery actions on non-federal lands, 
is dependent on maintaining effective working relationships with local 
entities. We believe that designation of critical habitat on non-
federal lands within the Jarbidge River CHU would adversely affect our 
improved working relationships with landowners and other governmental 
entities, as well as the benefits to bull trout resulting from these 
relationships. In addition, we believe that such designation may also 
impair the long-term working relationships of other Federal agencies 
with land management responsibilities in the Jarbidge River watershed.
    Therefore, we have determined that the benefits of inclusion of the 
non-federal areas within the Jarbidge River CHU are small, while the 
benefits of exclusion are more significant. Thus the benefits of 
exclusion outweigh the benefits of inclusion. Because we anticipate 
that little if any conservation benefit to the bull trout will be 
foregone as a result of excluding these lands, and the species and much 
of its habitat is still protected under section 7 as described above, 
the exclusion will not result in the extinction of the bull trout. The 
Secretary exercises her discretion under section 4(b)(2) to exclude 
these areas from the designation.

Federal Land Management Plans

    We have determined that PACFISH, INFISH, the Interior Columbia 
Basin Ecosystem Management Project (ICBMP) strategy, and the Northwest 
Forest Plan (NWFP) Aquatic Conservation Strategy (ACS) provide a level 
of conservation and adequate protection and special management for the 
PCEs essential to the conservation of bull trout at least comparable to 
that achieved by designating critical habitat. As a result, those lands 
are not being designated critical habitat as they do not meet the 
statutory definition. In many specific ways these plans are superior to 
a designation in that they require enhancement and restoration of 
habitat, acts not required by the designation.
    PACFISH is the Interim Strategy for Managing Anadromous Fish-
Producing Watersheds and includes Federal lands in Western Oregon and 
Washington, Idaho, and Portions of California. INFISH is the Interim 
Strategy for Managing Fish-Producing Watersheds in Eastern Oregon and 
Washington, Idaho, Western Montana, and Portions of Nevada. Each 
strategy amended Forest Service Land and Resource Management Plans and 
BLM Resource Management Plans. Together PACFISH and INFISH cover 
thousands of miles of waterways within 16 million acres and provide a 
system for reducing effects from land management activities to aquatic 
resources through riparian management goals, landscape scale interim 
riparian management objectives, riparian habitat conservation areas, 
riparian standards, watershed analysis, and the designation of Key and 
Priority watersheds. These interim strategies have been in place since 
1992 and are part of the management plans for the BLM and USFS lands. 
In addition to protecting and managing the PCEs associated with 
critical habitat, the strategies include restoration and enhancement of 
all existing habitat. The BLM and USFS are currently in the process of 
updating their management plans, few have been completed, but those 
that have, are discussed below. The new plans are more protective, more 
complete, and more outcome based than the former plans. In addition, 
they are recovery based, as opposed to simply maintaining the status 
quo.
    The ICBMP is the strategy that replaces the PACFISH and INFISH 
interim strategies. The Southwest Idaho Land and Resource Management 
Plan (LRMP) is the first LRMP under the strategy and provides measures 
that protect and restore soil, water, riparian and aquatic resources 
during project implementation while providing flexibility to address 
both short- and long-term social and economic goals on 6.6 million 
acres of National Forest lands. This plan includes a long-term Aquatic 
Conservation Strategy that focuses restoration dollars in priority 
subwatersheds identified as important to achieving ESA, Tribal, and CWA 
goals. The Southwest Idaho LRMP replaces the interim PACFISH/INFISH 
strategies and adds additional conservation elements, specifically, 
providing an ecosystem management foundation, a prioritization for 
restoration integrated across multiple scales, and adaptable active, 
passive and conservation management strategies that address both 
protection and restoration of habitat and 303(d) stream segments, all 
of which are far beyond any protection provided by a critical habitat 
designation.
    The Southeast Oregon Resource Management Plan (SEORMP) and Record 
of Decision is the second LRMP under the ICBMP strategy which describes 
the long-term (20+ years) plan for managing the public lands within the 
Malheur and Jordan Resource Areas of the Vale District. The SEORMP is a 
general resource management plan for

[[Page 56252]]

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;
    <bullet> Establish aquatic and riparian habitat management 
objectives;
    <bullet> Delineate riparian management areas;
    <bullet> Provide specific standards and guidelines for management 
activities (timber harvesting, grazing, fire suppression, and mining) 
in riparian areas;
    <bullet> Provide a system of key watersheds to protect and restore 
important fish habitats;
    <bullet> Call for watershed analyses and subbasin reviews to set 
priorities and provide guidance on priorities for watershed 
restoration; and,
    <bullet> 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

[[Page 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

[[Page 56254]]

modified critical habitat and considered the potential benefit if a 
designation prevented the project from proceeding. She considered the 
risk of a critical habitat designation causing multiple reinitiations 
of consultation and what costs and delays those consultations might 
generate. She considered the consequences of delays related to 
reinitiations and the risk that would occur to the species as well as 
to local planning processes associated with the subbasin plans.
    Finally, the Secretary considered what additional benefit a 
consultation on the effect of any project on critical habitat would 
provide beyond the protection provided by a jeopardy determination that 
would be made whether or not critical habitat was designated.
    Based on the information in the record, the Secretary determined 
that the benefits of including those reaches of the designation that 
are within the FCRPS and subject to a consultation under section 7 of 
the ESA are outweighed by the benefits of excluding them and avoiding 
one increased costs and inefficiency. Because we anticipate that little 
if any conservation benefit to the bull trout will be foregone as a 
result of excluding these lands, the exclusion will not result in the 
extinction of the bull trout. The Secretary exercises her discretion 
under section 4(b)(2) to exclude these areas from the designation.

Snake River Basin Adjudication

    The lands subject to this adjudication comprise approximately 46 
million acres and approximately 142,000 miles of streams in the Snake 
River Basin. The stream-flows in the basin have been subject to 
litigation for 21 years. Litigants are the Federal government, the Nez 
Perce Tribe, and the State of Idaho. In 2004 a settlement was reached 
by the parties in the proceeding. A Mediator's Term Sheet was developed 
to guide the settlement of the case, which identifies the 
responsibilities of the parties over the 30-year term of the agreement. 
The settlement was announced on May 15, 2004, by the Secretary of the 
Interior, the Nez Perce Tribal Executive Committee Chairman, and the 
Governor of Idaho.
    As part of the settlement, the parties agreed to establish a 
habitat fund under two separate accounts, one for the Tribe and one for 
the State. The State account would be managed through Section 6 
cooperative agreements, and would address off-reservation stream-flow 
and forestry programs. The funds would be used to conduct habitat 
protection and restoration projects in the Salmon and Clearwater basins 
(tributaries to the Snake River), including programs intended to 
protect and restore listed fish and their habitat. The United States 
would contribute $38 million to these accounts according to a schedule 
determined by Congress in the enacting legislation. On December 8, 
2004, the Snake River Water Rights Act of 2004 was enacted to resolve 
outstanding issues; reach a final settlement of Tribal claims; 
authorize, ratify and confirm the Agreement among the parties; direct 
Federal agencies to execute and perform necessary actions to carry out 
the agreement; and, to authorize actions and appropriations under the 
SRBA and the Act for the United States to meet their obligations. On 
March 31, 2005, a Memorandum of Agreement was signed between the State 
of Idaho, Nez Perce Tribe, U.S. Fish and Wildlife Service, and National 
Marine Fisheries Service to establish a process for using the habitat 
trust fund accounts for habitat protection and restoration projects in 
the Salmon and Clearwater basins in Idaho. In a March 2005 letter, in 
response to a request from the State of Idaho, the FWS and NMFS 
provided specific information as to the standard that would be the 
basis for the cooperative agreement under Section 6 to implement the 
term sheet. In that letter, the two agencies indicated that meeting the 
express statutory requirements in section 6 of the ESA for an adequate 
and active program for the conservation of the species, in this case, 
bull trout and salmon, would be required.
    At the time the negotiations on the adjudication were completed, 
the bull trout was a listed species, but critical habitat had not been 
designated. The negotiations culminating in the final Term sheet were 
completed prior to designation of critical habitat.
(1) Benefits of Inclusion
    Designation of critical habitat for bull trout in the Snake River 
Basin Adjudication area would provide for protection from ``destruction 
or adverse modification'' of designated critical habitat under section 
7 of the Act. Without designation, a certain amount of habitat 
protection would be provided through the jeopardy standard. However, as 
noted earlier, based on our review of previous bull trout consultations 
under this standard, we have found little to indicate that there would 
be additional habitat protections generated by the designation beyond 
those provided through the jeopardy standard. There would be some 
educational benefits that would accrue from the designation. However, 
because of the conservation standard that will be the basis for the 
Section 6 agreement and the ensuing special management provisions which 
will be the result of that agreement, it is likely that any educational 
benefit would overlap with the incidental education that would occur as 
a result of the Section 6 agreement negotiation and the associated NEPA 
process. Finally, the Section 6 agreement, with its basis of 
conservation would likely require more, not less, protection of bull 
trout habitat, even including restoration and enhancement, both of 
which provide benefits in excess of those provide, by a critical 
habitat designation.
(2) Benefits of Exclusion
    The primary benefit of exclusion is it preserves the Federal 
government's commitments to the parties to the adjudication. The Term 
sheet addressed many of the issues related to stream-flow and land 
management that would also be addressed by a critical habitat 
designation. The Section 6 agreement also provided the standard that 
the government would adhere to in their development of implementing 
agreements. Discretionary superimposition of requirements, in addition 
to those spelled out in the agreement, could be viewed as an act of bad 
faith, would undermine confidence in the government's commitments, and 
negatively impact future negotiations.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In considering the benefit of a critical habitat designation, and 
despite any factual circumstance related to meeting the conditions, the 
Secretary considered that benefits would accrue from a designation. She 
did this notwithstanding the general premise that in the case of bull 
trout, our actual consultation records demonstrated the jeopardy 
standard provided similar results to protection provided by critical 
habitat designation under the Gifford Pinchot definition. These 
protected conservation benefits, were weighed against the benefit of 
the Federal government avoiding even the appearance of bad faith in the 
Snake River Basin adjudication agreements. The Secretary determined 
that the consequences of the Federal government appearing to 
unilaterally add additional terms and conditions to an agreement after 
it was completed were significant and could negatively affect other 
ongoing and potential future negotiations. The benefit of avoiding even 
the appearance of bad faith was determined to greatly outweigh any real 
or speculative benefit conferred by the

[[Page 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

[[Page 56256]]

defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation pursuant 
to section 3(5)(A) of the Act. Secondly, we evaluate lands defined by 
those features to assess whether they may require special management 
considerations or protection. Within each area designated as critical 
habitat, the physical and biological features essential for the 
conservation of the bull trout may require some level of management 
and/or protection to avoid destruction or adverse modification of 
habitat essential to its conservation.

Critical Habitat Designation

    We are designating critical habitat in 20 units. Critical habitat 
includes bull trout habitat in Idaho, Montana, Oregon, and Washington. 
Lands adjacent to designated critical habitat are under private, local 
government, State, Tribal, and Federal ownership. The areas we are 
designating as critical habitat constitute our best assessment of areas 
that: (1) Have documented occupancy within the last 20 years, (2) 
contain features essential to the conservation of the bull trout, and 
(3) are in need of special management, and (4) were not excluded under 
section 4(b)(2) of the Act. Military lands with an approved INRMP that 
provides benefits to the bull trout were not included in the 
designation per section 4(a)(3) of the Act.
    Tables 1-5 summarize the distance (stream miles) and area (acres) 
of designated critical habitat by critical habitat unit, State, and 
land ownership.

