# Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River Populations of Bull Trout

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A04-14014

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 25, 2004
- **Citation:** 69 FR 35768

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ12
Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River Populations of Bull Trout

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout (
Salvelinus
confluentus) pursuant to the Endangered Species Act of 1973, as amended (Act). For the Jarbidge River population, the proposed critical habitat designation includes approximately 131 miles (mi) (211 kilometers (km)) of streams in Idaho and Nevada. For the Coastal-Puget Sound population, the proposed critical habitat designation totals approximately 2,290 mi (3,685 km) of streams, 52,540 acres (ac) (21,262 hectares (ha)) of lakes, and 985 mi (1,585 km) of marine shoreline in Washington. For the Saint Mary-Belly River population, the proposed critical habitat designation totals approximately 88 mi (142 km) of streams and 6,295 ac (2,548 ha) of lakes in Montana.

Section 4 of the Act requires us to consider the economic and other relevant impacts of specifying any area as critical habitat. We will conduct an analysis of the economic impacts of designating these areas in a manner that is consistent with the ruling of the 10th Circuit Court of Appeals in
N.M. Cattle Growers Ass'n
v.
USFWS.
We hereby solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal prior to final designation to incorporate or address new information received during public comment periods.

DATES:

We will accept comments until August 24, 2004.

Public Hearing

The Act provides for a public hearing on this proposal, if requested. Given the high likelihood of requests, we have scheduled a public hearing to be held on Tuesday, August 10, 2004, in Washington State.

Persons needing reasonable accommodations in order to attend and participate in the public hearing should contact Patti Carroll at 503/231-2080 as soon as possible. In order to allow sufficient time to process requests, please call no later than 1 week before the hearing date.

ADDRESSES:

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:

1. You may submit written comments and information to John Young, Bull Trout Coordinator, U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Avenue, Portland, OR 97232 (telephone 503/231-6194; facsimile 503/231-6243).

2. You may hand-deliver written comments to our Regional Office, at the address given above during normal business hours.

3. You may send comments by electronic mail (e-mail) to:
r1bulltroutch@r1.fws.gov.
Please see the Public Comments Solicited section below for file format and other information about electronic filing. In the event that our internet connection is not functional, please submit your comments by the alternate methods mentioned above.

All comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.

Public Hearing:
We will hold public hearings at the Comfort Inn and Conference Center, 1620 74th Ave. Southwest, Tumwater, WA. Public hearings will be held from 1 p.m. until 3 p.m. and from 6 p.m. until 8 p.m.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of bull trout habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities;

(5) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments;

(6) We are seeking comment on the use of tidal datum to delineate the area of the photic zone (uppermost layer of water into which daylight penetrates sufficiently to influence living organisms), and we are interested in any proposed alternatives that appropriately identify proposed critical habitat for bull trout in the marine nearshore waters; and

(7) We are specifically seeking public comment on areas of habitat for which we do not have documented evidence of occupancy, but which may be essential to provide additional spawning and rearing areas or foraging, migratory, and overwintering (FMO) habitat for existing bull trout populations. Specific areas include: the headwater tributaries of the Jarbidge River system; the Bruneau River and its tributaries; tributaries of the Skokomish, Dungeness, Hoh, Queets, Quinault, and Chehalis River systems; independent tributaries to Hood Canal, Pacific Coast from Cape Flattery to Willapa Bay, and Grays Harbor; Sumas River and tributaries of the Chilliwack River system; tributaries of the Nooksack River system, especially those to its major forks; tributaries of the Skagit River system; tributaries of Diablo Lake and the Thunder Creek system; tributaries of Ross Lake and the Lightning Creek system; tributaries of the Stillaguamish River system, especially those to its major forks; tributaries of the Skykomish River and its major forks; and tributaries of the Puyallup River system, especially those to the Carbon, West Fork White, upper White, and Greenwater Rivers.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see
ADDRESSES
section). The proposed rule, maps, fact sheets, photographs, and other materials relating to this proposal, can be found on our Pacific Region bull trout Web site at
http://species.fws.gov/bulltrout.

Please submit e-mail comments to
r1bulltroutch@r1.fws.gov
in ASCII file format and avoid the use of special characters or any form of encryption. Please also include “Attn: bull trout” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Regional Office at phone number 503/872-2766. Please note that the Internet address
r1bulltroutch@r1.fws.gov
will be closed out at the termination of the public comment period. In the event that our Internet connection is not functional, please submit your comments by the alternate methods mentioned above.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

Public Hearings

The Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be made in writing within 45 days of the publication of the proposal. Public hearing requests must be received by August 9, 2004. However, due to the high probability of receiving a request for a public hearing on this proposal, we have scheduled public hearings to be held on Tuesday, August 10, 2004, in Tumwater, WA. If, as the result of public requests, we decide to schedule additional public hearings on this proposal, we will announce the dates, times, and places of those hearings in the
Federal Register
and local newspapers at least 15 days prior to the first hearing. See
DATES
and
ADDRESSES
for information on the public hearings currently scheduled.

Anyone wishing to make oral comments for the record at the public hearing is encouraged to provide a written copy of their statement and present it to us at the hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration.

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
et seq.
), we have found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. Our present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. We believe that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

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

While attention to, and protection of, habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.”

Currently, only 445 species or 36 percent of the 1,244 listed species in the U.S. under our jurisdiction have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. We believe that it is these measures that may make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected us to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves us with little ability to prioritize our activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, our own proposals to undertake conservation actions based on biological priorities are significantly delayed.

The accelerated schedules of court ordered designations have left us with almost no ability to provide for additional public participation beyond those minimally required by the Administrative Procedures Act, the Act, and our implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues 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 will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis, provides little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects, and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act of 1969, all are part of the cost of critical habitat designation. These costs result in minimal benefits to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Bull Trout Biology, Life History Strategies, and Distribution

Biology

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 are relatively dispersed in the Columbia River and Snake River basins, extending east to headwater streams in Montana and Idaho, and into Canada. Bull trout also occur in the Klamath River basin of south-central Oregon. For additional information on the biology and habitat requirements of the bull trout, please refer to the proposed critical habitat rule for the Klamath River and Columbia River populations (68 FR 6863, February 11, 2003), and listing rules for the Klamath River and Columbia River population (63 FR 31647, June 10, 1998), Jarbidge River population (64 FR 17110, April 8, 1999), and Coastal-Puget Sound and Saint Mary-Belly River populations (64 FR 58910, November 1, 1999).

Life-History Strategies

Bull trout exhibit a number of life-history strategies: stream-resident, migratory, and amphidromous. 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). Resident and migratory forms may be found together, and either form can produce resident or migratory offspring (Rieman and McIntyre 1993).

Some bull trout populations, coastal cutthroat trout populations, and some other species are commonly referred to as anadromous, as are Pacific salmon. Technically, however, unlike Pacific salmon, bull trout, coastal cutthroat trout, and some other species that enter the marine environment are more properly termed amphidromous. Unlike strict anadromy, amphidromus individuals often return seasonally to freshwater as subadults, sometimes for several years, before returning to spawn (Wilson 1997). For bull trout, the “amphidromous” life history form is unique to the Coastal-Puget Sound population.

In the Coastal-Puget Sound population, amphidromous bull trout require access to marine habitat to complete their life history. For amphidromous bull trout populations, estuaries and marine nearshore areas provide an important component of their FMO habitat, and are integral to maintaining the complex amphidromous life-history strategy, which is unique to the Coastal-Puget Sound distinct population segment. When juvenile bull trout emigrate downstream to marine waters, they enter a more productive marine environment that allows them to achieve rapid growth and energy storage (similar to adfluvial forms migrating to lakes and reservoirs) (Washington Department of Fish and Wildlife (WDFW)
et al.
1997). Bull trout “smolts” typically enter marine water at 2 years of age and around 6 in (150 mm) or longer, although much smaller individuals have been reported (Curtis Kraemer, WDFW, in litt. 2003). While in marine waters, bull trout appear to primarily occupy productive estuarine and nearshore habitat and feed on a variety of prey items, especially small marine fish such as Pacific herring (
Clupea pallasii
), surf smelt (
Hypomesus pretiosus
), and sandlance (
Ammodytes hexapterus
) (WDFW
et al.
1997; Brenkman and Corbett 2003). Subadult bull trout use marine habitat to forage, generally from late spring to early fall, and as migration corridors to and from essential marine foraging areas.

These marine habitats also serve as migration corridors to and from non-natal watersheds providing other essential freshwater foraging and overwintering habitat outside of their natal watersheds (Brenkman and Corbett 2003). Subadults typically leave marine waters in the fall to overwinter in mainstem rivers for a period of time before returning to marine areas to forage (WDFW 1998). They repeat this cycle until maturing at about age 4.

Bull trout migration and life-history strategies are closely related to their feeding and foraging strategies. Optimal foraging theory can be used to describe how fish choose between alternative sources of food by weighing the benefits and costs of capturing one possible choice over another. For example, food (prey) often occur in concentrated patches of abundance (patch model in Gerking 1994). As the predator feeds, the prey population is reduced sooner or later, and it becomes more profitable to seek a new patch of prey rather than continue feeding on the original one, which is why bull trout appear to wander from one marine site to another.