  Table 1.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
                Critical Habitat by Critical Habitat Unit
------------------------------------------------------------------------
                                   Stream/shoreline    Stream/shoreline
             CH unit                     miles            kilometers
------------------------------------------------------------------------
 1. Klamath River Basin.........                  50                  80
 2. Clark Fork River Basin......               1,136               1,828
 3. Kootenai River Basin........                  56                  91
 4. Willamette River Basin......                 111                 178
 5. Hood River Basin............                  30                  48
 6. Deschutes River Basin.......                  78                 126
 9. Umatilla-Walla Walla River                   218                 350
 Basins.........................
10. Grande Ronde River Basin....                 308                 496
11. Imnaha-Snake River Basins...                  92                 148
12. Hells Canyon Complex........                 125                 202
13. Malheur River Basin.........                  38                  60
14. Coeur d'Alene Lake Basin....                 124                 199
19. Lower Columbia River Basin..                  94                 152
20. Middle Columbia River Basin.                 188                 302
22. Northeast Washington River                    25                  40
 Basins.........................
23. Snake River Basin in                          68                 109
 Washington.....................
25. Snake River.................                  17                  27
27. Olympic Peninsula...........                 388                 624
27. Olympic Peninsula (Marine)..                 419                 674
28. Puget Sound.................                 646               1,039
28. Puget Sound (Marine)........                 566                 912
29. Saint Mary-Belly............                  37                  59
                                 ---------------------
    Total.......................               4,813               7,745
------------------------------------------------------------------------


Table 2.--Acres of Reservoirs or Lakes Designated as Bull Trout Critical
                    Habitat by Critical Habitat Unit.
------------------------------------------------------------------------
             CH unit                     Acres             Hectares
------------------------------------------------------------------------
 1. Klamath River Basin.........              24,610               9,959
 2. Clark Fork River Basin......              49,755              20,135
 3. Kootenai River Basin........               1,384                 560
 6. Deschutes River Basin.......               2,713               1,098
14. Coeur d'Alene Lake Basin....              27,296              11,046
27. Olympic Peninsula...........               8,318               3,366
28. Puget Sound.................              25,035              10,131
29. Saint Mary-Belly............               4,107               1,662
                                 ---------------------
    Total.......................             143,218              57,958
------------------------------------------------------------------------


  Table 3.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
                        Critical Habitat by State
------------------------------------------------------------------------
                                   Stream/shoreline    Stream/shoreline
              State                      miles            kilometers
------------------------------------------------------------------------
Idaho...........................                 294                 474
Montana.........................               1,058               1,703
Oregon..........................                 939               1,511
Oregon/Idaho....................                  17                  27
Washington......................               1,519               2,445
Washington (Marine).............                 985               1,585
                                 ---------------------

[[Page 56257]]

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


Table 4.--Acres of Reservoirs or Lakes Designated as Bull Trout Critical
                            Habitat by State
------------------------------------------------------------------------
              State                      Acres             Hectares
------------------------------------------------------------------------
Idaho...........................              50,627              20,488
Montana.........................              31,916              12,916
Oregon..........................              27,322              11,057
Washington......................              33,353              13,497
                                 ---------------------
    Total.......................             143,218              57,958
------------------------------------------------------------------------


  Table 5.--Stream/Shoreline Distance (mi/km) Designated as Bull Trout
                      Critical Habitat by Ownership
------------------------------------------------------------------------
                                   Stream/shoreline    Stream/shoreline
         Land ownership                  miles            kilometers
------------------------------------------------------------------------
Federal.........................                 538                 865
Federal/Private Mixed...........                  24                  38
Federal/State Mixed.............                   6                  10
Federal/Tribal Mixed............                   1                   1
Private.........................               3,587               5,773
State/Local Government Mixed....                 347                 559
State/Private Mixed.............                  69                 111
Tribal..........................                 209                 336
Tribal/Private Mixed............                  31                  50
Tribal/State Mixed..............                   1                   2
                                 ---------------------
    Total.......................               4,813               7,745
------------------------------------------------------------------------

    The lateral extent of critical habitat, for each designated stream 
reach, is the width of the stream channel as defined by its ordinary 
high-water line as defined by the U.S. Army Corps of Engineers (COE) in 
33 CFR 329.11. This approach is consistent with the specific mapping 
requirements described in agency regulations at 50 CFR 424.12(c). In 
areas for which ordinary high-water has not been defined pursuant to 33 
CFR 329.11, the width of the stream channel shall be defined by its 
bankfull elevation. Bankfull elevation is the level at which water 
begins to leave the channel and move into the floodplain (Rosgen, 1996) 
and is reached at a discharge which generally has a recurrence interval 
of 1 to 2 years on the annual flood series (Leopold et al., 1992). Such 
an interval is commensurate with nearly all of the juvenile freshwater 
life phases of most salmon and steelhead ESUs. Therefore, it is 
reasonable to conclude that for an occupied stream reach this lateral 
extent is regularly ``occupied''. Moreover, the bankfull elevation can 
be readily discerned for a variety of stream reaches and stream types 
using recognizable water lines (e.g., marks on rocks) or vegetation 
boundaries (Rosgen, 1996). Critical habitat extends from the ordinary 
high-water line as defined by the Corps in 33 CFR 329.11 and shall be 
used to determine the lateral extent of critical habitat. Adjacent 
floodplains are not designated as critical habitat. However, it should 
be recognized that the quality of aquatic habitat within stream 
channels is intrinsically related to the character of the floodplains 
and associated riparian zones, and human activities that occur outside 
the river channels can have demonstrable effects on physical and 
biological features of the aquatic environment (i.e., critical 
habitat). In addition, human activities that occur within or adjacent 
to streams or stream reaches that flow into critical habitat can also 
have demonstrable effects on physical and biological features of 
designated reaches. The lateral extent of lakes and reservoirs is 
defined by the perimeter of the water body as mapped on standard 
1:24,000 scale maps (comparable to the scale of a 7.5 minute USGS 
Quadrangle topographic map).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is

[[Page 56258]]

proposed or designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the bull trout or its designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, tribal, local or private lands requiring a Federal 
permit (such as a permit from the Corps under section 404 of the Clean 
Water Act or a permit under section 10(a)(1)(B) of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local or 
private lands that are not federally-funded, authorized, or permitted, 
do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Bull Trout and Its Critical Habitat

Jeopardy Standard

    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for bull trout jeopardy analyses 
that relies heavily on the importance of core area populations to the 
survival and recovery of the bull trout.\1\ The section 7(a)(2) 
analysis is focused not only on these populations but also on the 
habitat conditions necessary to support them.
---------------------------------------------------------------------------

    \1\ (Core areas form the building blocks that provide for 
conserving the bull trout's evolutionary legacy as represented by 
major genetic groups. The draft Bull Trout Recovery Plan recognizes 
core areas as the population units that are necessary to provide for 
bull trout biological needs in relation to genetic and phenotypic 
diversity, and spreading the risk of extinction caused by stochastic 
events. Peer review of the draft Bull Trout Recovery Plan did not 
reveal deficiencies with this approach. A panel of scientists 
invited to participate in the bull trout 5-year review process 
concluded that core areas are appropriate units of analysis by which 
threats to the bull trout and recovery standards should be 
measured.)
---------------------------------------------------------------------------

    The jeopardy analysis usually expresses the survival and recovery 
needs of the bull trout at the DPS scale in a qualitative fashion 
without making distinctions between what is necessary for survival and 
what is necessary for recovery. Generally, if a proposed Federal action 
is incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population ot the survival and recovery of the species 
as a whole.

Adverse Modification Standard

    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting bull trout critical habitat. The key factor 
related to the adverse modification determination is whether, with 
implementation of the

[[Page 56259]]

proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the primary constituent 
elements to be functionally established) to serve the intended 
conservation role for the species. Generally, the conservation role of 
bull trout critical habitat units is to support viable core area 
populations.
    It should be noted that in the 200 or so formal consultations 
completed since the bull trout was listed, most of the anticipated 
effects of proposed Federal actions on the species have not been 
biologically significant from a core area perspective, and if these 
actions were subject to the adverse modification standard described 
above, they would not likely violate it. Based on an analysis of 137 
formal consultations conducted during the period 1998-2003, the 
following types of projects were proposed in bull trout-occupied 
habitat, in order of frequency (most to least): multiple project 
actions, grazing, road work, bridge work, habitat restoration, land and 
resource management plans, mining, hydropower, timber harvest, 
recreation, water diversion/irrigation, research, land exchange, flood 
control, erosion control, pipeline construction, predator control, 
landslide remediation, instream crossings, weed management, dredging, 
and levee repair.
    However, at least one major Federal action involving significant 
modifications to natural flow patterns in designated critical habitat 
is currently in formal consultation, and it is likely (based on recent 
litigation patterns and outcomes) that the number of diversion-related 
Federal actions consulted on, some of which may occur in critical 
habitat, will increase substantially in the future. Water quality and 
quantity are significant factors (and primary constituent elements of 
bull trout critical habitat) influencing the viability of bull trout 
core areas. Given that context, it seems reasonable to predict that a 
few Federal actions will be found to adversely modify bull trout 
critical habitat; most of these actions would also probably constitute 
jeopardy.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species. All 
areas designated as critical habitat are determined to be essential to 
the conservation of the bull trout.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for the bull trout is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore result in 
consultation for the bull trout include, but are not limited to:
    (1) Detrimental altering of the minimum flow or the natural flow 
regime of any of the designated stream segments. Possible actions would 
include groundwater pumping, impoundment, water diversion, and 
hydropower generation. We note that such flow alterations resulting 
from actions affecting tributaries of the designated stream reaches may 
also destroy or adversely modify critical habitat;
    (2) Alterations to the designated stream segments that could 
indirectly cause significant and detrimental effects to bull trout 
habitat. Possible actions include vegetation manipulation, timber 
harvest, road construction and maintenance, prescribed fire, livestock 
grazing, off-road vehicle use, powerline or pipeline construction and 
repair, mining, and development. Riparian vegetation profoundly 
influences instream habitat conditions by providing shade, organic 
matter, root strength, bank stability, and large woody debris inputs to 
streams. These characteristics influence water temperature, structure 
and physical attributes (useable habitat space, depth, width, channel 
roughness, cover complexity), and food supply (Gregory et al. 1991; 
Sullivan et al. 2000). The importance of riparian vegetation and 
channel bank condition for providing rearing habitat for salmonids in 
general is well documented (e.g., Bossu 1954 and Hunt 1969, cited in 
Beschta and Platts 1987; MBTSG 1998);
    (3) Detrimental altering of the channel morphology of any of the 
designated stream segments. Possible actions would include 
channelization, impoundment, road and bridge construction, deprivation 
of substrate source, destruction and alteration of aquatic or riparian 
vegetation, reduction of available floodplain, removal of gravel or 
floodplain terrace materials, excessive sedimentation from mining, 
livestock grazing, road construction, timber harvest, off-road vehicle 
use, and other watershed and floodplain disturbances. We note that such 
actions in the upper watershed (beyond the riparian area) may also 
destroy or adversely modify critical habitat. For example, timber 
harvest activities and associated road construction in upland areas can 
lead to changes in channel morphology by altering sediment production, 
debris loading, and peak flows;
    (4) Detrimental alterations to the water chemistry in any of the 
designated stream segments. Possible actions would include release of 
chemical or biological pollutants into the surface water or connected 
groundwater at a point source or by dispersed release (non-point);
    (5) Proposed activities that are likely to result in the 
introduction, spread, or augmentation of nonnative aquatic species in 
any of the designated stream segments. Possible actions would include 
fish stocking; use of live bait fish; aquaculture; improper 
construction and operation of canals; and interbasin water transfers; 
and
    (6) Proposed activities that are likely to create significant 
instream barriers to bull trout movement. Possible actions would 
include new water diversions, impoundments, and hydropower generation 
where effective fish passage facilities, mechanisms, or procedures are 
not provided.
    We consider all of the units designated as critical habitat, as 
well as those that have been excluded or not included, to contain 
features essential to the conservation of the bull trout. All units are 
within the geographic range of the species, all were occupied by the 
species at the time of listing (based on observations made within the 
last 20 years), and are likely to be used by the bull trout, whether 
for foraging, migrating, overwintering, spawning, or rearing. Federal 
agencies already consult with us on activities in areas currently 
occupied by the bull trout, or if the species may be affected by the 
action, to ensure that their actions do not jeopardize the continued 
existence of the bull trout.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor of the nearest Fish and Wildlife 
Ecological Services Office. Requests for copies of the regulations on 
listed wildlife, and inquiries about prohibitions and permits may be 
addressed to the Division of Endangered Species, U.S. Fish and Wildlife 
Service, 911 NE 11th Avenue, Portland, OR 97232-4181 (telephone 503/
231-6158; facsimile 503/231-6243).

Economic Analysis

    Section 4(b)(2)of the Act requires us to designate critical habitat 
on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant

[[Page 56260]]

impacts of designating a particular area as critical habitat. We 
exclude areas from critical habitat upon a determination that the 
benefits of such exclusions outweigh the benefits of specifying such 
areas as critical habitat. We cannot exclude areas from critical 
habitat when exclusion will result in the extinction of the species 
concerned.

Analysis of the Klamath River and Columbia River Populations

    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on April 5, 2004 (69 FR 17634). We 
accepted comments on the draft analysis until May 5, 2004.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the bull trout. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The analysis examines activities taking place both within and 
adjacent to the designation. It estimates impacts based on activities 
that are ``reasonably foreseeable'' including, but not limited to, 
activities that are currently authorized, permitted, or funded, or for 
which proposed plans are currently available to the public. 
Accordingly, the analysis bases estimates on activities that are likely 
to occur within a 10-year time frame, from when the proposed rule 
became available to the public (November 30, 2002, 67 FR 71235). The 
10-year time frame was chosen for the analysis because, as the time 
horizon for an economic analysis is expanded, the assumptions on which 
the projected number of projects and cost impacts associated with those 
projects become increasingly speculative. An exception to the 10-year 
analysis time horizon used in this analysis is for FERC licenses, which 
are renewed for up to 50 years. Accordingly, this analysis estimates 
the annualized costs of the expected impacts associated with section 7 
bull trout consultations involving FERC re-licensing over a 50-year 
time horizon.
    Costs can be expressed in terms of unit or river mile; both of 
these metrics are useful in describing economic impacts. On a cost per 
unit basis, the largest portion of forecast costs is expected to occur 
in Unit 4, the Willamette River Basin (18 percent). These costs are 
attributable to fish passage and temperature control projects and 
annual operating and maintenance and fish study costs at the Corp's 
facilities in the Upper Willamette River System (Dexter, Lookout Point, 
Hills Creek, and Blue River Dams). The next most costly unit is Unit 
16, the Salmon River Basin (12 percent). Because this is the largest 
unit in terms of river miles and proportion of USFS-managed land, and 
because future USFS activities are expected to generate approximately 
70 percent of the consultation activity, this unit bears the greatest 
number of future bull trout-related consultations. Therefore, the 
administrative costs account for a large portion of the costs in this 
unit. Together, these two units account for 30 percent (approximately 
$8.2 million) of forecast costs. The next three most costly units, 
Hells Canyon complex (Unit 12), and the Clark Fork River (Unit 2), and 
Malheur River (Unit 13) Basins, each account for 8 percent (a unit cost 
range of approximately $2.1 million to $2.3 million) of forecast costs. 
In total, these five units account for almost 55 percent of forecast 
costs (approximately $14.8 million).
    Based on our analysis, we concluded that the designation of 
critical habitat for the Klamath River and Columbia River population 
segments would not result in a significant economic impact, and 
estimated the potential economic effects over a 10-year period would 
range from $200 to $260 million ($20 to $26 million per year) for bull 
trout. It is expected that Federal agencies will bear 70 percent of 
these costs. The total estimated costs associated with bull trout 
consultation is expected be $9.8 million annually, and total project 
modification costs are expected to range from $19.5 to $26.1 million 
annually. Although we do not find the economic costs to be significant, 
they were considered in balancing the benefits of including and 
excluding areas from critical habitat.

Analysis of the Jarbidge River, Coastal-Puget Sound, and Saint Mary-
Belly River Populations

    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The DEA was made 
available for public review on May 3, 2005 (70 FR 22835). We accepted 
comments on the DEA until June 2, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the conservation of bull 
trout. This information is intended to assist the Secretary in making 
decisions about whether the benefits of excluding particular areas from 
the designation outweigh the benefits of including those areas in the 
designation. The economic analysis considers the economic efficiency 
effects that may result from the designation, including habitat 
protections that may be co-extensive with the listing of the species. 
It also addresses distribution of impacts, including an assessment of 
the potential effects on small entities and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector.
    This analysis focuses on the direct and indirect costs related to 
bull trout, and the analysis considers how small entities, including 
small businesses, organizations, and governments, may be affected by 
future bull trout conservation activities. In addition, this analysis 
considers the impacts of conservation activities on the energy industry 
and its customers. However, economic impacts to land-use activities can 
exist in the absence of critical habitat. These impacts may result 
from, for example, local zoning laws, State and natural resource laws, 
and enforceable management plans and best management practices applied 
by other State and Federal agencies.
    The analysis examines activities taking place both within and 
adjacent to the designation. It estimates impacts based on activities 
that are ``reasonably foreseeable'' including, but not limited

[[Page 56261]]

to, activities that are currently authorized, permitted, or funded, or 
for which proposed plans are currently available to the public. The 
analysis estimates economic effects of activities from 1998 (year of 
the proposed rule for listing) through 2024 (20 years from the year of 
final critical habitat designation). The time frame for analysis was 
selected to emulate a reasonable future period for recovery of the 
species.
    The time frame associated with each activity is important because 
as the time horizon for an economic analysis is expanded, the forecast 
of future projects becomes increasingly speculative. As a result, with 
the exception of hydroelectric and non-hydroelectric projects where 
some capital costs are spread over 50 years, this analysis relies 
primarily on a time frame of 20 years. The time frame for hydroelectric 
and non-hydroelectric projects is longer relative to other activities 
analyzed based on the nature of the activity. Whereas geographic and 
total projections of population and housing densities within a region 
become increasingly speculative over time, the known location and 
inevitability of hydroelectric dam re-licensing or other permitting 
provides sufficient information to estimate future costs associated 
with conservation measures at these facilities.
    The Coastal-Puget Sound population represents about 99 percent of 
the costs, and these costs are co-extensive with listed salmon. The 
reason for this is that listed salmon species overlap with the 
geographic area of the Coastal-Puget Sound population of bull trout. 
There are no listed species of salmon or steelhead in the Jarbidge 
River or Saint Mary-Belly River populations. Also, in cases where there 
is an overlap of range between salmon and bull trout, no separation is 
made of these joint costs, and they are presented as ``impacts 
associated with co-extensive of salmon and bull trout conservation 
activities.''
    For this critical habitat designation, the majority of the cost 
burden (about 75 percent) falls on the commercial sector. Based on the 
projected development from 2005 to 2024, bull trout conservation 
activities are anticipated to increase the total cost of commercial, 
residential, and mixed development by $26.2 million annually. Total 
prospective costs are $277.2 million applying a 7 percent discount 
rate. Other cost leading activities include Federal land management (13 
percent), non-hydroelectric projects (11 percent), and hydroelectric 
projects (10 percent). In the Puget Sound Unit (Unit 28), costs 
associated with residential and commercial development are among the 
highest category of costs.
    There are 83 watersheds in the Coastal-Puget Sound region that 
contain designated critical habitat. Of the 10 watersheds with the 
highest costs associated with co-extensive salmon and bull trout 
conservation activities, nine are within Unit 28, between the Skagit 
River in the north and the Puyallup River in the south, and seven of 
these contain significant development costs; not surprisingly, they 
encompass highly urbanized areas of Puget Sound. Together, these seven 
watersheds represent 48 percent of the total economic impact within 
designated critical habitat. Costs in the Middle Green River watershed 
are primarily attributable to conservation activities at the Howard 
Hansen Dam and the City of Tacoma's water diversion. High costs in the 
Baker River watershed are due primarily to the upper and lower Baker 
Dam, where significant capitals costs are expected associated with a 
fish passage project beginning in 2006. Together, these 10 watersheds 
in Coastal-Puget Sound represent 70 percent of the annualized economic 
impacts associated with lands designated as critical habitat.
    Based on our analysis, we concluded that the designation of 
critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint 
Mary-Belly River population segments would not result in a significant 
economic impact, and estimated the potential economic effects over a 
20-year period would range from approximately $684 million, assuming a 
7 percent discount rate, to approximately $1 billion, assuming a 3 
percent discount rate. Costs are estimated to be $61.3 million per 
year.
    Copies of the two final economic analyses with supporting documents 
are included in our administrative record and may be obtained by 
contacting U.S. Fish and Wildlife Service, Branch of Endangered Species 
(see ADDRESSES section), or by downloading from the Internet at http://www.fws.gov/pacific/bulltrout/.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this final rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the final 
rule clearly stated? (2) Does the final rule contain technical jargon 
that interferes with the clarity? (3) Does the format of the final rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the final rule? (5) What else could we do to make this 
final rule easier to understand?
    Send a copy of any comments on how we could make this final rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: <a href="/cdn-cgi/l/email-protection#febb868d9b9dbe97918dd09a9197d0999188"><span class="__cf_email__" data-cfemail="db9ea3a8beb89bb2b4a8f5bfb4b2f5bcb4ad">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

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

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to

[[Page 56262]]

require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA also amended the RFA to 
require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; and small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect bull trout. Federal agencies also must consult with us if their 
activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities.
    The Columbia River and Klamath River populations of bull trout were 
federally-listed as threatened in June 1998. In fiscal years 1998 
through 2002, we conducted 152 formal section 7 consultations and 
several hundred informal consultations with other Federal agencies, 
mainly the USFS, to ensure that their actions will not jeopardize the 
continued existence of the bull trout. Our economic analysis found that 
timber management, grazing, dam and reservoir operations, stream 
habitat improvement and fisheries restoration, road construction and 
maintenance, and flood control projects are the primary activities 
anticipated to take place within the area designated as critical 
habitat for the bull trout. To be conservative (i.e., more likely to 
overstate impacts than understate them), we assumed in our economic 
analysis that a unique business entity would undertake each of the 
projected consultations in a given year. Therefore, the number of 
businesses affected annually is equal to the total annual number of 
consultations (both formal and informal).
    Based on the economic analysis which looked at the critical habitat 
for bull trout, and including consultations on FERC relicensing of 
hydroelectric facilities, we estimated that in each year, there could 
be approximately 52 formal consultations involving bull trout, and it 
is expected that the USFS will constitute about 70 percent of the total 
number of formal consultations.
    The Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River 
bull trout populations were federally listed as threatened in April 
1999 (Jarbidge River) and November 1999 (Coastal-Puget Sound and St. 
Mary-Belly River), respectively. In fiscal years 1998 through 2004, we 
conducted 176 formal section 7 consultations and several hundred 
informal consultations with other Federal agencies to ensure that their 
actions will not jeopardize the continued existence of the bull trout. 
Approximately 77 percent of the past consultations have involved the 
Corps and FHA. The Corps regulates flood control and damage reduction 
efforts, as well as permits dredging and construction activities 
affecting waterways under authority provided by the Clean Water Act. 
Federal Highway Administration provides funding to many of the road and 
bridge projects administered by State departments of transportation. 
Projects that may impact streams with listed bull trout can result in a 
section 7 consultation with FHA as the action agency.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for small businesses 
that may be required to consult with us each year regarding their 
project's impact on bull trout and its habitat. First, if we conclude, 
in a biological opinion, that a proposed action is likely to jeopardize 
the continued existence of a species or adversely modify its critical 
habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid jeopardizing the 
continued existence of listed species or result in adverse modification 
of critical habitat. A Federal agency and an applicant may elect to 
implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy, or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.

[[Page 56263]]

    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
in their initial proposed form, would result in jeopardy, or adverse 
modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
CHUs, the types of Federal actions or authorized activities that we 
have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Regulation of timber harvest, grazing, mining, and recreation 
by the USFS and BLM;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the Environmental Protection Agency, U.S. 
Department of Energy, or any other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or implement measures to protect bull trout. The kinds 
of actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
management of competing nonnative species, restoration of degraded 
habitat, and monitoring. These are based on our understanding of the 
needs of the species and the threats it faces, as described in the 
final listing rule and proposed critical habitat designation. These 
measures are not likely to result in a significant economic impact to 
project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. The 
most likely Federal involvement could include Corps permits, permits we 
may issue under section 10(a)(1)(B) of the Act, FHA funding for road 
improvements, hydropower licenses issued by the Federal Energy 
Regulatory Commission, and regulation of timber harvest, grazing, 
mining, and recreation by the USFS and BLM. A regulatory flexibility 
analysis is not required.

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

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

Executive Order 13211

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions: it excludes ``a condition of federal assistance,'' and it 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, permits or that otherwise require approval 
or authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year that is, it is not a 
``significant regulatory action''

[[Page 56264]]

under the Unfunded Mandates Reform Act. The designation of critical 
habitat imposes no obligations on State or local governments. As such, 
Small Government Agency Plan is not required.

Takings

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

Federalism

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

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have designated critical habitat in accordance 
with the provisions of the Endangered Species Act. This final rule uses 
standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in understanding the habitat 
needs of the bull trout.

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

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

National Environmental Policy Act

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

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
tribes on a government-to-government basis.
    During our development of this critical habitat designation for the 
Columbia River and Klamath River populations of bull trout, we 
evaluated tribal lands to determine if they contain features are 
essential to the conservation of the species. We have designated 
critical habitat for portions of Ahtanum Creek, North Fork Ahtanum 
Creek, South Fork Ahtanum Creek, Yakima River, Clearwater Creek, Fish 
Lake Stream, unnamed tributary to Fish Lake Stream, Little Muddy Creek, 
Trappers Creek, Two Lakes Stream, West Fork Klickitat River, and 
Klickitat River within or adjacent to the Yakama Indian Reservation; 
the Umatilla River, Meacham Creek, and Squaw Creek within the Umatilla 
Reservation; Lake Coeur d'Alene within the Coeur d'Alene Reservation; a 
portion of the Columbia River adjacent to the Colville Indian 
Reservation; the Pend Oreille River and Calispell Creek within the 
Kalispell Indian Reservation; portions of Clearwater River, Middle Fork 
Clearwater River, North Fork Clearwater River, and South Fork 
Clearwater River, Lolo Creek, Clear Creek, and Dworshak Reservoir 
within or adjacent to the Nez Perce Indian Reservation; and portions of 
Dry Creek, Flathead Lake, the lower Flathead River, Jocko River, 
McDonald Lake, Middle Fork Jocko River, Mission Creek, Mission 
Reservoir, North Fork Jocko River, Post Creek, Saint Mary's Lake, and 
South Fork Jocko River on the Confederated Salish and Kootenai Tribes 
(CSKT) lands on the Flathead Indian Reservation.
    Currently, the Yakama Nation, Coeur d'Alene, Kalispell, Nez Perce, 
CSKT, and Umatilla Tribes do not have resource management plans that 
provide protection or conservation for the bull trout and its habitat. 
The CSKT have a resource management plan addressing bull trout 
conservation that is being applied in the Jocko River watershed. 
However, as a result of our meetings with the Tribes on September 26, 
2002, we mutually agreed to include habitat within the Jocko River 
watershed in this rule designating critical habitat.
    We held government-to-government consultations with the 
Confederated Tribes of Warm Springs Reservation of Oregon (CTWS) to 
discuss their policy and position regarding the proposal. At these 
meetings, the CTWS provided us with documents pertaining to the Tribe's 
conservation activities which benefit the bull trout. These documents 
include their IRMP I and II, Water Code, Water Quality Standards, 
Implementation Plan for Water Quality, Water Resources Inventory, 
Streamside Management Plan, Field Guide to IRMP Standards and Best 
Management

[[Page 56265]]