Bull trout appear to be largely opportunistic feeders, and bull trout habitat use can be variable depending upon foraging opportunities (Montana Bull Trout Scientific Group (MBTSG) 1998). According to optimal foraging theory, as positions of patches and the types of prey change with the seasons, the predator must constantly modify its behavior in order to stay alive and maximize fitness (Hart 1986). In the Puget Sound area, bull trout may seasonally prey upon salmon eggs, smolts, or hatchery salmon. At other times, they may enter marine waters to prey upon surf smelt and Pacific herring where these fish school or spawn (Kraemer 1994). Seasonally, bull trout may also enter marine areas in order to locate abundant freshwater prey species in adjacent rivers not connected to their core area (Sam Brenkman, Olympic National Park, in litt. 2003). In a Montana study in Flathead Lake (Leathe and Graham 1982), kokanee (
Oncorhynchus nerka
) were an important food source for bull trout during spring months. By autumn, the bull trout had moved to near the mouth of the Flathead River, reportedly to exploit a pygmy whitefish (
Prosopium coulteri
) spawning run (Leathe and Graham 1982).

Upon reaching maturity, amphidromous bull trout begin reentering mainstem rivers in late spring and early summer to migrate to their spawning tributaries (WDFW 1998). Similar to the adfluvial life history, after amphidromous forms complete spawning, they usually return downstream to lower mainstem rivers and marine habitats (Kraemer 1994).

Jarbidge River Distinct Population Segment Distribution

Although historical records are lacking, bull trout were likely more abundant and widely distributed in the Bruneau and Jarbidge River Basins than they are today because of barriers to fish passage and past habitat degradation (Gilbert and Evermann 1894; Durrant 1935; McNeill
et al.
1997). Currently, bull trout occur primarily in the Jarbidge River Basin in both Idaho and Nevada. The Jarbidge River population includes six local populations of resident bull trout: the East Fork Jarbidge River (including the East Fork headwaters, Cougar Creek, and Fall Creek), West Fork Jarbidge River (including Sawmill Creek), Dave Creek, Jack Creek, Pine Creek, and Slide Creek, and some remnant fluvial bull trout. These populations are considered to be quite low in abundance and at risk of extirpation (J. Dunham, University of Nevada-Reno, in litt. 1998).

Among the many factors that contributed to the decline of bull trout in the Jarbidge River Basin, those which appear to have been particularly significant are as follows: (1) Isolation of the population due to dams and water

diversions that impeded migratory bull trout movements (Gilbert and Evermann 1894; Lay 2000); (2) habitat degradation, including alterations in water temperature, water quality, and sedimentation rates, resulting from past forest and rangeland management practices, mining, and roads (McNeill
et al.
1997); and (3) fisheries management, particularly fishing pressure and potential overharvest, and the introduction of competing nonnative species (Durrant 1935; Nevada Division of Wildlife 1961, 1975; Johnson 1990; Frederick and Klott 1999).

Coastal-Puget Sound Distinct Population Segment Distribution

The Coastal-Puget Sound population includes bull trout residing in the Puget Sound and Olympic Peninsula regions of western Washington. Historical reports for this population demonstrates that bull trout, especially the amphidromous form, were once more abundant and more widely distributed (Suckley and Cooper 1860; Service 1913; Norgore and Anderson 1921; King County Department of Natural Resources (KCDNR) 2000). Bull trout still occur in most major watersheds within the population, but the distribution and abundance within these watersheds often has been reduced by human-caused conditions (Service 2002, 2004). Bull trout are now rarely observed in the Nisqually River and Chehalis River systems, which may have supported spawning populations in the past (Service 2002, 2004). In the Puyallup River system, the amphidromous life history form currently exists in low numbers, as does the migratory form in the South Fork Skokomish River (Service 2002, 2004). In the Elwha River and parts of the Nooksack River, amphidromous bull trout are unable to access historic spawning habitat resulting from manmade barriers (Service 2002, 2004).

The Coastal-Puget Sound region is affected by the same significant factors that contributed to the decline of bull trout in the Columbia River and Klamath River Basins (67 FR 71236). These include the fragmentation and isolation of local populations due to dams and diversions, degradation of spawning and rearing habitat, and introduction of nonnative fish species. In addition to these factors, amphidromous bull trout distribution and abundance in the Coastal-Puget Sound region is threatened by the degradation of mainstem river FMO habitat, and the degradation and loss of marine nearshore foraging and migration habitat.

Saint Mary-Belly River Distinct Population Segment Distribution

The Saint Mary-Belly River population includes headwaters of the Saint Mary and Belly River systems in the U.S. These two streams flow north, from high-elevation slopes along the Rocky Mountain front in north-central Montana. This population is the only portion of the conterminous U.S. range of bull trout that is located east of the Continental Divide. Most of the Saint Mary River and Belly River watersheds are located in Alberta, Canada. The interjurisdictional nature of the Saint Mary River and Belly River watersheds is relatively unique in the bull trout's range and makes international coordination especially critical. Major land ownership includes Glacier National Park and the Blackfeet Nation in the United States, and the Province of Alberta, Waterton Lakes National Park, the Blood Tribe, and various private entities in Canada.

The Saint Mary River watershed occurs in steep, glaciated valleys in Glacier National Park. It flows northward through the glaciated troughs of two large lakes, Saint Mary Lake and Lower Saint Mary Lake, and then across the northwest corner of the Blackfeet Reservation before crossing the international border into Alberta, Canada. In addition to the two major lakes, the watershed contains many smaller high-elevation lakes, three of which have existing bull trout populations. There are at least five tributary drainages in the U.S. with important bull trout spawning and rearing habitat. The Saint Mary River, in Canada, flows northeast through southwest Alberta and enters the Oldman River a few miles upstream from Lethbridge, Alberta.

The Belly River originates on the east slope of the Rocky Mountains, in the northernmost portion of Glacier National Park, between the Saint Mary River drainage to the east and the Waterton River drainage to the west. The Belly River flows north for about 12.0 mi (19.3 km), entirely within glaciated valleys and lakes in Glacier National Park, before crossing the international border into Alberta, Canada. In Canada, the Belly River flows through mostly prairie foothill habitat from the international border to the confluence of the Oldman River, some 112 mi (180 km) downstream. Only a few miles of the headwaters of the Belly River in the United States contain bull trout (Fitch 1997).

Within the Saint Mary-Belly River Recovery Unit in the United States, the historical distribution of bull trout is believed to be relatively intact. However, abundance of bull trout in U.S. portions of these watersheds has been reduced, and portions of the habitat are fragmented from natural condition due to manmade structures such as dams and diversions (Service 1993). It is considered likely that the mountains and transitional zones of the Saint Mary and Belly Rivers (the U.S. headwaters and upper reaches in Canada) were historical strongholds for bull trout in these drainages (Fitch 1997). In the lower reaches of the Saint Mary and Belly Rivers in Alberta, bull trout may have been occasionally present, though they were not commonly distributed in these prairie streams (Clayton 1999). Historical connectivity for bull trout to migrate between the Saint Mary and Belly River systems may not have occurred, at least not for much of the recent post-glaciated period that extends over approximately the past 10,000 years (Costello
et al.
2003).

Threats to Bull Trout Populations

The range of the bull trout is likely to have contracted and expanded over time in relation to natural climate changes; the distribution of the species probably was likely patchy even in pristine environments. However, regardless of uncertainty about the exact historical range, the number and size of historical populations, and the role of natural factors in the status of the species, there is widespread agreement in scientific literature that many factors related to human activities have impacted bull trout and continue to pose significant risks of further extirpations of local populations (see Fitch 1997; Clayton 1999; Post and Johnson 2002; Costello
et al.
2003). In the Saint Mary River drainage within the United States, the primary threat to bull trout habitat is water diversions in the U.S. and Canada, which can cause entrainment of fish, disruption of migratory corridors, dewatering of instream habitat, and alteration of stream temperature regimes, and may preclude connectivity with some local headwater populations, such as in Lee Creek.

A second major issue is the lingering effect of a half-century of fish introductions, particularly the widespread stocking and establishment of brook trout (
Salvelinus fontinalis
), which may compete with and hybridize with bull trout. Lake trout (
Salvelinus namaycush
) and northern pike (
Esox lucius
), two species with the potential to compete with bull trout, are native in the Saint Mary River drainage. As a result, bull trout were probably precluded from establishing strong

migratory populations in the most productive lowland lacustrine habitats in the drainage, such as in Saint Mary Lakes (Donald and Alger; Service 2002). In addition, much of the potential habitat for adfluvial populations of bull trout in headwater lakes was historically isolated and fishless, due to barriers formed by natural waterfalls. Hence, bull trout populations in the Saint Mary system seem to have developed a mixture of fluvial and adfluvial migratory life history patterns, spending much of their time in the Saint Mary River and several of its major tributaries. Localized habitat impacts occur in some of the watersheds from forestry, livestock grazing, agriculture, mining, and transportation corridors. These impacts are generally site-specific and less pervasive than the impacts due to the diversions (Fitch 1997; Clayton 1999; Service 2002).

In the Belly River drainage, the reasons for decline were similar, though they occur mostly in downstream reaches in Canada. The headwater lakes in Glacier National Park currently support mostly populations of nonnative rainbow trout (
Oncorhynchus mykiss
), Yellowstone cutthroat trout (
Oncorhynchus clarki bouvieri
), brook trout, and kokanee. The habitat in U.S. portions of the Belly River drainage is mostly intact, as it occurs primarily in backcountry areas of Glacier National Park.