Practices. They also provided us with information on specific actions 
they have taken that benefit the bull trout.
    During our development of this critical habitat designation for the 
Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull 
trout populations, we evaluated tribal lands to determine if they 
contain features that are essential to the conservation of the species. 
There are no tribal lands designated as critical habitat within the 
Jarbidge River population area. Within the Saint Mary-Belly River 
population, there are no tribal lands designated as critical habitat. 
Within the Coastal-Puget Sound population, we have designated critical 
habitat for portions of the Nooksack River and Puget Sound nearshore 
adjacent to the Lummi Indian Reservation; portion of the Nooksack River 
adjacent to the Nooksack Indian Reservation; portion of the Sauk River 
adjacent to the Sauk-Suiattle Indian Reservation; portions of the 
Snohomish River, and Puget Sound nearshore within or adjacent to the 
Tulalip Indian Reservation; portions of the Puyallup River and Puget 
Sound nearshore within or adjacent to the Puyallup Indian Reservation; 
portions of the Nisqually River within or adjacent to the Nisqually 
Indian Reservation; portions of the Elwha River and the Strait of Juan 
de Fuca nearshore within or adjacent to the Lower Elwha S'Klallam 
Indian Reservation; and a portion of the Chehalis River within or 
adjacent to the Chehalis Indian Reservation. Approximately 18 mi (29 
km) of stream segments, 60 mi (96 km) of marine shoreline, and 962 ac 
(389 ha) on or adjacent to tribal lands are included in our critical 
habitat designation, and approximately 79 mi (127 km) of stream 
segments and 56 mi (90 km) of marine shoreline on or adjacent to tribal 
lands are excluded.
    We will continue to work closely with tribes to manage essential 
features of bull trout habitat. We are committed to maintaining a 
positive working relationship with all of the tribes, and will work 
with them on developing resource management plans for tribal lands that 
include conservation measures for bull trout. We were required to 
prepare this critical habitat designation based on our analysis of 
whether habitat within these tribal reservation lands contain features 
essential to the conservation of the species and may require special 
management considerations or protection. Please refer to the Tribal 
Lands section under the Section 3(5)(A) and Exclusions Under Section 
4(b)(2) of the Act for a more detailed discussion.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.95(e) by revising the entry for Bull Trout 
(Salvelinus confluentus) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Bull Trout (Salvelinus confluentus)
    (1) Locations of the designated critical habitat. Critical habitat 
is designated in the following States and counties on the maps and as 
described below:

------------------------------------------------------------------------
          State                               Counties
------------------------------------------------------------------------
(i) Idaho................  Adams, Benewah, Bonner, Boundary, Kootenai,
                            Nez Perce, Shoshone, Washington.
(ii) Montana.............  Deer Lodge, Flathead, Glacier, Granite, Lake,
                            Lewis and Clark, Lincoln, Mineral, Missoula,
                            Powell, Ravalli, Sanders.
(iii) Oregon.............  Baker, Deschutes, Grant, Harney, Hood River,
                            Jefferson, Klamath, Lake, Lane, Sherman,
                            Umatilla, Union, Wallowa, Wasco.
(iv) Washington..........  Asotin, Benton, Clallam, Clark, Columbia,
                            Cowlitz, Garfield, Grays Harbor, Island,
                            Jefferson, King, Kittitas, Klickitat, Mason,
                            Pend Oreille, Pierce, Skagit, Skamania,
                            Snohomish, Stevens, Thurston, Walla Walla,
                            Whatcom, Whitman, Yakima.
------------------------------------------------------------------------

    (2) Topographic features included in the critical habitat 
designation. Critical habitat includes the stream channels within the 
designated stream reaches and inshore extent of critical habitat for 
marine nearshore areas (the mean high high-water (MHHW) line), 
including tidally influenced freshwater heads of estuaries indicated on 
the maps below.
    (i) Critical habitat includes the stream channels within the 
designated stream reaches, and includes a lateral extent as defined by 
the ordinary high-water line. In areas where ordinary high-water line 
has not been defined, the lateral extent will be defined by the 
bankfull elevation. Bankfull elevation is the level at which water 
begins to leave the channel and move into the floodplain and is reached 
at a discharge that generally has a recurrence interval of 1 to 2 years 
on the annual flood series. Critical habitat includes the stream 
channels within the designated stream reaches, and includes a lateral 
extent from the bankfull elevation on one bank to the bankfull 
elevation on the opposite bank. Bankfull elevation is the level at 
which water begins to leave the channel and move into the floodplain 
and is reached at a discharge that generally has a recurrence interval 
of 1 to 2 years on the annual flood series. If bankfull elevation is 
not evident on either bank, the ordinary high-water line must be used 
to determine the lateral extent of critical habitat. The lateral extent 
of designated lakes is defined by the perimeter of the water body as 
mapped on standard 1:24,000 scale topographic maps.
    (ii) Critical habitat includes the inshore extent of critical 
habitat for marine nearshore areas (the MHHW line), including tidally 
influenced freshwater heads of estuaries. This refers to the average of 
all the higher high-water heights of the two daily tidal levels. 
Adjacent shoreline riparian areas, bluffs, and uplands are not 
designated as critical habitat. However, it should be recognized that 
the quality of marine habitat along shorelines is intrinsically related 
to the character of these adjacent features, and human activities that 
occur outside of the MHHW line can have major effects on physical and 
biological features of the marine environment. The offshore

[[Page 56266]]

extent of critical habitat for marine nearshore areas is based on the 
extent of the photic zone, which is the layer of water in which 
organisms are exposed to light. Critical habitat extends offshore to 
the depth of 33 ft (10 m) relative to the mean low low-water line 
(MLLW) (average of all the lower low-water heights of the two daily 
tidal levels). This equates to the average depth of the photic zone and 
is consistent with the offshore extent of the nearshore habitat 
identified under the ``Notice of Change to the Nation's Tidal Datums 
With the Adoption of a New National Tidal Datum Epoch Period of 1983 
Through 2001''. This area between MHHW and minus 10 MLLW is considered 
the habitat most consistently used by bull trout in marine waters based 
on known use, forage fish availability, and ongoing migration studies, 
and captures geological and ecological processes important to 
maintaining these habitats. This area contains essential foraging 
habitat and migration corridors such as estuaries, bays, inlets, 
shallow subtidal areas, and intertidal flats.
    (3) Primary constituent elements needed for bull trout survival. 
Within the designated critical habitat areas, the primary constituent 
elements (PCEs) for bull trout are those habitat components that are 
essential for the primary biological needs of foraging, reproducing, 
rearing of young, dispersal, genetic exchange, or sheltering. Note that 
only the PCEs described in paragraphs (e)(3)(i), (vi), (vii), and 
(viii) apply to marine nearshore waters identified as critical habitat. 
The PCEs are as follows:
    (i) Water temperatures that support bull trout use. Bull trout have 
been documented in streams with temperatures from 32 to 72 [deg]F (0 to 
22 [deg]C) but are found more frequently in temperatures ranging from 
36 to 59 [deg]F (2 to 15 [deg]C). These temperature ranges may vary 
depending on bull trout life-history stage and form, geography, 
elevation, diurnal and seasonal variation, shade, such as that provided 
by riparian habitat, and local groundwater influence. Stream reaches 
with temperatures that preclude bull trout use are specifically 
excluded from designation;
    (ii) Complex stream channels with features such as woody debris, 
side channels, pools, and undercut banks to provide a variety of 
depths, velocities, and instream structures;
    (iii) Substrates of sufficient amount, size, and composition to 
ensure success of egg and embryo overwinter survival, fry emergence, 
and young-of-the-year and juvenile survival. This should include a 
minimal amount of fine substrate less than 0.25 inch (0.63 centimeter) 
in diameter.
    (iv) A natural hydrograph, including peak, high, low, and base 
flows within historic ranges or, if regulated, currently operate under 
a biological opinion that addresses bull trout, or a hydrograph that 
demonstrates the ability to support bull trout populations by 
minimizing daily and day-to-day fluctuations and minimizing departures 
from the natural cycle of flow levels corresponding with seasonal 
variation: This rule finds that reservoirs currently operating under a 
biological opinion that addresses bull trout provides management for 
PCEs as currently operated;
    (v) Springs, seeps, groundwater sources, and subsurface water to 
contribute to water quality and quantity as a cold water source;
    (vi) Migratory corridors with minimal physical, biological, or 
water quality impediments between spawning, rearing, overwintering, and 
foraging habitats, including intermittent or seasonal barriers induced 
by high water temperatures or low flows;
    (vii) An abundant food base including terrestrial organisms of 
riparian origin, aquatic macroinvertebrates, and forage fish; and
    (viii) Permanent water of sufficient quantity and quality such that 
normal reproduction, growth, and survival are not inhibited.
    (4) Exclusions from the critical habitat designation. Certain 
geographic areas are excluded from the critical habitat designation as 
described below in this paragraph (4).
    (i) 3(5)(A) and Exclusions under section 4(b)(2) of the Act. (A) 
Habitat conservation plans. We are excluding from the critical habitat 
designation any non-Federal lands covered by an incidental take permit 
for bull trout issued under section 10(a)(1)(B) of the Act on or before 
September 26, 2005, as long as such permit, or a conservation easement 
providing comparable conservation benefits, remains legally operative 
on such lands. These excluded areas are covered by habitat conservation 
plans (HCPs). They include lands and waters covered by the Washington 
Department of Natural Resources HCP, the Plum Creek Native Fish HCP/
Stimson Lumber Company HCP, the Tacoma Water Green River HCP, the Green 
Diamond Resources Company HCP, and the City of Seattle Cedar River 
Watershed HCP.
    (B) Tribal lands. The following tribal lands contain stream 
segments or marine nearshore habitat areas that have been excluded from 
designated critical habitat pursuant to section 4(b)(2) of the Act: 
Tribal lands of the Blackfeet Nation, Swinomish Tribe, Quinault Indian 
Nation, Muckleshoot Tribe, Jamestown S'Klallam Tribe, Hoh Tribe, 
Skokomish, and Confederated Tribes of Warm Springs Reservation of 
Oregon.
    (C) Federal lands. The following Federal lands contain stream 
segments or marine nearshore habitat areas that have been excluded from 
designated critical habitat pursuant to section 4(a)(3) of the Act: 
Lands within the Nisqually National Wildlife Refuge; the Washington 
State Forest Practices Rules and Forest Practices Regulations for Bull 
Trout; the Lewis Hydroelectric Project Conservation Easements; the 
Snake River Basin Adjudication; the Northwest Forest Plan Aquatic 
Conservation Strategy; the Interim Strategy for Managing Anadromous-
Fish-Producing Watersheds; the Federal Columbia River Power System; the 
Clark Fork River from Missoula to Butte, MT; the Middle Fork of the 
Boise River; the Interior Columbia Basin Ecosystem Management Project; 
the Southeast Oregon Resource Management Plan; the Southwest Idaho Land 
and Resource Management Plan; and waters impounded behind dams whose 
primary purpose is for flood control or water supply for human 
consumption (reservoirs and pools).
    (ii) Non-Inclusions under section 4(a)(3) of the Act. (A) Military 
lands. The following military lands contain stream segments or marine 
nearshore habitat areas that have been excluded from designated 
critical habitat pursuant to section 4(a)(3) of the Act: Bayview 
Acoustic Research Detachment, Naval Surface Warfare Center, ID; Naval 
Radio Station, Jim Creek, WA; Naval Station, Everett, WA; Naval Air 
Station, Whidbey Island, WA; the Naval Under Sea Warfare Center 
Division, Newport, WA (Dabob Bay and Crescent Harbor), Keyport 
facilities and Fort Lewis, WA.
    (B) [Reserved]
    (5) The designated critical habitat units for bull trout are set 
forth in the text and depicted on the maps below.
    (6) An index map of designated critical habitat for the Klamath 
River, Columbia River, Olympic Peninsula, Puget Sound, and Saint Mary-
Belly bull trout populations follows:
BILLING CODE 4310-55-P

[[Page 56267]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.000


[[Page 56268]]


    (7) Unit 1: Klamath River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Boulder Creek..................  42.517 N.            120.951 W.          42.495 N.           120.884 W.
Brownsworth Creek..............  42.392 N.            120.913 W.          42.469 N.           120.854 W.
Coyote Creek...................  42.854 N.            121.158 W.          42.893 N.           121.246 W.
Deming Creek...................  42.448 N.            120.953 W.          42.486 N.           120.885 W.
Dixon Creek....................  42.518 N.            120.937 W.          42.532 N.           120.923 W.
Leonard Creek..................  42.413 N.            120.867 W.          42.465 N.           120.864 W.
Long Creek.....................  42.826 N.            121.209 W.          42.933 N.           121.338 W.
North Fork Sprague River.......  42.497 N.            121.008 W.          42.557 N.           120.839 W.
Sheepy Creek...................  42.534 N.            120.931 W.          42.514 N.           120.890 W.
Sun Creek......................  42.735 N.            122.008 W.          42.898 N.           122.096 W.
Sycan Marsh....................                 Located at                42.816 N.           121.124 W.
Threemile Creek................  42.642 N.            122.065 W.          42.640 N.           122.138 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 1, Klamath River Basin, follows:

[[Page 56269]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.001

BILLING CODE 4310-55-C

[[Page 56270]]

    (8) Unit 2: Clark Fork River Basin.
    (ii) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Akokala Cr.....................  48.881 N.            114.198 W.          48.892 N.           114.191 W.
Akokala Lake...................                 Located at                48.879 N.           114.198 W.
Arrow Lake.....................                 Located at                48.706 N.           113.884 W.
Barker Cr......................  46.163 N.            113.115 W.          46.100 N.           113.115 W.
Bear Creek.....................  48.234 N.            113.566 W.          48.296 N.           113.384 W.
Beaver Cr......................  46.472 N.            113.493 W.          46.468 N.           113.555 W.
Belmont Cr.....................  46.954 N.            113.569 W.          47.061 N.           113.681 W.
Big Cr.........................  47.378 N.            115.384 W.          47.364 N.           115.444 W.
Big Cr, M Fk...................  47.364 N.            115.444 W.          47.312 N.           115.492 W.
Big Cr, W Fk...................  47.364 N.            115.444 W.          47.350 N.           115.544 W.
Bitterroot River...............  46.861 N.            114.118 W.          45.944 N.           114.128 W.
Blackfoot River................  46.870 N.            113.889 W.          47.011 N.           112.476 W.
Blodgett Cr....................  46.312 N.            114.145 W.          46.248 N.           114.453 W.
Boulder Cr.....................  46.478 N.            113.237 W.          46.343 N.           113.076 W.
Bowman Cr......................  48.906 N.            114.117 W.          48.974 N.           114.063 W.
Bowman Lake....................                 Located at                48.870 N.           114.157 W.
Brewster Cr....................  46.612 N.            113.653 W.          46.582 N.           113.587 W.
Bull River.....................  48.036 N.            115.844 W.          48.109 N.           115.782 W.
Burnt Fork Creek...............  46.542 N.            114.099 W.          46.304 N.           113.837 W.
Cable Cr.......................  46.172 N.            113.180 W.          46.196 N.           113.213 W.
Cache Cr.......................  46.814 N.            114.639 W.          46.726 N.           114.758 W.
Camas Cr.......................  48.690 N.            113.901 W.          48.738 N.           113.883 W.
Cedar Cr.......................  47.178 N.            114.862 W.          47.049 N.           115.043 W.
Cedar Creek....................  48.880 N.            116.959 W.          48.909 N.           116.885 W.
Cerulean Lake..................                 Located at                48.872 N.           114.057 W.
Chicken Cr.....................  45.601 N.            114.313 W.          45.621 N.           114.403 W.
Clark Fork River...............  47.366 N.            114.776 W.          46.870 N.           113.889 W.
Clearwater Lake................                 Located at                47.385 N.           113.558 W.
Clearwater R, W Fk.............  47.256 N.            113.550 W.          47.287 N.           113.744 W.
Clearwater River...............  47.107 N.            113.427 W.          47.390 N.           113.561 W.
Coal Cr........................  48.690 N.            114.193 W.          48.698 N.           114.494 W.
Coal Cr, S Fk..................  48.680 N.            114.345 W.          48.674 N.           114.471 W.
Cold Cr........................  47.584 N.            113.756 W.          47.562 N.           113.810 W.
Copper Cr......................  47.007 N.            112.555 W.          47.060 N.           112.752 W.
Cottonwood Cr..................  47.025 N.            113.281 W.          47.161 N.           113.345 W.
Cyclone Cr.....................  48.665 N.            114.238 W.          48.712 N.           114.391 W.
Cyclone Lake...................                 Located at                48.706 N.           114.297 W.
Deer Cr........................  45.595 N.            114.321 W.          45.570 N.           114.509 W.
Deer Cr........................  47.208 N.            113.529 W.          47.249 N.           113.688 W.
Deer Cr........................  47.377 N.            115.359 W.          47.326 N.           115.389 W.
Doctor Lake....................                 Located at                47.404 N.           113.480 W.
Dry Cr.........................  47.305 N.            114.064 W.          47.259 N.           113.903 W.
Dunham Cr......................  47.103 N.            113.155 W.          47.238 N.           113.316 W.
East Fork Bitterroot River.....  45.944 N.            114.128 W.          45.911 N.           113.595 W.
East River.....................  48.353 N.            116.852 W.          48.371 N.           116.819 W.
Elk Cr.........................  47.544 N.            113.741 W.          47.480 N.           113.856 W.
Finley Cr......................  47.125 N.            113.560 W.          47.120 N.           113.649 W.
Fish Cr........................  47.004 N.            114.699 W.          46.927 N.           114.696 W.
Fish Cr, S Fk..................  46.927 N.            114.696 W.          46.753 N.           114.571 W.
Fish Cr, W Fk..................  46.927 N.            114.696 W.          46.812 N.           114.890 W.
Fishtrap Cr....................  47.713 N.            115.058 W.          47.817 N.           115.144 W.
Fitzsimmons Cr.................  48.735 N.            114.733 W.          48.752 N.           114.618 W.
Flathead River.................  48.061 N.            114.127 W.          48.468 N.           114.069 W.
Flint Cr.......................  46.654 N.            113.145 W.          46.478 N.           113.237 W.
Foster Cr......................  46.164 N.            113.120 W.          46.283 N.           113.109 W.
Fred Burr Creek................  46.365 N.            114.131 W.          46.357 N.           114.315 W.
Gilbert Cr.....................  46.682 N.            113.666 W.          46.648 N.           113.818 W.
Goat Cr........................  47.749 N.            113.828 W.          47.773 N.           113.694 W.
Gold Creek.....................  47.971 N.            116.454 W.          47.954 N.           116.451 W.
Granite Creek..................  48.087 N.            116.427 W.          48.060 N.           116.329 W.
Granite Creek..................  48.639 N.            116.863 W.          48.700 N.           117.029 W.
Graves Cr......................  47.682 N.            115.409 W.          47.718 N.           115.380 W.
Grouse Creek...................  48.403 N.            116.477 W.          48.483 N.           116.228 W.
Harrison Cr....................  48.529 N.            113.750 W.          48.574 N.           113.701 W.
Harrison Lake..................                 Located at                48.516 N.           113.771 W.
Harvey Cr......................  46.707 N.            113.372 W.          46.581 N.           113.573 W.
Hughes Cr......................  45.621 N.            114.303 W.          45.667 N.           114.021 W.

[[Page 56271]]

 
Hughes Fork....................  48.805 N.            116.923 W.          48.946 N.           117.023 W.
Indian Creek...................  48.610 N.            116.836 W.          48.634 N.           116.789 W.
Jim Cr.........................  47.648 N.            113.792 W.          47.575 N.           113.856 W.
Jocko R........................  47.322 N.            114.304 W.          47.201 N.           113.924 W.
Jocko R, M Fk..................  47.201 N.            113.924 W.          47.203 N.           113.761 W.
Jocko R, N Fk..................  47.201 N.            113.924 W.          47.226 N.           113.816 W.
Jocko R, S Fk..................  47.195 N.            113.852 W.          47.104 N.           113.766 W.
Johnson Cr.....................  48.139 N.            116.229 W.          48.131 N.           116.225 W.
Kalispell Creek................  48.567 N.            116.921 W.          48.626 N.           117.134 W.
Kintla Cr......................  48.975 N.            114.250 W.          48.986 N.           114.063 W.
Kintla Lake....................                 Located at                48.966 N.           114.297 W.
Lake Alva......................                 Located at                47.314 N.           113.582 W.
Lake Inez......................                 Located at                47.270 N.           113.566 W.
Lake Isabel....................                 Located at                48.422 N.           113.493 W.
Lake McDonald..................                 Located at                48.576 N.           113.932 W.
Landers Fk.....................  46.965 N.            112.562 W.          47.099 N.           112.566 W.
Lightning Creek................  48.140 N.            116.191 W.          48.353 N.           116.175 W.
Lincoln Cr.....................  48.592 N.            113.766 W.          48.595 N.           113.758 W.
Lincoln Lake...................                 Located at                48.591 N.           113.770 W.
Lindbergh Lake.................                 Located at                47.359 N.           113.731 W.
Lion Cr........................  47.681 N.            113.815 W.          47.670 N.           113.710 W.
Lion Creek.....................  48.736 N.            116.831 W.          48.725 N.           116.672 W.
Little Blackfoot R.............  46.515 N.            112.797 W.          46.341 N.           112.465 W.
Little Joe Cr..................  47.297 N.            115.120 W.          47.270 N.           115.140 W.
Logging Cr.....................  48.784 N.            114.002 W.          48.776 N.           114.019 W.
Logging Lake...................                 Located at                48.756 N.           114.077 W.
Lost Cr, S Fk..................  47.873 N.            113.824 W.          47.869 N.           113.736 W.
Lower Quartz Lake..............                 Located at                48.810 N.           114.170 W.
McDonald Cr....................  48.632 N.            113.868 W.          48.646 N.           113.847 W.
McDonald Lake..................                 Located at                47.421 N.           113.976 W.
Meadow Cr......................  46.157 N.            113.439 W.          46.092 N.           113.443 W.
Middle Fork East River.........  48.371 N.            116.819 W.          48.362 N.           116.659 W.
Middle Fork Flathead River.....  48.468 N.            114.069 W.          47.996 N.           113.057 W.
Middle Quartz Lake.............                 Located at                48.822 N.           114.141 W.
Mill Creek.....................  46.348 N.            114.152 W.          46.312 N.           114.286 W.
Mission Cr.....................  47.354 N.            114.285 W.          47.320 N.           113.988 W.
Mission Reservoir..............                 Located at                47.321 N.           114.005 W.
Monture Cr.....................  47.020 N.            113.235 W.          47.301 N.           113.249 W.
Moose Meadow Cr................  46.139 N.            113.591 W.          46.078 N.           113.635 W.
Morrell Cr.....................  47.141 N.            113.460 W.          47.342 N.           113.471 W.
North Fork Blackfoot River.....  46.985 N.            113.129 W.          47.197 N.           112.886 W.
North Fork Flathead River......  48.468 N.            114.069 W.          49.000 N.           114.474 W.
North Fork Grouse Creek........  48.452 N.            116.373 W.          48.502 N.           116.265 W.
North Fork Indian Creek........  48.634 N.            116.789 W.          48.627 N.           116.691 W.
North Gold Creek...............  47.974 N.            116.452 W.          47.975 N.           116.426 W.
Nyack Creek....................  48.458 N.            113.804 W.          48.489 N.           113.700 W.
Ole Cr.........................  48.283 N.            113.598 W.          48.315 N.           113.463 W.
Overwhich Cr...................  45.675 N.            114.307 W.          45.717 N.           114.080 W.
Owl Cr.........................  47.115 N.            113.441 W.          47.115 N.           113.502 W.
Pack River.....................  48.320 N.            116.382 W.          48.613 N.           116.634 W.
Park Cr........................  48.310 N.            113.613 W.          48.369 N.           113.490 W.
Park Cr........................  48.422 N.            113.496 W.          48.421 N.           113.505 W.
Petty Cr.......................  46.992 N.            114.446 W.          46.850 N.           114.438 W.
Piper Cr.......................  47.675 N.            113.815 W.          47.637 N.           113.844 W.
Placid Cr......................  47.116 N.            113.541 W.          47.187 N.           113.692 W.
Placid Lake....................                 Located at                47.119 N.           113.522 W.
Post Creek.....................  47.360 N.            114.168 W.          47.410 N.           113.935 W.
Priest Lake....................                 Located at                48.481 N.           116.875 W.
Priest River...................  48.178 N.            116.892 W.          48.353 N.           116.852 W.
Prospect Cr....................  47.592 N.            115.358 W.          47.569 N.           115.676 W.
Quartz Cr......................  48.815 N.            114.165 W.          48.839 N.           114.003 W.
Quartz Lake....................                 Located at                48.826 N.           114.100 W.
Racetrack Cr...................  46.285 N.            112.729 W.          46.279 N.           112.949 W.
Rainbow Cr.....................  48.855 N.            114.053 W.          48.869 N.           114.052 W.
Rainy Lake.....................                 Located at                47.340 N.           113.593 W.
Ranch Cr.......................  46.583 N.            113.678 W.          46.468 N.           113.577 W.
Rattlesnake Cr.................  46.867 N.            113.985 W.          47.098 N.           113.909 W.
Red Meadow Cr..................  48.805 N.            114.324 W.          48.753 N.           114.565 W.
Rock Cr, E Fk..................  46.200 N.            113.499 W.          46.021 N.           113.319 W.
Rock Cr, M Fk..................  46.223 N.            113.521 W.          45.949 N.           113.523 W.
Rock Cr, Ross Fk...............  46.224 N.            113.525 W.          46.034 N.           113.779 W.