For populations of bull trout throughout their range, the ramifications and effects of isolation and habitat fragmentation on various aspects of the life cycle of bull trout are highlighted in much of the scientific literature on this species. Isolation of populations and habitat fragmentation resulting from barriers to migration has negatively impacted bull trout in several ways that have important implications for the conservation of the species. These include: (1) Reducing geographical distribution (Rieman and McIntyre 1993; MBTSG 1998); (2) increasing the probability of losing individual local populations (Rieman and McIntyre 1993; Rieman
et al.
1995; MBTSG 1998; Dunham and Rieman 1999; Nelson
et al.
2002); (3) increasing the probability of hybridization with introduced brook trout (Rieman and McIntyre 1993); (4) reducing the potential for movements that are necessary to meet developmental, foraging, and seasonal habitat requirements (Rieman and McIntyre 1993; MBTSG 1998); and (5) reducing reproductive capability by eliminating the larger, more fecund migratory form of bull trout from many subpopulations (Rieman and McIntyre 1993; MBTSG 1998).

Introduced brook trout threaten bull trout throughout most of their range through competition, hybridization, and possibly predation (Leary
et al.
1993). Brook trout appear to be better adapted to degraded habitat than bull trout, and brook trout are more tolerant of high water temperatures. Hybridization between brook trout and bull trout has been reported in Montana, Oregon, Washington, and Idaho (Leary
et al.
1985). In addition, brook trout mature at an earlier age and have a higher reproductive rate than bull trout. This difference appears to favor brook trout over bull trout when they occur together, often leading to the decline or extirpation of bull trout (Leary
et al.
1993; MBTSG 1998). Nonnative lake trout also negatively affect bull trout. A study of 34 lakes in Montana, Alberta, and British Columbia found that lake trout reduce the distribution and abundance of migratory bull trout in mountain lakes, and concluded that lacustrine populations of bull trout usually cannot be maintained if lake trout are introduced (Donald and Alger 1993).

Previous Federal Action

On November 29, 2002, we published the court-ordered proposed critical habitat designation for the bull trout Klamath River and Columbia River populations (67 FR 71235). In that proposed rule, we included a detailed summary of previous Federal actions completed prior to publication of that proposal as it related to all bull trout populations. We now provide information on actions as they relate just to the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations.

On June 10, 1998, we published in the
Federal Register
(63 FR 31693) a proposed rule to list the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River population segments of bull trout as a threatened species. On August 11, 1998, we published an emergency rule in the
Federal Register
(63 FR 42757) listing the Jarbidge River population as endangered. We published the final rule listing the Jarbidge River population as threatened on April 8, 1999 (64 FR 17110), and listed the Coastal-Puget Sound and Saint Mary-Belly River populations as threatened on November 1, 1999 (64 FR 58910). At the time of each listing, we made the finding that critical habitat was not determinable for these populations because their habitat needs were not sufficiently well known (64 FR 58927).

On January 26, 2001, the Alliance for the Wild Rockies, Inc. and Friends of the Wild Swan, Inc. filed a lawsuit in the U.S. District Court of Oregon challenging our failure to designate critical habitat for bull trout. We entered into a settlement agreement on January 14, 2002, in which we agreed to submit for publication in the
Federal Register
a proposed rule for critical habitat designation for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations by October 1, 2003, and a final rule by October 1, 2004. A subsequent agreement resulted in extending the date for finalizing the proposed rule by June 15, 2004, and completing a final rule by June 15, 2005.

Critical Habitat

Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographic 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 geographic 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” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions 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.

To be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known 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)).

Occupied habitat may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).)

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the
Federal Register
on July 1, 1994 (59 FR 34271) and our U.S. Fish and Wildlife Service Information Quality Guidelines (2002) provide criteria, establish procedures, and provide guidance to ensure that our decisions represent the best scientific and commercial data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

Critical habitat designations do not signal that habitat outside the designation is unimportant to bull trout. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1), and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted 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 used the best scientific data available to determine areas essential to the conservation of the bull trout, including proposing critical habitat, we review the overall approaches to the conservation of the species undertaken by local, State, and Federal agencies; Tribal governments; and private individuals and organizations since the species was listed in 1998. We relied heavily on information developed by the Bull Trout Recovery Unit Teams, which were comprised of Federal, State, Tribal, and private industry biologists, as well as experts from other scientific disciplines such as hydrology and forestry, resource users, and other stakeholders with an interest in bull trout and the habitats they depend on for survival. We reviewed available information concerning bull trout habitat use and preferences, habitat conditions, threats, limiting factors, population demographics, and the known locations, distribution, and abundances of bull trout.

During our evaluation of information, we took into account the relatively low probability of detection of bull trout in traditional fish sampling and survey efforts, as well as the limited extent of such efforts across the range of bull trout. Because of their varied life-history strategies, nocturnal habits, and low population densities in many areas, the detectability of bull trout in a given area is highly variable (Rieman and McIntyre 1993). Furthermore, much of the current information on bull trout presence is the product of informal surveys or sampling conducted for other species or other purposes. The primary limitations of informal surveys are that they provide no estimate of certainty (
i.e.
, a measure of the probability of detection), and they may be inadequate for determining parameters such as the densities and distribution of the population. The need for a statistically sound bull trout survey protocol has been addressed only recently through the development, by the American Fisheries Society, of a peer-reviewed protocol for determining presence/absence, for juvenile and resident bull trout (Peterson
et al.
2002).

Areas where presence of the species is undetermined may be essential to the conservation of the species if they provide connectivity between areas of high-quality habitat or access to an abundant food base, served as important migration corridors for fluvial or adfluvial fish, or were identified in the Draft Recovery Plan (Service 2002, 2004) as necessary for local population expansion or reestablishment in order to achieve recovery, so that delisting can occur. Restoration of reproducing bull trout populations to additional portions of their historical range would significantly reduce the likelihood of extinction due to natural or human-caused factors that might otherwise further reduce population size and distribution. Thus, an integral component of the Draft Recovery Plan (Service 2002, 2004) is the selective reestablishment of secure, self-sustaining populations in certain areas where the species has apparently, but not necessarily conclusively, been extirpated.

In some areas (
e.g.
, areas of Montana where bull trout surveys have been consistently conducted for a decade or more), we feel there is a relatively reliable level of information available on bull trout distribution. However, given the limitations of our current knowledge and the specific life history traits of bull trout described above, we feel that in many areas across their range a lack of bull trout detections to date does not provide definitive evidence of their absence in a particular lake, stream, or river. Accordingly, we considered information gathered during the bull trout recovery planning process, as supplemented by even more recent information developed by State agencies, Tribes, the U.S. Forest Service (USFS), and other entities, in the development of our critical habitat proposal. Data concerning accessibility, proximity to known bull trout streams, habitat conditions, and status of primary constituent elements were also considered when available. To address areas where data gaps exist, we also solicited expert opinions from knowledgeable fisheries biologists in the local area.

However, because of our desire to limit any potential regulatory effects of a critical habitat designation to those areas where we believe we have the greatest set of supporting information, we have limited this critical habitat proposal to areas of known occupancy that we consider essential to the conservation of the species. We acknowledge that considerable scientific information exists as to the importance of other areas to the conservation of the species where bull trout-specific surveys have not been conducted. Accordingly, we are specifically seeking public comment on areas of habitat for which we do not have documented evidence of occupancy, but which may be important to provide additional spawning and rearing areas or FMO habitat for existing bull trout populations. These habitat areas may contain the primary constituent elements, in particular an adequate forage base, and are accessible to existing bull trout populations. Additionally, we are seeking information on areas of habitat with evidence of occupancy of which we are unaware.

Specific areas for which we are seeking additional information include: the headwater tributaries of the Jarbidge River system; the Bruneau River and its

tributaries; tributaries of the Skokomish, Dungeness, Hoh, Queets, Quinault, and Chehalis River systems; independent tributaries to Hood Canal, Pacific Coast from Cape Flattery to Willapa Bay, and Grays Harbor; Sumas River and tributaries of the Chilliwack River system; tributaries of the Nooksack River system, especially those to its major forks; tributaries of the Skagit River system; tributaries of Diablo Lake and the Thunder Creek system; tributaries of Ross Lake and the Lightning Creek system; tributaries of the Stillaguamish River system, especially those to its major forks; tributaries of the Skykomish River and its major forks; and tributaries of the Puyallup River system, especially those to the Carbon, West Fork White, upper White, and Greenwater Rivers. If we receive evidence of occupancy of stream segments in any of these areas, we will evaluate the appropriateness of including them in the final critical habitat designation.

Important considerations in selecting areas for critical habitat designation include factors specific to each river system, such as size (
e.g.
, stream order), gradient, channel morphology, connectivity to other aquatic habitats, and habitat complexity and diversity, as well as range-wide recovery considerations. This effort was especially assisted by the recovery strategy described in the Draft Recovery Plan (Service 2002, 2004). We took into account that preferred habitat for bull trout ranges from small headwater streams that are used largely for spawning and rearing, to downstream, mainstem portions of river networks that are used for rearing, foraging, overwintering, and migration.

Our method 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 McIntyre 1993; Hard 1995; Healey and Prince 1995; Rieman
et al.
1995; MBTSG 1998; Dunham and Rieman 1999; Nelson
et al.
2002). As explained previously, habitat for movement upstream and downstream is important for all life-history forms for spawning, foraging, growth, access to rearing and overwintering areas, or thermal refugia (
e.g.
, spring-fed streams in late summer), avoidance of extreme environmental conditions, and other normal behavior. Successful migration requires biologically, physically, and chemically unobstructed routes for movement of individuals. Therefore, our method included considering information regarding habitat that is essential for movement into and out of larger rivers, because of the importance of such areas to the fluvial form of bull trout. We similarly identified habitat that is essential for movement between streams and lakes by adfluvial forms.