[[Page 56272]]

 
Rock Cr, W Fk..................  46.223 N.            113.521 W.          46.144 N.           113.721 W.
Rock Creek.....................  46.725 N.            113.682 W.          46.223 N.           113.521 W.
Rock Creek.....................  47.975 N.            115.742 W.          48.040 N.           115.676 W.
Saint Mary's Lake..............                 Located at                47.261 N.           113.919 W.
Salmon Lake....................                 Located at                47.099 N.           113.406 W.
Seeley Lake....................                 Located at                47.187 N.           113.505 W.
Skalkaho Cr....................  46.220 N.            114.162 W.          46.057 N.           113.807 W.
Sleeping Child Cr..............  46.162 N.            114.159 W.          46.033 N.           113.814 W.
Soldier Creek..................  48.503 N.            116.838 W.          48.547 N.           116.698 W.
Soup Cr........................  47.837 N.            113.843 W.          47.812 N.           113.751 W.
South Boulder Cr...............  46.441 N.            113.214 W.          46.330 N.           113.219 W.
South Fork Bull River..........  48.109 N.            115.782 W.          48.152 N.           115.784 W.
South Fork Granite Creek.......  48.700 N.            117.029 W.          48.761 N.           117.147 W.
South Fork Indian Creek........  48.634 N.            116.789 W.          48.624 N.           116.716 W.
South Fork Lion Creek..........  48.743 N.            116.797 W.          48.716 N.           116.718 W.
Squeezer Cr....................  47.750 N.            113.815 W.          47.717 N.           113.727 W.
St Regis R.....................  47.297 N.            115.089 W.          47.427 N.           115.741 W.
Stillwater R...................  48.604 N.            114.655 W.          48.789 N.           114.685 W.
Stony Cr.......................  46.348 N.            113.603 W.          46.283 N.           113.771 W.
Storm Lake Cr..................  46.169 N.            113.153 W.          46.075 N.           113.267 W.
Sullivan Springs...............  48.088 N.            116.411 W.          48.084 N.           116.387 W.
Swan Lake......................                 Located at                47.968 N.           113.910 W.
Swan River.....................  47.928 N.            113.880 W.          47.295 N.           113.782 W.
Swift Cr.......................  48.481 N.            114.424 W.          48.654 N.           114.550 W.
Swift Cr, E Fk.................  48.687 N.            114.582 W.          48.756 N.           114.583 W.
Swift Cr, W Fk.................  48.654 N.            114.550 W.          48.723 N.           114.667 W.
Tarlac Creek...................  48.393 N.            116.737 W.          48.349 N.           116.717 W.
The Thorofare..................  48.740 N.            116.842 W.          48.766 N.           116.864 W.
Thompson R.....................  47.576 N.            115.240 W.          47.713 N.           115.058 W.
Trail Creek....................  48.924 N.            114.386 W.          48.934 N.           114.534 W.
Trapper Creek..................  48.796 N.            116.896 W.          48.877 N.           116.846 W.
Trestle Creek..................  48.283 N.            116.352 W.          48.352 N.           116.234 W.
Trout Cr.......................  47.143 N.            114.829 W.          47.004 N.           114.992 W.
Trout Lake.....................                 Located at                48.677 N.           113.912 W.
Twelvemile Cr..................  47.350 N.            115.291 W.          47.465 N.           115.324 W.
Twin Creek.....................  48.094 N.            116.129 W.          48.063 N.           116.151 W.
Twin Lakes Cr..................  46.169 N.            113.152 W.          46.056 N.           113.226 W.
Two Mouth Creek................  48.688 N.            116.836 W.          48.674 N.           116.676 W.
Uleda Creek....................  48.388 N.            116.707 W.          48.339 N.           116.694 W.
Upper Kintla Lake..............                 Located at                48.974 N.           114.173 W.
Upper Priest River.............  48.799 N.            116.911 W.          49.000 N.           116.936 W.
Upper Stillwater Lake..........                 Located at                48.587 N.           114.636 W.
Upper Whitefish Lake...........                 Located at                48.687 N.           114.578 W.
Upper Willow Cr................  46.331 N.            113.542 W.          46.566 N.           113.522 W.
Vermilion R....................  47.833 N.            115.535 W.          47.869 N.           115.409 W.
Wahlquist Cr...................  46.501 N.            113.776 W.          46.531 N.           113.843 W.
Warm Springs Cr................  45.860 N.            114.025 W.          45.726 N.           114.057 W.
Warm Springs Cr................  46.210 N.            112.767 W.          46.261 N.           113.137 W.
West Fork Bitterroot River.....  45.944 N.            114.128 W.          45.461 N.           114.341 W.
West Gold Creek................  47.954 N.            116.451 W.          47.944 N.           116.477 W.
Whale Cr.......................  48.849 N.            114.352 W.          48.851 N.           114.593 W.
Whitefish Lake.................                 Located at                48.455 N.           114.387 W.
Woodward Cr....................  47.777 N.            113.845 W.          47.767 N.           113.879 W.
Woodward Cr, S Fk..............  47.754 N.            113.857 W.          47.717 N.           113.857 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 2, Clark Fork River Basin, follows:
BILLING CODE 4310-55-P

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    (9) Unit 3: Kootenai River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Bull Lake......................                 Located at                48.218 N.           115.853 W.
Callahan Cr....................  48.435 N.            116.012 W.          48.458 N.           115.881 W.
Fisher R.......................  48.366 N.            115.323 W.          48.070 N.           115.374 W.
Grave Cr.......................  48.798 N.            114.952 W.          48.927 N.           114.750 W.
Keeler Cr......................  48.360 N.            115.851 W.          48.331 N.           116.006 W.
Lake Creek.....................  48.360 N.            115.851 W.          48.283 N.           115.858 W.
Libby Creek....................  48.393 N.            115.537 W.          48.112 N.           115.552 W.
O'Brien Cr.....................  48.448 N.            115.866 W.          48.557 N.           115.862 W.
Phillips Cr....................  48.971 N.            115.104 W.          49.000 N.           115.062 W.
Pipe Cr........................  48.424 N.            115.606 W.          48.674 N.           115.647 W.
Poorman Creek..................  48.149 N.            115.526 W.          48.123 N.           115.631 W.
Quartz Cr......................  48.438 N.            115.638 W.          48.573 N.           115.689 W.
Sophie Lake....................                 Located at                48.962 N.           115.116 W.
Tobacco R......................  48.897 N.            115.126 W.          48.798 N.           114.952 W.
West Fisher Creek..............  48.070 N.            115.374 W.          48.050 N.           115.594 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 3, Kootenai River Basin, follows:

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    (10) Unit 4: Willamette River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Blue River.....................  44.153 N.            122.342 W.          44.172 N.           122.328 W.
Horse Creek....................  44.170 N.            122.174 W.          44.125 N.           122.036 W.
Lost Creek.....................  44.190 N.            122.066 W.          44.162 N.           122.022 W.
Mckenzie River.................  44.126 N.            123.106 W.          44.309 N.           122.028 W.
Middle Fork Willamette River...  44.023 N.            123.017 W.          43.481 N.           122.254 W.
South Fork Mckenzie River......  44.159 N.            122.295 W.          43.953 N.           122.017 W.
Swift Creek....................  43.502 N.            122.299 W.          43.560 N.           122.162 W.
West Fork Horse Creek..........  44.172 N.            122.206 W.          44.170 N.           122.174 W.
Willamette River...............  44.126 N.            123.106 W.          44.023 N.           123.017 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 4, Willamette River Basin, follows:

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    (11) Unit 5: Hood River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
East Fork Hood River...........  45.605 N.            121.632 W.          45.575 N.           121.626 W.
Hood River.....................  45.721 N.            121.506 W.          45.605 N.           121.632 W.
Middle Fork Hood River.........  45.575 N.            121.626 W.          45.463 N.           121.645 W.
West Fork Hood River...........  45.605 N.            121.632 W.          45.456 N.           121.781 W.
----------------------------------------------------------------------------------------------------------------

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

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[[Page 56280]]


    (12) Unit 6: Deschutes River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Abbot Creek....................  44.570 N.            121.619 W.          44.544 N.           121.670 W.
Deschutes River................  45.639 N.            120.914 W.          44.373 N.           121.291 W.
Heising Spring.................  44.494 N.            121.648 W.          44.491 N.           121.651 W.
Jack Creek.....................  44.493 N.            121.647 W.          44.472 N.           121.725 W.
Lake Billy Chinook.............                 Located at                44.584 N.           121.363 W.
Metolius River.................  44.577 N.            121.619 W.          44.434 N.           121.637 W.
Spring Creek...................  44.457 N.            121.642 W.          44.451 N.           121.650 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 6, Deschutes River Basin, follows:

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    (13) Unit 9: Umatilla-Walla Walla River Basins.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Griffin Fork...................  46.121 N.            117.973 W.          46.099 N.           117.913 W.
Lewis Creek....................  46.191 N.            117.824 W.          46.156 N.           117.771 W.
Low Creek......................  45.993 N.            118.035 W.          45.973 N.           118.009 W.
Meacham Creek..................  45.702 N.            118.359 W.          45.527 N.           118.290 W.
Mill Creek.....................  46.039 N.            118.478 W.          46.011 N.           117.941 W.
North Fork Meacham Creek.......  45.527 N.            118.290 W.          45.575 N.           118.174 W.
North Fork Touchet River.......  46.302 N.            117.959 W.          46.093 N.           117.864 W.
North Fork Walla Walla River...  45.899 N.            118.307 W.          45.947 N.           117.990 W.
Paradise Creek.................  46.004 N.            118.017 W.          46.001 N.           117.990 W.
Ryan Creek.....................  45.723 N.            118.314 W.          45.694 N.           118.308 W.
South Fork Touchet River.......  46.302 N.            117.959 W.          46.105 N.           117.985 W.
South Fork Walla Walla River...  45.899 N.            118.307 W.          45.966 N.           117.963 W.
Spangler Creek.................  46.149 N.            117.806 W.          46.099 N.           117.802 W.
Touchet River..................  46.272 N.            118.174 W.          46.302 N.           117.959 W.
Umatilla River.................  45.923 N.            119.356 W.          45.726 N.           118.187 W.
Walla Walla River..............  46.039 N.            118.478 W.          45.899 N.           118.307 W.
Wolf Fork Touchet River........  46.274 N.            117.895 W.          46.075 N.           117.903 W.
Yellowhawk Creek...............  46.017 N.            118.400 W.          46.077 N.           118.272 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 9, Umatilla-Walla Walla River Basins, follows:

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[[Page 56284]]


    (14) Unit 10: Grande Ronde River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Bear Creek.....................  45.584 N.            117.540 W.          45.323 N.           117.480 W.
Catherine Creek................  45.408 N.            117.930 W.          45.120 N.           117.646 W.
Chicken Creek..................  45.095 N.            118.394 W.          45.024 N.           118.385 W.
Deer Creek.....................  45.620 N.            117.699 W.          45.423 N.           117.587 W.
Fly Creek......................  45.210 N.            118.394 W.          45.121 N.           118.465 W.
Grande Ronde River.............  46.080 N.            116.978 W.          44.967 N.           118.254 W.
Hurricane Creek................  45.420 N.            117.301 W.          45.274 N.           117.310 W.
Indian Creek...................  45.534 N.            117.919 W.          45.337 N.           117.721 W.
Limber Jim Creek...............  45.089 N.            118.343 W.          45.085 N.           118.229 W.
Little Bear Creek..............  45.485 N.            117.554 W.          45.428 N.           117.479 W.
Little Fly Creek...............  45.121 N.            118.465 W.          45.110 N.           118.475 W.
Little Lookingglass Creek......  45.750 N.            117.874 W.          45.817 N.           117.901 W.
Little Minam River.............  45.401 N.            117.671 W.          45.246 N.           117.599 W.
Lookingglass Creek.............  45.707 N.            117.841 W.          45.779 N.           118.078 W.
Lookout Creek..................  45.110 N.            118.475 W.          45.078 N.           118.540 W.
Lostine River..................  45.552 N.            117.489 W.          45.246 N.           117.374 W.
Minam River....................  45.621 N.            117.720 W.          45.148 N.           117.371 W.
Mottet Creek...................  45.767 N.            117.886 W.          45.788 N.           117.942 W.
North Fork Catherine Creek.....  45.120 N.            117.646 W.          45.225 N.           117.604 W.
Sheep Creek....................  45.105 N.            118.381 W.          45.016 N.           118.507 W.
South Fork Catherine Creek.....  45.120 N.            117.646 W.          45.112 N.           117.513 W.
Wallowa River..................  45.726 N.            117.784 W.          45.420 N.           117.301 W.
Wenaha River...................  45.946 N.            117.450 W.          45.951 N.           117.794 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 10, Grande Ronde River Basin, follows:

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[[Page 56286]]


    (15) Unit 11: Imnaha-Snake River Basins.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Big Sheep Creek................  45.557 N.            116.834 W.          45.178 N.           117.119 W.
Imnaha River...................  45.817 N.            116.764 W.          45.113 N.           117.125 W.
Little Sheep Creek.............  45.520 N.            116.859 W.          45.232 N.           117.093 W.
McCully Creek..................  45.311 N.            117.082 W.          45.211 N.           117.140 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 11, Imnaha-Snake River Basins, follows:

[[Page 56287]]

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[[Page 56288]]


    (16) Unit 12: Hells Canyon Complex.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Anthony Creek..................  45.013 N.            118.059 W.          44.953 N.           118.220 W.
Big Muddy Creek................  44.940 N.            117.945 W.          44.899 N.           118.131 W.
Clear Creek....................  44.866 N.            117.029 W.          45.043 N.           117.143 W.
East Fork Pine Creek...........  45.022 N.            117.200 W.          45.072 N.           117.176 W.
East Pine Creek................  44.872 N.            117.020 W.          45.046 N.           117.119 W.
Little Cracker Creek...........  44.826 N.            118.196 W.          44.840 N.           118.166 W.
Meadow Creek...................  44.990 N.            117.142 W.          45.017 N.           117.171 W.
North Pine Creek...............  44.910 N.            116.948 W.          45.079 N.           116.897 W.
North Powder River.............  45.039 N.            117.895 W.          44.878 N.           118.203 W.
Pine Creek.....................  44.849 N.            117.893 W.          44.826 N.           118.078 W.
Pine Creek.....................  44.974 N.            116.853 W.          45.039 N.           117.215 W.
Rock Creek.....................  44.918 N.            117.929 W.          44.856 N.           118.124 W.
Salmon Creek...................  44.888 N.            117.902 W.          44.767 N.           118.019 W.
Silver Creek...................  44.809 N.            118.207 W.          44.857 N.           118.291 W.
Wolf Creek.....................  45.044 N.            117.893 W.          45.068 N.           118.193 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 12, Hells Canyon Complex, follows:

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[[Page 56290]]


    (17) Unit 13: Malheur River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Big Creek......................  44.145 N.            118.624 W.          44.292 N.           118.638 W.
Lake Creek.....................  44.145 N.            118.624 W.          44.283 N.           118.683 W.
Malheur River..................  43.686 N.            118.270 W.          44.145 N.           118.624 W.
Summit Creek...................  44.099 N.            118.587 W.          44.261 N.           118.501 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 13, Malheur River Basin, follows:

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[[Page 56292]]


    (18) Unit 14: Coeur d'Alene Lake Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Beaver Creek...................  47.083 N.            115.355 W.          47.064 N.           115.480 W.
Coeur d'Alene Lake.............                 Located at                47.449 N.           116.798 W.
Coeur d'Alene River............  47.460 N.            116.798 W.          47.558 N.           116.257 W.
Eagle Creek....................  47.644 N.            115.921 W.          47.652 N.           115.903 W.
Fly Creek......................  47.113 N.            115.385 W.          47.081 N.           115.489 W.
North Fork Coeur d'Alene River.  47.558 N.            116.257 W.          48.006 N.           116.321 W.
Prichard Creek.................  47.658 N.            115.976 W.          47.644 N.           115.921 W.
Ruby Creek.....................  46.983 N.            115.367 W.          46.961 N.           115.430 W.
St. Joe River..................  47.393 N.            116.749 W.          47.017 N.           115.078 W.
Steamboat Creek................  47.662 N.            116.154 W.          47.716 N.           116.199 W.
Timber Creek...................  47.018 N.            115.368 W.          46.992 N.           115.462 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 14, Coeur d'Alene Lake Basin, follows:

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[[Page 56294]]


    (19) Unit 19: Lower Columbia River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Clearwater Creek...............  46.276 N.            121.327 W.          46.278 N.           121.330 W.
Fish Lake Stream...............  46.275 N.            121.312 W.          46.342 N.           121.368 W.
Klickitat River................  45.691 N.            121.293 W.          46.255 N.           121.239 W.
Lewis River (Lower)............  45.850 N.            122.782 W.          45.957 N.           122.555 W.
Little Muddy Creek.............  46.275 N.            121.312 W.          46.278 N.           121.352 W.
Trappers Creek.................  46.275 N.            121.330 W.          46.290 N.           121.362 W.
Two Lakes Stream...............  46.342 N.            121.368 W.          46.340 N.           121.384 W.
UNNAMED--off Fish Lake Stream..  46.331 N.            121.359 W.          46.323 N.           121.437 W.
West Fork Klickitat River......  46.242 N.            121.246 W.          46.275 N.           121.312 W.
White Salmon River.............  45.723 N.            121.521 W.          45.897 N.           121.503 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 19, Lower Columbia River Basin, follows:

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[[Page 56296]]


    (20) Unit 20: Middle Columbia River Basin.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Ahtanum Creek..................  46.529 N.            120.472 W.          46.523 N.           120.853 W.
Box Canyon Creek...............  47.361 N.            121.243 W.          47.377 N.           121.257 W.
Bumping River..................  46.989 N.            121.094 W.          46.831 N.           121.377 W.
Cle Elum River.................  47.177 N.            120.990 W.          47.589 N.           121.161 W.
Cooper River...................  47.391 N.            121.098 W.          47.455 N.           121.213 W.
Gold Creek.....................  47.390 N.            121.382 W.          47.475 N.           121.316 W.
Jack Creek.....................  47.319 N.            120.855 W.          47.334 N.           120.742 W.
Jungle Creek...................  47.333 N.            120.855 W.          47.333 N.           120.923 W.
Kachess River..................  47.251 N.            121.200 W.          47.429 N.           121.222 W.
Naches River...................  46.630 N.            120.514 W.          46.989 N.           121.094 W.
North Fork Ahtanum Creek.......  46.523 N.            120.853 W.          46.538 N.           121.211 W.
North Fork Teanaway River......  47.251 N.            120.877 W.          47.454 N.           120.965 W.
North Fork Tieton River........  46.635 N.            121.261 W.          46.508 N.           121.435 W.
Rattlesnake Creek..............  46.820 N.            120.929 W.          46.760 N.           121.315 W.
South Fork Ahtanum Creek.......  46.523 N.            120.853 W.          46.454 N.           121.118 W.
Teanaway River.................  47.167 N.            120.834 W.          47.257 N.           120.897 W.
Tieton River...................  46.746 N.            120.786 W.          46.656 N.           121.129 W.
Yakima River...................  46.529 N.            120.472 W.          47.322 N.           121.339 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 20, Middle Columbia River Basin, follows:

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[[Page 56298]]


    (21) Unit 22: Northeast Washington River Basins.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       Latitude            latitude             center              center
----------------------------------------------------------------------------------------------------------------
Calispell......................  48.344 N             117.289 W           48.321 N            117.307 W.
Cedar Creek....................  48.742 N.            117.411 W           48.846 N            117.521 W.
E. Fork Small Creek............  48.328 N             117.354 W           48.371 N            117.398 W.
East Branch LeClerc Creek......  48.534 N             117.282 W           48.673 N            117.188 W.
Fourth of July Creek...........  48.556 N             117.272 W           48.573 N            117.200 W.
Indian Creek...................  48.243 N             117.151 W           48.299 N            117.151 W.
LeClerc Creek..................  48.518 N             117.283 W           48.534 N            117.282 W.
Mill Creek.....................  48.489 N             117.265 W           48.493 N            117.239 W.
Ruby Creek.....................  48.556 N             117.342 W           48.568 N            117.509 W.
S. Fork Tacoma Creek...........  48.394 N             117.323 W           48.432 N            117.506 W.
Slate Creek....................  48.923 N             117.332 W           48.948 N            117.165 W.
Small Creek....................  48.321 N             117.307 W           48.337 N            117.409 W.
Sullivan Creek.................  48.865 N             117.370 W           48.950 N            117.070 W.
Tacoma Creek...................  48.392 N             117.288 W           48.445 N            117.507 W.
West Branch LeClerc Creek......  48.534 N             117.282 W           48.701 N            117.211 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 22, Northeast Washington River Basins, follows:

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[[Page 56300]]


    (22) Unit 23: Snake River Basin in Washington.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Asotin Creek...................  46.345 N             117.053 W           46.272 N            117.291 W.
Charley Creek..................  46.289 N             117.278 W           46.210 N            117.552 W.
Cummings Creek.................  46.333 N             117.674 W           46.219 N            117.595 W.
George Creek...................  46.326 N             117.105 W           46.118 N            117.363 W.
Hixon Creek....................  46.246 N             117.683 W           46.219 N            117.651 W.
N. Fork Asotin Creek...........  46.272 N             117.291 W           46.196 N            117.568 W.
Tucannon River.................  46.558 N             118.174 W           46.139 N            117.520 W
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 23, Snake River Basin in Washington, follows:

[[Page 56301]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.016


[[Page 56302]]


    (23) Unit 25: Snake River.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Snake River....................  46.189 N             119.030 W           44.243 N            117.041 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 25, Snake River, follows:

[[Page 56303]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.017

BILLING CODE 4310-55-C

[[Page 56304]]

    (24) Unit 27: Olympic Peninsula.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Bell Creek.....................  48.083 N.            123.052 W.          48.057 N.           123.102 W.
Big Creek......................  47.518 N.            123.773 W.          47.566 N.           123.680 W.
Boulder Creek..................  47.982 N.            123.602 W.          47.979 N.           123.612 W.
Buckinghorse Creek.............  47.747 N.            123.481 W.          47.739 N.           123.484 W.
Canyon River...................  47.211 N.            123.551 W.          47.338 N.           123.498 W.
Cat Creek......................  47.971 N.            123.593 W.          47.946 N.           123.642 W.
Cedar Creek....................  47.712 N.            124.415 W.          47.717 N.           124.335 W.
Chehalis River.................  46.962 N.            123.823 W.          46.819 N.           123.252 W.
Clearwater River...............  47.546 N.            124.291 W.          47.730 N.           123.934 W.
Copalis River..................  47.133 N.            124.180 W.          47.234 N.           124.020 W.
Cougar Creek...................  47.862 N.            123.859 W.          47.868 N.           123.853 W.
Delabarre Creek................  47.735 N.            123.526 W.          47.726 N.           123.527 W.
Dungeness River................  48.151 N.            123.133 W.          47.942 N.           123.091 W.
Elk Creek......................  47.515 N.            123.330 W.          47.510 N.           123.344 W.
Elwha River....................  48.151 N.            123.558 W.          47.771 N.           123.580 W.
Ennis Creek....................  48.117 N.            123.404 W.          48.053 N.           123.410 W.
Godkin Creek...................  47.760 N.            123.464 W.          47.752 N.           123.451 W.
Goodman Creek..................  47.825 N.            124.512 W.          47.835 N.           124.338 W.
Gray Wolf River................  47.977 N.            123.111 W.          47.916 N.           123.242 W.
Grays Harbor Marine............  46.927 N.            124.179 W.          46.906 N.           124.138 W.
Griff Creek....................  48.013 N.            123.591 W.          48.023 N.           123.593 W.
Hayes River....................  47.808 N.            123.453 W.          47.803 N.           123.428 W.
Hoh Creek......................  47.877 N.            123.753 W.          47.883 N.           123.750 W.
Hoh River......................  47.751 N.            124.437 W.          47.878 N.           123.688 W.
Hood Canal Marine..............  47.685 N.            122.800 W.          47.434 N.           122.841 W.
Hughes Creek...................  48.025 N.            123.594 W.          48.026 N.           123.598 W.
Humptulips River...............  47.045 N.            124.048 W.          47.247 N.           123.888 W.
Hurd Creek.....................  48.124 N.            123.142 W.          48.118 N.           123.142 W.
Ignar Creek....................  47.639 N.            123.432 W.          47.637 N.           123.429 W.
Irely Creek....................  47.565 N.            123.678 W.          47.567 N.           123.672 W.
Irely Lake.....................                 Located at                47.565 N.           123.672 W.
Joe Creek......................  47.206 N.            124.202 W.          47.217 N.           124.153 W.
Kalaloch Creek.................  47.607 N.            124.374 W.          47.637 N.           124.360 W.
Little River...................  48.063 N.            123.576 W.          48.033 N.           123.456 W.
Matheny Creek..................  47.576 N.            124.113 W.          47.543 N.           123.835 W.
Moclips River..................  47.248 N.            124.219 W.          47.260 N.           124.122 W.
Morse Creek....................  48.118 N.            123.350 W.          48.064 N.           123.346 W.
Mosquito Creek.................  47.799 N.            124.481 W.          47.787 N.           124.382 W.
Mount Tom Creek................  47.868 N.            123.887 W.          47.819 N.           123.820 W.
Nolan Creek....................  47.752 N.            124.343 W.          47.743 N.           124.201 W.
North Fork Quinault River......  47.540 N.            123.666 W.          47.654 N.           123.646 W.
North Fork Skokomish River       47.315 N.            123.238 W.          47.398 N.           123.200 W.
 (Lower).
North Fork Skokomish River       47.419 N.            123.224 W.          47.539 N.           123.380 W.
 (Upper).
OGS Creek......................  47.878 N.            123.770 W.          47.879 N.           123.767 W.
O'Neil Creek...................  47.616 N.            123.470 W.          47.610 N.           123.463 W.
Owl Creek......................  47.805 N.            124.078 W.          47.780 N.           124.037 W.
Pacific Coast Marine...........  48.003 N.            124.678 W.          46.927 N.           124.179 W.
Prescott Creek.................  47.903 N.            123.490 W.          47.904 N.           123.486 W.
Pyrites Creek..................  47.639 N.            123.432 W.          47.644 N.           123.435 W.
Queets River...................  47.544 N.            124.354 W.          47.758 N.           123.657 W.
Quinault Lake..................                 Located at                47.471 N.           123.871 W.
Quinault River.................  47.349 N.            124.299 W.          47.687 N.           123.371 W.
Richert Spring.................  47.320 N.            123.218 W.          47.320 N.           123.224 W.
Rustler Creek..................  47.617 N.            123.615 W.          47.629 N.           123.568 W.
Salmon River...................  47.557 N.            124.219 W.          47.524 N.           124.040 W.
Sams River.....................  47.625 N.            124.012 W.          47.604 N.           123.851 W.
Satsop River...................  46.979 N.            123.480 W.          47.035 N.           123.524 W.
Skokomish River................  47.335 N.            123.116 W.          47.315 N.           123.238 W.
Slate Creek....................  47.521 N.            123.335 W.          47.529 N.           123.319 W.
Slough off of Elwha............  48.145 N.            123.567 W.          48.138 N.           123.558 W.
South Fork Hoh River...........  47.820 N.            124.022 W.          47.764 N.           123.785 W.
South Fork Skokomish River.....  47.315 N.            123.238 W.          47.488 N.           123.454 W.
Steamboat Creek................  47.679 N.            124.403 W.          47.688 N.           124.349 W.
Strait of Juan de Fuca Marine..  48.103 N.            122.884 W.          48.217 N.           124.100 W.
Tshletshy Creek................  47.666 N.            123.923 W.          47.606 N.           123.739 W.
West Fork Satsop River.........  47.035 N.            123.524 W.          47.360 N.           123.565 W.
Winfield Creek.................  47.810 N.            124.231 W.          47.783 N.           124.142 W.