Migratory corridors also are important for movement between populations (
e.g.
Fraley and Shepard 1989; Rieman and McIntyre 1993; Rieman
et al.
1995; Dunham and Rieman 1999). Thus, in addition to considering areas important for migration within populations, our method also included considering information regarding migration corridors necessary to allow for genetic exchange between local populations. Corridors that provide for such movements can support eventual recolonization of unoccupied areas or otherwise play a significant role in maintaining genetic diversity and metapopulation viability. Because these factors are important in identifying areas that are essential to the conservation of bull trout, our method included consideration of the various roles that migratory corridors have for bull trout.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species, and that may require special management considerations or protection. These features are used for all listed species and include, but are not limited to: space for individual and population growth and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding and reproduction; and habitats that are protected from disturbance or are representative of the historic and geographical and ecological distributions of a species.

The specific biological and physical features, otherwise referred to as the primary constituent elements, which comprise bull trout habitat are based on specific components that provide for the essential biological components of the species as described below.

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 and quality; cover; channel form and stability; spawning and rearing substrate conditions; appropriate hydrograph; migratory corridors: food base abundance; and the absence of predatory or interbreeding species or species that compete for resources.

Relatively cold water temperatures, particularly summer water temperatures, are characteristic of bull trout habitat. Water temperatures above 59 °Fahrenheit (F) (15 °Celsius (C)) are believed to limit their distribution (Fraley and Shepard 1989; Rieman and McIntyre 1996). Although adults have been observed in large rivers throughout the Columbia River basin in water temperatures up to 68 °F (20 °C), Gamett (1999) documented steady and substantial declines in abundance in stream reaches where water temperature ranged from 59 to 69 °F (15 to 20 °C). Thus, water temperature may partially explain the generally patchy distribution of bull trout in a watershed. In large rivers, bull trout are often observed “dipping” into the lower reaches of tributary streams, and it is suspected that cooler waters in these tributary mouths may provide important thermal refugia, allowing them to forage, migrate, and overwinter in waters that would otherwise be, at least seasonally, too warm. Spawning areas often are associated with cold-water springs, groundwater infiltration, and the coldest streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993; Rieman
et al.
1997).

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 2 to 4 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. For example, altered stream flow in the fall may disrupt bull trout during the spawning period, and channel instability may decrease survival of eggs and young juveniles in the gravel during winter through spring (Fraley and Shepard 1989; Pratt 1992; Pratt and Huston 1993).

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 155 mi (250 km) 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 48 to 50 °F (9 to 10 °C). Goetz (1989) reported a temperature range from 39 to 50 °F (4 to 10 °C) (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 the water temperature, egg incubation is normally 100 to 145 days (Pratt 1992). Water temperatures of 34.2 to 41.7 °F (1.2 to 5.4 °C) have been reported for incubation, with an optimum (best embryo survivorship) temperature reported to be from 36 to 39 °F (2 to 4 °C) (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). Weaver and Fraley (1991) reported an 80 percent emergence success rate when no fine material was present and less than a 5 percent emergence success rate when half of the incubation gravel was smaller than 0.25 in (0.635 cm). Juveniles are likely to be negatively affected as well. 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 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. For example, altered stream flow in the fall may disrupt bull trout during the spawning period, and channel instability may decrease survival of eggs and young juveniles in the gravel during winter through spring (Fraley and Shepard 1989; Pratt 1992; Pratt and Huston 1993).

The ability to migrate is important to the persistence of local bull trout (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 2 years old and 4 in (100 mm) or longer upon entry to the lake environment. For the next 2 to 4 years they grow rapidly. At a typical age of 5 years or older, when total length normally exceeds 16 in (400 mm), 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 6 months and cover distances as much as 155 mi (250 km) upriver.

When adfluvial bull trout reach adulthood and complete the spawning migration, mating in the fall in the stream where they originated, they usually return downstream to the lake very rapidly. Adult adfluvial bull trout may live as long as 20 years and can complete multiple migrations between the lake and the spawning stream. In many populations, alternate year spawning is the normal pattern, and adult fish may require as much as 20 months in the lake or reservoir habitat to facilitate adequate energy storage and gamete development before they return to spawn again.

One of the key factors influencing the distribution and abundance of bull trout is the extent to which habitat patches in sufficient number and proximity provide for the natural reestablishment of local subpopulations. Ratliff and Howell (1992) noted that habitat fragmentation and the resulting isolation of populations can exacerbate problems facing declining populations, including reduced genetic variability that can lead to inbreeding depression, further lowering productivity and increasing the risk of extinction. They described the loss of fluvial and adfluvial life histories as a major concern for bull trout conservation, noting that these larger fish have greater reproductive potential because of their increased fecundity and also are less likely to hybridize with the smaller brook trout (
Salvelinus fontinalis
) that often co-occur in spawning areas.

Although the loss of a few populations may have little effect on overall genetic diversity, without conserving suites of populations and their habitats (
i.e.
, core areas and, on a larger scale, recovery units), the loss of phenotypic diversity may be substantial, with negative consequences to the viability of the species (Rieman and McIntyre 1993; Hard 1995; Healey and

Prince 1995; MBTSG 1998; Taylor
et al.
1999; Nelson
et al.
2002). Therefore, the maintenance of phenotypic variability and plasticity for adaptive traits (
e.g.
, variability in body size and form, foraging efficiency, and timing of migrations, spawning, and maturation) is achieved by conserving populations, their habitats, and opportunities for the species to take advantage of habitat diversity (Hard 1995; Healey and Prince 1995).

The ramifications and effects of isolation and habitat fragmentation on various aspects of the life cycle bull trout are highlighted in much of the scientific literature on this species. Isolation of populations and habitat fragmentation resulting from barriers to migration have negatively impacted affected bull trout in several ways that have important implications for the conservation of the species. These include: (1) Reducing geographical distribution (Rieman and McIntyre 1993; MBTSG 1998); (2) increasing the probability of losing individual local populations (Rieman and McIntyre 1993; Rieman
et al.
1995; MBTSG 1998; Dunham and Rieman 1999; Nelson
et al.
2002); (3) increasing the probability of hybridization with introduced brook trout (Rieman and McIntyre 1993); (4) reducing the potential for movements that are necessary to meet developmental, foraging, and seasonal habitat requirements (Rieman and McIntyre 1993; MBTSG 1998); and (5) reducing reproductive capability by eliminating the larger, more fecund migratory form of bull trout from many subpopulations (Rieman and McIntyre 1993; MBTSG 1998).

Introduced brook trout threaten bull trout through competition, hybridization, and possibly predation (Leary
et al.
1993). Brook trout appear to be better adapted to degraded habitat than bull trout, and brook trout are more tolerant of high water temperatures. Hybridization between brook trout and bull trout has been reported in Montana, Oregon, Washington, and Idaho. In addition, brook trout mature at an earlier age and have a higher reproductive rate than bull trout. This difference appears to favor brook trout over bull trout when they occur together, often leading to the decline or extirpation of bull trout (Leary
et al.
1993; MBTSG 1998). Nonnative lake trout also negatively affect bull trout. A study of 34 lakes in Montana, Alberta, and British Columbia found that lake trout reduce the distribution and abundance of migratory bull trout in mountain lakes and concluded that lacustrine populations of bull trout usually cannot be maintained if lake trout are introduced (Donald and Alger 1993).

The effects of pollutant discharges on water quality and bull trout range from benign to extreme, depending upon the type and concentration of material delivered (MBTSG 1998). NMFS has studied the effects of contaminated sediments on salmon populations and noted reduced growth and disease resistance of juvenile chinook salmon when exposed to environmentally relevant levels of compounds like PCBs and PAHs (Varanasi
et al.
1993a, Arkoosh
et al.
1991, 1998). Similar effects are likely to occur in bull trout.

Pursuant to our regulations, we are required to identify the known physical and biological features,
i.e.
, primary constituent elements, essential to the conservation of bull trout, together with a description of any critical habitat that is proposed. In identifying the primary constituent elements, we used the best available scientific and commercial data available. The primary constituent elements determined essential to the conservation of bull trout are:

(1) Water temperatures ranging from 36 to 59 °F (2 to 15 °C), with adequate thermal refugia available for temperatures at the upper end of this range. Specific temperatures within this range will vary depending on bull trout life history stage and form, geography, elevation, diurnal and seasonal variation, shade, such as that provided by riparian habitat, and local groundwater influence;

(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. A minimal amount of fine substrate less than 0.25 in (0.63 cm) in diameter and minimal substrate embeddedness are characteristic of these conditions;

(4) A natural hydrograph, including peak, high, low, and base flows within historic ranges or, if regulated, a hydrograph that demonstrates the ability to support bull trout populations by minimizing daily and day-to-day fluctuations and minimizing departures from the natural cycle of flow levels corresponding with seasonal variation;

(5) Springs, seeps, groundwater sources, and subsurface water connectivity to contribute to water quality and quantity;

(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) Few or no nonnative predatory, interbreeding, or competitive species present; and

(9) Permanent water of sufficient quantity and quality such that normal reproduction, growth and survival are not inhibited.

The bull trout critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations are designed to incorporate what is essential for their conservation. All lands identified as essential and proposed as critical habitat contain one or more of the primary constituent elements for bull trout.

Special Management Considerations or Protection

As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined by those features to assess whether they may require special management considerations or protection. As discussed throughout this proposed rule, in the previous proposal of critical habitat for the Klamath and Columbia River segments of bull trout (67 FR 71236, November 29, 2002), in the draft Recovery Plan for the Klamath, Columbia, and St. Mary-Belly River segments of bull trout, and in the various proposed and final listing rules for bull trout (62 FR 32268, June 13, 1997; 64 FR 17110, April 8, 1999; 63 FR 31647, June 10, 1998; 63 FR 31693, June 10, 1998; and 64 FR 58910, November 1, 1999), bull trout and its habitat are threatened by a multitude of factors. Threats to those features that define essential habitat (primary constituent elements) are caused by negative changes in water quality, stream complexity, quality and quantity of stream substrate, stream hydrology, migratory corridors, food sources, and non-native competitors and predators. It is essential for the survival of this species to protect those features that define the remaining essential habitat, through purchase or special management plans, from irreversible threats and habitat conversion. These impacts can be ameliorated by educating landowners and managers

about the location and value of these resources and requesting that they protect these resources.

Threats to the features that define habitat essential to the conservation of the bull trout should be assessed for each site. Sites should be protected from activities that negatively alter or destroy bull trout aquatic habitat. An appropriate management and monitoring plan should address these threats. As such, we believe that within each area proposed for designation 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 address the current and future threats to the bull trout and habitat essential to its conservation to ensure the overall recovery of the species.

Relatively cold water temperatures are characteristic of bull trout habitat. Water temperatures above 15 °Celsius (C) (59 °Fahrenheit (F)) are believed to limit their distribution (Fraley and Shepard 1989; Rieman and McIntyre 1996). Although adults have been observed in large rivers throughout the Columbia River basin in water temperatures up to 20 °C (68 EF), Gamett (1999) documented steady and substantial declines in abundance in stream reaches where water temperature ranged from 15 to 20 °C (59 to 68 °F). Thus, water temperature may partially explain the generally patchy distribution of bull trout in a watershed. In large rivers, bull trout are often observed “dipping” into the lower reaches of tributary streams, and it is suspected that cooler waters in these tributary mouths may provide important thermal refugia, allowing them to forage, migrate, and overwinter in waters that would otherwise be, at least seasonally, too warm. Spawning areas often are associated with cold-water springs, groundwater infiltration, and the coldest streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993; Rieman
et al.
1997). Activities that reduce stream flows or alter the natural hydrograph may affect stream temperatures (
e.g.
, stream diversions).

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. For example, altered stream flow in the fall may disrupt bull trout during the spawning period, and channel instability may decrease survival of eggs and young juveniles in the gravel during winter through spring (Fraley and Shepard 1989; Pratt 1992; Pratt and Huston 1993).

Throughout their lives, bull trout require complex forms of cover, including large woody debris, undercut banks, boulders, and pools (Fraley and Shepard 1989; Watson and Hillman 1997). Juveniles and adults frequently inhabit side channels, stream margins, and pools with suitable cover (Sexauer and James 1997). McPhail and Baxter (1996) reported that newly emerged fry are secretive and hide in gravel along stream edges, and in side channels. 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). Activities that disrupt or reduce stream complexity such as channelizing, reducing the input of woody debris, or removing riparian cover may negatively affect bull trout.

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 non-natal 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). Activities that preclude the function of migratory corridors may affect bull trout (
e.g.
, stream blockages).

The introduction and spread of nonnative species, particularly brook trout (
Salvelinus fontinalis
) and lake trout (
Salvelinus namaycush
), which compete with bull trout for limited resources and, in the case of brook trout, hybridize with bull trout (Ratliff and Howell 1992; Leary
et al.
1993) is another ongoing threat to bull trout. Both species have been introduced in historical bull trout habitat, and both legal and illegal introductions of these and other competing species have continued to the present.

Criteria Used To Identify Critical Habitat

The Draft Recovery Plan (Service 2002, 2004) identifies the specific recovery needs of the bull trout and provides guidance for identifying areas that warrant critical habitat designation. As described below, the information contained in the Draft Recovery Plan was used as the principal basis for identifying this proposed critical habitat designation. Critical habitat for bull trout was also delineated using multiple sources including State databases of bull trout distribution.

The draft recovery strategy focuses primarily on the maintenance and, where needed, expansion of existing local populations by: (1) Protecting sufficient amounts of spawning and rearing habitat in upper watershed areas; (2) providing suitable habitat conditions in downstream rivers and lakes to provide foraging and overwintering habitat for fluvial and adfluvial fish; and (3) sustaining (and in some cases reestablishing) migratory corridors by maintaining or restoring habitat conditions that retain migration routes. Migratory corridors allow for the potential of gene flow between local populations, as well as provide opportunities for the full expression of migratory life-history forms to ensure adaptive resilience (Rieman and McIntyre 1993; MBTSG 1998; Morita and Yamamoto 2002; Colden Baxter, Colorado State University and Christian Torgerson, U.S. Geological Survey, in litt. 2003; Philip Howell, USFS, in litt. 2003).

Critical habitat units are patterned after recovery units identified in the Draft Recovery Plan (Service 2002, 2004) for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River population segments. Using the guidance from those plans, we identified habitat areas needed for the survival and recovery of bull trout. To be included as critical habitat, an area had to provide one or more of the following three functions: (1) Spawning, rearing, foraging, or overwintering habitat to support existing bull trout local populations; (2) movement corridors necessary for maintaining migratory life-history forms; and/or (3) suitable and historically occupied habitat that is essential for recovering existing local populations that have declined, or that is needed to reestablish local populations required for recovery.

We also note that some habitat areas that would not be considered essential if they were geographically isolated are, in fact, essential to the conservation of the species when situated in locations where they facilitate movement between local populations or otherwise play a significant role in maintaining metapopulation viability (
e.g.
, by providing sources of immigrants to recolonize adjacent habitat patches following periodic extirpation events) (Dunham and Rieman 1999). In addition, populations on the periphery of the species' range, or in atypical environments, are important for maintaining the genetic diversity of the species and could prove essential to the ability of the species to adapt to rapidly changing climatic and environmental conditions (Leary
et al.
1993; Hard 1995).

Relationship to Section 4(a)(3) of the Act

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 there. 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. We consult with the military on the development and implementation of INRMPs for installations with listed species.

Section 318 of fiscal year 2004 the National Defense Authorization Act (Pub. L. 108-136) amended section 3 of the Endangered Species Act. This provision prohibits us from designating 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 INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if we determine in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

We identified habitat essential for the conservation of the bull trout within the Jim Creek drainage, which is partially encompassed within the Naval Reservation for the Naval Radio Station Jim Creek. We have examined the INRMP for the Naval Radio Station Jim Creek to determine coverage for the bull trout. The INRMP includes measures that attempt to minimize impacts to riparian areas and strive to prevent entry of herbicides into waterbodies in the Jim Creek basin during antenna field vegetation management. Additionally, the riparian areas that border the reach of Jim Creek within the Naval Reservation and identified as essential habitat are managed primarily for riparian protection and wildlife. Based on the beneficial measures for the bull trout contained in the INRMP for Naval Radio Station Jim Creek, we have not included this area in the proposed designation of critical habitat for bull trout pursuant section 4(a)(3) of the Act. We will continue to work cooperatively with the Department of the Navy to assist the Naval Radio Station Jim Creek in implementing and refining the programmatic recommendations contained in this plan that provide benefits to the bull trout. The non-inclusion of Naval Radio Station Jim Creek demonstrates the important contributions approved INRMPs have to conservation of the species. As with HCP exclusions, a related benefit of excluding Department of Defense lands with approved INRMPs is that it would encourage continued development of partnerships with other stakeholders, including States, local governments, conservation organizations, and private landowners to develop adequate management plans that conserve and protect bull trout habitat.

Relationship to Section 4(b)(2) of the Act

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, the impact to national security, and any other relevant impact, of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined, following an analysis, that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from designated critical habitat based on economic impacts, national security, or other relevant impacts such as preservation of conservation partnerships, if we determine the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided the action of excluding the area will not result in the extinction of the species. In our critical habitat designations we have used the provisions outlined in sections 4(b)(2) of the Act to evaluate those specific areas that are proposed for designation as critical habitat and those areas which are subsequently finalized (
i.e.
, designated).

Relationship to Habitat Conservation Plans

As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue to non-Federal entities a permit for the incidental take of endangered and threatened species. This permit allows a non-Federal landowner to proceed with an activity that is legal in all other respects, but that results in the incidental taking of a listed species (
i.e.
, take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). The Act specifies that an application for an incidental take permit must be accompanied by a conservation plan, and specifies the content of such a plan. The purpose of such a habitat conservation plan, or HCP, is to describe and ensure that the effects of the permitted action on covered species are adequately minimized and mitigated and that the action does not appreciably reduce the survival and recovery of the species.

The vast majority of land within the Saint Mary-Belly River population of bull trout is either managed by the National Park Service in Glacier National Park or is tribal land managed by the Blackfeet Nation. The majority of land within the Jarbidge River population of bull trout is Federal. There are no existing or proposed HCPs that cover the Saint Mary-Belly River or Jarbidge River populations of bull trout.