[[Page 56305]]

 
Wishkah River..................  46.973 N.            123.806 W.          47.261 N.           123.713 W.
Wynoochee River................  46.962 N.            123.606 W.          47.385 N.           123.604 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 27, Olympic Peninsula, follows:
BILLING CODE 4310-55-P

[[Page 56306]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.018

BILLING CODE 4310-55-C

[[Page 56307]]

    (25) Unit 28: Puget Sound.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Alma Creek.....................  48.600 N.            121.361 W.          48.590 N.           121.355 W.
Bacon Creek....................  48.586 N.            121.394 W.          48.681 N.           121.462 W.
Baker River....................  48.534 N.            121.735 W.          48.821 N.           121.427 W.
Bald Eagle Creek...............  48.800 N.            121.464 W.          48.797 N.           121.448 W.
Bear Creek.....................  48.965 N.            121.387 W.          48.966 N.           121.382 W.
Bear Lake Outlet (stream         48.607 N.            121.911 W.          48.610 N.           121.911 W.
 catalog <greek-i>0317).
Big Beaver Creek...............  48.773 N.            121.045 W.          48.842 N.           121.210 W.
Boulder River..................  48.282 N.            121.786 W.          48.245 N.           121.827 W.
Brush Creek....................  48.913 N.            121.423 W.          48.909 N.           121.422 W.
Canyon Creek...................  48.098 N.            121.969 W.          48.158 N.           121.816 W.
Canyon Creek (Canyon Lake        48.832 N.            122.143 W.          48.840 N.           122.110 W.
 Creek).
Carbon River...................  47.130 N.            122.232 W.          46.964 N.           121.794 W.
Cascade River..................  48.524 N.            121.429 W.          48.463 N.           121.163 W.
Chenuis Creek..................  46.992 N.            121.842 W.          46.993 N.           121.841 W.
Chilliwack River...............  49.000 N.            121.410 W.          48.878 N.           121.486 W.
Clearwater River...............  47.146 N.            121.833 W.          47.079 N.           121.781 W.
Corkindale Creek...............  48.505 N.            121.485 W.          48.518 N.           121.482 W.
Crystal Creek..................  46.929 N.            121.537 W.          46.920 N.           121.525 W.
Crystal Creek..................  48.787 N.            121.501 W.          48.791 N.           121.509 W.
Dan Creek......................  48.298 N.            121.550 W.          48.265 N.           121.539 W.
Deer Creek.....................  48.268 N.            121.931 W.          48.365 N.           121.793 W.
Deer Creek.....................  48.715 N.            121.119 W.          48.721 N.           121.104 W.
Depot Creek....................  48.997 N.            121.323 W.          48.986 N.           121.292 W.
Devils Creek...................  48.825 N.            121.042 W.          48.819 N.           121.001 W.
Diobsud Creek..................  48.559 N.            121.411 W.          48.576 N.           121.432 W.
Duwamish River.................  47.586 N.            122.359 W.          47.474 N.           122.250 W.
East Duwamish Waterway.........  47.590 N.            122.343 W.          47.567 N.           122.346 W.
East Fork Bacon Creek..........  48.661 N.            121.433 W.          48.713 N.           121.416 W.
Eastern Shoreline Guemes Island  48.529 N.            122.572 W.          48.589 N.           122.645 W.
Eastern Shoreline Puget Sound    48.511 N.            122.605 W.          49.000 N.           122.755 W.
 (North).
Eastern Shoreline Puget Sound    47.102 N.            122.727 W.          48.426 N.           122.674 W.
 (South).
Eastern Shoreline Whidbey        47.905 N.            122.387 W.          48.370 N.           122.665 W.
 Island.
Eastern Shoreline Lummi Island.  48.641 N.            122.608 W.          48.717 N.           122.718 W.
Easy Creek.....................  48.889 N.            121.457 W.          48.882 N.           121.455 W.
Ebey Slough....................  48.022 N.            122.147 W.          47.941 N.           122.169 W.
Finney Creek...................  48.524 N.            121.846 W.          48.465 N.           121.686 W.
Foss River.....................  47.653 N.            121.293 W.          47.705 N.           121.305 W.
Fryingpan Creek................  46.891 N.            121.601 W.          46.869 N.           121.649 W.
Gedney Island..................  00.000 N.            000.000 W.          48.013 N.           122.319 W.
Glacier Creek..................  47.987 N.            121.392 W.          47.987 N.           121.367 W.
Goat Island....................  00.000 N.            000.000 W.          48.363 N.           122.529 W.
Goodell Creek..................  48.672 N.            121.264 W.          48.778 N.           121.351 W.
Green River....................  47.474 N.            122.250 W.          47.299 N.           121.839 W.
Greenwater River...............  47.159 N.            121.659 W.          47.093 N.           121.457 W.
Hat Slough.....................  48.197 N.            122.361 W.          48.209 N.           122.322 W.
Hope Island....................  00.000 N.            000.000 W.          48.399 N.           122.568 W.
Howard Creek...................  48.609 N.            121.965 W.          48.619 N.           121.965 W.
Huckleberry Creek..............  47.079 N.            121.585 W.          46.989 N.           121.622 W.
Hutchinson Creek...............  48.707 N.            122.178 W.          48.733 N.           122.102 W.
Ika Island.....................  00.000 N.            000.000 W.          48.363 N.           122.501 W.
Illabot Creek..................  48.496 N.            121.530 W.          48.389 N.           121.318 W.
Indian Creek...................  48.947 N.            121.397 W.          48.935 N.           121.394 W.
Ipsut Creek....................  46.980 N.            121.832 W.          46.971 N.           121.831 W.
Jim Creek......................  48.185 N.            122.076 W.          48.216 N.           121.939 W.
Jones Creek....................  48.524 N.            122.052 W.          48.542 N.           122.050 W.
Kendall Creek..................  48.887 N.            122.148 W.          48.922 N.           122.144 W.
Klickitat Creek................  46.909 N.            121.548 W.          46.903 N.           121.546 W.
Lake Union.....................                 Located at                47.651 N.           122.355 W.
Lake Washington................                 Located at                47.520 N.           122.236 W.
Lightning Creek................  48.871 N.            121.027 W.          49.000 N.           120.978 W.
Little Beaver Creek............  48.912 N.            121.064 W.          48.878 N.           121.322 W.
Little Chilliwack River........  48.993 N.            121.407 W.          48.962 N.           121.477 W.
Lodi Creek.....................  46.960 N.            121.705 W.          46.940 N.           121.687 W.
Maple Creek....................  48.912 N.            122.078 W.          48.927 N.           122.076 W.
Marble Creek...................  48.531 N.            121.281 W.          48.542 N.           121.251 W.
Middle Fork Nooksack River.....  48.834 N.            122.154 W.          48.725 N.           121.898 W.
Mowich River...................  46.901 N.            122.030 W.          46.915 N.           121.894 W.

[[Page 56308]]

 
Newhalem Creek.................  48.671 N.            121.254 W.          48.663 N.           121.251 W.
Nisqually River................  47.101 N.            122.691 W.          46.835 N.           122.323 W.
Nookachamps Creek..............  48.471 N.            122.296 W.          48.346 N.           122.202 W.
Nooksack River.................  48.771 N.            122.598 W.          48.834 N.           122.154 W.
North Fork Skagit River........  48.364 N.            122.472 W.          48.387 N.           122.366 W.
North Fork Stillaguamish River.  48.204 N.            122.126 W.          48.328 N.           121.639 W.
Panther Creek..................  48.708 N.            120.975 W.          48.631 N.           120.977 W.
Pass Creek.....................  48.815 N.            121.462 W.          48.811 N.           121.457 W.
Peat Bog Creek (st. catalog      48.790 N.            122.121 W.          48.780 N.           122.116 W.
 <greek-i> 0352).
Pierce Creek...................  48.774 N.            121.060 W.          48.766 N.           121.072 W.
Pilchuck River.................  47.904 N.            122.090 W.          47.995 N.           121.745 W.
Portage Island.................  00.000 N.            000.000 W.          48.701 N.           122.618 W.
Puyallup River.................  47.269 N.            122.425 W.          46.864 N.           121.949 W.
Ranger Creek...................  46.995 N.            121.853 W.          46.984 N.           121.854 W.
Rocky Creek....................  48.501 N.            121.494 W.          48.510 N.           121.501 W.
Roland Creek...................  48.762 N.            121.027 W.          48.770 N.           120.997 W.
Ruby Creek.....................  48.737 N.            121.046 W.          48.707 N.           120.916 W.
Samish River...................  48.555 N.            122.456 W.          48.649 N.           122.207 W.
Sauk River.....................  48.482 N.            121.604 W.          48.135 N.           121.422 W.
Silesia Creek..................  48.999 N.            121.612 W.          48.911 N.           121.484 W.
Silver Creek...................  48.972 N.            121.092 W.          48.981 N.           121.188 W.
Skagit River...................  48.387 N.            122.366 W.          49.000 N.           121.078 W.
Skookum Creek..................  48.671 N.            122.140 W.          48.686 N.           122.105 W.
Skykomish River................  47.830 N.            122.045 W.          47.813 N.           121.578 W.
Smith Creek....................  48.856 N.            122.299 W.          48.841 N.           122.261 W.
Snohomish River................  48.020 N.            122.208 W.          47.830 N.           122.045 W.
Snoqualmie River...............  47.830 N.            122.045 W.          47.541 N.           121.836 W.
South Fork Nooksack River......  48.809 N.            122.202 W.          48.675 N.           121.940 W.
South Fork Skagit River........  48.292 N.            122.367 W.          48.387 N.           122.366 W.
South Fork Skykomish River.....  47.813 N.            121.578 W.          47.705 N.           121.305 W.
South Fork Stillaguamish River.  48.204 N.            122.126 W.          48.030 N.           121.482 W.
South Fork Tolt River..........  47.696 N.            121.820 W.          47.693 N.           121.692 W.
South Mowich River.............  46.915 N.            121.894 W.          46.871 N.           121.845 W.
South Pass.....................  48.226 N.            122.385 W.          48.238 N.           122.377 W.
South Puyallup River...........  46.864 N.            121.949 W.          46.821 N.           121.846 W.
Southeastern Shoreline Vashon    47.331 N.            122.492 W.          47.349 N.           122.450 W.
 Island.
Squire Creek...................  48.280 N.            121.684 W.          48.194 N.           121.637 W.
St. Andrews Creek..............  46.837 N.            121.920 W.          46.833 N.           121.864 W.
Steamboat Slough...............  48.033 N.            122.203 W.          47.984 N.           122.168 W.
Stetattle Creek................  48.717 N.            121.148 W.          48.727 N.           121.154 W.
Stillaguamish River............  48.238 N.            122.377 W.          48.204 N.           122.126 W.
Suiattle River.................  48.330 N.            121.548 W.          48.162 N.           121.005 W.
Sulphide Creek.................  48.777 N.            121.532 W.          48.789 N.           121.551 W.
Tenas Creek....................  48.324 N.            121.438 W.          48.335 N.           121.421 W.
Three Fools Creek..............  48.891 N.            120.973 W.          48.897 N.           120.847 W.
Thunder Creek..................  48.712 N.            121.105 W.          48.563 N.           121.026 W.
Tolt River.....................  47.641 N.            121.926 W.          47.696 N.           121.820 W.
Union Slough...................  48.034 N.            122.190 W.          47.984 N.           122.166 W.
unnamed tributary (st. catalog   46.992 N.            121.704 W.          46.992 N.           121.714 W.
 <greek-i>0217).
unnamed tributary (st. catalog   46.962 N.            121.710 W.          46.960 N.           121.717 W.
 <greek-i>0226).
unnamed tributary (st. catalog   46.965 N.            121.712 W.          46.959 N.           121.711 W.
 <greek-i>0234).
unnamed tributary (st. catalog   46.905 N.            121.559 W.          46.909 N.           121.573 W.
 <greek-i>0364).
West Fork Foss River...........  47.653 N.            121.293 W.          47.627 N.           121.310 W.
West Fork White River..........  47.125 N.            121.618 W.          46.941 N.           121.707 W.
West Pass......................  48.250 N.            122.396 W.          48.238 N.           122.377 W.
White River....................  47.200 N.            122.257 W.          46.902 N.           121.636 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 28, Puget Sound, follows:
BILLING CODE 4310-55-P

[[Page 56309]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.019


[[Page 56310]]


    (26) Unit 29: Saint Mary-Belly.
    (i) Critical habitat is designated on the water bodies listed in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                            Stream endpoint     Stream endpoint
              Name                 Stream endpoint      Stream endpoint    latitude or lake    longitude or lake
                                       latitude            longitude            center              center
----------------------------------------------------------------------------------------------------------------
Boulder Creek..................  48.839 N.            113.459 W.          48.732 N.           113.608 W.
Cracker Lake...................                 Located at                48.744 N.           113.643 W.
Divide Creek...................  48.751 N.            113.437 W.          48.634 N.           113.444 W.
Jule Creek.....................  48.988 N.            113.613 W.          48.954 N.           113.617 W.
Kennedy Creek..................  48.905 N.            113.409 W.          48.851 N.           113.604 W.
Lee Creek......................  48.998 N.            113.600 W.          48.960 N.           113.644 W.
North Fork Belly River.........  48.998 N.            113.754 W.          48.981 N.           113.770 W.
Otatso Creek...................  48.915 N.            113.464 W.          48.892 N.           113.644 W.
Red Eagle Lake.................                 Located at                48.651 N.           113.506 W.
Saint Mary Lake................                 Located at                48.685 N.           113.525 W.
Saint Mary River...............  48.998 N.            113.326 W.          48.668 N.           113.615 W.
Slide Lakes--lower pool........                 Located at                48.905 N.           113.615 W.
Slide Lakes--upper pool........                 Located at                48.901 N.           113.625 W.
Swiftcurrent Creek.............  48.836 N.            113.428 W.          48.828 N.           113.521 W.
----------------------------------------------------------------------------------------------------------------

    (ii) Map of Unit 29, Saint Mary-Belly, follows:

[[Page 56311]]

[GRAPHIC] [TIFF OMITTED] TR26SE05.020


    Dated: September 15, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-18880 Filed 9-23-05; 8:45 am]
BILLING CODE 4310-55-C


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