Within the range of the Coastal-Puget Sound population of bull trout, there are six HCPs that include bull trout as a covered species. Four of these encompass stream segments and lakes identified as proposed critical habitat; these HCPs are from the Washington Department of Natural Resources (WDNR), City of Seattle, Tacoma Water, and Simpson Timber Company. The WDNR and Simpson Timber HCPs have been developed, in part, to provide for the conservation needs of bull trout while also allowing for otherwise lawful timber management activities. The Tacoma Water and City of Seattle Cedar

River Watershed HCPs have been developed, in part, to provide for the conservation needs of bull trout while also allowing for water management and watershed restoration and protection activities. The duration of the permits associated with these HCPs ranges from 50 to 100 years. The permittees have the option, however, of terminating at any time if they so choose, with a 60-day notice to the Service. Moreover, some permittees may retain their permits but sell some of their lands covered by an HCP. All of these HCPs contain a provision that allow buyers of lands covered by the HCP to assume the permit if they so desire.

The WDNR lands are maintained primarily for the purpose of growing and selling timber to finance State government, and the management of these lands also can include purchases, sales, and land exchanges. The WDNR HCP does not include incentives for placing conservation easements on some of the land that WDNR sells. The HCP allows WDNR to dispose of permit lands at its sole discretion. However, if the cumulative impact of disposed lands would have a significant adverse effect on the covered species, the parties to the HCP are required to mutually amend the HCP to provide replacement mitigation.

The City of Seattle Cedar River Watershed HCP includes provisions that: (1) Allow for the sale or exchange of parcels not in excess of 640 ac (259 ha) to any party as long as the cumulative total of all such transactions does not exceed 1,920 ac (777 ha) per township, or a total of 6,338 ac (2,565 ha); and (2) allow lands in all other circumstances to be sold or exchanged if parties negotiate conditions on the property transferred, or alternative mitigation which will not compromise the effectiveness of the HCP. However, to maintain protection of the public water supply, the City of Seattle is unlikely to sell or exchange lands.

The Tacoma Water HCP addresses reservoir operations and forest management activities associated with the management of the upper Green River watershed and associated water supply. Although the operational effects to bull trout in the downstream reaches of the Green River are covered under this HCP, Tacoma Water does not possess management authority over other habitat-altering activities that may occur along these lower reaches.

The Tacoma Water HCP includes provisions that: (1) Generally allow for the sale or exchange of lands to an agency of the Federal Government; (2) allow for the sale or exchange of any lands to a non-Federal entity that has entered into an agreement acceptable to the Services to ensure that the lands will be managed consistent with the goals and objectives of the HCP; and (3) allow for the sale of parcels not in excess of 160 ac (65 ha). However, Tacoma Water is more likely to acquire land for the purpose of protecting the public water supply, rather than sell lands.

The Simpson Timber Company HCP covers approximately 287,000 ac (116,145 ha), all within the range of the Coastal-Puget Sound population. Provisions in the HCP allow for sale or exchange of lands with the following provisions: (1) Sale or exchange does not involve a Core Area (as defined in the HCP) and the total acreage of all lands sold or exchanged will not exceed 39,200 ac (15,864 ha); or (2) the lands are transferred to a Comparable Transferee, such as an agency of the Federal Government; or (3) the HCP and Incidental Take Permit are modified to delete such land in accordance with the modification procedures as described in the Incidental Take Permit.

We evaluated lands covered by these existing HCPs to determine whether they are: (1) Occupied by bull trout and essential to the conservation of the species; (2) in need of special management considerations or protection; and (3) currently not known to be occupied but essential to the conservation of the species. We evaluated each HCP to determine whether it: (1) Provides a conservation benefit to the species; (2) provides assurances that the management plan will be implemented; and (3) provides assurances the plan will be effective. Approved and permitted HCPs are designed to ensure the long-term survival of covered species within the plan area. Where we have an approved HCP, the areas we ordinarily would designate as critical habitat for the covered species will normally be protected through the terms of the HCPs and their implementation agreements. These HCPs and implementation agreements include management measures and protections that are crafted to protect, restore, and enhance their value as habitat for covered species.

The issuance of a permit (under section 10(a) of the Act) in association with an HCP application is subject to consultation under section 7(a)(2) of the Act. While these consultations on permit issuance have not specifically addressed the issue of destruction or adverse modification of critical habitat for bull trout, they have addressed the very similar concept of jeopardy to bull trout in the plan area. Since these large regional HCPs address land use within the plan boundaries, habitat issues within the plan boundaries have been thoroughly addressed in the HCP and the consultation on the permit associated with the HCP. Our experience is that, under most circumstances, consultations under the jeopardy standard will reach the same result as consultations under the adverse modification standard. Common to both approaches is an appreciable detrimental effect on both survival and recovery of a listed species, in the case of critical habitat by reducing the value of the habitat so designated. Thus, actions satisfying the standard for adverse modification are nearly always found to also jeopardize the species concerned, and the existence of a critical habitat designation does not materially affect the outcome of consultation. Therefore, additional measures to protect the habitat from adverse modification above those addressing actions that may jeopardize the species are not likely to be required.

As noted above, lands within these HCPs are subject to disposal (
e.g.
, through sale or exchange), subject to various sideboards included in each HCP. In already approved HCPs, we have provided assurances to permit holders that once the protection and management required under the plans are in place, and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders and in some cases, specified third parties.

The benefits of including HCP lands in critical habitat are normally small. The principal benefit of any designated critical habitat is that Federal require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. However, if there is no Federal nexus, no consultation is required. Where HCPs are in place, our experience indicates that the benefit of designation is small or non-existent. Further, HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs assure the long-term protection and management of a covered species and its habitat. Such assurances are typically not provided by section 7 consultations which, in contrast to HCPs, often do not commit the project proponent to long-term special management or protections. In addition, HCP conservation protections cover all lands rather than just those lands where there is a Federal nexus.

The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide conservation efforts and assist in species recovery and the creation of innovative solutions to conserve species while allowing for commercial activity. The educational benefits of critical habitat, including informing the public of areas that are important for the long-term survival and conservation of the species, are essentially the same as those that would occur from the public notice and comment procedures required to establish an HCP, as well as the public participation that occurs in the development of many regional HCPs. Also, the HCP development process provides an opportunity for more intensive data collection and analysis regarding the use of particular habitat used by a species, and the adaptive management provisions provide for ongoing data collection and analysis. The process enables us to understand the importance of such lands to the long-term survival of the species in the context of constructing a biologically configured system of interlinked habitat areas. For these reasons, then, we believe that designation of critical habitat normally has little benefit in areas covered by HCPs.

The benefits of excluding HCPs from being designated as critical habitat include relieving landowners, communities and counties of additional regulatory costs and delays that result from such a designation. Many HCPs, particularly large regional HCPs, take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery of covered species. Imposing an additional regulatory review after HCP completion would stifle conservation efforts and partnerships in many areas and would be viewed as a disincentive to those developing HCPs.

The benefits to the landowner community of excluding HCPs encourage the continued development of partnerships with participants, including States, local governments, conservation organizations, and private landowners, that together can implement conservation actions we would be unable to accomplish solely through regulatory control. By excluding areas covered by HCPs from critical habitat designation, we preserve these partnerships, encourage continued development of HCPs, and set the stage for more effective species conservation.

In general, we believe the benefits of critical habitat designation to be small in areas covered by approved HCPs. We also believe that the benefits of excluding HCPs from designation are significant. Weighing the small benefits of inclusion against the benefits of exclusion, including the benefits of relieving property owners of costs and delays related to regulations, together with the encouragement of conservation partnerships, we have excluded the WDNR, City of Seattle Cedar River Watershed, Tacoma Water, and Simpson Timber Company HCPs from this proposed critical habitat pursuant to section 4(b)(2) of the Act.

In the event that future HCPs covering bull trout are developed within the boundaries of designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of the bull trout by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. Furthermore, we will complete intra-Service consultation on our issuances of section 10(a)(1)(B) permits for these HCPs to ensure permit issuance will not destroy or adversely modify critical habitat. If an HCP that addresses the bull trout as a covered species is ultimately approved, we may reassess the critical habitat boundaries in light of the HCP.

Relationship to the Washington State Forest Practices Rules and Regulations, as Amended by the Forest and Fish Law

A collaborative effort (known as the Forest and Fish Report or FFR) to address the needs of listed salmonids, and avoid conflicts between State regulations and the Act, was initiated by members of six caucuses: Federal agencies, State agencies, Native American Tribes, non-industrial forest landowners, environmental organizations, and the timber industry. In April of 1999, FFR reached a point where complete agreement by all parties was unlikely. The environmental organizations and some of the Native American Tribes did not support the final version of the report. FFR was adopted by the legislature, thereby amending the Revised Code of Washington with respect to the Washington Forest Practices Act (RCW 76.09), as well as the Washington Administrative Code with respect to the Washington Forest Practices Rules (WAC 222).

This collaborative effort addressed the needs of salmonids, other fish, and stream-associated amphibians, and specifically addressed the needs of bull trout and bull trout habitat in the following ways. Riparian buffers on fishbearing streams were designed to recruit the majority of the large wood which potentially could be recruited from these riparian areas. Because addressing the recruitment of large wood requires buffer widths greater than that needed to address many other riparian functions, these buffers also address the riparian functions of bank stability, shade, nutrient input, and sediment filtering. Riparian buffers on fishbearing streams likely account for half of the wood delivered to such streams. The remainder of large wood in these streams depends on episodic and catastrophic events for transport from upstream and upslope areas. These “upstream” wood-recruitment mechanisms are not well understood. Riparian buffers for streams above fishbearing streams include a buffer at the confluence with fishbearing streams to address temperature concerns as well as provide a run-out zone for events such as landslides and channelized debris flows. Above those areas, buffers under FFR rules need not be continuous, but are designed to maintain stream temperatures within normal parameters and will be placed along sensitive reaches and sites. Slope stability and the ability to harvest timber and construct roads on “at-risk” or unstable slopes are also addressed through these rules.

Road construction and maintenance is a large part of these regulations, requiring corrective measures to address existing problem areas. These rules are designed to ensure stream connectivity through road crossings, shunting of road-generated sediment away from aquatic resources, and integrity of road infrastructure. It mandates a process of identification of problem areas and correction of those road segments within specified timeframes.

We assessed FFR with respect to the primary constituent elements for bull trout critical habitat. Forest practices conducted consistent with the FFR are expected to maintain a high-level of water quality. In addition, the FFR is expected to maintain the thermal regime of streams within the range of normal variation, and contribute to the maintenance of complex stream channels, appropriate substrates, a natural hydrograph, ground-water sources and subsurface connectivity, migratory corridors, and an abundant food base. We do not expect forest practices to introduce or favor nonnative competitors or predators.

These rules apply to non-industrial forest landowners, family-held and

publicly-held industrial timber corporations, and some State lands. State lands managed by the WDNR west of the Cascade Crest are not subject to FFR as they are managed under their 1997 HCP with respect to bull trout. However, some provisions of FFR, such as road management and slope stability, will be voluntarily applied by WDNR on those west-side lands. These rules do apply to WDNR lands east of the Cascade Crest and non-HCP private lands statewide, regardless of the presence of bull trout or salmon. Therefore, FFR includes benefits for many species in areas with no listed species. The FFR rules continue to apply so long as harvested land will be replanted and remain in forestry. Individual counties generally administer timber harvests associated with conversion of forested lands to agriculture or development, and all counties are expected to administer conversion harvests consistent with FFR by the year 2005.

These State Forest Practices Rules allow for the development of alternate plans. It is anticipated that non-industrial forest landowners will seek alternate plans for several inter-related reasons: (1) Much of the non-industrial lands are located at lower elevations where a disproportionate amount of the streams contain fish; (2) streams are lower gradient and can be addressed with different buffering scenarios that provide equal or better protection while allowing additional management flexibility; and (3) many non-industrial forest landowners do not have additional lands in their portfolio which can be used to offset the economic effect to them from reserve areas covering high percentages of their ownerships. All alternate plans, whether developed in conjunction with an HCP or not, will be evaluated for the level of protection provided to the aquatic resources including bull trout. Alternate plans will be required to provide equal or better protection for these resources. If this can be accomplished on some lands and waters in a more-economical fashion, we expect landowners will attempt to avail themselves of these options.

We assessed the adequacy of FFR as a plan to determine whether lands covered by it were in need of the special management or protection that would require a designation. For the reasons discussed above, bull trout will benefit from the implementation of FFR. FFR has already been adopted by the legislature and has been implemented for several years. Forest Practice Rules are monitored by the WDNR to ensure compliance by landowners and operators. Effectiveness is ensured through a cooperative adaptive-management process that includes collection of basic information regarding the covered species and their habitats, research, effectiveness monitoring, and regulatory feedback.

For these reasons, we believe that FFR provides substantial protection and restoration for bull trout and bull trout habitat, and therefore, these areas do not meet the definition of critical habitat as they do not require special management consideration or protection. However, we also assessed the FFR area for exclusion pursuant to section 4(b)(2), and are proposing to exclude to exclude it under section 4(b)(2).

Relationship to Tribal Lands

None of the Jarbidge River population is under Tribal jurisdiction. We evaluated Tribal lands in Montana to determine if they are essential to the conservation of the species. None of the Belly River headwaters is under Tribal jurisdiction. We have proposed critical habitat for portions of the Saint Mary River, the headwaters of Lee Creek, the lower reaches of Otatso Creek, Kennedy Creek, Boulder Creek, Swiftcurrent Creek, and Divide Creek, and in Lower Saint Mary Lake on the Blackfeet Reservation. A total of approximately 41.9 mi (67.4 km) of stream segments and approximately 2,189 ac (886 ha) of lakes on Tribal lands are included in our proposed critical habitat designation.

Within the Coastal-Puget Sound population, we have proposed 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; Swinomish Channel and portions of Puget Sound nearshore within or adjacent to the Swinomish 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 White River within or adjacent to the Muckleshoot 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 Skokomish River, Nalley Slough, Skobob Creek, and Hood Canal nearshore within or adjacent to the Skokomish Indian Reservation; portions of the Dungeness River within or adjacent to the Jamestown S'Klallam Tribal lands; portions of the Elwha River and the Strait of Juan de Fuca nearshore within or adjacent to the Lower Elwha S'Klallam Indian Reservation; portions of the Hoh River and Pacific Coast nearshore within or adjacent to the Hoh Indian Reservation; portions or all of the Quinault River, Lake Quinault, Pacific Coast nearshore, Raft River, Queets River, Salmon River, Moclips River, Cook Creek, Elk within or adjacent to the Quinault Indian Reservation; and a portion of the Chehalis River within or adjacent to the Chehalis Indian Reservation.

Quinalt Indian Reservation

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 acres) under tribal and BIA timber management, including individually 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. Many types of projects could occur under the FMP. These include timber harvest, road construction, fuels management, mineral pit management, cedar salvage, and adaptive management and monitoring plan development and use.

In 2003, we completed the bull trout consultation on the FMP (minus the North Boundary Area) and rendered a no jeopardy biological opinion on the Plan (USDI 2003). Although the upper Quinault Reservation (North Boundary Area) was not included as part of the biological opinion, provisions of the FMP will apply to the North Boundary Area. Consultation on timber management of the North Boundary Area occurred separately and also concluded with a no jeopardy biological opinion for bull trout (USDI 2000). Both biological opinions contain reasonable and prudent measures, with their implementing terms and conditions, which are designed to minimize impacts to bull trout that might otherwise result from the FMP.

Based on our analysis of the FMP and the North Boundary Area, as described in the two biological opinions, we have determined that forest management on

Quinault Reservation lands, with the terms and conditions from the biological opinions, provides a sufficient level of protection and certainty of implementation such that additional special management consideration or protection is not required. Therefore, we are proposing to exclude 161 km (100 mi) of streams within the reservation from the final designation of critical habitat for the bull trout pursuant to section 4(b)(2) of the Act. We are proposing to exclude all or portions of the following streams: Quinault River, Pacific Coast nearshore, Raft River, Queets River, Salmon River, Harlow Creek, Moclips River, North Fork Moclips River, Mounts Creek, Joe Creek, Cook Creek, Elk Creek, Red Creek, (lower) Boulder Creek, Ten O'Clock Creek, Prairie Creek, McCalla Creek, and (upper) Boulder Creek. In some cases, a stream segment proposed for exclusion has non-Tribal land ownership on one shore and, therefore, that segment of shore would not be managed as part of the Quinault FMP. However, for the above identified streams, except the Raft River, the majority of ownership is on Quinault reservation lands and is covered in the FMP; therefore we are proposing to exclude these streams from critical habitat for the bull trout. For the Raft River, where the majority of ownership is non-Tribal, we will be excluding only those segments of the Raft River that have Tribal ownership on both shores. On Lake Quinault only a small segment of the shoreline is covered by the FMP, and we are including Lake Quinault in our proposed designation of critical habitat.

The benefits of including Quinault reservation lands, with their approved FMP that provides measures to help protect the needs of bull trout, as critical habitat are small. The principal benefit of any designated critical habitat is that activities that may affect such habitat require consultation under section 7 of the Act if such action involves a Federal nexus. Where an approved management plan is in place, our experience indicates that this benefit is small or non-existent.

The benefits of excluding Tribal lands having approved resource management plans from being designated as critical habitat include relieving the Tribe from additional regulatory review and costs that result from such designation and promoting the conservation efforts and partnerships and encourage Tribes to develop species and habitat management plans. In general, we believe the benefits of critical habitat designation in areas covered by approved Tribal resource managements would be small while that the benefits of excluding the area covered by the Quinalt FMP are greater. Therefore, we are proposing to exclude areas covered by the Quinalt FMP from the designation of final critical habitat for the bull trout.

Proposed Critical Habitat Designation

Within the geographical areas presently known to be occupied by the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations, we are proposing to designate only areas currently known to be essential to the conservation of bull trout. These areas already contain features and habitat characteristics that are necessary to sustain the species. We are designating areas that currently have one or more of the primary constituent elements that provide essential life-cycle requisites of the species, as defined at 50 CFR 424.12(b). Moreover, certain areas with known occurrences of bull trout have not been designated as critical habitat. We did not designate critical habitat for some occurrences or habitats that are in highly fragmented areas or no longer have hydrologic conditions that are sufficient to maintain bull trout habitat. We do not believe, based on the best available scientific information, that these areas are essential to the conservation of the species.

The proposed critical habitat areas described below constitute our best assessment at this time of the stream reaches and lakes that are essential to the conservation of the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations. We are designating approximately 131 mi (211 km) of streams in Idaho and Nevada for the Jarbidge River population, and 2,290 mi (3,685 km) of streams, 52,540 ac (21,262 ha) of lakes, and 985 mi (1,585 km) of marine shoreline in Washington for the Coastal-Puget Sound population. For the Saint Mary-Belly River population, the critical habitat designation totals approximately 88 mi (142 km) of streams and 6,295 ac (2,548 ha) of lakes in Montana.

The lateral extent of critical habitat, for each designated stream reach, is the width of the stream channel as 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). Critical habitat extends from the bankfull elevation on one side of the stream channel to the bankfull elevation on the opposite side. If bankfull elevation is not evident on either bank, the ordinary high-water line, as defined by the U.S. Army Corps of Engineers (Corps) in 33 CFR 329.11, 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. 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 U.S. Geological Survey Quadrangle topographic map). A brief discussion of each area designated as critical habitat is provided in the unit descriptions below. Additional detailed documentation concerning the essential nature of these areas is contained in our supporting record for this rulemaking.

The inshore extent of critical habitat for marine nearshore areas is the mean higher high-water (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 proposed 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 can have major effects on physical and biological features of the marine environment. The offshore 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. Proposed critical habitat extends offshore to the depth of 33 feet (ft) (10 meters (m)) relative to mean lower low water (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 Puget Sound Nearshore Ecosystem Restoration Project (Corps and WDFW 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 (Kramer 1994; Frederick Goetz, Corps, in litt. 2003), 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.

The types and approximate percentages of land ownership adjacent to proposed critical habitat in aquatic areas are shown for the Jarbidge River population in Table 1, in Table 2 for the Coastal-Puget Sound population, and in Table 3 for the Saint Mary-Belly River population.

Table 1.—Approximate Linear Quantity of Proposed Critical Habitat of Streams (Miles (mi) (Kilometers (km)), and Adjacent Land Ownership Percentages for the Jarbidge River Population.

State
Streams

Federal
(percent)

Tribal
(percent)

State
(percent)

Private
(percent)

Nevada
93 mi (150 km)
91.7
0
0
8.3

Idaho
38 mi (61.6 km)
92.4
0
6.1
1.5

Total
131 mi (211 km)
92
0
3
5

Table 2.—Approximate Linear Quantity of Proposed Critical Habitat of Streams (Miles (mi) (Kilometers (km)), Adjacent Shoreline (mi (km)), and Surface Area of Lakes (Acres (ac) (Hectares (ha)), and Adjacent Land Ownership Percentages for the Coastal-Puget Sound River Population by Critical Habitat Subunits (CHSU) in Washington, Including Subtotals for Unit 27: Olympic Peninsular River Basins, and Unit 28: Puget Sound

CHSU

Marine shoreline
(mi)

Streams
(mi)

Lakes
(ac)

Federal
(percent)

Tribal
(percent)

State
(percent)

Private
(percent)

Skokomish
0
60 mi (96.5 km)
4,007 ac 1,622 ( ha)
54
3
4
39

Dungeness
0
30 mi (48 km)
0
59
<1
7
33

Elwha
0
55 mi (88.5 km)
746 ac (302 ha)
84
<2
6
8

Hoh
0
89 mi (143 km)
0
41
<1
14
45

Queets
0
139 mi (224 km)
0
56
14
18
11

Quinault
0
91 mi (146 km)
3,565 ac (1,443 ha)
60
40
0
0

Hood Canal
106 mi (170.5 km)
0
0
0
6
8
86

Strait of Juan de Fuca
130 mi (209 km)
20 mi (32 km)
0
9
0
6
84

Pacific Coast
94 mi (151 km)
64 mi (103 km)
0
10
<1
8
82

Chehalis
89 mi
216 mi
0
3
0
1
96

River/Grays Harbor
(143 km)
(347.5 km)

Subtotal: Unit 27
419 mi (674 km)
764 mi (1,229 km)
8,318 ac (3,366 ha)
38
7
7
48

Chilliwack
0
29 mi (47 km)
0
65
0
0
35

Nooksack
0
187 mi (301 km)
0
18
1
11
69

Lower Skagit
0
414 mi (666 km)
7,024 ac (2,842 ha)
47
0
5
48

Upper Skagit
0
84 mi (135 km)
12,276 ac (4,968 ha)
86
0
0
14

Stillaguamish
0
181 mi (291 km)
0
23
0
10
66

Snohomish/Skykomish
0
254 mi (409 km)
0
20
1
7
72

Chester Lake
0
16 mi (26 km)
1,971 ac (798 ha)
0
0
0
100

Puyallup
0
235 mi (378 km)
0
33
4
2
61

Samish
0
24 mi (39 km)
0
0
0
0
100

Lake Washington
0
0
22,951 ac (9,288 ha)
1
0
3
96

Lower Green
0
62 mi (100 km)
0
0
0
18
82

Lower Nisqually
0
40 mi (64 km)
0
33
13
0
54

Puget Sound Marine
566 mi (911 km)
0
0
3
15
6
76

Subtotal: Unit 28 0
566 mi (911 km)
1,526 mi (2,455 km)
44,222 ac (17,910 ha)
25
3
5
67

Total for both units
985 mi (1,585 km)
2,290 mi (3,685 km)
52,540 ac (21,262 ha)
32
5
6
57

Table 3.—Approximate Linear Quantity of Proposed Critical Habitat of Streams (Miles (mi) (Kilometers (km)) and Surface Area of Lakes (in Acres (ac) (Hectares (ha)), and Adjacent Land Ownership Percentages for the Saint Mary-Belly River Population

State
Streams
Lakes

Federal
(percent)

Tribal
(percent)

State
(percent)

Private
(percent)

Montana
88 mi (142 km)
6,295 ac (2,548 ha)
45
45
0
10

Critical habitat includes bull trout habitat across the species' range in Idaho, Montana, Nevada, and Washington. Lands adjacent to designated critical habitat are under private, State, Tribal, and Federal ownership, with Federal lands including lands managed by the USFS and Bureau of Land Management (BLM). Three critical habitat units have been delineated. The areas we are designating as critical habitat, described below, constitute our best assessment of areas essential to the conservation of the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout.

These critical habitat units correspond to recovery units identified in the Draft Recovery Plan (Service 2002, 2004). Brief descriptions of each unit, the critical habitat subunits (CHSUs) within them, and the specific areas designated as critical habitat, are presented below.

The streams, lakes, and marine shoreline indicated below are generally described from the bottom to the top of a watershed within a critical habitat unit or subunit. For example, river or stream “A” would be described from its mouth up to the first major tributary (stream “B”) that is also being designated as critical habitat. At that point, tributary stream “B” and any of its associated tributaries that are also being designated would be described, again from the mouth of stream “B” upstream to either the next tributary being designated or to the limit of critical habitat within stream “B.” Once this description is complete, the text again reverts to river/stream “A” and continues upstream, either to the next tributary being designated (
e.g.
, stream “C”) or to the upstream limit of critical habitat in stream “A”. This provides a “roadmap” that enables the reader to appreciate the extent of the proposal in a particular watershed or stream system, as well as to have the ability to work their way up from a landmark more likely to be familiar to locate a particular, generally more obscure, tributary in the upper watershed. Together with the maps included with this proposed rule, readers should be able to easily locate where a stream of interest that is being designated as bull trout critical habitat occurs on the landscape.

The legal descriptions provided in the regulatory portion of this proposed rule (see Regulation Promulgation section) correspond to the critical habitat units and subunits described below. However, the legal descriptions of individual streams and lakes within each subunit paragraph are arranged in alphabetical order by stream or lake name within a paragraph.

Unit 26: Jarbidge River Unit

The Jarbidge River Unit encompasses the Jarbidge and Bruneau River Basins, which drain into the Snake River within C.J. Strike Reservoir upstream of Grand View, Idaho. The Jarbidge River Unit is located within Owyhee County in southwestern Idaho and Elko County in northeastern Nevada.

The Jarbidge River Unit includes a total of approximately 131 mi (211 km) of streams proposed as critical habitat. Approximate percentages of land ownership associated with the streams proposed for designation are 92.4 percent Federal, 1.5 percent private, and 6.1 percent State in Idaho, and 91.7 percent Federal and 8.3 percent private in Nevada. The Jarbidge River Unit contains six local populations of resident and migratory bull trout. These stream segments and reservoirs provide either FMO habitat, or provide spawning and rearing habitat. These habitats are essential to the long-term conservation of the Jarbidge River population as they will help maintain populations and the migratory life-history form essential to the species' long-term conservation, and also provide habitat necessary for the recovered distribution of bull trout (Service 2004). The stream segments that make up the Jarbidge Unit are described below.

(A) Jarbidge River from the confluence with the Bruneau River approximately 29.4 mi (47.3 km) upstream to the joint confluence of the East and West Forks of the Jarbidge River. The mainstem Jarbidge River provides FMO habitat; the downstream extent of current use is unknown.

(B) West Fork of the Jarbidge River (also termed Jarbidge River) from the confluence with the East Fork of the Jarbidge River approximately 20.9 mi (33.6 km) upstream to the perennial headwaters. The lower West Fork of the Jarbidge River provides FMO habitat between the confluence with the East Fork and the confluence with Snowslide Gulch. Spawning and rearing habitat for the West Fork Jarbidge River local population and migratory bull trout currently are located upstream of Snowslide Gulch in the headwaters. Unnamed western headwater tributary from the confluence with the West Fork of the Jarbidge River approximately 0.9 mi (1.4 km) upstream to the perennial headwaters. The unnamed western headwater tributary provides additional spawning and rearing habitat for the West Fork Jarbidge River local population. Sawmill Creek, from the confluence with the West Fork

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A04-14014. Public record. Not legal advice.